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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- Case
- [2007] FCA 936
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: COLLIER J
Full text does not contain this section.