FEDERAL COURT OF AUSTRALIA
Forest v Queensland Health [2007] FCA 936
DISCRIMINATION LAW – whether discrimination in access to premises – whether discrimination in provision of goods, services or facilities – respondent operates acute health care facilities – whether unjustifiable hardship
Held: Respondent discriminated against the applicant in breach of s 6 and s 9 Disability Discrimination Act 1992 (Cth). Requirement or condition that the applicant not attend the respondent’s hospital and community health centre with an animal, unless the animal is a guide dog or a hearing dog or unless the animal has been assessed by the respondent as having training and hygiene standards acceptable to the respondent not reasonable in the circumstances. The applicant’s animal is a s 9(1)(f) assistance animal trained to assist to alleviate the effect of the applicant’s schizo-typal personality disorder. Respondent has breached ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) Disability Discrimination Act 1992 (Cth) in refusing to allow the applicant to access its premises accompanied by his assistance animal and refusing to provide services to applicant while accompanied by his assistance animal. Unjustifiable hardship not made out.
Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 9, 11, 23, 24
Guide Dogs Act 1972 (Qld)
Dog Control Act 1996 (NZ)
Australian Medical Council v Wilson (1996) 68 FCR 46 cited
Bronk v Ineichen 54 F 3d 425 (7th Cir 1995) cited
Catholic Education Office v Clarke (2004) 138 FCR 121 considered
Cooper v Human Rights & Equal Opportunity Commission (1999) 93 FCR 481 cited
Daghlian v Australian Postal Corporation [2003] FCA 759 cited
Fetherston v Peninsula Health [2004] FCA 485 cited
Fischer v Stuart (unreported, Supreme Court NT, Forster CJ, 25 July 1979) cited
Green v Housing Authority of Clackamas County 994 F Supp 1253 (D Or 1998) cited
Grovenor v Eldridge [2000] FCA 1574 considered
Haar v Maldon Nominees Pty Ltd (2001) 184 ALR 83 considered
Hills Grammar School v Human Rights & Equal Opportunity Commission (2000) 100 FCR 306 cited
Hurst v Queensland (2006) 151 FCR 562 cited
Matthews v Commissioner of Police [2005] QSC 122 cited
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 cited
Sheehan v Tin Can Bay Country Club [2002] FMCA 95 cited
Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 cited
Waters v Public Transport Corporation (1991) 173 CLR 349 cited
Diagnostic and Statistical Manual of Mental Disorders (4th ed text revision, American Psychiatric Association Washington, 2000)
CHE FOREST v QUEENSLAND HEALTH
QUD324 OF 2005
CHE FOREST v QUEENSLAND HEALTH, STATE OF QUEENSLAND
QUD522 OF 2005
COLLIER J
22 JUNE 2007
BRISBANE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| QUEENSLAND DISTRICT REGISTRY | QUD324 OF 2005 |
| BETWEEN: | CHE FOREST Applicant
|
| AND: | QUEENSLAND HEALTH Respondent
|
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| QUEENSLAND DISTRICT REGISTRY | QUD522 OF 2005 |
| BETWEEN: | CHE FOREST Applicant
|
| AND: | QUEENSLAND HEALTH, STATE OF QUEENSLAND Respondent
|
| COLLIER J | |
| DATE OF ORDER: | 22 JUNE 2007 |
| WHERE MADE: | BRISBANE |
THE COURT ORDERS THAT:
In respect of QUD324/2005:
1. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth).
2. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) Disability Discrimination Act 1992 (Cth).
In respect of QUD522/2005:
3. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth).
4. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) Disability Discrimination Act 1992 (Cth).
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| QUEENSLAND DISTRICT REGISTRY | QUD324 OF 2005 |
| BETWEEN: | CHE FOREST Applicant
|
| AND: | QUEENSLAND HEALTH Respondent
|
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| QUEENSLAND DISTRICT REGISTRY | QUD522 OF 2005 |
| BETWEEN: | CHE FOREST Applicant
|
| AND: | QUEENSLAND HEALTH, STATE OF QUEENSLAND Respondent
|
| JUDGE: | COLLIER J |
| DATE: | 22 JUNE 2007 |
| PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 I have before me two applications brought by the applicant, Mr Forest, against the respondent.
2 The first application QUD324/2005 was filed in the Federal Magistrates Court on 16 June 2005. The application relates to an incident at the Cairns Base Hospital on 16 November 2004 during which the applicant was refused services at the hospital whilst accompanied by his dog, Knuckles. The applicant claims that Knuckles is an animal trained to assist the applicant to alleviate the effect of his psychiatric disability within the meaning of Disability Discrimination Act 1992 (Cth) (“DD Act”) and, in refusing the provision of services to him whilst accompanied by the dog, the respondent acted in breach of the DD Act.
3 The matter was transferred to the Federal Court by order of Coker FM of 31 August 2005.
4 With respect to the application QUD324/2005 the applicant seeks the following orders:
· an order declaring that the respondent committed unlawful discrimination
· an order requiring the respondent to apologise to the applicant for the act(s) of unlawful discrimination, personally and in the regional newspapers
· an order requiring the respondent to implement anti-discrimination policies and training of staff consistent with the DD Act
· an order requiring the respondent to pay damages by way of compensation for pain, suffering, hurt and humiliation in the amount the Court sees appropriate
· an order requiring the respondent to pay interest on the amount awarded
· an order requiring the respondent to pay the costs of the applicant in this proceeding
· such further or other orders as the Court deems fit.
5 The second application QUD522/2005 was filed in the Federal Magistrates Court on 11 November 2005. The application relates to incidents at the Smithfield Community Health Centre in late 2004 and early 2005 in which the applicant was refused access to the respondent’s premises and refused services, whilst he was accompanied by his dog Knuckles and on one occasion his dog Buddy. The applicant claims that the animals in question are trained to assist the applicant to alleviate the effect of his psychiatric disability within the meaning of the DD Act and, in refusing access to its premises and the provision of services to him whilst accompanied by the dogs, the respondent acted in breach of the DD Act.
6 This matter was transferred to the Federal Court by order of Coker FM of 28 November 2005.
7 With respect to application QUD522/2005 the applicant seeks the following orders:
· an order declaring that by the respondent’s actions it committed unlawful discrimination
· that the respondent pay compensation in an amount yet to be determined.
8 On 30 March 2006 the Disability Discrimination Commissioner (“the Commissioner”) was granted leave to appear as amicus curiae by Greenwood J in both proceedings.
9 At a directions hearing before me on 7 September 2006 I ruled on objections to evidence in these proceedings. At that time, I provisionally admitted paras 13-17 and 28 of the affidavit of John Grist (sworn 10 February 2006) and the entire affidavit of Wade Grosser (sworn 9 February 2006), pending hearing the evidence of Dr Jillian Newland at the trial (TS 7 September 2006 p 17 ll 21-33 and p 19 ll 18-31). In my view, having heard the evidence of Dr Newland, the evidence of Mr Grist and Mr Grosser as found in their affidavits is relevant, and I admit that material on which I had provisionally ruled to evidence in this matter.
10 The matters were heard by this Court during the same sitting in Cairns in September 2006. Counsel for the applicant, the respondent and the Commissioner have each provided a set of written submissions which relate to both matters. There is a significant overlap in the issues relevant to both matters.
BACKGROUND
11 The applicant is the owner of two dogs: Buddy and Knuckles. Buddy is a border collie/kelpie cross-breed. Buddy was approximately eight years old at the time of the incidents giving rise to these claims. The applicant has some history of psychiatric illness. In about 1997 or 1998, when the applicant was suffering a bout of depression, he claimed that Buddy learned to be very sensitive to his mood variations and extra responsive to his instructions. Further, the applicant stated both in oral and affidavit evidence that from 1999 he began to rely on Buddy to accompany him when he went places and that he was unable to go out unless he was accompanied by Buddy. The applicant deposed that he became “reliant on [Buddy] to help me to cope rather than being merely a companion” and that since 1999 he had relied upon Buddy to assist him with his psychological difficulties (affidavit of Che Forest 27 January 2006 para 26 and para 27). The applicant deposed that he trained Buddy to perform a number of tasks specifically to assist him with the effect of his disability (affidavit of Che Forest 27 January 2006 para 28).
12 Knuckles is a boxer dog, which was being trained by the applicant during the relevant period to replace Buddy as Buddy was “nearing retirement”. At the relevant times in this claim Knuckles was approximately 6 months to 1 year old. The applicant deposed that Knuckles was trained to complete learned tasks roughly the same as those completed by Buddy (affidavit of Che Forest 27 January 2006 para 63).
13 In December 2003 the applicant established an organisation known as Partners AWARE which was subsequently incorporated as Partners AWARE Australia Inc under the Associations Incorporation Act 1981 (Qld) on 24 June 2004. The association has programs involving the use of assistance dogs for people with mental illness. I understand that the applicant is the current president of Partners AWARE Australia Inc.
14 During the course of the trial evidence was given as to the history of the applicant’s various attendances at both the Cairns Base Hospital and the Smithfield Community Health Centre.
QUD324/2005
15 The incident on 16 November 2004 at the Cairns Base Hospital which gives rise to this application was the subject of direct evidence from the applicant, Mr David Taylor and Mr Wayne Gibson, both of whom were security guards at the hospital at the relevant time.
16 It appears that the applicant attended the Cairns Base Hospital on 16 November 2004 to collect a document that he had previously requested. The applicant deposed that after entering the main entrance of the hospital, accompanied by Knuckles, 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 security (Mr Taylor). The applicant deposed that he was asked to leave the hospital with his dog, as dogs were not permitted on hospital premises (affidavit of Che Forest of 27 February 2006 at paras 10 and 11). The applicant claims that he explained that his dog was an assistance animal and that the security guard could radio his superior because the hospital was aware of the applicant’s status. It appears that shortly thereafter Mr Gibson arrived, and then the Director of Social Work appeared and advised the applicant that hospital administration had issued a notice that the applicant was not to be allowed into the hospital with his dog. There is some dispute in the evidence as to then what exactly took place, but it appears that there was a somewhat heated exchange between the applicant and security as the applicant was escorted from the premises with his dog. The applicant says that he then returned to the hospital after putting his dog in his vehicle in order to make a complaint.
17 The applicant lodged a complaint about the Cairns Base Hospital with the Human Rights and Equal Opportunity Commission (“HREOC”). By letter dated 17 May 2005 HREOC terminated the complaint on the basis that the delegate of the President was satisfied that there was no reasonable prospect of the matter being resolved by conciliation.
QUD522/2005
18 On 19 November 2004 the applicant attended the Smithfield Community Health Centre to seek dental treatment with Knuckles and was asked to leave his dog outside. The applicant stated that this was despite informing the manager that the DD Act states that access is permitted, and showing his AWARE identity card that identified him and Knuckles. The applicant left the centre without receiving dental treatment, advising the centre that he was not prepared to be separated from his dog.
19 On 7 February 2005 the applicant attended the centre for treatment and left his dog Buddy in his vehicle within sight. The applicant said that Buddy was taken on that occasion rather than Knuckles, due to Buddy being allowed into the centre in the past. On that occasion the applicant advised the centre that next time he attended he wished to be able to bring his dog inside. He provided the centre with information about himself and the dog and AWARE. The applicant then attended the centre again on 24 and 28 February 2005 and 3 March 2005 and was advised that he could not receive treatment whilst accompanied by the dog. The applicant noted that on each of these last three occasions a security guard was present at the centre.
20 The applicant made a complaint about the Smithfield Community Health Centre to HREOC. By letter dated 29 September 2005 HREOC terminated the complaint on the basis that the delegate of the President was satisfied that there was no reasonable prospect of the matter being resolved by conciliation.
DEFENCE
21 The respondent does not dispute that it refused the applicant access to the both Cairns Base Hospital and the Smithfield Community Health Centre in the company of his dogs.
QUD324/2005
22 The defence of the respondent in relation to this claim was filed in the Federal Magistrates Court on 14 July 2005, attached to the affidavit of Dr Jillian Newland, Executive Director Medical Services at the Cairns Base Hospital. In summary the defence is as follows:
· the Cairns Base Hospital is an acute health care facility where the respondent needs to maintain a high level of hygiene and infection control, and where the respondent is required to ensure the health and safety of its staff, patients and visitors
· the respondent does not allow most animals on to the premises, although exceptions are made for guide and hearing dogs and other dogs with prior approval. The applicant’s dog, Knuckles, did not meet the criteria for entry prescribed by the respondent’s policy
· the respondent does not admit that Knuckles is an assistance dog for the purposes of s 9(1)(f) DD Act because:
o it does not accept that Knuckles assists the applicant to alleviate the effect of a disability
o it does not accept that Knuckles has been specifically or appropriately trained as an assistance dog
· it would impose an unjustifiable hardship on the respondent were it to be required to:
o allow every dog that presented and was described by the person whom it was accompanying as an “assistance dog” to have access to the facility, or
o investigate and assess the training and hygiene standards of every dog that is alleged to be an assistance dog and sought to be taken into the facility
· it is not unlawful for the respondent to rely on the independent certification by recognised organisations to determine whether a dog is, in fact, an assistance dog. In the absence of information, the respondent cannot recognise that dogs allegedly trained by the organisation founded by the applicant, Partners AWARE are assistance dogs.
QUD522/2005
23 The response of the respondent in relation to this claim was filed in the Federal Court on 8 September 2006. It is in similar terms to the defence filed in respect of QUD324/2005. Relevant variations are:
· the respondent operates a community health centre in Smithfield, where the respondent is required to ensure the health and safety of its staff, patients and other visitors, and to maintain a high level of hygiene and infection control in certain clinical areas
· the respondent’s refusal to allow Knuckles to attend a dental appointment with the applicant on 19 November 2004 and 7 February 2005 was in accordance with the respondent’s policy and its obligations to ensure hygiene, infection control and health and safety
· the applicant was aware of the respondent’s policy as the respondent sent the applicant a copy of a policy on 31 January 2005, and wrote to the applicant on 18 February 2005 confirming its policy
· the respondent’s actions do not constitute a breach of s 6 or s 9 of the DD Act as alleged because:
o there is no substantial difference in the proportion of people with and without the applicant’s alleged disability that can comply with the condition imposed by the respondent
o the condition imposed by the respondent is reasonable; and
o the applicant can comply with the condition
· the respondent’s actions do not constitute a breach of s 9 of the DD Act because the applicant was not treated less favourably because he was accompanied by an assistance dog.
RELEVANT ISSUES
24 The fact that the applicant has a disability as defined by s 4 DD Act, and the actions of the respondent in refusing the applicant access with his dog, are not in contention. However, relevant issues for decision are:
1. The interaction of s 6 and s 9 DD Act.
2. the nature of the applicant’s disability.
3. did the respondent discriminate against the applicant within the meaning of s 6 DD Act? In particular:
a. what was the requirement or condition, with which the applicant was required by the respondent to comply?
b. can a substantially higher proportion of persons without the applicant’s disability comply or are they able to comply with the requirement or condition?
c. was the requirement or condition reasonable having regard to the circumstances of the case?
d. did or could the applicant comply with the requirement or condition?
4. did the respondent discriminate against the applicant within the meaning of s 9 DD Act? In particular:
a. were the applicant’s dogs “trained” to assist the applicant to alleviate the effect of his disability?
b. did the dogs assist in alleviating the effect of the applicant’s disability?
c. did the respondent treat the applicant less favourably because he was accompanied by an assistance animal?
5. did the respondent act unlawfully within the meaning of s 23 or s 24 DD Act, and if it did can the respondent rely on the defence of unjustifiable hardship?
25 I propose to consider each of these issues in turn.
THE INTERACTION OF SECTION 6 AND SECTION 9 DD ACT
26 The applicant, respondent and the Commissioner each submitted that s 9 DD Act is a stand-alone provision, not referable to s 5 or s 6 DD Act. This is consistent with the decision of Stone J in Grovenor v Eldridge [2000] FCA 1574 where her Honour considered the issue of discrimination against a person with a guide dog in the context of s 9 alone. I also note the decision of McInnis FM in Haar v Maldon Nominees Pty Ltd (2001) 184 ALR 83 where his Honour adopted the same approach.
27 Sections 5, 6, 7, 8 and 9 each define conduct where, for the purposes of the DD Act, a person (discriminator) discriminates against another person with a disability (aggrieved person):
· section 5 defines disability discrimination
· section 6 defines indirect disability discrimination
· section 7 defines disability discrimination – palliative and therapeutic devices and auxiliary aids
· section 8 defines disability discrimination – interpreters, readers and assistants
· section 9 defines disability discrimination – guide dogs, hearing assistance dogs and trained animals.
28 Sections 5 and 6 are general provisions whereas ss 7, 8 and 9 are more specific and directed at particular types of discriminatory conduct. Sections 7, 8 and 9 are so grouped in the Explanatory Memorandum to the Disability Discrimination Bill 1992 (Cth). It is difficult to discern the intention of Parliament from this structure, in view of the fact that it would be expected that discrimination against a person with a disability could generally be considered as either “direct” or “indirect” depending on the circumstances of the case. However, it is possible that ss 7, 8 and 9 were enacted to ensure that a person who had been the subject of discrimination on the grounds articulated in those sections would have a specific claim of discrimination rather than needing to prove either s 5 or s 6 discrimination. In any event, the ordinary reading of ss 5, 6, 7, 8, and 9 is that it may be possible for a person to have been the subject of discrimination under two or more of these sections.
29 Prior to closing submissions, Mr O’Gorman for the applicant stated he no longer pressed the applicant’s direct discrimination claim under s 5 DD Act (TS p 285 ll 29-31). I note that it has been held in numerous cases that findings of direct and indirect discrimination are mutually exclusive (Australian Medical Council v Wilson (1996) 68 FCR 46, Waters v Public Transport Corporation (1991) 173 CLR 349), and that the applicant in this case chose to pursue an indirect discrimination claim under s 6 DD Act, as well as a separate claim pursuant to s 9.
30 While I accept this approach, and propose to consider the applicant’s claims of discrimination separately under s 6 and s 9 DD Act, in my view interpreting the sections as operating independently does not mean that they are to be interpreted in isolation, either from each other or the balance of the DD Act. As was pointed out by Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at 148, in considering provisions of the DD Act:
“Each of these particular questions can be answered only by giving consideration to the relevant provisions of the Act, understood, as they must be, in the context of the Act as a whole.” (emphasis added)
APPLICANT’S DISABILITY
31 So far as relevant in this case, s 4(1) DD Act defines “disability” in relation to a person as:
...
...
...
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
32 In summary, the applicant has submitted that, in addition to substance abuse disorder and dependence, he suffers a disability in the nature of a personality disorder, which is a disability within the meaning of s 4(1)(g). The respondent conceded in submissions, both written and oral, that the applicant did suffer a disability, however there was some conflict in the medical evidence as to the exact nature of the disability suffered by the applicant. Notwithstanding the concession as to existence of a disability, Mr Murdoch for the respondent submitted that there is a need for the court to come to a factual conclusion as to the nature of the applicant’s disability, because the concept of alleviation of a disability in the meaning of s 9 DD Act (upon which the applicant’s case to a significant degree rests) can only be considered properly and effectively in this case in light of a precise, factual decision as to the disability held by applicant (TS p 286 ll 38-45). I agree.
33 At the hearing, expert evidence as to the nature of the applicant’s disability was given by consultant psychiatrists Dr Paul Trott and Dr Alston Unwin. There was no dispute as to the expertise of either Dr Trott or Dr Unwin.
34 The evidence was that the applicant’s disability was either:
(a) a personality disorder of the mixed type. This was the diagnosis of Dr Trott at p 6 of his report dated 25 February 2005 (attached to Dr Trott’s affidavit sworn 20 December 2005). Both affidavit and oral evidence of Dr Trott were called by the applicant
(b) alternatively, schizo-typal personality disorder. This was the diagnosis of Dr Unwin on p 8 of his report dated 11 January 2006 (attached to Dr Unwin’s affidavit sworn 20 June 2006). Both affidavit and oral evidence of Dr Unwin were called by the respondent.
35 In providing their expert opinions as to the personality disorder suffered by the applicant, Dr Trott and Dr Unwin referred to the Diagnostic and Statistical Manual of Mental Disorders (4th ed text revision, American Psychiatric Association Washington, 2000) (“DSM-IV”), as a reference providing authoritative definition of personality orders. General diagnostic criteria for a personality disorder are there defined as:
a. an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture. This pattern is manifested in two (or more) of the following areas:
(1) cognition (ie ways of perceiving and interpreting self, other people, and events)
(2) affectivity (ie the range, intensity, lability and appropriateness of emotional response)
(3) interpersonal functioning
(4) impulse control
b. the enduring pattern is inflexible and pervasive across a broad range of personal and social situations
c. the enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning
d. the pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood
e. the enduring pattern is not better accounted for as a manifestation or consequence of another mental disorder
f. the enduring pattern is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition(eg head trauma).
36 A personality disorder as defined by DSM-IV, and as diagnosed by each expert, clearly satisfies the definition of “disability” within s 4(1)(g) DD Act.
Dr Trott
37 Dr Trott is a consultant psychiatrist, however more details of his expertise were not presented in evidence. I understand that Dr Trott first met the applicant in the late 1990s where he saw the applicant during his role as a consultant psychiatrist with the Cairns Integrated mental Health Services at a Kuranda clinic, at which time Dr Trott formed the impression that the applicant suffered from dysthymic disorder.
38 In his report, Dr Trott noted that the applicant had attended the clinic accompanied by his dogs on 8 February 2005, when a psychiatric evaluation of the applicant was conducted. In diagnosing a personality disorder of the mixed type, Dr Trott identified features of the applicant’s personality disorder as including:
a. features of a disordered self, as noted by his life pattern of difficulty in determining a clear sense of identity, goals and values
b. a chronic state of mild to moderate dysphoria and affective instability (especially irritability and anxiety) that he had tended to “dampen” as noted by his past use of illicit drugs
c. an array of antisocial, narcissistic and borderline traits
d. a previous pattern of socially deviant behaviours
e. a pattern of dislocated encounters as a result of his struggle to appreciate the feelings of others and modulate his own feelings.
39 I understand from Dr Trott’s evidence that, in defining the applicant’s disorder as being of a mixed type, he took the view that the personality disorder suffered by the applicant was of a type not otherwise specified in DSM-IV as it did not meet the criteria for any specific personality disorder, but rather the applicant presented features of more than one specific personality disorder as indicated by his narcissism and paranoia: DSM-IV at 729, Dr Trott report p 6.
40 Dr Trott also considered that the applicant had suffered a substance use disorder and dysthymic disorder as a consequence of his significant character disturbance.
41 At the hearing during cross-examination, Dr Trott disagreed with Dr Unwin’s conclusions that the applicant suffered schizo-typal personality disorder on the ground that “A person with the schizotypal personality tends to be somewhat more fanciful...suggestible in their thinking and imaginative, with the issue of...then losing touch with reality, but not to the point of chronic psychotic disorder” (TS p 112 ll 1-4). However Dr Trott also said that he did not strongly disagree with Dr Unwin, but rather described his approach as more conservative than that of Dr Unwin (TS p 112 ll 16-18). Further, Dr Trott acknowledged Dr Unwin’s expertise in the area of personality disorders (TS p 112 ll 11-13).
Dr Unwin
42 Dr Unwin is an experienced psychiatrist of almost forty years standing in both Australia and the United States, with special interests in personality disorders and traumatology. His curriculum vitae indicates that he also has more than thirty years experience in formal lecturing and supervision of trainee psychiatrists.
43 In his report, Dr Unwin states that he saw the applicant for three hours on 11 January 2006, and subsequently received two emails from him.
44 At the hearing Dr Unwin described schizo-typal personality disorder as having “more of a genetic, inheritable, biochemical basis...made worse...by early environmental and continually environmental development things” (TS p 181 ll 21-23). Dr Unwin also said that the applicant did not suffer from social anxiety disorder to any degree of “caseness” but did have communication and socialisation problems, which were not disorders per se. In cross-examination, Dr Unwin said that the essential features of schizo-typal personality disorder, which is the rarest of personality disorders (TS p 181 ll 42-43) are:
a. a pervasive pattern of social and interpersonal deficits marked by acute discomfort with and reduced capacity for close relationships; and
b. perceptual distortions and eccentricities of behaviour (TS p 174 ll 11-15).
45 Dr Unwin explained further that the applicant did not know appropriate boundaries of interpersonal conduct (TS p 177 ll 8-9, 14), and that people suffering from schizo-typal personality disorder did not understand how “normal” people operate (TS p 181 ll 23-24).
Findings
46 The respondent submitted that the Court should find that the applicant is a person with a schizo-typal personality disorder as diagnosed by Dr Unwin, who is a psychiatrist with particular expertise in respect of personality disorders, acknowledged as such by Dr Trott, and with whose diagnosis Dr Trott did not strongly disagree. To the extent that the diagnoses differed, the applicant did not make any submissions as to whose evidence should be preferred. In written submissions on behalf of the applicant it was contended that the applicant was suffering from personality disorder of a mixed type and/or schizo-typal personality disorder.
47 In considering DSM-IV to which both experts had reference, I note the following diagnostic criteria pertinent to schizo-typal personality disorder diagnosed by Dr Unwin: (DSM-IV p 701).
· the essential feature of the disorder is a pervasive pattern of social and interpersonal deficits marked by acute discomfort with, and reduced capacity for, close relationships as well as by cognitive or perceptual distortions and eccentricities of behaviour, beginning by early adulthood and present in a variety of contexts
· the condition is indicated by five (or more) of the following:
1. ideas of reference (excluding delusions of reference).
2. odd beliefs or magical thinking that influences and is inconsistent with subcultural norms (eg, superstitiousness, belief in clairvoyance, telepathy, or “sixth sense”; in children or adolescents, bizarre fantasies or preoccupations).
3. unusual perceptual experiences, including bodily illusions.
4. odd thinking and speech (eg vague, circumstantial, metaphorical, overelaborate or stereotyped).
5. suspiciousness or paranoid ideation.
6. inappropriate or constricted affect.
7. behaviour or appearance that is odd, eccentric or peculiar.
8. lack of close friends or confidants other than first-degree relatives.
9. excessive social anxiety that does not diminish with familiarity and tends to be associated with paranoid fears rather than negative judgments about self.
48 In considering the evidence of Dr Trott and Dr Unwin, I note:
· although Dr Trott had apparently met the applicant in the late 1990s, his diagnosis does not appear to follow from such meetings. Neither expert appears to have an advantage in familiarity with the applicant, beyond a single comprehensive consultation (in the case of Dr Trott on 8 February 2005, and in the case of Dr Unwin on 11 January 2006). Accordingly, familiarity with the applicant or his circumstances does not confer greater authority on the opinion of one expert over the other
· the comments of Dr Trott as to his “more conservative approach” and the fact that he did not strongly disagree with the diagnosis of Dr Unwin
· the acknowledged expertise of Dr Unwin in the field of personality disorders
· the fact that, although Dr Trott diagnosed personality disorder of a mixed type, his diagnosis identifies a number of characteristics of schizo-typal personality disorder including the pattern of socially deviant behaviour and the difficulty in maintaining intimate relationships
· the fact that, although Dr Trott did not consider the applicant suffered schizo-typal personality disorder because he did not exhibit characteristics of fancifulness, suggestibility in his thinking or loss of touch with reality which frequently characterise sufferers of the disorder, I note from DSM-IV that these are possible symptoms of a sufferer of schizo-typal personality disorder, and the DSM-IV itself does not provide that these characteristics are an essential feature of a diagnosis of schizo-typal personality disorder.
49 In light of these factors in my view it appears likely that the applicant is suffering schizo-typal personality disorder as diagnosed by Dr Unwin, and that this is the disability suffered by the applicant within the meaning of the DD Act.
DID THE RESPONDENT DISCRIMINATE AGAINST THE APPLICANT WITHIN THE MEANING OF SECTION 6 DD ACT?
50 Section 6 DD Act provides as follows:
(1) For the purposes of this 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 persons 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.
What was the requirement or condition, with which the applicant was required by the respondent to comply?
51 Mr O’Gorman for the applicant submitted in terms of s 6 that the requirement or condition with which the respondent required the applicant to comply was that the applicant most comfortably access the services provided by the respondent at both Cairns Base Hospital and Smithfield Community Health Centre without the assistance of a dog trained to assist the applicant to alleviate the effect of his disability.
52 Mr Murdoch for the respondent submitted that the requirement or condition imposed by the respondent is that a person cannot attend the Cairns Base Hospital or the Smithfield Community Health Centre with a dog that is not a guide or hearing dog recognised by legislation or a dog that has not been approved by hospital management.
53 The concept of “requirement or condition” within the meaning of s 6 or its State equivalents has been considered in a number of cases. Relevant principles include:
· it is only if the alleged discriminator can be said to have required, in the sense of “obliged” or “compelled” the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 577, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81]
· whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia, use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394 per, Sackville and Stone JJ in Catholic Education Office v Clarke (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577
· a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360, Clarke 138 FCR at 143
· the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143
· the notion of “requirement or condition” would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361, Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361:
“...it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands”.
· the expression “requirement or condition” should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394, Clarke 138 FCR at 143.
54 In this case I find that the respondent did impose a requirement or condition, with which it required the applicant to comply. However in my view Mr O’Gorman’s submission mis-states the nature of the requirement or condition in this case. Although ultimately the respondent refused to allow the applicant access to the premises accompanied by his dogs, the policy of the respondent was not to unequivocally deny the applicant such access, whether comfortably or otherwise. Rather, the nature of the “requirement or condition” in this case can be drawn from the conduct of the respondent (through the management of the hospital and the centre) and the policies of the respondent applicable to persons accessing its premises accompanied by animals. In the case of Cairns Base Hospital, the relevant policies are:
· the Dogs in Hospital Policy,
· the Dogs in Hospital Procedure,
· the Integrated (HR/IR) Resource Manual (“IRM”) for Animals in Health Facilities, which is a policy applied by the respondent across its health facilities and is not confined to Cairns Base Hospital, and
· Cairns Base Hospital Infection Control Manual (“Infection Control Manual”).
55 These documents are exhibited to the affidavit of Dr Jillian Newland sworn 13 February 2006.
56 In relation to the Smithfield Community Health Centre, the relevant policy is also the IRM, which was exhibited to the affidavit of Ms Alison McLennan, Acting Health Centre Manager, Smithfield Community Health Centre sworn 9 February 2006 and also to the affidavit of Ms Sonja Lousick, Administration Officer, Smithfield Community Health Centre, sworn 9 February 2006.
The Dogs in Hospital Policy
57 The stated objective of this policy is “To facilitate patients’ quality of life while protecting public health, safety and security for patients, staff and visitors”. The policy is one page in length, and provides:
“Policy Statement:
1) To allow terminally ill patients to be visited by their family dog.
2) To facilitate the independent movement of a patient with sensory disabilities.
Definition of Terms:
Guide Dog - a dog that has been specially trained to assist a person by providing them with safe mobility, independent and self-confidence.
Title of Supporting Procedures:
Dogs in Hospital Procedure CHSD-LM-Proc-Dist_Exe-18-V1-8/07.”
Dogs in Hospital Procedure
58 This document was marked CHSD-LM-Proc-Dist_Exe-18-V1-8/07 and I understand supports the Dogs in Hospital Policy.
The procedure details are as follows:
“1) Approval for visiting dogs must be obtained from the relevant Director of Nursing (DON) during business hours and from the Nurse Manager Resource Allocation after hours.
Visiting dogs must be on a leash and must be controlled by the person bringing the dog. The dog must not disturb other patients (ie through barking).
2) An inpatient with a guide dog should be encouraged to have the guide dog for the duration of the patient’s stay if needed for mobility.
It is the patient’s responsibility to make arrangements to feed, exercise and toilet the dog. Ideally the patient should be accommodated in a single room.
The dog is not permitted in operating theatres, sterilising areas, procedure rooms or food preparation areas.”
The IRM
59 The main section of the IRM, titled “Animals in Health Facilities”, appears to be applicable in relation to both the hospital and the community health centre, and provides as follows:
“1. PURPOSE
The purpose of this policy is to provide guidance regarding animals in health care facilities.
2. BACKGROUND
Animals have been used within health facilities for some time for Animal/Pet Assisted Therapy. However, there are health and safety issues for animals within health facilities. Many animals harbour micro-organisms that have the ability to cause disease in humans. Some animals may also have the potential to behave aggressively and cause harm to persons or property.
3. POLICY
Prior to bringing animals into the health facility, the work area must:
· identify the owner (or person in control of the animal). If the owner is a patient then a signed form must be obtained outlining the pets care if the patient is unable to maintain care;
· conduct a risk assessment that includes the areas of consideration outlined in Attachment One;
· develop a proposed care plan for the animal as outlined in Section 5 and suggested format for forms in Attachment Two; and
· receive endorsement from the senior executive officer of the facility.
An example risk assessment checklist to use is the Queensland Health Audit Checklist available on QHEPS under the Corporate Human Resource/Industrial Relations Policy and Strategy Centre Unit (CHRIRPSC) including the questions for Biological Hazards and include all relevant questions to create a Workplace Specific Audit (examples of issues are included in Attachment One).
4. DEVELOPMENT OF A CARE PLAN
While recognising the benefit of animals in animal assisted therapy it is essential that a procedure/care plan be developed including such issues as exercise, feeding, infection control, visitation rights, and safety issues be developed for animals on the premises (see Templates in Attachment Two).
5. ENDORSEMENT BY SENIOR EXECUTIVE OF THE FACILITY
A copy of the Risk Assessment Checklist and a copy of the proposed Care Plans should be provided to the Senior Executive Officer for sign off prior to the introduction of the animal to the facility.
AREAS TO BE CONSIDERED IN THE RISK ASSESSMENT
What benefits does the animal provide to the clients of the facility?
· Does the animal provide a clinical or therapeutic benefit to clients not staff (Animal/Pet Assisted Therapy)? If this criterion cannot be met, then the animal should not be introduced into the facility.
Please note that Guide Dogs have a legislated right to enter any health care facility. However they are not permitted to enter sterile supply areas, operating rooms, labour wards, in-patient wards, sterile stock storage areas, food preparation and eating areas and ambulances.
Resource requirements for proper care of the animal
· 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 eg cleaning of fish tanks, cleaning up of animal faeces, vomit, urine, fur, cleaning animal food areas, exercising, grooming, supervising etc?
· Would the health care facility be able to cover any associated veterinary expenses in the event of illness or injury to the animal?
Infection control issues for the animal
Considerations should include:
· Do our clients and staff have any allergies to the animal in question?
· If so, how severe and what control measures will be introduced to prevent exposure to fur, feathers etc?
· Are there likely to be people who object to or have phobias of the animal?
· If so how severe and what control measures will be introduced to prevent contact with animal?
· Are adequate food storage areas provided away from patients/other food storage needs?
· Can the animals food be protected from vermin such as rats?
In addition, staff responsible for the care of animals must be familiar with and should follow the Queensland Health Infection Control Guidelines, section on Animals in Health Care Settings.
Control of the animal
· 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 eg dog entering area of direct clinical care, dog leaving controlled environment and wandering the facility?
· Is the animal located in an area with relevant ventilation and positioned away from any inherent workplace health and safety risks eg hazardous substances?
· Who will feed and care for the animal when it is not feasible for the animal to remain in the health care facility unsupervised eg overnight or on weekends?
· Has the animal had either obedience training or is the animal a low risk to humans (eg fish) in terms of attack, bites or scratches?”
60 The applicant in cross-examination indicated that he understood that the respondent’s policy related to visiting pets and that it had nothing to do with assistance animals (TS p 126 ll 12-15). In my view this is not surprising. The policies are not clear as to application to animals other than visiting pets and guide dogs, where there is an acknowledgment that guide dogs are permitted on the premises of the respondent other than sterile areas by reason of legislative recognition. The only reference which could possibly construed to encompass assistance animals other than guide dogs is on p 3 of the IRM where the question is posed whether the animal provides “a clinical or therapeutic benefit to clients”. However even in that context, the IRM refers to “Animal/Pet Assisted Therapy”, and it is by no means clear that assistance animals are contemplated.
61 Nonetheless, it is apparent from evidence given by Dr Newland, Ms McLennan and Ms Lousick that the respondent had assumed that these policies, in particular the IRM, applied to the applicant’s circumstances. In particular, it is clear from cl 3 of the IRM which contemplates liaison between an owner of or a person in control of an animal, and the relevant work area of the respondent, and requires the respondent to conduct a risk assessment and proposed care plan for the animal, that the respondent considered that it should assess the animal in question and the relevant circumstances, and determine whether it was prepared to permit the animal access to its premises.
62 Accordingly, in my view the requirement or condition of the respondent with which the applicant was required to comply was that he not attend the respondent’s premises with an animal, unless the animal is a seeing-eye dog or a hearing dog or unless the animal had been assessed by the respondent as having training and hygiene standards acceptable to the respondent. This characterisation of the requirement or condition more clearly accords with Mr Murdoch’s submission, than Mr O’Gorman’s.
63 It is clear from the evidence that the respondent had communicated to the applicant the nature of this requirement or condition. I note in particular:
· evidence of Mr David Taylor, Fire Safety and Security Manager for Cairns Base Hospital, with respect to a conversation between the applicant and Mr Taylor on 16 November 2004 where Mr Taylor deposed that he had told the applicant that he was not allowed into the hospital with his dog unless he had authority from a higher hospital authority (affidavit of David Taylor sworn 9 February 2006)
· evidence of Dr Newland including her letter of 17 November 2004 to the applicant, exhibited to her affidavit, regarding permission to bring his dogs on to hospital premises, and informing the applicant that permission had been refused
· evidence of Ms Lousick that she posted a copy of the IRM attached to a Queensland Health Circular to the applicant on 31 January 2005 and reminded the applicant of this when he attended the Smithfield Community Health Centre on 7 February 2005 (affidavit of Sonja Lousick sworn 9 February 2006; TS p 223 ll 46-48)
· evidence of the applicant that he had seen the IRM on multiple occasions (TS pp 125-127).
64 It is clear that this requirement or condition was applied to the applicant by the respondent in that:
· management at Cairns Base Hospital assessed the applicant’s dogs and refused to allow the applicant access to its premises with his dogs; and
· management at Smithfield Community Health Centre refused to allow the applicant access to its premises with his dogs and did not assess his dogs in view of the applicant’s failure to submit information in accordance with the IRM.
Can a substantially higher proportion of persons without the applicant’s disability comply or are they able to comply with the requirement or condition?
65 Mr Murdoch for the respondent submitted that:
· to determine whether there has been indirect discrimination, 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 those individuals in the base group are able to comply with the relevant requirement or condition
· using this test, the base group is people without the applicant’s personality disorder, and the comparator group would be those with that personality disorder.
66 This submission accords with comments of Sackville and Stone JJ in Clarke 138 FCR 121 where, in considering a claim brought against the Catholic Education Office in relation to facilities to be provided to a profoundly deaf child in Year 7, the “base group” was students admitted to Year 7 at the school in the relevant year or, alternatively, all students enrolled at the school in the relevant year. As their Honours also observed at 144:
“The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron & Steel v Banovic at 187, a ‘proportion must be a proportion of something’. This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person’s ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the ‘proportion’ able to comply with a requirement in relation to only one person.”
67 In this case the obvious “base group” constitutes members of the community who wish to access Cairns Base Hospital and/or Smithfield Community Health Centre. There is however dispute as to the nature of the comparator group, namely whether it constitutes people with the specific disorder suffered by the applicant (as submitted by Mr Murdoch) or people with a psychiatric disability (as submitted by Mr O’Gorman). Even in relation to the nature of the group, should it be defined as people with the applicant’s disorder, evidence is scanty. As was made clear in the evidence of Dr Unwin, schizo-typal personality disorder is the rarest of the personality disorders (TS p 181 ll 40-43).
68 Mr Murdoch has submitted that I should make no finding as to this issue in light of the lack of evidence of the proportion of people with the applicant’s disability who cannot comply, and the medical evidence of Dr Unwin that there is no difference between the proportion of people with and without the applicant’s disability who can comply. There is no evidence before me as to the proportion of members of the comparator group (however defined) who would have difficulty complying with the requirement or condition of the respondent in this case.
69 However, I am persuaded, as submitted by Mr O’Gorman, that commonsense dictates that the majority of people in the community, including the community which seeks to access Cairns Base Hospital and/or Smithfield Community Health Centre, would have no difficulty accessing the premises without an animal, and do not require an assistance dog to be able to access the respondent’s premises. Accordingly for the purposes of s 6, I am prepared to hold that a substantially higher proportion of persons without the applicant’s disability are able to comply with the requirement or condition imposed by the respondent in this case.
Was the requirement reasonable having regard to the circumstances of the case?
70 Principles relevant to this question were summarised by Sackville and Stone JJ in Clarke 138 FCR at 145-146 as follows:
“i. The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111;
ii. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83;
iii. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and
iv. The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395... However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable...”
71 With respect to this issue, Mr O’Gorman for the applicant submitted in summary:
1. the nature and extent of the discriminatory effect of the applicant being unable to access the hospital and clinic without his assistance dog is of much greater significance than the reasons advanced by the respondent in favour of the condition or requirement.
2. while the test is objective, the subjective preferences of the applicant are relevant in assessing whether the requirement or condition is reasonable.
3. the dogs in question are well-behaved.
4. the respondent took no meaningful steps to request the applicant to do anything to enable his dogs to be allowed access to its premises other than sending him the IRM with a with compliments slip.
72 Mr Murdoch for the respondent submitted however that it is reasonable for the respondent to deal with alleged assistance dogs on a case by case basis in accordance with the policies and require management permission because:
1. the respondent has a logical and understandable basis for prohibiting dogs other than guide and hearing dogs and other dogs approved by management in its hospital or health centre, being the safety of staff, patients and visitors, and infection control.
2. the question is whether it is reasonable for people with alleged assistance dogs to have to comply with the policies, including obtaining prior permission.
3. unlike guide and hearing dogs there are no registered training providers for assistance dogs in Queensland, and therefore it is far more difficult for the respondent’s staff at the hospital and the health centre to determine on the spot whether the dog is a legitimate assistance dog.
4. the Guide Dogs Act 1972 (Qld) only recognises dogs trained by certain organisations, which are listed in the Guide Dog Regulation 1972.
5. it is reasonable for the respondent to deal with alleged assistance dogs on a case by case basis in accordance with its policies, because when an animal is first presented for access to its premises the respondent has no idea whether the animal is safe or otherwise and within its premises it has a broad range of people, visitors, patients and other people requiring care.
73 I accept that the respondent operates health care facilities at the relevant premises, including an acute health care facility in respect of Cairns Base Hospital. Further, I accept that the respondent needs to maintain high levels of hygiene and infection control and institute procedures to ensure the health and safety of its staff, patients and visitors, and that both premises in question are public health premises where members of the community attend, including those needing medical care, and vulnerable members of the community including children and the elderly.
74 However in my view the requirement or condition of the respondent in this case was not reasonable, for the following reasons.
75 First, s 3 DD Act states the objects of the Act as:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) 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; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
76 The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances (Daghlian v Australian Postal Corporation [2003] FCA 759), studies in Auslan for a deaf child (Clarke 138 FCR 121; Hurst v Queensland (2006) 151 FCR 562) or wheelchair access (Cooper v Human Rights & Equal Opportunity Commission (1999) 93 FCR 481).
77 Second, there is no dispute that the applicant suffers a disability within the meaning of s 4(1)(g) DD Act. While the applicant does not have a guide dog as defined in s 3 Guide Dogs Act 1972 (Qld), namely a dog trained at an approved institution and used as a guide by a blind person or as an aid by a deaf person, nonetheless he claims, and claimed in his dealings with the respondent, that he has assistance animals as contemplated by the DD Act. The DD Act does not differentiate in substance between see-eye dogs, dogs to aid hearing, and other assistance animals.
78 Third, the respondent in its policies and procedures accommodated guide dogs on the basis that legislation - presumably the Guide Dogs Act 1972 (Qld) - legitimised the presence of such dogs. I presume that this view of the respondent was not based on the DD Act, which as I have noted does not differentiate in substance between different types of assistance animals.
79 Fourth, the respondent 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. While the respondent may be within its rights to do so in relation to such animals, assistance animals as recognised by the DD Act are not pets or therapeutic animals any more than a see-eye dog or a hearing dog is a pet or a therapeutic animal.
80 Fifth, I accept the submission of Mr Murdoch to the extent that it is reasonable for the respondent to deal with alleged assistance dogs on a case by case basis because when an animal is first presented for access to its premises the respondent has no idea whether the animal is safe or otherwise. However, a crucial flaw in the approach adopted by the respondent in relation to such animals is that it:
(a) made no provision in its policies for assistance animals other than possibly by reference to “clinical” benefits, but even this is unclear; and
(b) gave complete discretion to the respondent as to whether or not it is satisfied that an assistance animal is an assistance animal for the purposes of the Act.
81 While the desire of the respondent 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 for persons such as the applicant to cross. There is no certainty in this requirement or condition, and there are no objective criteria for the applicant to satisfy. The decision as to whether the applicant has complied with the respondent’s requirement or condition as contemplated by s 6 DD Act lies totally at the subjective discretion of the respondent. One might ask, even if the applicant or another person with the applicant’s disability wanted to comply, how could he put himself into a position that he could be confident that he could comply, or alternatively understand that he could not comply, with the requirement or condition of the respondent?
82 In attempting to comply with the requirement or condition, the applicant gave evidence that he had supplied the hospital with “public access confirmation from a vet as well as (Knuckles) confirmation of vaccination to C5 standard” in relation to Knuckles and had assumed that this was sufficient information (TS 12 September 2007 p 93 ll 41-44). Clearly, however, it was not sufficient to satisfy the respondent. The decision of the respondent to deny access to the applicant in the company of his dogs appeared to derive from numerous incidents at the hospital involving the applicant and his dogs, which I discuss later in this judgment, and in the case of Smithfield Community Health Centre, evidence that the applicant had been sent a copy of the IRM in January 2005 (affidavit of Ms Lousick para 13) and the applicant had not provided information to the centre upon which an assessment as to his dogs could be made.
83 I have considered whether the requirement or condition could be considered reasonable if a term were to be implied that the respondent, in making its decision, were to act reasonably. However I am not satisfied that I should so find. First, I consider that it is straining the terms of the requirement or condition in this case beyond what was contemplated by the respondent - in my view the respondent, for what it may see as good reasons, sought to retain a discretion which entailed a wholly subjective assessment by the respondent as to whether an animal should have access. Secondly, I find this to be inappropriate in light of the objects of the DD Act and the intention of Parliament to ensure as far as practicable that persons with disabilities have the same fundamental rights as the rest of the community.
84 I note the submission of the respondent that, in light of the absence of legislatively-endorsed accreditation other than in relation to guide dogs, the respondent cannot be confident that an unknown animal will meet training and hygiene standards in premises which are health facilities other than by assessment on a case-by-case basis. While this is of concern - and I shall return to this issue at the conclusion of my judgment - this is no answer to circumstances where compliance with the requirement or condition, which has the potential to deprive a disabled person of their support animal, is totally within the subjective assessment of the respondent.
Did or could the applicant comply with the requirement or condition?
85 It is clear that on the facts of this case the applicant did not comply with the requirement or condition of the respondent.
86 I have taken the view that the requirement or condition was not reasonable. In the circumstances I find that the respondent has discriminated against the applicant in terms of s 6 DD Act.
DID THE RESPONDENT DISCRIMINATE AGAINST THE RESPONDENT WITHIN THE MEANING OF SECTION 9 DD ACT?
87 Section 9 DD Act provides:
“(1) For the purposes of this Act, a person (discriminator) discriminates against a person with:
(a) a visual disability; or
(b) a hearing disability; or
(c) any other disability;
(aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses, or is accompanied by:
(d) a guide dog; or
(e) a dog trained to assist the aggrieved person in activities where hearing is required, or because of any matter related to that fact; or
(f) any other 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 possesses, or is accompanied by, a dog or any other animal.
(2) Subsection (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 or because of any matter related to that fact.”
88 In this case it is common ground that the only provision in contention is s 9(1)(f).
Was the animal - in this case Knuckles and Buddy - “trained to assist” the applicant alleviate the effect of his disability?
89 Key questions which in turn arise are:
· were the dogs “trained”?
· were they trained to assist the applicant “alleviate the effect of his disability”?
“Trained”?
90 The word “trained” is not defined in the DD Act. The verb “train” is defined in the Macquarie Dictionary (4th ed) as including:
“to discipline and instruct (an animal) to perform specified actions”.
91 Both the applicant and the Commissioner have submitted that s 9(1)(f) DD Act should be given its ordinary and natural meaning, and the Court need merely be satisfied that the animal has undergone a process of discipline and instruction to learn specific skills that enable it to assist a person to alleviate the effect of his or her disability. The respondent has submitted as an alternative that, if the dogs have been trained by the applicant, it is questionable whether such “training” satisfies the meaning in s 9(1)(f) DD Act. Further, the respondent submits that “trained” in the context of s 9(1)(f) carries with it the requirement that the animals are adequately trained to be allowed public access. The respondent refers to comments of McMurdo J in Matthews v Commissioner of Police [2005] QSC 122 where his Honour noted that it was not plain that the dogs in question in that case had been trained “in the sense which is relevant for the operation of section 9”.
92 In my view however there is nothing in the DD Act, in particular s 9(1)(f), which justifies an interpretation of the word “trained” beyond its ordinary meaning as found in the Macquarie Dictionary. I agree with the Commissioner that there is no requirement in s 9(1)(f), elsewhere in the DD Act, or in the regulations made pursuant to the DD Act, either explicitly or by implication, that an animal:
1. be trained by a particular type of trainer or organisation;
2. undertake a particular amount of training; or
3. be accredited by or registered with a particular agency or organisation.
93 This view is consistent with the decision of Raphael FM in Sheehan v Tin Can Bay Country Club [2002] FMCA 95, and to that extent I disagree with Mr Murdoch’s submission that that case was incorrectly decided.
94 Further, I accept the submissions of the applicant and the Commissioner that there is no pre-requisite as to the type of animals that can be assistance animals for the purposes of s 9(1)(f). I do not read any limitation to the terms of s 9(1)(f) from paras (d) and (e) notwithstanding that those paragraphs were limited to dogs. Further, while I accept the evidence of Ms Sara Walker of Assistance Dogs Australia that labradors and golden retrievers are trained as assistance dogs because of the social acceptability of the breeds and their extremely good nature, and that it is very uncommon for other breeds of dogs to be trained as assistance dogs (affidavit of Sara Walker sworn 9 August 2006 paras 7-8), there is no limitation in the Act as to the types of dogs which can be assistance animals.
95 The broad terms of s 9(1)(f) DD Act can be contrasted with, for example, the Guide Dogs Act 1972 (Qld) which defines “guide dog” for the purposes of that statute in the following terms:
· “guide dog” means a dog trained at an approved institution and used as a guide by a blind person or as an aid by a deaf person (s 3 Guide Dogs Act)
· “approved institution” is defined by s 3 Guide Dogs Act to mean an institution that:
(a) trains dogs as guides for blind persons or aids for deaf persons; and
(b) is declared under a regulation to be an approved institution for this Act.
· an “approved institution” for the purposes of s 3 Guide Dogs Act is defined by the Guide Dogs Regulations 1997 (Qld) as:
· Guide Dog Association of New South Wales and ACT,
· Guide Dogs for the Blind Association of Queensland,
· Lions Hearing Dogs Incorporated,
· Royal Guide Dogs Associations of Australia,
· The Guide Dog Owners’ and Friends’ Association, and
· institutions established outside Australia that are members of The International Federation of Guide Dog Schools for the Blind.
96 The Commissioner has also drawn my attention by way of comparison to the Dog Control Act 1996 (NZ) where “disability assist dog” is narrowly defined as:
“...a dog certified by the following organisations as being a dog trained to assist...a person with a disability:
a. Hearing Dogs for Deaf People in New Zealand
b. Mobility Assistance Dogs Trust
c. New Zealand Epilepsy Assist Dogs Trust
d. Royal New Zealand Foundation of the Blind
e. Top Dog Companion Trust
f. any other organisation specified in a Order in Council under s 78D of the Act.
97 In regard to comments of McMurdo J in Matthews (2005) QSC 122, in that case it was not clear that the applicant suffered a disability within the meaning of the DD Act; further there appeared to be no evidence before his Honour that the relevant dogs in that case were trained at all. As his Honour said in that case:
“The applicant does not have a visual or hearing disability and it is not at all clear to me that his dogs are ‘trained to assist the aggrieved person to alleviate the effect of the disability’. There is no evidence of any training apart from the applicant’s own statement to me, in the course of his submissions, that he trains his dogs. It isn’t plain that they are dogs trained in the sense which is relevant for the operation of section 9.”
98 Accordingly, I do not find submissions with respect to this case helpful.
99 Some support for an interpretation which recognises the breadth of the statute can be found in two US cases where similarly drafted legislation was considered:
· In Bronk v Ineichen 54 F 3d 425 (7th Cir 1995) two profoundly deaf tenants complained that they had been the subject of discrimination by their landlord in relation to their dog which they claimed as a hearing dog. In acknowledging that it was necessary to establish as a minimum that the disabled persons’ quality of life would be enhanced because the effect of their disability would be ameliorated by the accommodation of the animal (at 429), the United States Court of Appeals Seventh Circuit held that lack of formal schooling did not mean that the dog did not have enough skills to actually aid in the daily functions of a deaf person (at 430, 431). The relevant legislation in that case was Wis Stat Ann §101.22 (4)(bm) which related, inter alia, to “an animal that is specially trained to lead or assist the individual with impaired vision, hearing or mobility...”.
· In Green v Housing Authority of Clackamas County 994 F Supp 1253 (D Or 1998) where the landlord argued that the dog was not an appropriate accommodation for a deaf person because the plaintiffs were unable to produce any “verification” that the dog was a “certified” hearing assistance trained animal, the United States District Court found in favour of the plaintiff on grounds including that there was no relevant certification process for hearing dogs and no requirement as to the amount or type of training a service animal must undergo (at 1255-1256). The relevant legislation in that case was Or Rev Stat §346,690 which prohibited a landlord from refusing to rent a dwelling unit to a physically impaired person on the basis of the use or possession of an assistance animal.
100 In my view s 9(1)(f) contemplates an animal which has been “trained” in the sense of having been disciplined and instructed to perform specified actions, but not by any particular person or organisation, nor to any standard of accreditation by any organisation.
Are the applicant’s dogs “trained”?
101 In this case there is considerable evidence as to the training of the applicant’s dogs.
102 Ms Christine Coop gave evidence that Buddy had been trained to meet all the command requirements of the “Assistance Dog Public Access Certification Test”. Ms Coop is an occupational therapist specialising in mental health rehabilitation, who gave evidence that she has had contact with the applicant since early April 2004 and has observed the applicant and his dog Buddy working as an assistive-dog unit on two occasions other than in her immediate clinical environment (p 6 expert report attached to Ms Coop’s affidavit 9 February 2006).
103 It is not in dispute that the purpose of that test is to ensure that dogs who have public access are stable, well-behaved and unobtrusive to the public, and to ensure that the client has control over the dog and that the team of person and animal is not a public hazard. In her report, Ms Coop stated that Buddy had completed the test with the applicant on 23 February 2005, with Ms Coop and Dr Owens Lavers present as observers. The command requirements of that test are:
· the dog did not try to leave vehicle until given release command
· the dog waited in the vehicle until released
· the dog waited outside the vehicle under control
· the dog remained under control while another dog was walked past
· the dog stay (sic) in a relative heel position while approaching the building
· the dog was calm around traffic
· the dog stopped when the individual came to a halt
· the dog waited quietly at the door until commanded to enter
· the dog waited on the inside until able to return to heel position
· the dog was within the prescribed distance for heeling while moving through the building
· the dog ignored the public, remained focused on the individual
· the dog readily adjusted to speed changes
· the dog readily turned corners, did not have to be tugged or jerked to change direction
· the dog readily manoeuvred through tight quarters
· the dog responded readily to the recall command from a six-foot lead - did not stray away, seek attention from others, or trudge slowly
· the dog remained under control and focused on the individual while on the six-foot lead
· the dog came within the prescribed distance of the individual
· the dog came directly to the individual
· the dog responded promptly to the command to sit
· the dog remained composed while the shopping cart passed, did not shy away, show signs of fear etc, (shopping cart pushed normally, not dramatically)
· the dog maintained a sit-stay while being petted by a stranger
· the dog responded promptly to the command to down
· the dog remained under control around food - not trying to get food and not needing repeated corrections
· the dog remained in control while a child approaches (where the child is not taunting the dog or being overly dramatic)
· the dog maintained a down-stay while being stepped over by a stranger
· the dog remained composed during noise distraction (quick startle or turn is fine, but no fear, aggression or ongoing reaction to noise)
· the dog is unobtrusive and out of the way of patrons and employees as much as possible in a restaurant
· the dog maintained proper behaviour, ignoring food and being quiet in a restaurant
· when told to drop the leash, the team maintained control and the individual got the leash back in position
· another person can take the dog’s leash and the dog’s partner can move away without aggression or undue stress on the part of the dog
· the dog stayed in a relative heel position during controlled exit from a building
· the dog waited until commanded to enter the vehicle
· the dog readily entered the vehicle upon command
· the dog is relaxed, confident and friendly
· the person kept the dog under control.
104 This standard of training of Buddy was supported by evidence of Dr Owen Lavers, a veterinarian of 30 years standing, who certified that the test was conducted in a competent and realistic manner (report dated 10 March 2005, attached to affidavit of Dr Lavers sworn 24 January 2006). Dr Lavers stated in his report that Buddy “was stable, well behaved and unobtrusive to the public. I also judged that Mr Forest had complete control over the dog and he and his dog were not a public hazard” (p 2 of report dated 10 March 2005, attached to affidavit of Dr Lavers sworn 24 January 2006).
105 Evidence was also given by Ms Simone de la Fonteyne, Assistant Chief Instructor, Mooroobool Dog Obedience School in an affidavit sworn 25 January 2006 that she participated in an “Assistance Dog Public Access Test” for Knuckles on 25 January 2006, that Knuckles completed the test competently, and that in her view Knuckles was stable, well-behaved and unobtrusive to the public at all times throughout the assessment. Ms de la Fonteyne concluded that during the test the applicant showed complete control as the team leader, and that the applicant and Knuckles did not present to be a public hazard at any time (affidavit paras 21-24).
106 In his affidavit affirmed 31 August 2006, the applicant also deposed as to the minimum standards for training assistance “AWARE” dogs:
“PARTNERS AWARE AUSTRALIA INC
(AWARE DOGS)
These are intended to be minimum standards for all assistance dogs placed by AWARE DOGS; all teams are encouraged to work at levels above the minimum standards.
1. A minimum of one hundred twenty (120) hours of training over a period of no less than six (6) months, takes place under the supervision of a qualified trainer. During that time at least thirty (30) hours or regularly scheduled training is devoted to field trips and public exposure.
2. Basic obedience skills the dogs must master with voice and/or hand signals are: sit, stay, come, down, heel and off leash recall.
3. The dog must show social behaviour skills of no aggression, no inappropriate barking, no biting, no snapping/growling, no inappropriate jumping on strangers, no begging and no sniffing of people.
4. The assistance dog must be trained to alleviate effects of the disability experienced by its partner.
5. The training time with the student prior to placement is a minimum of no less than thirteen (13) days. This is both public and private. All graduates are given a solid education in appropriate behaviour of the team. The dog should stay as unobtrusive as possible and not interfere with people.
6. AWARE DOGS requires the recipient to complete a follow-up progress report once a month for the first six months following the placement. Personal contact will be done by qualified staff or program volunteer within twelve to eighteen (12-18) months of graduation and annually thereafter.
7. Identification of the Assistance Dog will be accomplished with a plastic ID card with a photo of the dog and partner and names of both recipient and dog. In public the dog will wear a harness, backpack or slicker with the AWARE DOGS logo that is clear and easy to read and identifiable as an assistance dog.
8. AWARE DOGS, as a service provider maintains staff able to demonstrate knowledge of the disabilities of the clients it works with.
9. The recipient must agree to abide by the Minimum Standards for Assistance Dog Partners.
10. At the onset of training, every dog will be spayed or neutered and will have a thorough medical evaluation to determine that the dog does not have any physical problems that would cause difficulty for a working dog.”
107 The minimum standards appear to indicate a general training regime for AWARE dogs, including the applicant’s dogs. I understand from the oral evidence of the applicant that Buddy and Knuckles are trained to higher standards than the minimum standards of Partners AWARE, but including those standards (TS pp 6-13).
108 The training of the dogs to a high standard of obedience would not of itself necessarily be training which could assist to alleviate the effect of the applicant’s disability (although in my view it could be a relevant factor in the sense that a badly-behaved animal may in certain circumstances aggravate the effect of a disabled person’s disability rather than assist to alleviate the effect. However, this issue did not arise in this case). I accept the evidence of Ms Walker of Assistance Dogs Australia that a number of skills could be taught to any pet, including:
· moving to a particular position on command;
· making eye contact on command; and
· holding any position.
109 Clearly s 9(1)(f) requires the establishment of a nexus between the skills the animal has been trained to performed, and the alleviation of the effect of the aggrieved person’s disability. However, Ms Coop gave evidence that the applicant used Buddy in a very deliberate and sophisticated way, and that the applicant was training Knuckles as a replacement for Buddy. Ms Coop stated in her evidence that the applicant had trained Buddy to:
· move between him and someone else
· approach another person (“Buddy, say ‘hello’”)
· interact with another person
· interact with the applicant 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 the applicant when he is in a state of distress
· initiate the end of social interaction (through Buddy making “whiney-its-time-to-go” actions and sounds).
110 Ms Coop stated in her report:
“Unless you have Mr Forest explain to you, prior to directing ‘Buddy’ to undertake these actions (mostly small non-verbal signals), what he is going to get the dog to do, and then observe ‘Buddy’ obediently carry the instruction out, a stander-by would be convinced that ‘Buddy’ is acting naturally as a dog and not under human direction.”
111 A great deal of evidence was given by the applicant at the hearing as to his training of the dogs. It seems from the evidence given by the applicant at the hearing that some of the skills displayed by his dogs, particularly Buddy, are instinctive. Ms Walker gave evidence that some dogs instinctively know when their owner is upset or anxious and may respond accordingly, perhaps with a lick of the hand or by sitting close to their owner (affidavit of Sara Walker para 36(c)) and I accept that this is the case. The applicant gave examples of behaviour of his dogs which appeared to be instinctive, for example his dog Buddy avoiding the applicant in the mornings (TS p 19 ll 40-41). However the applicant also gave evidence as to the tasks which he had trained Buddy and Knuckles to do, and their impact on him. Tasks are set out in Annexure A to the applicant’s affidavit of 27 January 2006 as follows:
“General Outline of Buddy and Knuckles Trained Tasks
| Task Name | Description of Task | Impact |
| Moveable | Command Buddy to move to a particular position | Lessens anxiety |
| Eye to eye contact | Command Buddy to make eye to eye contact and give me a status reading | Lessens anxiety and provides reassurance, provides stability of mood |
| Responds to signs of distress | Responds to signs of distress according to need | Calms mood, lessens anxiety |
| Hold any position | Command Buddy to come to my side and stay by me (to hug/provide tactile stimulation/reassurance) | Lessens anxiety and distress, lessens feelings of isolation, provides stability of mood and in-situational stabilization |
| Up on lap | Command buddy to sit or lie on my person and stay | Lessens anxiety/stress stabilizes erratic thoughts and mood swings |
| Signal to interact | Command buddy to approach person and interact as necessary | Lessens anxiety/stress, facilitates social interactions |
| Assist to leave a situation | Provides opportunity for me to leave stressful situation | Lessens anxiety/stress, lessens feeling of being overwhelmed, distracts |
| Alert to extended time spent | Alert when an hour or so has passed | Provides stability of mood, provides in-situational stabilization |
| Come and hold | Command Buddy to come and hold for hug | Lessens feelings of isolation, provides stability of mood, provides in-situational emotional stabilization |
| Lick on command | Command Buddy to lick on command | Lessens feelings of isolation, provides stability of mood and arrests panic attack |
| Alert to incipient mood swing/anxiety | Distracting behaviour | Provides opportunity to make necessary adjustments |
| Motor vehicle stress leveller | Maintaining physical contact | Lessens stress and anxiety, helps maintain focus while driving |
112 The applicant deposed that he used Buddy as an assistance dog as a medium for his interaction with others and to mitigate the anxiety and distress he experiences (affidavit of 27 January 2006 para 28). He deposed that he commenced training Knuckles to be an assistance dog, Buddy’s replacement, the day he purchased him (affidavit of 27 January 2006 para 54).
113 Finally, I note that Ms Walker of Assistance Dogs Australia conceded that it would be possible for a person to train their own dog as an assistance dog to provide help around the home environment, however the dog could lack the high degree of socialisation and behaviour required for the dog to be suitable for public access (affidavit of Sara Walker para 33). There is no requirement in the DD Act that an assistance animal for the purposes of s 9(1)(f) be suitable for public access. However in any event, I note that over four days of hearing the applicant was in the witness box for much of two of those days, accompanied by his dog Knuckles. I formed the view at that time that Knuckles was extremely well-behaved, responsive to the applicant and his commands, and at all times under the control of the applicant. From viewing Knuckles, and evidence given by witnesses who are familiar with both of the applicant’s dogs including Ms Coop, the applicant’s general practitioner, Dr David Cuming (letter attached to his affidavit sworn 24 February 2006) and Ms de la Fonteyne I am satisfied that the applicant’s dogs Buddy and Knuckles are suitable for public access.
114 In my view, the applicant’s dogs are “trained” within the meaning of the DD Act.
Assist to alleviate the effect of the disability
115 It is clear that the applicant’s dogs are very important to him as companions, and that they perform a therapeutic role for the applicant. At the hearing, Ms Coop gave, as an example of therapy, circumstances where a person conducted breathing exercises or used animals as a way to allow him or her to calm down (TS p 88 ll 20-39). In my view examples of the applicant’s dogs being used in a therapeutic manner include:
· from evidence of the applicant where he says “I feel as if I’m intrinsically different and alien. This makes me feel tense or anxious and isolated. When Buddy is with me I still experience these things. However I do not feel alone because I have Buddy’s support. Therefore those feelings are not as overwhelming and I can function in a way which simply would not be possible without Buddy there to assist me, especially at times of stress overload” (emphasis added) (affidavit of Che Forest affirmed 27 January 2006 para 42) and “In addition, by managing of Buddy has helped me develop skills of my own self-management such as grooming, eating and health and has improved my well-being” (affidavit of Che Forest affirmed 27 January 2006 para 44); and
· tasks performed by the dogs which appear lessen his stress and anxiety such as licking on command, holding a position, come and hold and allowing him to hold them in his lap.
116 However, the fact that the dogs provide both companionship and therapy to the applicant does not in my view derogate from the performance of tasks which potentially assist in alleviating the effect of the applicant’s disability.
117 The word “alleviate” is defined in the Macquarie Dictionary (4th ed) as meaning “to make easier to be endured; lessen; mitigate...” In my view the word should be given its natural meaning. The Commissioner has also submitted that the terms of s 9(1)(f), in requiring that the trained animal assist in “alleviating” the effect of the disability, does not require the Court to be satisfied that an aggrieved person “needs” an assistance animal. I accept this submission. In my view an appropriate analogy to draw is in relation to a person who is blind and who possesses both a white cane and guide dog. While on occasions the blind person may dispense with the guide dog in favour of the cane for reasons of their own, and accordingly it is arguable that as such the person does not “need” the dog, it is unquestionable that a guide dog alleviates the effect of that disability, namely inability to see.
118 Although Dr Trott and Dr Unwin reached different conclusions as to the nature of the disability suffered by the applicant, the opinions of the experts as to the applicant’s disability significantly overlap in relation to their views of the effects of his disability. In particular, I note that, according to both experts, effects of the applicant’s disability can be summarised as:
· difficulties in relating to others (described by Dr Unwin in his diagnosis of schizo-typal personality disorder as “a pervasive pattern of social and interpersonal deficits marked by acute discomfort with and reduced capacity for close relationships (TS p 181 ll 42-43)); and
· difficulties in identification of appropriate boundaries of normal behaviour (described by Dr Unwin in his diagnosis of schizo-typal personality disorder as “perceptual distortions and eccentricities of behaviour” (TS p 181 ll 42-43) and an inability to understand how “normal” people operate (TS p 181 ll 23-24)).
119 As a result of this, the applicant exhibits a pattern of dislocated encounters with others, and socially deviant or eccentric behaviour.
120 I accept evidence given by Ms Coop at the hearing that the applicant’s dogs are instructed to perform tasks which assist the applicant to navigate a social environment (TS p 89 ll 3-5). Ms Coop explained at the hearing:
“So, for example, in his case Che doesn’t pick up the social cues of the environment very effectively, so it takes him a bit longer to actually process information that a large number of people would pick up much quicker. So therefore that puts him on a back foot in terms of starting interactions with people. The dogs, by getting in and actually stepping in and giving him that bit of space, gives him a bit of time to go through his anxiety enough to then pick up, you know, some of the more subtle information that will help him negotiate socially in an appropriate way.” (TS p 89 ll 20-27)
121 I also note evidence given by Ms Coop in response to questions of Mr O’Gorman for the applicant:
“MR O’GORMAN: Ms Coop, with those examples that you used are you able to say whether they alleviate the effect of the disability?---Well the disability is the effect. Do you mean the effect of the impairment that leads to the disability?
Yes?---Inasmuch as my observations would say that, you know, knowing his difficulty with reading the environment and being able to have conversations with people and how that affects him, the dogs actually do step in my their action (sic) mean that he is actually able to participate in social interactions where he couldn’t before.
And therefore they are alleviating an effect of that disability?---Yes.”
(TS p 89 ll 33-42)
122 Although Dr Trott questioned the value of Ms Coop’s evidence concerning the impact of the dogs on the applicant’s disability, on the basis of lack of formal objective analysis, the potential for her presence to contaminate the analysis and her lack of detailed analysis of the applicant’s capacity without the dogs, I accept her evidence for the following reasons:
· the fact that she had observed the applicant with his dogs in public on two occasions when the applicant was not aware that she was observing him (TS p 86 ll 9-32); and
· her professional expertise and specialisation as a senior occupational therapist in mental health as evidenced by her development of a structured tool used by occupational therapists working in mental health in Queensland (p 3 of report attached to affidavit of Christine Coop sworn 9 February 2006).
123 Further, I accept evidence by Dr Cuming, who gave evidence that he knew the applicant very well and had dealt with the applicant as a patient for five to six years, and who stated that he had seen an improvement in the applicant’s personality and his ability to interact in a social setting since he has been involved with the dogs (TS pp 161-162, letter dated 6 April 2005 attached to affidavit of David Cuming sworn 20 January 2006).
124 In my view it is clear that a number of tasks performed by the dogs, for which they have been trained by the applicant, assist the applicant to alleviate the effect of his disability. In particular, relevant tasks are to interact, assist to leave a situation and alert to extended time spent. Further, I accept that a number of tasks to which the dogs have been trained, such as “come and hold”, while therapeutic, also assist the applicant 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 incidence of eccentric behaviour which is a characteristic of the applicant’s disability. Notwithstanding that some actions of the dogs including responding to signs of the applicant’s distress are in my view probably instinctive, I accept the evidence of both the applicant and Ms Coop that the dogs perform a range of tasks which assist in alleviating the effect of the applicant’s disability through the use of both verbal and non-verbal commands to which the dogs have been trained to respond by the applicant.
125 I note that both Dr Trott and Dr Unwin were generally of the view that the applicant’s dogs neither improved nor exacerbated his disorder. Under cross-examination Dr Trott concurred with Dr Unwin that there is no treatment recommendation, clinical evidence or best practice guidelines for the presence of a dog in relation to Mr Forest’s social anxiety or depression (TS p 112 ll 33-35). Dr Trott said that “the issue really is more that the dog...is that of a companionship” (TS p 112 ll 45-46). Dr Unwin in his report opined that the presence of a dog gives the applicant some confidence and companionship however it “does not improve or deteriorate his disorder” (p 8 of Dr Unwin’s report). The doctor also said that in the case of schizo-typal personality disorder there is no evidence of which he was aware that animals could help in relation to the problem. Both experts agreed that it was possible that the possible improvement in the applicant’s behaviour was as a result of his assistance dogs, however it was not a view which Dr Unwin endorsed (TS p 179 ll 3-7). Dr Trott conceded that, in relation to alleviating the effects of the disability, any “alleviation” was referable to a subjective response by the applicant (TS p 113 ll 15-19), it was untested (TS p 113 l 16), and the usefulness of the dogs in helping the applicant was unclear (TS p 113 ll 22-23). Dr Trott also said “it was difficult to objectify the treatment which relied upon a patient’s subjective experience” (TS p 113 ll 30-32), that there was no evidence in the literature to suggest that this treatment of using dogs was effective for these conditions, and it would be too difficult to measure objectively (TS p 113 ll 34-35).
126 While I accept the evidence of these experts, it is not the role of the Court to consider whether the assistance of the dogs improves the applicant’s medical condition or is effective treatment for his disability. It is the role of the Court to consider whether, in the context of s 9(1)(f), the assistance of the trained animals alleviates the effect of his disability. Again in my view an analogy can be drawn with a blind person, who uses a guide dog for assistance - it is not the case that the use of the dog either improves the person’s sight or is an effective treatment for their disability, however it is well-recognised in the community, and indeed legislation, that such dogs do alleviate the effect of blindness. Similarly in this case, in my view while it is indeed possible that the assistance of the applicant’s dogs do not contribute to an improvement in the schizo-typal personality disorder from which he suffers (such as allowing him to more easily identify boundaries of “normal” behaviour), nonetheless the assistance of the dogs do alleviate the effect of that disorder for the applicant.
Did the respondent treat the applicant less favourably because he was accompanied by an animal?
127 The respondent has submitted that it did not treat the applicant less favourably because he was accompanied by an assistance dog - rather it refused him access to its premises while he was accompanied by his dog/s. The respondent submits:
“At first sight it could thus be argued that he was thus treated less favourably because he was accompanied by an assistance dog.
The reality though is that the actual fact Mr Forest was accompanied by an assistance dog was not the reason for the refusal of entry. The actual reason was that as at 16 November 2004 his dogs had not been approved by management and, once management had considered the matter after 16 November 2004, because it was believed that his dogs were ill-behaved, ill-controlled and that there was inadequate evidence of proper assistance dog training.
Accordingly, Mr Forest did not receive less favourable treatment because he was accompanied by an assistance dog.”
128 I do not accept this submission. Unlike s 6 DD Act which contemplates requirements or conditions in terms of reasonableness, s 9 is not similarly qualified. Section 9 does not permit a person to discriminate against a person accompanied by an assistance animal as contemplated by ss 9(1)(d) to (f) on the basis of reasonableness - the issue is whether the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by the animal. Accordingly, in terms of s 9(1)(f), the legislation assumes that it is appropriate for a person to be accompanied by an animal trained to assist him or her to alleviate the effect of the disability, and provides no scope for the imposition of requirements or conditions on that accompaniment, including approval by the discriminator on any grounds. As I have already explained in my judgment, s 9(1)(f) does not, either explicitly or implicitly, require the animal to be trained to any standards of behaviour or control.
129 In my view, the respondent did treat the applicant less favourably at both Cairns Base Hospital and Smithfield Community Health Centre because he was accompanied by his assistance animals, in the sense that, as the respondent acknowledged, it refused him access to both premises and refused him services in the company of the dogs. It is no answer to say that it would have allowed the applicant access either without his dogs - which is implied by the respondent’s submission that it refused the applicant access while accompanied by his dogs - or with dogs which it considered to be well-behaved, well-controlled and trained to a proper assistance dog standard. To otherwise hold, and to allow a distinction in these circumstances to be drawn between “because” of the accompaniment of the dogs, and “while” accompanied by the dogs, would in my view undermine the object of the DD 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 (s 3(b) DD Act). This object is recognised by s 9(1)(f) in relation to the accompaniment of a disabled person by an assistance animal.
130 Accordingly, I find that the respondent discriminated against the applicant, being a person with a disability, within the meaning of s 9(1)(f) DD Act. It is therefore appropriate to consider whether the respondent has acted unlawfully in so discriminating against the applicant within the meaning of s 23 and/or s 24 the DD Act.
DID THE RESPONDENT ACT UNLAWFULLY WITHIN THE MEANING OF SECTIONS 23 OR 24 DD ACT?
131 The applicant alleges breaches of either or both ss 23 and 24 DD Act on the part of the respondent, in that the respondent discriminated against the applicant in the areas of:
(i) access to premises (as prohibited by s 23); and/or
(ii) goods, services and facilities (as prohibited by s 24).
132 I note that in closing submissions Mr O’Gorman for the applicant stated that the applicant did not submit that his assistance dogs should be permitted in sterile areas (TS p 316 at ll 46-48 and p 317 ll 1-4). The applicant’s case was confined to non-sterile areas of the respondent’s premises. Reference to sterile areas is made in the IRM, which provides that no animal is allowed into sterile supply areas, operating rooms, labour wards, in-patient wards, sterile stock storage areas, food preparation and eating areas and ambulances. I understand that it is in respect of these areas that the applicant does not press his case for breach of the DD Act.
133 I shall consider s 23 and s 24 in turn.
Section 23
134 Section 23 DD Act provides as follows:
(1) It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) 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 (whether for payment or not); or
(b) 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; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first‑mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
(2) This section does not render 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:
(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and
(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.
135 Other than a written submission by the applicant that the respondent had breached s 23, no submission of substance was made by the applicant in relation to s 23. Mr Murdoch for the respondent at the hearing submitted that the case does not concern access to premises, but rather access to services (TS p 305 ll 23-25). The reason for this submission was stated to be that if there were to be any finding of discrimination by me, it would be in the area of goods or services, primarily because on each of the occasions that have given rise to complaint the applicant was doing more than simply seeking to access the premises. In particular, Mr Murdoch submitted that the applicant was seeking to access the respondent’s health services at Smithfield Community Health Centre; further when the applicant was at Cairns Base Hospital on 16 November 2004 he was attempting to obtain a report from someone as to the behaviour of the dog and was therefore attempting to obtain a service of a type from the respondent.
136 Section 23 DD Act is drafted in broad terms. Subparagraphs (1)(a) to (c) relate specifically to 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, and subpara (c) is more specific again in that it applies to discrimination in relation to the means of access to such premises. Key aspects of these paragraphs are that the premises must be such that the public or a section of the public is entitled to or allowed to enter or use the premises (whether for payment or not); and that the discrimination is in relation to the access to the premises.
137 Subparagraphs (1)(d) to (e) relate specifically to the use of any facilities in such premises or the terms or conditions on which the alleged discriminator is prepared to allow the other person the use of such facilities. Subparagraph (1)(f) relates to circumstances where the alleged discriminator requires the other person to leave such premises or cease to use such facilities.
138 Section 23 can be contrasted with s 24, considered later in this judgment, which concerns discrimination in relation to the provision of goods or services or the availability of facilities.
139 Section 23 has been considered in a number of cases previously before this Court. In Grovenor [2000] FCA 1574, the applicant, who was visually impaired and accompanied by a guide dog, visited a furniture store in Young in New South Wales. On entering the store the applicant was told by the respondent, the owner of the store, to take the dog out. The respondent refused to accept the applicant’s claim that she was visually impaired, and ordered her out of the store saying he did not care if the dog was a guide dog. HREOC heard the complaint and found that the respondent’s conduct in that case was unlawful by reason of s 23(1)(a) DD Act in that the respondent had refused to allow the applicant access to the premises. The discrimination in that case was that the respondent had acted in breach of s 9(1)(d), namely that the respondent had treated the applicant less favourably because of the fact that she was accompanied by a guide dog. On hearing an application to enforce the payment of $1,000 compensation ordered by HREOC, Stone J found that the applicant’s evidence in the proceedings was unchallenged, that the conduct amounted to discrimination within the meaning of s 9 DD Act and was unlawful conduct within the meaning of s 23(1)(a) of the Act. Accordingly, her Honour ordered the respondent to pay the applicant damages in the amount of $1,000.
140 Section 23(1)(c) DD Act - that is, the means of access to the premises - was in issue in Cooper 93 FCR 481 where the Coffs Harbour City Council had allowed redevelopment of a cinema complex without requiring that wheelchair access be incorporated as a part of the redevelopment.
141 Similarly in Sluggett 123 FCR 561 the nature of the complaint of the applicant, who suffered a disability as a result of childhood polio, in relation to long walks, many stairs, heavy doors, difficult stairways, open walk areas, crowded stairs, the distances between lifts, and the sometimes limited access to lifts at Flinders University, was such that the conduct was alleged to be unlawful in relation to the means of access to the premises pursuant to s 23(1)(c).
142 As I found earlier in this judgment, the respondent had a policy that persons entering its premises not do so accompanied by an animal unless the animal was a guide dog or a hearing dog or unless the animal had been assessed by the respondent as having training and hygiene standards acceptable to the respondent. I have found that the respondent discriminated against the applicant within the meaning of s 6 and s 9(1)(f). Further, as was specifically acknowledged by the respondent in its written submissions (written submissions of the respondent filed 5 September 2006 para 5.11), the respondent refused to allow the applicant with his dogs access to its premises at Cairns Base Hospital on 16 November 2004, or at Smithfield Community Health Centre on 19 November 2004, 24 February 2005, 28 February 2005 and 3 March 2005.
143 On the facts of this case, the respondent has discriminated against the applicant on the ground of his disability by refusing to allow him access to its premises, which conduct is unlawful pursuant to s 23(1)(a). As the respondent noted in written submissions, once management of Cairns Base Hospital had considered the matter after 16 November 2004 it refused to allow the applicant access because it considered that his dogs were ill-behaved, ill-controlled and that there was inadequate evidence of proper assistance dog training (written submissions of the respondent filed 5 September 2006 para 5.11).
144 I have also considered whether s 23(1)(b) is relevant in light of the written communications between the applicant and Cairns Base Hospital and Smithfield Community Health Centre, where the hospital and the centre informed the applicant of the respondent’s policy of not allowing animals (other than guide dogs) into the hospital without a prior assessment by the respondent. Although the respondent ultimately refused to allow the applicant access to its premises with his dogs so as to enliven s 23(1)(a), in my view s 23(1)(b) is also relevant because in discriminating against the applicant, the respondent had imposed terms or conditions upon which it was prepared to allow the applicant access to its premises. These facts may be compared with, and in my view are analogous to, Haar 184 ALR 83 where a person with a guide dog at a McDonald’s restaurant was told that the next time she visited with the dog she should sit outside the “party” area of the restaurant as that area was frequented by children. McInnis FM considered that s 23(1)(b) applied, as the restaurant, in discriminating against the applicant in that case, had imposed conditions on which it was prepared to allow the applicant access to its premises in the company of her guide dog.
145 In relation to the application of s 23(1)(a) and (b) however, I note the oral submission of Mr Murdoch that the case is actually “about access to services” and not about access to premises. Following consideration of this issue however, I have formed the view that the issue of access to premises, and accordingly s 23(1)(a) and (b), is relevant. In this regard, I make the following observations.
146 First, the events which occurred at the premises of the respondent fall within the ordinary meaning of refusal of “access to premises”. The applicant attended the premises of the respondent, and on the relevant occasions was requested to leave. At Cairns Base Hospital on 16 November 2004 he was escorted from the premises by security guards, and on three occasions at Smithfield Community Health Centre security guards were in place to ensure that the applicant did not enter the premises with his dogs. While the applicant may have attended the premises of the respondent, particularly Smithfield Community Health Centre, with a view to obtaining services, it is clear that the applicant was refused access to the premises because of the presence of his dog. He had received communications from the respondent indicating that it was prepared to allow him access to the premises with his dogs, but on the respondent’s terms. To ignore the natural application of s 23(1)(a) and (b) to the facts of this case would be to do an injustice to the applicant.
147 Second, it is clear that the premises of the respondent in question were premises “that the public or a section of the public is entitled or allowed to enter or use” as contemplated by s 23(1)(a) and (b). The premises in question were public reception areas of Cairns Base Hospital and the Smithfield Community Health Centre, which were public areas of medical facilities provided to the public.
148 Third, I note the decision of Stone J in Grovenor [2000] FCA 1574 and her Honour’s application of s 23(1)(a) in similar facts where denial of entry to a furniture shop by the proprietor was held to constitute a breach of s 23(1)(a), and consider the facts of that case sufficiently analogous to this case to take the view that s 23(1)(a) is also applicable to the facts before me. I also note the decision of McInnis FM in Haar 184 ALR 83, and consider the reasoning of his Honour in that case correct.
149 Fourth, in this case the applicant has claimed the conduct of the respondent was unlawful pursuant to either or both sections, and I can see no reason why the facts of a case could not give rise to unlawful conduct for the purposes of both s 23 and s 24. It would limit the operation of s 23(1)(a) and (b) beyond its natural meaning if, as submitted by the respondent, it were confined only to access to premises where the disabled person was not also seeking provision of goods or services.
150 Finally, I note the very limited defence (or ground of exculpation as so termed by Madgwick J in Cooper 93 FCR 481 and Drummond J in Sluggett 123 FCR 561) in s 23(2) available to a respondent who has breached s 23(1). It is curious that s 23(2) is so narrowly drafted, in comparison for example with the much broader provision in s 24(2) in relation to conduct in breach of s 24(1). However the form in which s 23(2) is drafted is matter for Parliament, not the Court, and does not in my view limit the manner in which s 23(1) should be interpreted. The defence of the respondent as pleaded in relation to unjustifiable hardship was not referable to the design or construction of its premises as contemplated by s 23(2), and accordingly is of no relevance in the context of s 23.
151 Accordingly, in my view the conduct of the respondent in refusing to allow the applicant access to its premises in the company of his dogs, which are assistance animals for the purposes of s 9(1)(f), was unlawful pursuant to s 23(1)(a) and (b) DD Act.
Section 24
152 Section 24 DD Act provides:
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) 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; or
(c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability 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.
153 In my view the respondent did act in breach of s 24(1)(a) in that it discriminated against the applicant by refusing to provide dental services to the applicant at Smithfield Community Health Centre while he was accompanied by his assistance dog. Further, in imposing terms or conditions upon which the respondent was prepared to provide the applicant with those services in the sense of informing the applicant of the respondent’s policies concerning animals and requiring the applicant to comply with those policies, the conduct of the respondent was contrary to s 24(1)(b).
154 I consider the applicant’s claim weaker in relation to the conduct of the respondent at Cairns Base Hospital in relation to the events of 16 November 2004 given that he was not there for a medical consultation or to receive medical services. I note however the concession of the respondent in Mr Murdoch’s oral submissions that the applicant was at the hospital on that day seeking to obtain a service of a type from the respondent in the sense of obtaining a copy of a report (TS p 305 ll 19-25). The applicant was refused provision of services by the hospital because of the presence of his assistance dogs; further the hospital informed him in writing that it was not prepared to provide him with services in the presence of his dog except on its terms. Accordingly, I also find that the respondent acted in breach of s 24(1)(a) in relation to its conduct at Cairns Base Hospital on 16 November 2004 and in breach of s 24(1)(b) in relation to its communications to the applicant as to the terms and conditions on which the applicant was able to attend the hospital with his assistance animal to receive services.
155 The issue contended strongly by the respondent however was that, irrespective whether the respondent did breach s 24(1), the provision of the services would have imposed unjustifiable hardship on the respondent pursuant to s 24(2) DD Act.
Unjustifiable hardship in section 24(2)
156 As I noted earlier in this judgment, s 24(2) has broader application than its equivalent under s 23(2). Section 24(2) permits the ground of “unjustifiable hardship” to be raised if, inter alia, the provision of services would impose unjustifiable hardship on the person who provides those services.
157 A number of general principles have developed in relation to the concept of “unjustifiable hardship” within the terms of the DD Act. These principles include the following:
· the issue whether the alleged discriminator is potentially subject to unjustifiable hardship arises only once the applicant establishes that the alleged discriminator has engaged in unlawful conduct: Cooper 93 FCR at 491-492, Sluggett 123 FCR at 568, Daglian [2003] FCA at [113]-[114]
· the respondent bears the onus of showing unjustifiable hardship within the meaning of s 24(2): Cooper 93 FCR at 492, Sluggett 123 FCR at 568
· the concept of “unjustifiable” hardship suggests that some hardship is justifiable, and requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors: Hills Grammar School v Human Rights & Equal Opportunity Commission (2000) 100 FCR 306 at [48].
158 Section 11 DD Act provides some guidance as to relevant factors:
For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64.
159 In written submissions the applicant submitted that:
· the defence of unjustifiable hardship is possibly made out in respect of sterile areas of Cairns Base Hospital, such as the operating theatre, however the respondent had not made out the defence in respect of non-sterile areas which includes all areas of the two premises in issue other than the operating theatre at the hospital
· if there were an infection risk at the hospital, the applicant could be accommodated in a single room in the same manner that other patients with certain conditions are accommodated
· according to oral evidence of Dr Newland, guide dogs are permitted in Cairns Base Hospital except in the operating theatre and sterile areas such as isolation rooms
· the nature of the benefit that accrues to him by being able to use an assistance dog is great
· the detriment likely to accrue or be suffered by any persons concerned is non-existent or minimal
· there is no evidence of the financial circumstances of the respondent, the estimated amount of expenditure required to be made by the respondent, or of any action plan having been given by the respondent to HREOC.
160 The respondent however submitted that:
· it is an unjustifiable hardship for the respondent to be required to automatically allow every animal that is said to be an assistance animal access to the Cairns Base Hospital or Smithfield Community Health Centre or to expend resources conducting an assessment for itself of the actual legitimacy of every animal that is claimed to be an assistance animal
· unlike guide dogs (both seeing-eye dogs and hearing dogs) the training of which are regulated under legislation, it is not clear when a dog qualifies as an assistance dog. Accordingly, it is necessary for the respondent to consider, on the information available to it, the legitimacy of each dog on a case by case basis because it needs to be as certain as it can be that the dog will not pose a danger to other users of its facilities, and that the dog is groomed and cared for to a high standard to minimise the risk of infection
· in this case the appearance of the applicant’s dogs did not naturally lead to an assumption that they were in fact legitimate assistance animals because:
o the dog did not wear an identifying jacket or harness
o the applicant’s identification card appeared to be “home-made”
o more than one dog accompanied the applicant on some occasions, which is not the case with guide dogs
o the dogs appeared to be scruffy
o the dogs are not breeds usually associated with assistance dogs
o on one occasion, one of the dogs was carrying an injury
o the dogs were not well-behaved in public
o there is evidence that the applicant ordered one of them to attack the security guards
o the applicant had in the past and continued to access health services without a dog.
161 In this case there is no dispute that the premises in question were public health facilities, open to the public, for which the respondent was responsible. It is clear that in operating such facilities, the respondent is required to maintain high standards of hygiene, safety and security for patients, potential patients, visitors, and staff.
General principles
162 The respondent claims in summary that it would be an unjustifiable hardship were it to be required to:
· automatically allow every animal that is said to be an assistance animal access to its premises; or
· expend resources conducting an assessment for itself of the actual legitimacy of every animal that is claimed to be an assistance animal.
163 I agree that it would be an unjustifiable hardship on the respondent to be required to automatically allow every alleged assistance animal access to its premises. However, in light of the fact that the DD Act recognises assistance animals (as contemplated by s 9(1)(f)) if the respondent had appropriate procedures in place to identify such animals (which in my view it currently does not) any resultant hardship to the respondent would in my view not be unjustifiable.
164 Further, while the respondent claims that it would be an unjustifiable hardship to be required to expend resources in conducting assessments for itself, I note that, according to the evidence before me, that is precisely what the respondent purports to do in relation to animals - in particular pets or animals for therapeutic purposes - which third parties wish to bring on to its premises. For example, the attachments to the IRM require the owner or person in control of the animal to provide information which is then assessed by the respondent, although the information sought in the attachments is referable to care of the animal, vaccinations, infection control issues, control of the animal and the benefits the animal provides to the client at the facility. As I have already noted however, in my view the information sought by the IRM or its attachment is not currently designed to accommodate owners of assistance animals.
165 The respondent submitted in detail of its need to be satisfied, in accordance with its various policies and procedures, of the standards of hygiene and training of the relevant animal. Attaining this level of satisfaction quite naturally entails an assessment of the animal, and use of resources of the respondent. There was no suggestion that the current procedures employed by the respondent in respect of animals constitute an unjustifiable hardship.
166 I am not convinced that development and implementation of appropriate procedures by the respondent to enable it to identify an assistance animal, to whose presence in defined circumstances a disabled person, including a person with a psychiatric disability as distinct from a physical disability, has a legitimate entitlement, causes unjustifiable hardship. Indeed, this is the very sort of hardship that the DD Act contemplates as justifiable, in that it allows a balance between the rights of the disabled and the interests of the public to be achieved.
The applicant’s dogs
167 The applicant informed the respondent that his animals were assistance animals, and claimed he provided the hospital with information which the hospital management deemed inadequate to allow the dogs’ access to hospital premises. There is no evidence that information provided by the applicant with respect to, for example, hygiene standards of the dogs or public assess suitability was taken into account by hospital management (TS p 192). In relation to the specific circumstances of the applicant, the decision of management at Cairns Base Hospital to refuse the applicant access to its premises with his dogs derived from a number of factors including:
(a) the applicant’s identification of his dogs as AWARE Dogs in his letter of 23 November 2004 to Dr Newland, and Dr Newland’s assessment of AWARE Dogs from its internet address as an organisation which “did not appear to be a recognised association” (affidavit of Dr Newland para 9)
(b) incidents involving what appear to be confrontations between the applicant and hospital staff as a result of the refusal of the respondent to admit the applicant in the presence of his dogs; namely
i. an incident of 21 April 2004 in relation to which security officers of the hospital gave evidence that the applicant’s dogs were fighting among themselves (affidavit of John Grist sworn 10 February 2006 para 17) and agitated, barking and jumping about (affidavit of Wade Grosser sworn 9 February 2006 para 7, cf affidavit of Wayne Gibson sworn 7 February 2006 para 10 where Mr Gibson deposed that the dog was barking)
ii. an incident of 16 November 2004 where Mr Taylor, the Fire Safety and Security Manager of the hospital, gave evidence that Knuckles was wearing a dirty bandage (affidavit of David Taylor sworn 9 February 2006 para 15); and
(c) an incident of 24 August 2005 involving the applicant, his dog and Professor Shaughan Terry, in relation to which Professor Terry deposed that Knuckles lunged at him and attempted to bite him (affidavit sworn 10 February 2007 para 16).
168 As I have already found, in light of my own viewing of Knuckles in Court and the evidence produced as to the training and obedience of the applicant’s dogs, I consider it unlikely that the applicant’s dogs are not well-behaved in public; further I accept the applicant’s evidence that the dogs were wearing jackets or harnesses at the relevant times although they may not have been immediately identifiable from these jackets or harnesses as assistance animals. In relation to issues raised by the hospital, I have formed the following views:
· I conclude that the dogs were agitated and barking at the hospital on 21 April 2004, and consider that to have been as a result of the physical confrontation between the applicant and hospital security staff. I also note that, at the time, Knuckles was a young dog being trained by the applicant
· I had the opportunity to observe Knuckles over several days in court, and he appeared to be well-cared for. I accept the evidence of Dr Roger Smith at the hearing (TS p 202 ll 25-29) and conclude that the bandage worn by the dog at the hospital on 16 November 2004 bore the appearance of being dirty because of the nature of his injury and inevitable seepage and moistness, but was not dirty through neglect or lack of hygienic treatment
· in relation to the incident with Professor Terry on 24 August 2005, I consider it unlikely that Knuckles attempted to bite Professor Terry. In my view Knuckles is a well-trained animal, which appeared docile and amenable to discomfort and handling over several days in court while being held and patted by the applicant during the course of his cross-examination in the witness-box. Notwithstanding this, it appears that Knuckles was largely unrestrained in the hospital at a place where Professor Terry was about to conduct an invasive procedure upon the applicant, namely a liver biopsy, and I accept Professor Terry’s evidence that he believed in the circumstances that the dog lunged at him and attempted to bite him.
169 I do not accept that, overall, the applicant’s dogs are unruly, unhygienic, ill-behaved or ill-controlled. I do not consider that the provision of services by the respondent to the applicant in the presence of Buddy or Knuckles imposes unjustifiable hardship on the respondent. I note however that the applicant does not claim that services in this respect include services performed in a sterile environment. My findings do not extend to services performed in a sterile environment.
170 Accordingly, in my view the conduct of the respondent in refusing to provide services to the applicant in the company of his dogs, which are assistance animals for the purposes of s 9(1)(f), was unlawful pursuant to s 24(1)(a) and (b) DD Act.
CONCLUSION
171 In summary, I find that the respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) DD Act; and that this discriminatory conduct was unlawful within the meaning of ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b). I do not find unjustifiable hardship made out under either s 23(2) or s 24(2).
172 Having made these findings, however, I have a number of observations about the application of the DD Act, the interaction of provisions of the Act, and the ramifications of this decision.
173 First, although I presume that the rationale in specifying forms of discrimination in ss 7, 8 and 9 separately from definitions of direct and indirect discrimination in ss 5 and 6 was to provide more support to disabled people who had been the subject of specific discrimination as defined in ss 7, 8, and 9 (neither the Second Reading Speech of the Minister nor the Explanatory Memorandum illuminates this point), the nature of these sections as stand-alone provisions tends to lend itself to lack of clarity. It is usual that, in a claim for disability discrimination, the applicant will allege either direct or indirect discrimination. Providing further, separate grounds of discrimination in ss 7, 8 and 9, as distinct from a more comprehensive definition of discrimination to fall within ss 5 and 6, in my view can potentially result in confusion and overlapping claims.
174 Second, and more importantly, I have genuine concerns about the operation of s 9(1)(f) DD Act as presently drafted. I accepted the submissions of the applicant and the Commissioner as to the lack of qualification of the word “trained”, because in my view it accorded with the meaning of the word in the Act. However, the language of the Act, in permitting a broad interpretation, in my view poses risks as to the functioning in the community of disabled persons with genuine assistance animals. The current form of s 9(1)(f) DD Act as drafted has the following potential consequences:
· any animal that has been trained to assist a disabled person to alleviate the effect of his or her disability appears to fall within s 9(1)(f) DD Act. So, for example, capuchin monkeys and miniature horses appear to be considered assistance animals notwithstanding that there may be minimal community acceptance of such animals as assistance animals (I note by way of illustration http://advocacy.britannica.com/blog/advocacy/2007/01/service-animals-help-humans-live-fuller-lives/ )
· arguably inherently dangerous animals such as dingoes (Fischer v Stuart, unreported, Supreme Court NT, Forster CJ, 25 July 1979) could be trained to assist in alleviating the effect of a disability, and would therefore justify recognition under s 9(1)(f)
· in relation to dogs, which are commonly used as assistance animals, there are no restrictions on the breed of dog which the DD Act recognises. This could lead to dogs without the appropriate temperament for public access being trained as assistance animals for the purposes of s 9(1)(f)
· the DD Act specifically requires the animal to be trained only to assist in alleviating the effect of a disability, not trained to be obedient, or well-behaved in public
· there are no hygiene requirements nor health standards in relation to assistance animals, nor any requirement that the owner control the animal in s 9(1)(f)
· the DD Act gives accredited training organisations no additional credence over animals trained otherwise, notwithstanding that accredited organisations such as those listed in the Guide Dogs Act 1972 (Qld) have community recognition and confidence.
175 Third, lack of clarity in the current legislation as to the nature of an assistance animal contributes to conflict between the owners of such animals and service providers, as has been demonstrated in this case.
176 Finally, and perhaps of most importance, is the fact that there is public confidence in and acceptance of the guide dog regime, which has more than 30 years recognition in State law in Queensland, and recognition throughout Australia and indeed the international community. It would be of concern if, because of the breadth of s 9(1)(f) and consequent legislative endorsement given to animals with lower community acceptance and trained to inferior and less exacting standards, the public confidence and acceptance of guide dogs were to be in any way undermined. It is perhaps unfortunate that the DD Act does not, like the Guide Dogs Act 1972 (Qld) or the Dog Control Act 1996 (NZ), define assistance animals by reference to accredited training organisations. This would provide certainty for animal owners, service providers and members of the public, and strike a balance between the needs of the disabled as recognised in the DD Act and the confidence of service providers and the public as to standards of assistance animals in public places.
177 At the hearing I indicated that I would provide my findings to the parties, and then seek submissions as to appropriate orders to make in these circumstances once the parties have had time to consider my reasons. Accordingly, I shall make orders as to the substantial issues in the proceedings, and make directions for another hearing to receive further submissions.
THE COURT ORDERS THAT:
In respect of QUD324/2005:
1. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth).
2. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) Disability Discrimination Act 1992 (Cth).
In respect of QUD522/2005:
1. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth).
2. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) Disability Discrimination Act 1992 (Cth).
| I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
Dated: 22 June 2007
| Counsel for the Applicant: | D O’Gorman SC (Pro Bono) |
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| Solicitor for the Applicant: | Miller Harris (Pro Bono) |
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| Counsel for the Respondent: | C Murdoch |
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| Solicitor for the Respondent: | Minter Ellison |
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| As Amicus Curiae | J O’Brien for the Acting Disability Discrimination Commissioner |
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| Date of Hearing: | 14 September 2006 |
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| Date of Judgment: | 22 June 2007 |
