Case: Haar v Maldon Nominees Pty Ltd (2001) 184 ALR 83
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. 144 I have also considered whether s 23(1)(b) is relevant in light of the written communications between the applicant and Cairns Base Hospital and Smithfield Community Health Centre, where the hospital and the centre informed the applicant of the respondent's policy of not allowing animals (other than guide dogs) into the hospital without a prior assessment by the respondent. Although the respondent ultimately refused to allow the applicant access to its premises with his dogs so as to enliven s 23(1)(a) , in my view s 23(1)(b) is also relevant because in discriminating against the applicant, the respondent had imposed terms or conditions upon which it was prepared to allow the applicant access to its premises. These facts may be compared with, and in my view are analogous to, Haar 184 ALR 83 where a person with a guide dog at a McDonald's restaurant was told that the next time she visited with the dog she should sit outside the "party" area of the restaurant as that area was frequented by children. McInnis FM considered that s 23(1)(b) applied, as the restaurant, in discriminating against the applicant in that case, had imposed conditions on which it was prepared to allow the applicant access to its premises in the company of her guide dog. 145 In relation to the application of s 23(1)(a) and (b) however, I note the oral submission of Mr Murdoch that the case is actually "about access to services " and not about access to premises . Following consideration of this issue however, I have formed the view that the issue of access to premises, and accordingly s 23(1)(a) and (b), is relevant. In this regard, I make the following observations. 146 First, the events which occurred at the premises of the respondent fall within the ordinary meaning of refusal of "access to premises". The applicant attended the premises of the respondent, and on the relevant occasions was requested to leave. At Cairns Base Hospital on 16 November 2004 he was escorted from the premises by security guards, and on three occasions at Smithfield Community Health Centre security guards were in place to ensure that the applicant did not enter the premises with his dogs. While the applicant may have attended the premises of the respondent, particularly Smithfield Community Health Centre, with a view to obtaining services, it is clear that the applicant was refused access to the premises because of the presence of his dog. He had received communications from the respondent indicating that it was prepared to allow him access to the premises with his dogs, but on the respondent's terms. To ignore the natural application of s 23(1)(a) and (b) to the facts of this case would be to do an injustice to the applicant. 147 Second, it is clear that the premises of the respondent in question were premises "that the public or a section of the public is entitled or allowed to enter or use" as contemplated by s 23(1)(a) and (b). The premises in question were public reception areas of Cairns Base Hospital and the Smithfield Community Health Centre, which were public areas of medical facilities provided to the public. 148 Third, I note the decision of Stone J in Grovenor [2000] FCA 1574 and her Honour's application of s 23(1)(a) in similar facts where denial of entry to a furniture shop by the proprietor was held to constitute a breach of s 23(1)(a) , and consider the facts of that case sufficiently analogous to this case to take the view that s 23(1)(a) is also applicable to the facts before me. I also note the decision of McInnis FM in Haar 184 ALR 83, and consider the reasoning of his Honour in that case correct.