Forest v Queensland Health

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FEDERAL COURT OF AUSTRALIA

Forest v Queensland Health [2007] FCA 936

DISCRIMINATION LAW – disability discrimination – personality disorder – applicant accompanied by “assistance animal” – refused entry to respondent’s premises – s 6 and s 9 Disability Discrimination Act 1992 (Cth) – whether indirect discrimination – nature of “requirement or condition” imposed by the respondent - whether “requirement or condition” imposed by the respondent reasonable – whether animal is a s 9(1)(f) assistance animal – meaning of “animal trained to assist the aggrieved person to alleviate the effect of the disability” – meaning of “trained” – nature of applicant’s disability – whether presence of animal alleviates the effect of the disability – whether applicant treated less favourably because he was accompanied by an assistance animal

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…

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Details
Case
[2007] FCA 936
Decision Date

CaseChat Overview and Summary

In the case of Forest v Queensland Health, the applicant, Che Forest, who owns two dogs, Buddy and Knuckles, both trained as assistance animals, sought relief for alleged discrimination against him by the respondent, Queensland Health, in relation to their refusal to permit him to enter the Cairns Base Hospital and the Smithfield Community Health Centre in the company of his dogs. The applicant, who has a history of psychiatric illness, relies on Buddy and Knuckles to assist him with the effects of his disability. The court was tasked with determining whether the respondent's actions constituted discrimination and whether such discrimination was unlawful under the Disability Discrimination Act 1992 (Cth). Additionally, the court needed to consider whether the respondent had demonstrated any unjustifiable hardship that would excuse the discriminatory conduct.

The court found that the respondent's refusal to allow the applicant to enter the health facilities with his assistance dogs constituted discrimination under sections 6 and 9(1)(f) of the Disability Discrimination Act 1992 (Cth). The court concluded that the conduct of the respondent was unlawful pursuant to sections 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) of the same Act. The court did not find that the respondent had demonstrated unjustifiable hardship as per sections 23(2) and 24(2). In reaching this decision, the court noted that while the language of the Disability Discrimination Act 1992 (Cth) permits a broad interpretation of what constitutes an assistance animal, it raises concerns about the functioning of disabled persons with genuine assistance animals in the community.

In summary, the court ordered that the respondent had discriminated against the applicant within the meaning of sections 6 and 9(1)(f) of the Disability Discrimination Act 1992 (Cth) and that the conduct of the respondent was unlawful as per sections 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) of the same Act.

Orders

Orders of the court

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).

Background

Background to the litigation

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 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). 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). 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. 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 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

COLLIER J
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 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). 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. 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. 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 )·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.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

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