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Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3927 ..
MR STANHOPE (continuing):
impairment ... For example, if Mr Vella had been refused accommodation as the fifth resident in the Lyall Street house because his level of impairment was greater than the standard of care provided in the Lyall Street house, he would have had a complaint that he was being treated unfavourably because of his impairment.
The ratio of the particular Administrative Appeals Tribunal case was then provided by the Administrative Appeals Tribunal in paragraph 12 of the decision, and it goes on to say in paragraph 13:
Like provisions in the discrimination laws in other jurisdictions have generally been regarded as meaning that special measures for the benefit of persons suffering some inherent disadvantage are not to be taken to discriminate against those who do not suffer from that disadvantage. Section 27 clearly has that effect. But that is not the limit of its effect. What it means is that 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 residential care program provided by the Service is clearly a program designed to give disabled persons access to services and facilities, including accommodation and care, to meet their special needs. The section is not confined to blocking claims of discrimination by those outside the scope of the program; the opening words of section 27 block a claim by any person of discrimination arising from an act done in the course of administering the program.
That is very complex and quite confusing, I admit. It has very serious implications for disabled people or people in certain classes. The broad impact of that decision of the Administrative Appeals Tribunal is that that provision or similar provisions appear in all Commonwealth and state anti-discrimination legislation, not just legislation dealing with disability discrimination. It is commonly referred to as the "affirmative action" provision. Its purpose was to prevent people from outside the relevant class complaining about services targeted to those within the relevant class and in need of it. For example, it is intended to prevent men from complaining about women's specific health services. It is intended to prevent non-Aboriginals from complaining about their exclusion from programs for Aboriginal people. That was the intent of section 27. It was intended to help classes of people with special needs.
I think the Attorney's intention in introducing this Bill is that the decision in Vella puts the provision to a whole new use. It is a vehicle to deny people with a special needs class the same rights as people outside the class. A group of non-disabled single persons residing in an ACT government house under the single shared accommodation scheme are tenants with rights to decide who may or who may not reside in their home; to be consulted; to have access to grievance mechanisms, et cetera; whereas single people with disabilities living in a government house are denied this status specifically by reason of their disadvantage. It is in recognition of that change to the scheme, or to its
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