wild bunch exemption decisionNotice of HREOC exemption decision re: Lautoka Pty Ltd, trading as Wild Bunch Floral Designers

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 premises.

Applicants

The exemption application was submitted on behalf ofLautoka Pty Ltd, trading as Wild Bunch Floral Designers

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 on Application for exemption under Disability Discrimination Act section 55: Wild Bunch

Application

Lautoka Pty Ltd (trading as Wild Bunch Floral Designers) have requested an exemption under section 55 of the Disability Discrimination Act from liability under the Act, for a period of five years, regarding lack of wheelchair access to a heritage listed building at 131 King William Street Adelaide.

The exemption is sought on the basis that

  • The premises was built more than 100 years ago and currently the ground floor level is approximately 500 millimetres above street level
  • local government restrictions and State heritage listing compliance issues
  • the local government requires ramp access to be 1:20 ratio on the slope of the ramp
  • in the location concerned the building is 500 millimetres form the street level (implying that any ramp would approximately be 10 metres in length). Restrictions in all the possible locations are less than 10 metre or major structural changes to the building would be required.
  • front of the building, main entrance and stairs are all heritage listed
  • this makes provision of disabled access to the building impracticable in the circumstances
  • local government approval may be refused in view of potential liability under the Disability Discrimination Act

The applicants indicate that they would be happy to take alternative measures to ensure disabled people can access the shop front by means of a portable ramp.

Notice of inquiry and submissions

In accordance with the Commission's policy on exemption applications under the DDA a notice of inquiry was issued seeking submissions by 23 June. No submissions were received.

Recommended decision

The Commission has decided on a number of occasions that it ought not to grant exemptions where there is no substantial prospect of the conduct concerned being held to be unlawful in the absence of an exemption

In my view, so long as the applicants deliver on their commitment to secure equally effective access for people with disabilities, including by provision of a portable ramp and such other measures as may be required, no unlawful act will occur. The DDA is not a building code and does not require building modifications for their own sake, but as a means of avoiding discrimination in access to premises and in access to the goods, services, facilities and opportunities which are provided within premises.

I recommend therefore that the requested exemption be refused.

Relevance of unjustifiable hardship factors

Because of my view of lack of any unlawful act so long as equal access is provided by whatever means, I do not think it is necessary to decide whether in the circumstances the applicants would experience unjustifiable hardship if required to modify the premises to provide access.

I note that the Commission has decided on a number of occasions (including in the Melbourne Trams and Lutheran Schools matters) that it ought not to use the exemption mechanism simply to provide a shield against complaints on unjustifiable hardship grounds, although in this case the applicants are not seeking simply to be allowed to do nothing but are prepared to take other measures to provide access.

Local government decisions

I note the concern of the applicants that local government approval may be refused in view of potential liability under the Disability Discrimination Act. The proposed decision on this application does not 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. If those authorities consider (after taking into account the terms of this decision) 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 AM
Deputy Disability Discrimination Commissioner

23 June 2000