melbourne trams exemption reasons
DDA exemption application by Public
Transport Corporation (Victoria) and Others for Melbourne trams: Reasons
and activity for which exemption is sought
provisions from which exemption is sought
in the DDA
and the draft Standards for Accessible Public Transport
Melbourne tram fleet
on the application
should be done to make Melbourne trams accessible?
question of heritage values
on material questions of fact
to section 55 of the Disability Discrimination Act 1992 (the DDA)
the Commission has granted a conditional exemption from the provisions
of section 23 and section 24 of the DDA in respect of the manner in which
the applicants provide tram and light rail services in Melbourne (see
Notice of the Commission's exemption decision re: Public Transport Corporation (Victoria)
and Others, adopted by the Commission 15 March 1999).
exemption extends only to matters
from provision of services using vehicles forming part of the applicants'
fleet at the date of this decision and
to physical access to those vehicles.
exemption is subject to the following conditions.
exemption commences on 16 March 1999 and expires on 15 March 2004.
applicants are to implement the DDA action plan 21st Century Accessibility
(the action plan) lodged with the Commission on 4 November 1999, as
varied by the amendment to that action plan lodged by the applicants
on 9 March 1999.
prejudice to the importance of the action plan as a whole the applicants
are to implement the following undertakings given in the action plan:
that an adequate interface between low floor trams and infrastructure
can be achieved, new trams will be introduced in Melbourne commencing
in 2002 with 106 vehicles being replaced by the end of 2004 by 90
larger capacity low-floor vehicles
from the issues of physical access dealt with by the exemption, the
applicants will bring existing trams progressively into compliance
with the draft DDA Standards for Accessible Public Transport by continuing
the program of on-vehicle measures including improvements to such
features as stop buttons, pull cords, grab rails, handrails, lighting
along tram aisles and destination signs
53 W-Class trams which are proposed to be retained for heritage purposes
will operate according to the scheme described in section 5.4.6 of
the action plan only on routes where as far as reasonably possible
an accessible alternative is available or will become available.
a routinely timetabled service operated by W-Class trams is provided
to the public free of charge on a particular route then the accessible
alternative must be provided free of charge to those people with disabilities
who are unable to access W-Class trams and at least as frequently as
the service provided by the W-Class trams.
applicants are to require as far as possible that any person who operates
privatised services will also implement the action plan or an action
plan lodged by that person that is at least as beneficial to people
with disabilities as the action plan.
applicants are to publish annually a report on progress towards implementing
the action plan and are to include in that report any steps taken by
operators of privatised services that improve accessibility. This condition
applies not only to tram and light rail services but to all matters
covered by the action plan.
the applicants conclude that an adequate interface between low floor
trams and infrastructure cannot be achieved and the introduction of
low floor trams cannot commence in 2002 then the Commission will consider
alternative appropriate exemption conditions that will facilitate implementation
of the action plan.
effect of the decision will be that if the applicants commence in 2002
to replace their existing fleet with accessible trams they will not be
acting unlawfully in continuing to provide services with trams that are
now part of their fleet even though those may be inaccessible to some
people with disabilities.
decision applies to services operated by the applicants and to privatised
services as defined in these findings and reasons.
Applicants and activity for which exemption is sought
The applicants are
Public Transport Corporation (PTC) established under the Transport
Act 1993 (Vic)
Tram 1 and Met Tram 2 established under the Rail Corporations (Amendment)
Act 1997 (Vic), now known as Yarra Trams and Swanston Trams
Department of Infrastructure (DoI), which administers the operation
of public transport in Victoria under the provisions of the Transport
Act and other legislation and
Minister for Transport for the State of Victoria.
activity sought to be exempt is restricted to physical access to trams
and the safety zones at which they pick up and set down passengers. The
applicants are not seeking exemption for any other aspect of tram operation
or for other public transport.
applicants request that the exemption apply to the PTC and any successor,
transmittee, assignee, franchisee or subcontractor (whether immediate
or not) of the whole or part of the business conducted by the PTC. The
applicants also request that the exemption apply to Met Tram 1 and Met
Tram 2 and any successor, transmittee, assignee, franchisee or subcontractor
(whether immediate or not) of the whole or part of the businesses conducted
by Met Tram 1 or Met Tram 2. These successors, transmittees, assignees,
franchisees or subcontractors are or will be the operators of privatised
part of Melbourne public transport services is provided by trams. Bus
and railway systems are also major parts of Melbourne public transport.
The whole system is the subject of the DDA action plan 21st Century
Accessibility published in October 1998 by the Victorian authorities.
The plan describes how all Victorian public transport will progressively
be made accessible for people with disabilities.
Statutory provisions from which exemption is sought
3.1 Provisions in
applicants are seeking exemption from sections 23 and 24 of the DDA. Section
23 concerns access to premises that the public are entitled to enter or
use. Section 24 concerns goods, services and facilities. Taken together
these two sections cover public transport services, the vehicles that
provide those services and the infrastructure such as tram stops that
are part of those services.
23 of the DDA provides:
(1) It is unlawful for a person to discriminate against another person
on the ground of the other person's disability or a disability of any
of that other person's associates:
by refusing to allow the other person access to, or the use of, any
premises that the public or a section of the public is entitled or allowed
to enter or use (whether for payment or not); or
in the terms or conditions on which the first-mentioned person is prepared
to allow the other person access to, or the use of, any such premises;
in relation to the provision of means of access to such premises; or
by refusing to allow the other person the use of any facilities in such
premises that the public or a section of the public is entitled or allowed
to use (whether for payment or not); or
in the terms or conditions on which the first-mentioned person is prepared
to allow the other person the use of any such facilities; or
by requiring the other person to leave such premises or cease to use
This section does not render it unlawful to discriminate against a person
on the ground of the person's disability in relation to the provision
of access to premises if:
the premises are so designed or constructed as to be inaccessible to
a person with a disability; and
any alteration to the premises to provide such access would impose unjustifiable
hardship on the person who would have to provide that access.
24 of the DDA provides:
(1) It is unlawful for a person who, whether for payment or not, provides
goods or services, or makes facilities available, to discriminate against
another person on the ground of the other person's disability or a disability
of any of that other person's associates:
by refusing to provide the other person with those goods or services
or to make those facilities available to the other person; or
in the terms or conditions on which the first-mentioned person provides
the other person with those goods or services or makes those facilities
available to the other person; or
in the manner in which the first-mentioned person provides the other
person with those goods or services or makes those facilities available
to the other person.
section does not render it unlawful to discriminate against a person
on the ground of the person's disability if the provision of the goods
or services, or making facilities available, would impose unjustifiable
hardship on the person who provides the goods or services or makes
the facilities available.
DDA and the draft Standards for Accessible Public Transport
applicants state that the action plan as published conforms to the draft
DDA Standards for Accessible Public Transport, except for the time schedule
relevance of the draft Standards, not currently in force, to existing
obligations under the DDA and this application of exemption from those
obligations, is discussed further below. It is sufficient at this point
to note that the Commission regards the draft Standards as generally reflecting
existing rights and obligations under the DDA, while recognising that
the draft Standards are not themselves in force and may be subject to
further revision before possible authorisation, and that the Commission's
powers and responsibilities are defined by the DDA as presently in force.
the action plan as published, it would take longer to make trams accessible
than provided in the general time schedule in the draft Standards, assuming
that the Standards commence now or in the near future. The draft Standards
provide for a twenty year compliance period for full accessibility, with
interim compliance requirements at five, ten and fifteen year points,
subject to variation for unjustifiable hardship. Under the action plan
as revised, some interim targets in the time schedule provided by the
draft Standards would appear to be met although the time for full accessibility
would remain beyond that indicated in the draft Standards.
is important to note that the compliance requirements of the draft Standards
would be subject, as the existing provisions of sections 23 and 24 of
the DDA are subject, to an unjustifiable hardship defence. The compliance
schedule provided needs to be read taking this into account. It would
be open to the applicants under the existing provisions of the DDA, or
under the draft Standards if in force, to argue in response to complaints
that making some or all trams fully accessible by or prior to the dates
set out in the compliance schedule, or by any other date, or even at all,
would impose unjustifiable hardship. Whether such an argument succeeded
would depend on relevant evidence produced in response to a complaint.
the extent that the applicants accept and implement the conditions of
this exemption, they in effect forego the right which they would otherwise
have to seek to establish that they are not required to implement particular
aspects of accessibility of trams earlier than proposed by them or even
by later dates. Equally, granting the exemption relieves the applicants
from having to establish a defence of unjustifiable hardship in response
to complaints in relation to matters covered by the exemption. The applicants
however have presented arguments and evidence in the context of this exemption
application regarding unjustifiable hardship which in their view would
be imposed were full accessibility of Melbourne's tram and light rail
systems required within less than the time they propose.
Grounds of application
4.1 The Melbourne
are one of the defining features of the urban environment of Melbourne
and its immediate suburbs. They have been part of the lives of people
in Melbourne for much of the twentieth century. Victorian government policy
is that trams be retained.
applicants base their request for exemption on these points.
has a large fleet of trams, comprising 476 vehicles in daily service.
This is much larger than in any other Australian capital city. Adelaide
(21 vehicles) and Sydney (seven vehicles) are the only other capital
cities with tram or light rail services.
Melbourne tram fleet is quite modern. More than 400 of the vehicles
have been commissioned within the past 20 years. Nevertheless, the tram
system has a significant historical characteristic which sets it apart
from the public transport system in other cities. This is reinforced
by the heritage value associated with the 53 older-style W-class trams
which remain in service. These are more than 40 years old and are considered
a Melbourne icon with significant local support and tourist interest.
are designed to have long service lives. A recent consultancy study
conducted by the international firm Interfleet Technology Ltd indicated
that Melbourne's modern-style trams (Z, A and B-class) could achieve
service lives of at least 40 years. This means decisions about how to
achieve accessibility on the tram network are correspondingly more complex
than for many other public transport vehicles.
that has been established for decades often poses significant access problems
for people with disabilities and the current Melbourne trams are no exception.
The applicants for this exemption propose to make trams accessible but
say that they cannot do so within the general timeframe proposed by the
draft Standards. As noted above, this timeframe in the draft Standards
is subject to a defence of unjustifiable hardship, as are the existing
requirements of DDA sections 23 and 24.
indicated in the Advisory Note previously adopted by the Commission regarding
public transport, the draft Standards are a reasonably adequate statement
of what compliance with the DDA requires. The applicants consider themselves
exposed to a risk of liability under the DDA to the extent they do not
comply with those draft Standards.
application is restricted to questions of physical access to trams. The
applicants say that they
submit this Exemption Application in regard to the provision of tram
and light rail services in Melbourne. Specifically the activity for
which an exemption is sought is the provision of tram and light rail
services to the public of Melbourne with respect to the physical ingress
to (boarding) and egress from (alighting) vehicles used by the operator.
terms of the DDA and the Draft Standards, tram and light rail services
in Melbourne are inaccessible because the vehicles can only be boarded
via steps ( the relevant Draft Standards are 8.1 - 8.3 and 8.5 - 8.8
concerning boarding and 14.1 -14.3 concerning stairs). This Application
does not seek exemption from Standards not related to physical access
(refer section 2.2.6 of this Application).
should also be noted that the width and other layout features of the
mid-roadway tram waiting areas known as safety zones have been designed
with regard to the current vehicle boarding regime; it is not intended
to fundamentally redesign safety zones ahead of the fleet replacement
program, so, to that extent, the Application is also intended to cover
safety zones. (But it should be noted that the provisions of Draft Standards
relating to matters such as signage, information displays and colour
contrasting paintwork will be complied with at safety zones in accordance
with the expected timelines and are not included in the Application.)
Melbourne tram fleet comprises vehicles in six classes as set out in the
1: The tram fleet in 1999
size of the fleet, the fact that it comprises different types of vehicle
and its age profile are all significant factors in this application.
The nub of the problem is that trams have a long design life and often
an even longer working life. The current draft Disability Standards for
Accessible Public Transport (considered without reference to a defence
of unjustifiable hardship which might or might not be able to be established)
set a compliance schedule that is shorter than the design life, and much
shorter than the predicted operational life, of all but the oldest class
applicants refer to their support for the DDA and the draft Standards
and say that in all other respects they intend to comply. But on this
one issue of the timetable for tram replacement they seek some relief.
comparison of replacement according to the schedule in the draft Standards
and according to design life is contained in the following table. It should
be noted that replacing trams at the expiry of their "design life"
would in itself represent significantly earlier replacement than might
otherwise be undertaken, since in practice trams can serve and have in
fact served considerably beyond an original or notional design life.
2: Comparison of Draft Disability Standard and Design
Timeline and target replacement date
number of vehicles replaced
Number of years
to Draft Standards
to design life
After 5 years (25%)
After 10 years (55%)
After 15 years (90%)
After 20 years (100%)
After 25 years
that this table assumed authorisation of Disability Standards in the terms
of the current draft or in relevantly similar terms in early 1999. As
noted below, Victoria's revised proposal takes account of the fact that
in the event such Standards have not yet been authorised.
Victoria's initial plan
applicants' action plan as submitted on 4 November 1998 envisaged postponing
the commencement of DDA compliance for tram access until 2008. Then fleet
replacement would commence and proceed as the existing vehicles (apart
from the W-Class) reached their 30 year design lives. As noted above,
the replacement of vehicles at the expiry of design life would represent
a significant bringing forward of fleet replacement compared to replacement
at the end of actual operating life. On this basis the program would be
expected to conclude after twenty-seven years, in about 2026. But there
would have been a significant delay at the beginning.
Victoria's revised plan
applicants modified their original proposal by submitting a variation
to their action plan on 2 March 1999. This happened after submissions
had been received and after a public forum was conducted in Melbourne
by the Commission to discuss issues arising from the original application.
That variation is set out here in full.
did not cease consideration of tram replacement when it lodged its Exemption
Application. As part of the "indicative bid" phase of the
franchise process Victoria encouraged bidders to provide enhanced bids
involving the replacement.
has also further considered the submissions made to the Commission and the discussion
at the forum in Melbourne. It is clear that many of the parties involved
hold the start date for tram replacement as being the most critical
aspect of this issue as it is the first tangible evidence of implementation
of Victoria's commitments.
light of the above, Victoria has reconsidered its position in respect
to replacement and will require bids on the basis of the introduction
of new generation low floor trams to replace Z1/Z2 trams by the end
of 2004. The Government will, however, only proceed on this basis if
bidders can demonstrate that they will be able to adequately solve the
interface between the low floor trams and Melbourne's infrastructure.
table below summarises the impact this approach will have on the tram
replacement schedule outline in Victoria's Exemption Application. The
table demonstrates that:
will introduce low floor trams some six years earlier than proposed
in the Exemption Application (i.e. commence 2002 rather than 2008);
will replace 22% of existing vehicles by the end of 2004 (although vehicles
may be replaced at a rate slightly below one for one); and
end date for full replacement of trams does not change from that previously
3: Comparison of Draft Disability Standard and Target
Replacement Under Draft Standards
Replacement Under Action Plan
Cumulative Replacement Program
After 10 years
Notes 3 and 4
Notes 3 and 4
promulgation of Standards in June 1999.
promulgation of Standards in January 2000.
53 W-Class trams not replaced.
program projected to finish in 2026.
applicants also say:
principles behind Victoria's Exemption Application and Action Plan
have not been changed (other than bringing forward replacement even
earlier than foreshadowed) and the change in approach necessitates
longer first franchises (to accommodate the capital expenditure required
of bidders). The need for an exemption is therefore not removed because:
replacement is brought forward, the timelines required under the
draft standards would still not be met (although if the 53 W-Class
trams are excluded from the calculation the first timeline under
the draft standards would be met); and
the early years of the replacement program most of the replacement
will [have] occurred in the Swanston franchise which has the bulk
of the older trams in the system so that even though the network
as a whole broadly complies with the draft standards one of the
businesses will not.
Issues for consideration
on the application
Commission's policy is to consult in public about exemption applications
so that it has the benefit of as many views as possible before it makes
a decision. To that end the application for exemption was published
on the Internet together with an information sheet on how submissions
should be made. The Commission also notified a range of disability
community and other relevant organisations directly. A notice inviting
submissions was published in the press and information sheets and copies
of the application were sent to people who made inquiries.
that were received in suitable format were published on the Internet
so that any interested party could see what was being said. Eighteen
written submissions were received. The Commission thanks all those
who took time to make submissions on the application.
Acting Disability Discrimination Commissioner on behalf of the Commission
conducted a public forum in Melbourne on 8 February 1999 at which oral
submissions were made. The forum was attended by approximately 40 people
with disabilities and representatives from community organisations with
wide memberships. Representatives of the applicants also attended to
answer questions and provide information. There was a vigorous and
helpful discussion of issues about accessibility of Melbourne trams.
The Commission again thanks all those who participated.
written and oral submissions all emphasised the important role that
trams play in the Melbourne public transport system. They strongly
asserted the rights of people with disabilities to have access to that
system and were particularly critical of the lack of action over many
years to make trams accessible. A number of people referred to the
acquisition of inaccessible trams in the 1980s and early 1990s even
though obligations concerning accessibility were part of the Victorian
Equal Opportunity Act from 1981 and part of the DDA since 1992
submissions opposed granting the exemption. The views expressed were
diverse but most had five concerns in common.
governments had given undertakings about making trams accessible but
nothing had happened.
present government had done little so far to make trams accessible
and its promises to take action should not be believed.
proposed exemption was contrary to the draft Disability Standards
for Accessible Public Transport.
granted, an exemption would prevent people with disabilities from
lodging complaints about disability discrimination in public transport.
Commission should not grant the exemption but should require the applicants
to do things to make trams accessible.
Commission has decided nonetheless to grant the exemption on certain
conditions. Its responses to the contentions made in submissions follow.
Previous governments have given undertakings about making trams
accessible but nothing had happened.
governments may have failed to meet commitments on accessibility of
trams. Certainly many people with disabilities cannot use Melbourne
trams because the trams are not accessible. It is also true that inaccessible
trams were acquired after 1981 even though the law of Victoria may well
have required that they be accessible, and a smaller number were acquired
after the DDA entered into force in 1992.
Commission considers it irrelevant to consideration of the current exemption
application that previous governments may have given commitments and
then failed or been unable to deliver accessible trams. The Commission
would be mistaken in law if it were to give decisive weight to statements
and actions that are matters of history and that were not attributable
to the present applicants. Even if it were relevant it is not necessarily
true that actions of present governments will be the same as those of
past governments, only that they may be. The issue for present purposes
is whether the commitments made by the present government are sufficiently
credible to justify granting an exemption. The Commission has found
that these commitments are sufficiently credible.
this respect the Commission emphasises again that the exemption is conditional
on those commitments being met.
interested parties need not wait until 2002 to make any arguments that
action is not occurring as promised in the intervening three years.
The Commission is not taking (and compelling other parties to take)
the applicants purely on trust for that period.
exemption is subject to a condition that the applicants report annually
and publicly on progress in implementing their action plan, including
in relation to privatisation of services. The Commission also has power
(implicit in the power to grant an exemption) to vary or revoke the
exemption if sufficient grounds appear at any point for doing so. Interested
parties would be free to bring to the Commission any evidence which
might arise that commitments due to be delivered in or beyond 2002 would
not be met. For example, information to the Commission indicated a lead
time of approximately eighteen months for entry into service of new
trams even if the applicants were required to commence fleet replacement
immediately. Interested parties might wish to approach the Commission
either for variation of the exemption or with complaints if appropriate
specifications or orders are not in place early enough in advance of
2002 to permit deliveries to commence on time.
actions of the Victorian authorities in acquiring inaccessible trams
after 1981 or after March 1993 were unlawful under Victorian law or
the DDA, or whether it was or is unlawful not to have refitted trams
already acquired for accessibility, does not require determination in
the present proceeding. If it did, investigation of available technology
and costs of applying that technology at relevant times would be required.
any case, past unlawful action cannot be regarded in itself as an absolute
barrier to a current application for exemption. In its nature, an application
for exemption under the DDA involves acknowledgment of at least a substantial
risk that past or current actions or states of affairs would be found
to involve unlawful discrimination. The conditions on which the Commission
has decided to grant this exemption and the commitments made by the
Victorian authorities are intended to achieve change from the (possibly
unlawful) discriminatory present to a non-discriminatory future.
The present government has done little so far to make trams accessible
and their promises to take action should not be believed.
applicants have lodged with the Commission under DDA section 67 a disability
discrimination action plan 21st Century Accessibility. The plan
sets out in detail the steps being taken to make all public transport
in Victoria accessible. In the foreword the Minister for Transport,
the Hon. Robin Cooper, says
is increasingly obvious that the make-up of public transport users
is changing. Victoria's tram, train and bus services are not just
being used by daily commuters, schoolchildren and tourists. Our transport
services are now being used by those who no longer have a car, the
active elderly, parents with young children and prams, people with
shopping, travellers with luggage or backpacks. Coupled with the
ageing of the population, the demand for accessible public transport
will only increase.
Victorian Government is not only committed to the provision of a transport
service that is clean, safe and reliable. The provision of accessible
services that make it easier for people with special needs to use
is vital for the future.
the past few years, the Government has demonstrated its commitment
to accessible transport through participation at the Australian Transport
Council and its support for the acceptance of the Draft Standards.
The Victorian Accessible Transport Consultative Council has also continued
to advise me and the Public Transport Corporation about accessibility
action plan introduced by the Minister contains a description of past
and current actions and commitments for the future. Significant action
has already occurred.
are 80 low-floor buses in the fleets of suburban bus operators with
more to be introduced.
are 17 coaches equipped with wheelchair hoists on V/Line Passenger
to the purchase of 25 modern Sprinter trains and retro-fitting of
eight older carriages many V/Line Passenger rail services are operated
by vehicles with appropriate accessibility features including accessible
access audits have been carried out on the metropolitan train and
V/Line Passenger systems and sample routes on the bus and tram networks
have also been audited.
transport information is available in accessible formats including
Braille, via TTY (telephone typewriter) and on the Internet.
contact staff in each of the transport modes now undergo customer
service training programs which include disability awareness modules.
Melbourne tram system at present is an example of how infrastructure
creates barriers to people with disabilities. The applicants have a
detailed plan about how to change that. There is evidence of commitment
to accessible public transport in the form of a detailed action plan
and open acknowledgment of legal obligations under the DDA. The Victorian
Government has actively supported the development and introduction of
standards for accessible public transport. It has already made significant
progress towards fully accessible train and bus networks. If it fails
in its commitment in relation to trams people with disabilities can
lodge complaints under the DDA or the Victorian Equal Opportunity
The proposed exemption is contrary to the draft Disability Standards
for Accessible Public Transport.
draft DDA Standards for Accessible Public Transport were developed after
an extensive period of consultation with the community, industry and
governments. The draft remains under consideration and the draft Standards
are not yet law. Standards are made by the Minister (the federal Attorney-General)
not by the Commission. The Commission supports the Standards and urges
their speedy adoption.
Commission has published Advisory Notes to set out its attitude to the
draft Standards while they have not been authorised so as to become
law. The Commission said:
will consider the draft Standards, and measures taken or proposed
to be taken to comply with them, in relation to applications by a
public transport operator or provider for temporary exemption under
the DDA. This includes consideration of the implementation schedule
contained in the draft Standards, although ... the Commission would not automatically
endorse that schedule in all respects.
of the submissions received on this application suggest that the draft
Standards are not a proper basis for the Commission's consideration.
In considering the present exemption application the Commission has
used the draft Standards as the basis for what is an acceptable level
of compliance with the DDA.
noted earlier in these reasons, the draft Standards provide a timetable
for progressive movement towards full accessibility. But they also provide
that this timetable is subject to considerations of unjustifiable hardship
and can be varied in its application for that reason.
submissions pointed to the inclusion of an unjustifiable hardship provision
in the draft Standards as a significant concession by the disability
community. However, none of the submissions appeared to take sufficient
account of the effect of this provision on the obligations which the
applicants might have under the draft Standards when authorised or the
effect of the provision of the DDA for unjustifiable hardship on existing
obligations. The Commission was urged to accept the timetable for fleet
replacement as immutable but in view of the flexibility which is provided
by the draft Standards and the existing provisions of the DDA it is
unable to do so.
23 and 24 of the DDA quoted above provide that unjustifiable hardship
is a defence to a complaint of disability discrimination. Section 11
of the DDA gives a list of matters to be taken into account when a claim
of unjustifiable hardship is being considered. The draft Standards
at clause 33.11 contain a detailed provision concerning unjustifiable
hardship and the last part of that clause allows extended implementation
timetables if unjustifiable hardship can be shown. Clause 33.11 provides:
In determining whether compliance with a requirement of these Standards
would involve unjustifiable hardship, all relevant circumstances of
the particular case are to be taken into account including:
a - m are a detailed but not exhaustive list of benefits and detriments
for people with disabilities and others and the technical, operational
and financial matters relevant to unjustifiable hardship. For the
sake of brevity they are omitted here but this is in no way to minimise
where a person or organisation concerned has given an Action Plan
to the Commission under section 64 of the DDA, the terms of that Action
Plan and any evidence regarding its implementation;
the nature and results of any processes of consultation, including
at local, regional, State, national, international, industry or other
level, involving or on behalf of an operator concerned, any infrastructure
providers as relevant, and people with a disability, regarding means
of achieving compliance with relevant requirements of these Standards
and including in relation to the factors listed in this section;
where a person or organisation seeks a longer period to complete compliance
with these Standards or a requirement of these Standards than is permitted
by the preceding sections on Adoption and Compliance, whether the
additional time sought is reasonable, including by reference to the
factors set out in paragraphs (a) to (o) above, and what undertakings
the person or organisation concerned has made or is prepared to make
in this respect.
general timetable for accessibility in the draft Standards requires
progressive implementation over a period of twenty years commencing
when the Standards become law. As the Standards have not yet become
law, the twenty years has not commenced (so far as the Standards are
concerned as distinct from the existing effect of the DDA). The applicants
have chosen to develop their action plan as if the Standards had commenced
although they need not have done so. They could have relied on the
general provisions of the DDA and sought to defend any complaints on
the basis of unjustifiable hardship. Their action plan is thorough
and contains targets to be achieved and a process for review. It provides
evidence of commitment. It also lets everyone know what to expect whether
as a consumer, a service provider or the Commission. The applicants
must be aware that if expectations are disappointed then that will reflect
upon them and expose them to complaints under the DDA. The Commission
commends them for taking this open and public approach.
Commission concludes that the applicants have in their application and
action plan addressed sufficiently the issues which are raised in clause
33.11 of the draft Standards and which arise for consideration under
the existing unjustifiable hardship provision of the DDA. It follows
that the Commission does not accept the proposition that granting the
exemption would be contrary to the draft Standards or to the objects
of the DDA.
If granted, an exemption will prevent people with disabilities from
lodging complaints about disability discrimination in public transport.
the Commission's exemption decision in Re: Minister for Transport
for South Australia and others, on an application similar to the
present one, the then Disability Discrimination Commissioner, Elizabeth
conditional exemption granted by the Commission pursuant to section
55 of the DDA is no bar to the lodgement of complaints. It is, however,
an absolute defence provided that the conditions of the exemption
are observed. If an exemption is granted to the present applicants,
the bare minimum condition placed upon the grant would be that the
Action Plan submitted in support of the application is implemented
and, if need be, improved. Whether this condition is being met at
any particular time would be a matter of fact to be determined. If
the Action Plan is not implemented, then an essential condition of
the exemption is breached and the present applicants would have to
defend a complaint on the usual ground of unjustifiable hardship.
I expect that this would be an undesirable outcome from their point
of view. It is, however, a matter for them to decide.
exemption granted to Victorian authorities means that until it expires
some things that might be disability discrimination under the DDA are
not unlawful. However, complaints can still be lodged. If the conditions
of the exemption are being met by the tram operators then the complaints
would be dismissed. If the exemption conditions are not being met or
the complaint is about aspects of public transport outside the scope
of the exemption then the complaint would be dealt with on its merits.
The Commission should not grant the exemption but should require
the applicants to do things to make trams accessible.
number of submissions asked the Commission to reject the application
and make the applicants acquire low-floor trams immediately or fit existing
trams with hoists or both.
from dealing with a complaint, the only formal way the Commission can
affect accessibility of Melbourne trams is to grant an exemption and
set conditions that the applicants will observe. Refusing the current
application or granting it on conditions are options available to the
Commission but it does not have power to put conditions on a refusal.
is not to dismiss the suggestion in submissions that fitting vehicles
with assistive devices is an alternative that will provide access while
long-term fleet replacement is underway. That issue is examined next.
What should be done to make Melbourne trams accessible?
were divided on the question of what should be done to make trams accessible.
Some people thought that acquiring new low-floor vehicles was the only
solution. Some thought that hoists should be fitted to existing vehicles
because fleet replacement is a process that will take years to complete.
A further option to insert a low-floor mid-section in existing articulated
vehicles was brought to the Commission's attention and the applicants
were asked to consider it.
fleet replacement option that will be implemented progressively between
2002 and 2026 has the obvious disadvantage that in its initial stages
and for some years thereafter the tram fleet will be only partly accessible.
the other hand fitting every existing vehicle with hoists (retrofitting)
would be cheaper than acquiring new vehicles and could be accomplished
much more quickly, although it should be noted that retrofitting must
itself be a process that cannot be accomplished overnight. Obviously
vehicles must be taken out of service not just for the attachment of
hoists and associated equipment but for internal modifications that
would provide spaces for wheelchairs and access through the vehicles
to those spaces. Given the size of the Melbourne tram fleet it is reasonable
to assume that a retrofitting program would itself take a number of
years to complete.
The low floor midsection option
the Commission's request the applicants also considered an accessibility
solution used in some countries where articulated trams are in operation.
This involves placing a low-floor mid-section between the two existing
halves of the articulated vehicle. Although maximum accessibility is
possible in only part of the vehicle it could be a useful interim measure
where articulated vehicles are relatively new and not due for replacement
for many years. There are 132 articulated trams (the B-Class) in the
Melbourne fleet at present.
applicants examined this option and advised that they did not favour
it. The cost per vehicle would be about $700,000 compared to costs of
about $2 million per vehicle for total replacement. Further, the necessary
infrastructure at tram stops is likely to be incompatible with new infrastructure
required for purpose built low floor vehicles to be acquired under the
revised proposal. Without needing to adopt precise cost figures, the
Commission accepts that these factors mean that it would be unreasonable
to require fitting of low floor mid sections to the B class articulated
trams as a condition of this exemption. The relevant debate to consider
accordingly is that regarding fitting of hoists to existing vehicles.
The hoist retrofitting option
considering whether retrofitting is a viable option for the purposes
of this exemption application the Commission must form its own opinion.
Opposing views offered in submissions are of some weight but they are
not decisive for either side of the issue.
presented to the Commission indicates that the technology of hoists
has developed rapidly in recent years and that their safety and reliability
of operation is now sufficient for them to be used widely in passenger
transport. The applicants have installed hoists on some V/Line Passenger
coaches. The point at issue is whether an improvement in accessibility
for wheelchair users and others with severe mobility impairments within
a relatively short period is so preferable to bringing forward fleet
replacement that the Commission should seek to require the former course
this context, the Commision must consider the future cost of fleet replacement
when the retrofitted vehicles reach the end of their working lives.
In some cases these working lives would be relatively short, raising
questions of the cost effectiveness of retrofitting. In other cases
investment in retrofitting might lead to extension of working lives
sought from existing vehicles and thus the postponement of their replacement
with vehicles which could offer superior accessibility.
cost of retrofitting would be additional to the cost of fleet replacement.
Although modest when compared with the overall expenditure necessary
for fleet replacement the additional funding would still need to be
might be necessary to find that additional funding by delaying the fleet
replacement program Although retrofitting is presented as a temporary
measure it could present an attractive reason for future tram operators
to extend the lives of existing vehicles that even with hoists would
offer diminished accessibility to many community members. Retrofitting
is an option that can readily be taken up again if circumstances warrant.
However, a substantial number of existing low-floor trams that are appreciated
for their ease of use by the whole community appears the best guarantee
of continuation of the fleet replacement program, thereby achieving
maximum accessibility in the shortest possible period.
is also the question about which method of providing accessibility gives
the best outcomes for the most people. This is a legitimate question
for the Commission to consider having regard to the object of the DDA
to "eliminate discrimination as far as possible" and the duty
of the Commission under section 10 of the Human Rights and Equal Opportunity
Commission Act to ensure that its functions (including functions under
the Disability Discrimination Act) are conducted "with regard to
the principle that every person is free and equal in dignity and rights"
and "efficiently and with the greatest possible benefit to the
people of Australia".
is evidence that being lifted on a hoist poses problems for people who
are not seated in a stable wheelchair. Blind people, the frail elderly
and people who can walk but have impaired mobility are among those who
may experience some difficulty.
the other hand retrofitting would permit wheelchair users in particular
to have access to trams sooner than would otherwise be the case. It
is an open question how many other people with disabilities would be
advantaged. Some people have expressed concern about the obvious "setting
apart" use of an overt assistive device imposes. Others say that
the independence and participation that freedom of movement brings are
essentials of human dignity outweighing the momentary stigma of using
a hoist and perhaps inconveniencing others by a small delay.
The applicants' views
applicants are opposed to fitting existing trams with hoists. They
commissioned consultants Rust-PPK to prepare a detailed technical study
of tram accessibility and have given a copy of the report to the Commission.
The Commission has not found it necessary to form any views about the
technical matters canvassed in the report other than to note that they
indicate the complexity of adapting infrastructure in an already crowded
urban environment. The purpose of the report was the narrow one of
examining how the existing trams could be made accessible on two specific
routes. It does not compare the costs and benefits of doing this with
those arising from new low-floor trams. The report states only that
"[in] keeping with world-wide trends, it is expected that future
trams for Melbourne would be of the low floor design".
applicants address retrofitting in their action plan and say that the
Accessible Transport Advisory Council (ATCC), the body that advises
the Minister for Transport on accessibility issues, supports their view.
The ATCC includes representatives of people with disabilities but it
did not make a submission on the exemption application. Its chairperson
attended the public forum in Melbourne and made oral submissions supporting
the action plan. A number of ATCC members also attended the forum as
private individuals and expressed a range of views including anxiety
that any delay in the introduction of accessible trams would be completely
at odds with the objectives of the DDA.
exemption application says:
major device to be fitted in a retro-fit program would be a wheelchair
lift or hoist, with consequent changes to the tram body and doors and
to the interior of the vehicle. (Changes at safety zones and other stops
would also be required.) It has been estimated by the consultants Rust
PPK that the cost of a retro-fit program would be up to $160,000 per
tram or approximately $68 million for the total fleet of 423 vehicles.
A retro-fit program could be spread over 20 years as a means of meeting
the progressive compliance timelines and the trams, once retro-fitted,
would not need to be replaced until at least after a 40 or 50-year service
life. As a means of meeting the compliance targets and yet avoiding
(or at least substantially deferring) the much higher costs of full
fleet replacement, retro-fitting can be seen as an attractive commercial
on many other grounds, it is not seen as desirable; it is widely acknowledged
that retro-fitting of wheelchair hoists is a poor solution from a customer
perspective. Among the reasons for this are:
do not offer benefits for passengers other than those in wheelchairs
(it is estimated that only around 1 per cent of people classified
as having a disability would benefit from a wheelchair hoist)
is likely that many people in wheelchairs would still be concerned
about the extent of the benefit they would derive from a wheelchair
hoist retro-fitted to a tram.
boardings via a wheelchair lift would involve substantial disruption
consultation with disability reference groups in Melbourne was conducted
on this issue during 1996 and at that time the Accessible Transport
Consultative Council confirmed, in a letter to the Minister, that
retro-fitting is not considered to be the most beneficial option.
opinion was given in the context of it being apparent from international
evidence that a range of low-floor designs for new vehicles are available
and would offer more accessibility benefits. As a consequence, the
retro-fitting option is not the Applicants' preferred outcome.
Submissions on retrofitting
Rust-PPK conclusions were strongly contested in written and oral submissions.
Mr Frank Hall-Bentinck, an experienced advocate for and respected member
of the disability community, made a submission that was in large measure
followed by a number of others who made submissions. Mr Hall-Bentinck
The Applicants state "hoists do not offer benefits for passengers
other than those in wheelchairs (it is estimated that only around
1 per cent of people classified as having a disability would benefit
from a wheelchair hoist)." This statement seems to be based on
very little research as people with ambulatory disabilities, elderly
citizens and parents with prams would be able to use trams if they
have hoists with handrails. The Federal Attorney-General's Regulation
Impact Statement on the Draft Disability Standards for Accessible
Public Transport (page 17) quotes ABS(1993) demographic statistics
that 10.3 percent of the Australian population experience handicaps
which affect their mobility. Easy access to trams would allow this
Group of people to continue to travel around their local communities,
to the shops and community centres. In Table 3.1 (Clare and Tulpule
1994 p36) of this RIS (page 20) that in year 2041, 13.5 percent of
the Australian population will experience handicaps which affect their
mobility. How long will we be denied easy access to the tram network?
The Applicants statement "it is likely that many people in wheelchairs
would still be concerned about the extent of the benefit they would
derive from a wheelchair hoist retro-fitted to a tram" again
seems to based on very little research, how many people in wheelchair
have said they did not want retro-fitting of trams? Which Groups were
consulted? What did they say?
The Applicants statement "tram boardings via a wheelchair lift
would involve substantial disruption to timetables." is again
based on very little research. At present tram time tables are affected
by road conditions, heavy traffic, the numbers of people boarding
and/or alighting, accidents etc. Trams will be no different to buses,
for which the Applicants have not claimed any exemptions.
Uniting Church in Australia Synod of Victoria argued against retrofitting
and for an adjustment of the fleet replacement schedule:
the Exemption Application it is argued that "uncertainty"
will be created in the minds of potential bidders for the tramway
system if the 5 year extension is not granted. Should this be the
case, the Uniting Church wonders if consideration could be given to
altering the 5 year increments of 25%, 55%, 90% and 100% replacement
schedule according to the Draft Standards. In order to progressively
replace the trams purchased from 1975 onwards, commencing in the 1999
- 2004 period, a lower than 25% figure in the first 5 year period,
with subsequent "catch-ups" during the 20 year period, may
alleviate any such financial pressures. However, the Uniting Church
believes that any determination of the relativities of "uncertainty"
need to be weighted towards the needs of people with disabilities,
rather than potential bidders within the privatisation process. The
life opportunities of people with disabilities must not be compromised
any further by an inaccessible tramway service, and that people with
disabilities receive a clear and positive message that their needs
are not negotiable because of a shift in emphasis from public to private
Legal Service said that:
the timetable for replacement of existing trams extends the period
for compliance by 10 years, the $1 billion is paid out in irregular
periods. For instance between 2004 and 2009 $124 million has to be
found, between 2009 and 2014 $388 million has to be found, yet between
2014 and 2019 only 70 million is required. Would it not be simpler
to stagger the introduction of the new trams in a way that would alleviate
the burden of some years and spread it evenly? This would also stagger
the burden when these new trams come to the end of their 'lives'.
submissions suggested a mixed regime of retrofitting and new vehicles.
For example, Mr John Annison of the Institute of Disability Studies
at Deakin University provided a scheme on the basis of the applicants'
original plan to commence fleet replacement in 2008. Mr Annison said
that plan should be rejected in favour of the following.
In regard to the replacement of the existing tram fleet (excluding
the Heritage W Class) with accessible trams:
Require all new trams and all trams substantially repaired following
any accident of mishap (e.g., a fire on board) be fully accessible
to people with any type of mobility difficulty;
Require that 106 of the current 132, B Class trams be modified to
provide platform lift access or similar, suitable for use by all people
with mobility difficulties within the next 5 years;
Require that the remaining 26 of the B Class trams be modified to
provide platform lift access or similar within ten years
Require the replacement of 101 of the existing 106, Z1 and Z2 Class
trams by fully accessible trams within ten years.
Require the replacement of the remaining 5, Z1 and Z2 Class trams,
and the replacement of the 115, Z3 Class trams together with 28 of
the 70, A Class trams by fully accessible trams within 15 years.
Require the replacement of the remaining 42, A Class trams by fully
accessible trams within twenty years.
Require the replacement of the 132, modified B Class trams within
Commission would have considerable interest in a proposal such as this
in the context of the applicants' original plan. But the applicants
have responded to the views expressed in submissions and at the forum
by submitting a revised plan that makes the case for retrofitting much
The Commission's view
applicants' revised proposal is set out in the following table.
4: Revised tram replacment schedule assuming commencement
in 1999 with first vehicles delivered in 2002
Vehicles acquired (actual)
Vehicles acquired (cumulative)
Percentage of fleet replaced
table gives accessibility figures at years representing each of the
five year compliance points in the general timetable in the draft Standards
(taking 1999 as a notional commencement date) and at the point two years
beyond required to complete the replacement program.
rate of progress during the proposal compared to the rate in the general
timetable required under the draft Standards is shown in the next table.
The durations of the proposal and the draft Standards general timetable
are different and, because benchmarks in the draft Standards are set
in terms of 5 year periods, the comparison must be approximate.
5: Comparison of fleet replacement progress
table is included to illustrate that under the applicants' timetable,
setting aside an initial delay while ordering and delivery commences
first target in the draft standards is met
second target is in fact exceeded
modest progress is made towards the third target
fourth target is equalled.
applicants' proposal puts fleet replacement after 15 years at 66 percent.
This is substantial progress and of equal importance it represents a
"critical mass" which should make it possible to operate the
great majority of tram services in an accessible way with new low floor
trams. The measures being taken to achieve accessible buses and trains
in accordance with the draft Standards will at that stage have achieved
replacement of 90 percent of respective fleets. A high proportion of
all vehicles used in the Melbourne public transport system therefore
will be accessible to people with disabilities after 15 years.
are two periods in the tram replacement program where progress is slow.
These fall between 2004 and 2009 and between 2015 and 2019. The Commission
is satisfied that tolerating these periods represents a reasonable offset
against the cost of commencing to replace in 2002 vehicles whose 30
year design life is not reached until 2008 or in some cases much later,
and where potential operational life might extend many years beyond
that. On that basis the Commission finds the proposal acceptable, considering
the terms and objects of the DDA. This result is in keeping with clause
33.11 of the draft Standards.
new trams are introduced questions will inevitably arise about their
distribution across routes. Some submissions argued that in the interests
of equity the distribution ought to be uniform across the system. On
the other hand the applicants said that there are more of the older
Z-Class trams in the Swanston Trams business than in the Yarra Trams
business. This means that Swanston Trams routes will become accessible
sooner because they will receive the first low-floor vehicles.
issues about how to deploy new vehicles have arisen when low-floor buses
are introduced. Certainly a service does not become accessible on the
day the first vehicle commences service, nor when the second, third
and fourth commence. The choice that confronts operators is whether
to concentrate new vehicles in a way that makes a particular route accessible
quickly or to diffuse the benefits throughout the system, perhaps leaving
all routes below the critical numbers necessary to make any route effectively
accessible. This is an operational decision of great importance to people
with disabilities. The Commission does not consider this a decision
that should be made by the Commission in the context of this exemption
application. Rather, the people who are going to run the trams and the
people who are going to use the trams should discuss the issue. The
action plan provides for continuing consultation with people with disabilities
and the recommended exemption condition that the action plan be implemented
is all the Commission should do on this point now.
The question of heritage values
applicants say that trams are "icons of Melbourne" and as
such they are enjoyed by residents and visitors alike. The 200 W-Class
trams are between 40 and 60 years old and it is said that they have
significant heritage values that cannot be replaced. These trams feature
prominently in tourist and promotional material. The City Circle tram
service provided free of charge is operated only by W-Class trams and
is a tourist attraction. The applicants point to the importance of
tourism to the economy and the role Melbourne plays in generating approximately
60% of tourist revenue in Victoria.
Minister for Transport has agreed that 53 of the W-Class trams will
remain in service. The applicants do not take these vehicles into account
when calculating the numbers involved in fleet replacement. For that
purpose they only consider the Z, A and B-Class trams. They do not
propose to make accessible the W-Class trams that remain in service.
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.
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
applicants have proposed a scheme for retaining the heritage W-Class
trams in a way that does not significantly affect their overall plan
to make Melbourne public transport accessible. That scheme is set out
at section 2.2.5 of the application and section 5.4.6 of the action
Commission has concluded that the proposal does not detract from the
overall advancement of the objects of the DDA which the action plan
achieves and that the 53 W-Class trams to be retained indefinitely in
operation should fall within scope of the exemption, provided that certain
conditions are met. This conclusion is based on the fact that the primary
use of these vehicles will be on tourist routes where heritage values
may reasonably be given relatively more weight than in general public
transport service. Some W-Class trams will also continue in service
to supplement the existing general fleet but these will be phased out
as that fleet is replaced by new low-floor vehicles.
it is acknowledged that the trams are not accessible, the requirement
for accessibility needs to be balanced against heritage and other
issues. To achieve this it is expected that DOI and the new operators
will negotiate an overall tram deployment regime such that use of
the W-class trams provides for maximum visibility in a tourist/heritage/
city image sense, but that their use in public transport terms is
increasingly that of a niche role. It is expected that the W-class
vehicles will be mainly deployed on services such as:
free City Circle route, which offers tourists and other city visitors
a heritage/experience trip around the edges of the Central Activities
Kilda Road trips where there are multiple routes and the overall frequency
of trams is such that there will never be a long wait for an alternative
vehicle (for example, route 8 to Toorak, which is a relatively short
route beyond the St Kilda Road section, and route 16 to St Kilda Beach,
which has nearby alternative routes on that part of the route beyond
St Kilda Road)
shuttle services (for example, Brunswick Street to Spencer Street
along Macarthur Street and Collins Street) which are typically provided
in the busy middle-of-the-day peak to supplement other trams and where
the frequency is again such that a long wait for another tram is never
12, to South Melbourne and St Kilda Beach, where alternative tram
routes into the city are close by, and a demand responsive accessible
bus service also operates.
Commission does not accept that it should grant an exemption on the
basis that it is "expected that the W-class vehicles will
be mainly deployed on services such as .". Rather
it grants the exemption on condition that the W-class trams to be retained
in long term service are used only on the four services listed and on
one further condition relating to the City Circle routes.
City Circle route is provided free of charge. If it is to be operated
with vehicles that are inaccessible to people with disabilities then
an accessible alternative to that route or any other that is conducted
on the same basis must be provided, and it must be free of charge to
people who cannot get into or out of W-Class trams. The exemption for
W-class trams is granted subject to a further condition to that effect.
decision permits the W-class trams to be retained in service. The Commission
does not consider that it should decide in the context of the present
application whether modification of W-class trams should be required
Paraplegic and Quadriplegic Association of Victoria make the point that
W-Class trams have been made accessible elsewhere.
argument for the retention of W class trams without alteration to
provide access, may have some validity if there are plentiful other
trams which are accessible on the same lines. However in Seattle in
the USA, there are several Melbourne W class trams on a route similar
to the city circle route. In this city, where access and disability
rights are taken more seriously, access is provided to these trams
via raised, ramped platforms, requiring no alteration to the outside
of the tram and only minimal restraints on the inside.
applicants argue that infrastructure may be complicated and difficult
to use where different vehicles that require varied ramp heights are
used on the same route. Even so it does not seem beyond the realm of
possibility that a technical solution could be found, in particular
for the City Circle route where only one class of vehicle is to operate.
Although an exemption for the remaining W-Class vehicles is appropriate
until 2004 the Commission suggests that the applicants, the National
Trust and disability representatives should continue to discuss this
issue during that period.
Findings on material questions of fact
Commission's decision that a conditional exemption be granted depends
upon the findings of fact contained in these reasons.
Commission accepts the applicants' arguments that the existing Melbourne
tram system presents challenges in achieving accessibility for people
with disabilities that are specific to that system.
work is still to be done to make public transport fully accessible and
many people with disabilities continue to experience difficulty and
frustration in using public transport. A system that is only partly
accessible will provide satisfactory services only part of the time
at best. This will continue for some time whatever course is adopted
with respect to this exemption application. The Commission is satisfied,
however, from the substantial work has been done and the work that is
continuing that the applicants are committed to addressing accessibility
of trams and are pressing ahead with their project to make all modes
of public transport accessible.
applicants have made a substantial financial commitment to make trams
accessible. The cost per vehicle is said to be between $2 million and
$3 million dollars in today's terms suggesting overall expenditure in
the order of $1 billion dollars. This expenditure is not all due to
accessibility requirements. Trams will need to be replaced in any event
as they approach the end of their working lives. There may also be
factors concerning the efficiency and amenity of new vehicles that would
move the applicants and the operators of privatised services to acquire
new trams early.
applicants say that they are prepared to incur a very substantial additional
cost by bringing forward acquisition of new trams instead of making
replacements when existing vehicles reach the end of their working lives.
They have not presented costings for their revised proposal but the
original proposal to commence in 2008 was said to incur an additional
cost of $45 million per year. It is reasonable to assume that this
is not diminished by bringing the commencement date forward further
to 2002. Since the bidders for the private franchises that will operate
tram services are nominating their price in terms of the degree of subsidy
they will require to run an efficient operation they will undoubtedly
take these costs into account. To some extent acceleration of fleet
replacement will therefore be a charge on the public purse that must
compete for priority with other public sector projects.
action plan also addresses privatisation of some or all of the public
incoming private operators will be compelled under franchise agreement
clauses to operate in a way that meets the objectives of the Disability
Discrimination Act and the forthcoming Disability Standards for Accessible
operators will be required to prepare individual Action Plans within
18 months of commencing their franchise term. It is intended that
this Action Plan will become an 'umbrella' document, within which
the individual action plans will evolve.
DDA will apply to the franchisees as a matter of law. The Commission
accepts that the applicants also intend to bind the operators of privatised
services to implement the scheme set out in the action plan which forms
the basis for the exemption application.
Commission considers the present exemption application evidence in itself
of commitment to accessible transport. No-one is obliged to seek an
exemption under the DDA. Exemption applications are made in the context
that if granted an exemption must further the objects of the DDA to
eliminate disability discrimination as far as possible. Exemptions
are temporary and are intended to assist people or organisations to
reduce exposure to complaints while they remove discriminatory barriers.
The applicants are well aware of this and have taken the opportunity
to use public consideration of their application for exemption as a
means of testing acceptability of their proposal. They would be unlikely
to do this unless they are committed to what they are doing and are
prepared to see it through.
Commission appreciates the anger felt by people with disabilities about
the inaccessibility of the Melbourne tram system. Participants at the
public forum argued strongly that in a city where trams make an enduring
contribution to community identity they are at present both a symbol
of and contributor to the marginalisation and disempowerment of people
with disabilities. Many people will be disappointed that a quicker solution
has not been found.
the DDA has been instrumental in achieving substantial progress in the
accessibility of public transport across Australia. This exemption decision
will be a further incremental step towards that goal. Provided the community
remains engaged and assertive of its rights then the commitment of governments
and service providers will not fail.