Proposal to exclude people with dependence on drugs
or alcohol from the NSW Anti-Discrimination Act
We understand that the NSW Government is in the process of preparing its response to the NSW Law Reform Commissions Review of the Anti-Discrimination Act, and is proposing to include in that response submissions with respect to this issue.
further understand that this proposal has arisen out of the debate
arising from Justice Bransons decision in Marsden v HREOC &
Coffs Harbour and District Ex-Servicemen and Womens Memorial Club
You would be aware that, 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 Commissioners reasoning which had led him to the tentative view . . . . that the applicants opioid dependency could not constitute a disability within the meaning of the DDA (Disability Discrimination Act).
Her Honour 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 Honours reasons open the way for a finding that opioid dependence constitutes a disability under the DDA, no such finding has yet been made.
ALHR wishes to make the following points which might be of assistance
in your consideration of whether a legislative response is appropriate.
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 Australias 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.
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.
We understand that the Federal Attorney General is awaiting a decision in the current legal proceedings. 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 in the proceedings. An amendment may be unnecessary in light of the terms of the decision, or may be considered inappropriate on policy grounds.
In any event, we strongly submit that for policy and constitutional reasons,
not unless and until amendments to the Federal Act are made should amendments
to the same effect be considered in NSW.
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 Australia, and NSW, has given legislative effect, states:
This page last updated 4th May 2004