Dear Attorney

Proposal to exclude people with dependence on drugs or alcohol from the NSW Anti-Discrimination Act

Australian Lawyers for Human Rights is an association of lawyers with expertise in human rights law, its principles and practice. ALHR educates lawyers in human rights practice, and offers independent expert views on contemporary human rights issues.

Issue
One such issue is the proposal to amend Federal and State anti-discrimination law to prevent drug dependence from being defined as a disability.

We understand that the NSW Government is in the process of preparing its response to the NSW Law Reform Commission’s Review of the Anti-Discrimination Act, and is proposing to include in that response submissions with respect to this issue.

We further understand that this proposal has arisen out of the ‘debate’ arising from Justice Branson’s decision in Marsden v HREOC & Coffs Harbour and District Ex-Servicemen and Women’s Memorial Club Limited.

Background
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.

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 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 (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 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.

ALHR wishes to make the following points which might be of assistance in your consideration of whether a legislative response is appropriate.

Action is inappropriate at this stage
It is premature for the NSW Government to act at this stage. To act before the Federal Government does would both undermine the legislative reforms of this Government in 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.

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.

Limiting the definition of disability is inappropriate at any stage
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.

Support for human rights
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.”

Yours Sincerely

Simon Rice
President
Australian Lawyers for Human Rights

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This page last updated 4th May 2004