As there has been a rapid growth in the use of assistance animals over the last decade there has been a vocal minority who want there to be a centralised register of assistance animals and want legislation to replace the Disability Discrimination Act and other state based laws pertaining to assistance animals. This on the surface sounds like a great idea. One stop shop, one uniform ID card, One set of regulations etc. But this is short sighted and overlooks the very reasons the DDA was written as it is.
The Disability Discrimination Act 1992 is Australia's Federal law that pertains to assistance animals. The full legislation can be found on the Comlaw website. The sections that pertain to assistance animals directly are section 9, and section 54A.
Section 9 provides the definition of an assistance animal in part 2.
- For the purposes of this Act, an assistance animal is a animal or other animal:
- accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
- accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
- to assist a person with a disability to alleviate the effect of the disability; and
- to meet the standards of hygiene and behaviour that are appropriate for an animal in a public place
Essentially this definition means that the animal must assist directly with a disability. So even if the animal is an assistance animal the person who is handling the animal must be disabled and the animal must directly help with that disability. For example it would not be legal for someone who is Deaf to take a Guide Animal out in public places as even though the Guide Animal is trained to meet the standards of hygiene and behaviour appropriate for an animal in a public place, a Guide Animal does not alleviate the effect of a hearing impairment. It also says the animal must be trained to the standards of hygiene and behaviour appropriate for an animal in a public place.
Section 54a goes on to explain the exemptions for discrimination in relation to assistance animals.
- This section applies in relation to a person with a disability who has an assistance animal.
- This Part does not render it unlawful for a person to request or to require that the assistance animal remain under the control of:
- the person with the disability; or
- another person on behalf of the person with the disability.
- For the purposes of subsection (2), an assistance animal may be under the control of a person even if it is not under the person’s direct physical control.
- This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground of the disability, if:
- the discriminator reasonably suspects that the assistance animal has an infectious disease; and
- the discrimination is reasonably necessary to protect public health or the health of other animals.
- This Part does not render it unlawful for a person to request the person with the disability to produce evidence that:
- the animal is an assistance animal; or
- the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
- This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground that the person with the disability has the assistance animal, if:
- the discriminator requests or requires the person with the disability to produce evidence referred to in subsection (5); and
- the person with the disability neither:
- produces evidence that the animal is an assistance animal; nor
- produces evidence that the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
- This Part does not affect the liability of a person for damage to property caused by an assistance animal.
Section 54A sets out the circumstances in which it is legal to discriminate against an assistance animal team. Part 2 says that an assistance animal must be under control. This means on leash or under effective voice control.
Part 4 says that the assistance animal must be healthy and also allows for assistance animal teams to be prohibited in places that are sterile such as an operating theatre or a quarantine area such as a zoo where there is a possibility of the assistance animal passing on or contracting any illness or disease from other animals.
The final provision in section 54A says that it is legal to ask for evidence that an assistance animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
The law does not define what constitutes evidence as there are many ways for an assistance animal to be trained. They maybe trained by a specific organisation- however demand is greater than these orgs can keep up with so not only are org trained animals usually very expensive but there is often a wait list of 2+ years. An assistance animal may be trained by a private trainer or even by the disabled person themselves. ALL these options are perfectly legal if the animal meets the requirements in section 9. Each avenue of training is going to generate different forms of evidence, a disabled handler who trained the animal themselves may not have an ID card, but they probably can produce training records and Drs letter. This constitutes evidence and meets the 54a burden of proof.
The reason the law is written this way is to grant access to assistance animals to people with a disability with the minimum number of barriers in place. Further additional regulations and more restrictive legislation is going to inevitably place barriers to assistance animals for people with a disability. Most of the time people with a disability are low income, have difficulty with navigating complex procedures or processes because these processes are not designed to be accessible.
Furthermore, instituting an overhaul of assistance animal legislation is going to substantially increase costs. The government is not going to finance this, all the costs will be passed on to people with a disability.
Many of the proposed overhauls suggest a standardised Public Access Test. While PATs are common in the industry, especially with orgs, they are not a legal requirement. The first issue becomes who is authorised to conduct these PATs? What are the criteria for the tester? There is a massive shortage of assistance dog specialised trainers in Australia. Does a pet/sport/other trainer have the skillset to adequately conduct these tests? What happens when part of the standardised PAT is not able to be done because of the handler’s disability? What skills are even in the PAT, the disability community is incredibly diverse. Even among people who share the same disability their personal strengths and weaknesses will be different and the skills they need from their assistance animal will differ – how is this diversity accounted for in a standardised PAT?
Who pays for the trainer’s time? How much do these tests cost? And furthermore, in the industry it is nearly impossible to find an assistance dog trainer who will PAT a dog they did not train. The liability issues when we sign our names off on a team are huge. I am not prepared to shoulder that responsibility for a team I have not trained. So, what happens to the owner trainers? The disabled people who have trained their dogs to meet the requirements under the current DDA? Who tests them? What happens to the teams that are in reginal or remote areas? There is a lack of assistance dog trainers even in the metro areas, but people with a disability reside all over our big country. So, what happens when there is not an authorised tester within 500km? What happens to those handlers? And it should also be noted that while rare, species other then dogs can be used as assistance animals. Who has the experience and knowledge to PAT a miniature donkey for example? What does a donkey PAT even include?
The only issue with the DDA is that it is not common knowledge. This could be fixed with a public education campaign and would be far more cost effective then overhauling the entire assistance animal industry. The DDA provides gatekeeps with the protections against animals that are not meeting the legislative criteria and gives them explicit permission to discriminate in these circumstances. And the DDA protects the wider assistance animal community by granting us access to the community as long as we meet the legislative criteria. The law as it stands, and is by design, the most inclusive accessible legislation any attempt to more restrictively govern the assistance dog community will only lead to a large part of my community being disproportionately disadvantaged or outright denied access to an assistance animal.