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Decision on inquiry: Summer Hill

Decision on inquiry under the Disability Discrimination
Act 1992: NSW CityRail station access - Summer Hill





July 1999 the Human Rights and Equal Opportunity Commission received a
representative complaint under the Disability Discrimination Act ("DDA")
lodged on behalf of people who use wheelchairs regarding current lack
of accessibility of Summer Hill railway station, and seeking implementation
of accessibility at that station this financial year.

The effect of sections
23 and 24 of the DDA, dealing with access to premises used by the public
and services including public transport services, is that railway stations
are required to be made accessible except in so far as this would impose
unjustifiable hardship.

The Acting Disability
Discrimination Commissioner at the time (Chris Sidoti) issued a public
notice of inquiry on 23 July, inviting submissions by 24 September to
assist in deciding the following issues.

    1.The adequacy of
    CityRail's Easy Access program of station upgrading in relation to the
    requirements of the DDA.

    2.Whether requiring
    provision of access at Summer Hill station with the priority sought
    by this complaint would impose unjustifiable hardship.

    3.Whether on public
    interest grounds the Commissioner should refer the matter to the Commission
    for hearing and determination on the basis that it is of a nature such
    that it should be referred.

It also indicated that
submissions in this matter might

  • assist the Commission
    and the parties to the complaint in identifying options for resolution
    of the matter
  • assist people who
    are within the class covered by this representative complaint to decide
    whether they wish to withdraw themselves from the class so as to preserve
    an independent right to complain regarding this matter
  • inform the Commission's
    approach to handling of complaints which may be made regarding other
  • inform consideration
    by the Commission and interested parties of any application for temporary
    exemption which might be made on this or related matters in future.

The notice of inquiry
indicated that relevant issues to consider might include

  • the weight and effect
    that should be given to commitments made by the Minister for Transport
    prior to the recent election regarding funding for upgrading of Summer
    Hill station
  • the impact requiring
    priority for a particular station might have on improvements in accessibility
    of the CityRail system overall
  • measures other than
    station upgrading that are planned or being undertaken or are required
    to improve accessibility of the CityRail system to people with a disability


were received from the parties to the complaint, and from a small number
of other individuals and organisations. Those
making submissions were advised that the content of submissions could
be made public except where specifically requested otherwise.

The notice of inquiry
indicated that submissions received electronically would be posted on
the Commission's web site. Most submissions were not received in electronic
form, but arrangements were made to place a number of submissions on line
for the information of people interested in this inquiry.


The initial
submission on behalf of CityRail noted the complainant Council's concern
that funding for alterations to the station to make it easily accessible
were not included in the 1999/2000 NSW State Budget, but emphasised that
funding was allocated in the recent budget for the planning in relation
to the upgrade of Summer Hill Station to make it an "Easy Access"
station. This submission noted further that

    $26.7 million has
    been allocated for State Rail's Easy Access program with emphasis being
    placed on upgrading higher patronage stations and key regional centres.
    State Rail will continue planning, detailed design and preliminary construction
    work on other stations for easy access upgrades including Summer Hill,
    Beresfield, Katoomba and Rockdale. Construction work is currently underway
    at Liverpool, Town Hall, Wynyard, Central and Ashfield Stations. A development
    application was lodged with Ashfield Council at the end of February
    1999. Council asked for a Heritage Impact Statement and State Rail is
    considering different options for the upgrade of the station following
    a report provided by a Heritage Consultant. Construction is scheduled
    to commence after the Olympics in 2000 when the redesign has been completed.

A second submission
on behalf of CityRail stated that

    It is proposed by
    the end of 2000, 45 CityRail stations will be completed - including
    Ashfield, Bondi Junction, Lidcombe, Wolli Creek, Penrith, Sydney Central,
    Wynyard, Town Hall and the four stations on the new Airport Line.

    Over the next four
    years, it is proposed that a further 43 stations would be equipped with
    Easy Access facilities.

Municipal Council (complainant)

In response,
Ashfield Municipal Council's submission pointed to a history of commitments
regarding access to Summer Hill station.

    Residents of Summer
    Hill still clearly remember a letter from their local member Mr Whelan
    in 1988 that said that the State Government had provided funds in its
    budget for the construction of ramps at the station.

    Nothing happened.

    In 1991 the Liberal
    State transport minister wrote that funds were available for the "staged
    construction of ramps".

    Nothing happened.

    Mr Moss the Parliamentary
    Secretary for Transport indicated to Council through our local member
    that Summer Hill had been placed on the draft five-year capital works
    program for funding in the 1999/2000 financial year.

    That did not happen.

    Mr Scully and Mr
    Whelan held a press conference at the station in February this year
    in the lead-up to the state election. At that press conference they
    said that the Government had approved the upgrading of the station,
    and that funds were available to do the work

    They clearly stated
    that this was not just another election promise and that a budget allocation
    had been made. They nominated the budget figure as being $2.4 million,
    which was to include full access as well as state of the art security

    That did not happen.

This submission went
on to note that

    . a Development Application
    was lodged by the SRA and that Council officers made comments on the
    plans that were presented. One of the issues was the lack of a conservation
    study, but given the scope of the work required to be done in that study
    the report from the consultant should have been available within 4-5
    weeks. It is now many months since the Development Application was lodged
    and there has been more than enough time to have undertaken the re-design
    that was necessary to re-lodge the Development Application.


An older person who is a resident of the Summer Hill area and has a spinal
condition emphasised

  • the great difficulty
    she had in negotiating stairs to gain access not only to the trains
    but to medical and shopping facilities, bearing in mind that the railway
    subway provides access from one side of the Summer Hill township to
    the other
  • the struggle which
    stairs provided for other older people and also for people with children
    in strollers, in addition to the barrier presented to people using wheelchairs.

The submission from
Residents for Access to Summer Hill set out in some detail the history
of negotiations and commitments regarding access to this station and argues
that Summer Hill ought to have been regarded as meeting the criteria for
CityRail's initial Easy Access priority stations.

North Sydney Council
Access Committee submitted that

  • the resources required
    to complete the thirty stations in the original "Easy Access"
    program and the time line required should be taken into account before
    any decision is made to make other stations accessible
  • the matter was of
    great public interest and should be referred to the Commission for determination
    and hearing
  • CityRail should
    be requested to provide a report on their Easy Access program and the
    resources required to complete this program.


non-discriminatory access to public transport services and facilities
is highly important in terms of achievement of the objects of the DDA
both in itself and as a means of achieving more effective equality of
opportunity in employment, education and social life for people with disabilities,
as well as having potential benefits for many other members of the community,
including older people and people accompanied by small children. In the
circumstances of this complaint, the fact that the station access is only
by way of stairs also presents a significant barrier to access to other
local services.

I have, however, decided
to discontinue inquiring into this complaint, pursuant to my power to
do so under section 71(2)(g) of the DDA, on the basis that the subject
matter has been adequately dealt with by another statutory authority.

CityRail's EasyAccess
program commitments for achieving physical accessibility of CityRail stations,
and current progress in implementation, follow the first five year target
set out in the draft Disability Standards for Accessible Public Transport
fairly closely. In my view this should be accepted as adequately addressing
relevant requirements of the Disability Discrimination Act.

Although the draft
Standards have not been authorised by the Attorney-General or the Parliament
and thus have no legal force of their own, the Commission has previously
indicated in its Advisory Note on public transport its view that the draft
Standards generally reflect existing rights and obligations under the
DDA. I accept and adopt that view. I note that the draft Standards have
been subject to extensive consultative processes involving transport providers
and people with disabilities and have also undergone extensive Regulation
Impact Statement analysis.

The Commission's Advisory
Note does caution that the compliance schedule in the draft Disability
Standards, which provides for staged achievement of full accessibility
(subject to residual issues of unjustifiable hardship) over a twenty year
period, with interim compliance requirements at five, ten and fifteen
year points, will not automatically be accepted for the purposes of decisions
under the existing provisions of the DDA pending or absent the authorisation
of Disability Standards.

This caution however
is directed particularly to issues of accessibility of information and
communications features of public transport. In my view this caution is
less applicable to the issue presented by this complaint, of substantial
and expensive construction works to provide physical access to station
premises, which can more legitimately be seen as requiring substantial
time to complete. For the purposes of this complaint I regard achievement
of accessibility of stations at, or close to, the rate contemplated by
the draft Standards as an adequate remedy.

This means that I regard
a complaint about a particular station as adequately remedied by an acceptable
overall rate of achievement of accessibility of stations, whether or not
the particular station is first on the list of stations to be made accessible.

The Commission is not
best placed to judge issues of priority of one station over another within
an overall program where acceptable progress is being made. If it is accepted
that not every station can be made accessible immediately, in my view
the DDA has very little bearing on which stations should be upgraded first.
These are more appropriately seen as issues for decision through political
processes and for determination by transport operators.

The relevant issue
for the purposes of the DDA is less whether political commitments for
priority for one place or another have been met than whether commitments
to adequate progress overall have been made and are being fulfilled. Although
decisions on this point would be assisted if CityRail had already prepared
and published the Disability Plan which NSW legislation requires or the
action plan which the DDA invites, I consider that current progress and
commitments should be accepted as adequate.

Moreover, the State
Rail Authority has advised the Commission that Summer Hill station specifically
is scheduled to have construction works commence in 2000. Although I appreciate
the disappointment and frustration of community members who have received
a number of commitments at the political level in the past, which for
whatever reasons have not been fulfilled, the commitment now made by the
responsible Authority should be regarded as providing an adequate remedy
in the circumstances of this complaint.

I note that I do not
think it is necessary for this purpose for me to decide how far the complainant
Council's own administration of heritage requirements may have contributed
to delay in commencement of construction works in this case. It may however
be useful for me to refer to some comments, which I endorse, made by the
Commission in its decision of March this year on an exemption application
regarding Melbourne trams:

    Heritage issues are
    commonly met when questions of accessibility of premises and facilities
    are addressed. Heritage is a genuine community value that enriches our
    lives and deserves respect. It is perhaps not generally realised that
    so far as buildings are concerned the competition between heritage values
    and the rights of people with disabilities is more apparent than real.
    Access problems can usually be solved in ways that facilitate access
    without detracting from heritage. The issue is harder to resolve, however,
    in the case of public transport vehicles.

    As a general principle
    the DDA requires access for people with disabilities in ways that recognise
    their rights. The Commission would be reluctant to accept a proposition
    that heritage values should prevent people from getting an education,
    going shopping or having a job. Public transport is an important factor
    in living in Australian society and is particularly important for people
    with disabilities. Its importance can only grow as Australia's population
    ages. A participant at the public forum on this application said, "A
    community would have a poor set of values if access is seen as less
    important than heritage". The Commission agrees.

I should emphasise
that this decision does not preclude future complaints regarding access
to this or other stations if progress in implementation of the Easy Access
program does not continue at the projected rate in line with that contemplated
by the draft Standards, or if the most recent commitments regarding Summer
Hill station specifically are not met.

Likewise, this decision
does not preclude complaints on other physical access issues which may
arise regarding boarding and disembarking from trains (including in relation
to needs for assistance), or other issues affecting access to rail services
(including access to announcements, timetables and other information).


Acting Disability Discrimination Commissioner
27 October 1999