Pubdate: Sun, 26 Nov 2000
Source: Sunday Telegraph (Australia)
Copyright: News Limited 2000
Contact:  2 Holt Street Surry Hills, NSW, 2010
Fax: (02) 9288-2300
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Website: http://www.news.com.au/
Author: Piers Akerman, FREE LICENCE FOR BORE AT THE BAR

SOME people are pests drunk or sober, but not many get the Federal Court to 
rule that their persistent obnoxious behaviour is in order. Coffs Harbour 
club pest Wayne Marsden appears to be the exception.

In a major lurch in the wrong direction, a Federal Court judge has ruled 
that Marsden's record for boorish behaviour be ignored and, most curiously, 
that his addiction or drug dependency (which doesn't affect his tolerance 
for alcohol) be recognised as a legitimate disability.

Justice Catherine Branson's reasoning is on the Internet. It's worth 
reading, because she appears to have taken a large leap into a sea of 
illogicality.

Justice Branson heard an appeal by Marsden against the Human Rights and 
Equal Opportunity Commission's support for the Coffs Harbour 
Ex-Servicemen's and Women's Memorial Club, which had refused him service 
after repeated complaints about his behaviour.

But as there doesn't appear to be any evidence that the club blamed 
Marsden's disturbing behaviour on his addiction to methadone, why has 
Justice Branson permitted addiction to be dragged into the equation?

Marsden complained to the commission that the club breached the Disability 
Discrimination Act 1992 when it refused to serve him alcohol, called him 
before its disciplinary committee and removed him from the premises over 
what he termed a "minor" incident.

After the commission dismissed his complaints, Marsden appealed to the 
Federal Court under the Administrative Decisions (Judicial Review) Act.

The court heard that Marsden, a former heroin addict who has been addicted 
to methadone for some years, claimed he was the victim of a series of 
discriminatory acts by club staff from December, 1994, and was expelled by 
the judicial committee of the club in November, 1996.

Marsden believes his problems began when a syringe was found in a bag 
attached to his bicycle outside the club in December, 1994, and that staff 
may have concluded he used illegal drugs.

In January, 1995, when he and a friend, both seemingly intoxicated, were 
asked to leave the club, Marsden said he was addicted to opiates and on a 
methadone program.

He was told that being in the club in "an affected condition" was 
unacceptable, but he said it was a very hot day and he was nauseated and 
fatigued after walking to the club, not intoxicated.

In June, 1996, he was reported as being "unsteady on his feet ... slurring 
his speech and appeared severely affected by something".

Marsden said he "was under the effect of methadone" and was asked to leave 
because of his condition. He did so, although he tried to re-enter the club 
shortly afterwards and was prevented from doing so.

The club wrote to him, telling him there had been repeated incidents of 
unsatisfactory behaviour and asking him why his membership should not be 
suspended.

When Marsden appeared, he explained he was on methadone but, in any case, 
drank very little.

His membership card, which had been confiscated when he tried to re-enter 
the club, was returned to him with a verbal warning and the recommendation 
that he not drink alcohol while on medication and on club premises.

Marsden was advised in August, 1996 that his club privileges had been 
reinstated, but two months later it was reported he had drunk a full glass 
of Bailey's Irish Cream.

The club's chief executive then spoke to him and gave him a letter 
reminding him that he had been warned about drinking alcohol while on 
medication and letting him know he wouldn't be sold alcohol while on 
medication.

The club also explained that it had a responsibility to patrons regarding 
service of alcohol and it was vulnerable should they become intoxicated.

So far, so good, as most sensible, sane people might think.

But two months later, Marsden caused a disturbance after losing on the 
poker machines. It was reported that he was "affected by either alcohol or 
a substance" and that he was "unco-ordinated".

He was asked to re-appear before the club's judiciary committee in November 
to discuss reports of "behaviour unbecoming of a member" and "unacceptable 
behaviour and attitude towards staff members", and show why he should not 
be suspended.

Marsden didn't attend. He later claimed he believed the club and its 
officials were discriminating against him and that, in effect, he would not 
receive a fair hearing.

The committee resolved that he should be expelled.

An HREOC commissioner rejected Marsden's appeal on the grounds that he 
appeared to be intoxicated by "something", and surely that is the whole point.

If "something" affects your behaviour and makes you appear drunk, then you 
either shouldn't take that "something" or you shouldn't be around people 
who object to your behaviour.

The commissioner found there was "simply no acceptable evidence" that the 
decision to bar Marsden was discriminatory on the ground that he was given 
"less favourable" treatment "because of his opiod (sic) dependence and/or 
the fact that he suffered a chronic hepatitis infection".

"He was alleged to have been intoxicated and to have exhibited unacceptable 
conduct.

"He was subjected to the usual process the club adopted in like cases. He 
was given the opportunity to show cause, which he rejected.

"There can be no basis for suggesting that in expelling him in these 
circumstances, the club treated him less favourably than any other member."

As evidence was given that consumption of alcohol by a person taking 
methadone does not make a person exhibit signs of intoxication, why did 
Justice Branson decide that Marsden's use of the drug constituted a 
"disability"?

In reality, Marsden's disability was his inability to hold his liquor and 
act in a civilised fashion when losing at the pokies.

And he was represented by Legal Aid lawyers, paid for by you and me.

Justice Branson's ruling should be overturned before every obnoxious drunk 
is assured of a court-ordered perch at the club bar.
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MAP posted-by: Keith Brilhart