Physical Disability
Council of New South Wales Inc.
Submission to the Human
Rights & Equal Opportunity Commission
ORTA application for
exemption from the DDA
1.
Introduction
The Physical Disability Council of New South Wales (PDCN) is opposed to ORTA’s application for exemption from the DDA. In summary, we cite the following reasons for urging the HREOC to reject ORTA’s application for exemption.
· ORTA admits that there are insufficient numbers of accessible buses to meet existing demand for services plus the additional demand created by the Games.
· ORTA acknowledges that people with disability will experience detriment that will disadvantage them in relation to people with no disability. This would be a clear breach of the DDA. People with disability will face economic, social and transport hardships that will not be encountered by the comparitor in law (people with no disability).
· ORTA offers no evidence in its application that it has actively or passively sought to encourage, procure or provide an increased and sufficient supply of accessible buses to meet the general and Games requirements of people with disability.
· ORTA offers no guaranteed alternative solution to people with disability discriminated against, disadvantaged by or experiencing detriment as a result of ORTA’s last-minute plan to commandeer vehicles from existing fleets already acknowledged to be inadequate for existing, non-Games requirements.
· ORTA’s strategy for providing some accessible bus services for the Games perpetuates, re-enforces and encourages inactivity by current and future providers of bus services with regard to accessible bus services.
· ORTA’s request for exemption from the DDA is predicated upon discrimination in the provision of bus services.
· ORTA’s request is neither reasonable nor justifiable.
In the sections below we offer more detailed analysis of ORTA’s application and elaborate on our reasons for opposing the application.
2. Section 2.1
In Section 2.1 of its application for exemption to the DDA, ORTA acknowledges that it
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.
Nowhere in the application submitted by ORTA is any evidence provided or any suggestion made that since its creation, ORTA attempted to prepare for the transport demands of the Games, with specific regard to wheelchair accessible buses. No evidence is offered to show efforts of good faith by ORTA to increase the availability of wheelchair accessible buses. The failure of ORTA to act to prepare for needs that have been articulated by organisations of people with disabilities throughout ORTA’s entire existence is simply inexcusable, unjustifiable and constitutes a clear disregard for responsibilities and obligations which ORTA, its own application, concedes belong appropriately to ORTA.
In short, ORTA has not done what it was established to do in respect of citizens and visitors with disabilities and it has made no effort to fulfil its obligations. PDCN believes that failure in this area alone is sufficient grounds for denying the application.
3.
Section 2.5
In Section 2.5 of its application for exemption ORTA acknowledges that
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 acknowledges that meeting the transport needs of people with disabilities is not a marginal part of its remit. The provision of accessible transport is a component of ORTA’s core business purpose. The application for exemption by ORTA is an admission by ORTA that it has failed to deliver the required outcome of a core component of its business purposes. If anyone or any organisation should run the risks associated with such business failure it should be ORTA and its responsible officers. The burden of ORTA’s failure should not be borne by people with disabilities seeking to make use of public transport.
To grant exemption sends a signal that people with disability can be ignored at the last minute by any large organisation charged with planning a major public event. It is precisely such large organisations, charged with planning major public events, that should be told that they cannot ignore people with disabilities and be given the blessing by a human rights organisation.
4.
Section 2.6
In Section 2.6 of its application ORTA asserts
ORTA is committed to ensuring that people with a disability have equal access to the Games as the rest of the community.
ORTA’s assertion is pious, pompous rhetoric unless and until it is backed up with action or the presentation of a chronicled and verifiable history of ORTA initiated activity intended to secure a goal which ORTA can articulate but obviously fails to understand. PDCN believes absolutely that people with a disability should have access to the Games on the same bases as the rest of the community. PDCN also believes that people with a disability should have access to all of the civil society and the wider communities in which they live and work. PDCN is absolutely certain that one opportunity must not be created at the expense of the other. ORTA cannot be allowed to ‘rob Peter to pay Paul’, so to speak. If ORTA is so poorly organised and inefficient as to adopt this inadequate and shameful option of last resort to deal with the consequences of their own inactivity, neither ORTA nor its associates in this application, should be spared the possible consequences of their own inertia and complacency. HREOC should not grant ORTA’s application. To do so would legitimise inaction as a policy option and sanction the setting of the needs of one sector of the disability community at odds with those of others. That is not what the DDA is supposed to be about, in the view of PDCN.
5.
Section 2.6
In Section 2.6 of its application ORTA states:
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.
PDCN believes this section confirms ORTA’s inaction. ORTA has done too little too late to address a need that has been obvious to anyone with an interest in disability, transport and/or Games issues. The need has been evident since the Olympic and Paralympic Games were awarded to Sydney more than 7 years ago. The need has been evident since before ORTA was created. No evidence has been presented of any strategy, operational plan or activity initiated, subscribed to, supported or actioned by ORTA to provide an accessible bus service for people with disability. ORTA should pay for ORTA’s failure to act to anticipate wholly predictable requirements. People with disability who need and use accessible buses for activities not related to the Games must not be penalised by ORTA’s deliberate and conscious failure to procure or seek to procure accessible vehicle before this date or by means other than commandeering vehicles currently operating in public service.
6.
Section 2.11
In Section 2.11 of ORTA’s application ORTA asserts that
During the Paralympic
Games period, ORTA’s ability to procure sufficient numbers of accessible buses
will be further restricted, for the following reasons:
1. 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.
ORTA’s assertion is arrant nonsense and deliberately misleading, disingenuous and duplicitous word play that amounts to no more than smoke and mirrors. None of the restrictions on ORTA’s ability to fulfil its obligations to provide accessible transport are, can or should be attributable to seemingly external factors beyond ORTA’s control. The existence of schools in Sydney is not a reason ORTA will fail to meet its obligations as an Olympic Roads and Transport Authority. And the requirement to provide accessible transport resources for PARALYMPIC Games cannot be considered by any reasonable observer to be anything other than intrinsic to the whole idea of Paralypianism. ORTA is restricted in its capacity to provide accessible buses for the Olympics and Paralympics because ORTA did nothing about its obligation to provide those buses until it submitted its exemption. ORTA has offered no evidence in its application to support any other reading of its failure to act.
7. Section 3.1
In Section 3.1 of its application ORTA acknowledges:
Accessible buses are currently used on regular services provided by bus operators.
PDCN makes the simple and straightforward observation: that is exactly the point. It is because the accessible buses ORTA seeks to commandeer at the eleventh hour are, in ORTA’s words, “currently used on regular services provided by bus operators” that their application for exemption should be rejected. The buses are currently being used because the people with disabilities who currently use them need the accessible buses on which they travel. ORTA’s role was not to do nothing for several years before removing buses from public use creating a real detriment for people with disability denied access to them for the period of the Games. ORTA’s duty was to recognise that the Games create additional demand for services and to plan to meet that additional demand without any unreasonable negative consequences on demand that existed before the Games and which will continue after the Games. ORTA presents no evidence that it sought to deal with the problems of additional demand.
8. Section 3.2 to 3.4 inclusive
In Sections 3.2, 3.3. and 3.4 of its application ORTA admits that:
2. 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.
3. 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.
4. 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.
PDCN believes that the admission by ORTA of the profound reservations of bus operators about ORTA’s strategy of commandeering existing buses rather than planning to procure and provide additional accessible buses is confirmation from the applicant of their own inaction and failure. The conditional response of bus operators set out in Section 3.4 shows, in PDCN’s view, that bus operators understand the breach in legal rights they are being asked to condone and collude with. ORTA’s application and the view of bus operators (as reported by ORTA itself) concede that ORTA’s strategy is deeply flawed, morally unjustifiable and, without the acquiescence of the HREOC, almost certainly illegal. HREOC should not make legal that which is morally indefensible. ORTA’s application should be denied.
9. Section 5.3
In Section 5. 3 of its application, Demand for Services, ORTA provides information about the additional demand for accessible buses, which it correctly anticipates, will be required to meet the additional transport requirements created by the awarding of the Games to Sydney. ORTA offers no evidence or explanation of any effort on its part to increase the supply of accessible buses to meet the additional need that could be and was foreseen. PDCN is of the view that, given the acutely sensitive political circumstances of ORTA’s application, if they could have presented evidence of action taken in good faith ORTA would have presented the information. We fear that no evidence to show any attempt by ORTA increase the supply of accessible buses mans that no such attempt was made. Inaction should not be rewarded by exemption. ORTA’s application should be refused.
10.
Section 5.4
In Section 5.4 of its application, Limited supply of Accessible Buses, ORTA indicates that it understands that there exists a shortage of accessible buses generally. Given that ORTA concedes its understanding that demand will increase (see section 5.3 of its application) ORTA is clearly acknowledging that current supply does not meet current demand and cannot, therefore, be expected to meet additional demand. Specifically, ORTA concedes (in its own application, Section 5.4.1) that
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.
ORTA is unambiguous in stating the problem. ORTA clearly understands the current inadequacy of provision of accessible buses. Nowhere in its application does ORTA offer any evidence of any sort that at any time of having sought to anticipate and/or take action to overcome the difficulties created by insufficient supply in relation to anticipated demand. ORTA appears to have placed the under-supply of accessible buses in the ‘too hard basket’ until the very last minute before presenting a ‘fait accompli’ to the HREOC, people with disability and the communities of Australia from which it wishes to commandeer a face-saving solution.
11.
Section 5.6
PDCN believes that Section 5.6 in ORTA’s application, Showcase for accessible services, is wholly irrelevant to any of the issues relating to exemption from the DDA. PDCN agrees that the transport services of the Games ought to have been seen by ORTA as an opportunity to show the best of Australian achievement in the area of socially inclusive transport possibilities. ORTA should have, therefore, been instrumental over a sustained period of time in advancing the provision of accessible transport so that its showcase did not undermine the day to day reality or quality of life of people whose transport options ORTA now seeks to severely constrain, perhaps even remove entirely for more than two months. Sadly, ORTA appears to have taken no action and presents no evidence in its application to show that ORTA has contributed to create a showcase without detriment to existing service users.
In Section 5.6.2 of its application ORTA directly contradicts earlier arguments in its application. ORTA states:
The Games will showcase Australia’s ability to provide equal access for people with a disability.
However, as we have shown above, in Section 5.4.1 of its application ORTA concedes:
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.
Both statements cannot be true at the same time. Either ORTA is correct in section 5.6.2 in which case no exemption is required or Section 5.4.1 is accurate, in which case the Games do not offer the prospect of showcasing Australia’s ability to provide equal access. If Section 5.4.1 is accurate, and PDCN agrees with ORTA that it is, the application must be denied by the HREOC.
12.
Section 5.7
In Section 5.7.1 of its application ORTA states that;
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.
PDCN makes two observations with regard to this section. Firstly, ORTA concedes that its strategy creates detriment for Australian citizens and visitors. The requirements of the DDA to protect the rights of Australian residents, citizens and visitors should not be waived in the face of detriment admitted before the event. Secondly, ORTA seeks to compare apples and pears by setting the detriment of one group against the potential benefit of another group. We believe that this is neither a valid or acceptable comparison under the terms of the DDA. As we understand it, the DDA requires a comparison between people with disability and people with no disability. HREOC is required to make that comparison, no other. In the section above ORTA admits that its action will create detriment for people with disability when compared to people with no disability. That seems to PDCN to be an admission by ORTA that it intends to discriminate against people with disability. HREOC should not release ORTA from the consequences of its intention, stated above, to create detriment and to discriminate against a section of society deemed to be protected by Australian law, in this instance the DDA.
In any case, ORTA offers no evidence of
having estimated the benefits and detriment, and therefore there is no evidence
to show that “some detriment” will be offset by unquantified “benefit”. How
does ORTA know that the benefit will be greater than the detriment? How many
people will benefit and how many will lose? What will be the losses of the losers
and the benefits of those who benefit?
13.
Section 7
In Section 7 of its application, Briefing
of Peak Disability Groups, ORTA states
5. ORTA will be
conducting briefings with peak disability groups to provide them with transport
information and enable their feedback on ORTA’s exemption application.
6. 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.
PDCN wishes it to be made known that up to and including Monday, 13 June 2000 no representative of ORTA has made any contact, verbally, in writing, electronically or in person with any person representing the Physical Disability Council of NSW. PDCN has not been briefed by ORTA, we have been provided with no transport information by ORTA, our feedback on ORTA’s exemption application has not been sought by ORTA and we have not been included in any ORTA briefing of any sort.
14.
Section 9
In Section 9 of its application, Urgent Application, ORTA submits arguments in support of its claim that
Urgent consideration of this application is sought, for the following reasons:
PDCN believes it is important to recall a few key dates from the chronology of events. Specifically,
· Work on Sydney’s bid to host the 2000 Olympics commenced at least as early as 1991.
· The International Olympic Committee made the public announcement that Sydney would host the 2000 Olympic and Paralympic in September 1993. The fact that the Games are coming to Sydney is neither a recent revelation nor has it been a secret withheld from transport planners.
· The Act creating ORTA was approved in October 1998.
· The Olympics are due to take place in September 2000.
· The Paralympics are due to take place in October 2000.
· ORTA’s application to HREOC was received by HREOC on 26 May 2000.
The timetable above does not support ORTA’s claim of urgency. It does suggest, however, that for most – virtually all – of the period since the Games were awarded to Sydney in 1993 the issues of accessible transport have been ignored. The inaction and delay of ORTA undermine their assertion that their need was unforeseeable, urgent or justifiable. PDCN believes that HREOC should refuse to grant ORTA the exemption from the DDA that it seeks.
Dougie
Herd
Executive
Officer