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Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3934 ..

MS TUCKER (continuing):

clearly do. Through their work, they, more than many, are able to identify what is working and what is not in the system.

On resourcing, there is the unjustifiable hardship provision in section 47, which provides a defence for service providers along with businesses and other organisations who quite clearly cannot provide or afford what has been described, slightly derisory, as a Rolls-Royce service to every disabled person. I do not think it is fair comment to use that analogy. Many people with a disability are accepting of what is not satisfactory. They accept that there are resource issues. That is obvious. But Mr Humphries' amendment goes too far. I believe Mr Moore thinks Mr Stanhope is going too far. I would say Mr Humphries is going too far in accommodating these resource constraints at the expense of rights.

MR HUMPHRIES (Treasurer, Attorney-General and Minister for Justice and Community Safety) (10.03), in reply: Mr Speaker, to close this debate: I said this is a very complicated matter. I appreciate that members have taken the time to look at these issues and talk to some of the parties involved. I will try to explain as simply as I can and, hopefully, not over-simplify the argument. I think it is appropriate to pass the government amendment to the Act and not to pass the amendment that Mr Stanhope is going to move to my Bill. We all accept in this debate that the decision of the Administrative Appeals Tribunal in Hill and Vella was unfortunate and needs to be addressed in some way by the legislators of the Territory.

The Hill and Vella decision essentially said a person is unable to make a complaint in respect of a program designed to meet the needs of disadvantaged people; that is, in effect, that the Discrimination Act does not have application within these sorts of special programs set up in the Territory for people with special needs. We are talking particularly here about people with disability needs addressed by a particular program. When the Government and Opposition heard of the effect of this decision - the words used by the President of the Administrative Appeals Tribunal in the context of that decision - they were alarmed. Separately, we decided to deal with the problem.

The problem with the decision was that it effectively said that if I were disabled and went on a program for disabled people within the Government, and sought to be admitted to the program, and was told, "I'm sorry, you are Jewish. You cannot have access to programs. We do not like Jewish people", then there would be no right of redress because the Administrative Appeals Tribunal had said the Discrimination Act has no application in the context of special service programs. We all felt that was quite wrong. It had to be addressed.

But we also acknowledge that some discrimination, in a sense, is a necessary part of providing these programs. For example, a group house established for people with the particular condition of cerebral palsy would not be potentially suitable accommodation for a person with motor neurone disease. And we could discriminate against a person with motor neurone disease on account of their disability, because the service was not designed for people of that particular kind.

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