Initiatives to achieve better access to the built environment
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Address given
by Graeme Innes AM 11 May 2000 |
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As you know, the Commonwealth Disability Discrimination Act, and equivalent laws in all States, make it unlawful to discriminate on the ground of a person's disability. One of the areas covered by the Act is access to premises. The only exception to this is where a building is already constructed not providing access, and alteration to provide access would cause unjustifiable hardship.
Most of you, being Queenslanders, would also be aware of the decision in Cocks v State Of Queensland, a decision under the equivalent Queensland legislation. The government in this decision was required to install an elevator next to the very aesthetically pleasing but totally inaccessible sweeping staircase at the front of the building. The accessible entrance 100 metres away at the rear was not regarded as adequate. Over the past four years the Commission has undertaken a number of initiatives to provide guidance to owners, operators and users of premises on their rights and responsibilities under the DDA. In addition the Australian Building Code Board (ABCB) has committed itself to revising the BCA to make it more consistent with the DDA.
Many individuals, companies, local governments and industry professionals have attempted to develop best practice means of ensuring access for all users. All these initiatives contribute to the development of an accessible environment. At the same time we hope to provide those responsible for premises with the certainty they are seeking that they are complying with anti-discrimination law.
The aim is access for all.
The DDA is a general law that removes discrimination in a wide range of activities. Access to premises is one of them. We all need something that explains what this involves and how to do it.
The DDA now contains a power to make a standard about access to premises. The government is presently considering the form that standard might take. Put simply, a standard is the detail that the DDA itself lacks. Under the Act anyone who complies with the standard is protected against discrimination complaints.
A general consensus is emerging that the content of the standard should be provided as far as possible by the Building Code of Australia. The Commission strongly supports this. The logic of one replicating the other, and the simplicity it will bring, is hard to argue against.
The philosophy of the DDA is that all people have rights to access the economic, social, cultural and political life of the community. This does not rule out additional special assistance - but that is not what the DDA is about. It's about going to the movies or the cricket, or into shops, offices and schools and receiving equal treatment- in terms of physical access, non-discriminatory service, education, employment etc; in short its about removing barriers be they physical, technological or attitudinal.
We do not want and must not have a separate regime that encourages the marginalisation of people with disabilities and exerts a new and different regulatory burden on industry.
So because of the focus of the DDA we particularly want to help mainstream organisations and activities, such as the Australian Building Codes Board and their management of the Building Code. It is from that direction that must come continuing improvement in access and participation for the whole community.
Access is just an ordinary aspect of good building design. As we come to grips with how to get the outcomes we want, we all tend to lean on the knowledge and experience of specialists. But the best results for the most people will in the longer term be achieved by good design where access doesn't need specialised advice but is just part of the ordinary process of putting up and operating a building. One day we won't need access experts.
Any future DDA Standard covering all aspects of access to and use of premises would need to address a broader range of access issues and could consist of a number of elements including:
- those parts of new buildings that the current BCA access provisions cover, such as sanitary facilities, controls, ramps, and signs
- those parts of new buildings that the current BCA access provisions do not cover, such as furniture and fitments
- those parts of the external built environment that the BCA access provisions do not cover such as parks, street furniture, pathways and infrastructure systems
- management and maintenance issues that can have a significant effect on the use of premises
- existing premises
A comprehensive DDA Standard covering access to premises will evolve over time to include some or all of these elements as they are completed. This would mean that the matters not included in a DDA Standard would still be subject to the general complaint provisions of the DDA.
Most effort over the past four years has gone into revising the BCA to make it more consistent with the provisions of the DDA. Progress in this area has been slow due in part to a concern in some quarters that significant changes to regulations covering new buildings will result in economic and technological difficulties for owners and operators of existing buildings undergoing new work.
I do not share those concerns. While existing buildings undergoing new work or significant refurbishment require an approval which 'triggers' the need for compliance with the current BCA
1. there is already a mechanism at a local level for building owners and operators to seek variations from compliance with the current requirements of the BCA or local planning regulations in relation to existing buildings undergoing new work or significant refurbishment, and
2. the Disability Discrimination Act is clear in its intent to ensure owners and operators do not experience unjustifiable hardship in relation to the provision of access for people with disabilities.
If a future revised BCA is to achieve consistency with the requirements of the DDA and be referenced as part of a future DDA Standard its scope and provisions should not be limited by concerns about their effect on existing buildings when mechanisms already exist to address those concerns.
The case of Cooper v Coffs Harbour City Council and the Commission's comments on that case show that building and development approval bodies have a responsibility to consider the requirements of the DDA and a right to make decisions about what might constitute unjustifiable hardship when making those decisions.
While waiting for that process to be completed, however, there are a number of steps I can take to recognise progress as it occurs.
In July 1997 Commissioner Hastings issued the Advisory Notes on Access to Premises aimed at assisting those responsible for premises to better understand their responsibilities in relation to the DDA. In March 1998 the Commission reissued those Advisory Notes and made a commitment to revising them regularly as and when changes to the BCA occurred.
The Advisory Notes are approaching the end of their useful life. If a process is established where people with disabilities can participate with industry and regulators in preparing a DDA standard then the Commission's advisory notes will be withdrawn to allow that new process full scope for innovation. Obviously if there is inadequate progress towards a standard the Commission will need to consider reissuing its own advice simply because many people will come back to us with questions about what to do. I should emphasise that would not be our preferred outcome.
While the scope of the BCA has been extended to include a number of issues such as tactile warning indicators and signage there are still a number of potential barriers for people with disabilities using buildings that are not covered by the BCA. This includes items such as furniture and fitments and services such as changing rooms in clothing shops. I would support any moves to extend the scope of the BCA and there are many public areas outside buildings, such as parks, BBQ areas and street furniture, not covered by the BCA and therefore not included in current consultations. They are nonetheless subject to the DDA. These will need to be addressed by the BAPC or some other process if they are to be included in any future DDA Standard.
The BCA does not specifically address issues concerning the way a building functions in terms of management and maintenance issues. Many such issues, however are critical for continuing access to and use of premises. For example a failure to maintain a lift may result in it not operating, thereby denying access to someone using a wheelchair to all parts of a building.
Discrimination arising from inadequate or inappropriate management will continue to be subject to the normal complaints handling procedure.
Existing premises, including heritage buildings, are covered by the DDA and could also be the subject of a future DDA Standard. At this stage however discussion is focusing on establishing nationally consistent mechanisms for dealing with existing buildings undergoing new work or refurbishment and requiring a development or building approval.
A nationally consistent mechanism however will take considerable time to develop and will to some degree be dependent on the completion of the review of the BCA.
Opportunities for local initiatives
While supporting continued discussions on possible national mechanisms for processing requests for variations in relation to existing buildings I am eager to take whatever action I can now to encourage local initiatives to create accessible environments.
Many developers, owners, operators and local governments are genuinely attempting to ensure premises are non-discriminatory. Initiatives such as Access Policies or Development Control Plans prepared by local governments are creating a clear expectation that developers and operators must ensure their premises are non-discriminatory by including access in the very beginning of the design brief stage.
The decision in Cooper v Coffs Harbour City Council makes it clear that local government has a crucial role to play in relation to the DDA in exercising approval authority. If approval authorities exercised their power with due regard to the provisions of the DDA (as recommended in the Commission's comment on Coopers case, available on the Commission's Homepage at www.hreoc.gov.au) the likelihood of successful complaints against developers, operators and local government would be significantly reduced.
There are many existing premises that are not subject to the need for development or building approval but which are still covered by the provisions of the DDA.
Owners and operators have been encouraged by the Commission to develop Action Plans to address identified barriers to access to those premises and the services operating out of them.
Benefits of Action Plans
Section 61 of the Disability Discrimination Act allows for the development of Action Plans that may be lodged with the Commission for registration. Any Action Plan lodged should consist of a number of elements described in Guides developed by the Commission and available via www.hreoc.gov.au/disability_rights .
Action Plans can be of benefit to an owner, operator or service provider as they:
- eliminate discrimination in an active way
- reduce the likelihood of complaints being made
- increase the likelihood of being able to successfully defend complaints
- increase the likelihood of avoiding costly legal action
- allow for planned and managed change in business or services.
While the mere existence of an Action Plan does not in itself constitute a defence under the DDA any plan registered with the Commission (or any other relevant document) must be considered by the Federal Court as part of a defence to unlawful discrimination on the basis of unjustifiable hardship.
An Action Plan could also be used at any time in the complaints handling process by a respondent wishing to convince a complainant of its commitment to eliminating discrimination.
For an Action Plan to be effective it must convince prospective complainants and ultimately the Federal Court that it shows real commitment to eliminating discrimination, reflects relevant priorities developed in consultation with people with disabilities, has clear timelines, and is in fact being implemented. A Commission publication available at www.hreoc.gov.au entitled Developing an Effective Action Plan discusses these issues in detail.
Conclusion
The Disability Discrimination Act is not a dragon waiting to gobble up the profits accruing from owning, building and operating premises. It is a law which provides that the 20`% of Australians with disabilities should be treated in the same way as everyone else. It shares the aims of property owners and managers- to make premises as easy to use, and therefore as attractive as possible, for all. It recognises that infrastructure change can be costly, and includes mechanisms to allow for this. The challenge for all of us is to achieve a regime which provides clarity, certainty, and access for all. Working together, as we are, I am confident this can be achieved.