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Legislative Assembly for the ACT: 2002 Week 13 Hansard (21 November) . . Page.. 3890 ..

MR STANHOPE (continuing):

The amendments are designed to protect people against discrimination on the ground of a possible future impairment. With the advances in medical science, particularly in the area of genetic information, it is possible to determine that some people have a greater likelihood of developing an impairment than others. Such predictions are undoubtedly going to become more common and more accurate as time goes by and the science is refined. The possibility of discrimination on the basis of such information exists now and will become more likely as time goes by. It is important that discrimination law keeps pace with these medical developments.

In the Discrimination Act "impairment" includes malfunction of the body, loss of bodily functions, presence in the body of organisms capable of causing disease, intellectual disability and mental illness. With the amendment in this bill, the meaning will be expanded to include an impairment that a person has or is thought to have, an impairment that a person had in the past or is thought to have had in the past and an impairment that a person will have in the future or is thought will have in the future. In this way the Discrimination Act is made to give broader protection from discrimination based on past, present or future impairment.

Discrimination law generally allows some discrimination under certain circumstances. It is a way of balancing the rights of particular groups to have access to work, education and services with the interests of others in the community who may be put to expense and inconvenience in the process. In the Discrimination Act, section 49 allows some discrimination on the grounds of impairment in relation to work. It means that if an employer can show that it would cause unjustifiable hardship to provide special facilities or services in order that a person with an impairment can do a particular job, then the employer can discriminate against the person in deciding whether or not to offer the person employment or in the terms and conditions of employment offered.

The bill amends section 49 so that, in addition, if an employee develops an impairment that requires special facilities or services to allow him or her to continue to do the job and providing those facilities or services would cause the employer unjustifiable hardship, then the employee can be dismissed without unlawful discrimination. In other words, an employer will be able to terminate the employment of a person if the person's impairment is such that, if he or she had not already been employed, the employer could have refused to employ him or her. This brings the ACT legislation into line with equivalent provisions in the Commonwealth Disability Discrimination Act 1992 and removes an unreasonable burden that occasionally falls on employers when an employee develops a serious impairment.

Although the meaning of "impairment" has been expanded by the bill, the exception in section 49 is expressly restricted to present impairments. That means that an employer is allowed to discriminate only on the grounds of a person's present impairment and cannot take into account past or future impairment.

The government is committed to encouraging resolution of disputes through conciliation and other processes that do not require a hearing before a court or tribunal. The Discrimination Act already provides for complaints to be conciliated by the Discrimination Commissioner if at all possible. Clearly a conciliation process is the best option, as it allows the parties to air all their concerns and discuss underlying issues

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