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Wednesday, 3 December 2003
Page: 23541


Mr RUDDOCK (Attorney-General) (9:01 AM) —I move:

That this bill be now read a second time.

This bill, the Disability Discrimination Amendment Bill 2003, contains amendments to the Disability Discrimination Act 1992.

The bill provides that it is not unlawful to discriminate against a person who is addicted to or dependent on illicit drugs.

The bill is prompted by community concerns about the implications of the decision of the Federal Court in Marsden v. Human Rights and Equal Opportunity Commission and Coffs Harbour and District Ex-Servicemen and Women Memorial Club Limited.

That decision suggested that it may be unlawful under the Disability Discrimination Act to discriminate against a person solely on the ground that the person has an addiction to or dependence on a prohibited drug.

The bill addresses the concerns of employers and business operators about this issue.

The New South Wales government has already passed amendments to state antidiscrimination laws, providing that it is not unlawful to discriminate against drug addicts in the workplace.

This bill goes further, clarifying that it is not illegal to discriminate against someone addicted to a prohibited drug, in all areas of discrimination covered by the DDA, such as employment, education, accommodation, sporting activity and club membership.

That will give certainty to all individuals and organisations covered by the DDA.

The government believes that people operating a business or a club should not have to face discrimination claims by drug addicts when trying to keep the work or social environment safe from other people's behaviour.

The general community also has a reasonable expectation that it can be lawfully protected from the harms and risks posed by another person's illicit drug addiction.

However, this bill is not about penalising people with drug problems. Rather, it is directed to ensuring that our disability discrimination laws are not used in an unjustified manner.

It recognises the need to balance the protection of community interests in the area of disability discrimination.

The DDA has a wide definition of `disability', and the bill does not affect the scope of that definition.

The bill merely creates an exemption from prohibited discrimination against a person if the person is addicted to a prohibited drug at the time of the alleged discrimination.

The act already contains several exemptions from unlawful disability discrimination.

In particular, the DDA exempts social security and veterans' payments and services from the prohibitions on disability discrimination, so the proposed amendments will not impact on these entitlements.

Eligibility for the disability support pension and other Centrelink and Veterans' Affairs payments, as set out in the Social Security Act 1991 and the Veterans' Entitlements Act 1986 respectively, is not affected by these amendments.

The government is aware of the review of the DDA that is being undertaken by the Productivity Commission. The approach taken in this bill is consistent with the commission's findings in its draft report.

`Disability' has an extended meaning under the DDA, including a past or future disability, and a belief that a person has a disability (whether or not the person in fact has the disability).

The bill does not apply this extended meaning—it will apply only when the person actually has an addiction at the time of the discrimination.

This means that people who have recovered and maintain their recovery from addiction cannot be discriminated against, and will retain any protections from unlawful discrimination that they presently have under the act.

The government recognises that it is important to ensure that people with drug problems seek and maintain treatment.

The government is committed to the objectives of the National Drug Strategy, ensuring the availability of treatment services to people with drug addictions to reduce drug use and prevent drug-related harm to individuals, their families and the broader community.

The bill reflects this commitment, as people who are undergoing treatment, or receiving services, to treat addiction to a prohibited drug are protected from discrimination. This ensures that people who are taking responsibility for their addiction cannot be discriminated against.

The protection is not limited to people undergoing a medically supervised (often residential) program, although it certainly covers that.

The provision accepts that drug recovery treatment and services have a wide scope, providing the maximum benefit for people addicted to a prohibited drug.

It does not specify what type of program or services would qualify, so as to not limit the type of treatments or services that can be accessed, and to ensure that people who are attempting to put their lives back on track are not inadvertently left out.

For example, if a person attended an intensive clinic in a major city and returned to their home town, that does not mean they fall outside the scope of the protection when they complete the residential or intensive part of a program.

`Receiving services' is broad enough to cover regular visits to a counsellor, priest or doctor to support their efforts to address the addiction.

The bill defines `prohibited drug' as meaning a drug within the meaning of regulation 5 of the Customs (Prohibited Imports) Regulations 1956.

This list covers drugs that are commonly understood to be `illicit drugs'. By incorporating the list by reference in this bill, the definition in the DDA will be updated automatically with changes in the definition of `prohibited drugs' in the Customs list from time to time.

However, if a person is using a `prohibited' drug lawfully—for example, under a validly issued prescription for that person's use—this kind of use is not included in the exemption, and cannot be discriminated against.

The government also recognises that people with other disabilities that may or may not be drug-related, such as hepatitis C and HIV-AIDS, require protection from stigma and discrimination.

The government is committed to a policy under the national HIV-AIDS and hepatitis C strategies of maintaining DDA protections for people with these conditions, and the bill reflects this priority commitment.

Under the bill, a person who has a drug addiction can still rely on the protection of the DDA in relation to discrimination on other grounds, such as mental illness or other disabilities.

The DDA also presently extends protection from unfair discrimination to people who are associates of a person with a disability, in the areas of discrimination that are covered by the DDA.

An `associate' is defined to include a spouse, a relative, a carer, or a business partner or team-mate of the person with a disability.

The exemption created in the amendment applies only to discrimination against a person with a drug addiction, removing the unlawfulness under the DDA from that kind of discrimination.

It does not affect persons who are associates of a person with a drug addiction—the associate retains any rights they might presently have to protection from unfair discrimination under the act.

I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr McClelland) adjourned.