FEDERAL COURT OF AUSTRALIA

The State of Queensland (Queensland Health) v Che Forest [2008] FCAFC 96

DISCRIMINATION LAW – disability discrimination – respondent suffering psychiatric disability refused entry into health facility and hospital while accompanied by an “assistance animal” – appellant required respondent to obtain prior approval and satisfy it that the respondent’s dogs were trained, safe and hygienic – whether indirect discrimination pursuant to s 6 of the Disability Discrimination Act 1992 (Cth)  – consideration of requirements of s 6 and evidence necessary to meet requirements – consideration of whether requirement or condition imposed was unreasonable.

DISCRIMINATION LAW – disability discrimination – whether discrimination pursuant to s 9 of the Disability Discrimination Act 1992 (Cth) because respondent was accompanied by an assistance animal – consideration of meaning of “trained to assist the aggrieved person to alleviate the effect of the disability” – consideration of whether s 9 requires a finding that the discrimination is “on the ground of the person’s disability” for the purposes of finding unlawful discrimination under ss 23 and 24 of the Disability Discrimination Act 1992 (Cth).

Disability Discrimination Act 1992 (Cth) ss 5, 6, 7, 8, 9, 10, 13, 14, 22, 23, 24, 25, 26, 27, 28, 29, 60, 61, 62, 78

Disability Discrimination Bill 1992 (Cth),Explanatory Memorandum

Australian Iron & Steel Pty Limited v Banovic (1989) 168 CLR 165 cited

Coburn v Human Rights Commission [1994] 3 NZLR 323 cited

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 cited

Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 cited

Forbes v Australian Federal Police (Cth) [2004] FCAFC 95 discussed and followed

Grovenor v Eldridge [2000] FCA 1574 cited

IW v City of Perth (1997) 191 CLR 1 cited

Purvis v New South Wales(2003) 217 CLR 92 discussed and followed

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 cited

THE STATE OF QUEENSLAND (QUEENSLAND HEALTH) v CHE FOREST

QUD 283 OF 2007 AND QUD 287 OF 2007

BLACK CJ, SPENDER AND EMMETT JJ

6 JUNE 2008

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The declarations and orders made on 22 June 2007 and 14 August 2007 be set aside.

3.                  In lieu of those orders there be orders that the proceeding be dismissed and the applicant in the proceeding pay the respondent’s costs of the proceeding.

4.                  The respondent to the appeal pay the appellant’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The declarations and orders made on 22 June 2007 and 14 August 2007 be set aside.

3.                  In lieu of those orders there be orders that the proceeding be dismissed and the applicant in the proceeding pay the respondent’s costs of the proceeding.

4.                  The respondent to the appeal pay the appellant’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BLACK CJ:

1                     These appeals concern the application of the Disability Discrimination Act 1992 (Cth) (the Act) in circumstances where a person with a disability seeks to be accompanied by an assistance dog when accessing medical or dental treatment or related services.

2                     The State of Queensland, which through its agency Queensland Health operates the Cairns Base Hospital and the Smithfield Community Health Centre, appeals against declaratory orders made by a judge of this Court that it unlawfully discriminated against the respondent, Mr Che Forest.  The trial judge found that it did so by refusing to allow him to be accompanied by one or other of his assistance dogs when attending the Cairns Base Hospital in relation to medical treatment and later when attending the Smithfield Community Health Centre for dental treatment.

3                     The trial judge found that there had been indirect discrimination within the meaning of s 6 of the Act.  Her Honour also found that Mr Forest’s dogs were animals trained to assist him to alleviate the effect of a psychiatric disability from which he suffered so that s 9(1)(f) of the Act applied.  She concluded that the State of Queensland had discriminated against Mr Forest, and had engaged in conduct that was unlawful as being in contravention of ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) of the Act.  Her Honour ordered the State of Queensland to pay $5,000 damages in one proceeding and $3,000 in the other.  These appeals are brought from the orders made by her Honour to give effect to her findings. 

4                     The facts and circumstances of the case, the findings of the primary judge, and the issues arising on the appeals, are summarised in the joint judgment of Spender and Emmett JJ.  I adopt what they have said about those matters. 

5                     I agree generally with their Honours that the trial judge was in error in her application of s 6 of the Act and her consequent finding of indirect discrimination.  I would, however, add some observations of my own about the construction of s 6.  I disagree with the majority in the view they take of the operation of s 9 and its application to the provisions relating to access to premises (s 23) and  access to goods, services and facilities (s 24).

6                     I now turn to s 6, and the difficult field of indirect discrimination.  Section 6 defines the circumstances under which, for the purposes of the Act, a person discriminates against another on the ground of disability.  The first step required by the section is to determine whether the alleged discriminator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons without the disability comply or are able to comply: s 6(a). 

7                     Section 6(a) therefore directs attention at the outset to two groups of people: persons with the disability that affects the aggrieved person and persons without that disability.  Those with the disability are usually, in this field of discourse, referred to as comprising the comparator group, and those in the broader group are referred to as the base group.  Discrimination occurs if the requirement or condition impacts more severely upon persons with a disability than it does upon persons without the disability.  Since the requirement or condition may impact upon both groups, the Act requires reference to the proportionate impact and a consideration of whether “a substantially higher proportion of persons without the disability” can or are able to comply.

8                     In some instances the required disproportional impact may be established as a matter of inevitable inference.  This will occur when the very nature of the disability is such as to show, without further proof, that none of the members of the comparator group – the persons with the disability – could not comply with the requirement or condition, leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.

9                     To my mind the learned judge was in error in the present case in failing to define the comparator group so as to enable the comparison required by the section to be made.  Rather, it seems, her Honour attributed to an undefined comparator group the alleged difficulties of access that were at the heart of Mr Forest’s case.  Whilst this attribution might well have been sufficient where, for example, there was an obvious physical disability, there was no warrant for doing so here.  The proportional impact was by no means self-evident.  In the present case, whether the class of persons with Mr Forest’s disability was large or small, and however broadly or narrowly his disability might be defined (and this seems to have been a matter of controversy at the trial), there was no evidence to establish the respective proportions of persons who could comply with the requirement or condition. 

10                  For this reason alone a case of indirect discrimination under s 6 was not made out.  I therefore find it unnecessary to deal with the other submissions concerning s 6, except to express my agreement with the view that it is not per se unreasonable for a health authority to administer objective criteria to protect those to whom it has a duty of care.

11                  This conclusion also makes it unnecessary to decide whether the learned trial judge correctly identified the base group.  Identifying the base group as members of the community who seek to access the Cairns Base Hospital and/or the Smithfield Community Health Centre had the consequence that people would be included to whom the requirement or condition might never have had any practical relevance.  There was, it would seem, however, a smaller group of people for whom Queensland Health had made provision with its protocol for animals, who saw a benefit in being accompanied by an animal at one of its health facilities.  If, as we may accept, the point of the comparison is to determine whether there is a substantial difference in proportional impact, it might well be said that the base group should be defined by reference to the potential relevance of the term or condition to the members of that group. 

12                  The next issue to be considered concerns the operation of s 9 and its relationship to ss 23 and 24.

13                  Sections 23 and 24 each provide that it is unlawful for a person to discriminate against another person “on the ground of the other person’s disability” by engaging in various forms of specified conduct, including refusing to allow the other person access to any premises that the public is entitled to enter: s 23(1)(a).

14                  These sections form part of Part 2 of the Act, the consistent theme of which is that it is unlawful to discriminate in the specified ways “on the ground of the other person’s disability”.  This Part is concerned with discrimination in fields such as work, education, access to premises, the provision of goods, services and facilities, accommodation, land, membership of clubs and various sporting activities. 

15                  The scheme of Part 2 fits neatly with Part 1 of the Act.  Part 1 sets out the objects of the Act, makes provision for its interpretation and its scope and defines the circumstances in which discrimination will be taken to have occurred.  Part 1 includes s 5, which is concerned with direct discrimination, and which provides that a person discriminates against another person “on the ground of a disability of the aggrieved person” if, “because of the aggrieved person’s disability” the person treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.  Part 1 also includes s 6 which contains what is in effect a definition of indirect disability discrimination by providing that, for the purposes of the Act, a person discriminates against another person “on the ground of a disability of the aggrieved person” if the person acts in the specified way.

16                  As well as covering direct and indirect disability discrimination, Part 1 is concerned with other forms of discrimination, namely discrimination in circumstances involving palliative or therapeutic devices and auxiliary aids (s 7), interpreters, readers, assistants or carers (s 8) and, relevantly here, the fact that an aggrieved person possesses or is accompanied by an “animal trained to assist the aggrieved person to alleviate the effect of the disability, or because of any matter related to that fact…”: s 9(1)(f).  Section 9 also defines discrimination by reference to a person possessing or being accompanied by a guide dog or a hearing assistance dog.

17                  Thus, it can be seen that there is an uncomplicated and direct relationship between, for example, indirect discrimination as provided for by s 6 and s 23.  If conduct falls within s 6 it will be, for the purposes of the Act, discrimination “on the ground of a disability” and thus, potentially a neat fit with s 23 and the other sections of Part 2 that make certain discriminatory conduct unlawful.  Where s 6 applies there will be no occasion to consider for a second time whether the conduct complained of was discriminatory “on the ground of the other person’s disability” because s 6 will, if it has been found to apply, have answered that question for the purposes of the Act. 

18                  The question now is whether the different approach taken by ss 7, 8 and, relevantly here, s 9, achieves the same result or whether, as the majority consider, even if there is a finding of fact such that requires the conclusion that there has been discrimination pursuant to s 9, before it can be concluded that there was unlawful discrimination contrary to s 23, there needs to be a further finding that the discrimination that s 9 says has occurred was “on the ground of the other person’s disability”.

19                  The trial judge proceeded upon the footing that if there was a finding of discrimination by reason of the application of s 9 to the facts of the case, there was no requirement for a further finding that the discrimination was “on the ground of the other person’s disability” before it could be concluded that the alleged conduct was unlawful as being contrary to one or more of the provisions of Part 2.  In taking this view, the learned judge acted in accordance with precedent:  see Grovenor v Eldridge [2000] FCA 1574 at [10].

20                  In my view her Honour was correct in proceeding on this footing.  Once her Honour was satisfied that there had been discrimination against Mr Forest within the meaning of s 9(1)(f) there was no further requirement, in assessing the application of ss 23 and 24 to the facts of the case, to determine whether the conduct was discrimination “on the ground of” Mr Forest’s disability.  That was already determined by the application of s 9. 

21                  This approach requires s 9 to be read as describing discrimination which, for the purposes of the Act, will be taken as being “on the ground of disability” even though that expression is not used in s 9 (or its counterparts in ss 7 and 8).

22                  Since, however, the primary object of the Act is to eliminate as far as possible discrimination on the ground of disability in certain specified areas (s 3(a)) it should not be supposed that any other form of discrimination could be the intended subject of s 9; the conclusion must be that s 9 discrimination is a deemed instance of discrimination on the ground of disability.

23                  Moreover, the evident purposes of ss 7, 8 and 9 are to eliminate, by making unlawful, some particular forms of less favourable treatment so as to further the object that persons with disabilities have the same rights as the rest of the community.  As these sections recognise, there are disabilities that may be materially alleviated with the assistance of an animal trained to do so.  The most frequently encountered example is perhaps a visual disability that may be alleviated if a person is accompanied by a guide dog: see s 9(1)(d).

24                  If s 9 were not in its present form, an object of the Act in its specific application to a person with a visual disability (to take that as an example) may be open to defeat if the alleged discriminator was doing no more than following a general practice of not allowing access to premises to anyone accompanied by a dog, whether the person was visually impaired or not and whatever the circumstances.  The policy of the Act is, quite evidently, to avoid such an outcome.  Sections 7 and 8 operate in the same general way with the same general objectives.

25                  In these circumstances, Part 1 of the Act should be seen as defining what is discrimination on the ground of a person’s disability and the references to discrimination on that ground in Divisions 1 and 2 of Part 2 should be taken to be references to conduct so defined.  Where ss 7, 8 or 9 are concerned no further finding of a ground of discrimination is required.  If conduct comes within the scope of s 9 and is otherwise within s 23 (or any of the other relevant sections in Division 2) that conduct is to be taken to have involved unlawful discrimination “on the ground of” the aggrieved person’s disability. To construe the provisions of Divisions 1 and 2 of Part 2 as requiring a further finding of discrimination on the ground of disability would, in my view, defeat the purposes of ss 7, 8, and 9 and the broader objects of the Act.

26                  The explanatory memorandum for the Disability Discrimination Bill 1992 (Cth) provides explicit support for this construction.  In relation to s 7, the explanatory memorandum at cl 7 states that the section “provides that a person is discriminated against on the grounds of disability if a person treats them less favourably on the basis that the person with a disability has a palliative, therapeutic or auxiliary aid” (emphasis added).  Clause 8 is to the same general effect and the notes to cl 9 state that it is “similar to [c]lauses 7 and 8”.  The example provided as a footnote to cl 9 is also instructive:  where a taxi driver refuses to transport a blind person because the person has a guide dog: Explanatory Memorandum, Disability Discrimination Bill 1992 (Cth), 6.

27                  I therefore conclude that the learned trial judge was not in error in failing to make a finding that the State of Queensland had discriminated against Mr Forest on the ground of his disability.  If s 9 applied, no further finding of discrimination on the ground of disability was required.  This has important consequences because the questions posed by s 9 are quite specific, being directed to a particular form of discrimination.  If an extra element is introduced, such as by asking whether there was discrimination “on the grounds of disability”, the same facts might produce a different answer, and one unfavourable to the claimant. 

28                  These conclusions now raise for consideration whether s 9 was correctly held to apply.  At the trial it was the State of Queensland’s case that the evidence demonstrated that Mr Forest had not been treated less favourably “because of the fact that” he was accompanied by his dogs but because of concerns that his dogs were ill-behaved and ill-controlled.

29                  Her Honour took the view, however, that such a finding would provide no answer to the allegation of discrimination.  In her Honour’s view, s 9(1)(f) assumed that it was appropriate for a person to be accompanied by an animal trained to assist the person to alleviate the effects of a disability, and no scope was allowed for the imposition of requirements or conditions on that accompaniment, including approval by the discriminator on any grounds:  see her Honour’s reasons at [128].  To hold otherwise would, in the trial judge’s view, undermine the object of the Act to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community.

30                  It was on this foundation that the trial judge found that Queensland Health had treated Mr Forest less favourably because he was accompanied by an assistance animal.  It was no answer to say that Mr Forest would have been given access with dogs that Queensland Health considered to be well-behaved, well-controlled and trained to the standard of a proper assistance dog. 

31                  On appeal, it was suggested that the interpretation preferred by her Honour should not be rejected as producing consequences so unreasonable that they could not have been intended because s 23(2) and 24(2) (although the sections are different in scope) allowed for the introduction of the concept of unjustifiable hardship.  It will be recalled that s 23(1) provides that it is unlawful for a person to discriminate against another on the ground of the other person’s disability by, amongst other things, refusing to allow access to premises.  Section 23(2) then provides that the section does not make it unlawful to discriminate against a person on the ground of the person’s disability in relation to the provision of access to premises if the premises are so designed as to be inaccessible to a person with a disability and any alteration to provide access would impose unjustifiable hardship on the person who would have to provide it.  This provision does not, however, take the matter any further because in a case such as the present whilst s 23(1) may apply (as the primary judge found) to render conduct unlawful there is simply no scope for the operation of s 23(2). The fact that its counterpart in s 24(2) may have some scope for operation is really beside the point.

32                  To narrow the circumstances under which, on the construction adopted by her Honour, s 9 might lead to patently unreasonable results, counsel for Mr Forest stressed that there was no claim in respect of services performed in a sterile environment.  This had been noted by her Honour in the context of her consideration of unjustifiable hardship within the meaning of s 24(2) but, as I understood his submission, counsel relied upon the point more broadly on the appeal.  To exclude any claim that there was a right to have an assistance animal in a sterile area does not, however, avoid the problem of unreasonable consequences:  it really only serves to hide the problem. 

33                  It may be seen, therefore, that the issue of construction concerning s 9 in the present case comes down essentially to whether s 9 gives to a person with a disability what would be, in effect, an absolute right to be accompanied by an assistance animal in situations to which the provisions of Division 2 apply or whether the use of the expression “because of” in s 9 allows for – indeed requires – consideration of an ultimate question as to why the aggrieved person was treated as he or she was. In other words, does s 9 contain its own internal requirement that achieves a similar purpose to the “on the ground of” requirements of ss 5 and 6?

34                  There is, of course, a well-known principle that points against an interpretation that would impute to the Parliament an intention to achieve an absurd or unreasonable result: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 321 per Mason and Wilson JJ.  There is also a principle that legislation for the protection of human rights, that is beneficial and remedial, “should be given a fair, large and liberal” interpretation rather than one that is “literal or technical”, although there may be a tension between these two principles:  see IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, citing Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333.  It needs of course to be remembered that in considering the operation of these principles there is a danger that what are said to be absurd consequences are in truth a reflection of the stereotypical assumptions that human rights legislation seeks to address.

35                  In the present case, the solution to the construction question is to be found by having regard to the fundamental objects of the Act and to the consistent approach that the Act takes to their attainment.  For the reasons that follow, these considerations lead to the conclusion that the primary judge was in error in her approach to s 9 and that the provision allows – indeed requires – attention to be paid to why the alleged discriminator acted as he or she did.

36                  Fundamentally, the Act is concerned with discrimination “on the ground of disability”.  Section 3 of the Act sets out its objects and the first of these is the elimination, as far as possible, of discrimination against persons “on the ground of disability” in specified areas.  The other two stated objects relate to equality before the law and the promotion and acceptance of the principle that persons with disabilities have the same fundamental rights as the rest of the community.  In defining in s 5(1) the circumstances in which, for the purposes of the Act, a person is taken to have discriminated against another on the ground of the disability of the aggrieved person, the Act uses the expression “because of” to link the conduct with the ground.  Similarly, in s 5(2), in clarifying the scope of s 5(1), the expression “because of the fact” is used to establish the relevant link.  Likewise, the expressions “because of the fact that” and “because of any matter related to that fact” provide the relevant links in ss 7, 8 and 9.

37                  In Purvis v New South Wales (2003) 217 CLR 92 one of the questions before the High Court was what was meant, in the context of the Act, by saying that there was less favourable treatment “because of” a disability.

38                  Although they did not need to decide the point, having dismissed the appeal on other grounds, Gummow, Hayne and Heydon JJ gave guidance about the construction of “because of”.  Having noted differences of judicial opinion about the role of intention or motive in relation to the expression “on the ground of” their Honours said (Purvis 217 CLR 92 at [236]):

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability.  Rather, the central question will always be – why was the aggrieved person treated as he or she was?  If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability?  Motive, purpose, effect may all bear on that question.  But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.

39                  In the same case, Gleeson CJ observed that ss 5, 10 and 22 were concerned with the lawfulness of conduct and with “the true basis” of the impugned decisions (Purvis 217 CLR 92 at [13]).  Gleeson CJ considered that it was not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker was responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision.  Just as questions of causation might be affected by normative considerations arising out of the legal context in which they were to be answered, a statutory question “as to the basis of a person’s decision” may be affected by similar considerations (see Purvis 217 CLR 92 at [14]).

40                  In Forbes v Australian Federal Police (Cth) [2004] FCAFC 95 at [69]-[70], also a case of alleged disability discrimination, the Full Court (Black CJ, Tamberlin and Sackville JJ), having considered Purvis 217 CLR 92, concluded that there had been an error at first instance because the Federal Magistrate had failed to ask why the allegedly discriminatory action was taken.  The Full Court held that the Magistrate should have determined whether (having regard to s 10) the reason in that case was the appellant’s depressive illness.

41                  The question here is whether “because of” in s 9 (and also in ss 7 and 8) has a more limited function to perform than it does in s 5.  The principle that words used consistently should be construed consistently, unless there is good reason to do otherwise, suggests that the words should be taken to have the same meaning and the same work to do wherever they appear in Part 1: see, for example, Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 per Mason J (with whom Barwick CJ and Jacobs J agreed).

42                  The conclusion that “because of” has the same meaning in s 9 as it does in s 5 tends to be confirmed by s 10 which applies generally to Part 1.  Section 10 provides that if an act is done for two or more reasons and one of them is the disability of a person (whether or not this is a dominant or a substantial reason) then, for the purposes of the Act, the act is to be taken to be done for that reason.

43                 The contrary view, implicit I think in her Honour’s reasoning, is that s 9 has special work to do.  To my mind, however, this begs the question. It is true that s 9, and its counterparts ss 7 and 8, are directed to special situations requiring specific attention if the objects of the Act are to be advanced in those situations.  There is, however, no indication in the language used that in these special situations there is to be a departure from the approach in s 5, which is to direct attention to the reason for conduct.  The fundamental aim is to eliminate discrimination on the ground of disability and, as Purvis 217 CLR 92teaches, in that context “because of”’ directs attention to why.

44                  The special work that s 9 and its counterparts have to do in preventing discrimination because a person is accompanied by an animal trained to assist him or her to alleviate the effect of the disability would not be frustrated if the section were to be construed such that “because of” takes its ordinary meaning in a manner consistent with its meaning elsewhere in Part 1.  To the contrary, it might be said that the ordinary meaning is likely to take care of some, if not all, of the suggested practical difficulties resulting from the interpretation preferred by the learned primary judge.  Given its ordinary meaning, and depending of course on the circumstances, “because of” would admit of the possibility of a lawful denial of access to a person accompanied by an animal that was dangerous.

45                  It follows that in taking the view of s 9 that allowed no scope at all for the imposition of requirements or conditions, the learned trial judge applied the requirements of s 9 incorrectly.  In directing herself, as her Honour did, to the question “because of”, the learned judge wrongly placed restrictions upon the scope of that expression and as a consequence did not address the right question.

46                  There was some discussion during the course of the appeal about the meaning of the expression “or because of any matter related to that fact” (ie. the fact of being accompanied by an animal trained to assist etc) as it appears in s 9(1)(f).  (Similar usage can be found in ss 7 and 8.)  Counsel for the appellant suggested that the expression was probably directed to matters such as the provision of drinking water and it would not extend to matters relating to public health and safety. 

47                  It could be said that attributes of a particular animal, such as being dangerous or infectious, were matters relating to the fact of a person being accompanied by that animal.  In general, however, attributes of this nature are unlikely to have anything to do with whether the conduct is, in truth, discriminatory.  If, for example, a public health institution had a carefully considered, non-discriminatory, policy that allowed for the admission of assistance animals and the facts showed that the policy was properly administered, it would hardly advance the objects of the Act if, on a particular occasion, a person accompanied by a patently dangerous assistance animal were refused entry to a hospital.  In such an instance, it would not be foreign to the objects of the Act if access were refused not “because of the fact that the person was accompanied by the animal” or “because of any matter related to that fact”.  The object of eliminating discrimination on the ground of disability and the further object of ensuring, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community, are not advanced by a construction of such width as, in effect, to allow any animal into any public premises under any circumstances.  Such extremes may have nothing to do with discrimination and indeed could frustrate the objects of the Act by impeding the increasing acceptance of the important functions not only of guide dogs but of other appropriately trained assistance animals.  The precise scope of the provision is not easy to determine and will need to be worked out over time on a case by case basis. 

48                  This of course highlights the force of the primary judge’s observations about the deficiencies of the legislation in its present form, and the desirability of legislative reform.  This would provide certainty for animal owners, service providers and members of the public and, as her Honour put it, strike a balance between the needs of the disabled as recognised in the Act and the confidence of service providers and the public as to standards of assistance animals in public places.

49                  The appellant also challenged the finding of the primary judge that the dogs alleviated the effects of the Mr Forest’s disability, arguing that the finding was factually flawed.  Counsel for the appellant developed this ground by pointing to what he said was the inconsistency of the finding with the evidence of two psychiatrists and he criticised her Honour’s reliance on the evidence of a general practitioner and an occupational therapist specialising in mental health rehabilitation. 

50                  The learned judge was not, however, obliged to accept the evidence of the two psychiatrists to the effect that the dogs did not assist in the management of Mr Forest’s particular condition or that the dogs’ activities did not alleviate the effect of his disability.  These were matters for the primary judge to consider upon the whole of the evidence, including that of the general practitioner and the occupational therapist, and this the trial judge plainly did.  Her Honour’s finding on this aspect of the case was open on the evidence and should not be disturbed.  (The appellant did not persist in its challenge to the finding that the dogs were trained and, inferentially, trained to alleviate the effect of the disability.)

51                  For the reasons I have given, I would allow the appeal.

52                  I am not persuaded that this Court is in a position to consider for itself the application of s 9.  This is by no means a straightforward matter and the findings that were made are complicated by the circumstance that the wrong question was asked.  The matter should be remitted to the trial judge for further hearing, but in relation only to the application of s 9.

53                  Given the nature of the proceedings, I would direct the parties to file written submissions as to costs within, in the case of the respondent, seven days and, in the case of the appellant, 14 days.

Dated:               6 June 2008

QUD283 OF 2007

QUD 287 OF 2007

REASONS FOR JUDGMENT

SPENDER AND EMMETT JJ:

54                  These two appeals raise precisely the same issues and, accordingly, were heard together.  The appeals are concerned with the operation of the Disability Discrimination Act 1992 (Cth) (the Act) in relation to the refusal by the appellant, the State of Queensland (Queensland Health), to allow dogs owned by the respondent, Mr Che Forest, into the Cairns Base Hospital and the Smithfield Community Health Centre, also in Cairns, both of which are operated by Queensland Health. 

55                  Mr Forest commenced two proceedings in the Federal Magistrates Court, each of which was transferred to the Federal Court.  In the proceedings, Mr Forest complained about the conduct of Queensland Health in relation to his dogs, Buddy and Knuckles.  Buddy is a border collie/kelpie cross.  Knuckles is a boxer. Mr Forest asserted that Buddy and Knuckles were trained by him to assist him to alleviate the effect of a psychiatric disability from which he suffers and that Queensland Health refused him access to the hospital and to the health centre and refused to provide services to him, while he was accompanied by one or other of his dogs.  He asserted that that conduct was unlawful under the Act.

56                  On 22 June 2007, a judge of this Court made orders that Queensland Health had discriminated against Mr Forest within the meaning of the Act and that that conduct was unlawful within the meaning of certain provisions of the Act.  On 14 August 2007 the primary judge ordered Queensland Health to pay damages to Mr Forest in the sum of $5,000 in one proceeding and in the sum of $3,000 in the other proceeding.  Her Honour ordered that Queensland Health pay interest on those amounts from 16 November 2004 and 19 November 2004 respectively, being the dates of acts on the part of Queensland Health that gave rise to the findings.

57                  Queensland Health has appealed from the orders made by the primary judge.  Before dealing with the findings and conclusions of the primary judge and the grounds of appeal, it is desirable to say something about the relevant provisions of the Act. 

RELEVANT PROVISIONS OF THE ACT

58                  Section 3 of the Act states that the Act’s objects are, relevantly, as follows:

·                    to eliminate, as far as possible, discrimination against people on the ground of disability in the areas of access to premises and the provision of goods, facilities and services;

·                    to ensure, as far as practicable, that people with disabilities have the same rights to equality before the law as the rest of the community; and

·                    to promote recognition and acceptance within the community of the principle that people with disabilities have the same fundamental rights as the rest of the community.

59                  By the operation of s 14(1), the Act binds the Crown in right of each State.  However, s 13(3) provides that the Act is not intended to exclude or limit the operation of a law of a State that is capable of operating concurrently with the Act.

60                  Part 2 of the Act provides for the prohibition of disability discrimination.  Division 1 of Part 2 deals with discrimination in work.  Division 2 of Part 2 deals with discrimination in other areas as follows:

·                    Education: s 22

·                    Access to premises: s 23

·                    Goods, services and facilities: s 24

·                    Accommodation: s 25

·                    Land: s 26

·                    Clubs and incorporated associations: s 27

·                    Sport: s 28

·                    Administration of Commonwealth laws and programs: s 29.

The critical prohibitions for present purposes are those found in ss 23 and 24. 

61                  Section 23(1)(a) and s 23(1)(b) relevantly provide that it is unlawful for a person to discriminate against another person on the ground of the other person’s disability:

·                    by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use, or

·                    in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises. 

However, by the operation of section 23(2), it is not unlawful to discriminate if the premises are so designed or constructed as to be inaccessible to a person with a disability and any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.

62                  Section 24(1)(a) and s 24(1)(b) relevantly provide that it is unlawful for a person who provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:

·                    by refusing to provide the other person with those goods or services or to make those facilities available to the other person, or

·                    in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

However, under section 24(2), it is not unlawful to discriminate if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

63                  Under section 4(1) the term discriminate has the meaning given by ss 5, 6, 7, 8 and 9.  For present purposes, ss 6 and 9 are directly relevant.  However, ss 5, 7 and 8 may have some bearing on the interpretation of other provisions of the Act. 

64                  Section 6 relevantly provides that, for the purposes of the Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to  comply with a requirement or condition:

(a)               with which a substantially higher proportion of people without the disability comply or are able to comply; and

(b)               which is not reasonable having regard to the circumstances of the case; and

(c)               with which the aggrieved person does not or is not able to comply.

65                  Section 9(1)(f) relevantly provides that a person (discriminator) discriminates against another person with a disability (aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by an animal trained to assist the aggrieved person to alleviate the effect of the disability or because of any matter related to that fact, whether or not it is the discriminator’s practice to treat less favourably any person who is accompanied by an animal.

66                  Sections 9(1)(d) and 9(1)(e) contain similar provisions in relation to a person accompanied by a guide dog or a dog trained to assist the aggrieved person in activities where hearing is required.  Under s 9(2), s 9(1) does not affect the liability of a person with a disability for damage to property caused by a dog or other animal trained to assist the person to alleviate the effect of the disability.

67                  Under s 10, if an act is done for two or more reasons and one of the reasons is the disability of a person, whether or not it is the dominant or a substantial reason for doing the act, the act is taken, for the purposes of the Act, to be done for that reason.

68                  Section 11 deals with unjustifiable hardship and provides that, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account, including:

·                    the nature of the benefit or detriment likely to accrue or be suffered by any people concerned;

·                    the effect of the disability of a person concerned;

·                    the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

·                    in the case of the provision of services, or the making available of facilities, an action plan given to the Human Rights and Equal Opportunity Commission (HREOC) under section 64.

69                  Under s 60 of the Act, a service provider may prepare and implement an action plan.  Section 61 provides that an action plan must include provisions relating to matters specified in that section.  However, under s 62, an action plan may include provisions, other than those referred to in s 61, that are not inconsistent with the objects of the Act.  Section 64 provides that a service provider may give a copy of an action plan to HREOC.

FINDINGS AND CONCLUSIONS OF THE PRIMARY JUDGE

70                  The primary judge found that Mr Forest, who has a history of psychiatric illness, suffers from a disability, the effects of which are as follows:

·                    Difficulties in relating to others.

·                    A pervasive pattern of social and interpersonal deficits marked by acute discomfort with and reduced capacity for close relationships.

·                    Difficulties in identification of appropriate boundaries of normal behaviour, perceptual distortions and eccentricities of behaviour, and an inability to understand how normal people operate.

Her Honour found that Mr Forest exhibits a pattern of dislocated encounters with others and socially deviant or eccentric behaviour.

71                  Since 1999 Mr Forest has relied upon Buddy to assist him with his psychological difficulties. From 1999, Mr Forest began to rely on Buddy to accompany him when he went to places to which he was unable to go unless he was accompanied by Buddy.  He became reliant on Buddy to help him to cope.  Buddy was not merely a companion.  Knuckles was trained by Mr Forest to replace Buddy, because Buddy was nearing retirement. 

72                  On 24 August 2004, Mr Forest attended the Cairns Base Hospital to undergo a procedure.  One of his dogs was permitted to attend with him.

73                  On 16 November 2004, Mr Forest attended the hospital accompanied by Knuckles.  After entering the main entrance, he went to the Social Work Department and sat in the hall in front of the office awaiting attention.  While waiting, he was approached by Mr David Taylor, a security guard, and asked to leave the hospital with his dog, as dogs were not permitted on hospital premises.  Shortly thereafter, Mr Wayne Gibson, another security guard, arrived.  Mr Gibson was followed by the Director of Social Work at the hospital.  The Director of Social Work told Mr Forest that the hospital’s administration had issued a notice that he was not to be allowed into the hospital with Knuckles.  Mr Forest was then escorted from the hospital with Knuckles, in the course of which there was a heated exchange between him and the security guards.  Mr Forest returned to the hospital after putting Knuckles in his vehicle.

74                  Following the incident on 16 November 2004, Mr Forest made a complaint to the hospital’s acting Patient Liaison Officer.  At a meeting of the hospital’s executive team on the morning of 17 November 2004, the executive team decided that Mr Forest’s dogs should not be allowed on to the hospital’s premises.  The executive team discussed the matter in depth and endorsed the decision of the security team not to allow Mr Forest’s dog on the premises.  In making that decision, the executive team took into account an incident involving Mr Forest’s dogs in the hospital’s grounds in April 2004, which was recorded by closed circuit television.  The executive team concluded that, on the information at hand, Mr Forest’s dogs were not trained to a standard that would have made it safe to allow them into the hospital.

75                  On 17 November 2004, the Executive Director of Medical Services at the hospital wrote to Mr Forest in response to a meeting that had taken place between Mr Forest and the Patient Liaison Officer at the hospital and the subsequent meeting of the executive team.  In the letter, the Executive Director requested Mr Forest not to bring his dog when he attends the hospital.  The letter said that, if he did so, he would be asked politely to remove the dog from the premises and that, if he failed to comply with the request, security or the police would be contacted.

76                  On 19 November 2004, Mr Forest attended the Smithfield Community Health Centre, with Knuckles, for the purposes of receiving dental treatment.  Mr Forest asserted to the manager of the health centre that the Act permitted him access and he produced an identification card issued by Partners AWARE Australia Inc (AWARE) in respect of himself and Knuckles.  Nevertheless, Mr Forest was asked to leave Knuckles outside.  He then left the health centre without receiving dental treatment, saying that he was not prepared to be separated from Knuckles. 

77                  On 23 November 2004, Mr Forest wrote to the Executive Director of Medical Services of the Cairns Base Hospital replying to her letter of 17 November 2004.  In his letter, Mr Forest asserted that his access rights are protected by the Act and expressed interest to know the hospital’s method of acceptance and denial of recognition of AWARE and similar organisations.

78                  On 17 December 2004, the executive management team at Cairns Base Hospital met again to discuss Mr Forest.  They took into account his letter of 23 November and further information regarding AWARE provided by Mr Forest.  The executive management team affirmed the decision of 17 November to deny Mr Forest’s assistance dog access to the hospital premises.

79                  On 23 December 2004, the acting Medical Superintendent of the hospital wrote to Mr Forest saying that the hospital executive had reaffirmed the advice conveyed to him by the letter of 17 November 2004.

80                  On 7 February 2005 Mr Forest attended Smithfield Community Health Centre for treatment.  He took Buddy on that occasion because Buddy had been allowed into the health centre in the past.  He left Buddy in his vehicle within his sight.  However, he said that the next time he attended the health centre he wished to be able to bring his dog inside. 

81                  Mr Forest attended the health centre again on 24 February, 28 February and 3 March 2005.  He was told that he could not receive treatment while accompanied by one of the dogs.  On each of those three occasions, a security guard was present.

82                  The Executive Director of Medical Services at the Cairns Base Hospital gave evidence that, while guide dogs and hearing dogs, which are regulated by Queensland legislation, are recognised by the hospital and are allowed into the hospital’s premises, assistance dogs are not regulated in the same way and each request for access by an assistance dog must be separately assessed to ensure that the standards applicable to guide dogs and hearing dogs are met.  The Executive Director said that Mr Forest had not provided the hospital with any evidence that his dogs have received a level of training analogous to that of guide dogs and hearing dogs. 

83                  Prior to November 2004, Queensland Health had published a document entitled ‘Dogs in Hospital Procedure’.  The document stated that approval for visiting dogs must be obtained from the relevant Director of Nursing during business hours and from the Nurse Manager, Resource Allocation, after hours.  It provided that visiting dogs must be on a leash and must be controlled by the person bringing the dog and that the dog must not disturb other patients, for example, through barking.  It also provided that it is the patient’s responsibility to make arrangements to feed, exercise and toilet the dog.

84                  In January 2005, Queensland Health published a document entitled “Integrated (HR/IR) Resource Manual” relating to animals in health facilities.  The Resource Manual stated a policy to provide guidance regarding animals in health care facilities.  The policy provided that, prior to animals being brought into a health facility, the relevant work area must:

·                    identify the owner or person in control of the animal;

·                    conduct a risk assessment that includes the areas of consideration outlined in an attachment;

·                    develop a proposed care plan for the animal;

·                    receive endorsement from the senior executive officer of the facility.

85                  The attachment referred to in the resource manual specified areas to be considered in the risk assessment as follows:

·                    Does the animal provide a clinical or therapeutic benefit to clients, not staff?  If that criterion cannot be met, the animal should not be introduced into the facility.

·                    Does the health facility have the resources to support the extra work associated with the care and maintenance of the animal and to meet the hygiene standards of the health facility?

·                    Would the health care facility be able to cover any associated veterinary expenses in the event of illness or injury to the animal?

·                    Do clients and staff have any allergies to the animal in question and how severe and what control measures will be introduced to prevent exposure?

·                    Are there likely to be people who object to or have phobias of the animal and, if so, how severe and what control measures will be introduced to prevent contact?

·                    Are adequate food storage areas provided away from patients and other food storage needs and can the animal’s food be protected from vermin?

·                    Do staff have the necessary skills including safe handling techniques to deal with the animal?

·                    What control measures will be in place to prevent the animal from entering prohibited areas?

·                    What contingencies are in place if the animal escapes from controlled environment?

·                    Is the animal located in an area with ventilation and positioned away from any inherent workplace, health and safety risks?

·                    Who will feed and care for the animal when it is not feasible for the animal to remain in the health care facility unsupervised?

·                    Has the animal either had obedience training or is the animal a low risk to humans in terms of attack by it or scratches?

86                  The primary judge found that Queensland Health refused to allow Mr Forest, when accompanied by his dogs, access to Cairns Base Hospital on 16 November 2004 or Smithfield Community Health Centre on 19 November 2004, 24 February 2005, 28 February 2005 and 3 March 2005.  Queensland Health does not dispute that it refused Mr Forest access to both Cairns Base Hospital and the Smithfield Community Health Centre while in the company of one or other of his dogs on those occasions. 

87                  However, significantly, her Honour accepted that Queensland Health refused to allow Mr Forest access because it considered that his dogs were ill-behaved and ill-controlled and that there was inadequate evidence of proper assistance dog training.  Nevertheless, her Honour found that, by so refusing access, Queensland Health engaged in conduct that was unlawful by reason of s 23(1)(a), s 23(1)(b), s 24(1)(a) and s 24(1)(b).  Her Honour found that the conduct was unlawful because it constituted discrimination against Mr Forest within the meaning of s 9(1) and within the meaning of s 6 of the Act.

Discrimination Under section 9

88                  The primary judge observed that there is nothing in the Act that would require an interpretation of the word ‘trained’, when used in s 9(1)(f), beyond its ordinary meaning.  In particular, there is no requirement that an animal be trained by a particular type of trainer or organisation, undertake a particular amount of training or be accredited by or registered with a particular agency or organisation.  Her Honour also observed that there is no prerequisite as to the type of animal that would fall within s 9(1)(f).  In particular, there is no limitation as to the type of dog that might fall within that provision.  Her Honour then considered the evidence as to the training of Knuckles and Buddy.

89                  Ms Christine Coop, an occupational therapist, gave evidence that a formal process of assessment of Knuckles was undertaken on 25 January 2006 at Stockland Earlville Shopping Centre.  Knuckles and Mr Forest were put through a test described as the ‘Assistance Dog Public Access Certification Test’ (the Public Access Test).  Ms Coop said that the Public Access Test assessed:

·                    controlled unload out of a vehicle;

·                    approaching the building;

·                    controlled entry into the building;

·                    heeling through the building;

·                    six foot recall on lead;

·                    sits on command;

·                    downs on command;

·                    noise distraction;

·                    restaurant (appropriate behaviour)

·                    off lead;

·                    dog taken by another person;

·                    controlled exit;

·                    controlled load into vehicle;

·                    team leadership.

Ms Coop expressed her opinion that all of the requirements of the test were completed competently and most were completed to a very high standard.

90                  Ms Coop also expressed her opinion concerning the use that Mr Forest makes of Buddy.  She reported that Mr Forest had trained Buddy to:

·                    move between him and someone else;

·                    approach another person;

·                    interact with another person;

·                    interact with Mr Forest in various ways, on command, depending on need: body contact, eye-to-eye contact, licking;

·                    act in a distracting way to get the focus off Mr Forest when he is in a state of distress;

·                    initiate the end of social interaction, by making ‘it’s time to go’ actions and sounds.

Ms Coop expressed the opinion that a bystander would be convinced that Buddy was acting naturally as a dog and not under human direction.  She considered that that was effective for a person experiencing psychiatric disability because the recipient of Buddy’s intervention would be completely oblivious to the assistance given.  Nevertheless, Ms Coop considered that the assistance was real and tangible, as it made it possible for Mr Forest to interact more functionally than he otherwise could have.  Ms Coop also expressed the opinion that Mr Forest had trained Buddy to meet all of the command requirements of the Public Access Test.

91                  The standard of training of Buddy was supported by the evidence of Dr Owen Lavers, a veterinarian of 30 years’ standing, who expressed his opinion that Buddy was stable, well behaved and unobtrusive to the public and that Mr Forest had complete control over Buddy, such that he and his dog were not a public hazard.  Ms Simone de la Fonteyne, the Assistant Chief Instructor of the Mooroobool Dog Obedience School, also gave evidence of her opinion that Knuckles was stable, well behaved and unobtrusive to the public at all times and that Mr Forest showed complete control such that he and Knuckles did not represent a public hazard at any time.

92                  That evidence led the primary judge to conclude that both Buddy and Knuckles were trained within the meaning of the Act.  The relevant question, however, was whether they were trained to assist Mr Forest to alleviate the effect of his disability.  Her Honour examined that question separately.

93                  The primary judge found that Knuckles and Buddy are very important to Mr Forest as companions and that they perform a therapeutic role for him.  Her Honour also found that Knuckles and Buddy are instructed to perform tasks that assist Mr Forest to negotiate a social environment.  Her Honour considered that a number of tasks performed by the dogs, for which they had been trained by Mr Forest, assist him to alleviate the effect of his disability.  In particular, they assist him to interact, to leave a situation and to be alert to extended time spent. 

94                  The primary judge further found that a number of tasks for which the dogs had been trained also assisted Mr Forest to alleviate the effect of his disability, in the sense that actions of the dogs stabilise his mood, give him time to process events in his social environment and, accordingly, reduce the incidents of eccentric behaviour, which is a characteristic of his disability.  Her Honour found that the dogs perform a range of tasks that assist in alleviating the effect of Mr Forest’s disability through the use of both verbal and non-verbal commands, to which the dogs have been trained to respond by Mr Forest.  Her Honour concluded, therefore, that both Buddy and Knuckles are animals trained to assist Mr Forest to alleviate the effects of his psychiatric disability, within the meaning of s 9(1)(f) of the Act.

95                  The primary judge then examined the question of whether Queensland Health treated Mr Forest less favourably because he was accompanied by Buddy or Knuckles, as the case may be.  Her Honour concluded that Queensland Health did treat Mr Forest less favourably because he was accompanied by Buddy or Knuckles, in the sense that Queensland Health refused him access to both the hospital and the health centre and refused him health and dental services while he was accompanied by one or other of Knuckles or Buddy.  Her Honour therefore found that Queensland Health discriminated against Mr Forest within the meaning of s 9 of the Act.

96                  The primary judge found that, on the facts of the case, Queensland Health discriminated against Mr Forest on the ground of his disability by refusing to allow him access to the hospital or the health centre.  Her Honour concluded that the conduct of Queensland Health in refusing to allow Mr Forest access to the hospital or the health centre in the company of his dogs was unlawful pursuant to s 23(1)(a) and s 23(1)(b) of the Act.

97                  The primary judge also concluded that Queensland Health discriminated against Mr Forest by refusing to provide dental services to him at Smithfield Community Health Centre while he was accompanied by one of his dogs.  Further, in imposing terms or conditions upon which Queensland Health was prepared to provide Mr Forest with those services, in the sense of informing him of its policies concerning animals and requiring him to comply with those policies, the conduct of Queensland Health was unlawful within ss 23(1)(b) and 24(1)(b).

Discrimination Under section 6

98                  Having concluded that Queensland Health required Mr Forest to comply with the requirement or condition that his dogs be assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health, the primary judge examined the question raised by the first prerequisite of s 6, namely, whether a substantially higher proportion of people without Mr Forest’s disability comply or are able to comply with that requirement or condition.  Her Honour accepted that, to determine whether there has been indirect discrimination within s 6, it is necessary to identify an appropriate base group with which to compare the group comprising the individual claiming discrimination and to decide whether a substantially higher proportion of the individuals in the base group are able to comply with the relevant requirement or condition.  Her Honour considered that, in the present case, the obvious base group consisted of members of the community who wish to access the hospital or the health centre.

99                  In relation to the question of the proportion of members of the comparator group, who would have difficulty complying with Queensland Health’s requirement or condition, her Honour considered that commonsense dictated that the majority of people in the community, including those who wished to seek access to the hospital or the health centre, would have no difficulty accessing the premises without an animal and do not require an assistance animal to be able to access Queensland Health’s premises.  Her Honour concluded, therefore, without further reasoning, that, for the purposes of s 6, a substantially higher proportion of people without Mr Forest’s disability are able to comply with the requirement or condition imposed by Queensland Health.  That conclusion was reached in the light of her Honour’s acceptance of the proposition that there was no evidence before her as to the proportion of members of the comparator group, whether it constituted people with the specific disorder suffered by Mr Forest or people with a psychiatric disability who would have difficulty complying with the requirement or condition of Queensland Health. 

100               Next, the primary judge concluded that the requirement or condition with which Queensland Health required Mr Forest to comply was not reasonable for the following reasons:

·                    The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of his or her disability and that a disabled person is entitled to that assistance, or other forms of support, in appropriate circumstances.

·                    The Act does not differentiate in substance between guide dogs and hearing dogs, on the one hand, and other assistance animals, on the other.

·                    Queensland Health accommodated guide dogs and hearing dogs on the basis that State legislation legitimised the presence of such dogs.

·                    Queensland Health in its policies reserved its rights to admit or deny access to animals, which are pets or other animals, in respect of therapy and to exercise a discretion as to whether such animals should be admitted; however, assistance animals as recognised by the Act are not pets or therapeutic animals any more than a guide dog or a hearing dog is a pet or a therapeutic animal.

·                    While it is reasonable for Queensland Health to deal with alleged assistance dogs on a case-by-case basis, the approach adopted by Queensland Health was subject to a crucial flaw in that Queensland Health made no provision in its policies for assistance animals other than possibly by reference to clinical benefits, which is unclear, and gave complete discretion to Queensland Health as to whether or not it was satisfied that an assistance animal is an assistance animal for the purposes of the Act.

101               The primary judge considered that, while the desire of Queensland Health, in its maintenance of public health facilities, to retain control over access by animals to its premises is understandable, its policies impose what is potentially an insuperable barrier to cross, for people such as Mr Forest.  Her Honour considered that there was no certainty in the requirement or condition with which Mr Forest was required to comply and there were no objective criteria for him to satisfy.  Her Honour considered that the decision whether Mr Forest had complied with Queensland Health’s requirement or condition lay totally at the subjective discretion of Queensland Health.  Her Honour asked, rhetorically, how Mr Forest, or another person with his disability who wanted to comply, could put himself into a position where he could be confident that he could comply, or alternatively understand that he could not comply, with the requirement or condition. 

102               In relation to the third prerequisite of s 6, the primary judge simply concluded that, on the facts of the case, Mr Forest did not comply with Queensland Health’s requirement or condition that his dogs be assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.  Her Honour made no express finding as to whether Mr Forest was able to comply with the requirement or condition. 

THE APPEAL

103               As indicated above, there are two appeals.  However, the grounds in the two notices of appeal are identical.  Some of the grounds have been abandoned.  The grounds as pressed may be stated as follows:

·                    The primary judge erred in finding that Queensland Health treated Mr Forest less favourably, for the purposes of s 9 of the Act, because he was accompanied by an animal, in that the evidence demonstrated that the reasons for which the relevant act was done was not that Mr Forest was accompanied by a dog but that Queensland Health had concerns that the dog was ill-behaved and ill-controlled, that Queensland Health was given inadequate evidence of proper assistance dog training and that Queensland Health’s approval had not been given.

·                    The primary judge erred in finding that the dogs alleviated the effect of Mr Forest’s disability for the purposes of s 9 of the Act, in that a finding should have been made, consistently with the evidence of two psychiatrists who gave evidence, that dogs could not assist in the management of, nor help a person with, Mr Forest’s particular psychiatric condition and that his dogs’ activities did not alleviate the effect of his disability.

·                    The primary judge erred in finding, for the purposes of s 6 of the Act, that a substantially higher proportion of people without Mr Forest’s disability are able to comply with the requirements or conditions imposed by Queensland Health in that:

§         Her Honour failed to identify a base group comprised of people without Mr Forest’s disability;

§         Her Honour did not compare proportions as between two groups;

§         There was no evidence of the proportion of people with, or without, Mr Forest’s disability who could comply with the requirement or condition;

§         There was no evidence that a substantially higher proportion of people without Mr Forest’s disability, compared with people with Mr Forest’s disability, could comply with the requirement or condition, and such a conclusion is not dictated by commonsense.

·                    The primary judge erred in finding that the condition or requirement imposed by Queensland Health was not reasonable for the purposes of s 6 of the Act.

·                    The primary judge erred in finding that Mr Forest could not comply with the requirement or condition for the purposes of s 6 of the Act in that Mr Forest did not suffer a serious disadvantage in the absence of his dog and was not unable to attend the hospital and health centre without his dogs.

104               Senior counsel for Mr Forest, who appeared pro bono and to whom the Court is indebted for his assistance, frankly conceded that Mr Forest’s contentions in relation to s 6 were very much weaker than those in relation to s 9.  It is therefore convenient to deal with the issues relating to s 9 separately from those relating to s 6. 

Unlawful Conduct by Reason of Discrimination Under s 9

105               Two issues arise on the appeal in relation to s 9 as follows:

·                    Whether Knuckles and Buddy were trained to assist Mr Forest to alleviate the effect of his psychiatric disability; and

·                    Whether Queensland Health refused Mr Forest access to its facilities or refused to provide services to him on the ground of Mr Forest’s disability.

106               The first issue that arises in relation to s 9 is whether Buddy and Knuckles were trained to assist Mr Forest to alleviate the effect of his psychiatric disability.  The primary judge found that, clearly enough, Knuckles and Buddy had been trained.  The question is whether they had been trained to assist Mr Forest to alleviate effects of a disability.  The question is not whether the dogs do in fact assist Mr Forest to alleviate effects of a disability but whether they were trained with that purpose or object in mind.  Queensland Health contends that the training that the dogs received was of a character that was not directed to assisting anyone to alleviate effects of a disability.  In the light of the conclusion reached below on the second issue, that there was no discrimination within s 9 on the ground of Mr Forest’s disability, it is unnecessary to explore further the question of whether Knuckles or Buddy satisfied the prerequisite in s 9(1)(f) that they were animals trained to assist him to alleviate the effect of his disability.

107               The second issue involves a consideration of the reason why Queensland Health refused access and refused to provide services.  There was no contravention unless Queensland Health did so on the ground of Mr Forest’s disability.  Even if Queensland Health discriminated against Mr Forest within s 9, there was no unlawful conduct within s 23 or s 24 unless the discrimination was on the ground of the disability.

108               Mr Forest contends that her Honour correctly concluded that Queensland Health treated him less favourably at both Cairns Base Hospital and Smithfield Community Health Centre because he was accompanied by dogs that were trained to assist him as provided in s 9(1)(f).  Queensland Health, on the other hand, contends that the reason why it refused access and refused to provide services on 16 November 2004 is because Knuckles had not been approved for entry by management of the hospital.  Queensland Health says that, after that date, it refused access and refused to provide services because the administration of the hospital and the health centre believed that Mr Forest’s dogs were ill-behaved and ill-controlled and that there was inadequate evidence of proper training of them.  That is to say, the refusal of access and the refusal to provide services was not because Mr Forest was accompanied by an animal trained to assist Mr Forest to alleviate the effect of his psychiatric disability. 

109               Senior counsel for Mr Forest acknowledged that the conclusions reached by the primary judge may appear a little surprising and that the primary judge acknowledged anomalies that would flow from the construction that her Honour gave to the relevant provisions.  Thus, her Honour expressed concerns that the operation of the Act in its current form poses risks as to the functioning, in the community, of disabled people with genuine assistance animals.  Her Honour considered that lack of clarity in the current form of the legislation as to the nature of an assistance animal contributes to conflict between the owners of such animals and service providers.  Further, the acting Disability Discrimination Commissioner made submissions for the assistance of the primary judge, expressing concerns about the current form of the relevant legislation.  In particular, the Commissioner expressed concern that s 9, in its current form, does not adequately define the rights and responsibilities in relation to assistance animals, as distinct from guide dogs or hearing dogs. 

110               Under s 9, a ‘discriminator’ discriminates against an ‘aggrieved person’ if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by a relevantly trained animal, or because of any matter related to that fact, namely, the fact that the aggrieved person possesses or is accompanied by, a relevantly trained animal.  Thus, s 9 calls for a comparison, insofar as it refers to an aggrieved person being treated less favourably.  The aggrieved person must be treated less favourably than the aggrieved person would have been treated if the aggrieved person did not possess, or was not accompanied by, a relevantly trained animal. 

111               Under s 23(1), it is unlawful for a person to discriminate against another person on the ground of the other person’s disability by refusing to allow the other person access to, or the use of, certain premises, or in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises.  Similarly, s 24(1) makes it unlawful for a person to discriminate against another person on the ground of the other person’s disability by refusing to provide goods or services or to make facilities available or in the terms or conditions on which goods or services are provided or facilities are made available.  In both cases, the discriminating must be on the ground of the other person’s disability.  To discriminate on some other ground is not made unlawful by s 23 or s 24. 

112               Section 9(1) defines certain circumstances in which, for the purposes of the Act, a person is taken to discriminate against another person with a disability.  However, s 9(1) says nothing about the ground of discrimination.  In that regard, s 9 operates in a similar way to s 7 and s 8.  Thus, s 7 provides that one person discriminates against another person with a disability, where the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by or possesses a palliative or therapeutic device or an auxiliary aid that is used by the aggrieved person.  Section 8 provides that one person discriminates against another person with a disability, where the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by an interpreter, a reader, an assistant or a carer who provides services to the aggrieved person because of the disability. 

113               That is to say, ss 7, 8 and 9 are concerned only with defining what constitutes discriminating by one person against another.  None of them speaks of the ground on which discrimination takes place.  In contrast, both s 5 and s 6 define, for the purposes of the Act, when one person discriminates against another person on the ground of a disability of the second person. 

114               Accordingly, before there can be a finding of unlawful conduct under s 23 or s 24, by reason of one persons discriminating against another within ss 7, 8 or 9, it is also necessary to make a finding as to the ground on which the discrimination occurs.  Thus, for example, even if there is discrimination within s 9, because a discriminator treats an aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by a relevant animal, that discrimination will not be unlawful unless it is established that the discrimination is on the ground of the aggrieved person’s disability.  That is of critical significance in the present case. 

115               While it may be that Queensland Health discriminated against Mr Forest within the meaning of section 9(1), because it treated him less favourably because of the fact that he was accompanied by his dogs, it did not do so on the ground of his psychiatric disability.  The ground on which Queensland Health discriminated against Mr Forest, within the meaning of s 9(1), is that his dogs were ill-behaved and ill-controlled and there was inadequate evidence of proper assistance dog training.  Thus, Queensland Health did not discriminate against Mr Forest on the ground of his disability, even though it may have discriminated against Mr Forest within s 9 of the Act.  It follows that there was no unlawful conduct on the part of Queensland Health. 

116               The primary judge erred in proceeding on the footing that, if there is a finding of discrimination by reason of the application of s 9 to the facts of the case, there is no requirement for a further finding that the discrimination is on the ground of a person’s disability before concluding that the relevant conduct was unlawful as being contrary to one or more of the provisions of s 23 of the Act.  That erroneous approach led to the difficulties of construction that her Honour found with s 9.

117               The aim of s 9 of the Act, as well as ss 7 and 8, when coupled with ss 23 and 24, is to make unlawful some particular forms of conduct in order to further an object of the Act that people with a disability have the same rights as other people in the community.  However, that object is to render such conduct unlawful only when it constitutes less favourable treatment on the ground of the disability.  Giving effect to the express words of ss 7, 8 and 9 will not have the effect of defeating the object of the Act.  However, there are some places where access in the company of a dog or other animal is simply inappropriate.  There are also places where a dog should be permitted only if it behaves appropriately for that place. 

118               On the basis of the finding made by the primary judge, there was no material upon which her Honour could have found that the discrimination against Mr Forest within the meaning of s 9 was on the ground of any disability.  Her Honour found that Queensland Health refused access to Mr Forest when accompanied by his dogs because it considered that they were ill behaved and ill controlled, as well as because there was no evidence of proper assistance dog training.  In the light of that finding, there would be no utility in remitting the matter to the primary judge for further findings as to whether or not the discrimination within the meaning of s 9, namely, refusing access to Mr Forest when accompanied by one or other of his dogs, was on the ground of his psychiatric disability.

Unlawful Conduct by Reason of Discrimination Under section 6

119               The effect of s 6 is that a ‘discriminator’ discriminates against an ‘aggrieved’ person on the ground of a disability of the aggrieved person, if the discriminator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of people without the disability comply or are able to comply.  That requires a comparison of the way in which the alleged discriminator deals with one group of people, being a group who do not have the disability of the alleged aggrieved person (the base group), with the way in which the alleged discriminator deals with another group of people, being a group of people who do have the disability of the allegedly aggrieved person (the comparator group).  The comparison must be a comparison of groups of people by reference to the alleged discriminating.  The base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed (see Australian Iron & Steel Pty Limited v Banovic (1989) 168 CLR 165 at 177-178). 

120               The primary judge found that Queensland Health required Mr Forest to comply with the requirement or condition that his dogs be assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.  Queensland Health does not dispute that it required Mr Forest to comply with that requirement or condition before he would be given access to the hospital or the health centre and before he would be provided with health or dental services at the hospital or the health centre, when accompanied by either of his dogs.

121               However, in order to satisfy the first prerequisite of s 6, it would have been necessary to make findings as to the following:

·                    The proportion of people in the base group, being people who do not have Mr Forest’s disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre has been assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.

·                    The proportion of people in the comparator group, being people who do have Mr Forest’s disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre has been assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.

·                    If the first proportion was substantially higher than the second proportion, the first prerequisite of s 6 would be satisfied.

122               The primary judge made no findings as to those matters.  It may be that an inference would have been open that the proportion of people in the base group, who do not have Mr Forest’s disability, who are able to comply with Queensland Health’s requirement or condition, would be close to 100%.  However, there was no evidence before the primary judge to show what proportion of people in the comparator group, who have Mr Forest’s disability, are able to comply with the requirement or condition.  Accordingly, on the evidence before the primary judge, no finding could have been made that the first prerequisite of s 6 was satisfied in relation to the conduct complained of.  It follows that there was no basis upon which there could be a finding of unlawful conduct within s 23 or s 24, by the operation of s 6 of the Act.

123               In relation to the third prerequisite of s 6, the primary judge simply observed that Mr Forest did not comply with Queensland Health’s requirements or conditions.  In the light of the above conclusion concerning s 6(a), it is not necessary to express a view about the operation of s 6(c).

124               Queensland Health also contended that, in the circumstances of the present case, the requirement or condition with which Mr Forest was required to comply was reasonable.  Insofar as the requirements or condition was concerned with the behaviour and control of animals in a hospital or health centre, the primary judge made no findings that Queensland Health’s requirement or condition was of itself unreasonable.  Rather, her Honour found that it was unreasonable for a person with a disability to have to satisfy some discretionary criteria.  The criteria were discretionary only in the sense that a judgment or assessment was to be made.  That judgement was to be made by inference to specified aspects of the operation of the two health facilities. 

125               There was no suggestion that the giving or withholding of consent to the admission of an animal would be exercised in a capricious or arbitrary fashion.  Of necessity, the admission of an animal to a health facility would be expected to involve the exercise of judgment.  The contrast made by the primary judge with guide dogs and hearing dogs, who are required to satisfy a statutory objective criterion is not to the point.  In making those observations, the primary judge conflated the issues raised by s 9(1)(f), concerning an animal trained to assist, with the issues raised by s 6, concerning the reasonableness of a condition or requirement with which a person is required to comply. 

126               The fact that a judgment was required is not of itself unreasonable.  There was nothing unreasonable, in the circumstances of this case, in requiring the approval of the management of the hospital or the health centre, as the case may be, before a dog was permitted entry into the relevant facility.

CONCLUSION

127               It follows from the above that no unlawful conduct on the part of Queensland Health under s 23(1)(a), s 23(1)(b), s 24(1)(a) or s 24(1)(b) of the Act can be established.  Accordingly, both appeals should be allowed. The orders made by the primary judge should be set aside.  In lieu of those orders, there should be orders that each proceeding be dismissed with costs.  Mr Forest should pay Queensland Health’s costs of the appeals. 

Associate:

Dated:         6 June 2008