PEOPLE WITH DISABILITIES (NSW) INC
For further
information contact:
Phillip French
Executive
Officer
People with
Disabilities (NSW) Inc
PO Box 666
Strawberry
Hills NSW 2012
Telephone:
(02) 9319 6622
Facsimile:
(02) 9318 1372
Telephone
Typewriter: (02) 9318 2138
12 June 2000
1 About People with Disabilities (NSW) Inc 3
2 PWD’s
interest in this issue 3
3 PWD’s
position on ORTA application in brief 4
4 HREOC’s
power to grant this application 5
5 The
merits of the application 8
6 Who
should bear the loss? 10
7 Terms
and conditions of an exemption 11
8 Conclusion 12
1.1
People with
Disabilities (NSW) Inc (PWD) is a peak, state wide, cross disability, advocacy
organisation association located in NSW.
Its’ primary membership is constituted by people with disability and
organisations constituted primarily by people with disability. PWD also has a large associate membership of
individuals and organisations committed to the disability rights movement.
1.2
The mission of
the Association is:
To
be the leading NSW disability peak organisation of and for all people with
disability, advocating in highly effective ways for the realisation of a socially
just, accessible and inclusive community in which the human rights,
citizenship, contribution and potential of people with disability are respected
and celebrated.
1.3
PWD is the
primary NSW organisational member of Disability Australia Inc, an equivalent national
body, which is in turn, the Australian member of Disabled Peoples
International. Disabled Peoples
International is a major international non-government organisation constituted
by national organisations of people with disability from more than 160
countries. It has observer status on a
number of major United Nations committees and agencies.
2.1
PWD’s interest
in this issue may be briefly summarised as follows:
2.1.1
People with
disability regard accessible public transport services as a fundamental human
right. Accessible public transport
services are a condition precedent to the exercise by people with disability of
other internationally recognised human rights, eg the rights of freedom of
association, freedom of movement, the right to a decent standard living, and to
the absence of discrimination in employment etc. PWD has a central role in promoting and protecting the human
rights of people with disability in NSW.
2.1.2
Many hundreds
of PWD’s members require accessible public transport services in order to carry
out essential aspects of their daily lives. This includes such basic life
activities as travelling to work, shopping for necessities such as food,
attending medical and dental appointments, and visiting family and friends. The
lack of availability of accessible public transport significantly contributes
to the reduced social participation and social isolation of people with
disability. In particular cases, it may also represent a significant threat to
their safety and well being. It is also
obviously a major source of everyday inconvenience to people with
disability.
2.1.3
For these
reasons, PWD is involved on a daily basis in efforts both at the individual and
systemic level to promote the introduction of accessible public transport and
to improve the compliance of transport operators with the provisions of anti-
and disability discrimination legislation.
PWD is also involved on a daily basis in efforts to ameliorate the
impacts on people with disability of the lack of availability of accessible
public transport services. In this
respect it is relevant to note that we have for nearly two decades been at the
forefront of the campaign for the introduction of universal accessible transport
systems.
2.1.4
A number of
PWD members participate in the NSW Department of Transport’s chief advisory
body on accessible transport, the Accessible Public Transport Forum (although
these are personal, not representative appointments). In this Forum, since 1994
our members and others have provided frequent advice to the NSW Minister for
Transport and to senior officials of the Department of Transport in relation to
the urgent need for NSW to plan and implement an accessible bus system in time
for the Olympic and Paralympic Games.
That advice has been largely disregarded.
2.1.5
PWD has also
participated since 1995 in a number of major advisory committees established by
the NSW Government in relation to the Olympic and Paralympic Games. These include the Olympic Coordination
Authority’s Olympic and Paralympic Access Committee, and its Olympic and
Paralympic Social Impacts Committee. In
each of these fora, we have constantly advised and agitated in relation to the
serious problems that we believed would unfold unless appropriate preparations
were made for accessible public transport during the Olympic and Paralympic
Games. These representations have been largely ignored in relation to
accessible bus services by those entities principally responsible.
2.1.6
More broadly,
it is also relevant to note that PWD has been among those groups at the
forefront of the campaign to develop and have adopted a national Accessible
Public Transport Standard under s 31 of the Disability
Discrimination Act, 1992 (DDA). This has included constant representations
to, and liaison with, the NSW Minister for Transport and senior officials of
various NSW transport authorities.
3.1.2 In the alternative, if HREOC does possess this power, in its discretion it ought not to exercise it in this case, as to do so would seriously comprise the objectives of the DDA, and undermine public confidence in its administration.
3.1.3 If HREOC nevertheless proceeds to grant the application, it ought to do so only on terms and conditions that substantially advance compliance with the DDA. The application as currently framed, and the single condition currently proposed by Deputy Commissioner Innes, does not advance compliance.
4.1 The discretion vested in the Commission under s 55 of the DDA must be exercised so as to further the objects of the Act, and cannot be exercised in a manner that would derogate from those objects. To exercise the discretion in a manner which derogated from, or did not further, the objects of the Act would constitute an error of law.
4.2 The objects of the Act are set out in section 3 and are (relevantly):
(a)
to eliminate,
as far as possible, discrimination against persons on the ground of disability
in the areas of … (ii) the provision of goods, facilities, services … 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.
4.3
It is relevant
to note that the DDA is remedial
legislation and its provisions ought to be interpreted liberally so as to give
the protected class the full benefit of its provisions.
4.4
In his
proposed recommendation to grant the exemption, Deputy Commissioner Innes takes
the preliminary view that an exemption would be “consistent with and promote
the object of the DDA to eliminate
discrimination as far as possible.” PWD
respectfully disagrees with this preliminary view.
4.5
Deputy
Commissioner Innes states that this view is “based on the reasons and material
provided by ORTA in its application” and in particular on the following
considerations:
·
(The first
consideration) “If an exemption is 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 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 equity.”
·
(The
second consideration) “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 whether and at what rate operators should be required to acquire
and deploy accessible vehicles. … 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.”
4.6
With respect,
the first consideration advanced by Deputy Commissioner Innes is a
mis-statement of the facts. All bus operators are obviously currently
potentially liable under the Act for a failure to provide accessible bus
services, particularly those that have not made significant progress in
providing non-discriminatory services. With respect to those bus operators that
have introduced accessible buses into their fleets, potential liability only
increases should their current accessible service delivery cease or fall to a
level where people with disability are treated less favourably than other
passengers. Nothing compels a bus operator that is currently providing
accessible bus services to comply with ORTA’s request. Should they choose to agree to this request,
so far as the policy of the Act is concerned, it is appropriate that they do so
only in circumstances where their current obligation to provide accessible
transport services can continue to be acquitted. Otherwise, it is in the public interest that they should
anticipate increased exposure to complaints of discrimination on the ground of
disability. The DDA was enacted to provide precisely such a deterrent to
discriminatory conduct.
4.7
Operators
currently providing accessible bus services ought not to be encouraged by the
potential grant of an exemption in this case to opportunistically take
advantage of lucrative contracts to provide accessible transport services
elsewhere to the detriment of their routine service delivery. Indeed, to permit this would be to promote
both the practice and the perception that accessible service delivery is a
waiverable, non core responsibility of public transport providers. This is a
seriously inappropriate “incentive” for the Commission to risk
establishing. In our view, such an
“incentive” would represent a substantial derogation from the objects of the DDA, in terms of promoting
non-discriminatory access and equality for people with disability, and it is
beyond the Commission’s power to grant an exemption in these circumstances.
4.8
With respect,
the second consideration advanced by Deputy Commissioner Innes is also a
mis-statement of the facts and the applicable law. The facts in this case are
clearly distinguishable from the facts in the Melbourne Trams and Summer
Hill Railway Station matters. In granting a temporary exemption in both those
cases, the Commission was able to rely upon the existence of a substantial
long-term plan by both applicants to increase the availability of accessible
public transport services. The
exemptions furthered compliance with the Act, in the sense that they provided
temporary relief from liability, until implementation of these plans could be
completed. The Commission did not
believe it was appropriate for it to adjudicate on the priorities set within
the plans, which read as a whole, would lead to overall compliance with the Act
within a reasonable period.
4.9
The facts are
entirely different in this case. The application is not contextualised in any
substantial long term plan to improve the availability of accessible public
transport services in NSW. On the
proposed expiry date for the exemption the number of accessible buses will be
the same as it is currently.
4.10
The
application submitted by ORTA is properly characterised merely as an
application to protect the interests represented by that application from a
complaint of disability discrimination arising as a result of a planned massive
disruption to accessible public transport services during the Olympic and
Paralympic Games.
4.11
In this case,
the Commission is dealing with a variety of undisclosed interests under the
umbrella of ORTA application who are merely seeking to take advantage of a
lucrative contractual offer without any concurrent commitment to increasing the
level of accessible public transport delivery.
The granting of an exemption under s 55 in these circumstances would
represent a substantial derogation from the objects of the Act, and in our
view, is beyond the power of the Commission.
4.12
We further
submit that it would represent the use of the power vested in the Commission
under s 55 of the DDA for an improper purpose.
4.13
Additionally,
we respectfully disagree with Deputy Commissioner Innes’ view that granting the
application will mean that the Commission is not involved in an issue beyond
its competence to assess; that is, the difficult issue of “allocation” of
accessible bus services. Plainly, the
granting of the exemption in the terms proposed will involve the Commission
directly in the decision as to where accessible bus services are allocated. ORTA has approached the Commission seeking
relief from the liability that will arise as a result of its clear plan to
divert accessible rolling stock from across the eastern seaboard and South
Australia to Olympic and Paralympic services. If such an exemption is granted,
the Commission will, in effect, be implicitly if not explicitly, sanctioning
this arrangement, perhaps even determining this outcome. Far from adopting a
neutral position with respect to the allocation of accessible bus services, the
Commission will be situating itself at the centre of the controversy, by
altering the balance of ‘externalities’ affecting this venture.
4.14
There are also
a number of technical faults with ORTA application which, in our view, prevent the Commission granting an exemption
under s 55 of the Act in the terms sought.
4.14.1
Paragraph
1.2.4 of ORTA application is stated in terms too general to satisfy the
requirements of s 55(1) of the DDA, which, properly construed, requires the
“persons” to whom an exemption is to be granted to be identified. The Commission is not in a position to
properly assess the application unless the identity of those interests sought
to be protected by the exemption are disclosed. If these interests are not precisely identified, any exemption
granted will be in terms too general to provide relief.
4.14.2
If the
Commission does not know who these interests are at the time it grants the
exemption, it will in effect be delegating its power to under s 55 to ORTA or
to Bus 2000 Ltd (who will at a later date determine who these interests are and
notify the Commission). The Commission
has no such power of delegation, and would make an error of law if it granted
the exemption on this basis.
4.14.3
The Commission
is not in a position to properly assess the merits of the application until the
particular services to be affected, and the manner in which they are to be
affected, are specified. This ought to
include an assessment of the number of people with disability who will be
affected, and in what ways. The
Commission ought also to have before it the precise details of mitigation
measures and any alternative transport options proposed (see paragraphs 8.1 and
8.2 of ORTA application) before determining ORTA’s application. In our view, the Commission does not have
power under s 55 of the Act to determine an application where so many of the
critical details remain abstract and undetermined.
4.14.4
We also submit
that it is unreasonable for the Commission to be seeking public comment on ORTA
application without this detailed information being available. Indeed, in our
view it is procedurally unfair for it to do so. In this respect the Commission
has a duty of inquiry that it must properly acquit. It would be improper for the Commission to merely accept the
generalised assertions of ORTA without testing the detailed facts upon which
these assertions are based.
4.14.5
In brief, the
rights conferred by the DDA can only
be modified or negatived under s 55 in express, precise terms for specific
purposes which further the objects of the Act.
Section 55 can not be used to rise above, or defeat, the policy of the
Act as a whole. It has a strictly confined purposive role.
5.1 In the event that the Commission does determine it has power to grant the application in the terms sought by ORTA, in our submission, in the exercise of its discretion, it ought not do so. There are a number of reasons why ORTA’s application is particularly unmeritorious.
5.1.1 The DDA has been in force since 1992 and for the entire period of ORTA’s existence. NSW submitted its bid for the 2000 Olympic and Paralympic Games after the enactment of the DDA. ORTA and the NSW Government therefore must be taken to have been on notice as to the requirements of the DDA from the outset.
5.1.2 The exemption sought by ORTA will likely result in major inconvenience to those people with disability who currently have access to accessible bus services. It will severely compromise their capacity to attend work, shop for basic necessities, attend medical and dental appointments, and visit family and friends etc.
5.1.3 The lack of availability of accessible public transport will also significantly contribute to the (further) impoverishment of people with disability as many can not readily afford, but have no real alternative but to use, expensive alternatives, principally specialised taxi transport. This is a very serious issue, given that many people with disability are on very low incomes; indeed, many live well below recognised poverty lines.
5.1.4 It is also relevant to note that, quite apart from its cost, the specialised taxi system provides a seriously substandard alternative transport service to people with disability, particularly in relation to customer service. This includes serious problems with availability of these services, customer comfort and safety, driver and call centre staff attitudes, and delayed arrivals. It is reasonable to envisage that these shortcomings, particularly availability and delays, will be particularly acute during the period of the Olympic and Paralympic Games, due to the increased demand generated by domestic and international visitors to Sydney.
5.1.5 It is acknowledged that people with disability involved in the Olympic and Paralympic Games will utilise those accessible bus services ORTA intends to redeploy during the Olympic and Paralympic period. However, we do not see any reason, in principle, why the interests of domestic and international visitors to Sydney during the Olympic and Paralympic period should take precedence over the interests of permanent residents with disability. Indeed it is likely that visitors will have higher incomes than many people who rely on these services for their daily existence. It may well be that they would be better placed to bear the inconvenience and additional costs of resorting to the specialist taxi system.
5.1.6 The NSW Government, the Department of Transport, and ORTA have been on notice since August 1994 that Sydney would be the site of the 2000 Olympic and Paralympic Games. In particular, the NSW Government has been on notice as to the need for major improvements to accessible bus services during the Olympic and Paralympic period as a result of advice provided by PWD and other groups in fora such as the Department of Transport’s Accessible Public Transport Forum, and the Olympic Coordination Authority’s Social Impacts and Olympic Access advisory committees among many other fora.
5.1.7 Had the NSW Government acted responsibly by developing and implementing plans to increase the availability of accessible public transport, ORTA would not be in the position it currently finds itself. In this respect we note that major Olympic infrastructure projects have been planned and implemented in the same period. The interests encompassed by ORTA’s application ought not now be entitled to claim relief from liability for a crisis in the availability of accessible public transport that was well within ORTA’s competence to avert, and which is otherwise entirely of its own making.
5.1.8 Although it is far from providing for the introduction of a universal transport system, we note that if the current draft Accessible Public Transport Standard been adopted in a timely way, accessible transport services in Australia would be in a significantly more advanced position. Indeed, it is possible that these advances may have been sufficient to avoid the position ORTA currently finds itself in.
5.1.9 In this respect we note that it is largely the interests represented by ORTA’s application that have been responsible for the delay in the adoption of the Standard, having vigorously resisted this measure through an intensive campaign of political representations.
5.1.10 In particular, we note that the NSW Government is the only State or Territory Government to continue to resist the adoption of the Standard, on the basis that the Commonwealth Government must first agree to fund its implementation.
5.1.11 We also note that the private bus industry, particularly through its industry association, continues to vigorously resist the introduction of the draft Standard.
5.1.12 While NSW and the private bus industry have been devoting their energies to resisting the adoption of the Standard, other State and Territory operators, notably in South Australia, have made very significant advances towards an accessible public transport system. The interests encompassed by ORTA application ought not now be rescued from problems which might have been averted had they conducted themselves in a more socially responsible manner.
5.1.13 The fact that sufficient accessible buses have not been brought on-line in a period in which NSW has nevertheless managed to plan and implement colossal other public infrastructure projects is a reflection of the low value that the NSW Government places on accessible infrastructure for people with disability. It would therefore be perverse in the extreme if a provision of an Act intended to eliminate discrimination, ensure equality, and promote recognition of the fundamental rights of people with disability, were used to provide relief in relation to this outrageous conduct. Such an eventuation would be incredibly alienating to people with disability and undermine public confidence in the administration of the Act.
5.1.14
As noted
above, the granting of the application will not result in any underlying
increase in the availability of accessible bus services. It will merely result in the diversion of
existing rolling stock from across the eastern seaboard and South Australia to
Sydney for the period of the Olympic and Paralympic Games. The application has little merit for this
reason.
5.1.15
There is no
evidence that ORTA has consulted with people with disability and their
associates in relation to its application for an exemption. In the days immediately following
applications for exemption being lodged with anti-discrimination authorities
around Australia, ORTA contacted PWD and offered to provide a briefing in
relation to the application. The mere
provision of information about action already taken does not constitute
consultation.
5.1.16
We are stunned
to note that ORTA’s application suggests that its proposed arrangements will
allow NSW to ‘showcase’ accessible bus services. In fact, NSW has very few accessible bus services, which is the
reason ORTA is compelled to source accessible buses elsewhere. NSW ought to stand condemned for this
fact. In these circumstances it would
be perverse for the Commission to use its power under s 55 to allow ORTA to
create an illusion to the contrary, so as to avoid international
embarrassment. This would amount to the
Commission implicating itself in a fraud on the international community. This
would be incredibly alienating to people with disability, and bring the
Commission into disrepute.
5.1.17
There is no
evidence that ORTA has attempted to resolve the crisis it finds itself in by
means other than the arrangement proposed in the exemption application. In particular, it is our view that NSW’s
more than 80 non-accessible low floor buses ought to be immediately
retro-fitted for accessibility, prior any consideration being given to
disrupting Australia’s public transport services in the manner currently
proposed by ORTA.
5.1.18
Additionally,
if the matters raised in section 4 (above) do not go to an error of law, they
ought to be taken into account in determining the merits of the application.
6.1 There is no doubt that ORTA is in a difficult position just months before the staging of two major international events. There is no easy solution to this problem, and it is clear that people with disability will be disadvantaged by whatever course is now pursued by ORTA.
6.2 However, it does not follow that ORTA, or the interests represented by ORTA application, ought to be relieved of liability under the DDA in relation to these difficulties.
6.3 Should the Commission intervene in this matter now and grant an exemption from the DDA under s 55 of that Act, it will in effect be confining the ‘loss’ associated with ORTA’s negligent and discriminatory conduct to people with disability. In our submission, it is not appropriate that this loss be confined to people with disability. Should such individuals endure less favourable treatment as a result of the arrangements proposed by ORTA, they ought to be entitled to claim the relief envisaged by the DDA.
6.4 It would not further the objectives of the DDA for ORTA to avoid liability for these claims. In our view the correct legal position would be for ORTA to bear this potential liability, whether it arises from complaints made by domestic and international visitors to Sydney who are unable to access accessible public transport services, or from permanent residents across Australia unable to access their usual services due to the diversion of local accessible rolling stock to Sydney for Olympic and Paralympic services.
6.5 Indeed, exposure of the interests represented by ORTA application to such liability is far more likely in the longer term to promote compliance with the objects of the DDA, than the granting of an exemption under s 55 of the Act.
6.6 It would operate as a deterrent to operators who continue to refuse to introduce accessible rolling stock into their fleets, and in particular, to the organisers of major events, who fail to make appropriate preparations for such events in terms of accessible transport infrastructure.
6.7 In our view the Commission, as the authority primarily responsible for promoting compliance with the DDA, ought to explicitly weigh up the compliance promoting effects of granting and exemption, versus not granting an exemption, in determining the merits of ORTA’s application.
7.1 If, in spite of the arguments advanced above, the Commission is minded to grant an exemption from compliance with the DDA to the interests represented by ORTA application, then in our view it ought to do so only on terms and conditions that explicitly advance the underlying level of compliance of bus operators with the objectives of the DDA.
7.2 Such terms and conditions are not set out in ORTA’s current application. Nor has the Commission sought the amendment of ORTA’s application to incorporate such terms and conditions, contrary to its published policy on the granting of exemptions under s 55 of the Act, and contrary to the function of s 55 within the scheme of the DDA read as a whole.
7.3 In PWD’s submission, if the Commission is minded to grant and exemption, it should only do so on the following terms and conditions:
7.3.1 That the NSW Department of Transport, and the bus operators participating in this project, agree to develop in consultation with people with disability action plans under s59-65 of the DDA in respect of their services. These action plans ought to set out detailed pathways for the upgrading of services to full compliance with the DDA in all areas of activity. These action plans would include appropriate target dates for the achievement of compliance. In the case of bus operators, it would include an appropriate target date for total conversion to accessible rolling stock within a 3-5 year timeframe.
7.3.2 That all non-accessible low floor buses in the possession or control of the NSW Government are retro-fitted immediately to provide for accessibility for people with disability.
7.3.3 That precise details about the operators and services to be affected are specified in the application, along with the details of mitigating measures and alternative arrangements, and the means by which these are to be monitored and enforced. (Once this information is made available the Commission ought to engage in a further round of public consultation before determining whether or not to grant the application.)
8.1
In conclusion, PWD does not believe
it is appropriate for the Commission to exercise its discretion under s 55 of
the DDA to rescue ORTA from the
disastrous situation it finds itself in with respect to the availability of
accessible buses just over three months from the period of the Olympic and
Paralympic Games. Moreover, we do not
believe it has power to do so.
8.2 ORTA has been on notice since August 1994 that accessible bus services would be totally inadequate to cater for the Olympic and Paralympic Games, unless it developed and implemented a substantial plan of action capable of increasing the number of accessible buses in Sydney. It did not do so.
8.3 In the period in which ORTA has been on notice, colossal Olympic infrastructure projects have been planned and implemented. In fact, many of these infrastructure projects have been completed ahead of time. The fact that accessible public transport has not received appropriate priority is a reflection of the value the interests encompassed in ORTA application place on the needs of people with disability. It is more than appropriate that these interests remain exposed under the DDA to the consequences of this course of conduct.
8.4 ORTA’s failure to act potentially gives rise to legitimate complaints of discrimination on the ground of disability from which the interests encompassed by ORTA’s application ought not to be protected, as a matter of public policy.
8.5 Compliance with the Act is more likely to be promoted if these interests are required to defend these complaints through the Commission’s usual complaint handling procedures, and if it comes to it, in the Federal Court. There is not a shred of evidence to suggest that compliance with the Act will be promoted by granting of ORTA’s application.
8.6 Indeed, in our view, the grant of such an exemption would significantly undermine the objects of the Act, and public confidence in its administration. Accessible public transport services are an important human right that ought to be protected by the Commission, not granted away in the cavalier and unprincipled manner suggested in Deputy Commissioner Innes’ preliminary recommendation.