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Wednesday, 11 February 2009
Page: 994


Mr DREYFUS (6:52 PM) —I rise today to speak in favour of the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008. The amendments contained in this bill reflected Labor’s longstanding commitment to human rights. The enjoyment of full citizenship by all Australians requires the existence of a legislative framework to act as a shield against prejudice, against bigotry and against discrimination. The Disability Discrimination Act, which is one of the acts that are being amended by this legislation, was introduced by the Keating government in 1992 and it is part of this framework of antidiscrimination legislation built by successive Labor governments over the years in all spheres of government. This framework can be said to protect the rights of each and every Australian and help to ensure full participation of every Australian in civic and economic life.

The Disability Discrimination Act 1992 built on the Whitlam government’s Race Discrimination Act 1975, which was legislation of historic significance on the road to reconciliation with Australia’s Indigenous people. It of course was the enactment in Australia of rights that Australia is obliged to bring into our domestic law through an international covenant. I could mention also that the Disability Discrimination Act built on the Hawke government’s Sex Discrimination Act of 1998, which reflected the Labor commitment to the elimination of all forms of discrimination against women. It is worth mentioning also the establishment of the Human Rights and Equal Opportunity Commission in 1986 under the Hawke government.

The Rudd government is continuing Labor’s concern for the human rights of all Australians and of all people in Australia, having announced on 10 December last year, which was the 60th anniversary of the Universal Declaration of Human Rights, the National Human Rights Consultation, chaired by Father Frank Brennan and now under way. Members will recall that in the first sitting week of last year, Father Brennan was here in the parliament to announce the way in which the Human Rights Consultation is going to be conducted over the first half of this year.

The bill before us today will enact much needed reforms to the federal antidiscrimination framework. It clarifies the existing laws and ensures that the legislative shield protecting the rights of Australians keeps pace with fast-moving digital technology and developments in genetics. It also adopts many of the recommendations of the 2004 Productivity Commission’s Review of the Disability Discrimination Act 1992. This bill reflects the government’s commitment to protecting the human rights of all Australians. The bill is also a statement of the trust the Rudd government has in our peak human rights body, the Australian Human Rights Commission, an organisation which I regret to say was somewhat sidelined during what is properly thought of as a long winter for human rights over the 12 years of the coalition government. More generally, these amendments are part of a renewal of interest in and engagement with issues relating to the human rights of all people in Australia that has occurred since November 2007. It is not acceptable for the Commonwealth to pay only grudging attention to human rights. It is not acceptable for the Commonwealth to ignore the fact that Australia, as a signatory to a whole range of international covenants, has obligations not only to bring into our domestic law those human rights obligations but to improve our domestic law where we have already at some earlier time made law in this area.

The amendments will make it clear that discrimination on the basis of genetic predisposition is unlawful. Commencing in February 2001, the Australian Law Reform Commission undertook a joint inquiry with the Australian Health Ethics Committee into the protection of human genetic information. This bill adopts the recommendation in their report, which was entitled Essentially yours, to the effect that the definition of disability should include a genetic predisposition to disability. The discrimination with which this amendment is dealing is a phenomenon that has advanced with technology. However, as early as 1998 the United States National Human Genome Research Institute identified 550 people who had suffered discrimination in employment or insurance on the basis of unsubstantiated genetic possibilities. Similarly a study by Dr Kristine Barlow-Stewart, now the director of the Centre for Genetics Education at the Royal North Shore Hospital in Sydney, found instances of discrimination against sufferers of haemochromatosis, inherited breast and bowel cancer and Alzheimer’s disease.

When disability was defined purely in terms of impairment or, as section 4(1)(e) of the Disability Discrimination Act provides, ‘malfunction, malformation or disfigurement of a part of the person’s body’, there was confusion as to whether a healthy person with no malformation could make use of the legislation. However, the very injustice of this form of discrimination is that any such malformation may never eventuate. In her 1999 study Dr Barlow-Stewart identified at least three cases of completely healthy individuals with a genetic potential for late onset neurological disorders who were demoted or sacked when their employer became aware of their genetic condition. After the passage of these amendments, this form of discrimination will be unlawful.

These amendments also acknowledge the difficulty of compliance for some organisations and small businesses. Where conformity with human rights legislation is unduly onerous or inappropriate, the defence of unjustifiable hardship will be extended to some organisations, ensuring that rights, tempered by reasonableness, continue to be recognised throughout Australia.

By way of example, as some other speakers in this debate have mentioned, the High Court, in a case known as Purvis v New South Wales, looked at the situation of a student at Grafton High School. The court held that the school was only able to use the defence of unjustifiable hardship in relation to admitting students to the school and not in relation to the way in which a student must be treated once admitted and enrolled at the school. Once the school had admitted a student with particular needs, the school could not require that child to attend a school with more appropriate facilities if care became too difficult, even as the child’s condition changed. For these reasons, the amendments have made some changes to the defence of unjustifiable hardship.

The amendments will also make changes to the criteria for indirect discrimination. The Equal Opportunity Commission in my state of Victoria submitted that the previous criteria were, to use their words, ‘unwieldy and difficult’, causing confusion for both complainants and respondents. The former proportionality test imposed an unnecessary evidentiary burden on complainants. Instead, under the changes that are brought in by these amendments, the onus would fall on the organisation to show that the conditions they impose are reasonable.

The amendments also seek to overcome the decision of the Federal Court in Forest v Queensland Health. That case concerned an incident at Cairns Base Hospital where a sufferer from a psychiatric disorder who claimed his dog was an assistance animal was denied entry on the basis that the animal was not a guide or hearing dog or a dog approved by hospital management. Assistance animals are an essential part of securing the independence and mobility of people with a vision impairment. In my state of Victoria, 69 per cent of all people who are blind or vision impaired are unemployed. For this reason the government is committed to ensuring that being mobile with an assistance animal is not in any way a further handicap to people with a disability, and for this reason the amendments clarify that discrimination on the basis of having a carer, an assistance animal or a disability aid is discrimination on the basis of a disability.

The amendments also make some changes to the age discrimination framework. Until now, where age discrimination was a factor but not the dominant factor in a decision, older Australians have been unable to make a claim of discrimination. The Human Rights and Equal Opportunity Commission always opposed this. It is at odds with the way in which tests for discrimination are set out in the Sex Discrimination Act and in the Disability Discrimination Act, which do not have a dominant reason test. Former High Court justice Sir Ronald Wilson, as the HREOC commissioner, noted the difficulty in the Racial Discrimination Act of sifting a dominant reason out of several competing reasons, which led to the eventual removal of that dominant reason test from the Racial Discrimination Act in 1990.

This particular amendment is the implementation of a recommendation made by the House of Representatives Standing Committee on Legal and Constitutional Affairs in the last parliament. That is the committee which I now chair but which in the last parliament was chaired by the present deputy chair of the committee, the Hon. Peter Slipper. In a lengthy report entitled Older persons and the law, there were a number of recommendations. One of those recommendations, in the clearest possible terms, was for the removal from age discrimination law of the dominant reason criterion. One can readily see why it is that that recommendation was made. It is one which simply brings the age discrimination law in this country into line with other antidiscrimination statutes. It is hard to see why there could be any opposition to that particular change, and it is certainly a change that is supported not only, as I say, by that report of the legal and constitutional affairs committee in the last parliament but by the Law Council of Australia, the Australian Human Rights Commission and many other interested people.

To explain it a little bit further, prejudice of any sort often hides behind a more amiable face of excuses such as ‘lack of experience’ or ‘wrong attitude’, but the fact remains that these excuses are just that. An example has been given of an Australian company that was accused of citing a lack of ‘behavioural competencies’ to disguise the discrimination in their selection criteria. It is because of that problem of reasons often being stated which are very far from the actual reason that it is important that it be possible to judge all forms of discrimination without reference to a dominant reason kind of test.

The amendments also change the legal name of the Human Rights and Equal Opportunity Commission to bring it into line with the new corporate identity which was launched last year. The new name, the Australian Human Rights Commission, clarifies the national stature of the commission and distinguishes it from similar bodies in the states and territories. The removal of the phrase ‘equal opportunity’ from the name emphasises that the inherent dignity of each human being includes equal opportunity and that our freedom from persecution and discrimination is not severable from our human rights.

A number of speakers in this debate have commented on a very unfortunate article that appeared in the Australian Financial Review this morning, which quotes comments made by an official of the Australian Chamber of Commerce and Industry. It would appear that those comments are something of a late attack, if you like, on a bill which contains amendments that have, in the case of almost all of them, been a number of years in the making, being recommendations made by the Productivity Commission in its review of the Disability Discrimination Act as long ago as 2004. The recommendation of the legal and constitutional affairs committee in the last parliament that I mentioned a short time ago is also now a report of some considerable age.

The attack is one which, as I say, is unfortunate because these amendments have been a long time in the making, there was very wide consultation during the preparation of them, they have been endorsed by almost all interested bodies and people who have made submissions and the bulk of them were accepted by the opposition when they were in government. Why it is that we should be asked to endure the kind of unreasoned and really quite intemperate attack that has been advanced here by the Australian Chamber of Commerce and Industry is something of a mystery. In fact, it would not be going too far to say that it is uninformed attack.

It is uninformed in a similar way to what I would describe as the bizarre rant that we heard from the member for Tangney in the debate on this bill just a few minutes ago. It was bizarre to hear a member of this House using phrases like ‘ridiculous political correctness’ and ‘a lawyer’s picnic of regulation’ in his rant against imagined political correctness. Perhaps, to give him some credit, it was mildly entertaining to hear him going through his familiar list of phrases like ‘height challenged’, ‘vertically challenged’ or ‘follicly challenged’—I think that was the phrase that he used—leading to his attack, which was to the effect that this bill contained amendments and changes to discrimination law which involved, as he saw it, ‘a refusal to speak forthrightly’.

There is no refusal to speak forthrightly on the government benches and nor, in putting forward this legislation, could the Rudd government be accused of anything remotely like a refusal to speak forthrightly. This bill speaks forthrightly about the need to correct discrimination against Australians who suffer from discrimination because of various forms of disability. It is an attempt to ensure that all Australians will be able to, as much as they can, live the most productive lives in our society. As do all reforms of this nature, dealing with the elimination of discrimination suffered by Australian citizens, it is a bill that will lead to an enriching of our society. Far from being in any sense a refusal to speak forthrightly, it is in fact an engagement with and a square-facing of the problems suffered by those amongst us—those of our citizens and those who live with us even if they are not citizens—as a result of one or other disability.

It is very important that it be understood that all people in Australia have the right to lead as full a life as they can, a life which is free of discrimination by other members of their society against them because of some disability. I want to quote something that I heard Justice Kirby say extrajudicially—in other words, not in court—in a speech that I saw Justice Kirby give at Melbourne High School in 2000 to, as I recall, the political interest group of Melbourne High School, a group that my two sons were then members of. In speaking to the Melbourne High School students, Justice Kirby said this about respect for human rights in our country:

… the modern notion of democracy, at least in a country such as Australia, is far more complex than simple majoritarian rule. It is a sophisticated form of government which involves the general ability of the will of the majority to prevail but in a legal and social context in which the rights of vulnerable minorities are respected and defended - particularly where such minorities are unpopular.

That is the kind of thinking that underlies these amendments to parts of Australia’s discrimination laws.

There are vulnerable minorities in our society. There are vulnerable minorities who suffer from discrimination by other parts of our society. The people who are part of those vulnerable minorities have rights, and legislation like this ensures that those rights are respected and it defends those rights. I commend the bill to the House.