Application for temporary
exemption under Disability Discrimination Act section 55: Toowoomba City
Hall

The Human Rights and Equal Opportunity Commission has received an application
from Toowoomba City Council for exemption under section 55 of the Disability
Discrimination Act (DDA) regarding accessibility of the Toowoomba City
Hall theatre.

Application

The application is attached (with certain supporting
documents excluded for reasons of file size).

The application seeks exemption from liability under DDA section 22 (access
to premises) and 24 (provision of goods, service and facilities).

The application discusses difficulties and expense in making this venue
accessible to people with disabilities. It indicates possibilities for
addressing access issues in the course of a more general upgrade contemplated
for the theatre. Funding for this upgrade are currently allocated for
future budget years but the application notes that other priorities may
require revision of this.

The application is sought to ensure that public use of the theatre is
lawful pending works at some future point to make the theatre accessible.

Request for submissions

In accordance with the Commission's policy, I am requesting public input
on this application an on the recommendation which I propose to make,
outlined below.

Submissions are requested by 13 January 2003, preferably by email to
disabdis@humanrights.gov.au. Submissions may also be made by mail to Disability
Rights policy unit, HREOC, GPO Box 5218, Sydney NSW 1042.

Proposed recommendation

I propose to recommend to the Commission that the application be refused.

The Council's contentions that the current expense and difficulty of
providing disability access would be excessive, and that this should not
prevent the benefits to be gained to other persons by use of the theatre
in its current condition, may have some substance. These factors would
be available to it to argue as a possible unjustifiable hardship defence
in the event of complaints.

However, the Commission has decided on a number of previous occasions
that it is not appropriate to use the exemption power in section 55 of
the DDA simply to certify that an applicant need not undertake certain
actions on hardship grounds, without there being sufficient reason to
conclude that granting an exemption will advance achievement of the objects
of the legislation. I refer to the decisions in the Women´s Legal
Centre and Lutheran Schools matters.

In my view the same approach should be applied in this instance.

Clearly the objects of the Disability Discrimination Act may be promoted
by granting exemptions in return for commitments to improve access over
time. However, the application acknowledges that plans for an upgrade
including disability access may or may not go ahead on budgetary grounds.
There is not in this instance any definite commitment to providing access
within a definite time in return for an exemption pending that time.

This application is therefore different to one such as in the Melbourne
Trams case where the Commission granted an exemption - a decision justified
by results as may be seen by the increasing presence of accessible trams
and supporting infrastructure on Melbourne streets.

Graeme Innes AM

Deputy Disability Discrimination Commissioner