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Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3926 ..
MR STANHOPE (continuing):
disabilities and people without disabilities share in common. I think as members can gather, from that description of the nature of the complaint that was made by the residents of the house in this instance, the situation in the law relating to this area of the Discrimination Act is really quite complicated.
Following on from the finding of discrimination by the Discrimination Commissioner, Community Care actually appealed the Discrimination Commissioner's decision to the Administrative Appeals Tribunal. The Administrative Appeals Tribunal in this case upheld the service's appeal. An important part of this whole debate that we are having today is that the tribunal upheld the service's appeal on the basis that section 27 of the Discrimination Act has the effect that no conduct of the service in the course of administering a disability program can lawfully amount to an act of discrimination no matter how gross or reprehensible the discrimination is. Section 27 was construed by the Administrative Appeals Tribunal as providing a blanket exemption to service providers for conduct engaged in in the course of the administration of the program. I can go to the decision of the Administrative Appeals Tribunal and can go into it in detail. We are debating a complex issue.
I will read a couple of excerpts from the Administrative Appeals Tribunal decision in the case of Vella. I quote:
We have come to the conclusion that the conduct of the service in introducing the fifth resident could not amount to discrimination under the Discrimination Act and so it is unnecessary to set out the facts ...
These are interesting conclusions the Administrative Appeals Tribunal made, that the conduct of the service in the context of section 27 could not amount to discrimination under the Discrimination Act. They went on to say their conclusions meant the issue of possible maladministration should be pursued elsewhere. They then went on to say:
We turn now to the application of the Discrimination Act to the facts of the case. As explained by this Tribunal in the case of Re Prezzi and Discrimination Commissioner ... the Discrimination Act differs from discrimination legislation in other jurisdictions in not requiring a comparison to be made between the way in which the complainant has been treated and the way in which a person without the relevant attribute is or would be treated in the same circumstances. We do not need to repeat the analysis of the legislation set out in Prezzi; we are content to refer to the reasons in that case and to adopt the view of the operation of the Act taken by the Tribunal in that case.
They go on to say:
It is claimed that the conduct is discriminatory because, in terms of section 8 of the Act, the four residents were being treated unfavourably because of their attribute of impairment or that a condition or requirement was being imposed that would have the effect of disadvantaging them because of their attribute of
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