Kos v Deltapath Pty Ltd[2024] QCAT 107

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   During the height of the pandemic, those who operated the Mitre 10 hardware store in Maleny decided that customers who wished to enter the store building were required to wear a face mask.  The decision I am to make in this complaint mainly turns on whether the complainant Andrew Kos had difficulty because of an impairment in complying with that requirement.  But it also turns on whether the requirement was reasonable, bearing in mind that there would be some customers who could not wear a mask due to an impairment. 
2. [2]
   Mr Kos says that he was told to leave the store building on 14 July 2021 because he was not wearing a face mask.  He says he was exempt from wearing a mask for medical reasons arising from an impairment and therefore he was discriminated against contrary to the Anti-Discrimination Act 1991 (Qld) (ADA).  In accordance with the ADA he made his complaint in the first instance to the Queensland Human Rights Commission (QHRC) but it was not resolved by conciliation and he asked for the complaint to be referred to the tribunal.
3. [3]
   The respondent to the complaint is Deltapath Pty Ltd which operates the store.
4. [4]
   The matter was listed before me to decide on the papers.  But I considered that I needed some clarification of the submitted evidence and the matter was relisted for an oral hearing.  Mr Kos attended the hearing by telephone and Mr Brown, a director of Deltapath, represented the company, with the assistance of Joanne Murphy.

The nature of the complaint 

5. [5]
   On 2 February 2022 the tribunal directed Mr Kos to indicate whether his complaint was one of direct or indirect discrimination.  In his contentions he clearly limited his complaint to indirect discrimination. 
6. [6]
   Indirect discrimination is defined in section 11 of the ADA.  It reads:

11  Meaning of indirect discrimination

1.  Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

1.  with which a person with an attribute does not or is not able to comply; and

2.  with which a higher proportion of people without the attribute comply or are able to comply; and

3.  that is not reasonable.

2.  Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

1.  the consequences of failure to comply with the term; and

2.  the cost of alternative terms; and

3.  the financial circumstances of the person who imposes, or proposes to impose, the term.

3.  It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

4.  In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work.  This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply.  The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

7. [7]
   If circumstances are within section 11, this does not automatically make them actionable.  They need also to be an ‘area’ of the ADA which makes it a contravention of the ADA.  Here the contravention is said to be in the ‘goods and services’ area of the ADA which provides in section 46:

46  Discrimination in goods and services area

1. A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person –

1. by failing to supply the goods or services; or

2. in the terms on which the goods or services are supplied; or

3. in the way in which goods or services are supplied; or

4. by treating the other person unfavourably in any way in connection with the supply of goods or services. 

2. not reproduced

8. [8]
   Section 46 clearly applies to the complaint made by Mr Kos if he has been subjected to indirect discrimination under section 11.
9. [9]
   Mr Kos has the burden of proof to show that a ‘term’ [as widely defined in section 11(4)] was imposed by Deltapath, and that he with his impairment did not or was not able to comply with it, and that a higher proportion of people without the impairment did comply or were able to comply with it.  To succeed in the defence that the term was reasonable, Deltapath has the burden of proof to show this.^[1] 

Factual findings

10. [10]
    Slightly different accounts are given by the parties as to what happened on the day in question.  Mr Kos says he attended the store at 12.20pm on 14 July 2021 with the intention of going to the nursery at the rear to browse for plants and he was also there to drop off a gas bottle and pay for re-gassing. 
11. [11]
    He says that he could have reached the nursery along the side but he entered the store building because he needed to leave his gas bottle.
12. [12]
    He says that at the entrance to the store he was told to ‘get out’ because he was not wearing a mask.  The staff member referred him to the sign outside the store window.  Mr Kos says that he tried to explain the law of discrimination to staff to no avail.
13. [13]
    In his complaint to QHRC Mr Kos provided a copy of the sign to which he was referred.  It read:

Wearing of Face Masks

The Queensland Government has mandated the wearing of face masks from 1.00am on 29^th June to 12.59pm on 16^th July 2021.

It is a condition of entry to this store that a face mask be WORN.

We take the health of our Staff and Customers seriously so if you don’t have a mask we are happy to provide you with one.

If you have a medical condition preventing you from wearing a mask or just elect not to wear one please notify our staff and we will be happy to serve you outside of the store.

Thank you

14. [14]
    The store building is enclosed by a roof and walls.  At the front there is a sliding glass door which can be closed and at the rear there is a single roller door which can be pulled down.  At the rear of the store building there is a garden centre including a nursery area without a roof and an adjacent area with a roof but open at the sides.  An open air gas bottle filling area is in an adjacent yard.  It is possible to reach the garden centre at the rear of the store without going into the store building because there is a public laneway at the side of the store building with an entrance into the garden centre. 
15. [15]
    The notice that Mr Kos saw was placed at the entrance to the store building at the front and there was a copy of it at the entrance to the store building at the back, where it was possible to enter the store building from the garden centre.
16. [16]
    Mr Brown says that the strict mask wearing rule only applied to the store building and so there was no need for Mr Kos to wear a mask if all he wanted to do was to have his gas bottle filled and visit the garden centre.  On the day in question the member of staff did not simply direct Mr Kos to the separate entrance to the garden centre at the rear and to the gas bottle area bearing in mind he was not wearing a mask.  The explanation for this is that Mr Kos did not inform the staff that all he wanted to do was to browse plants and have a gas bottle refilled.^[2]
17. [17]
    Although it can be seen from the complaint and from his submissions that Mr Kos was originally of the belief that the face mask requirement was applied both to the store building and to the open areas such as the nursery and the yard dealing with gas bottles, in the hearing Mr Kos seemed to accept what Mr Brown was saying, that the mask requirement only applied to the store building.  I accept Mr Brown’s evidence that the requirement was limited to the store building.  This is shown by the positioning of the signs and because they explained that people could be served outside if not wearing a mask.
18. [18]
    There are differences in the evidence about the nature of the conversation between staff and Mr Kos.  Mr Kos says that he was spoken to in a disrespectful and degrading manner.  But Mr Brown says he was politely asked several times to step outside the store, but that he initially refused to do so causing a high level of anxiety amongst staff and other customers.  I do not need to resolve these differences, because Mr Kos has not succeeded in this complaint and so I do not need to consider remedy.  

The term imposed on customers generally

19. [19]
    As can be seen from the definition of indirect discrimination in section 11 of the ADA set out above, such discrimination can only happen if a ‘term’ was imposed, or proposed to be imposed.  Normally the term relied on can be identified from the complainant’s contentions as directed by the tribunal, but Mr Kos did not identify the term in his contentions.  Instead it is possible to see from the complaint to QHRC that the term complained of is:

on 14 July 2021 people wishing to enter the store were required to wear a mask

20. [20]
    As was seen above however, there was no mask requirement for the areas of the store which were not an indoor space, that is the garden centre, nursery and the yard area for gas bottles.  As mentioned above, the requirement to wear a mask was limited to the store building.  So the term which I find was imposed was:

on 14 July 2021 people wishing to enter the store building were required to wear a mask

21. [21]
    In his evidence and submissions Mr Kos also complains about people not wearing masks having to wait for service outside the store but he does not seem to rely on this as a ‘term imposed’, but merely a consequence of the mask wearing requirement and therefore something making the mask wearing requirement unreasonable.  Had he relied on this as a ‘term imposed’ then since it is not mentioned in his complaint to QHRC it seems to me that the complaint would need to be amended, which has not happened.^[3]

Whether Mr Kos has an impairment

22. [22]
    It is a prerequisite to success in this complaint that Mr Kos at the relevant time had an impairment.
23. [23]
    ‘Impairment’ is widely defined in the schedule to the ADA.  One of the definitions is

a condition that impairs a person’s thought processes, emotions or judgment or that results in disturbed behaviour

24. [24]
    Mr Kos relies on a medical certificate dated 27 April 2022 from a doctor in a clinic in Maleny stating:

Mr Andrew Kos has been managed in this medical practice since 07/06/2021 with mental health condition including chronic anxiety and agoraphobia.

This letter has been completed with Mr Andrew Kos’s consent.

25. [25]
    Some people will suffer from chronic anxiety and agoraphobia to such an extent that it impairs their thought processes, emotions or judgment or that results in disturbed behaviour, but some will not.  Mr Kos explained when giving evidence the difficulties that the conditions caused him, and I am satisfied that they amounted to an impairment on 14 July 2021 as defined in the ADA.

Whether Mr Kos did not or was not able to comply with the imposed term

26. [26]
    Having shown that he had an impairment at the time in question, under section 11(1)(a) of the ADA in order to succeed in this complaint Mr Kos needs to prove that:

(Deltapath imposed a term)

(a) with which a person with an attribute does not or is not able to comply

Meaning of does not or is not able to comply (with the term)

27. [27]
    The correct understanding of the words ‘does not or is not able to comply’ is an important feature of this case.
28. [28]
    Mr Kos believes that because (i) he had an impairment and (ii) he did not comply with the requirement to wear a mask when he entered the store building, it is satisfied.
29. [29]
    He said this in an early statement to the tribunal (referring to the reason why he did not comply with the mask wearing requirement):^[4]

I was asked to leave the store by a Mitre 10 Maleny staff member because I did not have a mask on due to my impairment.  So on the basis of that attribute under the Act, Mitre 10 Maleny did impose an order which I did not comply with.  This satisfies section 3 (Part 11 1. a) “with which a person does not … comply.”  I note the word “or” in the Act gives the option of ‘does not’ comply OR ‘not able to comply’.

The reason I ‘did not comply’ is that I had every reasonable right (just like any ordinary law abiding citizen would have) to enter the business premises to browse and shop in-store for goods and also as usual drop off my gas bottle and pay for re-gassing.

30. [30]
    A literal reading of the words in this way does not work, however.  It is clear that the purpose of section 11 is to define the type of discrimination which happens as described in Waters v Public Transport Corporation (1991) 173 CLR 349:^[5]

one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter

Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

31. [31]
    Two examples show that a literal interpretation of the words ‘does not or is not able to comply’ does not achieve this.

Ralph is a hospital nurse whose shift starts at 10am.  His wife drives the children to school because she starts work earlier and the school is on the way to her work.  Ralph’s employer changes his shift to start at 7am.  He refuses to attend at that time, saying he has family responsibilities.

Cecilia’s religious belief means that she would prefer to leave work early on Fridays to get home before sunset.  But her employer insists that she leaves work at 6pm on Friday like everyone else.  Cecilia complies with her employer’s request under protest, although it has made her feel very uncomfortable and has resulted in criticism within her family and her community. 

32. [32]
    Ralph comes within section 11(1)(a) read literally, because he has the attribute of family responsibilities and does not comply with the term.  Yet Ralph ought not to succeed in a complaint of indirect discrimination because the change of shift made no difference to him (his wife could continue to drive the children to school). 
33. [33]
    Cecilia on the other hand does not come within section 11(1)(a) read literally, because she did comply with the term and was able to comply with the term.  But the term was unfavourable to her and so she ought to succeed in her complaint of indirect discrimination.
34. [34]
    As explained by Member Traves in Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249,^[6] the meaning of ‘can comply’ does not mean ‘can physically’ in the sense of being theoretically possible, but as meaning ‘can in practice’ or (as relevant to that particular case) ‘can consistently with the customs and cultural conditions of the racial group’. 
35. [35]
    This approach was approved on appeal, where Senior Member Howard and Member Fitzpatrick citing Hurst v State of Queensland [2006] FCAFC 100, [106] said (referring to a deaf child who was required to attend class without an Auslan interpreter):^[7]

in considering whether she was ‘not able to comply’ the real issue was whether the student would suffer serious disadvantage by reason of the requirement or condition imposed

36. [36]
    Of more direct relevance to Mr Kos’s complaint, it was put this way by Member P Roney KC in Hickson-Jamieson v University of the Sunshine Coast  [2023] QCAT 66 at [128], citing Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 575-6 per Drummond J:

the applicant's inability to comply in this context must be some incapacity to comply, not merely an unwillingness, or a preference for other outcomes.  A claim that the requirement gives rise to an inconvenience, or a person would prefer alternatives, does not satisfy this element.

37. [37]
    So did Mr Kos have a difficulty complying with the term imposed by Deltapath that people wishing to enter the store building were required to wear a mask?

Mr Kos did not need to enter the store building at all that day

38. [38]
    On the facts of this case, one impediment for Mr Kos showing that he had such a difficulty is that he did not need to enter the store building at all that day in order to achieve the purpose of his visit.  His visit to Mitre 10 that day was to have his gas bottle refilled and to purchase some plants from the nursery.  He could have waited outside the front of the store building until a member of staff came out and then left his gas bottle for filling, then walked along the public laneway to the nursery at the rear of the store, and browse for the plants and purchase them there, and then return to the front of the store to the gas filling area to collect his gas bottle. 
39. [39]
    Although Mr Kos says that there was no staff member to see to him when he entered the store building through the front entrance, we know that he was challenged very quickly after his entrance, so the staff member must have been nearby.  On that basis I do not think that he would have had to wait outside the store building for very long before someone came out to take his gas bottle.
40. [40]
    On my finding, the reason for his visit to Mitre 10 that day could have been accomplished without needing to wear a mask.  Therefore it cannot be said that on 14 July 2021 a term was imposed which caused him difficulty.

Mr Kos did not have difficulty wearing a mask that day because of his impairment

41. [41]
    Another problem for Mr Kos with respect to this element of the complaint is that he has not satisfied me that he has difficulty wearing a face mask.  In the complaint to QHRC Mr Kos stated that:

I do have a medical condition and exemption from my GP not to wear a mask

42. [42]
    And in an email sent to QHRC in support of his complaint Mr Kos stated that:^[8]

my doctor had advised wearing masks will cause mental and physical harm

43. [43]
    I think Mr Kos is incorrect about both these things.  It was noticeable in the hearing that Mr Kos had a tendency to understand things said to him incorrectly and on my finding this is what has happened here.
44. [44]
    There was no exemption from his GP and I do not accept the doctor said anything like what was said in the email.  Nothing like that appears in the medical certificate dated 27 April 2022 from the clinic in Melany and it does not seem to be what a doctor would say.  At the hearing Mr Kos explained that he asked the doctor to add something to the certificate about his ability to wear a mask, but the doctor declined to do so.  Although Mr Kos thought the doctor was being cautious about this for legal reasons, the most likely explanation is that the doctor was of the view that Mr Kos’ conditions did not make it difficult for him to wear a mask.
45. [45]
    I think what the doctor said was what Mr Kos explained when giving evidence in the hearing, that he had been advised that it was not sensible to wear a mask if he was having a panic attack.  This can be readily accepted.
46. [46]
    I think the real reason why Mr Kos did not wear a mask on the day in question, 14 July 2021, was as he said in his original statement to the tribunal set out above, and is explained by his understanding of the words ‘does not or is not able to comply’.  It was because he believed that having an impairment under the ADA meant that he did not need to wear a mask so he simply decided not to do so.  I do not think it was because of a difficulty in wearing one.^[9]
47. [47]
    This issue was examined in the hearing and Mr Kos said in his evidence that he found it difficult to wear a mask when going to the shops, because he needed to keep calm without being over medicated.  He also said that on 14 July 2021 he had breathing difficulties as he approached the Mitre 10 store which he found difficult to control, and which were exacerbated by being told he could not enter the store unless wearing a mask, but he was not having a panic attack and did not have one whilst in the vicinity of the store.  The difficulty with this evidence is that it is given almost three years after the event, and it was not previously mentioned.  Mr Kos did not clearly say that this was the reason why he did not wear a mask that day, but merely hinted at this.  If he had said it was the reason it would have been inconsistent with the reason stated in his earlier statement to the tribunal and I would not have been able to accept it.
48. [48]
    Most people found having to wear a mask during the pandemic uncomfortable and strange.  For Mr Kos, I must conclude that on 14 July 2021 although Mr Kos may well have found wearing a mask uncomfortable and strange, he could have worn one without additional difficulty arising from his impairment when entering the store building had he wished to do so.
49. [49]
    For these two reasons Mr Kos did not face difficulty because of his impairment or at all because of the term, and so he has not proved this first element of the complaint and his complaint fails. 
50. [50]
    However should this complaint be considered elsewhere I shall also consider the other elements.

Whether a higher proportion of people without the attribute comply or are able to comply

51. [51]
    This second element of indirect discrimination is in section 11(1)(b) of the ADA.
52. [52]
    There is no direct evidence of these proportions of people.  The tribunal does not expect complainants to come armed with the necessary statistics about this.  It is permissible for me to take judicial notice of it.^[10] 
53. [53]
    The way this is commonly tested is to find the pool of people affected by the term, and then to determine whether the proportion of people without the attribute able to comply with the term is greater that the proportion of people with the attribute able to comply with the term.
54. [54]
    On 14 July 2021 almost everybody without the attribute of impairment, or without an impairment of the type suffered by Mr Kos or one like it, could comply with the mask wearing requirement although they would probably find it uncomfortable and strange.  Although there would be many people with the attribute of impairment who would wish to wear a mask when visiting the store, there would be people with the attribute of impairment or with an impairment of the type suffered by Mr Kos or one like it, who would have additional difficulty because of the impairment when trying to comply with the mask wearing requirement. 
55. [55]
    Hence I find that the element of indirect discrimination in section 11(1)(b) of the ADA (higher proportion of people without the attribute able to comply with the term) is met.

Was the term ‘not reasonable’?

56. [56]
    Deltapath have the burden of proof to show that the mask wearing requirement was ‘reasonable’.^[11]  If it can show this, then under section 11(1)(c) of the ADA this is a defence to the indirect discrimination complaint.
57. [57]
    The approach to the question of reasonableness in indirect discrimination cases has been established by a number of authorities summarised in Catholic Education Office v Clarke [2004] FCAFC 197 as follows (omitting citations):^[12]

    1. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other.  Since the test is objective, the subjective preferences of the aggrieved person are not determinative but may be relevant in assessing whether the requirement or condition is unreasonable.
    2. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience.  It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case.
    3. The tribunal must weigh all relevant factors.  While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition.  However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable.
58. [58]
    Section 11(2) of the ADA requires all the relevant circumstances of the case to be considered and then gives examples of what is relevant that is the consequences of failure to comply with the term, the cost of alternative terms and the financial circumstances of the person who imposes, or proposes to impose the term.
59. [59]
    I need to interpret the question of reasonableness in a way compatible with human rights to the extent possible that is consistent with their purpose.^[13]  Such human rights can be limited ‘only to the extent that is reasonable and demonstrably justifiable in accordance with section 13’.^[14] Section 13 applies what has been called the proportionality test: that a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom and section 13(2) gives factors which may be relevant in assessing this.
60. [60]
    The relevant human right which applies here is a right under section 15(4) to equal and effective protection against discrimination.
61. [61]
    Subject to the ADA, Mr Kos had no right to enter the store building.  Deltapath had the right to impose conditions on entry, or to refuse entry altogether.
62. [62]
    In considering the question of reasonableness I shall start with the public health direction which was in place on 14 July 2021 when Mr Kos attended the store.  The relevant direction was Restrictions for Impacted Areas Direction (No. 8).^[15]  Maleny is in the Sunshine Coast Regional Area of South East Queensland and was therefore an ‘impacted area’ under that direction.  In the impacted area, the direction required all persons aged 12 and over to wear a mask in an indoor space.^[16]  An indoor space was defined as an area, room or premises substantially enclosed by a roof and walls regardless of whether the roof or walls or part of them are permanently or temporary or open or closed.  The Mitre 10 store building would come under that definition but the nursery and gas filling area would not do so.  On the balance of probabilities the garden centre would not come under the definition.
63. [63]
    By paragraph 17i of the direction, the mask wearing requirement did not apply:

to a person who has a physical or mental health illness or condition, or disability, which makes wearing a face mask unsuitable;

Examples – persons who have obstructed breathing, a serious skin condition on their face, an intellectual disability, a mental health illness, or who have experienced trauma.

64. [64]
    Although formal exemptions from the mask wearing requiring could be given by the Chief Health Officer, Deputy Chief Health Officer or their delegates, the exemption above applied automatically if the condition of the exemption was satisfied.  It was in the same terms as in the Public Health Face Mask Requirements Directions.  In practice this meant people were either exempt, or not exempt, as a matter of fact.
65. [65]
    Mr Brown, the director of Deltapath which operated the store, considered how to comply with the direction.  He decided to take a ‘blanket ban’ approach for the store building, and require customers to wear a face mask in the store building and to turn away those who could not wear one or refused to wear one.  People without masks were offered a mask by the store.  Those who did not wear a mask were offered service outside the store building.  He decided to take a ‘no action’ approach for areas of the store outside the store building.
66. [66]
    The implementation of this decision can be seen in the sign placed outside the front and rear entrances of the store building set out at the beginning of these reasons.  The sign omits to say that there was no requirement to wear a mask when outside the store building.  Mr Brown explained the reason for this, which I accept, that the position of the signs made it obvious the requirement only applied to the store building.
67. [67]
    Mr Brown’s explanation for the blanket ban decision was that at the time there was a lot of fear and uncertainty throughout the country about Covid and deaths and hospitalisations were a daily occurrence.  Personal protection was very limited, and at the time only one member of staff in the store had been vaccinated.  He saw the large numbers of people who were claiming exemption from the mask wearing requirement as a real danger to staff and customers, because having an exemption to wear a mask did not guarantee a person was not infected with the virus.  He was aware that a number of his staff had underlying medical conditions such as coronary heart disease, hypertension, asthma, Aspergers syndrome, and post traumatic stress syndrome and he was sure that many customers would also have health issues.  His was aware that his staff were very stressed by the whole situation, and had been subject to abuse from people entering the store building who were not wearing masks. 
68. [68]
    Mr Brown was aware that hardware stores were regarded as ‘essential services’ and that it was important to keep the store open despite the pandemic.
69. [69]
    Although the direction required the visitor to an indoor space to comply, rather than (in this instance) requiring the business they were visiting to take any action about masks, I do not think that a ‘no action’ approach for the store building was reasonably open to Deltapath having regard to the fact that it was a criminal offence not to comply with the direction without reasonable excuse.^[17]  Although the respondent did not have the task of enforcing the direction, it needed to be careful not to be deemed to have taken part in committing the offence and therefore to be guilty of the offence under schedule 1, section 7 of the Criminal Code 1899 (Qld).  This applied to:

2.  every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

3.  every person who aids another person in committing the offence;

70. [70]
    Deltapath would also need to be mindful that it was obliged to maintain a safe workplace for its staff, and also that it was obliged not to put visitors in danger.  Deltapath therefore needed to do something in response to the direction.  The three main options were the blanket ban for the store building which was decided upon (masks were universally required for entry into the store building), a more relaxed rule that masks were required for entry into the store building with an exception for those with apparently valid medical certificates which could be verified, or a rule that masks were required for entry into the store building with an exception for those who stated that they had a medical exemption.  Such a statement of medical exemption would effectively be an oral self-certification under paragraph 17i of the direction.
71. [71]
    There was official guidance about whether people with an impairment should be treated differently, which was published about the time of Mr Kos’s visit. 
72. [72]
    It is unclear whether the guidance would have been available to Mr Brown at the time of his decision.  The only guidance he had seen was from the Chief Health Officer but that did not deal with whether those with an impairment should be treated differently. 
73. [73]
    Since the test of reasonableness is objective, the guidance does serve to draw attention to the relevant matters when deciding whether the policy decided upon was reasonable and so it is justified for me to consider it.^[18]
74. [74]
    First there is QHRC’s publication ‘Customers, face masks and discrimination: A guide for Queensland businesses and service’ dated 30 August 2021.  This referred to Queensland’s anti-discrimination law and stated:

Applying a blanket rule to always refuse access or service to anyone not wearing a mask is likely to be unlawful.  In most circumstances, it should be possible for people with disability or another protected attribute to access your services as normal without wearing a mask.

75. [75]
    The guide then pointed out that if it were reasonable to require all customers to wear a mask then this would be a defence.  The factors which might come into play were said to be the risk to staff and other customers being exposed to COVID-19 and included:

• how long people generally stay inside the building when receiving the goods or services;
• whether it is possible to stay 1.5 metres away from each other inside the building;
• the type of people who use the goods and services and whether there is a heightened risk they will suffer severe symptoms if they contract COVID-19 (for example, people over 60 or people with respiratory conditions);
• the consequences of refusing access to the goods and services;
• whether the business could put alternative measures in place to protect staff and customers;
• advice from work health and safety bodies, such as Safe Work Australia, or your relevant peak body at the time the service is refused;
• what the public health directions and advice from Queensland Health is at the time the service is refused;
• the rate of community transmission at the time service is refused.

76. [76]
    The guide then stated:

For example, it is likely lawful under discrimination law for a hospital to apply a blanket rule requiring face masks to be worn if you are visiting a patient who has been diagnosed with COVID-19.

Similarly, it may be lawful to refuse a customer entry to a business, if there is a public health direction requiring the customer to wear a mask, and the customer does not have a lawful reason under the direction not to wear a mask.

77. [77]
    The Australian Human Rights Commission also has guidance.  Their website says that a strict rule that prevents all people without face masks from accessing shops or services is likely to engage the indirect discrimination provisions in the Disability Discrimination Act 1992 (Cth).  When assessing reasonableness which is a defence, the AHRC offers this list of things which may be considered:

• The scope of any state or territory public health order and the exemptions for people with disability or medical conditions that are provided in the law.
• The nature of the goods/services/facilities being delivered.  It can be expected that a court would strictly scrutinise the reasonableness of any measure that had the effect of seriously limiting or depriving people with disability of essential services.
• The physical space of the location (e.g., the shop) and the associated risk of transmission.  For example, whether it is possible to stay 1.5 metres away from each other inside the building.
• How long people generally stay inside the building when receiving the goods or services.
• Whether the business or service provider has close contact with people who are most vulnerable to severe COVID–19 health impacts (e.g., aged care, disability care, health care, people over 60 or people with respiratory conditions).
• Advice from medical and work health and safety bodies such as the Australian Health Protection Principal Committee and Safe Work Australia about COVID-19 risks, including duties owed by employers to staff and customers under work health and safety laws.
• Whether the business or service provider provides any opportunity for people who cannot wear a mask to access its goods/services/facilities.
• The incidence, severity and distribution of COVID-19 in the areas where the business or service provider operates.
• Whether there are any alternative control methods such as testing regimes, physical distancing or personal protective equipment that might reasonably achieve the business/service provider’s objective without recourse to the strict mask-wearing condition.

78. [78]
    Balancing these considerations, I accept Mr Brown’s evidence that the people visiting the store generally knew what they wanted and where in the store their purchase was to be found, so customers would not generally browse for long in the store.  This therefore reduced the risk of infection because customers would not spend a long time in the store.  But it also had another effect, and that was that the arrangements made for customers unable or unwilling to wear a mask to be served outside was more likely to be workable because they would generally know what they wanted.
79. [79]
    This is important because when considering reasonableness the impact of the term on those with the attribute needs to be considered.  In this respect it seems to me that most people with the attribute of impairment as defined in the ADA when attending the Mitre 10 Maleny covered store would prefer to wear a mask for their own safety, and would prefer that other people did as well, and so the blanket ban would benefit them rather than disadvantage them.
80. [80]
    Mr Kos made submissions about this.  He said that in his case the idea that he should wait outside and that a member of staff could bring him plants to look at an choose from was unworkable and therefore unreasonable.  He says it would have wasted hours of staff time bringing out pots and plants for him to view and consider for purchase.  This he says, was ridiculous and arduous and offensive for the purchaser and labour intensive, time consuming and uneconomic for the business owner.  He says it was also unreasonable because of the strength of the sun in the middle of the day and the risk of skin cancer.
81. [81]
    The difficulty with this submission is that it ignores the fact that a customer who wished to browse pots and plants could simply go down the open side lane to the nursery and browse and purchase them there, without the need for a mask.
82. [82]
    The submission is helpful however to analyse whether the ‘service outside’ suggestion was workable for goods which were only available inside the store building.  On the evidence I think it was.  Even in non-pandemic times, a member of staff was at the entrance to the store with the general duty of helping customers go to the correct aisle.  So it was easy to convert that duty to one serving people without masks outside, as the store had organised.  And there was no difficulty completing the payment outside because the store had cordless EFTPOS machines.
83. [83]
    I take into account that the awning at the front of the store building was small, so the point made by Mr Kos that during the day customers waiting outside could be exposed to the sun is a valid one, but as Mr Brown pointed out it was winter at the time of this event.  It seems to me that those who were unwilling or could not wear masks could attend the store in the morning if necessary before the sun got very strong.  There was space at the front of the building to erect a gazebo to protect people from the sun if this had been necessary.
84. [84]
    Overall the consequences of the blanket ban for those who could not wear masks was that it was not more than an inconvenience to be served outside.  Even that inconvenience could be ameliorated if people who could not wear masks asked their friends, family or carers to purchase items from the store for them instead of them going shopping themselves.
85. [85]
    The more relaxed options that masks were required for entry into the store building with an exception for those with apparently valid medical certificates which could be verified, or a rule that masks were required for entry into the store building with an exception for those who stated that they had a medical exemption were problematical. 
86. [86]
    Although choosing one of these relaxed options would reduce the risk of discriminating against those with an impairment, I agree with Mr Brown that having such an exemption did not guarantee that the person was not infected with the virus.  It was probably the opposite, because a person who habitually attended premises when not wearing a mask would be more likely to be infectious. 
87. [87]
    Having regard to Deltapath’s obligations to its own staff to maintain a safe working environment and a similar obligation to its customers, choosing one of the relaxed options was only feasible if it would not increase risks disproportionately to the benefits derived from the relaxation of the requirement for those who could not wear masks due to an impairment.
88. [88]
    In this respect, I note that the photographs of the store show that most of the aisles were very narrow.  Physical distancing of 1.5m could not be achieved in these aisles.  Some aisles were wider but physical distancing to the recommended distance was very problematic.  And although it would have been possible to restrict the number of people in the store at any one time, it was impossible to restrict the number of people in each aisle so this would have achieved little.  In any case, the respondent only had 4 or 5 members of staff working in the store building so it would have been difficult to apply such restrictions given there were two entrances.
89. [89]
    The store building did not have special arrangement for ventilation, relying only on the doors at the front and the rear of the building when they were open.  There were no fitted fans or extractors to move air through the building.  This increased the risk therefore to people not wearing masks and the risk to others from such people.
90. [90]
    At the payment tills there was no guard, and cash payments were still allowed, so this would increase risk, but the store did offer hand wash which was available around the store.
91. [91]
    On balance I am satisfied on what the respondent says that in the particular circumstances of Mitre 10 in Maleny the decision that was made to impose a blanket ban on entry the store building for those not wearing a mask was reasonable.

Public health exemption

92. [92]
    Section 107 of the ADA provides:

A person may do an act that is reasonably necessary to protect public health.

93. [93]
    Section 108 of the ADA provides:

A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.

94. [94]
    In the light of the considerations above I am satisfied that the blanket ban on entry to the store building for those not wearing a mask was reasonably necessary and therefore covered by these exemptions.

Conclusion

95. [95]
    I have concluded that Mr Kos has failed to prove one of the elements of the complaint but in any case Deltapath have shown that the decision to impose a blanket ban on entry to the Mitre 10 Maleny store building for those not wearing a mask was reasonable.
96. [96]
    In the circumstances the complaint fails and is dismissed.