Case: Fischer v Stuart (unreported, Supreme Court NT, Forster CJ, 25 July 1979)
Outcome: cited
Second, and more importantly, I have genuine concerns about the operation of s 9(1)(f) DD Act as presently drafted. I accepted the submissions of the applicant and the Commissioner as to the lack of qualification of the word "trained", because in my view it accorded with the meaning of the word in the Act. However, the language of the Act, in permitting a broad interpretation, in my view poses risks as to the functioning in the community of disabled persons with genuine assistance animals. The current form of s 9(1)(f) DD Act as drafted has the following potential consequences: &#8226; any animal that has been trained to assist a disabled person to alleviate the effect of his or her disability appears to fall within s 9(1)(f) DD Act . So, for example, capuchin monkeys and miniature horses appear to be considered assistance animals notwithstanding that there may be minimal community acceptance of such animals as assistance animals (I note by way of illustration http://advocacy.britannica.com/blog/advocacy/2007/01/service-animals-help-humans-live-fuller-lives/ ) &#8226; arguably inherently dangerous animals such as dingoes ( Fischer v Stuart , unreported, Supreme Court NT, Forster CJ, 25 July 1979) could be trained to assist in alleviating the effect of a disability, and would therefore justify recognition under s 9(1)(f) &#8226; in relation to dogs, which are commonly used as assistance animals, there are no restrictions on the breed of dog which the DD Act recognises. This could lead to dogs without the appropriate temperament for public access being trained as assistance animals for the purposes of s 9(1)(f) &#8226; the DD Act specifically requires the animal to be trained only to assist in alleviating the effect of a disability, not trained to be obedient, or well-behaved in public &#8226; there are no hygiene requirements nor health standards in relation to assistance animals, nor any requirement that the owner control the animal in s 9(1)(f) &#8226; the DD Act gives accredited training organisations no additional credence over animals trained otherwise, notwithstanding that accredited organisations such as those listed in the Guide Dogs Act 1972 (Qld) have community recognition and confidence. 175 Third, lack of clarity in the current legislation as to the nature of an assistance animal contributes to conflict between the owners of such animals and service providers, as has been demonstrated in this case. 176 Finally, and perhaps of most importance, is the fact that there is public confidence in and acceptance of the guide dog regime, which has more than 30 years recognition in State law in Queensland, and recognition throughout Australia and indeed the international community. It would be of concern if, because of the breadth of s 9(1)(f) and consequent legislative endorsement given to animals with lower community acceptance and trained to inferior and less exacting standards, the public confidence and acceptance of guide dogs were to be in any way undermined. It is perhaps unfortunate that the DD Act does not, like the Guide Dogs Act 1972 (Qld) or the Dog Control Act 1996 (NZ), define assistance animals by reference to accredited training organisations. This would provide certainty for animal owners, service providers and members of the public, and strike a balance between the needs of the disabled as recognised in the DD Act and the confidence of service providers and the public as to standards of assistance animals in public places. 177 At the hearing I indicated that I would provide my findings to the parties, and then seek submissions as to appropriate orders to make in these circumstances once the parties have had time to consider my reasons. Accordingly, I shall make orders as to the substantial issues in the proceedings, and make directions for another hearing to receive further submissions. THE COURT ORDERS THAT: In respect of QUD324/2005: 1. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth). 2. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a) , 23 (1)(b), 24 (1)(a) and 24 (1)(b) Disability Discrimination Act 1992 (Cth). In respect of QUD522/2005: 1. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth). 2. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a) , 23 (1)(b), 24 (1)(a) and 24 (1)(b) Disability Discrimination Act 1992 (Cth). I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 June 2007 Counsel for the Applicant: D O'Gorman SC (Pro Bono) Solicitor for the Applicant: Miller Harris (Pro Bono) Counsel for the Respondent: C Murdoch Solicitor for the Respondent: Minter Ellison As Amicus Curiae J O'Brien for the Acting Disability Discrimination Commissioner Date of Hearing: 14 September 2006 Date of Judgment: 22 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/936.html