Submission in response to the Commission's Discussion Paper: Assistance Animals under the Disability Discrimination Act 1992 ('DDA')

Qantas writes in response to the Commission's Discussion Paper on the basis of its experiences and needs as a service provider under the DDA.

1. Background

1.1 Qantas has had considerable experience dealing with assistance animals. Qantas recognises that such animals can be invaluable to their owners/handlers. Qantas also considers it appropriate that the law should provide for appropriately trained and accredited assistance animals to have access to public transport as well as other public places and facilities.

1.2 Qantas agrees that the current wording of the DDA, without the support of Regulations or Standards, leaves some important issues uncertain. For Qantas, the issues of most relevance are those surrounding the identification of genuine assistance animals which have been appropriately trained and independently accredited and the ability to require information regarding both the role and function of the animal as well as the training it and its owner/handler have undergone.

1.3 For Qantas, when considering these issues, the safety of our passengers and staff (as well as people on the ground) must be our paramount concern. The airline operates subject to the provisions of the Civil Aviation Act 1988 ('CAA'), Regulations made under that Act ('CAR') and decisions of the Civil Aviation Safety Authority ('CASA'). Attached to this submission are relevant extracts from the CAR and a Draft Advisory Circular published by CASA (regarding further Regulations which are being considered but which have not yet been made). The major theme of these Acts and Regulations is safety, and the responsibility for assuring safety is placed squarely on the airline.

1.4 In summary, under the CAA Qantas is not permitted to carry live animals in an aircraft unless:

(a) the animal is carried in a container which is not in the passenger cabin;

(b) the animal is a dog which guides or assists a visually or hearing impaired person and is restrained and sits on a moisture absorbent mat ("Guide Dog"); or

(c) CASA has given the operator written permission to carry the animal, which will usually be accompanied by specific conditions regarding the carriage
of the animal.

Qantas must consider this regulatory regime when assessing what is required in order for it to comply with the DDA.

1.5 Factors relating to safety will include the animal's willingness and ability to stay immobile and silent in a confined space; to tolerate and not react in a hostile fashion to large numbers of unfamiliar people and to stressful environments; and to toilet on command. As well as safety, there are also issues relating to the comfort of other passengers who may be affected by the above factors. For example, Qantas recently had an incident where a passenger demanded to be accompanied by an assistance animal (a dog). The dog was not appropriately trained and barked throughout the flight (from to ) causing considerable discomfort to other passengers (this incident was covered by the media).

1.6 Finally, for Qantas there are significant cost issues involved in carrying assistance animals in the passenger cabin.

2. Information which may be Requested from Passengers

2.1 It is because of the safety, comfort and cost issues involved that it is important for Qantas to be able to ascertain:

(a) whether the 'assistance animal' is required to assist a passenger with a disability in order for that passenger to be able to fly; and
(b) whether both the animal and its owner/handler have been appropriately trained and independently accredited.

2.2 In this context, the level of information that service providers and others may require from passengers or customers becomes a critical preliminary issue. In Qantas' view, it should be lawfully entitled to request such information which is relevant or necessary to determining whether the animal is an assistance animal for the purpose of section 9 and for the purpose of addressing the question of 'unjustifiable hardship'.

2.3 We note that the test for unjustifiable hardship takes into consideration circumstances including the benefit accruing to or detriment suffered by any person, the effect of the disability on the passenger concerned and cost factors. In this context, Qantas considers that there should be an explicit statement in or under the DDA (ie in Regulations or Standards) that it is lawful to ask a potential passenger or customer to provide information which is relevant to making that determination. This may include information about the nature of their disability, its effect on the person's ability to access a service (eg to fly), the role played by the animal in alleviating the disability, the relevant training undergone by both the animal and the owner/handler and the independent accreditation of the animal.

3. Animals other than Dogs

3.1 Some of the submissions already lodged with the Commission recommend that section 9(1 )(f) of the DDA be restricted to assistance dogs rather than 'any other
animal.'

3.2 We note that one of those submissions suggested that a horse might be an assistance animal. Further, the USA Department of Transportation's document
'Guidance Concerning Service Animals in Air Transportation' (published 9 May 2003) suggests that service animals might also include animals such a cats, monkey, snakes and rodents. In Qantas' view, given the diversity of potential assistance animals that passengers may request to carry in the cabin of an aircraft, it would be advisable to amend section 9 to limit its application to dogs. This would mean that only assistance dogs would be recognised as having special 'rights.' In Qantas' view, this would be appropriate because of the historically established reliability of dogs as assistants and the systems established worldwide to ensure that they are adequately trained to support and assist people with disabilities.

3.3 Contrary to the apparent understanding of some of the submissions made to the Commission, this amendment would not prevent service providers from accommodating other types of assistance animals in appropriate cases. Those animals would simply not have the proposed special rights that are accorded to assistance dogs.

4. Training

4.1 As the CAR recognises (and as reflected in submissions to the Commission such as those made by the Royal Guide Dog Association of Tasmania, Blind Citizens Australia, Guide Dogs Victoria and Association for the Blind of WA) there are well- established systems for the training and accreditation of Guide Dogs. Qantas agrees with those organisations when they say that selection, training and accreditation standards for other types of assistance animals which are able to access the protection of section 9 of the DDA should be at a similar level to those which apply to Guide Dogs.

4.2 Qantas also supports the submission of the State Rail Authority of New South Wales, Blind Citizens Australia and Assistance Dogs Australia that any definition of
the training required in relation to such assistance animals should include:

(a) training the animal to alleviate the relevant disability;
(b) training the animal to behave properly and safely in public; and
(c) training the owner/handler in appropriate animal management.

Each of these elements is, in Qantas' view, essential to protect safety on board an aircraft.

4.3 We recognise the point made by the US Psychiatric Service Dogs Society and by D Fahey, that training by the animal's owner is sometimes critical in ensuring that a relevant disability is in fact appropriately alleviated by the animal (element (a) in the preceding paragraph). At the same time, however, we consider that training to cover elements (b) and (c) above must be conducted by an accredited organisation if there is to be any certainty on which a service provider, such as Qantas, can rely. We recognise that this may create cost issues for people with disabilities, but suggest that this should be addressed (perhaps by government funding) outside the context of the DDA.

4.4 In terms of the options outlined in the Discussion Paper, we agree with State Rail that, for reasons of consistency and reliability, a nationally controlled system for
accreditation of trainers is preferable to one controlled at a local government level.

4.5 Finally, Qantas agrees with a number of submissions that the issuing of a card (akin to a credit card) which could be carried by owners/handlers of assistance animals, and issued by the accredited training body, is critical. It would reduce the uncertainty surrounding the areas and questions about which Qantas is concerned. This would assist both in applying section 9 (however it may be amended) an din applying other relevant provisions of the DDA.

Thank you for the opportunity to make this submission. We hope that the Commission will keep Qantas informed about the progress of its investigations and any proposed amendment to the DDA or Regulations or Standards made under it.

Should the Commission have any specific questions, please contact Alison McKenzie (Senior Corporate Lawyer) on (02) 9691-5621.

Yours faithfully,
Wes Nobelius
Deputy General Counsel

ATTACHMENT:

EXTRACT FROM CIVIL AVIATION REGULATIONS AND CASA DRAFT ADVISORY CIRCULAR
Regulation 256A of the Civil Aviation Regulations 1988 relates to the carriage of animals in an aircraft. It provides, in part:

256A Carriage of animals
(1) Subject to subregulation (8), the operator of an aircraft must not permit a live animal to be in the aircraft unless:
(a) the animal is in a container and is carried in accordance with this regulation; or
(b) the animal is carried with the written permission of CASA and in accordance with any conditions specified in the permission...

(2) Subregulation (1) does not apply to a dog accompanying a visually impaired or hearing impaired person as a guide or an assistant if the dog
is:
(a) carried in the passenger cabin of the aircraft; and
(b) placed on a moisture-absorbent mat as near to the person as practicable; and
(c) restrained in a way that will prevent the dog from moving from the mat...
(8) An animal must not be carried on an aircraft if carrying the animal would be likely to affect a person on the aircraft in a way that may affect adversely the safety of the aircraft.'

Draft Advisory Circular published by CASA in September 2001 states, in part:

4. CARRIAGE OF ANIMALS
CASR 91.045 does not prohibit the carriage of animals in an aircraft and does not prescribe the manner in which animals may be carried. However, the CASR identifies the operator as being responsible for the safety of the aircraft and all persons on board the aircraft, while an animal is being carried. It is therefore the operator's responsibility to decide if an animal can be carried without affecting the safety of the aircraft or anyone on board the aircraft'.

Further:
'CARRIAGE OF 'ASSIST ANIMALS'
7.1.1 Carriage
Operators should consider the carriage of 'assist' animals as special cases and allow these animals to be carried in the nassenoer cabin when in cnmnanv with their owner'.

Advisory Circulars are intended to provide recommendations and guidance to illustrate a means, but not necessarily the only means, of complying with the Regulations.