135 Other than a written submission by the applicant that the respondent had breached s 23, no submission of substance was made by the applicant in relation to s 23. Mr Murdoch for the respondent at the hearing submitted that the case does not concern access to premises, but rather access to services (TS p 305 ll 23-25). The reason for this submission was stated to be that if there were to be any finding of discrimination by me, it would be in the area of goods or services, primarily because on each of the occasions that have given rise to complaint the applicant was doing more than simply seeking to access the premises. In particular, Mr Murdoch submitted that the applicant was seeking to access the respondent's health services at Smithfield Community Health Centre; further when the applicant was at Cairns Base Hospital on 16 November 2004 he was attempting to obtain a report from someone as to the behaviour of the dog and was therefore attempting to obtain a service of a type from the respondent.
136 Section 23 DD Act is drafted in broad terms. Subparagraphs (1)(a) to (c) relate specifically to access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use, and subpara (c) is more specific again in that it applies to discrimination in relation to the means of access to such premises. Key aspects of these paragraphs are that the premises must be such that the public or a section of the public is entitled to or allowed to enter or use the premises (whether for payment or not); and that the discrimination is in relation to the access to the premises.
137 Subparagraphs (1)(d) to (e) relate specifically to the use of any facilities in such premises or the terms or conditions on which the alleged discriminator is prepared to allow the other person the use of such facilities. Subparagraph (1)(f) relates to circumstances where the alleged discriminator requires the other person to leave such premises or cease to use such facilities.
138 Section 23 can be contrasted with s 24, considered later in this judgment, which concerns discrimination in relation to the provision of goods or services or the availability of facilities.
139 Section 23 has been considered in a number of cases previously before this Court. In Grovenor [2000] FCA 1574, the applicant, who was visually impaired and accompanied by a guide dog, visited a furniture store in Young in New South Wales. On entering the store the applicant was told by the respondent, the owner of the store, to take the dog out. The respondent refused to accept the applicant's claim that she was visually impaired, and ordered her out of the store saying he did not care if the dog was a guide dog. HREOC heard the complaint and found that the respondent's conduct in that case was unlawful by reason of s 23(1)(a) DD Act in that the respondent had refused to allow the applicant access to the premises. The discrimination in that case was that the respondent had acted in breach of s 9(1)(d), namely that the respondent had treated the applicant less favourably because of the fact that she was accompanied by a guide dog. On hearing an application to enforce the payment of $1,000 compensation ordered by HREOC, Stone J found that the applicant's evidence in the proceedings was unchallenged, that the conduct amounted to discrimination within the meaning of s 9 DD Act and was unlawful conduct within the meaning of s 23(1)(a) of the Act. Accordingly, her Honour ordered the respondent to pay the applicant damages in the amount of $1,000.
140 Section 23(1)(c) DD Act - that is, the means of access to the premises - was in issue in Cooper 93 FCR 481 where the Coffs Harbour City Council had allowed redevelopment of a cinema complex without requiring that wheelchair access be incorporated as a part of the redevelopment.
141 Similarly in Sluggett 123 FCR 561 the nature of the complaint of the applicant, who suffered a disability as a result of childhood polio, in relation to long walks, many stairs, heavy doors, difficult stairways, open walk areas, crowded stairs, the distances between lifts, and the sometimes limited access to lifts at Flinders University, was such that the conduct was alleged to be unlawful in relation to the means of access to the premises pursuant to s 23(1)(c).
142 As I found earlier in this judgment, the respondent had a policy that persons entering its premises not do so accompanied by an animal unless the animal was a guide dog or a hearing dog or unless the animal had been assessed by the respondent as having training and hygiene standards acceptable to the respondent. I have found that the respondent discriminated against the applicant within the meaning of s 6 and s 9(1)(f). Further, as was specifically acknowledged by the respondent in its written submissions (written submissions of the respondent filed 5 September 2006 para 5.11), the respondent refused to allow the applicant with his dogs access to its premises at Cairns Base Hospital on 16 November 2004, or at Smithfield Community Health Centre on 19 November 2004, 24 February 2005, 28 February 2005 and 3 March 2005.
143 On the facts of this case, the respondent has discriminated against the applicant on the ground of his disability by refusing to allow him access to its premises, which conduct is unlawful pursuant to s 23(1)(a). As the respondent noted in written submissions, once management of Cairns Base Hospital had considered the matter after 16 November 2004 it refused to allow the applicant access because it considered that his dogs were ill-behaved, ill-controlled and that there was inadequate evidence of proper assistance dog training (written submissions of the respondent filed 5 September 2006 para 5.11).
144 I have also considered whether s 23(1)(b) is relevant in light of the written communications between the applicant and Cairns Base Hospital and Smithfield Community Health Centre, where the hospital and the centre informed the applicant of the respondent's policy of not allowing animals (other than guide dogs) into the hospital without a prior assessment by the respondent. Although the respondent ultimately refused to allow the applicant access to its premises with his dogs so as to enliven s 23(1)(a), in my view s 23(1)(b) is also relevant because in discriminating against the applicant, the respondent had imposed terms or conditions upon which it was prepared to allow the applicant access to its premises. These facts may be compared with, and in my view are analogous to, Haar 184 ALR 83 where a person with a guide dog at a McDonald's restaurant was told that the next time she visited with the dog she should sit outside the "party" area of the restaurant as that area was frequented by children. McInnis FM considered that s 23(1)(b) applied, as the restaurant, in discriminating against the applicant in that case, had imposed conditions on which it was prepared to allow the applicant access to its premises in the company of her guide dog.
145 In relation to the application of s 23(1)(a) and (b) however, I note the oral submission of Mr Murdoch that the case is actually "about access to services" and not about access to premises. Following consideration of this issue however, I have formed the view that the issue of access to premises, and accordingly s 23(1)(a) and (b), is relevant. In this regard, I make the following observations.
146 First, the events which occurred at the premises of the respondent fall within the ordinary meaning of refusal of "access to premises". The applicant attended the premises of the respondent, and on the relevant occasions was requested to leave. At Cairns Base Hospital on 16 November 2004 he was escorted from the premises by security guards, and on three occasions at Smithfield Community Health Centre security guards were in place to ensure that the applicant did not enter the premises with his dogs. While the applicant may have attended the premises of the respondent, particularly Smithfield Community Health Centre, with a view to obtaining services, it is clear that the applicant was refused access to the premises because of the presence of his dog. He had received communications from the respondent indicating that it was prepared to allow him access to the premises with his dogs, but on the respondent's terms. To ignore the natural application of s 23(1)(a) and (b) to the facts of this case would be to do an injustice to the applicant.
147 Second, it is clear that the premises of the respondent in question were premises "that the public or a section of the public is entitled or allowed to enter or use" as contemplated by s 23(1)(a) and (b). The premises in question were public reception areas of Cairns Base Hospital and the Smithfield Community Health Centre, which were public areas of medical facilities provided to the public.
148 Third, I note the decision of Stone J in Grovenor [2000] FCA 1574 and her Honour's application of s 23(1)(a) in similar facts where denial of entry to a furniture shop by the proprietor was held to constitute a breach of s 23(1)(a), and consider the facts of that case sufficiently analogous to this case to take the view that s 23(1)(a) is also applicable to the facts before me. I also note the decision of McInnis FM in Haar 184 ALR 83, and consider the reasoning of his Honour in that case correct.
149 Fourth, in this case the applicant has claimed the conduct of the respondent was unlawful pursuant to either or both sections, and I can see no reason why the facts of a case could not give rise to unlawful conduct for the purposes of both s 23 and s 24. It would limit the operation of s 23(1)(a) and (b) beyond its natural meaning if, as submitted by the respondent, it were confined only to access to premises where the disabled person was not also seeking provision of goods or services.
150 Finally, I note the very limited defence (or ground of exculpation as so termed by Madgwick J in Cooper 93 FCR 481 and Drummond J in Sluggett 123 FCR 561) in s 23(2) available to a respondent who has breached s 23(1). It is curious that s 23(2) is so narrowly drafted, in comparison for example with the much broader provision in s 24(2) in relation to conduct in breach of s 24(1). However the form in which s 23(2) is drafted is matter for Parliament, not the Court, and does not in my view limit the manner in which s 23(1) should be interpreted. The defence of the respondent as pleaded in relation to unjustifiable hardship was not referable to the design or construction of its premises as contemplated by s 23(2), and accordingly is of no relevance in the context of s 23.
151 Accordingly, in my view the conduct of the respondent in refusing to allow the applicant access to its premises in the company of his dogs, which are assistance animals for the purposes of s 9(1)(f), was unlawful pursuant to s 23(1)(a) and (b) DD Act.