The following article was published in the Law Institute Journal in September 2006.
Victoria Law Foundation intern Merelle DuVé recently delved into the law about assistance animals to look for gaps in protection as part of a Victorian Law Reform Commission (VLRC) project.
Victorian legislation and regulatory provisions give rights to people who are visually or hearing impaired in their use of guide dogs. These provisions take the form of exemptions to offences under the Domestic (Feral and Nuisance) Animals Act 1994.
The exemptions mean that a visually or hearing impaired person—or a person training a guide dog—may be accompanied at any time and in any place by a guide dog. However, such protections are rarely and inconsistently extended to people with disabilities who do not fall into these categories. This may include people with mental health or physical mobility issues.
Due to the increased use of assistance animals, the VLRC, in collaboration with the Equal Opportunity Commission of Victoria, has begun a review of the legislative environment in which the use of such animals takes place.
The review is being undertaken as a part of the VLRC’s community law reform responsibilities, which permit the VLRC to examine, report and make recommendations about any minor issues of general community concern without a reference from the Attorney-General.
A range of inconsistencies have been identified across Victorian legislation that bear on the use of assistance animals.
First, legislative exemptions apply to visually and hearing impaired people but not to those with mobility or mental health issues.
Victorian legislation does not confer rights of privileged access for people using assistance animals who have either a psychological disability or one which is not hearing or visual related.
This is inconsistent with the Victorian Equal Opportunity Act 1995, which provides a more expansive definition of ‘guide dog’ to include one that is trained to assist people with mobility issues, although it may exclude people with psychological issues.
Inconsistencies in the protection afforded to users of guide or assistance dogs also exist between a range of other Victorian legislative and regulatory provisions that deal with access to public events, wildlife reserves, public gardens and transport arrangements.
Conflict also exists between health and hygiene laws and disability laws. For example, retailers may at times be faced with potentially conflicting duties under the CommonwealthDisability Discrimination Act 1992 (which defines ‘assistance animal’ quite broadly) and relevant health and hygiene laws.
The narrow legislative definitions of ‘disability’ and ‘guide dog’, coupled with the inconsistency across Victorian legislation, creates a situation where users of assistance animals face discriminatory conduct. This is most likely to be experienced in the use of transport and access to public venues.
Lack of public knowledge about the privileged rights of access of people using bona fide assistance animals has the potential to result in dangerous situations where people are denied access to public transport or taxis.
At other times, refusal of entry to public venues in the company of assistance animals may result in inconvenience and embarrassment.
The lack of uniform arrangements or a central authority for the regulation of animal training and accreditation also contributes to the confusion surrounding the use of assistance animals in the community.
While organisations such as Guide Dogs Victoria and Assistance Animals Australia train and provide guide dogs to the physically impaired, no objective or universal standard exists for determining the status of a trained assistance animal for other purposes.
There is also an absence of regulations or guidelines about the requisite standard of training for an animal to be considered an assistance animal or the identification of a trained assistance animal as distinct from a household pet.
Greater consistency in training and identification may ameliorate the problem of some organisations or venues denying access to facilities or entry to buildings.
The lack of legal clarity surrounding the use of assistance animals has resulted in low levels of public knowledge about the privileged rights of access of people using bona fide assistance animals. The VLRC’s community law reform project will seek to achieve such clarity and thereby prevent future discrimination.
The VLRC is continuing to work on this project with the help of another Law Foundation intern, Amelia Ie, who is continuing to research the effect of inadequate legal protection for people who use assistance animals.
Community law reform projects can be suggested to the Commission through email: email@example.com, post: GPO Box 4637, Melbourne 3001 or phone: (03) 8608 7800. Further information about community law reform can be found on the Commission’s website: www.lawreform.vic.gov.au.