Letter to small business organisations on draft premises standards

The Australian Human Rights Commission recently (May 2004) met with representatives from a number of small business organisations to discuss the draft Premises Standards. The purpose of the meetings was to provide additional information on a number of specific concerns that had been raised. The Commission followed up the meetings with a letter which is reproduced below.

Thank you for the opportunity to meet last week to discuss matters relating to the draft Premises Standards.

As I explained in our meeting our purpose was to begin an ongoing dialogue over access related issues as they affect your members. I would welcome an invitation to meet with your Directors at some time in the future if you feel that would be of value.

I would like to take this opportunity to highlight a couple of the issues I raised during our discussions in relation to concerns your members may have about the draft.

As you know owners or operators of premises or providers of goods and services are already covered by State/Territory and Commonwealth laws prohibiting discrimination against people with a disability. In addition under the Building Code of Australia (BCA) all new and renovated buildings used by the public, that require a development or building permit, are also already required to provide extensive access features such as wheelchair accessible entrances, unisex accessible toilets and appropriate signage.

At two levels, therefore your members are already required to comply with existing laws and regulations. The difficulty faced by owners and operators of buildings is that case law has shown that the requirements of building law are not sufficient in many instances to satisfy anti-discrimination laws such as the Disability Discrimination Act (DDA).

At any time a small business may be the subject of a discrimination complaint if a person with a disability experiences a barrier to equal access to, or use of, buildings or the services operating out of them.

If a complaint of discrimination proceeded to the Federal Court the only defence available to an owner/operator would be that of unjustifiable hardship. Under the DDA some guidance is given to the Court on how to assess such defences:

DISABILITY DISCRIMINATION ACT 1992 - SECT 11 Unjustifiable hardship

For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and (b) the effect of the disability of a person concerned; and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and (d) in the case of the provision of services, or the making available of facilities-an action plan given to the Commission under section 64.

It is up to the Court to consider all relevant circumstances in making its decision. While the Commission and other anti-discrimination bodies have dealt with many hundreds of individual complaints through conciliation there have so far been few complaints go as far as the Federal Court or Federal Magistrates Court.

Of those that have the clear message that has been given by the Court is that in order to fulfil the objects of the DDA, as adopted by Parliament, it is clear that those covered by it may well experience some hardship in order to comply.

Clearly with existing buildings that may have been built 10, 20 or 50 years ago the technical and cost difficulties of achieving full access are likely to be greater and the defence of unjustifiable hardship likely to be more available.

Overseas case law suggests that, while most successful complaints involve limited expenditure, additional costs of up to 20% associated with providing access - depending on the resources available to the owner/operator - is on occasion required in order to achieve equity.

At the moment, therefore, we have a situation where owners and operators of new and existing buildings face the possibility of complaints, but do not know exactly what they must do to avoid discriminating.

Over the past four years the Building Access Policy Committee (the committee established by the Australian Building Codes Board to develop the draft Premises Standard) has been working to overcome a number of difficulties including: " inconsistencies between building law and anti-discrimination law " confusion over which law has precedence, and " the lack of surety in the building sector about how to build a building that does not result in discrimination.

The result of this work is the draft Premises Standard which, when formulated by the Attorney General, will essentially describe in detail the type and level of access that should be provided in order to satisfy the existing requirements of the DDA. Complying with the Premises Standard will mean that an owner/operator will be complying with the DDA in those matters covered by the standard.

Following formulation of the Premises Standard by the Attorney General the BCA will be changed to reflect what the Premises Standard says, so that in future compliance with the BCA will result in compliance with the DDA. This will give industry and the community the surety both seek.

As I explained in our meeting the recent public comment period was an opportunity for organisations like COSBOA and its members to provide comment on the essential question the BAPC has tried to answer. That question is "Given that the law already requires access be provided have we defined a level of access in the Premises Standard that appropriately balances the rights of people with disabilities with the defences of unjustifiable hardship?"

Our greatest concern as we move towards the completion of this task is that the public debate that takes place on the draft is informed and reasoned.

I understand your concerns about the proposed Premises Standard relate to the overall cost impact on some of your members and in particular issues such as access to the second floor in two storey buildings, the provision of unisex accessible toilets and the possible loss of usable space arising from increased circulation requirements. I also understand that you are mainly concerned about these issues as they relate to existing buildings undergoing renovation or change of use.

I appreciate the concerns you and your members might have, and in order to assist with the current debate I would like to offer some comment on the proposals in some critical areas. I do not seek to lobby in favour or against any of the proposals, but simply to facilitate a fuller understanding of the issues so that the public debate will be better informed.

First the question of whether or not the Premises Standard is retrospective. The Premises Standard will be triggered in exactly the same way as the current BCA is triggered. That is, it will only apply to new buildings and those existing buildings that trigger the application of the current BCA to new building work, in the form of renovations or additions, or to change of use from one classification of building to another. (The only variation to this is in the case of transport related buildings such as railway stations which are subject to an existing Transport Standard.)

This is what happens today with State and Territory building law. For example, if an old building with one or two steps into it is renovated that building may currently trigger a requirement under the BCA that wheelchair access be provided. This is not retrospective legislation; it is simply applying current day health, safety and amenity requirements to buildings in specifically triggered situations.

Secondly, the question of access to the upper storey in low rise buildings. There is no doubt that the DDA would currently allow someone to lodge a complaint against an owner/operator who operates a retail outlet or a service from the upper floor of a two storey building.

The BAPC therefore had to determine whether or not to include access to all floors in the Premises Standard. Some proposed that the cost of doing this would be too onerous and others proposed that failure to require access to the upper floors would unacceptably reduce the rights of people with disabilities under the DDA.

Eventually the majority of BAPC members resolved to include the requirement in the draft and seek comments from others.

One issue that I believe needs clarification is the expected costs associated with providing such access in small, low usage buildings such as an office block or retail shop. I understand that lifting devices in such situations can be purchased for between $30,000 and $40,000, not the $160,000 quoted in the case studies used in the Regulation Impact Statement prepared by external consultants. On a project costing, for example, $250,000 this additional cost of providing access to the upper floors would amount to around about 12%.

Where project costs are greater, such as in a strip of new low rise shops or where additional fitout costs are included in the overall project cost the percentage of increased costs associated with providing access will be significantly reduced.

For existing buildings the Premises Standard recognises that making an inaccessible building accessible can give rise to very difficult technical and cost consequences. For this reason, for existing buildings only, the Premises Standard will retain the defence of unjustifiable hardship for owner/operators.

The BAPC has proposed a mechanism to be set up in each State and Territory which will give owner/operators of existing buildings, who believe they would face an unjustifiable hardship if required to implement the new BCA, a means of appealing against the full BCA requirements. The mechanism proposed is an Administrative Protocol which will set up an Access Panel to assess appeals by owner/operators against a set of 'criteria' including: (a) The economic viability of a project including- (i) any loss of occupiable or rentable area; (ii) the cost of upgrading ancillary features, such as the path of travel to the new work or the associated facilities, in relation to the overall cost of the new work; and (iii) resources reasonably available to the person or organisation who would be required to meet to the costs of providing access. (b) Whether the new work involves public funds. Buildings serving a public function and receiving public funds may, for example, need to demonstrate particularly exceptional circumstances to justify lack of access. (c) The extent of the benefit from providing access including- (i) the type and use of the building, for example, lack of access to a shopping centre or a medical centre will have an impact on a wider group of people than a building to which the general public is not normally admitted; (ii) whether alternative access is available to the building or to the services and facilities provided within the building; (iii) whether the building exists for, or is used for, significant public purposes. For example, if the building is used for electoral purposes or by local government for consultative purposes; and (iv) whether the building has a significant community function, including cultural, religious, artistic, or sporting aspects of a community, or is used for educational purposes. (d) The significance of any heritage value of features in a building that may be affected by changes to provide access. Every case should be considered on its own merit. This means that the importance of retaining any significant heritage feature needs to be weighed against the obligation to provide access under the DDA. (e) Technical limits. (f) Topographical restrictions or other site constraints. (g) Any relevant safety and health factors. (h) The requirements of other legislation.

It is my belief that this mechanism will effectively manage and respond to legitimate concerns of those individuals or organizations that have a genuine difficulty in meeting the requirements.

Thirdly, the question of the proposed requirement for a unisex accessible toilet wherever there is a bank of male and female toilets. Under the current BCA owner/operators of new buildings and existing buildings undergoing renovation or change of use may already be required to provide a unisex accessible toilet if the toilets are made available to the public or customers. For your members who come into this category the proposed Premises Standards will be of little consequence. For those operating out of existing buildings the claim of unjustifiable hardship will be available if the requirement would be technically too difficult or too costly.

For owner/operators that do not make their toilets available to anyone but staff the Premises Standard will be requiring something new. This requirement has been proposed for two reasons. First, the availability of a unisex accessible toilet will ensure that current or prospective future employees with disabilities will have access to toilet facilities, and secondly because over the life of a building no-one knows when the use of that building will change to become a more public facility.

However, I would draw your attention to an important aspect of the BCA and the proposed Premises Standard. A single unisex accessible toilet can count as one male and one female toilet, meaning that where a small business is currently required under the BCA to provide one male and one female toilet the provision of a single unisex accessible toilet will meet that requirement. While there will be costs associated with the accessible toilet there would also be saving in costs associated with eliminating the need for two cubicles, two toilets, doors, washbasins and mirrors etc.

Finally, the question of loss of usable space due to greater circulation space requirements. Currently under the BCA circulation space requirements include features such as doorways (800mm minimum), corridors and clear paths of travel (1000mm minimum). Under the proposed Premises Standard these features are to increase to a minimum of 850mm and 1200mm respectively in order to ensure greater equity and amenity for people using mobility aids such as wheelchairs or walking frames.

While these increases will impact on some businesses I would ask your members to consider current industry practice when assessing its impact on them. For example, I am led to understand that many retailers building a new building already exceed the minimum doorway opening requirements because of the need for better customer flow; designers already minimise the use of long corridors because they are an inefficient use of space and places such as small supermarkets already have aisles wider than the minimum in order to ensure two trolleys can pass each other and shelves can be stocked.

As I stated at the beginning of this letter, my intention is not to question the right of COSBOA or its members to vigorously assess the proposals, but simply to add to a broader understanding of the intent and effect of the proposal to assist in the debate.

Please feel free to circulate copies of this letter, which I will also send to you electronically, to your members. I will also be placing a copy on our web page at http://www.humanrights.gov.au/disability_rights/buildings/access_to_pre…

I look forward to meeting with you and your Directors at some future date.

Yours sincerely

Graeme Innes AM Deputy Disability Discrimination Commissioner