A BODY CORPORATE CAN REQUEST EVIDENCE OF A SERVICE ANIMAL’S TRAINING
Everyone can be great, because everyone can serve – Martin Luther King, Jr.
Section 181 of the BCCM Act gives a disabled occupier the right to keep an assistance dog they rely on; no approval under the by-laws is required.
An assistance dog is one trained to perform identifiable physical tasks and behaviours to assist a person with a disability, to reduce the person’s need for support (Training).
An assistance dog can, but does not have to, be certified under the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (GHAD Act).
If a claimed assistance dog is not certified, an Adjudicator from the Commissioner’s Office held:
…it is reasonable for the body corporate to ask for evidence of the dog’s training to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person’s need for support. Where it is not provided, it is reasonable for the body corporate to assume the dog is not an assistance dog within the meaning of the GHAD Act, and therefore, section 181 of the BCCM Act.
This means that a Body Corporate can reasonably request evidence that the occupier has a disability under the GHAD Act and that the claimed assistance dog has the Training and, if that is not provided, assume the dog is not an assistance dog.
Recent decision: Support animal claim requires proper proof
In a recent case, a body corporate rejected a lot owners’ original application to keep a dog on the basis that pets within the building could aggravate the allergies and ill health suffered by residents, and that it would be difficult to mitigate the risk to those residents.
The applicants argued the rejection was unreasonable and the case went to conciliation with the BCCM, but no agreement was reached. The owners did not proceed with an adjudication application. However, four days later they informed the body corporate that they had registered their pet with the Gold Coast City Council as an ‘assistance dog’ and under Section 181 of the BCCM Act they could keep the dog as of right.
The Guide, Hearing and Assistance Dogs Act (GHAD) defines an assistance dog as a dog trained to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person’s need for support.
The adjudicator agreed the body corporate acted reasonably to request evidence of the dog’s training and that registration with the Gold Coast City Council was insufficient proof. The owners did not provide the requested evidence and the application from the dog’s owners was dismissed.
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Article Contribute by Bronwyn Rule, Associate Director at Hynes Legal
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Response: Mischaracterisation of Legal Obligations under the DDA and BCCM Act
The article’s assertion that the BCCM Commissioner need not apply the Disability Discrimination Act 1992 (Cth) (DDA) definition of “assistance animal” is legally and constitutionally flawed. While state legislation such as the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (GHAD Act) and the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) may impose procedural frameworks, they do not override Commonwealth law.
What both the Adjudicator and the article’s author have not considered is the –
Constitutional Supremacy of the DDA
Under section 109 of the Australian Constitution, where there is any inconsistency between Commonwealth and State law, the Commonwealth law prevails. The DDA provides a broader and more inclusive definition of “assistance animal” under s 9(2)(c), which does not require certification under the GHAD Act. This includes animals:
• Trained to alleviate the effects of a disability,
• That meet public hygiene and behaviour standards,
• Regardless of who provided the training.
This has been judicially confirmed in Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130, where the Federal Court held that an assistance animal need not be trained by a prescribed or accredited provider.
The Adjudicator has either-
Misread Precedents or Misapplied Precedents.
In Bayview Tower [2025] QBCCMCmr 33, the BCCM Adjudicator appeared to prioritise the GHAD Act certification scheme. However, adjudicators are not courts of law and cannot override constitutional protections. Furthermore, in Jackson v Ocean Blue Queensland Pty Ltd [2020] QCAT 23, the Queensland Civil and Administrative Tribunal accepted that the DDA definition of an assistance animal applied even in the absence of GHAD certification. The same principle was recognised in AEJ v Rozema [2022] QCAT 355.
Critically, this article also omits a key finding from the Bayview Tower adjudication regarding ‘affected persons’ and their health conditions. The Committee argued that pets in the building could aggravate allergies and ill health in certain residents, but the adjudicator noted:
“Section 169B(6)(a)(ii) requires that the committee be satisfied that an unacceptable risk would be posed because the risk could not reasonably be managed by conditions imposed on the keeping of the animal.”
Rather than the Body Corporate engaging in collaborative risk management, the Committee repeatedly placed the entire burden of managing risk on the person with the assistance animal/pet. Another detail omitted by the author was that the adjudicator was also critical of the Committee’s adoption of a zero-risk standard, observing:
“In my view, a ‘zero risk’ approach may be insufficient for the purposes of new section 169B(6)(a).”
This signals a clear expectation that committees themselves must also consider reasonable mitigation, not operate on rigid exclusion. The adjudicator implicitly recognised that in a communal living environment like strata, some reasonable accommodation, including committee-led strategies to reduce exposure may be warranted.
In this instance, it is interesting that the adjudicator warned the Committee at Bayview Tower in providing the following significant guidance in the order:
“Should the applicants seek approval for Daisy through a pet application, the body corporate would need to be able to justify a decision to refuse approval…., it is likely that a decision to refuse approval would be found to be unreasonable.”
Furthermore, it should be noted that the strata building in question has not approved a pet application in over 30 years. Pets currently residing in the building are there only because their applications were ‘deemed approved’ under the 21-day automatic approval rule, which applied during a period when the committee had resigned, and no quorum existed. This practice further reinforces a pattern of entrenched resistance by the body corporate to recognising or accommodating pets or assistance animals and evidences a deliberate policy of exclusion, hence their challenge of an assistance animal.
An approach that ignores the broader legal context with regards to the definition of an ‘assistance animal’ in federal legislation ultimately undermines the flexibility and risk-balancing intent embedded in the BCCM Act. Changes to the BCCM Act that came into force on 1 May 2024, together with the authority provided by applicable federal legislation, require decisions to be grounded in evidence and responsive to the realities of modern strata living, rather than reflecting the kind of rigid exclusion that continues to characterise the approach adopted at Bayview Tower.