THE LAW GONE MAD - AGAIN

If the law is frequently an ass then anti-discrimination law is an
ass's ass. A whole new area of jurisdiction has been invented in the
name of some concept of human rights which has created a thriving
industry of stupid intervention in private and community affairs. The
latest manifestation of this is the decision last week by Judge
Catherine Branson of the Federal Court that drug addiction is a
disability which attracts the protection of disability discrimination
provisions of the law.

The case related to the treatment of a member by a licensed club.
Wayne Edward Marsden, a heroin addict who was on methadone treatment,
had given cause for concern to the club, the Coffs Harbour
Ex-Services club, because of his behaviour. The club remonstrated
with him but agreed to continue admitting him if he refrained from
drinking alcohol while on the premises. Subsequently he was observed
drinking, and he got angry after losing on the pokies and had a row
with club officials. He refused to attend a committee hearing on the
issue and the club expelled him.

Now this seems a fairly normal day in the life of a club. The
unhappily defunct journalists' club treated expulsions or suspensions
of members for misbehaviour as standard, and few regulars ever served
a penalty. Undoubtedly some of them were drug addicts - alcohol and
nicotine being the usual substances of addiction. But no-one was
silly enough to complain. However, in this case Marsden claimed he
had been discriminated against and went to the Human Rights and Equal
Opportunity Commission. Instead of telling him to rack off, the
commission set up a formal inquiry, but even that body, showing
unusual commonsense, found it difficult to decide that he had been
discriminated against.

So, with the support of the NSW Legal Aid Commission (yes, I am not
joking) this trivial complaint was appealed to the Federal Court,
where the full weight and dignity (such as it is) of the law was
brought to bear. After due deliberation, Branson decided that under
the Commonwealth Disability Discrimination Act, Marsden did have a
disability, namely opioid (methadone) dependency and that he had been
discriminated against on that ground. She found the applicant had
been treated "less favourably" than any other trouble maker because
he was suffering from this disability. In fact, the HREOC inquiry
commissioner did not even take into evidence minutes of the club
which would have made possible a comparison of the applicant's
treatment with that of other, non-addicted, miscreants.

Despite this lack of evidence it was decided that "disability" under
the act did include addiction, as well as treatment for addiction,
and because the club had thought it was not a good idea for an addict
to drink in the light of his misbehaviour, they nevertheless expelled
him. Maybe methadone treatment has nothing to do with exacerbating
the effects of alcohol. The club made a layman's judgment that it
probably did, and they may well have been wrong. However, it simply
does not follow that he was discriminated against because of a
misdiagnosis of the causes of his misbehaviour. Is the learned judge
saying that he would not have been disciplined if he had not been an
addict, regardless of his behaviour? Or is she saying that he should
have been given special and more lenient treatment, that is positive
discrimination, because he was an addict, unemployed on account of
his addiction?

Such are the absurdities of anti-discrimination law. Most sensible
people would agree it is unfair to discriminate in such a matter
against a person solely because of his addiction. And there is every
reason to believe the club was perfectly happy to allow him entry to
the club so long as he behaved himself.

The decision that a disability for purposes of the act includes
addiction to a drug of dependence is an alarming one. Does it mean
that a known alcoholic should be given specially favourable treatment
in a pub or club when displaying signs of drunkenness, and so escape
the law requiring refusal of service? Does it mean that if the
barmaid knows the customer is an alcoholic there is a higher standard
of proof of drunkenness than that required of a casual drinker? Is it
discriminatory and therefore punishable under the act if a club
refuses service to an alcoholic before he gets drunk, on the basis of
known past behaviour? And if, in fear of this ruling, a club serves
an alcoholic enough to make him drunk, have they any defence against
prosecution for it? Unlikely.

Moreover, this definition of disability extends much further. Its
implications for employers are alarming. Should an airline pilot who
has become a heroin addict be excluded from employment as a pilot? Or
one who is on methadone treatment for heroin addiction? According to
the Branson Rule, you would have to wait until he crashed a plane.
Should drunken lawyers be excluded from practice, or would this be
disability discrimination?

This decision is typical of the "heads I win, tails you lose"
approach of anti-discrimination law. My favourite example in another
area relates to pregnancy discrimination. Most sensible people agree
that pregnancy is not a disability and pregnant women should not be
discriminated against in employment. But what about jobs in which the
health of the foetus might be affected - for example, in a lead
battery factory? No, say the lawyers, you may not discriminate
against a pregnant woman even if the work is dangerous to her unborn
child. As I once asked one of the doyennes of anti-discrimination
law, surely then the woman would have no case for compensation
against the employer for any damage? On the contrary, she said, the
mother would be entitled to compensation even though she had insisted
on doing the dangerous job. Catch 22.

This is not a rational approach to human rights and equal
opportunity, it is madness. But profitable madness for the lawyers.
We must hope this decision will be appealed with the support of the
Registered Clubs Association. How high up the judicial food chain
does this madness run? And how long will the Legal Aid Commission
squander taxpayers' money like this?