NSW
Disability Discrimination Legal Centre Inc
Submission
to the Human Rights and Equal Opportunity Commission
In
response to
Notice
of application for temporary exemption under Disability Discrimination Act
section 55: Olympic Roads and Transport Authority
Dated: 13 June 2000
Introduction
The NSW
Disability Discrimination Legal Centre Inc (DDLC) welcomes the opportunity to
comment on the application by the Olympic Roads and Transport Authority (ORTA)
and commends the Human Rights and Equal Opportunity (HREOC) for committing to a
process of public comment in relation to such applications.
DDLC
provides legal advice and assistance to individuals who face discrimination on
the basis of disability; community legal education to raise awareness of rights
under anti-discrimination legislation and give advocacy skills for pursuing
those rights; and policy analysis and comment with a view to establishing an
environment in which people with disability can achieve their rights. In the
past financial year, DDLC provided detailed advice to approximately 521 people
and information to another 1019. Access
to transport is a significant issue that DDLC is asked to advise on and provide
information about.
DDLC
understands that organisations such as People with Disabilities (NSW) Inc are
making submissions on behalf of their members. While DDLCÕs Management
Committee reflects the sector, DDLC is a community legal centre and therefore
makes its comments from its experience as advocate for people with disabilities
and not as the voice of people with disabilities.
Summary
of Response
It is our
submission that the exemption should not be granted at all or at least not
without considerable additional conditions.
While DDLC acknowledges the importance for people with a disability to
access the Olympics and Paralympics, there are considerable problems with the
application.
The reasons
in summary are that:
¥ to grant the
application is not in accordance with the Objects of the Disability
Discrimination Act 1992 (DDA);
¥ there is insufficient information for HREOC to properly
make a decision to grant the exemption;
¥ there is an inherent delegation of authority by HREOC to
Bus 2000 Ltd which it is not lawfully able to do; and/or
¥ if the exemption was to be made it would require
substantial conditions attached to it
Background
Bus access
has had an important civil and human rights role throughout the last century
which can be seen in the civil rights movement in the United States. The issue
of accessible buses is one of long standing. There is a strong message in the
photograph of the late Ian (Mini) Cooper protesting in his wheelchair in front
of a 426 bus.
There is a
draft Accessible Public Transport Standard waiting to be adopted and
implemented under the DDA. Agreement on the contents has been reached but the
New South Wales Government has been resisting the formal establishment of the
standard unless the Commonwealth Government contributes to the costs involved
in meeting the standard. The private bus company lobby has been instrumental in
encouraging the delay.
The NSW
Government has known that Sydney was to host the Olympics and Paralympics since
1994 and indeed, one would have supposed, ought to have considered transport
issues even earlier when bidding for the Games was being planned. It was made
clear in 1996 that transport had been a major problem at Atlanta and that
careful planning would be needed for Sydney.
That accessible transport would be needed therefore would have been
clear to the Government and its agencies at all relevant times. Disability sector
organisations have repeated that this would be a major issue throughout the
period. We understand the Disability
Council of NSW for instance has previously been consulted by ORTA and this very
issue was raised.
There are
81 low floor buses that currently belong to the State Transit Authority that
could have been retrofitted but have not.
That one
private bus company has some 19 accessible buses but is not using them at this
stage.
Bus
operators other than those state agencies in relation to which ORTA has
acquisition powers are not required to provide buses and will only do so for
financial reward.
We are
aware that the Olympic Coordinating Authority (OCA) is indicating discreetly to
people with disabilities that they should not rely on taxi services during the
Games periods. It is our understanding that many taxis will be attracted to
what is understood to be a more lucrative general business during the
Olympics. The accessible taxi service
is at the best of times problematic, expensive and not universally available.
People with
mobility impairments have few other options with regard to transport as opposed
to members of the public generally.
Thus while other members of the community may be able to make other
arrangements for the Games periods, the degree of forebearance and sacrifice being
asked of people with disabilities is greater and in many cases is
unsustainable.
The ORTA
application
The ORTA
application has the following weaknesses:
1. The application provides no detail of
the buses, services and routes to be affected by the removal of buses and it is
our understanding ORTA cannot give that at this stage as it is a matter of
commercial tender to Bus 2000 Ltd. The only provision in this regard is to
provide the list to HREOC once the selection of the buses is made.
2. The application does not provide any
details of the parties, other than certain named state agencies, on whose
behalf it is lodging the application but only describes a generic class of
possibles being "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."
3. The application does not provide a
clear definition of what activities are to be exempted. Is it to be just the
non-provision of a usual service provided by a particular bus provided to ORTA
or is it more generally across disrupted services? For example does it exempt
the company because it has withdrawn a non-accessible service, in a way which
discriminates against a child with an intellectual disability, to put it on the
route from which the accessible service was removed. This would be an
excessively wide exemption.
4. ORTAÕs application is so worded as to
exempt it in so far as it is also a service provider. There is certainly no
basis for this as it has a responsibility to provide accessible services
according to its own application.
5. It is understood that the bus tendering
process will be a commercial arrangement through Bus 2000 Ltd. In the
circumstances it cannot be clear that the distribution of buses will spread in
the way ORTA suggests, that is across the whole Eastern seaboard of Australia. It
could be that all the accessible buses from a particular region will be taken.
6. Similarly it is not at all clear how
ORTA intends to carry out its statement that bus providers will be required to
provide alternate arrangements. Is this contained in a series of agreements
between ORTA and Bus 2000 Ltd and then the bus providers. Has ORTA provided
copies of those agreements to HREOC? How will ORTA enforce the agreements and
arrive at decisions about the following matters:
¥ determine
alternatives are real/appropriate;
¥ that the alternatives actually happen;
¥ that the alternatives are adequately made known; and
¥ enforcing the agreement.
7. ORTA has not conducted consultation on
this application with relevant disability organisations. It has to our knowledge
provided one briefing which was more to the effect that this was going to
happen, not what are the issues involved which can be addressed.
The Law
The objects
of the DDA are set out on section 3
(a) to eliminate, as far as possible,
discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access
to premises, clubs and sport; and
(ii) the provision of goods, facilities,
services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth
laws and programs; and
(b) to ensure, as far as practicable, that
persons with disabilities have the same rights to equality before the law as
the rest of the community; and
(c) to promote recognition and acceptance
within the community of the principle that persons with disabilities have the
same fundamental rights as the rest of the community.
The
exemption function provided in s55 needs to be exercised in light of those
objectives. Therefore, a granting of an exemption under s 55 must in some way
see a movement towards eliminating discrimination, achieving the same rights of
equality and promoting recognition and acceptance within the community of the
principle that persons with disabilities have the same fundamental rights as
the rest of the community.
In
exercising a discretion in this context, the decision maker must consider all
relevant facts and not take into account irrelevant ones. There is contained
within this that the decision will be exercised based on information that is
adequate to support it.
HREOC's
intended decision and reasons:
Coomissioner
Innes has indicated he intends Òto recommend to the Commission that an
exemption be granted as applied for, with the specification that the exemption
applies only in relation to the transfer of buses from other services to
Olympic and Paralympic service and does not affect the obligations of relevant
operators and authorities under the DDA in other respects.
This
proposal to grant an exemption in these terms is made on the basis that it
appears to (me) that to do so would be consistent with and would promote the
object of the DDA to eliminate discrimination as far as possible. This view is
based on the reasons and material provide by ORTA in its application and in
particular on the following considerations.
¥If an
exemption is not granted, bus operators who have brought accessible vehicles
into operation face a potential liability (in making those vehicles available
to ORTA and therefore temporarily withdrawing them from other services) which
is not faced by operators who have not made the same progress in providing
non-discriminatory services (and who therefore have no such vehicles to provide
to ORTA). It is appropriate for the Commission to use its exemption power to
ensure that the DDA provides incentives rather than disincentives to measures
to achieve access and equality.
¥The
potential complaints under the DDA which this exemption would preclude would,
in essence, be concerned with which services accessible buses should be applied
to in the relevant period, rather than with whether and at what rate operators
should be required to acquire and deploy accessible vehicles. I endorse
the view previously expressed by the
Commission, in its reasons for granting an exemption regarding Melbourne trams,
and by the Disability Discrimination Commissioner, in her decision on a complaint regarding access to Summer Hill
railway station, that the Commission is not best placed to decide issues of
allocation of accessible services as
between different locations. The
objects of the DDA are best served if these issues of allocation are determined by operators in consultation
with users of services.
The
intended decision is flawed for the following reasons:
1. HREOC does not have enough information
on which to base its decision. There is inadequate information in the
application as to:
¥ Parties;
¥ Services, routes
¥ Number of people
affected, the nature of the way in which they will be affected and the degree
to which they will be affected.
¥ The alternatives that are available or will be made
available to people affected.
¥ The manner is which the provision of alternatives will be
judged as adequate or provision policed.
2. HREOC will in effect be delegating its
responsibilities to decide exemptions for individual bus companies at best to
ORTA but more likely to Bus 2000 Ltd which has a commercial agenda. (HREOC is
being asked to accept on faith that alternatives will be made and that the
companies are indeed ones who have made an effort to comply with the DDA.) The
DDA does not provide power for HREOC to formally delegate such a function and
it should not be done by stealth.
3. To reward those companies who have
aquired some accessible buses (still far below what is necessary) is rewarding
those companies who have not failed as far as others have failed to comply with
the intent and objectives of the DDA. This has been likened to rewarding a
burglar for only stealing things from a house they have broken into but have
not vandalised. In addition it rewards poor planning on the part of ORTA and
the NSW Government. To grant the exemption provides a model of a way out of
compliance for those who have not adequately and with due diligence tried to
meet their responsibilities.
4 It is common in considering law where
two equities conflict to consider who should have the benefit. Here people with
disabilities who rely on buses on a regular basis for maintaining their
livelihoods, their education, their health and their family and cultural
networks are being required to forgo the service for people accessing and
participating in a special event which might be regarded as an optional extra.
The reason they are being asked to forgo this is to:
¥ Cover for poor
planning by the transport providers
¥ To
showcase to the World Australia's provision of accessible services (a contradiction in terms in the circumstances)
¥ Because other
people in the community are also being asked to forgo usual services.
This fails
to take into account the lack of alternatives to people with a disability and
the degree of impact the exemption will have on those trying to go about their
daily lives. In the circumstances it is arguable that the lack of services
should fall to those who are participating in optional activities and that the
responsibility for this should fall to those who failed to do adequate
planning. Therefore ORTA should bear the cost of made out complaints against
it.
5. ORTA has argued that this is not a
diminution in the status quo. This is
not the case for those individuals affected.
They do indeed experience a reduction in the status quo.
6. HREOC appears to have accepted that
this is merely a reallocation of resources for which it is not the best judge
of appropriateness. Yet on the other hand HREOC is placing some reliance on the
showcasing of accessible services as furthering compliance and is thus making
an implicit assessment that it is more appropriate to have the accessible buses
available for the Games period. In any
case this application can be distinguished from situations where there is an
overall plan to move towards compliance and it is a question of which bits of
the service are upgraded first. In
those circumstances there is an assumption that the plan will increase the
overall amount of accessible transport. This application in effect is about
reducing current services or at best about re-organising them and is not
against an overall backdrop of increasing services.
Matters
to be addressed include:
If the
following matters need to be addressed before HREOC could exercise its
discretion within the DDA:
¥ Details of which
bus companies, geographic areas, routes and services will be affected.
¥ Details of what alternatives will be put in place in
which areas and for which people and guarantees that they will be so provided
¥ All current low floor buses in the control of the NSW
Government be retrofitted immediately so as to be accessible for people with a
disability.
¥ All accessible buses not currently in service be placed
into service immediately as a demonstration of their bona fides in achieving
compliance.
¥ That the bus authorities and companies covered by the
exemption agree to develop action plans, which include measurable targets
towards achieving compliance, under the DDA in consultation with people with
disabilities.
¥ That the exemption would be limited to the particular
accessible services that are removed with the withdrawal of a bus, that is the
bus operator must meet its responsibilities to all other users.
¥ That there is no exemption to ORTA in its operations as a
service provider in that it has itself acknowledged this exemption relating to
the acquisition of buses is sought to enable it to meet its responsibilities in
Sydney.
¥ That no community transport buses will be included in
those provided to Bus 2000 Ltd or ORTA.
Further the
NSW Government (of which ORTA is statutory authority) ought to give a
commitment to applying the Draft Accessible Public Transport Standard to all
bus companies providing public transport in NSW from an early implementation
date and at an accelerated timetable and further use its best endeavours to
ensure that the Draft Standard is established under the DDA regardless of
whether the Commonwealth Government provides funding.