A.W.A.R.E Dogs Australia Inc. v Department of Communities
[2012] QCAT 207
•22 May 2012
| CITATION: | A.W.A.R.E. Dogs Australia Inc. v Department of Communities [2012] QCAT 207 |
| PARTIES: | A.W.A.R.E. Dogs Australia Inc. |
| v | |
| Department of Communities |
| APPLICATION NUMBER: | GAR080-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 1 and 2 March 2012 |
| HEARD AT: | Cairns |
| DECISION OF: | Louise Pearce, Member |
| DELIVERED ON: | 22 May 2012 |
| DELIVERED AT: | Cairns |
| ORDERS MADE: | 1. The Tribunal confirms the decision of the Respondent on 25 February 2011 to refuse the application of A.W.A.R.E. Dogs Inc. |
| CATCHWORDS: | Assistance dogs Guide, Hearing and Assistance Dogs Act 2009 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Che Forrest on behalf of A.W.A.R.E. Dogs Australia Inc. |
| RESPONDENT: | Chris J Murdoch of Counsel instructed by Kate Grossman on behalf of Department of Communities |
REASONS FOR DECISION
This is a review of a decision of the Director-General of the Department of Communities under the Guide, Hearing and Assistance Dogs Act 2009 (GHAD Act). The Respondent’s decision was to affirm a prior decision of the Associate Director-General of the Department under the GHAD Act.
The Respondent’s decision was in respect of the Applicant’s application to be granted approval as an assistance dog training institution under the GHAD Act. The Respondent refused the Applicant’s application on the basis that it was not suitable for approval.
The Tribunal’s jurisdiction in this review is provided by Part 7 of the GHAD Act. The GHAD Act provides that a decision to grant an approval under section 17 of the GHAD Act is a reviewable decision which can be reviewed by the Tribunal.
Part 1 Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) allows the Tribunal to review a reviewable decision. Section 19 of the QCAT Act provides:
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal –
(a)Must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b)May perform the functions conferred on the tribunal by the act or the enabling Act under which the reviewable decision being reviewed was made; and
(c)Has all the functions of the decision-maker for the reviewable decision being reviewed.
20 Review involves fresh hearing
(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
(2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
The standard of proof is the balance of probabilities. As such this matter proceeded as a fresh hearing conducted on 1 and 2 March 2012.
Each party appeared, gave evidence and made submissions to the Tribunal. A number of witnesses provided written statements and gave oral evidence. A.W.A.R.E. Dogs had 3 assistance dogs present in the court room throughout the two days of the hearing.
At the commencement of the hearing the Applicant gave evidence regarding A.W.A.R.E Dogs Inc. Mr Forrest explained he is the governing mind behind A.W.A.R.E. Dogs and he is responsible for selecting, training and handling and assessment of the dogs that become assistance dogs. Mr Forrest explained that A.W.A.R.E. Dogs provides assistance dogs to mental health consumers. Mr Forrest submitted these dogs provide assistance to people with a mental health condition.
Schedule 4 of the GHAD Act defines an assistance dog as: “a dog trained to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person’s need for support.”
On 1 November 2009 Mr Forrest on behalf of A.W.A.R.E. Dogs Inc. made an application to become an approved training institution under the GHAD Act in the category of assistance dogs.
[10]Under section 15 of the GHAD Act an individual or institution may apply for approval as an assistance dog trainer. This section sets out what must accompany the application and this includes the application being in the approved form, documentation in support that the applicant is suitable and consent regarding a criminal history check. The section also allows for the chief executive of the Department to request further information. If further information is requested the applicant must provide this.
[11]Section 14 of the GHAD Act outlines the selection criteria for the approval of these applications. It states:
14 Who is suitable for approval
(1) A person is suitable for approval under this part if the person is able to –
(a)Train reliable, guide, hearing or assistance dogs that are-
(i) Able to perform identifiable physical tasks and behaviours for the benefit of a person with a disability; and
(ii) Safe and effective in public places and public passenger vehicles; and
(b)Select dogs that are able to meet the individual needs of a person with a disability; and
(c)Provide ongoing and regular support to the handlers of the guide, hearing or assistance dogs trained by the person.
(2)However, a person is not suitable for approval if any of the following persons have a criminal history that would make him or her to work with animals or people with a disability –
(a) For approval as an approved trainer – the person
(b) For approval as an approved training institution – the employee trainers of the person
[12]In considering the application section 17 of the GHAD Act provides that the chief executive must have regards to the following:
17 Decision on application for approval
….
(2) In considering if the applicant is suitable for approval the chief executive must have regard to the following-
(a)For an individual –
(i) the applicant’s qualifications, knowledge or experience in dog obedience training;
(ii)the applicant’s criminal history;
(b)for a corporation –
(i)the qualifications, knowledge or experience in dog obedience training of its employees;
(ii)the criminal history of each employee trainer;
(c)the training methods to be used by the applicant;
(d)if a submission is requested under section 16(1) – the submission and any representation about the submission received under section 16(3);
(e)another matter prescribed under a regulation.
(3) Also the chief executive may have regard to the following-
(a)The applicant's membership of an organisation that that promotes standards of dog training;
(b)Qualifications, knowledge or experience of the applicant, or the applicant’s employees that demonstrates an understanding of the needs of people with a disability.
[13]The GHAD Act also prescribes other requirements relating to the provision of dog training such as the keeping of records (section 7), implementing policies in relation to confidentiality and complaints (section 8) and insurance cover for trainers (section 9).
[14]The Respondent was required to consider the above material in relation to the application made by the Applicant. In doing so the Respondent engaged Mr Craig Murray (an approved trainer under the GHAD Act), Mr Phil Brocklehurst (an employee of Seeing Eye Dogs, an approved training institution under the GHAD Act) and Mr Andrew Barnes (an employee of Guide Dogs Queensland, an approved training institution under the GHAD Act). These three became the technical experts used to assess the Applicant’s suitability for approval.
[15]Each of the experts met with the Applicant and the dogs. In their submissions the experts considered the application and supporting documentation along with verbal evidence presented by the Applicant and evidence gathered by viewing the dogs in a number of situations in public.
[16]On the 12th of November 2010 the Respondent, through the Associate Director General refused to grant the Applicant approval as an assistance dog training institution under the GHAD Act. The Applicant was issued with a statement of reasons.
[17]The Applicant applied under section 69 of the GHAD Act for a review of this decision. The Applicant submitted no further material with the request for review.
[18]On 25 February 2011 on the basis of recommendations provided by the technical experts the Respondent confirmed the original decision to refuse to grant the Applicant approval as an assistance dog training institution under the GHAD Act.
[19]The Applicant has applied to QCAT for a review of this decision on 25 February 2011.
[20]At the hearing Mr Che Forrest on behalf of the Applicant was self-represented. Mr Forrest discussed how he selected the dogs, usually from local impoundments or shelters. He stated when doing so he used his long knowledge and experience with dogs to do this. He also stated that he has been known to use the reaction of one of his own assistance dogs “Knuckles” to the potential new dog to assess whether the new dog is suitable.
[21]The Applicant outlined that the new dog would live with him and his existing dogs throughout its training and the existing dogs would assist with its training and socialisation. Mr Forrest presented verbal evidence that he trains the dogs through his work with them. He then works with the intended recipient of the dog in further training. He stated all dogs pass the public access test and then that is the milestone at which they are ready for their new owners. Mr Forrest stated this phase can take as little as 6 weeks and the dog can be placed with its new owner. When questioned further Mr Forrest was unable to present paperwork or records regarding the assessments and training used. When specifically asked for a check sheet of sorts indicating the training and milestones of the dog and its training Mr Forrest was unable to produce one or confirm that any such instrument was used.
[22]Mr Forrest was able to outline his extensive experience with dogs and it is clear he is very passionate about his work with his dogs and assisting those with mental illness. It is accepted by the Tribunal that Mr Forrest’s experience with dogs and his personal experience with the needs of those experiencing mental health difficulties is extensive.
[23]Mr Forrest confirmed that A.W.A.R.E. Dogs is run by himself with assistance from volunteers. As such it is Mr Forrest’s experience and technical abilities that are being assessed for the purpose of the application under the GHAD Act.
[24]Mr Forrest gave evidence that when the dogs were placed with their new owners they were encouraged to attend local dog obedience or dog clubs to continue working with their dogs. He gave evidence that he provides a follow up on an irregular basis that may consist of annual contact. No records of these were provided.
[25]Mr Andrew Murray was called to provide evidence for the Applicant as a past recipient of an assistance dog from A.W.A.R.E. Dogs. Mr Murray gave evidence that following hospitalisation for mental illness he applied to A.W.A.R.E. Dogs for an assistance dog. He states he received his dog and that she has made a marked difference in his life. Mr Murray stated that he had contact with Mr Forrest after placement of his dog, was encouraged to continue obedience classes with his dog and said he could contact Mr Forrest by phone if he needed to. It was clear that Mr Murray was extremely happy and grateful to have his dog.
[26]The Respondent called evidence from the three technical experts, Craig Murray, Phil Brocklehurst and Andrew Barnes. All three experts provided accounts of their visits to assess A.W.A.R.E. Dogs Inc., the things they observed and accounts of how they, in their chosen professions select, train and assess dogs who act as guide, hearing or assistance dogs.
[27]Mr Murray stated that he thought there was little if any assessment of dog temperament in the selection of the dogs. He also stated that the dogs were given to their new owners far too early. Mr Murray also stated that there was no defined list of tasks the dogs could perform. He also stated that there was no evidence at all of any record keeping. He stated the dogs were well behaved dogs but in his opinion were companion dogs not assistance dogs.
[28]Mr Brocklehurst stated in his evidence that he travelled with Mr Murray to visit with A.W.A.R.E. Dogs in Cairns. He stated he conducted his own separate assessment. Mr Brocklehurst stated that in his opinion the dogs were placed with their owners far too soon and that there was little assessment of temperament. Mr Brocklehurst also stated that he was shown no records of the dog’s training or milestones reached. He stated that the dogs were very well behaved but he could not identify particular and specified tasks that the dogs could do that would make them assistance dogs.
[29]Mr Barnes outlined his qualifications and his method for selecting and training dogs. He stated that although the dogs were well behaved he saw no evidence of the dogs performing specific tasks, no records and again thought the time between selection and homing with new owners was too short.
[30]In this review the Tribunal has assessed the application and evidence provided at the hearing as a “fresh” matter and has considered whether the evidence provided by A.W.A.R.E. Dogs Inc. has demonstrated an acceptable level of:
a. Qualifications relating to assistance dog training standards;
b. Knowledge relating to assistance dog training standards;
c. Experience relating to assistance dog training standards;
d. Training methods;
e. Measures taken to select dogs that are able to meet the individual needs of a person with a disability;
f. Membership to an organisation that promotes standards of dog training;
g. Understanding the needs of a person with a disability;
h. Ongoing support to the handlers of assistance dogs trained by the organisation; and
i. Facilities suitable to train an assistance dog.
[31]Qualifications relating to assistance dog training standards
Evidence provided at the hearing by Mr Forrest was that while he had completed a number of courses the Delta Society this had not resulted in him being issued with a Certificate IV in Companion and Animal Service. Mr Forrest gave evidence that his knowledge and qualifications were gained from his experience and were self-taught.
[32]Knowledge relating to assistance dog training standards
Mr Forrest gave evidence that he had been involved with training assistance dogs for a considerable period of time. He was however unable to give a concise account of a training program an assistance dog might undertake.
[33]Training Methods
Mr Forrest gave evidence that he selected dogs for a new client through a variety of means including allowing his dog “Knuckles” to interact with the dog in determining if it was suitable. Mr Forrest stated he then trained the dog and then gave it to its new owner within a number of weeks. Mr Forrest was unable to supply a detailed account of what the training would involve. In evidence provided by the technical experts this method was not endorsed.
[34]Measures taken to select dogs that are able to meet the individual needs of a person with a disability
Mr Forrest provided evidence that he selects the dogs from a local pound. He stated he takes the dogs for a walk and then introduces them to his dog “Knuckles”. It is this interaction with “Knuckles” that determines whether the dog is selected. Mr Forrest did not provide any evidence as to any other methods of analysing the temperament of the dog including any written records of observations over a period of time.
[35]Membership to an organisation that promotes standards of dog training
Mr Forrest was able to confirm that A.W.A.R.E. Dogs was a member of Assistance Dogs International which fulfils this criteria.
[36]Understanding of the needs of a person with a disability
Mr Forest gave evidence that he had completed some studies in social ecology and was active with a number of groups and seminars involving mental health.
[37]Ongoing support to the handlers of assistance dogs trained by the organisation
Mr Forrest provided evidence that when a dog is placed with a client he encourages that client to attend their local dog obedience school. He gave evidence that he was available via phone for assistance. Mr Forrest did state he checks in annually with clients. He was not however able to produce records or policies regarding A.W.A.R.E. Dogs follow-up procedures when dogs are placed. He gave evidence that he had placed dogs with people in the local area and at other areas in Australia.
[38]Facilities suitable to train an assistance dog
Mr Forrest provided evidence that his training was conducted at his residence in Kuranda. The technical experts all met Mr Forrest in Cairns and thus were unable to comment on the facilities. Mr Forrest gave evidence that the dogs lived in his home with him throughout the period of time he trained them.
[39]In this case it is the role of the Tribunal to make the correct and preferable decision. There were arguments put forward by the Applicant that in its assessment the Respondent, through the technical experts, did not ask for certain documents or clarification. The Applicant was given the opportunity to provide such documentation at the hearing. Such documents as case files on each dog/client, training records and assessments etc were not provided.
[40]The technical experts gave evidence that was informative and consistent in a number of respects notwithstanding their differing expertise with a range of guide, assistance and Seeing Eye dogs. Their extensive experience with dog handling, training and assessment all outline a number of key and consistent points.
[41]The first point all three experts agreed upon was that the assessment of the dog in the selection process was of utmost importance and that this was lacking in the A.W.A.R.E. Dogs process. The Applicant failed to demonstrate a consistent approach in the selection of the dogs and assessment of their temperament. The Applicant also failed to show records kept of such assessments.
[42]The second point all three experts agreed upon was the length of time that the dogs remained being trained for before being placed with their new owners. All three experts provided evidence that this training stage was a lengthy process comprising of consistent reinforcement with the dogs and that is was normal for this process to take a year or more. In the case of the Applicant this phase can be as short as six weeks. Based on the expert evidence provided the Tribunal determines this is an inappropriately short time.
[43]The third point provided by all three experts was that there is a need in the training and assessment of dogs to keep records of dog’s behaviour and achievements. Such records include assessments of temperament, examples of behaviours and milestones reached by the dog. The Applicant in this case was unable to provide evidence of detailed records kept.
[44]The fourth point outlined by all three independent experts was that each of the dogs trained need to demonstrate they can perform a set of identifiable tasks for their owner to assist with that owner’s disability. All three experts stated the Applicant’s dogs were unable to do this. The Tribunal accepts the evidence presented by the Applicant’s witness Mr Murray and acknowledges the importance of his dog in his life. It was clear from his testimony that he feels much more at ease with his dog. However, this is a long way from a demonstration that the dog is more than a companion animal. There was no evidence presented that the dog could perform a set of pre-listed tasks aimed to assist his handler. The Applicant had three of his assistance dogs remain in the court room throughout the duration of the two day hearing. At no time did the Applicant introduce evidence that the dogs could perform certain tasks and demonstrate those. While it is acknowledged that the types of tasks required by someone with a mental illness will differ greatly from someone who is deaf or blind under the legislation the assistance dog still needs to perform identifiable tasks. This was not demonstrated.
[45]The Applicant demonstrated his passion and commitment to his work with A.W.A.R.E. Dogs Inc. and helping the lives of those with mental illness. It is clear from the Applicant’s evidence that he has a long history with assistance dogs and that his expertise in the area of mental health is undeniable. However, based on the evidence presented it is the Tribunal’s opinion that the Applicant does not satisfy the criteria set out under the GHAD Act to be recognised as a training organisation.
[46]The Tribunal therefore confirms the decision of the Respondent.
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