People with Disabilities (NSW) Inc. (PWD) is the peak across-disability advocacy organisation in New South Wales. PWD's primary membership is made up of people with disability and organisations constituted by 75% or more people with disability. PWD also has a large associate membership of individuals and organisations committed to the disability rights movement.

PWD welcomes the opportunity provided by the Commission to contribute our views in response to the discussion paper "Assistance Animals, the Disability Discrimination Act and health and hygiene regulations". The diversity of PWD's membership provides us with the unique opportunity to comment on this issue outside the framework of the traditional "categorical" approach to disability. In particular, in formulating this submission we have been concerned to articulate the interests of people with disability who may currently utilise companion animals other than guide or hearing assistance dogs, or who may do so in the future.

PWD acknowledges with appreciation the expertise and guidance of a number of its members who developed or contributed substantially to this submission.

In PWD's submission, the starting points in any consideration of this issue are the objectives and scope of the DDA itself, as set out in s 3 and as reflected in the Act's second reading speech. These objectives provide a constant reminder of what the Parliament of Australia intended to achieve as a result of the passage of the DDA.

We also believe it is important to recognise and give weight to the broad scope of the definition of "disability" contained in s 4 of the Act. The definition is obviously intended to recognise a very broad group of people, not just those that were traditionally 'labelled' as having a disability prior to the passage of the Act.

In the Second Reading speech, the Minister says " ... the legislation will promote gradual structural reforms and attitudinal change - changes which will enhance the opportunities available to people with disabilities throughout community life." This is a crucial issue in our response to the questions posed by the Discussion Paper. At the time the Act passed, the Government was aware of the difficulties people with disability face every day in attempting to participate as Australian citizens and was aware of the lengthy time span which social change can take to achieve. The intent of the Parliament was to ensure a progressive implementation of the DDA, and sections, such as section 9, were written in a way that would allow for progressive application of the law to the changing circumstances in the lives of people with disability. It is our submission that there is nothing to indicate, at this point in time, that the repeal or amendment of section 9 of the DDA or any changes to health and hygiene laws is necessary.

The definition of disability contained within the DDA is broad and should underpin how section 9 of the Act is interpreted. At present it allows for a person with a disability to have a visual disability, a hearing disability, or any other disability. It also provides for guide dogs; or a dog trained to assist in activities where hearing is required; or any other animal trained to assist the person to alleviate the effects of their disability. PwD is of the opinion that there must continue to be the legislative scope, as set out at present in section 9 of the DDA, for other assistance animals to be recognised as well as guide dogs and hearing dogs.

We believe it is premature, in the short lifetime of the DDA, to state what we consider " ...other..." assistance animals to be and we do not believe the discussion paper adequately justifies why such a move should be made. It may appear to be 'convenient' to the Commission to attempt to do this but it is our view 'convenience' should not be a consideration.

It is a matter for the individual person with a disability to decide which animal best assists to alleviate the effects of their disability. We have members who use guide dogs and hearing dogs as well as members who use an assistance animal for a range of activities to assist alleviate their disability. This includes assisting with mobility, picking things up off the floor such as mobility aids/crutches, picking up small and difficult items such as a bankcard which was dropped, holding open doors and for providing stability, and to reduce anxiety.

As stated earlier, PwD believes it was the intention and understanding of Parliament, as evidenced by the Second Reading Speech, that any social change occurring through use of the Act would occur over a long time span. Any changes to, or narrowing of the Act at this time, to only include guide dogs and hearing dogs as assistance animals is premature. It could have the effect of taking away the rights of some people with disabilities, who use assistance animals who haven't utilised the Act to date. It is clear from research overseas that people with disabilities do utilise other types of assistance animals to alleviate the effects of their disability and while no animal other than a dog (to date) has been identified in Australia this may happen with time. We are also concerned that any repeal of the Act in a circuitous way will have the same effect as setting a Standard under the Act.

PwD expects that the use of assistance animals would relate to health and hygiene legislation in the way as it does at present. Proprietors or retailers have the right of refusal now to an assistance animal, if they believe the animal poses any risk to the health of the public. We do not see there is any significant difference, except perhaps from an educative point of view, if the assistance animal is an animal other than a dog.

PwD believes that section 9 of the Disability Discrimination Act is sufficiently clear about the circumstances to which it applies. Its clarity lies in its broad and permissive scope - it does not require a person with a disability to meet criteria before they can use the Act. That is the very real value of the DDA unlike some other anti-discrimination laws overseas. It seems to us that this is consistent with the intention of Parliament as is clear from the Second Reading Speech and the breadth of the definition and coverage of the Act. At this point we do not support any repeal or amendment to section 9.

Health and hygiene laws are presently adequate to provide for the protection of public health. PwD therefore does not believe it necessary to provide a general exception within the DDA.

Again, in our view present health and hygiene laws and regulations provide sufficient coverage of this issue, and do not require prescription under DDA section 47.

PwD is not able to comment on this question but expects the Commission to alert us to any comments on this question before proceeding with any action.

Our view is that in and of themselves guide dogs and hearing dogs only have "legally recognised access rights" if they are accompanying a person with a disability. It is the person with a disability who has the right of access to a premise, good, service or facility, being accompanied by assistance animal. The animal is the means of alleviating that person's disability and that is the only reason for coverage under the DDA.

Whilst complaints from people (predominantly with a visual disability) indicate that there are still instances of discrimination occurring in relation to access when accompanied by a guide dog or dog guide, which might be assisted by more prescriptive provisions, PwD does not support any repeal or amendment to section 9. We understand the indignity and anger caused to a blind person when they are refused access, but our constituency is broader than some other organisations and we cannot agree to the narrowing of the Act at this point in time.

It is important that all groups as stated in section 9 can access their rights under the Act at present. Any change could have the effect of one or two groups of people with disabilities, such as those with visual disabilities, being perceived to be having 'additional rights' to other people with disabilities. It is our view that this was not the intention of the Parliament when it passed the DDA.

• retailers being faced with potentially conflicting duties under the DDA and health and hygiene laws and conflicting responsibilities as between providing non-discriminatory service and safeguarding the health of customers and the public;

PwD is concerned about reports of "retailers being faced with potentially conflicting duties under the DDA and health and hygiene laws" and would request further clarification about who it is, and how many, report such confusion. The rights and responsibilities of retailers under both the DDA and health and hygiene laws seem clear. It may well be that statements are being made to HREOC indicating that retailers are finding this issue confusing but the reason for this lack of clarity is unclear. If a person with a disability is refused access to a place or service due to the fact that they are accompanied by an assistance animal, which is well kept, then it seems a clear breach of the DDA.

However, if a retailer refuses access to a person with a disability who is accompanied by assistance animal where the state of cleanliness/ disease makes the retailer believe the animal will cause the health of customers to be compromised, then under health and hygiene laws they have the right to refuse access.

Any subsequent complaint to the Commission, in either circumstance, would be investigated with both the complainant and the retailer. PwD doesn't see the application of section 9 as being any different or more complex than any other area or ground under the Act. The person with a disability has the right to be accompanied by an assistance animal to places, goods, services and facilities and if refused access the right to lodge a complaint. The retailer has the responsibility to ensure that there is no risk to public health and can only in those circumstances where there is a risk refuse access to a person with a disability being accompanied by an assistance animal.

This 'confusion' is no greater than any other area of interpretation of the DDA in relation to questions of unjustifiable hardship. Given the very limited number of reported cases in this area (we are aware of only two) we must ask why is it that HREOC is pursuing this issue of interpretation to the possible detriment of people with disabilities.

• lack of clarity of rights and responsibilities contributing to conflict between retailers or their staff and users of "other" animals.

Again, PwD is concerned about reports of a "lack of clarity of rights and responsibilities contributing to conflict between retailers or their staff and users of "other" animals". Section 9 is very clear as to who is covered and what assistance animals are covered. Equally, the responsibilities under health and hygiene laws are available to retailers. If there is any confusion or conflict, PwD wonders whether this is based on a lack of education on the DDA and compliance issues – something that is the responsibility of HREOC. It seems a matter for HREOC, in co-operation with the appropriate associations, to develop training programs to cover such difficulties or confusion. In fact, PwD would be happy to participate with any retailers association in the development of a training package which meets the rights of all people with disabilities.

The issue that should be addressed is dealing with the confusion by education – not by limiting the progressiveness of the DDA.

Should section 9 only apply to guide dogs and hearing dogs?

The discussion paper states that repeal of section 9 would not appear to involve substantial loss of rights because of the existence of section 6 of the DDA.

This would seem to be a misinterpretation of section 6 of the DDA in that it will only be effective for those people who have a particular disability that commonly requires the use of assistance animals. This is because of section 6(a) of the Act which requires the allegedly discriminatory requirement or condition to be one which a 'substantially higher proportion of persons without the disability comply with or are able to comply with'. This implies a substantially higher proportion than people with the particular disability. If a service provider, for example, imposes a condition that no animals are permitted onto its premises, and the person with a disability uses an assistance animal, but most other people with that particular disability do not use an assistance animal, it will be extremely difficult for that person to show that this condition is one which a substantially higher proportion of people without that disability than with that disability are able to fulfil or comply with. This is because most other people with the same disability will also be able to comply with the condition.

Section 6 is more readily interpreted to enable people with such disabilities as are commonly assisted by trained animals to satisfy the requirements of section 6(a). This is because all people with that disability who use an assistance animal will be similarly unable to comply with the requirement or condition, but most people (or a substantially higher proportion of people) without that disability will be able to comply.

Therefore, repeal of section 9 and reliance on section 6 to deal with discrimination, in the form of rules that effectively exclude people who use assistance animals because of their disability, will have the effect of significantly limiting the category of people who currently have the right to non-discrimination recognised under section 9.

The intention of the Parliament is quite clear on the face of section 9 and should not be limited in any way or repealed.

See our answer to Question 2.

• what certification or other evidence of training of these animals is available to demonstrate to owners or operators of premises that they should be admitted;

This issue is one where there seems to be very differing and passionate views within the disability community and within our membership. PwD acknowledges the importance of the selection and training of assistance animals of any type and acknowledges that it is a complex process. This issue is however most appropriately dealt with in the event of a complaint. We understand that some disability representative groups have developed and prefer a standardised training system for their assistance animals; but we also support the right of the person with a disability to select and train an assistance animal themselves, without having to go through an accredited organisation as the only way to have the use of an assistance animals to alleviate the effects of their disability.

We do not support the establishment of a standard setting and accreditation process which precludes a person with a disability from training their own animal. We oppose the requirement of accreditation which can have the effect of supporting 'specialist organisations' providing such training: we see this as reinforcing restrictive practices and contrary to the rights focus of the DDA.

• whether the Commission should recommend removal of the reference in section 9 of the DDA to animals other then guide dogs and hearing dogs

See our answer to Question 6.

It is PwD's view that section 9 in its present form is clear enough in its application where a person is allowed in but the assistance animal is not. There are only limited circumstances under which a proprietor/retailer can refuse entry – these being where there are public health concerns. PwD believes that any subsequent DDA complaint would be investigated by HREOC and a conclusion arrived at.

.

HREOC should approach complaints under section 23 of the DDA regrading access to premises where there is an apparent conflict between the DDA and health and hygiene laws as it approaches the investigation of any other complaints. If the complaint is made by a person with a disability that they have been discriminated against by a retailer and refused access because they were accompanied by an assistance animal then

• if the animal, in question, was well kept
• had no infectious diseases or
• didn't present a risk to public health

surely the complaint would be accepted for investigation proceed through the process. However, if the Commission found that the assistance animal did present a risk to public health then the complaint would be declined.

PwD sees no reason for there to be any change to usual process just because an assistance animal is involved.

• whether there are any circumstances where the correct application of section 24 of the DDA regrading access to goods, services and facilities requires it to refuse to accept an unjustifiable hardship defence based on compliance with a public health provision

PwD is unsure of what this means and therefore has not provided a response.

As stated earlier in our comments on Question 4 we see no reason why there needs to be any amendment to public health and hygiene laws.

PwD does not see it as necessary to have any health and hygiene laws prescribed under the DDA.

As discussed earlier, it is PwD's view that a more general public health exception, other than the current section 48, is not needed.

Please see our answer to Question 8.

• whether this would avoid the need for other actions such as prescription of public health laws

No comment

PwD is not aware of any such information.

• remedies available under State and Territory laws giving assistance animals rights of access, including procedures for enforcement in practice

No comment

In conclusion PwD makes the following points:

• it is not necessary to repeal or amend section 9 to clarify what it means as it is clear at present;
• PwD does not support any repeal or amendment of the DDA in this area at present. It believes that this would be against the intention of Parliament in enacting the DDA as is reflected in the second reading speech
• PwD believes that there is an argument in support of including animals owned and trained by people with differing disabilities other than those 'traditionally' accessing section 9. For example, we believe that any person with a cognitive disability should be covered by section 9 if they had an assistance animal and that assistance animal alleviated their disability. The term 'alleviate their disability' is not defined in the DDA and we take it to mean an assistance animal who alleviates the effects of disability which may include isolation, the lack of opportunities to form social relationships, and the effect of being a marginalised and oppressed group of people within the Australian community
• present health and hygiene laws are sufficient to cover the concerns of retailers and we therefore do not support the amendment or prescription within the DDA of health and hygiene laws
• if the issue is one of concern to retailers, as it appears, then the industry association which covers retailers needs to embark on an education program to clarify the issues pertaining to the DDA and health and hygiene laws with which they also need to comply
• PwD questions why at this point in time the Commission has seen fit to raise this issue for comment and submission. How big a problem is this? There is some information re this in the discussion Paper but we are still left wondering.