Terri Butler (Griffith, Australian Labor Party) Share this | Hansard source

In 1992, under a federal Labor government, the Disability Discrimination Act was made law. That is a piece of legislation that is very important because it is about dignity for people with a disability and ending discrimination against them. Twenty years later, in 2012, in a decision brought under that legislation the full court of the Federal Court found that the Business Services Wage Assessment Tool—the tool that is the subject of this bill, the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016—was discriminatory and unlawfully discriminated against people with an intellectual disability, because it assessed competency as well as productivity. Of course, the consequence of that for people with an intellectual disability was that, though their productivity, their output, might be exactly the same as someone without the same disability, under that tool, they were able to be paid less. I am informed that the administration of that tool resulted in some workers with an intellectual disability being paid as little as 99c per hour.

Following on from that full court of the Federal Court decision, my friends and colleagues at my old firm, Maurice Blackburn, decided to commence a class action—and I want to say a bit about that. When my friend, Josh Bornstein, mentioned to me that he intended to pursue a class action in relation to disabled workers, my initial reaction was to see the possibilities not just for the class action and the workers who had suffered discrimination who might be able to get access to justice because of the existence of the class action rules when otherwise they could not individually afford to bring proceedings but also because of the cultural change that the prospect of class actions can bring. That is of course to remind people in our community that, though individually complainants might not have much power, collectively they have a lot of power—and that can change behaviour.

Obviously I was not involved in the class action, given I was leaving at the time to do something else, but I was very interested to watch the progress of the class action in relation to the BSWAT. I was also very pleased that a woman I recruited to that firm, Ms Kelly Thomas, ended up being one of the solicitors on the matter. She is a very talented solicitor and one of my best hires in a long period in the law. She and Josh wrote to me last week or the week before about the class action and about the resolution to which effect is to be given by this legislation.

In 2014 a piece of legislation was brought forward by the Abbott government, and now Turnbull government, in relation to this claim. We did not support that legislation. There were a few reasons that we did not support that legislation. Firstly, it was going to give people only 50 per cent of the value of their wages. Imagine being told that you were entitled to back pay only to find that you were only going to get half of it. But, probably more importantly, it was going to take away people's ability to pursue justice through the courts. We were very concerned about that legislation because it was aimed at extinguishing rights without compensating for the loss of those rights. In this House, people would not be keen to support the sort of legislation that says to disabled people, 'All right, you have been exploited, you have been underpaid, but take half of what you are worth and promise not to sue the Commonwealth for anything else.'

Of course, things have now changed. What has changed is that there has been a long period of negotiation and resolution in the intervening period. My own view, having been a lawyer, is that it is always best to seek to resolve litigation by agreement, where possible, because that is the only way the parties get to have control over their destinies. If you are unable to resolve your litigation, what you are really doing is putting your destiny into the hands of a third person, the judge. I do encourage parties to, where possible, seek to resolve by agreement for that reason. It is also a more efficient use of taxpayer resources if parties can find a way to reach agreement between themselves rather than using court time, and it is generally safer for parties not to have to bear the costs and risks of litigation if possible. Settlement is generally the best way to resolve litigation.

Determination by a court is usually not the best way to resolve litigation. And so it is here: a class of people—real people with intellectual disabilities—have been put in a position of controlling their own destiny by deciding whether to agree to a resolution, and we are now seeing that resolution being given effect in this legislation. I would make the point that they did so via the vehicle of a class action. Not everyone loves a class action, and not everyone loves class-action law firms. But I would say this: in this country, where access to justice is a serious problem and where we have had a Productivity Commission report which recognises that there are plenty of people out there who just cannot have access to the courts because they cannot afford to do so, vehicles by which people can have access to justice are important. A class action is one of those vehicles.

We should think very carefully about this question: do we want to live in a country where the only people who can get access to justice are those who are wealthy enough to pay for private lawyers? Or do we want to live in a country where the people who can get access to the court system are people who need to access the court system? Of course, I am not just talking about a class action—that is one vehicle. Another very important component of access to justice—and there are many—and probably the most important one for people without the means to hire private lawyers, is community legal centres and legal aid commissions. It is unfortunate that this government has, for example, cut tens of millions of dollars from community legal centres and legal aid commissions since coming to office, including Aboriginal and Torres Strait Islander family violence legal centres. It is not only a terrible cut at a time when, because of the work being done, people are more and more willing to seek help in matters of family violence—and those legal services do other things as well—but a direct attack on access to justice at a time when access to justice is the focus of national attention through the Productivity Commission inquiry and report. As I said, there are many ways of obtaining access to justice. Class actions are one. Legal aid commissions and community legal centres are others. And pro bono work by private firms certainly ought not be disregarded; it is a very important component of our legal system.

This a case that relates to a very particular type of class action that centres on claims that arise in relation to contraventions of the Disability Discrimination Act. Given that action have arisen, and given that the parties have had the opportunity of mediation and settlement discussions, it is now a matter of respect that we should support this bill. This is a settlement that the people who are claimants themselves, the people with intellectual disability who are owed money, are seeking to have endorsed. As the member for Jagajaga said, in the event that this bill is passed, the parties will be able to go back to the Federal Court for endorsement of the resolution. We should respect the decision that they have made in relation to agreeing to this settlement, and we should support this bill. This bill is definitely a more favourable bill than the previous bill, the 2014 bill. It is a bill with a back-payment of 70 per cent of the amount underpaid rather than 50 per cent. There will be indexation and there are other positive aspects of this bill compared with the previous bill.

The matters of fact, the merits of the settlement, are important for us to consider. But, most importantly, we should consider the wishes of the people for whom the class action was brought, the people who will receive the benefits of that class action. That is something that I am very keen to do. We should also recall that this is just one incident of a much broader imperative that we have as a parliament to recognise the needs of people with a disability. There are so many things you could talk about in that context. The shadow minister spoke about the National Disability Insurance Scheme, which is a signature achievement of the last Labor government, including the current Leader of the Opposition in his role in the last Labor government. I am certainly looking forward to seeing the NDIS rollout in my own area in Brisbane.

But there is always more to be done. As the shadow minister said, we certainly need to reinvigorate the national disability strategy. In the context of this issue, I also want to mention for the benefit of the House the work that is being done in my own part of the world in the Australian Labor Party in Queensland. A friend of mine, Brad Sparrow, has set up a group called Labor Enabled. I certainly hope that group will continue to agitate for better pro-disability, pro-ability and pro-access policies internally within Labor and within the broader community. I am very pleased to say that they were kind enough to invite me to be the patron of that group, an opportunity that I took up without hesitation because I can see the opportunities for policy work, organising and community support that such a group can and will deliver.

But I digress. I rose to speak in favour of supporting this bill, because I think supporting this bill is the right thing to do on the merits of the settlement that has been reached in support of the people who would form part of the class that is the subject of the class action and to whom benefits from this bill would accrue. But, as I said, most importantly I did so as a matter of respect. People should be able to determine their own destinies in this world. When it comes to litigation like this we should respect the people for whom the action was brought and we should honour their wishes, and in supporting this bill we certainly would be doing that.

So, I commend the bill to the House. I thank you for the opportunity to speak, and I certainly hope that we will see more and more attention being paid to the needs of people with disabilities. I certainly have appreciated the opportunity to acknowledge the significance of the Disability Discrimination Act—that great Labor reform from 1992. I know there is much more to be done, but with continued focus and continued political will and effort we will continue to make Australia a better place for people with a disability.

See this speech in context