A DDA STANDARD - WHAT IS FAIR
Disability Rights
A DDA STANDARD - WHAT IS FAIR
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Graeme Innes Building Tomorrow's Future: Australian Building Codes Board |
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The DDA - law since 1992 - makes it unlawful to discriminate against
people with a disability and their associates on the grounds of their
disability.
This law applies in all areas of public life, and specifically access
to public premises. This means that premises and related facilities should
not impede the use in any way by people with disabilities.
Examples of public premises include hotels, restaraunts, public buildings,
shops, offices etc. The law includes access to premises, and conditions
of access or use. The only exception is if premises are so designed or
constructed as to prevent access, and changes would cause unjustifiable
hardship.
The concept of unjustifiable hardship is determined for each individual
case, but includes
- consideration of the benefit and detriment to all concerned - the
person with the disability, the respondent to the complaint, and the
community generally - the impact of the person's disability and
- the financial circumstances, and the estimated amount of expenditure
required.
The DDA requires access- this is context for standards.
The Building Code of Australia regulates, through its adoption by Governments,
the construction and refurbishment of buildings. It contains various provisions
relating to access for people with disabilities, although compliance with
it probably does not mean that a building is totally DDA compliant. This,
of course, is a problem for designers, builders and regulators. Current
uncertainty is one of the drivers for developing a standard.
Since the DDA came into operation the Commission has had a number of
options available to it to pursue strategies to promote compliance. This
has included:
- responding to complaints and waiting for case law and precedents to
drive change - promoting compliance through community education and providing guidance
on the application of the law through strategies such as the Advisory
Notes on Access to Premises, available on our website and more recently - participating in processes designed to achieve compliance through
the development of a DDA Standard in the area of access to premises.
The Commission has pursued all these strategies, but in the last 5 years
has invested considerable resources in working with the Board and other
interested parties to achieve changes to the DDA to allow for a DDA Standard
in this area and in advising interested parties on how a DDA Standard
might develop.
The Commission shares the frustration of others that after 5 years so
little progress appears to have been made, but is encouraged by discussions
at recent Building Access Policy Committee (BAPC) meetings, and yesterday's
ministerial announcement by the Attorney and Senator Minchin which give
hope that the next 9 months may see considerable progress.
This optimism is partly due to the fact that we now do have a change
to the DDA to allow for the development of a standard.
The DDA was amended last year partly because of the clear message from
the Attorney-General that he is eager to receive a consensually developed
draft as soon as possible, but mainly because members of BAPC are united
in their desire to see a Standard developed.
This last is important, because if there is not a co-operative process
to develop the standard we will be left to operate in the current uncertainty.
In determining what is fair for a DDA standard the Commission would make
the following points.
1. The Commission supports the desire to have a DDA Standard covering
access to premises. Such a Standard would achieve clarity and a high level
of certainty, for both the building industry and people with disabilities,
which this area clearly needs. At present we have the uncertainty of the
complaint process. this means that many developers don't make their buildings
accessible because they do not understand clearly what "DDA compliant"
means. Also, buildings are constantly at risk of complaints being lodged.
Developers, owners and local councils all bear this risk.
2. The Commission supports the proposal that the most effective way of
achieving this involves a revision of the BCA to achieve consistency with
the DDA. Much of the work has been done already in the BCA- why create
yet another different instrument?
3. Where a revised BCA has the support of all stakeholders the Commission
would support a DDA Standard adopting (or referencing) the part of the
BCA which deals with access issues.
4. Part of that process would involve a transparent consultation and
the development of a Regulation Impact Statement process that had the
support of all stakeholders. Whilst the ABCB's normal consultation will
be part of this process, a broader consultation - particularly with the
disability field- will be necessary. During this process what needs to
be borne in mind is that the purpose is to draft a Disability Discrimination
Act compliant standard- as part of that process some cost will have to
be borne, provided that it is not unjustifiably hard.
5. A comprehensive DDA Standard would also have to include other sections
where an issue was not addressed or not sufficiently addressed by a revised
BCA. An example of this would be outdoor areas adjacent to buildings,
or internal furniture or fittings. However, the whole standard does not
have to be developed at once, and this broader part of the standard can
probably be developed as the next step. The important point to remember
about this stepped process is that the DDA complaints process will still
apply to the areas not covered by a Standard.
6. A DDA Standard would have to be changed through a Parliamentary regulatory
process in the event of any subsequent changes to the BCA. A mechanism
will therefore have to be developed so that the relevant parts of the
BCA and the standard remain the same. This may have an impact on the way
that the ABCB amends the access provisions of the BCA.
7. For a revised BCA to achieve consistency with the DDA the revision
must not be concerned solely with technical efficiency and cost effectiveness.
The DDA is a piece of anti-discrimination law and as such it requires
that barriers be removed unless doing so would involve unjustifiable hardship.
It is vital that all interested parties recognise this difference. The
courts have interpreted this provision quite clearly and have established
that some difficulty or some cost does not constitute unjustifiable hardship.
The Commission considers that one of its roles is to ensure all parties
completely understand the implications of this part of the law in the
context of proposed changes to the BCA. any draft standard will not achieve
consensus if this is not taken into account.
8. A revised BCA for new buildings that is consistent with the DDA should
not be unduly watered down because of concerns about the effect a revised
BCA will have on existing buildings. However, the Commission recognises
the difficulties involved in making some existing buildings accessible
and acknowledges the value of having a nationally consistent mechanism,
other than the court, for responding to appeals for exceptional circumstances
where existing buildings are concerned. For that reason we have participated
in and support ongoing discussions on a possible protocol or guideline
which will sit outside a future DDA Standard.
9. The Attorney-General has made it clear he wants to see a revised BCA
and a possible DDA Standard developed as soon as possible. For that to
happen the Board and all other participants in the BAPC have to commit
themselves to active participation in achieving consensus through negotiation
and consultation. This involves the requirement that members of the BAPC
come to the table with the authority to negotiate in good faith to achieve
consensus.
10. If that consensus is not achieved the Commission would not be able
to offer its support for a continuing process and would proceed with other
strategies to achieve the objects of the DDA.
Conclusion
Everyone will benefit from the development of a DDA Standard on Access
to Premises which adopts the relevant provisions of the BCA. The challenge
for us all will be achieving consensus on the content of such a Standard.
It is a challenge worth working hard for because the alternatives are
not palatable both for the building industry and people with disabilities.
In meeting that challenge both sides will need to balance the competing
drivers of cost and equity, and recognise that some hardship will be involved.
However, the benefits to be gained will be relevant to a larger proportion
of the population than just people who currently have a disability. What
is fair for a DDA Standard must be decided in the context of the overall
objective of full participation for all members of the Australian community.