Discussion paper: Assistance animals under the Disability Discrimination Act (2003)

Discussion paper: Assistance animals under the Disability Discrimination Act

See now report; see also submissions in response

Introduction

This paper seeks comment on possible recommendations to the Federal Government to provide a clearer regime for determining which assistance animals should be recognised for the purposes of the Disability Discrimination Act ("DDA"), and to clarify the relationship of the DDA in this area to laws on health and hygiene.
 

Background

Section 9 of the DDA defines unlawful discrimination as including treating a person with a disability less favourably because he or she is accompanied by a guide dog, hearing assistance dog or any other animal "trained to assist the aggrieved person to alleviate the effect of the disability".

The reference to other assistance animals was included in the legislation to recognise the fact that people with a range of disabilities other than vision and hearing impairments derive valuable assistance from appropriately trained dogs.

In particular, some people with physical disabilities use dogs for assistance with mobility and with carrying or retrieving objects.

It is important to emphasise that it remains the Commission's view that recognition of this broader use of assistance animals is appropriate.

However, it has become clear that the present very general terms of section 9 of the DDA do not give adequate definition to relevant rights and responsibilities.

In 1999 the Commission issued a discussion paper raising concerns about lack of clarity and certainty in the interaction between the assistance animals provision of the DDA and health and hygiene regulation. Responses to that paper did not however enable the Commission to make specific recommendations to government regarding legislative or regulatory action.

A decision of the Federal Magistrates Court in 2002 has again highlighted concerns about how the DDA provides for recognition of assistance animals other than guide and hearing dogs.

The Commission has drawn its concerns on this issue to the attention of the Attorney General. The Attorney-General has agreed that the Commission should work with the Attorney-General's Department to develop options for addressing the issues raised. This paper is intended to contribute to that work.

Assistance animals are used by persons with a disability in a range of public areas, including on public transport. Accordingly, the certainty of rights and obligations relating to the use of assistance animals is relevant to the further development of the Disability Standards for Accessible Public Transport ("the Transport Standards"), which were formulated under the DDA. The Accessible Public Transport National Advisory Committee ("the APTNAC") has been established to consider a range of implementation and unresolved technical issues relating to the Transport Standards. The APTNAC will contribute to the broader consultation on the topic of assistance animals, which is occurring between HREOC and the Attorney General's Department.

Before making more definite recommendations for legislative or regulatory action, this discussion paper is being issued to seek comments from people with disabilities, people involved in training of assistance animals, service providers, relevant areas of government, and other interested parties.

The intention behind this discussion paper is not to remove recognition for other assistance animals, but to identify options for recognition which provide greater certainty of rights and obligations for all concerned.

Lack of definition of trained animal

There is at present no express requirement in DDA section 9 that the animal has been trained or assessed by a recognised agency, or that, as well as the animal being trained to provide assistance, the training extends (as guide dog and hearing dog training does) to giving other parties a high degree of assurance of appropriate behaviour and health standards in the animal, such that it can be safely admitted where dogs or other animals are not otherwise permitted.

Nor does section 9 indicate what evidence other than certification by a recognised agency should be accepted as sufficient, either by a person controlling access to premises or services, or by the Commission in the event of a complaint.

At the time of the drafting of the DDA, it appears to have been hoped or anticipated that appropriate regimes for recognition and regulation of categories of assistance animal additional to guide and hearing dogs would emerge. That has been slow to occur. However, some jurisdictions have begun to introduce registration regimes for assistance animals.

Concerns resulting from lack of definition

The Commission is aware of concerns from the retail industry, from transport providers, and from recognised guide dog agencies and users of their services, regarding a lack of clear specification in the DDA of when section 9 covers assistance animals other than guide dogs and hearing dogs.

Concerns have arisen regarding

• lack of clarity on what evidence may be required of an animal's status as an appropriately trained animal and of a person's need for assistance by that animal;
• assertion, in a number of cases, of a right claimed to be founded on the DDA to be accompanied (including on public transport) by more aggressive or intimidating breeds of dog;
• assertion of a right to be accompanied by a dingo, notwithstanding the laws of the relevant State prohibiting this;
• confusion in this area undermining the effectiveness of legally recognised access rights for guide dogs and hearing dogs (in terms of recognition by retailers and other service providers and in terms of public acceptance);
• lack of clarity of rights and responsibilities contributing to conflict between service providers and users of "other" assistance animals;

The Commission has sought to give sustainable effect to section 9 of the DDA as it presently stands, by appropriate interpretation. In particular the Commission's policy position has been that

• people asserting a right to be accompanied by other trained assistance animals should, to be covered by section 9, be able to show verifiable evidence of the animal being trained to standards equivalent to those applying to guide dogs and hearing dogs; and
• the fact that an animal provides companionship or reassurance to a person with a disability is not sufficient, since section 9 requires that the animal be trained to provide assistance in relation to the disability.

These points have been called into question by the decision of the Federal Magistrates Court in Sheehan v Tin Can Bay Country Club [2002] FMCA 95 (9 May 2002).

In that decision the respondent Club was found to have discriminated unlawfully in refusing to permit an unleashed dog on the premises, and ordered to pay damages of $1,500 (plus costs) for hurt and distress.

The aspects of the decision which cause concern are set out in this passage from Raphael FM's decision:

The symptoms of Mr Sheehan's disability include a concern about meeting people and a concern about the way in which people will react to him. He therefore sought, in approximately 1997, to relieve these symptoms by training a dog to be an animal assistant. He thought that utilising the dog to break the ice between himself and people he would meet for the first time would enable him to overcome the concerns which he felt. The use of the dog in this manner would qualify the dog to be an "assistance dog" within s.9 of the Act, see s.9(1)(f):
"... any other animal trained to assist the aggrieved person to alleviate the affect of the disability, or because of any matter related to that fact."
Mr Sheehan trained the dog Bonnie himself and he described to the Court a number of ways in which the dog assisted him, both as I have previously described and also in other matters.

The concept of "assistance" used here appears so broad as to entitle any person with a disability to be accompanied by the animal of their choice, since it will always be possible to claim that an animal provides companionship, a talking point in social interaction and a greater sense of security, and that these effects alleviate the effect of a person's disability.

A right as broad as this is likely to call into question public acceptance of rights to be accompanied by an animal - since other people besides people with disabilities also derive valuable companionship from animals.

This case also highlights the issue of what objective evidence should be available of an animal's status as a trained assistance animal.
In the hearing of this case, Raphael FM did take expert evidence before being satisfied that the dog concerned was appropriately trained.

However, sufficiently clear and reliable evidence of appropriate training may not always be available in advance to retailers, public transport providers or others dealing with an animal other than a guide dog or hearing dog.

This may be a particular problem with an animal trained by its user. In the absence of arrangements for appropriate and independent registration or certification, other people appear to be placed in an untenable position of facing liability if they do not accept a unilateral assertion that "this is a trained animal because I say it is".

Options

The Commission does not believe it would be appropriate to remove all reference from the DDA to "other" trained assistance animals, but does believe that this provision needs better definition.

There appear to be three broad options:

1. the DDA provides a regime for recognition of assistance animals which is then used or reflected in State and Territory and local government regimes regulating animals; or
2. the DDA relies on State and Territory and local government regimes regulating animals to define which assistance animals are recognised for DDA purposes; or
3. options 1 and 2 are both adopted: that is, option 2 is adopted but with provision also being made for recognition more directly under the DDA to provide a means for recognition in those States where appropriate regimes are lacking.

DDA regime for recognition

The purpose of adding a recognition mechanism to the DDA would be to provide users of assistance animals with greater certainty that their assistance animal will be allowed entry by service providers, and to provide other parties with assurance that an assistance animal is in fact a disability assistance animal and meets appropriate standards of training and behaviour.

Clearly HREOC is not in a position to assess all assistance animals itself for this purpose, and it is not expected that the Attorney-General or his Department or other Commonwealth body would be in a position to undertake this role.

As already noted, one possibility would be for the DDA to rely on State or Territory and local government recognition regimes, but this leaves possible gaps in recognition across Australia unless all jurisdictions put appropriate recognition regimes in place.

Another possibility would be for the DDA to recognise assistance animals where the user can show that the animal has been trained or certified by a recognised agency. A recognised agency could be defined as an organisation recognised by regulations made under the DDA, or recognised under the law of a State or Territory regulating assistance animals, as having the capacity to ensure appropriate standards of training and behaviour in an assistance animal.

One issue with this approach would be how to assess which agencies should be recognised, and what body would be able to do the assessing. Making of regulations under the DDA is within the area of responsibility of the Attorney-General and his Department, but assessment of animal training agencies is not likely to be a matter where the Minister or Department have significant direct experience or expertise. If such a role were to be undertaken the decision maker or those making recommendations would need appropriate criteria for decisions and appropriate sources of advice.

Comments are requested on the desirability and practicability of this option.

DDA recognition of other regimes

Comments are requested on whether there are State, Territory or local regimes for definition and recognition of assistance animals which ought to be reflected in or recognised by the DDA.

Interaction between the DDA and health and hygiene laws

Particular concerns have been raised regarding retailers being faced with potentially conflicting duties under the DDA and health and hygiene laws in relation to "other" assistance animals, since these laws provide some recognition of the position of guide dogs but generally do not provide for recognition of other assistance animals.

The most effective means apparent to clarify the relationship between the DDA and health and hygiene laws (or other laws designed to protect public health or safety) as they relate to animals would be for these laws to be prescribed under DDA section 47.

This issue was sought to be addressed, at least as far as the State of NSW was concerned, by that State seeking to have its food hygiene regulations prescribed under section 47 of the DDA. That attempt was withdrawn when the Commonwealth pointed out that these provisions failed to provide adequate definition of the premises concerned or adequate recognition of the position of guide and hearing dogs, and thus that there was a risk that guide and hearing dogs could have been banned from entering premises such as restaurants with table service, or aircraft where meals are served. As far as HREOC is aware, NSW law in this area has not been revised to meet these concerns and there has not been a renewed request for prescription under the DDA from NSW or other jurisdictions.

For prescription to proceed without disregarding the rights of users of assistance animals would also require attention to means for clearer definition and recognition of assistance animals including for the purposes of these laws.

The issue of potential conflict between health and hygiene laws and the DDA therefore remains.

As stated previously, prescription would be dependent on the Attorney-General (and, in the event of a motion being put to disallow the regulations prescribing a law, the Parliament) being satisfied that the laws to be prescribed do not restrict the rights of users of assistance animals beyond what is necessary in the interests of health and hygiene.

The Commission proposes to recommend that the Commonwealth contact Ministers for Health to determine whether they wish to seek prescription under the DDA for relevant provisions, after they have considered whether these provisions provide appropriate recognition for assistance animals.

Comments are requested on any issues with this approach, and any other laws which might also be considered for prescription.