Pursuant to section 55 of the Disability Discrimination Act 1992 (DDA), the Olympic Roads and Transport Authority (ORTA) submits this application seeking exemption from section 24 of the DDA.
This application is submitted on behalf of:
ORTA, a statutory body representing the Crown in the right of New South Wales, established under the Olympic Roads and Transport Authority Act 1998 (NSW);
The New South Wales Department of Transport, the Queensland Department of Transport, the Australian Capital Territory Department of Urban Services and the Victorian Department of Infrastructure.
Bus 2000 Ltd [ACN 089 305 260], a company limited by guarantee, established to procure (under contract with ORTA) the required numbers of buses, coaches, drivers and support staff for the Olympic and Paralympic bus task;
Public and private bus operators in New South Wales, the Australian Capital Territory, Queensland, Victoria and South Australia from whom ORTA and Bus 2000 Ltd will be procuring accessible buses during the Olympic and Paralympic Games periods.
Background to the Application
ORTA was created by the Government of New South Wales specifically to meet the transport demands of the Sydney 2000 Olympic and Paralympic Games (the Games), in recognition of the need for a single body to co-ordinate the planning and delivery of Olympic and Paralympic transport services.
ORTA is responsible to the Government of New South Wales for the co-ordination of public transport associated with Games-related movements such as for spectators, as well as non-Games related public transport such as the movement of commuters to and from work.
ORTA is also responsible to the Sydney Organising Committee for the Olympic Games (SOCOG) for planning and co-ordinating transport for members of the Olympic and Paralympic family, including athletes, officials and accredited media. These services must meet SOCOG’s and the Sydney Paralympic Organising Committee's (SPOC's) legally binding obligations both to the International Olympic Committee and the International Paralympic Committee under the contracts for the staging of the Games.
The Olympic Games are to be held between 15 September 2000 and 1 October 2000. The Paralympic Games are to be held between 18 October 2000 and 29 October 2000. However, Games bus services will commence on 2 September 2000 when Olympic athlete and official services begin (there will be some limited workforce services beginning in August). Services will continue until approximately 4 November 2000.
The provision of bus services for Olympic and Paralympic officials, athletes, spectators and accredited media includes the provision of accessible bus services for people with a disability. ORTA is committed to ensuring that people with a disability have equal access to the Games as the rest of the community.
In order to provide accessible bus services for people with a disability, ORTA will need to procure a significant number of ultra-low floor and accessible buses from both public and private bus operators in New South Wales, the Australian Capital Territory, Queensland, Victoria and South Australia.
The requirements for accessible bus services vary between the Olympic Games and the Paralympic Games periods. During the Olympic Games, there will be national school holidays, and buses generally will be more readily available. Generally, the maximum number of accessible buses required is during the competition periods.
During the Olympic Games ORTA requires approximately 100 accessible buses to service numerous spectator bus routes and spectator shuttle bus services to venues.
The Olympic Games accessible bus requirements for spectators with a disability are significant, due to the sheer volume of Olympic spectators. By way of example, on peak days, it is expected that approximately 100,000 return bus trips will be taken on the Sydney Olympic Park spectator bus routes, and more than 50,000 return bus trips on bus shuttles servicing competition venues in western Sydney. Accessible buses are also required for shuttle services which will operate on the internal Sydney Olympic Park Loop Road, for workforce and spectators with a disability and/or mobility restriction during both the Olympic and Paralympic Games. Accessible buses may also be required as part of ORTA’s bus services to compliment rail in servicing Regional areas surrounding Sydney.
ORTA has estimated it will require approximately 200 accessible buses during the Paralympic period.
During the Paralympic Games period, ORTA’s ability to procure sufficient numbers of accessible buses will be further restricted, for the following reasons:
School terms will recommence nationally during the Paralympic period and student transport services must be maintained, thus restricting the availability of buses for ORTA services during the Paralympic Games.
In addition to services for spectators, accessible buses are also required for other Paralympic client groups, including athletes, officials and accredited media.
In addition to the requirements noted above, ORTA has engaged the State Transit Authority of New South Wales to provide natural gas powered, low floor accessible buses to operate within the Olympic and Paralympic Village, 24 hours per day (24 buses in the Olympic Village and 20 buses in the Paralympic Village). The Village is the main accommodation venue for Olympic and Paralympic athletes and some officials. ORTA has also issued a request for tender seeking bus services to operate on a loop within the Sydney Central Business District during the Olympic period between 13 September to 3 October 2000, free of charge to passengers. One-third of these services are to be accessible buses (ie approximately eight accessible buses).
Sourcing accessible buses for the Games
Accessible buses are currently used on regular services provided by bus operators. If operators commit to providing ORTA with the numbers of accessible buses ORTA requires for the Olympic and Paralympic transport task, bus operators may be temporarily limited in their ability to provide regular accessible services.
Bus operators who operate accessible vehicles are concerned that the deployment of accessible buses to ORTA and the consequential effect on their provision of regular accessible services to their usual passengers may be seen as contravening the provisions of the DDA.
Bus operators who operate accessible vehicles are nervous about the potential for complaints against them under the DDA, and the uncertainty that necessarily follows from this has made them extremely reluctant to commit to providing accessible buses to ORTA for use during the Games.
Many bus operators who operate accessible vehicles have expressed the view that they will only provide ORTA with accessible buses if the operator can be assured there will be no action taken against them in the event of a complaint.
There is also concern that if action is brought against bus operators under the DDA, ORTA, Bus 2000 Limited and the other government agency applicants may also be exposed to liability under section 122 of the DDA.
Circumstances to which exemption is sought
The exemption sought by this application will apply to the applicants in relation to the provision of accessible bus services:
for the period of ORTA’s operations in connection with bus transport services for the Olympic and Paralympic Games ie from the 2 September 2000 to 4 November 2000 (the Relevant Period), a total period of 9 weeks;
by private and public bus operators in New South Wales, the Australian Capital Territory, Queensland, Victoria and South Australia from whom ORTA and Bus 2000 Limited will procure accessible buses during the Relevant Period. ORTA will provide HREOC with a list of these bus operators once the sourcing of buses is completed.
It should be noted that the number of accessible buses ORTA requires will vary during the period of the Olympic and Paralympic Games.
Reasons why the exemption should be granted
Equal Access to the Games
It is ORTA’s aim to provide equal access to the Games for people with a disability and for people without a disability.
In the case of the Paralympic Games, people with a disability who will need access include spectators, athletes, officials and accredited media.
The accessible services ORTA will provide during the Games are directed towards ORTA satisfying the objectives of the DDA. ORTA’s commitment to equal access is also evident in ORTA’s Disability Action Plan submitted to HREOC (see paragraph 6.1 below).
Compliance with the DDA
ORTA submits that the applicants may be unable to comply with section 24 of the DDA for the Relevant Period because of the competing demands on the limited number of accessible buses available, as outlined in paragraph 5.4 below.
Demand for Services
The demand for Olympic spectator bus services is substantial, and ORTA must provide an appropriate level of accessible bus services on each of its spectator bus routes and spectator shuttle bus services. There will also be demand for accessible bus services for other groups besides spectators such as workforce and media.
ORTA estimates it will require at least 100 accessible buses for the Olympic Games bus transport task.
During the Paralympic Games, a key component of the accessible bus requirements is the transport of 1500 Paralympic athletes in wheelchairs. Accessible buses also need to be provided for Paralympic officials and accredited media, as well as Paralympic spectators.
ORTA estimates it will require at least 200 accessible buses for the Paralympic Games. Within the Paralympic period, the peak demand for accessible buses is during the competition period – 18 to 29 October 2000.
In addition, during the Olympic period, 24 accessible buses are required to operate within the Olympic Village and approximately 8 accessible buses are required for a free bus loop service in the Sydney Central Business District. During the Paralympic period an additional 20 accessible buses are required to operate within the Paralympic Village (see paragraph 2.12 above).
Limited supply of Accessible Buses
There are not enough accessible buses to provide both the accessible services ORTA requires for the Games and the regular accessible services which bus operators currently run.
At present many bus operators who have accessible buses are unwilling to provide them to ORTA for the period of the Games because of their concern over possible action under the DDA.
Accordingly, ORTA and Bus 2000 Limited are experiencing difficulties in procuring the necessary level of accessible bus services for the Games. For example, ORTA and Bus 2000 Limited have only been able to obtain a firm commitment for 60 accessible buses during the Paralympic Games.
It is submitted that the exemption being sought would give bus operators the necessary comfort to commit their accessible buses to the Games.
Bus Operators existing commitment to DDA
It is acknowledged that the number and distribution of accessible buses within Australia varies from area to area. There are a number of reasons for this.
Notwithstanding this, a number of bus operators are working towards meeting the objectives of the DDA in relation to the provision of accessible transport, including the acquisition of accessible buses.
Accordingly, it would be unfair for bus operators who operate accessible vehicles to be penalised by potential action under the DDA for allowing their accessible buses to be provided for the Games.
Showcase for Accessible Services
The Games are the largest sporting events in the world in the year 2000 and thus they are important international events.
The Games will showcase Australia’s ability to provide equal access for people with a disability. ORTA’s bus transport services for the Games can demonstrate to a worldwide audience that equal access services are both possible and necessary to remove discrimination against people with a disability.
However without an exemption under section 55 of DDA, it is believed that it will not be possible for ORTA to achieve the best possible standard of accessible transport for the Games. Therefore it is submitted that it is in the public interest that an exemption under section 55 be granted.
Effect on the Status Quo
Whilst accessible buses will be taken from their regular routes, they will be used intensively for people with a disability during the Games. Therefore whilst there will be some detriment to the passengers seeking to use regular services it will be offset by the benefit to those travelling to the Games, or as part of Games-time transport.
The exemption sought will technically work to the detriment of the status quo in accessible services by removing them temporarily from their regular routes. However, the effect on the status quo will be temporary, lasting for a 9 week period. Once this period is over regular services involving accessible vehicles will return to normal, consequently there will not be an ongoing interruption to the status quo. The demand for accessible buses during the Relevant Period is abnormally high, in order to meet the travel demands of the Olympic and Paralympic Games (see paragraphs 2.8 to 2.11 above). It is unlikely that such short term demand for special event accessible bus transport will be replicated in the foreseeable future in an Australian city.
In addition, by seeking to procure buses from South Australia, Victoria, Queensland, the Australian Capital Territory as well as New South Wales, ORTA is seeking to minimise the potential impact on regular accessible services in specific areas.
It is submitted that in light of the special nature and impact of the Games the operations of many businesses and services will be affected, not just accessible bus services. Examples of other transport related disruptions / restrictions during the Games period include:
Some peak hour passenger rail services on the Cityrail network will be altered during the Olympic Games, due to the need to service the huge spectator travel demand to Olympic venues, particularly Sydney Olympic Park. There will also be significant recreational travel requirements of tourists and sightseers.
Many traffic and transport restrictions will be in place in specific locations throughout Sydney during the Olympic Games, including priority measures for Olympic-related traffic and public transport, targeted lane and road closures, Olympic lanes on some roads, special event clearways, removal of on-street parking in some areas and changes to vehicle delivery times in Central Sydney.
Many regular services and facilities, both accessible and non-accessible, will be impacted upon by the Games because of the large numbers of people visiting Sydney. Businesses are being asked to alter their working practices to remove the need for unnecessary travel and to reduce congestion on Sydney's roads and transport system. They are also being asked to avoid deliveries on key roads at key times.
ORTA’s Disability Action Plan
ORTA supports the aims of the DDA and has submitted a Disability Action Plan pursuant to section 61 of the DDA. The action plan includes creating priority areas dealing with physical access to transport and infrastructure, promoting positive community attitudes, training staff and volunteers and providing information to the community about services.
It is submitted that the major performance indicator for ORTA’s action plan is ensuring that Games transport services for people with a disability are of the highest possible standard. ORTA is keen to ensure that all ticketed spectators with a disability or mobility restriction are able to access transport to Olympic and Paralympic venues and, in the case of the Paralympic Games, other client groups (eg athletes, officials and so on). In order to achieve this goal, ORTA must obtain an exemption from the DDA. This will then enable ORTA to procure the required accessible buses from bus operators.
Briefing of Peak Disability Groups
ORTA will be conducting briefings with peak disability groups to provide them with transport information and enable their feedback on ORTA’s exemption application.
The disability groups to be briefed include the National Disability Advisory Council, the NSW Disability Council, the Physical Disability Council of Australia, ParaQuad, the Physical Disability Council of NSW, the Australian Quadriplegic Association and People with Disabilities (NSW) Inc. These briefings will provide the opportunity for broad dissemination of ORTA’s accessible transport plans for people with a disability.
Mitigation of Impact on People With a Disability
It is submitted that it will be possible to mitigate the effects of the diminution in the level of existing accessible services to regular passengers by seeking accessible buses from operators in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. This will spread the effect over a wider area, thus limiting to the maximum extent possible, the adverse effect on regular services for passengers with a disability.
ORTA will also require that all bus operators wishing to be brought under the proposed exemption agree to take action to manage any local impacts. It is proposed bus operators will advertise any changes to accessible bus services in their local community in the lead up to the Games, and any alternative transport options proposed, by local newspaper advertisements, or by placing notices within the buses themselves and/or other satisfactory measures.
Urgent Application
Urgent consideration of this application is sought, for the following reasons:
The Sydney 2000 Olympic and Paralympic Games require enormous transport planning and organisation. With only four months left until the Games commence, there is little time left for ORTA to implement its current accessible service plans.
ORTA needs to be advised of the outcome of this application as soon as possible, in order to make any necessary amendments to its current transport plans (including finalising the list of bus operators to provide accessible buses to ORTA for the Games period), and then to proceed with the implementation of those plans.
The implementation of necessary mitigation measures in relation to regular accessible bus services needs to be commenced as soon as possible, to ensure that regular users have sufficient notice of any bus service changes, to enable them to plan their travel and related activities around these changes.
Other applications for exemption
ORTA is making the following concurrent applications for exemption to relevant anti-discrimination legislation. These applications address advising peak disability groups within each State:
Anti-Discrimination Act 1977 (NSW)
– exemption sought under section 126 from section 49M of the Act
Anti-Discrimination Act 1991 (QLD
) – exemption sought under section 113 from section 46 of the Act
Equal Opportunity Act 1995 (VIC)
– exemption sought under section 83 from section 42 of the Act
Equal Opportunity Act 1984 (SA)
- exemption sought under section 92 from section 39 of the Act
Discrimination Act 1991 (ACT)
– exemption sought under section 109 from section 20 of the Act
ORTA understands that the ACT Department of Urban Services will also be making an application under the Discrimination Act 1991 (ACT) – the exemption being sought under section 109 from section 20 of the Act