exemption decision: infinityNotice 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