Hope v Danianarnie Pty Ltd[2025] QCAT 275

REASONS FOR DECISION

The factual background to the principal application in this Tribunal

1. [1]
   The applicant, Mr Hope, together with his wife, Mrs Hope (together, the ‘applicants’) are a married couple who had previously been customers at the Foodworks store in Agnes Waters, a small community in Coastal Queensland. They each commenced separate proceedings claiming compensation and other remedies for discrimination against the respondents after they were permanently banned from entering or shopping at the Foodworks store in 2022 and ever since.
2. [2]
   The First Respondent, Danianarnie Pty Ltd, was in 2022, and still is, the owner of the Foodworks store. In her role as the manager of the store, on behalf of Danianarnie Pty Ltd, the Second Respondent decided on 2 September 2022 to ban Mr Hope and Mrs Hope from the Foodworks store and that ban has remained in place ever since. She has given a number of reasons for why she did this, some of which are different to those she gave at the time of the banning.
3. [3]
   The Tribunal has ordered that the two proceedings be heard and determined together and the hearing proceeded in that way with all the evidence being received in both proceedings.
4. [4]
   Originally, Mr Hope made various claims of discriminatory conduct toward him by the staff and operator of the Foodworks store. He complained that they requested a copy of his identification card for his assistance dog to be kept on file at the store and received “constant direction of unlawful requests of information and unlawful demands” and that he was banned from the store on 2 September 2022.
5. [5]
   Also, originally, Mrs Hope claimed that she was the subject of direct discrimination by an employee of Foodworks because at unparticularised points in time from 2020, there had been requests made to her for proof of any entitlement she claimed to have to use assistance dogs. Also, originally, she claimed she was the subject of direct discrimination in about 2021 when she was told she could not, moving forward by that time, enter Foodworks with two purported assistance dogs. Mrs Hope admitted that she agreed to this course, and "retired" one of her dogs "early". Also, originally, she claimed that she was the subject of direct discrimination when she was told, on about 21 August 2022, that she could not, in the future, enter Foodworks with a dog while it was not restrained. Those claims were not ultimately pressed at the hearing, where the applicants stated that the only case that either of them was pressing was the decision to ban them from the store.
6. [6]
   The remedies Mrs Hope sought, apart from various forms of compensation, were novel, and included an order for a “review of the Anti-Discrimination Act, Disability Discrimination Act and Guide Hearing and Assistance Dog Act for Michelle Irvine and her staff members”, an order that Ms Irvine attach a sign “on the front window display of her store” saying “Assistance Animals accepted”. She also sought an order requiring a donation by the respondents to a War Veteran’s Charity.
7. [7]
   The problem with self-represented litigants struggling to produce a coherent document identifying the legal and factual case they were intending to run was manifest well before hearing, as well as during it.
8. [8]
   As I have noted, at the hearing the applicants went on the record to make clear that the only case that either of them was pressing concerned the decision to ban them from the store. Associated with that issue was the issue of whether imposing a condition of entry for Mr and Mrs Hope to have their dogs on a leash was direct discrimination, and in respect of which, their banning resulted, when they did not comply.
9. [9]
   Hence, and consistently with the applicants going on the record to make clear that the only case that either of them was pressing concerned the decision to ban them from the store, in the written submissions for the respondents, delivered on 16 April 2025 and before those of the applicants of 30 April 2025, the respondents addressed the issues for determination as follows:

3. In Mr and Mrs Hopes’ statement of contentions, Mr and Mrs Hope advanced various grounds. However, at the hearing, Mr and Mrs Hope abandoned the majority of their complaints, and only pressed one complaint each, being that: Mrs Hope was discriminated against as a result of being banned from the store operated by the First Respondent; and Mr Hope was discriminated against as a result of being banned from the store operated by the First Respondent.

3. 4.
   The evidence is that the reasons behind the ban of Mrs Hope and Mr Hope were:

3. In respect of Mrs Hope:

3. (i)
   breach of a condition of entry into the store being that the dogs were required to be restrained by a leash; and

3. (ii)
   Mrs Hope’s behaviour, including her behaviour towards staff and the lack of control she exercised over her assistance dogs;

3. In respect of Mr Hope:

3. (i)
   Mr Hope’s breach of a condition of entry into the store being that the dogs were required to be restrained by a leash; and

3. (ii)
   Mr Hope’s behaviour towards staff, including his behaviour in respect of requests for identification.

3. It should be noted that, whilst Ms Irvine gave evidence during the hearing that the reason of the ban (of Mr and Mrs Hope) included the lack of control of the “dogs”, there has never been an allegation at trial or in the evidence that the ban against Mr Hope was because of the behaviour of his dog specifically.

10. [10]
    Sadly, when, after the hearing concluded, it came time for written submissions, in those filed by the applicants on 30 April 2025, a whole range of other claims were sought to be advanced, and which went well beyond the decision to ban them from the store.
11. [11]
    These other claims included a claim that “Mrs Irvine may also qualify for Indirect Discrimination under the Disability Discrimination Act 1992 (Cth)” (the ‘DD Act’), but in respect of which this Tribunal has no jurisdiction.
12. [12]
    This Tribunal derives its jurisdiction from section 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’), which provides that the Tribunal has jurisdiction to deal with matters as empowered to do so under the QCAT Act or an enabling Act. Neither the QCAT Act nor the DD Act confer such jurisdiction on this Tribunal.
13. [13]
    Other claims articulated in the applicants’ post hearing written submissions filed on 30 April 2025 were as follows:

Initially Direct Discrimination occurred due to the requirement of Mr Hope and Mrs Hope to enter the store with their assistance dogs. This Direct Discrimination took the form of:

Requirement to provide a photocopy of handler identification cards;

A restriction of entry on the dogs themselves;

A restriction on the manner of effective control of Oakey; and

The resultant Banning Letter restricting Mr Hope, Mrs Hope and their assistance dogs from the store.

Indirect Discrimination occurred as a result of the Banning Letter being issued, and the events that led up to this final outcome:

The Respondents Indirectly Discriminated against Mr Hope and Mrs Hope by firstly requesting photocopies of Handler Identifications, as stated in witness examination of Ms Irvine and Mrs Wright under oath.

The Respondents also stated that they requested the copy to keep in their “Staff Communication Book”. Ms Irvine testified under oath that this book is destroyed every year.

Therefore, the Respondents discriminate against every handler, every year, by requesting a new copy of their Handler Identification every year.

The Respondents had a reasonable period of time to supply any and all evidence to support their defence, and yet no evidence was supplied in support of their case.

Mr Hope and Mrs Hope had presented their Handler Identifications as required by the law.

Ms Irvine and Mr Kinder indirectly discriminated against Mr Hope and Mrs Hope before, during and continued to after the “November 2021” meeting. Ms Irvine imposed, or proposed to impose, terms on Mr Hope and Mrs Hope before re-entry was permitted to the Applicants.

CCTV Video evidence was supplied throughout the QCAT hearing to attempt to demonstrate poor behaviour on the part of Oakey while in Foodworks and other stores. This was subsequently discredited. The videos show Mrs Hope and Oakey training on and off lead throughout the store, and no evidence whatsoever of any infraction of the Act was presented in these proceedings.

From 2020, Ms Irvine and Foodworks discriminated against Mr Hope and Mrs Hope, as prohibited under the ADA, on the basis of any and all attributes.

14. [14]
    In light of the clear indication at the hearing that the only claims being prosecuted were that there was discrimination against each of them as a result of being banned from the store, I intend to hold them to that position and their election not to contend for the multiplicity of other claims of various kinds. I will also decide the associated issue as to whether imposing a condition of entry on Mr and Mrs Hope to have their dogs on a leash was direct discrimination, and in respect of which, their banning resulted when they did not comply.

The applicants’ various health impairments

15. [15]
    Mr Hope has various mental health and physical impairments which follow his service in the Army as a combat engineer from 2002 until 2006. He was also a participant in the Rural Fire Brigade in NSW from 1998 to 2002 and the Queensland Fire Service at Beerwah. There is evidence from a medical practitioner, Robert Scanlan, which is unchallenged that he suffers from no fewer than 18 physical, soft tissue, mental health and other significant impairments and critically, an adjustment disorder with depressed mood in respect of which his assistance dog is critical. Mr Hope was permitted to have his dog with him in the course of the hearing, including when he gave his evidence.
16. [16]
    Mrs Hope also has various mental health and physical impairments described in the evidence from Dr Robert Scanlan, which is unchallenged. She has some 10 painful and troubling medical conditions. 
17. [17]
    Dr Robert Scanlan says in his report, and I accept, that those diagnosed conditions impact both Jamie and Jodey Hope significantly in every aspect of their daily lives and reduce their physical and mental capacity to participate in activities such as grocery shopping and other activities. He also says, and I accept, that:

3. Both Jamie and Jodey Hope rely significantly on their assistance dogs throughout their daily lives to reduce the need for outside support for mental health issues and for pain management. These conditions may also come when least expected or when confrontation occurs”.

3. The Assistance Dogs that are owned, trained, and maintained by Jamie and Jodey Hope help alleviate their need to outside medical intervention or hospitalization but also placing that onus or burden on to their partner/carer.

3. 8.
   The assistance dog can offer a distraction of undesirable or negative behaviour before or during situations that may develop or even before the handler may notice a determining situation.

3. 9.
   The following is a list of tasks that Jamie and Jodey Hope's Assistance Dog perform to help in a medical / physical perspective.

3. Boof touches Jamie's hand to get his undivided attention

3. Boof may jump into Jamie's lap to push for more of Jamie's attention

3. Oakey nudges Jodey's hand to get her attention

3. Both dogs will locate the other's partner/carer (off-lead) when assistance is needed or requested

3. Both dogs are trained to walk into a dark room before handler (trip hazards)

3. Boof will lick Jamie's neck if Jamie is in a chronic depressed state

3. Oakey will place himself in front of Jodey as a form of protection from other male humans

3. Both dogs are being trained to seek help (off-lead) from a staff member if partner/carer is not in attendance in a public environment

18. [18]
    The underlined parts of what I have set out above are of significance in this case because they concern the purpose for which it might be seen as desirable that the dogs be off-lead in public. I shall return to that issue shortly.
19. [19]
    The respondents accept that Mr and Mrs Hope had an impairment under the Anti-Discrimination Act 1991 (Qld) (the ‘AD Act’), insofar as they rely on an assistance dog and conceded that if the Tribunal is satisfied that the Respondents have discriminated against Mr and Mrs Hope, that the discrimination has occurred in connection with the supply of goods and services for the purposes of section 46 of the Act.
20. [20]
    I find that they also had other impairments for which reliance was placed on an assistance dog, in addition to whether they rely on an assistance dog, if that is not conceded. In that regard, I refer to the evidence of Dr Scanlon concerning their various mental health and physical impairments.

Assistance dogs

21. [21]
    The AD Act defines “assistance dog” (in schedule 1) as having the meaning given by the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (the ‘GHAD Act’), schedule 4.
22. [22]
    In the GHAD Act, “assistance dog” is defined to mean a dog trained to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person’s need for support.
23. [23]
    The respondents submit that due to the operation of the Food Act 2006 (Qld), (the ‘Food Act’) the respondents had an obligation to ensure that only assistance dogs who had been properly trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place entered into the store.
24. [24]
    In Matthews v Woombye Pub Trading Pty Ltd [2022] QCAT 301, at [45]-[47], Member Lumb formed the view that the reference to the word “trained” in the definition does not require training by an “approved trainer” or “approved training institution” and concluded that the definition of “assistance dog” encompasses training to perform identifiable “physical tasks and behaviours” to assist a person with a disability to reduce the person’s need for support.
25. [25]
    Based on the testimony of the applicants about the extent of training, skills held and the way in which they described how they assist them as persons with a disability to reduce their need for support, I find that they were assistance dogs within the meaning of the GHAD Act and the AD Act.
26. [26]
    During the cross-examination of Mrs Hope, she gave evidence, which I accept, that she is Mr Hope’s professional carer, and that he suffers various impairments, partly arising from his having been a war veteran and a former fire fighter. She clearly showed a working understanding of the AD Act and GHAD Act. Indeed, she was asked if she was familiar those Acts and said she was. She struck me as a fierce campaigner for the rights of those who use assistance dogs.
27. [27]
    It also emerged that she had a long history and interest in training and using assistance dogs for war veterans and was involved in a charity, which was designed to train these dogs for that purpose. There was cross-examination which went to the issue of whether that charity was an approved training organisation and what was the scope of skills behind it. The immediate relevance of that line of inquiry was not apparent except to the extent that it might suggest the applicants had not trained their dogs or were not training them when they said they were during their attendance at this store, or perhaps to support the argument that they were not assistance dogs for the purposes of the DD Act.
28. [28]
    Despite cross-examination of the applicants that suggested they had no real training skills, I accept that they were generally intending to be training these dogs whilst they were in the store, and that they were entitled to and had issued their own identification cards as assistance dog users of those dogs from 30 August 2021. Mrs Hope gave evidence which I accept of the use to which she put her dog, the level of physical pain which she had to experience, sometimes for an hour, but sometimes for days, and the ways in which the dog assisted her.
29. [29]
    During the opening for the respondents, it was suggested, if not expressly stated, that there was some doubt about the applicants’ claims and as to whether the dogs truly provided the function of assistance dogs. I am in no doubt that they were genuinely used for that purpose and that they supported them in respect of each of the health impairments which the applicants individually had, (and they were different), and that these impairments were genuinely complimented by the use of their assistance dogs.
30. [30]
    As I have said, I find that they were assistance dogs within the meaning of the GHAD Act and the AD Act.

Food businesses and the Food Act 2006 (Qld) and assistance dogs

31. [31]
    The First Respondent operated at the material times a store which was a supermarket that sells food, including fresh produce.
32. [32]
    I accept that the store operated by the First Respondent was a “food business” as defined in the Food Act because it involved the handling of food intended for sale and the sale of food. By section 8 of the Food Act, the purposes of that Act include to ensure food for sale is safe and suitable for human consumption and to apply the Australia New Zealand Food Standards Code (the ‘Food Standards Code’).^[1]
33. [33]
    The Food Standards Code – Standard 3.2.2 sets out specific requirements for food business and food handlers that, if complied with, will ensure food does not become unsafe or unsuitable. Clause 24(1)(a) of the Food Standards Code – Standard 3.2.2 provides that a food business must not permit live animals in areas in which food is handled.
34. [34]
    However, the Food Standards Code also requires that a food business must permit an assistance animal in areas used by customers. “Assistance animal” as used in the Food Standards Code is defined as:

an animal referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth.

35. [35]
    The respondents seek to submit that one must look at section 9 of the Disability Discrimination Act 1992 (Cth) (‘DD Act’) and its definition that for the purposes of that Act, an assistance animal is one with particular accreditation having been trained in a particular way.
36. [36]
    Section 9 of the DD Act provides that:

3. For the purposes of this Act, an assistance animal is a dog or other animal:

3. (a)
   accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or

3. (b)
   accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or

3. (c)
   trained:

3. (i)
   to assist a person with a disability to alleviate the effect of the disability; and

3. (ii)
   to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

37. [37]
    Accordingly, the respondents submit that the First Respondent is obligated to ensure that any dogs that enter its premises are “assistance animals” as defined in the DD Act and that failure to do so by the First Respondent will be an offence.
38. [38]
    In Forest v Queensland Health,^[2] Collier J found that the word “trained” in section 9(1)(f) (as it existed then) of the DD Act contemplates “an animal which has been ‘trained’ in the sense of having been disciplined and instructed to perform specified actions, but not by any particular person or organisation, nor to any standard of accreditation by any organisation.” At the time of that decision, section 9(1)(f) of the DD Act did not contain the requirement that the relevant assistance animal meet “standards of hygiene and behaviour that are appropriate for an animal in a public place”. Whilst this decision went on appeal, this finding was unchallenged.
39. [39]
    The Full Court’s reasoning in Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130, [125]–[127] is instructive as to the kind of evidence necessary to support a finding that an animal is an “assistance animal” within the meaning of s 9(2) of the DD Act. Accordingly, it would be necessary for there to be evidence of either accreditation (under s 9(2)(a) or (b)) or of his dog having been “trained” to assist a person to alleviate the effect of the disability and meet the standards of hygiene and behaviour appropriate for an animal in a public place (s 9(2)(c)). As the Full Court observed, the “training” need not be undertaken by an accredited or recognised dog training body but needs to conform with the requirements of s 9(2)(c): Mulligan at [127(b)].
40. [40]
    On Appeal from the decision in Forest v Queensland Health, the Full Court of the Federal Court held that the training must not be of a generalised behavioural nature, but must involve being trained to assist the person to alleviate the effect of the disability: Queensland v Forest [2008] FCAFC 96, [90]–[93], [106], [115] and [118].
41. [41]
    In my view, the fact that the Food Standards Code requires that a food business must permit an assistance animal in areas used by customers, and that language is tied to a statute enacted by the Commonwealth (the DD Act), that does not in any way  inform and certainly not limit the operation of the prohibition in the AD Act against discrimination of a person on the basis that they have an assistance dog, whether or not that dog is one which falls within the definition of that expression in the DD Act.
42. [42]
    Moreover, the definition in the DD Act references as one of the standalone qualifications) that it be a dog trained to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place, does not establish a requirement for certification, proof or verification to some particular standard or by some organisation as a precondition to the person who uses that dog being permitted to the protection given to persons under the AD Act or the DDC Act for that matter.
43. [43]
    Section 54A of the DD Act provides that the DD Act does not render it unlawful for a person to request the person with a disability to produce evidence that: (a) the animal is an assistance animal; or (b) the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. That is not replicated in the AD Act, nor does it establish a requirement for certification, proof or verification to some particular standard or by some organisation as a precondition to the person who uses that dog being permitted to the protection given to persons under the AD Act or the DD Act.
44. [44]
    I do not accept that that the First Respondent was legally obliged to ensure that any dogs that entered its premises were “assistance animals” as defined in the DD Act and that failure to do so by the First Respondent would have been an offence but for reasons that will become apparent, had I concluded otherwise, it would not have affected the outcome.

The factual background to the banning of the applicants from the store

45. [45]
    It is common ground on 21 August 2022; the respondents implemented a condition on Mr and Mrs Hope that they had to have their dogs on a leash while attending the inside of the store. At the time this was only communicated by the respondents to Mrs Hope but it is also not disputed, that prior to 1 September 2022, Mr Hope became aware of the condition when his wife told him of it. It was the contravention of this condition that is said to have led to them being banned.
46. [46]
    The evidence of Ms Irvine whom I generally found to be an honest and reliable witness, is that in February 2020 she served Mrs Hope at the store and assisted her to the car with her groceries. Mrs Hope was on her own and without a dog. She was polite and grateful for the assistance. She entered the store on multiple occasions with no dog.
47. [47]
    Ms Irvine’s first encounter with both Mr and Mrs Hope was in approximately early March 2020 when she was called by staff to the front service desk because the front-end supervisor, Debra Wright, was having some sort of dispute with Mr and Mrs Hope who were complaining that Ms Wright was asking for proof of Mr Hope that his dog was an assistance dog. Mr Hope was saying she had no right to do so and his dog was an assistance dog. Then Mrs Hope entered into the discussion saying they had no right to ask for their personal information and she was discriminating against them. Ms Irvine insisted she had the right to ask and then Mr Hope said he wasn't under Guide Dogs Australia and he was operating under F.E.T.C.H assistance dogs.
48. [48]
    Mr and Mrs Hope again entered the store later in around March 2020 with one dog, which was on lead. The following week they again entered the store with one dog on lead, and this was the first time Ms Irvine asked for ID cards after researching what their rights were. After that, Mrs Hope would bring a dog on lead into the store without Mr Hope. 
49. [49]
    In approximately April 2020, Ms Irvine requested the ID cards for the assistance dogs from the Hopes. Ms Irvine had been advised by Assistance Dogs Associations that the business was within their legal rights to request that evidence. Over time, when similar requests were made, they were met with refusals with the Hopes informing her that they were not required to do so and that they would sue her if she did.
50. [50]
    I find that in approximately August 2020, Mr and Mrs Hope entered the store this time with two dogs, both on leads. Ms Irvine was concerned because she thought after observation that one dog was untrained because of its behaviour in seeming to be distracted and paying more attention to people walking by rather than on its handler. Ms Irvine asked on several occasions for ID for the Hopes and their dogs, but were met with refusals.
51. [51]
    Ms Irvine gave oral evidence that prior to 21 August 2022, she viewed CCTV footage of incidents (the specific details of which she could not recall) wherein Mrs Hope’s dogs, had wandered away from Mrs Hope to sniff produce in the store and to approach customers. Ms Irvine gave further oral evidence of two particular incidents, being: an incident whereby Mrs Hope’s dog walked away from Mrs Hope, using the full extent of its leash, and sniffed a pumpkin in the fresh produce section, and an incident whereby Mrs Hope’s dog walked away from Mrs Hope and approached a child, causing the child to scream. That CCTV footage was not available at the hearing. In cross-examination, Mrs Hope did not deny that her dog may have sniffed the pumpkin, stating that it is possible that it had occurred and in respect of the incident with the child, that the child was down the complete opposite end of the relevant aisle.
52. [52]
    The evidence is insufficient to make a finding that this created any health risk if it in fact occurred. I might add that it is not unheard of for human customers to sniff produce to see if it is ripe or fresh. The evidence of an incident in mid-2020 involving one of the dogs licking or sniffing a child in the store, while the dog was on a leash, is also insufficient to make a finding that this created any health risk or a risk to workplace health, if it in fact occurred.
53. [53]
    In approximately January 2021, Mr and Mrs Hope entered the store with three dogs.  Between January 2021 and November 2021 Mr and Mrs Hope attended the store on a regular basis at numerous different times. This was during the Covid-19 pandemic and the store was very busy. Mr and Mrs Hope continued to bring the three dogs into the store, each of which was on a lead at those times.
54. [54]
    I find that in November 2021, Ms Irvine met with Mr and Mrs Hope to try and reach a compromise, and Ms Irvine advised them that it was a requirement of entry to the store that they bring two dogs only and that the dogs be on leads. She told them she was concerned that they didn't have full control of the dogs and it was a requirement for them to always be on a lead and under full control while in the store. She told them it was hazardous for other customers and staff because three dogs, two adults and a shopping trolley made it impossible for staff and customers to move through the store making it a workplace health and safety issue. She also discussed numerous concerns about the behaviour of the dogs and said that the dogs’ behaviour was jeopardising her duty of care to staff members and other customers, which could result with a potential legal problem.
55. [55]
    This meeting lasted approximately an hour. During this meeting Mr and Mrs Hope said that they were no longer with F.E.T.C.H assistance dogs and that they were now with Veteran Retreat in Hervey Bay. During the meeting, Mr Hope did produce an ID card for his assistance dog, Boof. Mrs Hope stormed out of the meeting after saying, 'see you in court'. Mr Hope stayed and was calm during the rest of the further discussion. I accept Mr Hope’s evidence that he said during this meeting that his dog was very well trained. I accept his evidence, which is corroborated by the objective evidence of the way the dog behaved while in the store, that it was well trained and under his control even when not on a leash. It was Mrs Hope’s dogs that seemed to be less well disciplined. 
56. [56]
    Mrs Hope was cross-examined about a meeting between herself, Ms Irvine and Ms Irvine’s partner, the sole director of the First Respondent, on 10 November 2021. That meeting had its audio recorded. The contents of the statement of Ms Irvine, exhibit 11B, which exhibited that audio and also video from 21 August 2022, were put to Mrs Hope.
57. [57]
    The record reveals that at that meeting between Ms Irvine, Mr Kinder, Mr Hope and Mrs Hope, there was discission about whether there could be three Assistance Dogs in the store at any one time. Though no compromise was agreed upon, it was agreed by Mr Hope that they would try where possible to limit the number of dogs entering the store to two. This resulted in the early retirement of Chevy and Oakey being expedited to full-time training and working much earlier than Mrs Hope had anticipated.
58. [58]
    The record reveals that at that meeting they also discussed the photocopies of Handler Identification cards. Mr Hope and Mrs Hope referred to the law and explained that there is no legal requirement to provide a copy or extra private information and, as such, provided none.
59. [59]
    The record reveals that at that meeting they also discussed trainers and associations. There was a discussion of trainers and associations as approved under GHAD and the DD Act, and that as “self-train and self-assess” Assistance Dog Handlers, the Hopes had the same rights under the attribute of “impairment” in the DD Act.
60. [60]
    Mr Kinder commented during this meeting that Ms Irvine and Mr Kinder had previously allowed another customer to train the two dogs where she had handler and/or training rights in public, with no issues.
61. [61]
    Mrs Hope rejected the suggestion that Ms Irvine complained at the meeting of 10 November 2021 that she would not produce her handler’s card. Mrs Hope said, and I accept her evidence, that their discussion was about them not having three dogs at the store. She was taken to audio in which Ms Irvine said that she needed proof that these are actual assistance dogs. I accept that the applicants legitimately considered that this could not be required of them. I also accept that Mrs Hope took the view that effective control of a dog can be achieved by means other than physical restraint such as by a leash, and that the dogs were trained to respond to verbal commands even when in training.
62. [62]
    Ms Irvine concedes that Mrs Hope said at another meeting that occurred on 21 November 2021 that she was training her dog. When she asked her to place her dog on a lead, the response was to say, 'nope, you can't make me'.
63. [63]
    Afterwards, Ms Irvine did a search and decided that this Veteran Retreat in Hervey Bay did not appear to train or be affiliated with assistance dogs. I make no finding as to the correctness of that conclusion.
64. [64]
    For the next 12 months the Hopes complied with what had been asked of them and the dogs were always on a lead in the store.
65. [65]
    I find that on 21 August 2022, Mrs Hope attended the store with a dog on lead and removed the lead once in the store. Ms Irvine approached Mrs Hope at the milk fridge and asked her to put her dog back on the lead, as she had done this for the past 12 months. Mrs Hope refused, and said that she could not make her and that she would sue. I accept Ms Irvine’s evidence that the dog with Mrs Hope wandered over to a female customer who asked if she could pat the dog and was informed by Mrs Hope that she could, and patting occurred. Ms Irvine said that the front-end supervisor had received complaints from two customers regarding the dogs being loose in the shopping aisles. She mentioned to Mrs Hope that if she failed to comply with the entry requirements and continued to be aggressive towards herself and staff, the police would be called to have her removed. She replied, 'call them'. At the front registers she then told Mrs Hope that if the dog was not on a lead that she would need to leave the store. When Mrs Hope was leaving the store, she informed her that if she or Mr Hope entered the store again with their dog off-lead, they would be refused entry and possibly banned.
66. [66]
    There is CCTV footage of some things that happened that day, on 21 August 2022. This CCTV footage shows when on leash, Oakey possibly sniffing or at least looking closely at an item left on the shop floor. I do not accept that the evidence shows this was a food item. The CCTV footage also shows that when off-lead, Oakey went toward items in another customer’s shopping and became distracted by persons (who Mrs Hope gave evidence at trial were strangers to her), walking away from Mrs Hope, and ignoring Mrs Hope’s commands.
67. [67]
    I reject the respondents’ submission that these events demonstrate “clear breaches” of the requirements set out in the Public Access Test (‘PAT’). That test is published pursuant to section 35 of the GHAD Act, and by it, the chief executive publishes the PAT to assess if a guide, hearing or assistance dog is “safe and effective in a public place and able to be controlled by the primary handler of the dog or the primary handler of the dog with the support of an alternative handler”.
68. [68]
    On its face, Part A specifies that the PAT is formed to be completed when testing if a dog and handler “perform at the required standard”. It does not set up standards or laws that may be “breached”. Clause 7 of the PAT ambiguously suggests dogs must be on a lead or harness at all times but then appears to suggest that if it is resting, for example, at a café, “the dog is not to wander away” which is a test to see how it behaves when not on a lead or harness.
69. [69]
    Even if these events demonstrated “clear breaches” of the requirements set out in the PAT they only involved Mrs Hope’s dog which was in training and a young dog, not that of Mr Hope.
70. [70]
    On 21 August 2022, Mrs Hope then told Mr Hope that they had been threatened with a ban if they went in with a dog not on a leash.
71. [71]
    I find that the basis for the decision to require Mr and Mrs Hope to have their dogs on a leash inside the store was, as Ms Irvine swears in her affidavit, because of the things that had occurred that day and previously and specifically that day namely:

That she had approached Mrs Hope and asked her to put her dog back on the lead, as she had done this for the past 12 months. Mrs Hope refused, while being hostile and aggressive, and said that she could not make her and that she would sue her.

That she believed the dog, with Mrs Hope, wandered over to a female customer, who asked if she could pat the dog and was informed by Mrs Hope that she could, and patting occurred;

That she had explained that the front-end supervisor had received complaints from two customers regarding the dogs being loose in the shopping aisles.

That she had mentioned to Mrs Hope that if she failed to comply with the entry requirements and continued to be aggressive towards myself and staff that they would be calling the police to have her removed. And she replied, 'call them'.

That she told Mrs Hope that if the dog was not on a lead that she would need to leave the store to which Mrs Hope replied “nope”.

That she then telephoned the Agnes Water Police Station which did not have staff on a Sunday, so no one was available to come.

72. [72]
    When Mrs Hope was leaving the store, Ms Irvine informed her that if herself or Mr Hope entered the store again with their dog off-lead, they would be refused entry and possibly banned.
73. [73]
    I find that shortly after this encounter, Mr and Mrs Hope re-entered the store on another two occasions with their dogs off-lead. They were advised on one occasion by the front-end supervisor to place the dogs on lead but refused.
74. [74]
    On 29 August 2022, Mr Hope entered the store with his dog off-lead and otherwise physically unrestrained although I accept that these dogs were under verbal and other forms of direction. Ms Irvine was not present at the time but was immediately called by staff when the dog wandered freely up the main aisle of the store away from him.
75. [75]
    My general impression of Mrs Hope was that she was an honest and frank witness and gave truthful evidence concerning the issues to which she was directed in cross-examination. There was no doubt that she was confused about the sequence of some events and the history of interactions with the store staff.
76. [76]
    I also accept Mrs Hope’s evidence that on 29 August 2022, she entered the store to get groceries and was approached again from behind by the manager (not Ms Irvine) and she stated that she must have a lead attached to Oakey's harness. Mrs Hope replied that she did as it was tucked into the handle, and she was told that she must be holding onto the lead. She then stated that she was training Oakey for a new role to assist her and that she had him perfectly under her direct control and she explained that he needs to be either on a lead or under her direct control. She stated that she was within her rights as a citizen to have Oakey off-lead but under her control, and was just exercising her rights under the GHAD Act. The store employee threw her hands up in the air and walked away. To save anymore confrontation, Mrs Hope placed the dog’s lead over the inside of the trolley and continued shopping.
77. [77]
    I also accept Mr Hope’s evidence that on 1 September 2022, he entered the store to purchase milk and bread and entered with Boof, and he had his lead rolled up and tucked into the handle of his harness. He was not approached by any person whilst at the store.
78. [78]
    Ms Irvine then decided to ban them both permanently. She spoke to the local police. Two letters were served on 2 September 2022, one on each of them. Her rationale she said was that it was due to them not adhering to the conditions of entry and that their actions were considered a breach of workplace health and safety policies.
79. [79]
    Ms Irvine swore that the banning had nothing to do with the fact that they have assistance dogs but it was because, in her view, Mr and Mrs Hope had never produced valid information or documents showing them as being qualified trainers for their assistance dogs, or evidence to show that the dogs were assistance dogs.
80. [80]
    The letter to Mrs Hope said:

Please be advised this letter is formal notice you (Jodey Hope) are permanently banned from the premises of Foodworks Agnes Water located at Shop 2/2 Heights entrance Agnes Water.

The decision to permanently ban you is in relation to having an unrestrained animal within the store on August 21st, 2022. You failed to adhere to the direction of management to restrain the animal whilst inside the store.

You were informed not to enter the store with an unrestrained animal and if you do so you will be refused entry. You re-entered with the animal unrestrained on Augus 29th and again on the 1st of September. You have been informed numerous times the condition of entry policy is the ANIMAL MUST BE RESTRAINED AT ALL TIMES.

Your actions are also considered to be in breach of work place health and safety and OH&S policies. It's because of your behaviour you are no longer welcome in the store. If you are found on the premises police will be called and you will be charged with trespassing. Agnes Water Police have been notified of this letter and aware you have been permanently banned from FoodWorks Agnes Water. (sic)

81. [81]
    The letter to Mr Hope was in similar although not identical terms and said:

Please be advised this letter is formal notice you (Jamie Hope) are permanently banned from the premises of Foodworks Agnes Water located at Shop 2/2 Heights entrance Agnes Water.

The decision to permanently ban you is in relation to having an unrestrained animal within the store on August 29th, 2022. You failed to adhere to the conditions of entry, that all animals must be retrained at all times. We have communicated to you on several occasions of the potential risk of your animal being inside the store.

We feel this is a deliberate attempt to be disruptive towards management and staff as it was clearly explained to your wife on August 22nd about the unrestrained animal.

Your actions are also considered to be in breech of work place health and safety and OH&S policies. It's because of your behaviour you are no longer welcome in the store.

If you are found on the premises police will be called and you will be charged with trespassing. Agnes Water Police have been notified of this letter and are aware you have been permanently banned from Food Works Agnes Water. (sic)

82. [82]
    The applicants have not been allowed to use the Foodworks store ever since.
83. [83]
    The threat to have them charged with trespassing and the engagement of local police in a small community like this to serve these letters on the Hopes was an unfortunate feature of the way the Hopes were treated.
84. [84]
    It is conceded by the applicants that there is another market store in that town that they have been able to use to shop for the things they previously bought at the Foodworks store (albeit presenting a smaller range) as well as driving to the retail shopping in the nearby city of Bundaberg.
85. [85]
    There was criticism of each of the applicants because it was noted for the respondents that some elements of their affidavit evidence used identical language, and there was a suggestion that they had collaborated or colluded in their evidence. It ultimately emerged that this identical language could be explained by the fact that Mr Hope could not read or spell and had to be helped to write anything. So, he and his wife talked about what had occurred and what his version of events was. She is also his carer and acts as such on a full-time basis. He had to be helped by her in writing up his affidavit. I reject the suggestion that there was some inappropriate collusion with a view to getting the story right that in any way reflected dishonesty or implied unreliability. I draw no adverse inferences from the fact that much of what was in their respective statements corresponded.
86. [86]
    There was evidence from a person who is a pharmacist and the owner of the Agnes Water Pharmacy, with CCTV footage that shows that on 10 August 2023, Mrs Hope attended the pharmacy. She had a dog with her that was not on a leash and came through the store and went toward and jumped, in an enthusiastic way, toward another customer who says she was in some way upset about this. That incident occurred almost a year after the banning, and there was no conduct like that which was recorded as having occurred in the Foodworks store. Even if it showed that Mrs Hope did not always have her assistance dog under her direction or control, I have not found that evidence to be of assistance in deciding the issues in dispute here.

The issues for determination

87. [87]
    I accept the submissions for the respondents that the issues for determination are as follows. First, in respect of the decision to require Mr and Mrs Hope to have their dogs on a leash inside the store (‘the Leash Condition’): was it direct discrimination, in that Mr and Mrs Hope were treated less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different? As a corollary of this, there is no reason why if, in the future, the Applicant fails to manage these dogs in accordance with the Act that they may not again be the subject order for their destruction. It is therefore incumbent upon the Applicant to do everything necessary to ensure that never occurs. That means:

    1. the dogs must be implanted with a PPID and must, at all times, wear a collar with attached identification tag; and
    2. the dogs must not be in a place that is not the relevant place for the dog unless it is muzzled and under the effective control of someone who has the control of no more than 1 dog at the same time.
88. [88]
    The issue of whether that treatment was on the basis of the attribute.
89. [89]
    Secondly, was it indirect discrimination, and specifically:

3. (A)
   was it a term that Mrs Hope could comply with;

3. (B)
   was it a term that Mr Hope could comply with;

3. (C)
   was it a term with which a higher proportion of people who do not have a reliance on an assistance dog;

3. (D)
   was the term reasonable;

90. [90]
    The submissions for the respondents contend that the issues for determination include whether an exemption under section 107 of the AD Act applies and whether an exemption under section 108 of the AD Act applies. Section 107 permits a person to do an act that is reasonably necessary to protect public health.  Section 108 provides an exemption where a person does an act that is reasonably necessary to protect the health and safety of people at a place of work.
91. [91]
    The next issue is in respect of the decision to ban Mr and Mrs Hope from the store: have the respondents treated Mr and Mrs Hope less favourably than another person without the attribute would have been treated? In the circumstances, was the treatment of Mr and/or Mrs Hope on the basis of the attribute?
92. [92]
    Similarly, does an exemption under section 107 and/or 108 of the AD Act apply?
93. [93]
    The purpose of the AD Act as set out in section 6 is of course to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. The Act’s purpose is achieved by prohibiting discrimination that is on a ground set out in Part 2, of a type set out in Part 3 and in an area of activity set out in Part 4.
94. [94]
    The respondents accept that if the Tribunal is satisfied that the respondents have discriminated against Mr and Mrs Hope, that the discrimination occurred in connection with the supply of goods and services within the meaning of that expression in section 46 of the AD Act.
95. [95]
    The prohibition against such discrimination will not apply if an exemption set out in Part 4 or Part 5 applies. As I have said, the respondents contend that there was such an exemption in this case, namely those in sections 107 and 108 of the AD Act. Section 107 permits a person to do an act that is reasonably necessary to protect public health.  Section 108 section provides an exemption where a person does an act that is reasonably necessary to protect the health and safety of people at a place of work.

The scheme of the AD Act

96. [96]
    Section 7 of the AD Act prohibits discrimination on the basis of certain attributes and these attributes include relevantly for present purposes, impairment and parenting responsibilities.
97. [97]
    Section 10 of the AD Act provides the definition of direct discrimination on the basis of an attribute. It provides as follows:

3. 10
   Meaning of direct discrimination

3. (1)
   Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

3. Example—

3. R refuses to rent a flat to C because—

• C is English and R doesn't like English people
• C's friend, B, is English and R doesn't like English people
• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

3. (2)
   It is not necessary that the person who discriminates considers the treatment is less favourable.

3. (3)
   The person's motive for discriminating is irrelevant.

3. Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

3. (4)
   If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

3. (5)
   In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

98. [98]
    The question that must be answered affirmatively if such a claim is to succeed is whether the particular conduct which is complained of here has been shown to be “on the basis of an attribute” within the meaning of sections 8 and 10 of the AD Act.
99. [99]
    Section 8 of the AD Act provides:

3. 8
   Meaning of discrimination on the basis of an attribute

3. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—

3. (a)
   a characteristic that a person with any of the attributes generally has; or

3. (b)
   a characteristic that is often imputed to a person with any of the attributes; or

3. (c)
   an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

3. (d)
   an attribute that a person had, even if the person did not have it at the time of the discrimination.

3. Example of paragraph (c)—

3. If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

100. [100]
     Section 10(3) of the AD Act provides that “the person’s motive for discriminating is irrelevant”.

3. Example—

3. R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

101. [101]
     Section 11 of the Act, provides as follows:

3. 11
   Meaning of indirect discrimination

3. (1)
   Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

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

3. (b)
   with which a higher proportion of people without the attribute comply or are able to comply; and

3. (c)
   that is not reasonable.

3. (2)
   Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

3. (a)
   the consequences of failure to comply with the term; and

3. (b)
   the cost of alternative terms; and

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

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

3. (4)
   In this section—

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

3. Example 1—

3. 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.

3. Example 2—

3. 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.

102. [102]
     Section 7 of the AD Act prohibits discrimination on the basis of attributes, including at subsection 7(h) on the basis of an impairment and which as defined in Schedule 1 of the AD Act includes (as per subparagraph (f) of the definition) a “reliance on a guide, hearing or assistance dog, wheelchair or other remedial device”.
103. [103]
     Direct discrimination therefore concerns circumstances where the disability explains (or partially explains) the treatment or conduct of the discriminator: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128, at [23]. It has been said that by comparison. For indirect discrimination, as recognised by the Full Federal Court, “it is sufficient that the disability explains the disadvantage, that is, that the disability explains the effect or impact of the discriminator’s conduct”: Sklavos at [23] per Bromberg J (with whom Griffiths and Bromwich JJ relevantly agreed). Indirect discrimination is directed to what may be a facially neutral requirement or condition but which, by its effect or impact, disadvantages persons with the relevant disability: Australian Medical Council v Wilson (1996) 68 FCR 46 at 79–80.
104. [104]
     It was not disputed at the hearing that Mr and Mrs Hope have an impairment as defined in Schedule 1 of the Act, being the reliance on an assistance dog and therefore it is not disputed that Mr and Mrs Hope have an attribute for the purposes of section 7 of the Act. If it be necessary to do so, I find that they also had impairments other than that one and that their assistance dogs were uses as a resource to manage the consequences of those impairments.
105. [105]
     In Waters v Public Transport Corporation,^[3] (‘Waters’) Dawson and Toohey JJ explained the difference between direct and indirect discrimination at 392:

A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where 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. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers

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. [emphasis added]

106. [106]
     Sections 10 and 11 of the AD Act define what amounts to discrimination. Section 39 makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of sections 10 and 11.
107. [107]
     It has been recognised that the language of section 11 and its analogous provisions is somewhat difficult to apply, not only by itself, but also in conjunction with other sections of the Act, particularly section 39 of the AD Act.^[4]
108. [108]
     Where direct discrimination is alleged, under section 204 of the AD Act, the applicant bears the onus of proof broadly. An applicant bears the onus of proof in establishing the claims in relation to discrimination.^[5] The relevant standard is the balance of probabilities. The strength of the evidence necessary to meet that standard "will vary according to the nature of what is sought to be proved."^[6] In this case the allegations the Applicant makes are serious, and this must be borne in mind when assessing the strength of the evidence adduced in support of her claims: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2.
109. [109]
     Section 205 of the AD Act places the onus on the respondent to show that the condition being imposed which is potentially (indirectly) discriminatory is "reasonable".^[7]
110. [110]
     "The onus of proof that the imposition of a term is reasonable lies with the party imposing it. That does not mean however that an Applicant who contends for an indirect discrimination case need not identify why it was that imposition of the term was not reasonable, and to set out in points of contention, and in any witness statements to be relied upon, in what respects it is not reasonable.
111. [111]
     In other words, the Applicants remained obliged to articulate their case and evidence about that issue, and to identify in what respects any requirement was not reasonable.
112. [112]
     These two definitions of direct and indirect discrimination have been held to be  “mutually exclusive”, meaning a person cannot claim at the same time, that they have been directly and indirectly discriminated against on the same facts: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [13]–[16] per Bromberg J.

Other decisions which deal with treatment of persons with assistance dogs

113. [113]
     There are other decisions to which I was not referred by the parties, but which deal with treatment of persons with assistance dogs.
114. [114]
     In Reurich v Savills (SA) Pty Ltd [2025] FCA 420, Raper J was concerned with a claim under the Disability Discrimination Act 1992 (Cth) (referred to here as ‘the DDA’). There the Court held:

3. [1]
   The DDA recognises the important place assistance animals have, as their name suggests, in assisting persons with disabilities, and provides persons who have assistance animals with protections from discrimination. Those protections are not at large but arise in certain areas of public life or activity. This case concerns access to a shopping centre in rural New South Wales in the town of Taree. The shopping centre is often the epicentre of social life, particularly to those who are socially isolated and vulnerable. It may be that a trip to the shops provides the only source of regular social interaction for certain members of the community. The shopping centre also provides an essential service — the provision of goods and services. In a small town, there may be only one set of shops or limited choice. Therefore, questions about who is able to enter these places and the conditions of entry are not insignificant.

3. [2]
   The applicant, Mr Peter Reurich, lives in Taree and frequents the Taree Central Shopping Centre and the Manning Mall for his grocery shopping. On 22 April 2022, Mr Reurich was banned from attending Taree Central for three months (the ban was thereafter extended on multiple occasions until it comprised an eight-year ban).

115. [115]
     There, as is the case here, the applicant gave unchallenged oral evidence as to his disabilities and the benefits his animals provide him, that he had previously had or may have had an assistance animal and claimed that he has an additional protected attribute, namely, that he requires the assistance of an assistance animal. The DD Act applies in relation to having an “assistance animal” in the same way as it applies in relation to having a disability.
116. [116]
     After careful consideration of all the evidence, the Court found that that the reason why the security guard there barred Mr Reurich from the shopping centre, although in an opportunistic way, was because he was tired of and irritated by Mr Reurich and also because Mr Reurich had breached the entry conditions by filming in the shopping centre. The decision was opportunistic, in the sense, that he had a dislike for Mr Reurich and wanted to limit the interactions with him. The fact of Mr Reurich being caught out, breaching the entry conditions, provided the perfect opportunity to get Mr Reurich out of his hair. That did not happen though. Mr Reurich was not deterred by the bans and continued to shop at Taree Central. To the extent that further bans were imposed, they were because of his breach of the restriction on entry and his continued filming not any disability or the fact that he had an assistance dog. It was found that the reason why Savills barred Mr Reurich was because Mr Reurich did not need to film Mr Dixon when he served court documents, Mr Dixon had made a reasonable request to Mr Reurich to stop filming, Mr Reurich had been argumentative and threatening towards Mr Dixon and Mr Reurich did not comply with the conditions of entry. The claims therefore failed.
117. [117]
     Previous decisions have found that requiring as a condition of entry that a person have his or her dog tethered on a leash in order to be under his or her direct control constituted a breach of the former s 23(1)(b) and (e) of the DD Act: Sheehan v Tin Can Bay Country Club [2002] FMCA 95 (‘Sheehan’) at [24] per Raphael FM.
118. [118]
     In Reurich v Club Jervis Bay Ltd [2018] FCA 1220 (‘Reurich’), Justice Markovic found that by denying Mr Reurich entry to the Club by reason of his disability fell within sections 23(a) and (b) of the DD Act: at [278].The present case does not involve denying the applicants entry to the store by reason of their disability per se until the banning event.
119. [119]
     In Reurich, Justice Markovic found that:

3. [336]
   In my opinion, the effect of the Club failing to make the reasonable adjustments in relation to the control and hygiene of Boofhead was that Mr Reurich was treated less favourably than another member of the Club would have been treated in those circumstances. Mr Reurich was subjected to indiscriminate and imprecise direction about the control he had to exercise over Boofhead in the Club and the level of Boofhead’s hygiene such that he could not be certain what was required. As a result of the lack of precision and certainty about the requirements Mr Reurich was subjected to demands to remove or not bring Boofhead into the Club or onto the courtesy bus and, on some occasions, was declined entry into the Club and use of the courtesy bus. The comparator would not have been treated in the same way. That person would have been able to access the Club and its facilities without being subjected to the differing requirements put to Mr Reurich. Had the reasonable adjustments been made Mr Reurich would have understood what was expected of him and there would have been objective standards against which compliance could be judged rather than subjecting him to indiscriminate decisions about his ability to enter or remain at the Club or make use of its facilities.

120. [120]
     That case was argued as one involving a failure to make reasonable adjustments. The Court found the relevant comparator for the purpose of considering whether Mr Reurich was treated less favourably than a person without his disability in circumstances that were not materially different is a person who is a member of the Club and who does not have his disability and an assistance animal.
121. [121]
     Adopting a similar approach here, the comparator is a customer of the store who did not have the applicant’s respective disabilities and an assistance animal. In my view, it is clear that the comparator would have been refused entry entirely, not merely had imposed on him or her, a condition that the dog be kept on leash.
122. [122]
     The respondents in the present case point to the abovementioned decision in Sheehan because, they submit it was held that it was “impossible” to find any direct discrimination against an applicant where the Magistrate, Raphael FM considered a condition of entry to a club that an assistance dog for a veteran be on a leash. The reasons do say that, but the basis for it is not apparent from the reasons. The respondent's case was that no discrimination had taken place because the actions of the respondent in banning the applicant and his dog “were very speedily limited” to a requirement that the applicant bring the dog to the club on a lead and keep her on a lead, which the respondent argued was reasonable having regard to the circumstances of the case.
123. [123]
     Whether it was impossible or not is moot, but the actual decision in Sheehan was to uphold the indirect discrimination case, because of a finding that:

3. [24]
   There must be occasions when a sight-disabled person takes his hand off the guide dog’s harness. No one expects a guide dog to be tethered. Given the evidence of the training of Bonnie, I don't think that the conduct of the club passed the reasonable test in requiring her to be tethered whilst under Mr Sheehan’s direct control. I am of the view that the club did breach the Act by requiring the Applicant to comply with a requirement (leashing his dog) with which a substantial proportion of persons without his disability are able to comply, which is not reasonable having regard to the circumstances of the case…

124. [124]
     It was declared that the Tin Can Bay Country Club Inc permit the applicant to attend the Club and its premises and grounds with Bonnie and that Bonnie may remain unleashed whilst in the direct control of the applicant and that the club pay the applicant damages for the hurt and distress that he has suffered in the sum of $1500.
125. [125]
     The respondents also seek support from the decision in Klein v Sporting Shooters Association of Australia (Qld) Inc [2025] FedCFamC2G 246 (‘Klein’) and specifically at [37] where  Egan J held that it was not placing a person who had a reliance on an assistance dog in a less favourable position by not permitting that person to take the reliance dog on an organised hunt where allowing the applicant in that case to expose himself and other shooters to risk of harm was not a favourable position in the first place as it was not to the applicant’s, or anyone else’s, advantage. I do not see that decision as providing any assistance to the facts here.
126. [126]
     In Klein it was acknowledged that although a comparison was to be made between the way in which the discriminator treats (or proposes to treat) a person with a disability and the way in which a person “without the disability” (or protected attribute to use the language in the AD Act) would be treated in circumstances that are not materially different, that choosing an appropriate “comparator” for the purposes of applying section 5 can be difficult.
127. [127]
     The Court found a number of bases for rejecting the claim there, not the least of which was that the applicant was treated in the same manner as any other member of the respondent under the terms of its Code of Conduct, in that no member is allowed to bring any animal onto a range or a hunt because it creates potential safety issues when using firearms. The term imposed in the present case and the ban that resulted concerned the way the dog was handled, not whether it was there at all.
128. [128]
     In the present case other store users could not bring a dog in at all, whether with or without being on a lead. Conceptually had one been warned they would be banned from the store if they brought one in banning them from doing so would occur on a different basis from why the present applicants were banned.

The leash term and direct discrimination

129. [129]
     Having regard to my findings at paragraph [71] as to the basis for Ms Irvine’s decision in requiring Mr and Mrs Hope to have their assistance dogs on a leash after 21 August 2022, in my view, the claim for direct discrimination in respect of the leash term must fail on the basis that the imposition of it was not on the basis of the impairments or protected attributes, or any of them.
130. [130]
     The respondents submit that the respondents’ decision to implement the Leash Condition was not “on the basis of” Mr and Mrs Hope’s impairment, even in light of the wider definition of those words compared to other anti-discrimination legislation. They submit that even following the previous disputes between the respondents and Mr and Mrs Hope, following the meeting dated 10 November 2021, Mr and Mrs Hope entered into the store for a period of approximately eight months with no issues. In my view, the fact that the term could be complied with does not demonstrate that it was not discriminatory. The AD Act prohibits direct discrimination. It does not excuse it because a victim can find ways to avoid serious consequences flowing from the conduct by modifying their own behaviour.
131. [131]
     The respondents submit that the implementation of the Leash Condition is a restriction on the behaviour of Mr and Mrs Hope, being the keeping of their assistance dogs off-leash, and not on a restriction on ability for Mr and Mrs Hope to utilise their assistance dogs. That in my view is an untenable distinction. Requiring that they keep their assistance dogs off-leash was on a restriction on the ability for Mr and Mrs Hope to utilise their assistance dogs in the ways they wanted to use them.
132. [132]
     The respondents submit that a requirement for Mr and Mrs Hope to have their assistance dogs on-leash is not treatment less favourable than a person without the condition.
133. [133]
     As I have said above, the respondents rely on a decision in Klein v Sporting Shooters Association of Australia (Qld) Inc, where Egan J held that it was not placing a person who had a reliance on an assistance dog in a less favourable position by not permitting that person to take the reliance dog on an organised hunt. This was so where allowing the applicant in that case to expose himself and other shooters to risk of harm was not a favourable position in the first place as it was not to the applicants’, or anyone else’s’ advantage.
134. [134]
     In my view, it was less favourable treatment here because it meant that insofar as part of the features from which the applicants each benefitted from the ability to have the dogs off leash was to allow the dog or dogs to locate the other's partner when assistance is needed or requested and also for them to be trained to seek help from a staff member if the partner is not in attendance in a public environment. Mrs Hope said in her testimony that the reasons why she could not have her dog, Oakey, on a lead for example on 21 August 2022, was that she was continuing off-lead training with hand and voice commands, that due to her back injury, it was very hard and painful at times to bend over or to pick items up off the floor, so she was training Oakey to pick these items up for her and that she found it painful at times when she drops the lead and she had to bend down or over to pick it up. Clearly requiring them to be on a leash meant they could not be used in those ways, and this was a less favourable treatment of them.
135. [135]
     That does not, however, mean that the basis for that treatment was their impairment. Nor does it mean that this was the reason they were off leash on the two days in question which led to the banning.

The Banning decision and letters – direct discrimination

136. [136]
     As I have identified already, it is uncontroversial that on or about 2 September 2022, the respondents issued letters to Mr and Mrs Hope banning them from the store. Mr and Mrs Hope allege that the banning is discrimination under the AD Act. In my view, that allegation is appropriately described as an allegation of direct discrimination.
137. [137]
     In final written submissions the applicants submit that:

It was a mutual decision to permanently ban Mr Hope and Mrs Hope. It had also become evident during questioning under oath, Ms Irvine designed, implemented and educated staff on these unlawful store policies that conflicted with GHAD Act 2009 (GHAD), Anti-Discrimination Act 1991 (ADA) and the Disability Discrimination Act 1992 (DDA).

Mr Hope and Mrs Hope had been subjected to discrimination over a period from August 2020 to September 2022, by the First and Second Respondents both Directly and Indirectly.

138. [138]
     Later in their written submission they say that “From 2020, Ms Irvine and Foodworks discriminated against Mr Hope and Mrs Hope, as prohibited under the ADA, on the basis of any and all attributes”. That suggests a claim of direct discrimination on the basis of their attributes.
139. [139]
     At the hearing Mr Hope also alleged that his ban was the result of indirect discrimination under the Act, however this appears to involve a misunderstanding as to the nature of indirect discrimination, with Mr Hope instead relying on the belief that he was banned as a result of his association with Mrs Hope. It did not involve the imposition of a term of condition with which they could not comply. This is not a proper allegation of indirect discrimination under section 11 of the Act. I will treat it a properly characterised as a claim for direct discrimination.
140. [140]
     Ms Irvine swore in her affidavit^[8] that the reason for the ban of Mr and Mrs Hope was consequences flowing not because that they asserted a right to be accompanied by assistance dogs, or that they had a dog with them from time to time, but rather, because they refused to abide by their request to have any dog they were accompanied into Foodworks restrained in any way.
141. [141]
     The letters banning Mrs Hope gave a different version, namely that:

You were informed not to enter the store with an unrestrained animal and if you do so you will be refused entry. You re-entered with the animal unrestrained on August 29th and again on the 1st of September. You have been informed numerous times the condition of entry policy is the ANIMAL MUST BE RESTRAINED AT ALL TIMES.

Your actions are also considered to be in breach of workplace health and safety and OH&S policies.

It's because of your behaviour you are no longer welcome in the store.

If you are found on the premises police will be called and you will be charged with trespassing. Agnes Water Police have been notified of this letter and aware you have been permanently banned from FoodWorks Agnes Water. (sic)

142. [142]
     The letter to Mr Hope was in similar although not identical terms and said:

The decision to permanently ban you is in relation to having an unrestrained animal within the store on August 29th, 2022.

You failed to adhere to the conditions of entry, that all animals must be retrained at all times. We have communicated to you on several occasions of the potential risk of your animal being inside the store.

We feel this is a deliberate attempt to be disruptive towards management and staff as it was clearly explained to your wife on August 22nd about the unrestrained animal.

Your actions are also considered to be in breech of work place health and safety and OH&S policies. It's because of your behaviour you are no longer welcome in the store.

143. [143]
     At paragraphs 43 of Ms Irvine’s Affidavit dated 16 April 2024, she described her discussions with the local police and the advice of the local police to ban Mr and Mrs Hope from the store. Ms Irvine says that she consulted the local police about the situation “as the Hopes had failed to comply with the terms of entry”. In paragraph 44 of that same Affidavit, she says that the reason for the banning of Mr and Mrs Hope was “due to them not adhering to the conditions of entry and that their actions are considered a breach of workplace health and safety policies. The banning had nothing to do with the fact that they have assistance dogs”. Since the conditions of entry she refers to were that assistance docs were required to be on leash while in the store, it is a stretch to suggest that the banning had “nothing to do with the fact that they have assistance dogs”.
144. [144]
     During the hearing Ms Irvine gave a different version to the effect that following the breach of the Leash Condition, there was no other option but to ban Mr and Mrs Hope for safety reasons where she had to provide safety for staff and customers, where there was not full control of animals whilst they were in the store. She said that she felt that the breach of the Leash Condition was a ploy for disruption by Mr and Mrs Hope, where such behaviour was following on from: the issues arising from the requests for ID. She then referred to the fact that Mr and Mrs Hope had not been approachable and Mrs Hope being dismissive. She said the ban was based on the “whole attitude” of Mr and Mrs Hope, where there had been a significant amount of time without issues and then “all of a sudden, bang, dogs off-lead”. She was not challenged on this evidence during cross-examination.
145. [145]
     It is hard not to conclude that there was a degree of reconstruction going on in the giving of that evidence, and I have concerns as to whether all of these matters did form the basis for the banning. Be that as it may, I accept that the decision to ban them was not on the basis of their attributes but on the basis that they were challenging the authority of the respondents and were trying to disrupt the respondents’ management of the store as they saw fit. 
146. [146]
     I accept her evidence that, as she put it, the banning had nothing to do with the fact that they had assistance dogs and although she did not specifically say so, the reasons she gave also mean that it was not on the basis of their physical impairments.
147. [147]
     It follows that the claim for direct discrimination in respect of their banning fails.

Indirect Discrimination – the Leash Condition as a term with which a person with an attribute does not or is not able to comply 

148. [148]
     Accepting that the applicants have impairments, the question for my determination then is whether or not the respondents have imposed a term, namely the Leash Condition, with which the applicants or either of them do not or did not or is not able to comply, with which a higher proportion of people without the same impairments comply or are able to comply and that is not reasonable.
149. [149]
     Mr and Mrs Hope are required to demonstrate that at the time that the condition was implemented, they could not comply with the Leash Condition. The respondents submit that the Tribunal should not accept that Mr and Mrs Hope could comply with the condition.
150. [150]
     The word “term” as used in s 11 of the AD Act is expressly defined in that section to include a “condition, requirement or practice, whether or not written.”
151. [151]
     The terms "requirement" or "condition" are given a broad, rather than technical meaning.^[9]However, for something to be a requirement or condition in relation to a matter it must be separate from that matter.^[10] A person imposes a requirement or condition in providing goods or services when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.^[11]
152. [152]
     It is well accepted that the "term" alleged to have been imposed ought to be formulated with some precision.^[12]Sadly the applicants struggled to identify what the term was in final submissions.
153. [153]
     The applicants submitted that:

     1. Indirect Discrimination occurred as a result of the Banning Letter being issued, and the events that led up to this final outcome.
     2. The respondents Indirectly Discriminated against Mr Hope and Mrs Hope by firstly requesting photocopies of Handler Identifications, as stated in witness examination of Ms Irvine and Mrs Wright under oath.
     3. The respondents also stated that they requested the copy to keep in their “Staff Communication Book”. Ms Irvine testified under oath that this book is destroyed every year.
     4. Therefore, the respondents discriminate against every handler, every year, by requesting a new copy of their Handler Identification every year.
     5. The respondents had a reasonable period of time to supply any and all evidence to support their defence, and yet no evidence was supplied in support of their case.
     6. Mr Hope and Mrs Hope had presented their Handler Identifications as required by the law.
     7. Ms Irvine and Mr Kinder indirectly discriminated against Mr Hope and Mrs Hope before, during and continued to after the “November 2021” meeting. Ms Irvine imposed, or proposed to impose, terms on Mr Hope and Mrs Hope before re-entry was permitted to the Applicants.
     8. CCTV Video evidence was supplied throughout the QCAT hearing to attempt to demonstrate poor behavior on the part of Oakey while in Foodworks and other stores. This was subsequently discredited. The videos show Mrs Hope and Oakey training on and off-lead throughout the store, and no evidence whatsoever of any infraction of the AD Act was presented in these proceedings.
154. [154]
     Sadly, these submissions from the applicants do not grapple with what is required to show indirect discrimination, particularly as it concerns the act of imposing the leash term or banning them because of a non-compliance with it, or the questions of inability to comply and want of reasonableness.

The base group/comparator for the purposes of section 11 of the AD Act

155. [155]
     A base group must be identified in order to compare the proportion of the relevant persons without the relevant attribute who can comply with the condition, and the proportion of the relevant persons with the attribute who can comply.^[13]
156. [156]
     The Full Court of the Federal Court in Queensland v Forest^[14] explained what the Commonwealth analogue of section 11 of the AD Act required and held as follows:

 ... a comparison of the way in which the alleged discriminator deals with one group of people, being a group who do not have the disability of the alleged aggrieved person (the base group), with the way in which the alleged discriminator deals with another group of people, being a group of people who do have the disability of the allegedly aggrieved person (the comparator group). The comparison must be a comparison of groups of people by reference to the alleged discriminating. The base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed." [emphasis added]

157. [157]
     The Court in Queensland v Forest stated at [121] that:

In order to satisfy the first prerequisite of s 6, it would have been necessary to make findings as to the following:

• The proportion of people in the base group, being people who do not have Mr Forest's disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre, has been assessed by Queensland Health as having training and hygiene standards acceptable 'to Queensland Health.
• The proportion of people in the comparator group, being people who do have Mr Forest's disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre has been assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.
• If the first proportion was substantially higher than the second proportion, the first prerequisite of s 6 would be satisfied. [emphasis added]

158. [158]
     In some instances, the required disproportional impact may be established as a matter of inevitable inference. This will occur when the very nature of the disability is such as to show, without further proof, that none of the members of the comparator group—the persons with the disability—could not comply with the requirement or condition, leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.^[15]
159. [159]
     In Queensland v Forest the Court declined to draw that inference of disproportional impact. That involved a claim for indirect discrimination after the applicant was refused access to a hospital and health centre (and consequent treatment) while one or other of his dogs was with him. Spender and Emmett JJ said at [122]:

It may be that an inference would have been open that the proportion of people in the base group, who do not have Mr Forest's disability, who are able to comply with Queensland Health's requirement or condition, would be close to 100%. However, there was no evidence before the primary judge to show what proportion of people in the comparator group, who have Mr Forest's disability, are able to comply with the requirement or condition.

Accordingly, on the evidence before the primary judge, no finding could have been made that the first prerequisite of s 6 was satisfied in relation to the conduct complained of. It follows that there was no basis upon which there could be a finding of unlawful conduct within s 23 or s 24, by the operation of s 6 of the Act.

160. [160]
     Section 11 identifies one comparator group (being the group without the disability referred to in s 1l(l)(b)) but does not explicitly identify the other comparator. The second comparator group does not require comparison with the aggrieved person (i.e., the applicant). The second comparator is a group of persons with the disability. Section 11 also does not require the comparison to be between all persons with the disability and all those without it.^[16]
161. [161]
     In my view, having regard to the test as articulated in those decisions the proper “comparator” in the present case is a customer of the store who did not suffer from the impairments which the Applicants suffered and who did not rely on an assistance dog, and sought to shop at the store on the occasions, and in the circumstances, the subject of these complaints.
162. [162]
     Indeed because section 7  of the AD Act prohibits discrimination on the basis of attributes, including at subsection 7(h) on the basis of an impairment and which as defined in Schedule 1 of the Act includes (as subparagraph (f) of the definition) a “reliance on a guide, hearing or assistance dog, wheelchair or other remedial device”, the comparator here is a customer of the store who did not rely on an assistance dog, and sought to shop at the store on the occasions, and in the circumstances, the subject of the these complaints .

Inability to comply with the "term"

163. [163]
     Conceptually imposing the leash term or banning them because of a non-compliance with it, can be seen within the prism of conduct that involves there being imposed a term with which the applicants did not comply. The real issue is whether the applicants or either of them were not able to comply, and with which a higher proportion of people without the same impairments comply or are able to comply and that is not reasonable.
164. [164]
     The applicants’ 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.^[17]
165. [165]
     It is necessary to consider whether, in complying with the subject requirement, the applicants experienced serious disadvantage or hardship.^[18] In this case, would either applicant have suffered serious disadvantage or hardship if called upon to have their assistance dog or dogs on a lead at all times whilst in the store?
166. [166]
     The meaning of that phrase “does not or is not able to comply” has been authoritatively considered many times. For example, Davies JA (with whom Pincus and Thomas JJA agreed) in JM v QFG^[19] said he would construe the words “does not…comply” as “referring to the possession of a precluding objective attribute such as race or age or height” and the words “is not able to comply” “to include an attribute of choice such as religion or political belief or trade union activity or lawful sexual activity which precludes a person while he or she maintains it.”
167. [167]
     However, Sackville J in Australian Medical Council v Wilson^[20] said the following about the words “does not comply”:

It was submitted that the phrase “does not comply” refers to some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition. I must confess that I find it difficult to see why the words …. should be given a restrictive gloss. …….

More particularly, a restrictive construction runs counter to the fundamental objective [the statutory provision] seeks to achieve. The point of provisions attacking indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement

168. [168]
     I respectfully agree that provisions attacking indirect discrimination aim to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics such as the need to use an assistance dog, in common.
169. [169]
     Reference can also be made to the judgment of the Full Court of the Federal Court of Australia in Hurst v State of Queensland.^[21] That case was an appeal from a first instance judgment in which the trial judge had found that the complainant could comply with the relevant requirement, term or condition because he accepted evidence that she could “cope” with the circumstances established by the condition imposed. In upholding the appeal, the joint judgment said that the first instance Judge had been led to focus on the wrong issues and had failed to address the real issue which was whether, by reason of the requirement or condition that was being imposed, the complainant suffered serious disadvantage.
170. [170]
     Their Honours found at [134] that: 

In our view, it is sufficient to satisfy [the requirement that the person “is not able to comply”] that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can “cope” with the requirement or condition. A disabled person’s inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage.

171. [171]
     In Bell v iiNET Ltd,^[22] member Traves concluded, and I agree that: 

3. [64]
   …. also consonant with the purposes of the Act, where a person does not comply with a term the non-compliance cannot, in my opinion, be a matter of whim. It must, in my opinion, and in a practical and common-sense way relate to and be the consequence of the attribute.

3. [65]
   This interpretation is also consistent with s 11(1)(b) which requires that a higher proportion of people without the attribute either comply or are able to comply. It would be difficult to apply the comparison if it depended on a mere matter of choice amongst the members of the pool.

172. [172]
     In my view, neither applicant has shown that the decision to not put the dogs on leash and not keep them on leash whilst in the store was anything but their own decision, done as a form of protest at what they considered to be an imposition on their rights to use their assistance dogs without interference in any way.
173. [173]
     Mrs Hope gave oral evidence that the reason that she attended the First Respondent’s store on 29 August 2022 with her dog Oakey taken off-leash once inside was as a statement to others that she could insist on her rights and that she was entitled to do it, so she did do it. Mr Hope also gave evidence at the hearing that the reason he attended the First Respondent’s store on 1 September 2022 with Boof off-leash was to the effect that because the law did not prevent him from doing so, he was exercising his right to do so.
174. [174]
     Prior to 21 August 2021, both Mr and Mrs Hope had successfully attended the store on numerous occasions with their assistance dogs on-lead and were able to successfully complete their shopping.
175. [175]
     Mrs Hope said in her first affidavit that in respect of the need to have her dog off a lead, that “at times, we have and are constantly training our Assistance Dogs to render aid to us and to get a person’s attention when needed. If, for example, Jamie or myself have a physical downturn or a mental episode whilst in a store, the dogs are being trained to seek help from an adult or from our partner (if available). If our dogs are attached to their leash, they could potentially become a hazard to other customers, staff and to themselves, by being entangled on shelving, display units etc”.
176. [176]
     Mr Hope said in his first affidavit things to similar, in some cases identical. effect as to why he could not comply with the requirement to have his log on a leash while in the store. He said, “as Boof is trained off-lead, he is trained to render aid to me and to see help when commanded. If, for example, I have physical downturn or a mental episode whilst in public, Boof is trained to see help from an adult or from Jodey (if available). If Boof is attached to his leash, it could potentially become a hazard to other customers, staff and to himself, by getting entangled on shelving, display units etc”.
177. [177]
     As I mentioned earlier, I accept that one of the reasons for which the dogs might legitimately be kept off leash at a particular time is to allow the dog or dogs to locate the other's partner when assistance is needed or requested and also for them to be trained to seek help from a staff member if the partner is not in attendance in a public environment. I am not persuaded that this was the reason they were off leash on the 2 days in question which led to the banning.
178. [178]
     Mrs Hope said in her testimony that the reasons why she could not have her dog, Oaky, on a lead for example on  21 August 2022, was that  she was continuing off-lead training with hand and voice commands, that due to her back injury, it was very hard and painful at times to bend over or to pick items up off the floor, so she was training Oakey to pick these items up for her and that she found it painful at times when she drops the lead and she had to bend down or over to pick it up. Since both Mr and Mrs Hope had successfully attended the store on numerous occasions with their assistance dogs on-lead including around that time. The dog Boof works for Mr Hope exclusively and has a level of experience that Oakey, working exclusively for Mrs Hope, did not have at that time. Oakey does similar tasks as Boof, but is only trained for Mrs Hope, and by Mrs Hope, specifically for Mrs Hope’s attributes.
179. [179]
     At the time of the November 2021 meeting, the assistance dog Boof was 5 years 9 months old and Mrs Hope’s dog Chevy was 10 years 10 months and Oakey was 3 months 2 weeks old only.
180. [180]
     I am not persuaded that she was continuing off-lead training with hand and voice commands that day and that those were her reasons in fact for having the dog off leash. She actually entered the store with the dog on the lead, and then took the lead off in the store that day.
181. [181]
     Mr Hope said that the off-leash conduct was as training to “render aid”. Mr Hope had attended the store previously with his assistance dog, Boof, on a leash, and nothing had changed about his health since, such that the dog needed particular training to render him aid beyond that he had already received. As he says in his submissions, Boof was an experienced assistance dog aged 5 years and 9 months.
182. [182]
     Obviously, such training could have been carried out elsewhere where there were no food temptations or in other public places that did not have health restrictions. Nor is it clear why Mr and Mrs Hope could not train their assistance dogs to pick items up for them whilst remaining on lead.
183. [183]
     In my view, neither applicant did, or would have, suffered serious disadvantage or hardship if called upon to have their assistance dog or dogs on a leash at all times whilst in the store. The main purpose for which it was suggested they be off-lead was to train them to respond in that context. It is not suggested that these dogs specifically needed such training in August 2022 or had not received it previously, or that there were not places other than this particular store where food was displayed at the level of the dog’s heads and below, where such training could have occurred.
184. [184]
     Indeed, the evidence, which I accept, is that the conduct of both applicants in bringing the dogs in off leash was for the purpose of mounting a challenge to the directive that they do so, not to engage in a dog training exercise.
185. [185]
     I accept their evidence that the dogs were in training whilst in the store and that one of the reasons, although not the only reason that they were not kept on a lead was to train them to work whilst the lead was not being held. There was also at least one other reason, and that was at least in the case of Mrs Hope, to make a statement that they were entitled to be there with those dogs, and train them even if it meant that they were not being held on a leash at all times.
186. [186]
     But in my view, the primary reason why she went there that day with the dog not on a leash the entire time, despite being warned that she should not do so and would be banned if she did, was because she wanted to make a statement that it was her entitlement to do that and she would do it. Seen through that prism, much of what happened, the various encounters fall into perspective as conduct by persons with legitimate impairments and an interest in assistance dogs, in training them and their public appearance, but particularly to assert her legal rights to use such dogs without discrimination or what she saw as interference with her entitlements.
187. [187]
     This in part came as the result of what she saw as her legal rights in relation to production or non-production of evidence of them having a disability and producing assistance dog identification. They each had a strong view that there was a limited right to require them to produce such identification or allow it to be copied or kept the records off retailers. This led to each of them being defiant in the face of what they saw as interference with their entitlements as users of assistance dogs.

Judicial consideration of "reasonableness" in indirect discrimination

188. [188]
     The question of reasonableness is a question of fact.^[23] It is an objective question, and not based on the Applicant’s own subjective preferences.^[24]
189. [189]
     The proper approach to the question of "reasonableness" is to judge the reasonableness of the requirement or condition, not the reasonableness of the decision to require the person to comply with it.^[25]
190. [190]
     In determining whether or not indirect discrimination had occurred, the Tribunal should first consider the requirement itself, i.e., independently of any alternative. The reasonableness of the condition or requirement is then to be considered with regard to the alternatives.^[26] The "reasonableness" of a requirement or condition will be determined by weighing all relevant factors, which will differ from case to case.^[27]
191. [191]
     It has often been accepted that the test of "reasonableness" is less demanding than one of necessity, but more demanding than a test of convenience. It is an objective test, which requires the Tribunal to weigh the nature and extent of the discriminatory effect against the reasons said to favour the requirement. All of the circumstances of the case must be taken into account.^[28]
192. [192]
     In other words, the test involves the Tribunal determining the reasons a respondent was said to have insisted on the requirement or condition. Then, it must consider whether the requirement can be objectively justified as reasonable in all of the circumstances.
193. [193]
     The fact that an alternative could have been adopted (or might have been reasonable as a "one off" as some exception to general requirement) does not of itself make a condition that is appropriate and adapted to the activity in question, unreasonable. Every general requirement may have to admit of exceptions from time to time, and recognising the need to allow exceptions is a management matter, not one for anti-discrimination legislation.^[29]
194. [194]
     A number of matters might be relevant to the question of "reasonableness". Some were canvassed by Dawson and Toohey JJ in Waters at 395:

Reasonableness for the purposes of both s. 17(5)(c) and s. 29(2) is a question of fact for the Board to determine but it can only do so by weighing all the relevant factors. What is relevant will differ from case to case, but clearly in the present case the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of accommodating the needs of impaired persons who use trams was relevant in relation to the reasonableness of the requirements or conditions which it imposed and in relation to the reasonableness of the special manner in which the appellants required the respondent to perform its service. Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way. Other factors which might be relevant are the maintenance of good industrial relations, the observance of health and safety requirements, the existence of competitors and the like.

195. [195]
     Brennan J, who in the majority, said at 378 that the "reasonableness" of the requirement:

... must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity …

There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity; secondly, whether the activity could be performed without imposing a requirement or condition that is discriminatory or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.

196. [196]
     "Reasonableness" is also not concerned with the modifications to a general requirement, condition or practice that might reasonably be made to accommodate one person's special needs.^[30]
197. [197]
     In determining-the "reasonableness" of a requirement, the Tribunal should act with "an appropriate degree of diffidence" in assessing the actions of an educational institution in respect of which there may have been a division of opinion.^[31]
198. [198]
     I find that the Respondent did not indirectly discriminate against the Applicants by imposing an unreasonable condition with which they could not comply.
199. [199]
     In the circumstance in which the leash term was imposed, and contravened, in my view it was reasonable to require them to keep the dogs on leash while in the store in this particular case on the evidence. That is not to say that in very case a requirement to have an assistance dog on a leash is reasonable and I make no such finding.
200. [200]
     If follows that the indirect discrimination case for both applicants fails.

Exemptions

201. [201]
     In light of these findings, I need not decide the question of whether exemptions existed under section 107 of the AD Act and which permit a person to do an act that is reasonably necessary to protect public health. The test for that is objective, not what an alleged perpetrator considers to be reasonably necessary.  It seems to me, without deciding, that the respondents confront significant challenges in demonstrating that the conduct of the assistance animals in this case presented any environment that led it being necessary to protect public health that the applicants be banned.
202. [202]
     Similarly, I need not decide if an exemption existed under section 108 of the AD Act which permits a person to do an act that is reasonably necessary to protect the health and safety of people at a place of work. It seems to me, again without deciding, that the respondents confront significant challenges in demonstrating that the conduct of the assistance animals, in this case, in the presence of the applicants, even off leash objectively presented any environment that led it being necessary to protect the health and safety of people at a place of work that the dogs be on leash failing which the applicants would be banned permanently from entering the store.
203. [203]
     The evidence shows that sometimes Mrs Hope’s dogs were not entirely well controlled, and one was in training at times. Sometimes her dog inappropriately engaged with other customers of the store but that presented little, if any risk to health and safety. Mr Hope’s dog was well behaved whether on or off leash.

Other matters that the record should reflect

204. [204]
     I should put on the record that arriving at the correct legal outcome has been no easy or simple matter and I have changed my views on what that outcome is several times before arriving here. That is, in no small part due to the fact that the applicants have been unrepresented and could not research or present their case in a way that others may have, and often oversimplified the factual and legal issues. It is also because neither party mounted any real challenge to the evidence of their opponents’ witnesses in a way that assisted in the resolution of issues of fact and credit.
205. [205]
     On the other hand there were elements of the conduct of the respondents which were troubling, and at times suggested that they regarded it as their entitlement to decide on what terms and conditions a person who was not only disabled in the usual sense but also disabled or impaired because they needed to use an assistance dog would have to comply with to be permitted entry to one of the only two food shops in a small community.
206. [206]
     The use of the local police to serve letters on the applicants was regrettable and might be interpreted as part of a plan to intimidate the applicants into compliance with unlawful conditions imposed upon them. The same could be said of threats to have them prosecuted by the police if they did not comply with the requirement to not attend the store thereafter. The respondents say they were acting on the advice of the local police to ban Mr and Mrs Hope from the store. That is regrettable. Police would have little or no capacity to give such legal advice with any degree of confidence as to its correctness.
207. [207]
     That ban happened three years ago now. Had I upheld the claims my inclination would have been to make an order like that made in the decision in Sheehan, referred to earlier, and declared that the First Respondent  permit the applicants to attend the store with an assistance dog and may remain unleashed whilst in the direct control of the applicants and that the respondents pay each applicant damages for the inconvenience hurt and distress that they have suffered in the sum of $1,500.
208. [208]
     None of the legislative provisions that have been referenced as relevant to this case give any express discretion to a food selling shopkeeper to decide the basis upon which persons with impairments can use their facilities. To permit that to occur would be inconsistent with, indeed impede the aims of the AD Act.
209. [209]
     In particular, I am most concerned at the decision to ban Mr Hope from using the store when, irrespective of what I thought of the conduct of Mrs Hope and how she managed her dogs, there is little if anything to criticise about the way that Mr Hope dealt with the respondents over time and managed his dogs within the store. One could easily see the banning of him and therefore, ensuring that neither of them could shop in that store as heavy-handed unnecessary and unjustified. He had not been directly warned in any way by the respondents themselves that banning would be the outcome for him, although happily for the respondents he was told by his wife.
210. [210]
     It seems that the respondents gave no real consideration to whether different treatment should be handed out as between Mr and Mrs Hope. Banning them both meant that they needed to shop elsewhere as a family, and it is accepted that this store carried the best range of products compared to the other.
211. [211]
     It seems to me, that this is a matter that could well have been successfully managed to a resolution of it without the necessity to engage the resources of the Tribunal, to the extent that they have been. It would, of course, be open to the First Respondent at any time to negotiate an arrangement by which the applicants or one of them could use the store to accommodate their family needs on reasonable conditions concerning the use an assistance dog whilst in the store.
212. [212]
     In conclusion, I should mention that there is a reasonable argument, but which neither party addressed, that the ongoing banning of both applicants is a continuing manifestation of the banning of 3 years ago, and that a new refusal to permit them to enter, and especially if accompanied by the threatened engagement of the police being called with the previously made threats to have them charged with trespassing, would be a further and new act of discrimination. To refuse Mr Hope for example now, from entering the store, were he to have given an undertaking which he abided, to keep his well-trained dog on a leash, might well be seen as a further and new act of indirect discrimination which was not reasonable. I say no more about that.
213. [213]
     The formal orders that I make are to dismiss the applications and give liberty to apply.