Mary Metledge
Solicitor
(Law Practice No. 20774)
14 October 2016
SUBMISSIONS REGARDING ASSISTANCE ANIMALS
AND THE NEED FOR UNIFORM LEGISLATION 
SYNOPSIS

People with disabilities who need to be accompanied by their Assistance Animal ought to be able to go about enjoying their life as do people who do not need the use of an Assistance animal.   Many people with an Assistance Animal are unwilling or afraid to access facilities which are open to the public lest they be subjected to embarrassment, humiliation and distress due to a general lack of public awareness of these people’s rights under the law to access such facilities whilst accompanied by their Assistance Animal.

There currently exists much inconsistency and confusion surrounding the definition of “Assistance Animal” in Federal and State legislation as well as policy in Australia, resulting in uncertainty and a range of related difficulties to accessing the community, for people who use such animals.  

This submission highlights the confusion and apparent variation of rules, regulations and policies across several States of Australia.  It also outlines the need for one regulatory body for Assistance Animals which sets the framework for a national Public Access Test which would be used by all States and Territories.  This would result in a one nationally recognised ID card and/or vest where Authorities, owners, occupiers, and members of the public can easily identify and recognise an “Assistance Animal” as defined under the Federal law.  Further, the inconsistences between States as to use of the word ‘certified’ or ‘accredited’ must also be addressed.

A case study is included based on the author’s own experience which highlights the problems encountered by people using assistance animals and which illustrates the proper application of the Federal legislation which overrides any State legislation to the extent of any inconsistency.

In order for people who need Assistance Animals to able to access the same facilities which are open to the public, including public transport, as those who do not require such assistance, it is imperative that the inconsistences be removed.  In other words, the States and Territories should have a uniform definition which mirrors the definition of an ‘Assistance Animal’ in the Disability Discrimination Act 1992 (Cth). 

We need urgent changes in legislation and policy in addition to a public awareness campaign as to what constitutes an Assistance Animal within Australia, such that owners, controllers or managers of places which are open to the public as well as their staff are aware of the rights of people who are accompanied by their Assistance Animal.  Moreover, owners and controllers of public places and transport need to be aware of their own rights and obligations under the Law to avoid uncertainty, embarrassment and avoid either direct and/or indirect discrimination against people using their Assistance Animal in a bone fide manner.

References to “owner-trained” animals includes, where relevant, animals that are “professionally trained by non-accredited organisations”.

OUR CLIENTS

1.	Service Dog Training (“SDT”); mindDog; Paws for Diabetics Inc. and Canine Helpers for the Disabled Inc., are not for profit organisations which represent a client base of people with a variety of disabilities who are entitled under s.9(2)(c) of the Disability Discrimination Act 1992 (“DDA”) to train their own assistance dogs to a level (although not a requirement under s.9(2)(c) DDA) which meets and/or exceeds the standards of the Public Access Test (“PAT”) as used under the Queensland accreditation system. 

2.	SDT is currently listed as an approved training institution under the recent amendments to the 2009 Qld Act which came into effect on 27 April 2016 under the Guide, Hearing and Assistance Dogs Amendment Act 2015 (“GHAD”).   

3.	This amendment does not yet appear in s.122 GHAD.  However, a list of approved trainers can be seen on the following Qld Government website:

https://www.communities.qld.gov.au/disability/key-projects/guide-hearing-and-htassistance-dogs/for-trainers

4.	As such SDT is entitled to certify assistance dogs and issue handler’s identity cards without the need to be a member of any recognised Guide, Hearing or Assistance dog bodies eg Assistance Dogs International.  

5.	Our clients’ organisations first work on establishing a strong bond between the handler and the dog.  Thereafter, they builds the necessary skills required to meet the needs of each individual according to his/her disability.  Our clients’ view is that the larger dog training organisations have dogs with high and well-attuned skills, but the bonding could result in lower than anticipated results.

6.	Sadly, our clients’ experience is that in practice, the overall assistance dog industry looks down upon owner trained dogs as having an inferior level of training.  For professionally trained dogs, the long waiting lists (some up to 7 years) or even access to a qualified trainer to train the handler’s dog are out of reach for many people either for financial or geographical reasons.  Owner-training is not only a workable alternative, it is enshrined in Law under s.9(2)(c) DDA (often described as the 3rd limb). 

7.	Moreover, an ‘assistance animal’ under the legislation could be any animal which has been trained to meet the 2 requirements in the 3rd limb.  

8.	Thus, although it is contrary to the legislative intention and purpose that only ‘approved’ organisations can ‘train’ and/or ‘accredit’ dogs (or other animals), at present only organisations with professionally trained dogs and/or accredited dogs are acceptable by certain authorities.  This is blatant discriminatory conduct.

9.	Many assistance dogs (or other animals) are more effectively trained by their owner where the animal is trained to alert the owner to an impending attack of some kind eg diabetic or panic/anxiety attack.  

10.	The animal does not even have to perform any physical task to assist the owner.  It is sufficient if the animal is simply a point of focus for the owner to reduce the heightened anxiety which could lead to a full panic/anxiety attack.  
THE LEGISLATION

11.	Currently, Tasmania, The Australian Capital Territory and the Northern Territory have no system of accreditation for Assistance Animals.

12.	The principal definition of “Assistance Animal” is found in s.9(2) DAA and includes “a dog or other animal”. 

13.	There are 3 alternate limbs to s.9(2):-

a.	The 1st limb   -   s.9(2)(a)   makes provision for a dog or other animal “accredited under a law of a State or Territory that provides for the accreditation of animals trained to assis5t a person with a disability to alleviate the effect of the disability” [if the owner so chooses].  Some States and Territories do not have such a law;    or 

b.	The 2nd limb   -   s.9(2)(b)   makes provision for an animal that has been “accredited by a training organisation prescribed by the regulations for the purposes of this paragraph”.  To date there is no ‘prescribed’ organisation in the DAA regulations;     or

c.	The 3rd limb   -   s.9(2)(c)   makes provision for animals who are simply “trained to assist the person with a disability to alleviate the effect of the disability and to meet the stands of hygiene and behaviour that are appropriate for an animal in a public place”.

14.	Parliament intentionally used the word “trained” and “appropriate” in the 3rd limb without qualification in order to protect those who do not have or cannot afford access to professional training/accreditation.  So much is clear from the 2nd reading speech and the explanatory memorandum to the Bill.  	
	
15.	The aim and genesis of the 3rd limb is that the animal is neither a health nor physical threat to others in a public place.  It is irrelevant how the training to achieve that outcome was effected or by whom.

16.	If Parliament required the owner-trained animal to be professionally trained and/or accredited then it could have plainly said so or simply removed the 3rd limb.

17.	If the owner-trainer cannot or does not have the animal accredited under the 1st two limbs, then the 3rd limb is enlivened where the person with the disability simply must prove that the animal meets the criteria set out in the 3rd limb to the ‘appropriate’ standard and not the standards of any particular organisation nor does the animal need to pass any Public Access Test.  

18.	The current law in NSW at least, is consistent with the object and purpose of the 3rd limb DAA.  

19.	Under s.60 Companion Animals Act (“CAA”), it is an offence for a person accompanied by an assistance animal to be denied entry into a public place or onto public transport.  The offence carries 8 penalty units.  

20.	In NSW s.5 of the Definitions in the CAA expressly states:

“5 Definitions

"assistance animal" means an animal referred to in section 9 (Disability discrimination - guide dogs, hearing assistance dogs and trained animals) [emphasis added] of the Disability Discrimination Act 1992 of the Commonwealth, but does not include a working dog. 
Note: That section refers to a guide dog, a dog trained to assist a person in activities where hearing is required and any other animal trained to assist a person to alleviate the effect of a disability.”

21.	It is also the current Common Law position in NSW.  I respectfully draw your attention to the case of Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 where at [127(b)] the Judges expressly accepted the submissions of the AHRC set out at pgh 68 (and by necessary implication pghs 64 and 65) which relevantly read:

64  Seventhly, as to s 54A(5) and (6) of the DDA, the AHRC submitted that while the former provision authorised a potential discriminator to request evidence about certain matters, it did not allow them to stipulate what they would accept as evidence of such matters. Furthermore, it was submitted that s 54A(6) rendered it lawful to discriminate if a person failed to provide evidence of certain matters but it did not permit discrimination on the basis that the person failed to provide particular kinds of evidence that had been specified by the potential discriminator, nor did it permit discrimination because the evidence supplied did not meet a particular threshold specified by the potential discriminator.

65  The AHRC acknowledged that what constituted “evidence” for the purposes of these provisions may depend on the training a particular animal has received but it emphasised that s 9(2)(c) of the DDA provided that an animal may be an assistance animal for the purposes of the DDA having received relevant training from a non-accredited person, such as the dog’s owner. The AHRC submitted that, in such a case, a statement from the owner that the dog was trained could constitute evidence of training in satisfaction of s 54A(5). It was submitted that this construction would not open the floodgates to claims of unlawful discrimination because such a claim could only be established if the complainant established on the balance of probabilities that he or she had a specified disability, wished to be accompanied by an assistance animal, and that the animal was an “assistance animal” for the purpose of s 9(2). 

68   Finally, on the issue of the proper construction of s 9(2)(c) of the DDA, the AHRC submitted that, in the absence of any statutory definition of the term “train”, the term “trained” should be given its ordinary meaning which included “to discipline and instruct (an animal) to perform specified actions”. The AHRC submitted that s 9(2)(c) did not impose any requirements about the type or amount of training to be undertaken by an assistance animal, nor was any such requirement imposed under the DDA or relevant regulations. It submitted that there was no requirement for an animal to be professionally trained and that it could be trained by its non-professional owner.
 
22.	It submitted that the kernel of Mulligan’s case is supported by the Explanatory Memorandum to the Bill which gave rise to the 2009 amendments, which stated in respect of cl 9(2)(c):

The purpose of this amendment is to provide greater certainty to both service providers and people with assistance animals. The third limb of the definition (paragraph 9(2)(c)) is designed to ensure that people with a disability who may not live in a State or Territory that has a relevant accreditation scheme, or who may not have access to a recognised assistance animal trainer continue to be protected under the Disability Discrimination Act (if they are able to demonstrate the requirements of the relevant sections). 

23.	It is noted that relevant legislation in Qld, WA and SA applies only to ‘dogs’ and makes no provision for “other animals” as specified under s.9(2) DDA.  Moreover, the legislation in those States makes no provision for dogs (nor indeed “other animals”) which are owner-trained within the meaning of the 3rd limb of the DDA.  

24.	It is interesting to note that the definition of ‘assistance dog’ in the Qld Anti-Discrimination Act 1991 has the same meaning as in Schedule 4 of the Qld GHAD.  This definition is consistent with the definition of Assistance animal in the 3rd limb of the DDA in that is does not specify in that definition that the ‘dog’ must be trained and/or accredited by any particular person or organization. 
			 
25.	However, s.8 GHAD then qualifies that definition by reference to a ‘certified’ assistance animal. This section is inconsistent with the 3rd limb of s.9(2) DDA.  

26.	Therefore, it would be invalid pursuant to s.109 of the Australian Constitution which clearly states that where State legislation is inconsistent with Commonwealth legislation then the later shall prevail to the extent of any inconsistency.	

27.	It is noted that s.38 GHAD requires the dog to be able to perform identifiable physical tasks.  This is not a requirement under s.9(2) DDA and would also be invalid.

28.	Section 122 GHAD does make provisions for specified ‘approved’ training institutions.  This would be consistent with the 1st two limbs of s.9(2) DDA which includes dogs (or other animals) trained by such institutions.

29.	It is further noted that the Western Australian Dog Act 1976 (“WADA”) pre-dates the DDA.  Section 8 defines “Assistance dogs”.  This definition ignores the 3rd limb DAA and would be considered invalid.  Moreover, s.8(7) of WADA states that “This section applies despite any other provision of this Act or other written law.”  Clearly, the federal DAA overrides s.8(7) to the extent of any inconsistency.

30.	It is also noted that s.81(2) of the South Australian Dog and Cat Management Act 1995 (“DACM”) goes even further and makes it an offence to claim that a dog is a ‘disability dog’ unless ‘accredited’ by the ‘Board’ under s.21A of that Act.  

31.	It is trite law that a provision of any Act must be interpreted in a way which promotes the objects and purpose of an Act.  The DDA is beneficial legislation and therefore its provisions must be given a beneficial interpretation so as to promote the objects and purpose of that Act.

32.	Clearly then, it is essential that all relevant legislation nationwide needs to be amended in order to give effect to the provisions of the DDA as interpreted under the current common law.  
									
33.	The DDA provides considerable protection against discriminatory behaviour in relation to Assistance Animals.

34.	Under s.54A DDA it is not unlawful to ask for evidence/proof that the dog is an assistance animal within the meaning of s.9(2) DDA.

35.	Also under S.54A DDA it is not an offence to deny entry to the person with the assistance animal who fails to provide such evidence/proof.

36.	Although it was unnecessary for the Court in Mulligan’s case to determine the extent of the ‘proof’ required, it was suggested in Mulligan by the AHRC, that even a statement from the owner that the dog has been appropriately trained to meet the 2 requirements in the 3rd limb DAA would be acceptable.  

37.	Clearly, short or carrying a current Vet certificate, simply by observing the dog one can objectively assess and determine whether or not the dog is clean and hygienic and whether the animal behaves “appropriately” in a public place.  It can safely be assumed that, inter alia, aggressive behaviour, unnecessary barking and toileting in inappropriate places would be determinative of “inappropriate behaviour contrary to the requirements of the 3rd limb DDA. 

38.	Recently, s.8A GHAD was introduced to make special ‘control’ provisions for primary and alternate handlers, where the primary handler may not be able to control their dog as required under the PAT.  

39.	However, in our opinion at least, such an amendment was in fact superfluous because s.54A(2)(b) DDA provides that an assistance animal may be under the control of “another person on behalf of the person with the disability”.

40.	Further, s.54A(3) DDA expressly states that “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.”  We respectfully draw your attention to Sheehan v Tin Can Bay Country Club [2002] FMCA 95 where Judge ordered that Mr Sheehan’s (owner-trained) dog be allowed to access the Club’s premises without any leash.

41.	Our clients are of the belief that the Qld Government scheme was to have been adopted by other states, so there would be a uniform approach for animals to attend places open to the public and travel on public transport.  

42.	Currently, it appears to us that NSW (at least in relation to registration of assistance dogs), SA & WA have different Local Government schemes and rail permit requirements that in fact conflict with the DDA and with each other creating even further inconsistencies and adding to the confusion.  

LOCAL GOVERNMENT - registration of assistance dogs

43.	The NSW Office of Local Government erroneously claims on its website that dogs that have been trained by a “recognised training organisation approved by Assistance Dogs Australia or Assistance Dogs International will be considered to be an assistance animal for the purposes of registration”.   This statement is misleading and deceptive.  Moreover, it conflicts with the relevant assistance dog legislation in relevant States which expressly provide for a system of certification.  More importantly, it is inconsistent with the provisions of s.9(2)(c) DAA.

44.	SDT is listed in the Qld legislation as an ‘approved’ dog training institution.   However, Certification by SDT is not recognised by some Local Government bodies nor by some public transport authorities (presumably conforming to the unlawful stance adopted by some Offices of Local Government).

45.	Even though SDT is an approved institution to certify dogs under GHAD, the larger approved training organisations refuse to accredit either our clients’ own professionally trained assistance dogs or owner-trained dogs where the owner requests accreditation.  

46.	In our opinion at least, on its website, the NSW Office of Local Government contains inaccurate, misleading and deceptive statements or statements that are likely to mislead or deceive in breach of the law (see Fabcot Pty Ltd v Port Macquarie-Hastings Council [2010] NSWSC 726). 

47.	The offending statement is “An animal that has been trained or educated by any other organisation, or its owner, is not considered to be an assistance animal for the purposes of registration under the Companion Animals Act 1998”.  

48.	This misstatement disregards the legal definition of “assistance animal” in the 3rd limb of s.9(2)(c) DDA and s.5 of the Definitions section of the CAA. 

49.	Whereas both our clients’ animals as well as owner-trained animals are protected under the DDA and the Human Rights legislation, Councils continue to refuse to register professionally trained dogs (whether or not that organisation is an ‘approved’ organisation) as well as owner-trained dogs.  

PUBLIC TRANSPORT

50.	Currently, no permit is required for an assistance animal to accompany its owner in Tasmania, the Australian Capital Territory and the Northern Territory

51.	Permits are not required for an assistance animal to accompany its owner on public transport in other States, either under the 3rd limb of s.9(2) DDA or the CAA in NSW. 

52.	However, Translink currently steadfastly refuses to issue permits to owner-trained dogs, in circumstances where the dogs are well-trained and meet the requirements of the 3rd limb DAA.  

53.	Translink unlawfully requires proof that the dog has been “accredited” by one of the organisations specified by State Rail.  The specified organisations are the larger and more established dog training organisations. 

54.	Prior to the current unlawful position which Translink has adopted, our clients had prepared numerous letters to support clients with owner-trained dogs to obtain their rights under the relevant laws and Translink previously complied with those people’s rights under those laws.  
				
55.	Translink now insists on the animal meeting Translink’s own “Standards”.   In our opinion at least, these “Standards” are not an Act or Instrument made under any Act as provided in s.59(3) CCA and would therefore be invalid.  

56.	The “Standards” of Translink were last reviewed in 2013 which predates the current Common Law position in NSW at least.  The CAA makes no provisions whatsoever as to the animal’s accreditation and/or training which reflects the very reason the 3rd limb of s.9(2) DAA was deliberately left in place following the last amendment to the DDA.

57.	An assistance animal does not need any permit to travel on public transport or enter public premises in NSW pursuant to and s.59 and 60 CAA.  

58.	The NSW, Qld, SA and WA Local Government and train authorities appear to ignore the application of the 3rd limb in s.9(2) DAA in relation to what 'trained' means in that 3rd limb.    Section 9(2)(c) simply requires that firstly, the animal is trained to alleviate the effect of the disability and secondly that the animal is trained to meet standards of hygiene and behaviour that are “appropriate” (emphasis added) for an animal in a public place.   

59.	In view of the above, we believe that in some States, the Office of Local Government and the relevant State rail authorities are engaging in direct discrimination against our clients’ clients as well as owner-trained animals.

60.	It could reasonably be argued that such bodies are also engaging in indirect discrimination against our clients’ organisations and similar small organisations.

CASE STUDY and the application of s.9(2)(c) (3rd limb DAA)

61.	I was personally subjected to two incidents of direct discrimination in 2015 as a result of being accompanied by my assistance animal, the very much adored and missed Jessica who accompanied me everywhere I went from the age of 6 weeks until she had to be put down on 12.3.16 at age 15.  

62.	She would attend Court with me and oftentimes a colleague would bring his assistance cat sitting on his shoulders.

63.	I suffered from severe panic attacks as a result of 2 armed and life threatening home invasions where my dog was shot in front of me and I was then ordered to open a large safe with a loaded and cocked handgun held at my temple.    

64.	Jessica came into my life as a result of my resulting deep depression and was trained simply by the effluxion of time to alert me to take medication if an anxiety attack was imminent.  

65.	Section 9(2)(c) does not specify who needs to do the training or how it was done.  That is why no PAT needs to be undertaken nor does the animal need to be certified/accredited by any organisation.

66.	When Jessica was with me, she learned to shiver when an attack was imminent alerting me to take medication.  If I was unaware that she was shivering and an attack came on, I simply buried my head into her fur and she would lick my face ferociously.  This would distract me from my surroundings and would either diffuse any increasing anxiety or distress or reduce the severity of the attack until the medication began to take effect.  

67.	I asked my Psychiatrist how Jessica was able to know when an attack was imminent.  His reply:  “When you are in a state of distress your body emits a distinctive odour and she is probably attuned to your different facial expressions when you are in a distressed state and her ‘fear’ of observing you in such a state manifests itself by ‘shivering’.  This is a learned conditioning response and therefore you now know when Jessica shivers, you need to immediately take an anti-anxiety tablet”.

68.	Before I had Jessica or if she was not with me for some reason, I suffered many severe panic attacks where store staff or even strangers had to call an ambulance because I became confused, disoriented and fearful.  

69.	Jessica was only 4kgs, was extremely well groomed, toileted on demand and was very quiet sitting in her pouch or carry bag for hours at a time.   In fact, because she was black in a dark carry bag not many people noticed that I was carrying a dog.  However, oftentimes children would see her and ask to pat her because she was so small and cute.  Jessica loved the attention, nevertheless, she knew she was a service dog and would always attend to my needs.

70.	Jessica was well known to and welcomed at all the places which I frequented (including Cinemas, Clubs, restaurants, supermarkets and shopping malls).  

71.	I had previously supplied them with a copy of the relevant legislation and a current copy of my Psychiatrist’s letter which expressly stated that I ‘have a disability and Jessica was an Assistance Animal trained to alleviate the effects of that disability and that she was clean and hygienic and well behaved in public’.  

72.	However, on one occasion I was confronted by the new Manager at the local Woolworths Store who, after ordering me to leave the store immediately, proceeded to very rudely and loudly argue with me about having Jessica present in the store.  He ignored my pleas that the supermarket holds a copy of the legislation and my Psychiatrist’s letter.   I offered him a current copy of my Psychiatrists letter, which I always carried in my purse, but he threw the letter back at me without reading it.  

73.	Jessica is usually carried in a kangaroo type pouch or a dog carrier with long straps over my shoulder.  However on this occasion, whilst carrying Jessica in the pouch, my back spasmed severely that I fell and Jessica left the pouch to attend to my distress (no doubt this was captured on the store’s CCTV). 

74.	I only had a few items in a carry basket as I had just started my shop.  A staff member came and assisted me to the checkout and was going to help me get to my car.  Jessica was walking (unleashed) silently beside me.

75.	At the checkout the Manager confronted me before the items were placed before the cashier as I was next in line.  The altercation caused me to have an anxiety attack and because I could not see Jessica ‘shiver’ I did not take any anxiety medication to prevent the attack.  The staff member then helped me into a taxi because I was unfit to drive my car home.  

76.	As a result of this altercation I did not leave my house for several months which exacerbated my depression to the point where I made a serious attempt on my life.  

77.	As was the case for Mr Mulligan, Virgin Airlines refused to allow me to take Jessica into the cabin unless she was ‘accredited’ by one of the organisations specified by Virgin.  

78.	At 14 years of age Jessica was deaf and had cataracts so she would not have passed the PAT used by these organisations even if such a test was attempted. I provided Virgin with a current letter from my Psychiatrist.  However, their solicitors stated that “a bald assertion by a doctor is not sufficient evidence that the dog is an assistance dog”.

79.	Jessica had provided me with loyal and effective service for 14 years but because she would not be able to always respond to audio or visual cues of sitting, laying, heel etc., there was no way she would pass the test even though she was in her carry bag essentially at all times (other than toileting) and didn’t need to use those skills whilst in a public place.  Whilst she would always sit next to me if not in her carry bag or under the table in a restaurant or on my lap in the cinema, she may not have been able to immediately respond to a vocal command. 

80.	I made a complaint to AHRC against both Woolworths and Virgin Airlines, but no resolution could be reached.  As a solicitor, I knew the heavy emotional and financial toll of protracted legal proceedings where any victory would essentially be a paper victory, so I did not take the matter any further.

LOOKING FORWARD/CONCLUSION

81.	It seems to us, that owner-trainers, our clients as well as similar dog training organisations, are unable to get the basics like a travel pass or registration as an ‘assistance animal’ for their dog/animal because the animal has not been trained, certified or accredited by an organisation included on some ‘prescribed’ list.

82.	Such conduct is tantamount to direct discriminatory conduct against owner-trained dogs, in contravention of s.5 DDA.    

83.	Moreover such conduct may well constitute indirect discrimination against our clients and similar organisations in contravention of s.6 DDA. 

84.	We concur with our clients that the next step should be the provision of a nationwide system which provides a fair and equitable outcome for owner-trained animals, professionally trained animals and/or animals trained and certified/accredited by smaller organisations such as our clients which may or may not be on any ‘prescribed’ or ‘approved’ list.

85.	It is respectfully submitted that a very simple solution to avoid confusion and promote uniform legislation and any possible misapplication of the DDA would be for relevant State Legislation to define “Assistance Animal” in accordance with the precise definition expressed in s.(9)(2) DDA and even make reference to the DDA definition (as is the case in the NSW CAA).

86.	Further, it is suggested that a national accreditation scheme be introduced by a separate and independent body whose members can be made up of all or some of the existing dog training organisations (whether accredited or not).

87.	The independent body can introduce a national PAT which allows an animal to pass the test depending on performance of the animal informed by the needs of the individual and the safety of the public.

88.	The test can be very broad to meet the needs of the particular person and the type of animal required to meet that person’s particular needs.

89.	Whereas guide or hearing assistance dogs must adhere to a very specific regime of behaviour for the safety of the handler and the public, other assistance animals, including dogs, cats etc., may not need to adhere to such a strict regimen to provide effective assistance to the disabled person whilst preserving public health and safety.

90.	Any test must also be flexible enough to allow other animals such as Psychiatric/therapy animals and/or small breeds of animals (including but not limited to dogs) which are carried by the handler, often in animal carry bags or in the person’s arms, to be able to pass any such test with reasonable ease.  In other words, these animals need only meet criteria relevant to the size of the animal and the function of the animal relevant to the person’s disability. 

91.	Ultimately, the animal would need to pass appropriate aspects of the test or, where relevant, The Assessor would accompany the dog/handler team into areas open to the public and simply observe whether the animal’s cleanliness, hygiene and behaviour meet the standards “appropriate” for an animal in a public place (3rd limb of s.9(2) DDA.  

92.	If the animal meets the PAT or meets the “appropriate” standards then this, together with either a medical certificate or Statutory Declaration by the owner that he/she suffers from a disability should be sufficient for the animal to be ‘accredited’ as an Assistance Animal in accordance with the requirements of the 3rd limb of s.9(2) DAA). 

93.	The dog training organisations will continue to train their own dogs to an ‘appropriate’ level relevant to the functions of each dog, the individual’s needs and the safety of the public.  

94.	These organisations should be entitled to “accredit” any dog or other animal which they train or independently test (owner-trained) using the national PAT.

95.	Our clients submit that the Qld PAT system (with a reformulated PAT) might be a good basis for a national system, especially since that system is almost fully automated and close to becoming paperless for the controlling organisation.  

96.	Upon completion of all required paperwork and proof (medical certificate and/or a Statutory Declaration by the owner if owner-trained), an electronic approval code can be issued ensuring the ID card is produced through a secure and safe channel which is not easily open to abuse or corruption.  

97.	It is fundamental for commercial and practical efficacy that if any national PAT system is to be introduced, it must allow the animal handler and/animal teams to pass the test, regardless of how, where and by whom the animal was trained.  

98.	If the required standard of ‘appropriateness’ is met and the safety of the handler and the public are not put into any physical harm or threat, then the animal handler and/animal teams ought to be able to be ‘accredited’ by whichever organization(s) administers the test (whether specified in any ‘approved’ list or not), where such accreditation/certification is sought.  

99.	It would also be constructive to consider introducing a re-testing scheme whereby specified Assistance Animals must be re-tested and re-accredited after a specified period to ensure they continue to comply at the very least with s.9(2)(c)(ii) DAA ie the animal meets “the standards of hygiene and behaviour that are appropriate for an animal in a public place”.  

100.	The financial burden on the animal owners in attending and paying for this service must be taken into account when specifying which dogs need to be re-tested as well as the appropriate testing intervals.

101.	As an aside, we wish to advise that AHRC confirmed to the writer that it has received numerous complaints about this very issue and the AHRC is currently considering what action it should take to create community awareness about assistance animals and what amounts to ‘appropriate behaviour’ to satisfy the requirement in the 3rd limb DAA which would no doubt assist in minimising such complaints.

102.	We respectfully draw your attention to the statement appearing on the AHRC website (see link below) in relation to assistance animals and the difficulty owners of assistance animals are experiencing and the discriminatory behaviour they face on a daily basis due to the confusion and variation of rules and regulations across several States:

https://www.humanrights.gov.au/our-work/disability-rights/projects/assistance-animals-and-disability-discrimination-act-1992-cth      

103.	We also respectfully suggest that the issue is a matter of public interest and should be brought into the public domain via the media and/or the internet.  

104.	We have strongly suggested to our clients that these avenues should be strenuously explored particularly as Mulligan’s case has closed the gap for any reasonable thinking minds to misconstrue or misapply the 3rd limb of s.9(2) DDA.

105.	A public awareness campaign may obviate the need for any legal action by way of a private and/or class action as the case may be, to be taken against any owner/controller of a place which is open to the public including but not limited to relevant Federal and State Ministers, Local Government Authorities and public transport owners and/or controllers who continue to fail to comply with the Federal DDA.								
106.	No doubt you would agree that it is now time to demand that people who have a genuine disability and require a dog or “other animal” (a cat, ferret, guinea pig or even a small horse as used in USA) which is trained (by anyone) to simply meet the requirements of the 3rd limb of s.9(2) DDA do not suffer any direct or indirect discrimination by ill-informed owners or persons in control of places open to the public and public transport and in particular Local Governments.  

107.	The DDA was enacted to protect against discriminatory behaviour and to enable amongst others, people with a disability to be able to enjoy the same rights and quality of life as those without any disability. 

108.	Until the inconsistencies and confusion surrounding “Assistance Animals” is ameliorated, people with disabilities who need to be accompanied by their assistance animal will continue to suffer prejudice at the hands of ignorant or often well-intentioned but ill-informed owners and/or controllers of premises open to the public and public transport.

109.	All it takes for discrimination to continue is for fair minded people to remain silent.

110.	If you or a loved one of yours required the use of an assistance animal and suffered the humiliating experience I endured from Woolworths, would you remain silent? 

111.	 If not, then it is time to be pro-active and help effect change for all people who suffer mercilessly from discrimination. 

112.	It is incumbent on each and every individual to let their voice be heard so that together we can effect change for the betterment of all in society including the disabled who have a right to enjoy the same lifestyle and benefits as those who are fortunate enough to not be afflicted by any disability that requires the use of an assistance animal.

113.	By supporting change, we will effect change and hopefully give everyone an equal chance of enjoying all the benefits this wonderful country, which we all call home, has to offer. 

MARY METLEDGE

CONTACT DETAILS

Service Dog Training:

Training people with disabilities to train their own dog

Hans van Heesbeen
21 Sixth Avenue, Burwood VIC 3125

info@servicedogtraining.com.au

www.servicedogtraining.com.au

Ph: 03 9889 8333 or 0419 340 325

mindDog:

Psychiatric Service Dog Association Incorporated (NSW)
T/as mindDog. 64 Fitzroy St, Surry Hills, NSW 2010. 

www.minddog.org.au 

info@minddog.org.au

Cath Phillips:  Mobile 0410 336 046

Paws for Diabetics Inc.

Sharon Scott
Director of Training

www.pfd.org.au

director.of.training@pfd.org.au

Ph: 02 6365 8546 a/h     Mobile: 0490 462 906  b/h

Canine Helpers for the Disabled Inc.

Andrew Holmes
P.O. Box 956 Caboolture Qld 4150

www.caninehelpers.org.au

info@caninehelpers.org.au

Ph: (07) 5495 7476   Mobile: 0437 916 996