SUBMISSION TO

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

 

 

 

 

ON THE

RECENT APPLICATION BY THE

OLYMPIC ROADS AND TRAFFIC AUTHORITY

FOR AN EXEMPTION UNDER THE

DISABILITY DISCRIMINATION ACT 1992

 

 

BY

ANTI-DISCRIMINATION COMMISSION QUEENSLAND

 

 

13 June 2000

 


Introductory Comments

 

On 26 May 2000 the Olympic Road Traffic Authority (“ORTA”) lodged a similar application for exemption to the Queensland Anti-Discrimination Tribunal Queensland seeking an analogous exemption pursuant to section 113 of the Anti-Discrimination Act 1991 (ADA).

 

The matter is before Member Tahmindjis of the Anti-Discrimination Tribunal Queensland.  During Directions Hearings on 6 June 2000, Member Tahmindjis set in place a time-table for considering the matter.  At those Directions, pursuant to section 113(2) of the ADA, the Member requested  me to “inqure into the application as[ I ] see fit and to make a recommendation about the application to the Tribunal on or before 7 July 2000”.  Obviously, with greater lead in time, this Commission will have more opportunity to refine many of the arguments contained in this submission for the purposes of making a recommendation to the State Tribunal. 

 

Nevertheless, the views expressed in this submission provide a preliminary indication of the type of recommendation that this Commission will be making to the Tribunal.   In the short space of time since receipt of the request under section 113, I have been liaising with key representatives of the disability sector in Queensland, senior members of Queensland Transport and the Brisbane City Council.  More formal consultations will take place prior to formalising  my position to the Tribunal.

 

In many respects the current exemption application lodged with the Human Rights and Equal Opportunity Commission (HREOC)  becomes quite academic in relation to  Queensland.  The key and critical issue for the Queensland community will be what this State’s Tribunal rules in relation to the  pending exemption application.  Even if HREOC proceeds with the preliminary recommendation by the Deputy Disability Commissioner, it will mean nothing in this State if the Queensland Tribunal refuses a reciprocal exemption.  Although constitutional questions may well arise in such circumstances they will be canvassed in full in the recommendation to the Queensland Tribunal.

 

Having said that, this submission is essentially one of principle to try to dissuade HREOC from continuing down the path outlined in the preliminary recommendation.  Whether the Commonwealth Commission does or does not grant the exemption is of little consequence to Queensland.  The critical issue in this State is what decision the Queensland Tribunal reaches. 

 

Refutation of the Arguments Outlined in the preliminary Recommendation

 

As I see it, there are essentially three arguments presented by the Deputy Disability Commissioner for proposing to recommend granting the exemption.  Each will be addressed in turn.

 

(1)               That the transfer of accessible buses from other parts of the country to Sydney for the Olympic and Paralympic Games would promote the objects of the Disability Discrimination Act.

 

It has long been established, through the Commonwealth Commission and most State Tribunals that exemptions should only be granted when the scenario could be characterised generally as a situation which further advances or promotes the general purpose of non-discriminatory principles. 

 

In Stevens & Others v Fernwood Fitness Centres Pty Ltd [1996] EOC 92-782, the Victorian Civil and Administrative Tribunal considered at length the question of exemptions.  In a joint judgement, President McKenzie, Members Morfui and Sadler ruled:

 

It is necessary for an applicant for exemption to show that there is at least an arguable case that the circumstances might constitute discrimination to which the Act would apply.  If this is shown, the Board will then ask; is the exemption appropriate in the light of the objectives and scheme of the Act?  In considering that question, the Board will, in addition to the particular circumstances of each case, take into account such matters as the reasonableness of the exemption sought and also whether, although not clearly falling within any of the statutory exceptions, the circumstances bear a close resemblance to any of those exceptions (see Broken Hill Smelters case, cited above; Re Girl Guides’ Association of Victoria, EOB of Vic, 25 July 1995, unreported, re Trustees Royal Freemasons Homes of Victoria, EOB of Vic, 19 October 1995, unreported; re Electoral Commissioner of Victoria, EOB of Vic, 3 November 1995, unreported).  Conversely, if exemption is sought for reasons wholly unrelated to the objectives or scheme of the Act (such as to obtain a commercial advantage), an exemption would be inappropriate (re: National Australia Bank Limited [1989] EOC, 92-248).

 

This view has been followed in a number of subsequent VCAT decisions, including the more recent ones in Doveton North Primary School [1999] VCAT 659,  Firbank Anglican School v Hilary Hunt [1999] VCAT 1354, City of Moonee Valley [1999] VCAT 655 and Kew Recreation Centre [1999] VCAT 656.   Although there has only been three exemption applications in the history of the Queensland Tribunal, those decisions reflect the general position adopted in the Fernwood case.  (See Secranna – where Member Keim declined to grant an exemption because the provision of the older persons retirement village in that case already invoked a special measures exemption; in the matter of an exemption application  by the REIQ for Schoolies Week and in the matter of an exemption application by the Women’s Legal Service.)

 

The exemption application to hand essentially involves the authorised withdrawal of existing buses out of certain parts of Australia for concentration into Sydney during the Olympic games.  I cannot see how in a holistic approach the Commission could arrive at a conclusion that this would further the objects of the Disability Discrimination Act which imposes a duty on the Commission under section 10 to ensure that its functions are conducted with regard to the principle that every person is free and equal in dignity and rights efficiently and with the greatest possible benefit to the people of Australia. 

 

Certainly the re-direction of buses to Sydney may well benefit people with disabilities in Sydney.  Within this jurisdiction, however, our main focus is in relation to service delivery to Queenslanders with disabilities.  I presume other states will likewise be concerned with people with disabilities in their state or territory.  I cannot see how a Federal organisation with a mandate to ensure that the best possible maximisation of accessible transport services to people generally throughout Australia can be supporting a differential concentration of services to one area of Australia at the withdrawal and expense of others in this country.

 

It is disappointing to see that a preliminary ruling has been made on such a deficient original application by ORTA.  In the short space available to me, my research has revealed that Queensland has an entire accessible bus service of approximately 183 buses.  The Brisbane City Council alone has a total of 80 accessible buses - 60 of which are the more up-graded accessible Volvo buses.  Brisbane City Council has advised that there is an intention to purchase an extra 50 buses, although that purchase will not be completed prior to the Olympic Games.  In other words out of a fleet of approximately 183 accessible buses in this state, 80 are concentrated in the South East corner in the Brisbane region.  This means that over 50% of the accessible buses in this state are dispersed outside of the capital state. 

 

Queensland is a vast State demographically.  In fact it is the only state where the majority of the population reside outside the capital city.  Additional information provided from ORTA indicates that they are seeking to extract some 25 to 40 accessible buses from Queensland.  This amounts to approximately 20% of all of the accessible available buses in Queensland for a period of two months – and over 50% of those accessible buses are outside the Brisbane metropolitan area. 

 

It is submitted that the Human Rights and Equal Opportunity Commission in its decision cannot, and should not, overlook the fact that there would be a potentially disproportionate level of disadvantage suffered by people with mobility impairments in this State, particularly in rural and remote parts of Queensland.  If the proposal involves the concentration and withdrawal of services outside of the metropolitan Brisbane area, then it is submitted that on the strength of ORTA’s own admission, this would amount to approximately half of the fleet service from the Brisbane City Council.

 

In looking at the accessible routes in Brisbane alone, there are approximately three running accessible services – the Great Circle, the Inner Circle and a pilot program running between Indooroopilly to the CBD.  There is also less limited services available to people in Chermside, part-time services in the Paddington area and East Brisbane.  By the 1994 Bureau of Statistics figures, people with impairments constitute approximately 10.5% of the broader community. 

 

In Cocks v State of Queensland our Tribunal President Atkinson, as she then was, indicated that those statistics should be treated conservatively because it does not take account of other people who have access concerns like parents with prams and the elderly.  Some more recent statistics take that figure up to as high as between 15% to 18% of people within the broader community who have difficulty in accessing public transport. 

 

The withdrawal of approximately half the Brisbane bus service would impose a significant hardship and withdrawal of potential quality of lifestyle service to people with mobility impairments.  If the application from ORTA is not confined to the Brisbane area and some of those buses are intended to be extracted from the more rural and remote parts of Queensland, then I dare say in those more remote parts of this State reliance upon accessible transport for some two months can significantly impact on the health, wellbeing and emotional contentment of people outside the capital city. 

 

I submit it is less an issue in New South Wales which does not have the same type of geographical dispersion and therefore has a greater access to other forms of transport. 

 

When analysing whether the exemption application will further promote the objects of the Disability Discrimination Act it is fallacy to overlook the different demography and ratio of accessible buses per capita.  In other words the withdrawal of approximately 20% of the accessible bus fleet from this jurisdiction for a period of two months could hardly be seen to be promoting the objects of the Disability Discrimination Act to all people throughout Australia.

 

(2)        The non-granting of an exemption application will place accessible service providers in a position of disadvantage vis-à-vis those service providers who have failed to provide an accesible service.

 

If I understand the point being made it seems that the Deputy Commissioner is attempting to argue that those service providers who discharge a social obligation by providing accessible services will be disadvantaged in terms of their bargaining power compared to the service providers who fail to provide any accessible buses at all. 

 

This argument contains a number of flaws.  In the first instance on the authority of Fernwood as quoted above, economic consideration or commercial advantage or disadvantage should not enter into the considerations as to whether an exemption application should be granted.  In the second place, in many respects, the comparative analysis between accessible service providers with non-accessible service providers is with respect, like comparing apples with oranges, in the bigger physical scheme of things.  In the first place, by the very fact that ORTA has seen fit to seek an exemption application before the Federal Commission, indicates that obviously demand of accessible buses certainly exceeds supply.

 

On economic principles alone this would mean that accessible fleet providers would command a higher lease-out rate than the non-accessible buses in any case.  If the Commission is concerning itself with ensuring that there is a level playing field in the commercial market between accessible service providers and non-accessible service providers, then due consideration must be given to the fact that an accessible bus fleet will command a considerably higher price in the market place.  In other words, writing into any analysis or consideration about ensuring that there is a level playing field, one must necessarily give due regard to the economic realities that accessible buses are in higher demand and therefore will command a higher market price.

 

In any event, in the spirit of the disability discrimination legislation one must look at the gravity of the impact and weigh up the potential gravity of the disadvantage that will result by releasing and (therefore withdrawing) accessible services out of the state of Queensland.

 

In this instance we are not talking about a potential or prospective service, we are talking about services that are currently in existence and that a number of people rely upon, not just for quality of lifestyle, but in many instances for the necessities of life.   Many people with mobility impairments in this State that rely on public transport to get to essential services such as regular doctors’ appointments and the like. 

The withdrawal of those services can pose a serious threat to their health and wellbeing. 

 

The withdrawal of services of non-accessible buses does not, comparatively, have as serious a disadvantage as compared to that which would ensue to the disability sector in this State.  Whilst the withdrawal of some non-accessible buses would certainly cause inconvenience to the broader community, the withdrawal of accessible buses to some areas of the disability sector will have a far more serious impact by comparison.  In other words it is inappropriate to attempt to draw an analogy or draw out the argument of a level playing field between accessible and non-accessible service providers.  Put simply the impact is far more serious on the withdrawal of an accessible service when compared to the withdrawal or partial withdrawal of a non-accessible service. 

 

The gravity of that impact is something which should be given due consideration when considering whether the purpose and promotion of the principles of the Disability Discrimination Act are under scrutiny.

 

In any case it is not the role of the Commission to ensure that service providers are not disadvantaged – rather the role of HREOC is to ensure that the clients of service providers are afforded protection under anti-discrimination laws and are not unnecessarily subjected to a more serious and differential impact by the withdrawal of a service.

 

Whilst simplistic in approach, this secondary argument offered by the Deputy Disability Commissioner in support of the exemption has overlooked a number of complex issues both regarding the impact of market forces and the consequential gravity of the differential impact upon the disability sector by withdrawing an accessible service that is currently in existence.

 

(3)        Consideration of an exemption application should be concerned with a holistic approach about accessible services rather than getting down to the finer details of which route system should be accessible vis-à-vis others.

 

In this respect the Deputy Disability Commissioner cites the Melbourne Trams case and the Summer Hill Railway Station case as precedents.  The Deputy Commissioner appears to be referring to two paragraphs on pages 26 and 27 of a 32 page judgement in relation to the Melbourne Trams decision.  It is worth quoting the passing commentary in full –

 

Similar issues about how to deploy new vehicles have arisen when low flow buses are introduced.  Certainly a service does not become accessible on the day the first vehicle commences service, nor when the second, third and fourth commence.  The choice that confronts operators is whether to concentrate new vehicles in a way that makes a particular route accessible quickly or to diffuse the benefit throughout the system, perhaps leaving all routes below the critical number necessary to make any route effectively accessible.  This is an operational decision of great importance to people with disabilities. 

 

The Commission does not consider this a decision that should be made by the Commission in the context of this exemption application.  Rather the people who are going to run the trams and the people who are going to use the trams should discuss the issue.  The action plan provides continuing consultation with people with disabilities and the recommended exemption condition that the action plan be implemented is all the Commission should do on this point now.

 

A similar passing commentary was made in relation to the question of access in the Summer Hill case.  At page 6 of the 7 page judgement, the relevant paragraph is as follows:

 

The Commission is not best placed to judge issues of priority of one station over another within an overall program where acceptable progress is being made.  If it is accepted that not every station can be made accessible immediately, in my view the DDA has very little bearing on which station should be upgraded first.  These are most appropriately seen as issues for decision through political processes for determination by transport operators.

 

However, both those cases are distinguishable on a critical point.

 

The Melbourne Trams case and the Summer Hill Railway Station case involved a consideration of the Commission as to whether it should “force the hand” of service operators by requiring and mandating that the trams become accessible immediately or that the Summer Hill Railway Station be upgraded immediately.  The current exemption application under consideration is quite different indeed.  It concerns the situation of the re-direction of an existing accessible service to another area.  In the Trams case in particular the influencing factor which granted the exemption was that the relevant Victorian authorities had submitted an Action Plan for a prospective upgrade to make the tram system accessible.  Similarly in the Summer Hill case the question under consideration was whether the Railway Station should be forced to be upgraded in terms of its accessibility. 

 

This is a completely different question altogether to the one under consideration presently.  This current exemption application  is considering the diversion of existing bus services operating in the State of Queensland to Sydney.  In other words it is solely concerned with an accessible service that is already in existence and the question is whether the withdrawal or partial withdrawal of an existing service should be exempt. 

 

That major point of distinction is significant indeed. 

 

The fact remains that the previous two exemption applications concerned a prospective accessible service, the current exemption application concerns the withdrawal of an existing accessible service from other states to be re-directed to the Olympic city.  The gravity of the less favourable treatment in the latter situation is obvious.  We are talking of the withdrawal of an existing service.

 

I submit that it is more appropriately analogous to a situation where a program or welfare measure that currently exists is under consideration of being withdrawn.  Consider the following example:

 

Whilst anti-discrimination laws do not mandate and oblige the introduction of a special welfare measure for a specific target group, I do think that once a special measure or welfare measure is on foot, anti-discrimination laws may well go some way to providing redress if that special measure, once it is in existence, is withdrawn.

 

Suppose the state of Queensland attempted to shut down all Women’s Health Services.  I submit that such action may well give rise to a complaint of indirect discrimination against women in the area of the administration of state laws and programs.  However, prior to women’s health services being set up,  no complaint would arise when they are not in existence.  However, once they are in existence the bigger landscape changes significantly – the withdrawal of existing welfare measures once they are in place can in my view potentially give rise to a complaint of indirect discrimination.  In the same way the comparison and attempt to draw an anology between the Melbourne Trams  and the Summer Hill Railway Station is not unlike the fine distinction between whether a special welfare measure ought to be introduced (which would not give rise to a discrimination complaint) as compared to the withdrawal of a welfare measures once it is in existence (which most certainly would give rise to a discrimination complaint). 

 

In other words it is respectfully submitted that the Melbourne Trams case and the Summer Hill Railway Station are no precedent whatsoever upon which to base the decision to grant an exemption in the current matter under consideration.

 

The significant point of difference is that the two previous exemption applications involved an attempt to force the hand to make a service accessible.  The exemption application in question involves the more serious question of withdrawing an accessible service that already exists from one part of the nation and directing it to another.  The gravity of the impact on people to whom those services are withdrawn are far more serious.  I therefore submit that neither the Melbourne Trams decision nor the Summer Hill Railway Station decision serves as any authority whatsoever upon which to base the granting of the current exemption application.

 

As an aside it is noted that the Federal Commission has adopted a view that arguably it will not embroil itself in the finer details and specificity about which particular station or bus route should be accessible.  I should say that the authorities in this jurisdiction have taken a different view.  Through a number of incidences it is very much the case that the Queensland Tribunal does consider it has a mandate within the framework of the anti-discrimination legislation to rule upon and make decisions upon the accessibility to particular stations or particular bus routes.  Most notable is the most recent decision handed by the Queensland Tribunal on 6 June 2000 in the matter of Harris and Pyne against Transit Australia Pty Ltd.  The 60 page judgement handed down by Member Coates in that case very much concerned whether the unjustifiable hardship defence could be made out on a complaint to make a particular area in the Cairns region accessible.  Nowhere in that 60 page judgement did Member Coates consider it not within her mandate to make a decision about the accessibility or otherwise of a particular bus route.

 

To this extent the Queensland Tribunal has taken a seemingly different approach to the Federal Commission on these issues.  This will no doubt be of major significance in whatever the Queensland Tribunal ultimately makes in the current exemption application it has before it.

 

Other issues and commentary:

 

I expect that the burdensome pressure in the deliberations surrounding this exemption application is simply  because ORTA has left its run far too late.  Sydney had some four years lead in upon the announcement of winning the Olympics bid, as is evidenced by the submission from Mr Angus Downey.  Repeated attempts from the disability sector to forewarn both SOCOG, ORTA and the relevant Federal and State Ministers of the potential embarrassment that might occur to this country by its shortcomings in an accessible service has been ignored.  Is it the role of a human rights organisation to “bail out” political shortcomings and incompetence at the last minute?  Pressing time frames should not be a relevant consideration in whether one part of this nation in the disability sector should have its service withdrawn.  Whilst the Federal Commission might well see it within its mandate to protect the international standing of this country, it is certainly not the significant consideration for the Queensland State Tribunal – who is at the forefront of dealing with the level of disadvantage suffered by the singificant withdrawal of accessible transport services out of this state.

 

In no uncertain terms ORTA should have planned well ahead – they certainly had enough forewarning.  It should not be the role of a human rights agency like the Human Rights and Equal Opportunity Commission to “bend the rules” to save the national humiliation that will eventuate by the power brokers failing to exercise sufficient forward planning and insight into the gravity of the obligations that they have locked themselves into. 

 

In terms of the analysis of the disadvantage that might eventuate to Queenslanders with mobility impairments by the withdrawal of services out of this State, it should not be forgotten that the whole of this country expects an influx and an upsurge of visitors.  It is not just Sydney or New South Wales who stands to have an increase in the number of people temporarily in that State.  I need only remind the Commission that this State will also host a number of Olympic and Paralympic events at key sites within Queensland.

 

We, like Sydney, will face the same issues about accessible transport.  What limited services we have in this State in terms of access both for permanent residents of Queensland and for potential visitors will be needed to service the increased numbers of commuters in this State during the same period.

 

An exemption application along the lines sought can only be interpreted as the Commission placing the interests of Sydney above those elsewhere in the country. I understand that the soccer and some other events will be occurring at key stadiums throughout Brisbane.  Should Queensland be spared at the expense of Sydney “saving face” throughout this period?  I certainly will argue vigorously against it. 

 

Summary:

 

This Commission without hesitation opposes outright the granting of an exemption application for the withdrawal of accessible services out of the State of Queensland for re-direction to Sydney during the Paralympic and Olympic Games.

 

Unless I am persuaded otherwise, I foreshadow that I will be making as strong a recommendation to the Queensland Tribunal pursuant to its request under section 113.  However, if the Human Rights and Equal Opportunity Commission is intent on granting an exemption in some form, then I strongly urge it to consider the imposition of significant conditions.  In particular I urge the Commission to consider –

 

1                    Placing a quota or cap on the number of buses that are to be withdrawn out of any jurisdiction – with that cap being linked to an appropriate ratio of the number of accessible buses in that jurisdiction viz-a-viz the population of that jurisdiction;

 

2                    That in deciding or granting the withdrawal of accessible services that the approach of the Queensland Tribunal be followed which very much involves a detailed analysis of the route systems which might be affected.  For example the significant withdrawal of the accessible services in the City Circle and the Greater Outer Circle route would have a serious and significant impact on people with mobility impairments in the South East corner;

 

3                    There should be a condition imposed that no accessible buses should be withdrawn where there are no alternative accessible transport systems – for example in more remote parts of this State where there is no reliable taxi service operating;

 

4                    That the Commission consider imposing onerous obligations on ORTA to make alternative arrangements for people who are significantly affected by the withdrawal of an accessible service out of the jurisdiction; and

 

5                    That the Commission give serious consideration to imposing a condition on ORTA to either itself provide out-of-pocket expenses and compensation to individuals who would be affected, or that it oblige ORTA to write in any lease-out agreement it enters with operators to pass on the sum or all of the hire lease out fees that would be commanded from the accessible fleet.