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Notice of HREOC exemption decision re: Minister for Transport (SA) and Others (19 March 1997)

Notice of decision

Recommendation of Disability Discrimination Commissioner to the Commission

The following is the text of a notice published in the Commonwealth of Australia Gazette GN 15 on 16 April 1997.

Disability Discrimination Act 1992

Application pursuant to section 55 for exemption from a provision or provisions of Part 2, Divisions 1 and 2

Notice of decision

As required by section 57 of the Disability Discrimination Act 1992, the Human Rights and Equal Opportunity Commission hereby gives notice of a decision made on 18 March 1997 with respect to the following matter:

Applicants:

The Minister for Transport for the State of South Australia, the Passenger Transport Board and TransAdelaide.

Solicitors for applicants:

Crown Solicitor for South Australia

Decision of the Commission:

he Commission grants a conditional exemption from the provisions of section 24 of the DDA in respect of the manner in which the applicants provide all services relating to transport in the State of South Australia. The exemption extends to any buses, trains and trams owned by the applicants and operated on their behalf by other service providers. The exemption is subject to the following conditions:

  1. the exemption is to expire on 18 March 1999 or on the day that Accessible Public Transport Standards made under the DDA become law, whichever is the sooner;
  2. the applicants are to implement the Disability Discrimination Act Action Plan Access All The Way 1995 - 2015 Stage 2 and to lodge with the Commission not later than 18 March 1998 and 18 March 1999 progress reports describing to the Commission's satisfaction actions taken to implement that Plan;
  3. the progress report specifically is to address initiatives, devised after consultation with the disability community, to promote accessibility with respect to people with sensory and cognitive disabilities; and
  4. for the purpose of deciding whether conditions 2 and 3 have been satisfied the Commission will consider any act or omission of service providers operating services on behalf of the applicants.

Finding and reasons:

In making this decision the Commission adopted the findings and reasons contained in the recommendation and statement of reasons prepared by the Disability Discrimination Commissioner and annexed to this notice and marked "A".

Review of decision:

Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Ronald Wilson

President, on behalf of the Commission

19 March 1997

 

 

Recommendation of the Disability Discrimination Commissioner to the Human Rights and Equal Opportunity Commission

I recommend that pursuant to section 55 of the Disability Discrimination Act 1992 ("the DDA") the Commission grant to the Minister for Transport for the State of South Australia, the Passenger Transport Board and TransAdelaide ("the applicants") a conditional exemption from the provisions of section 24 of the DDA in respect of the manner in which the applicants provideall services relating to transport in the State of South Australia. Without implying any limitation in scope, the exemption should extend to any services operated on behalf of the applicants by other service providers. The exemption should be subject to the following conditions:

  1. the exemption is to expire on 18 March 1999 or on the day that Accessible Public Transport Standards made under the DDA become law, whichever is the sooner;
  2. the applicants are to implement the Disability Discrimination Act Action Plan Access All The Way 1995 - 2015 Stage 2 and to lodge with the Commission not later than 18 March 1998 and 18 March 1999 progress reports describing to the Commission's satisfaction actions taken to implement that Plan;
  3. the progress report specifically is to address initiatives, devised after consultation with the disability community, to promote accessibility with respect to people with sensory and cognitive disabilities; and
  4. for the purpose of deciding whether conditions 2 and 3 have been satisfied the Commission will consider any act or omission of service providers operating services on behalf of the applicants.

1. Applicants and activity for which exemption is sought

2. Findings on material questions of fact

3. Reasons for recommendation

4. Conclusion

1. Applicants and activity for which exemption is sought

The applicants are:

  • the Passenger Transport Board, which is established under the Passenger Transport Act 1994 (SA). It is responsible for State-wide passenger transport planning and regulation; and
  • TransAdelaide, which is a public authority providing public passenger transport services.

The applicants are seeking an exemption from the operation of section 24 of the Act in respect of the manner in which they provideall services relating to transport in the State of South Australia.

The former exemption granted on 8 February 1996, and now expired, extended only to lack of access for people who use a wheelchair to the existing fleet of buses owned by, or operated by or on behalf of, these applicants. Thus the present broader application seeks to reduce considerably the range of discriminatory acts for which the applicants may be liable under the DDA.

2. Findings on material questions of fact

The decision in relation to this application depends in part upon a finding on a material question of fact, namely: have the applicants complied with the conditions under which an exemption was previously granted?

The relevant condition is:

This exemption applies subject to the applicants implementing the Action Plan provided to the Commission in support of the application.

Substantial progress is reported in the revised Action Plan submitted in support of the present application and the major disability advocacy group involved in these issues in South Australia speaks favourably (see below) of the applicants' efforts. No one has contested the assertion that the applicants have brought into operation accessible vehicles and facilities, that they recognize there is much more to do and are committed to an extensive further program and that they are consulting the community about how to implement that program.

The revised Action Plan supersedes the previous plan. In this finding, I am only concerned with the condition that the previous plan be implemented.

Relying on the material submitted by the applicants and the comments I have received on it, I find that the relevant condition referred to above has been satisfied.

This is not, however, to deny the claims made in submissions that the scope of the revised Action Plan is too narrow to promote accessible public transport for people with, for example, sensory disabilities. That is an issue that also goes to the question of whether the present application ought to be granted and which must be carefully weighed against this material finding of fact.

3. Reasons for recommendation

3.1 Grounds of application

3.2 Statutory provisions from which exemption is sought

3.3 Submissions on the application

3.4 Questions raised by Disability Action Inc

3.5 Range of disabilities addressed by the applicants

3.6 Effect of exemption on complaints

3.7 The role of action plans

3.8 The importance of achieving transport standards

3.1 Grounds of application

The application helpfully summarises the history of this matter as follows:

By Instrument dated 7 February 1995 the Commission granted the applicants exemption from operation of section 24 of the Act until 1 November 1995 in respect of the lack of access for people who use wheelchairs, to the existing fleet of buses currently owned and operated by TransAdelaide.

The exemption also applied up to 1 November 1995, to any of the subject buses that might be operated on behalf of the applicants pursuant to tender processes.

By Instrument dated 8 February 1996, the Commission granted the applicants further exemption from the operation of section 24 of the Act until 6 November 1996 in respect of the lack of access for people who use wheelchairs, to the existing fleet of buses currently owned by, or operated by or on behalf of, the applicants.

The applicants further state that:

  • they do not have the financial and other resources necessary to immediately implement a fully accessible public transport system in the State of South Australia;
  • they are however committed to providing equality of mobility to all users of the public transport system by 2015;
  • their commitment to equality of mobility is evidenced by the current action plan"Access all the way 1995-2015 Stage 2" which sets out achievements to date, and outlines policies at directions for the future;
  • the Action Plan submitted herewith completely addresses all of the matters outlined in the Guidelines on Applications for Temporary Exemption.

In view of the material finding of fact already made, I will not cite in full the examples provided in the application which support the claim that the applicants have made substantial progress towards implementing their initial Action Plan.

3.2 Statutory provisions from which exemption is sought

Section 24 of the DDA provides:

24. (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

  1. by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
  2. in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
  3. in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

Public transport is a service for the purposes of section 24. It is therefore unlawful to discriminate on the grounds of disability in providing public transport unless not discriminating would impose unjustifiable hardship on the service provider.

3.3 Submissions on the application

I have sought comment on the application from national peak disability organizations and from relevant organizations in South Australia. Submissions were received from:

  • Disability Action Inc. (DA)
  • National Federation of Blind Citizens of Australia, who write with the support of their South Australian Branch (NFBCA)
  • South Australian Commissioner for Equal Opportunity, supporting the application (CEO)
  • Deafness Forum of Australia (DF)
  • Physical Disability Council of Australia, endorsing the submission of DA
  • Disability Discrimination Act Standards Project (SP)

3.4 Questions raised by Disability Action Inc.

DA is a South Australian advocacy organization that has been in the forefront of the campaign for accessible public transport for people with disabilities. I therefore attach some weight to the favourable points they make about the Action Plan and the commitment of the applicants. DA say:

The clear indications of commitment need to be encouraged by the Commission as a means of demonstrating a positive example to other States. Disability Action Inc. will continue monitoring this process and have no hesitation in formally complaining if the State Government, in any way, changes its direction and or commitment.

Nonetheless, DA do not wish to give unqualified support to the application. They have posed a series of important questions which I endeavour to answer below. In my view these answers do not materially alter the case in favour of a conditional exemption.

DA: What happens when or if the Accessible Public Transport Standards become law? Do they then take the place of the proposed exemption that the State Government is seeking?

The answer to this question is "Yes". The terms of the application make it plain that the applicants intend that the exemption not extend beyond the day on which standards become law. In any case, as I understand the DDA, once standards are adopted they become the prevailing law. Section 33 of the DDA prevents the Commission from granting exemptions from standards.

DA: What happens if the Minister, in gaining the exemption, then feels no need to have Standards and so blocks their progress through the Australian Transport Council? Can we obtain a commitment through the Action Plan to supporting the proposed Standards?

A similar point is raised by SP.

Governments and their Ministers are free to make their own policy decisions within the law. One hopes that in doing so they take into account all relevant responsibilities and factors. There is no evidence before me that the present applicants are not acting in good faith in seeking an exemption, in effect, to bridge the period leading to the introduction of Standards. In fact, I conclude (see below) that the applicants support Standards and will continue to do so.

Certainly, it would be helpful in terms of public perception if the applicants were to make an explicit statement in their Action Plan of their commitment to the establishment of Standards, and I encourage them to do so. I do not, however, think it appropriate to make such a statement a condition of granting an exemption.

DA: What happens if the current Minister has pressure placed on her or is replaced? Can we then challenge the exemption and what would be the process to do so? Would it be through a hearing facilitated by HREOC? Would we have to go to the Federal Court if such a hearing could not be conciliated and what type of support would we be eligible for? The same question would apply if there was a change of government and they refused to honour the same Action Plan and commitment.

SP raise, in effect the same issue.

I take it that behind the question about pressure on, or replacement of, the Minister, lies an apprehension that these events might lead to a change of policy and lessening of commitment to accessible public transport. The same point is raised with respect to a change of government. In fact, it is inevitable that in the course of the twenty-year process of implementing the Action Plan many, if not most, of the office-holders and staff associated with it will change. It would be remarkable in public policy terms if the details of the Action Plan, or even major elements, do not also change in that period. I would expect that in the same time what can be achieved by way of accessible public transport will advance significantly and the Action Plan must change to reflect this. What must not change is the requirement laid down in the DDA for recognition of the rights of people with disabilities to have access to the goods, services and facilities enjoyed by the whole community. And what must also remain is the empowerment of people with disabilities, through the DDA complaints process and in other ways, to assert their rights under law. It is, as I remarked above, open to governments to change their policy. Likewise it is open to people with disabilities to take action if those changed policies detract from the advances so hardly won under the DDA.

An exemption granted to the present applicants would be granted to them in their official capacities and in no way depends upon the respective offices being occupied in future by the people who hold them now. If such an exemption is to be maintained for its full term then the relevant office holders must ensure that they and their organizations fulfil any conditions under which the exemption was granted.

The DDA does not provide a formal mechanism for re-examining an exemption. There is a general rule of administrative law that a power to do an act implies a power to undo that act. The Commission could, if asked by either people who have the exemption or anybody else, revoke or vary an exemption before its expiry date. In so doing the Commission would need to accord procedural fairness to all interested parties. This would at least involve receiving submissions and testing the evidence submitted. It is also open to people to use the complaints handling process if they believe discrimination has occurred because the conditions of an exemption are not being observed. It is possible that one outcome of a successful complaint would be enforcement of the conditions of an exemption.

3.5 Range of disabilities addressed by the applicants

NFBCA oppose the application on a number of grounds, including that the actions and plans of the applicants deal with mobility issues and do not address the concerns of people with impaired vision. SP make the same point. Without opposing the application, DF say that the Action Plan does not adequately address the concerns of people with impaired hearing. DA do not specifically comment on these issues but say that:

The emphasis is no longer focused just on wheelchair accessible buses, but has broadened to now include train, tram, taxi, and infrastructure plans for the full range of disability groups.

These differences of view may be more apparent than real but the Commission must be on the side of caution and the preservation of rights under the DDA. If sensory disabilities are not being fully considered then it is likely that cognitive disabilities are also not being dealt with, a factor not mentioned in any of the submissions.

Sensory and cognitive barriers to access are every bit as confronting for people with disabilities as are physical barriers to mobility. We must therefore ensure that an exemption does not improve the lot of people with particular disabilities at the expense of people with different disabilities. This does not amount to requiring that all sensory and cognitive barriers immediately be removed from the transport services provided by the applicants. It means that those issues must be dealt with appropriately during the process of achieving generally accessible public transport.

It may be that the applicants are already taking action to remove sensory and cognitive barriers to the SA public transport system. If so, then they should describe those actions in the Action Plan. If not, then the applicants should address the issues and amend the Action Plan.

In my opinion the solution is to ensure that the Action Plan and, more importantly, the actions taken, do address issues across the full range of relevant disabilities. In granting an exemption the Commission should impose a condition to this effect.

3.6 Effect of exemption on complaints

NFBCA and SP express concern about the effect of an exemption on the complaints process under the DDA.

A conditional exemption granted by the Commission pursuant to section 55 of the DDA is no bar to the lodgement of complaints. It is, however, an absolute defence provided that the conditions of the exemption are observed. If an exemption is granted to the present applicants, the bare minimum condition placed upon the grant would be that the Action Plan submitted in support of the application is implemented and, if need be, improved. Whether this condition is being met at any particular time would be a matter of fact to be determined. If the Action Plan is not implemented, then an essential condition of the exemption is breached and the present applicants would have to defend a complaint on the usual ground of unjustifiable hardship. I expect that this would be an undesirable outcome from their point of view. It is, however, a matter for them to decide.

3.7 The role of action plans

NFBCA and SP point out that a defendant to a DDA complaint may rely on an action plan as part of the defence of unjustifiable hardship and that an exemption is therefore unnecessary.

In Re: Women's Legal Service the Commission adopted my view. In my recommendation in that matter I said:

The overriding public purpose that would justify an exemption is that the objects of the DDA will be best achieved by temporary relaxation, in specific circumstances and with respect to identified persons, of a particular provision. This does not amount to suspension of the operation of the DDA. It allows, on conditions the Commission sees fit to impose, conduct which the DDA otherwise declares to be unlawful whilst measures that will achieve better compliance are implemented Where this public purpose cannot be demonstrated, and absent manifest injustice to the applicant, then as a rule an exemption should not be granted.

I then analysed the statutory concept of unjustifiable hardship and pointed out that if doing something is unjustifiably hard then under the DDA it is not unlawful to refrain from doing that thing. I then continued:

In saying that an exemption is contingent on the objects of the DDA being achieved I am not asserting that the burden of better general compliance must always fall on a particular applicant for exemption. It may be that improvement will be brought about in the sector concerned due to efforts of relevant industries or professions, through the advocacy of people with disabilities, by changing market demands, the outcomes of complaints or a mixture of these and other factors. It is often the case, especially in highly structured or regulated activities, that an individual person or enterprise will need some leeway in order not to suffer manifest injustice in the adjustment process. For this reason the Commission should remain alert to issues affecting the situation of individual applicants. Unjustifiable hardship is strictly speaking a defence to a complaint and not a ground for granting an exemption, however adverse circumstances in which an applicant may be placed can appropriately be considered by the Commission in forming its view.

There is no denying that the present partnership between the disability community and the applicants was, in part, born out of the strife of dealing with complaints under the DDA. I believe that, without surrendering their rights, each party participates in that partnership on the understanding that the other will behave cooperatively. In this way a very substantial public benefit is being brought about in South Australia. If an exemption under the DDA will foster that public benefit then the Commission ought to take that into account.

It must, however, be realised that exemptions are temporary measures. The applicants Action Plan and their actions are such that they will have, if not immediately, then in the near future reasonable prospects of defending complaints. They may or may not succeed, depending on the circumstances of individual cases, but they will be able to rely on their Action Plan and, when established, Transport Standards.

The effect of this is that it will become increasingly difficult for the present applicants to justify an exemption but increasingly likely that they will not need one. At present, however, I believe they have discharged the burden of showing that a temporary exemption is in the public interest.

3.8 The importance of achieving transport standards

NFBCA and SP suggest that although the applicants have an Action Plan there is no guarantee that an accessible transport system will be achieved unless Transport Standards are introduced. Shortly after the inception of the DDA an intensive process commenced to develop Accessible Public Transport Standards. Such Standards are made by the Minister (the Commonwealth Attorney-General) and, if not disallowed by Parliament, have the force of law. An act done in compliance with a standard is not unlawful under the DDA. Standards do not increase or reduce rights and obligations under the DDA. They serve to clarify and explain the ways in which the necessarily broad terms of the legislation apply in practice.

The draft Accessible Public Transport Standards now under consideration provide a staged approach to implementation. The Action Plan submitted in support of the present application for exemption likewise envisages a managed process leading to accessible public transport in South Australia by 2015. The scale of change, and the investment of resources this needs, calls for substantial and lasting commitment on the part of governments. In making this commitment in its Action Plan, South Australia is working for the long term in a way that shows confidence that we will achieve a worthwhile Standard. For this the Minister, the Passenger Transport Board and TransAdelaide are to be commended.

I have already alluded to the fact that the applicants appear to consider this exemption to be only a bridging device to be used until the Standards become law. It is most emphatically my view that this is the purpose of the exemption and that the Standards are absolutely essential to achieving accessible transport in Australia.

4. Conclusion

The applicants seek that this exemption, unlike those previously granted, extend to all services that they provide. They also ask that the exemption apply to any buses, trains and trams owned by them and operated by other service providers pursuant to tender. I will return to this latter point.

I take the breadth of the exemption sought to be a sign of confidence on the part of the applicants that they are succeeding in their efforts to provide accessible public transport. In asking that all their services be covered they are adhering to a de facto disability standard. At the same time, they are submitting to the additional rigour of complying with conditions that the Commission may impose on a grant of exemption.

Any conditions must be reasonable to the applicants and at the same time promote the objects of the DDA. In view of the submissions I have received and the positive attitude that the applicants show towards community consultation, Action Plans and eventual Standards, I propose the following conditions:

... at the very least, the South Australian Government should have to report on an annual basis, the progress and implementation of the Action Plan. If the exemption is granted, it should be for less than five years and should expire if or when a Transport Standard is made by the Commonwealth Attorney-General.

  • Disability Action Inc. conclude their submission by saying:

I accept that in the present case any exemption should be granted for less than five years and have in mind that two years or until Accessible Transport Standards become law, whichever is the sooner, would be an appropriate term.

  • The applicants present their Action Plan as the keystone of their activity. A condition that they implement the Action Plan is an acknowledgement of this. It also provides reassurance to the disability community that, in the event of a change of government policy, the Action Plan provides criteria against which continuation of the exemption can be assessed. Reporting is an essential element of maintaining the working relationship between the applicants and the disability community in South Australia. Accordingly, the applicants should prepare progress reports on implementation, to be lodged with the Commission halfway through the term of the exemption and again at the end.
  • There are reasonable concerns about the scope of the Action Plan and I believe these can be allayed by consultation with the community and amendment of the Plan. A condition to this effect is warranted. Amendments, if any, to the Plan could be presented at any time.
  • The applicants ask that the exemption apply to any buses, trains and trams owned by them and operated by others. I think a more general approach extending to services rather than equipment is more likely to capture the range of issues that arise under the DDA. A condition of the exemption should be that the Commission will take into account the actions or omissions of service providers acting on behalf of the applicants. This may enable the applicants to hold out to their business partners the benefit of the exemption. It should also ensure that services provided on behalf of the applicants, but using equipment and facilities not owned by them, must be taken into account when compliance with the exemption is considered.

I have been urged to encourage the applicants to set an example for the rest of Australia, something I am happy to do without any urging. I applaud the South Australian government for their proactive approach and the support they have shown for the development of Standards. On the evidence now before me, South Australia is a trendsetter in the development of universally accessible public transport. I urge the community to remain vigilant, constructive and involved so that the government's activity and support on this vital issue is maintained.

Elizabeth Hastings

Disability Discrimination Commissioner