Application for temporary exemption under Disability Discrimination Act section 55: Toowoomba City Hall

The Human Rights and Equal Opportunity Commission has received an application from Toowoomba City Council for exemption under section 55 of the Disability Discrimination Act (DDA) regarding accessibility of the Toowoomba City Hall theatre.

Application

The application is attached (with certain supporting documents excluded for reasons of file size).

The application seeks exemption from liability under DDA section 22 (access to premises) and 24 (provision of goods, service and facilities).

The application discusses difficulties and expense in making this venue accessible to people with disabilities. It indicates possibilities for addressing access issues in the course of a more general upgrade contemplated for the theatre. Funding for this upgrade are currently allocated for future budget years but the application notes that other priorities may require revision of this.

The application is sought to ensure that public use of the theatre is lawful pending works at some future point to make the theatre accessible.

Request for submissions

In accordance with the Commission's policy, I am requesting public input on this application an on the recommendation which I propose to make, outlined below.

Submissions are requested by 13 January 2003, preferably by email to disabdis@humanrights.gov.au. Submissions may also be made by mail to Disability Rights policy unit, HREOC, GPO Box 5218, Sydney NSW 1042.

Proposed recommendation

I propose to recommend to the Commission that the application be refused.

The Council's contentions that the current expense and difficulty of providing disability access would be excessive, and that this should not prevent the benefits to be gained to other persons by use of the theatre in its current condition, may have some substance. These factors would be available to it to argue as a possible unjustifiable hardship defence in the event of complaints.

However, the Commission has decided on a number of previous occasions that it is not appropriate to use the exemption power in section 55 of the DDA simply to certify that an applicant need not undertake certain actions on hardship grounds, without there being sufficient reason to conclude that granting an exemption will advance achievement of the objects of the legislation. I refer to the decisions in the Women´s Legal Centre and Lutheran Schools matters.

In my view the same approach should be applied in this instance.

Clearly the objects of the Disability Discrimination Act may be promoted by granting exemptions in return for commitments to improve access over time. However, the application acknowledges that plans for an upgrade including disability access may or may not go ahead on budgetary grounds. There is not in this instance any definite commitment to providing access within a definite time in return for an exemption pending that time.

This application is therefore different to one such as in the Melbourne Trams case where the Commission granted an exemption - a decision justified by results as may be seen by the increasing presence of accessible trams and supporting infrastructure on Melbourne streets.

Graeme Innes AM Deputy Disability Discrimination Commissioner