Recommendation for temporary exemption: Northern Districts Model Engineering Society

Application

The 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.

Call for submissions

In accordance with Commission policy on exemption applications under the DDA a notice of inquiry and call for submissions was published on the HREOC website. No submissions were received by the requested date of 17 October 2003 or subsequently.

Issues

The Notice of Inquiry on this application set out the issues as follows:

• 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

Recommendation

In view of the issues as discussed above I consider it would be appropriate for the Commission to grant, for a period of two years, exemption from liability under sections 23 and 27 of the Disability Discrimination Act, regarding lack of lift access to the upper floor of the applicants' premises, on condition that the applicants

(1) report to the Commission within twelve months on progress towards providing access to the upper floor and

(2) conduct meetings and other activities during the period of the exemption in a wheelchair accessible venue if notified that any person requiring lift access wishes to attend.

Graeme Innes Deputy Disability Discrimination Commissioner 3 November 2003