Therapy or assistance animals What’s the difference? – By Renée

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 fi rsthand through the Canine Court Companion project, an initiative of the Offi ce 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 Offi ce 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 certifi ed 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 confi rmed 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: 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 defi ned 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) defi nes “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 defi nition.6

HOW DO DOGS QUALIFY TO BE ASSISTANCE DOGS?

An assistance animal must meet the requirement of ‘accreditation’ to fall within the defi nition 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 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 diffi cult 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 indefi nitely.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

SA’s fi rst canine court companion Zero

• Australian Capital Territory,

Northern Territory and Tasmania – no system of accreditation exists and no specifi c passes are issued.

Reaching a decision on whether the evidence demonstrates the animal meets the defi nition 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 fl ights 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, fi nding 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_fi le/0019/33319/ Guidelines-for-Planning-for-People-withAssistance-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-17years/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.

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