Exemption: Allocated spaces - Queensland Rail Tilt trains

Exemption: Allocated spaces - Queensland Rail Tilt trains

Application for Exemption under Section 55 of the Disability Discrimination Act (1992)

DISABILITY DISCRIMINATION ACT 1992 (Cth), Sections 55(1) and 55(1A)

By this instrument, the Human Rights and Equal Opportunity Commission (‘HREOC') grants a temporary exemption to Queensland Rail Ltd (“QR”) pursuant to sections 55(1) and 55(1A) of the Disability Discrimination Act 1992 (‘DDA') in relation to allocated spaces on tilt trains operated by QR.

THE APPLICATION

Queensland Rail Limited (QR) applied on 17 December 2007 for an exemption for a period of five years from the requirements of Part 9.6 of the Disability Standards for Accessible Public Transport (2002) (DSAPT) insofar as they require the provision of additional allocated spaces on the Tilt Train booked services operated by QR.

QR seek an exemption on the basis that existing provision of allocated spaces has been shown to be sufficient to meet demand, and that modification to provide additional allocated spaces would involve unnecessary expense and loss of other seating capacity.

QR propose that an exemption should be granted subject to a number of conditions set out in the application and requiring QR to monitor utilization of allocated spaces and pursue improvements in accessibility into the future.

DECISION OF HREOC

HREOC hereby grants to QR a temporary exemption pursuant to sections 55(1) and 55(1A) of the DDA in the following terms:

For the period to 3 March 2013 QR is not required to increase the number of allocated spaces on QR Tilt Train services.

This exemption is on condition that QR

• Monitor utilisation of allocated spaces on QR Tilt Train services and report annually to HREOC during the exemption period on utilization, including any instances where numbers of allocated spaces provided are insufficient to meet demand
• Research and report annually to HREOC during the exemption period on potential seating options that would provide for additional allocated spaces or additional provision for carriage of people using wheelchairs, including installation of moveable armrests and other improved arrangements for transferring to fixed seating, and options for use of removable or folding seating.

CONSIDERATION AND REASONS

In making its decision, HREOC relied upon the following documents (available on its website):

• The application documents from QR
• Advice from the Accessible Public Transport Jurisdictional Committee
• QR's report on compliance with the DSAPT

In making its decision, HREOC had regard to the following:

• the terms and objects of the DDA;
• the DSAPT; and
• the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3).

HREOC's consideration of issues raised in this application is set out in Schedule 1 below.

REVIEW OF DECISION

Subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Dated this 3rd day of March 2008

Signed by Commissioner Graeme Innes AM, on behalf of HREOC.

 

SCHEDULE 1: CONSIDERATION OF THE APPLICATION AND REASONS FOR DECISION

 

Summary

QR applied for an exemption in this matter on 17 December 2007. HREOC issued a public notice of inquiry and call for submissions the same day, with submissions requested by 1 February 2008.

The only submission received, from the Accessible Public Transport Jurisdictional Committee, which represents all Australian governments and with which HREOC is required to consult on exemption applications in relation to the DSAPT, supported granting of an exemption in the terms and on the conditions proposed by QR.

In making its decision in this matter HREOC has concluded that

• QR's current level of provision of allocated spaces on its tilt trains is highly likely, although not certain, to be lawful with respect to the DSAPT, at present and at least for the period up to 31 December 2012.
• There is however a sufficiently arguable case to the contrary that an exemption should not be refused as being unnecessary.
• The fact that QR currently complies with what HREOC regards as the preferable view of the effect of the DSAPT is an argument in favour of granting an exemption, although the power to grant an exemption is not the same as a power to certify compliance.
• It would be consistent with and would promote the achievement of the objects of the DDA to grant QR an exemption in terms and on conditions which provide certainty that current levels of provision of allocated spaces on tilt trains are lawful and will remain so during the exemption period, but which also require QR to monitor utilization of allocated spaces and pursue further improvements in accessibility over time.

Allocated spaces on the tilt trains

QR's application indicates that the Rockhampton Tilt Trains entered service in 1998 and the Cairns Tilt Trains entered service in 2002 - thus in both cases after the DDA entered into force, but before the DSAPT entered into force.

The Rockhampton Tilt Trains have six carriages, with 3 allocated spaces provided in one car. (Further details of the configuration and operation of the trains is provided in QR's application, which is available on HREOC's web site.) The DSAPT contemplate two allocated spaces per carriage (with consolidation of up to eight spaces in one car being permitted). Full compliance for these trains would thus require 12 allocated spaces.

The Cairns Tilt Trains have five cars with a total of six allocated spaces on each train. Full compliance with the DSAPT would require provision of ten spaces.

QR have provided supporting evidence for their argument that additional allocated spaces are not necessary on these trains. Patronage figures indicate that for the period July 2006 – June 2007, all allocated spaces on a service were full on only 10 occasions out of the 1462 services run, or 0.7% of services. Total patronage involving use of an allocated space was 432 out of a total capacity of 5025 allocated spaces, or 8.6% utilisation of the available capacity.

Is an exemption necessary?

HREOC is of the view that an exemption should not be granted where there is not at least an arguable case that the conduct sought to be exempted would, in the absence of an exemption, be unlawful.

Clause 9.6 of the DSAPT is as follows:

9.6           Number of allocated spaces to be provided — train cars, etc

         (1)   At least 2 allocated spaces must be provided for each rail, tram or light rail car.

         (2)   Up to 8 allocated spaces may be consolidated in one car of a set.

         (3)   If different classes of travel are offered, allocated spaces must be provided in each class.

For trains in service prior to the commencement of the DSAPT, these requirements do not take effect immediately but according to the compliance timetable set out in Schedule 1.

Clause 1.3 of Schedule 1 requires compliance of 25% of services by 31 December 2007 in relation to allocated spaces.

Clause 2.3 will require compliance of 55% of services by 31 December 2012 for allocated spaces.

In this context HREOC interprets “service” to mean each run of a train from origin to destination – although a range of other meanings would also appear possible, including passenger boardings.

As already noted, the DSAPT contemplate two allocated spaces per carriage (subject to permitted consolidation of up to 8 spaces in one carriage of a set), with 25% of services being required to attain this level of provision by 31 December 2007 and 55% by 31 December 2012.

Full compliance for the Rockhampton Tilt Trains, having six carriages, would be 12 allocated spaces. Current provision of 3 spaces amounts to 25% of this figure. On one approach, therefore, QR is presently compliant with applicable requirements of the DSAPT.

However, if the DSAPT are interpreted to mean (1) a six car train set must have 12 allocated spaces to be considered an accessible service in relation to the allocated space requirement, and (2) 25% of services must be accessible by 31 December 2007, it follows that at present 0% of Rockhampton Tilt Train services are accessible in relation to this requirement. On this approach QR currently faces liability for non-compliance with the DSAPT, subject to possible establishment of a defence of unjustifiable hardship.

HREOC does not consider this second approach a preferable construction of the DSAPT.

Where an operator has carriages fitted with allocated spaces totalling 25% of those required to reach the final required number of allocated spaces, it appears clear (including by reference to QR's patronage figures) that a greater level of access in practice will be achieved by the operator being permitted to have those spaces spread evenly amongst the trains concerned (so that each has 25% of the final required number).

If operators were required instead to concentrate all the carriages with allocated spaces together in a smaller number of trains, this would mean that on 25% of runs passengers would find 100% of the final required number of allocated spaces, but on 75% of runs, they would find none available.

Beneficial legislation such as the DDA and DSAPT is required to be interpreted beneficially where possible, and this rule would provide some support for adopting what HREOC sees as the preferable construction of the DSAPT.

However, the less preferable construction – that 100% of Rockhampton Tilt Train services running with 25% of final required allocated space numbers equals 0% compliance rather than 25% - nonetheless appears at the least arguable, having regard to the text of the DSAPT provisions concerned.

Similar arguments apply in relation to Cairns Tilt Train services.

100% of these services currently provide 60% of the numbers of allocated spaces required for final compliance with the DSAPT. In HREOC's view a preferable construction of the DSAPT would have these services regarded as having achieved 60% compliance, which exceeds both the 25% compliance requirement which came into effect on 31 December 2007, and the 55% requirement which will come into effect on 31 December 2012.

However, it is also arguable (though in HREOC's view incorrect) that 0% of Cairns Tilt Train services comply with the requirements of DSAPT clause 9.6 and that QR is exposed to current liability accordingly.

The uncertain application of apparently simple numerical compliance targets in the DSAPT may be addressed in the review of the DSAPT currently being conducted, whether through clarification of relevant terms of the DSAPT or by other means for determining more clearly when required compliance has been achieved. For the purposes of this application, however, HREOC has to deal with the terms of the DSAPT as they are and regards there as being a sufficiently arguable case of unlawful conduct in relation to allocated spaces on Rockhampton Tilt Train and Cairns Tilt Train services to continue considering the merits of the application.

One further point requires consideration.

The argument presented above considers the Rockhampton Tilt Train and Cairns Tilt Train services in isolation.

However, QR also operate a range of other booked and unbooked train services. QR's most recent report provided to HREOC on compliance with the DSAPT indicated that as at July 2007 QR had achieved 54% compliance with the requirements for allocated spaces. These figures clearly exceed the required level for December 31 2007 and also indicate that QR has already almost reached the required level for December 31 2012 . They appear to indicate that QR may have no need for an exemption now, and may be unlikely to need an exemption even as at 31 December 2012, to be protected from liability which might otherwise arise from more limited achievement of allocated spaces on a particular service such as Rockhampton Tilt Train services.

An important effect of the DSAPT is that operators who conform to the proportionate compliance targets (and with the requirements for new conveyances, premises and infrastructure) are free to determine for themselves the priority to be given to different locations, routes or services among those which they operate. Nothing in HREOC's decision to grant an exemption in relation to compliance levels for specific services should be interpreted as implying the contrary.

However:

• QR itself has not raised or relied on its overall compliance figures in support of the present application;
• Accordingly, the lack of public submissions in relation to the present application contesting QR's overall compliance figures for allocated spaces cannot in HREOC's view be regarded as verifying these figures sufficiently so as to demonstate that an exemption would be unnecessary in this matter.