Update on assistance animals
and health regulation
Paper | Submissions
15 August 2000
response to a letter from a local government authority requesting clarification
of rights and responsibilities under the Disability Discrimination Act
("the DDA") regarding assistance animals in relation to food
and health regulation, the Disability Discrimination Commissioner recently
wrote making the following points:
is a need for clarification in this area. The Discussion Paper and call
for submissions issued by HREOC in 1999 was intended to assist in identifying
options for this purpose.
proposals made in the submission by Assistance Dogs Incorporated and
supported by Blind Citizens Australia provide a suitable basis for consideration
of reform (though not necessarily for adoption unaltered).
- Effective reform
in this area will require co-ordinated responses from the areas of health
regulation and anti-discrimination law.
- The Commission will
be seeking to advance this matter with relevant parties in the near
- Laws and regulations
on food are not presently prescribed laws for the purposes of the DDA.
Prescription would require that the governments concerned approach the
Commonwealth Attorney-General and that the Attorney agree to have regulations
- A proposal to prescribe
New South Wales provisions in this area last year was not proceeded
with, because (as pointed out by the Commission and by community members)
these provisions failed to provide adequate definition of the premises
concerned or adequate recognition of the position of guide and hearing
- There would be considerable
opposition to prescription of such laws without some provision being
made for recognition of sufficiently trained assistance dogs.
- Even without prescription,
however, in the Commissioner s opinion compliance with food regulations
provides a defence to a complaint of unlawful discrimination by reference
to DDA section 9.
- The Commission has
consistently decided that no act of unlawful discrimination can be found
under the DDA where a person has no power or discretion under the law
to act otherwise.
- Some submissions
in response to the Discussion Paper assert that the DDA displaces health
and hygiene legislation, but in the Commissioner s view this is not
correct. The unjustifiable hardship provisions of the DDA should be
seen as ensuring that the DDA in effect gives way to mandatory provisions
of health and hygiene laws rather than overriding them. DDA sections
23 (regarding access to premises) and 24 (regarding provision of services)
recognise a defence where unjustifiable hardship would be imposed on
the person providing access or services. Although no authoritative decision
on this point has yet been made, it would have to be recognised as an
unjustifiable hardship for a person to be required to commit an offence
under another law.
- This opinion is
only an opinion. The Federal Court is the authoritative interpreter
of the DDA and is not bound to agree with or defer to the Commission's
more certain and satisfactory position would require further development
of State regulatory regimes (including in recognition of assistance
animals other than guide dogs and hearing dogs) and endorsement of those
regimes for DDA purposes (through possible prescription of laws and
potentially through DDA amendments).