11 September 2015

Disability Discrimination

In Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 the Federal Court of Australia Full Court (FCAFC) has found that the Federal Circuit Court of Australia misconstrued reg 256A of the Civil Aviation Regulations 1988 (Cth) in finding that the provision applied only to persons assisted by assistance animals who had visual or hearing impairment only, and excluded a passenger who had additional disabilities.

The judgment states
This appeal raises some important issues concerning the proper construction and application of various provisions in the Disability Discrimination Act 1992 (Cth) (DDA) and their interrelationship with various laws and instruments which affect civil aviation. A central issue is whether the respondent airline unlawfully discriminated against the appellant, who claimed to suffer from cerebral palsy which affected his vision and mobility, when the airline refused to allow his dog, Willow, to accompany him in the aircraft cabin
The FCAFC declared that the conduct of Virgin Australia Airlines Pty Ltd in refusing to allow an assistance dog accompany a passenger who suffered from cerebral palsy which affected his vision and mobility constituted unlawful discrimination under Disability Discrimination Act 1992 (Cth) s 24.

Virgin was ordered to pay damages by way of compensation to the appellant for the stress suffered as a consequence of its unlawful conduct during the period from at least December 2010 to at least September 2012 in the sum of $10,000 plus interest in accordance with s 51A of the Federal Court of Australia Act 1976 (Cth). Virgin was also ordered to pay the appellant’s costs of the proceeding below, the appeal, the amended notice of contention and the amended cross-appeal.

The Full Court, at [35], states that the reasons for the decision in the first instance judgment -
it may be noted, were given in an ex tempore judgment. It must necessarily be recognised that the attributes of different judges vary enormously and that appellate courts stand in a very different position to a trial court having a large volume of cases, such as the FCCA: M D Kirby, ‘Ex tempore Reasons’, (1992) 9 Australian Bar Review 93. In a case such as the present, however, where the factual findings to be made and the legal conclusions to be reached were not easy of resolution, it was perhaps surprising that the primary judge decided to deliver ex tempore reasons rather than to first pause for reflection. Any experienced judge may have hesitated – and, perhaps, avoided error.
That disquiet reflects [93] to [106] -
93. The primary judge’s reasons for judgment reveal numerous appellable errors.  
94. First, his Honour erred in proceeding on the basis that the Instruments were relevant to Mr Mulligan’s individual circumstances. It is explicitly stated in both Instruments that they were made under reg 256A(1)(b) of the CARs (i.e. not s 256A(2)). Accordingly, those Instruments applied only in respect of a person with a disability other than sight or hearing impairment who required a dog to assist the person to alleviate the effect of the disability. The limited scope of these Instruments is reinforced by the definition therein of “handler”, which is defined to mean “the person with a disability other than sight or hearing impairment who relies on the dog” (emphasis added). As the AHRC contended, any permission given by CASA under reg 256A(1)(b) has no work to do with respect to a dog as described in reg 256A(2). The primary judge’s erroneous belief that the Instruments were relevant and, indeed, determinative of the case was a fundamental error. That error permeated the entirety of the primary judge’s reasoning.  
95. Virgin Australia acknowledged that the primary judge erred in his interpretation of reg 256A(1) and (2) but it sought to defend the dismissal of Mr Mulligan’s application on other grounds which will be considered below.  
96. Secondly, the primary judge’s misconstruction of the Instruments and failure to appreciate the distinction between reg 256A(1)(b) and (2) led to the following further related error. Contrary to the primary judge’s findings in [11] and [12] of his reasons for judgment, reg 256A(2) is not properly characterised as being in “the nature of a defence”. We accept the AHRC’s submission that the effect of reg 256A(2) is that an operator is not prohibited from permitting a dog to travel in the cabin with a disabled person if the dog is a guide or an assistant to the disabled person (assuming that reg 256A(8) has no application). If, however, an operator refuses to carry such a dog and the circumstances specified in reg 256A(2) are otherwise satisfied, this may constitute unlawful discrimination under the DDA.  
97. Thirdly, the primary judge misconstrued reg 256A(2) in [13] of his reasons for judgment when he adopted an unduly narrow view in implying that, for that provision to apply, the person assisted by an assistance dog must have only a visual impairment or hearing impairment, with the consequence that the provision has no application if the person also has an additional disability (such as, in Mr Mulligan’s case, cerebral palsy).  
98. Regulation 256A deals with the carriage of animals in an aircraft. Only reg 256A(2) deals specifically with the carriage in the passenger cabin of an aircraft of a dog that accompanies a person with particular disabilities, namely a person who is visually impaired or hearing impaired, and the dog is a “guide” or an “assistant” to that person. We see no warrant in the language of reg 256A or in the object or purpose of that provision to confine its operation to circumstances where the person being accompanied by the dog must only be visually impaired or hearing impaired and not also have some additional disability, such as cerebral palsy. Plain words would be required to support the narrow construction adopted by the primary judge.  
99. It is convenient to note at this point that Virgin Australia contended that the phrase “a dog accompanying a visually impaired or hearing impaired person as a guide or an assistant” in reg 256A(2) should be construed to read a “guide dog” and an “assistant dog”. For reasons which are developed below, we do not accept that contention.  
100. Fourthly, the primary judge’s misconstruction of reg 256A(2) was accompanied by the following further errors. His Honour’s finding at [4] and [7] that the Instruments were “exhaustive” in relation to the circumstance in which Virgin Australia was permitted to carry a dog in the cabin was wrong. This finding fails to take into account the nature and effect of reg 256A(2) which, independently of reg 256A(1)(b), does not prevent an aircraft operator such as Virgin Australia from permitting a dog which accompanies a visually impaired or hearing impaired person as a guide or an assistant to be carried in the passenger cabin as long as the prescribed conditions are met. Furthermore, and equally significantly, it is evident that the primary judge’s view that the Instruments were exhaustive as to when Virgin Australia was permitted to carry a dog in the cabin resulted in the primary judge not turning his mind at all to the potential relevance of the issue whether Willow was an “assistance animal” within the meaning of s 9(2) of the DDA and, if so, how that affected the operation and application of reg 256A. It is difficult to understand why the primary judge did not address these important issues, not the least because it was expressly pleaded in [2] of the further amended statement of claim that, at all material times, Mr Mulligan had “an assistance animal” and reference was made to s 9(2)(a) and (c) of the DDA.  
101. Fifthly, as Virgin Australia also acknowledged, the primary judge erred in finding at [8] that the Instruments were a “prescribed law” for the purposes of s 47(2) of the DDA. His Honour stated in [9] that “prescribed law” is defined in s 2B of the AIA and that this “would clearly apply to the instrument, in this case issued by CASA”. That reasoning involves the following overlapping errors: (a) s 2B of the AIA does not define what is a “prescribed law” as such, rather it defines “prescribed” to mean “prescribed by the Act or by regulations under the Act”. Relevantly, this is a reference to a law prescribed by the DDA or by regulations made under the DDA, such as the DDRs. Section 132(2) of the DDA expressly refers to the power to make regulations for the purposes of s 47 of the DDA; and (b) more significantly, several laws are prescribed for the purposes of that provision in reg 2A and Sch 1 of the DDRs. Significantly, however, neither the Instruments nor the CARs are prescribed under either the DDA or the DDRs. Accordingly, they are not a “prescribed law” for the purposes of s 47(2) of the DDA.  
102. Sixthly, the primary judge proceeded on the basis it was common ground that each Instrument was a legislative instrument for the purposes of the LIA and he viewed that factor as relevant to his characterisation of the Instruments as “a prescribed law”. For reasons given above, the finding that the Instruments were a prescribed law was incorrect.  
103. The AHRC made detailed submissions which challenged the primary judge’s finding in [3] of his reasons for judgment that the Instruments were also a legislative instrument within the meaning of the LIA. Virgin Australia conceded in the appeal that the primary judge was wrong to proceed on the premise that the Instruments were legislative instruments and had force and effect in accordance with the LIA. Virgin Australia also accepted that this led the primary judge to conclude that, having regard to s 47(2) of the DDA, Pt 2 of the DDA could have no application in the present case.  
104. Having regard to s 5(2) of the LIA and guiding principles established in decisions such as RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185, neither Instrument was a legislative instrument for the purposes of the LIA because: (a) neither Instrument altered the content of the law and, instead, they applied the law to a particular operator, namely Virgin Australia; and (b) neither Instrument was of general application and, instead, they applied only to Virgin Australia and conferred no rights or obligations on persons wishing to travel with assistance animals.  
105. Seventhly, the primary judge erred in interpreting and applying s 54A(5) of the DDA in finding in [15] that there was non-compliance with that provision by reference to the Instruments in that Willow was not trained and identified by an approved organisation. This error was consequential upon the primary judge’s erroneous findings that reg 256A(2) had no application and that the case fell to be determined solely by reference to the Instruments (which required inter alia that Willow be trained and accredited by an approved organisation).  
106. Eighthly, the primary judge’s finding at [16] that, having regard to the Instruments, unjustifiable hardship would arise if Virgin Australia were required to carry Willow in the cabin because this would “be contrary to the express confinement of permission identified in instruments (sic) and as such a potential offence”. This finding involved appellable error because the primary judge focused exclusively on what he regarded to be the effects and operation of the Instruments. He failed to direct his mind to the proper construction and application to the circumstances here of reg 256A(2) or s 9 of the DDA.