IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY QUD 324 of 2005
QUD 522 of 2005
QUD 211 of 2006
QUEENSLAND HEALTH, STATE OF QUEENSLAND
SUBMISSIONS OF THE ACTING DISABILITY DISCRIMINATION COMMISSIONER APPEARING AS AMICUS CURIAE
- The Acting Disability Discrimination Commissioner (the ‘Commissioner’) was granted leave to appear as amicus curiae in QUD 324 and 522 of 2005 on 30 March 2006 and QUD 211 of 2006 on 3 July 2006.
A. Issues addressed
- The central issues in these proceedings are:
- (a) whether the Applicant’s dogs are ‘assistance animals’ for the purposes of s 9(1)(f) of the Disability Discrimination Act 1992 (Cth) (DDA); and
- (b) If so, whether the Respondent discriminated against the Applicant under s 24 of the DDA.
- The Commissioner seeks to make submissions on the legal principles which arise in relation to determining these issues. In particular, the Commissioner seeks to make submissions as to:
- (a) how the Court is to determine whether or not an animal is an ‘animal trained to assist [a person with a disability] to alleviate the effect of the disability’ under s 9(1)(f) of the DDA. For the sake of convenience, the Commissioner will hereafter refer to animals trained to assist a person with a disability to alleviate the effects of the disability as ‘assistance animals’; and
- (b) the principles that apply in determining whether health service providers are able to make out the defence of ‘unjustifiable hardship’ under s 24(2) of the DDA.
- The Commissioner does not seek to make submissions on the factual issues raised in the proceedings, except insofar as they contextualise the legal principles addressed.
B. Objects of the DDA
- Section 3 of the DDA sets out the objects of the DDA, which include:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: ...
(ii) the provision of goods, facilities, services and land; 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.
- In beneficial legislation such as the DDA, the courts have a special responsibility to take account of and give effect to the purposes and objects of the legislation.
- The DDA is also to be construed consistently, so far as is possible, with established principles of international law. This includes Australia’s international human rights obligations.
- The Commissioner submits that it is also legitimate for the Court to have regard to the Declaration on the Rights of Disabled Persons of the United Nations General Assembly (the ‘Declaration’). The Declaration, whilst not binding on States parties, is the product of international agreement. As such, the Declaration is an indication and expression of States’ consensus in relation to the rights to be accorded by States to persons with disabilities. The Declaration relevantly provides:
5. Disabled persons are entitled to the measures designed to enable them to become as self reliant as possible.
6. Disabled persons have the right to medical, psychological and functional treatment ... which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.
- The Commissioner submits that the objects of the DDA and the principles set out in the Declaration require the DDA to be construed in a way that promotes self-reliance and independence of persons with disabilities and their full participation in public life.
C. ‘Discrimination’ under the DDA
- Divisions 1 and 2 of Part II of the DDA make it unlawful to discriminate against a person on the ground of the person’s disability in specific areas of public life.
- ‘Discriminate’ is defined in s 4(1) of the DDA as having ‘the meaning given by sections 5 to 9 (inclusive)’. ‘Disability discrimination’ is also defined in s 4(1) as having ‘the meaning given by sections 5 to 9 (inclusive)’.
- Sections 5 to 9 (inclusive) each specify a different type of conduct that will constitute discrimination under the DDA. Section 5 proscribes direct discrimination; s 6 proscribes indirect discrimination; s 7 proscribes discrimination because of the use of a palliative or therapeutic device or auxiliary aid; s 8 proscribes discrimination because of the use of an interpreter, reader or assistant; and s 9 proscribes discrimination because of the use of a guide dog, hearing dog or assistance animal.
- The Commissioner submits that ss 5 to 9 operate independently of each other. This was the approach taken to s 9 of the DDA by Stone J in Grovenor v Eldridge and McInnis FM in Haar v Maldon Nominees. A respondent will therefore be in breach of Divisions 1 and 2 of Part II of the DDA if they discriminate against a person in an area of public life covered by the Act within the meaning of ss 5 to 9.
- In the present proceedings the Applicant alleges discrimination by the Respondent on the basis of his use of an assistance animal within the meaning of s 9(1)(f).
D. Section 9 of the DDA
- Section 9 of the DDA provides that:
(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.
- As drafted, s 9 (like ss 7 and 8) contains elements of what is generally referred to as ‘direct discrimination’ (see s 5) and elements of what is generally referred to as ‘indirect discrimination’ (see s 6). As such, the Commissioner submits that s 9 should be taken on its own terms rather than as a species of ‘direct’ or ‘indirect’ discrimination.
- In particular, the Commissioner submits that, though s 9(1) refers to ‘less favourable treatment’, s 9 does not contain a comparator element as in s 5.
- The Commissioner submits that instead, s 9(1) imposes a requirement that guide dogs, hearing dogs and assistance animals be accommodated, except to the extent any defence applies – though persons accompanied by a guide dog, hearing dog or assistance animal remain liable for any damage to property caused by the animal.
- The Commissioner submits that this interpretation is consistent with the purpose and object of the DDA to eliminate discrimination against persons with disabilities ‘as far as possible’, and promote self reliance and independence of persons with disabilities and their full participation in public life.
Matters to be determined by the Court in s 9(1)(f) of the DDA
- Section 9(1)(f) raises the following issues to be determined by the Court:
- (a) Does the Applicant have a disability within the meaning of s 4(1) of the DDA? The Commissioner does not seek to address this matter.
- (b) If so, was the dog possessed by or accompanying the Applicant at the relevant times trained to assist him to alleviate the effects of his disability? The legal principles relevant to this issue are addressed in Part E, below.
- The Applicant bears the onus of establishing the above matters on the balance of probabilities. Not all allegations made under the DDA will be of a seriousness to require evidence of a higher probative value to enable the court to attain the requisite degree of satisfaction. For example, generally, allegations of discrimination per se will not require evidence of a higher probative value. However, in some instances, allegations of victimisation may be considered to be of such seriousness as to require evidence of a higher probative value.
E. Determining whether an animal is ‘trained to assist the aggrieved person to alleviate the effect of the disability’
Animal must be trained, but not necessary to have professional training or accreditation
Any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability ...
- The Commissioner submits that s 9(1)(f) is to be given its ordinary and natural meaning.
- The Macquarie Dictionary (3rd ed) defines the verb ‘train’ as including ‘... to discipline and instruct (an animal) to perform specified actions’.
- As such, the Court has to be satisfied that an animal has undergone a process of discipline and instruction to learn specific skills that enable it to assist a person to alleviate the effects of their disability.
- However, s 9(1)(f) does not impose any requirements about the type or amount of training to be undertaken by an assistance animal. For instance, there is no requirement that an animal:
- (a) be trained by a particular type of trainer or organisation;
- (b) undertake a particular amount of training; or
- (c) be accredited by or registered with a particular agency or organisation.
- There is nothing else in the DDA or DDA regulations which impose any such requirements.
- Hence, while professional training may assist the Court in determining whether an animal is an assistance animal within the meaning of s 9(1)(f), s 9(1)(f) does not require an animal to be professionally trained or preclude an animal trained by its (non-professional) owner.
- An equally broad provision in the United States Code of Federal Regulations: Non-Discrimination on the Basis of Disability by Public Accommodations and Commercial Facilities (the ‘Federal Regulations’) has been similarly interpreted. The Federal Regulations define a ‘service animal’ as:
- In Bronk v Ineichen the United States Appeals Court for the Seventh Circuit held the Federal Regulations did not require a tenant wishing to keep a hearing dog to provide the landlord with ‘training credentials’ for the dog. The Court held that there was ‘no basis for imputing [such a requirement] into a text that is silent on the subject’. Whilst professional training credentials for the dog may assist the court to determine if an animal aids a person in coping with their disability, the Federal Regulations do not require an animal to be trained by a professional or certified trainer to be an assistance animal.
- Section 9(1)(f) of the DDA and the Federal Regulations can be contrasted with the approach taken in New Zealand. Under the New Zealand Dog Control Act 1996, a ‘disability assist dog’ is entitled to accompany and assist a person with a disability to enter and remain in public spaces. However ‘disability assist dog’ is narrowly defined in s 2 of that Act 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 by an Order in Council under the Act].
- This is similar to the approach taken in some Australian States.
Nexus between the disability and training
- Section 9(1)(f) requires there to be a nexus between the skills an animal has been taught and the aggrieved person’s disability. As such, the Commissioner submits that the Court has to be satisfied that the animal alleged to be an assistance animal has been taught specific skills that enable it to assist a person to alleviate the effects of their disability.
- The Commissioner submits that this is best addressed by evidence identifying:
- (a) the person’s disability and the effects of their disability said to be alleviated by the animal; and
- (b) the animal’s particular training.
- The Court must then determine whether, on the basis of all the evidence before it, it is satisfied that the animal assists the person to alleviate the effect of’ that person’s disability.
An aggrieved person does not have to ‘need’ an assistance animal
- Further, the Commissioner submits that, given its ordinary meaning, s 9(1)(f) does not require the Court to be satisfied that an aggrieved person ‘needs’ an assistance animal.
- The Macquarie Dictionary (3rd ed) defines ‘alleviate’ as ‘to make easier to be endured; lessen; mitigate: ...’.
- As such, the Commissioner submits that s 9(1)(f) contemplates that a person should be able to be accompanied by an assistance animal where that animal eases, lessens or mitigates the effects of the person’s disability. This is consistent with the purpose and objects of the DDA to eliminate discrimination ‘as far as possible’ and to promote self-reliance and independence of persons with disabilities and their full participation in public life.
Appropriate public demeanor of an assistance animal
- There is no requirement in s 9(1)(f) that an assistance animal’s training extend to ensuring the animal behaves in a particular manner when in public. Nor does the section limit the type of animals that can be assistance animals.
- However, the Commissioner submits that owners of assistance animals are still required to comply with State or Territory or local animal control laws that are capable of operating concurrently with s 9(1)(f).
- In any event, an assistance animal’s behaviour in public areas may also give rise to a defence of unjustifiable hardship. The issue of unjustifiable hardship is considered in Part G, below.
Appropriate health standards for assistance animals
- Given its ordinary meaning, s 9(1)(f) also does not require assistance animals to meet any particular health requirements or standards.
- However, the Commissioner submits that owners of assistance animals are still required to comply with State or Territory or local animal health laws that are capable of operating concurrently with s 9(1)(f).
- An assistance animal’s failure to meet appropriate health standard may also give rise to a defence of unjustifiable hardship. The issue of unjustifiable hardship is considered in Part G, below.
The Commissioner’s policy concerns
- The Commissioner is concerned that s 9 (as currently drafted) does not adequately define the rights and responsibilities in relation to assistance animals other than guide or hearing dogs. In particular, the Commissioner is concerned that:
- there is a lack of clarity on what evidence may be required of an animal's status as an assistance animal; there is a lack of any express requirement in s 9 that, as well as the animal being trained to provide assistance, the training extends (as guide dog and hearing dog training does) to giving other parties a high degree of assurance of appropriate behaviour and health standards in the animal, such that it can be safely admitted where dogs or other animals are not otherwise permitted;inappropriate breeds of dog, including large and intimidating breeds, may in some cases be asserted to be assistance animals; confusion in this area undermines the effectiveness of legally recognised access rights for guide dogs and hearing dogs (in terms of recognition by retailers and other service providers and in terms of public acceptance); and
- this lack of clarity of rights and responsibilities contributes to conflict between service providers and users of assistance animals.
- The Commissioner has recommended that s 9 be amended to address these concerns.
F. Discrimination in the provision of goods and services
- The Commissioner submits that the present proceedings are properly characterised as alleging acts that fall within s 24 of the DDA.
- Section 24(1) makes it unlawful for a person to discriminate against a person on the ground of the person’s disability:
- (a) by refusing to provide goods and services or make facilities available to the person; or (b) in the terms or conditions on which the goods and services are provided or facilities made available to the person; or
- (c) in the manner in which the goods and services are provided or facilities made available to the person.
- Section 24(2) provides a defence to s 24(1) where to comply with s 24(1) would impose ‘unjustifiable hardship’ as follows:
This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of 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.
G. The ‘unjustifiable hardship’ defence
- ‘Unjustifiable hardship’ is defined in s 11 of the DDA:
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, any action plan given to the Commission under section 64.
Onus and when the defence should be considered by the Court
- A respondent bears the onus of establishing unjustifiable hardship by way of a defence.
- It is only necessary for the Court to determine whether the Respondent has established the defence of unjustifiable hardship in s 24(2) if the Court finds that the Respondent has discriminated against the Applicant under s 24(1).
General concept of unjustifiable hardship
- The concept of unjustifiable hardship contemplates that some hardship is justifiable.
- Section 11 is drafted broadly and allows the Court to take into account ‘all relevant circumstances of the case’.
Application of the defence of unjustifiable hardship to health service providers
- The present proceedings raise the issue of the application of the defence of unjustifiable hardship to health service providers.
- The Commissioner submits that when considering the application of s 24(2) to health providers, a distinction must be drawn between sterile and non-sterile areas. In this regard, the Commissioner submits that it will generally be more difficult for a respondent to make out a defence of unjustifiable hardship where the relevant act occurs in a non-sterile health setting, such as hospital waiting areas or cafés. This is consistent with the objects and purposes of the DDA.
- Section 11(a) requires the Court consider ‘the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned’. In relation to s 11(a), the Commissioner submits that:
- Paragraph (a) should be interpreted broadly to include the benefit or detriment likely to be suffered by: the Applicant, other persons with disabilities who rely on assistance animals who may be affected by the respondent’s conduct, other patients and potential patients and staff and potential staff of the health service provider as well as the animals. Detriment to be considered under s 11(a) includes the risk of resultant infection to the Applicant, other patients and members of the visiting public and staff. The Commissioner submits that this is best addressed by specific evidence as to the risk posed by allowing an animal in particular areas.
- Issues about the appropriateness of the public demeanor of an assistance animal, and the health standards of an animal are therefore also appropriately considered within s 11(a).
- Section 11(b) requires the Court to consider ‘the effect of the disability of a person concerned’.
- Section 11(c) requires that the Court consider ‘the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship’. In relation to s 11(c), the Commissioner submits that:
- The financial circumstances of the Respondent should be viewed from the perspective that the legislation contemplates that a respondent will have to undergo some hardship. Accordingly, for the defence to be made out, the hardship borne by a respondent must be unjustifiable. This was the approach taken by Baumann FM in All Alliance (Hervey Bay) v Hervey Bay City Council.
- The financial circumstances of a respondent should not be given greater weight than other factors.
- Section 11(d) requires that the Court consider ‘in the case of the provision of services, or the making available of facilities, any action plan given to the Commission under section 64’.
- Section 60 of the DDA provides that service providers may prepare and implement an ‘action plan’. ‘Action plan’ is not a defined term under the DDA, but action plans must include provisions relating to the matters set out in s 61.
- Under s 64 of the DDA, service providers may lodge a copy of their action plan with the Commission. When the Commission receives an action plan, the plan is put in the Commission’s register of action plans which is published on its website at <www.humanrights.gov.au/disability_rights/action_plans>. There are currently approximately 300 action plans contained on the Commission’s online register.
- The Commission is unaware of any action plan that may have been prepared by the Respondent.
Solicitor for the Acting Disability Discrimination Commissioner 5 September 2006
Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J, at 22-23 per Gaudron J, at 27 per Toohey J, at 39 per Gummow J and at 58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 223 per Kirby J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J.
Jumbunna Coal Mine NL v Victorian Coalminers’ Association (1908) 6 CLR 309 at 363 per O’Connor J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; and Kartinyeri v Commonwealth (1998) 195 CLR 337 at  per Gummow and Hayne JJ.
 Adopted by General Assembly resolution 3447 (XXX) of 9 December 1975; it appears as Schedule 5 to the Human Rights and Equal Opportunity Commission Act 1986.
 These include: employment: ss 15-21; education: s 22; access to premises: s 23; goods and services: s 24; accommodation: s 25; land: s 26; clubs and incorporated associations: s 27; sport: s 28; administration of Commonwealth laws and programs: s 29.
  FCA 1574 at .
  FMCA 5 at -.
 s 9(2) of the DDA.
 See Affidavit of Dr Alston Unwin sworn 20 June 2006, answer to Question 2 on page 9.
 See s 140 of the Evidence Act 1995 (Cth) which provides that in a civil proceeding, the Court must find the case of a party proved if it is satisfied on the balance of probabilities. Sub-section (2) provides that, without limiting the matters that the Court may take in to account in deciding whether it is so satisfied, the Court is to take into account: the nature of the cause of the action or defence; the nature of the subject-matter of the proceeding; and the gravity of the matters alleged.
 See Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ.
 See Hollingdale v North Coast Area Health Service  FMCA 5,  per Driver FM; Wiggins v Department of Defence – Navy  FMCA 800 at  per McInnis FM; Kesser Torah College  FMCA 1 at  per Driver FM.
 Penhall-Jones v State of NSW (No.2)  FMCA 927 at  per Driver FM.
 See Sheehan v Tin Can Bay Country Club  FMCA 95 at  and .
 28 CFR 36.104.
 54 F.3d 425 (1995) decision was applied by the US Oregon District Court in Green v Housing Authority of Clackamas County 994 F.Supp 1253 (1998) at 1256.
 Ibid 430.
 Ibid 431.
 See s 75 of the NZ Dog Control Act 1996.
 See, for instance, s 7 of the Anti-Discrimination Act 1991 (Qld), which provides that a person cannot discriminate against another on the basis of that persons ‘impairment’. ‘Impairment’ is defined in s 3 to include reliance on a ‘guide dog’, which is defined as having the same meaning as that term in s 3 of the Guide Dogs Act 1972 (Qld). Section 3 of the Guide Dogs Act 1972 defines a ‘guide dog’ as a ‘dog trained at an approved institution and used as a guide by a blind person or as an aid by a deaf person’. Approved institutions are set out in Schedule 1 to the Guide Dogs Regulations 1997 as being: Guide Dog Association of NSW and ACT; Guide Dogs for the Blind Association of Queensland; Lions Hearing Dogs Incorporated; Royal Guide Dogs Associations of Australia and The Guide Dog Owners’ and Friends’ Association.
 An example of a relevant Queensland dog control law is the Logan City Council Local Law No.4 (Animal Management) 2002.
 These concerns were discussed in ‘Discussion Paper: Assistance Animals, the Disability Discrimination Act and health and hygiene regulations’, Disability Discrimination Commissioner, July 2003 and ‘Reform of the assistance animals provision of the Disability Discrimination Act: Report Following Consultations on Section 9(1)(f) Dealing with Assistance Animals Other than Guide Dogs and Hearing Dogs’, Disability Discrimination Commissioner, November 2003, both of which are available on the Commission’s website at: http://www.humanrights.gov.au/disability_rights/faq/Companion_Animals/companion_animals.html
 The Commissioner notes that this does not appear to be in issue between the parties. See Affidavit of Mr Che Forest sworn 28 February 2006.
Cooper v HREOC (1999) 93 FCR 481, 492  applying Vines v Djordjevitch (1955) 91 CLR 512 at 519; Sluggett v HREOC (2002) 123 FCR 561, 568 -.
Slugget v HREOC (2002) 123 FCR 561, 568 -; Daghlian v Australian Postal Corporation  FCA 759, -.
Finney v Hills Grammar School (Unreported, HREOC, 20 July 1999) at 53 extract at (1999) EOC 93-020, affirmed on review in Hills Grammar School v HREOC (2000) 100 FCR 306 at ; Access for All Alliance (Hervey Bay) v Hervey Bay Council  FMCA 915 at .
Access for All Alliance (Hervey Bay) v Hervey Bay Council  FMCA 915at .
 See Cooper v Holiday Coast Cinemas (Unreported, HREOC, 29 August 1997) at 7; Francey v Hilton Hotels of Australia Pty Ltd (1997) EOC 92-203 at 77, 452; Access for All Alliance (Hervey Bay) v Hervey Bay City Council  FMCA 915 at . See also, Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 at  per McHugh and Kirby JJ, dissenting.
Finney v Hills Grammar School (Unreported, HREOC, 20 July 1999) at 53 extract at (1999) EOC 93-020, affirmed on review in Hills Grammar School v HREOC (2000) 100 FCR 306 at .
 See Francey v Hilton Hotels of Australia Pty Ltd (1997) EOC 92-203 at 77, 453.
  FMCA 915at .
 See Francey v Hilton Hotels of Australia Pty Ltd (1997) EOC 92-203 at 77, 453 cited with approval in All Alliance (Hervey Bay) v Hervey Bay City Council  FMCA 915 at .