Discussion Paper: Assistance Animals, the Disability Discrimination Act and health and hygiene regulations

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

1. 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.