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Legislative Assembly for the ACT: 2004 Week 08 Hansard (Thursday, 5 August 2004) . . Page.. 3562 ..

amendment to it, which the Greens supported. However, the amendment was narrowly defeated, and the bill went forward unamended. The bill today will correct the problems created by that 1999 amendment. The 1999 amendment inserted the words:

(2) However, subsection (1) does not make it lawful to do an act for a purpose mentioned in that subsection if the act discriminates against a member of the relevant class in a way that is irrelevant to the achievement of that purpose.

This still left open the possibility for services to argue that they could discriminate against people who the act is supposed to protect by virtue of the service’s action being part of work towards a program to support people in that group. The government’s amendment today should remove that problem by using the “reasonable” test. On this point the amendment says:

(2) However, subsection (1) does not make it lawful to do an act for a purpose mentioned in that subsection if the act discriminates against a member of the relevant class in a way that is not reasonable for the achievement of that purpose.

That does seem to be an improvement. The earlier amendment left it as “irrelevant to the achievement of that purpose”. The group of actions that could be described as irrelevant to the purpose is much smaller than the group of actions that could be described as not reasonable for the achievement of that purpose. It is a step forward, but I am still a little bit concerned that it might potentially leave open an argument that something is necessary due to resource constraints.

I talked to ADACAS about this, who commented:

If the change will achieve the desired result as set out in the Explanatory Memorandum, then ADACAS would have no problems with the amendment …

We have some concerns with how the words “reasonable” and “proportionate” could be interpreted. In particular, there are some fundamental assumptions which dog the provision of disability services, “world views” which influence what we/society think is OK for people with disability, but which we would never accept ourselves or our family. How might these influence what is deemed reasonable and proportionate?

Is it “reasonable” and is the response “proportionate” that people in Disability Programs group houses have little if any real choice, and certainly not the final say, on where they will live, with whom they will live and who comes into their home, eg to provide them with support?

The case which sparked this whole row was about Disability Programs deciding to make the staff bedroom a fifth bedroom …

There are other current examples, when Disability Programs took the handles off the taps, put bolts on the outside of the bedroom doors to lock people inside or “chemically restrain” people—

as it came out in the Gallop inquiry—

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