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DDA Transport Standards: HREOC'S Role

Disability Disability Rights

DDA
Transport Standards: HREOC'S Role

Graeme Innes
Deputy Disability Discrimination Commissioner
Bus Industry Confederation conference, Perth, April 2001

Graeme Innes

Introduction

Probably most of us here are parents, and
we all have dreams for our children. One of my dreams for my 18-year-old
son and his girl friend is that they will be able to participate in society
in the same way as everyone else.

Several weeks ago we went, as a family group, to the Easter show in Sydney.
We caught the bus. On our way there we caught the first bus that arrived.
On our way home we had to let three buses go before we took one. And it
wasn't because of the crowds.

You see, as well as being in year 11 this year, a punk who wears a ring
through her lip, a member of a rock band, and a world champion athlete,
my son's girl friend uses a wheelchair.

My dream is that she won't spend the rest of her life waiting for the
bus.

I want to talk today about the DDA itself- because it's important to
understand the law which underpins the proposed Standards. I'll then talk
about the Standards as far as we know them and their specific implications
for the bus industry. Finally, I'll discuss some related issues of relevance
to your industry.

National Policy Statement

Firstly, may I comment on your national Policy Statement launched this
morning. It is important for any organisation to set its direction in
such a statement, and I congratulate the Confederation on this achievement.

I note that your access goal aims to increase the number of passengers
carried by buses and coaches relative to other modes of transport. As
well as providing benefits for the community in flexibility etc this will,
of course, benefit your industry. Your second or equity goal aims to ensure
that a reasonable, basic level of mobility is available to all users of
public transport. This includes, amongst others, Australians with a disability,
older Australians, parents with strollers etc. All of these groups will
benefit from greater mobility on coaches and buses, and this will help
your access goal because it will increase your passenger numbers, and
thus the fares you earn.

I further note that you aim to achieve your equity goal by, amongst other
things, promoting accessible public transport and supporting infrastructure;
and seeking the development of demonstration projects to increase the
availability of public transport. It is therefore most appropriate that
I talk about the issue of the DDA and Standards, because what the Standards
will do is assist you to move forward towards the achievement of the equity
goals set out in your own national policy.

The Disability Discrimination Act

Most of you are probably already aware of the provisions of the Act.
But I think it is important to briefly outline them, as they provide an
important foundation for the other issues I want to discuss today.

TO WHOM DOES THE DDA APPLY

  • Commonwealth and State Government
  • Private sector employers
  • Providers of services
  • Educational authorities
  • >Owners of land and buildings
  • Clubs and incorporated associations
  • In fact, all Areas Of Public Life

There is equivalent State and Territory legislation.

Everyone is probably breaking these laws right now - but no action is
taken until complaints are lodged.

WHAT IS DISABILITY?

Includes-

  • Physical
  • Sensory
  • Intellectual
  • Psychiatric
  • Presence of organisms causing disease or illness
  • Learning disabilities.
  • Disability may be past, present, future or imputed

WHAT IS DISCRIMINATION?

Direct: less favorable treatment on the grounds of the disability of
the person or their associate in the same or similar circumstances. Example:
provision of timetables only in print. Indirect: Treatment which on its
face is neutral but which has a disparate impact on the person or their
associate with the disability and which is not reasonable in the circumstances.

Example: Inability to carry a person with a physical disability on a
bus.

WHAT ARE THE DEFENSES?

If to not discriminate would cause the respondent unjustifiable hardship.

Relevant decisions: Scott v Telstra, Cocks v State of Qld.

The process for dealing with complaints is a well established one in
the discrimination field. An individual lodges a complaint with the Commission,
and the Commission investigates and attempts to conciliate that complaint.
The emphasis is on finding a settlement to the individual problem that
the complainant has raised. If conciliation is not successful the complainant
has the opportunity to pursue the matter in the Federal Court.

But how does that address the broader issue?

More recently the Commission has been conducting public inquiries into
complaints which raise issues of systemic discrimination, and access to
public transport is a clear example of this. By its nature, public transport
is for the public, and if one person with a disability cannot access that
public transport, then many others will have the same problem.

The Commission publishes a notice of inquiry on the Internet and seeks
submissions. These are also published on the Commission's website and
available for comment. The Commission can then organise forums or discussions
to attempt to resolve the issue. This "innovative approach",
to use the words of the Attorney-General recently in reference to one
public inquiry, has been very successful, and has led to a number of partnerships
between areas of industry and the disability field which have minimised
or eliminated discrimination in the particular area. The introduction
of open-captioned movies throughout Australia to benefit people who are
deaf or hearing impaired and the announcement of schemes by telecommunication
companies to assist people whose mobile phones were causing interference
with their hearing aids, are just two examples.

Of course, if the matter is not conciliated during the public inquiry
process, the complainant still has the opportunity to pursue the issue
in the Federal Court.

Last year Jeff Heath, a South Australian man who uses a wheelchair, lodged
a complaint about access to long distance coaches. Usually such complaints
are confidential, but Mr Heath made his own complaint public. He alleged
that he had been discriminated against because he could not use coaches
to travel between major cities in Australia.

The Commission considered conducting a public inquiry into this issue,
because it clearly affected a lot more people than just Mr Heath. Of course,
at the time Mr Heath lodged his complaint, and currently, the Transport
Standards were not in force, so such an inquiry would have been able to
go ahead. But shortly after lodgment of the complaint the government announced
that it was going forward with Transport Standards, so Mr Heath deferred
his complaint. I'm not sure how long he will be prepared to wait.

But is the complaints process a particularly appropriate way to deal
with access to public transport? Public transport systems need to establish
uniform processes, and to be clear a long way in advance on the type of
infrastructure and rolling stock which is going to be acceptable. So to
have individuals lodging complaints all over the country about different
aspects of buses - which is what is possible now under the DDA, is not
the best way to make our transport system accessible.

This was recognised when the legislation was passed, and so other methods
were provided to address these more systemic areas of discrimination.
However, as yet in the area of private bus transport, none of these other
mechanisms have been used, and private bus operators are still open to
adverse findings by the Federal Court following the lodging of individual
complaints. It is a demonstration of the patience of the disability field
that, nine years after the passage of the legislation, complaints are
not endemic across the country. But no-one's patience lasts forever.

DDA Standards

Little would be gained by a recitation of the history of the development
of Transport Standards under the DDA. Draft Standards were released,
and put through a regulatory impact Statement process, in the latter years
of the last century. Most of you have probably seen copies of these Standards.

Last year the government announced that it was going to go ahead with
the tabling of Standards. There were a number of issues excluded from
the Standards in that announcement, the relevant one for the bus industry
being dedicated school bus services. But I'll return to that later.

Let me firstly give you a brief picture of what the standards will do.
They provide various "rules" for making public transport accessible.
They do not just deal with physical access, although this is an important
aspect of them. They deal with other issues such as access to signage,
announcements, and timetables. Because the drafters of the Standards appreciated
that infrastructure change cannot occur overnight, they include a timetable
by which percentages of public transport must be wheelchair accessible-
25% after 5 years, 55% after 10 etc going through to 20 years for buses
and coaches. But the clock does not start to run until the Standards are
tabled in Parliament, which has not yet occurred.

Once the Standards are in place, complaints under the DDA about areas
which are covered by the Standards will not need to demonstrate that discrimination
has occurred- they will only have to show that the Standard has been breached.

Until fairly recently, many areas of the bus industry were opposed to
the enactment of Standards. I have never understood this position, because
it seems to me that - from a risk management point of view - your industry
will be far better off once Standards are enacted. At present, the whole
of your industry is potentially open to what you and I might regard as
totally unreasonable orders by the Federal Court if discrimination complaints
are substantiated. You have no control as to where these complaints may
be lodged, to what issues they may relate, or what the Court will tell
you that you have to do with your fleets.

Once the Standards are in place you will know what has to be done to
buses and related infrastructure to make them compliant, and how long
you have to do it in. For an industry where much forward planning is required,
this seems to me to be a far better position to be in.

Various public bus systems have recognised this, and are now moving to
comply with the Standards. In NSW, WA and SA compliance with the major
and most expensive part of the Standard provisions - physical access-
is now around 25%dis In other words, they have already reached the 5 year
mark and the Standards are not yet in force. This helps private bus operators
in two ways. Firstly, the greater the number of accessible vehicles that
are ordered the less each vehicle will cost, as manufacturers tool up,
and accessible vehicles become the norm. Secondly, in a few more years
public bus systems will actually start disposing of second-hand accessible
vehicles, which will come on to the market and be available for purchase
by private operators. Infrastructure change such as this builds momentum,
and after it reaches a critical mass, it accelerates exponentially. In
this regard, the delay in Standards enactment and the progress of Government
systems has been beneficial to your industry.

Some of the opposition from the bus industry has related to the alleged
cost of implementing Standards. But when putting this argument forward,
it should be contrasted with the situation where complaints could be lodged
and Federal Court directions made which could also have major cost implications.
The only difference is the unpredictability of the complaints process.

What else was included in the government's announcement last year? It
provided that certain technical issues would be withheld from the Standard,
and there would be a further technical review of the Standards in two
years. In fact work on this has already commenced and your Association,
amongst others, is positively participating in a process to make the Standards
easier for everyone to understand, and remove some ambiguities and implementation
difficulties. An example of these is the installation of audio loops,
which assist people who use hearing aids to hear announcements, in public
transport vehicles.

I want to talk now about issues not covered by the Standards relevant
to the bus industry. The first of these relevant to the bus industry is
charter services. There has been some question as to what is meant by
charter services. Of course final definitions under the DDA must be left
to the Federal Court, but in the view of the Commission a common sense
approach needs to be taken to such definitions. Public transport is transport
that is available to the public. Therefore if a tour company charters
a bus, and then sells tickets on that tour to the public, it is probably
providing public transport. On the other hand, if the local cricket team
charters a bus to take their players to the neighboring town it is probably
not public transport. But if the cricket team sells spare seats to the
public, it probably is public transport rather than a charter.

The second relevant exclusion is for dedicated school bus services. This
means - again subject to correction by the Federal Court - that a bus
providing a school bus service does not have to comply with the Standards,
but a bus not dedicated to this task does. Therefore, if you use the bus
during the day or the holidays for charters it would not have to comply
with the Standards, but if you use it for public transport services at
other times during the day it would.

For the purpose of counting fleets to determine compliance at any of
the marker points in the Standard, you would therefore not have to count
a bus which is dedicated to charters or school runs, but you would have
to count a bus which does a mix of both.

What happens to issues which are excluded from the Standard? They are
still covered by the normal provisions of the DDA- so at any time a user
of a school bus or charter could still lodge a complaint under the provisions
of the Act which I described earlier.

So where is the Standard now?

Why can't I put a copy on the table for all of you to look at?

Well, it's currently with the Attorney-General's Department and the Department
of Transport, having several final points clarified prior to going to
the Attorney for final approval. A final draft will then be made public
prior to its tabling in Parliament. This should occur in the next few
weeks- I had hoped it would have occurred prior to today so that I could
talk about it to you in more detail.

However, it's not as simple as just tabling the Standard in Parliament.
A further part of the Government's decision was that the DDA itself would
need to be amended to ensure that the exemption provisions in the DDA
can also apply to the Transport Standard. This means that legislation
will have to go through Parliament. The Government has said that this
legislation will be put forward in the Spring session- this means August
to October. However, with elections in the air, and a busy legislative
program, I think we have to face the real possibility that the amendments
- and thus the Standard - will not be passed by this Parliament.

This ought, in my view, to but a real issue of concern for the bus industry.
The disability field have, in the main, withheld public transport complaints
for a long time waiting for these Standards. But I'm not sure how much
longer their patience will last.

Other processes available under the DDA

Apart from the complaint and standards processes, there are two other
areas of the DDA which merit consideration by your industry, because both
allow you to make a commitment to moving towards an accessible transport
system, and at the same time gain protection from the lodging of DDA complaints.
These are Action Plans and exemptions.

Action Plans are a voluntary means for you to publicly indicate how you
intend to change your discriminatory environment to a non-discriminatory
one. They are documents in which you set out what you intend to do to
change that environment. They can be lodged with the Commission, and are
freely available on the Commission's website.

They help you to focus on what changes need to be made, and allow you
to say publicly what you intend to do and how and when you intend to do
it. If subsequent complaints are lodged, they can provide you with protection
from those complaints.

Example: These buses in year 4.

The second protection from complaints is to seek an exemption from the
complaint provisions of the DDA. The Commission can grant these for up
to five years. The benefit of obtaining such an exemption is that you
can get on with making your fleet accessible in the way that you plan
to do it, without the risk of having a complaint lodged against you.

The Commission has a policy that it will only grant exemptions which
advance the Objects of the DDA. Those objects are to, as far as possible,
achieve a non-discriminatory environment. So you can see that we would
only be granting exemptions to organisations which set out how they were
going to achieve those Objectives in the context of their provision of
public transport services.

We are happy to discuss exemption applications informally with you before
they are finally lodged. Once lodged they are put on our website, and
public submissions are allowed on the exemption application. Following
the period of submissions, the Commission considers the material before
it and decides, within its policy, whether to grant the exemption. The
exemption policy is also on the website.

The exemptions are normally granted with conditions (things which the
organisation would need to achieve by certain dates within the exemption
period) and reporting requirements. The most well known example of an
exemption granted by the Commission is the one granted to the companies
running Melbourne trams.

These companies have been granted a five-year exemption from the lodging
of complaints on the condition that they commence the introduction of
low-floor accessible trams in Melbourne. Following the grant of this exemption,
about two years ago, the first low-floor tram will roll into service later
this year. Provided that the introduction of the low-floor trams goes
according to plan it is likely that, at the end of the first five years,
a further exemption will be granted if sought.

As I said earlier, the reason that the DDA has to be amended before Standards
are introduced is so that this exemption power can be given to the Commission
for areas of the Transport industry covered by the Transport Standard.
The process which the Commission now uses will also apply to exemptions
sought from the Standards. The one difference will be that, as well as
seeking input from the community when the exemption application is published,
we will also be required to take advice from the National Transport Secretariat.
We are very comfortable with the additional advice which will be provided
to us, and Paul Blaik, who is speaking this afternoon, will no doubt tell
you in more detail about how the secretariat will perform this function.
I understand that some of the negotiations between the States and the
Commonwealth need to be finalised on this issue.

So, you might say, how could this exemption process be relevant to us?
Well, let's take the example which I discussed before of long-distance
coaches. There is nothing preventing the companies involved in long-distance
coach travel in Australia, either individually or as a group, seeking
an exemption for this area of the bus industry. They would need to indicate
the challenges which they face in making their coaches accessible, and
the processes that they intend to undertake to address those challenges.
Were we to receive such an application, it would be put out for public
comment and then considered by the Commission.

Other private bus operators, or groups of operators, may feel that it
would be more beneficial for them to obtain an exemption from the DDA-
that this may be a better risk management strategy than just hoping that
a complaint would not be lodged. We would be happy to talk with you. As
those of you who dealt with us when the ORTA exemption was granted know,
the last thing that the Commission wants to do is to micro-manage the
bus industry, or any other area of public transport. If you can demonstrate
that you have a plan which will advance the Objects of the DDA, we would
be happy to grant an exemption and let you get on with it in the knowledge
that complaints cannot be lodged.

A number of operators in the transport area have not applied for exemptions
because they prefer to wait for Standards to be introduced. However, their
introduction during this Parliament is by no means certain, and you may
feel that it is better to move on this issue now rather than waiting any
longer. After all, if an exemption has been granted under the DDA, and
the Standards are introduced, it seems to me that, unless there was a
persuasive reason not to do so, the exemption granted before the Standards
would just be rolled over to a further grant of exemption after their
introduction.

Conclusion

The DDA has been law now for almost nine years. Many of those years have
been spent trying to develop a transport Standard, because without equal
access to public transport people with disabilities will never be able
to equally participate fully in community activities- employment, education,
recreation- in short the whole gamut of public life.

More and more government and private transport operators are realising
that public transport will become accessible. The only questions remaining
are whether it will be with the clarity and certainty which Standards
provide, or along the far more uncertain road of decisions in the Federal
Court. If I were a transport operator I know which one I would prefer.

I recognise that access is not gained without a cost- but the same could
be said of all of the goals in your national policy statement. But it
also brings benefits- an easier, more comfortable and less stressful ride
for more passengers- not just people with disabilities, but older people,
parents etc.

The Commission's role is to work in partnership with industry to achieve
the access which the Commonwealth government legislated for in the DDA
in 1992. We believe that far more can be achieved through co-operation
than through adversarial processes. We want to work with you so that,
unlike my recent experience at the Easter Show, every Australian can catch
every bus.

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