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Legislative Assembly for the ACT: 1999 Week 12 Hansard (16 November) . . Page.. 3533 ..

MR HUMPHRIES (continuing):

disabilities complained of discrimination when the service provider moved another person into the house. They argued that this action amounted to discriminatory conduct against them as it would result in a loss of amenity and an overall lower standard of care causing them to by treated unfavourably because of their impairment.

Members should note that under the Discrimination Act 1991 a person discriminates against another person if the person treats or proposes to treat the other person unfavourably because the other person has a particular attribute as referred to under the Act, such as their sex, race, sexuality, marital status or impairment.

The AAT concluded that this action was not discriminatory because of the wording of section 27. The AAT said:

" nothing done in the course of a program designed to meet the special needs of disadvantaged persons can be the subject of a complaint of discrimination under the Act by any person, including a member of the class of disadvantaged persons that the program is intended to benefit.

The Supreme court agreed with this interpretation in the Richardson case.

This interpretation of section 27 has raised concern that the section could authorise undesirable discrimination against the recipients of special measures - particularly people with disabilities who are the major users of special measures programs. For example, fears have been expressed that a young person with a disability could not complain about being denied employment under a special youth employment program even if the reason for denying him or her access was because of racial or sex discrimination. Such outcomes would be clearly undesirable and detrimental to the interests of disadvantaged groups in our community and deny recipients of such special measures the right to allege discrimination and to take advantage of the dispute resolution mechanisms or the remedies provided by the Discrimination Act that are available to other citizens.

However, let me say that it is highly unlikely that section 27 goes as far as this. A misunderstanding appears to have arisen from the broad wording used by the AAT in the Vella case. The better view of section 27, is that for any act to be lawful it must be done for a purpose of ensuring that members of a relevant class of persons have equal opportunities with other persons, or to afford members of a relevant class of persons access to facilities, services or opportunities to meet their special needs. Any acts of discrimination on the grounds of race or sex, for example, would be unlawful as these would not be for a purpose of providing the special measure.

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