Recommendation for temporary exemption: Buchan Bus 'n Freight

Application

The Human Rights and Equal Opportunity Commission has received an application from Mr D. Beaven, trading as Buchan Bus n Freight, for a temporary exemption under section 55 of the Disability Discrimination Act (DDA) from the provisions of the Disability Standards for Accessible Public Transport to permit the introduction of a public transport service using a vehicle which is not wheelchair accessible and which although second hand is new to public transport service.

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

• Buchan Bus n Freight is attempting to start as a trial a bus service for an isolated community of approximately three hundred households which lacks a public bus or freight service
• A new bus to provide full wheelchair access is not financially viable for this trial service
• Those local community members who use wheelchairs or scooters would be able to board the proposed bus with assistance, to be provided by the driver
• The bus will tow a trailer able to transport wheelchairs or scooters as freight
• Consideration of the application as rapidly as possible is requested in order to commence the service in time for summer trade.

Submissions

In accordance with Commission policy on DDA exemption applications, a notice of inquiry was published seeking submissions. One submission was received by the requested date of 11 December 2003, from the South Australian Passenger Transport Board.

This submission commented as follows:

It is acknowledged that servicing an isolated community of approximately three hundred households would place significant cost pressures on a operator to comply with the requirements of the Disability Standards for Accessible Public Transport.

An exemption on the grounds of unjustifiable hardship could be viewed as consistent with the intent of the Standards at this time, especially as Buchan Bus n Freight will implement arrangements for assistance of local people with disabilities and the carriage of mobility aids.

It suggested that a 2 year exemption could be tied to provision of:

a formal application setting out the the circumstances surrounding their request for an exemption on unjustifiable hardship grounds based around the guide lines for such exemptions on the HREOC website.

In addition it is suggested that Buchan Bus n Freight be asked to specifically:

• address the criteria they will be using to evaluate the trial and the criteria required to be met before a fully accessible vehicle could be provided;
• detail all services to be provided by the vehicle eg any tour and charter work, other communities it may service as it runs between point A and B including days and time of operation and potential loadings etc. This approach would ensure that Buchan Bus n Freight were actively encouraged to assess the impact of non accessible transport services on the community and that any future considerations could be more effectively considered.

Issues

The Disability Standards for Accessible Public Transport require staged compliance with the Standards but also require compliance for new vehicles. New vehicles are defined as vehicles new to public transport.

The intent of this provision appears to have included permitting bus operators who for financial reasons rely on the second hand vehicle market to continue to do so during the period while second hand accessible buses have not yet become available.

If the applicant were obtaining a bus from another public transport operator no need for an exemption to commence the proposed service would arise.

A breach of the Standards could be seen as occurring if the bus is purchased from another source such as a community group or, as in this instance, a private owner (a sawmill).

However, the arrangements proposed for assistance of local persons with disabilities and carriage of mobility aids could also be seen as achieving compliance through equivalent access, as is permitted under the Standards.

An exemption in this matter to permit acquisition of a second hand bus as proposed could be seen as consistent with the intent of the Standards, particularly if made on condition that the operator implement the arrangements proposed for assistance of local person with disabilities and carriage of mobility aids.

Reporting after twelve months on the effectiveness of these arrangements in ensuring access for passengers with disabilities would be appropriate.

I do not however view it as appropriate to impose any more onerous requirements than this to justify an exemption in this matter. In particular I do not see it as necessary for the operator to evidence in detail an inability to purchase a new vehicle (which would attract immediate requirements for accessibility), since the intent of the Standards is clearly to permit operators to continue to be able to acquire vehicles second hand, so long as they comply with the staged timetables for compliance. The recommended exemption would not excuse the applicant from complying with the five, ten, fifteen or twenty year requirements for access, or demonstrating an inability to do so in the context of a complaint or a further exemption application in future.

Recommendation

I recommend that the exemption applied for in this matter be granted, for a period of two years and subject to the conditions that the applicant implement the arrangements proposed for assistance of persons with disabilities and carriage of mobility aids and report to the Commission within twelve months on the operation of those arrangements.

Graeme Innes Deputy Disability Discrimination Commissioner 12 December 2003