Initiatives to achieve better access to the built environment
Disability Rights
Initiatives to achieve better access
to the built environment
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Address given 11 May 2000 |
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As you know, the Commonwealth
Disability Discrimination Act, and equivalent laws in all States, make
it unlawful to discriminate on the ground of a person's disability. One
of the areas covered by the Act is access to premises. The only exception
to this is where a building is already constructed not providing access,
and alteration to provide access would cause unjustifiable hardship.
Most of you, being
Queenslanders, would also be aware of the decision in Cocks v State
Of Queensland, a decision under the equivalent Queensland legislation.
The government in this decision was required to install an elevator next
to the very aesthetically pleasing but totally inaccessible sweeping staircase
at the front of the building. The accessible entrance 100 metres away
at the rear was not regarded as adequate. Over the past four years the
Commission has undertaken a number of initiatives to provide guidance
to owners, operators and users of premises on their rights and responsibilities
under the DDA. In addition the Australian Building Code Board (ABCB) has
committed itself to revising the BCA to make it more consistent with the
DDA.
Many individuals, companies,
local governments and industry professionals have attempted to develop
best practice means of ensuring access for all users. All these initiatives
contribute to the development of an accessible environment. At the
same time we hope to provide those responsible for premises with the certainty
they are seeking that they are complying with anti-discrimination law.
The aim is access for
all.
The DDA is a general
law that removes discrimination in a wide range of activities. Access
to premises is one of them. We all need something that explains
what this involves and how to do it.
The DDA now contains
a power to make a standard about access to premises. The government
is presently considering the form that standard might take. Put
simply, a standard is the detail that the DDA itself lacks. Under
the Act anyone who complies with the standard is protected against discrimination
complaints.
A general consensus
is emerging that the content of the standard should be provided as far
as possible by the Building Code of Australia. The Commission strongly
supports this. The logic of one replicating the other, and the simplicity
it will bring, is hard to argue against.
The philosophy of the
DDA is that all people have rights to access the economic, social, cultural
and political life of the community. This does not rule out additional
special assistance - but that is not what the DDA is about. It's
about going to the movies or the cricket, or into shops, offices and schools
and receiving equal treatment- in terms of physical access, non-discriminatory
service, education, employment etc; in short its about removing barriers
be they physical, technological or attitudinal.
We do not want and
must not have a separate regime that encourages the marginalisation of
people with disabilities and exerts a new and different regulatory burden
on industry.
So because of the focus
of the DDA we particularly want to help mainstream organisations and activities,
such as the Australian Building Codes Board and their management of the
Building Code. It is from that direction that must come continuing
improvement in access and participation for the whole community.
Access is just an ordinary
aspect of good building design. As we come to grips with how to
get the outcomes we want, we all tend to lean on the knowledge and experience
of specialists. But the best results for the most people will in
the longer term be achieved by good design where access doesn't need specialised
advice but is just part of the ordinary process of putting up and operating
a building. One day we won't need access experts.
Any future DDA Standard
covering all aspects of access to and use of premises would need to address
a broader range of access issues and could consist of a number of elements
including:
- those parts of new
buildings that the current BCA access provisions cover, such as sanitary
facilities, controls, ramps, and signs - those parts of new
buildings that the current BCA access provisions do not cover, such
as furniture and fitments - those parts of the
external built environment that the BCA access provisions do not cover
such as parks, street furniture, pathways and infrastructure systems - management and maintenance
issues that can have a significant effect on the use of premises - existing premises
A comprehensive DDA
Standard covering access to premises will evolve over time to include
some or all of these elements as they are completed. This would mean that
the matters not included in a DDA Standard would still be subject to the
general complaint provisions of the DDA.
Most effort over the
past four years has gone into revising the BCA to make it more consistent
with the provisions of the DDA. Progress in this area has been slow due
in part to a concern in some quarters that significant changes to regulations
covering new buildings will result in economic and technological difficulties
for owners and operators of existing buildings undergoing new work.
I do not share those
concerns. While existing buildings undergoing new work or significant
refurbishment require an approval which 'triggers' the need for compliance
with the current BCA
1. there is already
a mechanism at a local level for building owners and operators to seek
variations from compliance with the current requirements of the BCA
or local planning regulations in relation to existing buildings undergoing
new work or significant refurbishment, and
2. the Disability
Discrimination Act is clear in its intent to ensure owners and operators
do not experience unjustifiable hardship in relation to the provision
of access for people with disabilities.
If a future revised
BCA is to achieve consistency with the requirements of the DDA and be
referenced as part of a future DDA Standard its scope and provisions should
not be limited by concerns about their effect on existing buildings when
mechanisms already exist to address those concerns.
The case of Cooper
v Coffs Harbour City Council and the Commission's comments on that case
show that building and development approval bodies have a responsibility
to consider the requirements of the DDA and a right to make decisions
about what might constitute unjustifiable hardship when making those decisions.
While waiting for that
process to be completed, however, there are a number of steps I can take
to recognise progress as it occurs.
In July 1997 Commissioner
Hastings issued the Advisory Notes on Access to Premises aimed at assisting
those responsible for premises to better understand their responsibilities
in relation to the DDA. In March 1998 the Commission reissued those
Advisory Notes and made a commitment to revising them regularly as and
when changes to the BCA occurred.
The Advisory Notes
are approaching the end of their useful life. If a process is established
where people with disabilities can participate with industry and regulators
in preparing a DDA standard then the Commission's advisory notes will
be withdrawn to allow that new process full scope for innovation.
Obviously if there is inadequate progress towards a standard the Commission
will need to consider reissuing its own advice simply because many people
will come back to us with questions about what to do. I should emphasise
that would not be our preferred outcome.
While the scope of
the BCA has been extended to include a number of issues such as tactile
warning indicators and signage there are still a number of potential barriers
for people with disabilities using buildings that are not covered by the
BCA. This includes items such as furniture and fitments and services such
as changing rooms in clothing shops. I would support any moves to extend
the scope of the BCA and there are many public areas outside buildings,
such as parks, BBQ areas and street furniture, not covered by the BCA
and therefore not included in current consultations. They are nonetheless
subject to the DDA. These will need to be addressed by the BAPC or some
other process if they are to be included in any future DDA Standard.
The BCA does not specifically
address issues concerning the way a building functions in terms of management
and maintenance issues. Many such issues, however are critical for continuing
access to and use of premises. For example a failure to maintain a lift
may result in it not operating, thereby denying access to someone using
a wheelchair to all parts of a building.
Discrimination arising
from inadequate or inappropriate management will continue to be subject
to the normal complaints handling procedure.
Existing premises,
including heritage buildings, are covered by the DDA and could also be
the subject of a future DDA Standard. At this stage however discussion
is focusing on establishing nationally consistent mechanisms for dealing
with existing buildings undergoing new work or refurbishment and requiring
a development or building approval.
A nationally consistent
mechanism however will take considerable time to develop and will to some
degree be dependent on the completion of the review of the BCA.
Opportunities
for local initiatives
While
supporting continued discussions on possible national mechanisms for processing
requests for variations in relation to existing buildings I am eager to
take whatever action I can now to encourage local initiatives to create
accessible environments.
Many developers, owners,
operators and local governments are genuinely attempting to ensure premises
are non-discriminatory. Initiatives such as Access Policies or Development
Control Plans prepared by local governments are creating a clear expectation
that developers and operators must ensure their premises are non-discriminatory
by including access in the very beginning of the design brief stage.
The decision in Cooper
v Coffs Harbour City Council makes it clear that local government has
a crucial role to play in relation to the DDA in exercising approval authority.
If approval authorities exercised their power with due regard to the provisions
of the DDA (as recommended in the Commission's comment on Coopers case,
available on the Commission's Homepage at www.hreoc.gov.au) the likelihood
of successful complaints against developers, operators and local government
would be significantly reduced.
There are many existing
premises that are not subject to the need for development or building
approval but which are still covered by the provisions of the DDA.
Owners and operators
have been encouraged by the Commission to develop Action Plans to address
identified barriers to access to those premises and the services operating
out of them.
Benefits
of Action Plans
Section
61 of the Disability Discrimination Act allows for the development of
Action Plans that may be lodged with the Commission for registration.
Any Action Plan lodged should consist of a number of elements described
in Guides developed by the Commission and available via www.hreoc.gov.au/disability_rights
.
Action Plans can be
of benefit to an owner, operator or service provider as they:
- eliminate discrimination
in an active way - reduce the likelihood
of complaints being made - increase the likelihood
of being able to successfully defend complaints - increase the likelihood
of avoiding costly legal action - allow for planned
and managed change in business or services.
While the mere existence
of an Action Plan does not in itself constitute a defence under the DDA
any plan registered with the Commission (or any other relevant document)
must be considered by the Federal Court as part of a defence to unlawful
discrimination on the basis of unjustifiable hardship.
An Action Plan could
also be used at any time in the complaints handling process by a respondent
wishing to convince a complainant of its commitment to eliminating discrimination.
For an Action Plan
to be effective it must convince prospective complainants and ultimately
the Federal Court that it shows real commitment to eliminating discrimination,
reflects relevant priorities developed in consultation with people with
disabilities, has clear timelines, and is in fact being implemented. A
Commission publication available at www.hreoc.gov.au entitled Developing
an Effective Action Plan discusses these issues in detail.
Conclusion
The
Disability Discrimination Act is not a dragon waiting to gobble up the
profits accruing from owning, building and operating premises. It is a
law which provides that the 20`% of Australians with disabilities should
be treated in the same way as everyone else. It shares the aims of property
owners and managers- to make premises as easy to use, and therefore as
attractive as possible, for all. It recognises that infrastructure
change can be costly, and includes mechanisms to allow for this.
The challenge for all of us is to achieve a regime which provides clarity,
certainty, and access for all. Working together, as we are, I am confident
this can be achieved.
