Legislative Assembly for the ACT: 1995 Week 9 Hansard (23 November) . . Page.. 2345 ..
MRS CARNELL: We will act in line with the court decision that has already been taken.
Mr Connolly: Does that mean that you will not argue discrimination on the appeal?
MRS CARNELL: You cannot ask another question.
MR KAINE: Mr Speaker, given the interest of the Opposition in this matter and the fact that they have directed the question to the Chief Minister rather than to the appropriate Minister, the Minister for Education and Training, I ask Mr Stefaniak whether he can inform us of what the intentions of the Government are in this matter.
MR STEFANIAK: I thank Mr Kaine for the question, Mr Speaker. Yesterday, in a question from Mr Connolly, I was asked whether I would instruct the Government Solicitor not to argue the issue of discrimination in relation to this appeal. The Government has further considered its position on this and I provide the following information for members. In October 1994 the Discrimination Commissioner, Professor Alston, found in a case before him that the policy governing access to the child health and development service was discriminatory and that it should be changed so as to remove the element of exclusion from mainstream services and to ensure that a procedure and criteria exist to govern transfers from one service to another. In addition, the professor also ruled that it was not possible for him to conclude, on the evidence available and on the balance of probabilities, that the child in question in the case before him had suffered particular damage in terms of speech development as a result of not having had access to CHADS.
On 21 November 1994 Mr Connolly, the then Minister responsible for CHADS, directed that in the event that there was an appeal by the complainant the Department of Health would not cross-appeal. He also decided that the Government would not support an ex-gratia payment, as Professor Alston found there was no damage. This year an appeal was lodged by the complainant, not by the Territory, with the ACT Administrative Appeals Tribunal, for damages. On 18 October 1995 Mr Connolly advised the Assembly that he had no difficulty with the Government litigating the issue of damages and defending the Territory's position in relation to damages. I assured him, in response to a question on that day, that the Government accepted the Discrimination Commissioner's decision and that the Government Solicitor would be defending the damages claim.
Following a preliminary hearing on 25 October this year the AAT required that the question of discrimination be re-examined in order for the matter of damages to be resolved. In respect of this decision, I shall quote the entire ruling of the president of the AAT: