Regulating Fake Assistance Animals - A Comparative Review of Disability Law in Australia and the United States

Abstract

The United Nations Convention on the Rights of Persons with Disabilities [CRPD] provides that persons with a disability have the right to be accompanied by an assistance animal to provide living accommodations in the navigation of routine daily activities. The CRPD imposes upon states an obligation to identify and to eliminate obstacles and barriers to accessibility (Art 9), as well as to take effective measures to ensure personal mobility with the greatest possible independence (Art 20). This extends to recognising the rights of persons with disabilities to be accompanied by assistance animals. In jurisdictions like Australia and the United States, the practical effect of these international legal norms rests primarily on their implementation and effective enforcement in domestic law, typically through anti-discrimination laws. These anti-discrimination laws expressly provide persons with disabilities with assistance animal access rights. These access rights entitle persons with disabilities to demand the right to be accompanied by an accredited or trained assistance animal. In Part I, we provide an overview of the problems arising from the use of fake assistance animals. Rights-holders, service providers and policy makers in many countries, including Australia and United States, express increasing concern over the uncertainties and related inadequacies of government regulation and legal enforcement to curb assistance animal misuse. Adopting a comparative approach, this article seeks to identify the principal legal and regulatory issues. To appreciate the diversity of problems with ‘fake’ assistance animals, the authors propose a typology that identifies and distinguishes between types of assistance animals, their users and uses, both legitimate and illegitimate. Part II will then outline broader regulatory issues relating to the adequacy of processes governing accreditation, training and identification of assistance animals, and finally Part III examines the case for criminalisation of fake use of assistance animals. Ultimately we argue that a single national system, where training institutions are accredited and authorized under federal law, to assess and accredit various disability service animals, must be created.