BLACK CJ:
1 These appeals concern the application of the Disability Discrimination Act 1992 (Cth) (the Act) in circumstances where a person with a disability seeks to be accompanied by an assistance dog when accessing medical or dental treatment or related services.
2 The State of Queensland, which through its agency Queensland Health operates the Cairns Base Hospital and the Smithfield Community Health Centre, appeals against declaratory orders made by a judge of this Court that it unlawfully discriminated against the respondent, Mr Che Forest. The trial judge found that it did so by refusing to allow him to be accompanied by one or other of his assistance dogs when attending the Cairns Base Hospital in relation to medical treatment and later when attending the Smithfield Community Health Centre for dental treatment.
3 The trial judge found that there had been indirect discrimination within the meaning of s 6 of the Act. Her Honour also found that Mr Forest's dogs were animals trained to assist him to alleviate the effect of a psychiatric disability from which he suffered so that s 9(1)(f) of the Act applied. She concluded that the State of Queensland had discriminated against Mr Forest, and had engaged in conduct that was unlawful as being in contravention of ss 23(1)(a), 23(1)(b), 24(1)(a) and 24(1)(b) of the Act. Her Honour ordered the State of Queensland to pay $5,000 damages in one proceeding and $3,000 in the other. These appeals are brought from the orders made by her Honour to give effect to her findings.
4 The facts and circumstances of the case, the findings of the primary judge, and the issues arising on the appeals, are summarised in the joint judgment of Spender and Emmett JJ. I adopt what they have said about those matters.
5 I agree generally with their Honours that the trial judge was in error in her application of s 6 of the Act and her consequent finding of indirect discrimination. I would, however, add some observations of my own about the construction of s 6. I disagree with the majority in the view they take of the operation of s 9 and its application to the provisions relating to access to premises (s 23) and access to goods, services and facilities (s 24).
6 I now turn to s 6, and the difficult field of indirect discrimination. Section 6 defines the circumstances under which, for the purposes of the Act, a person discriminates against another on the ground of disability. The first step required by the section is to determine whether the alleged discriminator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons without the disability comply or are able to comply: s 6(a).
7 Section 6(a) therefore directs attention at the outset to two groups of people: persons with the disability that affects the aggrieved person and persons without that disability. Those with the disability are usually, in this field of discourse, referred to as comprising the comparator group, and those in the broader group are referred to as the base group. Discrimination occurs if the requirement or condition impacts more severely upon persons with a disability than it does upon persons without the disability. Since the requirement or condition may impact upon both groups, the Act requires reference to the proportionate impact and a consideration of whether "a substantially higher proportion of persons without the disability" can or are able to comply.
8 In some instances the required disproportional impact may be established as a matter of inevitable inference. This will occur when the very nature of the disability is such as to show, without further proof, that none of the members of the comparator group - the persons with the disability - could not comply with the requirement or condition, leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.
9 To my mind the learned judge was in error in the present case in failing to define the comparator group so as to enable the comparison required by the section to be made. Rather, it seems, her Honour attributed to an undefined comparator group the alleged difficulties of access that were at the heart of Mr Forest's case. Whilst this attribution might well have been sufficient where, for example, there was an obvious physical disability, there was no warrant for doing so here. The proportional impact was by no means self-evident. In the present case, whether the class of persons with Mr Forest's disability was large or small, and however broadly or narrowly his disability might be defined (and this seems to have been a matter of controversy at the trial), there was no evidence to establish the respective proportions of persons who could comply with the requirement or condition.
10 For this reason alone a case of indirect discrimination under s 6 was not made out. I therefore find it unnecessary to deal with the other submissions concerning s 6, except to express my agreement with the view that it is not per se unreasonable for a health authority to administer objective criteria to protect those to whom it has a duty of care.
11 This conclusion also makes it unnecessary to decide whether the learned trial judge correctly identified the base group. Identifying the base group as members of the community who seek to access the Cairns Base Hospital and/or the Smithfield Community Health Centre had the consequence that people would be included to whom the requirement or condition might never have had any practical relevance. There was, it would seem, however, a smaller group of people for whom Queensland Health had made provision with its protocol for animals, who saw a benefit in being accompanied by an animal at one of its health facilities. If, as we may accept, the point of the comparison is to determine whether there is a substantial difference in proportional impact, it might well be said that the base group should be defined by reference to the potential relevance of the term or condition to the members of that group.
12 The next issue to be considered concerns the operation of s 9 and its relationship to ss 23 and 24.
13 Sections 23 and 24 each provide that it is unlawful for a person to discriminate against another person "on the ground of the other person's disability" by engaging in various forms of specified conduct, including refusing to allow the other person access to any premises that the public is entitled to enter: s 23(1)(a).
14 These sections form part of Part 2 of the Act, the consistent theme of which is that it is unlawful to discriminate in the specified ways "on the ground of the other person's disability". This Part is concerned with discrimination in fields such as work, education, access to premises, the provision of goods, services and facilities, accommodation, land, membership of clubs and various sporting activities.
15 The scheme of Part 2 fits neatly with Part 1 of the Act. Part 1 sets out the objects of the Act, makes provision for its interpretation and its scope and defines the circumstances in which discrimination will be taken to have occurred. Part 1 includes s 5, which is concerned with direct discrimination, and which provides that a person discriminates against another person "on the ground of a disability of the aggrieved person" if, "because of the aggrieved person's disability" the person treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. Part 1 also includes s 6 which contains what is in effect a definition of indirect disability discrimination by providing that, for the purposes of the Act, a person discriminates against another person "on the ground of a disability of the aggrieved person" if the person acts in the specified way.
16 As well as covering direct and indirect disability discrimination, Part 1 is concerned with other forms of discrimination, namely discrimination in circumstances involving palliative or therapeutic devices and auxiliary aids (s 7), interpreters, readers, assistants or carers (s 8) and, relevantly here, the fact that an aggrieved person possesses or is accompanied by an "animal trained to assist the aggrieved person to alleviate the effect of the disability, or because of any matter related to that fact…": s 9(1)(f). Section 9 also defines discrimination by reference to a person possessing or being accompanied by a guide dog or a hearing assistance dog.
17 Thus, it can be seen that there is an uncomplicated and direct relationship between, for example, indirect discrimination as provided for by s 6 and s 23. If conduct falls within s 6 it will be, for the purposes of the Act, discrimination "on the ground of a disability" and thus, potentially a neat fit with s 23 and the other sections of Part 2 that make certain discriminatory conduct unlawful. Where s 6 applies there will be no occasion to consider for a second time whether the conduct complained of was discriminatory "on the ground of the other person's disability" because s 6 will, if it has been found to apply, have answered that question for the purposes of the Act.
18 The question now is whether the different approach taken by ss 7, 8 and, relevantly here, s 9, achieves the same result or whether, as the majority consider, even if there is a finding of fact such that requires the conclusion that there has been discrimination pursuant to s 9, before it can be concluded that there was unlawful discrimination contrary to s 23, there needs to be a further finding that the discrimination that s 9 says has occurred was "on the ground of the other person's disability".
19 The trial judge proceeded upon the footing that if there was a finding of discrimination by reason of the application of s 9 to the facts of the case, there was no requirement for a further finding that the discrimination was "on the ground of the other person's disability" before it could be concluded that the alleged conduct was unlawful as being contrary to one or more of the provisions of Part 2. In taking this view, the learned judge acted in accordance with precedent: see Grovenor v Eldridge [2000] FCA 1574 at [10].
20 In my view her Honour was correct in proceeding on this footing. Once her Honour was satisfied that there had been discrimination against Mr Forest within the meaning of s 9(1)(f) there was no further requirement, in assessing the application of ss 23 and 24 to the facts of the case, to determine whether the conduct was discrimination "on the ground of" Mr Forest's disability. That was already determined by the application of s 9.
21 This approach requires s 9 to be read as describing discrimination which, for the purposes of the Act, will be taken as being "on the ground of disability" even though that expression is not used in s 9 (or its counterparts in ss 7 and 8).
22 Since, however, the primary object of the Act is to eliminate as far as possible discrimination on the ground of disability in certain specified areas (s 3(a)) it should not be supposed that any other form of discrimination could be the intended subject of s 9; the conclusion must be that s 9 discrimination is a deemed instance of discrimination on the ground of disability.
23 Moreover, the evident purposes of ss 7, 8 and 9 are to eliminate, by making unlawful, some particular forms of less favourable treatment so as to further the object that persons with disabilities have the same rights as the rest of the community. As these sections recognise, there are disabilities that may be materially alleviated with the assistance of an animal trained to do so. The most frequently encountered example is perhaps a visual disability that may be alleviated if a person is accompanied by a guide dog: see s 9(1)(d).
24 If s 9 were not in its present form, an object of the Act in its specific application to a person with a visual disability (to take that as an example) may be open to defeat if the alleged discriminator was doing no more than following a general practice of not allowing access to premises to anyone accompanied by a dog, whether the person was visually impaired or not and whatever the circumstances. The policy of the Act is, quite evidently, to avoid such an outcome. Sections 7 and 8 operate in the same general way with the same general objectives.
25 In these circumstances, Part 1 of the Act should be seen as defining what is discrimination on the ground of a person's disability and the references to discrimination on that ground in Divisions 1 and 2 of Part 2 should be taken to be references to conduct so defined. Where ss 7, 8 or 9 are concerned no further finding of a ground of discrimination is required. If conduct comes within the scope of s 9 and is otherwise within s 23 (or any of the other relevant sections in Division 2) that conduct is to be taken to have involved unlawful discrimination "on the ground of" the aggrieved person's disability. To construe the provisions of Divisions 1 and 2 of Part 2 as requiring a further finding of discrimination on the ground of disability would, in my view, defeat the purposes of ss 7, 8, and 9 and the broader objects of the Act.
26 The explanatory memorandum for the Disability Discrimination Bill 1992 (Cth) provides explicit support for this construction. In relation to s 7, the explanatory memorandum at cl 7 states that the section "provides that a person is discriminated against on the grounds of disability if a person treats them less favourably on the basis that the person with a disability has a palliative, therapeutic or auxiliary aid" (emphasis added). Clause 8 is to the same general effect and the notes to cl 9 state that it is "similar to [c]lauses 7 and 8". The example provided as a footnote to cl 9 is also instructive: where a taxi driver refuses to transport a blind person because the person has a guide dog: Explanatory Memorandum, Disability Discrimination Bill 1992 (Cth), 6.
27 I therefore conclude that the learned trial judge was not in error in failing to make a finding that the State of Queensland had discriminated against Mr Forest on the ground of his disability. If s 9 applied, no further finding of discrimination on the ground of disability was required. This has important consequences because the questions posed by s 9 are quite specific, being directed to a particular form of discrimination. If an extra element is introduced, such as by asking whether there was discrimination "on the grounds of disability", the same facts might produce a different answer, and one unfavourable to the claimant.
28 These conclusions now raise for consideration whether s 9 was correctly held to apply. At the trial it was the State of Queensland's case that the evidence demonstrated that Mr Forest had not been treated less favourably "because of the fact that" he was accompanied by his dogs but because of concerns that his dogs were ill-behaved and ill-controlled.
29 Her Honour took the view, however, that such a finding would provide no answer to the allegation of discrimination. In her Honour's view, s 9(1)(f) assumed that it was appropriate for a person to be accompanied by an animal trained to assist the person to alleviate the effects of a disability, and no scope was allowed for the imposition of requirements or conditions on that accompaniment, including approval by the discriminator on any grounds: see her Honour's reasons at [128]. To hold otherwise would, in the trial judge's view, undermine the object of the Act to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community.
30 It was on this foundation that the trial judge found that Queensland Health had treated Mr Forest less favourably because he was accompanied by an assistance animal. It was no answer to say that Mr Forest would have been given access with dogs that Queensland Health considered to be well-behaved, well-controlled and trained to the standard of a proper assistance dog.
31 On appeal, it was suggested that the interpretation preferred by her Honour should not be rejected as producing consequences so unreasonable that they could not have been intended because s 23(2) and 24(2) (although the sections are different in scope) allowed for the introduction of the concept of unjustifiable hardship. It will be recalled that s 23(1) provides that it is unlawful for a person to discriminate against another on the ground of the other person's disability by, amongst other things, refusing to allow access to premises. Section 23(2) then provides that the section does not make it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if the premises are so designed as to be inaccessible to a person with a disability and any alteration to provide access would impose unjustifiable hardship on the person who would have to provide it. This provision does not, however, take the matter any further because in a case such as the present whilst s 23(1) may apply (as the primary judge found) to render conduct unlawful there is simply no scope for the operation of s 23(2). The fact that its counterpart in s 24(2) may have some scope for operation is really beside the point.
32 To narrow the circumstances under which, on the construction adopted by her Honour, s 9 might lead to patently unreasonable results, counsel for Mr Forest stressed that there was no claim in respect of services performed in a sterile environment. This had been noted by her Honour in the context of her consideration of unjustifiable hardship within the meaning of s 24(2) but, as I understood his submission, counsel relied upon the point more broadly on the appeal. To exclude any claim that there was a right to have an assistance animal in a sterile area does not, however, avoid the problem of unreasonable consequences: it really only serves to hide the problem.
33 It may be seen, therefore, that the issue of construction concerning s 9 in the present case comes down essentially to whether s 9 gives to a person with a disability what would be, in effect, an absolute right to be accompanied by an assistance animal in situations to which the provisions of Division 2 apply or whether the use of the expression "because of" in s 9 allows for - indeed requires - consideration of an ultimate question as to why the aggrieved person was treated as he or she was. In other words, does s 9 contain its own internal requirement that achieves a similar purpose to the "on the ground of" requirements of ss 5 and 6?
34 There is, of course, a well-known principle that points against an interpretation that would impute to the Parliament an intention to achieve an absurd or unreasonable result: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 321 per Mason and Wilson JJ. There is also a principle that legislation for the protection of human rights, that is beneficial and remedial, "should be given a fair, large and liberal" interpretation rather than one that is "literal or technical", although there may be a tension between these two principles: see IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, citing Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333. It needs of course to be remembered that in considering the operation of these principles there is a danger that what are said to be absurd consequences are in truth a reflection of the stereotypical assumptions that human rights legislation seeks to address.
35 In the present case, the solution to the construction question is to be found by having regard to the fundamental objects of the Act and to the consistent approach that the Act takes to their attainment. For the reasons that follow, these considerations lead to the conclusion that the primary judge was in error in her approach to s 9 and that the provision allows - indeed requires - attention to be paid to why the alleged discriminator acted as he or she did.
36 Fundamentally, the Act is concerned with discrimination "on the ground of disability". Section 3 of the Act sets out its objects and the first of these is the elimination, as far as possible, of discrimination against persons "on the ground of disability" in specified areas. The other two stated objects relate to equality before the law and the promotion and acceptance of the principle that persons with disabilities have the same fundamental rights as the rest of the community. In defining in s 5(1) the circumstances in which, for the purposes of the Act, a person is taken to have discriminated against another on the ground of the disability of the aggrieved person, the Act uses the expression "because of" to link the conduct with the ground. Similarly, in s 5(2), in clarifying the scope of s 5(1), the expression "because of the fact" is used to establish the relevant link. Likewise, the expressions "because of the fact that" and "because of any matter related to that fact" provide the relevant links in ss 7, 8 and 9.
37 In Purvis v New South Wales (2003) 217 CLR 92 one of the questions before the High Court was what was meant, in the context of the Act, by saying that there was less favourable treatment "because of" a disability.
38 Although they did not need to decide the point, having dismissed the appeal on other grounds, Gummow, Hayne and Heydon JJ gave guidance about the construction of "because of". Having noted differences of judicial opinion about the role of intention or motive in relation to the expression "on the ground of" their Honours said (Purvis 217 CLR 92 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".
39 In the same case, Gleeson CJ observed that ss 5, 10 and 22 were concerned with the lawfulness of conduct and with "the true basis" of the impugned decisions (Purvis 217 CLR 92 at [13]). Gleeson CJ considered that it was not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker was responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision. Just as questions of causation might be affected by normative considerations arising out of the legal context in which they were to be answered, a statutory question "as to the basis of a person's decision" may be affected by similar considerations (see Purvis 217 CLR 92 at [14]).
40 In Forbes v Australian Federal Police (Cth) [2004] FCAFC 95 at [69]-[70], also a case of alleged disability discrimination, the Full Court (Black CJ, Tamberlin and Sackville JJ), having considered Purvis 217 CLR 92, concluded that there had been an error at first instance because the Federal Magistrate had failed to ask why the allegedly discriminatory action was taken. The Full Court held that the Magistrate should have determined whether (having regard to s 10) the reason in that case was the appellant's depressive illness.
41 The question here is whether "because of" in s 9 (and also in ss 7 and 8) has a more limited function to perform than it does in s 5. The principle that words used consistently should be construed consistently, unless there is good reason to do otherwise, suggests that the words should be taken to have the same meaning and the same work to do wherever they appear in Part 1: see, for example, Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 per Mason J (with whom Barwick CJ and Jacobs J agreed).
42 The conclusion that "because of" has the same meaning in s 9 as it does in s 5 tends to be confirmed by s 10 which applies generally to Part 1. Section 10 provides that if an act is done for two or more reasons and one of them is the disability of a person (whether or not this is a dominant or a substantial reason) then, for the purposes of the Act, the act is to be taken to be done for that reason.
43 The contrary view, implicit I think in her Honour's reasoning, is that s 9 has special work to do. To my mind, however, this begs the question. It is true that s 9, and its counterparts ss 7 and 8, are directed to special situations requiring specific attention if the objects of the Act are to be advanced in those situations. There is, however, no indication in the language used that in these special situations there is to be a departure from the approach in s 5, which is to direct attention to the reason for conduct. The fundamental aim is to eliminate discrimination on the ground of disability and, as Purvis 217 CLR 92teaches, in that context "because of"' directs attention to why.
44 The special work that s 9 and its counterparts have to do in preventing discrimination because a person is accompanied by an animal trained to assist him or her to alleviate the effect of the disability would not be frustrated if the section were to be construed such that "because of" takes its ordinary meaning in a manner consistent with its meaning elsewhere in Part 1. To the contrary, it might be said that the ordinary meaning is likely to take care of some, if not all, of the suggested practical difficulties resulting from the interpretation preferred by the learned primary judge. Given its ordinary meaning, and depending of course on the circumstances, "because of" would admit of the possibility of a lawful denial of access to a person accompanied by an animal that was dangerous.
45 It follows that in taking the view of s 9 that allowed no scope at all for the imposition of requirements or conditions, the learned trial judge applied the requirements of s 9 incorrectly. In directing herself, as her Honour did, to the question "because of", the learned judge wrongly placed restrictions upon the scope of that expression and as a consequence did not address the right question.
46 There was some discussion during the course of the appeal about the meaning of the expression "or because of any matter related to that fact" (ie. the fact of being accompanied by an animal trained to assist etc) as it appears in s 9(1)(f). (Similar usage can be found in ss 7 and 8.) Counsel for the appellant suggested that the expression was probably directed to matters such as the provision of drinking water and it would not extend to matters relating to public health and safety.
47 It could be said that attributes of a particular animal, such as being dangerous or infectious, were matters relating to the fact of a person being accompanied by that animal. In general, however, attributes of this nature are unlikely to have anything to do with whether the conduct is, in truth, discriminatory. If, for example, a public health institution had a carefully considered, non-discriminatory, policy that allowed for the admission of assistance animals and the facts showed that the policy was properly administered, it would hardly advance the objects of the Act if, on a particular occasion, a person accompanied by a patently dangerous assistance animal were refused entry to a hospital. In such an instance, it would not be foreign to the objects of the Act if access were refused not "because of the fact that the person was accompanied by the animal" or "because of any matter related to that fact". The object of eliminating discrimination on the ground of disability and the further object of ensuring, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community, are not advanced by a construction of such width as, in effect, to allow any animal into any public premises under any circumstances. Such extremes may have nothing to do with discrimination and indeed could frustrate the objects of the Act by impeding the increasing acceptance of the important functions not only of guide dogs but of other appropriately trained assistance animals. The precise scope of the provision is not easy to determine and will need to be worked out over time on a case by case basis.
48 This of course highlights the force of the primary judge's observations about the deficiencies of the legislation in its present form, and the desirability of legislative reform. This would provide certainty for animal owners, service providers and members of the public and, as her Honour put it, strike a balance between the needs of the disabled as recognised in the Act and the confidence of service providers and the public as to standards of assistance animals in public places.
49 The appellant also challenged the finding of the primary judge that the dogs alleviated the effects of the Mr Forest's disability, arguing that the finding was factually flawed. Counsel for the appellant developed this ground by pointing to what he said was the inconsistency of the finding with the evidence of two psychiatrists and he criticised her Honour's reliance on the evidence of a general practitioner and an occupational therapist specialising in mental health rehabilitation.
50 The learned judge was not, however, obliged to accept the evidence of the two psychiatrists to the effect that the dogs did not assist in the management of Mr Forest's particular condition or that the dogs' activities did not alleviate the effect of his disability. These were matters for the primary judge to consider upon the whole of the evidence, including that of the general practitioner and the occupational therapist, and this the trial judge plainly did. Her Honour's finding on this aspect of the case was open on the evidence and should not be disturbed. (The appellant did not persist in its challenge to the finding that the dogs were trained and, inferentially, trained to alleviate the effect of the disability.)
51 For the reasons I have given, I would allow the appeal.
52 I am not persuaded that this Court is in a position to consider for itself the application of s 9. This is by no means a straightforward matter and the findings that were made are complicated by the circumstance that the wrong question was asked. The matter should be remitted to the trial judge for further hearing, but in relation only to the application of s 9.
53 Given the nature of the proceedings, I would direct the parties to file written submissions as to costs within, in the case of the respondent, seven days and, in the case of the appellant, 14 days.