Notice of temporary exemption
application: Northern Districts Model Engineering Society

Application

The Human Rights and Equal Opportunity Commission has received an application
from the Northern Districts Model Engineering Society for a temporary
exemption under section 55 of the Disability Discrimination Act (DDA)
from those provisions of the DDA which could otherwise require installation
of a wheel chair lift to the first floor meeting room of the applicants'
near complete clubrooms at Balcatta, Western Australia. .

The application states that it is made on the basis of unjustifiable
hardship and indicates that:

• the building has been constructed by the volunteer members of the
  society over the past 2 and a half years
• some public funding has been provided through grants of $40,000 from
  the City of Stirling
• a stair lift was procured at the commencement of the project but has
  been found unsuitable for the purpose
• the Society may need up to 2 years to raise the funds necessary to
  purchase and install an appropriate lift
• the building when completed becomes a City of Stirling asset but the
  City's position is that it cannot accept the building as complete until
  a wheelchair lift is installed
• the applicants cannot formally occupy the building until accepted
  by the City
• it will take the applicants an estimated 2 years to raise the $30
  000 necessary for purchase and installation of an appropriate lift
• in the event of a person requiring lift access attending its meetings
  or joining the Society will arrange for meetings to be held on the ground
  floor which is wheelchair accessible.

Issues

Although issues which would be relevant to determination of an unjustifiable
hardship defence in the context of complaints may also be relevant to
determination of the merits of an application for temporary exemption,
the Commission has not been prepared to grant exemptions simply to certify
the existence of unjustifiable hardship.

In particular, it does not appear an appropriate use of the Commission's
power under section 55 of the DDA to substitute for the power of local
government to approve or decline to approve buildings for use. It may
be that local government bodies which consider that they are exposed to
excessive uncertainty regarding potential liability under the DDA in making
decisions on building access issues should themselves consider making
applications for exemption. Such applications might include appropriate
criteria and processes for making decisions and might also be accompanied
by other commitments on improving access in local communities.

However, exemptions have been granted to provide time to implement solutions
to access barriers (such as in the Melbourne Trams decision). In this
matter the applicants are seeking time to implement access rather than
a simple certification of unjustifiable hardship.

Exemptions have been refused where there is no reasonably arguable case
of unlawful discrimination (see the Employers Making a Difference decision)
but have been granted where it is possible although unlikely that there
would otherwise be liability for unlawful discrimination (such as the
ORTA decision).

It appears likely that if the applicants implement the measures they
propose to ensure that no member of the public or of the Society is excluded
from activities because of the lack of wheelchair access to the second
floor, no act of unlawful discrimination will occur. However it is also
possible that despite such arrangements the lack of access to the upper
floor could result in discrimination

Call for submissions

'In accordance with its policy on exemption applications, the Commission
seeks to give interested parties an opportunity to participate in the
process of considering this application.

Accordingly, the Commission seeks submissions by 17 October 2003, preferably
by email to disabdis@humanrights.gov.au
. Submissions may also be addressed by mail to Disability Rights Unit,
Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney 1042.
Where submissions are made by mail a copy on disc should be included if
possible.

To promote open public discussion and exchange of views, the Commission
intends to make submission publicly available by posting submissions made
electronically on its Internet site. Requests for material to be treated
as confidential should be clearly indicated.

The Commission will decide further actions on this matter after considering
submissions received.

Graeme Innes

Deputy Disability Discrimination Commissioner

24 September 2003