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.