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Editors --- "DownUnderAllOver" [2003] AltLawJl 95; (2003) 28(6) Alternative Law Journal 308

A regular column of developments around the country

Federal Developments

Discrimination on the ground of 'drug addiction'

The Howard Government has recently announced that it proposes to amend the Disability Discrimination Act 1992 (Cth) (DDA) to permit discrimination on the ground of 'drug addiction'. This amendment should be opposed for three key reasons.

1. Permitting such discrimination is unwarranted and unnecessary

The current interpretation of 'disability' to include 'drug addiction' as a prohibited ground of discrimination does not vest a person with a drug addiction with any more rights or protections than those afforded to a person without an addiction; it merely ensures that people with a drug addiction are protected from discriminatory behaviours that are unwarranted or unnecessary. It also ensures that people with a drug addiction can compete on a rational basis in the market for employment, goods, ser­ vices, accommodation and the like.

It is important to differentiate between a 'valid justification' for discriminatory treatment and discriminatory treatment that is based on stereotypes and prejudices. Just as it would be unlawful to dismiss an Aboriginal employee on the basis of their Aboriginality but not to dismiss that person on the basis of serious misconduct, so too it should be unlawful to dismiss or discriminate against a person with a drug addiction on the basis of that addiction, but legitimate to dismiss for misconduct. As the DDA already stands, it is not unlawful to discriminate against a person on the ground of drug addiction if, by reason of that addiction, the person is unable to carry out the inherent requirements of the job.

2. Permitting such discrimination is contrary to international human rights law

The norm of non-discrimination is entrenched in international human rights law. The norm is intended to protect individuals and groups, particularly marginalised or disadvantaged individuals and groups, from unfair or unjust treatment. Its very purpose is to set a minimum standard for the treatment of people; a purpose which is undermined if government legislates such that this standard does not apply to certain classes of people.

The obligation of the Australian Government to guarantee equal and effective protection against discrimination is set out in article 26 of the Inter­ national Covenant on Civil and Political Rights ('ICCPR'). According to both the United Nations Human Rights Committee and the United Nations Working Group on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, this article prohibits discrimination on the ground of 'disability', including 'drug addiction'.

The ICCPR entered into force in Australia on 13 August 1980. The pro­ posed amendment of the DDA would constitute a direct violation of Australia's implementation and protection obligations under international human rights law.

3. Permitting such discrimination is likely to perpetuate drug use and weaken our community

There are clear associations between poverty, mental illness, marginalisation, low self-esteem, social isolation and drug addiction. Discrimination is likely to perpetuate these associations. As St Mary's House of Welcome, a welfare service in Fitzroy, Victoria, reports:

The effect of discrimination can be detrimental to health and well-being, result in further financial hardship, and impact negatively on ability to cope.

Similarly, Jesuit Social Services recognises that:

Discrimination . .. can result in significant psychological deterioration as well as material deprivation of the recipient. Indeed, consistent discrimination ... results in deepening of identification with the marginalised condition so as to make negotiation through issues more difficult.

Discrimination on the ground of drug addiction is also likely to have a deleterious impact on the families and dependents of people with drug addictions. The Howard Government's proposal to permit discrimination on the ground of drug addiction could, for example, result in the lawful refusal of accommodation not only to a drug user but to their children. In many cases, it will be the spouses and children of people with drug addictions who bear the brunt of discrimination and the associated loss of income or a home.

It is imperative that anti-discrimination legislation continues to protect people with disabilities, including people with drug addictions.

Philip Lynch

Northern Territory

All change at the top

Significant ceremonial occasions have been the order of the day since the last edition of the AltLJ, with members of the NT community and legal profession bidding farewell to a long serving Chief Justice and welcoming a new Administrator.

Chief Justice Brian Martin retired on 31 October 2003 after a decade on the bench of the NT Supreme Court. Ceremonial sittings in Darwin and Alice Springs reflected on the judge's achievements, highlighting his significant work to preserve the independence of the judiciary during his tenure.

His replacement, South Australian Justice Brian Ross Martin, takes up his appointment in January 2004. Justice Martin has been a South Australian Supreme Court Judge since 1999 and recently presided over the infamous Snowtown 'bodies in the barrels' case.

The eighteenth Administrator for the Northern Territory, Ted Egan AM, was sworn in by Governor-General Michael Jeffrey on 18 November 2003 at Parliament House in Darwin.

Ted Egan is popularly described as a 'true Territorian' and a 'bush icon', having lived and worked around the Territory since 1949. An author, entertainer and historian Ted Egan has writ­ ten nine books and produced 26 albums of songs. He replaces John Anictomatis OA who retired after three years in the post. Ironically, Egan -a committed republican-was required to swear the standard oath of allegiance to the Queen.

Samantha Willcox


Dangerous law for dangerous prisoners?

The Dangerous Prisoners (Sexual Offenders) Act 2003 was enacted on 6 June, but has recently grabbed headlines as its legal validity and effect has been tested. To a cynic, the Act is an artful attempt to circumvent the principles in Kable s case. To the government, the Act is a necessary extra safeguard to protect the community from violent or paedophilic sex crimes.

In criminal law, the notion of 'no punishment without a crime', is meant to be as fundamental as the 'golden thread' of 'innocent until proven guilty beyond reasonable doubt'. Yet the Act enables the A-G to petition a Supreme Court judge to order the continuing, post-sentence detention of 'serious sex offenders', within the final six months of their imprisonment. Those caught are those serving time for an offence 'of a sexual nature' involving children or 'violence' (which includes 'intimidation [or] threats').

This legislation is unique in current Australian law, but inspired by the Community Protection Act 1994 (NSW). That Act was invalidated in Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51 on the rather indirect ground that it created the perception that state courts were not separate from the state executive, to an extent incompatible with the state court exercising Chapter III judicial power under the federal Constitution. The NSW Act failed partly because it was too honest: it explicitly only applied to Mr Kable. Besides being ad hominem, it also did not extend sufficient safeguards to be seen as anything but a bare-faced attempt by the executive to decide whether Kable would ever see the light of day.

The Queensland Act is somewhat different. It can be applied to all 'serious sex offenders' even if its first target was always to be a Mr Fardon. And it gives the judge some discretion. The A-G must convince the court that 'there are reasonable grounds for believing the prisoner is a serious danger . .. of committing a serious sexual offence if released'. After an interim hearing, the court may order a 'risk assessment' by two court-appointed psychiatrists, then a final hearing. Detention at final hearing is subject to annual re-hearings. Psychologists admit previous behaviour is the best predictor of future offending, but believe overall that predicting future 'dangerousness' is impossible.

Fardon unsuccessfully challenged the Act's constitutionality before the Court of Appeal ([2003) QCA 416), a matter the Prisoners Legal Service is appealing to the High Court. Of the various judges so far involved, two female judges have been most critical of the policy underlying the Act. McMurdo P would have invalidated it; Atkinson J suggested 'there [must be] a better way of dealing with people who have a continuing problem rather than keeping them in prison for the rest of their lives ... '

Fardon has been described as a 'model prisoner'. But he is no angel. He has served 14 years for rape, sodomy and harmful assault, offences committed just 20 days after his release for raping a 12 year old. All this on top of a sexual offence in NSW. White J ordered his continuing detention, unsatisfied that supervision in the community would alleviate the risk of reoffending. Two other prisoners, however, have not been detained because the Crown failed to give them time to mount a defence!

The Act is a lawyers' picnic and a moral conundrum. It is abhorrent to the rule of law. Taken seriously, doctors/ priests should be forced to report people at risk of committing such crimes, and courts empowered to lock them up preventively. It is also unclear what safe­ guards will ensure the A-G's decisions to seek detention are made rationally amongst the prison population, and not simply as ad hoc reactions to media-generated fear of crime or particular offenders.

Graeme Orr


It's not easy being green

Tasmania is currently hosting Australia's highest and most sophisticated anti­ logging tree-sit protest. Activists from the Wilderness Society and Greenpeace are perched 65 metres above the forest floor in one of the Styx Valley's tallest trees. The area has been approved for logging by Tasmanian timber giant Gunns Ltd sometime next year.

Protesters want the area made exempt from logging. They maintain that their protest is not illegal, as the area is a state forest, and the public has a right to be there. Their actions will only be classed as trespass if police (acting on behalf of Forestry Tasmania, who manages the forest) ask activists to leave.

Meanwhile, Tasmania's most famous treesitter, Hector the Protector, was turning himself into police for fail­ ing to pay a $5000 fine. The fine was imposed after Hector perched in a tree for 12 days in 1998 during a protest against old-growth logging. He was charged with interfering with the operation of a vehicle when an excavator was required to deviate around his tree. Hector refused to pay the fine, arguing that the law under which he was fined had since been repealed. Attor­ ney-General Judy Jackson refused to act to prevent Hector's imprisonment, even though she herself described the law as 'draconian and intimidatory' But activists have raised the fine and Hector wasted no time in returning to Styx forest!

In an appalling case of bad timing, the same day Hector was turning him­ self in, Deputy Premier Paul Lennon announced that the government would seek a review of the state's environ­ mental guidelines for pulp mills. He said that although no specific proposal had yet been made, the major advances in pulp mill technology meant that there was considerable business potential for a new mill. In a move destined to enrage conservationists, he also commented that Gunns Ltd would have the front-running on any new mill.

Trees are not the only aspect of the environment causing conflict between the government, businesses and the community. Residents in the Sorell area have been lobbying to stop oyster farming in Southern Pitt Water. In November the Sorell Council voted to fund Supreme Court action appealing the state government's decision to allow the expansion of oyster leases in the area. The decision was particularly controversial because marine farming approvals do not fall within the Lands Use Planning and Approvals Act, so there was no provision for public comment during the assessment process.

Tasmania and refugees

A recent Tasmanian caller to JJJ Radio expressed serious concerns that if a boat full of refugees arrived a bit further south, the federal government might pass legislation deeming Tasmania no longer part of Australia. Residents are divided over whether this should be encouraged.

Samantha Hardy


Charter of rights for homeless people

The Victorian government, through the Department of Human Services, has announced that it is developing a 'Charter of Rights' for people who are homeless or at risk of homelessness. It is also creating a mechanism to hear and resolve complaints from people whose rights are yiolated.

The government wants to hear your views about the rights that should be contained in a Charter and the best way to protect them. This is your chance to have a say about important issues such as:

• What rights should people have? For example:

Should people have a right to adequate housing?

Should people without adequate housing have a right to access government-funded crisis accommodation and support services?

Should people in crisis accommodation or using support ser­ vices have a right to be treated with dignity and respect?

• How should homeless people's rights be promoted and protected?

• Who should be responsible for promoting and protecting homeless people's rights?

• Who should hear complaints from homeless people whose rights are violated?

• What remedies should be available to homeless people whose rights are violated?

The government has hired Thomson Goodall Associates to listen to what you have to say about these issues and to report your answers to them. To find out more, or to have your say, contact Thomson Goodall Associates on 9592 5868 or email

Tim McCoy Award

The Tim McCoy Award for 2003 has been awarded to Springvale Monash Legal Service.

Springvale Monash Legal Service is a community aid and advice organisation aiming to empower and support members of our community to use the law to protect and advance their rights and broaden their awareness of their responsibilities. Springvale Monash Legal Service also aims to develop the confidence, skills and ethics of law students through clinical legal education in a community environment.

The Award was made to Springvale Monash Legal Service for its Community Development Program. This program conducts community development and community legal education projects in areas including child abuse, mental health, corrections and drugs.

The Tim McCoy Award is made annually to an individual or organisation for a special contribution to the community, social justice and legal aid. The Award is in memory of Tim McCoy, a community worker, lawyer and political activist, who died on 9 November 1987.

Past winners of the Tim McCoy Award include Fitzroy Legal Service, Western Suburbs Legal Service, the Alternative Law Journal, Coburg Legal Service, Amanda George from Brimbank Community Legal Centre and PILCH.

Philip Lynch

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