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melbourne trams exemption reasons

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Friday 14 December, 2012

melbourne trams exemption reasons

DDA exemption application by Public
Transport Corporation (Victoria) and Others for Melbourne trams: Reasons
for decision

Contents

1.
The
exemption

2. Applicants
and activity for which exemption is sought

3. Statutory
provisions from which exemption is sought


3.1 Provisions
in the DDA

3.2 DDA
and the draft Standards for Accessible Public Transport

4. Grounds
of application

4.1 The
Melbourne tram fleet

4.2 Victoria's
initial plan

4.3 Victoria's
revised plan

5.
Issues
for consideration

5.1 Submissions
on the application

5.2 What
should be done to make Melbourne trams accessible?

5.3 The
question of heritage values

6. Findings
on material questions of fact

7. Conclusion

1.
The exemption

Pursuant
to section 55 of the Disability Discrimination Act 1992 (the DDA)
the Commission has granted a conditional exemption from the provisions
of section 23 and section 24 of the DDA in respect of the manner in which
the applicants provide tram and light rail services in Melbourne (see
Notice of the Commission's exemption decision re: Public Transport Corporation (Victoria)
and Others, adopted by the Commission 15 March 1999).

The
exemption extends only to matters

  • arising
    from provision of services using vehicles forming part of the applicants'
    fleet at the date of this decision and
  • relating
    to physical access to those vehicles.

The
exemption is subject to the following conditions.

  1. The
    exemption commences on 16 March 1999 and expires on 15 March 2004.
  2. The
    applicants are to implement the DDA action plan 21st Century Accessibility
    (the action plan) lodged with the Commission on 4 November 1999, as
    varied by the amendment to that action plan lodged by the applicants
    on 9 March 1999.
  3. Without
    prejudice to the importance of the action plan as a whole the applicants
    are to implement the following undertakings given in the action plan:
    1. provided
      that an adequate interface between low floor trams and infrastructure
      can be achieved, new trams will be introduced in Melbourne commencing
      in 2002 with 106 vehicles being replaced by the end of 2004 by 90
      larger capacity low-floor vehicles
    2. apart
      from the issues of physical access dealt with by the exemption, the
      applicants will bring existing trams progressively into compliance
      with the draft DDA Standards for Accessible Public Transport by continuing
      the program of on-vehicle measures including improvements to such
      features as stop buttons, pull cords, grab rails, handrails, lighting
      along tram aisles and destination signs
    3. the
      53 W-Class trams which are proposed to be retained for heritage purposes
      will operate according to the scheme described in section 5.4.6 of
      the action plan only on routes where as far as reasonably possible
      an accessible alternative is available or will become available.
  4. Where
    a routinely timetabled service operated by W-Class trams is provided
    to the public free of charge on a particular route then the accessible
    alternative must be provided free of charge to those people with disabilities
    who are unable to access W-Class trams and at least as frequently as
    the service provided by the W-Class trams.
  5. The
    applicants are to require as far as possible that any person who operates
    privatised services will also implement the action plan or an action
    plan lodged by that person that is at least as beneficial to people
    with disabilities as the action plan.
  6. The
    applicants are to publish annually a report on progress towards implementing
    the action plan and are to include in that report any steps taken by
    operators of privatised services that improve accessibility. This condition
    applies not only to tram and light rail services but to all matters
    covered by the action plan.
  7. If
    the applicants conclude that an adequate interface between low floor
    trams and infrastructure cannot be achieved and the introduction of
    low floor trams cannot commence in 2002 then the Commission will consider
    alternative appropriate exemption conditions that will facilitate implementation
    of the action plan.

The
effect of the decision will be that if the applicants commence in 2002
to replace their existing fleet with accessible trams they will not be
acting unlawfully in continuing to provide services with trams that are
now part of their fleet even though those may be inaccessible to some
people with disabilities.

This
decision applies to services operated by the applicants and to privatised
services as defined in these findings and reasons.

2.
Applicants and activity for which exemption is sought

The applicants are

  • the
    Public Transport Corporation (PTC) established under the Transport
    Act 1993 (Vic)
  • Met
    Tram 1 and Met Tram 2 established under the Rail Corporations (Amendment)
    Act 1997 (Vic)
    , now known as Yarra Trams and Swanston Trams
  • the
    Department of Infrastructure (DoI), which administers the operation
    of public transport in Victoria under the provisions of the Transport
    Act and other legislation and
  • the
    Minister for Transport for the State of Victoria.

The
activity sought to be exempt is restricted to physical access to trams
and the safety zones at which they pick up and set down passengers. The
applicants are not seeking exemption for any other aspect of tram operation
or for other public transport.

The
applicants request that the exemption apply to the PTC and any successor,
transmittee, assignee, franchisee or subcontractor (whether immediate
or not) of the whole or part of the business conducted by the PTC. The
applicants also request that the exemption apply to Met Tram 1 and Met
Tram 2 and any successor, transmittee, assignee, franchisee or subcontractor
(whether immediate or not) of the whole or part of the businesses conducted
by Met Tram 1 or Met Tram 2. These successors, transmittees, assignees,
franchisees or subcontractors are or will be the operators of privatised
services.

A substantial
part of Melbourne public transport services is provided by trams. Bus
and railway systems are also major parts of Melbourne public transport.
The whole system is the subject of the DDA action plan 21st Century
Accessibility
published in October 1998 by the Victorian authorities.
The plan describes how all Victorian public transport will progressively
be made accessible for people with disabilities.

3.
Statutory provisions from which exemption is sought

3.1 Provisions in
the DDA

The
applicants are seeking exemption from sections 23 and 24 of the DDA. Section
23 concerns access to premises that the public are entitled to enter or
use. Section 24 concerns goods, services and facilities. Taken together
these two sections cover public transport services, the vehicles that
provide those services and the infrastructure such as tram stops that
are part of those services.

Section
23 of the DDA provides:

    23.
    (1) It is unlawful for a person to discriminate against another person
    on the ground of the other person's disability or a disability of any
    of that other person's associates:

    (a)
    by refusing to allow the other person access to, or the use of, any
    premises that the public or a section of the public is entitled or allowed
    to enter or use (whether for payment or not); or

    (b)
    in the terms or conditions on which the first-mentioned person is prepared
    to allow the other person access to, or the use of, any such premises;
    or

    (c)
    in relation to the provision of means of access to such premises; or

    (d)
    by refusing to allow the other person the use of any facilities in such
    premises that the public or a section of the public is entitled or allowed
    to use (whether for payment or not); or

    (e)
    in the terms or conditions on which the first-mentioned person is prepared
    to allow the other person the use of any such facilities; or

    (f)
    by requiring the other person to leave such premises or cease to use
    such facilities.

    (2)
    This section does not render it unlawful to discriminate against a person
    on the ground of the person's disability in relation to the provision
    of access to premises if:

    (a)
    the premises are so designed or constructed as to be inaccessible to
    a person with a disability; and

    (b)
    any alteration to the premises to provide such access would impose unjustifiable
    hardship on the person who would have to provide that access.

Section
24 of the DDA provides:

    24.
    (1) It is unlawful for a person who, whether for payment or not, provides
    goods or services, or makes facilities available, to discriminate against
    another person on the ground of the other person's disability or a disability
    of any of that other person's associates:

    (a)
    by refusing to provide the other person with those goods or services
    or to make those facilities available to the other person; or

    (b)
    in the terms or conditions on which the first-mentioned person provides
    the other person with those goods or services or makes those facilities
    available to the other person; or

    (c)
    in the manner in which the first-mentioned person provides the other
    person with those goods or services or makes those facilities available
    to the other person.

  1. This
    section does not render it unlawful to discriminate against a person
    on the ground of the person's disability if the provision of the goods
    or services, or making facilities available, would impose unjustifiable
    hardship on the person who provides the goods or services or makes
    the facilities available.

3.2
DDA and the draft Standards for Accessible Public Transport

The
applicants state that the action plan as published conforms to the draft
DDA Standards for Accessible Public Transport, except for the time schedule
for implementation.

The
relevance of the draft Standards, not currently in force, to existing
obligations under the DDA and this application of exemption from those
obligations, is discussed further below. It is sufficient at this point
to note that the Commission regards the draft Standards as generally reflecting
existing rights and obligations under the DDA, while recognising that
the draft Standards are not themselves in force and may be subject to
further revision before possible authorisation, and that the Commission's
powers and responsibilities are defined by the DDA as presently in force.

Under
the action plan as published, it would take longer to make trams accessible
than provided in the general time schedule in the draft Standards, assuming
that the Standards commence now or in the near future. The draft Standards
provide for a twenty year compliance period for full accessibility, with
interim compliance requirements at five, ten and fifteen year points,
subject to variation for unjustifiable hardship. Under the action plan
as revised, some interim targets in the time schedule provided by the
draft Standards would appear to be met although the time for full accessibility
would remain beyond that indicated in the draft Standards.

It
is important to note that the compliance requirements of the draft Standards
would be subject, as the existing provisions of sections 23 and 24 of
the DDA are subject, to an unjustifiable hardship defence. The compliance
schedule provided needs to be read taking this into account. It would
be open to the applicants under the existing provisions of the DDA, or
under the draft Standards if in force, to argue in response to complaints
that making some or all trams fully accessible by or prior to the dates
set out in the compliance schedule, or by any other date, or even at all,
would impose unjustifiable hardship. Whether such an argument succeeded
would depend on relevant evidence produced in response to a complaint.

To
the extent that the applicants accept and implement the conditions of
this exemption, they in effect forego the right which they would otherwise
have to seek to establish that they are not required to implement particular
aspects of accessibility of trams earlier than proposed by them or even
by later dates. Equally, granting the exemption relieves the applicants
from having to establish a defence of unjustifiable hardship in response
to complaints in relation to matters covered by the exemption. The applicants
however have presented arguments and evidence in the context of this exemption
application regarding unjustifiable hardship which in their view would
be imposed were full accessibility of Melbourne's tram and light rail
systems required within less than the time they propose.

4.
Grounds of application

4.1 The Melbourne
tram fleet

Trams
are one of the defining features of the urban environment of Melbourne
and its immediate suburbs. They have been part of the lives of people
in Melbourne for much of the twentieth century. Victorian government policy
is that trams be retained.

The
applicants base their request for exemption on these points.

  1. Melbourne
    has a large fleet of trams, comprising 476 vehicles in daily service.
    This is much larger than in any other Australian capital city. Adelaide
    (21 vehicles) and Sydney (seven vehicles) are the only other capital
    cities with tram or light rail services.
  2. The
    Melbourne tram fleet is quite modern. More than 400 of the vehicles
    have been commissioned within the past 20 years. Nevertheless, the tram
    system has a significant historical characteristic which sets it apart
    from the public transport system in other cities. This is reinforced
    by the heritage value associated with the 53 older-style W-class trams
    which remain in service. These are more than 40 years old and are considered
    a Melbourne icon with significant local support and tourist interest.
  3. Trams
    are designed to have long service lives. A recent consultancy study
    conducted by the international firm Interfleet Technology Ltd indicated
    that Melbourne's modern-style trams (Z, A and B-class) could achieve
    service lives of at least 40 years. This means decisions about how to
    achieve accessibility on the tram network are correspondingly more complex
    than for many other public transport vehicles.

Infrastructure
that has been established for decades often poses significant access problems
for people with disabilities and the current Melbourne trams are no exception.
The applicants for this exemption propose to make trams accessible but
say that they cannot do so within the general timeframe proposed by the
draft Standards. As noted above, this timeframe in the draft Standards
is subject to a defence of unjustifiable hardship, as are the existing
requirements of DDA sections 23 and 24.

As
indicated in the Advisory Note previously adopted by the Commission regarding
public transport, the draft Standards are a reasonably adequate statement
of what compliance with the DDA requires. The applicants consider themselves
exposed to a risk of liability under the DDA to the extent they do not
comply with those draft Standards.

The
application is restricted to questions of physical access to trams. The
applicants say that they

    ...
    submit this Exemption Application in regard to the provision of tram
    and light rail services in Melbourne. Specifically the activity for
    which an exemption is sought is the provision of tram and light rail
    services to the public of Melbourne with respect to the physical ingress
    to (boarding) and egress from (alighting) vehicles used by the operator.

    In
    terms of the DDA and the Draft Standards, tram and light rail services
    in Melbourne are inaccessible because the vehicles can only be boarded
    via steps ( the relevant Draft Standards are 8.1 - 8.3 and 8.5 - 8.8
    concerning boarding and 14.1 -14.3 concerning stairs). This Application
    does not seek exemption from Standards not related to physical access
    (refer section 2.2.6 of this Application).

    It
    should also be noted that the width and other layout features of the
    mid-roadway tram waiting areas known as safety zones have been designed
    with regard to the current vehicle boarding regime; it is not intended
    to fundamentally redesign safety zones ahead of the fleet replacement
    program, so, to that extent, the Application is also intended to cover
    safety zones. (But it should be noted that the provisions of Draft Standards
    relating to matters such as signage, information displays and colour
    contrasting paintwork will be complied with at safety zones in accordance
    with the expected timelines and are not included in the Application.)

The
Melbourne tram fleet comprises vehicles in six classes as set out in the
table below.

Table
1: The tram fleet in 1999

Number

Class

Year
of delivery

Average
age

53

W

1936-56

50

106

Z1
and Z2

1975-79

22

115

Z3

1979-86

17

70

A

1984-87

13

132

B

1988-94

8

The
size of the fleet, the fact that it comprises different types of vehicle
and its age profile are all significant factors in this application.
The nub of the problem is that trams have a long design life and often
an even longer working life. The current draft Disability Standards for
Accessible Public Transport (considered without reference to a defence
of unjustifiable hardship which might or might not be able to be established)
set a compliance schedule that is shorter than the design life, and much
shorter than the predicted operational life, of all but the oldest class
of trams.

The
applicants refer to their support for the DDA and the draft Standards
and say that in all other respects they intend to comply. But on this
one issue of the timetable for tram replacement they seek some relief.

The
comparison of replacement according to the schedule in the draft Standards
and according to design life is contained in the following table. It should
be noted that replacing trams at the expiry of their "design life"
would in itself represent significantly earlier replacement than might
otherwise be undertaken, since in practice trams can serve and have in
fact served considerably beyond an original or notional design life.

Table
2: Comparison of Draft Disability Standard and Design
Life

Timeline and target replacement date

Cumulative
number of vehicles replaced

 

Number of years

According
to Draft Standards

According
to design life

After 5 years (25%)

106

nil

After 10 years (55%)

233

62

After 15 years (90%)

381

256

After 20 years (100%)

423

256

After 25 years

423

291

After
27 years

 

423

Note
that this table assumed authorisation of Disability Standards in the terms
of the current draft or in relevantly similar terms in early 1999. As
noted below, Victoria's revised proposal takes account of the fact that
in the event such Standards have not yet been authorised.

4.2
Victoria's initial plan

The
applicants' action plan as submitted on 4 November 1998 envisaged postponing
the commencement of DDA compliance for tram access until 2008. Then fleet
replacement would commence and proceed as the existing vehicles (apart
from the W-Class) reached their 30 year design lives. As noted above,
the replacement of vehicles at the expiry of design life would represent
a significant bringing forward of fleet replacement compared to replacement
at the end of actual operating life. On this basis the program would be
expected to conclude after twenty-seven years, in about 2026. But there
would have been a significant delay at the beginning.

4.3
Victoria's revised plan

The
applicants modified their original proposal by submitting a variation
to their action plan on 2 March 1999. This happened after submissions
had been received and after a public forum was conducted in Melbourne
by the Commission to discuss issues arising from the original application.
That variation is set out here in full.

    Victoria
    did not cease consideration of tram replacement when it lodged its Exemption
    Application. As part of the "indicative bid" phase of the
    franchise process Victoria encouraged bidders to provide enhanced bids
    involving the replacement.

    Victoria
    has also further considered the submissions made to the Commission and the discussion
    at the forum in Melbourne. It is clear that many of the parties involved
    hold the start date for tram replacement as being the most critical
    aspect of this issue as it is the first tangible evidence of implementation
    of Victoria's commitments.

    In
    light of the above, Victoria has reconsidered its position in respect
    to replacement and will require bids on the basis of the introduction
    of new generation low floor trams to replace Z1/Z2 trams by the end
    of 2004. The Government will, however, only proceed on this basis if
    bidders can demonstrate that they will be able to adequately solve the
    interface between the low floor trams and Melbourne's infrastructure.

    The
    table below summarises the impact this approach will have on the tram
    replacement schedule outline in Victoria's Exemption Application. The
    table demonstrates that:

  • Victoria
    will introduce low floor trams some six years earlier than proposed
    in the Exemption Application (i.e. commence 2002 rather than 2008);
  • Victoria
    will replace 22% of existing vehicles by the end of 2004 (although vehicles
    may be replaced at a rate slightly below one for one); and
  • The
    end date for full replacement of trams does not change from that previously
    advised.

Table
3: Comparison of Draft Disability Standard and Target
Replacement Program

Timeline

Cumulative
Replacement Under Draft Standards
See
Note 3

Cumulative
Replacement Under Action Plan
See
Note 1

Amended
Cumulative Replacement Program
See
Note 2

After
5 years

106

Nil

106

After 10 years

233

62

106

After
15 years

384

256

281

After
20 years

423

291

291

After
25 years

423

331

353

After
30 years

423

423
See
Notes 3 and 4

423
See
Notes 3 and 4

      Notes:

    • Assumes
      promulgation of Standards in June 1999.
    • Assumes
      promulgation of Standards in January 2000.
    • Assumes
      53 W-Class trams not replaced.
    • Replacement
      program projected to finish in 2026.

    The
    applicants also say:

      The
      principles behind Victoria's Exemption Application and Action Plan
      have not been changed (other than bringing forward replacement even
      earlier than foreshadowed) and the change in approach necessitates
      longer first franchises (to accommodate the capital expenditure required
      of bidders). The need for an exemption is therefore not removed because:

      • Although
        replacement is brought forward, the timelines required under the
        draft standards would still not be met (although if the 53 W-Class
        trams are excluded from the calculation the first timeline under
        the draft standards would be met); and
      • in
        the early years of the replacement program most of the replacement
        will [have] occurred in the Swanston franchise which has the bulk
        of the older trams in the system so that even though the network
        as a whole broadly complies with the draft standards one of the
        businesses will not.

    5.
    Issues for consideration

    5.1 Submissions
    on the application

    The
    Commission's policy is to consult in public about exemption applications
    so that it has the benefit of as many views as possible before it makes
    a decision. To that end the application for exemption was published
    on the Internet together with an information sheet on how submissions
    should be made. The Commission also notified a range of disability
    community and other relevant organisations directly. A notice inviting
    submissions was published in the press and information sheets and copies
    of the application were sent to people who made inquiries.

    Submissions
    that were received in suitable format were published on the Internet
    so that any interested party could see what was being said. Eighteen
    written submissions were received. The Commission thanks all those
    who took time to make submissions on the application.

    The
    Acting Disability Discrimination Commissioner on behalf of the Commission
    conducted a public forum in Melbourne on 8 February 1999 at which oral
    submissions were made. The forum was attended by approximately 40 people
    with disabilities and representatives from community organisations with
    wide memberships. Representatives of the applicants also attended to
    answer questions and provide information. There was a vigorous and
    helpful discussion of issues about accessibility of Melbourne trams.
    The Commission again thanks all those who participated.

    The
    written and oral submissions all emphasised the important role that
    trams play in the Melbourne public transport system. They strongly
    asserted the rights of people with disabilities to have access to that
    system and were particularly critical of the lack of action over many
    years to make trams accessible. A number of people referred to the
    acquisition of inaccessible trams in the 1980s and early 1990s even
    though obligations concerning accessibility were part of the Victorian
    Equal Opportunity Act from 1981 and part of the DDA since 1992
    .

    Most
    submissions opposed granting the exemption. The views expressed were
    diverse but most had five concerns in common.

  1. Previous
    governments had given undertakings about making trams accessible but
    nothing had happened.
  2. The
    present government had done little so far to make trams accessible
    and its promises to take action should not be believed.
  3. The
    proposed exemption was contrary to the draft Disability Standards
    for Accessible Public Transport.
  4. If
    granted, an exemption would prevent people with disabilities from
    lodging complaints about disability discrimination in public transport.
  5. The
    Commission should not grant the exemption but should require the applicants
    to do things to make trams accessible.

The
Commission has decided nonetheless to grant the exemption on certain
conditions. Its responses to the contentions made in submissions follow.

Previous governments have given undertakings about making trams
accessible but nothing had happened.

Previous
governments may have failed to meet commitments on accessibility of
trams. Certainly many people with disabilities cannot use Melbourne
trams because the trams are not accessible. It is also true that inaccessible
trams were acquired after 1981 even though the law of Victoria may well
have required that they be accessible, and a smaller number were acquired
after the DDA entered into force in 1992.

The
Commission considers it irrelevant to consideration of the current exemption
application that previous governments may have given commitments and
then failed or been unable to deliver accessible trams. The Commission
would be mistaken in law if it were to give decisive weight to statements
and actions that are matters of history and that were not attributable
to the present applicants. Even if it were relevant it is not necessarily
true that actions of present governments will be the same as those of
past governments, only that they may be. The issue for present purposes
is whether the commitments made by the present government are sufficiently
credible to justify granting an exemption. The Commission has found
that these commitments are sufficiently credible.

In
this respect the Commission emphasises again that the exemption is conditional
on those commitments being met.

Further,
interested parties need not wait until 2002 to make any arguments that
action is not occurring as promised in the intervening three years.
The Commission is not taking (and compelling other parties to take)
the applicants purely on trust for that period.

The
exemption is subject to a condition that the applicants report annually
and publicly on progress in implementing their action plan, including
in relation to privatisation of services. The Commission also has power
(implicit in the power to grant an exemption) to vary or revoke the
exemption if sufficient grounds appear at any point for doing so. Interested
parties would be free to bring to the Commission any evidence which
might arise that commitments due to be delivered in or beyond 2002 would
not be met. For example, information to the Commission indicated a lead
time of approximately eighteen months for entry into service of new
trams even if the applicants were required to commence fleet replacement
immediately. Interested parties might wish to approach the Commission
either for variation of the exemption or with complaints if appropriate
specifications or orders are not in place early enough in advance of
2002 to permit deliveries to commence on time.

Whether
actions of the Victorian authorities in acquiring inaccessible trams
after 1981 or after March 1993 were unlawful under Victorian law or
the DDA, or whether it was or is unlawful not to have refitted trams
already acquired for accessibility, does not require determination in
the present proceeding. If it did, investigation of available technology
and costs of applying that technology at relevant times would be required.

In
any case, past unlawful action cannot be regarded in itself as an absolute
barrier to a current application for exemption. In its nature, an application
for exemption under the DDA involves acknowledgment of at least a substantial
risk that past or current actions or states of affairs would be found
to involve unlawful discrimination. The conditions on which the Commission
has decided to grant this exemption and the commitments made by the
Victorian authorities are intended to achieve change from the (possibly
unlawful) discriminatory present to a non-discriminatory future.

The present government has done little so far to make trams accessible
and their promises to take action should not be believed.

The
applicants have lodged with the Commission under DDA section 67 a disability
discrimination action plan 21st Century Accessibility. The plan
sets out in detail the steps being taken to make all public transport
in Victoria accessible. In the foreword the Minister for Transport,
the Hon. Robin Cooper, says

    It
    is increasingly obvious that the make-up of public transport users
    is changing. Victoria's tram, train and bus services are not just
    being used by daily commuters, schoolchildren and tourists. Our transport
    services are now being used by those who no longer have a car, the
    active elderly, parents with young children and prams, people with
    shopping, travellers with luggage or backpacks. Coupled with the
    ageing of the population, the demand for accessible public transport
    will only increase.

    The
    Victorian Government is not only committed to the provision of a transport
    service that is clean, safe and reliable. The provision of accessible
    services that make it easier for people with special needs to use
    is vital for the future.

    Over
    the past few years, the Government has demonstrated its commitment
    to accessible transport through participation at the Australian Transport
    Council and its support for the acceptance of the Draft Standards.
    The Victorian Accessible Transport Consultative Council has also continued
    to advise me and the Public Transport Corporation about accessibility
    issues.

The
action plan introduced by the Minister contains a description of past
and current actions and commitments for the future. Significant action
has already occurred.

  • There
    are 80 low-floor buses in the fleets of suburban bus operators with
    more to be introduced.
  • There
    are 17 coaches equipped with wheelchair hoists on V/Line Passenger
    bus routes.
  • Due
    to the purchase of 25 modern Sprinter trains and retro-fitting of
    eight older carriages many V/Line Passenger rail services are operated
    by vehicles with appropriate accessibility features including accessible
    toilets.
  • Full
    access audits have been carried out on the metropolitan train and
    V/Line Passenger systems and sample routes on the bus and tram networks
    have also been audited.
  • Public
    transport information is available in accessible formats including
    Braille, via TTY (telephone typewriter) and on the Internet.
  • Customer
    contact staff in each of the transport modes now undergo customer
    service training programs which include disability awareness modules.

The
Melbourne tram system at present is an example of how infrastructure
creates barriers to people with disabilities. The applicants have a
detailed plan about how to change that. There is evidence of commitment
to accessible public transport in the form of a detailed action plan
and open acknowledgment of legal obligations under the DDA. The Victorian
Government has actively supported the development and introduction of
standards for accessible public transport. It has already made significant
progress towards fully accessible train and bus networks. If it fails
in its commitment in relation to trams people with disabilities can
lodge complaints under the DDA or the Victorian Equal Opportunity
Act
.

The proposed exemption is contrary to the draft Disability Standards
for Accessible Public Transport.

The
draft DDA Standards for Accessible Public Transport were developed after
an extensive period of consultation with the community, industry and
governments. The draft remains under consideration and the draft Standards
are not yet law. Standards are made by the Minister (the federal Attorney-General)
not by the Commission. The Commission supports the Standards and urges
their speedy adoption.

The
Commission has published Advisory Notes to set out its attitude to the
draft Standards while they have not been authorised so as to become
law. The Commission said:

    The Commission
    will consider the draft Standards, and measures taken or proposed
    to be taken to comply with them, in relation to applications by a
    public transport operator or provider for temporary exemption under
    the DDA. This includes consideration of the implementation schedule
    contained in the draft Standards, although ... the Commission would not automatically
    endorse that schedule in all respects.

None
of the submissions received on this application suggest that the draft
Standards are not a proper basis for the Commission's consideration.
In considering the present exemption application the Commission has
used the draft Standards as the basis for what is an acceptable level
of compliance with the DDA.

As
noted earlier in these reasons, the draft Standards provide a timetable
for progressive movement towards full accessibility. But they also provide
that this timetable is subject to considerations of unjustifiable hardship
and can be varied in its application for that reason.

Several
submissions pointed to the inclusion of an unjustifiable hardship provision
in the draft Standards as a significant concession by the disability
community. However, none of the submissions appeared to take sufficient
account of the effect of this provision on the obligations which the
applicants might have under the draft Standards when authorised or the
effect of the provision of the DDA for unjustifiable hardship on existing
obligations. The Commission was urged to accept the timetable for fleet
replacement as immutable but in view of the flexibility which is provided
by the draft Standards and the existing provisions of the DDA it is
unable to do so.

Sections
23 and 24 of the DDA quoted above provide that unjustifiable hardship
is a defence to a complaint of disability discrimination. Section 11
of the DDA gives a list of matters to be taken into account when a claim
of unjustifiable hardship is being considered. The draft Standards
at clause 33.11 contain a detailed provision concerning unjustifiable
hardship and the last part of that clause allows extended implementation
timetables if unjustifiable hardship can be shown. Clause 33.11 provides:

    33.11
    In determining whether compliance with a requirement of these Standards
    would involve unjustifiable hardship, all relevant circumstances of
    the particular case are to be taken into account including:

    (Subclauses
    a - m are a detailed but not exhaustive list of benefits and detriments
    for people with disabilities and others and the technical, operational
    and financial matters relevant to unjustifiable hardship. For the
    sake of brevity they are omitted here but this is in no way to minimise
    their significance.)

    (n)
    where a person or organisation concerned has given an Action Plan
    to the Commission under section 64 of the DDA, the terms of that Action
    Plan and any evidence regarding its implementation;

    (o)
    the nature and results of any processes of consultation, including
    at local, regional, State, national, international, industry or other
    level, involving or on behalf of an operator concerned, any infrastructure
    providers as relevant, and people with a disability, regarding means
    of achieving compliance with relevant requirements of these Standards
    and including in relation to the factors listed in this section;

    (p)
    where a person or organisation seeks a longer period to complete compliance
    with these Standards or a requirement of these Standards than is permitted
    by the preceding sections on Adoption and Compliance, whether the
    additional time sought is reasonable, including by reference to the
    factors set out in paragraphs (a) to (o) above, and what undertakings
    the person or organisation concerned has made or is prepared to make
    in this respect.

The
general timetable for accessibility in the draft Standards requires
progressive implementation over a period of twenty years commencing
when the Standards become law. As the Standards have not yet become
law, the twenty years has not commenced (so far as the Standards are
concerned as distinct from the existing effect of the DDA). The applicants
have chosen to develop their action plan as if the Standards had commenced
although they need not have done so. They could have relied on the
general provisions of the DDA and sought to defend any complaints on
the basis of unjustifiable hardship. Their action plan is thorough
and contains targets to be achieved and a process for review. It provides
evidence of commitment. It also lets everyone know what to expect whether
as a consumer, a service provider or the Commission. The applicants
must be aware that if expectations are disappointed then that will reflect
upon them and expose them to complaints under the DDA. The Commission
commends them for taking this open and public approach.

The
Commission concludes that the applicants have in their application and
action plan addressed sufficiently the issues which are raised in clause
33.11 of the draft Standards and which arise for consideration under
the existing unjustifiable hardship provision of the DDA. It follows
that the Commission does not accept the proposition that granting the
exemption would be contrary to the draft Standards or to the objects
of the DDA.

If granted, an exemption will prevent people with disabilities from
lodging complaints about disability discrimination in public transport.

In
the Commission's exemption decision in Re: Minister for Transport
for South Australia and others
, on an application similar to the
present one, the then Disability Discrimination Commissioner, Elizabeth
Hastings, said:

    A
    conditional exemption granted by the Commission pursuant to section
    55 of the DDA is no bar to the lodgement of complaints. It is, however,
    an absolute defence provided that the conditions of the exemption
    are observed. If an exemption is granted to the present applicants,
    the bare minimum condition placed upon the grant would be that the
    Action Plan submitted in support of the application is implemented
    and, if need be, improved. Whether this condition is being met at
    any particular time would be a matter of fact to be determined. If
    the Action Plan is not implemented, then an essential condition of
    the exemption is breached and the present applicants would have to
    defend a complaint on the usual ground of unjustifiable hardship.
    I expect that this would be an undesirable outcome from their point
    of view. It is, however, a matter for them to decide.

An
exemption granted to Victorian authorities means that until it expires
some things that might be disability discrimination under the DDA are
not unlawful. However, complaints can still be lodged. If the conditions
of the exemption are being met by the tram operators then the complaints
would be dismissed. If the exemption conditions are not being met or
the complaint is about aspects of public transport outside the scope
of the exemption then the complaint would be dealt with on its merits.

The Commission should not grant the exemption but should require
the applicants to do things to make trams accessible.

A
number of submissions asked the Commission to reject the application
and make the applicants acquire low-floor trams immediately or fit existing
trams with hoists or both.

Apart
from dealing with a complaint, the only formal way the Commission can
affect accessibility of Melbourne trams is to grant an exemption and
set conditions that the applicants will observe. Refusing the current
application or granting it on conditions are options available to the
Commission but it does not have power to put conditions on a refusal.

This
is not to dismiss the suggestion in submissions that fitting vehicles
with assistive devices is an alternative that will provide access while
long-term fleet replacement is underway. That issue is examined next.

5.2
What should be done to make Melbourne trams accessible?

Submissions
were divided on the question of what should be done to make trams accessible.
Some people thought that acquiring new low-floor vehicles was the only
solution. Some thought that hoists should be fitted to existing vehicles
because fleet replacement is a process that will take years to complete.
A further option to insert a low-floor mid-section in existing articulated
vehicles was brought to the Commission's attention and the applicants
were asked to consider it.

A
fleet replacement option that will be implemented progressively between
2002 and 2026 has the obvious disadvantage that in its initial stages
and for some years thereafter the tram fleet will be only partly accessible.

On
the other hand fitting every existing vehicle with hoists (retrofitting)
would be cheaper than acquiring new vehicles and could be accomplished
much more quickly, although it should be noted that retrofitting must
itself be a process that cannot be accomplished overnight. Obviously
vehicles must be taken out of service not just for the attachment of
hoists and associated equipment but for internal modifications that
would provide spaces for wheelchairs and access through the vehicles
to those spaces. Given the size of the Melbourne tram fleet it is reasonable
to assume that a retrofitting program would itself take a number of
years to complete.

The low floor midsection option

At
the Commission's request the applicants also considered an accessibility
solution used in some countries where articulated trams are in operation.
This involves placing a low-floor mid-section between the two existing
halves of the articulated vehicle. Although maximum accessibility is
possible in only part of the vehicle it could be a useful interim measure
where articulated vehicles are relatively new and not due for replacement
for many years. There are 132 articulated trams (the B-Class) in the
Melbourne fleet at present.

The
applicants examined this option and advised that they did not favour
it. The cost per vehicle would be about $700,000 compared to costs of
about $2 million per vehicle for total replacement. Further, the necessary
infrastructure at tram stops is likely to be incompatible with new infrastructure
required for purpose built low floor vehicles to be acquired under the
revised proposal. Without needing to adopt precise cost figures, the
Commission accepts that these factors mean that it would be unreasonable
to require fitting of low floor mid sections to the B class articulated
trams as a condition of this exemption. The relevant debate to consider
accordingly is that regarding fitting of hoists to existing vehicles.

The hoist retrofitting option

In
considering whether retrofitting is a viable option for the purposes
of this exemption application the Commission must form its own opinion.
Opposing views offered in submissions are of some weight but they are
not decisive for either side of the issue.

Information
presented to the Commission indicates that the technology of hoists
has developed rapidly in recent years and that their safety and reliability
of operation is now sufficient for them to be used widely in passenger
transport. The applicants have installed hoists on some V/Line Passenger
coaches. The point at issue is whether an improvement in accessibility
for wheelchair users and others with severe mobility impairments within
a relatively short period is so preferable to bringing forward fleet
replacement that the Commission should seek to require the former course
of action.

In
this context, the Commision must consider the future cost of fleet replacement
when the retrofitted vehicles reach the end of their working lives.
In some cases these working lives would be relatively short, raising
questions of the cost effectiveness of retrofitting. In other cases
investment in retrofitting might lead to extension of working lives
sought from existing vehicles and thus the postponement of their replacement
with vehicles which could offer superior accessibility.

The
cost of retrofitting would be additional to the cost of fleet replacement.
Although modest when compared with the overall expenditure necessary
for fleet replacement the additional funding would still need to be
found. .

It
might be necessary to find that additional funding by delaying the fleet
replacement program Although retrofitting is presented as a temporary
measure it could present an attractive reason for future tram operators
to extend the lives of existing vehicles that even with hoists would
offer diminished accessibility to many community members. Retrofitting
is an option that can readily be taken up again if circumstances warrant.
However, a substantial number of existing low-floor trams that are appreciated
for their ease of use by the whole community appears the best guarantee
of continuation of the fleet replacement program, thereby achieving
maximum accessibility in the shortest possible period.

There
is also the question about which method of providing accessibility gives
the best outcomes for the most people. This is a legitimate question
for the Commission to consider having regard to the object of the DDA
to "eliminate discrimination as far as possible" and the duty
of the Commission under section 10 of the Human Rights and Equal Opportunity
Commission Act to ensure that its functions (including functions under
the Disability Discrimination Act) are conducted "with regard to
the principle that every person is free and equal in dignity and rights"
and "efficiently and with the greatest possible benefit to the
people of Australia".

There
is evidence that being lifted on a hoist poses problems for people who
are not seated in a stable wheelchair. Blind people, the frail elderly
and people who can walk but have impaired mobility are among those who
may experience some difficulty.

On
the other hand retrofitting would permit wheelchair users in particular
to have access to trams sooner than would otherwise be the case. It
is an open question how many other people with disabilities would be
advantaged. Some people have expressed concern about the obvious "setting
apart" use of an overt assistive device imposes. Others say that
the independence and participation that freedom of movement brings are
essentials of human dignity outweighing the momentary stigma of using
a hoist and perhaps inconveniencing others by a small delay.

The applicants' views

The
applicants are opposed to fitting existing trams with hoists. They
commissioned consultants Rust-PPK to prepare a detailed technical study
of tram accessibility and have given a copy of the report to the Commission.
The Commission has not found it necessary to form any views about the
technical matters canvassed in the report other than to note that they
indicate the complexity of adapting infrastructure in an already crowded
urban environment. The purpose of the report was the narrow one of
examining how the existing trams could be made accessible on two specific
routes. It does not compare the costs and benefits of doing this with
those arising from new low-floor trams. The report states only that
"[in] keeping with world-wide trends, it is expected that future
trams for Melbourne would be of the low floor design".

The
applicants address retrofitting in their action plan and say that the
Accessible Transport Advisory Council (ATCC), the body that advises
the Minister for Transport on accessibility issues, supports their view.
The ATCC includes representatives of people with disabilities but it
did not make a submission on the exemption application. Its chairperson
attended the public forum in Melbourne and made oral submissions supporting
the action plan. A number of ATCC members also attended the forum as
private individuals and expressed a range of views including anxiety
that any delay in the introduction of accessible trams would be completely
at odds with the objectives of the DDA.

The
exemption application says:

The
major device to be fitted in a retro-fit program would be a wheelchair
lift or hoist, with consequent changes to the tram body and doors and
to the interior of the vehicle. (Changes at safety zones and other stops
would also be required.) It has been estimated by the consultants Rust
PPK that the cost of a retro-fit program would be up to $160,000 per
tram or approximately $68 million for the total fleet of 423 vehicles.
A retro-fit program could be spread over 20 years as a means of meeting
the progressive compliance timelines and the trams, once retro-fitted,
would not need to be replaced until at least after a 40 or 50-year service
life. As a means of meeting the compliance targets and yet avoiding
(or at least substantially deferring) the much higher costs of full
fleet replacement, retro-fitting can be seen as an attractive commercial
approach.

However,
on many other grounds, it is not seen as desirable; it is widely acknowledged
that retro-fitting of wheelchair hoists is a poor solution from a customer
perspective. Among the reasons for this are:

  • hoists
    do not offer benefits for passengers other than those in wheelchairs
    (it is estimated that only around 1 per cent of people classified
    as having a disability would benefit from a wheelchair hoist)
  • it
    is likely that many people in wheelchairs would still be concerned
    about the extent of the benefit they would derive from a wheelchair
    hoist retro-fitted to a tram.
  • tram
    boardings via a wheelchair lift would involve substantial disruption
    to timetables.
  • Previous
    consultation with disability reference groups in Melbourne was conducted
    on this issue during 1996 and at that time the Accessible Transport
    Consultative Council confirmed, in a letter to the Minister, that
    retro-fitting is not considered to be the most beneficial option.
  • This
    opinion was given in the context of it being apparent from international
    evidence that a range of low-floor designs for new vehicles are available
    and would offer more accessibility benefits. As a consequence, the
    retro-fitting option is not the Applicants' preferred outcome.

Submissions on retrofitting

The
Rust-PPK conclusions were strongly contested in written and oral submissions.
Mr Frank Hall-Bentinck, an experienced advocate for and respected member
of the disability community, made a submission that was in large measure
followed by a number of others who made submissions. Mr Hall-Bentinck
said:

    12.
    The Applicants state "hoists do not offer benefits for passengers
    other than those in wheelchairs (it is estimated that only around
    1 per cent of people classified as having a disability would benefit
    from a wheelchair hoist)." This statement seems to be based on
    very little research as people with ambulatory disabilities, elderly
    citizens and parents with prams would be able to use trams if they
    have hoists with handrails. The Federal Attorney-General's Regulation
    Impact Statement on the Draft Disability Standards for Accessible
    Public Transport (page 17) quotes ABS(1993) demographic statistics
    that 10.3 percent of the Australian population experience handicaps
    which affect their mobility. Easy access to trams would allow this
    Group of people to continue to travel around their local communities,
    to the shops and community centres. In Table 3.1 (Clare and Tulpule
    1994 p36) of this RIS (page 20) that in year 2041, 13.5 percent of
    the Australian population will experience handicaps which affect their
    mobility. How long will we be denied easy access to the tram network?

    13.
    The Applicants statement "it is likely that many people in wheelchairs
    would still be concerned about the extent of the benefit they would
    derive from a wheelchair hoist retro-fitted to a tram" again
    seems to based on very little research, how many people in wheelchair
    have said they did not want retro-fitting of trams? Which Groups were
    consulted? What did they say?

    14.
    The Applicants statement "tram boardings via a wheelchair lift
    would involve substantial disruption to timetables." is again
    based on very little research. At present tram time tables are affected
    by road conditions, heavy traffic, the numbers of people boarding
    and/or alighting, accidents etc. Trams will be no different to buses,
    for which the Applicants have not claimed any exemptions.

The
Uniting Church in Australia Synod of Victoria argued against retrofitting
and for an adjustment of the fleet replacement schedule:

    In
    the Exemption Application it is argued that "uncertainty"
    will be created in the minds of potential bidders for the tramway
    system if the 5 year extension is not granted. Should this be the
    case, the Uniting Church wonders if consideration could be given to
    altering the 5 year increments of 25%, 55%, 90% and 100% replacement
    schedule according to the Draft Standards. In order to progressively
    replace the trams purchased from 1975 onwards, commencing in the 1999
    - 2004 period, a lower than 25% figure in the first 5 year period,
    with subsequent "catch-ups" during the 20 year period, may
    alleviate any such financial pressures. However, the Uniting Church
    believes that any determination of the relativities of "uncertainty"
    need to be weighted towards the needs of people with disabilities,
    rather than potential bidders within the privatisation process. The
    life opportunities of people with disabilities must not be compromised
    any further by an inaccessible tramway service, and that people with
    disabilities receive a clear and positive message that their needs
    are not negotiable because of a shift in emphasis from public to private
    management.

Villamanta
Legal Service said that:

    Whilst
    the timetable for replacement of existing trams extends the period
    for compliance by 10 years, the $1 billion is paid out in irregular
    periods. For instance between 2004 and 2009 $124 million has to be
    found, between 2009 and 2014 $388 million has to be found, yet between
    2014 and 2019 only 70 million is required. Would it not be simpler
    to stagger the introduction of the new trams in a way that would alleviate
    the burden of some years and spread it evenly? This would also stagger
    the burden when these new trams come to the end of their 'lives'.

Several
submissions suggested a mixed regime of retrofitting and new vehicles.
For example, Mr John Annison of the Institute of Disability Studies
at Deakin University provided a scheme on the basis of the applicants'
original plan to commence fleet replacement in 2008. Mr Annison said
that plan should be rejected in favour of the following.

    3.1.
    In regard to the replacement of the existing tram fleet (excluding
    the Heritage W Class) with accessible trams:

    1.
    Require all new trams and all trams substantially repaired following
    any accident of mishap (e.g., a fire on board) be fully accessible
    to people with any type of mobility difficulty;

    2.
    Require that 106 of the current 132, B Class trams be modified to
    provide platform lift access or similar, suitable for use by all people
    with mobility difficulties within the next 5 years;

    3.
    Require that the remaining 26 of the B Class trams be modified to
    provide platform lift access or similar within ten years

    4.
    Require the replacement of 101 of the existing 106, Z1 and Z2 Class
    trams by fully accessible trams within ten years.

    5.
    Require the replacement of the remaining 5, Z1 and Z2 Class trams,
    and the replacement of the 115, Z3 Class trams together with 28 of
    the 70, A Class trams by fully accessible trams within 15 years.

    6.
    Require the replacement of the remaining 42, A Class trams by fully
    accessible trams within twenty years.

    7.
    Require the replacement of the 132, modified B Class trams within
    30 years.

The
Commission would have considerable interest in a proposal such as this
in the context of the applicants' original plan. But the applicants
have responded to the views expressed in submissions and at the forum
by submitting a revised plan that makes the case for retrofitting much
less compelling.

The Commission's view

The
applicants' revised proposal is set out in the following table.

Table
4: Revised tram replacment schedule assuming commencement
in 1999 with first vehicles delivered in 2002

 

Vehicles acquired (actual)

$ million

Vehicles acquired (cumulative)

Percentage of fleet replaced

1999-2004
(5yrs)

106

212

106

25%

2005-2009
(10yrs)

NIL

NIL

106

25%

2010-2014
(15yrs)

175

350

281

66%

2015-2019
(20yrs)

10

30

291

69%

2020-2024
(25yrs)

62

186

353

83%

2025-2026
(27yrs)

70

210

423

100%

This
table gives accessibility figures at years representing each of the
five year compliance points in the general timetable in the draft Standards
(taking 1999 as a notional commencement date) and at the point two years
beyond required to complete the replacement program.

The
rate of progress during the proposal compared to the rate in the general
timetable required under the draft Standards is shown in the next table.
The durations of the proposal and the draft Standards general timetable
are different and, because benchmarks in the draft Standards are set
in terms of 5 year periods, the comparison must be approximate.

Table
5: Comparison of fleet replacement progress                                   

      Standards                  
      Proposed

Quarter

Vehicle numbers

Fleet percentage

Vehicle numbers

Fleet percentage

1st

106

25%

106

25%

2nd

233

55%

281

66%

3rd

381

90%

291

69%

4th

423

100%

423

100%

This
table is included to illustrate that under the applicants' timetable,
setting aside an initial delay while ordering and delivery commences

  • the
    first target in the draft standards is met
  • the
    second target is in fact exceeded
  • only
    modest progress is made towards the third target
  • the
    fourth target is equalled.

The
applicants' proposal puts fleet replacement after 15 years at 66 percent.
This is substantial progress and of equal importance it represents a
"critical mass" which should make it possible to operate the
great majority of tram services in an accessible way with new low floor
trams. The measures being taken to achieve accessible buses and trains
in accordance with the draft Standards will at that stage have achieved
replacement of 90 percent of respective fleets. A high proportion of
all vehicles used in the Melbourne public transport system therefore
will be accessible to people with disabilities after 15 years.

There
are two periods in the tram replacement program where progress is slow.
These fall between 2004 and 2009 and between 2015 and 2019. The Commission
is satisfied that tolerating these periods represents a reasonable offset
against the cost of commencing to replace in 2002 vehicles whose 30
year design life is not reached until 2008 or in some cases much later,
and where potential operational life might extend many years beyond
that. On that basis the Commission finds the proposal acceptable, considering
the terms and objects of the DDA. This result is in keeping with clause
33.11 of the draft Standards.

As
new trams are introduced questions will inevitably arise about their
distribution across routes. Some submissions argued that in the interests
of equity the distribution ought to be uniform across the system. On
the other hand the applicants said that there are more of the older
Z-Class trams in the Swanston Trams business than in the Yarra Trams
business. This means that Swanston Trams routes will become accessible
sooner because they will receive the first low-floor vehicles.

Similar
issues about how to deploy new vehicles have arisen when low-floor buses
are introduced. Certainly a service does not become accessible on the
day the first vehicle commences service, nor when the second, third
and fourth commence. The choice that confronts operators is whether
to concentrate new vehicles in a way that makes a particular route accessible
quickly or to diffuse the benefits throughout the system, perhaps leaving
all routes below the critical numbers necessary to make any route effectively
accessible. This is an operational decision of great importance to people
with disabilities. The Commission does not consider this a decision
that should be made by the Commission in the context of this exemption
application. Rather, the people who are going to run the trams and the
people who are going to use the trams should discuss the issue. The
action plan provides for continuing consultation with people with disabilities
and the recommended exemption condition that the action plan be implemented
is all the Commission should do on this point now.

5.3
The question of heritage values

The
applicants say that trams are "icons of Melbourne" and as
such they are enjoyed by residents and visitors alike. The 200 W-Class
trams are between 40 and 60 years old and it is said that they have
significant heritage values that cannot be replaced. These trams feature
prominently in tourist and promotional material. The City Circle tram
service provided free of charge is operated only by W-Class trams and
is a tourist attraction. The applicants point to the importance of
tourism to the economy and the role Melbourne plays in generating approximately
60% of tourist revenue in Victoria.

The
Minister for Transport has agreed that 53 of the W-Class trams will
remain in service. The applicants do not take these vehicles into account
when calculating the numbers involved in fleet replacement. For that
purpose they only consider the Z, A and B-Class trams. They do not
propose to make accessible the W-Class trams that remain in service.

Heritage
issues are commonly met when questions of accessibility of premises
and facilities are addressed. Heritage is a genuine community value
that enriches our lives and deserves respect. It is perhaps not generally
realised that so far as buildings are concerned the competition between
heritage values and the rights of people with disabilities is more apparent
than real. Access problems can usually be solved in ways that facilitate
access without detracting from heritage. The issue is harder to resolve,
however, in the case of public transport vehicles.

As
a general principle the DDA requires access for people with disabilities
in ways that recognise their rights. The Commission would be reluctant
to accept a proposition that heritage values should prevent people from
getting an education, going shopping or having a job. Public transport
is an important factor in living in Australian society and is particularly
important for people with disabilities. Its importance can only grow
as Australia's population ages. A participant at the public forum on
this application said, "A community would have a poor set of values
if access is seen as less important than heritage". The Commission
agrees.

The
applicants have proposed a scheme for retaining the heritage W-Class
trams in a way that does not significantly affect their overall plan
to make Melbourne public transport accessible. That scheme is set out
at section 2.2.5 of the application and section 5.4.6 of the action
plan.

The
Commission has concluded that the proposal does not detract from the
overall advancement of the objects of the DDA which the action plan
achieves and that the 53 W-Class trams to be retained indefinitely in
operation should fall within scope of the exemption, provided that certain
conditions are met. This conclusion is based on the fact that the primary
use of these vehicles will be on tourist routes where heritage values
may reasonably be given relatively more weight than in general public
transport service. Some W-Class trams will also continue in service
to supplement the existing general fleet but these will be phased out
as that fleet is replaced by new low-floor vehicles.

The
applicants say:

  • While
    it is acknowledged that the trams are not accessible, the requirement
    for accessibility needs to be balanced against heritage and other
    issues. To achieve this it is expected that DOI and the new operators
    will negotiate an overall tram deployment regime such that use of
    the W-class trams provides for maximum visibility in a tourist/heritage/
    city image sense, but that their use in public transport terms is
    increasingly that of a niche role. It is expected that the W-class
    vehicles will be mainly deployed on services such as:
     
  • the
    free City Circle route, which offers tourists and other city visitors
    a heritage/experience trip around the edges of the Central Activities
    District
  • St
    Kilda Road trips where there are multiple routes and the overall frequency
    of trams is such that there will never be a long wait for an alternative
    vehicle (for example, route 8 to Toorak, which is a relatively short
    route beyond the St Kilda Road section, and route 16 to St Kilda Beach,
    which has nearby alternative routes on that part of the route beyond
    St Kilda Road)
  • city
    shuttle services (for example, Brunswick Street to Spencer Street
    along Macarthur Street and Collins Street) which are typically provided
    in the busy middle-of-the-day peak to supplement other trams and where
    the frequency is again such that a long wait for another tram is never
    necessary
  • route
    12, to South Melbourne and St Kilda Beach, where alternative tram
    routes into the city are close by, and a demand responsive accessible
    bus service also operates.

The
Commission does not accept that it should grant an exemption on the
basis that it is "expected that the W-class vehicles will
be mainly deployed on services such as .". Rather
it grants the exemption on condition that the W-class trams to be retained
in long term service are used only on the four services listed and on
one further condition relating to the City Circle routes.

The
City Circle route is provided free of charge. If it is to be operated
with vehicles that are inaccessible to people with disabilities then
an accessible alternative to that route or any other that is conducted
on the same basis must be provided, and it must be free of charge to
people who cannot get into or out of W-Class trams. The exemption for
W-class trams is granted subject to a further condition to that effect.

This
decision permits the W-class trams to be retained in service. The Commission
does not consider that it should decide in the context of the present
application whether modification of W-class trams should be required
in future.

The
Paraplegic and Quadriplegic Association of Victoria make the point that
W-Class trams have been made accessible elsewhere.

    The
    argument for the retention of W class trams without alteration to
    provide access, may have some validity if there are plentiful other
    trams which are accessible on the same lines. However in Seattle in
    the USA, there are several Melbourne W class trams on a route similar
    to the city circle route. In this city, where access and disability
    rights are taken more seriously, access is provided to these trams
    via raised, ramped platforms, requiring no alteration to the outside
    of the tram and only minimal restraints on the inside.

The
applicants argue that infrastructure may be complicated and difficult
to use where different vehicles that require varied ramp heights are
used on the same route. Even so it does not seem beyond the realm of
possibility that a technical solution could be found, in particular
for the City Circle route where only one class of vehicle is to operate.
Although an exemption for the remaining W-Class vehicles is appropriate
until 2004 the Commission suggests that the applicants, the National
Trust and disability representatives should continue to discuss this
issue during that period.

6.
Findings on material questions of fact

The
Commission's decision that a conditional exemption be granted depends
upon the findings of fact contained in these reasons.

The
Commission accepts the applicants' arguments that the existing Melbourne
tram system presents challenges in achieving accessibility for people
with disabilities that are specific to that system.

Much
work is still to be done to make public transport fully accessible and
many people with disabilities continue to experience difficulty and
frustration in using public transport. A system that is only partly
accessible will provide satisfactory services only part of the time
at best. This will continue for some time whatever course is adopted
with respect to this exemption application. The Commission is satisfied,
however, from the substantial work has been done and the work that is
continuing that the applicants are committed to addressing accessibility
of trams and are pressing ahead with their project to make all modes
of public transport accessible.

The
applicants have made a substantial financial commitment to make trams
accessible. The cost per vehicle is said to be between $2 million and
$3 million dollars in today's terms suggesting overall expenditure in
the order of $1 billion dollars. This expenditure is not all due to
accessibility requirements. Trams will need to be replaced in any event
as they approach the end of their working lives. There may also be
factors concerning the efficiency and amenity of new vehicles that would
move the applicants and the operators of privatised services to acquire
new trams early.

The
applicants say that they are prepared to incur a very substantial additional
cost by bringing forward acquisition of new trams instead of making
replacements when existing vehicles reach the end of their working lives.
They have not presented costings for their revised proposal but the
original proposal to commence in 2008 was said to incur an additional
cost of $45 million per year. It is reasonable to assume that this
is not diminished by bringing the commencement date forward further
to 2002. Since the bidders for the private franchises that will operate
tram services are nominating their price in terms of the degree of subsidy
they will require to run an efficient operation they will undoubtedly
take these costs into account. To some extent acceleration of fleet
replacement will therefore be a charge on the public purse that must
compete for priority with other public sector projects.

The
action plan also addresses privatisation of some or all of the public
transport networks.

    ...
    incoming private operators will be compelled under franchise agreement
    clauses to operate in a way that meets the objectives of the Disability
    Discrimination Act and the forthcoming Disability Standards for Accessible
    Public Transport.

    New
    operators will be required to prepare individual Action Plans within
    18 months of commencing their franchise term. It is intended that
    this Action Plan will become an 'umbrella' document, within which
    the individual action plans will evolve.

The
DDA will apply to the franchisees as a matter of law. The Commission
accepts that the applicants also intend to bind the operators of privatised
services to implement the scheme set out in the action plan which forms
the basis for the exemption application.

7.
Conclusion

The
Commission considers the present exemption application evidence in itself
of commitment to accessible transport. No-one is obliged to seek an
exemption under the DDA. Exemption applications are made in the context
that if granted an exemption must further the objects of the DDA to
eliminate disability discrimination as far as possible. Exemptions
are temporary and are intended to assist people or organisations to
reduce exposure to complaints while they remove discriminatory barriers.
The applicants are well aware of this and have taken the opportunity
to use public consideration of their application for exemption as a
means of testing acceptability of their proposal. They would be unlikely
to do this unless they are committed to what they are doing and are
prepared to see it through.

The
Commission appreciates the anger felt by people with disabilities about
the inaccessibility of the Melbourne tram system. Participants at the
public forum argued strongly that in a city where trams make an enduring
contribution to community identity they are at present both a symbol
of and contributor to the marginalisation and disempowerment of people
with disabilities. Many people will be disappointed that a quicker solution
has not been found.

Nonetheless
the DDA has been instrumental in achieving substantial progress in the
accessibility of public transport across Australia. This exemption decision
will be a further incremental step towards that goal. Provided the community
remains engaged and assertive of its rights then the commitment of governments
and service providers will not fail.