Assistance animals, discrimination and the law

The law involving assistance animals is complex and it can be difficult to find the right information if you already have an assistance animal or if you have a disability and are looking to receive the support of an assistance animal.

Discrimination against handlers and their assistance animals is also not uncommon due to the complexity and misunderstanding of legal entitlements and obligations. This article provides a general overview of discrimination laws in Queensland and on the federal law with regard to assistance animals.

What is an assistance animal?

Assistance animals are essentially trained animals that can assist you in your day-to-day life if you have a physical or psychosocial disability. They are specifically trained to alleviate the effects of a disability. They are medical aids that require specialist training and have accreditation and/or acknowledgement under law for the tasks they perform.

Assistance animals are predominantly dogs, but it is not unheard of for a cat to attain accreditation as an assistance animal.

There are various terms used for assistance animals, and some have specific classifications and requirements under Australian state law, such as guide dogs (also called seeing-eye dogs) or hearing dogs. A person who is assisted by an assistance animal is referred to as a “handler”.

Other terms you may have come across are service dogs, mobility assistance dogs, medical alert dogs or psychiatric assistance dogs, but some of these are more common in other jurisdictions or are used informally to refer to the assistance animal’s specific role or task. For example, a dog that is trained to recognise or detect seizures in their epileptic handler may be informally referred to as a psychiatric alert dog or seizure dog while still being an assistance animal at law.

It is important to note that an “emotional support animal” is very different to an assistance animal at law.

“Emotional support animal” or “therapy animal” is an informal term that usually refers to an animal that can provide support through their companionship. They do not require specialist training and also do not have the same public access rights as assistance animals.

Recognition of assistance animals under law

Assistance animals are required to either be trained or accredited through an approved organisation to meet the standard under federal and/or state law if you wish to take them with you into public spaces where, ordinarily, animals are not permitted.

Federal discrimination law and assistance animals

The federal Disability Discrimination Act 1992 (DDA) (s 9(2)) defines an assistance animal.

For the purposes of this Act, an assistance animal is a dog or other animal:

• accredited under a law of a state of territory that provides for the accreditation of animals trained to assist a person 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
• trained:
  • to assist a person with disability to alleviate the effect of the disability; and
  • to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

The definition of assistance animal at federal law is broad and you may find some organisations specifically identify that they train animals in compliance with either the federal or Queensland legislation (or another jurisdiction’s legislation).

Case review – Virgin Australia fined for refusing access for an assistance dog

In the case of Mulligan v Virgin Australia Pty Ltd [2015] FCAFC 130, a handler whose dog was trained by a dog training school but not an accredited organisation under the DDA was denied entry onto a Virgin Australia flight.

Mr Mulligan’s dog, Willow, was trained to assist him with his cerebral palsy, vision and hearing impairments.

Virgin Australia tried to rely on the civil aviation regulations that said animals could only be carried in their cabins via permission of the Civil Aviation Safety Authority (CASA).

It was held that civil aviation regulations did not overrule the DDA. The court declared that Virgin’s conduct was unlawful discrimination and was ordered to pay $10,000.00 in compensation.

Queensland discrimination law and assistance dogs

The Queensland law, the Guide, Hearing and Assistance Dogs Act 2009 (GHADA) states:

• An approved assistance dog trainer may only certify an assistance dog for a person with a disability if the dog—
  • is able to perform identifiable physical tasks and behaviours to assist the person in a way that reduces the person’s need for support; and
  • has passed a public access test conducted by the following within 7 days before being certified—
    • for an approved trainer—the trainer;
    • for an approved training institution—an employee trainer of the institution; and
  • is not a restricted breed as defined under the Local Government Act 1993; and
  • is desexed and vaccinated; and
  • has not been declared a dangerous dog under a local law.

As you will see, registration under the GHADA is far narrower and the training of the animal and public access test must be facilitated by an approved training organisation.

The Queensland legislation is also specifically directed at “assistance dogs” rather than “assistance animals”.

The differences in law between state and federal levels do not create a hierarchy or mean you get differential treatment if your assistance animal is not accredited for the purposes of the GHADA.

Case review – handler and guide dog refused entry to a hotel

The degree for what is considered an assistance animal in Queensland was addressed in the case of Matthews v Woombye Pub Trading Pty Ltd [2022] QCAT 301. This case was brought against the Woombye Pub under Queensland state legislation, the Anti-Discrimination Act 1991 (Qld) (ADA).

The applicant Mr Matthews and his assistance dog Kooy2 were on several occasions denied entry to the Woombye Pub. Kooy2 was trained via self-assessment by Mr Matthews and was used to support his anxiety and his access to public and social engagements.

Mr Matthews was either forced to leave Kooy2 outside or sit outside with his assistance dog and was even banned from entry for one month for attempting to enter the premises with Kooy2.

At the Queensland Civil and Administrative Tribunal (QCAT) in defence of the claim, the Woombye Pub stated they were operating under the belief that it was a statutory requirement, under the GHADA, that Mr Matthews presented a handler identity card.

Kooy2 had no registration via the GHADA, and no formal training from an accredited organisation and the evidence that Mr Matthews provided was a TransLink Assistance Animal Pass that he used for public transport. This was not considered valid documentation by the Woombye pub.

The tribunal not only accepted that the TransLink Assistance Animal Pass was evidence of Kooy2 being an assistance animal, but they stated the following:

The ADA defines “assistance dog” (in Schedule 1) as having the meaning given by the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (the GHAD Act), Schedule 4.

In the GHAD Act, “assistance dog” is defined to mean a dog trained to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person’s need for support.

I respectfully agree that the reference to the word “trained” in the definition does not require training by an “approved trainer” or “approved training institution”.

The definition of “assistance dog” encompasses training to perform identifiable “physical tasks and behaviours” to assist a person with a disability to reduce the person’s need for support.

Given that Mr Matthews’ need for support relates to his psychological (rather than physical) impairment, I consider that the “behaviours” Kooy2 was trained to perform need only involve obedience and companionship in order to assist in reducing Mr Matthews’ need for support.

The tribunal held that the Woombye Pub was not entitled to refuse entry to Mr Matthews and Kooy2 on the basis that he could not produce a handler card under the GHADA, and Mr Matthews was awarded $8,000 in compensation.

Can I take my dog anywhere in public?

Under federal discrimination laws (the DDA), assistance animals are considered to be an extension of one’s disability and are protected from discrimination.

There are also specific protections under the Queensland legislation (the ADA) that state that a person must not discriminate by refusing to rent accommodation to a person if they rely on the assistance of a guide, hearing or assistance dog and also cannot require them to keep the dog elsewhere or charge them extra for having the dog.

Assistance animals are allowed to accompany their handlers anywhere in public, including restaurants, hospitals, schools, public transport, shopping centres and national flights.

You should be prepared to provide some form of evidence to verify that your animal is an assistance animal.

Under the DDA it is lawful for a person to request or require that you remain under control of your assistance animal, and it is also lawful for a person to request evidence from you that your animal is an assistance animal or that it is trained to meet standards of hygiene and behaviour that is appropriate for an animal in a public place.
Under the GHADA, there are some limitations on where an assistance animal can access, for example:

• certain areas in health services such as in-patient wards, surgical areas and labour wards;
• ambulances; and
• food preparation areas.

It is also not unlawful to discriminate against a person with an assistance animal if they reasonably suspect that the animal has an infectious disease or if it is reasonably necessary to protect public health or the health of other animals.

Travelling on international flights with assistance animals

Assistance dogs, in some instances, are allowed on international flights, but you need to follow the requirements of both your departing and entering countries, which have specific laws and customs regulations around travelling internationally with assistance animals.

For international travel, many countries have a requirement that your assistance dog be accredited through an organisation that has their training approved by Assistance Dogs International.

Help with discrimination involving an assistance animal

Complaints of discrimination can be made to either the Australian Human Rights Commission or the Queensland Human Rights Commission. Choice of jurisdiction can be a complex matter and if you are interested in pursuing a complaint, it is recommended you get legal advice which is tailored to your individual scenario.

Handlers of assistance dogs can be faced with discrimination in various types of situations, including accommodation, travel and general public access.

If you are a handler of an assistance dog and believe you have been discriminated against and would like to know your rights and what types of complaints you can make, we recommend you speak with one of our discrimination lawyers.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au