Recommendation for refusal of temporary exemption applied for under section 55 of the Disability Discrimination Act: Victoria Department of Infrastructure

We have received by email on 18 May the attached application from Victoria's Department of Infrastructure. The application (MS Word ) seeks an exemption for a period of 18 months from the physical access requirements of the Disability Standards for Accessible Public Transport in relation to proposed trial services to operate between Daylesford and Ballan and between Mt Egerton and Ballan.

I recommend that the application be rejected, without the need to engage in our usual public comment process, on the basis that it does not relate to a matter where there is even an arguable case of unlawful discrimination.

This is on the following basis.

1. The proposed services are to be operated using buses which are presently in use as dedicated school buses.

2. The Department of Infrastructure correctly apprehend that when being used in the more general services proposed, the vehicles will not be covered by the exceptions which are provided in the Disability Standards for Accessible Public Transport dedicated school bus services.

3. However, this does not mean that there would be liability under the Standards for using the buses more widely in the next 18 months. It is not necessary to rely in this instance on the dedicated school bus exceptions, neither the immediate obligations for vehicles new to public transport service in Australia, nor the staged obligations commencing more generally on 31 December 2007, will apply to the vehicles concerned in the period of exemption applied for.

4. The buses in question are already in public transport service in Australia. School bus services are clearly contemplated by the Standards as being within the meaning of public transport services: otherwise there would have been no need for the specific exceptions provided within some of the physical access provisions of the Standards for dedicated school bus services. (The position might be argued to be different for a school bus provided by a school itself exclusively for its own members and thus not being in "public" transport service, but the buses concerned here are not in that category.) The buses concerned are thus not covered by the requirement in clause 32.1 of the Standards for immediate compliance (subject to the defence of unjustifiable hardship where this can be demonstrated) for services operated with new vehicles.

5. The 25% access targets which do apply regarding services and vehicles more generally do not apply until 31 December 2007, which is still more than 18 months away.

6. An 18 month exemption as applied for would thus have no effect, and should be refused as being unnecessary.

I have sought the view of the Accessible Public Transport Jurisdictional Committee (with which the regulations require us to consult, and which comprises representatives of each jurisdiction's Transport Department, and the Attorney-General's Department), and they are of the same view as am I.

David Mason Director Disability Rights policy 13 June 2006