Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3937 ..
MR STANHOPE (Leader of the Opposition) (10.16): I move:
Clause 4, page 2, line 1, proposed new subsection 27(2), omit the subsection, substitute the following subsection:
" '(2) Subsection (1) does not apply to an act to the extent that it discriminates against a member of the relevant class.'.".
As Mr Rugendyke indicated, organisations that are affected by these amendments have been lobbying members. They certainly lobbied my office and I believe other members, setting out their concerns particularly with the Government's approach to this issue. The very direct representations that I have received are that they believe that approach does not cure the problem highlighted by the AAT and the Supreme Court. Under the Government's approach, people within a special needs program, whether because of a disability or some other attribute - and we need to remember this is not just about disability; it is about a range of people who fall within a class, such as gender or ethnicity - will continue to be disadvantaged in that it will be possible for service providers, such as the Government, to discriminate against them.
It is one thing for a service provider not to be able to provide a service because it does not have the resources; it is another thing entirely for the service provider to ignore or override the needs of its clients or to otherwise discriminate against its clients without the clients having access to any form of redress. The Government's amendment makes it too easy for service providers to dismiss the concerns of clients as being irrelevant - in the words of the Attorney's Bill - to the achievement of the outcomes of the program.
As I said, I have presented a Bill on the same matter, and the Attorney has explained the circumstances in which we both came to that position. The Bill that I presented, on which I consulted broadly with the community, has received broad acceptance from advocacy groups and service providers. As I mentioned, the amendment that I have moved should make it clear that the exemption contained in section 27 is designed to prevent complaints about positive discrimination in favour of persons admitted to a special needs program without abrogating the basic human rights of those persons to be treated fairly, equitably and with compassion.
Service providers and others who have concerns that they could be asked to provide services beyond what their resources permit or services which are too expensive still have a remedy - the defence of unjustifiable hardship, which is embodied in section 47 of the Act. Section 47 of the Discrimination Act states:
In determining what constitutes "unjustifiable hardship" for the purposes of this division, all relevant circumstances of the particular case shall be taken into account, including the nature of the benefit or detriment likely to accrue or to be suffered by all persons concerned; the nature of the impairment of the person concerned; and the financial circumstances of, and the estimated amount of, expenditure required to be made by the person claiming unjustifiable hardship.