Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3940 ..
MR HUMPHRIES (continuing):
Vella decision and of the amendments which have been put on the table from both sides of the house.
The amendment that the Government has put forward makes it clear that people in disability programs do have access to complaint mechanisms under the Discrimination Act. It is not true to suggest that the effect of our amendment is to continue to exclude people in those programs from access to complaint under the Act and that you need Mr Stanhope's words to be able to allow a person in that program to get access to the Act. That is not true. Clearly, the government amendment provides that discrimination is illegal in respect of special service programs, special class programs, unless it can be shown to be relevant to the provision of the services in that program. That is the first point.
The second point Mr Stanhope makes is that he believes his amendment is acceptable to the service providers he has consulted with. Mr Stanhope overlooks the fact that something like 80 per cent of services to people with disabilities in the ACT is funded directly or indirectly by the ACT Government and that the ACT Government is the largest service provider in the ACT of services to people in this class. With great respect to Mr Stanhope, he has not consulted with the government service providers about these matters. I can assure him that there is extreme concern in the government services sector about the effect of such an amendment. There are extreme concerns, and I think other large providers of services are also similarly concerned.
The third point is that Mr Stanhope falls back to the other provision in the Discrimination Act about unjustifiable hardship. He said, "Even if a person were able to come forward and say, 'I demand a higher quality of service than the one I am getting. I am being treated less favourably than someone else in another part of the system, and therefore I demand and must receive a higher quality of service', then the Government, if the Government is providing the service, can go back to the unjustifiable hardship provision and say, 'It is an unjustifiable hardship on the part of this service provider to have to pay the extra money to provide this particular service' ".
The weakness in that argument is that unjustifiable hardship is a reasonable defence for individuals and small organisations which have limited budgets and which are able to say, "We have not got the resources to be able to provide for your particular needs within our relatively small organisation", but the ACT Government is a $1.8 billion enterprise. I do not think any court in this country would regard the ACT Government and all the agencies underneath it as having any claim under that provision of unjustifiable hardship. The courts would say, "You can afford another $100,000 in this particular area, no sweat at all".
It might be a reasonable defence in certain circumstances for small providers, but it will not cover the majority of large providers. It certainly would not cover the ACT Government or the Federal Government if it were providing services directly in the ACT. I urge members not to support the amendment Mr Stanhope has put forward. I put the argument in my in-principle speech that this goes beyond the original ambit of the legislation. It creates a new scenario. Mr Stanhope did not contradict that. I think that means he accepts my proposition there. Before we expand the operation of this legislation to create a whole new industry based on the capacity to claim that needs are