Villamanta Legal Service objects to the granting of an exemption from sections 23 and 24 of the Disability Discrimination Act to the applicants as lodged by the Public Transport Corporation, Met Tram 1 and Met Tram 2 (Yarra trams and Swanston Trams), the Department of Infrastructure and the Minister for Transport in relation to tram/light rail services in Melbourne.
Villamanta Legal Service accepts that proposition that the preferred option is to introduce trams which are accessible rather than retrofit current stock.
Villamanta Legal Service considers that the rights of people who have difficulty accessing public transport should not be put on hold until the current batch of trams reach their use-by date. Accordingly the Commission should be wary of granting any exemption unless it is fully satisfied that the position set out in the application is the best position to be offered by the applicants for people who cannot access trams.
Purpose of the application
The applicants state that they are seeking exemption "from complaints which could arise from their failure to replace existing trams with accessible vehicles ahead of a proposed replacement timetable set out in the Application". As the tram system will be privatized in some manner, the exemption is designed to offer the new operators "protection against complaints which could otherwise arise in early years, before the proposed fleet replacement program commences".
The exempted activity
The applicants seek two exemptions, namely
- Exemption from the provision of tram and light rail services to the public of Melbourne with respect to the physical ingress to (boarding) and egress from (alighting) vehicles used by the operator; and
- Exemption to redesigning safety zones ahead of the fleet replacement program.
Rationale for exemption
The rationale provided takes into account the following:
- The preferred option of introducing conforming trams rather than retrofitting trams
- The 'life' of the individual trams;
- The cost of replacement of the trams;
- The need to retrofit trams if exemption is not granted;
- The introduction of franchising of tram operation from 1999 and the periods of franchising being 7 years initially and then 15 years;
- The desire for the new franchisees to be free from complaints due to non-compliance with the DDA;
- The need to provide franchisees with clear understanding of capital costs associated with DDA compliance.
Guiding Principles
The development of disability discrimination legislation acknowledged that people with disabilities were excluded and discriminated against. All sides of parliament recognized this and recommended the 1991 Justice Statement that the Disability Discrimination Act be drafted and enacted. The Disability Discrimination Act 1992 acknowledged that access to transport had to addressed and made provision for the development of standards for public transport.
People with disabilities and their representatives across Australia have very clearly stated that there should be no further weakening of the current Draft Standards. Many consider that there have already been far too many compromises referring to such things as:
- the twenty year implementation period;
- only one seat on buses with a seating capacity under 33; and
- the "unjustifiable hardship" and "equivalent access" clauses.
Access to public transport remains one of the most important issues affecting people with disabilities today. This has not changed since the International Year of Disabled Persons back in 1981, which is 18 years ago.
When the Draft Standards were finalized, the stakeholders, including the Victorian Government representative, agreed to them. It was agreed that the review process allowed for future modification to standards. It was agreed that there would be no exceptions to the Standards because the equivalent access and unjustifiable hardship clause already covered those situations.
At the Regulatory Impact Statement consultation workshop in Hobart, participants moved the following unanimous resolution:
The meeting reiterated strong Standards in their present draft form are required; that their integrity must be maintained; that they must not be watered down or compromised in any way; that the draft Standards will provide long term benefits for the whole community; and that there must not be any attempt to extend the 20-year implementation timetable proposed in the Standards by way of amendment.
This reflects the view of people with disabilities Australia-wide at Regulatory Impact Statement consultations.
Australia has decided through the enactment of the Disability Discrimination Act that it is the community that must make adjustments to facilitate the integration of people who have disabilities, and that integration is not the responsibility of the person who has a disability. By extending the implementation timetable those people who have disabilities a condemned to a substantial part of their lifetimes when they cannot access the community in ways available to persons without those disabilities. 30 years is a long time, it constitutes more than a third of life expectancy. For many people who have disabilities it may constitute the majority of the time remaining to them.
Matters requiring further explication
The application raises issues and questions for which the Commission should seek resolution in assessing this application for the exemption. These are:
- There is no analysis in the application of the effect of the 10 year delay on the full introduction of accessible trams on the lives of people who have disabilities. There is no attempt in the application to examine those adversely affected by the exemption.
- This failure of analysis betrays a bias in favour of financial concerns against human resource and quality of life concerns (issues at the core of the Disability Discrimination Act 1992). Accordingly the Commission should be circumspect of the financial determinism of the application and should require rigorous proof of any financial arguments put to it by the applicants. In this context we note that there is no attempt to examine the financial benefits for the Victorian community arising from improved access, such as employment for people who have disabilities.
- If the disability standards are to be proclaimed in early 1999 (page 6 of application), is there any advantage in granting the exemption as it would no longer apply? If the standards are proclaimed the new franchisees would not be able to avoid complaints and would need to plead undue hardship as is currently the case.
- If the exemption were granted, would that be an inducement to the Victorian Government to scuttle the introduction of the Public Transport Standards as it would benefit from their not being proclaimed?
- How is the replacement of the trams funded? Does the Victorian Government or the franchisee fund it? This is relevant in order to assess who is responsible for the replacement of the trams. If it is the Victorian Government then the cost will not be met from the receipt of fares but will be derived from general revenue. This will differ if the franchisee is responsible. Or can there be joint funding of the new trams?
- The applicants justify their timetable for replacement based on the expected 'life' of the trams. But is this a Holy Grail? The Commission should seek information on the current value of the stock, depreciation and any loans outstanding for the acquisition of the stock. The Commission should be made aware of the value the stock may have if sold overseas and how that may off-set the cost of acquisition of the new trams.
- If the Victorian Government financially benefits from the privatisation of the trams, the Commission should be made aware of such benefits and whether that money should be used to upgrade the system through the purchase of accessible trams.
- One of the arguments put forward for the privatisation of the public transport system in Victoria is to enable the introduction of new capital to upgrade infrastructure. How is this concretized in the trams system and how does this affect the purchase of new accessible trams.
- The Commission should be aware that the Victorian Government's credit rating has been elevated to AAA1. The Victorian Government may be in a financial position to purchase the new trams prior to the old stock wearing out.
- Whilst the timetable for replacement of existing trams extends the period for compliance by 10 years, the $1 billion is paid out in irregular periods. For instance between 2004 and 2009 $124 million has to be found, between 2009 and 2014 $388 million has to be found, yet between 2014 and 2019 only 70 million is required. Would it not be simpler to stagger the introduction of the new trams in a way that would alleviate the burden of some years and spread it evenly. This would also stagger the burden when these new trams come to the end of their 'lives'.
- It could be a term of the franchise agreement between the Victorian Government and the franchisee that the retro-fitting of trams is not permissible. If the franchisee were to retro-fit the trams rather than purchase new trams (if that is its responsibility) it could be made a breach of the agreement and lead to penalties under the agreement such as would deter a franchisee from pursuing such an approach.
- The assertion of $82 million as annual income from trams needs to be proved. This figure could not apply for the 20 or 30 year period being considered and may not take into account the growth of patronage due to the services being accessible. The Commission should request detailed modeling.
- The Commission should be appraised of the cost of alternatives to tram access, such as the use of taxi services. The diminution of the use of these services and consequent savings should be factored into the equation of the financial viability of introduction of the new trams within 20 years.
- The applicants fail to provide any analysis of the probable impact of new technologies and cost reductions resulting therefrom over the next 20 years. Further the use of low floor technology is widespread in Europe and the United States which may lead to lower production costs. The Commission should examine the impact of these.
- Low floor technology is not introduced worldwide solely for the purpose of enabling people who have disabilities access to transport. It is recognized as benefiting the whole community. The Commission should be aware of such benefits and how this affects the financial viability of the 20 year schema for the introduction of new trams.
- The draft standards on Public Transport state: The Standards have adopted the provision for unjustifiable hardship from the Act in preference to prescribing exemptions. This is consistent with the performance-based approach of the Standards.
Philip Grano
Kevin Murfitt
Villamanta Legal Service