Forest v Sydney Airport Corporation Ltd
[2014] FCCA 208
•12 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOREST v SYDNEY AIRPORT CORPORATION LTD & ANOR | [2014] FCCA 208 |
| Catchwords: PRACTICE & PROCEDURE – Proceedings – summary dismissal of proceedings – no reasonable prospects of success. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PH |
| Catholic Education Office v Clarke (2004) 138 FCR 121 George v Fletcher (Trustee) [2010] FCAFC 53 Purvis v New South Wales (2003) 217 CLR 92 QBE Travel Insurance v Bassanelli [2004] FCA 396 Richardson v ACT Health & Community Care Service (2000) 100 FCR 1 Soreng v Victorian State Director of Public Housing [2002] FMCA 124 Waters v Public Transport Corp (1991) 173 CLR 349 White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 |
| Applicant: | CHE FOREST |
| First Respondent: | SYDNEY AIRPORT CORPORATION LTD |
| Second Respondent: | SYDNEY NIGHT PATROL & INQUIRY CO PTY LTD |
| File Number: | BRG 1035 of 2012 |
| Judgment of: | Judge Burnett |
| Hearing date: | 15 February 2013 |
| Date of Last Submission: | 15 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 12 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Wettenhall Silva Solicitors |
| Counsel for the Respondents: | Mr D. O’Brien |
| Solicitors for the Respondents: | King & Wood Mallesons |
ORDERS
Application in a case dated18 December 2012 be allowed.
Application dated 27 November 2012 be dismissed.
Subject to application for any other order direct that the applicant pay the respondents’ cost of and incidental to the application and the application in a case to be assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1035 of 2012
| CHE FOREST |
Applicant
And
| SYDNEY AIRPORT CORPORATION LTD |
First Respondent
| SYDNEY NIGHT PATROL & INQUIRY CO PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In August 2010, the applicant, Che Forest, was transiting through Sydney Domestic Airport en route to Cairns. Consistent with every other member of the travelling public, he was required to pass through a security screening point (“SSP”) as he sought to move from the land side section of the terminal to its sterile secure area. At this time he was accompanied by his assistance dog, Knuckles. These matters appear to have been evident to those manning the SSP. Accordingly, he was directed not to proceed through the regular walkthrough metal detector (“WTMD”) and instead to accompany the security staff to a discreet area for manual screening.
The first respondent, Sydney Airport Corporation Ltd, operates Sydney Domestic Airport and engages the second respondent, Sydney Night Patrol & Inquiry Co Pty Ltd (“SNP”), to provide security screening services. The applicant claims that the discreet screening process he was subject to amounted to unlawful discrimination. He now seeks relief against the respondents for this conduct.
The respondents deny they have engaged in any unlawful discrimination against the applicant. They contend that the applicant’s case has no reasonable prospects and ought be summarily dismissed pursuant to s.17A Federal Circuit Court of Australia Act 1999 (Cth); r.13.10(a) Federal Circuit Court Rules 2001 (Cth).
Facts
On 17 August 2010 the applicant had arrived at the Sydney International Airport from Los Angeles. He had been accompanied on that flight by his assistance animal, a dog named Knuckles. He claims to require the assistance of Knuckles to calm him because of his various psychological disorders. Knuckles has been an assistance animal since about 2005, having been assessed using the Assistance Dogs International Public Access Certification Test.[1] Knuckles’ presence purportedly assists the applicant with the sensations of anxiety he feels most acutely when he is in public.
[1] A matter admitted solely for the purpose of this application.
After arriving from Los Angeles he was awaiting a connecting flight to Cairns, his final destination. While waiting he wished to access a part of the terminal which required him to pass through an SSP. Nothing in the evidence suggests that the SSP was any different to the screening points customarily seen at airports throughout Australia. At such points people are required to queue before proceeding to a point where metal and loose items are placed into a container upon a conveyor belt for X-ray screening. The individual then proceeds through a WTMD to screen them for the presence of metals.
The applicant says that he was familiar with the screening process.
He approached the SSP accompanied by Knuckles and says that the dog was wearing an orange assistance dog vest and a nylon collar, neither of which items contained metal. He also had a dog lead which did include a metal clip that attached to the collar, however that was removed.
Specifically in his statement he says:
“50. As I reached the security screening point where it is necessary for persons passing through to place their items in trays so as to allow these items to be passed through the screening device, I was approached by a male person wearing a uniform who was clearly working at the security screening point. He informed me that as I was with a dog, I could not pass through the walk-through metal detector and needed to accompany him in order to be manually checked.
51. I cannot recall the exact words I used. However, I made it very clear to this person that I did not wish to accompany him for an alternative form of check. I made it clear that I wished to pass through the walk-through metal detector in the same way as other persons were passing through it although, accompanied by Knuckles.
52. I have passed through similar security screening points at airports on many occasions, both before and since this date. In order to pass through, I simply disconnect the lead to my assistance dog, place the lead and any other items I may be carrying into a tray so that they can be screened and then hold on to my assistance dog by their plastic collar and walk through the walk-through metal detector.
53. In my experience, this process is quite simple. There is a metal clip on the leads I use for my assistance dogs but this passes through the x-ray detector in a tray and can be readily screened. When I then walk through the walk-through metal detector holding my assistance dog’s collar, there is no delay or hold up as I am careful to ensure that I do not have anything metallic on my person so there is no chance of an alarm from the walk-through metal detector.
54. When the lead has been disconnected from my assistance dog, there is nothing metallic left attached to the dog so there is nothing on them that would cause the alarm to sound on the walk-through metal detector.
55. As indicated above, I was not given the option of advancing through the security screening point in this manner. I sought to explain that the requirement to be checked manually, and treated differently to other persons passing through the point, would cause me distress as I did not wish to be manually patted down or treated differently. Despite explaining my position in what I believed was a clear manner, I was advised that I could not do as I wished and I needed to follow the security staff employee in order to be manually patted down. It was made clear that if I did not comply, I would not be able to enter the section of the airport that I needed to access.”
I note that there was no evidence to suggest that any of the respondents’ staff would have had knowledge or a basis for knowledge concerning the specific materials that the applicant says the collar, lead and vest were comprised of.
The applicant believes that this conduct constituted discriminatory treatment and that he has been singled out because he had an assistance dog. He said that he found the incident to be embarrassing, insulting and disturbing.
The second respondent’s Protective Services Manager, Fawad Walizada, gave evidence concerning the security system and the evolution of its process. In particular he noted that the standard screening process was not necessarily suitable for persons with specific needs, such as those with pacemakers, artificial limbs or other factors that would cause the alarms to trigger when passing through the WTMD. He stated that initially processes required a screener to call for particular assistance when the alarms were triggered by such persons. This resulted in complaints from those persons who were often left in public view and required to make highly personal disclosures within earshot of other members of the public at SSPs where queues grew as the specific situations were addressed. Additionally, such persons would also occasionally bump into the WTMD whilst passing through it, temporarily disabling the detector. This caused additional delays to screening whilst the detector awaited restoration.
In response to these matters, the second respondent decided in 2009 to implement a “Special Needs Project” which provided for “special needs lanes” at Terminal 2 of the Sydney Domestic Airport. The project provided for the development of a system for processing special needs persons. In a pamphlet prepared by the second respondent, it identified the “issue/opportunity” as follows:
“Currently Special Needs Passengers (eg pax in wheelchairs, pacemakers, metal joints, elderly pax, etc.) come through screening on a regular basis every day.
An opportunity exists for us to deliver the best possible service to these special needs passengers as they are usually the passengers that are kept waiting the longest for screening.”
The pamphlet further identified “special needs” as follows:
“[Special needs] is the term we use for the people that come through our screening point requiring a higher level of service as their needs are greater. Examples include elderly people in wheelchairs, people on crutches, pacemakers, prosthetic limbs, insulin pump users, hip or other joint replacements, etc.”
The process provided for the establishment of a discreet screening facility and training of special needs “greeters” to attend to special needs persons. In particular, it provided concerning the procedure to screen special needs customers:
“If a Special Needs Customer arrives at another x-ray apart from the dedicated x-ray 3[2] the loader should inform the Customer that there is a dedicated line for Special Needs Customers and they can either go through the dedicated line or just come through the x-ray they are currently at. If the Customer elects to just go through then the nearest Special Needs Assistant will be discreetly called over to conduct the secondary screening.”
[2] The X-ray machine which was dedicated to the pilot phase of the project.
The project proved to be an overwhelming success, with positive feedback received by the second respondent about this initiative from both passengers and staff. Some additional recommendations also flowed which were in turn implemented, but they are not material to the facts in this case.
The project provided for an appropriate appreciation;[3] risk assessments; scenario ‘what ifs’ to assist the trained special needs greeters; and the introduction of an appropriate supervisory regime. That regime was supported by both earlier trial data and a training regime for staff. Specifically concerning assistance dogs, the process, as described by security officer Mr Tamzid Hamin, provided that if a greeter noticed a person with a special need, such as an assistance dog, they would direct the special needs person to the special needs walkthrough area which was positioned between X-ray machines 3 and 4. He stated that people using that lane were not screened by the WTMD. He stated that his experience was that dog harnesses triggered the WTMD alarm. Accordingly, those persons have a secondary screening because screeners are not permitted to separate special needs screenees from their dogs in accordance with SNP policy. In addition, he noted that people with special needs, such as those with assistance dogs, might have difficulty passing through the narrow gap in the WTMD. He said that SNP’s policy required these screenees to be manually screened with a physical pat down in the special needs walkthrough area. He stated that it is difficult to scan those with an assistance dog using a handheld metal detector as they cannot be required to let go of the assistance animal. He added that before a pat down is administered:
a)SNP policy is explained to the person;
b)the screenee is offered a private room;
c)their consent is sought; and
d)the pat down is administered only by a screening officer of the same gender as the screenee.
[3] That included an observation that one of the major motivations in initiating the project was to minimise any sense of humiliation that special needs customers might face when being screened in public.
He opined that the process normally takes around 2 to 3 minutes if there is no queue of special needs persons. Further, he stated that the processing of the special needs persons in the walkthrough area is generally much quicker than for other passengers using WTMDs and that the whole process was designed to make the security screening easier and more seamless for people with special needs. In addition he stated that if a person with an assistance dog were to pass through the WTMD, screening that person with a pat down in that area would be difficult and likely cause delays to following passengers, including the person with the assistance dog.
It was this system that was in place on 17 August 2010.
On that day, Mr Nirbhay Randhawa was the duty shift supervisor and manager. Simarpreet Singh and Tamzid Hamin were screening officers on duty at Terminal 2 at the time the applicant sought to progress from the land side to the sterile side of the terminal via the SSP. The security screening was then arranged into six lanes. Four lanes were regular security screening lanes and two, located behind a glass screen, were provided for special needs persons. In that area there was no WTMD, but screenees were subject to “secondary screening” by a “frisk.”
Mr Randhawa deposed that ordinarily when a person with an assistance dog approached the security screening area they were directed by the greeter to the special needs walkthrough area, where the procedure was explained to them and they were offered a private room if they desired. Belts, shoes and loose items would be X-rayed, screenees were subject to pat down by someone of identical gender and the assistance dog would also be frisked at the same time. All such action was undertaken only after first having obtained the consent of the screenee. If consent was not obtained, the person would not be permitted to pass into the sterile area of the airport. Concerning this process, Mr Randhawa stated:
“9. The process of passing through the special assistance walk through area was quicker for people with assistance dogs as the dog harnesses would set off the WTMD, which meant that the person and their dog had to undertake secondary screening as well. This used to cause delays because a secondary scan could only be undertaken by an appropriate SNP screening officer who, because they were manning other screening stations, had to be called over from those stations to the screening station where the special needs person was. This practice not only delayed the person with special needs, it delayed other people waiting to pass through security. By establishing the special needs walk through area the WTMD process was dispensed with so the special needs person could proceed directly to secondary scanning instead of forcing them to undertake a pointless check via a WTMD which they would fail because of their assistance dog setting off the alarm.”
Mr Hamin was the screening officer on duty at the time the applicant approached the SSP that day. The events of the day gave rise to an incident which was reported by his supervisor, Mr Singh. Mr Hamin has no recollection of the event concerning the applicant. Nor does Mr Singh have any specific recall of dealing with the applicant on that day. However, Mr Singh wrote an incident report. I apprehend he accepts it as an accurate report of that day’s events as the report is in his handwriting. A transcript of his report notes the relevant circumstances as follows:
“At approx 0915am male pax came through between x-ray 3 & x-ray 4 he was having a guide with him. Our greeter called for male pat down as he was special needs passenger. When Tamzid Hamin offered this and explained him the procedure of pat down ask he wants private room. He was upset about it and started going off and being arrogant to him. Then team leader Nirbhay Randhawa came and try to explain him the procedure. The pax was still not happy about it and saying to them that we are delaying his process. Then he came on the side to put his shoes on he told me that if this thing happens again to him he will consider it as discrimination.”
Subsequently the applicant made complaint to the Australian Human Rights Commission. In due course the Commission wrote to the first respondent on or about 18 July 2011 advising it of the complaint. In its letter in response, dated 1 August 2011, the first respondent stated, inter alia:
“…
Screening requirements at airports are prescribed under the Aviation Transport Security Regulations 2005 (Cth). The Federal Government has appointed Sydney Airport Corporation Ltd (SACL) as the screening authority for Sydney Airport. SACL has a contractual agreement in place with Sydney Night Patrol & Inquiry Co Pty Ltd (SNP). SNP is appointed to carry out certain screening functions on behalf of SACL, including the proper operation of the screening point Mr Forest has raised concerns about.
SACL is very concerned that legally compliant security screening is conducted at Sydney Airport taking into account the needs of all persons passing through screening points. Staff are trained to facilitate screening of a wide spectrum of the public and to be mindful of respecting the rights and dignity of all persons who present themselves for screening.
The Government provides screening guidance to us, including in respect of persons who use assistance dogs, which are followed at screening points. By way of example, please find attached copies of “Screening Practice Guidelines: Overview” and “Screening Practice Guidelines: Screening Point Operation” issued by the Office of Transport Security.
…”
Despite further conciliation between both the applicant and respondents conducted by the Commission, no comprise could be achieved. Accordingly, the President of the Commission issued a Notice of Termination dated 26 September 2012 pursuant to s.46PH(2) Australian Human Rights Commission Act 1986 (Cth). The Notice of Termination was issued on the basis that the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation. The issue of the certificate enlivens the Court’s jurisdiction to determine the application.
Proceedings
Following the issue of the certificate, the applicant instituted these proceedings seeking declarations that the respondents’ conduct amounted to unlawful discrimination. He sought relief in the nature of a mandatory injunction directed to the respondents urging them to correct their policies, together with a claim for compensation for hurt, humiliation and embarrassment.
Shortly after the applicant filed his application, the respondents filed an application in a case seeking orders for summary dismissal of the application. Directions issued for the hearing of that application including the filing of material. That application ultimately proceeded to argument.
Summary Dismissal Principle
The principles governing the Court’s exercise of powers under s.17A Federal Circuit Court of Australia Act 1999 (Cth) are now well settled. Lindgren J, in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511, summarised the principles as follows:
“[53] The “no reasonable prospects of success” formula of s.31A is that which was adopted in r.24.2 of the United Kingdom’s Civil Procedure Rules (“CPRs”) following the recommendation of Lord Woolf, Master of the Rolls, in his Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, 1996), ch 12, ss.31-36. The same test has been adopted in rr.292(2) and 293(2) of Queensland’s Uniform Civil Procedure Rules 1999.
[54] Under s.31A I must be satisfied that the applicants have no reasonable prospect of success, but as s.31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s.31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92 …”
The statements of Lindgren J were endorsed by the majority in George v Fletcher (Trustee) [2010] FCAFC 53 at [75], where they stated:
“…
These remarks have since frequently been cited with approval by various judges of this court. They offer valuable guidance in relation to the background to the enactment, purpose and meaning of s.31A and its equivalent, s.17A. The suggestion made by Lindgren J (at [54]), with which we agree, that the intention of the legislature in enacting s.31A was to “lower the bar for obtaining summary judgment” does not carry with it the additional proposition that the intention was to remove the bar completely. True it is that s.31A is not concerned just with pleadings but with substance, not form. The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s.31A to grant summary judgment. That would be inconsistent with the way in which the phrase “no reasonable prospect of success” is to be read in light of s.31A(3) (and s.17A(3)).”
I note that for the purpose of this application the following matters are not in dispute:
a)The essential allegations made by the applicant in support of his claim;
b)The explanation provided by the second respondents for the implementation of its special needs program; and
c)That the applicant’s dog, Knuckles, was an assistance animal for the purposes of the Disability Discrimination Act 1992 (Cth) (“the DDA”).
Did the Respondents Engage in Discriminatory Behaviour?
Although the applicant has not expressly articulated the basis of the complaint against the respondents, I accept their counsel’s characterisation of his complaint as one of contravention of s.24(c) DDA on the basis that its airport security services were provided in a discriminatory manner. Section 24(c) DDA relevantly provides:
“24 Goods, services and facilities
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:
…
(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.”
Sections 5 and 6 of the DDA identify the manner in which discrimination may arise. Again, in the absence of submissions by the applicant to the contrary I accept the respondent’s characterisation of the applicant’s complaint as directed solely to a complaint of direct discrimination contrary to s.5 based upon the applicant’s need for an assistance animal: s.9 DDA. Relevantly, those provisions provide:
5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
9. Carer, assistant, assistance animal and disability aid definitions
Meanings of carer or assistant, assistance animal and disability aid
…
(2) For the purposes of this Act, an assistance animal is a dog or other animal:
(a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
(b) accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
(c) trained:
(i) to assist a person with a disability to alleviate the effect of the disability; and
(ii) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
Note: For exemptions from Part 2 for discrimination in relation to assistance animals, see section 54A.
(3) For the purposes of this Act, a disability aid, in relation to a person with a disability, is equipment (including a palliative or therapeutic device) that:
(a) is used by the person; and
(b) provides assistance to alleviate the effect of the disability.
Having a carer, assistant, assistance animal or disability aid
(4) The following table has effect:
Having a carer, assistant, assistance animal or disability aid Item For the purposes of this Act, a person with a disability has … if the person … 1 … 2 an assistance animal or disability aid (a) is presently accompanied by, or possesses, the animal or aid; or
(b) was previously accompanied by, or possessed, the animal or aid; or
(c) may be accompanied by, or possess, the animal or aid in the future; or
(d) is imputed to be accompanied by, or to possess, the animal or aid.
Counsel for the respondents’ written submissions contended that the question of whether or not the incident in question gave rise to an event of direct discrimination can both be analysed and resolved by reference to settled authority. In Purvis v New South Wales (2003) 217 CLR 92, the High Court considered the operation of the DDA in the context of a complaint that an education authority had discriminated against a child by seeking to exclude the child from an educational facility on the basis of the child’s disability. The child had exhibited violent behaviour at school in consequence of a condition attributable to brain damage suffered in infancy. The school principal and the Department determined that the child should be enrolled in a special school and should be excluded from the school he was then attending. The majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; McHugh and Kirby JJ dissenting) held that the exclusion of the student did not constitute discrimination on the ground of his disability, since the educational authority would have treated a non-disabled student exhibiting the same behaviour in the same way.
In his written outline, counsel for the respondents noted that the joint judgment of Gummow, Hayne and Heydon JJ in Purvis is most instructive. He noted that their Honours identified three issues in the appeal:
a)Was the student’s disability to be regarded as the disorder from which he suffered, or as the disturbed behaviour that resulted from the disorder?;
b)Was the comparison required by s.5(1) DDA between the way the authority treated the child and the treatment that would have been accorded to a student who was not disabled but who had acted as the student had acted? Or was the comparison to be made with a non-disabled student who had not exhibited violent behaviour?;
c)What is the relationship that has to exist between the disability and the alleged discriminatory conduct on the part of the educational authority?[4]
[4] At [191] to [193].
As counsel for the respondents observed, their Honours found against the student on the second ground and dismissed the appeal. In doing so, their Honours explained the proper operation of s.5(1):
“[213] Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability “in circumstances that are the same or are not materially different.” If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s.5(1) is “a person without the disability.”
[214] The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability “in circumstances that are the same or are not materially different.” Recognising that s.5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act …”
Further, their Honours considered what is meant by the reference in s.5(1) to “circumstances that are the same or are not materially different.” Their Honours held that while s.5(2) amplifies the operation of that expression, it cannot be read as requiring the provision of different accommodation or services. Their Honours stated at [218] that “there is no textual or other basis in s.5 for saying that a failure to provide such accommodation or services would constitute less favourable treatment of the disabled person for the purposes of s.5.”
Counsel for the respondents also submitted that in Purvis the appellant argued that the student’s disturbed behaviour was part of his disability and that the appropriate comparison would be with a non-disabled person whose behaviour was not affected by a similar disability. That is, the required comparison involved excluding all circumstances constituting the disability. He noted that the plurality rejected that argument, stating:
“[222] It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
[223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s.5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
[224] … There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s.5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.”
[Emphasis as per original]
In summary, counsel for the respondents contended that the plurality were of the view that s.5(1) involved two questions:[5] first, how, in those circumstances, would the educational authority have treated a person without the student’s disability? Second, if the student’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of the student’s disability? He noted that the plurality concluded that the decision at first instance by the Commissioner in favour of the disabled student was flawed because it failed to identify the circumstances which led to his treatment. That is, there had been no determination of how a person without the disability would have been treated in circumstances which were the same or not materially different from the circumstances surrounding the student’s treatment.
[5] At [225].
Finally, counsel for the respondents noted that the plurality also considered the requirement in s.5(1) that the aggrieved person be treated less favourably “because of” that person’s disability. He noted their comments at [236]:
“For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of,” “by reason of,” that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of.””
Callinan J agreed with the joint judgment in respect of the comparator issue and the bearing that the plurality’s construction of the DDA had on it.[6] Gleeson CJ held that the comparison required by s.5(1) was with a non-disabled student who exhibited violent behaviour and required a comparison with a student without the disability, not a student without the behaviour. He also noted that the ground for action was the student’s violent conduct and the principal’s concern for the safety of other students and staff members. He observed that it was proper to take into account the objects of the DDA and the scope and purpose of the legislation, and that a decision maker may therefore identify and act on a threat to the safety or welfare of persons to whom the decision maker is responsible.
[6] At [273].
Premised upon the views of the majority expressed in Purvis, counsel for the respondents contended that the applicant had not been discriminated against either because of his dog or his disability. He formulated the relevant questions as:
“(a) How, in the circumstances of this case, would airport security screeners have treated a person without Mr Forest’s disability or without his dog?
(b) If the treatment was less favourable than the treatment that would be given to a person without the disability, was that because of the disability or the dog?”[7]
[7] Respondents’ outline of submissions at [35].
He contended that the appropriate comparator was not a person without a disability and a dog approaching the security screeners, but rather a person who:
a)was approaching the security screeners;
b)with something in their hands or under their control;
c)from which they cannot be separated; and
d)which is perceived by the security screeners as being likely to trigger WTMDs.
By way of example, he contended that an appropriate comparator might be a person wearing an obvious metal badge sewn into his or her shirt which cannot be removed without difficulty. He contended that if such a comparator presented, he/she would have been treated exactly as the applicant and his dog were. That is, they would have been identified by the screeners as likely to trigger the WTMDs and thereby have been directed to the special needs lane to be subject to secondary screening.
Accordingly, counsel for the respondents contended that the applicant could not demonstrate that he had been treated any less favourably than a person with a disability and with a dog in similar circumstances.
In his oral submissions, the applicant’s solicitor did not take issue with the authority of Purvis or the respondents’ submissions concerning how the majority’s reasons in Purvis ought be construed and applied. I accept the respondents’ submissions and interpretation of the majority’s views in Purvis. I accept that, following the majority’s views in Purvis, the relevant questions addressed by the respondents are the relevant questions to be answered in this instance.
Despite the applicant’s advocate not challenging the manner in which the respondents’ counsel submitted Purvis ought to be construed he did take issue with the comparator contended for by him. The applicant did not expressly propose an appropriate comparator, except to state that “the ordinary comparator is the disability and the person without the disability, that is the ordinary comparator.”[8] His submission was directed to criticism of the respondents’ proposed comparator. The applicant contended that the respondents’ comparator was defined by a process of deconstruction of the factors or reasons for the aggrieved person to be subject to differential and unfavourable treatment. He submitted that that approach sought to avoid the operation of the Act and denied it the beneficial construction which he contended the authority required it to be afforded: Waters v Public Transport Corp (1991) 173 CLR 349.
[8] Transcript 15 February 2013, page 24 lines 12-13.
Respectfully however, the applicant’s contention commenced from a flawed premise. He submitted that the respondents’ process commenced from identification of persons on the basis of disability. In particular, he contended that the presence of his assistance dog was the reason he was directed to proceed through the special needs lane. However, that was not the evidence. The evidence of the respondents’ security personal was they were concerned that the applicant’s dog would trigger the WTMD alarm, and that by passing through it he could cause the machine to become temporarily disabled. In effect, the presence of the dog simply alerted them to the prospect of their concern, but was not of itself the matter of concern. The applicant’s submissions did not address how and why this evidence and analysis was inappropriate in the circumstances when seeking to formulate an appropriate comparator, that is, not a person without a disability and a dog approaching the security screeners, but rather a person approaching the security screeners with something in their hands or under their control from which they cannot be separated and which is reasonably perceived by the security screeners as being likely to trigger the WTMDs.
In this instance there is clear evidence that the applicant and his dog were plainly visible to security staff as they approach the SSP. The applicant had in his control a dog. Past experience reveals that dogs that pass through WTMDs with their controllers have a propensity to trigger the WTMD’s alarm. In the SSP environment a person having a dog under his or her control cannot be permitted to be separated at the SSP for fear of flight by the animal. It follows that in addressing the first question an appropriate comparator would have been treated exactly the same way as Mr Forest and his dog were, and that the circumstances do not establish discrimination.
The second question identified by the respondents concerned less favourable treatment. If there was less favourable treatment (which I do not accept), was it because of the disability or the dog? Counsel for the respondents contends that if there was any difference of treatment it is readily apparent that it was not because of Mr Forest’s disability or his dog. He contends that it was because of:
a)the perceived likelihood that such a person passing through would trigger the WTMDs;
b)a desire to limit delay and distress to persons such as Mr Forest by having them pass through two security procedures (the scan and then the pat down);
c)an intent to ensure that such persons and their dogs are able to stay together at all times; and
d)an intention to limit delays for other travellers.
Accordingly, counsel for the respondents submitted that a difference in treatment was not because of the applicant’s disability or because he had a dog with him to assist his disability, but rather because of the circumstances relating to his presentation to the security screeners as a high risk of triggering the WTMD alarms. This occurred in the context of a strict security environment that sought to manage sizeable passenger traffic and conduct effective screening in a timely manner. It follows that I do not accept the treatment was because of the applicant’s disability.
It follows that I do not consider the application to have any reasonable prospects of success on this point; indeed, it should be dismissed on the basis of this point alone.
Special Measures
For the respondents it was contended that even if their actions amounted to discrimination within the meaning of that term, the discrimination was not unlawful by virtue of s.45 DDA because it was reasonably intended to afford persons with particular disabilities opportunities to meet their special needs by making available ameliorative facilities. Section 45 DDA provides:
“45 Special measures
(1) This Part does not render it unlawful to do an act that is reasonably intended to:
(a) ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or
(b) afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:
…
(ii) the provision of goods, services, facilities or land; or
(iii) the making available of facilities; or
…; or
(c) afford persons who have a disability or a particular disability, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:
…
(ii) the provision of goods, services, facilities or land; or
(iii) the making available of facilities; or
…
(2) However, subsection (1) does not apply:
(a) in relation to discrimination in implementing a measure referred to in that subsection if the discrimination is not necessary for implementing the measure; or
(b) in relation to the rates of salary or wages paid to persons with disabilities.
Note: For discrimination in relation to the rates of salary or wages paid to persons with disabilities, see paragraphs 47(1)(c) and (d).”
As was contended by counsel for the respondents, the primary purpose of s.45 is to allow affirmative conduct “reasonably intended” to provide services or facilities to disabled people or a particular class of disabled people, even though the benefits are not made available to other people, disabled or otherwise: Catholic Education Office v Clarke (2004) 138 FCR 121 at [129]. Further, the decision maker’s intention is a matter to be established by reference to the facts, including reference to the circumstances in which inferences may be drawn as to the state of mind of the decision maker: Richardson v ACT Health & Community Care Service (2000) 100 FCR 1 per Heerey and Finkelstein JJ at [26] and Soreng v Victorian State Director of Public Housing [2002] FMCA 124 at [24].
In this case it was contended that the special needs program developed by the second respondent was specifically created to assist, inter alia, people with disabilities, including those with assistant animals. I am particularly mindful of the evidence of Mr Singh that, even if the applicant had passed through a WTMD, its alarm would have sounded because he could not be separated from his assistance dog and Mr Singh believed that the dog’s harness would inevitably trigger the alarm. That was also the experience of Mr Randhawa and Mr Hamin. As the respondents’ counsel submitted, the evidence demonstrates that when these instances occurred in the past the special needs person was made to stand to one side and await the attendance of staff to undertake a secondary screening process which involved a physical pat down. These circumstances frequently led to inquiry by the relevant screening officer of the screenee about the screenee’s personal circumstances, such as the presence of pacemakers or artificial limbs which may have caused the alarm to trigger. It was evident from the experience of the screeners that these instances proved to be embarrassing for the passengers concerned, not only because of their need to disclose personal information but also because they became the obvious focal point of delay to others waiting to be processed. It was with these matters in mind that the special needs program was developed. As the evidence demonstrates, the special needs program was not developed on a whim, but after careful and considered trial and assessment following the receipt of positive feedback from those who were processed in accordance with the pilot program.
The submissions of the applicant’s advocate concentrated on this issue. He was particularly critical of the process, submitting that it was fundamentally flawed in that it failed to afford a prospective screenee the option to be screened in the customary manner, but instead prescriptively required a prospective screenee to be subject to discreet screening if an SSP officer deemed it appropriate. He submitted that the respondents could not determine for themselves what special measures ought to be employed, stating that those matters have to be ascertained objectively on the facts. The applicant particularly complained that on many previous occasions he had travelled through screening sites both before and since and had never been subject to discreet screening as occurred at Sydney Airport.
The applicant contended that the system developed by the second respondent did not constitute an appropriate measure for dealing with disabled persons. He contended that such measures had “to be determined objectively on all the facts.”[9] He argued that nothing in the second respondent’s material demonstrated that they had sought external advice, engaged external consultants or subjected their process to external analysis. He complained that the second respondent’s system and processes had been internally devised. The applicant was pressed to suggest measures that would be appropriate, as the Court attempted to ascertain whether this matter might be the subject of forensic contest. However, it was evident from the applicant’s submissions on this matter that his arguments were speculative.
[9] Transcript 15 February 2013, page 21 line 7.
The applicant contended there was a live issue regarding the suitability of the second respondent’s measures, but beyond his general complaint he could not particularise a basis for complaints of unsuitability. The applicant sought some support from the decision in QBE Travel Insurance v Bassanelli [2004] FCA 396. However, as the respondents’ counsel contended, and I accept, that decision is readily distinguishable on its facts.
The fact remains that the process designed by the second respondent is intended to afford, by affirmative conduct, a positive benefit to persons with disabilities which is not available to non-disabled persons. Persons with disabilities receive screening processes that are dignified, private, personal and bespoke in recognition of and relevant to their individual disabilities. The process is objectively reasonable.
In that regard I reject the applicant’s submission that the process is “formulaic,” thereby grouping persons without proper regard to an individual’s circumstances or characteristics that they possess: QBE Travel Insurance v Bassanelli at [85]. It is because disabilities can manifest in so many ways which might affect the second respondent’s capacity to properly screen those persons that a “formulaic” approach cannot be adopted. The fact remains that the system must be operated by operators who will possess limited skills. A simple and readily operable system is required. The respondents’ approach seeks to provide a process which is objectively reasonable, systematic and non-discriminatory.
The applicant counters that submission by contending that his dog does not give rise to any of the concerns the system seeks to address. However, systems cannot work where undue emphasis is placed upon subjective factors, particularly subjective factors which are in turn assessed subjectively. Here the applicant says that the dog is obedient, behaves, is not a flight risk if released and, I infer, not likely to be upset by the environment. Each of those matters relies upon his view of the dog. While those claims may prove to be the fact, the circumstances of airport security do not reasonably require a system directed to satisfying individual taste: a utilitarian approach is both reasonable and necessary if all disabled persons are to enjoy reasonable rights of access to airport security screening services. This is particularly so in the context of a strict security environment that is required to accommodate sizeable passenger traffic and provide effective screening in a timely manner.
I have earlier concluded that the respondents’ conduct did not give rise to a contravention of the DDA. If it did, then I am satisfied that the respondents’ processes would satisfy the requirements of s.45. I do not consider the applicant to have any reasonable prospects of defeating this contention.
I accept the respondents’ contention that the special needs program was reasonably intended to provide services or facilities to meet the special needs of disabled persons seeking to transit into a sterile area at the Sydney airport where they are required to pass through a security screening process. It follows that the respondents fall within the exemption afforded by s.45 DDA, and their conduct is exempted from the prohibition in s.24 DDA by reason thereof.
Factual Contest
For the applicant it was contended that, notwithstanding the matters advanced by the respondents, there were serious issues of fact which required the matter to proceed to trial and did not warrant the summary dismissal of his application. In particular, one matter advanced was a dispute between the parties about whether an assistance animal can easily be controlled if the owner is forced to let go of the animal, and whether that creates a risk of the animal escaping into the airport and becoming lost or causing a nuisance to other passengers. Notwithstanding the applicant’s contention that this point of fact requires resolution at trial, I do not think that that dispute is of itself sufficient to bar the exercise of the power conferred by s.17A to grant summary judgment. The point is only “tangentially relevant.”[10] As I have earlier concluded, the subjective risk of the applicant’s dog taking flight and being considered and treated differently to any other dog is irrelevant.
[10] George v Fletcher(Trustee) at [75].
Summary
The applicant seeks declarations and relief against the respondents for alleged contraventions of the DDA in respect of his screening at a security point at Sydney Airport in 2010. The respondents resist the application. They contend that the applicant has no reasonable prospects of success in the principal application and seek its dismissal. They contend that even if the conduct was discriminatory (which is denied) it constituted a special measure pursuant to s.45 DDA and is lawful.
In my view, the respondents’ conduct did not give rise to discriminatory behaviour and the applicant has no reasonable prospects of success in his application contending so. Furthermore, if the conduct was discriminatory (which I do not accept) it constituted a special measure within the meaning provided for in s.45 DDA and was lawful.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 12 February 2014