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Reform of the assistance animals provision of the Disability Discrimination Act

 

REPORT FOLLOWING CONSULTATIONS ON SECTION 9(1)(f) OF THE DISABILITY DISCRIMINATION ACT 1992 DEALING WITH ASSISTANCE ANIMALS OTHER THAN GUIDE DOGS AND HEARING DOGS.

Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner

18 November 2003

Section 9 of the Disability Discrimination Act ("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 may derive valuable assistance from appropriately trained dogs.

A decision of the Federal Magistrates Court in 2002 - Sheehan v Tin Can Bay Country Club [2002] FMCA 95 (9 May 2002) - highlighted concerns about how the DDA provides for recognition of assistance animals other than guide and hearing dogs. Concerns about the operation of section 9 of the DDA have been raised on a number of occasions by local government, retailers, public transport providers and guide dog organisations, as well as by some organisations involved in training assistance dogs.

The court in Sheehan v Tin Can Bay Country Club found a dog which made its owner, a man with an anxiety disorder, feel more confident in social interactions, to be an assistance dog, and to be a trained animal because its owner had trained it; and found it to be unlawful discrimination to prevent the dog being into public premises or to require the dog to be kept on a leash while there. The Disability Discrimination Commissioner regards that decision as rendering the operation of section 9 unsustainable in its current form.

In July 2003 the Disability Discrimination Commissioner released a paper discussing concerns that section 9 of the DDA does not give adequate definition to rights and responsibilities in relation to animals other than guide or hearing dogs, and seeking comments on options for reform. Concerns identified included

The paper also sought comments on possible approaches to recognition of assistance animals and agencies for their accreditation, either directly under the DDA or under State and Territory based regimes or both.

Submissions and comments on issues raised by submissions

Submissions were received from a range of individuals and organisations in the disability community (including guide dog agencies, organisations of blind and vision impaired people, users of "other" assistance animals and organisations training assistance animals); from transport providers and from health authorities:

Submissions are summarised below with comments on issues raised.

Disability Aid Dogs:

This organisation trains assistance dogs, and provided two submissions. Their initial submission strongly supports continued recognition in the DDA of "other" assistance dogs, but also indicates concern about lack of adequate standards regarding how and by whom these dogs can be trained. They acknowledge burdens placed on local government as well as on people with disabilities by the current uncertain position, and are concerned by the effect of this on recognition and acceptance of use of assistance animals.

This submission calls for

In their second submission Disability Aid Dogs provide comments on a number of other submissions, to.

Comments:

Better definition or removal of other assistance animals: As argued by this submission, the most desirable course is to provide better definition within the DDA in relation to assistance animals and for appropriate regimes for their recognition and regulation to be developed rather than removing reference to other assistance animals.

Dogs or animals: The current reference to "animals" rather than dogs may cause confusion. As indicated by the current discussion, even the use of assistance dogs other than guide and hearing dogs is at or near the boundaries of Australian regulatory development and community acceptance. For example, while people with physical disabilities might well derive valuable assistance from trained primates, current quarantine laws and other aspects of animal regulation law would not permit public use for this purpose, and it appears unlikely that Australian laws or community attitudes will change in the near future to permit use of assistance primates, so that it would be misleading for the DDA to appear to create a right to use these animals. The use of miniature horses as assistance animals, which is developing in the United States, would not face the same quarantine issues but would require other issues to be addressed, both in regulatory terms and in community acceptance, such as whether and how these animals would be able to travel on public transport.

However, it would be unfortunate to amend the DDA in a way which completely closed off avenues for recognition of developments which might occur in future in use of other assistance animals, and acceptance of this use in community attitudes and relevant regulatory regimes.

An appropriate response may be to amend the DDA to refer to assistance dogs but also refer to other assistance animals to be prescribed by regulation.

Qualifications for trainers: The appropriate qualifications for people training assistance dogs (or certifying training by others) appears to require further consideration. This consideration is best conducted by authorities which regulate animals in consultation with training bodies and users of assistance animals, rather than being able to be specified by the DDA at this point.

User trained dogs: It does not appear possible at this point for the DDA itself to specify whether all assistance dogs should be trained professionally, or what process of certification ought to be required to guarantee that a dog trained by its user has been trained appropriately. The DDA should, however, at the least require independent evidence that a dog has been appropriately trained, rather than retailers and others being expected to accept a person's own unaided assertion that they have trained a dog as an assistance animal.

Requirement to be able to produce evidence: Such a requirement would improve certainty for all parties. Ideally, the DDA would point to a nationally consistent form of identification based on consistent assessment criteria. Pending further regulatory development however it appears appropriate for the DDA at least to require that a person be able to produce evidence that a dog is in fact an assistance dog and has been trained to meet appropriate standards of behaviour.

Non-acceptance of intimidating or aggressive breeds: This point should be accepted in principle, while noting that some scope may need to be left for assessment of the reasonableness of assessment of a dog as inappropriate for this purpose.

Requirement for direct physical control by handler: Legislation appears needed on this point in view of the decision to the opposite effect in Sheehan v Tin Can Bay Country Club, noting indications from other submissions, including Blind Citizens Australia, that such a requirement applies to guide dogs.

Recognition and regulation functions being conducted at Federal and state levels rather than through local government: Appropriate mechanisms for recognition and regulation appear to require further development through consultation between authorities which regulate animals and training bodies and users of assistance animals, rather than being able to be specified by the DDA at this point..

Psychiatric service dogs: A dog which is trained to provide assistance to a person with a psychiatric disability in respect of the disability would be an assistance dog within the meaning of DDA section 9, and should be recognised as such so long as evidence can be provided that the dog in fact provides such assistance and is has appropriate training and behaviour. However there is a distinction, which should be maintained in the interests of public acceptance of assistance dogs, between assistance and the provision of comfort and reassurance alone, and that this distinction requires statement in the legislation in view of the decision in Sheehan v Tin Can Bay Country Club.

Seizure alert dogs: A dog which is able to provide this form of assistance to a person with epilepsy would be an assistance dog within the meaning of DDA section 9, and should be recognised as such so long as evidence can be provided that the dog in fact provides such assistance and is has appropriate training and behaviour.

Adoption of Assistance Dogs International standards: Appropriate standards for training in order for assistance dogs to be recognised require further development through consultation between authorities which regulate animals and training bodies and users of assistance animals, rather than being able to be specified by the DDA at this point..

N Terell

This submission refers to a wide range of people with disabilities who may derive benefit from an assistance dog and expresses particular concern that recognition should be maintained for epileptic seizure alert dogs.

Comment:

The objects of the DDA would be promoted by assistance dogs being able to provide assistance to people with any disability who are able to benefit from such assistance, so long as the status of these dogs as assistance dogs and appropriate standards of training and behaviour can be sufficiently well evidenced to provide certainty to other parties and avoid undermining public acceptance of assistance dogs including guide dogs.

Psychiatric Service Dogs Society

This United States based organisation emphasises the importance of functions performed by assistance dogs for some people with psychiatric disabilities, including panic alerts. They argue that training by the user is the preferred method for psychiatric service dogs. They also argue that provision of comfort or reassurance by an animal for people with mental illness is in itself a form of assistance which should be recognised as equivalent to sensory or mobility assistance.

Comment:

As indicated above, the objects of the DDA would be promoted by assistance dogs being able to provide assistance to people with any disability who are able to benefit from such assistance, so long as the status of these dogs as assistance dogs and appropriate standards of training and behaviour can be sufficiently well evidenced to provide certainty to other parties and avoid undermining public acceptance of assistance dogs including guide dogs. This does not mean however that the comfort and reassurance provided by being accompanied by a dog can in itself be accepted as sufficient for a dog to be defined as an assistance animal under the DDA.

T Rogers

This submission argues for the benefits of training of assistance animals by their users. It asserts that the presence of dogs in public places presents no different hygiene issues than the presence of people.

Comment:

As indicated above, it does not appear possible at this point for the DDA itself to specify whether all assistance dogs should be trained professionally, or what process of certification ought to be required to guarantee that a dog trained by its user has been trained appropriately. The DDA should, however, at the least require independent evidence that a dog has been appropriately trained, rather than retailers and others being expected to accept a person's own unaided assertion that they have trained a dog as an assistance animal and that it meets appropriate standards of behaviour and hygiene.

D Taylor

This submission refers to the benefits of a seizure alert dog for a person with epilepsy. It argues that for the author's own dog the ability to provide a seizure alert is a natural ability rather than requiring training; and argues that obedience training should be sufficient for recognition.

Comment:

A dog which is able to provide this form of assistance to a person with epilepsy would be an assistance dog within the meaning of DDA section 9, and should be recognised as such so long as appropriate evidence can be provided. The form of amendment proposed in this paper would recognise a dog which in fact provides assistance (where there is appropriate evidence of this), the requirement for training being directed to issues of behaviour and hygiene.

D Fahey

This submission also argues for acceptance of training of assistance animals by their users. The author concedes that some independent evidence or certification of training may be desirable but is concerned that this function should not be restricted to traditional guide dog training agencies.

Comment:

As indicated above, the details of accreditation or certification regimes appear more appropriately developed by authorities which regulate dogs, in consultation with training organisations and the disability community, rather than being able to be specified by the DDA itself at this point.

Guide Dogs Tasmania

Guide Dogs Tasmania argue that while they do not wish to exclude the developing rights of users of other assistance animals, they are concerned to protect the recognition that has been achieved by guide dogs. They emphasises the importance of thorough socialisation and training programs including in relation to hygiene and toileting and behaviour regarding other animals. They note concern from food and other industries regarding confusion as to which animals have access rights. They recommend further investigation to determine appropriate accreditation processes for assistance animals.

Comment:

This paper endorses the view that the DDA ought to indicate that other assistance dogs should meet standards of behaviour and hygiene comparable to those applying to guide dogs, and that further development is needed to determine appropriate accreditation processes for assistance animals. The proposals made in this paper for amendment to the DDA would give some improvement in definition of rights and responsibilities pending development of appropriate regimes in more detail for regulation and accreditation. It is not proposed that the DDA withdraw reference to other assistance dogs pending development of such regimes.

Blind Citizens Australia

Blind Citizens Australia support coverage by DDA of other assistance dogs but are concerned by the lack of specification in the current law and indicate concern that confusion in relation to the interpretation of section 9 could undermine the effectiveness of legally recognised access rights for guide dogs and hearing dogs. They argue that retailers and other service providers have a right to be sure that they are not breaching any law in permitting access or providing services to a person using an assistance dog, and a right to be completely assured and confident that all animals, including dog guides, are trained to a certain level, their appropriate behaviour is guaranteed and they do in fact provide disability related assistance to the user.

BCA recommends an amendment to the DDA in relation to assistance animals to define an animal as "trained" only when:

BCA argues that the term "trained to alleviate the effects of disability" must incorporate much more than companionship and increase in self-confidence, while accepting that it is important not to exclude people with mental illnesses who require support other than with physical tasks or mobility. In balancing these two issues, BCA believes that the process of only providing legal rights to users of assistance animals from accredited agencies should provide sufficient assurance to service providers even in situations where a person's disability is not immediately obvious.

BCA recommends that State and Territory governments should develop schemes that enable organisations which train animals to assist people with disabilities to gain accreditation and that a card similar to the card which is used by dog guide users should be issued to people using assistance animals and should be carried at all times the animal is being worked in public.

BCA rejects the option of prescribing State and Territory health and hygiene laws under s.47(3) of the DDA, arguing that its suggested clarifications to s.9 and the adoption of laws or protocols for the accreditation of organisations training assistance animals and their users should obviate the need to prescribe State/Territory health and hygiene regulations under s.47(3).

Comments:

Training by accredited organisation: There are clear advantages in terms of quality assurance for training, or at least certification, of assistance animals to be conducted by organisations accredited for the purpose. However, to amend the DDA to insert such a requirement at this point, before consistent accreditation regimes are in place, would in effect remove many users of "other" assistance dogs from coverage by the DDA. It appears preferable to make some immediate improvements in definition within the DDA together with provision for subsequent regulations to recognise the development of more specific recognition regimes as they arise. BCA's view regarding the desirability of State and Territory governments developing appropriate accreditation and identification regimes should be endorsed.

Companionship v assistance: As indicated above, there is an important distinction in this respect which should be recognised in the DDA.

J Oliver

This submission emphasises the wide range of people with disabilities who benefit from assistance animals and refers to a lack of agencies training animals for use other than for people with sensory disabilities. The author notes a wide range of needs which assistance animals may serve for people with psychiatric disabilities.: "The animal can act as a physical barrier between the person and others; identify dangerous persons; and act as a focus point during anxiety attacks." This submission calls for a centralised accreditation and registration agency and questions local government expertise for this purpose.

The author also asserts that assistance animals "are kept well groomed and clean. Regular vaccinations, worming, flea and tick treatments are used to kept the animal in peak physical condition. They are healthy and of good temperament, and completely toilet trained."

Comments

Psychiatric service dogs: As noted above, it is appropriate for the DDA to apply to use of assistance dogs by people with disabilities without restricting this to sensory and mobility assistance. However the presence of a dog for self confidence or physical protection in itself does not amount to provision of assistance in relation to a disability.

Grooming and hygiene of all assistance animals: It is not at all clear what guarantees there are that all assistance dogs have the desirable features the author asserts them to have in the absence of requirements for training or certification.

Centralised accreditation and registration: While national consistency may be desirable, regulation of dogs for most purposes in Australia is in fact within the field of State, Territory and local governments.

Guide Dogs Victoria

This submission supports the views put by Blind Citizens Australia.

Comments:

See comments on BCA submission.

Association of the Blind Western Australia

This submission argues that

Comment:

The proposals made in this paper for amendment are consistent with this submission.

Senator E.Abetz

This submission, on behalf of Senators Abetz and Calvert, supports the views expressed by Guide Dogs Tasmania.

Comment:

As indicated above the proposals in this paper are intended to address the concerns raised by Guide Dogs Tasmania among other organisations.

Assistance Dogs Australia

Assistance Dogs Australia (ADA) trains dogs for a number of purposes:

Their submission sets out the training and behavioural standards indicated by Assistance Dogs International, an association of which ADA is a member. They make the following recommendations:

Comments:

Qualifications for training organisations: It does not appear appropriate for these issues to be specified directly by the DDA. As indicated above, development of appropriate regimes for recognition by relevant State and Territory authorities would be useful. In this context, it might be considered unusual for recognition of an organisation for regulatory purposes in Australian law to depend on membership of an international non-government organisation. It might be thought more relevant to ensure that organisations meet appropriate standards and procedures. The Assistance Dogs International materials may well provide a useful reference point in discussions in this respect.

Certification by local councils: As noted above, the details of regimes for recognition of assistance animals appear to require further discussion between authorities which regulate dogs, training organisations and the disability community rather than being able to be specified at this point through the DDA. However if user trained dogs are to be accepted as assistance dogs some evidence of appropriate training and behaviour is required, and local government could provide an accessible means for assessment and certification to occur.

Identification and restraint: As indicated above, assistance dog users should be able to produce appropriate identification, without the DDA itself necessarily specifying the form of identification. It is also agreed that assistance dogs in public should be restrained by being on a leash or in harness.

Service dogs only: The view should be endorsed that to be recognised as assistance dogs for public access purposes a dog must be trained for appropriate behaviour in public rather than only for assistance in the home.

ACT Road Transport Authority

The ACT Road Transport Authority notes that there is a prohibition in the ACT on taking animals onto buses without the driver's permission but that this prohibition does not apply to assistance animals, defined in the same terms as the current terms of section 9 of the DDA.

This submission supports a nationally coordinated approach through 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.

Comment:

As noted above the most appropriate means to achieve progress towards better definition of rights and responsibilities in this area appears to be for the DDA to be amended as set out at the commencement of this paper, without seeking to incorporate in the DDA itself at this stage a detailed recognition regime, which should rather emerge from further work at State and Territory level and could then be recognised under the DDA by making of regulations.

Lions Hearing Dogs

This submission supports Blind Citizens Australia's position, that training should be conducted by accredited organisations only. They note that clarification will need to be made on what constitutes an accredited organization and how and by whom these institutions will be approved

Lions Hearing Dogs also recommend that all hearing dogs, guide dogs and assistance dogs should be easily identifiable through lead, collar or harness and that identification cards must be carried by all owners at all times when the dog is working.

Comments:

Accredited organisations: As noted above the recommendation in this paper is that the first step should be some amendments to the DDA to improve the principles applying to assistance animals, rather than requiring training by accredited organisations before a regime for accreditation is in place.

Identification: It is agreed that assistance dog users should be required to be able to produce appropriate identification and evidence.

State Rail Authority NSW

The State Rail Authority indicate that they accept that there is a broad range of disability needs addressed by assistance dogs, but are concerned by the potential for uncertainty in the current legislative position.

They note that rail safety regulations assume that the dog will be under the user's direct physical control.

This submission recommends:

Comments:

Dogs and animals: As noted above it appears appropriate that the reference to an "animal" should be replaced by a reference to a "dog", subject to a power to include other animals by regulation in future if and when this is decided to be appropriate.

Requirement for restraint: As noted above it is agreed that assistance dogs in public should be restrained by leash or harness.

Definition of training: As indicated above an appropriate first step would be to amend the DDA to provide expressly that assistance animals require training to ensure comparable standards of behaviour to those applying to guide dogs. Specification of more detailed standards of appropriate training including registration and certification processes would be useful but appear to require further discussion.

Definition of recognised agency: It is agreed that definition of recognised agencies for purposes of training, certification or accreditation would more appropriately be undertaken by subsequent regulations under the DDA in the light of further development at State and Territory level rather than being undertaken at this point through the DDA itself.

Queensland Health

Queensland Health recognises the important role assistance dogs and play in increasing the independence and dignity of people with disabilities and that accordingly unreasonable restrictions should not be imposed on use of assistance animals. However, they note that consideration must also be given to health and hygiene of the community. Queensland Health supports maintenance of an ability to resolve issues at a state level to supplement DDA requirements.

Queensland Health also recommend

Comments:

Resolution of issues at state level to supplement DDA requirements: The recommended approach in this paper is intended to facilitate this.

Improvements in definition: This paper proposes some improvements to the DDA in this respect.

Standard guidelines or training competencies: As indicated above these might more appropriately emerge from further discussions between State and Territory authorities and training organisations and then be recognised through DDA regulations rather than being specified by the DDA in the first instance.

No rats or birds: As indicated above this paper supports a restriction to assistance dogs, subject to a power to include other animals by regulation in future. It is not expected that regulations would be made to permit assistance rats or birds in public, for the reasons of hygiene referred to by Queensland Health.

Clear identification: The DDA should be amended to require assistance dog users to be able to produce identification. State and territory regimes might usefully specify more detailed requirements in this area which could then be recognised for DDA purposes.

South Australia Public Transport Board

The Public Transport Board support continued coverage by the DDA for "other" trained assistance animals but note that:.

The lack of guidance in the DDA related to section 9 and how transport providers should respond to requests to transport "assistance animals" has created considerable concern to many transport providers following the Tin Can Bay ruling. The lack of specification within the DDA relating to evidence required for an animal's status to be deemed as appropriately trained and the lack of processes associated with the identification of a person's need for assistance by that animal is a significant issue for all parties. This is especially the case where a person wishes to be accompanied on public transport by aggressive or intimidating breeds of dog.

The Public Transport Board, while recognising efforts by HREOC to address current uncertainty, recommends that HREOC support each State and Territory developing strategies and administrative procedures to address the identification and accreditation of assistance animals for use by a person with a disability in accordance with the objectives of the DDA. They suggest such procedures should be reviewed annually over the next five years.

Comment:

The approach proposed in this paper appears consistent with the approach suggested by the PTB submission.

Disability Services Commission WA

This submission notes the importance of assistance animals for a range of people with disabilities but also notes limited availability of training for assistance animals other than guide or hearing dogs.

Comment:

This point indicates one reason why it appears premature for the DDA to specify a particular training or accreditation regime.

Queensland Rail

Queensland Rail endorses the views expressed in the Discussion Paper on uncertainty resulting from the current position of assistance animals, and supports a national recognition regime.

They note that while most handlers of guide dogs and hearing dogs have an ID card that has been issued under the provisions of state guide dog legislation, handlers of other assistance animals need to provide a range of documents to satisfy public transport providers, including

QR state that they would like any changes to the DDA to be practical and flexible and support an approach allowing handlers who self train their animal such as people with a psychiatric disability to have their animals assessed and certified.

Comments:

This paper endorses QR's view on the need for users of assistance dogs to provide evidence of the animal's status as an assistance animal and of appropriate training. As indicated above the most feasible first step appears to be for amendments to the DDA to improve relevant definitions, with more detailed regimes for recognition, certification and identification requiring further development involving State and Territory authorities.

Qantas

Qantas recognises the value of assistance animals and regards it as appropriate for prperly trained and accredited assistance animals to have access to public transport but is concerned by uncertainty under the current provisions of the DDA and the possible effect of this on passenger comfort and safety. Qantas seeks explicit prmission to ask passengers for evidence of need for an assistance animal and the suitability of the animal. Qantas also endorses limitation of section 9 to refer only to dogs. Qantas endorses a requirement that assistance dogs should be trained to levels equivalent to those applying to guide dogs and sees as desirable a nationally consistent accreditation and identification scheme.

Comments

The views indicated by Qantas are similar to those from other public transport operators which are discussed above.

Conclusions and recommendations

Submissions confirm the need for reform in this area.

Some immediate improvement in definition of rights and responsibilities appears possible through amendments to the DDA.

Development of appropriate regimes for recognition and regulation of assistance animals is also desirable, but appears to require further work and to be best pursued through State and Territory authorities in co-operation with training organisations and the disability community, rather than being readily able to be provided through the DDA itself at this point.

Appropriate amendments to the DDA can however facilitate developments in this respect.

Amendments should

It also appears appropriate to provide for regulations to be made specifying the nature of evidence sufficient or required to be provided that an animal is an assistance animal and is appropriately trained - so that the DDA can recognise further developments towards appropriate regimes for recognition and regulation in this area as they occur.