NOTICE OF PROPOSED TEMPORARY EXEMPTION UNDER THE DISABILITY DISCRIMINATION ACT

[Note: Original was distributed by mail and facsimile; reproduced here for greater accessibility.]

The Human Rights and Equal Opportunity Commission (HREOC) has received an application for a temporary exemption under the Disability Discrimination Act (DDA) on behalf of the South Australian Minister for Transport, TransAdelaide and the Passenger Transport Board.

HREOC has asked the Disability Discrimination Commissioner to report to it in relation to this application.

In keeping with HREOC's policy on temporary exemptions under the DDA, the Commissioner is seeking to provide interested parties with an opportunity to participate in the process of making a decision about this exemption application. The Commissioner considers (in view of previous processes under the DDA and extensive publicity for these) that an appropriate means of providing such an opportunity in this case is to seek comments on a proposed decision about the application.

The Disability Discrimination Commissioner proposes to recommend to the Human Rights and Equal Opportunity Commission at its next meeting, on 7 February 1995, that an exemption be granted subject to certain conditions.

Comments on the proposed decision are requested within 6 weeks, as provided by HREOC's policy on exemptions.

Submissions about the proposed exemption should therefore be received by 27 January 1995. They should be addressed to:

Disability Discrimination Commissioner

GPO Box 5218

Sydney 2001

or fax (02) 284 9789, and should be marked to the attention of Mr Michael Small.

Nature of exemption applied for

The exemption applied for is in relation to lack of wheelchair access to the existing fleet of buses currently owned and operated by TransAdelaide. The exemption is sought to cover these buses until October 1995, and would also apply to any of these buses which might be operated by private operators under tender arrangements during this period.

Background to exemption application

The application follows a conciliated agreement reached in October 1994 between the applicants and a number of people making individual complaints under the DDA, represented by the Norwood Community Legal Service.

By this agreement the applicants agreed:

• in principle to creating a passenger transport system that facilitates the equal use of all services by people with a disability;
• to prepare an Action Plan under the DDA by October 1995; to consult in the preparation of the Action Plan with a Working Party representing people with a disability;
• for the imminent order for midi-buses to be for low floor buses designed to be wheelchair accessible;
• for all of this order delivered before October 1995 to be fitted with ramps, and, if trials of these vehicles confirm to the Working Party their suitability, the remainder of the order to be fitted with ramps;
• for these buses to be trialled on services determined in consultation with the Working Party;
• to attempt early delivery of 3 of the imminent order of midi buses, and other sources of wheelchair accessible vehicles to be investigated, to expedite commencement of trials;
• for the Transport Subsidy Scheme to be reviewed urgently and with appropriate consultation;
• for the interim order made by the Commission (preventing acquisition of new buses unless these are accessible) to remain in force by consent until the Commission's inquiry into the complaints is recommenced in October 1995.

Reasons given by applicant in support of application

The application for exemption refers to a number of grounds on the basis of which the applicants say the application ought to be granted:

• commitment by the applicants to prepare an Action Plan by October 1995, in consultation with representatives of people with disabilities, and that this will address needs of all groups of people with a disability;
• diversion of time and resources from work on the Action Plan to responding to individual complaints if no exemption is granted;
• commitment by the complainants, in the Conciliation Agreement referred to, to support an exemption application; and
• provision in the Conciliated Agreement for any of the parties to the agreement to require a conference to be convened regarding any issues of concern that arise.

Disability Discrimination Conunissioner's views on these reasons

HREOC's policy on applications for temporary exemptions under the DDA indicates that the terms, and any implementation, of an Action Plan which is lodged with the Commission will be considered as relevant to an application for exemption.

The Disability Discrimination Commissioner is not persuaded, however, that a commitment to prepare an Action Plan in the future, and a desire not to be distracted from doing so by being required to respond to complaints, would in itself be a sufficient basis for recommending an exemption during the period when the Action Plan is being prepared.

While the applicants' commitment to prepare an Action Plan may persuade some potential complainants not to pursue complaints at this point, the Commissioner considers that this commitment alone would not be a sufficient basis for an exemption which would prevent any person from making a complaint who was not satisfied that this commitment was sufficient.

The commitment of the complainants to support an application for exemption, and the ability of the complainants to require a conference on any matters of concern to them arising in relation to the Conciliated Agreement, is relevant, but not decisive, in the Disability Discrimination Commissioner's view, since these complainants and their representatives were not acting or purporting to act on behalf of, and do not have authority to bind, all other potential complainants.

The expressly stated basis for the application is not therefore regarded as a sufficient basis for recommending an exemption.

However, the application is also accompanied by other supporting material which provide a stronger basis for recommending an exemption. The Conciliated Agreement referred to in the application contains a number of more specific commitments by the applicants which are relevant to the subject matter of the proposed exemption.

The applicants have agreed to continue to be bound (during the period of the proposed exemption) by the President of HREOC's interim order not to order or acquire any buses (other than those already due to be delivered) which are not accessible to people using a wheelchair; to a process of trials in consultation with representatives of people with a disability to identify appropriate means of ensuring that buses are accessible; and to adopt a particular design of accessible vehicle if identifies as appropriate by the results of those trials.

These commitments relate directly to future vehicles, rather than to existing vehicles which are the subject of the proposed exemption. The Disability Discrimination Commissioner, however, considers that:

• if the exemption were not granted, and a further complaint were made about access to existing buses, any determination which the Commission might make to require modification or replacement of these vehicles would necessarily include a process to identify what design features would be appropriate to ensure accessibility;
• the processes agreed to in the Conciliated Agreement provide a reasonable means for conducting such a process within a reasonable period;
  
  an exemption in the terms proposed will not affect the ability of any person to pursue a complaint against the applicants concerning matters other than wheelchair accessibility of existing buses;

   

• granting the exemption for the period sought (and subject to the conditions proposed as set out below) therefore will not deprive potential complainants of substantial potential redress;
• rather, granting an exemption in the terms proposed by the Disability Discrimination Commissioner would be consistent with the objects of the Disability Discrimination Act.

   

Proposed recommendation to HREOC by Disability Discrimination Commissioner

For these reasons, the Disability Discrimination Commissioner proposes to recommend that the Commission grant an exemption in the following terms:

1. The South Australian Minister for Transport, TransAdelaide and the Passenger Transport Board are exempted until 1 November 1995 from the operation of section 24 of the Disability Discrimination Act so far as it concerns lack of wheelchair accessibility of the existing fleet of buses currently owned and operated by TransAdelaide (as specified on behalf of the applicants to HREOC by facsimile on 13 December 1994 and including buses presently due for delivery).

2. This exemption applies to any of the subject buses which may be operated on behalf of the applicants pursuant to tender processes up to 1 November 1995.

3. This exemption applies subject to the applicants implementing the Conciliated Agreement reached between themselves and Ms Madsen, Ms Thompson and Mr Corcoran dated 12 October 1994.

4. This exemption does not affect the liability of the applicants under the Disability Discrimination Act for any discrimination other than the lack of wheelchair accessibility of existing buses as specified.

5. Any person may apply to the Commission during the period of this exemption for the exemption to be extended or revoked.