Recommendation: Application by Australasian Railways Association for further exemption

Application

On 9 November 2011 the Commission received an application from the Australasian Railways Association (ARA) for a temporary exemption, so as to continue in effect until 31 December 2013 the exemption which was granted by the Commission on 7 September 2010.

The exemption approved on 7 September 2010 (expiring on 31 December 2011) in turn extended the effect of exemptions previously granted by the Commission in 2007.

The 2010 decision by the Commission was made in response to a request by the applicants for the effect of the previous exemptions to be extended to provide regulatory certainty while they

• continue to undertake major purchasing and infrastructure works necessary to increase the provision of accessible rail public transport and
• complete the development  of a rail industry Code of Practice on accessibility with the intention of translating the obligations of the rail industry under the DDA, the Disability Standards for Accessible Public Transport (DSAPT)and the current temporary exemptions into practical and detailed performance criteria.

Noting that the exemptions granted did not postpone provision of access or excuse non-provision, but rather sought to define in operational terms what the required access is for the purpose of implementing such access, the Commission decided to grant the further exemption requested.

The ARA now seek a further two years extension of the exemptions previously granted by the Commission, to provide certainty in continued implementation of accessible rail services.

Accessible Rail Services Code of Practice

The ARA have also advised that development of the Accessible Rail Services Code of Practice referred to in their previous application has now been completed by the Rail Industry Safety and Standards Board, which is an accredited standards development organisation, following two separate six week public consultation periods.

The ARA advise that they will be seeking recognition of this Code as a compliance mechanism under the DDA – through a separate exemption application to the Commission, and through a more direct mechanism for recognition of co-regulatory arrangements if and when provision for such a mechanism is included in the legislation.

It should be noted that the exemption application which is the subject of the present memo does not depend on the content of the Accessible Rail Services Code of Practice. An application for an exemption based on this Code, which is a lengthy and technically detailed document, will need to be the subject of a further process of public consultation and further advice to the Commission.

Issues by reference to Commission guidelines on temporary exemptions

Is an exemption necessary?

The exemption applied for seeks permission to depart at a number of points from strict compliance with the technical specifications of the DSAPT in implementing accessible public transport services. While it is arguable that these departures can be defended by reference to the “unjustifiable hardship” and “equivalent access” provisions of the DDA, it cannot be said with certainty that such a defence would succeed. Accordingly in the absence of an exemption the ARA’s members would be exposed to potential liability under the DDA.

Is granting an exemption consistent with the objects of the DDA?

The submission from Mr Yeo argues that it would be contrary to the spirit of the DDA to grant the requested exemption.

However, the Review of the Disability Standards for Accessible Public Transport, conducted on behalf of the Department of Infrastructure and the Attorney-General’s Department, and involving extensive public consultation, supported the view expressed by the ARA in previous applications to the Commission for temporary exemption, that measures to reduce uncertainty in the application of the DSAPT are desirable in the interests of promoting achievement of the objects of the DSAPT.

In considering previous related applications, the Commission has decided that it would promote and be consistent with the objects of the DDA to grant temporary exemptions the similar effect as the currently requested exemption. This has been on the basis that increased certainty of obligations will assist members of the ARA in taking measures to improve the accessibility of rail services for people with disabilities. In my view the Commission should take the same approach to the present application.

Granting of exemption subject to terms and conditions

As noted above the applicants do not seek unconditional exemption from compliance with the DSAPT. Rather, they seek exemption subject to conditions which in effect define what the required compliance is. Subject to this, ARA members would remain subject to the compliance timetables of the DSAPT which require continued increases in provision of accessible services over time.

Views of persons affected

Issues raised in this matter have been discussed through previous temporary exemption processes, in particular as detailed on the Commission’s website at http://www.humanrights.gov.au/disability_rights/exemptions/ara/dec.htm#sched3 .

In accordance with the Commission’s policy on exemption applications, a notice of inquiry was published on the Commission’s website on 11 November 2011. Submissions were requested by 16 December 2011.

No submissions in response to this request were received within the requested timeframe. However, one submission – from Mr Peter Yeo – was received on 3 January 2012. The Director of Legal Services and I agree that this submission ought to be taken into account, having been received before the Commission has made a decision on this matter. 

As noted in Mr Yeo’s submission, the majority of submissions from disability organisations in response to previous related applications for exemption did not favour granting the exemptions although the Commission nonetheless granted them.

Issues raised in Mr Yeo’s submission are addressed in more detail below.

Delay in compliance

Mr Yeo submits that given the financial resources available to rail operators, which are in most cases funded by State Governments, any delay in compliance would be unacceptable.

However, as noted in previous decisions on related applications, the Commission has not granted to rail operators any extension or variation of the dates or proportions in the compliance schedule provided by the DSAPT. The Commission in fact rejected a number of requests for points of exemption to such effect in its 2007 decision, and the current exemption application does not include requests in these terms. As indicated above what is proposed is not deferral of provision of access, but measures to define what the required access is in a rail environment.

Determination by court preferable

Mr Yeo submits that by refusing the requested exemption the Commission would preserve the ability for court determinations to be made on the extent of applicable defences of unjustifiable hardship in instances of non-compliance with the DSAPT, and that such determinations would assist all parties to understand the extent of their rights and obligations under the DDA.

It may be relevant to note that a similar argument was made against the introduction of the DSAPT. It was argued by some individuals and organisations that it was inappropriate to displace rights to pursue complaints under the open ended discrimination provisions of the DDA, in favour of more definite obligations including provision for compliance over time rather than being able to seek orders for immediate compliance. This argument was rejected by Government, Parliament, the Commission and the majority of disability representative organisations. The correctness of this decision is supported by the assessment of the Review of the DSAPT that the DSAPT have been effective in promoting achievement of accessible public transport. As noted above, the same Review supported the view that further measures to reduce uncertainty in the application of the DSAPT are desirable in the interests of promoting achievement of the objects of the DSAPT.

Conditions on previous exemptions

Mr Yeo questions whether rail operators have complied with conditions applied to previous exemptions and accordingly whether compliance with conditions on a further exemption could be relied on.

Previous exemptions have included two sets of conditions: technical specifications and requirements, and requirements for consultation on access options and issues.

In relation to substantive obligations, in any instances where it is alleged that an operator is not meeting the conditions on an exemption, it remains possible for complaints to be made as the means of enforcing those obligations.

The Commission’s January 2007 decision required further consultations (in addition to extensive consultations conducted prior to that decision) with the Australian Federation of Disability Organisations. As detailed in the Commission’s subsequent decisions in November 2007 in relation to mobility aids and boarding devices, further consultations between the ARA, the Commission and the Australian Federation of Disability Organisations did take place during 2007. In addition, the Commission and the Australian Federation of Disability Organisations were consulted regularly by the ARA throughout the lengthy process towards the development of its Accessible Rail Services Code of Practice .  

Appropriateness of co-regulatory approaches

Mr Yeo argues that it would not be appropriate to give effect to the Accessible Rail Services Code of Practice through a co-regulatory mechanism and that it would be preferable to await implementation of the first five year Review of the DSAPT.

As noted above, however, the presently recommended exemption does not involve approval of the Accessible Rail Services Code of Practice. This is reserved for further consultation and separate advice to the Commission.

Recommendation

I recommend that the Commission approve granting the exemption as applied for.

David Mason

Director Disability Rights Policy

17 January 2012