Termination/decline decisions: Access to premises

Summaries of decisions by Disability Discrimination Commissioner or delegate to decline complaints, and of the President of HREOC or delegate reviewing such decisions; or (from 13 April 2000) decisions by the President or delegate to terminate complaints.

Last updated: April 2000. Compilation and release of these summaries beyond April 2000 has not been authorised by the Commission

Swimming pool access by hoist rather than ramp not discriminatory

A man who uses a wheelchair complained that he had been discriminated against because a 50 metre swimming pool under construction provided for hoist rather than ramp access. He raised concerns regarding dignity and possible equipment malfunction. The respondent council referred to effects on the pool as a competition venue if a ramp were used; additional costs; structural concerns; and indications of popularity of hoists with many people with disabilities. The delegate of the Disability Discrimination Commissioner declined the complaint. She noted that while many organisations and community groups had expressed views on the relative merits of ramps and hoists her task was not to determine this issue but to assess whether there had been discrimination under the DDA. She found that this had not been demonstrated. While she accepted that concerns expressed about control over hoist movement and dignity were genuine, she did not agree that access by means of a hoist was inherently undignified. She did not find any less favourable treatment or that any condition had been imposed which the complainant could not comply with. (December 1999)

Smoke complaint adequately dealt with by inspection under State legislation

A person with asthma complained that a restaurant had required her to use a room affected by cigarette smoke from another room in order to use their services and facilities. The President confirmed the Acting Disability Discrimination Commissioner s decision to decline the complaint. The Tobacco Products Regulation Act 1997 (SA) required a non-smoking dining area completely or substantially enclosed by permanent walls or windows. The premises concerned had been inspected by the Health Commission in response to a complaint regarding the same incident and the dining room had been found to meet the requirements of this legislation. The President was satisfied that the complaint had been adequately dealt with by another statutory authority (17 December 1999).

Building access complaint adequately dealt with by adoption of Action Plan

A person with a disability complained that his local council had discriminated against him by failing to make council premises accessible to people who use wheelchairs. The council adopted an action plan as a result of the complaint and other representations, which gave all public facilities requiring modification a priority within the overall plan, and provided for annual reporting until all facilities became accessible. The complainant wished the complaint to reamin open until implementation was complete. However, the President upheld the Disability Discrimination Commissioner s decision to discontinue investigating the matter on the basis that it had been adequately dealt with (October 1999).

Exclusion of hearing dog from zoo not unlawful: required by quarantine regulations

A man complained that he had been discriminated against by Taronga Zoo not permitting him to bring his hearing dog into the zoo. The Commissioner declined the complaint. The man himself had not been refused access, as he had been offered accompaniment by a guide and staff supervision of his dog. The zoo had no power to admit the dog as it was a quarantine facility and bound by the provisions of the Quarantine Regulations to exclude animals belonging to visitors (1999).

Building of inaccessible private housing not unlawful

A person with a disability complained that a developer proposed to discriminate against him by building units and facilities which would be inaccessible to him. The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He noted that the proposed development had been approved as a private residence, and decided accordingly that any inaccessibility of the proposed premises was not unlawful under section 23 of the DDA, which applies only to premises which the public or a section of the public is entitled or allowed to enter or use. He also decided that a breach of section 25 of the DDA, dealing with accommodation, had not been established. Since there was insufficient evidence that the complainant or an associate of his would own or rent the proposed premises the complainant was not a person aggrieved by the alleged discrimination and therefore was not entitled to complain under the DDA (30 May 1998)

Complaint against authority which lacked power to require DDA compliance found misconceived

A man with a mobility disability complained that the Victorian Department of Infrastructure had discriminated by failing to ensure that certain building plans complied with the access requirements of the DDA before certifying those plans. Confirming the decision by a delegate of the Disability Discrimination Commissioner to decline the complaint, the delegate of the President found that the Department was not empowered to impose any requirement or condition other than one directly relating to a provision of the Building Act 1993 (Vic.) and its regulations. Beyond this the Department was only able to make recommendations, and this it had done. The complaint that the Department had failed to ensure compliance with the DDA was therefore misconceived (23 December 1997).

Lack of accessible front entrance of existing building not unlawful

A man with a mobility disability complained that he had been discriminated against by the requirement to be able to use steps to use the front or main entrance of a major historic public building. The delegate of the President upheld a decision by a delegate of the Disability Discrimination Commissioner to decline the complaint. He took into account the complainant's concerns about not being able to enter by the main entrance and reservations about using the proposed lifts at the rear of the building. However, he also took into account that changes to the front of the building are constrained by design constraints; historical factors; that there was to be an accessible lift at an alternative entrance; the proximity of this lift to accessible toilets and proposed disability parking; proposals for services and facilities in the alternative entrance area to make the entrance more attractive and that the proposed accessible lifts would enable direct access to the main room of the building. In these circumstances the delegate was satisfied that the requirement that the front entrance be entered by means of steps was reasonable (19 November 1997).

Limitations on access found reasonable in view of religious and cultural requirements

A man with a mobility disability complained that access limitations on the Chinese Gardens in his city were discriminatory. Confirming the decision by a delegate of the Disability Discrimination Commissioner to decline the complaint, the delegate of the President found that the access features of the site did not impose an unreasonable condition or requirement and therefore did not involve unlawful discrimination. He noted evidence that the gradient of a pedestrian bridge and a wooden barrier across the front of the temple were designed in accordance with religious and cultural requirements. He also noted evidence of the provision of alternative access paths (8 November 1997).

Not unlawful for toilet to meet only current minimum standards

An advocacy organisation complained that the size and design of a particular disabled toilet in a shopping complex made it impossible for people with a mobility disability to use. The delegate of the President confirmed the decision of the Disability Discrimination Commissioner to decline the complaint. He noted that the toilet concerned was designed in accordance with the minimum standard set out in Australian Standard AS 1428.1-1993. Although the space provided in this minimum standard was not sufficient for some people with a disability, the delegate found that use of this minimum standard did not impose an unreasonable condition or requirement in the circumstances, considering that there was another accessible toilet nearby (165 metres away) with less restricted room (25 October 1997).

Access complaints can only be made by or on behalf of a "person aggrieved"

A group of people with disabilities complained about the inaccessibility of various buildings in Sydney including a number of bank premises. The Disability Discrimination Commissioner declined some of these complaints on the basis that since the complainants were not customers of the bank concerned and had disclaimed any intention of becoming customers they were not "aggrieved" by the lack of access and therefore were not entitled to complain under the DDA. The delegate of the President confirmed this decision (15 October 1997).

Police vans are not premises open to the public

A person with a disability complained that the divisional vans operated by the Victoria Police are not accessible to her. The President upheld a decision by a delegate of the Disability Discrimination Commissioner to decline this complaint on the basis that these vans are not premises open to the public. He noted that a person had to be arrested before the issue of entry to the van could arise, and that in any event the vans were not the only means by which an arrested person could be conveyed by the police (23 May 1997).

No discriminatory refusal when no power to permit

A shop owner complained that as an associate of people with disabilities who wished to use his shop he had been discriminated against by the local council's refusal to permit him to construct a ramp and handrail outside the front of his shop. The Commissioner declined the complaint. There had been no discriminatory act by council because the land in question had been vested in them only for the purpose of parking, so that they had no power to give permission for its use for a ramp as requested (1997).

Court access complaint adequately dealt with

A man who uses a wheelchair complained that he was discriminated against by the scheduling of a court matter involving him for a NSW court which was not accessible. The Commissioner declined the matter as adequately dealt with after the matter was rescheduled for an accessible court (1995).

No duty to provide access for neighbouring property

A woman with a disability complained that development by a Commonwealth Department of a site adjacent to a church would obliterate existing wheelchair access to the church and that the alternative arrangement proposed by the department (involving a lift and advance arrangement to unlock doors outside weekday business hours) was not satisfactory. The Commissioner declined the complaint as misconceived, on the basis that the neighbouring property had no responsibility to provide access to the church (1995). The President had earlier refused an application for an interim determination, on the same grounds (21 December 1994).