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Thursday, 12 February 2009
Page: 1118


Mr BUTLER (10:03 AM) —As my South Australian colleague just told the House, the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 is an important piece of legislation. Most of us in this House have been fortunate enough to live through the last several decades which have seen a great social movement against discrimination in Australia on a range of grounds—gender, race, religion and, latterly, disabilities. It is my view that disability discrimination has not been addressed sufficiently by our governments and our community. There is still a long way to go before disabled people feel they can fully participate in Australian society, and this legislation does something more to reach that objective.

There are obviously equity reasons for what we are doing today and for what we have done in a range of other areas of discrimination. There are also very clear economic reasons to facilitate the full participation by people with a disability in the broader community. I remember very early in my career when the South Australian government removed the age discrimination provisions of the equal opportunities act, which exempted age discrimination where someone was over 65. Before that change you could terminate the employment of someone who was over 65 on the basis of their age. The removal of that provision effectively allowed people to work beyond 65 years of age, free from the threat of discrimination. The early 1990s in South Australia was economically a pretty depressed time, and I remember that there was a lot of concern that this would cause unemployment amongst lower-age groups because people would not be leaving the workforce at 65. Now we want people over 65 to continue in the workforce. We are trying to encourage them to do that. The same applies very much to the area of disability.

I was really pleased to see on the television a couple of years ago ads which I think were initiated by the former government, to their credit, encouraging employers to employ people with a disability. With the labour shortage that Australia has been experiencing for some years, there are very clear economic reasons for doing that—economic reasons that dovetail very neatly with the equity reasons for doing this.

Discrimination in any area, whether it is disabilities or other areas, is sometimes not an easy concept to come to grips with. In the area of direct discrimination it is perhaps a little easier but, where indirect discrimination occurs, it really can be quite difficult to identify and remedy. I remember 20 years or so ago Mary Gordon writing in a judgement against the Queensland Bar Association that there are two types of discrimination: not only treating equals unequally but, also just as importantly, treating people in an unequal position equally. Where you treat people who are in an unequal position equally that can also be discrimination. A number of provisions in this legislation deal with that second situation of indirect discrimination, which is often much harder to identify and remedy.

This legislation has had a very long gestation indeed. Most of its provisions put into effect recommendations from the 2004 Productivity Commission report that was received by the previous government. It is important to say that that was by no means a bleeding heart report. This was a report initiated by the former government with terms of reference that were very hard-headed and economically focused as part of a broader push by the former government to analyse all legislation against the background of competition.

The terms of reference included things like the need for the Productivity Commission to take account of any parts of the legislation—the Disability Discrimination Act—which restrict competition and to retain them only if the benefits to the community as a whole outweigh the costs. The Productivity Commission was to have regard to, among other things, the competitiveness of Australian business—including small business—and the efficient allocation of resources. Against these terms of reference and other pretty hard-headed terms of reference, the Productivity Commission came up with a report that was balanced while recommending a range of sensible but meaningful advances in the protection of people with a disability against discrimination. This government is acting—and not before time—to implement those recommendations and a range of other things.

Before I deal with the disability related provisions of this bill I will quickly deal with just one of the provisions, which removes the dominant purpose test from the Age Discrimination Act 2004. This test, which I think is familiar to most people, was inserted in 2003 against quite significant opposition—certainly from the Labor Party, then in opposition, but also in the Senate committee report that considered the question. A number of the then government Senate members expressed significant concern about inserting the dominant purpose test at the time as well. We know that the dominant purpose test had, for example, been removed from the Racial Discrimination Act as far back as 1990. It was not long before the Legal and Constitutional Affairs Committee of this House recommended that the dominant purpose test be removed in its unanimous report of 2007: Older people and the law. Again, and not before time, this bill does just that.

Some of the responses to this legislation have been, frankly, hysterical and completely unhelpful. I am particularly thinking of an article in the Financial Review yesterday, which quoted a number of comments from the ACCI. For example, the workplace relations and legal affairs manager of ACCI, who I suspect will have a bit of a rest from media work now, said:

Older workers who are made redundant and young graduates who have job offers revoked could use the proposed laws—

namely, the change I have just talked about—

to argue they were targeted because of their age…

Frankly, that is placing a spin on the legislation that is completely out of proportion and completely unhelpful. This is a change to the Age Discrimination Act that brings it perhaps in line with a number of other pieces of Commonwealth discrimination legislation.

In terms of disabilities, the bill introduces a comprehensive suite of measures—some aimed at modernising our laws. Again, the one or two hysterical responses from the community in the context of more general support for these provisions have not been helpful. The ACCI report in the Financial Review yesterday said, for example, that the new discrimination laws for disability might see people with pornography addictions protected from discrimination at work. Frankly, either Mr Mammone has not read this legislation or is simply intending to stir up some hysteria. I have read this a number of times and I am completely at a loss to see how this legislation is going to protect pornography addicts from any discrimination at work.

This legislation does little more than introduce a number of recommendations from the Productivity Commission. There are four changes to the scope of the act, namely the definitions of disability. The first change is to explicitly include a genetic predisposition to disability as part of the suite of disabilities protected by the legislation. The current definition in the legislation already includes future disabilities so arguably this question is already covered by the act, but some in the community are concerned about whether or not the current wording of the legislation before this bill is passed—if it is passed—does cover genetic predisposition. In a bit of a belt and braces way this bill seeks to clarify that and in doing so it implements a recommendation of the Productivity Commission and also of the Law Reform Commission and the National Health and Medical Research Council from 2003 in this area.

Secondly, the bill amends the definitions of disability to expressly include within the scope of the act’s protections behaviour that results from a disability, not just the disability per se. If someone is discriminated against because of behaviour that results from that disability they will now also have the protection of the legislation. Again, this was arguably always covered by the act but the Productivity Commission recommended that we clarify this in the legislation. To be fair, the High Court decision in Purvis in 2003 did create some uncertainty about whether the protections extended to behaviour.

Thirdly, we propose to provide some greater certainty around protections for people using assistant animals. I must say that, before I read this legislation and the material surrounding it, I did not realise that this area had gone significantly beyond guide dogs for the blind. But it is clear from reading the material and from the circumstances of the Forest case in the Federal Court that gave rise to a lot of this discussion that assistant animals are now used to assist people with a range of disabilities, not just blindness. The fellow in the Forest case, for example, had assistant dogs to help him to deal with a mental illness, and there is a range of other ways in which animals are now being prescribed to assist people with different disabilities.

The challenge here of course is one of accreditation and one of standards, so that the community can be sure that if they are required to allow animals into public places—onto public transport or into shops—that the animals have been properly trained, not only in ways of dealing with the person’s disability but also in hygiene standards and other behaviour. Unfortunately only a couple of jurisdictions around Australia including, I am happy to say, my own in South Australia have accreditation systems for assistant animals. So the legislation has had to include a third point in the definition of assistant animal as covered by this legislation—which is not only an animal accredited to be such, because some states and territories do not have that system, but also an animal who has been trained to alleviate disability and trained to meet proper standards of hygiene and behaviour.

Lastly, in terms of the scope of the legislation, the bill removes the proportionality test, which is a change to the definition of indirect discrimination in section 6. That section targets conditions that are imposed on disabled persons with which a substantially higher proportion of people without the disability could comply. An obvious example of this might be a condition for an employment purpose or something else that people be able to run up a flight of stairs. A substantial proportion of the community could satisfy that. Someone with paraplegia could not, so that condition would be caught by section 6. The Productivity Commission recommended the abolition of the proportionality test, and we are doing that in this bill for the reasons that it is a test that serves no real, useful purpose, that it is an additional burden on complainants and that to remove it aligns the definitions of indirect discrimination with those contained in the Age Discrimination Act and the Sex Discrimination Act.

Perhaps the most controversial element of the bill is the insertion of a positive duty on those with an obligation under the act to make reasonable adjustments to, as far as possible, equalise the position of the disabled person. This is consistent with the relevant UN convention that was ratified last year and was also a recommendation of the Productivity Commission. If you read the second reading speech from the original bill that created the DDA, that was clearly the intention of the framers of the original bill but, frankly, has become a little unclear in light of the High Court decision in Purvis. Of course, the obligation in the bill to make reasonable adjustments is limited by the existing legislative concept of unjustifiable hardship, which is contained in section 11. What this bill does is to ensure that the unjustifiable hardship concept is now available to all discrimination covered by the act, except for harassment and victimisation. The bill also clarifies, though, that for someone to assert the defence of unjustifiable hardship they also take on the onus to prove it.

There are many other important aspects to this bill which have been addressed by a significant number of speakers on both sides of the House. I have had a long association with the disability services sector over the last decade and a half. I have very high rates of receipt of the disability support pension in my electorate of Port Adelaide. I think, on last reading, it was the highest of any electorate in the country. This is a very important piece of legislation for the Commonwealth to enact. It is very pleasing to be able to speak on it. In closing with my feedback from the disability services sector, although this is legislation proposed by the Attorney-General I might, on indulgence, say what a sterling job the Parliamentary Secretary for Disability Services has been doing in this area. His advocacy not only of rights such as those that we have enshrined in this bill but of the broader objective of making disability discrimination a new frontier of human rights has been something that has really energised the disability services sector and I commend him for that, as I commend the bill to the House.