Notice of HREOC exemption decision
re: Infinity (Gold Coast) Pty Ltd

Disability Discrimination Act 1992

Application
pursuant to section 55 for exemption from a provision or provisions of
Part 2, Divisions 1 and 2

Notice
of decision

The
Human Rights and Equal Opportunity Commission gives notice of a decision
made on 27 June 2000 under section 57 of the Disability Discrimination
Act 1992 ("DDA") concerning access to premises.

Applicants

The
exemption application was submitted on behalf ofInfinity (Gold Coast)
Pty Ltd (A.C.N. 093 106 417)

Decision
of the Commission

The
Commission decided to refuse the application.

Finding
and reasons

In
making this decision the Commission accepted the findings and reasons
contained in the recommendation and statement of reasons prepared by the
Deputy Disability Discrimination Commissioner and published by the Commission
on the Internet at the following address:

www.hreoc.gov.au/disability_rights

Copies
may also be obtained by telephoning the Commission's Disability Rights
Unit on 02 9284 9613.

Review
of decision

Subject
to the Administrative Appeals Tribunal Act 1975, application may
be made to the Administrative Appeals Tribunal for a review of the decision
to which this notice relates by or on behalf of any person or persons
whose interests are affected by the decision.

Alice
Tay

President

on
behalf of the Commission

27
June 2000

Recommended
decision: application for exemption under DDA section 55: Infinity (Gold
Coast)

The
Commission received an exemption application under section 55 of the Disability
Discrimination Act regarding accessibility of a proposed entertainment
venue development, Infinity (Gold Coast).

In accordance with
the Commission's policy on exemption applications under the DDA a notice
was published seeking comments from interested parties. This notice requested
comments on a proposed recommendation to refuse the application. Comments
were requested by 22 June 2000. No comments were received.

I recommend that the
application be refused.

In substance the application
seeks certification that given the particular nature of the experience
to be offered by the venue, provision of fully equal and independent access
for patrons with disabilities would impose unjustifiable hardship. The
application indicates that an action plan is being prepared but has not
yet been completed or submitted.

The Commission has
decided on a number of previous occasions that it is not appropriate to
use the exemption power in section 55 of the DDA simply to certify that
an applicant need not undertake certain actions on hardship grounds, without
there being sufficient reason to conclude that granting an exemption will
advance achievement of the objects of the legislation. I refer to the
decisions in the Women s
Legal Centre
and Lutheran
Schools matters.

In my view the same
approach should be applied in this instance.

I note that a decision
refusing an exemption in this instance does not amount to a decision that
the development should not proceed. The application indicates that the
applicants have received professional advice that an unjustifiable hardship
defence should succeed in the event of a complaint. The applicants may
choose to proceed relying on that advice.

Nor would the proposed
decision on this application determine whether relevant authorities should
or should not grant requisite development or building approvals. That
is a decision for those authorities to take in view of their own responsibilities,
including responsibilities which they may have under the DDA and equivalent
local legislation. If those authorities consider that they are unable
to discharge those responsibilities because of potential liability by
virtue of section 122 of the DDA and the decision of the Federal Court
in Cooper
v HREOC (the
Coffs Harbour City Council case), it is open to them to apply for an exemption
under section 55 in their own right and seek to persuade the Commission
that this would advance the objects of the DDA (possibly including by
reference to procedures or criteria to be applied by local authorities
in making their decisions).

Graeme
Innes

Deputy Disability Discrimination Commissioner

23 June 2000