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Thursday, 23 September 1999
Page: 10379

Mr McCLELLAND (1:00 PM) —The opposition will not be opposing the adoption of the amendments to the Human Rights Legislation Amendment Bill (No. 1) 1999 , but I would like to make a few comments. Initially, I should expressly note the Attorney-General's good faith in the government's negotiating with the Australian Labor Party some of the Labor Party's suggested amendments and accepting those in the Senate. In particular, I refer to the making of disability standards in relation to access to premises, issues of systemic discrimination, the amending of complaints during the litigation process, the referral of discriminatory awards and determinations to the Remuneration Tribunal and the Defence Force Tribunal, and the court fees that should apply to discrimination cases. We welcome the government's reconsideration of those issues.

We are concerned that our suggestions in respect of the applicability of the rules of evidence and representative complaints to the Federal Court were not accepted. The Labor Party also has great concern in respect of the issue of the awarding of costs. The act will provide that costs follow the event—that is, if you commence proceedings in the Federal Court and lose, you will be ordered to pay the successful party's costs. That is going to be a significant disadvantage to anyone commencing proceedings in the Federal Court; they simply will not have the resources to risk that loss. We have to bear in mind that in this area the awards of damages are not usually very large at all, particularly in the area of physical and intellectual disability. Usually, it is a symbolic issue or access issue that is, nonetheless, very important as to how society treats, cares for and assists disabled persons.

There will not be a big pool of money at the end of the tunnel to pay legal fees. In circumstances where there is not going to be much money, any litigant would have to balance that against the prospect of paying very substantial costs in the Federal Court proceedings should they lose their case. We also have to bear in mind that it is still the case that there is very little precedent law as to how these cases should be determined. Many of these cases are ploughing new ground, so any litigant in this area does take on a considerable risk. We think there is going to be a significant disincentive for these disability issues to be aired in the courts and, ultimately, for the community, having regard to those court decisions, to take on board the principles. Those points have been made today, for instance, by the National Council on Intellectual Disability and the Australian Psychiatric Disability Coalition. They said this in a media release:

The Democrats and the Coalition have ensured that human rights justice only exists for the wealthy. People with disabilities will not be able to risk their meagre possessions in taking an action in the Federal Court. It is now unlikely that any Federal Court decision will be made under the DDA. While ensuring that discrimination and human rights decisions will now be enforceable, people with disabilities will not be able to afford the financial risks in taking their case to the Federal Court.

That simply puts the reality of the position. I should say that the government's position on this matter has substantially been one of good faith. They have negotiated their position, explained their logic and received the arguments to the contrary. They have not accepted our suggestions, but we respect their position. We do not respect the position of the Australian Democrats, however. Indeed, the disability groups to which I have referred described their action as `shameful'. It was indeed shameful. The Democrats did not disclose how they intended to vote on this matter and, rather than arguing their case, they simply put forward selective arguments that had been made by the disability community and let the government take a swing at them. They did not present any arguments to back up what they were putting forward or enhance, develop or explain those arguments that had been put by the disability community. Effectively, they selectively quoted from the submissions of disability groups, effectively placing the ball for the government to come in and have a kick. They really let down the disability community. (Time expired)