Commission Advisory Notes on Public Transport

Last updated: 24 October 2002

These advisory notes are superseded by the entry into force of the Disability Standards for Accessible Public Transport. They are maintained here for historical reasons.

Introduction
Draft standards reflect existing DDA obligations
Use of the draft standards in compliance activity
Use of the draft standards in developing Action Plans
Complaint handling
Use by passengers
Note on implementation schedules
Exemption applications

Introduction

This Advisory Note is issued by the Australian Human Rights Commission (the Commission) under section 67 of the Disability Discrimination Act (DDA). It is intended to clarify the existing obligations which public transport operators, and providers of related infrastructure (such as boarding points), have under the DDA, and to assist them in eliminating discrimination.

It is also intended to clarify the relationship of these existing obligations to the draft Disability Standards for Accessible Public Transport (and accompanying guidance material) issued by the Australian Transport Council in 1996. The Attorney-General has now received Cabinet approval to place the Standards before the Parliament for authorisation, subject to a number of amendments emerging from the Regulation Impact Statement process. See our transport page for links to more information.

In the Commission's view, Standards have an important role in reducing the uncertainty to which providers are exposed at present. This Note is not intended to substitute for authorisation of appropriate Standards.

Pending the authorisation of Standards, transport providers remain subject to the existing requirements of the DDA (and largely equivalent obligations under State and Territory laws of all States and Territories).

The DDA imposes a general obligation not to discriminate in service provision (including public transport services) and in access to premises (including vehicles and vessels). This obligation is subject to the limitation that non-discriminatory service and access is not required where it would impose unjustifiable hardship.

Discrimination under the DDA includes direct and indirect discrimination, and thus clearly includes lack of equal accessibility, but is not defined in any further detail.

In particular, the DDA does not provide (and equivalent State and Territory laws do not provide) any schedule defining how long movement towards non-discriminatory service provision may permissibly take. This Advisory Note encourages public transport operators and related infrastructure providers to consider the draft Standards as a basis for developing and implementing their own strategies for achieving non-discriminatory service over time. It also provides information on the provision of the DDA for granting of temporary exemptions.

Draft standards reflect existing DDA obligations

Subject to issues discussed later in this Note (in particular regarding implementation schedules), the Commission regards the draft Standards as reflecting the existing obligations of public transport operators and providers under the DDA. While they give more guidance for practical implementation than the brief provisions of the DDA, in the Commission's view they do not seek to impose any substantial new obligations.

This does not mean that the specifications given in the draft Standards will always and in all circumstances be regarded as mandatory under the DDA. The draft Standards recognise the concept of "equivalent facilitation" - that is, alternative means of providing equal access to the same public transport service. They recognise that in some circumstances it may be shown that to achieve non-discriminatory service would impose unjustifiable hardship. They also seek to encourage innovation and recognise that they may need review in future in the light of technical and other change.

Similarly, the Commission will be bound to take into account evidence of any relevant technical, regulatory or other developments in exercising its functions under the DDA.

Use of the draft standards in compliance activity

Public transport operators and providers of relevant infrastructure are encouraged to refer to the draft Standards in planning and implementing measures to comply with the obligations which they have under the DDA. This should include design and implementation of new services and construction, as well as changes to existing services, facilities and premises over time.

Use of the draft standards in developing Action Plans

Public transport operators and providers are encouraged to refer to the draft Standards as a basis for development of voluntary Action Plans under the DDA.

Development of an Action Plan gives transport operators and providers a means of planning their own measures to achieve compliance with the DDA, rather than possibly having these measures imposed on them as a result of complaints.

Simply having an Action Plan is not a defence against complaints. The DDA allows for preparation of Action Plans as a way of achieving compliance with obligations under the DDA, not as a substitute for compliance with those obligations. However, development and imp[lementation of an effective action plan should reduce the potential for successful complaints:

  • by removing the causes of complaint over time;
  • by demonstrating to people with a disability, their associates and advocates that the provider is already taking all achievable measures to ensure equal treatment and access to services; and/or
  • by providing a method through which continuing concerns can be addressed co-operatively rather than through complaints.
  • As noted below, the Commission will consider a service provider's Action Plan in relation to any application for exemption by or on behalf of that service provider.

The Commission has prepared guides on the development of Action Plans for business and for State and Territory Government authorities. Subject to staff availability the Commission may also be able to provide more direct advice and assistance on request regarding development of an Action Plan.

Complaint handling

The draft Standards do not have direct legal force. The Commission is bound to apply the provisions of the DDA. However, given the Commission's view that the draft Standards generally reflect the existing effect of the DDA, the Commission will take the draft Standards into account in dealing with complaints under the DDA.

Use by passengers

This Advisory Note is directed principally to operators and providers, who have responsibilities under the DDA. Passengers with a disability may also wish to refer to the draft Standards in considering what to expect in using public transport services; and whether, and how, a complaint of discrimination may be brought successfully in cases where non-discriminatory access and service is not provided.

Note on implementation schedules

The draft Standards include an implementation schedule under which particular obligations would only arise after five, ten, fifteen or twenty years. If the Standards were in force, operators and providers would not be required to implement those obligations earlier, whether or not they could have shown that earlier implementation would have imposed unjustifiable hardship.

Given the importance of certainty of obligation for providers, the Commission regards this effect, limiting some otherwise available rights, as an acceptable part of draft Standards which overall would promote elimination of discrimination.

In the absence of Standards, or unless an exemption is obtained from the Commission, providers are exposed to immediate liability for any discriminatory features which it would not have been an unjustifiable hardship to remove, in the period since the entry into force of the DDA (and the period, in some cases substantially longer, since the entry into force of equivalent obligations under State or Territory law).

In particular, the Commission considers that in many cases the five years which the draft Standards would provide for achieving equal accessibility of information and communications features of public transport may be longer than the period which would be found permissible under the existing provisions of the DDA.

Operators and providers are encouraged to give these areas particular consideration for early attention accordingly.

Exemption applications

The Commission has power under section 55 of the DDA to grant temporary exemption (for a period of up to five years, but with successive exemptions on the same matter being permitted) from most of the discrimination provisions of the DDA, including section 24 which applies to services and to public transport services in particular. Exemptions may be issued subject to conditions.

The Commission will consider applications for exemption on terms which promote the objects of the DDA. This does not involve using the exemption power to certify past compliance efforts as sufficient. Consistent with the objects of the DDA, it does involve encouraging such efforts and their continuation.

Generally, commitment to and demonstration of continuing progress towards non-discriminatory service provision (whether through development and updating of a formal Action Plan or otherwise) will be relevant.

The Commission will consider the draft Standards, and measures taken or proposed to be taken to comply with them, in relation to applications by a public transport operator or provider for temporary exemption under the DDA. This includes consideration of the implementation schedule contained in the draft Standards, although, as noted above, the Commission would not automatically endorse that schedule in all respects.

The Commission has issued Guidelines on applications for temporary exemption under the Disability Discrimination Act. Transport operators or providers considering applying for a temporary exemption are encouraged to refer to these guidelines. The Commission has also made a number of decisions on exemption applications regarding transport. These decisions are available on our exemptions page.