mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cooper v Human Rights &amp; Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481
Outcome: cited
The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights &amp; Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481). 140 Section 23(1)(c) DD Act - that is, the means of access to the premises - was in issue in Cooper [1999] FCA 180 ; 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. 150 Finally, I note the very limited defence (or ground of exculpation as so termed by Madgwick J in Cooper [1999] FCA 180 ; 93 FCR 481 and Drummond J in Sluggett [2002] FCA 987 ; 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. 157 A number of general principles have developed in relation to the concept of "unjustifiable hardship" within the terms of the DD Act . These principles include the following: &#8226; the issue whether the alleged discriminator is potentially subject to unjustifiable hardship arises only once the applicant establishes that the alleged discriminator has engaged in unlawful conduct: Cooper 93 FCR at 491-492, Sluggett 123 FCR at 568, Daglian [2003] FCA at [113]-[114] &#8226; the respondent bears the onus of showing unjustifiable hardship within the meaning of s 24(2): Cooper 93 FCR at 492, Sluggett 123 FCR at 568 &#8226; the concept of "unjustifiable" hardship suggests that some hardship is justifiable, and requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors: Hills Grammar School v Human Rights &amp; Equal Opportunity Commission [2000] FCA 658 ; (2000) 100 FCR 306 at [48] .
Case: Daghlian v Australian Postal Corporation [2003] FCA 759
Outcome: cited
The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights &amp; Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481).
Case: Fetherston v Peninsula Health [2004] FCA 485
Outcome: cited
The concept of "requirement or condition" within the meaning of s 6 or its State equivalents has been considered in a number of cases. Relevant principles include: &#8226; it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled" the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 ; (2002) 123 FCR 561 at 577, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81] &#8226; whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia , use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394 per, Sackville and Stone JJ in Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577 &#8226; a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360, Clarke 138 FCR at 143 &#8226; the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143 &#8226; the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361, Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361: "...it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands". &#8226; the expression "requirement or condition" should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394, Clarke 138 FCR at 143.
Case: Green v Housing Authority of Clackamas County 994 F Supp 1253 (D Or 1998)
Outcome: cited
Some support for an interpretation which recognises the breadth of the statute can be found in two US cases where similarly drafted legislation was considered: &#8226; In Bronk v Ineichen 54 F 3d 425 (7th Cir 1995) two profoundly deaf tenants complained that they had been the subject of discrimination by their landlord in relation to their dog which they claimed as a hearing dog. In acknowledging that it was necessary to establish as a minimum that the disabled persons' quality of life would be enhanced because the effect of their disability would be ameliorated by the accommodation of the animal (at 429), the United States Court of Appeals Seventh Circuit held that lack of formal schooling did not mean that the dog did not have enough skills to actually aid in the daily functions of a deaf person (at 430, 431). The relevant legislation in that case was Wis Stat Ann SS101.22 (4)(bm) which related, inter alia , to "an animal that is specially trained to lead or assist the individual with impaired vision, hearing or mobility...". &#8226; In Green v Housing Authority of Clackamas County 994 F Supp 1253 (D Or 1998) where the landlord argued that the dog was not an appropriate accommodation for a deaf person because the plaintiffs were unable to produce any "verification" that the dog was a "certified" hearing assistance trained animal, the United States District Court found in favour of the plaintiff on grounds including that there was no relevant certification process for hearing dogs and no requirement as to the amount or type of training a service animal must undergo (at 1255-1256). The relevant legislation in that case was Or Rev Stat SS346,690 which prohibited a landlord from refusing to rent a dwelling unit to a physically impaired person on the basis of the use or possession of an assistance animal.
Case: Grovenor v Eldridge [2000] FCA 1574
Outcome: considered
The applicant, respondent and the Commissioner each submitted that s 9 DD Act is a stand-alone provision, not referable to s 5 or s 6 DD Act . This is consistent with the decision of Stone J in Grovenor v Eldridge [2000] FCA 1574 where her Honour considered the issue of discrimination against a person with a guide dog in the context of s 9 alone. I also note the decision of McInnis FM in Haar v Maldon Nominees Pty Ltd (2001) 184 ALR 83 where his Honour adopted the same approach. 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. 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.
Case: Hills Grammar School v Human Rights &amp; Equal Opportunity Commission [2000] FCA 658 ; (2000) 100 FCR 306
Outcome: cited
A number of general principles have developed in relation to the concept of "unjustifiable hardship" within the terms of the DD Act . These principles include the following: &#8226; the issue whether the alleged discriminator is potentially subject to unjustifiable hardship arises only once the applicant establishes that the alleged discriminator has engaged in unlawful conduct: Cooper 93 FCR at 491-492, Sluggett 123 FCR at 568, Daglian [2003] FCA at [113]-[114] &#8226; the respondent bears the onus of showing unjustifiable hardship within the meaning of s 24(2): Cooper 93 FCR at 492, Sluggett 123 FCR at 568 &#8226; the concept of "unjustifiable" hardship suggests that some hardship is justifiable, and requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors: Hills Grammar School v Human Rights &amp; Equal Opportunity Commission [2000] FCA 658 ; (2000) 100 FCR 306 at [48] .
Case: Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562
Outcome: cited
The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights &amp; Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481).
Case: Matthews v Commissioner of Police [2005] QSC 122
Outcome: cited
Both the applicant and the Commissioner have submitted that s 9(1)(f) DD Act should be given its ordinary and natural meaning, and the Court need merely be satisfied that the animal has undergone a process of discipline and instruction to learn specific skills that enable it to assist a person to alleviate the effect of his or her disability. The respondent has submitted as an alternative that, if the dogs have been trained by the applicant, it is questionable whether such "training" satisfies the meaning in s 9(1)(f) DD Act . Further, the respondent submits that "trained" in the context of s 9(1)(f) carries with it the requirement that the animals are adequately trained to be allowed public access. The respondent refers to comments of McMurdo J in Matthews v Commissioner of Police [2005] QSC 122 where his Honour noted that it was not plain that the dogs in question in that case had been trained "in the sense which is relevant for the operation of section 9". 92 In my view however there is nothing in the DD Act , in particular s 9(1)(f) , which justifies an interpretation of the word "trained" beyond its ordinary meaning as found in the Macquarie Dictionary. I agree with the Commissioner that there is no requirement in s 9(1)(f) , elsewhere in the DD Act , or in the regulations made pursuant to the DD Act , either explicitly or by implication, that an animal: 1. Be trained by a particular type of trainer or organisation; 2. Undertake a particular amount of training; or 3. Be accredited by or registered with a particular agency or organisation. 97 In regard to comments of McMurdo J in Matthews (2005) QSC 122 , in that case it was not clear that the applicant suffered a disability within the meaning of the DD Act ; further there appeared to be no evidence before his Honour that the relevant dogs in that case were trained at all. As his Honour said in that case: "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." 98 Accordingly, I do not find submissions with respect to this case helpful.
Case: Sheehan v Tin Can Bay Country Club [2002] FMCA 95
Outcome: cited
This view is consistent with the decision of Raphael FM in Sheehan v Tin Can Bay Country Club [2002] FMCA 95 , and to that extent I disagree with Mr Murdoch's submission that that case was incorrectly decided. 94 Further, I accept the submissions of the applicant and the Commissioner that there is no pre-requisite as to the type of animals that can be assistance animals for the purposes of s 9(1)(f). I do not read any limitation to the terms of s 9(1)(f) from paras (d) and (e) notwithstanding that those paragraphs were limited to dogs. Further, while I accept the evidence of Ms Sara Walker of Assistance Dogs Australia that Labradors and Golden Retrievers are trained as assistance dogs because of the social acceptability of the breeds and their extremely good nature, and that it is very uncommon for other breeds of dogs to be trained as assistance dogs (affidavit of Sara Walker sworn 9 August 2006 paras 7-8), there is no limitation in the Act as to the types of dogs which can be assistance animals. 95 The broad terms of s 9(1)(f) DD Act can be contrasted with, for example, the Guide Dogs Act 1972 (Qld) which defines "guide dog" for the purposes of that statute in the following terms: &#8226; "guide dog" means a dog trained at an approved institution and used as a guide by a blind person or as an aid by a deaf person (s 3 Guide Dogs Act ) &#8226; "approved institution" is defined by s 3 Guide Dogs Act to mean an institution that: (a) trains dogs as guides for blind persons or aids for deaf persons; and (b) is declared under a regulation to be an approved institution for this Act. &#8226; an "approved institution" for the purposes of s 3 Guide Dogs Act is defined by the Guide Dogs Regulations 1997 (Qld) as: &#8226; Guide Dog Association of New South Wales and ACT, &#8226; Guide Dogs for the Blind Association of Queensland, &#8226; Lions Hearing Dogs Incorporated, &#8226; Royal Guide Dogs Associations of Australia, &#8226; The Guide Dog Owners' and Friends' Association, and &#8226; institutions established outside Australia that are members of The International Federation of Guide Dog Schools for the Blind.
Case: S157/2002 v Commonwealth (2003) 211 CLR 476
Outcome: cited
The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. An error in the factual findings of the Tribunal, or the weighing of facts by the Tribunal, is not a jurisdictional error. 24 In this case there is considerable overlap between the appellant's grounds of appeal and submissions in relation to those grounds of appeal. After considering the grounds of appeal and the submissions of both parties I have formed the view that the appellant's grounds of appeal are without substance for the following reasons: 25 Section 359A specifically provides for procedural fairness in the framework of the Act as follows: 359A Information and invitation given in writing by Tribunal (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. ... (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information.
Case: Tran v Minister for Immigration &amp; Anor [2007] FMCA 1929
Outcome: related
As far as the second ground of appeal relates to real estate valuations, the learned Federal Magistrate found in Tran [2007] FMCA 1929 at [33] that it was clear from the reasons of the Tribunal that it did take into account the property valuations provided by the appellant. The weight given to those valuations however is an issue for the Tribunal ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24). 38 The appellant raised issue with the Tribunal's decision relating to the value of the property at 93-95 Nguyen Cu Trinh Street. It appears from the evidence that the appellant held the property at 95 Nguyen Cu Trinh Street at the time of the application, but that the adjoining building No 93 was acquired after the application. The appellant's evidence was that the property at No 95 was worth $200,000 but that the combined worth of the two properties was $1,207,242. The Federal Magistrate noted that the Tribunal had divided the then value of 93-95 Nguyen Cu Trinh Street in half for the purposes of its consideration of the appellant's case. His Honour found that, while the value attributed to the properties by the Tribunal for the purposes of the application may have been decided arbitrarily, the Tribunal clearly decided the case in favour of the appellant. This is because No 93 had been acquired after the commencement of the application accordingly the Tribunal strictly did not need to take the value of that property into account. The Federal Magistrate found that the decision of the Tribunal in relation to these properties had no effect on the decision adverse to the appellant ( Tran [2007] FMCA 1929 at [33]). 41 This ground of appeal overlaps with the second ground in relation to the language ability of the appellant. Burnett FM said at [14]: However, the Applicant's interpretation of the Tribunal's decision on this point is in my view incorrect. It is clear from the Tribunal's decision that its reference to the IELTS test was merely to indicate its awareness of an alternative form of assessment available to it and the inferences open on the presentation of evidence of that kind. In the result however the Tribunal only had available before it the Applicant's evidence comprising the advanced diplomas. (Tran v Minister for Immigration &amp; Anor [2007] FMCA 1929) 42 In my view, it cannot be inferred from the fact that the Tribunal mentioned the absence of an IELTS test that the Tribunal had concluded the appellant had only "functional English" because of the absence of an IELTS test. The Tribunal merely noted that the appellant did not present results of an IELTS test. The Tribunal mentioned the IELTS test because it is a consideration for which there is provision under the policy. 43 This ground of appeal is not substantiated.