olympic roads and transport authority exemption decisionNotice of Commission exemption decision re: Olympic Roads and Transport Authority

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 accessible buses during the Olympic Games and Paralympic Games.

Applicants

The application was submitted on behalf of:

  1. ORTA, a statutory body representing the Crown in the right of New South Wales, established under the Olympic Roads and Transport Authority Act 1998 (NSW);
  2. The New South Wales Department of Transport, the Queensland Department of Transport, the Australian Capital Territory Department of Urban Services and the Victorian Department of Infrastructure.
  3. Bus 2000 Ltd [ACN 089 305 260], a company limited by guarantee, established to procure (under contract with ORTA) the required numbers of buses, coaches, drivers and support staff for the Olympic and Paralympic bus task;
  4. Public and private bus operators in New South Wales, the Australian Capital Territory, Queensland, Victoria and South Australia from whom ORTA and Bus 2000 Ltd will be procuring accessible buses during the Olympic and Paralympic Games periods.

Decision of the Commission

The Commission grants a temporary exemption from the provisions of section 24 of the DDA in relation to proposed temporary transfer of accessible buses from existing services to services in relation to the Olympic Games and Paralympic Games.

This exemption applies only in relation to the transfer of buses from other services to Olympic and Paralympic service and does not affect the obligations of relevant operators and authorities under the DDA in other respects.

This exemption expires on 4 November 2000.

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

See also notice of inquiry and zip archive of submissions

ORTA exemption application: recommendation for decision

Introduction and recommended decision

The Human Rights and Equal Opportunity Commission ("HREOC") received an application on 17 May 2000 under section 55 of the Disability Discrimination Act ("DDA") from the Olympic Roads and Transport Authority ("ORTA") on its own behalf and on behalf of various other transport authorities and operators for exemption from section 24 of the DDA, in relation to proposed temporary transfer of a number of accessible buses from existing services to services in relation to the Olympics and Paralympics.

A notice of inquiry on this application was issued by the Deputy Disability Discrimination Commissioner on the same date, requesting submissions by 13 June 2000.

The Notice of Inquiry requested comment on a proposed recommendation to HREOC that an exemption be granted as applied for, with the specification that the exemption applies only in relation to the transfer of buses from other services to Olympic and Paralympic service and does not affect the obligations of relevant operators and authorities under the DDA in other respects.

The proposal to grant an exemption in these terms was made on the basis that to do so would be consistent with and promote the object of the DDA to eliminate discrimination as far as possible. This view was indicated to be based on the reasons and material provided by ORTA in its application and in particular on the following considerations.

  • If an exemption is not granted, bus operators who have brought accessible vehicles into operation face a potential liability (in making those vehicles available to ORTA and therefore temporarily withdrawing them from other services) which is not faced by operators who have not made the same progress in providing non-discriminatory services (and who therefore have no such vehicles to provide to ORTA). It is appropriate for HREOC to use its exemption power to ensure that the DDA provides incentives rather than disincentives to measures to achieve access and equality.
  • The potential complaints under the DDA which this exemption would preclude would, in essence, be concerned with which services accessible buses should be applied to in the relevant period, rather than with whether and at what rate operators should be required to acquire and deploy accessible vehicles. The Notice of Inquiry endorses the view previously expressed by HREOC, in its reasons for granting an exemption regarding Melbourne trams, and by the Disability Discrimination Commissioner, in her decision on a complaint regarding access to Summer Hill railway station, that HREOC is not best placed to decide issues of allocation of accessible services as between different locations. The objects of the DDA are best served if these issues of allocation are determined by operators in consultation with users of services.

Over 80 submissions were made by the due date. Almost all of these were provided electronically and were able to be posted on HREOC's web site (although in the case of those which simply endorsed another submission already made, this fact was noted on the site rather than the original submission being reproduced repetitiously).

The process indicates a considerable measure of success for HREOC's policy (developed by DDA policy staff in 1995) and practice in providing an opportunity for interested persons to comment on exemption applications, and in making submissions publicly available through the internet as soon as practicable after they are received so that other persons interested may comment on these submissions as well as on the application and HREOC's own documents. It should be noted that there is no legal requirement in the DDA itself for a public procedure of this kind. A number of submissions and comments, while opposed to the proposal to grant the exemption, also expressed appreciation for the opportunity to comment and commended HREOC for engaging in a public process in this respect.

Submissions oppose the granting of an exemption. Against this, HREOC has before it the material in support of granting an exemption provided by the applicants.

The weight of submissions indicates the importance to the disability community of accessible transport and of the DDA as a means for achieving it as well as the strength of views on this particular matter. It is also likely, as stated in some submissions, that the submissions made (both by representative organizations and by individuals) reflect the views of many other persons who for one reason or another have not directly participated in this process - although it has been observed before now that those who oppose a proposed measure are commonly more active in expressing their views than those who support or would benefit from it.

HREOC seeks submissions on applications for exemption, and on proposed decisions in some cases including this one, to inform itself in making the decision which is its responsibility under the DDA.

The consideration of exemption applications regarding public transport in Adelaide, Perth and Melbourne has demonstrated one aspect of the role of HREOC and the DDA, with constructive input through the public participation processes provided by HREOC, in facilitating movement away from a discriminatory status quo towards achievements of the objects of the legislation. It is relevant to note that HREOC has been prepared to make the decisions required whether or not universal community support has been forthcoming on these occasions. Perspectives on the best means for achieving the objects of the DDA may legitimately differ, and this in itself should not be seen as calling into question the good faith or commitment to the objects of DDA of those with different views. HREOC is required to make its own decisions on its assessment of the merits of an application in relation to the objects of the DDA. Submissions represent important contributions to these decisions but do not constitute either votes or vetos.

After considering all the arguments and information provided in submissions, it remains my view that the reasons given in the Notice of Inquiry for granting an exemption in this matter are correct and that an exemption should be granted accordingly as applied for, with the specification that the exemption applies only in relation to the transfer of buses from other services to Olympic and Paralympic service and does not affect the obligations of ORTA and other relevant operators and authorities under the DDA in other respects.

The essential point is that the potential complaints under the DDA which this exemption would preclude would, in essence, be concerned with which services accessible buses should be applied to in the relevant period, rather than with whether and at what rate operators should be required to acquire and deploy accessible vehicles. As decided by HREOC on a number of previous occasions, the objects of the DDA are best served if these issues of allocation are determined by operators rather than by the DDA.

For this reason I also recommend against imposition of any of the conditions proposed by submissions on the grant of an exemption in this matter, each of which would have the purpose and effect of constraining the ability of operators to allocate accessible vehicles to different services from time to time as they see fit.

As pointed out in the Notice of Inquiry, similar applications for exemption are presently before the relevant decision makers under the NSW Anti Discrimination Act, the Queensland Anti Discrimination Act and the Victorian Equal Opportunity Act. The Queensland Anti Discrimination Commission and the Victorian Equal Opportunity Commission have assisted in the consideration of this application to HREOC by providing submissions. Each decision making body must, of course, make its own decision based on its own view of the merits of the application before it.

The submission from the Queensland Anti Discrimination Commission (QADC) notes that constitutional questions may arise if an exemption is granted by HREOC under the DDA but the equivalent application under the Queensland Anti-Discrimination Act is refused by the Queensland Anti Discrimination Tribunal (QADT). The constitutional question is whether the State legislation would in this instance be rendered inoperative due to inconsistency with the DDA. The answer to this question is uncertain and in practice the QADC view may well be correct - that whether Queensland buses are released for ORTA's purposes will depend on whether an exemption is granted under Queensland law by the QADT.

I note that in my view it is much more likely that if accessible public transport standards under the DDA were in force, or entered into force prior to the relevant period for this exemption application, this would, pursuant to s109 of the Constitution, displace not only any need for an exemption under the existing DDA provisions, but also any inconsistent operation of State or Territory discrimination legislation and any need for exemption thereunder. Entry into force of these standards is, however, not a matter within the control of HREOC.

A more detailed discussion and analysis of issues raised in submissions follows.

GRAEME INNES AM
Deputy Disability Discrimination Commissioner
20 June 2000

Overview

A small number of submissions appear to indicate a misconception that the proposed exemption is to cover a lack of accessibility in Olympic and Paralympic services. The majority of submissions indicate an understanding that the purpose of the application is to facilitate provision of accessibility for these services, but object to this being achieved by transfer of accessible vehicles from other services and other places.

Many submissions indicate that the proposed exemption would be supported only if the draft Disability Standards for Accessible Public Transport were immediately authorised under the DDA.

Reduction in the number of accessible buses on existing services could constitute discrimination under the DDA in the absence of an exemption such as that proposed, although possible defences would have to be considered in the event of a complaint including an argument based on the special measures provision of the DDA where the purpose of reduction in accessibility of one service is provision of accessibility to another transport service.

Although ORTA provided indicative figures subsequent to its application, the level of reduction in accessibility in any particular service is not known at this point because it is not known how widely ORTA will be able to source buses so as to minimise the impact of its requirements on accessibility of existing services in any particular location. Refusing this exemption could reduce the areas in which reduced accessibility is experienced for the relevant period, but make the reduction more severe where it does occur.

The decision for HREOC is whether granting the exemption applied for is justified having regard to the objects of the DDA.

On the basis of submissions made the following comments can be made:

  • It does not appear appropriate for HREOC to base its decision on this application on actions to progress authorisation of the draft Standards by governments or others in a position to take such actions. It should be noted that if the draft Standards were in force or were to enter into force immediately as envisaged by many submissions, no need for this exemption would arise. The first relevant compliance point, at which 25% of services must be accessible (subject to any variation on unjustifiable hardship grounds) would not arise until five years after authorisation of the Standards. In effect authorisation of the draft Standards would give a five year exemption for existing vehicles.
  • The argument made in some submissions that the Olympics and Paralympics offer an opportunity to showcase accessible transport is in fact an argument in favour of granting rather than refusing the exemption, although as noted in other submissions this would have to weighed against the impact of these showcase events on the ability of people to conduct their everyday lives.
  • The decisive point appears to be the obvious regulatory disincentive imposed to commencement of accessible vehicles in service if they cannot be reallocated to a different service (whether temporarily or on a longer term basis) to meet different demands without incurring legal liability. A negative impact should be expected on decisions to acquire accessible vehicles if operators are not able to determine for themselves where and on what services to deploy these vehicles.
  • The objects of the DDA are best served if the resources of anti discrimination agencies and the power of the legislation are applied in achieving commitment to eliminate discrimination as rapidly as reasonably possible, rather than in seeking to manage the disposition of those accessible vehicles which have become available at any point.
  • The argument in some submissions appears to be that more buses from Sydney should be applied to the services in question rather than buses being sourced from elsewhere, so that any disadvantage falls more heavily on people in Sydney rather than on people in other places. Whatever the merits of this argument may be, it is not one which HREOC should regard itself as called on to arbitrate in dealing with this application or with its responsibilities under the DDA.
  • The exemption should be granted accordingly.

Issues raised in submissions

The following points and views emerge from submissions.

Mr Corcoran's initial submission and those adopting it make the following points:

  • Draft Accessible Transport Standards were first approved by the Australian Transport Council as "technically feasible" in June 1996 - four years ago. Some State and Territory Governments have used those Standards as benchmarks and have been purchasing only accessible buses since late 1994 or early 1995.
  • NSW Dept of Transport knew in August 1994 that they would be hosting the Olympics and Paralympics. Since late 1994, South Australia has purchased only accessible buses - why has NSW with a much bigger fleet not purchased more accessible buses by now.
  • 8 years after the DDA, 4 years since draft Transport Standards were approved by the ATC as technically feasible and 12 months down the track since they were 'finally' approved by ATC, we do not Accessible Transport Standards in Australia.
  • The disability community is getting more frustrated and angrier by the day with delays hindering the long term development of a fully accessible transport system for Australia.
  • An accessible transport system is vital for our aging society where there continues to be a proportional growth of our entire population with mobility disabilities. An accessible transport system is essential if the Commonwealth government is serious about 'Welfare Reform' and enabling the full participation of people with a disability in employment, education and training and recreation.
  • Both ORTA and the NSW government are seen as demonstrating a lack of real commitment to implementing accessible transport and infrastructure
  • An opportunity to showcase to the world via the Olympics, a fairer, smarter and equitable transport system is now going to be lost.
  • This exemption would only be supported if commitment by the NSW and Commonwealth governments to accessible transport were demonstrated by the immediate promulgation of the Accessible Transport Standards in Federal parliament as they were approved by the Australian Transport Council (ATC) on April 30, 1999.

This submission also raises questions regarding the role of various organisations in relation to support for or lobbying against adoption of the draft Standards.

Points made in other submissions also include the following:

  • That bus operators are working in the direction of access for people with disabilities does not mean that they should be allowed to take a couple of steps backwards
  • The idea of Olympic and Paralympic events as a showcase for accessible transport is questionable if it is achieved to the detriment of all other people with disabilities outside of the Olympic arena.
  • Does the fact that this and exemption is meant to only be for a couple of months, really make it any more acceptable?
  • Transport means the difference between staying at home or living some kind of quality of life. No-one has the right to simply take what little transport resources there are, away from people with a disability without some kind of consultation mechanism and something else put in its place for the interim period.
  • Some people have organised their lives based on accessible bus services
  • Hard-won gains by persons with disabilities in more progressive states should not be compromised by Sydney's need, real or otherwise, to "borrow" from these fleets their newest and most accessible buses, just so Sydney can look good in the eyes of the international community at the expense of others throughout Australia.

A number of submissions (including those from the Queensland Anti Discrimination Commission and from People With Disabilities NSW) propose that if HREOC is to grant an exemption it should do so only on a range of suggested conditions, including that

  • bus operators participating in this project agree to develop action plans under the DDA in consultation with people with disability; these action plans to set out detailed pathways for the upgrading of services to full compliance with the DDA and include appropriate target dates for the achievement of compliance
  • all non-accessible low floor buses in the possession or control of the NSW Government be retro-fitted immediately to provide for accessibility for people with disability
  • precise details about operators and services to be affected to be specified
  • mitigating measures and alternative transport arrangements be required to be provided by ORTA and/or other authorities and operators involved.

Exemption is not sought regarding accessibility of Olympic or Paralympic transport services

In view of comments made in a number of submissions, it appears important to note that what has been requested and proposed to be granted is not a complete exemption for ORTA, or for other parties concerned, regarding limited levels of provision of accessible services for and in relation to the Olympics and Paralympics. What is proposed to be exempted is rather reduction of accessible services in some places during the relevant period as a result of temporary transfer of some accessible vehicles (together with other vehicles) to other services for the purposes of the Olympics and Paralympics.

If no effort or reduced effort was being made by ORTA to provide accessible transport for and in connection with these events, there might be no impact on accessible services elsewhere, and no occasion for this exemption application would arise.

Whatever the history which has led to this point and whatever might have been done since 1994, it appears clear that as matters now stand refusal of this exemption would be likely to limit accessibility of Olympic or Paralympic transport services (by reducing the preparedness of bus operators to release buses for ORTA's purposes).

Mr J Muir, in endorsing the submission from Mr Corcoran opposing the proposed exemption, comments that:

I will be attending the Olympics! I use a wheelchair for mobility! I will be using public transport as requested if not demanded, by SOCOG! I support no exemptions!

If the exemption were refused as suggested by this comment and other submissions, the likely consequence (on the evidence provided by ORTA in support of the application) would be that while people elsewhere in Australia may have undiminished access to accessible bus transport in the Olympics period, people with a disability attending Olympic and Paralympic events (and participants in those events who have a mobility disability) may not have effective access to accessible bus transport.

Another comment endorses Mr Corcoran's submission but also suggests that

Perhaps consideration could be given to contracting some of the South Australian buses for the period of the Olympics and Paralympics, as is happening with buses from other Eastern states.

South Australian government transport authorities are not listed among those on whose behalf the exemption application has been made, although private operators in South Australia are. (It remains open to operators and authorities not presently listed in this exemption application to seek an exemption in similar terms.) It must be emphasised however that the effect of refusal of the exemption applied for would be to leave any operators in South Australia exposed to possible DDA liability if they do transfer buses for ORTA's purposes for the relevant period.

The issue is limited access for Olympic/Paralympic services versus limitation of access for other services

Other submissions more clearly reflect an understanding of, and objection to, the fact that ORTA is seeking an exemption not for any limits in accessibility of Olympic and Paralympic transport services, but rather in relation to the impact on other services of proposed temporary diversion of a large number accessible buses (together with other buses) to Olympic and Paralympic services.

Mr D Davis comments:

I realize that the Olympics would place an extraordinary strain on the most accessible of transit systems, but seeing as accessible transit is very much in its infancy in most parts of Australia, I would find it incomprehensible to take from those needing accessible, inexpensive transport to get to work, attend classes, and participate in their communities. I'm sorry, but Sydney should live with its own shortcomings, with the hope that someday these shortcoming will no longer be valid.

Is there a discrimination issue under the DDA in this

Anger and frustration are understandable reactions from people who, having waited years for accessible transport services, now face the prospect of those services being interrupted or diminished for two months. The prospect of DDA complaints being lodged in response to this has clearly been sufficiently real to motivate this application and can only be regarded as confirmed by the terms of many submissions.

In at least some cases the interruption of accessible services may involve discrimination which could be unlawful under the DDA in the absence of an exemption such as that applied for.

This is, of course, subject to other defences which might be raised in response to a complaint, including a possible argument that disruptions or reductions of service to people with a disability in some locations are justifiable as "special measures" under section 45 of the DDA, which protects actions reasonably intended to provide people with a disability access to services even where these actions would otherwise be unlawfully discriminatory.

Whether this defence could be established, including the approach which should be taken to determining whether measures are "reasonably" intended for their beneficial purpose, could only be ascertained in dealing with a complaint. For the purposes of considering this application it appears necessary to accept that it covers actions which may involve some discrimination which would otherwise be unlawful.

It is only a partial answer to say that

  • other public transport users will also face disruptions of normal services during the relevant period to cater for the demands of hosting these events;
  • in Sydney itself these disruptions are anticipated to be such that commuters are being encouraged to consider seriously options such as working from home, while school timetables have been altered so that students will be on holiday and not require school bus services; and
  • the scale of Olympic and Paralympic transport demands will be such that inaccessible as well as accessible buses are being sought by ORTA.

It also needs to be taken into account, but does not appear to be recognised in many submissions, that ORTA is not seeking each and every accessible bus in Australia, and that in seeking to source buses from around Australia ORTA is attempting to minimise the impact on accessible services in any one location.

However, given the number of accessible buses sought by ORTA (now advised as being 142 buses for the Olympics, increasing to 205 buses for the Paralympics) and the fact that non wheelchair accessible buses still constitute the majority of most bus fleets in Australia, it seems inevitable that transfer of buses for ORTA's purposes as proposed will involve accessible services being significantly reduced or replaced by inaccessible services in some instances. All travellers may have to bear services being less frequent, more crowded or otherwise less convenient for the period, but travellers with a disability who cannot get on some of these services at all because accessible vehicles have been specifically sought for transfer elsewhere are obviously being asked to bear an additional impact.

It should also be recognised that in some cases the reverse may occur, with inaccessible transport services being temporarily replaced by accessible services. In particular this may occur with the proposed substitution of buses for rail services to some Sydney CityRail stations, likely to include some stations which are currently not wheelchair accessible. Sufficient details are not available however to make any decision based on this point.

It is similarly not clear at present what proportion of any operator's accessible vehicles are likely to be transferred to Olympics related service if the exemption is granted. The effect of granting the exemption might well be to give a larger number of operators sufficient confidence to make some vehicles available, such that no operator transfers all the accessible vehicles in their fleet: that is, that some accessible service is maintained in each case albeit at reduced levels, so that the effect on travellers who require accessible services is more closely equivalent with the effect of Olympic demands on services for travellers not requiring accessible vehicles. The effect of refusing the exemption may well be to reduce the number of operators prepared to provide buses for ORTA's purposes. This would concentrate the effect of Olympics and Paralympics related demands on the users of services provided by operators who decide to proceed nonetheless with providing buses for ORTA's purposes (and defend their position if required in response to any complaints which might arise).

These effects are not ascertainable at this point. Several submissions note the lack of definite information in this respect and call for HREOC to either require this information to be provided before making a decision, or else impose conditions (such as caps on the proportion of vehicles permitted to be transferred from any region or by any operator) to provide definition on this issue.

If the reasons given at the beginning of this recommendation for granting this exemption as proposed are not accepted, a further process of consideration would clearly be required to determine appropriate conditions to minimize and mitigate impacts of any permitted transfer of accessible vehicles.

If, however, the reasons given at the beginning of this recommendation for granting this exemption as proposed are accepted, including the central point that the choice of services to which the Australian accessible bus fleet should be applied is not one which should be made by HREOC or the DDA, detailed information and conditions on particular services from which buses are to be permitted to be transferred is not required or relevant.

So far as legal rights and obligations under the DDA are concerned, granting the exemption as applied for would permit transfer of all accessible vehicles from at least some existing services if ORTA is unsuccessful in its objective of attracting buses from a sufficient range of locations to avoid this. This is not to question ORTA's statement of its intention to avoid such a result, only to note that the exemption proposed would permit it so far as the DDA is concerned. Perhaps more likely to occur, such an exemption would permit transfer of sufficient buses from some locations sufficient to significantly reduce the frequency and availability of accessible services compared to inaccessible services.

Effect of prima facie finding of potential discrimination

The fact that granting an exemption would permit actions or events which prima facie may be discriminatory under the DDA means that any decision to grant the exemption needs to be considered carefully. But this fact cannot be a complete barrier to granting an exemption. As noted by HREOC in the Melbourne Trams exemption decision, an application for exemption in its nature involves acknowledgment of at least a substantial risk that the subject matter would otherwise be found to involve unlawful discrimination.

The practice of HREOC in considering applications for exemption under both the DDA and the Sex Discrimination Act has been to consider whether there is a reasonable or prima facie prospect that the subject matter involves unlawful discrimination. If there is not, the application will be refused as unnecessary. If there is, HREOC proceeds to decide whether an exemption has been shown to be justified.

When HREOC first adopted its policy on dealing with applications for temporary exemption under the DDA, in 1995, there was little guidance to be had from Australian court or tribunal decisions on how such an exemption power should be handled, beyond the decision of the Administrative Appeals Tribunal in Re: Broken Hill Associated Smelters Pty Ltd and The Human Rights and Equal Opportunity Commission. Important points emerging from this decision and given effect in HREOC's policy on DDA exemptions were:

  • the importance of providing parties affected by a decision an appropriate opportunity to contribute to the making of the decision
  • the need to make decisions having regard to the objects of the legislation
  • the appropriateness of taking issues of reasonableness into account.

In dealing with applications for temporary exemption under the Sex Discrimination Act HREOC has referred to the decision of the Victorian Equal Opportunity Board in Re Fernwood Fitness Centre ([1996] EOC 92-782), adopted and summarised by the Victorian Civil and Administrative Tribunal (VCAT) in Doveton North Primary School :

Briefly, the principles are that this Tribunal has a clear discretion whether or not to grant an exemption. In exercising that discretion the Tribunal will consider whether or not the exemption is appropriate. In considering whether or not an exemption is appropriate, it will take the following matters into account:

  • that an exemption will not be granted unnecessarily - that is, where another statutory exception in the Act clearly applies, or where there is no arguable case of discrimination;
  • that an exemption will not be granted where this will be futile - that is, where the conduct sought to be exempted is clearly prohibited by another law;
  • that, in considering an application for exemption, the Tribunal will take into account how the exemption might promote the objectives of the Act, and also whether the exemption is consistent with the spirit (although obviously it will not be within the letter) of the scheme of the Act;
  • whether there is some overriding public interest that justifies conduct being taken out of the statutory prohibitions on discrimination; and, finally
  • all the relevant circumstances of the particular case.

These points give a helpful guide to issues in this type of decision although obviously decisions of the VCAT do not constitute binding precedents for HREOC. The submission from the Queensland Anti Discrimination Commission also refers to the decisions of VCAT.

As already noted, the first of these points is reflected in HREOC's practice in previous exemption decisions.

The second point - futility of proposed exemption because conduct is prohibited by another law in any event - has not been the subject of decision in DDA exemption applications to date. This principle is clearly not applicable where an exemption or permission procedure equivalent to exemption under the DDA is available under the other law concerned, as is the case with State and Territory anti-discrimination laws in particular.

The third and fifth point are reflected in HREOC's existing policy and established practice in dealing with DDA exemption applications.

The fourth point, raising an additional category of public interest considerations justifying an exemption, has not been adopted by HREOC in decisions to date. This is not to say that such a category might not be found appropriate for consideration in some future case, although it is not clear in what circumstances such an additional category would be justified under the DDA, given the capacity to take public interest considerations into account on issues of reasonableness and unjustifiable hardship. It also needs to be recalled that the public interest in accessibility and non-discrimination has been given legislative statement and should not lightly be assumed to be displaced by some other public interest.

HREOC has consistently decided that the exemption power under the DDA needs to be exercised consistently with and for the purposes of the DDA. The present application should be dealt with on the same basis.

This application does not present HREOC with a need to decide whether there is some overriding public interest in the Olympics and Paralympics being able to proceed smoothly which ought to be given effect by HREOC at the expense of the objects of the DDA. If that were the decision, the proper course for a body in HREOC's position might be to refuse the exemption and leave the Parliament to give overriding legislative effect to that other public interest if it so saw fit.

Rather, the decision for HREOC, in exercising the discretion which it clearly has (comments in some submissions notwithstanding), is whether granting the exemption applied for is justified having regard to the objects of the DDA.

Relevance of Draft Standards

The majority of submissions indicate that their authors would support this exemption application only on condition that commitment to accessible transport were demonstrated by the immediate promulgation of the Accessible Transport Standards in Federal parliament in the form approved by the Australian Transport Council in April 1999, and raise questions regarding the attitude of the NSW government and other parties to these standards and their adoption.

HREOC cannot make its decision on this application based on the attitude (demonstrated or otherwise) of bus industry members (whether operators covered by this application, other operators, or representative bodies) or of relevant government authorities to the adoption of regulatory standards (whether in the form endorsed by the Australian Transport Council in 1999 or otherwise).

The merits of an application for exemption under the existing provisions of the DDA do not necessarily depend on the attitude of the applicant to the authorisation of the draft Standards or to the details of the form in which those standards should be authorised.

The point can be illustrated by the following example.

A public transport provider or group of providers might be opposed, for whatever reason, to the regulatory adoption of the draft Standards (or while not opposed, not be in a position to secure authorisation of the Standards), but be prepared on their own part to commit to implementation of the measures required in the first five year implementation targets set out in the draft, and seek an exemption on those conditions. HREOC's decision in granting the Melbourne Trams exemption and its Advisory Note on public transport make clear that such an application, while needing to be considered in accordance with the procedures of HREOC's exemptions policy, would be expected to be considered favourably.

No exemption would be needed if Accessible Public Transport Standards were in force

These comments do not mean that the draft Disability Standards for Accessible Public Transport are irrelevant to consideration of this application.

HREOC has publicly stated and maintains its support for adoption of the draft Disability Standards for Accessible Public Transport, noting the need to take account of the extensive Regulation Impact Statement process conducted on the draft standards.

In its decision on the Melbourne Trams exemption HREOC confirmed its view of the draft Standards as generally reflecting existing rights and obligations under the DDA, while recognising that the draft Standards are not themselves in force and may be subject to further revision before possible authorisation, and that HREOC's powers and responsibilities are defined by the DDA as presently in force.

The support expressed by Mr Corcoran and others in the disability community for authorisation of the Standards may be based on a similar view to that of HREOC (both in its role in initiation and development of the draft standards and subsequently): that displacement of immediate rights to complain under the DDA regarding inaccessible services is acceptable (considered in the light of the objects of the DDA), in exchange for greater surety of achievement of access in the medium to long term.

Some submissions, however, appear to present the proposed exemption as a derogation or retreat from the level of achievement of access contemplated by the draft Standards.

It is important to note, therefore, that if the draft Standards had already been authorised, or were authorised immediately (as requested by a number of submissions) or at any point prior to the dates with which this exemption application is concerned, the exemption applied for would not be required. The Standards themselves would in effect give the same exemption (and more).

The first major compliance point in the draft standards, requiring 25% of each operator's services to be accessible (subject to possible claims of unjustifiable hardship), is set at 5 years after the authorisation of the standards and on this basis would not arise until 2005. If the standards were currently in force, or entered into force in the intervening period, lack of accessible services as at September 2000 would not involve unlawful discrimination under the DDA. Authorisation of the draft Standards in 2000 would set the "compliance clock" at zero as at 2000.

Further, the same point would have applied even if the standards had been authorised in 1996 (as originally contemplated by all parties involved in the negotiation of the standards, prior to advice being received that Regulation Impact Statement processes required a further and more extensive process than the substantial consultation already conducted in preparing the draft). On this basis the first five year compliance point would not have arisen until 2001. This also represents five years after the point at which HREOC issued its advisory note on public transport, indicating that in its view compliance with the schedule set out in the draft Standards would represent reasonable compliance with the existing requirements of the DDA.

Showcasing of accessible public transport

Mr Corcoran's submission and those adopting it refer to the loss of an opportunity for showcasing accessible transport services to the world if this exemption is granted.

If significant weight were to be given to the concept of the Olympics and Paralympics as opportunities to showcase accessible public transport systems to the world, this would appear to be an argument in favour of granting rather than refusing this exemption - since this would permit concentration of Australia's available accessible bus resources at the point which is expected to be subject to considerable international media attention, use by overseas visitors, and possible evaluation and reference into the future by bodies responsible for mass transit tasks.

This argument, however, would have to be balanced against the point made in other submissions that the showcase effect may be at the expense of those needing accessible, inexpensive transport for the less showy activities of getting to work, attending classes, and participating in their communities.

In any event, it is not clear that HREOC should give significant weight to the "showcase to the world" argument. In the absence of a specific legislative mandate to pursue benefits for persons or causes outside Australia, the general rules of statutory interpretation appear to indicate that it would be ultra vires for an Australian administrative body to pursue international benefits, except where this is incidental to a benefit within Australia. The DDA and other legislation administered by HREOC do not contain any provisions giving HREOC jurisdiction to pursue disability access issues outside Australia in their own right.

The point raised by ORTA in its application - that these events offer an opportunity to showcase accessible transport services within Australia - has more relevance in relation to the objects of the DDA.

Advocates of "universal design" approaches, and more specifically proponents of accessible mainstream public transport in Australia, including HREOC, frequently state that inclusive design and service delivery often yields more efficient and effective service for the whole community as well as being more equitable. If it is correct

  • (as concluded in the Regulation Impact Statement on the draft Accessible Public Transport Standards) that wheelchair accessible buses, and in particular the ultra low floor designs generally adopted as the means of delivering accessibility in urban Australian service, offer operators benefits in generally reduced passenger boarding times and increased ease of use and possible increased patronage by older people and people with children, luggage or shopping; but also
  • (as is clearly implicit in Mr Corcoran's submission and those endorsing it) that some Australian bus operators remain to be fully or sufficiently convinced of these benefits

then an opportunity to have as many accessible buses as possible perform in very high demand and highly visible duties appears likely to have significant benefit as a means of promoting awareness of the benefits of accessible public transport services and thus as a means of promoting the objects of the DDA.

The more effective a showcase for accessible services is desired, the greater the impact on other existing services would need to be. If, for example, operators wished to conduct a trial of a 100 per cent accessible bus public transport service on a large scale purely for the sake of operational and market evaluation, the present composition of bus fleets would require transfer of accessible buses from other locations to the chosen trial location at the expense of accessibility of existing services.

The "showcase accessible transport within Australia" argument is more relevant for the purposes of this application than the "showcase to the world" argument. Neither, however, is decisive if the point made in the Notice of Inquiry is accepted - that the DDA and HREOC should be concerned with achievement of acceptable progress in placing accessible public transport in service, rather than with the particular locations or services to which accessible vehicles are applied.

How should HREOC approach the issue of competing demands for accessible vehicles

The potential complaints under the DDA which this exemption would preclude would, in essence, be concerned with which services accessible buses should be applied to in the relevant period, rather than with whether and at what rate operators should be required to acquire and deploy accessible vehicles. The Notice of Inquiry endorsed the view previously expressed by HREOC, in its reasons for granting an exemption regarding Melbourne trams, and by the Disability Discrimination Commissioner, in her decision on a complaint regarding access to Summer Hill railway station, that HREOC is not best placed to decide issues of allocation of accessible services as between different locations.

The Notice of Inquiry expressed the view that the objects of the DDA are best served if these issues of allocation are determined by operators in consultation with users of services rather than being determined under the DDA by HREOC.

Contrary to views voiced in a number of submissions, giving an exemption in this matter as is proposed does not involve a decision by HREOC

  • that the access needs of users of other services, for purposes such as getting to places of employment, education, shopping or other entertainment events, are less important and pressing than the access needs of people attending and participating in the Olympics and Paralympics; or
  • that accessible transport services for visitors are more important than services for Australian residents; or
  • that accessible services in Sydney are more deserving of priority than accessible services elsewhere.

It does involve a decision by HREOC that the objects of the DDA will best be advanced if operators of accessible buses are free to allocate those buses to whichever services within Australia they see fit, including Olympic or Paralympic services.

In deciding to decline to deal further with a complaint regarding access to Summer Hill railway station on grounds including that adequate progress was being made across the CityRail network overall in achieving station accessibility, the Disability Discrimination Commissioner decided that the DDA should not be administered as if an anti discrimination agency were the appropriate body to decide which railway stations become accessible first, rather than these being essentially operational and/or political decisions.

The same points can be applied to bus routes.

The objects of the DDA are best served if the resources of anti discrimination agencies and the power of the legislation are applied in achieving commitment to eliminate discrimination as rapidly as reasonably possible, rather than in seeking to manage the disposition of those accessible vehicles which have become available at any point. This is not simply a matter of efficient use of the resources of HREOC or other agencies in its position (although the direction in section 10A of the Human Rights and Equal Opportunity Commission Act to HREOC to conduct its functions "efficiently and for the maximum benefit of the people of Australia" must be taken into account).

A negative impact should be expected on decisions to acquire accessible vehicles if operators are not able to determine for themselves where and on what services to deploy these vehicles, based on their own assessment of factors relevant to their particular business (whether these be anticipated revenue, opportunities for exposure of their vehicles and services in particular markets, or possible political imperatives in the case of operators who may be subject to some degree of political direction). This impact would be likely to be increased if (as will potentially be the case here) in relation to the one event operators of accessible vehicles are subject to direction from HREOC regarding disposition of their vehicles while operators of inaccessible vehicles are not.

Clearly, much of the strength of the objections to the proposed exemption relates to the prospect of accessible services currently in place being reduced or interrupted, when these services have come to be appreciated and to some degree relied on for everyday purposes such as employment and education. Presumably, many of the same objections could be made if the proposed temporary transfer of buses were not for special events such as the Paralympics and Olympics but for routine transport service on routes other than those now served.

The submission from the Queensland Anti Discrimination Commission argues that the fact that this application concerns priority as between existing accessible services and other services, rather than between services or locations which are not yet accessible and are competing for priority to become accessible, should be treated as a decisive distinction between this application and the decision in the Summer Hill railway station complaint or HREOC's comments on its role regarding priority of different services in the Melbourne Trams exemption decision.

There is an obvious regulatory disincentive imposed to commencement of accessible vehicles in service, however, if they cannot be reallocated to a different service to meet different demands without incurring additional legal liability.

A "ratchet effect" approach to regulation, requiring that a particular standard of compliance once achieved cannot be subject to backward movement even temporarily, might appear stronger in terms of achievement of the objects of the legislation concerned than a more flexible approach. But this would be to overlook the effect in practice of incentives and disincentives to compliance efforts.

The same point would apply in the present case if, as a condition of being permitted to reallocate accessible buses to different services, operators were required to submit to the burden of replacing these vehicles with other accessible transport options. For this reason, imposition of conditions of this type do not appear appropriate in this instance. Requiring compensation or arrangement or subsidisation of substitute services as a condition of releasing accessible vehicles for transfer to other services presupposes that HREOC should be concerning itself with which services accessible vehicles are allocated to, and should apply disincentives to reallocation of these vehicles from existing services. The thrust of these reasons is that such a course should be rejected.

The Summer Hill railway station decision dealt with the issue of priorities between different locations served by one operator. The present application, involving vehicles owned by many existing operators, does not, however, involve relevantly different issues in this respect.

The present application, by ORTA on behalf of numerous operators and authorities as well as itself, could equally well be considered as a series of individual applications by each body concerned: for example, by Sydney Buses to permit reallocation of some of its accessible buses to Olympic and Paralympic services and by each other bus operator in turn contemplating providing buses for these purposes.

The fact that buses are being contracted by their existing operators to a new, temporary operator also does not appear to make any relevant difference. Contracted arrangements through Bus 2000 are the vehicle by which ORTA has chosen to organise its services, but (administrative difficulties aside) the same results in terms of which buses will be where and doing what could, in principle, be produced by existing operators running their own buses directly under franchise or some other arrangement with ORTA.

Relevance of limited achievement of access in the past

Almost all submissions opposing the application assert failure by ORTA and NSW transport authorities and operators to plan for and implement accessible transport sufficiently early as a reason for refusing this application.

In making decisions on exemption applications to date HREOC has considered whether granting or refusing an exemption would advance the achievement of the objects of the DDA, looking forward to measures to be undertaken in future, rather than making decisions on the basis of rewarding or punishing actions taken or failed to be taken in the past.

Thus for example in its decision on the Melbourne trams exemption application HREOC did not accept submissions that it should refuse an exemption because of past failures to deliver accessible trams, deciding instead that an exemption would assist the achievement of access over a reasonable period into the future.

The rate of progress in acquiring accessible vehicles by Sydney Buses appears to be a major focus of criticism in submissions. However, out of a fleet of some 1550 buses, HREOC's information is that Sydney Buses presently has an accessible fleet of some 266 full size buses and 11 mini buses in service with approximately 60 further buses to be added by the time of the Olympics. On this basis it would appear that well over 20% (approximately 21.74%) of this operator's fleet will be accessible by the relevant period. As noted earlier, this compares with a requirement of 25% not being required until 2001 even if the draft Standards had been adopted in 1996, and a requirement of zero percent applicable as at September 2000 if the draft Standards are adopted in the intervening period (with the 25% requirement arising in 2005). I note that at this point HREOC does not have evidence of widespread achievement of comparable progress by private operators in NSW.

The Physical Disability Council of NSW proposes that as a condition of any exemption Sydney Buses be required to achieve full accessibility within 3-5 years. In response to this it may be sufficient to note once more that the current draft Standards (endorsed in numerous submissions in this inquiry and referenced in HREOC's 1996 advisory note) would allow 5 years for each 25% of fleet accessibility (subject to possible further extension on hardship grounds).

It should also be pointed out that apart from the limited period and subject matter covered by the proposed exemption, operators remain exposed to complaints, wherein outcomes such as that contemplated by the Physical Disability Council of NSW may be sought. Such complaints may be made either through the DDA to HREOC, with potential recourse to the Federal Court if necessary, or through largely equivalent State and Territory legislation. This exposure would only be removed

  • by the achievement of fully equal accessibility; or
  • by the entry into force of standards under the DDA providing authoritative confirmation that operators may take a period of decades to achieve full accessibility; or
  • by more general and long term exemptions (which would generally be expected to be in association with action plans or other forms of commitments for the future).

The argument in some submissions appears to be simply that more of Sydney Buses accessible vehicles should be applied to Olympic and Paralympic services in question rather than buses being sourced from elsewhere, so that disadvantage falls more heavily on people in Sydney rather than on people in other places. Whatever the merits of this argument may be for the purposes of consideration by transport operators or political authorities concerned (and possibly by authorities whose responsibilities regarding discrimination law are defined by State specific laws rather than nationally), it is not one which HREOC is called on to arbitrate in dealing with this application or with its responsibilities under the DDA.

Should operators be required to lodge action plans

In its consideration of the Melbourne Trams exemption application HREOC was assisted by provision of an Action Plan which detailed the current status of the transport fleet concerned and plans for their replacement over time with accessible vehicles. Further, in response to discussion within HREOC's processes, the applicants made substantial additional commitments by bringing forward by six years the date for commencement of deliveries of accessible trams.

ORTA itself has provided HREOC with an Action Plan, although most other operators and authorities concerned in this application have not done so.

Provision of an action plan, with detailed commitments to future measures for increased achievement of accessibility during the life of an exemption, has been an important feature of a number of exemption applications granted by HREOC in relation to public transport.

Action plans, or other forms of commitment to actions to achieve increased equality of access, are likely to be similarly important in future exemption applications, in particular in relation to public transport and more particularly so long as accessible public transport standards are not in force to define the obligations of operators and the timeframes required for achievement of accessibility.

In many cases commitments to measures to achieve equality may be appropriate as conditions of an exemption. HREOC has decided on a number of occasions (see the decisions on the Women's Legal Centre and Lutheran Schools applications) that it is not appropriate to use the exemption mechanism simply to certify that an applicant would experience unjustifiable hardship if required to implement a particular measure and need not therefore do anything towards achievement of the objects of the legislation.

It is not the case, however, that an action plan or similar commitments must in all cases accompany an exemption application or that HREOC will or must in all cases impose conditions on the grant of an exemption. Section 55 of the DDA states that an exemption "may", not must, be granted on conditions.

HREOC's policy on exemptions does not and cannot require, although it does request, applicants to identify where relevant and where practicable any conditions which they would be prepared to submit to which will remove or mitigate the discrimination concerned.

If HREOC is satisfied that it would be appropriate to grant the exemption applied for on the basis of the argument that HREOC and the DDA should not be in the business of regulating the allocation between different services or locations of whatever accessible vehicles are in service at any point in time, it would be both improper and counterproductive to seek to impose additional conditions.

Where exemptions have been granted on condition of implementation of an action plan, the purpose of the application has been to achieve some legal protection while working towards an increased level of provision of accessible service over time. The issue of allocation of a given number of accessible vehicles as between different locations is fundamentally different.

Specification of persons covered by exemption

The submissions from People With Disabilities NSW and the NSW Disability Discrimination Legal Centre argue that to grant an exemption to (among others) those private bus operators who provide buses to Bus 2000 for ORTA's purposes would be to delegate HREOC's exemption power and is not sufficiently precise to specify who is entitled to benefit from the exemption or to conform to the terms of section 55 of the DDA.

There is, however, no delegation of the power to grant an exemption in providing that persons who meet an objective criterion (that is, providing accessible buses to Bus 2000 for ORTA's purposes) benefit from the same exemption as ORTA. ( I note in passing that the exemption power is in fact able to be delegated if HREOC decides that it should do so, but that is not proposed here.)

Section 55 of the DDA refers to applications being made by " a person . on that person's own behalf; or . on behalf of that person and another person or persons; or . on behalf of another person or other persons; or 2 or more persons . on their own behalf; or . on behalf of themselves and another person or persons; or . on behalf of another person or other persons".

It may be noted that this provision is identical in relevant respects, in its references to persons on whose behalf an application is lodged, to the provision for complaints formerly contained in section 69(1) of the DDA (the procedure for which is now contained in section 46P of the Human Rights and Equal Opportunity Commission Act). As confirmed by former sections 69(1A) and 89 of the DDA, this provision was sufficient to permit representative actions on behalf of a class of persons, and was not restricted to matters on behalf of named individuals. The same point can be made regarding section 46PB of the Human Rights and Equal Opportunity Commission Act.

There is no reason apparent why the same words in section 55 of the DDA should have a different meaning. I also note that section 55 refers to the granting of an exemption to the person "or persons to whom the application relates", rather than persons "specified by name in the instrument" or some such phrase. In my view specification of persons covered by an exemption by reference to a clearly identifiable characteristic is sufficient for the purposes of an application and decision under section 55.

Conclusion

After considering all the arguments and information provided in submissions, it remains my view that the reasons given in the Notice of Inquiry for granting an exemption in this matter are correct and that an exemption should be granted accordingly as applied for, with the specification that the exemption applies only in relation to the transfer of buses from other services to Olympic and Paralympic service and does not affect the obligations of ORTA and other relevant operators and authorities under the DDA in other respects.

The essential point is that the potential complaints under the DDA which this exemption would preclude would, in essence, be concerned with which services accessible buses should be applied to in the relevant period, rather than with whether and at what rate operators should be required to acquire and deploy accessible vehicles. As decided by HREOC on a number of previous occasions, the objects of the DDA are best served if these issues of allocation are determined by operators rather than by the DDA.

For this reason I also recommend against imposition of any of the conditions proposed by submissions on the grant of an exemption in this matter, each of which would have the purpose and effect of constraining the ability of operators to allocate accessible vehicles to different services from time to time as they see fit.