Notice of temporary exemption application: Northern Districts Model Engineering Society

Application

The Human Rights and Equal Opportunity Commission has received an application from the Northern Districts Model Engineering Society for a temporary exemption under section 55 of the Disability Discrimination Act (DDA) from those provisions of the DDA which could otherwise require installation of a wheel chair lift to the first floor meeting room of the applicants' near complete clubrooms at Balcatta, Western Australia. .

The application states that it is made on the basis of unjustifiable hardship and indicates that:

• the building has been constructed by the volunteer members of the society over the past 2 and a half years
• some public funding has been provided through grants of $40,000 from the City of Stirling
• a stair lift was procured at the commencement of the project but has been found unsuitable for the purpose
• the Society may need up to 2 years to raise the funds necessary to purchase and install an appropriate lift
• the building when completed becomes a City of Stirling asset but the City's position is that it cannot accept the building as complete until a wheelchair lift is installed
• the applicants cannot formally occupy the building until accepted by the City
• it will take the applicants an estimated 2 years to raise the $30 000 necessary for purchase and installation of an appropriate lift
• in the event of a person requiring lift access attending its meetings or joining the Society will arrange for meetings to be held on the ground floor which is wheelchair accessible.

Issues

Although issues which would be relevant to determination of an unjustifiable hardship defence in the context of complaints may also be relevant to determination of the merits of an application for temporary exemption, the Commission has not been prepared to grant exemptions simply to certify the existence of unjustifiable hardship.

In particular, it does not appear an appropriate use of the Commission's power under section 55 of the DDA to substitute for the power of local government to approve or decline to approve buildings for use. It may be that local government bodies which consider that they are exposed to excessive uncertainty regarding potential liability under the DDA in making decisions on building access issues should themselves consider making applications for exemption. Such applications might include appropriate criteria and processes for making decisions and might also be accompanied by other commitments on improving access in local communities.

However, exemptions have been granted to provide time to implement solutions to access barriers (such as in the Melbourne Trams decision). In this matter the applicants are seeking time to implement access rather than a simple certification of unjustifiable hardship.

Exemptions have been refused where there is no reasonably arguable case of unlawful discrimination (see the Employers Making a Difference decision) but have been granted where it is possible although unlikely that there would otherwise be liability for unlawful discrimination (such as the ORTA decision).

It appears likely that if the applicants implement the measures they propose to ensure that no member of the public or of the Society is excluded from activities because of the lack of wheelchair access to the second floor, no act of unlawful discrimination will occur. However it is also possible that despite such arrangements the lack of access to the upper floor could result in discrimination

Call for submissions

'In accordance with its policy on exemption applications, the Commission seeks to give interested parties an opportunity to participate in the process of considering this application.

Accordingly, the Commission seeks submissions by 17 October 2003, preferably by email to disabdis@humanrights.gov.au . Submissions may also be addressed by mail to Disability Rights Unit, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney 1042. Where submissions are made by mail a copy on disc should be included if possible.

To promote open public discussion and exchange of views, the Commission intends to make submission publicly available by posting submissions made electronically on its Internet site. Requests for material to be treated as confidential should be clearly indicated.

The Commission will decide further actions on this matter after considering submissions received.

Graeme Innes Deputy Disability Discrimination Commissioner 24 September 2003