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The Disability Standards for Accessible Public Transport: where are we?

Disability Disability Rights

The Disability Standards for Accessible Public Transport: where are we?

Bus Industry Confederation conference
30 October 2006, Lakeside hotel Canberra

Graeme Innes
Human Rights Commissioner and Disability Discrimination Commissioner

Graeme Innes

Introduction

I'd like to start by acknowledging the traditional owners of the land on which we meet, the Ngunnawal people, in whose language Canberra means meeting place as you probably know.

It is good to be meeting with you again.

I must confess that, as a parent with a young family, and as a budget conscious public servant and taxpayer, I love the ability that modern communications give us to meet and work together without necessarily always having to travel, and turn public money into greenhouse gas.

At the same time, we humans are physical beings, and we need and want to live and work and meet in real space not just cyberspace.

If your industry gets more attention from the Human Rights Commission, and from disability organisations, than lots of other industries, I'm sure you know that it's in recognition of the crucial role public transport plays in our lives.

My topic today is the Disability Standards for Accessible Public Transport - Where Are We.

I'd like to expand that slightly to talk about where have we come from, where are we, and where are we going.

Where have we come from

In preparing for this conference I looked back at the address I gave to BIC's conference in Perth in 2001. It reminded me of a few things.

First, that I really must look for some new reading material, besides my own old speeches.

Second, it reminded me that we really have come quite a long way, even since 2001. When I say we, I mean you as an industry, ourselves at the Human Rights Commission and other government agencies involved in transport, and the community including people with disability as users of accessible public transport. I applaud this significant progress.

Thirdly, of course, as well as having five years more experience with delivering, using, or regulating accessible public transport services, and five more years of technical developments, we are all five years older than we were back in 2001. I mention that as a reminder that, as we age, it becomes more and more likely that a significant level of disability will be part of our own experience. A recent report by the Australian Institute of Health and Welfare - Life expectancy and disability in Australia - found that with overall gains in life expectancy, men in Australia could expect to live almost 20 years with a significant disability; and women more than 20 years.

So building accessible and inclusive communities now, including accessible transport services, is not just a matter of social justice for some minority out there- it's about the future for all of us.

I don't exempt myself from that, although it is hopefully a few years yet before I swap the lightweight white cane for something more substantial - but I do have to say that the grey streaks I used to get put in my hair as a fashion statement just come naturally now.

With this thought in mind, I applaud those people - and there were many - in the bus and coach industry who recognised, even before the Disability Standards for Accessible Public Transport were in place, that disability was about all of "us", not about "them", and I congratulate too those who more recently have joined in working to deliver accessible services.

Big social changes don't always happen overnight when a law is passed. As with something like climate change, the signs can take time to see.

And as with doing something about a large scale environmental problem, doing something about large scale barriers in our society requires government, business, and all sections of our society, to be serious about tackling the issues, and prepared to invest the effort, intelligence and resources required.

Going back even further for a moment than five years ago into where we've come from:

  • We've lived more than 20 years with anti-discrimination laws in some States, which did require non-discriminatory access to services, including public transport, but which also failed to tell people with disabilities what they could expect and by when; or to tell public transport providers anything at all specific or, frankly, even moderately operationally useful, about what to do and by when. Let me admit very openly, it is not just your industry that has had, or for that matter may still have, things to learn about providing and promoting disability access.
  • It's nearly 14 years now since the Disability Discrimination Act was passed. The DDA started off with the same general non-discrimination requirements as the legislation which already existed at state level. But it did recognise the need for more information in designing and delivering accessible services, than the less helpful command of general anti-discrimination laws: "Don't discriminate - or people can complain to tell you how unhappy they are!"

Back in 2001 we had got to the point where all Australian governments, and industry representatives, and disability community representatives, had all reached general consensus that everyone would be better off with some rules defining what equal access meant, and when it had to be achieved by.

By 2002, we had a reasonable consensus that the details of the standards being put forward for adoption were appropriate.

That consensus included a recognition that we would learn from experience, and the Standards included a provision for review within the first five years of operation.

A few things learned along the way

The main limitation of the Transport Standards is in how easy it is for them to respond to new technical developments, and lessons from practical experience, without having to go back to the Parliament for amendments or additions.

What I have been hearing from industry for some time, including in public transport, is that it would be helpful if the DDA contained more of the full range of modern regulatory approaches, including the capacity for co-regulation - meaning, approval for the purposes of discrimination law of codes developed either by industry bodies; or regulatory bodies with specialist expertise in, and responsibility for, an issue; or perhaps by disability community bodies with particular expertise.

The disability community has long recognised that being served only by disability specialist services was the road not to equality but to segregation.

The same is true for measures to remove discrimination : if all we have are the procedures and resources available to an antidiscrimination agency we will not make Australia a truly accessible society. What a senseless waste on human life, as Monty Python put it, that would be - and I don't think, or accept, that this need be our fate.

The Productivity Commission, in its review of the DDA recommended, and the Government accepted, that a capacity for co-regulation - to allow further mainstreaming in regulation of disability access issues - would be appropriate to add to the DDA overall - not just in relation to areas covered by Standards. And, if the bus and coach industry is as interested as I think you are in having the capacity for recognition of solutions to access issues on an industry basis, the current early stage of the 5 year review of the Standards is the time to raise these issues.

The drafters of the Standards did seek to conform to what was then emerging, and is now well accepted, modern regulatory practice, in providing a combination of certainty and flexibility, by providing specifications to comply with, but also the ability to comply by demonstrating "equivalent access". To that extent, the Standards were meant to provide for performance based compliance, rather than prescribing line by line technical compliance.

But as I have already suggested, it is reasonable to think that the design of approaches to regulation in this respect might be improved in 2006-7, compared to the work of drafting the standards which was in the main done in 1995-6. just as the design of a bus or coach might be expected to have moved forward fairly substantially over the same period.

We should not regard improvements to the Standards as a rejection of the original process. I can see nothing - I repeat, nothing, in Australian human rights and discrimination law that has had so demonstrable a large scale and positive impact in our society as the implementation of the transport standards to date. This is despite, or perhaps because of, the absence of large scale wins and losses in litigation or political and media fireworks on the subject since the standards were introduced. All involved have negotiated realistic and practical outcomes rather than have perpetual yet unproductive battles with the dark side. The facts speak for themselves as to outcomes.

For example: The disability community complainants in the case of Waters v Public Transport Corporation in Victoria won legal victories all the way to the High Court - but achieved precisely nothing in practice on access to trams or buses.

Access in practice came rather from those awful pragmatic compromises of adopting standards with provision for achieving access over time, and - some allege worse still - the granting of an exemption by HREOC prior to the entry into force of the standards. That exemption - through detailed consultation, gave a negotiated result which recognised the needs of all. We have achieved so much together - and I can only wish that similar results on every human rights issue might be achieved in co-operation between government, industry, community and human rights agencies.

Where are we

At the same time that they approved the Standards, Australian Transport Council Ministers agreed that each jurisdiction should report regularly on progress in implementation. It has been a long and drawn out process, but in the last few months we have finally been able to publish links on the HREOC website to reports from almost all States and Territories on how implementation of the standards is going.

There are a few obvious limitations. Reporting is more detailed on the services which governments provide or fund directly themselves, and is less detailed, or in some cases missing, on more purely private sector services. As part of that, reporting on coach services is much thinner than on bus services, except in relation to the coach services which some State governments run as part of rail operations, and which are not representative of experience in the coach industry overall.

Despite this, it is worth running briefly through the State by State reports as we have them now.

In the A.C.T. over 25% of the publicly funded fleet will be compliant by December 2007 and 28% of bus stops have been upgraded to move towards compliance.

In NSW as at April 2006, 43% of the public bus fleet of 1719 vehicles was reported as accessible. Not to the same level but still encouragingly, 20% of the 1288 privately operated buses were also accessible, with 20 months still to go before the first 25% target for service accessibility.

It's worth noting here that the 25% target deals with services rather than with fleet percentages, so that potentially an operator with less than 25% fleet access could still meet the 25% service accessibility targets by making the obvious decision to use the newer and better accessible vehicles more intensively than the older and less consumer friendly inaccessible vehicles in the fleet. This level of complexity, or flexibility, of the Standards would make it more complicated to assess compliance or non compliance in the event of a complaint. But one aim of the Standards is to make the work of transport providers achieving compliance and providing services to millions of people easier - they are about overall access, not complaints.

The NSW information does highlight a major issue in achieving accessible transport in practice. It states that a style guide on bus stop design has been distributed to local government in the operating area of NSW government buses. In this respect, the government operator appears to be in the same position as private operators almost everywhere - even after the investment has been made in accessible vehicles, the operator is still dependent on supporting infrastructure which in many cases the operator does not control. Local government was represented in the development of the Standards. But local government has not been adequately involved since then, and the Standards may well not adequately specify what should be available in supporting infrastructure for accessible bus services. The approach in the Standards was to state what bus operators could assume would be in place, rather than state directly what authorities responsible for infrastructure had to do, in delivery of appropriate infrastructure, or in co-operation with transport operators. Quite clearly there needs to be close involvement of local government in the review of the Standards, and a close look at the fit between accessible vehicles and accessible infrastructure.

Without meaning to disparage the amount of effort and commitment required from those involved, the picture indicated by the Queensland reporting is simpler in some respects: the major public provider in Brisbane also has more authority than most bus operators over bus stop infrastructure. It's for that reason that I welcome the work being done in Queensland on accessible bus stop design. It doesn't just involve instructions or guidance for someone else to try to make sense of and implement, but involves more direct operational decisions about what will actually happen in practice.

The Queensland government reporting indicates compliance levels near or beyond the 2007 targets on almost all issues for buses. The picture is less complete for coaches as I have already indicated.

We have had positive discussions recently with a major coach operator seeking some direction in their efforts to move towards improved accessibility. I think a few other things would also be fair to say:

The coach industry has generally been slower than the bus industry to work out what to do in response to the transport standards

Some of this may have been because the transport standards could be clearer on what acessibility means for coaches - including what approaches to accessible boarding are required and acceptable, and how assurance of equivalent levels of safety should be achieved for passengers with disabilities. This is an area that might be looked at in the review of the Standards.

At the same time, some participants in the coach industry do not seem to have paid anywhere enough attention to compliance with the Standards. I am thinking in particular of operators who think of themselves as being in the "tourist" rather than "public transport" business, but who are covered by the Standards nonetheless. There are some very new looking, and apparently inaccessible, coaches pulling up each day within 100 metres of the front door of the Human Rights and Equal Opportunity Commission in Sydney - I am not sure whether their operators are members of this association.

Coming back to State by State compliance reporting, the Northern Territory Government reports between 85 and 100% compliance already on most of the requirements of the Standards regarding buses. There have, though, been some indications that the picture is far less positive outside of the bus services directly provided by government. Industry perspectives on this issue in the Northern Territory and elsewhere would obviously be very valuable - what level of compliance is being achieved; what problems there are; and what would make a difference in moving forward.

South Australia and Western Australia also report the first 5 year targets as fully met - for busses as well as for coaches in the case of Western Australia . To repeat myself, while that's pleasing, it doesn't tell us much about what is happening among services not directly operated by government.

Concluding remarks

I could go on raising issues that crop up from what is, and isn't, in the reports from governments on compliance with the transport standards. But I respect the need for conferences as much as public transport services to run on or close to time.

So I want to wind up my remarks with these points:

The Human Rights Commission recognises and applauds the progress that public transport providers have made in increasing accessibility of their services through the framework of the Standards on accessible public transport. We will keep raising issues with you- positives, and concerns. We will not tolerate exemption applications which are simply attempts to avoid responsibilities- but we will recognise the need for flexibility while you get on with the job of running your industry, and making it accessible. We are committed to working with you towards improving the Standards, and related mechanisms, in the interests of continued progress towards a more accessible community.

Thank you.

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