QLS Journal
discrimination
by Dr Larry Laikind
O
n 5 August 2009, the DDA Amendment Bill1
received royal assent and became law. This
article traces some of the more important
changes to the DDA through a historical
analysis of judicial pronouncements that have led to
a reduction in the effectiveness of this legislation.
Through the years, this service has been involved in
a number of cases that illustrate the need for these
most welcome changes. This paper will touch on the
following amendments to the DDA.
(A) The duty to provide reasonable accommodations for both
direct and indirect discrimination.
(B) Behaviour linked to a disability being included within
the definition of disability.
(C) Change in the onus of proof to the respondent in the
definition of indirect discrimination in section 6 of the
DDA.
(D) Removal of the proportionality test to one of disadvantage
in the definition of indirect discrimination in section 6 of the
DDA.
(E) Changes in the assistance animals protection to create
a new section 8 of the DDA where less favourable treatment
upon the basis of being accompanied by a guide dog or
assistance animal will be deemed to be less favourable
treatment because of the person’s disability.
Other changes created by the amending legislation will not
be canvassed by this article.
(A) A duty to provide reasonable
accommodations
Changes have been made to the definition of direct
discrimination in the DDA by adding a new paragraph (2) to
section 5 of the DDA. Paragraph 5(2) of the DDA now reads
“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.”2
The new subsection 4(1) to the DDA explains that “an
adjustment to be made by a person is a reasonable adjustment
unless making the adjustment would impose an unjustifiable
14 – December 2009
Judicial
interpretation
sparks legislative
amendments to the
Disability
Discrimination Act
hardship on the person.”3
By re-drafting the definition of section 6, indirect
discrimination, a duty to provide reasonable adjustments has
also been imposed. Section 6(2)(b) and (c) of the DDA now
reads, “because of the disability, the aggrieved person would
comply, or would be able to comply, with the requirement
or condition only if the discriminator made reasonable
adjustments for the person, but the discriminator does not
do so or proposes not to do so; and (c) the failure to make
reasonable adjustments has or is likely to have, the effect of
disadvantaging persons with the disability.”4
The majority of antidiscrimination is based upon
concepts of comparability and
neutrality.
Disability discrimination legislation aims to provide equal
opportunity and equal participation in the community for
people with a disability. This requires more than removal of
attitudinal barriers, prejudices and stereotypes. Disability,
by its very nature, entails a need that must be recognised and
adjustments that are required to be made before equality can
be achieved.5 The majority of anti-discrimination is based
upon concepts of comparability and neutrality. Individual
members of one group in society are to be treated the same
way that any other group are to be treated; standards or
criteria are to be applied in a “colour-blind” or “gender
neutral” fashion.6 This position is insufficient when applied
to people with disabilities as the disability itself creates the
need for the adjustment.
The objects of the DDA are basic principles of equality for
people with disabilities. They are enumerated in section 3 of
the DDA as:“(a) to eliminate, as far as possible, discrimination against
persons on the ground of disability in the areas of…
(b) 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; and
(c) to promote recognition and acceptance within the
community of the principle that persons with disabilities have
the same fundamental rights as the rest of the community.”7
It is a fairly obvious observation of the DDA that, in order
discrimination
to achieve the stated objects, one must be able to imply a
duty to provide reasonable adjustments or accommodations.
A person with a visual disability may require computer
equipment or a person who is deaf may require an AUSLAN
(Australian Signed Language) interpreter to achieve
substantive equality in the workplace. Such a duty to provide
reasonable adjustments has been denied to exist under the
DDA (until the 5 August 2009 amendments) by both the
Federal Court of Australia8 and the High Court of Australia.9
The case of Commonwealth of Australia v Nerilie Ann
Humphries and Ors [1998] FCA 1031 (25 August 1998),
was a case brought to the Federal Court by the Australian
Government Solicitor by way of judicial review of a decision
of an inquiry commissioner, Hilary Charlesworth. The
inquiry commissioner found that Ms Humphries had been
discriminated against on the grounds of her visual disability
in four respects. First, by failing to supply her with necessary
equipment in the area office (a large computer screen, new
keyboard, anti-glare screen access to the main computer),
second, denial of opportunities for future training, third,
making her permanent appointment contingent upon
completing all ASO1 competencies and, finally, because the
termination of Ms Humphries’ employment was connected
to the previous three acts of direct discrimination.10 We
represented Ms Humphries in this matter in the Federal
Court.
Ms Humphries is a person with a visual disability. She has
about 5 percent of normal vision. Ms Humphries was engaged
first as a temporary ASO1 for the Department of Education,
Employment, Training and Youth Affairs (DEET) in Lismore.
After taking examinations, she was offered an ASO1 position
contingent upon meeting ASO1 competencies. During the
period of Ms Humphries’ employment, DEET was undergoing
restructuring. Ms Humphries joined the Commonwealth
Employment Service (CES) in August 1994. Ms Humphries
was examined by a Dr Dougherty and retired as being
medically unfit about April 1995. Kiefel J found that errors of
law occurred with the inquiry commissioner’s reasons for her
decision and sent the matter back to a differently constituted
Inquiry Commission for re-determination.11
It was argued on behalf of Ms Humphries that if there
was no express duty to provide reasonable adjustments or
accommodations under the DDA then an implied duty
could exist to satisfy the objects of the DDA. This would be
consistent with Canadian Jurisprudence which has impliedly
found such a duty.12
Kiefel J found that the DDA imposed no positive duty
to provide accommodations; at page 12 of her judgement,
it states as follows, “…the Commissioner appears to have
been influenced, to an extent, by the notion of obligations
on the part of DEET towards employees in Mrs Humphries’
position. Counsel for Mrs Humphries indeed submitted that
the DDA incorporated the concept of an implied obligation to
disabled employees and referred to Re Saskatchewan Human
Rights Commission v Canadian Odeon Theatres Ltd (1985)18
DLR (4th) 93 (“Huck’s case”) and to the objects of the DDA
which, it was submitted, ought to be interpreted broadly and,
in effect, to require the fulfilment of a duty towards disabled
employees to enable them to function at this capacity. I do
not think the stated objects of the DDA go that far. Relevantly,
they provide for the elimination of discrimination, which is to
say wrongful differential treatment, in the workplace.”13
Kiefel J sent the matter back to a differently constituted
Inquiry Commission for re-hearing upon the basis that the
original inquiry commissioner had not addressed her mind as
to whether the discrimination was because of the disability
QLS Journal
in a situation where an employee without the disability
would have been treated differently. The only comparator
was another employee with a disability who had been treated
better.14
An implied or express duty to provide reasonable
accommodations is found in other jurisdictions in regard to
disability discrimination. A few examples are Canada, Great
Britain and the USA.
Canada
Most Canadian jurisdictions do not have an express duty
to provide reasonable accommodations in their disability
discrimination legislation.
An important example of how such a duty has been implied
is the case of Huck v Canadian Odeon Theatres Ltd.15 Huck
was a person with paraplegia who used a wheelchair for
mobility. He purchased a movie ticket to attend the Coronet
Theatre in Regina Saskatchewan. Huck was told that he
could only view the movie from the space in front of the front
row of seats as there were no removable seats or space for a
wheelchair in the general audience.
Huck brought a discrimination complaint. The tribunal at
first instance found for Huck finding a duty to accommodate.16
On appeal to the Court of Queen’s Bench17, Halverson J found
that service providers do not have to adapt their facilities
to accommodate the needs of persons with disabilities. He
reasoned that if Parliament had wished a duty to accommodate
to exist they would have spelled it out in the legislation.18
Halverson J claimed that accommodations could run riot,
the theatre would have to remove all of the seats so Huck
would have complete freedom and such far-fetched notions
of captioning for the deaf would be required.19 Halverson J
looked to the dictionary meaning of discrimination finding
that Huck had been treated identical to other members of
the public.
Fortunately the case did not end there. Huck was successful
in the Court of Appeal. The majority of Hall and Vansize JJ
found a duty to accommodate.20 In response to the assertion
that Huck was treated the same as everyone else, they held
“… A physically reliant person does not in our opinion
acquire an equal opportunity to utilise facilities or services
that are of no use to him or her. Identical treatment does not
necessarily mean equal treatment.”21
Great Britain
The 1995 Disability Discrimination Act (GB) sets a primary
duty upon an employer to accommodate the needs of an
employee with disabilities.22 An employer discriminates
against an employee if he treats that employee less favourably
because of the disability and cannot justify the treatment.23
A failure to accommodate is evidence of discrimination.24
Before a respondent can demonstrate that its actions were
lawfully justifiable, they must have considered their duty to
accommodate under s6 of the Act.25
USA
Under the Americans with Disabilities Act (1990), it is
deemed to be discrimination if an employer fails to make
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified disabled applicant or
employee. A person is qualified if they can perform the
essential functions of the job with or without reasonable
accommodations.26 Examples are provided to demonstrate
the meaning of reasonable accommodations such as making
existing facilities accessible, job restructuring, acquisition
15 – December 2009
discrimination
or modification of equipment provision of interpreters and
modification testing procedures.27
Returning to Australia, the High Court of Australia in
Purvis v New South Wales [2003] HCA 62; 217 CLR 92 (case
to be discussed in the subsequent heading) has found that the
DDA has no express or implied duty to provide reasonable
accommodations.
Per Kirby and McHugh JJ28 at paragraph 104, “It is not
accurate, however, to say that s5(2) of the Act imposes
an obligation to provide accommodation. No matter how
important a particular accommodation may be for a disabled
person or disabled persons generally, failure to provide it is
not a breach of the Act per se…”
At paragraph 88 of their judgement, Kirby and McHugh JJ
supported Kiefel J’s interpretation of the meaning of s5(2) of
the DDA29, in the Humphries decision.
Per Gummow, Hayne and Heydon JJ at paragraph 203,
“…the Act (DDA Commonwealth 1992) does not explicitly
oblige persons to treat disabled persons differently from
others in the community. The Act does not, for example,
contain provisions equivalent to ss5 and 6 and ss28B and
28G of the 1995 UK Act which expressly oblige employers30
and educational authorities to make reasonable adjustments
to accommodate disabled persons.”
Gummow, Hayne and Heydon JJ interpreted the
Commonwealth DDA as catering for equal treatment rather
than a mechanism to obtain different treatment, substantive
equality or a duty to provide reasonable accommodations, as
found in other jurisdictions.31 The current amendments to the
DDA are a cause to rejoice for advocates in this area as the
differences created by a disability must be accommodated as
is the case in other jurisdictions.
(B) Behaviour linked to a disability being
included within the definition of the
disability
The definition section in the DDA, section 4(1), has the
following words inserted: “To avoid doubt, a disability that is
otherwise covered by this definition includes behaviour that
is a symptom or manifestation of the disability.”
This amendment redresses the problems created by the
High Court interpretation in Purvis v New South Wales [203]
HCA 62; 217 CLR 92. The case concerned Daniel Hoggan’s
suspensions and exclusion from high school. Daniel Hoggan
was 13 years of age at the time of the complaint. He resided
with his foster parents Mr and Mrs Purvis. At the age of five
or six months, Daniel sustained a brain injury. The brain
injury affected Daniel’s vision, created epilepsy as well as
an intellectual disability with behavioural problems. Daniel
has impulsive and disinherited acts. He does not recognise
the consequences of his actions. His behaviours include
hamming, rocking, offensive language, kicking or striking out.
Daniel becomes frustrated by his inability to communicate.
When he is frustrated, he may exhibit aggressive behaviour
that includes punching and kicking. Daniel was admitted to
South Grafton High School (SGHS) on 8 April 1997.32 He
was expelled on 3 December 1997 after a number of violent
outbursts against students, carers and teachers. Significant
steps were taken to prepare the school and Daniel for his
inclusion in an ordinary high school in February and March
1997. Daniel was suspended on a number of occasions and
did not return to SGHS after October 1997. A complaint was
made to the HREOC which was unable to be conciliated.
Graeme Innes acting as inquiry commissioner heard
this matter over 21 hearing days from 21 May 1999 to 10
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QLS Journal
November 1999. Commissioner Innes found in favour of
Daniel and his foster parents who brought the complaint on
behalf of Daniel. Commissioner Innes determined that the
violent behaviour of Daniel was so closely connected with
his disability that suspending and expelling Daniel for his
violent behaviour was direct discrimination on the ground of
his disability.33
In awarding $49,000 for the suspensions and expulsion,
Commissioner Innes determined that Daniel’s placement at
SGHS could have been handled differently. Teachers and
teachers’ aides were unaware of Daniel’s disabilities and the
attenuate behaviour linked to the disabilities. Experts could
have been contacted to provide assistance in dealing with
Daniel’s behaviour. The respondents appealed by way of
judicial review to the Federal Court and, on 29 August 2001,
Emmett J allowed the appeal. Emmett J drew a distinction
between the disability and the behaviour. He found that the
violent acts of behaviour were not a part of Daniel’s disability.
Emmett J then went on to find that a comparator for section
5(1) of the DDA is a person without Daniel’s disability but
also exhibiting the same violent acts of behaviour. Such a
student would also have been suspended and expelled. The
suspensions and expulsion were not on the ground of Daniel’s
disability but on the ground of his behaviour.34 At paragraph
38, Emmett stated “… it would have been possible for the
Parliament to define disability by relation to symptoms that
have a particular cause. For example, it would have been
possible to define disability as “disturbed behaviour that
results from a disorder illness or disease”. If that were the
approach, adapted particular behaviour would be a disability.
However, the drafting approach also leads to the conclusion
that behaviour is not a disability.”35
The matter was unsuccessfully appealed to the Full Federal
Court confirming the decision of the Federal Court. On 11
November 2003, the High Court by a five to two majority
dismissed Mr Purvis’s appeal. Gummow, Hayne and Heydon
JJ, with whom Callinan agreed, form the majority judgement
dealing with behaviour forming a part of disability.36 Their
reasoning was that it was important to look at all the
circumstances of the case to determine if the characteristics
(behaviour) of the disability should be separated and
included with the comparator. They did so in this case as the
impugned behaviour included assaults and other criminal
behaviour. Kirby and McHugh JJ took an opposite approach.
They said that the objects of the DDA would be frustrated if
the functional limitations of a disability were not included
in the definition of disability.37 They stated that Daniel’s
behaviours were unintentional and part of his disability.
Persons with visual disabilities and amputees would lose the
benefit of this legislation. They gave an example of a person
with dyslexia who could not spell but with an inexpensive
spell-check device would be able to work effectively. The
comparator should not be with a person without dyslexia
who could not spell as both job applicants would likely be
rejected. The comparator should be with an applicant without
dyslexia who can spell.38 Similarly, if a worker is dismissed
after sustaining an epileptic seizure, the comparator should
be with a worker who does not have epilepsy and has not lost
consciousness.
It is submitted that the High Court approach defeats the
objectives of the DDA; it lacks certainty as to when behaviour
will be part of a disability and protection to this legislation
can be gained elsewhere in the legislation. For example,
the defence of unjustifiable hardship now has universal
application with every contravention of the DDA. Following
the Purvis decision, it has been very difficult to bring a direct
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discrimination
discrimination complaint for a child that has been suspended
due to behaviours with Autism. These amendments will
remove this barrier.
(C) Change in the onus of proof of
“reasonableness” to the respondent in
the definition of indirect discrimination
Indirect discrimination under the DDA in section 6 formerly
required an imposition of a term or condition with which (a) a
substantially higher proportion of persons without the disability
comply, (b) which is not reasonable and (c) with which the
aggrieved person is not able to comply.39 It has been held that
the complainant bears the onus of proving each element of
indirect discrimination for section 6, including that the term
or condition is not reasonable.40 Reasonableness has similar
considerations to the exemption or defence of “unjustifiable
hardship” contained in section 11 of the DDA.41 It is a far
easier hurdle for a complainant to be relieved of the burden
of establishing that a term is unreasonable than to have to
prove this as an element of indirect discrimination. Other
jurisdictions such as the Queensland Anti-Discrimination Act
(ADA) place the onus of proving a term is reasonable upon a
respondent. Section 205 of the Queensland (ADA) provides,
“In a case involving an allegation of indirect discrimination,
the respondent must prove, on the balance of probabilities,
that a term complained of is reasonable.”
The celebrated case of Cocks v State of Queensland
[1994] QADT 3(2 September 1994) is an example where a
Commonwealth DDA complaint was changed to one under
the Queensland ADA primarily for the respondent to bear
the onus of proof. The facts of that case are well-known.
The Brisbane Convention and Exhibition Centre was under
construction. It was to be and is now a magnificent structure
of approximately 400m x 100m. The front entrance was on
the first level accessible by 27 large ceremonial steps. The
nearest lift entrance closest to the stairs was 43 metres around
Glenelg Street. An indirect discrimination complaint was
brought by this service claiming that the State of Queensland
had imposed a term that to enter the front entrance of the
Convention Centre one must use the steps.42 This complaint
had only been attempted once before, unsuccessfully, the
previous year in a large shopping centre in Wollongong.43 That
case was in New South Wales under equivalent state antidiscrimination legislation, which placed the onus of proving
a term was unreasonable upon the complainant; they could
not discharge their onus in that case and were unsuccessful.44
All of the requirements of the Building Code of Australia had
been complied with by the State of Queensland. The case
demonstrated that anti-discrimination legislation could have
forceful outcomes as a lift in excess of $300,000 was ordered
to be installed. This case became the impetus for an access to
premises standard under the DDA, which is currently under
consideration by Federal Parliament. The case was brought
by a solicitor from a community legal centre with a visual
disability, a pro bono barrister and legislation that required
the respondent to establish the reasonableness of the term for
indirect discrimination. This case was originally lodged under
the DDA, but was changed to a Queensland ADA complaint
to obtain the benefit of section 205 of the Queensland ADA.
The 5 August 2009 amendment to the DDA inserts a
new sub-paragraph (4) to section 6 (definition of “indirect
discrimination”). The burden of proving the reasonableness
of the term will now be placed upon the person who asserts
or relies on the term (respondent). It is generally only the
respondent who is in the best evidentiary position to prove
the reasonableness of a term.
(D) Removal of the proportionality test
to one of disadvantage in the definition of
“indirect discrimination” in section 6 of
the DDA
A new drafting of section 6 of the DDA has, instead of
requiring the complainant to establish that a higher proportion
of persons without the disability to which the complainant is
a member of a class can meet the term, has been changed to
in the new section 6(1)(c) “the requirement or condition has,
or is likely to have, the effect of disadvantaging persons with
the disability.”45
The complainant faces difficult evidentiary requirements
in establishing the proportionality comparisons as has been
judicially interpreted. The greatest difficulty is for the
complainant to establish the proportion of persons in his or
her own group who cannot comply with a term.
The case of The State of Queensland (Queensland Health)
v Che Forest [2008] FCAFC 96 (6 June 2008) is one such
example.46 Che Forest was a person who resided in the Cairns
area. He has an unusual mental illness characterised as an
anti-social personality disorder. He exhibits erratic behaviour
making it difficult for him to communicate and appear in
public. Mr Forest has trained dogs (Buddy and Knuckles)
to accompany him in public to provide confidence. Soon Mr
Forest travelled everywhere in the accompaniment of his
assistance dogs.47 Mr Forest was refused entry into the Cairns
Base Hospital for medical treatment and the Smithfield
Community Health Centre (for dental treatment) in the
accompaniment of Buddy and Knuckles. The trial judge
found indirect discrimination to be established where a term
was imposed that the hospital and clinic had a complete
discretion as to allow entry of a person with an assistance
animal. The trial judge further held that a commonsense
approach should be taken when identifying whether Mr
Forest could meet the term and whether a substantially higher
proportion of people without Mr Forest’s disability are more
able to comply with the requirement or condition imposed
(the proportionality test).48 This was rejected on appeal by the
Full Federal Court.49 The accepted procedure was to identify a
pool (such as persons in the Cairns area who could utilise the
particular health service). Second, to formulate a base group
and identify what proportion of the base group can meet the
term (in this case users of the facilities who do not have a
mental illness similar to Mr Forest, such a proportion would
be 100 percent who would not need an assistance animal).
Third, it is necessary to establish a comparator group, work
out the percentage of persons in that group who cannot meet
the term and compare the proportions. “A proportion must be
a proportion of something”.50 The majority of the Full Federal
Court said that the trial judge did not identify the base group,
failed to compare proportions between two groups; there was
no evidence of person’s with or without Mr Forest’s disability
who could not comply with the term.51
Mr Forest is in an invidious position. A mental illness is
private, personal and confidential. Mr Forest would be hardplaced to ascertain other persons within his comparator
grouping who have a mental illness and who would benefit
by an assistance animal. He could not ask other persons or
the hospitals as such information would not be kept or if it
was it would be protected by privacy concerns.
A second example of the evidentiary difficulties
of establishing a comparator group and making the
proportionality comparisons was recently demonstrated in
the case of Ondrich v Kookaburra Park Eco-Village [2009]
FMCA 260 (1 April 2009).52 Mrs Ondrich has a mental
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discrimination
illness. She resided in an Eco-Village with several acre
residential allotments and a body corporate. Mrs Ondrich
obtained a small fox terrier cross named Punta to alleviate
the effects of her mental illness (depression, anxiety and
Asperger’s Syndrome). By-law 12 of the body corporate bylaws prohibited the keeping of domestic dogs or cats.53 It was
held that indirect discrimination for the purposes of section
6 of the DDA could not be established as Mrs Ondrich had
not specified the number of persons in the comparator group
to be a substantially higher proportion of the base group who
could not meet the term (of not keeping a domestic cat or dog
on the lot holder’s entitlement or common property).54 It was
accepted that the pool of persons would be the residents of
the Eco-Village. The base group is those residents without
a mental illness. 100 percent of those persons could meet
the term. The difficulty is in finding the proportion of the
comparator group who can or cannot meet the term. Bennett
FM found that the comparator group consisted of not only
Mrs Ondrich but her son as well with a similar disability.55
A similar problem exists for the complainant as with Che
Forest’s case; the mental illness is a very private matter
and other Eco-Village residents are unlikely to divulge their
mental disabilities and whether they would benefit by an
assistance animal in order to make the comparison.
These two cases illustrate the proposition that confronts
a complainant in making the previous comparisons. The
removal of the proportionality test to one of disadvantage will
be of significant benefit.
(E) Creation of a new s8 of the DDA
majority of Spender and Emmett JJ in the Che Forest Full
Federal Court appeal to require not only less favourable
treatment because an aggrieved person is accompanied by
an assistance animal but the aggrieved person must have also
been treated less favourably because of his or her disability.56
This would make it very difficult to succeed with a DDA
section 9 complaint in most circumstances as the reason for
the less favourable treatment is likely to be the accompanying
animal and not the fact of disability.57
The new section 8 of the DDA is entitled, ‘Discrimination in
relation to carers, assistants, assistance animals and disability
aids’. Subsection 2(a) goes on to provide “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…” This is a very welcome change and will overcome the
problems mentioned above by ensuring that less favourable
treatment upon the basis of being accompanied by a guide
dog or assistance animal will be deemed to be less favourable
treatment because of a disability. The above mentioned
changes are very welcome. They resolve difficulties with the
DDA through judicial interpretation over a number of years.
With these changes, the DDA will become a more beneficial
statute in the future.u
Dr Larry Laikind is a solicitor with the
Welfare Rights Centre, Brisbane.
The former section 9 of the DDA was entitled, ‘Disability
Discrimination – guide dogs, hearing assistance dogs and
trained animals’. This section had been interpreted by the
Notes
1 Disability Discrimination and other Human Rights Legislation Amendment Bill 2008.
2 Disability Discrimination Amendment Bill 2008 (amendment 17 sections 5 to 9 of the DDA).
3 Disability Discrimination Amendment Bill 2008 amendment 13.
4 Disability Discrimination Amendment Bill 2008 (amendment 17 changes to sections 5 to 9
DDA).
5 ‘An Examination of the Defence of Undue Hardship in Disability Discrimination legislation in the
USA, Canada, Australia and Great Britain’ Lawrence Alan Laikind, Oxford University BCL thesis
pp1-2) 1997.
6 Doyle, B, ‘Disability Discrimination and Equal Opportunities’ (Maxwell, London, 1995) 220-221.
7 Disability Discrimination Act 1992 section 3 Act no.135 of 1992 as amended.
8 Kiefel J, page 12 of 14 Commonwealth of Australia v Nerilie Ann Humphries and Ors [1998]
FCA 1031 (25 August 1998).
9 Purvis v New South Wales [2003] HCA 62; 217 CLR 92 (11 November 2003).
10 Kiefel J at page 3 Commonwealth of Australia v Nerilie Ann Humphries and Ors [1998] FCA
1031 (25 August 1998).
11 Kiefel J page 3 and 12-14 Commonwealth of Australia v Nerilie Ann Humphries and Ors
[1998] FCA 1031 (25 August 1998).
12 Rd: Saskatchewan Human Rights Commission v Canadian Odeon Theatres Ltd (1985) 18
DLR (4th) 93 ed.
13 Kiefel J at 12 Commonwealth of Australia v Nerilie Ann Humphries and Ors [1998] FCA 1031
14 Ibid Kiefel J at 13-14.
15 (1981) 2 CHRR D-521.
16 Ibid.
17 (1982) 3 CHRR D-985.
18 Ibid 987.
19 Ibid 988.
20 (1985) 6 CHRR D-282.
21 Ibid D-2689.
22 Disability Discrimination Act (Great Britain) s6(1).
23 Ibid s5(1) a and b.
24 Ibid s6(12).
25 Ibid s5(2).
26 Americans with Disabilities Act 1990 s12112(b) (5) (A) and (8).
27 Ibid s1211(9).
28 Purvis v New South Wales [2003] HCA 62; 217 CLR 92 Kirby and McHugh JJ at para 104.
29 Ibid paragraph 88.
30 Ibid paragraph 203.
31 Ibid Gummow, Hayne and Heydon JJ at 201-204.
18 – December 2009
32 Ibid Callinan J paragraph 274.
33 Ibid Kirby and McHugh paragraph 48.
34 State of NSW v Human Right and Equal Opportunity Commission [2001] FCA 1199 (29
August 2001).
35 Ibid paragraph 38.
36 Ibid Per Gummow, Hayne and Heydon JJ at 223-227 and Callinan J at 273.
37 Ibid Kirby and McHugh JJ at paragraph 130.
38 Ibid.
39 Disability Discrimination Act (Cth 1992) s6 as amended without 5 August 2009 amendments.
40 Waters v Public Transport Corporation [1991]HCA 49 173 CLR 349 (3 December 1991).
41 Atkinson P at page 9 Cocks v State of Queensland [1994] QADT 3 (2 September 1994).
42 Cocks v State of Queensland [1994] QADT 3 (2 September 1994).
43 Woods v Wollongong City Council and Ors (1993) EOC 92-486.
44 Ibid.
45 s6(1) and s6(2) Disability Discrimination and other Human Rights Legislation Amendment Bill
2008.
46 Laikind L, “Assistance Animals: Has the Full Federal Court removed the Rights on those who
rely on them?” appearing in ‘Proctor’ October 2008 Vol 28 no 9 pp 21-23.
47 Forest v Queensland Health [2007] FCA 936 per Collier J paragraphs 11-20.
48 Ibid per Collier J paragraphs 65-85.
49 Per Emmett and Spender JJ at paragraph 103, The State of Queensland (Queensland
Health) v Che Forest [2008] FCAFC 96 (6 June 2008).
50 Per Dawson J at paragraph 17, Australian Iron and Steel Pty Ltd v Banovic [1989] HCA
56168 CLR 165.
51 Emmett and Spender JJ at paragraph 103 Ibid.
52 Laikind L, “More Concerns on the Assistance Animal provisions of the DDA” in ‘Proctor’ July
2009 Vol 29 No 6 pp 31-33.
53 Bennett FM at paragraph 3-1 – Ondrich v Kookaburra Park Eco-Village [2009] FMCA 260 (1
April 2009).
54 Ibid per Bennet FM at paragraphs 45-52.
55 Ibid.
56 Per Spender and Emmett JJ at paragraph 115 of The State of Queensland (Queensland
Health) v Che Forest [2008] FCAFC96 (6 June 2008).
57 See comments from ‘Proctor’ article appearing in footnote 46 supra.