Drugs, discrimination and disability

Whether addiction to prohibited drugs should be classified as a disability for the purposes of disability discrimination is a controversial question in Australia. The leading Australian case of Marsden v Human Rights Equal Opportunity Commission & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd (HREOC, No H98/51, 30 August 1999); [2000] FCA 1619 concerned a disability discrimination complaint brought by Mr Marsden as a result of his treatment by the club. The case was brought as a public interest test case by the New South Wales Legal Aid Commission. Mr Marsden was on a methadone program at the time. The reasoning of the decision at the Federal Court opened the way for a finding that dependence on illegal drugs constituted a disability under disability discrimination legislation. The media reaction to the court's decision led to State and federal governments proposing legislation limiting legal protection from discrimination for people addicted to illegal drugs on the basis of their drug use. While the proposed federal legislation lapsed after objections from a coalition of medical, legal and other advocacy groups, the New South Wales legislation still provides that, in employment matters, it is not unlawful to discriminate against a person on the ground of disability if the disability relates to the person's addiction to a prohibited drug and the person is actually addicted to a prohibited drug at the time of the discrimination. The article details the sequence of events in the Marsden case, reflects on the role of public interest litigation in achieving social justice outcomes and suggests that Australia's recent ratification of the Convention on the Rights of Persons with Disabilities on 17 July 2008 should encourage legislators to review legislation which may have a discriminatory effect on people suffering from addictions.