Application for extension of temporary exemption: Australasian Railways Association
The Commission has received an application from the Australasian Railways Association for a temporary exemption so as to continue in effect until 31 December 2011 the exemption which was granted by the Commission on 8 January 2010.
This exemption (which expires on 23 July 2010) in turn extended the effect of exemptions granted by the Commission on 23 January 2007 and on 5 November 2007.
The January 2010 decision by the Commission was made in response to a request by the applicants for the effect of the existing exemptions to be extended to provide regulatory certainty while they
- continue to undertake major purchasing and infrastructure works necessary to increase the provision of accessible rail public transport and
- complete the development of a rail industry Code of Practice on accessibility with the intention of translating the obligations of the rail industry under the DDA, the Disability Standards for Accessible Public Transport and the current temporary exemptions into practical and detailed performance criteria.
Noting that the exemptions granted do not postpone provision of access or excuse non-provision, but rather seek to define in operational terms what the required access is, the Commission decided on 8 January to grant the further exemption requested.
However, the further exemption granted was to extend only for a period of 6 months beyond 23 January 2010, rather than the longer period requested.
This limited period was due to a technical problem affecting the Commission's handling of the application.
This was, in brief, that (as an unintended consequence of a legislative scheme to migrate the power to grant of exemptions in relation to the Disability Standards for Accessible Public Transport from section 55(1A) of the DDA to within the Standards themselves), a gap in the power of the Commission to make decisions on exemption applications regarding the Standards would exist from 8 January 2010 until a point in May/June 2010 when 15 Parliamentary sitting days had elapsed following the tabling of the amended Standards which include this power.
The Commission did not consider it practicable to conduct meaningful public consultation on the application, in accordance with its usual practice, in the limited period available prior to 8 January. Neither did the Commission consider it appropriate in effect to refuse to consider the application by postponing a decision until its power to make a decision had lapsed.
Having regard to the extensive process of consultation applied to the original exemptions, the Commission considered it appropriate to grant a six month period of further exemption, but not to grant a longer exemption without consultation.
The power for the Commission to consider applications for exemption from provisions of the Disability Standards for Accessible Public Transport has now been restored with the entry into force of the revised Standards incorporating the exemption power.
Request for submissions
In accordance with its policy on exemption applications , the Commission seeks to give interested parties an opportunity to participate in the process of considering this application.
The Commission seeks submissions by 20 July 2010 , preferably by email as a Word, text, html or rtf document, to disabdis@humanrights.gov.au or by fax to 02 9284 9797
To promote open public discussion and exchange of views, the Commission intends to post submissions on its Internet site. Any requests for material to be treated as confidential should be clearly indicated.
David Mason
Australian Human Rights Commission
21 June 2010