SUPPORT FOR THE DISABLED
Dr JENSEN (Tangney) (6:03 PM) —The members opposite are to be commended
for embracing the spirit of the Howard government and adhering to its
principle of ensuring a fair go for all Australians. But I hope those
opposite will not become too complacent about what may appear to be
praise, because it is only in the key principles that they have
succeeded. In the detail, their efforts rank as a failure, as in just
about every other matter that they turn their hands to. Just as Medusa
could turn men to stone, so the Rudd administration turn matters of
government to farce. Their bungling work would be comical if it were
not so damaging.
In the case of the bill before us today, the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, giving all a fair go means ensuring fair treatment of the disabled in our society. Many of the elements of this bill are long overdue. Indeed, the Howard government had agreed to several aspects of the bill. The fact that the government have been in office for more than a year and still have not dealt with this matter reflects their true feelings on helping the less fortunate in our society.
The bill explicitly spells out for the first time that all of us must make ‘reasonable adjustments’ to cater for people with disabilities. Of course, the definition of what is reasonable is open to interpretation, though I hope that common sense would prevail. It would seem reasonable, for example, to expect a large public building—perhaps one such as this—to cater for the disabled by providing ramps and special toilet facilities. However, it would be unreasonable to expect the same of my local fish and chip shop. And this is where the cracks first appear in the bill before us. There is no indication of what might constitute a ‘reasonable adjustment’. Imagine an aggrieved person in a wheelchair, in concert with—to put it mildly—overzealous legal practitioners who seek to push the boundaries of reason and common sense well past breaking point. The person might claim it is unreasonable that he or she cannot get over the steps to the fish and chip shop or that a toilet for the disabled is not provided should he or she need one while waiting for food—in the event that they overcome the first obstacle. Of course, such a scenario seems ridiculous. But the government has done nothing to deliver clarity on this issue, and it is the very nature of the litigation industry to exploit such holes.
Even more disturbing is the shifting of the burden of proof in this bill. Our entire legal system is based on the applicant having to prove their case against the respondent. Certainly, in civil law there is a lesser burden of proof than in criminal matters, but the burden of proof still resides with the first party. The government, in this amateurish pamphlet it would have become law, has turned that system on its head. It wants the burden of proof to be on the respondent, who would have to demonstrate that any given adjustment was ‘unreasonable’. The bill does make provision for a defence that making some adjustments would cause ‘unjustifiable hardship’ but, again, it fails to indicate what might or might not be an acceptable level of suffering for a respondent.
The Attorney-General, in a document purporting to explain this bill, says:
… unjustifiable hardship includes consideration of the costs and benefits to all persons, expanding the criteria to include availability of financial and other assistance …
He goes on to say:
… all the relevant circumstances of the particular case must be taken into account, including ‘the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned’. Relevant case law has interpreted ‘any persons concerned’ as extending beyond the immediate parties to the dispute … This item inserts an example at the end of the section to clarify that the nature of the benefit or detriment likely to accrue or be suffered by the community is one of the factors to be taken into account …
That is a lot of words which ultimately tell us nothing, other than ‘unjustifiable hardship’ can mean whatever someone wants it to mean, even if they are not involved in the case at all. The bandying around of such undefined terms in this context does a disservice to the disabled and so to society at large.
Here is another wild application of generality in this element of the bill. It is supposedly intended to guarantee that a disabled person is not treated differently from others in circumstances which are not materially different. The document goes on to say that the fact a disabled person requires additional facilities, equipment or services does not qualify as making their situation ‘materially different’ from that of others. So, presumably, by this measure my fish and chip shop would be obliged to install ramps and a toilet for the disabled. Why shouldn’t the complainant have to prove that their demand is reasonable? How can we, on one hand, treat the disabled as equals but, on the other hand, say that they must be treated differently? I absolutely endorse the principle that the disabled should be treated as equals wherever possible, and that qualification is not intended to give wriggling room for discrimination. It is simply to acknowledge the reality that disabilities do necessarily preclude participation in certain situations. For example, I do not want a blind pilot in the cockpit when I fly back to Perth later this week. I do not want a child or a truck driver at the controls, either, because they would also be unable to fly the plane as required. I support the rights of the disabled and agree with many disabled people of my acquaintance that they should be judged and treated first as humans and should live according to what they can do, not what they cannot.
It is patronising in the extreme to suggest they be granted special privilege because of their disabilities. This concept is offensive to most disabled people, who have perhaps learnt more than most of the rest of us to deal with their handicaps and make the most of their attributes. As Helen Keller said:
I thank God for my handicaps, for through them I have found myself, my work, and my God.
Helen Keller was blind and deaf. The wording of this bill marks yet another slip on the long slide towards a hellish world where ridiculous political correctness—a trait ingrained in many members opposite—reigns supreme.
Another sign of this descent into madness can be found further into the bill, with an amendment to reduce the exemption from the Disability Discrimination Act in immigration matters. When in government we opposed this measure, not because of any wish to discriminate against the disabled, but simply to protect the interests of Australia and its citizens. That is what a government is supposed to do. Members opposite were in opposition so long that maybe they have forgotten that. At the time the issue was raised, we said:
… the existing exemption set out in section 52 of the DDA is necessary and appropriate.
While Australia’s immigration laws do not exclude persons with disabilities from visiting or migrating to Australia, they do contain health requirements that must be satisfied. The health requirements include that the person does not have a disease or condition that would be likely to result in a significant cost to the Australian community in health care or community services; or prejudice the access of Australian citizens or permanent residents to such services.
You would think that this would be a perfectly reasonable stance to take. But, no, not in this bill and not for the government. The government would rather damage the national interest than be accused of being un-PC by their chardonnay-sipping amateur socialist mates. This amendment relating to discrimination, like most of this bill, also lacks specifics and is wide open to interpretation, and that is a problem which could come to haunt us all.
The Department of Immigration and Citizenship specifically asked to be involved in any attempt to amend this section of the Disability Discrimination Act, stressing that particular care must be taken in separating the criteria and decision making for Australian entry and migration visa categories from general administrative actions because of the overlap between the two. Of course, this particular amendment is a knee-jerk response to the government being left red-faced last year when Dr Bernard Moeller’s application for permanent residency was refused because he had a son with Down syndrome and that was expected to incur a significant cost to Australia. When we were in government, we did not flip and flop according to the headlines of the day. There was no need to, because we never made a mess of things, which the present government does. We stood firmly behind the health requirements for issuing visas, but we also recognised genuine, compassionate grounds such as family ties and granted waivers where appropriate.
One element of the bill which has been sensibly carried over from the Howard government is extending exemption from the provisions of the Disability Discrimination Act to employers, under the defence of ‘inherent requirements’, if employees are unable to perform the inherent requirements of the job, even after reasonable adjustments have been made. This defence is not available in cases where a disabled person is denied access to opportunities for promotion, transfer, training or any other employment benefits. Of course, these exemptions are quite rightly geared to protect disabled people who are already employed. There is no such protection for an employee who becomes unable to meet the requirements of their job, including by becoming disabled, and they could be dismissed or have their terms and conditions of employment changed as a result. And here, not surprisingly, the ugly bedmate of affirmative action raises its grotesque head.
Discrimination which is intended to confer some advantage on disabled people is acceptable, according to the explanatory memorandum, as long as it is ‘necessary to implement the measure for the benefit of the person with the disability’. This is the same disastrous approach the ALP has taken in dealing with other sections of society, most notably with Indigenous people and with women, and it continues to belittle and make automatic victims of the target group and offend the wider community. I reiterate: if you start giving advantages to one particular group regardless of individual circumstance, you are not treating them as equals but as helpless children.
Today’s bill reveals further contradictions, not least in the area of genetic material. The government wants to change the definition of ‘disability’ to include genetic predispositions to disabilities as well as ‘behaviour that is a symptom or manifestation of the disability’. So you are now disabled if you have a family history of certain conditions. At the same time, the government wants to bar employers from ‘requesting or requiring genetic information from a job applicant or employee, except where the information is reasonably required for purposes that do not involve unlawful discrimination’. Yet again, what is ‘reasonable’? This measure seems particularly short-sighted given the vast strides made in recent years in genetic research—progress which can be expected to continue in future. A key component of this research is identification of specific genetic traits, including those which indicate predisposition to certain conditions. Under the definition in this bill, this research could render many of us disabled even though we show absolutely no symptoms at all. All of this politically correct hype is at best an irritant to society and at worst potentially explosive.
Like most of us in this House, I meet a wide range of people every day. They come from all walks of life and all sorts of backgrounds. But I see them all as Australians. I do not see them as Indigenous Australians, Asian Australians, deaf Australians, Christian Australians, female Australians or vegetarian Australians. They are all simply Australians—many, if not all, of whom have characteristics which some would have us say distinguish them as members of certain groups within the wider community. To me, that is not only irrelevant but divisive and possibly dangerous. It is what we have in common, our way of life, our values and our aspirations, which are important, not the differences that are between us. The differences add colour to the mix but are not key factors at the end of the day.
The members opposite, however, prefer to emphasise the differences between us. Perhaps they should listen to their ideological American cousin, Jesse Jackson, who said:
The white, the Hispanic, the black, the Arab, the Jew, the woman, the Native American, the small farmer, the businessperson, the environmentalist, the peace activist, the young, the old, the lesbian, the gay and the disabled make up the American quilt.
The same could be said of Australia. The sophistry of the government’s approach to equal opportunity has fostered an unjust system where people are no longer allowed to speak truths and where discrimination has been given state endorsement, so long as it is of the affirmative action variety. While there are many things to admire about the United States, the rise of political correctness is not one of them. The Urban Dictionary, a forthright online reference originating from that country, defines ‘politically correct’ thus:
The laws of moral and ethical relativism; all systems of cultures and thought are equal in value, steming from a perceived guilt from white liberals who believe that the Western Civilization is the root of all evil to the exclusion of all else.
It also adds that political correctness is:
A powerful form of censorship—
and—
A method of controlling and dictating public speech and thought.
Political correctness is not something we should be fostering in Australia, a society long renowned for its frankness and its fair go mentality. Some members of this House are short; they are not vertically challenged. Others are fat, though the extreme PC crowd would have us say they are horizontally gifted. I am sad to say that I am balding, though I would never describe myself as follicularly challenged. This refusal to speak forthrightly and the insistence on defining people by their differences and their handicaps, for want of a better word, is the thin end of the wedge in the rise of political correctness.
This bill would have us take much the same stance with the disabled, and this entire approach is wrong. Some Australians are at a disadvantage to the majority. They deserve and need our support to participate in society and be given the same opportunities as everyone else. They deserve the chance to make the most of their skills and abilities and to be treated as all other Australians. Instead of foisting yet more legislation on employers in this country—especially one so open to judicial activism—perhaps we should first be looking at what we are currently not doing properly.
I have been approached, as has my colleague the member for Stirling, by the Disabled Workers Union. This wonderful group is actually helping the disabled in the most positive and real way—by helping them get gainful employment or training and offering them protection from exploitation. The DWU has in the past received government funding, because of course by definition the people they serve cannot afford to pay much for DWU’s services. This funding has been cut off by this so-called caring government, basically because of bureaucratic semantics. Before burdening the country, especially employers, with another lawyers’ picnic of regulation, how about spending a few measly thousand dollars and do some real good? I challenge the minister to stop hiding behind technical jargon and support the DWU, which is actually in the business of real help for the disabled. They do not deserve condescension, pity or patronising affirmative action. They do not deserve to be treated as being different or as not being among us. We all deserve to be treated for what we are first and foremost—Australians.
In the case of the bill before us today, the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, giving all a fair go means ensuring fair treatment of the disabled in our society. Many of the elements of this bill are long overdue. Indeed, the Howard government had agreed to several aspects of the bill. The fact that the government have been in office for more than a year and still have not dealt with this matter reflects their true feelings on helping the less fortunate in our society.
The bill explicitly spells out for the first time that all of us must make ‘reasonable adjustments’ to cater for people with disabilities. Of course, the definition of what is reasonable is open to interpretation, though I hope that common sense would prevail. It would seem reasonable, for example, to expect a large public building—perhaps one such as this—to cater for the disabled by providing ramps and special toilet facilities. However, it would be unreasonable to expect the same of my local fish and chip shop. And this is where the cracks first appear in the bill before us. There is no indication of what might constitute a ‘reasonable adjustment’. Imagine an aggrieved person in a wheelchair, in concert with—to put it mildly—overzealous legal practitioners who seek to push the boundaries of reason and common sense well past breaking point. The person might claim it is unreasonable that he or she cannot get over the steps to the fish and chip shop or that a toilet for the disabled is not provided should he or she need one while waiting for food—in the event that they overcome the first obstacle. Of course, such a scenario seems ridiculous. But the government has done nothing to deliver clarity on this issue, and it is the very nature of the litigation industry to exploit such holes.
Even more disturbing is the shifting of the burden of proof in this bill. Our entire legal system is based on the applicant having to prove their case against the respondent. Certainly, in civil law there is a lesser burden of proof than in criminal matters, but the burden of proof still resides with the first party. The government, in this amateurish pamphlet it would have become law, has turned that system on its head. It wants the burden of proof to be on the respondent, who would have to demonstrate that any given adjustment was ‘unreasonable’. The bill does make provision for a defence that making some adjustments would cause ‘unjustifiable hardship’ but, again, it fails to indicate what might or might not be an acceptable level of suffering for a respondent.
The Attorney-General, in a document purporting to explain this bill, says:
… unjustifiable hardship includes consideration of the costs and benefits to all persons, expanding the criteria to include availability of financial and other assistance …
He goes on to say:
… all the relevant circumstances of the particular case must be taken into account, including ‘the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned’. Relevant case law has interpreted ‘any persons concerned’ as extending beyond the immediate parties to the dispute … This item inserts an example at the end of the section to clarify that the nature of the benefit or detriment likely to accrue or be suffered by the community is one of the factors to be taken into account …
That is a lot of words which ultimately tell us nothing, other than ‘unjustifiable hardship’ can mean whatever someone wants it to mean, even if they are not involved in the case at all. The bandying around of such undefined terms in this context does a disservice to the disabled and so to society at large.
Here is another wild application of generality in this element of the bill. It is supposedly intended to guarantee that a disabled person is not treated differently from others in circumstances which are not materially different. The document goes on to say that the fact a disabled person requires additional facilities, equipment or services does not qualify as making their situation ‘materially different’ from that of others. So, presumably, by this measure my fish and chip shop would be obliged to install ramps and a toilet for the disabled. Why shouldn’t the complainant have to prove that their demand is reasonable? How can we, on one hand, treat the disabled as equals but, on the other hand, say that they must be treated differently? I absolutely endorse the principle that the disabled should be treated as equals wherever possible, and that qualification is not intended to give wriggling room for discrimination. It is simply to acknowledge the reality that disabilities do necessarily preclude participation in certain situations. For example, I do not want a blind pilot in the cockpit when I fly back to Perth later this week. I do not want a child or a truck driver at the controls, either, because they would also be unable to fly the plane as required. I support the rights of the disabled and agree with many disabled people of my acquaintance that they should be judged and treated first as humans and should live according to what they can do, not what they cannot.
It is patronising in the extreme to suggest they be granted special privilege because of their disabilities. This concept is offensive to most disabled people, who have perhaps learnt more than most of the rest of us to deal with their handicaps and make the most of their attributes. As Helen Keller said:
I thank God for my handicaps, for through them I have found myself, my work, and my God.
Helen Keller was blind and deaf. The wording of this bill marks yet another slip on the long slide towards a hellish world where ridiculous political correctness—a trait ingrained in many members opposite—reigns supreme.
Another sign of this descent into madness can be found further into the bill, with an amendment to reduce the exemption from the Disability Discrimination Act in immigration matters. When in government we opposed this measure, not because of any wish to discriminate against the disabled, but simply to protect the interests of Australia and its citizens. That is what a government is supposed to do. Members opposite were in opposition so long that maybe they have forgotten that. At the time the issue was raised, we said:
… the existing exemption set out in section 52 of the DDA is necessary and appropriate.
While Australia’s immigration laws do not exclude persons with disabilities from visiting or migrating to Australia, they do contain health requirements that must be satisfied. The health requirements include that the person does not have a disease or condition that would be likely to result in a significant cost to the Australian community in health care or community services; or prejudice the access of Australian citizens or permanent residents to such services.
You would think that this would be a perfectly reasonable stance to take. But, no, not in this bill and not for the government. The government would rather damage the national interest than be accused of being un-PC by their chardonnay-sipping amateur socialist mates. This amendment relating to discrimination, like most of this bill, also lacks specifics and is wide open to interpretation, and that is a problem which could come to haunt us all.
The Department of Immigration and Citizenship specifically asked to be involved in any attempt to amend this section of the Disability Discrimination Act, stressing that particular care must be taken in separating the criteria and decision making for Australian entry and migration visa categories from general administrative actions because of the overlap between the two. Of course, this particular amendment is a knee-jerk response to the government being left red-faced last year when Dr Bernard Moeller’s application for permanent residency was refused because he had a son with Down syndrome and that was expected to incur a significant cost to Australia. When we were in government, we did not flip and flop according to the headlines of the day. There was no need to, because we never made a mess of things, which the present government does. We stood firmly behind the health requirements for issuing visas, but we also recognised genuine, compassionate grounds such as family ties and granted waivers where appropriate.
One element of the bill which has been sensibly carried over from the Howard government is extending exemption from the provisions of the Disability Discrimination Act to employers, under the defence of ‘inherent requirements’, if employees are unable to perform the inherent requirements of the job, even after reasonable adjustments have been made. This defence is not available in cases where a disabled person is denied access to opportunities for promotion, transfer, training or any other employment benefits. Of course, these exemptions are quite rightly geared to protect disabled people who are already employed. There is no such protection for an employee who becomes unable to meet the requirements of their job, including by becoming disabled, and they could be dismissed or have their terms and conditions of employment changed as a result. And here, not surprisingly, the ugly bedmate of affirmative action raises its grotesque head.
Discrimination which is intended to confer some advantage on disabled people is acceptable, according to the explanatory memorandum, as long as it is ‘necessary to implement the measure for the benefit of the person with the disability’. This is the same disastrous approach the ALP has taken in dealing with other sections of society, most notably with Indigenous people and with women, and it continues to belittle and make automatic victims of the target group and offend the wider community. I reiterate: if you start giving advantages to one particular group regardless of individual circumstance, you are not treating them as equals but as helpless children.
Today’s bill reveals further contradictions, not least in the area of genetic material. The government wants to change the definition of ‘disability’ to include genetic predispositions to disabilities as well as ‘behaviour that is a symptom or manifestation of the disability’. So you are now disabled if you have a family history of certain conditions. At the same time, the government wants to bar employers from ‘requesting or requiring genetic information from a job applicant or employee, except where the information is reasonably required for purposes that do not involve unlawful discrimination’. Yet again, what is ‘reasonable’? This measure seems particularly short-sighted given the vast strides made in recent years in genetic research—progress which can be expected to continue in future. A key component of this research is identification of specific genetic traits, including those which indicate predisposition to certain conditions. Under the definition in this bill, this research could render many of us disabled even though we show absolutely no symptoms at all. All of this politically correct hype is at best an irritant to society and at worst potentially explosive.
Like most of us in this House, I meet a wide range of people every day. They come from all walks of life and all sorts of backgrounds. But I see them all as Australians. I do not see them as Indigenous Australians, Asian Australians, deaf Australians, Christian Australians, female Australians or vegetarian Australians. They are all simply Australians—many, if not all, of whom have characteristics which some would have us say distinguish them as members of certain groups within the wider community. To me, that is not only irrelevant but divisive and possibly dangerous. It is what we have in common, our way of life, our values and our aspirations, which are important, not the differences that are between us. The differences add colour to the mix but are not key factors at the end of the day.
The members opposite, however, prefer to emphasise the differences between us. Perhaps they should listen to their ideological American cousin, Jesse Jackson, who said:
The white, the Hispanic, the black, the Arab, the Jew, the woman, the Native American, the small farmer, the businessperson, the environmentalist, the peace activist, the young, the old, the lesbian, the gay and the disabled make up the American quilt.
The same could be said of Australia. The sophistry of the government’s approach to equal opportunity has fostered an unjust system where people are no longer allowed to speak truths and where discrimination has been given state endorsement, so long as it is of the affirmative action variety. While there are many things to admire about the United States, the rise of political correctness is not one of them. The Urban Dictionary, a forthright online reference originating from that country, defines ‘politically correct’ thus:
The laws of moral and ethical relativism; all systems of cultures and thought are equal in value, steming from a perceived guilt from white liberals who believe that the Western Civilization is the root of all evil to the exclusion of all else.
It also adds that political correctness is:
A powerful form of censorship—
and—
A method of controlling and dictating public speech and thought.
Political correctness is not something we should be fostering in Australia, a society long renowned for its frankness and its fair go mentality. Some members of this House are short; they are not vertically challenged. Others are fat, though the extreme PC crowd would have us say they are horizontally gifted. I am sad to say that I am balding, though I would never describe myself as follicularly challenged. This refusal to speak forthrightly and the insistence on defining people by their differences and their handicaps, for want of a better word, is the thin end of the wedge in the rise of political correctness.
This bill would have us take much the same stance with the disabled, and this entire approach is wrong. Some Australians are at a disadvantage to the majority. They deserve and need our support to participate in society and be given the same opportunities as everyone else. They deserve the chance to make the most of their skills and abilities and to be treated as all other Australians. Instead of foisting yet more legislation on employers in this country—especially one so open to judicial activism—perhaps we should first be looking at what we are currently not doing properly.
I have been approached, as has my colleague the member for Stirling, by the Disabled Workers Union. This wonderful group is actually helping the disabled in the most positive and real way—by helping them get gainful employment or training and offering them protection from exploitation. The DWU has in the past received government funding, because of course by definition the people they serve cannot afford to pay much for DWU’s services. This funding has been cut off by this so-called caring government, basically because of bureaucratic semantics. Before burdening the country, especially employers, with another lawyers’ picnic of regulation, how about spending a few measly thousand dollars and do some real good? I challenge the minister to stop hiding behind technical jargon and support the DWU, which is actually in the business of real help for the disabled. They do not deserve condescension, pity or patronising affirmative action. They do not deserve to be treated as being different or as not being among us. We all deserve to be treated for what we are first and foremost—Australians.
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