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Legislative Assembly for the ACT: 1999 Week 13 Hansard (7 December) . . Page.. 3935 ..

MR HUMPHRIES (continuing):

Now, it is appropriate to preserve, in a sense, that kind of discrimination within the Act but not to preserve discrimination which is not relevant to that program. So, the disabled person comes to the Government, wants access to the group house. Under our amendment, if he were to be told, "Sorry, you're Jewish, you can't get into this group house", then the Discrimination Act under our proposals would cut in and say, "Sorry, you can't discriminate on that basis. You must admit this person". But if the person has motor neurone disease and the people in the group house have cerebral palsy and it is designed for their needs rather than for some other class of person, then it is okay to discriminate in those circumstances.

That is the essential object of the Government's amendment. It is about appropriate discrimination; discrimination relevant to the kind of service being provided. Mr Stanhope's amendment goes one step further. It provides something quite different. It provides for something which was not available, as I understand it, before the Hill and Vella decision.

Mr Stanhope has represented in this debate that he wants to effectively restore the law to what it was before the Administrative Appeals Tribunal came along in Hill and Vella as subsequently confirmed in the Supreme Court and other places. He wants to put the situation back to the way it was. I do not think that is what his amendment does. His amendment, in effect, creates a new right to appeal the level of service in terms of quantity or quality that a person may receive. Under Mr Stanhope's amendment a person would be able to ratchet up the quality, or perhaps the quantity of service they maintain they should receive, on the basis of the claim of being treated less favourably either in that program or in a similar program somewhere else, perhaps even in the kind of service a non-disabled person might receive elsewhere in the community. You might say, "The Government runs a program over here which admits people to group houses under these conditions, without any restrictions on the type of person being admitted. I demand that I have the same rights in this group house designed for people with disabilities because unlimited, free access is provided in another government service. I deserve no less treatment in this service also run by the Government but designed for people with disabilities".

Mr Speaker, what it becomes under Mr Stanhope's proposal, is a way to transfer decisions about the allocation of resources away from providers of those programs, away from governments, into the courts. And the courts will be saying, "No, you clearly aren't enjoying as high a standard of living or as high a quality of service as people are receiving somewhere else. You are being treated therefore less favourably than people somewhere else. And you are entitled to an upgrade in the quality of the program. We order that this program should be improved in quality or in quantity to meet your requirements".

Some would say that is a legitimate role for a discrimination Act. Some legislation in the United States requires governments and private providers to change the nature of the service on the basis of not enough quality. Not many argue that they should have access to the service or that they are entitled to exclude others who do not qualify for that service, but that they should actually have a better quality service. A simple objection to that proposition is in resources.

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