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Wednesday, 11 February 2009
Page: 972

Ms LEY (5:16 PM) —I rise on the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, and it gives me pleasure to speak on this bill in the House today. This bill proposes to amend a package of antidiscrimination legislation, most importantly the Disability Discrimination Act 1992. In addition, some technical and cosmetic amendments are made—for example, changing the name of the Human Rights and Equal Opportunity Commission to the Australian Human Rights Commission.

As was mentioned in the very well written Bills Digest on this subject, the Disability Discrimination Act is part of a package of Commonwealth anti-discrimination laws. The Disability Discrimination Act makes disability discrimination unlawful by aiming to deal with physical and attitudinal barriers that act to directly and indirectly preclude people with disabilities from making optimal use of their knowledge, skills and talents such that they may effectively participate in our communities. It affords people with disabilities the right to substantive equality of opportunity in areas like employment, education and the provision of goods and services.

I would like to quote from the Disability Discrimination Commissioner, Mr Graeme Innes AM, in a speech that he made on the matter of human rights in December last year, particularly his comments about disability and the rights of those with disabilities to participate fully in society. Mr Innes said:

We need a cultural change in Australia when it comes to human rights issues - in the area of disability, and in many other areas. Unfortunately, people with a disability still face enormous hurdles in finding employment. The number of people employed in the Commonwealth public service - for instance - is a national disgrace - it has halved in the last ten years. If government wants to send a message to employers that it’s serious about the issue of employment of people with disability, and the inclusion of people with disability in society, it has to lead by example.

Our culture needs to change. People with a disability still swim in a sea of discrimination. Discrimination is pervasive, not because people are bad, but because our culture is such that when people encounter a person with disability, they still make all sorts of assumptions about what it is that they cannot do, rather than asking about what they can do. There’s a great quote from Rene Cassin, one of the drafters of the Universal Declaration of Human Rights, who pointed out during the drafting that it would be deceiving the peoples of the world to let them think that a legal provision was all that was required … when in fact an entire social structure had to be transformed.

Those are very appropriate remarks in the context of this debate today.

Important though the United Nations human rights declaration and conventions are, I know that to effectively participate in the community as a person with a disability you need to have the community fully accept you. If we look in our own electorates for examples, I think of Aware Industries, in the electorate of Farrer, which is well known and basically on the radar screen of every small business if they need a job done, whether it be checking the faulty cans that come out of the Mars factory pet food line or preparing pastries, danishes and cakes for local caterers, as I saw them doing recently, or just stepping in for a quick printing job when someone else’s machinery has failed. They fulfil an important role in the local community, and the local community supports them. That is the sort of culture that we need, importantly, to encourage.

Australia is a signatory to several international agreements that oblige it to address disability discrimination in good faith, and this means, among other measures, putting in place relevant laws and regulations and monitoring their effectiveness. As part of the former coalition government’s commitment to assessing all existing legislation on the basis of National Competition Policy principles, in early 2003 the Disability Discrimination Act was reviewed by the Productivity Commission. This review was designed to assess whether any restrictions on competition in the Disability Discrimination Act produce benefits that exceed costs and therefore justify the restrictions. Most of the amendments in this bill arise from recommendations by the Productivity Commission.

One of the principal amendments is the creation of a positive duty to make reasonable adjustments for a person with a disability. The test is whether a failure to make such adjustments has or would have the effect that the person with a disability is treated less favourably than a person without disability in circumstances that are not materially different. The proportionality test is to be replaced with a disadvantage test—that is, whether the requirement or condition that is the subject of a complaint is likely to have the effect of disadvantaging people with disability. The burden of proving that a requirement or condition placed upon a person with a disability is reasonable is to be upon the person imposing the requirement.

Amendments to the unjustifiable hardship defence contain additional criteria for the circumstances to be taken into account. These include the availability of financial and other assistance to the person claiming hardship in making adjustments for a person with a disability and the benefits or detriments accruing to the community as a result. The onus of proof lies with the person claiming unjustifiable hardship. There is provision for the minister to formulate disability standards on any matter covered by the Disability Discrimination Act. These standards will prevail over inconsistent state or territory legislation, but the relevant state or territory ministers must be consulted before standards are made.

The defence of inherent requirements is extended so that it is available to employers in most employment situations. This provides that it is not unlawful to discriminate against a person with a disability if he or she would be unable to perform the inherent requirements of the job, even if reasonable adjustments were made. The defence is not available if the employer denies the person access to opportunities for promotion, transfer and training or to access any other benefits associated with the employment. I note comment in the Australian Financial Review today in an article entitled ‘Disability law reforms likely to outrage’ under Steven Scott’s by-line. The article refers to this bill and discusses some of the changes in brief and how they may affect employers. It makes reference to the Australian Chamber of Commerce and Industry, which has warned that changes could force employers to accommodate the needs of staff whose disabilities they may not know about. It is said that vague definitions of disability may be contained in this legislation when it is finalised which could see people with drug, gambling or pornography addictions protected from discrimination at work. The Chamber of Commerce wants these types of problems explicitly excluded from the definition of disability.

Importantly, this legislation has been referred to a Senate committee and it is very important that we as a parliament stand in support of the right of those with disabilities to participate fully in employment in our society. Given that the vast majority of the amendments that we are discussing do stem from changes made and instigated by the previous government, I feel that a very strong commitment will be there.

The Bills Digest explains that the bill clarifies that discrimination against a person on the basis of any of that person’s associates’ disability or due to a person possessing or being accompanied by an aid or assistant animal, such as a guide dog, interpreter, reader, assistant or carer, is equivalent to discrimination on the basis of that person’s disability. That amendment came in response to the decision of the full Federal Court in Forest v Queensland health. In that case, Mr Forest, who suffers from a mental illness, had a trained dog that accompanied him in public. He was refused entry to the Cairns Base Hospital and, on subsequent occasions, to a community centre with his dog. He lodged a discrimination complaint under the Disability Discrimination Act. The question for the court was whether Mr Forest’s dog was a guide dog, a hearing assistance dog or a trained animal under section 9 of the Disability Discrimination Act.

At first glance the Federal Court determined that Mr Forest did have a disability within the meaning of the act and the complaint of indirect discrimination was made out. It was found that it was unreasonable for the hospital and the community health centre to use their own discretion in this instance. Discrimination under section 9 of the act was also established as Mr Forest’s dog was not ill-behaved and was clearly trained to alleviate the effects of his owner’s disability. The state of Queensland appealed the decision and the full Federal Court reversed the decision on the grounds that for discrimination to be established it was insufficient for the less favourable treatment to be on the grounds that Mr Forest was accompanied by an assistance animal. What this means is that the law as it then stood was not looking after the interests of a person with a disability such as this gentleman’s in that situation and may have been applied to others with disabilities. So the amendment that corrects that decision has been, I understand, widely welcomed and of course we in the coalition support it.

In conclusion, this bill was referred to the Senate Legal and Constitutional Affairs Committee on 4 December 2008 for inquiry and report by 24 February 2009. The coalition supports the intention of the legislation, which is to help reduce discrimination for people with disability in the workplace. There are some aspects of detail upon which the Senate committee will report, and a final decision will be made once that report has been considered.