Drug dependency constitutes a disability

Cases

Drug dependency constitutes a disability

In a discrimination decision unrelated to employment, the Federal Court has determined that drug dependency or addiction may constitute a disability under the Disability Discrimination Act 1992(Cth).

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In a discrimination decision unrelated to employment, the Federal Court has determined that drug dependency or addiction may constitute a disability under the Disability Discrimination Act 1992(Cth). The decision of Branson J in Marsden v Human Rights and Equal Opportunity Commission & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd, [2000] FCA 1619 (15 November 2000), may impinge upon employers who discriminate against employees or prospective employees because of a drug dependency.

Background

This matter came to the attention of the Federal Court by way of an application for review of a Human Rights and Equal Opportunity Commission (HREOC) decision made under the Disability Discrimination Act 1992(DDA). In that decision of 30 August 1999, the Commission dismissed three complaints made against the Coffs Harbour & District Ex-Servicemen & Women's Memorial Club (the Club) by a former member of the club (the applicant).

Central to this matter was the fact that the applicant has been, and is, opioid dependent. He was a regular user of methadone, a synthetic compound used in the management of heroin addiction. The applicant was a member and regular user of the Club's facilities. It was claimed that the applicant was the victim of a series of discriminatory acts that ultimately resulted in his expulsion from the Club. More specifically, the applicant was expelled for drinking alcohol after the Club had on an earlier occasion made his membership conditional on him not drinking whilst on medication and on Club premises. The position taken by the Club was based on the view that drinking would deteriorate the applicant's condition.

The DDAdefines a disability broadly and includes a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour.

In the HREOC proceedings the Inquiry Commissioner found that the decision to expel the applicant from the Club was taken and made in the perceived best interest of the membership. The conclusions reached by the Inquiry Commissioner meant that it was not necessary at first instance to make a finding as to whether the applicant suffered from a disability within the meaning of the DDA. The HREOC Inquiry Commissioner did however, tentatively hold that a person who suffers a 'disorder, illness or disease' of the kind outlined in the definition of 'disability' does not suffer a disability as defined if the appropriate treatment regime gives relief against the consequences of the 'disorder'. The Inquiry Commissioner held this to be the case even though the treatment itself creates a condition of dependence that may be permanent. It was upon this basis that the Inquiry Commissioner tentatively concluded that opioid dependence in these circumstances did not constitute a disability as defined.

To this end proceedings were commenced in the Federal Court, as the applicant sought to have reviewed HREOC's failure to find that opioid dependency to be a disability within the meaning of the DDA.

Consideration

In seeking a review of the HREOC decision, the applicant contended that the Inquiry Commissioner failed to give genuine consideration to whether the applicant was, because of his opioid dependency, treated less favourably by the Club than, in the same or similar circumstances, it would have treated a person who did not have an opioid dependency. That is, that the Inquiry Commissioner failed to apply the definition of "discrimination" contained in s5of the DDA.

Branson J concurred with the applicant that the Inquiry Commissioner had overlooked the fundamental question of whether, because of his opioid dependency, the applicant was treated less favourably than a hypothetical person who was not opioid dependent would have been treated in comparable circumstances. In failing to address this basic question, Branson J held that the Inquiry Commissioner's approach to determining whether the applicant had been discriminated against on the ground of opioid dependency was erroneous. The Inquiry Commissioner's finding that the Club's decision to expel the applicant was a decision responsibly taken in accordance with the Club's Articles of Association and the statutory obligations of the Registered Clubs Act 1976(NSW) did not of itself assist in determining whether the applicant was treated less favourably by the Club than in the same or similar circumstances it would have treated a person who did not have an opioid dependency.

In relation to the claim by the Inquiry Commissioner that a disability does not exist if treatment provides relief against the relevant disorder, Branson J took a contrary view. It was her Honour's view that while disorders can be treated and in some instances the sufferer can lead a normal life, nonetheless the person continues to suffer from the disorder.

Therefore, Branson J upheld the applicant's complaint and found that the HREOC Inquiry Commissioner erred in law through an erroneous understanding of what constitutes discrimination on the ground of disability. The tentative view of the Inquiry Commissioner that opioid dependency did not constitute a disability within the meaning of the DDAwas ordered to be set aside and the matter remitted back to the HREOC for further consideration.

 

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