Chapter 8 - Service Animals

Humans have many uses for assistance animals. These include as guide dogs for the visually impaired, assistance dogs to help those with hearing difficulties, mobility problems and emotional issues. Animals, particularly dogs, have also been used in hospital visits where patients find the presence of dog therapeutic. The cases in this Chapter raise two main issues: first, what is an assistance animal; and second, what law applies to these animals. The first issue turns on whether an animal needs to have formal training as an assistance animal and whether it needs to be certified as such. The second issue explores the reach of anti-discrimination laws. It is important to keep in mind that anti-discrimination laws deal with discrimination against humans who use assistance animals, rather than discrimination against the animals themselves.

8.1 Brown v Birss Nominees Pty Ltd [1997] HREOC 54

Prepared by Paul Khodor

Court

Human Rights and Equal Opportunity Commission

Facts

On 4 September 1994, Brown sought accommodation at a caravan park owned by the respondent. The park did not allow pets or animals and reserved the right to refuse entry to people with pets or animals. Brown had a hearing impairment and he used a cochlear implant and also had a hearing-assistance dog, Taylor. Taylor wore a bright orange collar identifying him as a hearing assistance dog.

Upon arrival at the park Brown and Taylor were refused entry by the park’s owner, Mrs Birrs. Brown produced documentation evidencing that Taylor was an assistance dog and attempted to explain the exemptions provided by law in respect of hearing assistance dogs. Mrs Birss nonetheless refused them accommodation alleging that the decision was in part, due to Brown’s aggressive attitude towards her.

Issues

• Whether Birss Pty Ltd, breached the Disability Discrimination Act 1992(Cth) (‘the Act’) by refusing to accommodate Brown on the basis that he was accompanied by Taylor

Decision and Reasons for the Decision

The Inquiry Commissioner, Mr Graeme Inness, observed that the failure to provide accommodation to a person on the basis that he or she was accompanied by an assistance dog was a breach of the Act. Accordingly, the Commission awarded Mr Brown damages for the breach.

The Commission noted that ss 5(1) and 9 of the Act made it unlawful to provide less favourable treatment for the provision of goods and services because of a disability, including the less favourable treatment of a person with a hearing disability who is accompanied by a dog trained to assist with hearing. The Commission determined that as Brown’s disability was at least a reason for Mrs Birrs’ refusal to provide him with accommodation, Mrs Birrs’ conduct attracted the application of the Act. The Commission rejected Mrs Birrs’ claim that Brown’s attitude was difficult or confronting. It was held that Brown had been discriminated against within the meaning of s 5 of the Act.

The Commission identified that the discrimination breached s 23(1) of the Act, which made it unlawful to discriminate against a person on the basis of a disability in the provision of access to premises. It also found that the refusal of accommodation amounted to a refusal to provide goods, services and facilities on the grounds of a disability, prohibited by s 24 of the Act. Section 24(2) established an exception to the general rule in s 24, available where the use of such facilities would cause unjustifiable hardship to the respondent. The Commission identified that this provision required “a weighing of the benefits and detriments of that refusal to both parties”. In relation to Mrs Birss’s concerns pertaining to the possible damage to the park or injury to individuals which could result from the dog’s presence, the Commission found that such consequences were unlikely considering the training hearing dogs received. Similarly, her concerns pertaining to loss of custom which may result from the admission of dogs to the park were dismissed; Taylor was a working animal, not a pet.

The Commission also identified that human rights legislation requires a balancing of rights. The Commission found that “In weighing those benefits and detriments, the benefits to Brown, gained by the use of a hearing dog and to others in the community who also use such trained animals for that sort of assistance, outweigh the disadvantages put by [Birss] outlined above.”

The Commission also found that the conduct breached s 25 of the Act, which made it unlawful for a person to discriminate against another person on the basis of their disability by refusing their application for accommodation.

Finally, the Commission noted that s 123 of the Act rendered the conduct of Mrs Birss the conduct of Birss Pty Ltd.

The Commission awarded $1000 in damages to Brown.

Significance of the Case

This case provides an example of circumstances in which the Commission may find that conduct is unlawfully discriminatory and where it may decline to apply the exception of hardship to this finding. The case also adopts an anthropocentric approach, centering on a service animal’s utility to humans.

8.2 Sheehan v Tin Can Bay Country Club [2002] FMCA 95

Prepared by Richard Hanson

Court

Federal Magistrates Court

Facts

Sheehan, who was a war veteran, had attended the Tin Can Bay Country Club since 1997. In 1998, he trained a dog, Bonnie, to help him relieve symptoms of social anxiety. He began to take Bonnie to the club and after some time, stopped using a leash with Bonnie. Bonnie was not always with Sheehan at the club and was sometimes left outside. Bonnie did not accompany Sheehan on the golf course. Although initially insisting that Bonnie be kept on a leash, the club moved to ban Bonnie from the club.

Sheehan alleged that banning Bonnie from the club was discriminatory given that he had a disability. Sheehan first complained to the Human Rights and Equal Opportunity Commission. He argued that as a disabled person he was unfairly treated by the club because of Bonnie. The Human Rights Commission held that a broad definition of assistance dog under the Disability Discrimination Act 1992 (Cth) (‘the Act’)was ultimately “unsustainable” because it allowed any person who used a dog for companionship to claim that it alleviated a disability. Sheehan appealed the decision to the Federal Magistrates Court.

Issues

• Whether Bonnie was an assistance dog for the purposes of the Act
• Whether the club unlawfully discriminated against Sheehan under the Act

Decisions and Reasons for the Decision

Bonnie’s characterisation as an assistance dog

The Magistrate found that “when the dog is outside the premises not in the direct control of Mr Sheehan and not being utilised by Mr Sheehan for his aid and comfort, [she] cannot be an assistance dog.”It was also found that when Bonnie was not by Sheehan’s side, she was not an assistance animal on the basis that there was no eye contact between Sheehan and Bonnie. However, the Magistrate found that the requirement that Bonnie be tethered when she was inside the club and under the control of Sheehan was unreasonable. The Magistrate identified that the evidence established that Bonnie “was very well trained and obedient and under the control of Mr Sheehan” and that Bonnie “would not react much more differently from that of a trained guide dog and no one suggests that a blind or other sight-disabled person would have to spend his or her entire time holding a guide dog, particularly in a situation in a club.” In this respect, Bonnie qualified as an assistance dog.

The question of unlawful discrimination

With respect to whether Mr Sheehan was discriminated against, the Court had to consider whether the actions of the respondent had directly or indirectly resulted in unfavourable treatment of Mr Sheehan compared to a hypothetical person without his disability. His Honour held that:

Given the evidence of the training of Bonnie, I don't think that the conduct of the club passed the reasonable test in requiring her to be tethered whilst under Mr Sheehan’s direct control. I am of the view that the club did breach the Act by requiring the applicant to comply with a requirement (leashing his dog) with which a substantial proportion of persons without his disability are able to comply, which is not reasonable having regard to the circumstances of the case and with which the applicant does not comply.

The Court ordered that the Tin Can Bay Country Club permit Sheehan and Bonnie to attend the club’s premises, and that Bonnie could remain unleashed while under the control of Sheehan. It also ordered that the club pay Sheehan $1500 in damages.

Significance of the Case

This case establishes that dogs providing companionship to people for psychological conditions may qualify as “assistance dogs”. The case also reinforced the way in which the property status of animals enables them to be used to service a range of human needs. Significantly, Bonnie’s status as an “assistance dog” was tied to her precise function at any given time, “when the dog is outside the premises not in the direct control of Mr Sheehan and not being utilised by Mr Sheehan for his aid and comfort, [she] cannot be an assistance dog.”

8.3 Matthews v Commissioner Queensland Police Service [2005] QSC 122

Prepared by Antonia Quinlivan

Court

Supreme Court of Queensland

Facts

Matthews, the applicant, suffered from a disability as a result of a brain injury. It affected his lifestyle and led to a sense of isolation. He was unable to leave his home without the presence of his two dogs. A doctor reported that without his dogs, Matthews would feel “bereft” and would lack the only positive interactions he had.

Mr Matthews was studying a PhD at the University of Queensland. He was told that his dogs were not welcome in the libraries. On several occasions, the police were called to insist upon this rule. Mr Matthews also encountered problems travelling with his dogs on public transport and the police were called.

Mr Matthews argued that contrary to ss 23 and 24 Disability Discrimination Act 1992 (Cth) (‘the Act’), he was the subject of discrimination. He submitted that the Commissioner of Police was the proper respondent as the police had been called to apply the alleged discrimination. Matthews sought the following orders:

• A declaration that he was entitled to access premises, areas and spaces including public transport, accompanied by his dogs
• An injunction to restrain the Commissioner of Police from removing him or requiring him to remove himself from premises, areas or spaces, including public transport when he is accompanied by his dogs
• A declaration that he was owed a fiduciary duty by Commissioner of Police and the Commissioner’s servants and agents.

Issues

• Whether Matthews had been unlawfully discriminated against
• Whether the Supreme Court of Queensland was the appropriate forum for the resolution of the dispute
• Whether the Commissioner of Police was the relevant respondent
• Whether the Commissioner of Police owed Matthews a fiduciary duty

Decision and Reasons for the Decision

Whether unlawful discrimination had taken place

The Court held that Matthews had not established that he had been discriminated against within the terms of ss 6 or 9 of the Act. With respect to s 6, the Court found that the material before it was insufficient to underpin an assessment that any alleged discrimination was unreasonable. In relation to s 9, the Court observed:

The applicant does not have a visual or hearing disability and it is not at all clear to me that his dogs are “trained to assist the aggrieved person to alleviate the effect of the disability.” There is no evidence of any training apart from the applicant’s own statement to me, in the course of his submissions, that he trains his dogs. It isn’t plain that they are dogs trained in the sense which is relevant for the operation of section 9.

The Court concluded that Matthews could not establish that he was a victim of unlawful discrimination. This precluded Matthews’ access to the remedies he sought.

The appropriateness of the Supreme Court as a forum for the resolution of the dispute

The Court also accepted the Police Commissioner’s submission that the Human Rights and Equal Opportunity Commission was the appropriate forum for a discrimination complaint under part IIB of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The Court identified that the legislation was a “specialist regime set up for a context such as this” and that “it provides for particular procedures seen as appropriate for the resolution of such disputes”. Although the referral of a complaint to the Commission would not exclude the jurisdiction of the Supreme Court to consider the matter, the availability of the Commission’s procedure for resolving the matter provided “a powerful discretionary basis for refusing… relief.”

The relevant respondent

As Matthew’s complaint was that the University of Queensland and the persons responsible for the operation of the public transport discriminated against him, their absence was problematic. Although Matthews sought to join the University of Queensland to the proceedings and to bring a case against it, the Court found that he should first pursue his rights before the Commission.

The presence of a fiduciary duty

It was also held that there was no legal basis for a declaration that Matthews was owed a fiduciary duty.

Significance of the Case

This case suggests that to satisfy s 9 of the Act, the applicant must establish that the animal is a guide dog or another animal professionally trained to assist the applicant in alleviating the effect of a disability. Unless the assistance animal is purpose trained to alleviate the effect of a disability, the test may not be satisfied.

8.4 Forest v Queensland Health [2007] FCA 936

Prepared by Lucinda Vale

Court

Federal Court of Australia

Facts

Forest, the applicant, had a personality or anti-social disorder. To help him cope with this disorder he had trained both his dog Buddy to accompany him in public and also another dog, Knuckles, as Buddy was nearing the end of his working life as an assistance animal. Forest was a founder of Partners AWARE, an association providing programs involving assistance dogs for people with disabilities.

On 16 November 2004, Forest and Knuckles were refused service at Cairns Base Hospital. Access was also refused the next day and on three subsequent occasions. Forest was also refused access to the Smithfield Community Health Centre (with both Knuckles and Buddy). Forest brought two discrimination complaints to the Federal Court of Australia pursuant to the Disability Discrimination Act 1992 (Cth) (‘the Act’).

Forest argued that Knuckles was trained to alleviate the effect of his mental illness within the meaning of the Act and that to refuse him services while accompanied by Knuckles, was a breach of the the Act. Forest also argued that Buddy was not a mere companion and continued to help him cope socially, as the dog had done since 1999.

Issues

• Whether Forest’s condition constituted a disability
• Whether the hospital’s refusal to admit Forest when he was accompanied by Knuckles and Buddy constituted discrimination within the terms of the Act
• Whether the conduct was unlawful under the Act

Decision and Reasons for the Decision

The personality disorder as a disability

Collier J held that Forest’s personality disorder was a relevant disability for the purposes of s 4(1)(g) of the Act.

Characterisation of the conduct as discrimination

It was held that Queensland had discriminated against Forest within the meaning of s 6 of the Act. The Court identified that the hospital imposed a condition upon Forest: “that he not attend the respondent’s premises with an animal, unless the animal is a seeing-eye 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.” It was found that a higher proportion of persons without the disability could comply with this requirement. The Court held that the hospital’s policies were unreasonable as they imposed “what [was] potentially an insuperable barrier for persons such as the applicant to cross” and the condition for access established “no objective criteria for the applicant to satisfy”.

Further, the Court held that the dogs were trained to alleviate the effects of Forest’s disability. As Forest was excluded from the hospital due to the presence of the dogs, the Court held that he was treated less favourably because he was accompanied by them, constituting discrimination under s 9 of the Act. Accordingly, the conduct met the definition of discrimination under the Act.

Breach of the Act

The Court held that the conduct of the hospital, in refusing to allow Forest access to its premises on the basis that he was accompanied by the dogs meant that Queensland contravened s 23(1) of the Act. For similar reasons, Queensland breached s 24(1)(a) of The Act for failing to provide health services to Forest due to the dogs’ presence. The Court held that it was not open to the hospital to plead that enabling Forest access with the dogs would result in unjustifiable hardship; Forest’s dogs were not “unruly, unhygienic, ill-behaved or ill-controlled”. Further, it did not impose unjustifiable hardship upon Queensland to require the hospital to develop and implement policies to assist it in identifying assistance animals. However, Collier J noted that the findings did “not extend to services performed in a sterile environment.”

Appeal

The State of Queensland appealed to the Full Federal Court. The majority of the Court held that Collier J had incorrectly applied s 6 of the Act. The Court accepted that the State had discriminated against Forest under s 9(1) because Forest was accompanied by Knuckles, but that the hospital did not do so, on the ground of his psychiatric disability. Therefore, Queensland did not engage in unlawful conduct under the Act.

Significance of the Case

It is relevant to note that the Full Federal Court was able to distinguish discrimination on the basis of disability and discrimination on the basis of an assistance dog used to alleviate the disability. Black CJ dissented and came to the view that the majority’s judgment - that s 9 also required that the less favourable treatment be on the grounds of the aggrieved person’s disability - would allow a disabled person to be refused entry to a building or a taxi with a guide dog. The Court did not make it clear how, as a matter of law, a decision-maker would separate the use of an assistance dog from the disability that necessitates the use of the assistance dog.

8.5 Ondrich v Kookaburra Park Eco Village [2009] FMCA 260

Prepared by Christopher McGrath

Court

Federal Magistrates Court of Australia

Facts

Ondrich, the applicant, lived with her husband, her children, and her dog, Punta, in a building scheme known as the Kookaburra Park Eco Village (the Park). The Park was a community title scheme and the body corporate had created by-laws prohibiting residents from keeping cats or dogs on both individual lots and the common property. Ondrich said she suffered various medical conditions including anxiety and depression and that Punta was purchased to help alleviate some of her symptoms. Punta had received obedience training, but was not specially trained to assist with disabilities.

The Park tried to enforce the by-laws preventing Ondrich from keeping Punta. After mediation failed, Ondrich appealed to the Federal Magistrates Court alleging that removal of Punta amounted to discrimination under the Disability Discrimination Act 1992 (Cth) (‘the Act’).

Issues

• Whether Ondrich’s condition was a disability within the meaning of s 4 of the Act
• Whether the conduct amounted to indirect discrimination within the terms of s 6 of the Act
• Whether the conduct amounted to discrimination within the terms of s 9 of the Act
• Whether the Park unlawfully discriminated under s 24 of the Act, and if so, whether the Park could relieve itself from liability by proving unjustifiable hardship

Decision and Reasons for the Decision

Whether the condition amounted to a disability

Burnett FM in the Federal Magistrate Court was satisfied that Ondrich suffered from psychiatric conditions sufficient to constitute a disability under s 4 of the Act.

The presence of indirect discrimination

The Court found that Ondrich could not establish discrimination within the terms of s 6 as she had failed to identify a base group, as well as a “comparative group” of which she was a member, to allow the Court to assess the alleged discrimination.

In reaching his conclusion, his Honour relied upon Black CJ’s dissent in Forest v Queensland Health and the requirement, in cases of indirect discrimination to identify an “appropriate base group” with which to compare the group comprising the individual who is aggrieved. The Court cited the test articulated by Collier J in Forest v Queensland Health [2007] FCA 936: “to determine whether there has been indirect discrimination, it is necessary to identify an “appropriate base group” with which to compare the group comprising the individual claiming discrimination, and to decide whether a substantially higher proportion of those individuals from the base group are able to comply with the relevant requirement or condition”. Ondrich failed to meet this threshold.

The presence of discrimination

Ondrich also failed to establish, under s 9, that Punta should be classified as an assistance animal. Under s 9, an assistance animal must be trained for the purposes of alleviating the disability. The Court held that Punta’s obedience created a significant bond with Ondrich and expert testimony noted that the presence of Punta reduced some of Ondrich’s anxiety. However, these factors did not satisfy the test. The Court could not be persuaded that there was a real nexus between Punta’s training and the assistance Punta provided to alleviate Ondrich’s disability. Simply having an assistance animal was not sufficient to enliven s 9.

Breach of the Act

As the Court found that Ondrich had failed to establish that she was discriminated against, it stated that it was unnecessary to consider whether or not the alleged discrimination was unlawful. However, the Court indicated that had Ondrich been able to establish discrimination under s 9, she would have been successful in claiming that the Park unlawfully discriminated under s 24 by refusing Ondrich access to its premises. The Park would not have been successful in arguing that a ruling of unlawful discrimination would impose unjustifiable hardship upon it under s 24(2).

Significance of the Case

Burnett FM reinforced the requirement under the Act that an assistance animal must have specific training to alleviate a disability for the purposes of the Act: “while obedience training clearly did assist the applicant and her dog it was not training to assist in the alleviation of the effects of her disability. From that evidence the fact of the dog’s companionship appears to be the cause of the applicant’s better psychological state of mind. However this evidence does not of itself demonstrate that training was required to develop that state of companionship.” The case also emphasised the importance of identifying both a base and a comparison group to establish indirect discrimination.