NOTICE OF DECISION ON APPLICATION FOR TEMPORARY EXEMPTION: AUSTRALASIAN RAILWAYS ASSOCIATION: ASSISTANCE ANIMALS

 

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (Cth), Sections 55(1) and 55(1A)

By this instrument, the Human Rights and Equal Opportunity Commission (‘HREOC') gives notice of a decision to grant an application by the Australasian Railways Association (‘the ARA') for a temporary exemption pursuant to sections 55(1) and 55(1A) of the Disability Discrimination Act 1992 (Cth) (‘DDA') in relation to assistance animals.

This decision is further to a decision made and published by HREOC on 22 January 2007.

THE APPLICATION

The ARA has made an application, on behalf of its members (‘members of the ARA'), for a number of temporary exemptions from the DDA and from the Disability Standards for Accessible Public Transport 2002 (‘DSAPT').

DECISION OF HREOC

HREOC has decided to grant to members of the ARA a temporary exemption pursuant to sections 55(1) and 55(1A) of the DDA in the terms set out in Schedule One.

CONSIDERATION AND REASONS

In making its decision, HREOC relied upon the following:

• The documents referred to in its decision of 21 January 2007, available on HREOC's website at http://www.humanrights.gov.au/disability_rights/exemptions/ara/dec.htm
• Further consultation with the Australasian Railways Association and the Australian Federation of Disability Organisations in accordance with its previous decision, as set out in Schedule 2 to this decision.

In making its decision, HREOC had regard to the following:

• the terms and objects of the DDA;
• the DSAPT; and
• the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) .

The process by which HREOC considered the ARA's application and the reasons for HREOC's decision are set out in Schedule Two.

MEANING OF IMPORTANT TERMS

For the purposes of this decision, rail means trains and light rail.

Unless the contrary intention appears, any term used in this decision and in the DSAPT has the same meaning in this decision as it has in the DSAPT.

Unless the contrary intention appears, any term used in this decision and in the DDA has the same meaning in this decision as it has in the DDA.

REVIEW OF DECISION

Subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Dated this 24th day of September 2007

Signed by Commissioner Graeme Innes AM, on behalf of HREOC.

SCHEDULE ONE :NOTICE OF GRANT OF TEMPORARY EXEMPTION

1. This exemption applies to members of the ARA who are operators of rail conveyances, infrastructure, or premises that are the subject of the DSAPT (‘ARA Operators').

2. HREOC grants ARA Operators a temporary exemption as specified below from the operation of:

• sections 23 and 24 of the DDA; and
• section 32 of the DDA in relation to the DSAPT.

Exemption period

3. Subject to paragraph 4 of this schedule, this exemption will have effect from the date it is signed until 22 January 2010.

4. This temporary exemption will cease to operate if:

• the DDA is amended in relation to assistance animals; or
• the DSAPT are amended in any way.

Temporary exemption: Assistance animals

5. Subject to the following paragraphs, an ARA Operator is permitted to require a person seeking to enter or use rail conveyances, infrastructure or premises with an animal (‘the passenger') to present evidence that:

(a) the animal has been trained to alleviate the effects of a disability which the passenger has; and

(b) the animal is of an appropriate breed and temperament to be used as an assistance animal in public places; and

(c) the animal has been trained to meet appropriate standards of behaviour such that the animal will

• remain under the effective control of its user;
• not endanger other persons; and
• not present unreasonable risks to hygiene.

6. The following evidence must be accepted by an ARA Operator as sufficient evidence of the matters set out in paragraphs 5(a), (b) and (c):

(a) Current written certification provided by another ARA Operator under paragraph 7

(b) Evidence of current recognition or registration of an animal as an ‘assistance animal' by a body authorised under a law of the Commonwealth or of any State or Territory to recognise or register assistance animals; or

(c) A current guide dog or hearing dog identification pass.

7. If a passenger presents sufficient evidence of the matters set out in paragraphs 5(a), (b) and (c) or 6(a), (b) or (c) , the ARA Operator must provide that person with written certification of that fact. A certificate should name the ARA Operator providing it and the passenger; and identify the assistance animal, but does not need to specify the nature of the disability of the passenger.

8. If a passenger does not present a current written certification given under paragraph 7, an ARA Operator is permitted to deny that person entry or use of rail conveyances, infrastructure or premises while accompanied by that animal.

9. Certification under paragraph 7 may be given subject to reasonable conditions that relate to one or more of the matters specified in paragraphs 5 (c).

10. An ARA Operator is not required to accept a passenger's own assertion as sufficient evidence of the matters set out in paragraphs 5(a) (b) and (c).

11. In deciding whether evidence from a person or organisation is sufficient evidence of the matters set out in paragraphs 5(a) (b) and (c), an ARA Operator must have regard to evidence provided of the qualifications and experience of the person or organisation in training animals or in assessing an animal's training and behaviour.

12. Where the law of the State or Territory in which a person seeks certification provides for a procedure for recognition or registration of assistance animals, an ARA operator may deny certification under paragraph 7 regarding an animal that has not been registered or recognised through that process, unless

(a) the person is able to produce evidence that the animal is currently registered or recognised as an assistance animal under the law of another State or Territory, or

(b) the person is able to produce a current guide dog or hearing dog identification pass.

13. Certification under paragraph 7 may be revoked by any ARA Operator if that ARA Operator is satisfied on reasonable grounds that paragraphs 5(a) (b) and (c) are not (or no longer) met by the animal. Revocation shall be effected by the ARA Operator endorsing the revocation on the written certification previously given under paragraph 7.

14. ARA Operators must include in training of customer service staff, and in publicly available information for passengers, information on the right of passengers requiring use of an assistance animal to travel on its rail services accompanied by such an animal provided it meets the requirements of this exemption.

15. An ARA Operator to whom this exemption applies must report to HREOC after 12 months, and within 15 months, directly or through the ARA, on the operation of this exemption, including instances of persons being refused travel or certification of their animal, and reasons for such refusal.

SCHEDULE 2: HREOC'S CONSIDERATION OF THE EXEMPTION APPLICATION AND THE REASONS FOR ITS DECISION

THE APPLICATION

On 29 July 2005, the ARA made an application on behalf of its members for a number of temporary exemptions from the DDA and the DSAPT, on the condition that members of the ARA comply with a revised set of obligations.

The ARA submitted a revised application dated 24 February 2006, following the consultation process described at Part 4 below.

This application included a request for an exemption ARA's application for a temporary exemption to permit operators to require passengers to present evidence that an assistance animal has been trained to alleviate the effects of their disability and that the animal meets appropriate standards of behaviour, before allowing the assistance animal to accompany the passenger.

The ARA argued on this and other points of requested exemption that greater certainty of obligation, in the terms sought in its exemption application, would assist members of the ARA to comply with the objectives of the DSAPT and the DDA.

CONSIDERATION OF THE APPLICATION

On 13 September 2006 HREOC published and sought comment on a draft of recommendations for decision on the ARA's revised application. This included the following discussion and draft recommendation in relation to assistance animals:

Recommendation: Grant exemption on modified terms as set out below

HREOC has previously identified uncertainty in the operation of the assistance animals provision of the DDA as requiring attention, and has engaged in public consultation on this issue over an extended period.

In July 2003 the Disability Discrimination Commissioner released a paper discussing concerns that section 9 of the DDA does not give adequate definition to rights and responsibilities in relation to animals other than guide or hearing dogs, and seeking comments on options for reform. Concerns identified included

• lack of clarity on what evidence may be required of an animal's status as an appropriately trained animal and of a person's need for assistance by that animal;
• lack of express provision in section 9 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 not otherwise permitted.
• assertion, in a number of cases, of a right claimed to be founded on the DDA to be accompanied (including on public transport) by clearly inappropriate breeds of dog including large and intimidating breeds;
• confusion in this area undermining the effectiveness of legally recognised access rights for guide dogs and hearing dogs (in terms of recognition by retailers and other service providers and in terms of public acceptance);
• lack of clarity of rights and responsibilities contributing to conflict between service providers and users of "other" assistance animals.

The paper also sought comments on possible approaches to recognition of assistance animals and agencies for their accreditation, either directly under the DDA or under State and Territory based regimes or both.

Submissions were received from a range of individuals and organisations in the disability community and from several public transport providers including rail operators.

After considering submissions HREOC released a report in November 2003 recommending changes to the DDA to address the issues raised in its discussion paper.

The Government undertook to consider these issues in the context of a response to the Productivity Commission review of the DDA, which was completed in 2005.

It is of course not possible for HREOC to pre-empt the results of consideration of legislative reform by the Government or the Parliament. Equally, the fact that legislation on an issue may shortly be forthcoming does not relieve HREOC of its responsibility to consider an exemption application raising the same issue on its merits.

An initial proposal by ARA to restrict coverage to assistance dogs rather than animals was withdrawn after consideration of views expressed in submissions.

ARA's proposal would restrict obligations of its members to permit passengers to be accompanied by assistance animals to those instances where assistance animals are registered as such.

Registration would clearly provide more certainty for assistance animal users as well as for public transport providers and other relevant parties, and would be expected to provide a means for quality control of the training and suitability of assistance animals for use in public. However, it is not yet the position that there are registration procedures for assistance animals in place in all jurisdictions. This proposal in its current form would thus appear to have the effect of permitting exclusion of people who in fact have a disability requiring assistance, and whose animal is in legitimate use to provide such assistance, and where these facts may be capable of being sufficiently clearly evidenced to transport providers by means other than registration.

ARA also seeks to require assistance animals to be under the direct control of the user. As noted in submissions, this appears unduly restrictive, in that on occasions an assistance animal might instead be under control by another person on behalf of the user. Further, while in general an assistance animal such as a guide dog may be expected to be under direct physical control by or on behalf of its user, exceptions to this might well arise in public transport settings. For example, a guide dog might be left in a sleeping compartment while its user, once familiar with the layout, or with the assistance of a companion, goes to another part of the train such as a lounge or dining car.

It appears appropriate to grant an exemption in relation to assistance animals, but in narrower terms than those requested by ARA:

• so as to permit operators to apply reasonable requirements for independent evidence that an assistance animal is required to alleviate the effects of a person's disability and that the animal meets appropriate standards of training, behaviour, and hygiene, and to refuse passage to an animal in respect of which such evidence is not or cannot be provided
• with the specification that evidence of recognition or registration by a body authorised under a law of any State or Territory should be accepted as sufficient for this purpose
• and on condition that an operator concerned include in its training of customer service staff information on the right of passengers requiring use of an assistance animal to travel on its rail services accompanied by such an animal.

Such an exemption would also appropriately state that should the DDA be amended in relation to assistance animals during the currency of the exemption the exemption would cease to apply, being displaced by such an amended provision.

On 22 January 2007 HREOC deferred its decision on this part of ARA's application. HREOC formed the view that further consultation was required between the ARA and interested parties, on the nature of the evidence that ARA members should be permitted to require passengers to present.

3. FURTHER CONSULTATION

An exemption regarding assistance animals was further discussed with representatives of ARA and AFDO at a meeting on 9 May 2007 and a revised proposal for an exemption was circulated to ARA and AFDO on 23 May 2007. In comparison to the recommended exemption consideration of which was deferred by HREOC, the revised proposal incorporated additional provisions on evidence to be accepted and factors to be taken into account by operators. No objections to that proposal were received; however the decision now made by HREOC incorporates some amendments in the interests of clarity of effect.