Discrimination against drug users

The social stigma attached to illicit drug use means that people who are identified as drug users can experience discriminatory treatment such as denial of services.

Is drug addiction a disability?

Under both NSW and federal anti-discrimination laws, it is unlawful to discriminate against a person on the grounds of disability. Over a number of years, it had been frequently suggested that drug dependence was a form of disability, and therefore covered by the discrimination laws, but there was no case deciding the point.

Drug addiction and federal law

In Marsden v HREOC and Coffs Harbour RSL [2000] FCA 1619, a man was refused alcohol service at a club, and later expelled from club membership, because he was on a methadone program. He made a complaint of disability discrimination to the Human Rights and Equal Opportunity Commission (HREOC). The commission conducted an inquiry and concluded there had been no disability discrimination. Marsden appealed to the Federal Court, which decided that drug addiction could be classed as a disability for the purposes of the relevant federal legislation (the Disability Discrimination Act 1992 (Cth).

Amendments to NSW law

In response to the Marsden decision, the NSW Government amended the NSW law (the Anti-Discrimination Act 1977) to legally allow discrimination against a person on the grounds of addiction to a prohibited drug - but only in employment.
Discrimination remains unlawful in other fields, including:

  • providing goods and services
  • education
  • accommodation.

The NSW Act does not allow discrimination:

  • against users of methadone or buprenorphine
  • on the grounds of being hepatitis C or HIV positive, or having any other medical condition.

So, if a person is refused a job because they are on a methadone or buprenorphine program or are seropositive, they could make a claim for disability discrimination under the NSW Act.