Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3931 ..
MR RUGENDYKE (continuing):
I figure they must be a pretty good advocate for their clients. I find this not just in this area, but across the board. So, Mr Speaker, I will be supporting Mr Stanhope's amendment.
MS TUCKER (9.53): The Greens will be supporting Mr Stanhope's amendment. The debate on section 27 of the Discrimination Act 1991 in the view of the Greens is fundamentally about human rights and the rights of groups of people with specific attributes as defined in the Discrimination Act. Until recently, it was generally believed that section 27 was an affirmative action provision that protected the rights of certain classes of people. Section 27 permits certain acts that might otherwise be considered discriminatory in other parts of the Discrimination Act to ensure that members of a relevant class have equal opportunities with other persons or to afford members of a relevant class of persons access to facilities, services or opportunities to meet their special needs. It was commonly understood that these provisions were intended to protect services and organisations who conduct special needs programs for particular groups in the community, without breaching other sections of the Discrimination Act, as Mr Stanhope outlined with the example of the women's service, which is often cited.
Recent decisions by the Administrative Appeals Tribunal and the Supreme Court reinterpreted the intent of section 27. Instead of protecting "relevant classes of persons", it provided legal protection for service providers, ensuring that they could not be prosecuted for discriminatory behaviour by the relevant classes of people they were meant to be servicing. The effect is to prevent clients serviced from complaining about a service if they believe that service discriminates against the very client group it is meant to cater to.
For many this was a bewildering interpretation. The belief that section 27 is an affirmative action provision that positively discriminates on behalf of certain classes of people is in part based on the title of this section of the Act, which I remind members is described as "Measures intended to achieve equality". Equality for some members of our community is only achievable through special measures, measures that advantage those who have long been disadvantaged. This is a principle supported in international conventions to which Australia is a party, such as the International Convention on the Elimination of all Forms of Racial Discrimination. It is also enshrined in our own federal Racial Discrimination Act.
Thus, it was a blow to discover that section 27 could be interpreted in another way that disadvantages and discriminates against often already disadvantaged groups of people, by denying them rights available to the broader community. In spite of these recent interpretations, there are other pieces of legislation we can look to that state and reinforce rights of people with disabilities, including schedules 1 and 2 of the Disability Services Act 1991. Schedule 1 sets out "human rights principles to be furthered in relation to people with disabilities". These include:
2. People with disabilities, whatever the origin, nature, type or degree of disability, have the same basic rights as other members of society and should be enabled to exercise these basic human rights.