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.