Commission submissions: Mt Isa

IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY DIVISON

No: G743 of 1991

On appeal from the Federal Court of Australia

BETWEEN:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Applicant

AND:

MOUNT ISA MINES LIMITED First Respondent

AND:

LOU MARKS Second Respondent

AND:

EDWARD EMMETT Third Respondent

AND:

JENNIFER GEORGE Fourth Respondent

AND:

CLIVE BROWN Fifth Respondent

AND:

JENNIFER MASSIE Sixth Respondent

AND:

DAVID NOLAN Seventh Respondent

AND:

ROBERT HART Eighth Respondent

AND:

KERRY KLINEBERG Ninth Respondent

AND:

BARRY NUTTER Tenth Respondent

AND:

NEIL BARTHOLOMAEUS Eleventh Respondent

AND:

LESLIE WRIGHT Twelfth Respondent

AND:

DARCY McGAURR Thirteenth Respondent

AND:

JOHN THOMPSON Fourteenth Respondent

AND:

SARAH BUTTERWORTH Fifteenth Respondent

AND:

BARRY DURHAM Sixteenth Respondent

AND:

JOHN WOODROW Seventeenth Respondent

AND:

BRENDAN PREISS Eighteenth Respondent

AND:

MARGARET CONLEY Nineteenth Respondent

Being members of the National Occupational Health and Safety Commission

AND:

NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION Twentieth Respondent

NOTICE OF APPEAL

1. The appellant appeals from the whole of the judgement of Davies J given on 13 March 1992 at Sydney

GROUNDS:

2. The decision is wrong in law.

3. His Honour failed to take into account the decision of the High Court of Australia in Waters -v- the Public Transport Commission in stating that the National Occupational Health and Safety Commission is not limited in its consideration by anything set down in the Sex Discrimination Act 1984.

4. His Honour erred in his construction of the meaning of sex discrimination as defined in section 5(1) of the Sex Discrimination Act 1984 by finding that:

(i) discrimination on the basis of danger to the health of a woman employee, by reference to the level of lead which may affect reproductive capacity constitutes discrimination on the basis of health;

(ii) female reproductive capacity is a circumstance that is materially different from that of a male employee in the lead industry; and

(iii) the reasonableness of any proper practice recommended by the National Occupational Health and Safety Commission in a standard or code is relevant.

5. His Honour erred in finding that compliance by employers in the lead industry with any reasonable and appropriate standard and code which the National Occupational Health and Safety Commission thought it proper to publish would not be likely to infringe the provisions of the Sex Discrimination Act 1984.

6. His Honour erred in finding that those who drafted the proposed code and standard appear to have abrogated a part of the function of the National Occupational Health and Safety Commission by accepting that the Human Rights and Equal Opportunity Commission should through its exemption process establish proper safety precautions for the lead industry.

7. His Honour erred in finding that those who drafted the proposed code and standard were overborne by consideration of matters with which the Sex Discrimination Act 1984 is concerned and thereby failed to develop a proper and adequate standard and code.

8. His Honour was in error in holding that it was not the task of the National Occupational Health and Safety Commission to concern itself with the implementation of the Sex Discrimination Act.

9. His Honour was in error in failing to hold that the National Occupational Health and Safety Commission is bound (or at least entitled) in its draft standards and codes to make recommendations which do not conflict with the law (including the Sex Discrimination Act).

10 His Honour was in error in holding that discrimination on health grounds would not infringe the Sex Discrimination Act.

ORDER SOUGHT:

1. That the declaration that paragraph 14(1)(d) of the proposed standard and paragraph 12.1(d) of the proposed code would be invalid if they were adopted be set aside.

2. That the mandatory injunction granted Davies J requiring the National Occupational Health and Safety Commission and the members of the Commission before adopting a standard and code for the lead industry to consider further whether there are any other appropriate provisions which, in their opinion, should, from the point of view of occupational health and safety, be included therein be set aside.

3. An order for costs of the appeal.

TO: the first respondent, c/- Allen Allen and Hemsley, Solicitors and Notaries, Level 58, MLC Center, 19-29 Martin Place, Sydney NSW 2000 as town agents for R P Woods, solicitor for Mount Isa Mines Limited, MIM Plaza, 410 Ann Street, Brisbane, QLD 4000.

TO: the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth respondents, c/-Australian Government Solicitor, 111 Elizabeth Street, Sydney NSW 2000.

TAKE NOTICE:

(a) Before taking any step in the proceeding you must enter an appearance in the Registry, unless you have already entered an appearance pursuant to Order 52, Rule, 7.

(b) The papers in the appeal will be settled before the Registrar at on

The appellant's address for service is:

Megan Chalmers Solicitor Human Rights and Equal Opportunity Commission Level 24 American Express Building 388 George Street Sydney NSW 2000

Dated this 2nd day of April 1992

Megan Chalmers Solicitor for the Appellant

Last updated 21 May 2003.