Klein v Sporting Shooters Association of Australia (Qld) Inc
[2025] FedCFamC2G 246
•25 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Klein v Sporting Shooters Association of Australia (Qld) Inc [2025] FedCFamC2G 246
File number(s): BRG 641 of 2023 Judgment of: JUDGE EGAN Date of judgment: 25 February 2025 Catchwords: HUMAN RIGHTS – Where the applicant was a disabled man who owned an assistance animal as defined under the Disability Discrimination Act – where the applicant was a member of the Respondent – where the Respondent refused to allow the applicant to take his dog on a feral animal shoot for safety reasons – where the applicant asserted that the refusal constituted discrimination under the Act – where no discrimination found – application dismissed. Legislation: Disability Discrimination Act 1992 (Cth), s.4, s.5, s.8, s. 9 and s.27
Associations Incorporation Act 1981 (Qld)
Weapons Act 1990 (Qld), s.11
Cases cited: Mulligan v Virgin Airlines Pty Ltd (2015) 234 FCR 207
Purvis v New South Wales (2003) 217 CLR 92
Sklavos v Australasian College of Dermatologists [2017] 256 FCR 247
The State of Queensland (Queensland Health) v Che Forest [2008] 168 FCR 532
Wilson v Anderson & Ors (2002) 213 CLR 401
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 20 February 2025 Date of hearing: 18 and 20 February 2025 Place: Brisbane Counsel for the Applicant: Mr B Reed Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr D O’Gorman SC
Mr S TrewavasSolicitor for the Respondent: Stanton & Associates ORDERS
BRG 641 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAMES KLEIN
Applicant
AND: SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (QLD.) INC.
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
25 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Amended Statement of Claim filed on 27 May 2024 be dismissed.
2.The applicant file written submissions on the question of costs on or before 4.00 pm on 4 March 2025.
3.The respondent file written submissions on the question of costs on or before 4.00 pm on 11 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The applicant is a disabled 76-year-old retiree who has for more than a decade suffered from depression.
The applicant has owned a trained assistance dog (the dog) since February 2019. The applicant claims that the dog assists him with his stress and anxiety. The dog was neither a hunting dog nor a gun dog. It used to accompany the applicant to a firing range where it was said to be well behaved during live firing. There was little evidence at trial about characteristics exhibited by the dog during live firing of ammunition during a shoot.
The respondent is a not-for-profit association (the association) incorporated pursuant to the provisions of the Associations Incorporation Act 1981 (Qld). The association has approximately 78,000 members. Membership of the association is a genuine reason under s. 11 of the Weapons Act 1990 (Qld) qualifying members to hold a firearms licence and possess a firearm.
The association operates a sub-committee called Conservation and Wildlife Management Qld (CWM). The mission statement, history and volunteer statement of CWM was as follows: [1]
[1] See Annexure HG02 to the affidavit of Hellen Gill filed on 23 July 2024 at Court Book (CB) p. 434.
Mission Statement
•To identify, define, maintain, protect and restore biotic communities within Australia's Natural Heritage.
•Identify areas of degradation .
•Through consultation with private landholders and government departments, determine causes of degradation .
•Identify causes of degradation which may be controlled, minimised or removed entirely.
•Define goals related to control and/or management of causes of degradation.
•Develop management plans in conjunction with private landholders and government departments where appropriate .
•Carry out field operations that relate specifically to agreed management plans and record and relay data to appropriate parties.
•Develop and implement programs to maintain biotic communities.
•Through education and positive action, raise public awareness of degradation in biodiversity.
Our History
Since the early 1990s, SSAA have been formally working with various government authorities to conserve native species and manage species that are negatively impacting the environment. The South Australian branch of the SSAA pioneered the Hunting and Conservation division to assist the authorities as a no-cost service , and successfully worked with the National Parks and Wildlife Service on feral goat control throughout the Gannon Ranges.
The group developed a training and accreditation programme to ensure that each group member had the necessary skills and knowledge that displayed they could operate safely within the restricted parks areas . Since that time SSAA members have initiated divisions in six Australian states and territories.
The SSAA Queensland division of Conservation and Wildlife Management was established in 2001 and has developed a strong and diversified membership base covering the south east corner, central , central highlands and far north Queensland areas.
Volunteers
Are you interested in becoming a responsible conservation hunter?
We are always looking for new members to join our dedicated group of volunteers.
Each month there are various feral control projects within the state to participate in. As members, you will use your skills and time to help protect our native wildlife and the bush environment for future generations. Enjoy mateship and camaraderie with like minded individuals. Travel to and enjoy some magnificent areas of Queensland. Have access to regular and ongoing training including bushcraft, conservation and animal welfare, marksmanship, remote area training in 4WD use and communications to name a few.
Visit our membership section for more details
CWM published an accreditation manual, the introduction to which provided as follows: [2]
[2] Annexure HG03 to Gill affidavit at CB p. 437.
1.INTRODUCTION
This course is provided to assist SSAA (QLD) Inc. Conservation and Wildlife Management (CWM) members to achieve standards of knowledge and skills and to develop attitudes required for effective participation in conservation and wildlife management programs.
The SSAA is often involved with various State Government Departments, Land Care Groups, Property Owners and District or Regional Organisations responsible for the removal or control of feral animal populations. To ensure that only responsible shooters participate in control activities, only accredited SSAA (Qld) Inc. CWM members will be involved in the programs.
At 3.1.2 of the accreditation manual, it was provided as follows: [3]
[3] Annexure HG03 to Gill affidavit at CB p. 440.
3.1.2 – OBJECTIVE DESCRIPTION
Describe conservation management practices.
Australia's natural environment is unique. European settlement brought the introduction of new species of wildlife, many of which have survived to flourish in the Australian countryside.
The CWM has established a resource of members available to land and environment managers in Queensland. Teams will be available for all aspects of conservation management, including introduced animal species control using the responsible and ethical hunting skills of the CWM accredited participants.
The lack of natural predation and freedom from diseases has allowed introduced animal species to increase to numbers that compete with Australian native mammals and birds, damage habitat and reduce agricultural viability. Introduced animal species may transmit animal diseases from wild to domestic stock, damage crops and fences, change the habitat of native animals and cause erosion. They may also transmit certain diseases to humans such as Leptospirosis, Sparganosis, Brucellosis and Q Fever. This is far from being a complete list of problems encountered with introduced animal species in Australia.
At 3.1.3 of the accreditation manual, it was provided as follows: [4]
[4] Annexure HG03 to Gill affidavit at CB p. 444.
3.1.3 – OBJECTIVE DESCRIPTION
Describe the obligation for ethical hunting.
The purpose of the CWM course is to develop and support safe hunting habits and ethics. Accredited CWM QLD members involved in feral animal control programs must display firearm handling skills, responsibility to themselves and others, and an understanding of targeted species and environmental care. Ethical Hunting practices are key elements in the Program.
The three types of learning - knowing the facts, acquiring skills and developing attitudes, allow the serious hunter to answer three (3) questions before firing at a target.
1. Is it safe? By knowing and applying all the safety rules
2. Is it possible? By having the skill to hit the target in the correct place for a clean, humane kill
3. Is it legal? By applying the ethics, attitudes and values of sportsmanship, the law, and everyday practice of right and wrongWhen the answers to the above three questions are yes, then and only then may a shot be fired.
An understanding of ethical hunting codes, wildlife management and game laws, is as important to the hunter as is firearms safety. The code is called an ethic and should be practiced at all times when hunting.
There was a procedure which had to be followed before a person could become a CWM subscriber. [5] There was also a Code of Conduct which governed CWM membership. [6] Rules 6 and 23 of the Code of Conduct respectively provided as follows:
[5] Annexure HG04 to Gill affidavit at CB p. 480.
[6] Annexure HG05 to Gill affidavit at CB p. 481.
Code of Conduct
…
6. A nominated Trip Leader will supervise all field operations. Trip Leaders will be appointed by the State Operations Group and act on their authority whilst conducting a field operation. All team members will be under the direction of the nominated Trip Leader for the period of the activity and subject to all orders and directions made by the Trip Leader.
…
23. Members are not to make direct contact with landholders, government departments, members of the public, politicians or any other person who may deem that CWM member to be representative of the organization as a whole. All contact with landholders and other parties is to be made, in the first instance, by a member of the State Operations Group or any other person appointed as their representative from time to time. Disciplinary action will result from any breach of this requirement.
…
Subscriber benefits were listed as follows: [7]
[7] Annexure HG06 to Gill affidavit at CB p. 483.
Subscriber benefits
•Enjoy mateship and camaraderie with other responsible conservation hunters who share a love for the outdoors and our native wildlife
•Each month there are various feral control projects within the State to participate in.
•Regular ongoing training includes bushcraft, first aid, conservation and animal welfare, map reading and use, ethical hunting practices, GPS use, marksmanship, 4WD use and remote communications etc.
•Use your skills and time to help protect our native wildlife and the environment.
•Travel to and enjoy some magnificent areas of Queensland.
•Experience working with government and regional natural resource management bodies.
•Participate in some projects that are family oriented
•Become part of an organisation that is making a difference and is part of the solution.
One CWM planned project was called the Amiens project, Amiens being a region on the Stanthorpe Plateau in the New England Tablelands. The project team consisting of Sam Mangano and Ted Wassenberg sent out a flyer to CWM subscribers in or about March 2022. The flyer provided as follows: [8]
[8] Annexure HG07 to Gill affidavit at CB p. 484 – 485.
Context
The project is comprised of several adjoining private properties in the Amiens region of the Stanthorpe plateau in the New England tablelands. This region is approximately two and a half to three hours’ drive South-West of Brisbane.
The nucleus of the project is formed by three properties that are all Nature Refuges (Egernia, Tumbledown and Dragonweyr) and are subject to specific requirements set down by Nature Refuges Australia.
CWM has enjoyed an excellent relationship with all local stakeholders (including police, Parks, and local property owners) for the last twelve months and I, as Project Leader, am accountable for maintaining our good standing.
Target Species
The properties have demonstrated evidence of Pigs, Dogs, Cats, and Deer (Fallow), Goats, Rabbits, and Foxes. NOTE. Dogs are Not to be taken on Egernia; however, they are to be shot on sight on any other property we have access to.
Recommended Firearms/Calibres
You will not require anything larger than a .308. I would personally suggest either a .243-.270, a .223, a 12 gauge and a rimfire with subsonic projectiles. We will have the opportunity to do some spotlighting so bring a spotlight or rifle-mounted torch. A Scotch Predator call or fox whistle will also be useful. We will also have access to CWM’s Thermal Vision equipment.
Terrain
The terrain is generally easily walked with access to drop-off points via vehicle (4WD is recommended). There are some steep and scrubby features so be prepared with a good day pack and gaiters.
You will need a 5W radio with earpiece, a GPS (although carry a compass), water, first-aid kit, plastic bags, rubber gloves and antiseptic gel (for meat harvesting) and a good knife.
Facilities
The property has available 240V power, hot and cold water and space for food preparation, a shower, and composting toilets. There is plenty of flat ground around the shed/cottage for setting up tents or swags. There is no refrigeration available so bring a car fridge or esky. Feel free to bring your personal food or drink luxuries although the 8-hour rule will be strictly applied for alcohol consumption.
Operations
We will operate three teams of three. The Team Leader will conduct a briefing on the first morning (which may be attended by Police and Parks staff). This briefing will cover Code of Conduct and operational guidelines such as team allocation, areas of activity, radio channel and general conduct. Please have your signed waiver form, licences, SSAA and CWM Membership Cards available.
No camouflage clothing please and blaze orange is required. The teams will be provided with maps and discrete areas of operation. Please carry vehicle ID and ALWAYS make contact with the property owner to introduce yourselves before commencing any activity.
The Team Leader’s instructions are to be respected and followed by all participants.
A final e-mail will be sent to you about one week out from the trip with an update on local weather and any travelling arrangements. We will generally meet at McDonalds at Stanthorpe at about 8.00am to travel in convoy to Dragonweyr. The project briefing will be delivered at 10.00am on the first day.
In the meantime, should you have any questions, do not hesitate to contact us
Cheers
Amiens Project Team
Sam Mangano
Ted Wassenberg
It was of note that for the Amiens project the plan was to have 3 teams of shooters with 3 members in each team. The 3 teams were to operate in discreet areas after they had been dropped off at designated points by a four-wheel drive vehicle. The team members were to walk around the property for the purpose of the shoot, and they were required to wear blaze orange attire for identification purposes.
Attached to the flyer was a release and waiver [9] as well as landowner permission forms. [10] Of note was the landowner permission form for the property named “Egernia” dated 10 November 2012, which provided as a limitation on hunting activities the following:
[9] CB p. 488 – 489.
[10] CB p. 490 – 494.
“Walk anywhere but don’t move rocks around (stomp on them) or harm the snakes.”
Though planned for May 2022, the Amiens project was first conducted from 11 – 13 November 2022. It was an ongoing project for feral animal eradication. Photographs of parts of the Amiens project area record different landscape profiles of diverse and rugged terrain. [11]
[11] Annexure HG10 to Gill affidavit at CB p. 499 – 502.
The Applicant’s Request to Have the Dog Accompany Him on the Amiens Project
The evidence before the Court was that the applicant had brought a dog along to a shoot on two previous Project occasions dating back to 2015 - 2016 – namely on the “Wallaby Lane” and “Astrebla” Projects – although he had not sought prior permission from the association for him to be accompanied by a dog on either such occasion. In relation to the Wallaby Lane Project, the Court accepts the evidence of that Project’s Team leader, namely one Mr Moore, that when he first saw the applicant at the property, he told the applicant that he couldn’t take his dog with him on the shoot, only to then succumb once the landowner gave permission to the applicant to do so.
On or about 26 May 2022, the applicant filled out a form registering his interest to participate in the Amiens Project. [12] Though there was space on the form for the applicant to have indicated that he wished to bring the dog along with him on the project, the applicant failed to do so. The declaration at the bottom of the form was as follows:
[12] CB p. 175 – 178.
“Declaration
I declare that I have read, understand and agree to abide by the CWM Code of Conduct and the directions of the Trip Leader. I also understand that this is an application only.”
On 3 November 2022, the applicant sent an email addressed to “[email protected]” as follows: [13]
[13] CB p. 509 – 510.
I have an Psychiatric Assistance Dog - Annie. She is a 4yo Boxer and is not a hunting dog or a pet. She accompanies me everywhere. She accompanied to the Wallaby Lane Project earlier this year. If she needs a reference then I think the owner of this property would provide one.
Section 9(2) of the Disability Discrimination Act 1992 defines an assistance animal as: "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 person 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.
Psychiatric Assistance Animals legal status is proof that they are not a domesticated pet. This is supported by the Australian Human Rights Commission which states that "Assistance animals are not pets but rather are highly trained disability support services that enable a person with disability to safely participate in personal and public life activities."
I have attached a copy of the Rights of mindDogs and their Handlers.
I would be very disappointed if CWM was to decide that it was inappropriate for Annie to accompany me on their projects.
Regards
Jim Klein
On 5 November 2022, the applicant received an email from one Sam Mangano concerning the applicant’s request that the dog accompany him on the Amiens Project. [14]
[14] Annexure JK-11 to the applicant’s affidavit filed on 23 July 2024.
There was subsequent to and fro correspondence between the applicant and Mr Mangano which resulted in the applicant’s request for the dog to accompany him on projects being referred on to the association’s committee. [15]
[15] CB p. 508 – 509.
The committee met over the weekend of 10 – 11 December 2022.
At that committee meeting, it was relevantly resolved “That no animals, pets or assistance dogs are permitted to attend SSAA CWM Qld Projects on private properties with handlers or owners.” [16]
[16] CB p. 524.
On 15 December 2022, the applicant was advised by letter that “After much consideration, it is not in the best interest for an assistance dog to attend a project for feral animal control, nor is it appropriate for any assistance dog/animal to be left unattended on a private property whilst a SSAA CWM Qld Project is being conducted.” [17]
[17] CB p. 512.
On 19 December 2022, the applicant lodged a complaint with the Australian Human Rights Commission. [18] In that complaint, the applicant acknowledged that he had not been discriminated against because of his disability. [19] He ticked a “No” box in answer to that very question. Rather, he framed his complaint as being related to the refusal by the association to provide him with the contact details of Project property owners to enable him to ask for their permission for him to bring the dog onto their properties during a Project shoot. He no doubt had the acquiescence to that proposal by the owner of the Wallaby Lane property in front of mind when doing so. The complaint was in the following terms: [20]
Please state the other reason(s):
I have an assistance dog that I wish to take on Conservation and Wildlife Management Projects. Some of the projects are on private land and the Conservation and Wildlife Management Group will not allow me to contact the property owner/s to ask for permission to bring my dog onto their property. The dog is purely to support my mental health and is not involved in the hunting activities. I have taken her on several hunting trips organised through the Farmer Assist program without causing any problems. It is also a program that runs under the SSAA banner.
[18] Annexure HG12 to the affidavit of Gill.
[19] CB p. 506.
[20] CB p. 507.
Though the “Farmer Assist” Program was designed to facilitate the participation in shoots by members of the respondent, it was an unsupervised program, the details of which were negotiated as between the landowners and those members who were invited to attend at the property without CWM involvement.
The Evidence of Mr Green
During the committee meeting held on 10 – 11 December 2022, the committee was briefed by Mr Green, the association’s safety officer, concerning the safety aspects of the applicant being accompanied by the dog on a shoot. Mr Green had been invited by the association’s president to attend the committee meeting for that purpose.
Mr Green was a very experienced firearms expert. The Court unreservedly accepted all of Mr Green’s evidence as set out in his affidavit filed on 23 July 2024. When questioned during cross-examination about the possibility of the dog being confined within the applicant’s vehicle during a shoot, with the applicant only shooting from within his vehicle, Mr Green’s evidence was as follows: [21]
[21] See Transcript of 18 February 2025 at p. 119.15 – 121.21.
And if I can look at the assumption in 41(b)?---Yes.
You assumed that the dog would at all times be tethered to the applicant?---Yes, that’s truthful, yes.
Now, do you mean that the dog would in some way be tied to the applicant by some form of cord or something like that?---Well, a lead of some sort, a tethered thing, device, yes.
Yes, yes. So they would be connected by this device?---Yes, yes.
Okay. And just excuse me. And your assumption also involved an assumption that Mr Klein would be engaged in hunting outside the vehicle with Annie tethered to him?---Well, you wouldn’t let the dog run free. So it would have to - - -
You - - -?--- - - - be tethered in some way, or some sort of a restraint on the dog.
Perhaps I needed to put that in two parts?---Okay. Sorry.
Your assumption included an assumption that Mr Klein would be hunting outside the vehicle?---Yes.
And that while he was hunting outside the vehicle, the animal would be tethered to him?---Yes.
All right. Now, if Annie remained in the vehicle at any time while Mr Klein was hunting, that assumption would fade away?---Well, if the – if the dog was in a vehicle, well, it wouldn’t be tethered to him, no.
That’s right. And if Mr Klein was within the vehicle while he was taking any shots, that would remove that assumption as well, wouldn’t it?---No, on those sort of projects, you don’t normally hunt from a vehicle. It’s very rugged country.
What sort of projects are you talking about?---Well, the – the Stanthorpe area.
Are you talking about the Amiens project?---Yes. The whole general Stanthorpe area is gorges and rocks.
But not all CWM projects have the same sort of topography as the - - -?---No.
- - - topography on the Amiens project, do they?---Open plain country, you can, yes, stop the vehicle, get out, fire. Yes, there’s a set of protocols that you follow.
HIS HONOUR: Does it always require a shooter to get out of a vehicle?---Well, if you were hunting in a specialised hunting vehicle, the vehicle must come to a stop because it’s an unsafe platform if you’re shooting on a moving vehicle, and an accurate shot should be taken.
Outside?---Yes.
MR REED: Or from within the vehicle, provided it’s stationary?---If the vehicle – if the vehicle is completely stationary and it is a specialised vehicle that protects the people. The whole thing is about zero harm. Don’t fall out of the vehicle. Don’t harm yourself. If the vehicle is specifically set up for hunting, it is all right to shoot out of if the vehicle is stationary.
Yes. That makes a lot of sense, doesn’t it?---Yes, well, that’s what professional shooters do.
Yes, and of course, if the dog remained in the vehicle at all times, there would be very little likelihood of the dog taking flight. Would you agree with that?---That’s right, but there’s very little likelihood that you would be hunting if you’re in the vehicle at all times.
I’m talking about the dog.
HIS HONOUR: Sorry, what did you say?---I said, there would not – if the – if you were in the vehicle hunting at all times in – in that particular area, you wouldn’t be hunting much because you need to get out of the car, because it’s such heavy, rocky country, gorge country.
MR REED: Well, again, you’re thinking of the Amiens project only?---Well, the – because that’s the particular one that I looked at at that particular time - - -
That’s right?--- - - - and because I hunt that area all the time, because I own a property there – own part of that property.
Did you understand that Mr Klein’s request was only in relation to Amiens?---At that – at that particular time, yes.
Yes?---Yes, I thought that was the only application at the time.
You didn’t look at the prospects of other properties which - - -?---Well - - -
- - - might have a different topography?---Well, that would be a different set of scenarios, such as Farmer Assist.
Which is a different scenario?---That’s right.
So you have to provide, perhaps, a different advice or look at some different factors if a request was made in relation to properties other than the Amiens property – or the Amiens property, I should say?---Well, with CWM, you’re talking about?
Yes?---No, there’s a set of things that – we’ve got a general rule about any domestic animals going on those projects.
Where is that rule?---Well, it adds – well, it says you cannot get in contact there, but it comes under our insurance guidelines and everything else that, no, the animals are not covered, and anything where you take a domestic animal, no matter what it is, into a situation where it’s dynamic, you always add on a certain element of risk.
To the extent that Mr Green identified the presence of a dog during a shoot constituting an added dynamic which elevated the risk of a participant suffering serious harm, the Court accepts such evidence as being logical and reasonable. It is trite that any elevation of risk involving the use of firearms is extremely dangerous. That is particularly so in circumstances where the terrain was rough, and where the applicant’s motor vehicle had not been specially modified to allow safe shooting from it.
The Law
It was accepted by the respondent that the applicant suffered from a disability within the meaning of s. 4 of the Disability Discrimination Act 1992 (Cth) (the DDA).
It was common ground that the dog was an assistance animal as provided for under s. 9 of the DDA.
Sections 5, 8, 9 and 27(2)(c) and (e) of the DDA relevantly provided as follows:
Section 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.
…
Section 8 - Discrimination in relation to carers, assistants, assistance animals and disability aids
(1) This Act applies in relation to having a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability.
Example: For the purposes of section 5 (direct discrimination), circumstances are not materially different because of the fact that a person with a disability requires adjustments for the person’s carer, assistant, assistance animal or disability aid (see subsection 5(3)).
(2) For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person with a disability who has a carer, assistant, assistance animal or disability aid as if:
(a)each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has the carer, assistant, animal or aid; and
(b)each other reference to a disability were a reference to the carer, assistant, animal or aid.
(3) This section does not apply to section 48 (infectious diseases) or section 54A (exemptions in relation to assistance animals).
Note: The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.
…
Section 9 - Carer, assistant, assistance animal and disability aid definitions
Meanings of carer or assistant , assistance animal and disability aid
(1) For the purposes of this Act, a carer or assistant , in relation to a person with a disability, is one of the following who provides assistance or services to the person because of the disability:
(a) a carer;
(b) an assistant;
(c) an interpreter;
(d) a reader.
(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 person 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
a carer or assistant
(a) is presently accompanied by the carer or assistant; or
(b) was previously accompanied by the carer or assistant; or
(c) may be accompanied by the carer or assistant in the future; or
(d) is imputed to be accompanied by the carer or assistant.
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.
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Section 27 – Clubs and Incorporated Associations
…
(2) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member's disability:
…
(c) by denying the member access, or limiting the member's access to any benefit provided by the club or association; or
…
(e) by subjecting the member to any other detriment
Counsel for the applicant relied upon the case of Mulligan v Virgin Airlines Pty Ltd (2015) 234 FCR 207, and to the joint judgment of Flick, Reeves and Griffiths JJ at [145] – [151] which provided as follows:
145. In applying s 5, it is also necessary to take account of s 5(3). The effect of that provision is that, for the purposes of s 5(1), circumstances are not “materially different” because of the fact that, because of the disability, the aggrieved person requires “adjustments”.
145. The term “adjustment” is not directly defined in the DDA. As Mortimer J concluded in Watts at [22], the term is therefore to be given its ordinary meaning, which is “an alteration or modification”. The concept of “reasonable adjustment” is defined in s 4(1) (see [139(c)] above).
147. Viewed in isolation from s 8, Ms Eastman in oral submissions maintained that it would be difficult to see how s 5(1) – and, to a lesser extent, s 5(2) could be engaged. But, Ms Eastman submitted that s 8 “in effect, gives you an add-on or an extra ground that you can use to then work in with the less favourable treatment in section 5”. We accept that submission and see no point in considering the possible application of s 5 in isolation from s 8 in the circumstances of this particular case.
148. Having regard to both our finding that Willow was an “assistance animal” within s 9(2)(c) and also the meaning and effect of ss 5, 8 and 9, together with s 24, we consider that the following analysis applies:
(a) the references in s 5(1) and (2) and s 24 to “disability” are to be read as though they also included a reference to Willow as Mr Mulligan’s assistance animal such that, in effect, Willow is to be regarded as part of Mr Mulligan’s disability;
(b) in determining whether there was direct discrimination under s 5(2), a comparison is to be drawn between Virgin Australia’s treatment of Mr Mulligan with his disability (i.e. his vision impairment) and which disability includes Willow as his assistance animal, and how the airline would treat the comparator which, in this case, is a person who is without a disability and therefore without a dog and wants to travel with the airline; and
(c) for the purposes of s 5(2), the circumstances are not materially different merely because Mr Mulligan requires adjustments for Willow to accompany him in the cabin, including the requirements specified in reg 256A(2).
149. We reject the submission that the proper comparator in the circumstances here is a person without a disability who wishes to bring a dog with them in the cabin, with the consequence that there was no direct discrimination towards Mr Mulligan because the comparator would be subjected to the same policies as the airline applied to Mr Mulligan. This submission fails to take into account the fact that, under the 2009 amendments, Willow is to be regarded as part of Mr Mulligan’s disability. It also fails to give effect to s 5(3), which provides that, for the purposes of s 5, circumstances are not materially different because of the fact that, because of Mr Mulligan’s disability (which includes his need for Willow to accompany him), Mr Mulligan requires adjustments so that Willow can accompany him in the cabin.
150.Accordingly, and in the absence of any relevant exception, exemption, or other defence applying to Virgin Australia’s conduct (see further below), we find that the airline’s conduct during the period from at least December 2010 to at least September 2012 in refusing permission for Willow to travel in the cabin with Mr Mulligan constituted direct discrimination within the meaning of s 5 because Virgin Australia treated Mr Mulligan less favourably than it would treat the comparator. Such discrimination is unlawful under s 24 of the DDA.
151. In its amended defence below, Virgin Australia argued that it would amount to “unjustifiable hardship” if it were required to carry Willow in the cabin without receiving evidence that she had been “trained by an accredited organisation in accordance with the CASA regulations and the Respondent’s policy”. It also claimed “unjustifiable hardship” would arise if it had to carry Willow in the cabin because the safety of passengers (including Mr Mulligan) and crew would be imperilled. We do not consider that that defence is established on the evidence before us. First, as we have emphasised above, although the airline is entitled to request evidence that Willow is an assistance animal and that she is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place, that training need not be by an accredited organisation. If Virgin Australia was not satisfied that Willow was trained in the sense referred to in s 9(2)(c) it could use its powers to request evidence under s 54A(5) of the DDA. Secondly, Virgin Australia adduced no evidence to support its contention that the safety of passengers (including Mr Mulligan) and crew would be imperilled if Willow accompanied him in the cabin.
It was submitted on behalf of the applicant that the applicant had clearly been discriminated against. It was argued that the facts in Mulligan were analogous, and that “The comparator really is as to a person who doesn’t have a disability and therefore does not have an assistance dog.” [22]
[22] See Transcript of 20 February 2025 at p. 161.44 – .45.
Reliance was placed by the applicant upon Mulligan for the proposition that in the present case, the comparator could not be a CWM member without a disability who wanted to take a dog with them on a Project shoot. In that regard, the Court noted the Full Court’s finding in Mulligan at [143] of the reasons that it was at times difficult, based on the facts of each case, to identify a comparator. The Full Court found as follows:
[143]Section 5(1) requires a comparison to be made between the way in which the discriminator treats (or proposes to treat) a person with a disability and the way in which a person “without the disability” would be treated in circumstances that are not materially different. Choosing an appropriate “comparator” for the purposes of applying s. 5 can be difficult. Some guidance is provided by the High Court’s decision in Purvis (noting, however, that the current form of s. 5 differs from that which was considered in that litigation).
The Court does not accept the applicant’s submissions for several reasons. First, the Court accepts the evidence of Ms Gill, the president of the association, on the question of why the decision was made, at [58] – [69] of her affidavit as follows: [23]
[23] Affidavit of Gill filed on 23 July 2024.
58. At the State Executive Management Committee Meeting, a round table discussion was had about taking an assistance dog on a feral animal control hunt, including nature reserves and national parks, as mentioned in Mr. Kleins email. As far as I am aware, no member of the Association has previously been permitted to take any dog on any CWM project.
59. The Committee Members at the meeting expressed concerns to Robert Green, who gave explanations to queries raised. The queries raised included safety issues that could arise from the attendance at a hunt with a domestic animal such as:
(a) slip, trip and fall concerns.
(b) how was the dog going to be with the Applicant when hunting at night with firearms.
(c) what would happen if the dog got frightened and bit a team member.
(d) how does one take an assistant dog on a feral animal control with other team members when manoeuvring around with firearms.
60. It was discussed what would happen if as a result of manoeuvring around with firearms and a dog the high probability of a negligent or accidental discharge of a firearm such as:
(a) what happens if the dog gets shot or killed?
(b) concerns for the dog's safety if left at the camp by itself; what if it broke loose and became lost, it could be shot by other property owners or hunters or pick up poison bait.
61. Robert Green advised the State Executive Management Committee against allowing the Applicant's request to bring his assistance dog on CWM projects due to the safety risks that such an accommodation would present.
62. After the round table discussions, the decision was made that it was not in the best interest for any team member of the CWM Qld to have a dog or any other animal attend a CWM project due to safety concerns, as the Association considers the that the safety of all members is paramount.
63. As Mr Green was the State Executive Management Committee Safety expert, I deferred to Mr Green's expertise and voted to pass the motion as recorded in the minutes of the State Executive Management Committee Meeting held on 10-11 December 2022 (the 'Minutes'). Annexed hereto and marked "HG-16" is a true copy of the Minutes.
64. The minutes are created by the Secretary of the Respondent and usually only record the final decision made, rather than a complete record of all that is said during discussing matters.
65. I recall that the only discussions about whether the Applicant could bring a domestic dog on CWM projects were about safety and the issues that could arise if a domestic dog were allowed to attend CWM projects. There were never any discussions about the Applicant's disability or anything like that.
66. To provide clarity on the Respondent's policy regarding animals accompanying members on CWM projects, it was resolved at the State Executive Management Committee Meeting that "no animals, pets, or assistance dogs are permitted to attend SSAA CWM QLD Projects on private properties with handlers or owners". I was also tasked with issuing a response to the Applicant.
67. This resolution outlined in the preceding paragraph applies to all members of the Respondent, not just the Applicant, because the State Executive Management Committee considered this to be a safety issue for the reasons outlined above. Therefore, on 15 December 2022, I issued a response to the Applicant's request to bring his assistance dog on CWM projects on behalf of the Respondent, and it forms part of annexure "HG-12". This response issued to the Applicant dated 15 December 2022 outlined that no dog could go on the CWM projects, but the applicant was allowed to attend; this is outlined in the letter where I state that "nor can they attend projects on private with handlers or owners". The letter also outlines that there is no ability for the Applicant to contact the landowners, as no member is allowed to contact landowners in accordance with the CWM Code of Conduct.
68. The Applicant was treated in the same manner as any other member of the Respondent under the terms of the CWM Code of Conduct, in that no member is allowed to bring any animal onto a range or a hunt because it creates potential safety issues when using firearms.
Second, the Court finds that it was not discriminatory conduct toward the applicant for the association to prevent all its members from taking animals with them on a shoot based upon, and relevantly because of, safety concerns. The fact of the applicant’s disability, even accepting that the existence of an assistance animal merged into the applicant’s disability, played no part in the making of the decision.
The Court respectfully adopts what was held by Gummow, Hayne and Haydon JJ in Purvis v New South Wales (2003) 217 CLR 92 at [236] where it was said:
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".
The Court further adopts what was held in Sklavos v Australasian College of Dermatologists [2017] 256 FCR 247 at [27] and [41] per Bromberg, Griffiths and Bromwich JJ where it was said:
27. Turning then to s 5(1), the direct nexus between the discriminator’s conduct and the disability is unambiguously found in the phrase “because of the disability, the discriminator treats”. This is what Gummow, Hayne and Heydon JJ in Purvis described as the “causation question” (at [194]). In relation to the causation element in s 5(1) and in particular the phrase “because of”, Gummow, Hayne and Heydon JJ relevantly said this at [236] (emphasis in original):
… 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? …
…
41. There is no doubt that the effect of the discriminator’s conduct may bear upon why the aggrieved person was treated as he or she was. In addressing the causation inquiry in s 5(1) what was said (in full) at [236] by the majority in Purvis was this (emphasis in original other than underlining):
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”.
Third, it could not be said that action taken to protect other shooters from their possible death at the hands of the applicant was action placing the applicant in a less favourable position than the other participating shooters. Section 5(1) of the DDA only applied if, by being allowed to take the dog on a shoot with him, the applicant could have been considered as being in a favourable position in the first place. The Court finds that the applicant would not have been in a favourable position if he had been allowed by the association to take the dog on a shoot with him. It could not be said that allowing the applicant to expose himself and other shooters to the risk of harm was favourable in the sense that it was either to his advantage, or to the advantage of anyone else. The Court finds that the term “less favourably” does not always have application. Whether it does depends upon the facts of each case. The Court further finds that the term does not apply to the circumstances of this matter.
Fourth, and in the alternative, safety considerations having been considered as paramount by the committee, the refusal by the association to allow the applicant to take the dog with him on a shoot was, in all the circumstances, placing the applicant in a less precarious, better, or more favourable position than if he had been allowed to take the dog with him. The added dynamic of a dog being introduced into a live firing environment on a feral animal shoot, particularly when it was intended that the dog would remain inside the applicant’s unmodified vehicle when the applicant was shooting from it, would have clearly increased the risk of distraction on the part of the applicant increasing the risk of serious harm or death being suffered not only by other shooters, but conceivably by the applicant as well. There is a myriad of circumstances in which one might imagine how a momentary distraction to the applicant’s concentration caused by actions on the part of the dog could result in a fatality. The evidence of Mr Green on point was telling. The decision of the association was one designed to protect people such as the applicant from themselves - from their own recklessness.
As to the proper construction of ss. 5, 8, 9 and 27 of the DDA, Parliament could not have intended that a decision of the association designed to protect human life would be found as unlawful on the ground of disability discrimination. The duty of the Court is to give effect to the will of Parliament. As was held by Gleeson CJ in Wilson v Anderson & Ors (2002) 213 CLR 401 at [8] – [9]:
8. In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of Parliament. Courts commonly refer to the "intention of the legislature". This has been described as a "very slippery phrase", but it reflects the constitutional relationship between the legislature and the judiciary. Parliament itself uses the word "intention", in the Acts Interpretation Act 1901 (Cth), as a focal point for reference in construing its enactments. Certain words and phrases are said to have a certain meaning unless a contrary intention is manifested in a particular Act. Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will. …
9. This is not to say that the exercise is formal and literalistic. On the contrary, common law and statutory principles of construction frequently demand consideration of background, purpose and object, surrounding circumstances, and other matters which may throw light on the meaning of unclear language. And there are presumptions which may be called in aid to resolve uncertainty.
Further, the association’s decision negated the possibility of the applicant facing criminal charges in the event of a mishap causally related to the presence of the dog on a shoot. It further protected the association and its members from civil claims, unprotected as they likely were, from claims arising out of misadventure causally related to the presence of the dog on a shoot, especially where the applicant’s stated intention was to shoot from his unmodified 4WD vehicle. In that regard, under the heading “General Exclusions” of the association’s insurance policy, [24] it was provided as follows:
“Members are not covered, should any engagement be an unlawful activity on any said property including: Trespassing, shooting from a road, public place, gazetted road, within a vehicle or moving vehicle or accident caused from a loaded firearm in a vehicle.”
(underlining inserted)
[24] Annexure HG15 to the Gill affidavit at CB p. 521.
The Court respectfully adopts the judgment of the Full Court in The State of Queensland (Queensland Health) v Che Forest [2008] 168 FCR 532 at [114] – [116] per Black CJ, Spender and Emmett JJ where their Honours found as follows:
114. Accordingly, before there can be a finding of unlawful conduct under s 23 or s 24, by reason of one persons discriminating against another within ss 7, 8 or 9, it is also necessary to make a finding as to the ground on which the discrimination occurs. Thus, for example, even if there is discrimination within s 9, because a discriminator treats an aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by a relevant animal, that discrimination will not be unlawful unless it is established that the discrimination is on the ground of the aggrieved person’s disability. That is of critical significance in the present case.
115. While it may be that Queensland Health discriminated against Mr Forest within the meaning of section 9(1), because it treated him less favourably because of the fact that he was accompanied by his dogs, it did not do so on the ground of his psychiatric disability. The ground on which Queensland Health discriminated against Mr Forest, within the meaning of s 9(1), is that his dogs were ill-behaved and ill-controlled and there was inadequate evidence of proper assistance dog training. Thus, Queensland Health did not discriminate against Mr Forest on the ground of his disability, even though it may have discriminated against Mr Forest within s 9 of the Act. It follows that there was no unlawful conduct on the part of Queensland Health.
116. The primary judge erred in proceeding on the footing that, if there is a finding of discrimination by reason of the application of s 9 to the facts of the case, there is no requirement for a further finding that the discrimination is on the ground of a person’s disability before concluding that the relevant conduct was unlawful as being contrary to one or more of the provisions of s 23 of the Act. That erroneous approach led to the difficulties of construction that her Honour found with s 9.
Conclusion
The Court finds that the respondent, in making its decision as set out in its letter to the applicant of 15 December 2022, did not engage in unlawful discrimination against the applicant.
In the light of the Court’s findings the Court is not required to address the question of compensation or damages.
The applicant’s claim is accordingly dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 25 February 2025
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