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Legality of Requesting Evidence for Assistance Dogs and Common Property Restrictions in Wildlife-Preserving Body Corporate

This article, written by our Queensland Partner Michael Kleinschmidt, and Evelyn Hearn first appeared in the QLD LookUpStrata Newsletter.

Question: To preserve wildlife, our body corporate has a Council covenant for no cats and dogs. Is it lawful to request evidence of an assistance dog when applying for approval? Can we restrict where approved assistance dogs can go on common property?

Our body corporate is a park-like estate with private individual lots. Seventy per cent of the property is open space. We have a Council covenant for no cats and dogs to preserve wildlife. Fifty percent of the property is designated a conservation area on our DA. We have old by-laws that refer to guide dogs and wildlife rights.

With the loosening of laws and common law on “assistance animals” for people with a disability and court decisions relating to the Disability Discrimination Act, we find owners are bringing dogs onto the property and walking them with no badge or jacket on common property. Many owners are upset as we consider the property a wildlife sanctuary.

Our PBC requests owners provide evidence before bringing an assistance dog onto the property. Is that lawful? When on common property, can we insist identification be displayed? Can we restrict access to certain common property areas (e.g. our conservation area trails)? Can we request these dogs are not walked on common property at all? We have kangaroos, wallabies and other wildlife that live here and are affected by the presence of dogs.

 Bodies corporate regulating the use of common property to ensure compliance with by-laws or other applicable laws can request evidence from owners that the dog and themselves are properly registered.

An Assistance Dog is the generic term for a guide, hearing or service dog that has undergone exclusive training to perform specific tasks that would assist a person with a disability, resulting in a better quality of life and gained independence. Assistance dogs differ from therapy, emotional support or companion dogs (Companion Dogs) as they are required to undertake a Public Access Test (PAT) in order to be qualified. The PAT (example found here: Queensland Government: Disability services) is the minimum standard in Australia for a dog to qualify as an assistance dog and includes certification of the dog handler.

Handlers of assistance dogs may be requested by a person to provide their Handler Identity Card in accordance with the identification procedure for an assistance dog. In this instance, bodies corporate who are regulating the use of common property to ensure compliance with by-laws or other applicable laws can request evidence from owners that the dog and themselves are properly registered. To comply with the identification procedure, handlers must have their valid Handler Identity Card clearly displayed or have it available for inspection upon request while ensuring the dog is wearing its identifying harness/coat. For guide dogs, the harness/coat is yellow/white. For assistance dogs, the harness/coat is blue/white.

Owners who comply with the identification procedure (ID card and harness/coat) cannot be refused access to common property in accordance with the Anti-Discrimination Act 1991 (ADA). The Body Corporate and Community Management Act 1997 also provides that a person with a disability (under the Guide, Hearing and Assistance Dogs Act 2009) who has a right to be on a lot or the common property, has a right to be accompanied by their assistance dog. If such a person is the owner or occupier of a lot in the scheme, they may keep their assistant dog with them in their lot, despite what any by-law says to the contrary.

It is important to note that while companion dogs and their handlers do not enjoy these legal protections, unlawful discrimination can have serious consequences. For example, there are circumstances in which a companion dog who has not been “certified” or “trained” as an assistance dog can still be deemed to assist an individual with an impairment where, without the allowance of the dog, the individual is not granted the same right as another. This can be a breach of the ADA; see Jackson v Ocean Blue Queensland Pty Ltd [2020] QCAT 23

It is easy to see this is a difficult area, even without the added complication of development approvals and covenants! There is also an increase in the willingness of parties alleging discrimination to litigate. In a case such as yours, I would strongly recommend obtaining legal advice, with a view to establishing protocols that are then (sign) posted and published, the subject of owner/occupier education and then enforced.