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olympic roads and transport authority exemption decision

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Friday 14 December, 2012

olympic roads and transport authority exemption decision

Notice of Commission exemption decision
re: Olympic Roads and Transport Authority

Disability
Discrimination Act 1992

Application
pursuant to section 55 for exemption from a provision or provisions of
Part 2, Divisions 1 and 2

Notice of decision

The
Human Rights and Equal Opportunity Commission gives notice of a decision
made on 27 June 2000 under section 57 of the Disability Discrimination
Act 1992 ("DDA") concerning accessible buses during the Olympic
Games and Paralympic Games.

Applicants

The application was submitted on behalf of:

  1. ORTA, a statutory
    body representing the Crown in the right of New South Wales, established
    under the Olympic Roads and Transport Authority Act 1998 (NSW);
  2. The New South Wales
    Department of Transport, the Queensland Department of Transport, the
    Australian Capital Territory Department of Urban Services and the Victorian
    Department of Infrastructure.
  3. Bus 2000 Ltd [ACN
    089 305 260], a company limited by guarantee, established to procure
    (under contract with ORTA) the required numbers of buses, coaches, drivers
    and support staff for the Olympic and Paralympic bus task;
  4. Public and private
    bus operators in New South Wales, the Australian Capital Territory,
    Queensland, Victoria and South Australia from whom ORTA and Bus 2000
    Ltd will be procuring accessible buses during the Olympic and Paralympic
    Games periods.

Decision
of the Commission

The Commission
grants a temporary exemption from the provisions of section 24 of the
DDA in relation to proposed temporary transfer of accessible buses from
existing services to services in relation to the Olympic Games and Paralympic
Games.

This exemption applies
only in relation to the transfer of buses from other services to Olympic
and Paralympic service and does not affect the obligations of relevant
operators and authorities under the DDA in other respects.

This exemption expires
on 4 November 2000.

Finding
and reasons

In making this
decision the Commission accepted the findings and reasons contained in
the recommendation and statement of reasons prepared by the Deputy Disability
Discrimination Commissioner and published by the Commission on the Internet
at the following address:

www.hreoc.gov.au/disability_rights

Copies may also be
obtained by telephoning the Commission's Disability Rights Unit on 02
9284 9613.

Review of
decision

Subject
to the Administrative Appeals Tribunal Act 1975, application may be made
to the Administrative Appeals Tribunal for a review of the decision to
which this notice relates by or on behalf of any person or persons whose
interests are affected by the decision.

Alice Tay
President

on behalf of the Commission

27 June 2000

See also notice
of inquiry
and zip archive of submissions

ORTA
exemption application: recommendation for decision

Introduction
and recommended decision

The Human Rights
and Equal Opportunity Commission ("HREOC") received an application on
17 May 2000 under section 55 of the Disability Discrimination Act ("DDA")
from the Olympic Roads and Transport Authority ("ORTA") on its
own behalf and on behalf of various other transport authorities and operators
for exemption from section 24 of the DDA, in relation to proposed temporary
transfer of a number of accessible buses from existing services to services
in relation to the Olympics and Paralympics.

A notice of inquiry
on this application was issued by the Deputy Disability Discrimination
Commissioner on the same date, requesting submissions by 13 June 2000.

The Notice of Inquiry
requested comment on a proposed recommendation to HREOC that an exemption
be granted as applied for, with the specification that the exemption applies
only in relation to the transfer of buses from other services to Olympic
and Paralympic service and does not affect the obligations of relevant
operators and authorities under the DDA in other respects.

The proposal to grant
an exemption in these terms was made on the basis that to do so would
be consistent with and promote the object of the DDA to eliminate discrimination
as far as possible. This view was indicated to be based on the reasons
and material provided by ORTA in its application and in particular on
the following considerations.

  • If an exemption
    is not granted, bus operators who have brought accessible vehicles into
    operation face a potential liability (in making those vehicles available
    to ORTA and therefore temporarily withdrawing them from other services)
    which is not faced by operators who have not made the same progress
    in providing non-discriminatory services (and who therefore have no
    such vehicles to provide to ORTA). It is appropriate for HREOC to use
    its exemption power to ensure that the DDA provides incentives rather
    than disincentives to measures to achieve access and equality.
  • The potential complaints
    under the DDA which this exemption would preclude would, in essence,
    be concerned with which services accessible buses should be applied
    to in the relevant period, rather than with whether and at what rate
    operators should be required to acquire and deploy accessible vehicles.
    The Notice of Inquiry endorses the view previously expressed by HREOC,
    in its reasons for granting an exemption regarding Melbourne
    trams
    ,
    and by the Disability Discrimination Commissioner, in her decision on
    a complaint regarding access to Summer
    Hill railway station
    ,
    that HREOC is not best placed to decide issues of allocation of accessible
    services as between different locations. The objects of the DDA are
    best served if these issues of allocation are determined by operators
    in consultation with users of services.

Over 80 submissions
were made by the due date. Almost all of these were provided electronically
and were able to be posted on HREOC's web site (although in the case of
those which simply endorsed another submission already made, this fact
was noted on the site rather than the original submission being reproduced
repetitiously).

The process indicates
a considerable measure of success for HREOC's policy (developed by DDA
policy staff in 1995) and practice in providing an opportunity for interested
persons to comment on exemption applications, and in making submissions
publicly available through the internet as soon as practicable after they
are received so that other persons interested may comment on these submissions
as well as on the application and HREOC's own documents. It should be
noted that there is no legal requirement in the DDA itself for a public
procedure of this kind. A number of submissions and comments, while opposed
to the proposal to grant the exemption, also expressed appreciation for
the opportunity to comment and commended HREOC for engaging in a public
process in this respect.

Submissions oppose
the granting of an exemption. Against this, HREOC has before it the material
in support of granting an exemption provided by the applicants.

The weight of submissions
indicates the importance to the disability community of accessible transport
and of the DDA as a means for achieving it as well as the strength of
views on this particular matter. It is also likely, as stated in some
submissions, that the submissions made (both by representative organizations
and by individuals) reflect the views of many other persons who for one
reason or another have not directly participated in this process - although
it has been observed before now that those who oppose a proposed measure
are commonly more active in expressing their views than those who support
or would benefit from it.

HREOC seeks submissions
on applications for exemption, and on proposed decisions in some cases
including this one, to inform itself in making the decision which is its
responsibility under the DDA.

The consideration of
exemption applications regarding public transport in Adelaide, Perth and
Melbourne has demonstrated one aspect of the role of HREOC and the DDA,
with constructive input through the public participation processes provided
by HREOC, in facilitating movement away from a discriminatory status quo
towards achievements of the objects of the legislation. It is relevant
to note that HREOC has been prepared to make the decisions required whether
or not universal community support has been forthcoming on these occasions.
Perspectives on the best means for achieving the objects of the DDA may
legitimately differ, and this in itself should not be seen as calling
into question the good faith or commitment to the objects of DDA of those
with different views. HREOC is required to make its own decisions on its
assessment of the merits of an application in relation to the objects
of the DDA. Submissions represent important contributions to these decisions
but do not constitute either votes or vetos.

After considering all
the arguments and information provided in submissions, it remains my view
that the reasons given in the Notice of Inquiry for granting an exemption
in this matter are correct and that an exemption should be granted accordingly
as applied for, with the specification that the exemption applies only
in relation to the transfer of buses from other services to Olympic and
Paralympic service and does not affect the obligations of ORTA and other
relevant operators and authorities under the DDA in other respects.

The essential point
is that the potential complaints under the DDA which this exemption would
preclude would, in essence, be concerned with which services accessible
buses should be applied to in the relevant period, rather than with whether
and at what rate
operators should be required to acquire and deploy
accessible vehicles. As decided by HREOC on a number of previous occasions,
the objects of the DDA are best served if these issues of allocation are
determined by operators rather than by the DDA.

For this reason I also
recommend against imposition of any of the conditions proposed by submissions
on the grant of an exemption in this matter, each of which would have
the purpose and effect of constraining the ability of operators to allocate
accessible vehicles to different services from time to time as they see
fit.

As pointed out in the
Notice of Inquiry, similar applications for exemption are presently before
the relevant decision makers under the NSW Anti Discrimination Act, the
Queensland Anti Discrimination Act and the Victorian Equal Opportunity
Act. The Queensland Anti Discrimination Commission and the Victorian Equal
Opportunity Commission have assisted in the consideration of this application
to HREOC by providing submissions. Each decision making body must, of
course, make its own decision based on its own view of the merits of the
application before it.

The submission from
the Queensland Anti Discrimination Commission (QADC) notes that constitutional
questions may arise if an exemption is granted by HREOC under the DDA
but the equivalent application under the Queensland Anti-Discrimination
Act is refused by the Queensland Anti Discrimination Tribunal (QADT).
The constitutional question is whether the State legislation would in
this instance be rendered inoperative due to inconsistency with the DDA.
The answer to this question is uncertain and in practice the QADC view
may well be correct - that whether Queensland buses are released for ORTA's
purposes will depend on whether an exemption is granted under Queensland
law by the QADT.

I note that in my view
it is much more likely that if accessible public transport standards under
the DDA were in force, or entered into force prior to the relevant period
for this exemption application, this would, pursuant to s109 of the Constitution,
displace not only any need for an exemption under the existing DDA provisions,
but also any inconsistent operation of State or Territory discrimination
legislation and any need for exemption thereunder. Entry into force of
these standards is, however, not a matter within the control of HREOC.

A more detailed discussion
and analysis of issues raised in submissions follows.

GRAEME INNES AM
Deputy Disability Discrimination Commissioner
20 June 2000

Overview

A small number
of submissions appear to indicate a misconception that the proposed exemption
is to cover a lack of accessibility in Olympic and Paralympic services.
The majority of submissions indicate an understanding that the purpose
of the application is to facilitate provision of accessibility for these
services, but object to this being achieved by transfer of accessible
vehicles from other services and other places.

Many submissions indicate
that the proposed exemption would be supported only if the draft Disability
Standards for Accessible Public Transport were immediately authorised
under the DDA.

Reduction in the number
of accessible buses on existing services could constitute discrimination
under the DDA in the absence of an exemption such as that proposed, although
possible defences would have to be considered in the event of a complaint
including an argument based on the special measures provision of the DDA
where the purpose of reduction in accessibility of one service is provision
of accessibility to another transport service.

Although ORTA provided
indicative figures subsequent to its application, the level of reduction
in accessibility in any particular service is not known at this point
because it is not known how widely ORTA will be able to source buses so
as to minimise the impact of its requirements on accessibility of existing
services in any particular location. Refusing this exemption could reduce
the areas in which reduced accessibility is experienced for the relevant
period, but make the reduction more severe where it does occur.

The decision for HREOC
is whether granting the exemption applied for is justified having regard
to the objects of the DDA.

On the basis of submissions
made the following comments can be made:

  • It does not appear
    appropriate for HREOC to base its decision on this application on actions
    to progress authorisation of the draft Standards by governments or others
    in a position to take such actions. It should be noted that if the draft
    Standards were in force or were to enter into force immediately as envisaged
    by many submissions, no need for this exemption would arise. The first
    relevant compliance point, at which 25% of services must be accessible
    (subject to any variation on unjustifiable hardship grounds) would not
    arise until five years after authorisation of the Standards. In effect
    authorisation of the draft Standards would give a five year exemption
    for existing vehicles.
  • The argument made
    in some submissions that the Olympics and Paralympics offer an opportunity
    to showcase accessible transport is in fact an argument in favour of
    granting rather than refusing the exemption, although as noted in other
    submissions this would have to weighed against the impact of these showcase
    events on the ability of people to conduct their everyday lives.
  • The decisive point
    appears to be the obvious regulatory disincentive imposed to commencement
    of accessible vehicles in service if they cannot be reallocated to a
    different service (whether temporarily or on a longer term basis) to
    meet different demands without incurring legal liability. A negative
    impact should be expected on decisions to acquire accessible vehicles
    if operators are not able to determine for themselves where and on what
    services to deploy these vehicles.
  • The objects of the
    DDA are best served if the resources of anti discrimination agencies
    and the power of the legislation are applied in achieving commitment
    to eliminate discrimination as rapidly as reasonably possible, rather
    than in seeking to manage the disposition of those accessible vehicles
    which have become available at any point.
  • The argument in
    some submissions appears to be that more buses from Sydney should be
    applied to the services in question rather than buses being sourced
    from elsewhere, so that any disadvantage falls more heavily on people
    in Sydney rather than on people in other places. Whatever the merits
    of this argument may be, it is not one which HREOC should regard itself
    as called on to arbitrate in dealing with this application or with its
    responsibilities under the DDA.
  • The exemption should
    be granted accordingly.

Issues
raised in submissions

The following
points and views emerge from submissions.

Mr Corcoran's initial
submission and those adopting it make the following points:

  • Draft Accessible
    Transport Standards were first approved by the Australian Transport
    Council as "technically feasible" in June 1996 - four years
    ago. Some State and Territory Governments have used those Standards
    as benchmarks and have been purchasing only accessible buses since late
    1994 or early 1995.
  • NSW Dept of Transport
    knew in August 1994 that they would be hosting the Olympics and Paralympics.
    Since late 1994, South Australia has purchased only accessible buses
    - why has NSW with a much bigger fleet not purchased more accessible
    buses by now.
  • 8 years after the
    DDA, 4 years since draft Transport Standards were approved by the ATC
    as technically feasible and 12 months down the track since they were
    'finally' approved by ATC, we do not Accessible Transport Standards
    in Australia.
  • The disability community
    is getting more frustrated and angrier by the day with delays hindering
    the long term development of a fully accessible transport system for
    Australia.
  • An accessible transport
    system is vital for our aging society where there continues to be a
    proportional growth of our entire population with mobility disabilities.
    An accessible transport system is essential if the Commonwealth government
    is serious about 'Welfare Reform' and enabling the full participation
    of people with a disability in employment, education and training and
    recreation.
  • Both ORTA and the
    NSW government are seen as demonstrating a lack of real commitment to
    implementing accessible transport and infrastructure
  • An opportunity to
    showcase to the world via the Olympics, a fairer, smarter and equitable
    transport system is now going to be lost.
  • This exemption would
    only be supported if commitment by the NSW and Commonwealth governments
    to accessible transport were demonstrated by the immediate promulgation
    of the Accessible Transport Standards in Federal parliament as they
    were approved by the Australian Transport Council (ATC) on April 30,
    1999.

This submission also
raises questions regarding the role of various organisations in relation
to support for or lobbying against adoption of the draft Standards.

Points made in other
submissions also include the following:

  • That bus operators
    are working in the direction of access for people with disabilities
    does not mean that they should be allowed to take a couple of steps
    backwards
  • The idea of Olympic
    and Paralympic events as a showcase for accessible transport is questionable
    if it is achieved to the detriment of all other people with disabilities
    outside of the Olympic arena.
  • Does the fact that
    this and exemption is meant to only be for a couple of months, really
    make it any more acceptable?
  • Transport means
    the difference between staying at home or living some kind of quality
    of life. No-one has the right to simply take what little transport resources
    there are, away from people with a disability without some kind of consultation
    mechanism and something else put in its place for the interim period.
  • Some people have
    organised their lives based on accessible bus services
  • Hard-won gains by
    persons with disabilities in more progressive states should not be compromised
    by Sydney's need, real or otherwise, to "borrow" from these
    fleets their newest and most accessible buses, just so Sydney can look
    good in the eyes of the international community at the expense of others
    throughout Australia.

A number of submissions
(including those from the Queensland Anti Discrimination Commission and
from People With Disabilities NSW) propose that if HREOC is to grant an
exemption it should do so only on a range of suggested conditions, including
that

  • bus operators participating
    in this project agree to develop action plans under the DDA in consultation
    with people with disability; these action plans to set out detailed
    pathways for the upgrading of services to full compliance with the DDA
    and include appropriate target dates for the achievement of compliance
  • all non-accessible
    low floor buses in the possession or control of the NSW Government be
    retro-fitted immediately to provide for accessibility for people with
    disability
  • precise details
    about operators and services to be affected to be specified
  • mitigating measures
    and alternative transport arrangements be required to be provided by
    ORTA and/or other authorities and operators involved.

Exemption
is not sought regarding accessibility of Olympic or Paralympic transport
services

In view of
comments made in a number of submissions, it appears important to note
that what has been requested and proposed to be granted is not a complete
exemption for ORTA, or for other parties concerned, regarding limited
levels of provision of accessible services for and in relation to the
Olympics and Paralympics. What is proposed to be exempted is rather reduction
of accessible services in some places during the relevant period as a
result of temporary transfer of some accessible vehicles (together with
other vehicles) to other services for the purposes of the Olympics and
Paralympics.

If no effort or reduced
effort was being made by ORTA to provide accessible transport for and
in connection with these events, there might be no impact on accessible
services elsewhere, and no occasion for this exemption application would
arise.

Whatever the history
which has led to this point and whatever might have been done since 1994,
it appears clear that as matters now stand refusal of this exemption would
be likely to limit accessibility of Olympic or Paralympic transport services
(by reducing the preparedness of bus operators to release buses for ORTA's
purposes).

Mr J Muir, in endorsing
the submission from Mr Corcoran opposing the proposed exemption, comments
that:

I will be attending
the Olympics! I use a wheelchair for mobility! I will be using public
transport as requested if not demanded, by SOCOG! I support no exemptions!

If the exemption were
refused as suggested by this comment and other submissions, the likely
consequence (on the evidence provided by ORTA in support of the application)
would be that while people elsewhere in Australia may have undiminished
access to accessible bus transport in the Olympics period, people with
a disability attending Olympic and Paralympic events (and participants
in those events who have a mobility disability) may not have effective
access to accessible bus transport.

Another comment endorses
Mr Corcoran's submission but also suggests that

Perhaps consideration
could be given to contracting some of the South Australian buses for
the period of the Olympics and Paralympics, as is happening with buses
from other Eastern states.

South Australian government
transport authorities are not listed among those on whose behalf the exemption
application has been made, although private operators in South Australia
are. (It remains open to operators and authorities not presently listed
in this exemption application to seek an exemption in similar terms.)
It must be emphasised however that the effect of refusal of the exemption
applied for would be to leave any operators in South Australia exposed
to possible DDA liability if they do transfer buses for ORTA's purposes
for the relevant period.

The
issue is limited access for Olympic/Paralympic services versus limitation
of access for other services

Other submissions
more clearly reflect an understanding of, and objection to, the fact that
ORTA is seeking an exemption not for any limits in accessibility of Olympic
and Paralympic transport services, but rather in relation to the impact
on other services of proposed temporary diversion of a large number accessible
buses (together with other buses) to Olympic and Paralympic services.

Mr D Davis comments:

I realize that the
Olympics would place an extraordinary strain on the most accessible
of transit systems, but seeing as accessible transit is very much in
its infancy in most parts of Australia, I would find it incomprehensible
to take from those needing accessible, inexpensive transport to get
to work, attend classes, and participate in their communities. I'm sorry,
but Sydney should live with its own shortcomings, with the hope that
someday these shortcoming will no longer be valid.

Is
there a discrimination issue under the DDA in this

Anger and frustration
are understandable reactions from people who, having waited years for
accessible transport services, now face the prospect of those services
being interrupted or diminished for two months. The prospect of DDA complaints
being lodged in response to this has clearly been sufficiently real to
motivate this application and can only be regarded as confirmed by the
terms of many submissions.

In at least some cases
the interruption of accessible services may involve discrimination which
could be unlawful under the DDA in the absence of an exemption such as
that applied for.

This is, of course,
subject to other defences which might be raised in response to a complaint,
including a possible argument that disruptions or reductions of service
to people with a disability in some locations are justifiable as "special
measures" under section 45 of the DDA, which protects actions reasonably
intended to provide people with a disability access to services even where
these actions would otherwise be unlawfully discriminatory.

Whether this defence
could be established, including the approach which should be taken to
determining whether measures are "reasonably" intended for their
beneficial purpose, could only be ascertained in dealing with a complaint.
For the purposes of considering this application it appears necessary
to accept that it covers actions which may involve some discrimination
which would otherwise be unlawful.

It is only a partial
answer to say that

  • other public transport
    users will also face disruptions of normal services during the relevant
    period to cater for the demands of hosting these events;
  • in Sydney itself
    these disruptions are anticipated to be such that commuters are being
    encouraged to consider seriously options such as working from home,
    while school timetables have been altered so that students will be on
    holiday and not require school bus services; and
  • the scale of Olympic
    and Paralympic transport demands will be such that inaccessible as well
    as accessible buses are being sought by ORTA.

It also needs to be
taken into account, but does not appear to be recognised in many submissions,
that ORTA is not seeking each and every accessible bus in Australia, and
that in seeking to source buses from around Australia ORTA is attempting
to minimise the impact on accessible services in any one location.

However, given the
number of accessible buses sought by ORTA (now advised as being 142 buses
for the Olympics, increasing to 205 buses for the Paralympics) and the
fact that non wheelchair accessible buses still constitute the majority
of most bus fleets in Australia, it seems inevitable that transfer of
buses for ORTA's purposes as proposed will involve accessible services
being significantly reduced or replaced by inaccessible services in some
instances. All travellers may have to bear services being less frequent,
more crowded or otherwise less convenient for the period, but travellers
with a disability who cannot get on some of these services at all because
accessible vehicles have been specifically sought for transfer elsewhere
are obviously being asked to bear an additional impact.

It should also be recognised
that in some cases the reverse may occur, with inaccessible transport
services being temporarily replaced by accessible services. In particular
this may occur with the proposed substitution of buses for rail services
to some Sydney CityRail stations, likely to include some stations which
are currently not wheelchair accessible. Sufficient details are not available
however to make any decision based on this point.

It is similarly not
clear at present what proportion of any operator's accessible vehicles
are likely to be transferred to Olympics related service if the exemption
is granted. The effect of granting the exemption might well be to give
a larger number of operators sufficient confidence to make some vehicles
available, such that no operator transfers all the accessible vehicles
in their fleet: that is, that some accessible service is maintained in
each case albeit at reduced levels, so that the effect on travellers who
require accessible services is more closely equivalent with the effect
of Olympic demands on services for travellers not requiring accessible
vehicles. The effect of refusing the exemption may well be to reduce the
number of operators prepared to provide buses for ORTA's purposes. This
would concentrate the effect of Olympics and Paralympics related demands
on the users of services provided by operators who decide to proceed nonetheless
with providing buses for ORTA's purposes (and defend their position if
required in response to any complaints which might arise).

These effects are not
ascertainable at this point. Several submissions note the lack of definite
information in this respect and call for HREOC to either require this
information to be provided before making a decision, or else impose conditions
(such as caps on the proportion of vehicles permitted to be transferred
from any region or by any operator) to provide definition on this issue.

If the reasons given
at the beginning of this recommendation for granting this exemption as
proposed are not accepted, a further process of consideration would clearly
be required to determine appropriate conditions to minimize and mitigate
impacts of any permitted transfer of accessible vehicles.

If, however, the reasons
given at the beginning of this recommendation for granting this exemption
as proposed are accepted, including the central point that the choice
of services to which the Australian accessible bus fleet should be applied
is not one which should be made by HREOC or the DDA, detailed information
and conditions on particular services from which buses are to be permitted
to be transferred is not required or relevant.

So far as legal rights
and obligations under the DDA are concerned, granting the exemption as
applied for would permit transfer of all accessible vehicles from at least
some existing services if ORTA is unsuccessful in its objective of attracting
buses from a sufficient range of locations to avoid this. This is not
to question ORTA's statement of its intention to avoid such a result,
only to note that the exemption proposed would permit it so far as the
DDA is concerned. Perhaps more likely to occur, such an exemption would
permit transfer of sufficient buses from some locations sufficient to
significantly reduce the frequency and availability of accessible services
compared to inaccessible services.

Effect
of prima facie finding of potential discrimination

The fact that
granting an exemption would permit actions or events which prima facie
may be discriminatory under the DDA means that any decision to grant the
exemption needs to be considered carefully. But this fact cannot be a
complete barrier to granting an exemption. As noted by HREOC in the Melbourne
Trams exemption decision, an application for exemption in its nature involves
acknowledgment of at least a substantial risk that the subject matter
would otherwise be found to involve unlawful discrimination.

The practice of HREOC
in considering applications for exemption under both the DDA and the Sex
Discrimination Act has been to consider whether there is a reasonable
or prima facie prospect that the subject matter involves unlawful discrimination.
If there is not, the application will be refused as unnecessary. If there
is, HREOC proceeds to decide whether an exemption has been shown to be
justified.

When HREOC first adopted
its policy on dealing with applications for temporary exemption under
the DDA, in 1995, there was little guidance to be had from Australian
court or tribunal decisions on how such an exemption power should be handled,
beyond the decision of the Administrative Appeals Tribunal in Re:
Broken Hill Associated Smelters Pty Ltd and The Human Rights and Equal
Opportunity Commission
. Important points emerging from this
decision and given effect in HREOC's policy on DDA exemptions were:

  • the importance of
    providing parties affected by a decision an appropriate opportunity
    to contribute to the making of the decision
  • the need to make
    decisions having regard to the objects of the legislation
  • the appropriateness
    of taking issues of reasonableness into account.

In dealing with applications
for temporary exemption under the Sex Discrimination Act HREOC has referred
to the decision of the Victorian Equal Opportunity Board in Re Fernwood
Fitness Centre
([1996] EOC 92-782), adopted and summarised by the
Victorian Civil and Administrative Tribunal (VCAT) in Doveton
North Primary School

:

Briefly, the principles
are that this Tribunal has a clear discretion whether or not to grant
an exemption. In exercising that discretion the Tribunal will consider
whether or not the exemption is appropriate. In considering whether or
not an exemption is appropriate, it will take the following matters into
account:

  • that an exemption
    will not be granted unnecessarily - that is, where another statutory
    exception in the Act clearly applies, or where there is no arguable
    case of discrimination;
  • that an exemption
    will not be granted where this will be futile - that is, where the conduct
    sought to be exempted is clearly prohibited by another law;
  • that, in considering
    an application for exemption, the Tribunal will take into account how
    the exemption might promote the objectives of the Act, and also whether
    the exemption is consistent with the spirit (although obviously it will
    not be within the letter) of the scheme of the Act;
  • whether there is
    some overriding public interest that justifies conduct being taken out
    of the statutory prohibitions on discrimination; and, finally
  • all the relevant
    circumstances of the particular case.

These points give a
helpful guide to issues in this type of decision although obviously decisions
of the VCAT do not constitute binding precedents for HREOC. The submission
from the Queensland Anti Discrimination Commission also refers to the
decisions of VCAT.

As already noted, the
first of these points is reflected in HREOC's practice in previous exemption
decisions.

The second point -
futility of proposed exemption because conduct is prohibited by another
law in any event - has not been the subject of decision in DDA exemption
applications to date. This principle is clearly not applicable where an
exemption or permission procedure equivalent to exemption under the DDA
is available under the other law concerned, as is the case with State
and Territory anti-discrimination laws in particular.

The third and fifth
point are reflected in HREOC's existing policy and established practice
in dealing with DDA exemption applications.

The fourth point, raising
an additional category of public interest considerations justifying an
exemption, has not been adopted by HREOC in decisions to date. This is
not to say that such a category might not be found appropriate for consideration
in some future case, although it is not clear in what circumstances such
an additional category would be justified under the DDA, given the capacity
to take public interest considerations into account on issues of reasonableness
and unjustifiable hardship. It also needs to be recalled that the public
interest in accessibility and non-discrimination has been given legislative
statement and should not lightly be assumed to be displaced by some other
public interest.

HREOC has consistently
decided that the exemption power under the DDA needs to be exercised consistently
with and for the purposes of the DDA. The present application should be
dealt with on the same basis.

This application does
not present HREOC with a need to decide whether there is some overriding
public interest in the Olympics and Paralympics being able to proceed
smoothly which ought to be given effect by HREOC at the expense of the
objects of the DDA. If that were the decision, the proper course for a
body in HREOC's position might be to refuse the exemption and leave the
Parliament to give overriding legislative effect to that other public
interest if it so saw fit.

Rather, the decision
for HREOC, in exercising the discretion which it clearly has (comments
in some submissions notwithstanding), is whether granting the exemption
applied for is justified having regard to the objects of the DDA.

Relevance
of Draft Standards

The majority
of submissions indicate that their authors would support this exemption
application only on condition that commitment to accessible transport
were demonstrated by the immediate promulgation of the Accessible Transport
Standards in Federal parliament in the form approved by the Australian
Transport Council in April 1999, and raise questions regarding the attitude
of the NSW government and other parties to these standards and their adoption.

HREOC cannot make its
decision on this application based on the attitude (demonstrated or otherwise)
of bus industry members (whether operators covered by this application,
other operators, or representative bodies) or of relevant government authorities
to the adoption of regulatory standards (whether in the form endorsed
by the Australian Transport Council in 1999 or otherwise).

The merits of an application
for exemption under the existing provisions of the DDA do not necessarily
depend on the attitude of the applicant to the authorisation of the draft
Standards or to the details of the form in which those standards should
be authorised.

The point can be illustrated
by the following example.

A public transport
provider or group of providers might be opposed, for whatever reason,
to the regulatory adoption of the draft Standards (or while not opposed,
not be in a position to secure authorisation of the Standards), but be
prepared on their own part to commit to implementation of the measures
required in the first five year implementation targets set out in the
draft, and seek an exemption on those conditions. HREOC's decision in
granting the Melbourne Trams exemption and its Advisory Note on public
transport make clear that such an application, while needing to be considered
in accordance with the procedures of HREOC's exemptions policy, would
be expected to be considered favourably.

No
exemption would be needed if Accessible Public Transport Standards were
in force

These comments
do not mean that the draft Disability Standards for Accessible Public
Transport are irrelevant to consideration of this application.

HREOC has publicly
stated and maintains its support for adoption of the draft Disability
Standards for Accessible Public Transport, noting the need to take account
of the extensive Regulation Impact Statement process conducted on the
draft standards.

In its decision on
the Melbourne Trams exemption HREOC confirmed its view of 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 HREOC's powers and responsibilities are defined by the DDA as
presently in force.

The support expressed
by Mr Corcoran and others in the disability community for authorisation
of the Standards may be based on a similar view to that of HREOC (both
in its role in initiation and development of the draft standards and subsequently):
that displacement of immediate rights to complain under the DDA regarding
inaccessible services is acceptable (considered in the light of the objects
of the DDA), in exchange for greater surety of achievement of access in
the medium to long term.

Some submissions, however,
appear to present the proposed exemption as a derogation or retreat from
the level of achievement of access contemplated by the draft Standards.

It is important to
note, therefore, that if the draft Standards had already been authorised,
or were authorised immediately (as requested by a number of submissions)
or at any point prior to the dates with which this exemption application
is concerned, the exemption applied for would not be required. The Standards
themselves would in effect give the same exemption (and more).

The first major compliance
point in the draft standards, requiring 25% of each operator's services
to be accessible (subject to possible claims of unjustifiable hardship),
is set at 5 years after the authorisation of the standards and on this
basis would not arise until 2005. If the standards were currently in force,
or entered into force in the intervening period, lack of accessible services
as at September 2000 would not involve unlawful discrimination under the
DDA. Authorisation of the draft Standards in 2000 would set the "compliance
clock" at zero as at 2000.

Further, the same point
would have applied even if the standards had been authorised in 1996 (as
originally contemplated by all parties involved in the negotiation of
the standards, prior to advice being received that Regulation Impact Statement
processes required a further and more extensive process than the substantial
consultation already conducted in preparing the draft). On this basis
the first five year compliance point would not have arisen until 2001.
This also represents five years after the point at which HREOC issued
its advisory note on public transport, indicating that in its view compliance
with the schedule set out in the draft Standards would represent reasonable
compliance with the existing requirements of the DDA.

Showcasing
of accessible public transport

Mr Corcoran's
submission and those adopting it refer to the loss of an opportunity for
showcasing accessible transport services to the world if this exemption
is granted.

If significant weight
were to be given to the concept of the Olympics and Paralympics as opportunities
to showcase accessible public transport systems to the world, this would
appear to be an argument in favour of granting rather than refusing this
exemption - since this would permit concentration of Australia's available
accessible bus resources at the point which is expected to be subject
to considerable international media attention, use by overseas visitors,
and possible evaluation and reference into the future by bodies responsible
for mass transit tasks.

This argument, however,
would have to be balanced against the point made in other submissions
that the showcase effect may be at the expense of those needing accessible,
inexpensive transport for the less showy activities of getting to work,
attending classes, and participating in their communities.

In any event, it is
not clear that HREOC should give significant weight to the "showcase
to the world" argument. In the absence of a specific legislative
mandate to pursue benefits for persons or causes outside Australia, the
general rules of statutory interpretation appear to indicate that it would
be ultra vires for an Australian administrative body to pursue international
benefits, except where this is incidental to a benefit within Australia.
The DDA and other legislation administered by HREOC do not contain any
provisions giving HREOC jurisdiction to pursue disability access issues
outside Australia in their own right.

The point raised by
ORTA in its application - that these events offer an opportunity to showcase
accessible transport services within Australia - has more relevance in
relation to the objects of the DDA.

Advocates of "universal
design" approaches, and more specifically proponents of accessible
mainstream public transport in Australia, including HREOC, frequently
state that inclusive design and service delivery often yields more efficient
and effective service for the whole community as well as being more equitable.
If it is correct

  • (as concluded in
    the Regulation Impact Statement on the draft Accessible Public Transport
    Standards) that wheelchair accessible buses, and in particular the ultra
    low floor designs generally adopted as the means of delivering accessibility
    in urban Australian service, offer operators benefits in generally reduced
    passenger boarding times and increased ease of use and possible increased
    patronage by older people and people with children, luggage or shopping;
    but also
  • (as is clearly implicit
    in Mr Corcoran's submission and those endorsing it) that some Australian
    bus operators remain to be fully or sufficiently convinced of these
    benefits

then an opportunity
to have as many accessible buses as possible perform in very high demand
and highly visible duties appears likely to have significant benefit as
a means of promoting awareness of the benefits of accessible public transport
services and thus as a means of promoting the objects of the DDA.

The more effective
a showcase for accessible services is desired, the greater the impact
on other existing services would need to be. If, for example, operators
wished to conduct a trial of a 100 per cent accessible bus public transport
service on a large scale purely for the sake of operational and market
evaluation, the present composition of bus fleets would require transfer
of accessible buses from other locations to the chosen trial location
at the expense of accessibility of existing services.

The "showcase
accessible transport within Australia" argument is more relevant
for the purposes of this application than the "showcase to the world"
argument. Neither, however, is decisive if the point made in the Notice
of Inquiry is accepted - that the DDA and HREOC should be concerned with
achievement of acceptable progress in placing accessible public transport
in service, rather than with the particular locations or services to which
accessible vehicles are applied.

How
should HREOC approach the issue of competing demands for accessible vehicles

The potential
complaints under the DDA which this exemption would preclude would, in
essence, be concerned with which services accessible buses should
be applied to in the relevant period, rather than with whether and
at what rate
operators should be required to acquire and deploy accessible
vehicles. The Notice of Inquiry endorsed the view previously expressed
by HREOC, in its reasons for granting an exemption regarding Melbourne
trams
, and
by the Disability Discrimination Commissioner, in her decision on a complaint
regarding access to Summer
Hill railway station
,
that HREOC is not best placed to decide issues of allocation of accessible
services as between different locations.

The Notice of Inquiry
expressed the view that the objects of the DDA are best served if these
issues of allocation are determined by operators in consultation with
users of services rather than being determined under the DDA by HREOC.

Contrary to views voiced
in a number of submissions, giving an exemption in this matter as is proposed
does not involve a decision by HREOC

  • that the access
    needs of users of other services, for purposes such as getting to places
    of employment, education, shopping or other entertainment events, are
    less important and pressing than the access needs of people attending
    and participating in the Olympics and Paralympics; or
  • that accessible
    transport services for visitors are more important than services for
    Australian residents; or
  • that accessible
    services in Sydney are more deserving of priority than accessible services
    elsewhere.

It does involve a decision
by HREOC that the objects of the DDA will best be advanced if operators
of accessible buses are free to allocate those buses to whichever services
within Australia they see fit, including Olympic or Paralympic services.

In deciding to decline
to deal further with a complaint regarding access to Summer Hill railway
station on grounds including that adequate progress was being made across
the CityRail network overall in achieving station accessibility, the Disability
Discrimination Commissioner decided that the DDA should not be administered
as if an anti discrimination agency were the appropriate body to decide
which railway stations become accessible first, rather than these being
essentially operational and/or political decisions.

The same points can
be applied to bus routes.

The objects of the
DDA are best served if the resources of anti discrimination agencies and
the power of the legislation are applied in achieving commitment to eliminate
discrimination as rapidly as reasonably possible, rather than in seeking
to manage the disposition of those accessible vehicles which have become
available at any point. This is not simply a matter of efficient use of
the resources of HREOC or other agencies in its position (although the
direction in section 10A of the Human Rights and Equal Opportunity Commission
Act to HREOC to conduct its functions "efficiently and for the maximum
benefit of the people of Australia" must be taken into account).

A negative impact should
be expected on decisions to acquire accessible vehicles if operators are
not able to determine for themselves where and on what services to deploy
these vehicles, based on their own assessment of factors relevant to their
particular business (whether these be anticipated revenue, opportunities
for exposure of their vehicles and services in particular markets, or
possible political imperatives in the case of operators who may be subject
to some degree of political direction). This impact would be likely to
be increased if (as will potentially be the case here) in relation to
the one event operators of accessible vehicles are subject to direction
from HREOC regarding disposition of their vehicles while operators of
inaccessible vehicles are not.

Clearly, much of the
strength of the objections to the proposed exemption relates to the prospect
of accessible services currently in place being reduced or interrupted,
when these services have come to be appreciated and to some degree relied
on for everyday purposes such as employment and education. Presumably,
many of the same objections could be made if the proposed temporary transfer
of buses were not for special events such as the Paralympics and Olympics
but for routine transport service on routes other than those now served.

The submission from
the Queensland Anti Discrimination Commission argues that the fact that
this application concerns priority as between existing accessible services
and other services, rather than between services or locations which are
not yet accessible and are competing for priority to become accessible,
should be treated as a decisive distinction between this application and
the decision in the Summer Hill railway station complaint or HREOC's comments
on its role regarding priority of different services in the Melbourne
Trams exemption decision.

There is an obvious
regulatory disincentive imposed to commencement of accessible vehicles
in service, however, if they cannot be reallocated to a different service
to meet different demands without incurring additional legal liability.

A "ratchet effect"
approach to regulation, requiring that a particular standard of compliance
once achieved cannot be subject to backward movement even temporarily,
might appear stronger in terms of achievement of the objects of the legislation
concerned than a more flexible approach. But this would be to overlook
the effect in practice of incentives and disincentives to compliance efforts.

The same point would
apply in the present case if, as a condition of being permitted to reallocate
accessible buses to different services, operators were required to submit
to the burden of replacing these vehicles with other accessible transport
options. For this reason, imposition of conditions of this type do not
appear appropriate in this instance. Requiring compensation or arrangement
or subsidisation of substitute services as a condition of releasing accessible
vehicles for transfer to other services presupposes that HREOC should
be concerning itself with which services accessible vehicles are allocated
to, and should apply disincentives to reallocation of these vehicles from
existing services. The thrust of these reasons is that such a course should
be rejected.

The Summer Hill railway
station decision dealt with the issue of priorities between different
locations served by one operator. The present application, involving vehicles
owned by many existing operators, does not, however, involve relevantly
different issues in this respect.

The present application,
by ORTA on behalf of numerous operators and authorities as well as itself,
could equally well be considered as a series of individual applications
by each body concerned: for example, by Sydney Buses to permit reallocation
of some of its accessible buses to Olympic and Paralympic services and
by each other bus operator in turn contemplating providing buses for these
purposes.

The fact that buses
are being contracted by their existing operators to a new, temporary operator
also does not appear to make any relevant difference. Contracted arrangements
through Bus 2000 are the vehicle by which ORTA has chosen to organise
its services, but (administrative difficulties aside) the same results
in terms of which buses will be where and doing what could, in principle,
be produced by existing operators running their own buses directly under
franchise or some other arrangement with ORTA.

Relevance
of limited achievement of access in the past

Almost all
submissions opposing the application assert failure by ORTA and NSW transport
authorities and operators to plan for and implement accessible transport
sufficiently early as a reason for refusing this application.

In making decisions
on exemption applications to date HREOC has considered whether granting
or refusing an exemption would advance the achievement of the objects
of the DDA, looking forward to measures to be undertaken in future, rather
than making decisions on the basis of rewarding or punishing actions taken
or failed to be taken in the past.

Thus for example in
its decision on the Melbourne trams exemption application HREOC did not
accept submissions that it should refuse an exemption because of past
failures to deliver accessible trams, deciding instead that an exemption
would assist the achievement of access over a reasonable period into the
future.

The rate of progress
in acquiring accessible vehicles by Sydney Buses appears to be a major
focus of criticism in submissions. However, out of a fleet of some 1550
buses, HREOC's information is that Sydney Buses presently has an accessible
fleet of some 266 full size buses and 11 mini buses in service with approximately
60 further buses to be added by the time of the Olympics. On this basis
it would appear that well over 20% (approximately 21.74%) of this operator's
fleet will be accessible by the relevant period. As noted earlier, this
compares with a requirement of 25% not being required until 2001 even
if the draft Standards had been adopted in 1996, and a requirement of
zero percent applicable as at September 2000 if the draft Standards are
adopted in the intervening period (with the 25% requirement arising in
2005). I note that at this point HREOC does not have evidence of widespread
achievement of comparable progress by private operators in NSW.

The Physical Disability
Council of NSW proposes that as a condition of any exemption Sydney Buses
be required to achieve full accessibility within 3-5 years. In response
to this it may be sufficient to note once more that the current draft
Standards (endorsed in numerous submissions in this inquiry and referenced
in HREOC's 1996 advisory note) would allow 5 years for each 25% of fleet
accessibility (subject to possible further extension on hardship grounds).

It should also be pointed
out that apart from the limited period and subject matter covered by the
proposed exemption, operators remain exposed to complaints, wherein outcomes
such as that contemplated by the Physical Disability Council of NSW may
be sought. Such complaints may be made either through the DDA to HREOC,
with potential recourse to the Federal Court if necessary, or through
largely equivalent State and Territory legislation. This exposure would
only be removed

  • by the achievement
    of fully equal accessibility; or
  • by the entry into
    force of standards under the DDA providing authoritative confirmation
    that operators may take a period of decades to achieve full accessibility;
    or
  • by more general
    and long term exemptions (which would generally be expected to be in
    association with action plans or other forms of commitments for the
    future).

The argument in some
submissions appears to be simply that more of Sydney Buses accessible
vehicles should be applied to Olympic and Paralympic services in question
rather than buses being sourced from elsewhere, so that disadvantage falls
more heavily on people in Sydney rather than on people in other places.
Whatever the merits of this argument may be for the purposes of consideration
by transport operators or political authorities concerned (and possibly
by authorities whose responsibilities regarding discrimination law are
defined by State specific laws rather than nationally), it is not one
which HREOC is called on to arbitrate in dealing with this application
or with its responsibilities under the DDA.

Should
operators be required to lodge action plans

In its consideration
of the Melbourne Trams exemption application HREOC was assisted by provision
of an Action Plan which detailed the current status of the transport fleet
concerned and plans for their replacement over time with accessible vehicles.
Further, in response to discussion within HREOC's processes, the applicants
made substantial additional commitments by bringing forward by six years
the date for commencement of deliveries of accessible trams.

ORTA itself has provided
HREOC with an Action Plan, although most other operators and authorities
concerned in this application have not done so.

Provision of an action
plan, with detailed commitments to future measures for increased achievement
of accessibility during the life of an exemption, has been an important
feature of a number of exemption applications granted by HREOC in relation
to public transport.

Action plans, or other
forms of commitment to actions to achieve increased equality of access,
are likely to be similarly important in future exemption applications,
in particular in relation to public transport and more particularly so
long as accessible public transport standards are not in force to define
the obligations of operators and the timeframes required for achievement
of accessibility.

In many cases commitments
to measures to achieve equality may be appropriate as conditions of an
exemption. HREOC has decided on a number of occasions (see the decisions
on the Women's Legal Centre and Lutheran Schools applications) that it
is not appropriate to use the exemption mechanism simply to certify that
an applicant would experience unjustifiable hardship if required to implement
a particular measure and need not therefore do anything towards achievement
of the objects of the legislation.

It is not the case,
however, that an action plan or similar commitments must in all cases
accompany an exemption application or that HREOC will or must in all cases
impose conditions on the grant of an exemption. Section 55 of the DDA
states that an exemption "may", not must, be granted on conditions.

HREOC's policy on
exemptions does not and cannot require, although it does request, applicants
to identify where relevant and where practicable any conditions which
they would be prepared to submit to which will remove or mitigate the
discrimination concerned.

If HREOC is satisfied
that it would be appropriate to grant the exemption applied for on the
basis of the argument that HREOC and the DDA should not be in the business
of regulating the allocation between different services or locations of
whatever accessible vehicles are in service at any point in time, it would
be both improper and counterproductive to seek to impose additional conditions.

Where exemptions have
been granted on condition of implementation of an action plan, the purpose
of the application has been to achieve some legal protection while working
towards an increased level of provision of accessible service over time.
The issue of allocation of a given number of accessible vehicles as between
different locations is fundamentally different.

Specification of persons covered by exemption

The submissions
from People With Disabilities NSW and the NSW Disability Discrimination
Legal Centre argue that to grant an exemption to (among others) those
private bus operators who provide buses to Bus 2000 for ORTA's purposes
would be to delegate HREOC's exemption power and is not sufficiently precise
to specify who is entitled to benefit from the exemption or to conform
to the terms of section 55 of the DDA.

There is, however,
no delegation of the power to grant an exemption in providing that persons
who meet an objective criterion (that is, providing accessible buses to
Bus 2000 for ORTA's purposes) benefit from the same exemption as ORTA.
( I note in passing that the exemption power is in fact able to be delegated
if HREOC decides that it should do so, but that is not proposed here.)

Section 55 of the DDA
refers to applications being made by " a person . on that person's own
behalf; or . on behalf of that person and another person or persons; or
. on behalf of another person or other persons; or 2 or more persons .
on their own behalf; or . on behalf of themselves and another person or
persons; or . on behalf of another person or other persons".

It may be noted that
this provision is identical in relevant respects, in its references to
persons on whose behalf an application is lodged, to the provision for
complaints formerly contained in section 69(1) of the DDA (the procedure
for which is now contained in section 46P of the Human Rights and Equal
Opportunity Commission Act). As confirmed by former sections 69(1A) and
89 of the DDA, this provision was sufficient to permit representative
actions on behalf of a class of persons, and was not restricted to matters
on behalf of named individuals. The same point can be made regarding section
46PB of the Human Rights and Equal Opportunity Commission Act.

There is no reason
apparent why the same words in section 55 of the DDA should have a different
meaning. I also note that section 55 refers to the granting of an exemption
to the person "or persons to whom the application relates", rather than
persons "specified by name in the instrument" or some such phrase. In
my view specification of persons covered by an exemption by reference
to a clearly identifiable characteristic is sufficient for the purposes
of an application and decision under section 55.

Conclusion

After considering
all the arguments and information provided in submissions, it remains
my view that the reasons given in the Notice of Inquiry for granting an
exemption in this matter are correct and that an exemption should be granted
accordingly as applied for, with the specification that the exemption
applies only in relation to the transfer of buses from other services
to Olympic and Paralympic service and does not affect the obligations
of ORTA and other relevant operators and authorities under the DDA in
other respects.

The essential point
is that the potential complaints under the DDA which this exemption would
preclude would, in essence, be concerned with which services accessible
buses should be applied to in the relevant period, rather than with whether
and at what rate
operators should be required to acquire and deploy
accessible vehicles. As decided by HREOC on a number of previous occasions,
the objects of the DDA are best served if these issues of allocation are
determined by operators rather than by the DDA.

For this reason I also
recommend against imposition of any of the conditions proposed by submissions
on the grant of an exemption in this matter, each of which would have
the purpose and effect of constraining the ability of operators to allocate
accessible vehicles to different services from time to time as they see
fit.