Date: 
Monday 18 January 2016
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It’s widely recognised that some people with disability require support services and assistive technology to facilitate their active participation in public life and for personal activities.  The types of support that can be provided can come from a range of sources, including by trained and skilled assistance animals.

The issues relating to the use and regulation of assistance animals by people with disability are complex and continue to present issues for regulators, including with regard to training, certification and accreditation of assistance animals and handlers.  The information contained on this page is not exhaustive but presents some information about the law and various regulatory schemes across the country. 

Assistance animals are not pets, but rather are highly trained disability support services that enable a person with disability to safely participate in personal and public life activities.  Traditionally, assistance animals have predominately been recognised as a ‘guide dog’ for people who are blind or have a vision impairment.  Our understanding of what constitutes an assistance animal is evolving, and we now understand that the support required for a person with disability can come from a variety of animals, supporting a range of people with disability.

Assistance animals can provide a variety of support to alleviate the barriers people with disability experience in daily activities.  In addition to animals that assist people who are blind or have low vision, assistance animals can also provide support to people who are Deaf or hard of hearing; for people who require physical support for mobility or other functional tasks; people who are experience episodic and serious medical crisis (e.g. epilepsy, changes in blood pressure or blood sugar); and people who experience psychiatric disorders such as Post-Traumatic Stress Disorder, anxiety, hallucinations, panic attacks or suicidal ideation.

Use the links below to skip to particular sections on this page:

What is the legal understanding of an assistance animal

Specific issue of regulation / policy and various laws

Complaints to the Australian Human Rights Commission:

- Examples of conciliated complaints involving assistance animals

- Number of complaints received at the Australian Human Rights Commission

Previous Commission work on assistance animals

 

What is the legal understanding of an assistance animal

An assistance animal is a trained support designed to facilitate the participation of people with disability in accessing various aspects of personal and public life.  They are sometimes mistaken as a pet but provide an essential function for some people with disability.

The Disability Discrimination Act 1992 (Cth) (DDA) in Section 9, sets out the legal definition of an assistance animal as a dog or other animal that:

(a) is accredited under a State or Territory law to assist a person with a disability to alleviate the effects of disability; or

(b) is accredited by an animal training organisation prescribed in the regulations; or

(c) is trained to assist a person with a disability to alleviate the effect of the disability and meets standards of hygiene and behaviour that are appropriate for an animal in a public place.

A recent Federal Court decision provides a good understanding about the law with respect to assistance animals and travel on aircraft.  The judgment can be found here.  A discussion of the key points of the case is below.

Mulligan v Virgin Australia Pty Ltd [2015] FCAFC 130

This is a decision of the Full Court of the Federal Court, allowing an appeal from a decision of the Federal Circuit Court (Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCCA 157).

Mr Mulligan complained that Virgin Airlines Australia Pty Ltd (Virgin) discriminated against him on the grounds of disability, by refusing to allow him to travel on flights while accompanied by his assistance dog. 

Mr Mulligan’s dog had been trained to assist him with relation to his cerebral palsy and vision and hearing impairments.  It had been trained by a dog training school, but not one that was ‘accredited’ for the purposes of the DDA. 

The Court allowed the appeal, and ordered that Virgin pay Mr Mulligan compensation in the amount of $10,000.  The Court also declared that the conduct of Virgin amounted to unlawful discrimination under the DDA. 

The key findings of the Court in the appeal include:

1. An animal may be an assistance animal under the DDA if it has received relevant training, regardless of who has provided that training.  It isn’t necessary that an animal has been trained by an ‘accredited’ organisation.  The DDA provides several ways an animal can qualify as an assistance animal.  Under one of these, an animal will qualify as an assistance animal if it is trained to assist a person with a disability, and trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.  The Court found that Mr Mulligan’s dog was trained to meet this definition of an assistance animal under the DDA. 

2. The correct ‘comparator’ for Mr Mulligan was a person who was not accompanied by an assistance animal.  (The correct comparator was not a person without a disability, who wanted to bring a dog onto a plane.)  Mr Mulligan had claimed that Virgin ‘directly’ discriminated against him.  To make out a claim of direct discrimination, it was necessary for Mr Mulligan to show that he was treated less favourably than a person ‘without [his] disability’ would have been.  The DDA has special provisions relating to assistance animals.  To discriminate against a person because they are accompanied by an assistance animal amounts to discriminating against them because they have a disability. 

3. The Civil Aviation Regulations did not override the DDA, and prohibit Virgin from carrying Mr Mulligan’s dog.  Virgin had argued that it was only allowed to carry animals in the cabins of its aeroplanes if the animals met requirements which were contained in a ‘Permission’ issued by the Civil Aviation Safety Authority (CASA).  Acting under the Civil Aviation Regulations 1988 (Cth), CASA had issued Virgin with a ‘Permission’ allowing it to carry assistance animals that met a strict set of criteria, including a requirement that the animal be trained by certain accredited organisations.  Mr Mulligan’s dog had not been trained by an accredited organisation. 

Virgin argued that this CASA Permission took precedence over the DDA.  That is, Virgin argued that because Mr Mulligan’s dog did not meet the standards set out in the CASA Permission, the DDA did not apply.  The Court held that this was not the case.  It held that an exception in the Civil Aviation Regulations applied to allow Virgin to carry Mr Mulligan’s dog.  Those Regulations do not prohibit an airline from carrying a dog that is trained to assist a person with a hearing or vision impairment.  Mr Mulligan’s dog met this definition. 

(The outcome of this case could have been different if Mr Mulligan’s assistant animal was not a dog, or if Mr Mulligan’s disability did not include a vision impairment or a hearing impairment). 

4. The CASA ‘Permission’ and the Civil Aviation Regulations were not ‘prescribed laws’ for the purposes of the DDA.  The DDA contains an exception which says that it is not unlawful under the DDA to do an act if a person (or a company like Virgin) does it to comply with a ‘prescribed law’.  However, a law only qualifies as a ‘prescribed law’ if it is specially prescribed in the Disability Discrimination Regulations 1996 (Cth), which the CASA Permission and the Civil Aviation Regulations were not. 

5. Further, the Court held that the CASA ‘Permission’ was not a ‘legislative instrument’.  That was another reason that it could not be a ‘prescribed law’. 

6. The Court in this case did not consider the question of what kind of evidence a person who claims they have an assistance animal can be asked to provide to show that their animal is:

(a)  an assistance animal; and

(b) trained to meet appropriate levels of hygiene and behaviour. 

The DDA states that it is not unlawful to ask for this evidence, and it is not unlawful to discriminate against a person who does not provide evidence of these matters.  Because of its other findings, the Court did not need to consider in detail the questions of what kind of evidence a person can ask for, how much evidence they can ask for, and how persuasive it must be.

 

Sign saying no entry for dogs except assistance dogs

Specific issue of regulation / policy and various laws

The Australian Human Rights Commission recognises the work of the Victorian Disability Discrimination Legal Service (DDLS) in formally expressing to the Commission, its views on the current confusion around assistance animal legislation and policy in Australia.

The submission from the DDLS (accessible here) highlights apparent inconsistencies in laws and policies across the States and Territories, and between the States and Territories and the Commonwealth, which mean that people who use assistance animals face discrimination, uncertainty and a range of associated challenges to accessing the community.

The example provided in the DDLS submission describes the barriers that a woman from Western Australia encountered when accessing a public train while visiting Victoria. The DDLS states that she was asked to leave the train by Victorian police and issued an infringement notice despite having an assistance animal approved in Western Australia and it wearing appropriate certification. Such situations highlights potential barriers to travelling interstate for people using assistance animals.

Variation among states and territories regarding accreditation and regulation of assistance animals will continue to present a range of issues for people with disability who use assistance animals to access the community. Examples of the situation in each jurisdiction is set out below.

  • Victoria – an Assistance Animal Pass is required and issued by Public Transport Victoria permitting assistance animals to travel on public transport.  The pass is valid for 3 years.
  • Western Australia – The Public Transport Authority doesn’t require permits for assistance animals to travel on public transport.  There is local government legislation providing for animals to have an ID card and a dog coat/harness.
  • Queensland – A Handler’s Identity Card is valid for 5 years allowing travel on public transport.  Also, Translink (South East Queensland Transport Authority) issues an Animal Pass provided the dog meets certain standards of behaviour in public.
  • South Australia – The Dog and Cat Management Board issues a Disability Dog Pass that is valid indefinitely. 
  • New South Wales – An Assistance Animal Permit is required for access to public transport, however Guide dogs and Hearing dogs do not require a permit.  The permit must be renewed annually. 
  • Australian Capital Territory, Northern Territory and Tasmania – no system of accreditation exists and no specific passes issued.

In addition to the regulatory variation among states and territories, the existing law can create confusion as it provides permission for animals who have been certified or accredited to travel, in addition to those who have had appropriate training, but don’t have accreditation or certification. The determination of appropriate standards of ‘hygiene and behaviour’ is also an issue of confusion, as it is not specifically set out in the DDA.

The DDLS has called for a number of changes, recommending the following:

  • A national model or interstate recognition of assistance animal identification and certification.  They specifically suggest the States and Territories consider introducing a provision similar to the Western Australian provision (section 8(1) E of the Dog Act 1976 (WA)), recognizing the accreditation of an assistance animal from a different state or territory.
  • One permit that can be used for a variety of legitimate purposes, so that a person could access public transport, employment, educational settings for example.
  • The validity period and renewal of certification can impose burden on people with disability in terms of cost and inconvenience, if too regular.  South Australia has an indefinite time period, which has been indicated as generous, alternatively the 5 year validity period in Queensland is also noted.

Ultimately with the implementation of the National Disability Insurance Scheme (NDIS) more people with disability can be expected to be exercising their right to access their communities and utilize appropriate supports, including assistance animals.  The Assistive Technology Strategy of the NDIS includes a regulatory role for the Agency around spending provisions with regard to Guide Dogs.  Without associated changes to address the current gaps in policy and regulation across the country with regard to assistance animals, continued barriers and discrimination will remain for people with disability who rely on these supports on a daily basis.

 

Complaints to the Australian Human Rights Commission

The Australian Human Rights Commission receives complaints regarding discrimination against people with disabilities who use assistance animals.  Data relating to complaints received over the past three years (1 July 2012 to 30 June 2015) is provided in the tables below.  Prior to these statistics are case examples of issues related to discrimination against people with disability using assistance animals.

Examples of conciliated complaints involving assistance animals

 

Cafes/restaurants/shopping centres/other recreation

1. The complainant has bipolar disorder and social anxiety and uses an assistance animal trained by a specialised service to alleviate the effects of her disability. She claimed a security guard from the respondent company denied her access to the respondent shopping centre with her assistance dog because she is not 'blind', despite her providing identification information about the assistance dog. On being advised of the complaint the respondents indicated a willingness to try to resolve the matter by conciliation. The complaint was resolved. The shopping centre and security company assured the complainant she would be welcome to attend the shopping centre with her assistance dog in the future. They also agreed to deliver training to staff based on materials provided by the specialist service that trained the complainant's dog.

2. The complainant’s seven year old son has Autism Spectrum Disorder and uses an assistance dog to assist him with anxiety in public places. The complainant claimed the respondent zoo discriminated against her son by refusing him entry because he was accompanied by the assistance dog. On being advised of the complaint the respondent indicated a willingness to try to resolve the matter by conciliation. The complaint was resolved after the respondent apologised for the inconvenience and upset experienced by the complainant and her family. The respondent also undertook to reconsider the proposed layout of its new zoo to enable the entry of assistance and guide dogs and to reflect this information on its new website. The respondent explained, and the complainant agreed, that dogs would not be permitted entry to some areas for biosecurity and quarantine reasons.

3. The complainant has a disability that affects her mobility and balance. She was a regular spectator at a local sports club and claimed the club's manager had denied her access to the club because she was accompanied by an assistance animal she had trained to alleviate the effects of her disability. The club noted that the complainant's assistance animal did not meet that state's legislative requirements for accreditation and explained it was unaware an 'assistance animal' under federal law could include an animal trained by its owner. The complaint was resolved. The club undertook to review its policies regarding assistance animals to ensure compliance with federal disability discrimination law. The club's manager also expressed regret for any misunderstanding.

 

Health/medical services

4. The complainant has a vision impairment and uses a guide dog to assist her mobility. She claimed that the respondent dental practice did not allow her to take her guide dog into the treatment room on a number of occasions even though she presented documentation certifying her dog as an assistance animal. The complainant also claimed that on one occasion, a dentist at the practice attempted to fit her dentures in the waiting room as her dog was not allowed to enter the treatment room.  

The dental practice claimed that it allowed the complainant’s guide dog into the treatment room on the initial two occasions however on the third occasion, the dog was not allowed to enter the room because the practice had formed the view that the room should be a sterile environment. The practice claimed that even though it did not allow the complainant’s guide dog into the surgeries on an occasion, it provided the complainant with all dental services, as required.  The complaint was resolved with an agreement that the practice pay the complainant $4,000 and provide disability awareness training to its staff.

5. The complainant has an acquired brain injury and has two assistance animals trained to help manage the effects of his disability. He claimed the respondent private health service did not grant him access to its premises to undergo an x-ray because he was accompanied by his two assistance dogs. On being advised of the complaint the health service indicated a willingness to try to resolve the matter by conciliation. The complaint was resolved with an agreement that the service write to the complainant expressing regret for his negative experience and confirming that in the future he would be granted access to outpatient services with his animals.

6. The complainant has an accredited assistance animal trained to alleviate the effects of a psychosocial disability. She claimed that when she went to the emergency department of the respondent public hospital for medical attention she was told she would need to leave her dog outside. She said eventually a nurse examined her in the ambulance bay and her assistance animal was allowed to remain with her. However, the complainant claimed this meant her privacy was not respected, as passers-by could see into the room through a glass door. 

On being advised of the complaint the hospital indicated a willingness to try to resolve the matter through conciliation. The complaint was resolved with an agreement that the hospital pay the complainant $250 ex-gratia and write to her expressing regret for any hurt or distress she experienced as a result of her visit to the hospital. The hospital also undertook to review and update its assistance animal policy and provide relevant training to emergency staff.

 

Travel

7. The complainant has a psychiatric disability and has an assistance dog. The complainant said her dog was accredited by a training organisation approved of by the respondent low cost airline. The complainant said she had travelled with her assistance animal on this airline on a number of occasions. The complainant said that this time, when she attempted to make a booking with the airline, she was told her assistance dog no longer met the criteria for travel on the airline because the training organisation was no longer on the airline's list of approved training organisations. 

The airline claimed it had no choice but to act as the training organisation in question did not satisfy the criteria for recognition as an approved training organisation. The airline said the complainant was welcome to travel with her assistance dog in the future if she could show that it had been trained by an approved organisation listed on its website.

The complaint was resolved. The complainant's assistance dog was accredited by one of the organisations approved by the airline for the purposes of enabling passengers to travel with their assistance animals. The airline confirmed the complainant would now be able to travel with her assistance animal. The airline also offered the complainant two vouchers for air travel between any two locations within its Australian domestic network.

8. The complainant has a vision impairment and has an assistance animal. The complainant said the respondent low cost airline did not permit him to fly with his assistance animal because it was not accredited with one of the organisations approved for the purposes of allowing passengers with disability to fly with their assistance animals. On being advised of the complaint the airline indicated a willingness to try to resolve the matter by conciliation. The complaint was resolved. The airline agreed to organise and pay for the complainant's assistance animal to receive public access accreditation through one of the organisations approved for the purposes of enabling passengers with disability to travel with their assistance animals.

9. The complainant's adult daughter has a number of disabilities, including anxiety, and uses an assistance animal. She claimed the respondent airline cancelled her booking for international travel because her daughter's assistance animal did not meet the relevant requirements. The airline said the complainant's assistance animal did not meet the training requirements for travel with the airline. The airline claimed the complainant's travel agent was made aware of the cancellation of the booking several months before the complainant was informed of the cancellation. The complaint was resolved with an agreement that the airline pay the complainant and her daughter $2,000.

 

Accommodation

10. The complainant has a heart condition and is at risk of suddenly losing consciousness. The complainant has an assistance animal trained to raise the alarm should this occur. The complainant claimed the strata body of the large apartment complex where he lives issued him with a notice regarding breach of a by-law and required him to remove the dog from the premises. The strata body expressed reservations about whether the complainant's dog is trained to alleviate the effects of his disability or can otherwise be considered an assistance animal. The complaint was resolved with an agreement that the dog could live with the complainant once it had completed relevant training and was registered by the local council as an assistance animal.

 

Number of complaints received at the Australian Human Rights Commission

While the number of complaints received in the first two years of this period were relatively consistent, there has been a 40% increase in such complaints in the last reporting year (in contrast with the average for the two previous years).

Reporting year12-1313-1414-15Total
Complaints received383652126

 

Complainant disability* 

The main disabilities of complainants were ‘blind/vision impairment’ and ‘psycho-social disability’.

 12-1313-1414-15Total
Blind/vision impairment
19
14
8
41 (30%)
Psycho-social disability – e.g. depression or anxiety13172656 (42%)
Autism1214 (3%)
Brain injury2338 (6%)
Cerebral palsy1-12 (2%)
Epilepsy1-23 (2%)
Deaf/hearing disability 2-24 (3%)
Multiple sclerosis--33 (2%)
Other medical condition – e.g. heart condition/migraines1-23 (2%)
Intellectual disability--11 (1%)
Other-347 (5%)
Not disclosed  33 (2%)
Total403956135 (100%)

*As understood from information and data provided by the complainant. It is noted that one complainant may have more than one disability. 

 

Guide dog or other assistance animal*

Complaints in relation to other assistance dogs were most common across the three year period with a noted increase in these complaints in 2014-15.

 12-1313-1414-15Total
Guide dog1614939 (31%)
Other assistance dog21224386 (68%)
Other assistance animal1 (parrot)--1 (1%)
Total383652126 (100%)

*As understood from information and data provided by the complainant.

 

Type of respondent organisation*

The main respondent organisation category across the three year period was ‘private enterprise’.

 12-1313-1414-15Total
Clubs and associations2147 (6%)
Not for profit1135 (4%)
Private enterprise27273286 (72%)
Commonwealth government3-36 (5%)
State government33511 (9%)
Local government1214 (4%)
Total373448119 (100%)

*Named individual respondents have not been included in the count of respondent organisation categories.

 

Area of public life*

Across the three year period, the main area of complaint was the provision of goods, services and facilities. There has been an ongoing increase in the percentage of complaints received relating to the provision goods, services and facilities over the three year period.

 12-1313-1414-15Total
Access to premises6141434 (19%)
Accommodation66719 (10%)
Clubs and associations3126 (3%)
Commonwealth laws/programs2--2 (1%)
Disability standards3--3 (2%)
Employment1-12 (1%)
Goods, services and facilities333449116 (63%)
Requests for information--11 (1%)
Total545574183 (100%)

*Once complaint may relate to more than one area of public life.

 

Main issues raised in relation to guide dogs

In the three year period, the main issues raised in complaints regarding guide dogs were:

  • refusal of entry or manner of treatment in cafés/restaurants/shopping centres/other recreation (31%)
  • refusal of travel or manner of travel on airlines/in airports (28%).

It is noted that there was a decrease in complaints about airline travel in 2014-15 but complaints about the other issues were relatively consistent.

 12-1313-1414-15Total
Residential accommodation2--2 (5%)
Rental/holiday accommodation-224 (10%)
Current employment1-12 (5%)
Provision of medical/health services11-2 (5%)
Airline travel73111 (28%)
Train/bus/tram travel12-3 (8%)
Cafes/restaurants/shopping centres44412 (31%)
Building access-1-1 (3%)
Other-112 (5%)
Total1614939 (100%)

 

Main issues raised in relation to other assistance animals

In the three year period, the main issues raised in complaints regarding other assistance animals were:

  • refusal of entry or manner of treatment in cafés/restaurants/shopping centres/other recreation (38%)
  • refusal of service or manner of service in relation to residential accommodation (16%)
  • refusal of travel or manner of travel on airlines/in airports (15%)
  • refusal of service or manner of service in relation to provision of medical/health services (13%).

It is noted that there has been a significant increase in complaints about cafés/restaurants/shopping centres etc. during 2014-15.

 12-1313-1414-15Total
Residential accommodation43714 (16%)
Rental/holiday accommodation2--2 (2%)
Current employment----
Provision of medical/health services-6511 (13%)
Airline travel62513 (15%)
Train/bus/tram travel1247 (8%)
Cafes/restaurants/shopping centres672033 (38%)
Government policy2226 (7%)
Building access----
Other1--1 (1%)
Total22224387 (100%)

 

Main issues across both guide dogs and other assistance animals

In the three year period, the main issues raised in complaints regarding both guide dogs and other assistance animals were:

  • refusal of entry or manner of treatment in cafés/restaurants/shopping centres/other recreation (36%)
  • refusal of travel or manner of travel on airlines/in airports (19%)
  • refusal of service or manner of service in relation to residential accommodation (13%)
  • refusal of service or manner of service in relation to provision of medical/health services (10%).

 

 12-1313-1414-15Total
Residential accommodation63716 (13%)
Rental/holiday accommodation2226 (5%)
Current employment1-12 (1%)
Provision of medical/health services17513 (10%)
Airline travel1315624 (19%)
Train/bus/tram travel24410 (8%)
Cafes/restaurants/shopping centres/recreation10112445 (36%)
Government policy2226 (5%)
Building access-1-1 (1%)
Other1113 (2%)
Total383652126 (100%)

 

Outcomes of finalised complaints*

Across all three years the main outcome was ‘conciliated’.

 12-1313-1414-15Total
Conciliated16 (42%)24 (67%)30 (67%)70 (59%)
Terminated – No reasonable prospect of conciliation15 (40%)7 (19%)9 (20%)31 (26%)
Terminated – Other reason such as lacking in substance2 (5%)--2 (2%)
Withdrawn/does not wish to pursue5 (13%)3 (8%)5 (11%)13 (11%)
Administrative closure (for example where a complaint is closed because the same complaint has been lodged under State or Territory anti-discrimination law – see section 13 of the DDA)-2 (6%)1 (2%)3 (2%)
     

*Not all complaints received in 2014-15 have been finalised.

 

1999/2000:

 

2003 Inquiry into assistance animals other than guide dogs:

The Australian Human Rights Commission is actively working with government, private sector service providers, disability organisations, assistance animal organisations and other stakeholders to address the current regulatory issues with regard to assistance animals.  We will continue to update this page as developments progress.

 

Last updated 13 January 2016