Response to Human Rights and Equal Opportunity Commission (HREOC)

Discussion Paper - Assistance Animals, The Disability Discrimination Act and Health and Hygiene Regulations

Response by Blind Citizens Australia

Blind Citizens Australia makes the following points in response to HREOC's Discussion Paper on Assistive Animals, The Disability Discrimination Act and Health and Hygiene Regulations.

Section 9 of the Disability Discrimination Act 1992 (Cth)(DDA) is a strong statement of the right of a blind person accompanied by a dog guide to non-discriminatory treatment. It combines with sections 23 and 24 of the DDA to affirm the right of a blind person accompanied by a dog guide to non-discriminatory access to a range of areas including premises, accommodation, goods, services and facilities.

Our experience in advocating for blind persons who use dog guides is that s.9 has generally operated satisfactorily and in particular has conveyed to the community a strong message that it is unlawful and unacceptable to discriminate against a blind person on account of their use of a dog guide.

Of course, this message still needs to reach many people in our community and the public education efforts of HREOC and blindness agencies on this issue need to be maintained. We still advocate on behalf of several people at any one time in relation to discrimination in this area and there is certainly no evidence that the rate of discrimination is decreasing.

Any changes to section 9 and to other provisons of the Act, to deal with the problems posed by the application of section 9 and health and hygiene regulations, should preserve its rigour and its ability to convey a strong message to the community that it is unacceptable to refuse a blind person accompanied by a guide dog access to employment, premises, goods, services and facilities and accommodation, and other areas.

SECTION 9

The discussion paper raises the possibility that to overcome perceived confusion as to the range of animals to which section 9 applies, that section 9 be amended so that the reference to animals other than dog guides and hearing dogs would be repealed and s.9 would only apply to dog guides and hearing dogs.

The main problem with section 9 years that it does not adequately define the types of animals that will attract the protection of the legislation. "Guide dog" is not defined at all. Hearing dogs are described as dogs " trained to assist ...... in activities where hearing is required." The DDA does not define " training", nor does it set out any standards or accreditation that may be required. The last category which is most relevant to this discussion paper, basically covers any animal " trained to alleviate the effect of the disability".

In the absence of defined terms, the DDA gives any person with a disability the right to make a complaint of discrimination in relation to any animal which that person purports is trained to assist them in relation to the disability. The scope of the section is extensive especially given the broad definition of disability. BCA believes that the coverage of the DDA in relation to assistive animals is far too wide.

BCA's primary concern is to protect, maintain and increase society's understanding about and recognition of the rights of people who are blind and vision impaired and who are accompanied by a dog guide. It is extremely important that nothing derogates from the generally high standing in which dog guides are held. People still express reservations about hygiene and behavioural issues and we have to be vigilant in pursuing discrimination complaints to enforce the special status of dog guides. We need to ensure that dogs or other animals which have this special status are trained to a sufficiently high standard to ensure that the generally high esteem in which dog guides are held is not diminished.

We would support an amendment which clarifies the operation of section 9 both for dog guide users and users of assistive animals and for members of the public, particularly retailers, restaurant managers and landlords or their agents.

At the same time, BCA does not want to prevent the specific coverage that section 9 provides to assistive animals where those animals can be relied on to have reached a certain standard of behaviour and utility to a person with a disability.

Consequently, to protect the public standing of dog guides as the primary mobility aid of many blind people we propose that the DDA is amended to provide a more narrow focus. We believe that the legislation should only protect a person with the disability who possesses or is accompanied by an animal where:

1. the animal is trained by an accredited organisation; and

2. the person is trained to use the animal by an accredited organisation.

An accredited organisation should be defined as any organisation that specialises in training animals to assist people with a particular disability or range of disabilities. Perhaps it is also reasonable that in situations in which an animal has been privately trained, that it be assessed and accredited by the specialist agency.

BCA believes that any animal which does not fall under the above description should not have specific protection. As the Discussion Paper points out, repeal of s.9(1)(f) would not appear to involve a substantial loss of rights. People wanting to assert rights to be accompanied by assistive animals other than those defined above would remain able to make claims under section 6 of the DDA.

Currently, an animal only has to be trained to alleviate the effect of the disability to be covered. We believe this provision is simply too broad and leads to messy jurisdiction disputes.

We are aware of at least one agency, Assistance Dogs for Independence which may satisfy the above requirement of accreditation.

BCA is generally of the view that the comparator model in anti discrimination law creates more problems than it clarifies. We prefer the concept of "unfavourable treatment" or "treated unfavourably" which is present in some legislation. We do, however, believe that it is sufficiently clear with section 9 that it is intended to cover situations where a person is allowed access to premises and the guide dog is expected to remain outside. We certainly would not oppose further clarification.

SECTION 23 and SECTION 24

Complaints under section 23, access to premises, involving refusal of access to a blind person accompanied by a dog guide, should be dealt with on the basis that in most cases, the defence of unjustifiable hardship, as provided for in s.23, will not be a relevant consideration. We acknowledge a potential unjustifiable hardship claim in case where the premises are structured so that a dog guide user must access toilet and wash room facilities by travelling through or near a food preparation area. However, having regard to the transitory nature of the dog guide's presence in such an area, we consider that such a claim should not be successful.

If there was any conflict between the DDA and health or hygiene regulations the DDA should prevail especially if the ambit of section 9 was clarified as suggested above. This would apply to the extent that any health or hygiene regulation was prescribed under section 47(3).

We have had the experience of a respondent arguing that his second-hand furniture shop had so many goods stacked everywhere that it would be unsafe for a person with a dog guide to negotiate the shop. The Commissioner who heard the matter, although she did not make a finding on this point, did seem to think it a relevant or reasonable point. We have always maintained that premises should be safe for everyone.

In complaints under section 24, defences based on public health concerns are often raised. Retailers of food outlets often raise public health laws as a reason why they are not prepared to allow a dog guide in to their premises. There is, among retailers, a lot of uncertainty as to their position and their possible liability under State and Territory health and hygiene laws if they allow a dog guide into their premises. What needs to be remembered about many these cases is that the respondent's were not prepared to look at any documentation or card authorising the dogs' entry. Franky, they do not seem to care whether their position is right in law or not.

In most circumstances such as where a person needs to pass through a kitchen with a dog guide to access the toilets, and in restaurants generally, including where food is served and smorgasboard situations, we believe would require HREOC to refuse to accept an unjustifiable hardship defence based on compliance with public health and hygiene provisions.

A possible solution, from the point of view of users of dog guides and hearing dogs and other accredited animals would be for States and Territories to amend their health and hygiene laws to the effect that a person is not liable under those laws for permitting a trained and accredited animal access to premises or access to goods, services or facilities, if they are not already protected from liability.

SECTION 47

We are strongly of the opinion that so far as dog guides are concerned that health and hygiene laws and regulations should not be prescribed so as to exclude dog guides from a right they would otherwise have but for the law's prescription. We would probably accept that in very limited circumstances it might be reasonable to limit access to premises such as in situation of a dog guide sitting in the kitchen area of a restaurant but that in general any diminution of rights is unacceptable. But when, really, is this likely to happen? Therefore, unless the prescribed law or regulation was extremely carefully worded, it would be unacceptable. For example, in the above described situation, the dog guide and its user should be able to walk through the kitchen area to get to a toilet, be served food in a restaurant or supermarket, be able to approach a smorgasboard or attend as patient or visitor in a hospital. Hence, a law which dealt with food preparation and serving areas generally, would be inappropriate. We would support amendments to the DDA which clarified the situation separate from any issue of prescription so as to enable dog guide users to more easily establish their rights of access. We would prefer to have the current situation of lack of certainty and reliance on general defences of unjustifiable hardship and reasonableness maintained that have rights diminished and an overly prescriptive law or regulation prescribed.

Therefore, we strongly oppose any proposal for the prescription of public health laws and regulations under s.47 of the Act. Such a proposal would mean that a person could refuse a blind person access to premises or to goods, services and facilities, in reliance on a public health or hygiene law, and such refusal would be not be unlawful under the DDA. This would be a substantial erosion of the current position whereby a blind person, accompanied by a dog guide, has a legally enforceable right of access to premises and to goods, services and facilities, subject to the possible successful application of the defence of unjustifiable hardship and/or reasonableness. We believe that the achievement of the objects of the DDA, as set out in s.3, are best achieved by maintaining the rights conferred by the DDA. One of our members who has a dog guide has stated that she believes that the real problem at present lies in promoting a better understanding of the minimal risk associated with dog guides, rather than in prescribing legislation, which seems to be based on unjustified fears. It would be unacceptable to have the law assume the validity of health and hygiene concerns, that may in fact have no practical basis, or worse still, may be based on ignorance, stubbornness or prejudice.

SECTION 48

Any amendment to section 48 of the Act, to provide a more general public health exemption, is unacceptable. Such a potentially wide exemption could be used to justify the refusal of access to premises, goods services and facilities on the basis of public health and safety concerns. Even if these public health and safety concerns were justified in rare instances, in most cases, they will be unjustified and will often be the products of fear ignorance and prejudice. Accordingly, we could not support such an amendment of s.48 in the absence of a related amendment which excused a person from liability under State and Territory health and hygiene laws for non-discriminatory treatment of a person accompanied by a dog guide or other trained and accredited animal. A broad amendment to section 48 would not add clarity. Adequate defences already exist for respondents in terms of unjustifiable hardship and reasonableness. Such an amendment would also have ramifications which significantly exceed the purpose for which it was introduced. In other words, a general public health defence would be used to defend allegedly discriminatory actions which do not involve dog guides and health and hygiene laws.

SELF REGULATION / RECOGNITION OF ALTERNATIVE REMEDIES

BCA has occasionally lodged discrimination complaints under State equal opportunity legislation due to easier enforcement regimes.