Discussion Paper: Assistance Animals, the Disability Discrimination Act and health and hygiene regulations
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Discussion Paper: Assistance
Animals, the Disability Discrimination Act and health and hygiene regulations
See
also submissions
| July
2000 update
Introduction
The
Human Rights and Equal Opportunity Commission has received a number of
requests for clarification of the relationship between the Disability
Discrimination Act ("DDA") and laws which restrict access by
animals to certain places in the interests of health and hygiene.
This
paper seeks to encourage interested parties to comment on issues in this
area and on actions which the Commission should take or recommend.
Comments
are requested by 30 April 1999, preferably by email to disability@humanrights.gov.au
. Submissions may also be addressed by mail to Disability Rights Unit,
HREOC, GPO Box 5218, Sydney 1042. Where submissions are made by mail please
include a copy on disc (IBM disc format preferred, in any word processing
program or text format) if possible.
To
promote open public discussion and exchange of views, the Commission intends
to make submissions publicly available by posting submissions
made electronically
on its internet site, except where a submission or part of a submission
is clearly identified as confidential.
Overview
of issues
Section
9 of 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".
(Sections
of the DDA referred to in this paper are set out in the Appendix.)
This
Discussion Paper seeks comment on some issues about the operation of this
provision.
- What
assistance animals other than guide dogs and hearing dogs should be
recognised for the purposes of the DDA and how should this relate to
health and hygiene legislation? - Is
DDA section 9 sufficiently clear about the circumstances to which it
applies? - Does
the DDA need to provide a general exception for measures reasonably
necessary to protect public health rather than the present public health
exception in section 48 limited to cases where a person's disability
is an infectious disease? - Do
any health or hygiene laws or regulations applying to animals (either
specific laws regarding food or more general provisions such as quarantine
laws) require prescription under DDA section 47 so that actions in direct
compliance with those laws are not unlawful? - Are
there any applicable provisions of health or hygiene laws which ought
not to be prescribed in their present form because they have or may
have a discriminatory effect beyond what is reasonably necessary in
the interests of public health?
Assistance
animals other than guide dogs and hearing assistance dogs
Section
9 of the DDA applies only to animals which are "trained to assist
the aggrieved person to alleviate the effect of the disability",
not to animals which provide companionship only. Even this distinction
appears to cause some confusion in practice, however, given that the Commission
has received a number of complaints regarding access for companion animals.
The
Commission's current Frequently Asked Questions material states:
The
DDA applies directly to discrimination because a person is accompanied
by a guide dog, hearing dog or other animal trained to alleviate the
effects of a person's disability. A companion animal is not within this
definition. The fact that an animal is house trained or has had obedience
training is not likely to be sufficient for this purpose.
This
prohibits discrimination only against people with a disability. It does
not apply to anyone who does not have a disability but wishes to be
accompanied by an animal. A need or desire for companionship does not
in itself amount to a disability under the Disability Discrimination
Act.
Assistance
animals other than guide or hearing dogs are covered by the DDA. Note,
however, that access to premises with these animals is not necessarily
covered by rights of access provided for guide dogs under other legislation.
Any right of access under the DDA is subject to possible claims of unjustifiable
hardship and would also require evidence of the animal being trained
to meet a need for assistance because of a person's disability.
The
Commission's published summaries of decisions by the President reviewing
decisions to decline complaints includes one relating to a companion animal.
Companion
dog not assistance animal for DDA purposes
A
man complained that he had been discriminated against by a country rail
service provider's refusal to permit him to be accompanied in the passenger
carriage by his companion animal, a chihuahua dog. The President confirmed
the Acting Disability Discrimination Commissioner's decision to decline
the complaint. She found that the fact that the man had trained the
animal to provide him with companionship was not sufficient to establish
that it had been trained to alleviate the effects of his disability
(2 December 1998).
Section
9 does not give a person with a disability any right to bring a companion
animal as such into premises. The animal must be "trained to assist
the . person to alleviate the effect of the disability".
Beyond
this, however, section 9 of the DDA does not prescribe any particular
regime or test to determine in advance of a complaint whether and when
assistance animals other than guide dogs and hearing dogs come within
the scope of the section.
There
is no express requirement in section 9 that the animal has been trained
by a recognised agency or that as well as the animal being trained to
provide assistance the training extends (as guide dog and hearing dog
training does) to giving other parties a high degree of assurance of appropriate
behaviour and health standards in the animal such that it can be safely
admitted where dogs or other animals are in general not permitted.
Equally,
however, section 9 does not indicate what evidence other than certification
by a recognised agency should be accepted as sufficient, either by a retailer
or staff on the spot or by the Commission in the event of a complaint.
The
Commission is aware of concerns, both from sections of the retail industry
and from recognised guide dog agencies and users of their services, regarding
a lack of clear specification in the DDA of when section 9 covers assistance
animals other than guide dogs and hearing dogs. Concerns expressed include
- confusion
in this area undermining the effectiveness of legally recognised access
rights for guide dogs and hearing dogs - 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 - lack
of clarity of rights and responsibilities contributing to conflict between
retailers or their staff and users of "other" animals.
This
Discussion Paper seeks to identify options for clearer determination of
when the DDA requires assistance animals other than guide dogs and hearing
dogs to be admitted to premises.
Should
section 9 only apply to guide and hearing dogs?
One
option could be for the Commission to recommend repeal of the reference
in section 9 to animals other than guide and hearing dogs.
Repeal
of section 9(1)(f) would not appear to involve substantial loss of rights.
People wanting to assert rights to be accompanied by trained assistant
animals other than guide or hearing dogs would remain able to make claims
under section 6 of indirect discrimination and would succeed unless exclusion
of the animal was reasonable. Repeal would, however, remove the impression
which may arise from the present provision that animals other than guide
dogs and hearing dogs can be brought into premises on the same basis as
guide dogs under other laws.
Limitations
of this option appear to be that
- the
Commission can only recommend legislative action and any legislation
would be likely to take time even if agreed to, and - this
option alone would leave unresolved issues of interaction of other laws
with the rights of access of people accompanied by guide or hearing
dogs.
The
Commission seeks comment on
- any
assistance animals in use which are covered by section 9 and which should
be recognised beyond guide dogs and hearing dogs - 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 - whether
the Commission should recommend removal of the reference in section
9 of the DDA to animals other than guide dogs and hearing dogs.
Does DDA section 9 need to be clearer in other
respects?
The
Commission decided in Jennings
v Guan Lee
that requiring a person to leave her guide dog outside a restaurant was
unlawful.
There
is a possible argument that in this situation there is no less favourable
treatment of the person and thus no discrimination under section 9. However,
the section refers to less favourable treatment because a person "is
accompanied" by an assistance animal. If the animal will not be admitted
to premises or will be required to leave, the effect is the person will
not be admitted to premises or will be required to leave, if he or she
remains accompanied by the animal. The Commission therefore regards section
9 as applying in this situation.
The
Commission seeks comment on whether section 9 in its present form is clear
enough in its application where a person is allowed in but the assistance
animal is not.
Unjustifiable
hardship
Section
24 of the DDA, regarding provision of goods, services or facilities, is
subject to a general unjustifiable hardship defence. Where provision of
the goods services or facilities would impose unjustifiable hardship on
the provider, discrimination is not unlawful.
In
complaints regarding access to goods, services and facilities, therefore,
defences based on public health concerns appear at least able to be raised.
Requiring
a person to risk civil and criminal liability for breach of public health
laws and duties could impose unjustifiable hardship, at least where it
can be shown that the act complained of really was required by public
health laws or duties. Where liability is possible rather than certain,
an unjustifiable hardship defence might be available although this appears
less certain. On the other hand, so far as public health or other laws
provide for access rights for guide dogs and (in some cases) hearing dogs,
any claim under the DDA that it would impose unjustifiable hardship to
do what is already required by another law would not succeed.
The
provisions of the DDA regarding unjustifiable hardship are not very specific,
however.
Further,
the application of unjustifiable hardship under section 23 regarding access
to premises is less general than under section 24 regarding goods, services
and facilities. Where a complaint is made regarding access to premises,
unjustifiable hardship is a defence only where:
- the
premises are so designed or constructed as to be inaccessible to a person
with a disability and - any
alteration to the premises to provide such access would impose unjustifiable
hardship on the person who would have to provide that access.
In
most cases regarding admission or exclusion of an animal, this defence
does not appear relevant.
Complaints
to date have involved either
- discrimination
being found where the animal concerned was a guide dog and which was
in any event required by State or Territory laws to be allowed to enter
or - complaints
being declined because the animal was not found to be a trained assistant
animal for DDA purposes.
If
section 9(1)(f) remains in the DDA in its present form, sufficient evidence
of relevant training might be available in future complaints to show that
an animal not having access rights recognised under public health laws
is nonetheless a trained assistant animal for DDA purposes. The Commission
wishes to clarify issues in this area before it and affected parties have
to deal with them in the context of a dispute.
The
Commission seeks comment on
- how
it should approach complaints under section 23 of the DDA regarding
access to premises where there is conflict between the DDA and health
or hygiene laws - whether
there are any circumstances where correct application of section 24
of the DDA regarding access to goods, services and facilities requires
it to refuse to accept an unjustifiable hardship defence based on compliance
with a public health provision - accordingly,
whether the public health provisions concerned require either amendment
(if they are not justified so far as they conflict with the DDA) or
prescription for the purposes of section 47 (so that actions in direct
compliance with these laws will not be unlawful for the purposes of
the DDA) - whether
there are any instances where health or hygiene laws or regulations
conflict with access rights under laws other than the DDA.
Should any public health or hygiene laws be prescribed
under DDA section 47?
Issues
in this area are discussed in the previous section in relation to unjustifiable
hardship. There may also be arguments that, even in situations where an
unjustifiable hardship defence on public health or hygiene grounds would
succeed, this is not clear enough in advance, so that prescription of
the public health laws concerned is justified to provide affected parties
with certainty. The Commission seeks comment in this area.
Should the DDA provide a more general public
health exception than the current section 48?
Section
48 of the DDA permits discrimination if the person's disability is an
infectious disease and the discrimination is reasonably necessary to protect
public health.
This
provision is not a general public health exemption. For reasons not now
readily apparent, it only applies to infectious diseases and not to any
other public health risk, and only applies to a disease of the person,
not to infectious diseases which might be carried or otherwise transmitted
by an accompanying animal.
One
option could be to amend section 48 to provide a more general public health
exemption, in terms such as "This Part does not render it unlawful
to take any action reasonably necessary to protect public health and safety".
Such a broader exception would clearly protect actions done in compliance
with reasonable public health provisions.
It
would also appear to protect reasonable compliance measures even where
these might be found not to have been absolutely necessary. Protection
for "reasonably necessary" actions appears less restricted in
this respect than the requirement for protection of actions pursuant to
a prescribed law that they be "in direct compliance" with that
law.
On
the other hand, protection for "reasonably necessary" measures
would leave a role for the DDA in reviewing any unnecessarily discriminatory
effects of health or hygiene laws or regulations.
The
Commission seeks comment on
- whether
DDA section 48 should be amended to provide clearly for a more general
public health exception - whether
this would avoid the need for other actions such as prescription of
public health laws.
Reliance
on complaint processes
The
Commission could rely principally on dealing with complaints as they arise
to clarify rights and responsibilities in this area.
The
principal limitation of a complaint based approach is that it leaves all
parties concerned uncertain as to their rights and responsibilities until
after disputes arise and are dealt with as complaints.
Publication
of conciliated agreements could give interested parties some information
on good practice, although by its nature conciliation avoids hard-edged
definition of legal rights and responsibilities.
The
Commissioner has decided to publish summaries of decisions to decline
complaints under the DDA where a significant point of public interest
is raised. These decisions depend on the circumstances of the case concerned
and do not have the authority as precedents that court decisions have,
but they may still give useful guidance on what the DDA does and does
not require.
The
Commissioner in appropriate cases can also inquire into a complaint by
open processes allowing for wider and more public participation by interested
parties than a private process between the immediate parties to the complaint.
Such an inquiry could serve the purposes of assisting the Commissioner
in determining whether the complaint should be declined or referred to
the Commission and assisting the parties to identify options for conciliation.
It would need to be seen in the context of any particular complaint whether
such an open inquiry process would add significantly to the process being
commenced by this Discussion Paper.
Self
regulation / recognition of alternative remedies
There
may be industry or enterprise based codes of practice or similar policies
and procedures, or other legislative provisions dealing with issues in
this area, which would be appropriate for the Commissioner to recognise
as providing a more appropriate alternative remedy such that complaints
under the DDA should be declined.
Section
71(2) of the DDA provides a number of grounds on which the Disability
Discrimination Commissioner may decide not to inquire into an act or,
if the Commissioner has commenced to inquire into an act, decide not to
continue to inquire into the act. These grounds include
- the
Commissioner is satisfied that the act is not unlawful (s.71(2)(a)) - in
a case where some other remedy has been sought in relation to the subject
matter of the complaint - the Commissioner thinks that the subject matter
of the complaint has been adequately dealt with (s.71(2)(e)) - the
Commissioner thinks that some other more appropriate remedy in relation
to the subject matter of the complaint is reasonably available to the
person aggrieved by the act (s.71(2)(f)) - in
a case where the subject matter of the complaint has already been dealt
with by the Commission or by another statutory authority - the Commissioner
thinks that the subject matter of the complaint has been adequately
dealt with (s.71(2)(g)) - the
Commissioner thinks that the subject matter of the complaint could be
more effectively or conveniently dealt with by another statutory authority
(s.71)(2)(h)).
A decision
to decline a complaint on the basis that the act complained of is not
unlawful or that the complaint has already been adequately dealt with
is not a final and conclusive statement that there is no liability under
the DDA, because the decision is subject both to internal review by the
President and to judicial review. It may be regarded however as giving
a reasonable degree of certainty.
A decision
to decline a complaint because there is a more appropriate alternative
remedy reasonably available generally does not preclude the Commissioner
from receiving and dealing with a further complaint on the same matter
if the alternative remedy does not in fact resolve or deal adequately
with the matter .(The exception is where the alternative remedy is under
a State or Territory discrimination law, in which case a subsequent complaint
under the DDA would be prevented by DDA section 13.) Other than in relation
to State and Territory anti-discrimination remedies, a decision to decline
a complaint on this basis is only a decision that the alternative remedy
should be used first rather than the DDA being the first resort.
The
Commissioner's power to decline complaints under section 71(2) of the
DDA is exercisable only in the context of a complaint and taking into
account the circumstances of that complaint, rather than being open in
advance to permit the declining of any complaints on a particular issue.
However,
the Commissioner could state in advance as a matter of policy that, subject
to consideration of any reasons for a different decision in a particular
case, certain actions will be regarded as adequately dealing with a certain
type of complaint or other specified remedies will be regarded as more
appropriate.
The
Commission seeks comment on
any
enterprise or industry based codes of practice or other policies and procedures
(existing or under consideration) for identifying animals which are and
are not entitled to admission to premises
remedies
available under State and Territory laws giving assistance animals rights
of access, including procedures for enforcement in practice.
Appendix:
DDA provisions
Indirect disability discrimination
6.
For the purposes of this Act, a person ("discriminator" ) discriminates
against another person ("aggrieved person" ) on the ground of
a disability of the aggrieved person if the discriminator requires the
aggrieved person to comply with a requirement or condition:
(a)
with which a substantially higher proportion of persons without the
disability
comply or are able to comply; and
(b)
which is not reasonable having regard to the circumstances of the
case;
and
- with
which the aggrieved person does not or is not able to comply.
Disability discrimination--guide dogs, hearing assistance
dogs and trained animals
9.
(1) For the purposes of this Act, a person ("discriminator"
) discriminates against a person with:
(a)
a visual disability; or
(b)
a hearing disability; or
(c)
any other disability;
("aggrieved
person" ) if the discriminator treats the aggrieved person less favourably
because of the fact that the aggrieved person possesses, or is accompanied
by:
(d)
a guide dog; or
(e)
a dog trained to assist the aggrieved person in activities where hearing
is required, or because of any matter related to that fact; or
(f)
any other animal trained to assist the aggrieved person to alleviate the
effect of the disability, or because of any matter related to that fact;
whether
or not it is the discriminator's practice to treat less favourably any
person who possesses, or is accompanied by, a dog or any other animal.
(2)
Subsection (1) does not affect the liability of a person with a disability
for damage to property caused by a dog or other animal trained to assist
the person to alleviate the effect of the disability or because of any
matter related to that fact.
Access to premises
23.
(1) It is unlawful for a person to discriminate against another person
on the ground of the other person's disability or a disability of any
of that other person's associates:
(a)
by refusing to allow the other person access to, or the use of, any premises
that the public or a section of the public is entitled or allowed to enter
or use (whether for payment or not); or
(b)
in the terms or conditions on which the first-mentioned person is prepared
to allow the other person access to, or the use of, any such premises;
or
(c)
in relation to the provision of means of access to such premises; or
(d)
by refusing to allow the other person the use of any facilities in such
premises that the public or a section of the public is entitled or allowed
to use (whether for payment or not); or
(e)
in the terms or conditions on which the first-mentioned person is prepared
to allow the other person the use of any such facilities; or
(f)
by requiring the other person to leave such premises or cease to use such
facilities.
(2)
This section does not render it unlawful to discriminate against a person
on the ground of the person's disability in relation to the provision
of access to premises if:
(a)
the premises are so designed or constructed as to be inaccessible to a
person with a disability; and
(b)
any alteration to the premises to provide such access would impose unjustifiable
hardship on the person who would have to provide that access.
Goods, services and facilities
(1)
It is unlawful for a person who, whether for payment or not, provides
goods or services, or makes facilities available, to discriminate against
another person on the ground of the other person's disability or a disability
of any of that other person's associates:
(a)
by refusing to provide the other person with those goods or services or
to make those facilities available to the other person; or
(b)
in the terms or conditions on which the first-mentioned person provides
the other person with those goods or services or makes those facilities
available to the other person; or
(c)
in the manner in which the first-mentioned person provides the other person
with those goods or services or makes those facilities available to the
other person.
(2)
This section does not render it unlawful to discriminate against a person
on the ground of the person's disability if the provision of the goods
or services, or making facilities available, would impose unjustifiable
hardship on the person who provides the goods or services or makes the
facilities available.
Acts done under statutory authority
47.
...
(2)
This Part does not render unlawful anything done by a person in direct
compliance with a prescribed law.
...
(5)
In subsection (2):
"law"
means:
(a)
a law of the Commonwealth or of a State or Territory; or
(b)
regulations or any other instrument made under such a law.
Infectious diseases
48.
This Part does not render it unlawful for a person to discriminate against
another person on the ground of the other person's disability if:
(a)
the person's disability is an infectious disease; and
(b)
the discrimination is reasonably necessary to protect public health.
Inquiries by Commissioner
71.
(1) If:
(a)
a complaint relating to an alleged unlawful act is made to the Commission
under section 69; or
(b)
it appears to the Commission that a person has done an act that is unlawful
under a provision of Part 2;
the
Commission must notify the Commissioner accordingly and the Commissioner
must, subject to subsection (2), inquire into the act and endeavour, by
conciliation, to effect a settlement of the matter to which the act relates.
(2)
The Commissioner may decide not to inquire into an act, or, if the Commissioner
has commenced to inquire into an act, decide not to continue to inquire
into the act, if:
(a)
the Commissioner is satisfied that the act is not unlawful under a provision
of Part 2; or
(b)
the Commissioner thinks the person aggrieved by the act does not desire,
or no other person aggrieved by the act desires, that the inquiry be made
or continued; or
(c)
in a case where a complaint has been made to the Commission in relation
to the act (other than an act to which Division 4 of Part 2 applies)--a
period of more than 12 months has elapsed since the act was done and the
complaint was made to the Commission; or
(d)
in a case where a complaint has been made to the Commission in relation
to the act--the Commissioner thinks that the complaint was trivial, vexatious,
misconceived or lacking in substance; or
(e)
in a case where some other remedy has been sought in relation to the subject
matter of the complaint--the Commissioner thinks that the subject matter
of the complaint has been adequately dealt with; or
(f)
the Commissioner thinks that some other more appropriate remedy in relation
to the subject matter of the complaint is reasonably available to the
person aggrieved by the act; or
(g)
in a case where the subject matter of the complaint has already been dealt
with by the Commission or by another statutory authority--the Commissioner
thinks that the subject matter of the complaint has been adequately dealt
with; or
(h)
the Commissioner thinks that the subject matter of the complaint could
be more effectively or conveniently dealt with by another statutory authority.
(3)
If the Commissioner decides not to inquire into, or not to continue to
inquire into, an act in respect of which a complaint was made to the Commission,
the Commissioner must give notice in writing to the complainant or each
of the complainants of that decision, of the reasons for that decision
and of the rights of the complainant or each of the complainants under
subsection (5).
(4)
Subsection (3) does not apply in relation to a decision of the Commissioner
that is made at the request of the complainant or all of the complainants,
as the case requires.
(5)
If the Commissioner has given a complainant a notice under subsection
(3), the complainant may, within 21 days after receipt of the notice,
by notice in writing served on the Commissioner, require the Commissioner
to refer the complaint to the President.
(6)
On receipt of a notice under subsection (5), the Commissioner must refer
the complaint to the President together with a report relating to any
inquiries made by the Commissioner into the complaint.
(7)
The Commissioner may, for the purposes of this Act, obtain information
from such persons and make such inquiries, as the Commissioner thinks
fit.