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Thursday, 12 February 2009
Page: 1122

Ms HALL (10:20 AM) —I would like to start where the previous speaker finished in congratulating the Parliamentary Secretary for Disability Services for the fine work that he has done in the area of disability services. He has taken his job very seriously and he has taken the cause of people with disability and disability discrimination to a new level. People with disability are less powerful than other people within our community and I have had the same feedback from the disability sector; which I am quite close to, as is the member for Port Adelaide. The feedback I have had is that people are very pleased with the way the parliamentary secretary has embraced the issues that surround people with disability.

The Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 implements key recommendations of the Productivity Commission in its 2004 review of the act. I find it very disturbing that here we are in 2009 enacting recommendations of the Productivity Commission report of 2004. It makes it particularly clear that there is a general duty to make reasonable adjustment for people with disability and extend the defence of unjustifiable hardship, modernise key components such as indirect discrimination and improve the readability of the act. It provides a comprehensive legislative scheme to deal with assistance animals and for the recognition of the DDA of state and territory legislation that accredits those animals and clarifies the operation of the act in relation to carers, associates and disability aids. It implements the 2003 recommendations of the Australian Law Reform Commission and the National Health and Medical Research Council to make it clear that discrimination on the basis of a person’s genetic predisposition to a disability is unlawful. It also removes the dominant purpose test from the act in relation to age discrimination—and I will spend a little time talking about that later in my contribution to this debate.

This act makes explicit the general duty to make reasonable adjustments, excluding adjustments that would cause unjustifiable hardship; extends the defence of unjustifiable hardship to all unlawful discrimination in the act, except harassment and victimisation; and extends the defence of inherent requirement to all employment situations except where it would be meaningless or inappropriate. It clarifies that disability includes a genetic predisposition to a disability, and that includes behaviour that is a symptom or a manifestation of a disability. It amends the definition of indirect discrimination to remove the proportional test, places the onus for showing that a requirement is reasonable on a respondent, and includes incidents of proposed indirect discrimination.

It ensures that the ‘special measures’ and Migration Act 1958 exemptions from the act do not exempt general actions that are incidental to those measures. It allows disability standards to be formulated in relation to any area in which it is unlawful to discriminate under the act. It clarifies that discrimination on the basis of disability of any of a person’s associates, and discrimination on the basis of having a carer, assistant, assistance animal or disability aid is discrimination on the basis of disability. And it improves the recognition of assistance animals, clarifies the obligations of potential discriminators and people with assistance animals, and extends the public health exemption in the act to the diseases of assistance animals. On age discrimination, it removes the dominant purpose clause so that, if an act is done for two or more reasons and one of those reasons is the person’s age, the age of the person will no longer need to be the dominant or substantial reason for that act to be found to be discriminatory.

So that is a general overview of my position in relation to this legislation. I will touch a little later on the Human Rights and Equal Opportunity Commission Act and talk a little more about that. But I would like to concentrate now on the dominant reason that exemption has previously been in the act.

On 10 May 2006, I spoke on legislation in relation to this, and on that occasion I emphasised the importance of not discriminating against somebody on the grounds of age. Age discrimination does exist within our community at all levels, and I think it is unacceptable that we should allow that discrimination to continue. This change to the legislation will address age discrimination. Discrimination of any kind does not benefit our nation. It creates divisions, negative feelings and actions, and it marginalises people. There is no basis for discrimination of any form, and I see this legislation as moving in that direction.

Older people have to face negative stereotypes when they are looking for work. Age discrimination also impacts on younger people. How many times have members of this House had constituents visit them in their office to ask for assistance to find employment, or to lodge a complaint that they have applied for jobs, time and time again, and have found they are either ‘too old’ or ‘too young’. The excuse used might be, ‘Your qualification is too recent’ or it might be, ‘Your qualification was too long ago’.

Mr Deputy Speaker Scott, it might interest you to know that in New South Wales—and I am sorry I have not got more recent figures than these—in 1999-2000 there were more complaints relating to age discrimination made to the Human Rights and Equal Opportunity Commission than related to any other form of discrimination. There were more than 200 people making complaints. Again, I do apologise for the age of this information that I am presenting to the House this morning. The government needs to focus, and the government is focusing, on addressing this issue, and with this change it will encourage employers to view older workers and younger workers in a different light.

The Shortland electorate is one of the oldest electorates in Australia, and that is why I tend to skip to the issues surrounding older workers. But it is wrong to forget that younger people find the same discrimination as do older workers. In our country at the moment, we are encouraging older workers to stay in the workforce, and if we have legislation that is designed to prevent discrimination but treats them differently from other areas and says that discrimination on the grounds of age must be a dominant reason, as opposed to every other area, it is unacceptable, and we are really sending mixed messages to the communities that we represent. It is no more acceptable to discriminate against a person because they are young or old than it is to discriminate against a person on grounds of sexuality, on racial grounds, or, of course, on grounds of disability.

I must point out that the removal of the dominant reason test was a bipartisan recommendation of the House of Representatives Standing Committee on Legal and Constitutional Affairs in 2007. That report was Older people and the law. This enacts the recommendation of the committee that it is entirely unacceptable to give older Australians a weaker protection simply because of their age. The new test is more consistent with the test used in Commonwealth and state antidiscrimination legislation, and the impact of the removal of the dominant reason test is likely to be minimal. As I have already stated, it relates to the same discrimination laws in relation to sex, disability and race, so I embrace that recommendation wholeheartedly.

I noted that in the Australian Financial Review yesterday, 11 February, there was a news item that talked about this disability law reform package. It stated that employers do not feel it is a very good piece of legislation and that the government will face a backlash from employers. I would like to say to all those employers out there that the changes in this legislation are minimal. The changes relate to fairness and equity and to the fact that discrimination against disability of any kind is unacceptable. I would like to say to employers and businesses that if they embrace this legislation they will find that their businesses continue to thrive and will probably even be strengthened. There was particular reference made to genetic predisposition to disabilities, the expanding of the scope of the age discrimination and removing the requirement that age must be the sole or dominant factor in relation to discrimination. In the article the Australian Chamber of Commerce and Industry warned that the changes could force employers to accommodate the needs of staff who have disabilities.

Prior to entering parliament I worked for many years in the area of disability. One of my roles was to assist people with disabilities to find and access employment. I would have to say that those employers who were prepared to give people a chance found that, rather than this having an adverse effect on their business, they had very loyal employees who went out of their way to perform at the highest level and who were not only capable of doing the job that they were employed to do but also willing to do that and a bit more.

I think stereotypes and discrimination of any kind make our society a poorer place, and over the 13-plus years that I worked in this area, I found that, when the employer was prepared to give a person with a disability an opportunity—and there was a wide range of disabilities ranging from blindness, deafness, muscular and skeletal injuries to quadriplegia—the worker actually made an outstanding contribution.

I say to the Australian Chamber of Commerce and Industry: do not approach this legislation from a negative perspective; embrace it; look at the opportunities it creates for you, rather than the potential problems. I think that the comments that I have made in relation to people with disabilities flow through also to older workers. From my perspective, all the workers who have been given an opportunity have excelled, and Westpac is one employer that has embraced employing older people and has found it has benefited their business incredibly. So I would encourage all those employers out there who are listening today to embrace this legislation rather than look for problems that could be caused by it.

The bill also clarifies the existing obligation on employers, service providers and others to make reasonable adjustments to remove discriminatory barriers against people with disabilities. Over the years I have witnessed many of these discriminatory barriers. The member for Port Adelaide mentioned jobs where a person is required to be able to walk up stairs or be able to lift 20 kilos, but, if a job is actually computer based or it is a job that requires somebody to work in reception and it is something that somebody who is a paraplegic or even a quadriplegic could quite successfully undertake, there should be no barrier. These artificial barriers that are put in place are really robbing that employer of the opportunity to have the best possible employee that they could have. It is interesting to note that this was always in the act but comments by the High Court in the Purvis case cast doubt on it. The Productivity Commission recommends that existing obligations to make reasonable adjustments be made explicit.

I know from my previous work that reasonable adjustments can be as simple as setting up a work station in a way that allows a person with, say, a back injury to work at a computer. By providing a person with the proper type of ergonomic seating and by setting up their work station with the proper document holders, an employer can find that these minor adjustments make it very easy for a person with disability to work effectively within the workplace.

I note that the opposition accepted the recommendation relating to reasonable adjustments when it was in government, and I feel certain that it will embrace it in this legislation. The obligation to make reasonable adjustment is subject to the defence that an adjustment is not required if it would cause unjustifiable hardship. That is another very reasonable part of this legislation. An employer makes the adjustment, provided that that adjustment is not going to cause unjustifiable hardship to them, so it is a win-win situation.

The bill maintains the balance between the rights of people with disability and the legitimate concerns of employers. This legislation is not asking employers to do what is unreasonable but rather balancing the needs of the person with disability with those of their employer. I endorse the legislation before the House and highlight the need for the change in the act in relation to dominant reason. Discrimination of any sort makes us a much poorer nation.