6 February 2001
Australian Lawyers for Human Rights has raised concerns regarding proposals to amend Federal and State anti-discrimination law to prevent drug dependence from being defined as a disability.
These proposals result from the ‘debate’ arising
from Justice Branson’s decision in Marsden
v HREOC & Coffs Harbour and District Ex-Servicemen and
Women’s Memorial Club Limited.
The Marsden decision is a judicial review of a determination by the Human Rights and Equal Opportunity Commission of a complaint made by Mr Wayne Marsden. Mr Marsden complained that he was discriminated against by the Coffs Harbour Ex-Servicemen’s Club on the grounds of a disability. Despite uninformed public comment to the contrary, Justice Branson did not decide that opioid dependence constitutes a disability under the Disability Discrimination Act 1992 (the DDA).
Her Honour reviewed the Inquiry Commissioner’s reasoning which had led him to “the tentative view . . . . that the applicant’s opioid dependency could not constitute a disability within the meaning of the DDA”. She found that, in the circumstances, the reasoning did not support this tentative view. Consequently her Honour referred “the matter to which the decision relates . . . to the first respondent (the Human Rights and Equal Opportunity Commission) for further consideration”.
Although Her Honour’s reasons open the way for a finding
that opioid dependence constitutes a disability under the DDA, no
such finding has yet been made.
It is premature for Government to act at this stage. For the New South Wales Government to act before the Federal Government does would both undermine the legislative reforms of 1994, and raise a constitutional issue.
The definition of disability in the NSW Anti-Discrimination Act was inserted only in 1994, after extensive consultation and deliberation. It was inserted in large part to reflect the equivalent provisions of the Federal DDA.
The provisions in the DDA implement Australia’s obligations under both the Declaration on the Rights of Disabled Persons, and Article 26 of the International Covenant on Civil and Political Rights. A consideration for the Federal Government, if it were to consider limiting the definition of disability, will be the extent to which it should resile from its commitment to the Declaration, and obligations in international law under the ICCPR.
Similarly, by limiting the definition of disability NSW would be resiling from its 1994 commitment to give effect to the Declaration and the ICCPR. It has recently been proposed that this commitment be made explicit: Recommendation 7 in the Review of the Anti-Discrimination Act.
As well, for NSW to limit the definition of disability before the Federal Government does, if ever it does, might raise an issue of inconsistency under s109 of the Australian Constitution.
The Federal Attorney General is awaiting a decision in the current legal proceedings, and it is by no means clear that the Federal Government would amend the definition of disability in the Disability Discrimination Act when a decision is finally made. An amendment may be unnecessary in light of the terms of the decision, or may be considered inappropriate on policy grounds.
For policy and constitutional reasons, not unless and until
amendments to the DDA are made should amendments to the same
effect be considered in NSW, if at all.
A proposal to amend anti-discrimination law so that opioid
dependence is not within the definition of a disability would be
misguided for a range of reasons.
Article 26 of the International Covenant on Civil and Political Rights, to which Australia is a signatory, states“all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground.”
Article 2 of the Declaration on the Rights of Disabled Persons, to which both the Federal and NSW governments have given legislative effect, states: “Disabled persons shall enjoy all the rights set forth in this Declaration. These rights shall be granted to all disabled persons without any exception whatsoever and without distinction or discrimination”.
To give effect to these rights, anti-discrimination laws in
Australia adopt the complaints-based model, operating on the
merits of each individual case. They protect people from
being treated differently or unfairly because of stereotyped
assumptions about them, and from arbitrary treatment and
judgments based on difference. Consistently with Article 3
of the Declaration on the Rights of Disabled Persons, the origins
of the difference are not relevant in our
anti-discrimination laws.
Removing drug dependency from the definition of disability
would seriously undermine the Government’s commitment to
principles of human rights. If, in the absence of a Bill of
Rights, citizens are to rely on the protection afforded by
Government in legislation from time to time, then citizens must
be assured that Government will be consistent and
non-discriminatory in its commitment to human rights legislation.
Australian Governments recognise the special needs of people
with drug dependencies. As there is for people with intellectual
disabilities, people living with HIV/AIDS, single mothers,
migrants and a range of other groups, there is significant
community prejudice concerning people living with a drug
dependency. Governments expend substantial resources in
formulating strategies to treat and rehabilitate drug dependent
people. One such Government-sponsored measure is treatment
programs, such as the methadone programs where Mr Marsden was
receiving treatment.
A key objective of all drug treatment programs is to assist
people to regain a normal lifestyle, including employment and
enhanced participation in the community. If the community is
allowed to discriminate against people on the ground that they
are drug dependent, or receiving treatment for drug dependence,
the potential of these programs to succeed will be severely
compromised. The effect will be to return people with
dependencies to an illegal drug sub culture, and to
undermine comprehensive Government strategies.
Some uninformed or mischievous media reports of Justice Branson’s decision have imagined extreme and unrealistic scenarios which might result from drug dependency being treated as a disability.
Anti-discrimination law provides mechanisms which ensure that
interests are balanced, including those of employers. For
example, a person receiving treatment for a drug dependency might
not, for that reason, be able to perform the inherent
requirements of a particular job, or might make demands of the
employer which impose unjustifiable hardship. In both cases,
existing anti-discrimination law will uphold an employer’s
decision either not to employ that person, or to dismiss them.
On the other hand a person who is known to have been drug dependent might be excluded from entering a club, for no other reason than their history of drug dependence.
In that case the person should be as entitled as members of other groups to ask whether they have been treated differently or unfairly because of stereotyped assumptions, and whether they have been subjected to arbitrary treatment and judgments based on difference. To remove that right from a particular section of the community will only exacerbate community division, and give legitimacy to prejudice based on difference.
A proposal to preclude drug dependency from the definition of
disability is flawed in the same way as proposed amendments to
the Sex Discrimination Act to enable the States and
Territories to discriminate on the grounds of marital status in
the provision of assisted reproductive technology services.
In both cases the amendments withdraw protection against
discrimination for particular sections of the community.
The effect of such changes can only be to allow further
marginalisation of and prejudice against these sections of the
community.
For these reasons ALHR urges the rejection of proposals that
would redefine disability in law so as to remove protection
against discrimination for people with a drug dependency.
Simon Rice
President
Australian Lawyers for Human Rights
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