It is important to look at the process by which this Bill has been brought before the Parliament. I remind the Committee that this issue has been current since the middle of 1991. As a result of the deliberations of the Senate Standing Committee, Mr Duggan from the Human Rights Branch of the Attorney-General's Department wrote to the Committee and outlined a process of consultation that the Government has undertaken on this very important legislation.
In Mr Duggan's letter, which is attached as an appendix to the Standing Committee report, it is interesting to note that the so-called consultation process essentially was very one sided. Certainly, the Government has prepared a number of discussion papers at various stages since the middle of 1991, and consultations were undertaken with the various peak employer, union and business bodies as a result of those early papers.
Consultation is also a two-way process. It is a matter of taking account of the views and opinions that are expressed by various groups and various organisations. I am certainly well aware that during 1991, as part of the Government's process after distributing the papers, comments were made to various departments and committees to take up those points. But none of the issues raised by a number of the concerned groups subsequently resulted in any amendments to the legislation. I believe the Government had a fixed agenda in relation to the legislation, a predetermined position, to which it has held to this day.
Last Friday, at the Senate Standing Committee hearings, a number of concerned groups presented additional information. As part of the discussion on the amendments, I will certainly be drawing on some of the evidence that was presented to the Standing Committee last Friday. The Government has used its numbers on the Committee last Friday and not agreed to any of the proposals or suggestions put forward by groups, by the Democrats, or flagged by the coalition for any further or subsequent amendments. Therefore, we will be required to consider them in the Committee of the Whole again this morning. So the process goes on whilst the Government says it would look at the matter.
I remind the Committee that in the second reading speech by the Minister for Health, Housing and Community Services (Mr Howe) earlier this year in the House of Representatives, he invited submissions on the legislation after he had in fact tabled the second reading speech. In the Standing Committee on Friday, we ascertained that some 50 submissions were subsequently made to the Minister, his Department, the Attorney-General's Department or the Human Rights and Equal Opportunity Commission. Not one of those submissions resulted in subsequent amendment even though the Minister himself invited submissions back in March.
So we have seen a very fixed agenda by the Government. The Government has stuck to its own rigid rules on what it has intended to do since the middle of 1991 with regard to this legislation. I would argue that, to a large degree, that makes a mockery of the so-called consultation process. The distributing of bits of paper by the Government to 1,200 groups or whatever is very much a one-sided view if the resulting views and opinions that are expressed, particularly from serious consideration by particular groups, result in no movement whatsoever by the Government on important points or principles that have been addressed. It is a pity that the Government has seen no room to accommodate any of the views that have been expressed by particular groups on this matter.
A couple of my colleagues would probably also want to address general views. So, before we proceed to the first amendment that I have distributed, I will give them the opportunity to add general comments. I will then be happy to go through each of the amendments that we have circulated.
The CHAIRMAN --The question is that the Bill be agreed to.
Senator TAMBLING (Northern Territory-Deputy Leader of the National Party of Australia) (10.26 a.m.) --If my colleagues do not wish to take the opportunity to address general comments, or the Minister for Justice (Senator Tate) does not wish to respond, I will be very happy to proceed with the amendments. I move:
1.Clause 4, page 4, definition of `disability', paragraphs (c) and (d), lines 30 to 33, omit the paragraphs, substitute the following paragraph:
"(c) the presence in the body of a notifiable infectious disease, including HIV and AIDS".
The first amendment circulated in my name relates to clause 4 and deals with the definition of `disability'. The amendment seeks to delete from the definition of `disability' paragraphs (c) and (d) which read:
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness;
Our amendment addresses the concern that was expressed, particularly, by the Australian Medical Association that the existing definition is scientifically untenable. Dr Flecknoe-Brown told the Senate Standing Committee on Community Affairs last week that--and I quote:
. . . the wording as it exists now is quite meaningless because we all carry organisms that, in the right circumstances, are capable of causing disease. I certainly draw the attention of the Minister to the comments of the various witnesses from the AMA last Friday. The AMA did suggest the basis of the amendment that we have put forward, that is, that the definition of `disability' should read:
(c) the presence in the body of a notifiable infectious disease, including HIV and AIDS.
As I mentioned in my speech during the second reading debate on this Bill,
this definition, which is fundamental to the entire operation of the proposals
of the Bill, goes to the core of discrimination against people with disabilities.
I again draw the attention of the Minister, in very specific terms, to last
Friday's Hansard and the evidence that was given by the AMA.
Senator TATE (Tasmania-Minister for Justice) (10.28 a.m.) --The question of the definition of `disability' is, admittedly, a difficult one. It is one where it is incumbent upon the Government to take into account advice from medical authorities, but one also has to keep in mind the social purpose of the Disability Discrimination Bill.
It is important at the outset to remind the Committee that the operation of the Bill depends not only on demonstration of the existence of a disability, however it is defined, but also, in order to have a grievance or a complaint successfully recognised or acknowledged by the Human Rights and Equal Opportunity Commission, if it comes to that process, one has to have the disability demonstrated as a cause for discrimination. It is always important to keep in mind that nothing flows from simply having a disability. What one has to demonstrate is that the disability was the trigger for discriminatory conduct on the part of other Australians.
Having said that, looking at the definition offered in the Opposition amendment, once again I think the social purpose of the legislation has to be kept in mind; that is, as a civilised community, we need to have a nationwide approach to the question of disability discrimination so that Australians, in whatever State or Territory jurisdiction they find themselves, are confident that they will enjoy the same rights as other Australians who have the same disability.
The Opposition's amendment would mean that we would lose uniform national coverage. Notifiable diseases, as the honourable senator would know, are defined under State legislation. Despite recommendations by the National Health and Medical Research Council for uniformity, these vary from State to State. For example, hepatitis C is not notifiable in the Northern Territory, South Australia and Western Australia; haemophilias influenza type B is not notifiable in the Northern Territory and Western Australia; and rabies is not notifiable in New South Wales. So I think that is an important consideration for honourable senators in this Committee when deciding whether to adopt this particular amendment.
It is also important to say that it is quite clearly possible for a person
to harbour the organism of an infectious disease and yet not exhibit the disease.
I am advised that this commonly occurs with tuberculosis. It is quite clear
that a person might be discriminated against as a carrier of infection or as
a harbourer--if that is the word--of organisms, but these people may not be
able to claim redress because they do not exhibit the disease. This Opposition
amendment is couched in terms of the presence of an infectious disease, not
merely in terms of the presence of the organism which might be a precursor to,
or, obviously, a necessary precondition for, the manifesting of the disease.
So for various reasons, but mainly because I do not think the whole social purpose
has been adequately addressed in the Opposition's amendment, the Government
will not be accepting this particular amendment.
Senator LEES (South Australia-Deputy Leader of the Australian Democrats) (10.31 a.m.) --I think some of the problem has arisen because people are taking this definition in the Disability Discrimination Bill 1992, lifting it out of the Bill and then trying to look at it in isolation. The amendment that we have really destroys much of the intent of this piece of legislation. The definition, as it exists within the Bill, is appropriate. For that reason, the Democrats will not be supporting this amendment.
We acknowledge many of the concerns, particularly those that were expressed on Friday in the hearings of the Standing Committee on Community Affairs. We are not saying we have all the solutions and it is a very simple problem--far from it. But we believe that leaving this definition as it already stands in the Bill for this specific purpose is the closest to excellence that we now have. Therefore, we cannot support this amendment.
Question put:
That the amendment (Senator Tambling's) be agreed to.
The Committee divided. [10.35 a.m.]
(The Chairman--Senator M.A. Colston)
Ayes . . . . . . . . . . . 27
Noes . . . . . . . . . . . 33
----
Majority . . . . . . . . . 6
----
AYES
Alston, R. K. R. Archer, B. R.
Baume, M. E. Bishop, B. K.
Bjelke-Petersen, F. I. Boswell, R. L. D.
Calvert, P. H. Campbell, I. G.
Crane, W. Crichton-Browne, N. A.
Durack, P. D. Ferguson, A. B.
Harradine, B. Herron, J.
Kemp, R. Macdonald, I.
Newman, J. M. O'Chee, W. G.
Panizza, J. H. Parer, W. R.
Patterson, K. C. L. Reid, M. E.*
Short, J. R. Tambling, G. E. J.
Tierney, J. Vanstone, A. E.
Watson, J. O. W.
NOES
Aulich, T. G. Beahan, M. E.
Bell, R. J. Bolkus, N.
Bourne, V. W. Burns, B. R
Button, J. N. Chamarette, C.
Coates, J. Collins, R. L.
Colston, M. A. Cooney, B.
Coulter, J. R. Crowley, R. A.
Devereux, J. R. Foreman, D. J.*
Kernot, C. Lees, M. H.
Loosley, S. Maguire, G. R.
McKiernan, J. P. McMullan, R. F.
Powell, J. F. Ray, R. F.
Reynolds, M. Schacht, C. C.
Sibraa, K. W. Sowada, K. N.
Spindler, S. E. Tate, M. C.
Walsh, P. A. West, S.
Zakharov, A. O.
PAIRS
Walters, M. S. Sherry, N.
Lewis, A. W. R. Giles, P. J.
Chapman, H. G. P. Jones, G. N.
Teague, B. C. Childs, B. K.
Brownhill, D. G. C. Evans, G. J.
Hill, R. M. Cook, P. F. S.
Knowles, S. C. Faulkner, J. P.
MacGibbon, D. J. Richardson, G. F.
* denotes teller
Amendment negatived.
The CHAIRMAN --The next amendments before me relate to the same clause, but
perhaps I could take the Australian Democrats' amendment first.
Senator LEES (South Australia-Deputy Leader of the Australian Democrats) (10.40 a.m.) --I move:
1.Clause 11, page 9, at end of clause, add the following subclause:
"(2) Before a determination of what constitutes unjustifiable hardship can be made in accordance with subsection (1), a respondent has the onus of establishing that meeting the claim would impose an unjustifiable hardship.
This is an amendment which tries to clarify, once and for all, that it is the
respondent who has the job of proving unjustifiable hardship. In other words,
the person who has the disability, while obviously having to make the initial
complaint--and unfortunately this is complaint based legislation--is not the
one who has to prove unjustifiable hardship. Perhaps it is the supermarket proprietor
who has to put in a ramp; perhaps it is a service provider; or perhaps it is
a potential employer. It is not the person who has the disability.
Our view is that with basic liberties, employers as well as others should be innocent until substantive evidence is produced to the contrary.
The Opposition supports that view. After the consideration of this amendment by Senator Lees, I will seek to amend the Bill to ensure that the onus of proof rests with the claimant. I also draw the attention of the chamber to further comments by Mr Hamilton to the Standing Committee last Friday and, in particular, to one I thought would have attracted the Australian Democrats. I quote Mr Hamilton's comment from the Hansard as follows:
We have three tests for this sort of legislation--and perhaps for others. The first is that the legislation must be consistent with Australian legal traditions of civil liberties, which includes, for example, the fact that the onus of proof should rest on the applicant, not on the respondent; the law must also be clear on its application, and precise, so that an employer or anybody else knows exactly what must be complied with.
Mr Hamilton then went on to talk about other tests that applied to the legislation. Further in his evidence, Mr Hamilton said:
We have suggested that the unjustifiable hardship aspect be a part of the prohibition rather than a defence--and that is that onus of proof argument; if it is a defence, basically the employer bears an onus. It should be, in our view, part of the offence--the original prohibition.
Very obviously, there is a profound difference of view on this particular clause
between the Opposition and the Democrats. I am certainly not in a position to
support the amendment proposed by Senator Lees.
The question of the burden of proof is extremely important. In general, of course, the Government accepts for this legislation the principle that the persuasive burden--the burden which, at the end of the day, has to be satisfied before the Human Rights and Equal Opportunity Commission can find that discrimination because of disability has occurred--has to rest on the claimant. It has to rest on the person with a grievance. It has to rest on the person who lodges the complaint. That person, at the end of the day, has to show that there was a discrimination based on disability. But there is an exemption or an exception, in the case of a person against whom that charge is laid, where the Commission is satisfied that an unjustifiable hardship would be imposed on the respondent. The question is: how is that unjustifiable hardship to be demonstrated to the satisfaction of the Human Rights and Equal Opportunity Commission?
What the Government says is that we should adopt a very normal, ordinary way of the presentation of matters before a tribunal. That is to say that the respondent--the person who it is alleged engaged in unjustifiable discrimination based on disability and who wants the tribunal to conclude that there would be unjustifiable hardship if he had to change his practice--has to bring forward some evidence of that unjustifiable hardship, has to make it a live issue, has to make it more than an assertion, and has to give some reality and flesh to the claim of unjustifiable hardship. It would then be up to the claimant to show that, in fact, the hardship would not be unjustifiable in the way that the respondent was trying to demonstrate.
It is a very simple, ordinary way of making the matter something that is worthy of the tribunal's consideration and attention, requiring its deliberation and leading to a determination on that issue, otherwise there could be mere assertion. We say that the respondent--in this case, perhaps a member of the organisation which Senator Tambling, as its spokesman, has quoted--could not just get up and assert that there would be unjustifiable hardship, but would have to give it some substance. Then it would be up to the claimant to show that, in the overall examination of the matter, it would be found that there was no unjustifiable hardship.
I think I ought to draw to the attention of honourable senators the explanatory memorandum to clause 99. I referred to it in the Senate Standing Committee on Community Affairs on Friday, but I would like to get it into the Hansard today. Clause 99 of the Bill reads:
In determining whether an act is unlawful under a provision of Part 2, the Commission is not required to have regard to any exception or exemption provided for in that Part unless there is evidence before the Commission that the exception or exemption is or may be applicable in relation to that act.
The explanatory memorandum reads:
This clause provides that before the Commission is required to consider if the exemptions or exceptions that are set out in the legislation apply when it is deciding on whether or not certain action is unlawful under this Bill, the person who seeks to rely on this exception or exemption must produce some credible evidence that the exception or exemption may in fact apply in the particular case.
This very helpful example is then provided:
A has made a complaint against B alleging that B has discriminated against A on the basis that B would not provide a ramp to allow A access to B's retail store. If B wishes to rely on the exemption set out in Clause 11 concerning imposing unjustifiable hardship then B will be required to provide evidence as to its financial circumstances and the estimate of expenditure required before the Commission would have to take account of the unjustifiable hardship provisions.
We think that is very moderate and ought to be accepted by the Opposition.
But, for the reasons that I have outlined, neither the amendments suggested
to the Committee by the Democrats nor those suggested by the Opposition are
acceptable to the Government. We believe that the Committee should accept clause
99.
Senator TATE (Tasmania-Minister for Justice) (10.50 a.m.) --The matter is determined on the balance of probabilities.
Amendment negatived.
Amendment (by Senator Tambling) proposed:
Clause 11, page 9, at end of clause, add the following subclause:
"(2) In determining what constitutes unjustifiable hardship, a claimant has the onus of proving that failing to meet the claim would impose an unjustifiable hardship.
Question put:
The Committee divided. [10.55 a.m.]
(The Chairman--Senator M.A. Colston)
Senator TAMBLING (Northern Territory-Deputy Leader of the National Party of Australia) (10.59 a.m.) --by leave--I move:
3. Clause 31, page 22, line 2, omit "The regulations may prescribe regulations", substitute, "The Minister may formulate standards".
4. Clause 31, page 22, at end of clause, add the following subclauses:
(2) Disability standards formulated in accordance with this section are to be laid before each House of the Parliament within 15 sitting days of that House after the disability standards are formulated and take effect only as provided by the following provisions of this section.
(3) If:
(a) notice of a motion to amend the disability standards is given in either House of the Parliament within 15 sitting days after the disability standards have been laid before that House; and
(b) the disability standards, whether or not as amended, are subsequently approved by that House; and
(c) the other House approves the disability standards in the form approved by the first-mentioned House;
the disability standards take effect in the form so approved from the day on which that other House approves the disability standards in that form.
(4) If no notice of a motion to amend the disability standards is given in the House of Representatives or the Senate within 15 sitting days of the particular House after the guidelines have been laid before that House, the guidelines take effect from the day immediately after that 15th sitting day or, where that day differs in respect of each House, the later of those days.".
These amendments go to the issue of disability standards. The Opposition believes that the disability standards should come before Parliament in an amendable form rather than merely a disallowable form, which they would take if the legislation stood and regulations were put down in this order. We received widespread support for this proposal during the hearing of the Senate Standing Committee on Community Affairs last week. I am sure that honourable senators who attended that Committee or anyone who has read the Hansard will note that I pursued just about every witness on this issue.
The amendments, I point out to the chamber, are also in line with a similar,
successful Opposition amendment to the Disability Services Act in June of last
year. As there is a relationship between those two pieces of legislation, the
one now under consideration and the Disability Services Bill, I believe that
these amendments would ensure consistency, and they certainly meet with support
in the wider community.
Senator LEES (South Australia-Deputy Leader of the Australian Democrats) (11.00
a.m.) --These amendments will be supported by the Democrats. There was considerable
support for this in the Committee on Friday, and I think it is only reasonable
that it be done in this manner.
Senator TATE (Tasmania-Minister for Justice) (11.01 a.m.) --The Committee is faced with yet another change in the way in which the Senate has operated for close to 93 years. Where regulations are made under legislation, this chamber should exercise that very powerful weapon of moving a disallowance motion. This is the way in which the Senate normally indicates to Executive Government that it believes that subsidiary legislation ought to be rejected, redrafted and introduced again at a later date--according to a timetable--in such a way that it does not have the same features that have led a majority of the Senate to support a disallowance motion.
I reject the idea that was put forward by Senator Tambling at the beginning of his contribution to today's committee stage debate that extensive consultation was not undertaken. I believe that it was undertaken. In relation to the draft Bill that was introduced into the House in May, another round of extensive consultation took place then. I think that that is indicated by the number of submissions that came forward and were considered by the Government.
The same process of consultation that has led to the compiling of a very acceptable
Bill--in so far as those who have disabilities are concerned--will continue
in the development of the standards. There will be plenty of time to give parties
an opportunity to comment on the proposed text of any standards, before they
are formally enacted as such. We do not believe that there is reason for this
further manifestation of power--I was going to call it a novel power, but it
is hardly novel any more--proposed for the Senate and the House of Representatives,
whereby either of them, as I understand it on this amendment, could move amendments
to a proposed disability standard. For that reason, the Government will not
be supporting this particular amendment.
Again I refer to the proposals that I advanced for amendments to the Acts Interpretation Act for the purposes of dealing with this problem. Until such time as those proposals are properly considered, I believe it incumbent upon the Senate to include more of these sorts of provisions in legislation. I believe that these provisions will also ensure a more open analysis of the formulation of proposals for disability standards. It is all very well for the department or the Human Rights and Equal Opportunity Commission simply to write to various groups and peak bodies, to forward to them the proposed disability standards and to ask them for comment. That is one thing but, in my view, that is not genuine consultation.
I believe that there should a more structured approach to this issue. There should be a round table approach, or several round table approaches in various States. Instead of having one central organisation sending out material and getting responses by letter, all this being done behind closed doors with the public not knowing what is going on, there should be an open approach. Consultations and discussions should take place in an atmosphere where the public and organisations that are concerned about matters affecting persons with disabilities can quiz the representatives of the department or the Commission in a semiformal way and where notes can be taken about the real intentions behind the standards.
Failing all of that, and even given that, it is important that the Parliament, which after all represents the community as a whole and which is supporting this legislation, should be capable of ensuring and should be motivated to ensure that the proper disability standards are formulated. The nursing homes legislation is an example of where this sort of thing was included. I ask honourable senators whether there has been any problem with that legislation. I do not think there has been. So why not do it in this case? People eventually went away, not completely satisfied, but that appears to have worked reasonably well. Why can it not work reasonably well on this occasion?
If we are all of one mind about removing the obstacles that have been erected
in front of persons with disabilities, we can keep that motivation going in
ensuring that disability standards are properly formulated. If they are not,
we can deal with them in this chamber and in the other place in the manner proposed
by Senator Tambling.
Amendments agreed to.
5.After clause 45, page 26, insert the following clause:
Reasonable belief of harm
"45A. This Part does not render it unlawful to do an act where the person who does that act believes on reasonable grounds that the doing of that act would cause harm to that person.".
6.Clause 48, page 28, paragraph (b), line 32, at end of paragraph add "including the health of any person providing a health care service".
The medical profession is deeply concerned about the lack of protection afforded by this legislation. The AMA says that the treatment or procedure for a known HIV positive patient may need to be different and consequently may be regarded as discrimination. Similarly, the Australian Association of Surgeons is concerned that the Disability Discrimination Bill 1992 would make it illegal for a surgeon to refuse to perform an elective procedure on a known HIV positive patient. We have addressed these concerns in the amendments that are now before the Committee so that they afford protection to people where there is a reasonable belief of harm.
I draw attention to the evidence on Friday before the Senate Standing Committee on Community Affairs. When the AMA was appearing before the Committee, Senator Herron raised this issue very specifically. He referred to the AMA submission and quoted from that submission, which said:
There remains a need for special exemption from the legislation vis-a-vis medical and allied services. Particularly in regard to the Minister's Second Reading Speech reference to HIV and AIDS, the health professions need greater protection than is currently afforded in the Bill.
In response to a question from Senator Herron to the AMA, Dr Flecknoe-Brown responded, and I quote his response from page SCA9 of 9 October:
I have one persisting concern about clause 45 and about what is to be considered a public health matter. It is not actually clause 45, it is clause 48. Earlier in the AMA submission, there was some distinction between actions taken to protect your own health and actions to protect public health. But I would have said that any action taken to prevent transmission of disease from one person to another is rightly considered a public health measure. But it would be helpful to have that clarified so that smaller scale actions suggesting that a certain member of the family uses different cutlery from other members of the family in cases of hepatitis A are still considered as covered by this public health exemption.
That example highlights the fact that this issue of reasonable belief of harm needs to be addressed. I am sure a number of other examples could be given that would go broader than the area of health professionals or medical people. Two examples came up in discussion with me. One was the provision of services by a late night pharmacist who might have to deal with a psychiatrically disabled customer. There could be grounds there. Similarly, a bus driver could be providing services to a disabled person. So there are situations that could well arise.
We believe that the amendments we have proposed to clause 45 and clause 48
address this issue. In clause 48 of the Bill which deals specifically with infectious
diseases, we propose to add the words `including the health of any person providing
a health care service'. Again, an example that was pointed out to me was that
there could well be risks to receptionists in medical surgeries and similar
situations. I seek support for these important amendments.
We believe that there is sufficient capacity within the legislation, as drafted,
to deal with the sorts of detriment that might be caused--the fear of contracting
a disease, of being in a situation of physical vulnerability or of being in
a situation that might cause mental stress or distress. All of that can be dealt
with by the person against whom a charge of unlawful discrimination, on the
grounds of disability, is made. To go to the onus of proof matters that we discussed
earlier, this simply indicates and makes it a live issue that having to provide
that service would have given rise to an unjustifiable hardship--in this case,
perhaps, a detriment to health. I think that that is a perfectly sensible way
for the Bill to structure dealing with that series of matters that Senator Tambling
has raised. Therefore, the Government rejects the amendment.
Senator LEES (South Australia-Deputy Leader of the Australian Democrats) (11.18
a.m.) --The Democrats also believe that the suggested force is not there to
compel someone to assist or provide a service to someone with a disability.
We believe that clause 11(a) does provide sufficient cover--whether it is for
some sort of physical violence that is being threatened or whether it is for
a medical problem. Therefore, we do not see any need for these amendments, although
I understand that there are many groups in the community, particularly those
in the medical profession, which still have some very real concerns. We cannot
build into this Bill more and more opt-outs which effectively weaken what we
are trying to do and which will prevent genuine cases from being dealt with
and prevent people who have a specific disability from receiving the services
that they need. The Democrats will not be supporting these amendments.
Senator TAMBLING (Northern Territory-Deputy Leader of the National Party of Australia) (11.19 a.m.) --I am surprised at the comments of the Government and the Democrats on this particular matter. In looking carefully at clause 11 and clause 45, and the associated explanatory memorandum that has been distributed, I see that there is no acknowledgment of the issue of health professionals or of the services that apply to the provision of health standards. Naturally, with the new definitions at the commencement of the legislation, it incorporates, as a definition of disability, the very important new emphasis on disease or illness. Therefore, there is a compounded and associated concern.
The Opposition amendments with regard to the definition on health matters--concerning the presence in the body of organisms causing disease or illness and the presence in the body of organisms capable of causing disease or illness--stayed in the Bill because the Opposition amendment tending to tighten that up and restrict it was not carried.
Therefore, there is an obligation both on the Government, as the prime movers of this legislation, and on the Democrats to guarantee that attention is paid to the very real concerns that have been addressed by the AMA, by the surgeons; I know from my discussions with Dr Bob Woods, the shadow Minister for health, and Dr Michael Wooldridge--in the House of Representatives--and with Senator Herron in this place that they see real problems in this regard.
I would again highlight that the explanatory memorandum makes no mention whatsoever,
under the issues relating to unjustifiable hardship or in the explanatory memorandum
comments on clause 45 with regard to exemptions and special measures, of the
protection that ought to be afforded to health professions and people associated
with these areas. The Democrats and the Government are relying on lawyers' language
and on formal phrases and have certainly not given any commitment to have this
matter properly addressed. I am surprised that they will not be supporting an
amendment which would have clarified the matter in a very simple manner.
This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability if:
(a)the person's disability is an infectious disease; and
(b)the discrimination is reasonably necessary to protect public health.
The explanatory memorandum to that clause reads:
It is not intended that this Act will interfere with the operation of public health laws which relate to the control of infectious diseases. Infectious diseases would include HIV/AIDS. Where it is reasonably necessary to discriminate against a person with a disability so as to protect public health then this clause does not make such discrimination unlawful.
Where there is a prospect or a situation of vulnerability in that an infectious
disease could be transmitted from one person, a patient seeking treatment, to
another, the health professional concerned, then quite clearly that is a matter
of public health. Clause 48 would offer a range of reassurance, I believe, to
those who have made the sorts of submissions to which Senator Tambling has spoken.
Question put:
That the amendments (Senator Tambling's) be agreed to.
The Committee divided. [11.29 a.m.]
(The Chairman--Senator M.A. Colston)
Ayes . . . . . . . . . . . 26
Noes . . . . . . . . . . . 32
----
Majority . . . . . . . . . 6
----
AYES
Alston, R. K. R. Archer, B. R.
Baume, M. E. Bishop, B. K.
Bjelke-Petersen, F. I. Boswell, R. L. D.
Calvert, P. H. Campbell, I. G.
Crane, W. Crichton-Browne, N. A.
Ferguson, A. B. Herron, J.
Kemp, R. Knowles, S. C.
Macdonald, I. Newman, J. M.
O'Chee, W. G. Panizza, J. H.
Parer, W. R. Patterson, K. C. L.
Reid, M. E.* Short, J. R.
Tambling, G. E. J. Tierney, J.
Vanstone, A. E. Watson, J. O. W.
NOES
Beahan, M. E. Bell, R. J.
Bolkus, N. Bourne, V.
Burns, B. R Button, J. N.
Chamarette, C. Coates, J.
Collins, R. L. Colston, M. A.
Cooney, B. Coulter, J. R.
Crowley, R. A. Devereux, J. R.
Foreman, D. J. Kernot, C.
Lees, M. H. Loosley, S.
Maguire, G. R. McKiernan, J. P.*
McMullan, R. F. Powell, J. F.
Ray, R. F. Reynolds, M.
Schacht, C. C. Sibraa, K. W.
Sowada, K. N. Spindler, S.
Tate, M. C. Walsh, P. A.
West, S. Zakharov, A. O.
PAIRS
Walters, M. S. Sherry, N.
Lewis, A. W. R Giles, P. J.
Chapman, H. G. P. Jones, G. N.
Teague, B. C. Childs, B. K.
Brownhill, D. G. C. Evans, G. J.
Hill, R. M. Cook, P. F. S.
Durack, P. D. Faulkner, J. P.
MacGibbon, D. J. Richardson, G. F.
* denotes teller
Amendments negatived.
2.Clause 50, page 29, subclause (1), line 12, after "telecommunications services", insert "through payphones and public payphones".
3.Clause 50, page 29, at end of subclause (2), add the following definitions:
";`payphone' has the same meaning as in the Telecommunications Act 1991;
`public payphone' has the same meaning as in the Telecommunications Act 1991".
These amendments are perhaps some of the most important amendments from a list of about nine or 10 that the Democrats originally presented to the Committee on Friday. Being left with these amendments only on the exemptions does not mean to say that we are no longer concerned about, for example, the exemption relating to the armed forces. However, as the Standing Committee on Community Affairs heard on Friday, the telecommunications exemption would have cut out some two million Australians who have a significant hearing loss. If we add to that those who have significant speech difficulties, we see that there is a very large group in the community who need some assistance to use a telephone.
For many of those people there is a very simple solution, but a very large number of them need to move on to more specific and specialised services, such as the provision of a TTY. For some time now in Adelaide a voluntary service has been available, but unfortunately the queue for this service is often three or more hours long. I acknowledge that the Government has provided some $300,000 in the Budget towards a survey of TTY needs, but that is totally inadequate. With this Bill before us, there is an excellent opportunity to open up to that large section of the community ordinary telephone access. This access is needed not just for emergency services, whether it is to call an ambulance or to contact the police; it is also needed for the day to day community services to which these people should have access. That may be to contact the local school to see what the kids are up to or perhaps just to keep in touch with relatives and friends.
We are not suggesting through these amendments that all of these people will get services because, as has already been pointed out, the unjustifiable hardship provision in this Bill means that it is quite a lengthy process for each individual to prove that he or she really needs the service and that he or she has been discriminated against. If they wish to claim, they then have to prove--in this case I presume it is Telecom, as Optus is not really in this area of the market--that there is unjustifiable hardship in providing that service. I imagine that some of the financial impact statements we have seen are very much exaggerated.
These amendments are watered down from the Democrats' original amendment. Originally, we proposed that the entire exemption be removed. At the Committee hearing some figures were presented to us by two of the groups. Some $182m was the estimated cost if everybody had to have immediate access to all telecommunications services. We have watered down our original amendment by leaving in the exemption regarding `payphones and public payphones'. Our original amendment would have left everything out. We now acknowledge that cost has been one of the major problems that the Government has had in accepting this amendment. Payphones and public payphones apparently accounted for $150m of the $182m. Even with what is left, the Democrats argue that that is still an inflated figure. That presumes that absolutely everybody who needs a service will come in immediately. That will not and cannot happen the way this legislation is written. It is victim based legislation. Each individual must prove that he or she needs the service and is being discriminated against. Then the respondent has the onus of establishing unjustifiable hardship if the respondent does not want to provide the service.
These amendments will at least enable people who do not now have access to
telecommunications to have that access in their own home. Three years down the
track, I hope we will see a very rapid move to make payphones and public payphones
accessible to anybody who needs what is really an essential service in Australia
today.
I understand that AOTC's costings are in the order of $182m. I will quickly run through that: $6m on current provisions of disability programs; $2.2m to extend their current product range in the gaps that they have already identified in a broad range of speech and physical and hearing impairment areas; $8m for TTY equipment, that is, for profoundly deaf people; $150m for payphones, and $16m for TTY relay services. We believe that those figures are a little bit of an exaggeration, to say the least, and we believe that a significant improvement in access can be achieved through the expenditure of some $20m to $30m over a two-year or three-year period.
I raise the issue of TTY equipment. Roughly $8m is roughly the cost of providing an additional 12,000 TTYs to deaf Australians to enable them to get access to the phone system.
When I questioned Mr Lacey about his figuring and asked him on what basis he had obtained that information, he replied:
I am a member of Telecom's disability consultative committee. There is only a small group of us who meet at the disability programs and consumer consultation level with Telecom. It is a subcommittee of the Telecom Australia Consultative Council.
I asked:
Was that $182m identified to you by Telecom?
He replied:
Yes.
I asked him when, and he replied:
At a meeting two or three weeks ago in Melbourne of our disability services committee.
It is indeed a pity that we were not able to obtain, and the Government was
not able to provide, the costings--which very obviously, as Mr Lacey indicated,
were made available to the Government--as part of the earlier considerations
of this Bill when Mr Smith was seeking them for the debate in the House of Representatives.
As Senator Lees said, it is an important issue that should be read with this.
All of the normal exemptions will be available to Telecom to argue in other
and appropriate ways, and we will be supporting the amendments.
In that process it was always important to ensure that the universal service obligation of telecommunications carriers up until that point met by Telecom Australia, and met well by international standards, should not be diminished. The strongest evidence of all to those of us who were concerned about reduction in the universal service, about haziness over what constituted community service obligations by the telecommunications carriers, is this piece of legislation. The Disability Discrimination Bill having come forward in 1992, after the introduction of competition and the Telecommunications Act of 1991, the Government should have much more readily moved in the direction that these amendments moved the legislation.
As Senator Lees said, they do not go all the way. Those of us in this chamber
who are concerned about both the rights of the disabled in our community and
also the obligations of our telecommunications carriers with regard to universal
service must keep an eye on developments with regard to public and pay phones.
Certainly I commit myself, along with others in this chamber, to that process.
So it is on that basis in particular that I speak briefly in support of these
amendments.
I have had my education in this matter primarily through my acquaintance with the Tasmanian Deaf Society, and particularly in recent times with Mr Peter Cipollone, the executive director of that society, who has been a tireless worker on behalf of the Tasmanian community. He invited me during Deafness Awareness Week to launch the funding proposal that came out of the Budget, which was designed to improve dramatically communication for Australia's profoundly deaf and speech impaired. I am referring to the $300,000 pilot program for extending the benefits of the telephone typewriter system. The Commonwealth funded pilot project is to test a relay service arrangement.
For those who do not know how this facility would work, a person who is deaf or severely impaired in normal speech or hearing would be able to communicate by telephone typewriter. They type in their message, which is relayed by the phone system. In this particular project, the typewritten message would be received by the interpreter service already conducted by the Department of Immigration, Local Government and Ethnic Affairs. The person in that service would then relay the message on to a person who has full hearing, receive a message back, and then type the message back to the deaf person. It is amazing technology and it is a wonderful way in which those who have this disability can engage not only in ordinary social intercourse with their friends and relatives and associates but also in business and other activities.
I mention that project because I believe that it is a demonstration of the good faith of the Federal Government in relation to these matters. Indeed, it is only a foundation for the sorts of assistance we wish to encourage--the dismantling of the barriers, the removal of impediments to the full participation of those with disabilities in Australian society, in this case particularly those with severe hearing impairment.
For that reason, having held discussions with Mr Howe and Mr Collins over the last few hours, the Federal Government is prepared to accept these amendments. We believe that it is an absolutely vital breakthrough on the part of those suffering from these disabilities. We believe that it is the only proper response we can require as an Australian community of those who are vested with the tremendous privilege, commercially but also socially, of providing telecommunications services for all Australians. We have come to the view that, building on the goodwill and good faith already demonstrated in the pilot program I have outlined and keeping in mind the general social purpose of this Bill, it would be proper to bring within the Bill the providers of telecommunications services in the way suggested in the amendments.
What that means has to be understood. It will mean that a person who considers that he or she has been discriminated against on the grounds of the disability, in this case severe deafness or a speech impediment which prevents them from ordinary and normal use of the telephone, would be able to approach the Human Rights and Equal Opportunity Commission and lodge a complaint if a facility had not been provided to enable that communication to take place across the telephone wires.
It has to be emphasised, as I did before the Standing Committee on Community Affairs last Friday, that Telecom, for example, as the provider of the service could argue unjustifiable hardship. The figures, of which we have had only an indication, and not in a formal way and not under the pressure that Telecom would certainly be under in that formal setting of the Commission, would be presented. As I have said in previous contributions to this debate, Telecom or any other provider of services would have to indicate that indeed there was unjustifiable hardship--make it a live issue; give credibility to that assertion--and that would be a proper discipline on the organisation concerned.
Of course, I would imagine that, with the passage of the legislation in the form from which it will emerge from this Committee and then from the Parliament, it would be sensible for the provider of the telecommunications service to take advantage of those provisions of the Bill which enable the organisation, as a service provider, to put forward action plans which include provisions relating to the devising of policies and programs to achieve the objects of the Act; the communication of these policies and programs to persons within the service provider; the review of practices within the service provider with a view to the identification of any discriminatory practices; and the setting of goals and targets, where these may reasonably be determined against which the success of the plan in achieving the objects of the Act may be assessed; and so on.
What the Committee has achieved during the course of this morning's deliberations and on this particular matter is indeed very noteworthy. It is compassionate, but by that I do not want to say that there is not an issue of justice involved. It is not simply a matter of sentiment; it is a matter of ensuring that those who would otherwise be in a most isolated situation within the Australian community are able to take advantage of that which so many of us take for granted as a matter of course--that is, communication through the telephone system.
It has given me great pleasure to be able to inform the Committee of this very
recent decision by the Government. On the part of both Mr Howe and Senator Collins,
there has been a full understanding of the arguments as they have unfolded,
properly, over the last several weeks. I want to pay particular tribute to Miss
Heather Butow who, I think, has done a tremendous job, not only in this particular
matter, but in relation to the construction of this Bill, together with Kym
Duggan from the human rights area of the Attorney-General's Department. But,
principally, in this matter, Miss Heather Butow has achieved a great deal for
the disabled throughout Australia and I believe it ought to be recorded in the
annals of the Senate today.
Senator PATTERSON (Victoria) (11.53 a.m.) --I was not going to speak during this committee stage of the Bill, as I had the opportunity, as a temporary member of the Senate Standing Committee on Community Affairs for two weeks, of participating in the hearings last Friday. But I want to put on the record the fact that it is another example of the new committee procedure of the Senate working to ensure that legislation is looked at very carefully and that due consideration can be given by the Opposition and the Democrats, and also by the Government to re-examine its own legislation.
It is nice to see that we do not have to divide on this clause. As the Minister for Justice, Senator Tate, has said, if it is due to the work of the staff of the Minister--and also the Minister himself--that we can achieve that, then I think it does reflect well on the processes of the Senate. It emphasises the importance of the Senate in being able to review legislation in a more cooperative manner than may sometimes happen in the other place. It shows that we can work together to achieve something that, basically, we all believe is just and fair and which does have checks and balances built into it for Telecom, as the Minister has said. It also gives people with disabilities an opportunity if they believe they have been discriminated against on this basis.
I wanted to say that because I think so often we do not see that sort of cooperation,
or it is not reported. It might seem a very minor thing to someone sitting in
the press gallery, for example, but for people with a hearing loss it could
be a very major thing.
However, I must express my disappointment--certainly, the Government can count; it knows that the amendments would have been carried in light of the political pressures that were going to be brought to bear on these amendments--that similar weight has not been afforded to the other important submissions that were made as part of this important legislation. I would argue that groups such as the Confederation of Australian Industry, the Australian Medical Association and the Association of Surgeons have raised equally important and fundamental issues that would have assisted a very wide range of members of the community.
As I said in my preliminary remarks today, whilst the Government has certainly had a very fixed agenda on this matter, I can accept that. I imagine that there would have been many in the Government, in the bureaucracy and probably in the Minister's office who may have argued very strongly for this provision never to have been in the legislation anyway, and it was only a matter of costing and finances of various people that probably meant that it emerged in the first place as a sort of budget check and balance.
There are still a number of very important reservations with regard to this legislation. Whilst we will certainly be supporting the passage of the legislation today, I think the legislation will have to be monitored very carefully in its implementation. As to how it changes so many fundamental things in Australian society, it is all about attitudinal change. In fact, many people have argued about the unfortunate situation that arises that means that the legislation is necessary at all. I think my colleague Senator Patterson importantly referred to that in her speech on the second reading.
I acknowledge that this amendment is vitally important. I just express my concern
that the Government did not give equal weight to the consideration of other
fundamental issues.
Amendments agreed to.
Senator O'CHEE (Queensland) (11.59 a.m.) --I would like to ask the Minister a question about clause 3. It is my understanding that a result of the passage of the Bill will be that people who are partially mentally incapacitated can bring an action if they feel that they have been prejudiced in any way as a result of their disability. Is that the meaning of disability in clause 3 of the Bill?
Senator TATE (Tasmania-Minister for Justice) (12.01 p.m.) --We have to go back
to fundamentals. I imagine that the definition of disability would embrace the
sort of incapacity from which the person described by Senator O'Chee would be
suffering. But that, in itself, does not give rise to any ability to approach
the Human Rights and Equal Opportunity Commission. What then has to be done
is to link that to an act of discrimination on the part of a person, which discrimination
is related to that particular disability. It is only then that one gets into
the stage of a determination by the Commission that such discrimination is unlawful.
It is very hard to know what particular case the honourable senator has in mind
but that would be a case which, if it resulted in discrimination in the provision
of housing or accommodation, for example, could result in a successful application
by the person to the Commission for a determination that such discrimination
was unlawful.
Senator O'CHEE (Queensland) (12.02 p.m.) --I would be very concerned about
cases under existing Commonwealth legislation where, for example, there may
be a criterion in certain types of Commonwealth employment that one not be mentally
incapacitated. Would that be overridden by this Act?
Senator TATE (Tasmania-Minister for Justice) (12.03 p.m.) --As Senator O'Chee would know, there are specific exemptions in the Bill, for example, to deal with the armed forces in combat related duties, just to give a broad category of activity where that is permitted. In relation to other matters, it is expressed in terms of the inherent requirements of the job. For example, the disability may make it impossible for a person to become a driving instructor with the Commonwealth car fleet. If someone could not tell the difference between red and green he would probably be something of a failure as an instructor. Where the inherent characteristics of the job require a certain capacity, that has to be given precedence, although it would also be true to say that, with the modern technology and devices and aids of a therapeutic kind that are available, that area might be narrowing.
Senator O'Chee --I thank the Minister for his assistance.
Bill, as amended, agreed to.