Bill to exclude drug addicts from protection of Anti-discrimination Act(NSW)

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Bill to exclude drug addicts from protection of Anti-discrimination Act(NSW)

Persons who are addicted to prohibited drugs will be excluded from being 'persons with a disability' for the purposes of the disability discrimination in work provisions of the Anti-Discrimination Act 1977 (NSW) (the ADA).

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Persons who are addicted to prohibited drugs will be excluded from being 'persons with a disability' for the purposes of the disability discrimination in work provisions of the Anti-Discrimination Act 1977 (NSW)(the ADA).

The Anti-Discrimination Amendment (Drug Addiction) Bill 2001(the Bill),introduced on 28 November 2001, counters the potential impact of the decision of the Federal Court in Marsden v HREOC & Anor (2001) EOC 93-126. In that case the Federal Court held that a drug addiction was a disability for the purposes of the federal Disability Discrimination Act 1992 (DDA).

As the ADA is worded in a similar manner to the DDA, the State Attorney General introduced the Bill to avoid a replication of the Marsden decision at the State level.

Under proposed amendments to the ADA, it will not be unlawful for an employer to discriminate against a person who is currently addicted to a prohibited drug. Discrimination against persons who have been addicted to drugs in the past, or who are currently on methodone or buprenorphine are not excluded, and accordingly could be found to be unlawful in accordance with the decision in the Marsden case.

Extent of exclusion

Under the proposed amendment, it will not be unlawful for an employer to discriminate against a person on the ground of disability if:

    1. the disability relates to the person's addiction to a prohibited drug, and
    2. the person is actually addicted to a prohibited drug at the time of the discrimination.

The term 'prohibited drug' means a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, but does not include methodone or buprenorphine, or any other drug declared by regulation.

The exclusion with respect to discrimination against drug addicts applies to discrimination by:

  • an employer against a job applicant or employee
  • a principal against a commission agent
  • a principal against a contract worker
  • a firm of six or more partners against prospective partners or current partners
  • an employment agency against a person.

The exclusion does not apply to:

  • discrimination by local government counsellors against another member of council
  • discrimination by industrial organisations against prospective members or members
  • discrimination by qualifying bodies against persons seeking an authorisation or qualification to practise a trade, occupation or profession.

The exclusion also does not apply to the areas of goods and services; education; registered clubs, and accommodation. Accordingly, the decision in the Marsden case may be used as a precedent to make discrimination based on drug addiction unlawful in those areas.

 
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