LSB December 2021 HR

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ANIMAL LAW Therapy or assistance animals: What’s the difference? RENÉE EVANS, SENIOR SOLICITOR, CROWN SOLICITOR’S OFFICE & MEMBER, ANIMAL LAW COMMITTEE DIANA THOMAS, CHAIR, ANIMAL LAW COMMITTEE Assistance and therapeutic animals can have a tremendous positive impact on those they serve. The South Australian legal profession has witnessed this impact firsthand through the Canine Court Companion project, an initiative of the Office of the Director of Public Prosecutions, in partnership with Guide Dogs SA/NT. During his time in active service, Zero, South Australia’s inaugural court companion dog, assisted many victims and vulnerable witnesses and became a much-loved staff member at the Office of the Director of Public Prosecutions. Some of the common questions about assistance and therapy animals are answered below. WHAT IS THE DIFFERENCE BETWEEN AN ASSISTANCE ANIMAL AND A THERAPEUTIC ANIMAL? A therapeutic animal can be any animal certified by a medical practitioner as being required to assist a person as a consequence of the person’s disability, or an animal of a class prescribed by regulation. 1 For example, until January of this year Canberra was home to a herd of therapy Alpacas who regularly made visits to vulnerable persons including those with severe mental trauma. 2 Anecdotally, post-COVID 19, many Strata and Community Title residences 3 are seeing previously barred animals being allowed to stay, with their therapy animal status confirmed by a doctor’s letter. For the purposes of the Disability Discrimination Act 1992 (Cth) (‘DDA’), an assistance animal is a dog or other animal: 4 a. accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or b. accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or c. trained: 22 THE BULLETIN December 2021 i. to assist a person with a disability to alleviate the effect of the disability; and ii. to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. What constitutes appropriate “standards of hygiene and behaviour” for an assistance animal in a public place is not defined in the DDA and is open to interpretation. Pursuant to the Equal Opportunity Act 1984 (SA), “assistance animal” means a dog that is an accredited assistance dog under the Dog and Cat Management Act 1995 (SA), or an animal of a class prescribed by regulation. 5 The Dog and Cat Management Act 1995 (SA) defines “assistance dog” as a dog trained and used for the purpose of assisting a person who is wholly or partially disabled and includes a dog undergoing training of a kind approved by the Board for the purposes of this definition. 6 HOW DO DOGS QUALIFY TO BE ASSISTANCE DOGS? An assistance animal must meet the requirement of ‘accreditation’ to fall within the definition of ‘assistance animal’ in the legislation. In South Australia, only prescribed accreditation bodies may, on application, accredit a dog, or renew the accreditation of a dog, as an assistance dog. 7 Prescribed accreditation bodies include the Dog and Cat Management Board; The Royal Society for the Blind of SA Inc; the Guide Dogs Association of South Australia and Northern Territory Inc; Lions Hearing Dogs Inc; and any other person or body declared by regulation. DO OWNERS HAVE TO CARRY A COPY OF THE ACCREDITATION? CAN I REFUSE ENTRY OR ASK THEM TO LEAVE IF THEY CANNOT PRODUCE ACCREDITATION? Owners can be asked to produce evidence that the dog is an assistance dog. It is an offence to claim that a dog is an assistance dog unless it is accredited under SA’s fi rst canine court companion Zero the Dog and Cat Management Act 1995 (SA) or covered by the DDA. With various approaches to accreditation and regulation of assistance animals in each jurisdiction, it is not difficult to see how confusion and complaints can arise, particularly for people travelling interstate with their assistance dogs: 8 • Victoria – an Assistance Animal Pass is required and issued by Public Transport Victoria permitting assistance animals to travel on public transport. 9 • Western Australia – The Public Transport Authority doesn’t require permits for assistance animals to travel on public transport. There is local government legislation providing for animals to have an ID card and a dog coat/harness. 10 • Queensland – A Handler’s Identity Card is valid for 5 years allowing travel on public transport. Also, Translink (South East Queensland Transport Authority) issues an Animal Pass provided the dog meets certain standards of behaviour in public. 11 • South Australia – The Dog and Cat Management Board issues a Disability Dog Pass that is valid indefinitely. 12 • New South Wales – An Assistance Animal Permit is required for access to public transport; however, Guide dogs and Hearing dogs do not require a permit. The permit must be renewed annually. 13
ANIMAL LAW • Australian Capital Territory, Northern Territory and Tasmania – no system of accreditation exists and no specific passes are issued. Reaching a decision on whether the evidence demonstrates the animal meets the definition of ‘assistance dog’ and taking action to refuse entry or ask the person and the assistance animal to leave may have legal consequences, as the cases below demonstrate: Mulligan v Virgin Australia (2015) 14 involved a DDA claim. Virgin refused to allow Mr Mulligan (who has cerebral palsy and hearing and vision impairments) to travel on its flights with his assistance dog. The Federal Court found Virgin’s conduct amounted to illegal discrimination and awarded compensation of $10,000. It also found the Civil Aviation Regulations did not override the DDA. Queensland Health v Forest (2008) 15 involved a DDA complaint by Mr Forest (who has a psychiatric disability), that he was not allowed to be accompanied by assistance dogs (Buddy and, subsequently, Knuckles) when attending a public hospital and dental clinic. The trial judge found there had been unlawful discrimination and ordered $8,000 in compensation. On appeal, the Full Federal Court dismissed the complaint, finding that Mr Forest had not been denied access with his dogs because of his disability but because his dogs were “ill-behaved and ill-controlled” and there was inadequate evidence of proper assistance dog training. More information Travelling with assistance animals on aircraft: https://www.casa.gov.au/aircraft/ cabin-safety/travellers-disability/travellingassistance-animals Public access rights for assistance animals: https://www.dpc.sa.gov. au/__data/assets/pdf_file/0019/33319/ Guidelines-for-Planning-for-People-with- Assistance-Animals-in-Emerg_FINA....pdf page 9 Renting with an assistance dog or therapeutic animal: https://dogandcatboard.com.au/ dogs/renting-with-dogs B Endnotes 1 Equal Opportunity Act 1984 (SA), s 88A. Note ‘therapeutic animal’ does not include an assistance animal, a dangerous dog within the meaning of the Dog and Cat Management Act 1995 (SA) or a dog of a prescribed breed within the meaning of the Dog and Cat Management Act 1995 (SA). 2 https://www.abc.net.au/news/2021-01-05/ canberra-alpaca-therapy-hangs-up-reins-after-17- years/13033944 3 Strata Titles Act 1988 (SA) , s 19 (4)(c); Community Titles Act 1996 (SA), s 37 (1)(d). 4 Disability Discrimination Act 1992 (Cth) s 9 (2). 5 Equal Opportunity Act 1984 (SA), s 5. 6 Dog and Cat Management Act 1995 (SA), s 5. 7 Dog and Cat Management Act 1995 (SA), s 21A. 8 https://humanrights.gov.au/our-work/disabilityrights/projects/assistance-animals-and-disabilitydiscrimination-act-1992-cth 9 https://www.ptv.vic.gov.au/tickets/myki/ concessions-and-free-travel/assistance-animalpass/ 10 https://www.transperth.wa.gov.au/usingtransperth/animals 11 https://translink.com.au/tickets-and-fares/tickettypes/disability/assistance-animal-pass 12 https://dogandcatboard.com.au/dogs/assistancedogs 13 https://www.service.nsw.gov.au/transaction/ apply-assistance-animal-permit 14 Mulligan v Virgin Australia Pty Ltd [2015] FCAFC 130. 15 Queensland (Queensland Health) v Forest [2008] FCAFC 96. We Are Forensic Experts In • Engineering Analysis & Reconstruction • Traffi c Crashes & Road Safety • Workplace or Mining Incidents • Reporting & Experts Court Testimony Delta V Experts • Clarifi es the facts in a situation • Scientifi cally substantiates the evidence • Failure Analysis & Safety Solutions • Physical, Crash, Incident & Vehicle Dynamic Handling Testing DELTA-V EXPERTS • Strengthens your communication • Diverse experience and expertise 03 9481 2200 www.dvexperts.net 9 Springbank Street, Tullamarine, 3043 December 2021 THE BULLETIN 23
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE I look forwar
Page 8 and 9: ANIMAL LAW Animals and intervention
Page 10 and 11: RENTING WITH PETS IN THE DOG HOUSE?
Page 12 and 13: Q&A Know Your Council Member: Melan
Page 14 and 15: IN HONOUR Vale: Mark Glencraig Nich
Page 16 and 17: DISABILITY JUSTICE More collaborati
Page 18 and 19: FEATURE THE NEED TO THINK OUTSIDE C
Page 20 and 21: FEATURE Western Law as having judge
Page 24 and 25: YOUNG LAWYERS facebook.com/YLCSA Yo
Page 26 and 27: WELLBEING & RESILIENCE It's OK to g
Page 28 and 29: RISK WATCH Culturally and linguisti
Page 30 and 31: FEATURE The existing legal safeguar
Page 32 and 33: FEATURE Turkeys and the law DIANA T
Page 34 and 35: TAX FILES DGRs that are not already
Page 36 and 37: FAMILY LAW CASE NOTES Family Law Ca
Page 38 and 39: GAZING IN THE GAZETTE REGULATIONS P
Page 40: We manage one of SA’s largest soc

LSB December 2021 HR

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