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Frequently asked questions: Access to premises

See also the material linked from our access to premises page for more detailed resources including Commission advisory notes and policy papers, comlpaint outcomes, and links to other resources.

What does the Disability Discrimination Act say about access to premises?

Access to premises is covered principally by section 23 of the D.D.A.  Note that issues of access to premises can also arise under other provisions of the D.D.A., such as those prohibiting discrimination in employment (section 15), education (section 23), provision of goods, services or facilities (section 24), accommodation (sectin 25), and the administration of Commonwealth laws or programs (section 29).

Discrimination under section 23 includes

Discrimination is unlawful under section 23 except where it can be shown that removing a barrier to access would impose unjustifiable hardship.

How does the DDA relate to the Building Code of Australia and to Australian Standards?

See our advisory note on access to premises for detailed comments on this. See also our guidelines on access to buildings and services for advice on achieving access in practice and our information on draft Disability Standards on Access to Premises which will harmonise the access provisions of the BCA and DDA.

Note that nothing in the terms or effect of the DDA operates to diminish, or excuse non-compliance with, the requirements of other laws. Specifically, the DDA does not operate to import any "unjustifiable hardship" qualification into State or Territory building laws so far as compliance with BCA minimum requirements is concerned. The true position is that both laws have to be complied with in their own terms.

This means that in any case where bulding law and the BCA impose more demanding requirements than the DDA would, the BCA requirement must nonetheless be complied with. In any case where the DDA is more demanding or broader than the BCA, the DDA has to be complied with.

What premises does section 23 of the D.D.A. cover?

Section 23 of the D.D.A. requires non-discriminatory access to premises which the public or a section of the public is entitled or allowed to use.

"Premises" are defined (in section 4) to include "a structure, building, aircraft, vehicle or vessel; and (b) a place whether enclosed or built on or not".

Some of the premises covered by section 23 would include

Does the DDA cover access to the footpath?

Does the DDA cover access to the footpath?

Yes. A footpath would come under the definition of 'premises' and would therefore be covered by section 23 of the Disability Discrimination Act (DDA):

premises includes:

(a) a structure, building, aircraft, vehicle or vessel; and
(b) a place (whether enclosed or built on or not); and
(c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)).

In general local government authorities are responsible for footpaths.

What sort of barriers might give rise to a complaint?

•  A business operating on the footpath in a way that causes a barrier to access.

•  A household or business that allows overhanging trees to encroach on the footpath.

•  A tree root that causes an uneven surface.

•  A kerb cut that does not allow for safe passage

•  A developer who is using the footpath to undertake renovation or building work.

Who can a complaint be lodged against

Complaints could be lodged directly against a local government authority if it is responsible for the footpath. A complaint could also be lodged against the person or organisation directly creating the barrier.

In addition it may be possible to lodge a complaint against the local government authority under section 122 of the DDA if it could be argued that the local government authority was 'permitting' barriers to access by failing to ensure the pathway is clear.

The question of whether or not a local government authority is permitting discrimination requires some evidence they actually have the authority to address the problem.

Any person or organisation subject to a complaint may have a defence if the removal of the barrier would cause an unjustifiable hardship.

Examples of complaints include:

What is an accessible footpath?

A footpath should, as far as possible, allow for a continuous accessible path of travel so that people with a range of disabilities are able to use it without encountering barriers.

While a footpath necessarily follows the natural topography of the area, in the best possible circumstances a continuous accessible path of travel along a footpath should:

(These features of a continuous accessible path of travel are taken from current Australian Standards 1428 part 1 and part 2.)

In addition the Commission is of the view that the continuous accessible path of travel should extend from the property line with no obstructions or projections in order to provide the best possible guidance line for all users including people with a vision impairment.

The Commission encourages Local Governments with responsibility for footpaths to develop policies that reflect this best practice. While every Council will face different issues relating to topography and historical practice examples of a comprehensive policy are provided by the policy developed by Yarra City Council and the policy developed by Glen Eira council.

Who is responsible for ensuring an alternative path of travel is accessible?

From time to time construction, repair, alteration and maintenance work blocks the footpath. In these situations an alternative path should be provided.

Responsibility for ensuring the alternative path of travel is accessible rests with the local government authority and the organisation that is undertaking the construction or alteration work - if different to the local government authority.

Generally a local government authority would approve an application from a developer to establish a temporary alternate path of travel while, for example, heavy crane lifting work is undertaken.

Approval to block the existing footpath should include specific conditions related to the maintenance of accessibility during development activity otherwise enforcement of the approval conditions becomes difficult.

The developer must take whatever action is necessary to make the alternative path as accessible as possible and ensure that it remains accessible throughout the time of diversion.

What if the alternative path of travel is not accessible?

Complaints could be made against:

Exceptions

There are two situations where the general requirement to provide an alternative accessible path of travel may not apply:

The question of whether or not something would involve an unjustifiable hardship could only be formally determined by the Federal Court or Federal Magistrates Court in the event of a complaint. The Court would consider all factors in making its decision including technical difficulties, cost, the availability of alternatives, the expected length of time the alternative path was required and the importance and usage of the path of travel.

Issues to consider in relation to alternative paths

Issues to consider in ensuring a safe accessible alternative path include:

Those responsible for alternative paths might consider obtaining expert advice from a member of the Association of Consultants in Access http://www.access.asn.au and the Guide Dogs Association in your State/Territory.

Returned to original condition

When work is complete and the footpath reverts to the original path of travel it may be possible to use the opportunity to make improvements to the original footpath conditions.

For example, the work may involve actual maintenance and repair of the footpath and rather than return the path to its original condition matching existing cross-fall etc it may be possible to improve the conditions without significant resources being required. This might allow for better access to shops along the footpath or improvements in specific areas such as bus stops.

References

While there are no technical standards under the DDA the following references may be of value when establishing an alternative path.

Tactile ground surface indicators installations at kerb ramps - Australian Standard AS1428.4 -2002 Appendix "C".

Barricades, Hoardings and Safety Rails - Australian Standard AS1428.2 - 1992 clause 18.4 provides guidance on location and setback for Barricades, Hoardings and Safety Rails where construction or maintenance work is taking place along a path of travel.

Warnings - Australian Standard AS1428.2 - 1992 clause 18.3 provides some guidance on warning signs.

Does the D.D.A. apply to access to existing buildings as well as new buildings?

Yes.  Premises covered by section 23 are not restricted to new buildings, or buildings constructed since the D.D.A. was enacted. It may, however, be easier to show that altering existing premises to provide non-discriminatory access would impose unjustifiable hardship than to justify lack of non-discriminatory access in new premises.

Can the Commission grant exemptions or dispensations from responsibilities under the Disability Discrimination Act (DDA) or the Building Code of Australia (BCA) in relation to building access?

Two sets of law covering access to buildings

There are two types of law that cover access to buildings and facilities within them, the Building Code of Australia (BCA) and anti-discrimination law such as the Disability Discrimination Act 1992 (DDA). In most States and Territories there is a similar anti-discrimination law covering access to buildings.

Compliance with the BCA does not necessarily mean the building complies with the requirements of the DDA or State and Territory anti-discrimination laws.

Complaints of discrimination

If an organisation or business operates out of a building that does not provide equitable access for people with disability they may be subject to a complaint of discrimination, even if the building complies with the BCA.

If a complaint is made to the Human Rights and Equal Opportunity Commission the Commission is responsible for attempting to conciliate an agreement between the parties. If a conciliated agreement is not possible the complainant can take their complaint to the Federal Court or Federal Magistrates Court.

Defences of unjustifiable hardship

An organisation or business might be able to successfully defend itself against a DDA complaint if it could show a Court that providing access would cause an 'unjustifiable hardship'.

A Court would consider many issues when considering a defence of unjustifiable hardship including those of cost, technical difficulties, use of the building and the effect the proposed changes might have on particular heritage features.

The question of whether or not a defence of unjustifiable hardship exists can only be determined by the Federal Court or the Federal Magistrates Court.

Power to grant permanent exemptions or dispensations

The Commission is happy to provide advice on the application of the DDA to buildings and the unjustifiable hardship provisions, however, it cannot grant permanent exemptions or dispensations from responsibilities under the DDA on the grounds of unjustifiable hardship, the authority to do that rests with the Courts.

It is not appropriate, therefore, for a Council or for a building certifier to make an approval for development conditional on the Commission granting an exemption for unjustifiable hardship.

Power to grant Temporary Exemptions

The DDA allows the Commission to consider applications for Temporary Exemptions from the DDA for up to five years. However, the Commission uses this power to provide protection from complaints while organisations and businesses are in the process of fixing an identified access problem.

For example, a business might say that they have plans to do major renovations in 18 months time at which point they will address access problems. The business might seek a Temporary Exemption for example for 18 months on condition that they address access problems during the period of the temporary exemption.

The Commission has not used the Temporary Exemption power to grant a permanent exemption or dispensation because of an unjustifiable hardship claim.

Power to grant exemptions or dispensation from the requirements of the BCA

The Commission has no power to grant exemptions of dispensations from the requirements of building regulation, including from the requirements of the BCA.

Generally speaking, if an access feature is required by the BCA, such as an accessible toilet or an accessible main entrance, it must be provided as there is no broad power for any development or building certifier to provide exemptions or dispensations.

It is possible, however, for building certifiers to consider proposals for what the BCA refers to as an 'Alternative Solution' to the deemed-to-satisfy requirements of the BCA. An Alternative Solution might deliver the Performance Requirements of the BCA but not strictly comply with the deemed-to-satisfy provisions.

Again, while the Commission is happy to offer its advice, it has no authority to certify whether or not an Alternative Solution is acceptable or meets legal requirements.

In some States and Territories, however, there may be a mechanism to appeal full application of some aspects of the BCA. The local council planning department will be able to advise if there is such an appeal mechanism.

Access policies requiring a higher level of access than that in the current BCA

In many Councils an Access Policy or Development Control Plan (DCP) has been developed to try to improve access to a level considered to be more consistent with the requirements of the DDA and to encourage best practice.

For example, some Access policies require buildings to have doorways wider than the current BCA, or might require more circulation space in accessible toilets than the current BCA.

Some Councils and building certifiers are concerned that if they approve a development which is later subject to a discrimination complaint, they might find themselves also subject to a complaint because they approved the development.

Having an Access Policy or DCP can be seen as one way of reducing the chances of a complaint by requiring developments provide access at a level more consistent with the DDA.

It should be noted that the current BCA sets only minimum legal requirements for access in order to obtain building approval, but does not prevent greater levels of access being provided to achieve best practice, to meet the requirements of a particular equity policy, or to better meet the standards of the DDA.

Appeals against the requirements of Access Policies or DCPs

The Commission has supported those Councils who have developed an Access Policy or DCPs to try and overcome inconsistencies between the BCA and the DDA.

However, the Commission also believes that Councils need to develop clear processes that allow developers to appeal against the additional requirements if they believe it would be too onerous.

If an access feature is not required by the BCA, but is required because of a Council's Access Policy or DCP, an appeal should not be made to the Commission but rather should be made to the Council, asking it to exercise discretion in the application of its policy.

A Council may decide to allow a development, even though it is not fully compliant with the additional requirements of their Access Policy or DCP, because it believes the requirement would be too onerous.

The Council would only face a liability if their decision was proved to have been wrong following a successful complaint against the developer.

The Commission believes that Councils are in the best position to make those judgements and that while the Commission is happy to offer its advice on the application of the DDA to buildings, Councils should not refer developers to the Commission for some form of 'determination' or 'certification' which it cannot give.

The best protection for Councils exercising the authority they have is to have a clear appeal mechanism and to vigorously assess any appeals.

Achieving greater consistency between the BCA and the DDA

The Australian Government is considering proposals for a Disability Standard on Access to Premises (Premises Standards) which would be formulated under the DDA.

The proposed Premises Standards would harmonise the requirements of the BCA with industry's existing obligations under the DDA, thus providing certainty to developers, certifiers, building owners and others, that compliance with the BCA would also mean compliance with the DDA in relation to new building work.

Acting in accordance with the Premises Standards would be a defence to any complaint under the DDA in relation to the matters covered by the Standards.

Does the Commission conduct access audits?

No. Contacts for access consultants can be found however at http://www.access.asn.au .

Does the DDA apply to heritage buildings?

Yes. Registration or claim of heritage value in a building or other items does not create an exemption from the DDA and is not in itself a defence.

As shown by decisions under the DDA to date, however, heritage issues can be taken into account in determining whether barriers to access are unreasonable (which is one of the elements required before a finding can be made of indirect discrimination), and can also be taken into account in relation to the defence of unjustifiable hardship where this applies. ( See the summaries of complaint termination decisions under the DDA.)

If alterations to premises to provide full and equitable access would involve the destruction or removal of significant heritage value, in some circumstances making these alterations could be found to involve unjustifiable hardship. Analysed another way, failure to remove the barriers concerned by making these alterations might be found not to involve any unreasonable condition or requirement.

This does not mean that heritage concerns will be accepted as outweighing the need to provide equal access in any particular case. Organisations which occupy or are responsible for heritage buildings need to ensure that they have looked closely at alternative means of providing equal access which are not prevented by heritage considerations. This may include:

If heritage buildings are not readily and economically able to be modified to provide equitable access, then unless the heritage value of the building is an essential part of the business, consideration should be given to moving to alternative premises better suited to modern requirements including disability access.  This is particularly the case for persons or organisations administering Commonwealth Government laws or programs where the defence of unjustifiable hardship does not apply.

It should be remembered that the main purpose of a building open to the public and used by government or business is to serve the public - which both in law and in fact includes people with disabilities. Heritage values which might justify preservation of a building do not necessarily justify modern business or government activities being conducted there. After all, the heritage value of premises which failed to meet modern human rights standards in other respects - such as gallows or inhumanely small and dark cells - may require the preservation of the premises, but would not be argued as requiring or justifying their continued use for their original purpose.

How does the DDA affect local Government responsibilities for access to premises?

See the separate Local Government FAQ on this.

Who can complain about an inaccessible building?

Complaints under the DDA can only be made by or on behalf of a person or persons aggrieved by the act of discrimination concerned. In the case of premises open to the public but inaccessible to people with a disability:

Do accessible toilets have to be reserved exclusively for people with disabilities?

No. There is nothing in the DDA to mandate accessible toilet facilities being exclusively for use by people with disabilities - so long as in high use areas there are sufficient numbers of accessible facilities to give users with disabilities equivalent convenience of access.

Where there are multiple toilet facilities, venues may well make their own decisions to reserve accessible facilities for use by people with disabilities only, or to implement a priority system. That is however a matter for management decision in the circumstances of each venue, rather than for the DDA. Other users without disabilities may likewise decide voluntarily as a matter of courtesy not to use an accessible toilet if possible where another toilet is provided, to avoid delaying a person who does not have a choice. Again, however, that is not a matter for the DDA.

Of course, the only way to ensure absolutely equal access would be to require that each and every toilet be accessible - but no one has argued that the DDA or other laws require that, in recognition of the additional space that an accessible toilet facility requires.

The position where parking spots are reserved for use by people with disabilities is different. A parked car typically remains in place much longer than a person using a toilet does, so that parking in "disabled" spaces by drivers without a disability can effectively deny people with a disability access at all, rather than only requiring a short delay.

Does a barrier have to be permanent to be unlawful?

No.

(Suggestions to this effect in one case under the Queensland Anti-Discrimination Act, Hosking v Lachlaur Pty Ltd t/as McDonald's Atherton , should not be relied on in relation to the DDA.)

The questions to be answered in finding whether there is indirect discrimination are:

There is no further question "was it permanent or temporary" stated or implicitly required in the legislation .

Temporariness of a barrier may be relevant to reasonableness in some cases but not in others.

The selection and design of the facility etc may also be relevant to reasonableness of a temporary failure to provide access. While it may be reasonable and unavoidable for the performance of any device or facility to degrade between maintenance points, this does not necessarily mean it is reasonable for it to start at the minimum performance required by access standards when it is in new or freshly maintained condition and degrade below that point. Where possible, it would be reasonable to expect that "best" performance will be above the minimum performance levels required for access so that expected minimum performance will still not be below such minimum levels.

Does the DDA require a body corporate to allow installation of access to a person's own unit?

There have been several queries about whther the DDA can be used where a person who owns a strata unit is seeking permission to install a stair lift.

The DDA may apply in this situation; but owner occupied properties do need to be considered separately from rental accommodation or premises open to the public.

Section 23 of the DDA deals with access to premises used by the public or a section of the public. Unless owner occupied premises are also in use for some public purpose such as a bed and breakfast or professional rooms, section 23 would not apply.

Section 25 of the DDA makes specific provision (in section 25) for people in rental accommodation being permitted to make reasonable alterations to premises. This section dealing with accommodation does not appear to apply to owner occupied premises. Section 25 applies to "providers" of accommodation, and it is not clear how this would apply to a person's own premises.

However, a person who owns a strata unit, and is seeking permission from the body corporte or owner's corporation to make adjustments to provide access, could still use the DDA. Section 27 of the DDA applies to associations. An association for this purpose would include a body corporate or owners corporation. Section 27 includes the following provisions:

It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member's disability or a disability of any of the member's associates:

(a) in the terms or conditions of membership that are afforded to the member; or
(b) by refusing or failing to accept the member's application for a particular class or type of membership; or
(c) by denying the member access, or limiting the member's access to any benefit provided by the club or association; or
(d) by depriving the member of membership or varying the terms of membership; or
(e) by subjecting the member to any other detriment.

3) Paragraph (2)(c) does not render unlawful discrimination where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the club or incorporated association.

Access to the person's unit would appear to be the major benefit of membership of the body concerned. Unless there are strong safety or other technical concerns, it is hard to see how unjustifiable hardship could be imposed on other residents by installation of a stair lift at a person's own expense.

See also QADT decision on access to common areas: C v A (September 2005) (decision under Qld AntiDiscrimination Act)

Does the DDA apply to access for councillors at local council meetings?

Unlike some State laws, the DDA does not have a specific provision dealing with discrimination as a member of a local government body - but if the council chambers are open to the public a complaint can be made under DDA section 23. Even if the chambers are not open to the public, the council may constitute an "association" for the purposes of DDA section 27.

Council chambers are often heritage buildings, but that is not decisive as far as the DDA is concerned, since meetings could be moved, even if the building cannot be readly altered. The effect of the DDA is that inaccessible facilities are best regarded as museum pieces, rather than the location for a working democracy.

Can arts funding bodies be liable for inacessible venues being used?

Since there would generally be power in awarding grants for events to require that they be held in accessible venues, there could well be liability via DDA section 122 for permitting discrimination if that power is not exercised and discrimination results.