Update on assistance animals and health regulation
See also: Discussion Paper | Submissions
Issued: 15 August 2000
In 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:
- There 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.
- The 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 future.
- 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 made accordingly.
- 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 dogs.
- 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 views.
- A 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).
