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Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3928 ..

MR STANHOPE (continuing):

interpretation, that the Attorney has acted. As members would know, that is not the reason I prepared drafting instructions on this matter some months ago.

I first became involved in the issue last March. But I issued instructions a couple of months later. I have consulted quite broadly with the disability community. As a result, I introduced legislation into this place to amend section 27. Mr Speaker, we are faced with the Discrimination Amendment Bill 2 (1999) introduced by the Attorney. The relevant part of the Attorney's Bill, "Measures intended to achieve equality", says:

This is the Attorney's amendment. Subsection (2) states:

The Attorney goes some way to meeting what I regard as the unintended consequences of the interpretation of section 27, as applied by the Administrative Appeals Tribunal, namely, in effect, a service provider can discriminate against a person in a certain class, if the service provider's excuse - basically the relevance - is that he was intending to implement an affirmative action arrangement in relation to other people within the same class. The difficulty is then that the person discriminated against within that class, to achieve that purpose, has no recourse. So we have a situation whereby the interpretation of section 27 as applied by the Administrative Appeals Tribunal now legislates, encodes, the possibility of discrimination by the Government or a service provider against a person in a particular class, as long as the discrimination is inflicted for the sake of some other person within that class.

The Attorney's Bill, which we are debating and which I will seek to amend, at least seeks to soften that discriminatory possibility by suggesting that the discrimination must be relevant. We are introducing the notion: "Yes, you can discriminate against somebody within that class of individuals, so long as the discrimination is relevant". I am not quite sure in practice what a "relevant discrimination" means. It does soften the impact of Vella and the Administrative Appeals Tribunal's interpretation of the application of section 20. I concede that. But it only goes half way. It basically signals to service providers, "If you can make your discrimination relevant to the particular needs of an individual within that class, then that is okay".

But it does not create a level playing field. It does not put disabled people, for instance, or Aboriginal people, or women in situations in which they as a class are the subject of an affirmative action program in the same boat. It does not put everybody in that class in the same boat. For instance, we can still relevantly discriminate against a disabled person in a group house if in this context a greater good is achieved, namely, "We will discriminate against those disabled people in favour of this disabled person, even though we could not do that if they were not disabled; we can do it because they are disabled". We have a different class of citizen here. We are saying to the service

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