Senator MARGETTS (4:01 PM) —I move:

That the Disability Discrimination Amendment Regulations 1999 (No. 1), as contained in Statutory Rules 1999 No. 40 and made under the Disability Discrimination Act 1992 , be disallowed.

In moving this disallowance motion jointly with Senator Allison, I would like the Senate to know that we have not taken this action lightly. We are acting in response to representations from within the disabilities sector—representations from the people who will be affected and their peak organisations. It is clear that there are specific problems in the adverse outcomes for individuals. There are general problems with the principle of limiting access to discrimination redress and there are problems with process, particularly in the way the exemptions were brought in without any consultation with affected groups.

We believe there are too many problems for the exemptions to be allowed to stand. The case for disallowance has been very thoroughly put by the Australian Psychiatric Disability Coalition, in conjunction with the National Council on Intellectual Disability, in a notice to senators dated 9 April 1999. Rather than reiterate the points made in that document, I seek leave to table the document and make some more general remarks.

Leave granted.

Senator MARGETTS —I thank the Senate. The first point to be made is that the Disability Discrimination Amendment Regulations 1999 (No. 1) have the potential to undermine the intention and the spirit of the Disability Discrimination Act. The objects of the act are: firstly, to eliminate, as far as possible, discrimination against persons on the ground of disability; secondly, to ensure, as far as practicable, equality before the law; and, thirdly, to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

The amended regulations run counter to all three objects of the act. They exempt certain acts and regulations in South Australia and New South Wales from coverage of the Disability Discrimination Act. These acts and regulations become prescribed laws as allowed by section 47 of the act. Section 47 says that if a person acts in direct compliance with a prescribed law, their actions cannot be unlawful discrimination. So, when a person discriminates against someone with a disability, if they can show that what they are doing is something that was required by a prescribed act, a complaint of discrimination will be unsuccessful.

Let us look at the object of the act: elimination of discrimination in a number of areas. The areas specifically include work, education, provision of services, and existing laws. Yet the prescribed laws cover those very areas. Industrial and employee relations, general regulations and the Workers Rehabilitation and Compensation Act obviously deal with work; the education act deals with education. It cannot be held that these are laws which incidentally discriminate but do so for some higher purpose. These are laws which quite specifically deal with the core issues referred to in the objects of the act. If these laws are discriminatory, then it is these laws which should be changed.

Other laws and regulations the government wants to prescribe fall into the existing laws category and all of them potentially relate in some way—albeit indirectly—to provision of services. Once again, if they are discriminatory they should be changed, not exempted from the Disability Discrimination Act. The South Australian lobby group, Disability Action, have a very good point to make on this issue when they say:

It is absolutely essential that all of Australia's laws should express human rights values and be judged against those values. The DDA—

that is, the Disability Discrimination Act—

puts human rights values into law. It is an expression of Australia's commitment to several international conventions which it has ratified. The laws which are proposed for exemption were made for other purposes and reflect other values. Surely a good way to find out if a law is just is to let it stand the test of examination against laws designed to prevent discrimination. Does the state government hold the fear that its laws are discriminatory or that they might be administered in a discriminatory way? We think they must.

By way of an aside, I have some doubt in my mind about whether actions taken in direct compliance with these laws would be found to be discriminatory under the act anyway. The act is not as strong as it could be, and it has its own qualifications and exemptions. For example, the phrase `this section does not render it unlawful to discriminate if it would otherwise impose unjustifiable hardship' is used repeatedly throughout the act. That applies to educational authorities, it applies to employment, it applies to access, and it applies to provision of services—that sufficient exemption should be extended to anything done in direct compliance with the prescribed laws.

Let us look at some of the process issues. The most blatant abuse of process in this matter would have to be the lack of consultation with disabled people and their representatives. This is not new for this government, but here we go again. This runs totally counter to commitments given by the government to the disabled. The Minister for Community Services, Mr Warren Truss, in giving the closing address at the ACROD Convention in Cairns in November last year, said:

Effective communication between the Government and the community is essential to delivering good policy.

Yes, we can only agree. He said:

We share the same goal—to give people with a disability the opportunity to enjoy, and take part more fully, in Australia's economic and social life.

He did not go on to say `except where it conflicts with discriminatory state legislation'. Perhaps someone should suggest to the Attorney-General that he take heed of his colleague's commitments and put them into practice in his own portfolio.

It is not just the Attorney-General who has failed to seek the views of the community. When the community found out what he was doing and tried to find out what was behind these moves they were denied—and still are denied—access to key documents which would explain why the state government sought these exemptions in the first place. Freedom of information requests have languished and have been subjected to delay after delay. Even a request from my office to the Attorney-General's office did not lead to any movement on that front. When my office raised the issue of consultation, we were told quite bluntly that the act does not require consultation. Maybe the act does not, but consultation is good government; so good government does require consultation.

Who are the people who would be adversely affected by these laws being prescribed? One group is the parents who are trying to get their children into mainstream education. Sure, there is a limit to the extent to which we can expect schools to cope with a range of disabilities, but the Disability Discrimination Act recognises that. As I mentioned earlier, it does allow exemption where adjustments would cause unjustifiable hardship.

Cases brought to our attention have involved clear discrimination where minimal disruption to the school would have occurred. Perhaps the most blatant example we have been told about is of a child with short arms being excluded from school on the grounds that it would have taken her longer to get dressed after swimming lessons. Exempting the education act from the Disability Discrimination Act smacks of attempts to avoid schools having to make any accommodation for students with disabilities. This might be good from the point of view of economic rationalism and cost cutting, but is it good legislation? This is against everyone's interests, we believe. There is plenty of evidence to indicate the benefits of accommodating difference within the mainstream system to the child with disabilities and to the school community

Another example I will use to illustrate the need for disallowance relates to the Safety, Rehabilitation and Compensation Act. The relevant part of the act treats people with a psychiatric disability differently from people who have a physical disability. It changes the prerequisite conditions for compensation. It has very worrying implications for people who develop psychiatric disabilities as a result of their employment. Exempting the Safety, Rehabilitation and Compensation Act compounds the seriousness of these implications for whole classes of injured workers. Why should psychological injury be treated any differently from any other injury incurred at work? Clearly it can have just as debilitating an effect as physical injury. If laws rule out claims for psychological injury on a different basis from other injury, then they are discriminatory and should be open to challenge under the Disability Discrimination Act.

Workers in sheltered workshops are another group who stand to be disadvantaged. Why shouldn't they be covered by regulations which apply to other workers? They should be able to be covered by awards. Such awards could reflect the special circumstances of sheltered workshops without being discriminatory. Excluding them from the regulations is an open invitation to discrimination and exploitation. It should also be remembered that many of these sheltered workshops receive Commonwealth funding, and it is incumbent on the Commonwealth to ensure that employees are covered by appropriate wages and conditions. It is wrong for the government to leave the door open for discrimination against this class of workers. Are they expecting perhaps that disabled workers may, as a group of people or as individuals, be able to negotiate for each of their different working contracts?

There are those who could be affected by exempting the Motor Vehicle Standards Act. Obviously if people are unfit to drive there have to be ways of imposing restrictions. This is not in dispute. It is when actions are taken as a result of unrelated disabilities that problems arise. For example, a person in a wheelchair goes in to get a renewal of their disabled parking sticker and the overzealous clerk behind the counter insists on the person resitting a driving test: this is potentially an action which could cause considerable incon venience and cost. It is also discriminatory. If this disallowance is unsuccessful, that person would have no recourse under the Disability Discrimination Act. This was not a hypothetical case; it was based on an actual incident. Fortunately the person involved was a staunch advocate of the rights of people with disabilities, and the problem was resolved at the counter. Others without that sort of background and confidence may not be so lucky. If they suffer discriminatory treatment, they are, and should be, entitled to recourse.

To sum up, these regulations are misguided in their intent and discriminatory in their impact. They were promulgated without consultation with the very people most affected, quite against the words of the minister. They are vehemently opposed by the main representative bodies in the disabilities area, and they deserve to be opposed by the Senate. I seek assistance from the Senate in disallowing these regulations.