Australian Lawyers for Human Rights - Anti-Discimination Act and Drug-Dependence

NSW ADA Amendments: Preferred Option

49PA            Persons addicted to prohibited drugs

           (1) This section applies to the provisions of Division 2 (Discrimination in work), other than sections 49H, 49I and 49J.

           (2) Nothing in those provisions renders unlawful discrimination against a person on the ground of disability if the discrimination is on the basis of actual and current addictive use of a prohibited drug.

           (a)the disability relates to is the person's addiction to a prohibited drug, and

           (b)the person is actually addicted to a prohibited drug at the time of the discrimination;

Comment:   In its current form the Bill would allow discrimination against a person with, for example, liver disease caused by infection that resulted from injecting drug use, or a back injury that occurred while affected by a "prohibited drug" because of the wording of (2)(a).   The attempt to avoid any suggestion that addiction is, in and of itself, a disability results in the amendments being much broader than appears to be the intent.  We understand the intent to be the protection of employers against a finding of unlawful discrimination if the alleged   discrimination was less favourable treatment because the complainant was addicted to a prohibited drug.

Further the Bill does not limit the exemption to discrimination based on current actual use, but simply current addiction.   Given the likelihood that a party to litigation could find a medical expert who would say that addiction is a life-long condition the apparent attempt in (2)(b) to limit the employer defence to current use at the time would be ineffective.  The term "actually addicted … at the time" has no effect if medical experts give evidence that a person remains addicted long after they discontinue addictive use of a substance.  People who are alcoholics remain addicted even when they are sober for years.   If alcohol was a prohibited drug this would allow the employer of a person who is a sober alcoholic to discriminate against the person in employment.

           (3) Nothing in this section makes it lawful to discriminate against a person on the ground of disability if the disability relates to the person having hepatitis C, HIV infection, or any other medical condition relating to or resulting from drug use.

 
Comment:   This change to the proposed Greens' amendment further ensures that discrimination on the basis of a resulting disability, such as loss of liver function or a physical injury caused by or that first occurred when the person was under the influence of a drug, would remain unlawful.

         (4)            Subsection (3) has effect despite section 49P.

Comment: Greens' amendment

           (3 5)           In this section:

prohibited drug means a prohibited drug within the meaning of the Drug Misuse and Trafficking Acct 1985, but does not include:

           (a)methadone or buprenorphine, or

           (b)any other drug that is declared by the regulations not to be a prohibited drug for the purposes of this section.

49PA           Persons addicted to prohibited drugs

           (1) This section applies to the provisions of Division 2 (Discrimination in work), other than sections 49H, 49I and 49J.

           (2) Nothing in those provisions renders unlawful discrimination against a person on the ground of disability if:

           (a)the disability relates to is the person's addiction to a prohibited drug, and

Comment:   In its current form the Bill would allow discrimination against a person with, for example, liver disease caused by infection that resulted from injecting drug use, or a back injury that occurred while affected by a "prohibited drug".  The attempt to avoid any suggestion that addiction is, in and of itself, a disability results in the amendments being much broader than appears to be the intent.   We understand the intent to be the protection of employers against a finding of unlawful discrimination if the alleged   discrimination was less favourable treatment because the complainant was addicted to a prohibited drug.

           (b)the person is actually addicted to a prohibited drug at the time of the discrimination;

           (b)the discrimination is based on actual and current addictive use of a prohibited drug.

Comment:  In its current form theBill does not require current actual use, but simply current addiction.  Given the likelihood that a party to litigation could find a medical expert who would say that addiction is a life-long condition the apparent attempt in (b) to limit the employer defence to current use at the time would be ineffective.   The term "actually addicted … at the time" has no effect if medical experts give evidence that a person remains addicted long after they discontinue addictive use of a substance.   People who are alcoholics remain addicted even when they are sober for years.  If alcohol was a prohibited drug this would allow the employer of a person who is a sober alcoholic to discriminate against the person in employment.

           (3) Nothing in this section makes it lawful to discriminate against a person on the ground of disability if the disability relates to the person having hepatitis C, HIV infection, or any other medical condition relating to or resulting from drug use.

Comment:   This change to the proposed Greens' amendment further ensures that discrimination on the basis of a resulting disability, such as loss of liver function or a physical injury caused by or that first occurred when the person was under the influence of a drug, would remain unlawful.

           (4)           Subsection (3) has effect despite section 49P.

Comment: Greens' amendment

           (3 5)           In this section:

prohibited drug means a prohibited drug within the meaning of the Drug Misuse and Trafficking Acct 1985, but does not include:

           (a)methadone or buprenorphine, or

           (b)any other drug that is declared by the regulations not to be a prohibited drug for the purposes of this section.

49PA           Persons addicted to prohibited drugs

           (1) This section applies to the provisions of Division 2 (Discrimination in work), other than sections 49H, 49I and 49J.

           (2) Nothing in those provisions renders unlawful discrimination against a person on the ground of disability if:

           (a)the disability relates to the person's addiction to a prohibited drug, where "relates to" means "is or a symptom of an addiction to a prohibited drug"; and

Comment:   In its current form the Bill would allow discrimination against a person with, for example, liver disease caused by infection that resulted from injecting drug use, or a back injury that occurred while affected by a "prohibited drug".  The attempt to avoid any suggestion that addiction is, in and of itself, a disability results in the amendments being much broader than appears to be the intent.   We understand the intent to be the protection of employers against a finding of unlawful discrimination if the alleged discrimination was less favourable treatment because the complainant was addicted to a prohibited drug.  The word "symptom" has a clear meaning being "a sign or indication of something" or "a phenomenon which arises from and accompanies a particular disease or disorder and serves as an indication of it" (the Macquarie Concise Dictionary, 3rd edition).  It is the latter use of the word that is preferred but either serves to exclude behaviour or actions that the general public may consider are often linked to drug use but which are prejudicially based and not indicative of addictive drug use.

           (b)the person is actually addicted to a prohibited drug at the time of the discrimination;

           (b)the discrimination is based on actual and current addictive use of a prohibited drug.

Comment:  In its current form the Bill does not require current actual use, but simply current addiction.  Given the likelihood that a party to litigation could find a medical expert who would say that addiction is a life-long condition the apparent attempt in (b) to limit the employer defence to current use at the time would be ineffective.   The term "actually addicted … at the time" has no effect if medical experts give evidence that a person remains addicted long after they discontinue addictive use of a substance.   People who are alcoholics remain addicted even when they are sober for years.  If alcohol was a prohibited drug this would allow the employer of a person who is a sober alcoholic to discriminate against the person in employment.

 

           (3) Nothing in this section makes it lawful to discriminate against a person on the ground of disability if the disability relates to the person having hepatitis C, HIV infection, or any other medical condition relating to or resulting from drug use.

 

Comment:   This change to the proposed Greens' amendment further ensures that discrimination on the basis of a resulting disability, such as loss of liver function or a physical injury caused by or that first occurred when the person was under the influence of a drug, would remain unlawful.

 

           (4)           Subsection (3) has effect despite section 49P.

 

Comment: Greens' amendment

 

           (3 5)           In this section:

 

prohibited drug means a prohibited drug within the meaning of the Drug Misuse and Trafficking Acct 1985, but does not include:

 

           (a)methadone or buprenorphine, or

 

           (b)any other drug that is declared by the regulations not to be a prohibited drug for the purposes of this section.

 

 

49PA           Persons addicted to prohibited drugs

 

           (1) This section applies to the provisions of Division 2 (Discrimination in work), other than sections 49H, 49I and 49J.

 

           (2) Nothing in those provisions renders unlawful discrimination against a person on the ground of disability if:

 

           (a)the disability relates to the person's addiction to a prohibited drug; and

 

           (b)the person is actually addicted to a prohibited drug at the time of the discrimination; and

 

           (b)the discrimination is based on actual and current addictive use of a prohibited drug.

 

Comment:  In its current form theBill does not require current actual use, but simply current addiction.  Given the likelihood that a party to litigation could find a medical expert who would say that addiction is a life-long condition the apparent attempt in (b) to limit the employer defence to current use at the time would be ineffective.   The term "actually addicted … at the time" has no effect if medical experts give evidence that a person remains addicted long after they discontinue addictive use of a substance.   People who are alcoholics remain addicted even when they are sober for years.  If alcohol was a prohibited drug this would allow the employer of a person who is a sober alcoholic to discriminate against the person in employment.

 

           (3) Nothing in this section makes it lawful to discriminate against a person on the ground of disability if the disability relates to the person having hepatitis C, HIV infection, or any other medical condition relating to or resulting from drug use.

 

Comment:   In its current form (2)(a) of the Bill would allow discrimination against a person with, for example, liver disease caused by infection that resulted from injecting drug use, or a back injury that occurred while affected by a "prohibited drug".  The attempt to avoid any suggestion that addiction is, in and of itself, a disability results in the amendments being much broader than appears to be the intent.   We understand the intent to be the protection of employers against a finding of unlawful discrimination if the alleged discrimination was less favourable treatment because the complainant was addicted to a prohibited drug.  By changing the proposed Greens' amendment to include "or resulting from" means that arguably this problem is avoided.  However, there is some concern that to do so would allow "any other medical condition" to be interpreted narrowly to only mean medical conditions of a similar sort to Hepatitis C or HIV, perhaps implying the limit being infectious diseases resulting from drug use.  This narrow  interpretation may be available on the basis of the latin interpretive maxim: ejusdem generis: "where general words follow particular words the general words will often be construed as being limited to the same kind as the particular words" (Butterworths Concise Australian Legal Dictionary).  To avoid this problem it seems that the proposed (3) would need to include a condition that fits within each of the categories covered by the definition of disability in section 4.

 

           (4)           Subsection (3) has effect despite section 49P.

 

Comment: Greens' amendment

 

           (3 5)           In this section:

 

prohibited drug means a prohibited drug within the meaning of the Drug Misuse and Trafficking Acct 1985, but does not include:

 

           (a)methadone or buprenorphine, or

 

           (b)any other drug that is declared by the regulations not to be a prohibited drug for the purposes of this section.

 

Robyn Banks
Secretary
Australian Lawyers for Human Rights