Govt to change drug dependence disability ruling
Regarding: Disability Discrimination Act
Case: Marsden v HREOC etc..
The government's proposed legislative changes to disallow the classification of drug addiction as a disability raises a number of concerning issues.
John Howard said "It will not be unlawful to discriminate against a person on the basis of addiction to a prohibited drug if the person is actually addicted at the time of the discrimination," and "That is why the Government has decided to change the law to make it absolutely clear that drug addiction is not a disability under the Disability Discrimination Act"
To consider the points of these propsed changes, definitions do have to be considered. Firstly, in medical terms, drug dependence is in fact a mental illnes. It can be defined as a maladaptive pattern of substance use, leading to clinically significant impairment or distress. There are different definitions of drug dependence but they all have a common thread. For example, the Diagnostic and Statistical Manual of Mental Illness uses seven criteria guide the assessment, based on tolerance, withdrawal, substance use used in larger amounts or for longer than intended, desire or unsuccesful efforts to control use, time spent obtaining,using, or recovering from substances and continued usage of substances despite the awareness of a problem caused by the substance.
Secondly, while open to constant reclassification, there is a difference between impairment, handicap and disability; impairment being an abnormality of body structure or function e.g. broken arm or brain lesion, handicap being a reduction in the ability to perform basic tasks or activities e.g. eating, and disability being a disadvantage in fulfilling social roles. In legal terms, a disability as it is defined by the act, is in part "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour" that may occur presently, have previously or in the future or be imputed to a person. In general, however, it is an inability to fulfil a social role in life e.g. as a valued employee or breadwinner, as a consequence of a condition. It may well be argued that a state of drug dependence, as opposed to merely being under the influence, inteferes with a person's ability to act in accordance with their appropriate social role in society. Does drug dependence not constitute a disability?
One point the Prime Minister has failed to clarify, is the fact that just because a person is "addicted" to a substance at the time of the discrimination does not mean the person was under the influence of that substance at the time of discrimination and this is where the Disability Discrimination Act is so important. Presumably, one aspect of anti-discrimination legislation, is to prevent discrimination against those who, despite being able to fulfill the requirements of a role, may be less desirable employees for one reason or another. Ofcourse in the case of the Disability Discrimination Act, this act concerns situations where that undesirable quality is a disability.
Does the current legislation infact allow an impaired drug affected individual to be immune to punitive measures whilst acting in a certain roles? I can't answer this, but it shouldn't allow this ofcourse. It should, however, prevent a disability such as the drug dependence itself, from being a basis upon which an individual is discriminated against. Surely the legislation is designed to protect against this kind of discrimination. If there are adverse affects of the current legislation changes should be not be made but they should not based on a technical legal or medical definitional argument. Rather, the spirit of the legislation should be upheld. The law should be written for the majority to benefit, not against the minority who may choose to exploit the law. The government needs to be careful to assess who is affected by this proposed legislative change.
In the bigger picture, drug dependence is in part a societal issue. The pressures society places on its members may drive them to many forms of dependence including tobacco and alcohol. To weaken legislation and deny natural justice is further penalising those with an already debilitating disorder. Will we find that those with a heavy smoking habit will find themselves able to be discriminated against because of this dependence? This is an extreme example but may indicate the impact of such legislative changes.
If it is true that a society may be judged by the way in which it treats its sick and elderly, the quality of our society is suffering through it's failure to protect those vulnerable members of the society by appropriate legislation. These changes would only serve to further disadvantage a vulnerable segment of society. Apart from the related federal court case, Marsden v HREOC & Coffs Harbour & District Ex-Servicemen and Women's Memorial Club Limited [2000] FCA 1619, it would be interesting to know whom or what prompted such a proposal and who such a change would serve.
Once again, an already marginalised segment of the community is being further disadvantaged through an attempt to weaken their protection against discriminatory behaviour, such behaviour that at a community level only serves to deepen the problem of drug dependence