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Monday, 20 September 1999
Page: 8351

Senator CHRIS EVANS (1:01 PM) —I also rise to speak on the Human Rights Legislation Amendment Bill (No. 1) 1999 . I for one do not dismiss as easily as Senator Harris seems to the very real concerns of people with disabilities about their basic human needs to be addressed and their right to seek recourse when they are discriminated against. I think that is at the heart of this bill. This bill is one of a series of pieces of legislation the government is seeking to introduce in relation to human rights. While the bill includes many necessary reforms which the Labor opposition supports, it also has at its core what I see as a fundamental attack on the basic human rights of many members of our community, principally the disadvantaged and people with disabilities. The focus of my contribution today will be on the impact of the legislation for people with disabilities. The awarding of the costs rule, the application of court fees and the commencement of the restructuring of HREOC will erect massive financial and administrative barriers in the paths of people with disabilities seeking recourse for discrimination. While the bill does provide for enforceable decisions, at the same time it diminishes access to, and affordability of, justice for people with disabilities. The real impact of this bill will be to reduce their capacity to exercise their rights.

Since the coalition government's election in 1996, justice related services have consistently been downgraded. The Family Court, legal aid, tribunal and family service programs have all suffered. The full extent of these staggering cutbacks can be measured in dollar terms: the Howard government has cut an astonishing total of $400 million from services that directly assist Australians accessing justice. In addition, people with disabilities have faced a two-pronged attack. Since 1996, in addition to the general justice service cutbacks that affect them, people with disabilities have faced a constant barrage of discriminatory human rights policies and have seen their support services grossly underfunded. The Human Rights Legislation Amendment Bill (No. 1) 1999 represents another example of the coalition government diminishing the rights and opportunities available to people with disabilities.

The bill seeks to reform the functions, structure and complaint handling mechanisms of the Human Rights and Equal Opportunity Commission. It also responds to the High Court decision in the 1995 Brandy case that found that HREOC, as a non-judicial body, did not have the constitutional power to finally determine disputes. While the Labor opposition welcomes moves to address the issues that emerge from the Brandy case, many other sections of the bill will severely limit the ability of people with disabilities who are facing acts of discrimination within our community to access justice. The requirement to pay up-front court fees and the risk of an adverse costs order will not enhance, promote or protect the human rights of people with disabilities in Australia. On the contrary, their rights will be severely reduced and the real fears associated with mounting legal challenges against big business and government departments will be compounded. The inability of people with disabilities to afford the costs associated with lodging discrimination complaints and the possibility they may be the subject of an adverse costs order will mean that they may often choose to put up with the discrimination rather than risk everything they own. As a result, the Disability Discrimination Act will become an inadequate and unaffordable source of protection for them.

Australia has a proud human rights record, and successive Labor governments have sought to strengthen and reaffirm that commitment. The Whitlam Labor government introduced the Sexual Discrimination Act 1974 and the Racial Discrimination Act 1975. The Hawke Labor government introduced the Human Rights and Equal Opportunity Commission Act 1986, and the Keating government introduced the Disability Discrimination Act 1992. The coalition, on the other hand, has consistently sought to turn back progress when it comes to discrimination and access issues for people with disabilities. The recent prescription of various state acts from the Disability Discrimination Act by the federal Attorney-General's office without so much as token consultation with community groups or individuals clearly highlights this government's attitudes towards people with disabilities. This government is more intent on rewarding big business with gold medals than legislating to ensure that access and transport requirements of people with disabilities are not simply left to the whim or the social conscience of the provider.

Advocacy programs for people with disabilities are also under threat from the coalition government, under the guise of the National Disability Advocacy Program review. Despite the final recommendations of the review only recently being made public, advocacy groups are already expressing concern. It appears the intention of the review is to reduce the number of advocacy organisations available to assist people and to divert the remaining services away from providing systemic advocacy—the very kind of discrimination cases that receive legal aid funding, as the outcome can affect the wider population. In addition, the coalition government recently included several new outcomes in the program funding contracts of numerous community organisations assisting people with disabilities. These organisations are now required to seek out their own revenue, to reduce their financial dependence on the department and to alert the department to any contentious issues that may generate negative media interest prior to the issues being made public. Clearly, these outcomes will only divert resources away from where they are most needed and reduce the level of advocacy services available for people with disabilities.

Let me turn to the costs rule. The main criticism of this piece of legislation from a disability perspective centres on the potential impact of the Federal Court's costs rule and court fees. I have received numerous submissions and letters from community groups representing people with disabilities, and from members of the public with disabilities, concerning the potential impact this legislation will have on them. The introduction of court fees and a costs rule effectively silences those members of our community who are on a low income and are seeking to pursue a discrimination claim. Given that the majority of people with disabilities are on low or fixed incomes, an act to impose financial barriers on the prosecution of discrimination claims will disproportionately affect them.

A single person over 21 on a disability support pension receives just $366.50 and a member of a couple receives $305.90. This is barely enough to live on, let alone pay Federal Court costs if you have a discrimination case you wish to proceed with. Despite the fact that the awarding of costs has never previously been a feature of the handling of discrimination cases, under this legislation, even if an applicant has an arguable case and loses, they may still have to pay thousands of dollars in costs to the other party.

The Disability Discrimination Act is different from other race and gender discrimination laws, or, indeed, any other law, in that it actually allows for discrimination if the respondent can show that the elimination of the discrimination would cause them unjustifiable hardship, generally in a financial sense. When lodging discrimination complaints, people with disabilities are in a position whereby they not only have to prove that discrimination has occurred under the DDA but must also be able to rebut the respondent's claim of causing unjustifiable hardship. For example, under the proposed legislation, a complainant might successfully prove that discrimination in law has occurred yet still have the costs of both parties awarded against him or her. This would occur if the respondent were able to convince the court that adhering to the DDA would cause them to suffer unjustifiable hardship.

The uniqueness of the unjustifiable hardship clause creates far greater uncertainty in disability discrimination law than in any other area of law. The ability of a complainant to accurately assess the viability of their complaint succeeding is practically non-existent when the unjustifiable hardship component is factored into the equation. Very few people would risk the possibility of having costs awarded against them when the outcome of their case is so uncertain.

Systemic, wholesale discrimination is exactly the kind of discrimination people with disabilities are facing every day of their lives. Under this legislation, however, it will rarely be challenged simply because people with disabilities will be too frightened to take the associated risks. Despite assurances from both the Attorney-General and the Prime Minister that people who cannot afford to pay will not be required to pay their own or the other side's costs if a case were lost, people with disabilities, their advocacy groups and the opposition remain unconvinced. The Federal Court is a particularly costly and formal forum and has the potential to intimidate many people with disabilities to the point of exclusion. The existence of up-front court fees, coupled with the potential for an adverse costs order, will prove an impossible barrier for people with disabilities accessing the courts and tribunals.

Under current guidelines, applicants have to pay only a nominal fee when lodging a complaint. If this legislation is passed, many will have to pay full Federal Court fees, averaging $3,200, if the matter ultimately goes to hearing and a minimum of $505 if the matter is resolved through conciliation. For a single day hearing, the lodgement fees, service fees, setting down fees, witness fees and hearing fees can total as much as $3,000. Many people, including the majority of people with disabilities, quite simply do not have that kind of money to spend.

Only people on very low incomes are eligible for legal aid, which in some states is pegged at $12,000 for discrimination cases. Bearing in mind that most Federal Court actions are defended at a cost well above $12,000, even those people with disabilities accessing legal aid may still be left exposed to cover debilitating costs. As I understand it, a number of jurisdictions will not even consider legal aid funding for discrimination matters.

Australia must retain an adequately funded, independent and accessible national human rights body. HREOC has a fundamental role in protecting the rights of all Australians—in particular, people with disabilities. HREOC was established to stem the rise of discrimination across our society. By slashing the funding available to it, the coalition has seriously undermined its function. HREOC's own annual report contains a series of criticisms in relation to the government's discrimination reform agenda.

While HREOC welcomes the proposed strengthening of its educational function, commission representatives expressed grave concerns about some aspects of this legislation which, in their view, adversely impact upon the independence, integrity and effectiveness of the body. Former president of HREOC Sir Ronald Wilson issued a press release stating:

At a time of great need for restating the values of inclusion, non-discrimination and tolerance in Australia, these cuts will mean the Commission will be unable to work at its current level.

Interestingly enough, Sir Ronald's position as president was abolished just six weeks after he made those comments. The Howard government has reduced funding for the commission from the $20.5 million provided in the 1996-97 financial year to $17.9 million in the 1997-98 financial year and $12.3 million in the 1998-99 financial year.

As a direct result of the funding cuts, the commission's work force has been slashed by one-third, from 180 staff to just 120. Any organisation suffering a reduction in funding to the tune of nearly 50 per cent, coupled with a one-third culling of its staff, would note a reduction in the number of cases it is in a position to deal with. This is precisely what is happening at HREOC, as the bulk of the commission's ongoing inquiry work has been abandoned in order for it to meet its statutory obligations to conciliate complaints. This direct, unashamed attack on the funding, resources and, therefore, ability of an institution established to monitor, protect and educate all Australians in antidiscrimination issues is, in my view, beyond contempt.

As I previously mentioned, this piece of legislation is just one part of a series of reforms the government plans for human rights in Australia. The Human Rights Legislation Amendment Bill (No. 2) 1999 outlines further reforms for HREOC. That piece of legislation proposes to abolish the five specific commissioners, including the Disability Discrimination Commissioner, and to replace them with three deputy presidents with responsibility for several jurisdictions. By abolishing the position of a dedicated federal Disability Discrimination Commissioner, the coalition government has reaffirmed its ignorance and indifference on discrimination issues relating to people with disabilities.

People with disabilities suffer forms of discrimination unlike—and unknown to—the wider community. Even the Acting Disability Discrimination Commissioner, Chris Sidoti, criticised the government's reform agenda and confirmed that people with disabilities will be sorely affected by the abolition of that office when he said:

The loss of a specialist position devoted solely to disability discrimination issues comes only five years after the enactment of the Disability Discrimination Act 1992 and the establishment of the position. Much has been accomplished during those years but equality for Australians with a disability remains at best, unfinished. The case for maintaining a specialist position remains compelling.

People with disabilities also vigorously argue that discrimination cases involving them are not only complex but also particularly widespread. A dedicated commissioner focusing on disability discrimination issues is absolutely imperative given the volume of discrimination people with disabilities must endure on a regular basis. For example, gender and race discrimination cases are generally more straightforward than disability discrimination cases. Gender discrimination cases involving a woman applies to all women, whereas a discrimination case involving a person with a disability might arrive at differing outcomes depending on the actual disability involved—mental disability, paraplegia, hearing impairment, et cetera—as well as the physical environment. These cases involve complicated and often multiple issues, and the interests of people with disabilities would be best served by having a dedicated specialist commissioner.

The late Elizabeth Hastings was Australia's first and only dedicated Disability Discrimination Commissioner. All of her life Elizabeth was concerned about the issues surrounding disability. She knew that the rights of people with disabilities flowed from justice and fundamental human rights. Elizabeth's last written article was published in the Financial Review. In it she wrote:

The protection of our human rights, our experience of our rights being protected because we are as human and valued as all people, goes to the heart of our belonging as human beings.

The Howard government's decision to combine the roles of the commissioners has sent one message to people with disabilities: that the advancement and protection of their rights are not a priority for this government.

In conclusion, in a modern society it is inappropriate that a person enforcing his or her fundamental human rights could be subject to the risks of litigation, particularly where the risks between the parties are so disproportionate. The Human Rights Legislation Amendment Bill (No. 1) 1999 does not afford equitable and accessible justice to people with disabilities. The bill does not protect the basic rights of people with disabilities. If effectively diminishes those rights and protects the offenders. As foreshadowed by my colleague Senator Bolkus, the Labor opposition will be moving amendments to address the inadequacies that this legislation contains for people with disabilities. I hope that the Senate ensures that the bill is amended to protect and enhance the rights of all people with disabilities.