Setting an Agenda for Disability and Tourism Research
Presentation to a workshop on accessible tourism
Michael Small, Senior Policy Officer, Disability Rights Unit, HREOC
12 July 2005
Areas to be covered:
- Overview of application of the DDA to the tourism industry
- Compliance and pro-active mechanisms for achieving access in the tourism industry
- Future work areas for the Commission and possible industry joint work
DDA and Tourism
While there is no section in the Disability Discrimination Act titled "Tourism" every aspect of the development, management and delivery of tourist services are covered by one or more provision within the DDA.
Whether it is the premises they provide services out of; the transport systems they operate; the accommodation they offer; the information they provide; the experiences they promote or the assistance they offer, each of these involve relationships with the public that can give rise to claims of discrimination.
(Perhaps the most relevant parts of the DDA are section 23 Access to premises and section 24 Goods, Services and Facilities, however employers have responsibilities under section 15 Employment which also need to be considered.)
Tourist experiences can include:
- Accommodation - hotels, motels, B&Bs, eco retreats, Holiday Parks
- Transportation - buses, trains, airplanes, coaches
- Public places - Theatres, cinema, Museums, Galleries and educational settings
- Tours - of the Great Barrier Reef , historic houses or wineries, whale watching, national parks, Bush Tucker Tours and swimming pools
And it isn't only the events and places that are covered - it also incudes the booking systems, information services, accessing the Guides talk and being treated in a manner that is not discriminatory.
While the law makes it clear it is unlawful to discriminate in any of these areas it also provides for defences that mean that sometimes discrimination is not unlawful. The primary defence is that of unjustifiable hardship (see section 11 of the DDA). This defence may be available in a number of circumstances, for example:
- There may be cost issues - particularly for existing buildings or services such as creating access to the Balcony or 'gods' in a theatre
- There may be safety issues that directly of indirectly justify limits - a theme park ride
- There may be topographical or climatic issues that affect the ability of a service provider to deliver equity - access to the front door of ski lodges.
Courts have made it clear however that in order to meet the requirements of the DDA and the intent of Parliament every effort should be made to ensure access is provided to the greatest degree possible.
Compliance with the DDA is achieved through a number of mechanisms:
The DDA (and State and Territory equivalent anti-discrimination laws) are triggered by a complaint to HREOC by someone (or someone on their behalf) who believes they have been discriminated against.
The outcome of a complaint may be a conciliated agreement for the respondent to fix the problem, identify an alternate way of providing the service or commit to longer term solutions. It may also include agreement to pay compensation. If a conciliated agreement cannot be reached the complainant may take their complaint to the Federal Court or Federal Magistrates Service (the system is different for State anti-discrimination complaints).
It is only the Federal Court (or Federeal Magistrates Court) that can make binding decisions about whether or not discrimination has taken place and whether or not a defence of unjustifiable hardship is available to the respondent.
While often complaints result in individual changes for the complainant they can also give rise to more systematic change such as getting rid of a step into a Museum or providing tour information in a large font. These changes will benefit many people with disabilities and not just the one who complained.
The DDA has a provision that allows the Commonwealth Attorney-General to develop Disability Standards in certain areas. Disability Standards are regulations that codify the general non-discrimination provisions of the DDA.
Essentially where someone can show they are complying with a Disability Standard they can be confident they are fulfilling their responsibilities under the DDA. At the moment there is an Accessible Public Transport Disability Standard in place and we are close to having standards in the area of Education and Access to Premises.
The Transport Standard and Access to Premises Standard (when adopted) in particular include sufficient technical detail and references to allow people to develop transport systems and buildings in a way that are sure to meet access requirements.
The Access to Premises Standard will essentially consist of the access provisions of a revised Building Code of Australia (BCA) so that when the standard is in place anyone building a building in compliance with the BCA can be confident they are complying with the DDA (apart from for those things like fit-out, counter heights, location of public phones, staff interaction etc which are issues not covered by the BCA but are still areas of possible discrimination under the DDA).
The Transport and Access to Premises Standard's will have a profound effect on the tourism industry as they progressively take effect. For example all new buildings and existing buildings undergoing renovation will have to comply with the Access to Premises Standard with a few specified exceptions and all transport systems covered by the Transport Standard will have to achieve full access over a specified timetable.
These standards will automatically ensure better access over time, but in the case of buildings, all existing buildings that are not undergoing new work will continue to be subject to possible complaints if they are inaccessible.
It is important therefore that tourism operating out of existing buildings is aware of their responsibilities and encouraged to meet them proactively. Similarly it is important for the tourism industry to be fully aware of the Transport Standard, its compliance timeframes and exactly what is covered.
The Commission has encouraged voluntary industry agreements between the disability community and those responsible for service delivery. Examples of this include the electronic commerce industry standards developed by the Australian Bankers' Association and the Cinema Captioning program.
While these agreements are voluntary and do not replace the existing rights of individuals to lodge complaints of discrimination they do offer a positive, planned approach to achieving a degree of compliance using best practice models.
Most recently an example of an industry agreement that will directly affect the tourism industry is one announced by the Hotel and Motel Association of Australia (HMAA). HMAA has announced an industry agreement with organisations representing Deaf people and people with a hearing impairment concerning facilities in their member hotels and motels.
This agreement varies according to the size of hotels but generally includes the provision of portable non-audible door alarms, televisions capable of accessing free to air captioning, telephones with built in or clip on amplifier, telecoil coupler and flashing light alert, text telephone or access to email and vibrating alarm clocks.
Action Plans are a voluntary provision within the DDA aimed at encouraging service providers to identify existing barriers to access and set out a plan of action to eliminate them over time.
Organisations that develop Action Plans can lodge them with the Commission which makes them available through our web page. http://www.humanrights.gov.au/disability_rights/action_plans/index.html
An Action Plan can address any aspect of the services delivered by a tourism operator. For example it may include commitments to eliminating physical barriers such as a step or uneven walkways, it may include commitments to making their web page accessible or the production of critical information in large print or as an audio format or it may include a commitment to producing its promotional video with captions.
There are obvious advantages to the pro-active compliance approach. First planning for change reduces the chances of costly complaints, secondly an operator can manage change and allocate resources to that change over a period of time and finally the DDA allows for the contents of an Action Plan to be considered as part of a defence of unjustifiable hardship in the event of a complaint.
Future work and co-operation
There are a number of initiatives the Commission would like to see discussed in the workshop on sustainable tourism including:
- The role of Government/industry bodies in providing accurate information on responsibilities under anti-discrimination law.
- Research on and implementation of a common approach to presenting information on accessible tourism features - including ensuring that all web based information sources meet accessibility criteria.
- The possibility of a 'one stop shop' of good practice, advice and contacts (note the EU initiative One Stop Shop for Accessible Tourism in Europe http://www.ossate.org/ )
- The possibilities of a Govt/industry/community sector interest group to champion accessible tourism and an ongoing CRC research program.
In addition while the Commissions resources are very limited there are a number of areas where we might offer assistance including:
- the Commission would welcome discussions with any part of the tourism industry that would like to work in partnership with the disability sector on other industry agreements, and
- the Commission would welcome approaches from individual industry members or associations to discuss the value and process for developing Action Plans.