Recommendation for refusal of temporary exemption applied for under
section 55 of the Disability Discrimination Act: Victoria Department of
Infrastructure

We have received by email on 18 May the attached application from Victoria's
Department of Infrastructure. The application (MS Word ) seeks an exemption for a
period of 18 months from the physical access requirements of the
Disability Standards for Accessible Public Transport in relation to proposed trial services to operate between
Daylesford and Ballan and between Mt Egerton and Ballan.

I recommend that the application be rejected, without the need to
engage in our usual public comment process, on the basis that it does

not relate to a matter where there is even an arguable case of unlawful
discrimination.

This is on the following basis.

1. The proposed services are to be operated using buses which are
presently in use as dedicated school buses.

2. The Department of Infrastructure correctly apprehend that when being
used in the more general services proposed, the vehicles will not be
covered by the exceptions which are provided in the Disability
Standards for Accessible Public Transport dedicated school bus services.

3. However, this does not mean that there would be liability under the
Standards for using the buses more widely in the next 18 months. It is
not necessary to rely in this instance on the dedicated school bus
exceptions, neither the immediate obligations for vehicles new to
public transport service in Australia, nor the staged obligations
commencing more generally on 31 December 2007, will apply to the
vehicles concerned in the period of exemption applied for.

4. The buses in question are already in public transport service in
Australia. School bus services are clearly contemplated by the
Standards as being within the meaning of public transport services:
otherwise there would have been no need for the specific exceptions
provided within some of the physical access provisions of the Standards
for dedicated school bus services. (The position might be argued to be
different for a school bus provided by a school itself exclusively for
its own members and thus not being in "public" transport service, but
the buses concerned here are not in that category.) The buses concerned
are thus not covered by the requirement in clause
32.1 of the Standards for immediate compliance (subject to the defence
of unjustifiable hardship where this can be demonstrated) for services
operated with new vehicles.

5. The 25% access targets which do apply regarding services and
vehicles more generally do not apply until 31 December 2007, which is
still more than 18 months away.

6. An 18 month exemption as applied for would thus have no effect, and
should be refused as being unnecessary.

I have sought the view of the Accessible Public Transport
Jurisdictional Committee (with which the regulations require us to
consult, and which comprises representatives of each jurisdiction's
Transport Department, and the Attorney-General's Department), and they
are of the same view as am I.

David Mason

Director Disability Rights policy

13 June 2006