Notice of temporary exemption application:

Application

The Human Rights and Equal Opportunity Commission has received an application from Mr D.Williams for a temporary exemption under section 55 of the Disability Discrimination Act (DDA) from relevant provisions of the Disability Standards for Accessible Public Transport (DSAPT) and the DDAto permit deferral of provision of wheelchair access on a public transport service to be known as Airport Direct operating from Shepparton to Melbourne. The applicant seeks exemption from the effect of the DSAPT and the DDA insofar as they would require immediate wheelchair access to a newly acquired HiAce vehicle, for a period of 18months, on the basis that after 18months an additional larger vehicle will be acquired which does provide access.

The application includes the following statements by the applicant:

The service will be running two times daily with a 13 seat Toyota Hiace which was chosen for its fuel economy and reliability while the business works up enough custom to run three times daily and own two busses where the larger of the two will accommodate for disabled people.  Airport Direct has a business plan to have another bus after 18 months from the commencement of business. 

Although it is possible to alter the Toyota Hiace for disabled access it will dramatically alter my small bus and take away comfort and seating for all passengers.  Since it is essential that Airport Direct is considered a bus service and not a taxi service, the bus must have 13 seats.  In the Toyota Hiace the only option is to remove seats or have removable seats and to engineer the floor so that restraining devices can be put into place. 

I stress that the financial hardship that Airport direct will receive due to these necessary modifications is real, not only due to the costs of the modifications but also due to the costs of not being able to receive accreditation and therefore not being able to operate.  If given the opportunity to defer the installation of wheelchair access I will make a firm commitment to the Commission that I will have wheelchair access installed by 18 months from the date of commencement of business. I ensure that Airport direct will be implementing the necessary measures to meet the needs of providing the service to disabled patrons while exempt by providing these passengers with help onto the bus and the appropriate storage of there wheelchair on the buses trailer.

Issues

The Disability Standards for Accessible Public Transport while permitting staged compliance overall, require complete compliance for new vehicles.

This is subject to possible defences based on unjustifiable hardship.

In previous decisions the Commission has not been prepared to grant exemptions purely to certify the existence of unjustifiable hardship. However in previous instances (for example the Coffs Harbour travel and tours matter) the Commission has been prepared to grant exemptions on condition that the applicant makes and meets commitments to provide access within a reasonable period, on the basis that to grant an exemption in such circumstances (rather than leaving an applicant to raise possible hardship defences in response to complaints if access is not provided) can be appropriate as a means of promoting achievement of the objects of the DDA.

Call for submissions

In accordance with its policy on exemption applications, the Commission seeks to give interested parties an opportunity to participate in the process of considering this application.

Accordingly, the Commission seeks submissions by 7 November 2005, preferably by email to disabdis@humanrights.gov.au .

Submissions may also be addressed by mail to Disability Rights Unit, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney 1042. Where submissions are made by mail a copy on disc should be included if possible.

To promote open public discussion and exchange of views, the Commission intends to make submission publicly available by posting submissions made electronically on its Internet site. Requests for material to be treated as confidential should be clearly indicated.

David Mason
Director Disability Rights policy

See also submission in response: Accessible Public Transport Jurisdictional Committee (MS Word)