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Disability Rights: Second Reading. House of Reps

Disability Disability Rights
Friday 14 December, 2012

From House of Representatives Hansard, 26 May 1992

Mr HOWE (Batman-Minister for Health, Housing and Community
Services) (4.03 p.m.) --I move:

That the Bill be now read a
second time.

I am pleased to be able to move the introduction of a major piece of
legislation on a matter which so deeply affects the lives and opportunities of
people with disabilities.

The Disability Discrimination Bill will make
discrimination on the basis of disability unlawful in Australia. The Bill will
assist all people with disabilities to exercise their rights as Australian
citizens and represents a landmark in achieving human rights for all

People with disabilities are entitled to the same
rights and the same opportunities as all other Australian citizens. However, our
society currently falls well short of realising this ideal. People are still
subjected to discrimination purely on the basis of disability--discrimination
which, I am sure all honourable members would agree, is socially damaging,
morally unacceptable and a cost to the whole community.

Research has shown that people with disabilities
still face a number of barriers to the equal enjoyment of human rights in many
areas of life. These include employer and co-worker attitudes, access to
premises and transport and the types of jobs available. During an extensive
series of consultations about ways to address these barriers, people with
disabilities, their families and advocates and service providers called upon the
Government to introduce comprehensive disability discrimination legislation.

This Government has a long term commitment to
achieving a better deal for people with disabilities. The Government began the
process of expanding opportunities for people with disabilities in 1983 with the
comprehensive review of programs and services for people with disabilities--the
handicapped programs review. The outcomes of this review culminated in the
implementation of the Disability Services Act in 1987. The Act requires that
services for people with disabilities be provided in a manner consistent with
their rights as Australian citizens and as human beings. These include the right
to dignity, privacy, choice and the fulfilment of their capacities to contribute
fully in community life.

The Disability Services Act is regarded
internationally as a significant step forward in legislative support for
services assisting people with disabilities. It was welcomed by people with
disabilities, their families and representatives. The principles and objectives
of the Act provided Australia with a set of ideals to strive for and today the
Act has won widespread community understanding and support.

Now, at the end of the United Nations Decade of
Disabled Persons, I think it timely to be able to introduce legislation which
will extend these principles to all walks of life. The principles need to be
taken up within society as a whole so that they reach all Australians with
disabilities, regardless of whether they are receiving support services under
the Disability Services Act. The Disability Discrimination Bill will be
instrumental in continuing social change and will have far-reaching and
long-awaited effects for people with disabilities.

I do not believe there is any better example of
social justice than this legislation--legislation which provides the framework
to eliminate the discrimination which prevents fair access for people with
disabilities to jobs, education, sport and entertainment and which provides an
effective means of overcoming perhaps the most significant barrier that people
with disabilities face in this country--the attitudinal barrier.

The Bill recognises that discrimination against
people with disabilities is a matter of international concern. It is another
significant step in fulfilling Australia's international obligations under a
number of United Nations instruments. These include the International Labour
Organisation Convention concerning discrimination in respect of employment and
occupation; the International Covenant on Civil and Political Rights; the
International Covenant on Economic, Social and Cultural Rights; and a number of
related declarations.

However, none of this would have been possible
without the commitment and courage of people who believed in the legislation.
While I do not like to single out any particular individuals in the process, Mr
Graeme Innes, Chairperson of the Disability Advisory Council of Australia and Ms
Chris Ronalds and the representatives of the Disability Anti-Discrimination
Legislation Committee bear special mention. Today, not 12 months after the
establishment of this Committee, we are in the fortunate position of bringing
this significant indicator of the Government's continuing commitment to social
justice before the Parliament.

The overall response from industry groups and State
governments has also been very positive. The Government has received extensive
comment from interested parties in relation to the proposal to introduce
legislation. The Bill will be left to lie in the House over the winter recess so
that interested parties can make any further comments. This timing builds on the
widespread discussions already undertaken on the legislation.

Legislative reform is vital if the very real, but
unfair, barriers that prevent people with disabilities from playing effective
and valued roles are to be broken down. The legislation would constitute the
legal basis for the protection and promotion of the rights of people with
disabilities and would subsequently help to overcome social and economic
disadvantage by assisting people with disabilities to participate as equals in
Australian society.

I turn now to a more detailed description of the
Bill. The legislation would be grievance-based and fundamentally similar to the
Commonwealth's existing anti-discrimination legislation: the Racial
Discrimination Act 1975 and the Sex Discrimination Act 1984. The legislation
would promote gradual structural reforms and attitudinal change--changes which
would enhance the opportunities available to people with disabilities throughout
community life.

The objects of the Bill are to eliminate, as far as
possible, discrimination against persons on the ground of disability in the
areas of work, accommodation, education, clubs, sport, the provision of goods,
facilities, services and land, existing laws and the administration of
Commonwealth laws and programs; to ensure, as far as practicable, that people
with disabilities have the same rights to equality before the law as their
fellow citizens; and to promote recognition and acceptance within the community
of the principle that people with disabilities have the same fundamental rights
as their fellow citizens. The legislation would therefore perform an important
educative role and would further social awareness and change.

The legislation would cover both direct and
indirect discrimination on the ground of disability and would also cover
discrimination on the basis of association with people with disabilities. The
legislation would apply throughout Australia and, in this regard, relies on all
available and appropriate heads of Commonwealth constitutional power. In the
preparation of this Bill, the Government has paid attention to existing State
disability discrimination legislation and the role played by State disability
discrimination machinery in eliminating discrimination.

Disability anti-discrimination legislation
currently exists in differing forms in New South Wales, Victoria, South
Australia, Western Australia, Queensland and the Australian Capital Territory.
Such legislation is proposed for Tasmania and the Northern Territory. However,
there are considerable variations in the scope and coverage of the various Acts.
National, comprehensive legislation is required in order to ensure that people
with disabilities are not disadvantaged by their place of residence. Moreover,
State legislation alone does not provide comprehensive coverage for people with
disabilities, due to the limited ability of the States to regulate
discriminatory practices against Commonwealth authorities.

The Bill includes a definition of disability that
draws upon existing definitions in both Commonwealth and State legislation and
includes the concepts of physical, sensory, intellectual and psychiatric
impairment. The definition of disability includes the total or partial loss of a
bodily function; the presence in the body of organisms causing, or capable of
causing, disease, including HIV AIDS; total or partial loss of a part of the
body; and malfunction or disfigurement of part of a person's body. It includes a
disability which presently exists, existed in the past but has now ceased to
exist, or may exist in the future, and a disability which is imputed or presumed
to a person.

I will now describe the areas in which the Bill
proscribes discrimination on the ground of disability. The legislation would
make unlawful discrimination against applicants for jobs and employees generally
and would include access to employment; the practices of employment agencies;
the use of discriminatory questions in employment application forms; access to
opportunities for promotion, transfer or training, or to any other benefits
connected with employment; and dismissal of an employee or subjecting an
employee to any detriment. The legislation would also cover the employment of
agents and contract workers; membership as a partner in a firm; membership of a
trade union; and any action of a licensing or a qualifying body with respect to
the conferring, renewal or extension of any licence or qualification.

With regard to education, it would be unlawful for
an educational authority to discriminate in the admission and treatment of
students and in the provision of all levels of education, training and
vocational or educational assistance, including financial assistance. It would
be unlawful to discriminate against people with a disability in relation to the
provision of access to premises, including vehicles to which the general public
has access.

The legislation would also make unlawful
discrimination in the provision of goods, facilities and services, covering the
supply, and term of supply or provision, of goods and facilities and the
provision of services, including services relating to banking, insurance and the
provision of grants, loans, credit or finance; services relating to
entertainment, recreation or refreshment; services relating to transport, travel
or telecommunications; services of any profession or trade; selling or leasing
an interest in land; and services provided by a government, government authority
or local government body. Discrimination relating to the provision of
accommodation, including access to any benefits associated with accommodation,
would also be unlawful.

The legislation would mean that it would be
unlawful for a club, the committee or management of a club, or a committee
member, to discriminate on the ground of disability, including membership and
access to the benefits associated with membership. The legislation would also
apply to sporting and recreational activities.

The legislation would cover administrative
practices adopted by people charged with the administration of Commonwealth
enactments, where the enactment does not itself authorise the discrimination.
The legislation would make it unlawful to require another person to provide
information on which unlawful discrimination might be based, unless the
information is reasonably required for a lawful purpose.

The Bill provides for two general exemptions:
unjustifiable hardship and the inherent requirements of the job. These
exemptions will be very significant in terms of the overall effects of this
legislation on service providers, businesses and employers.

Under the Bill, employers, providers of
accommodation, education, goods and services, clubs and sporting groups would be
able to argue that action necessary to accommodate the needs of people with
disabilities would impose unjustifiable hardship. In determining unjustifiable
hardship, all of the relevant circumstances of a particular case would be taken
into account. These circumstances would include the nature of the benefit or
detriment likely to accrue or be suffered by any persons concerned, the effect
of the impairment of the persons concerned, and the financial circumstances and
the estimated amount of expenditure required to be made by the person claiming
unjustifiable hardship. Any judgment made would allow for the financial
viability of an employer having to meet additional costs even where, on the face
of it, the costs would appear to be fairly small.

The legislation would not require that people with
disabilities be given jobs which they cannot do. Subsequently there is an
exemption which does not prohibit discrimination if the person is not able to
perform adequately the inherent requirements of the job, even where reasonable
accommodation has been made.

The Bill contains a provision which requires the
Human Rights and Equal Opportunity Commission to take into account the provision
of any action plan lodged by a service provider or educational authority when
determining whether unjustifiable hardship exists in relation to a particular
complaint. These plans are entirely voluntary, but the Bill indicates that they
shall include certain provisions if they are drawn up. These include policies
and programs to achieve the objects of the Bill; the communication of those
policies and programs to persons within the body preparing the plan; the setting
of goals or targets against which the success of the plan may be measured; the
means of evaluating the policies and programs developed; the revision of the
plan; and the appointment of persons charged with the implementation of the
plans. The plans would be lodged with the Human Rights and Equal Opportunity
Commission and would be publicly available. The Commission will not be required
to agree to a plan lodged with it, but the plan will have to be considered by
the Commission when determining whether unjustifiable hardship exists in the
circumstance that a complaint is made against the particular agency.

The Bill makes it clear that once a complainant has
been able to show that he has been subjected to unlawful discrimination, a
respondent claiming unjustifiable hardship would bear an evidentiary burden.
Similarly, an employer will have to determine what the inherent requirements of
a particular job might be. However, the overall legal burden of proof, in
proving discrimination unlawful, will remain with the complainant.

Special exemptions include those special measures
taken to assist people with disabilities to meet their particular needs;
affirmative action measures which are designed to enable and encourage equality
of opportunity; and insurance and superannuation where there is actuarial or
statistical data to support a particular action. Acts done under statutory
authority, in direct compliance with any other Acts, regulations, rules or
by-laws, and acts done in accordance with determinations of the Human Rights and
Equal Opportunity Commission would be exempt from the legislation for a period
of three years.

Special exemptions would also apply to infectious
diseases; to participation in sporting activities for people with particular
disabilities; the provision of pensions under specific Acts; and to the
recruitment of certain defence force personnel. Further, an exemption of three
years would apply to telecommunications to allow for the impact of the
legislation on Telecom and the proposed second carrier to be properly assessed.

Provision is also made for applications to the
Human Rights and Equal Opportunity Commission for short term, renewable
exemptions from all or parts of the legislation. The Commission would have the
power to make interim determinations to preserve the status quo or the rights of
the parties to a complaint.

Administration of the legislation would be vested
in the Human Rights and Equal Opportunity Commission. The functions of the
Commission would include holding inquiries into and making determinations on
complaints; hearing applications for exemption from the Act; undertaking
research and educational programs; and examination of existing and proposed
legislation to ensure its consistency with the provisions of this legislation.

The Bill would establish a Disability
Discrimination Commissioner who is required to investigate and conciliate
complaints of discrimination on the ground of disability. The Commissioner would
be empowered to dismiss a complaint if found to be unsubstantiated, or attempt
to reach a settlement of the complaint. The Commissioner would have the power to
summons witnesses to give evidence or produce documents and to call compulsory
conferences. The aim of the legislation would be to promote resolution through
conciliation wherever possible.

However, where the Commissioner was unable to
resolve a complaint by conciliation, he or she would have the power to refer the
matter to the Human Rights and Equal Opportunity Commission. The Commission
would then consider the complaint and make a determination on that complaint
based on the requirements of the Act. The determination of the Commission would
not of itself be binding. Should a party wish to enforce the determination of
the Commission an application would be made to the Federal Court. That court
would then hear the matter again and make a legally binding judgment taking into
account the same criteria taken into account by the Commission.

The Bill also contains provisions to allow for the
making of disability standards in the future. Equivalent standards are provided
for in both the American and Canadian legislation of this sort. These standards
would not be made without extensive consultations by the Commonwealth with all
affected parties. The Bill contains provisions requiring that account be taken
of comments by State and Territory governments before such standards are
enacted. A national public education and awareness campaign will accompany the
introduction of this legislation in order to raise the level of understanding of
people with disabilities about their rights.

The direct financial implications of this
legislation relate to the establishment of the Office of Disability
Discrimination Commissioner, the public education and awareness campaign, some
minor additional public service staffing and additional resources for support
and representative agencies. This is expected to amount to approximately $5.5m
in the first full year. Costs to Commonwealth agencies affected by the Bill are
not easy to predict but on the basis of previous State experience are not
expected to be significant and would occur over a lengthy period of time.

As part of this Government's commitment to social
justice for all Australian citizens, we have already passed legislation to
provide protection for women and ethnic or racial groups who experience
discrimination. It is now time to address the discrimination that people with
disabilities have historically suffered. The introduction of this Bill is
further evidence of the unwavering commitment of this Government to social
justice for people with disabilities.

Our vision is a fairer Australia where people with
disabilities are regarded as equals, with the same rights as all other citizens,
with recourse to systems that redress any infringements of their rights; where
people with disabilities can participate in the life of the community in which
they live, to the degree that they wish; where people with disabilities can gain
and hold meaningful employment that provides wages and career opportunities that
reflect performance; where control by people with disabilities over their own
bodies, lives and future is assumed and ensured; where difference is accepted,
and where public instrumentalities, communities and individuals act to ensure
that society accommodates such difference. Only then will we be able to say that
justice has been achieved.

It is therefore essential that there is a
legislative basis to enable people with disabilities to participate in the
economic, social and political spheres of the community and subsequently to
determine the direction of their own lives. This legislation would be a vital
element in removing the attitudinal, physical, structural and institutional
barriers that people with disabilities currently face. The realisation of this
Government's social justice goals for people with disabilities will benefit not
only people with disabilities, but society as a whole.

In the gallery there are members of the Disability
Advisory Council of Australia and people who represent people with disabilities.
This legislation is a major achievement for them, and it is a significant day
for the Parliament when we are able to produce further legislation in terms of
anti-discrimination that ensures we add to people's rights as citizens. I
commend the Bill to the House. I present the explanatory memorandum for this

Debate (on motion by Mr Jull) adjourned.