Australasian Railways Association application for temporary exemption under the Disability Discrimination Act: Recommendations (Consultation Draft)

These draft recommendations are being circulated for comment before final recommendations are put to the Human Rights and Equal Opportunity Commission. In view of the amount of discussion which has already occurred on this application a period of four weeks for comments is being provided.

Issued: 13 September 2006. MS Word zipped version also available

Responses by: 11 October 2006

Responses by email to disabdis@humanrights.gov.au

Executive summary:

In July 2005 the Australasian Railways Association ("ARA") lodged an application on behalf of its members for exemption from the effect of a large number of the clauses of the Disability Standards for Accessible Public Transport ("the Standards") , on condition that they comply with a revised set of obligations.

A revised proposal was lodged by ARA in February 2006 after consideration by them of issues raised in public submissions. (Submissions and ARA's application and revised proposal are available on HREOC's website together with HREOC's notice of inquiry on this matter.)

This application has been subject to public consultation, as required by HREOC's policy on exemption applications under the DDA, and to consultation with the Accessible Public Transport Jurisdictional Committee (APTJC) , as required by the Disability Discrimination Regulations.

The length of time taken to date in considering this application has been considerably longer than for exemption applications generally under the DDA, due to the scale of the application.

ARA argue that on the points where exemptions were applied for, the specifications in the Standards for how access should be provided either are not capable of being complied with in their terms in a rail environment, and thus have to be interpreted by extensive and uncertain application of the unjustifiable hardship defence, or otherwise fail to give sufficient direction on actions required.

They argue accordingly that greater certainty of obligation in the terms sought would assist in making the large scale investments being incurred in new and refurbished conveyances and infrastructure to comply with the objectives of the Standards and of the Disability Discrimination Act ("DDA").

This paper recommends that this argument be accepted on some points.

• In some instances (on 39 points) there is a recommendation to grant an exemption, either in the terms applied for in ARA's revised application, or in modified terms and on conditions intended to ensure that the objects of the DDA are advanced. In a number of instances the terms and conditions recommended include a requirement to consult and report during the exemption period.
• In other instances (on 34 points) it is recommended that an exemption be rejected - either because it has not been shown to be justified, or because it is not necessary as it is not considered to constitute any variation from current obligations.
• On a further 26 points of requested exemption, the recommendation is to defer a decision, pending further discussion, research or consultation.

In the majority of instances where an exemption is recommended to be granted, APTJC also supports granting of an exemption.

It should be noted that the recommended decision on each point is confined to whether and in what terms a temporary exemption would be appropriate. A decision for or against a temporary exemption on each point does not bind any decisions which may be made in future regarding amendment of the Standards following the review which the Minister for Transport and Regional Services is required to conduct within 5 years of the commencement of the Standards.

HREOC's consideration of this application, and the processes of consultation and reporting recommended as conditions on a number of points where granting an exemption is recommended, may assist in that review; but HREOC's responsibility to decide exemption applications on their merits neither extends to reviewing and amending the Standards, nor can properly be wholly delegated to that process of review.

This recommendation is structured as follows:

• Background to the application
• A summary of recommendations in response to each point of ARA's current (revised) application, including (where an exemption is recommended) an indication of where APTJC supported the same decision
• Discussion of each of these points having regard to submissions received on the initial application, ARA's revision of that application, and comments subsequently received.

Background

On 29 July 2005 on behalf of its members the Australasian Railways Association ("ARA") lodged an application with the Human Rights and Equal Opportunity Commission ("HREOC") under section 55 of the Disability Discrimination Act ("DDA") for exemption from a range of provisions of the Disability Standards for Accessible Public Transport ("the Standards"), on condition in relation to each member that the member meet a proposed set of compliance requirements expressed as modifications to the obligations set out in those Standards.

ARA also indicated that they proposed to adopt the obligations provided by an exemption if granted as an industry code, this being the principal means of regulation in practice in the rail industry on a range of significant issues including safety.

For this reason ARA's application is defined by reference to a set of clauses based on revisions of the Standards. This does not mean that any decision by HREOC to grant an exemption need necessarily be in the same form.

Some comments on the application have expressed confusion that the ARA is amending, or asking HREOC to amend, the Standards. Clearly neither the ARA nor HREOC can do so.

The Standards can only be amended by the Attorney-General remaking the Standards in amended form and submitting such amended Standards to the Parliament as provided for by the DDA. The Standards provide for the Attorney-General to review the Standards after their first five years in force, that is, at the end of 2007. Such a review once conducted may or may not lead to amendments to the Standards. The effect of a temporary exemption, however, may be to vary, for the period of the exemption, obligations arising from the Standards. The review of the Standards might also be informed by discussion of relevant issues during consideration of an exemption application by HREOC, and by the results of any research, consultation and reporting required during the period of and as a condition of granting an exemption.

On 2 August 2005 in accordance with HREOC's policy on applications for exemption under the DDA a notice of inquiry and call for submissions on the ARA's application was published together with a copy of the application. In accordance with the requirements of s.55(1A) of the DDA and of Disability Discrimination regulation no.5, notice of the application was also provided to the Accessible Public Transport Jurisdictional Committee ("APTJC") with which HREOC is required to consult on applications for exemption in relation to the Standards.

Submissions were requested by 13 September 2005, it being noted that further processes for participation by interested parties would be determined after consideration of submissions.

69 submissions were received. Submissions continued to be received and accepted for a further month after the requested date, in view of the time needed both for people and organisations in the disability community and for the APTJC to consider an application of this scale. APTJC comments were provided to HREOC on 12 October 2005.

Submissions provided electronically were made available, and remain available, on the HREOC website.

On 11 November 2005 HREOC officers (the then Deputy Disability Discrimination Commissioner and the Director of Disability Rights policy) together with representatives of the Australian Federation of Disability Organisations, and the Queenslanders with Disability Network (which had made the most detailed submission in response to the application) met with ARA to brief them on issues raised by submissions. ARA requested time to revise their application in response to issues raised.

A revised application was lodged by ARA with HREOC on 24 February 2006 and published on the HREOC website.

A meeting chaired by the Commissioner responsible for disability discrimination was convened on 6 April 2006, involving

• ARA and its member railway operators and manufacturers;
• members of APTJC (including the Attorney-General's Department which has observer status on APTJC);
• disability community members of the Accessible Public Transport National Advisory Committee (APTNAC);
• representatives of People With Disability Australia, Queenslanders with Disabilities Network and the Disability Council of NSW as the organisations which had made the most detailed submissions on the original application.

As well as discussing issues of process (HREOC's role in dealing with exemption applications; the relationship of exemptions to the Standards and the 5 year review of Standards; the role of industry codes and other mechanisms in relation to Standards, and possible further processes on this application) the meeting reviewed a number of the major substantive issues presented by the application. A point by point review of the application was not possible or attempted within the scope of a 7 hour meeting.

In summary:

• ARA reiterated that they were committed to the purposes of the Standards; they stated however that some of the provisions of the Standards could not be complied with as drafted (instancing those in relation to toilets in so far as rail conveyances are concerned), without an unspecified degree of modification downwards by reference to the unjustifiable hardship defence, and thus failed to provide the guidance and certainty required for very large scale investments in vehicles and premises occurring now and in the near future and involving hundreds of millions of dollars; these investments meant that it was not appropriate to further postpone consideration of the issues raised by the exemption application until such time as a process for the 5 year review of the Standards should be decided on, conducted and acted on.
• APTJC members noted that, although on some issues the application even as revised appeared to seek reduction of current obligations without sufficiently clear justification, some of the revised application represented positive work on how to comply with the purposes of the Standards in a rail environment.
• Some APTJC members questioned why ARA members could not simply adopt these approaches to compliance, in practice and as an industry code if they saw fit, and rely on the provisions of the Standards allowing for the defence of unjustifiable hardship, and the performance based concept of compliance by "equivalent access" to permit departures from the specifications expressly provided in the Standards.
• ARA stated their view that on issues where the unjustifiable hardship defence needed to be relied on in all or most rail settings to make the standards work, rather than only to deal with truly exceptional cases, the standards did not provide sufficient certainty, and that therefore pending possible amendment of the Standards, ARA needed to ask HREOC to exercise its power to grant temporary exemptions.
• Several participants noted that HREOC's decision on this application could not bind the Attorney-General in considering what if any amendments to make to the Standards arising out of the 5 year review.
• HREOC noted that consensus among interested parties was not a precondition to making a decision to grant an exemption, but that the views of interested and expert parties were of course relevant. HREOC also noted that an exemption based on a degree of consensus was likely to give more of the certainty sought by the applicants, in view of (a) the provision for affected persons to seek review by the Administrative Appeals Tribunal of a HREOC decision for or against an exemption, and (b) the need for the Attorney-General to be subsequently persuaded of the appropriateness of amending the Standards to the same effect if certainty on a longer term basis were to be achieved.
• It was also noted that when the matter was presented for decision HREOC would have to consider how far it was possible and appropriate to use the exemption power under DDA s.55 in effect to certify a wide ranging industry code.
• Some elements of the application clearly had the effect of requesting a specific exemption, which might or might not be decided to be appropriate to grant. Other elements however involved redrafting for clarification or confirmation of existing obligations. Not all of these elements might fit within or be an appropriate use of the exemption power.
• ARA members emphasised that as far as possible they were seeking to have issues dealt with together rather than separated out, because of the interconnections seen between different elements covered by the application.
• HREOC undertook to inform participants as soon as possible of the approach to be adopted to further consideration of the application.

Bearing in mind views expressed by ARA members that it would be preferable to continue to consider the application as a whole, HREOC indicated following the meeting to participants that it nonetheless appeared to be useful to review the application point by point to determine:

• whether there were issues on which it appears a decision in favour of an exemption should be recommended to HREOC now, either on the terms proposed by ARA or on different but immediately identifiable terms including on conditions which would promote progress in achieving accessibility in rail services;
• whether there were issues on which further consultation with ARA, APTJC and the disability community could assist in determining whether HREOC should grant or refuse an exemption
• whether there were issues which did not properly fall to be considered within a decision on an exemption application and which could be separated out from HREOC's further consideration of this matter notwithstanding that they might continue to be raised as possible future amendments to the Standards.

Preliminary views on these points were subsequently discussed with participants at the meeting via email.

The views provided by a number of disability community participants are summarised in the following extracts from comments provided by People With Disability Australia:

. the onus is clearly on an applicant to provide relevant evidence in support of its reasons for seeking an exemption, and these reasons and evidence should at a minimum allow the Commission to make relevant findings of fact and to then assess those findings against the above criteria.

In the present case, ARA's application fails both to offer any or sufficient reasons for each exemption sought, and to provide evidence of sufficient probity in support of them. In particular, it fails to provide:

• Any or sufficient evidence of the technical, financial or other reasons for inability to immediately comply with each and every legal obligation in respect of which an exemption is sought; or
• Any or sufficient evidence that each or any exemption sought will further the elimination, as far as possible, of discrimination against people with disability in the provision of public transport services; or
• Any or sufficient evidence that the exemptions sought are to be temporary in nature and are only to apply pending ARA's members becoming able within a reasonable period of time to comply with the Standards as currently written.

. PWD recognises and applauds ARA and its members' good will and commitment to developing flexible and innovative rail-access solutions, and offers to continue to contribute to the finding of a satisfactory conclusion to this matter.

The Australian Federation of Disability Organisations in its comments states:

We recognise that underlying the ARA application is a commitment to the development of flexible and innovative solutions to achieving access. However, we have fundamental concerns about the original and the revised ARA applications: proposed technical solutions have not been satisfactorily tested; exemptions sought are insufficiently targeted; and exemptions are sought where none is needed. The exemption seeks changes to wording within the Standards but does not explain how the changes will effect services to people with a disability and lead to the removal of barriers. The exemption application also fails to demonstrate a commitment to the objects of the DDA and the removal of barriers over time - to our knowledge the ARA has not lodged a Disability Action Plan.

The ARA has subsequently prepared a second application for exemption. Despite the concerns raised by the disability sector, this application is again poorly constructed and inaccessible. This has made it extremely difficult to respond to the application. It has also unnecessarily undermined the exemption process. While some of the exemptions sought may be reasonable, the lack of a robust evidence base to the application and the poor engagement with people with disability arguably leaves HREOC decisions on the application open to legal challenge.

We recommend that the ARA amend their current application, addressing the deficiencies identified above, and that the revised application be accompanied by a Disability Action Plan. In the mean time, we are happy to provide this response to the Commission's preliminary response. It should be read in the light of our earlier submission. Our responses are grouped as follows:

• Exemptions which should not be granted
• Issues on which it appears that a decision in favour of an exemption should be recommended
• Issues on which further consultation with ARA, APTJC and the disability community could assist

At the November 2005 meeting about the application, hosted by the Commission, it was suggested that the ARA application may lead to the development of a rail specific guide for implementin g the Standards and that the equivalent access measures within the application might form the basis of an Action Plan. AFDO sees great value in these documents being developed and we urge the Commission to progress this.

AFDO also made the following suggestions for any exemptions which are granted:

• that the exemptions be tightly targeted; and
• that the ARA should agree to strict reporting requirements and to document the processes it will use to ensure that equivalent access is achieved.

ARA in turn responded (on 31 July 2006) as follows to comments:

• ARA is fundamentally committed to provision of integrated accessible rail services and maximising compliance with existing standards where possible.
• This commitment is reflected in the enormous amount of time and dedication that operators have contributed since 2001 to the resolution of the issues raised in the exemption application.
• ARA's goal is to define minimum standards that are achievable for all operators within the technical, operational, safety and topographical constraints that define the rail environment. It is not valid or achievable to transfer the specifications from a building in the common domain to rail infrastructure, premises and conveyances. The rail environment has specific space constraints in rail corridor width and track gauge that define the feasibility of access paths and manoeuvring areas on stations and trains. In addition, the passenger flows on and off trains are completely different from the movement of people in and out of premises such as offices and shops.
• ARA has indicated their commitment to an Industry Code which, if you like, is an industry action plan. However, the exemption application was necessary at this point in time to clarify the compliance requirements for the substantial and unprecedented capital investment that is being committed now within the industry to new and retrofitted conveyances and stations.
• ARA has been raising these issues since before the last 5-year review without success. Rail operators documented the technical issues for premises, infrastructure, conveyances and information provision and submitted them to APTNAC via the Rail Modal Group in 2001 and we are still waiting for resolution, agreement and amendments on critical design issues.
• Contrary to the claims by APTJC and AFDO that insufficient consultation has taken place, rail operators individually, and through the ARA, have had ongoing consultation on these issues with the disability sector since 2001. This includes:
  • APTNAC - disability sector, as representative of all state and regional disability organisations, present for all discussions and recipient of documentation on all issues
  • Rail Modal Group - disability sector representative invited to all meetings and recipient of minutes and associated documentation
  • State level consultation undertaken:
    • through general forums
    • disability action planning sessions
    • consultation on specific key rail projects

    •  Local level consultation on case by case basis as required to resolve specific issues peculiar to projects

  • Engagement of independent access consultants to provide advice on key projects
• The revision to the ARA exemption application was the result of extensive consultation with the nominated disability sector representative (and independent access consultant) with the experience and expertise to understand the technical, operational, and safety constraints in the rail environment
• The proposals and solutions in the exemption application have evolved from this consultation process. Solutions that represent reasonable adjustment have been found where constraints do not allow the standard in its existing form to be met or where clarification is required to define the scope of compliance.

ARA encourages HREOC to consider the concept of reasonable adjustment to the provision of accessible services when considering this application. The Productivity Commission has recommended it as a future provision of the DDA and it is already incorporated into the provisions of the Education Standards 2005. It allows rail operators to take into account the unique aspects of the rail environment and the impact of the Standards on safety, demand management and other passengers and staff.

In response to the other issues raised by APTJC (Attachment A) and AFDO:

• ARA has provided explanations for the proposed changes in the original application, and in ongoing discussions with the Rail Modal Group and APTNAC (and by membership, the disability sector) as well as consultation at all levels and with a range of access experts since 2001.
• The proposed changes are the result of review of the Standards, consultation and extensive effort on the part of operators to find achievable design solutions that maximise compliance.
• Consultation - see above
• Action Planning:
  • Some states have disability action plans and some have been registered with HREOC
  • the revised application is in itself an achievable action plan that will form the basis of an industry code - that is the stated commitment of the ARA
• In redrafting many of the clauses, the ARA is not seeking to quantify financial hardship, rather the primary goal is to address those standards that are impossible to meet in their current form and to clarify the scope of compliance commitment to facilitate immediate capital investment and design development without the need for future retrofit.
• Having said that, the cost of full rail compliance with Standards as they are currently drafted in one state is greater than the $3.7 billion estimated by the EIS 1999 for all transport modes across Australia .
• Commitment to maximising compliance
  • Redrafting of the Standard is critical where wording in clauses is prescriptive but unachievable. ARA has also attempted to give legal basis to the intent of the guidelines by bringing in relevant wording into the Standards. Defining the scope of compliance and addressing fundamental issues such as the definition of infrastructure and the definition, size and nature of mobility / disability devices are fundamental to the provision of service and beneficial to both operators and people with disabilities.
• Where ARA has sought to increase the compliance requirement in particular clauses, we have done so to provide balance to those areas where we know we cannot achieve the standards as drafted.

ARA has worked hard to find a reasonable and achievable way forward on the implementation of the Standards. However, rail operators need an early determination on these issues as significant investment is being committed now. The 5-year review process in 2001-02 did not resolve the issues then and it will be several years before the issues raised in this application will be formally addressed through the next 5-year review.

Having considered the views put forward in this process to date it appears appropriate to consider the application on the following basis:

HREOC's guidelines on consideration of exemption applications under the DDA, while intended to promote exemption applications being formulated in a way both capable of efficient consideration and promoting the objects of the DDA, do not constitute, and cannot validly be applied by HREOC as, mandatory statutory preconditions for consideration of an application.

Whether or not it would be appropriate in some cases for HREOC to approve an exemption on condition that applicants comply with an industry code considered as a whole, there is sufficient doubt and need for further discussion on some elements of the proposal put forward by ARA to render it more appropriate to consider this matter issue by issue rather than as a single application.

The proposition put by PWD Australia - that an exemption application, or conditions on the grant of an exemption, in relation to the Disability Standards for Accessible Public Transport, must include specification of how an applicant will over time achieve compliance with the specifications in those Standards in their terms - goes further than is justified by the nature of the exemption power or by the Standards considered as a whole. Without the benefit of an exemption, the obligation to comply with the specifications in the Standards may nonetheless be modified by the capacity to comply by equivalent access or by limitations on the requirement to comply derived from the defence of unjustifiable hardship. The true limitation on whether an exemption should be granted is rather whether it would advance or be consistent with the objects of the DDA to do so.

Redrafting of clauses of the Standards for improved clarity and/or appropriateness of applicability to rail issues cannot be stated with certainty to be an available use of the exemption power.

However, requirements to comply with revised obligations defined by reference to and as variations from clauses of the Standards could be valid and appropriate, depending on whether granting an exemption in these terms on the issue in question advances the objects of the DDA and remains within the scope of an administrative power to grant temporary exemptions for a limited group of applicants, as distinct from the legislative power to specify obligations more generally and permanently.

As suggested by AFDO, conditions requiring reporting by a body covered by an exemption, during the term of the exemption, on the impact of the exemption and on measures to advance access in relevant respects provides an important means by which a temporary exemption may be used to advance the objects of the DDA. This appears particularly significant in relation to the present application, having regard to issues raised by APTJC and in other comments on the importance of consultation and accountability and on appropriate technical and other evaluation of approaches proposed in ARA's application.

With these considerations in mind, it is possible to move on to make recommendations on each issue raised by the application.

Recommendations

(Links are provided to the discussion on each item.)

1.9 Access path

Recommendations:

• Approve exemption permitting access only from a single nominated boundary point for existing stations - subject to the limitation that an exemption on this point does not exclude any requirement for fuller upgrading of access paths or entrances which arises under legislation giving effect to applicable provisions of the Building Code of Australia as in force during the period of the exemption.
• Require report during exemption period from each operator on stations with a mix of accessible and inaccessible entrances, and constraints on upgrading entrances for access
• Defer decision on nominated boarding point: further discussion required of need for and limits of exemption.

[Note: APTJC agreed to an exemption on this point (subject to appropriate definition)].

Assistance animals: ARA proposal 1.11AX

Recommendation: Grant exemption on modified terms

[Note: APTJC did not support an exemption on this point regarding it as a redrafting of the Standards or the Act; however HREOC may nonetheless apply its own view, formed on this issue after extensive consultations]

1.11BX Boarding Point

Recommendation: Refuse exemption: not an independent point of exemption

1.11CX Booked Services on Trains

Recommendation: Refuse exemption: not an independent point of exemption

1.11DX Unbooked Services on Trains

Recommendation: Refuse exemption: not an independent point of exemption

1.15X Disability Aid

Recommendation: Defer decision: an exemption may be justified in principle to define limits of required staff assistance but requires further discussion of drafting and of accompanying positive obligations including training

1.18 Infrastructure

Recommendation: Refuse exemption: exemption not required

1.18X Level Crossing

Recommendation: Refuse exemption: not an independent point of exemption

1.19AX Mobility Aid

Recommendations:

• Reject exemption on aids designed for more than one person or recreational use;
• Defer decision on exemptions to limit obligations regarding mobility aids not conforming to the assumptions in the Standards: exemption justified but by reference to specific situations to be identified, rather than by way of general limitation or definition

1.19BX Nominated Accessible Boarding Point

Recommendation: Refuse exemption: not an independent point of exemption; see other relevant proposals.

1.21 Premises

Recommendation: Refuse exemption: not an independent point of exemption

1.23X Sleeping berth

Recommendation: Refuse exemption: not an independent point of exemption

1X1. Mobility aid

Recommendation: defer decision for further discussion: appears justifiable to recommend exemptions to limit obligations regarding mobility aids not conforming to the assumptions in the Standards, but by reference to specific situations to be identified, rather than by way of general limitation or definition

1X2. Performance criteria

Recommendations:

• Approve exemption regarding flange gaps, but as exemption for access paths rather than as feature of mobility aids, and subject to reporting on accompanying positive measures;
• Defer decision on possible limits of exemption on staff assistance with stowage and operation: further discussion required
• Refuse exemption on other points

[Note: APTJC has indicated agreement regarding flange gaps]

1X3. Orientation

Recommendation: approve exemption in relation to orientation and location of allocated spaces and priority seating on conveyances

[Note: APTJC did not express support for this recommendation - which however reflects the existing Guidelines to the Standards.]

2.1 Access paths

Recommendations:

• Approve exemption permitting access only from a single nominated boundary point for existing stations - subject to the limitation that an exemption on this point does not exclude any requirement for fuller upgrading of access paths or entrances which arises under legislation giving effect to applicable provisions of the Building Code of Australia as in force during the period of the exemption.
• Require report during exemption period from each operator on stations with a mix of accessible and inaccessible entrances, and constraints on upgrading entrances for access
• Defer decision on nominated boarding point: further discussion required of need for and limits of exemption.

[Note: APTJC advice agrees with intent of an exemption on this point so long as it avoids the approach of rewording the Standards.]

2.2 Continuous accessibility

Recommendation: Refuse exemption: Not an independent point of exemption since only restates current obligations more accessibly.

[Note: APTJC advice accepted an exemption on this point, but HREOC is of course not bound to follow APTJC views either for or against an exemption, rather than to give these views due weight.]

2.4 Access paths - Minimum unobstructed width

Recommendation: grant exemption consistent with ARA revised proposal

[Note: Consistent with APTJC advice]

2.4X Access paths - Minimum unobstructed width for railway platforms

Recommendation: grant exemption consistent with ARA revised proposal

[Note: Consistent with APTJC advice]

2.5 Poles and obstacles, etc: requirements for contrast

Recommendation: Defer decision for further discussion

[Note: APTJC agrees with exemption regarding clause 2.5.1(minimum unobstructed width) but not 2.5.2 (contrast)]

2.5AX Level crossings

Recommendation: Grant exemption, subject to reporting on measures to reduce use of level crossings as part of access paths and research into other possible solutions

[Note APTJC advice indicates acceptance that 75mm flange gaps may be accepted.]

2.6 Access paths - Access paths - conveyances

Recommendations:

• Grant exemption for reduction in width of access path for existing carriage doors to a minimum width of 760mm, on condition that direct assistance is available
• Defer decision on other restrictions and new carriages: further discussion required to ensure sufficient specification of unavoidable constraints.
• Stair access to areas of double deck carriages: grant exemption on condition that access to unique facilities is assured.

[Note: this is consistent with APTJC advice]

2.8 Access paths - Extent of path

Recommendation: Refuse separate exemption: issue addressed under 2.6; additional exemption not required.

[Note APTJC indicated agreement to an exemption here.]

3.1 Manoeuvring areas - Circulation space for wheelchairs to turn in

Recommendation: Grant exemption accepting use of lower end of range of dimensions stated for existing premises and infrastructure where required by space constraints.

4.1 Passing areas - Minimum width

Recommendation: Refuse exemption: not an independent point of exemption

4.2 Passing areas - Two-way access paths and aerobridges

Recommendation: Grant exemption for existing platforms, subject to re-opening if Premises Standards process results in different provision and with requirement for reporting during exemption period on instances where exemption has been relied on, impacts for passengers, and measures taken to minimise these.

[Note: APTJC support an exemption on this point.]

4.3 Passing areas - Passing areas - conveyances

Recommendation: Defer decision: Further discussion required to confirm that proposed change would not substantially diminish access in practice, including possible positive measures to ensure equivalent access through staff assistance.

[Note: APTJC support an exemption in principle on this point but are likewise not satisfied that appropriate drafting has yet been achieved.]

5.1 Resting points - When resting points must be provided

Recommendation: grant exemption for existing infrastructure to the extent required by site constraints, subject to specification that this applies where constraints completely prevent compliance rather than only adding expense or difficulty, and subject to reporting during exemption period on impacts.

[Note: APTJC agree with an exemption on this point subject to further consultation occurring.]

6.1 Ramps - Ramps on access paths

Recommendation: Refuse exemption as unnecessary: use of updated specifications appears sufficiently clearly permitted as equivalent access

[Note: APTJC would have supported a limited exemption in this area.]

6.2 Boarding ramps

Recommendation: Refuse exemption: Not an independent point of exemption

6.3 Ramps - Minimum allowable width

Recommendation: Refuse separate exemption: subject matter covered better by proposals on 8.5

8.1 Boarding - Boarding points and kerbs

Recommendation: Grant exemption specifying that assisted boarding is only required at a single entrance rather than all doors, subject to reporting on measures taken to ensure non-discriminatory operation including staff training and passenger information

8.2 Boarding - When boarding devices must be provided

Recommendation: Exemption not necessary as revised application on this point reflects existing position

8.5 Boarding - Width and surface of boarding devices

Recommendation: approve exemption

8.6 Maximum load to be supported by boarding device

Recommendation: Exemption not required

8.7 Boarding - Signals requesting use of boarding device

Recommendation: Approve exemption

8.8 Boarding - Notification by passenger of need for boarding device

Recommendation: Defer decision: further discussion needed to confirm appropriateness of specifications

9.1 Allocated space - Minimum size for allocated space

Recommendation: Approve exemption for actions consistent with the Guidelines.

9.6 Number of allocated spaces to be provided - train cars, etc

Recommendation: Defer decision: Further discussion required before decision possible

9.7 Allocated space - Consolidation of allocated spaces

Recommendation: Defer decision: further discussion required to determine if ARA proposal involves request for exemption

9.10 Allocated space - International symbol of accessibility to be displayed

Recommendation: grant exemption

[Note: APTJC agree with an exemption on this point.]

10.1 Surfaces - Compliance with Australian Standard

Recommendation: Refuse exemption as unnecessary

10.1X Surfaces - Compliance with Australian Standard

Recommendation: Refuse exemption: not an independent point of exemption

11.1 Handrails and grabrails - Compliance with Australian Standard - premises and infrastructure

Recommendation: defer decision: further discussion required

11.2 Handrails and grabrails - Handrails to be provided on access paths

Recommendation: Grant exemption for railway platforms; defer decision for other areas for further discussion

[Note: APTJC likewise support an exemption on this point for rail platforms only.]

11.3 Handrails and grabrails - Handrails on steps

Recommendation: grant exemption

11.4 Handrails and grabrails - Handrails above access paths

Recommendation: Refuse exemption as unnecessary

11.5 Handrails and grabrails - Compliance with Australian Standard

Recommendation: Refuse exemption as unnecessary

11.6 Grabrail to be provided where fares are to be paid

Recommendation: Defer decision: further discussion required of appropriate performance requirement to replace obligation to meet prescriptive requirement.

11.7 Handrails and grabrails - Grabrails to be provided in allocated spaces

Recommendation: Refuse exemption: not an independent point of exemption

12.1 Doorways and doors - Doors on access paths

Recommendation: Defer decision: further discussion of safety issues required

12.2 Doorways and doors - Compliance with Australian Standard - premises and infrastructure

Recommendation: Grant exemption agreeing to revised proposal

12.3 Doorways and doors - Weight activated doors and sensors

Recommendation: Refuse exemption as unnecessary

12.4 Doorways and doors - Clear opening of doorways

Recommendation: Grant exemption approving revised proposal

[Note: APTJC agree with an exemption on this point.]

13.1 Lifts - Compliance with Australian Standard - premises and infrastructure

Recommendation: Refuse exemption as unnecessary

14.1 Stairs - Stairs not to be sole means of access

Recommendation: Grant exemption for internal stairs on double deck carriages.

14.3 Stairs - Compliance with Australian Standards - conveyances

Recommendation: Approve exemption subject to conditions that direct assistance is provided for access via external stairs and report during exemption period on measures taken to ensure effectiveness of access including staff training and passenger information.

[Note: APTJC agree with an exemption on this point]

15.1 Toilets - Unisex accessible toilet - premises and infrastructure

Recommendations: Grant exemption approving revised proposals subject to report during exemption period on impacts and consultation

[Note: APTJC want more information on door pressure requirements on this issue. The recommended approach would be one means of gaining such information.]

15.2 Toilets - Location of accessible toilets

Recommendation: Grant exemption approving revised proposal subject to reporting during exemption period on locations where co-location is not possible, impacts on passenger amenity, and management approaches including passenger information to ensure equal access

[Note: APTJC agreed with an exemption on this point.]

15.3 Toilets - Unisex accessible toilet - accessible rail cars

Recommendations:

• Compliant mobility aid: refuse separate exemption as unnecessary - issues dealt with by provisions on access path and proposal on 15.4 below
• Requirement for trains rather than for accessible carriages: grant exemption approving revised proposal subject to condition that first toilet in any accessible car be a unisex accessible toilet.

15.4 Toilets - Requirements for accessible toilets - ferries and accessible rail cars

Recommendation: Approve exemption where compliance not possible (narrow gauge and standard gauge stock) subject to a requirement to report during exemption period on implementation and consultation; seek further information on whether exemption should be extended to all carriages.

[Note: APTJC agree with an exemption on this point subject to the issue of consultation.]

16.2 Compliance with AS2899.1 (1986)

Recommendation: Refuse exemption: not an independent point of exemption

16.3 Symbols - Accessibility symbols to incorporate directional arrows

Recommendation: Refuse exemption: not an independent point of exemption

16.5 Symbols - Accessibility symbol to be visible on accessible doors

Recommendation: Grant exemption

17.4 Signs - Destination signs to be visible from boarding point

Recommendation: depends on decision regarding nominated boarding point proposal; recommend reject

17.5 Signs - Electronic notices

Recommendation: Grant exemption subject to report on consultation and experience during exemption period

[Note: this is consistent with APTJC recommendation]

17.6 Signs - Raised lettering or symbols or use of Braille

Recommendations: Approve exemption for conveyances; defer decision regarding infrastructure for further discussion

[Note: APTJC agree with exemption in relation to conveyances only.]

18.1 Tactile ground surface indicators -Location

Recommendation: Approve exemption subject to conditions requiring report on experience and consultation during exemption period

18.2 Tactile ground surface indicators - Style and dimensions

Recommendations: Approve exemption from TGSI requirement on conveyances; further discussion required to confirm appropriateness of proposed exemption on infrastructure constraints

18.4 Tactile ground surface indicators - Instalment at railway stations

Recommendation: Decline exemption as unnecessary as an independent point of exemption

19.1 Alarms - Emergency warning systems

Recommendation: Refuse exemption: Not an independent point of exemption

20.1 Lighting - Illumination levels- premises and infrastructure

Recommendation: Grant exemption

[Note: APTJC agree with exemption on this point.]

21.1 Controls - Compliance with Australian Standard - premises and infrastructure

Recommendation: Grant exemption as for 15.1

21.2 Controls - Passenger-operated devices for opening and closing doors

Recommendation: Defer decision: as for 12.1, further discussion required of safety issues and of need for exemption

21.3 Controls - Location of passenger-operated controls for opening and locking doors

Recommendation: Defer decision: further discussion needed to confirm how access would remain possible for people needing to approach controls side on

22.1 Furniture and fitments - Tables, benches, counters, etc

Recommendation: Defer decision: further discussion required

22.5 Accessible sleeping berths - trains

Recommendation: Defer decision: further discussion required of justification and extent of possible exemption

23.1 Street furniture - Seats

Recommendation: Refuse exemption: not an independent point of exemption

24.1 Gateways - Gateways and checkouts

Recommendation: Defer decision: further technical discussion required before HREOC could be satisfied an exemption was appropriate

25.3 Payment of fares - Vending machines

Recommendation: Approve exemption subject to consultation and reporting during exemption period on equivalent access measures

[Note: APTJC agree in principle with an exemption on this point]

25.4 Payment of fares - Circulation space in front of vending machine

Recommendation: Defer decision: further discussion required to confirm whether any exemption from existing obligations is proposed here rather than only an editing change

26.2 Hearing augmentation - listening systems - Public address systems - conveyances

Recommendation: Grant exemption subject to conditions requiring consultation and report within 12 months on equivalent access measures

[Note: APTJC agree with exemption on this point.]

27.1 Information - Access to information about transport services

Recommendation: Refuse exemption: exemption on this point not shown to be justified

27.2 Direct assistance to be provided

Recommendation: Approve exemption subject to requiring consultation on equivalent access measures and report on experience during exemption period.

27.3 Information - Size and format of printing

Recommendation: Grant exemption subject to report on consultation and experience during exemption period

[Note: APTJC agree with exemption on this point.]

27.4 Information - Access to information about location

Recommendation: Refuse exemption as unnecessary

28.1 Booked services - Notice of requirement for accessible travel;

28.2 Booked services - Period of notice of requirement for accessible travel

Recommendations:

• Grant exemption to allow requiring reasonable notice for accessible travel or assistance
• Defer decision on exemption in relation to provision of assistance transferring to seats on booked services: further discussion required

[Note: APTJC agree with recommended approach to period of notice]

28.3 Booked services - Location of carers, assistants and service animals

Recommendation: Decision not necessary -request for exemption not persisted with

29.1 Food and drink services - Equal access to food and drink services

Recommendation : Refuse exemption as unnecessary

30.1 Belongings - Disability aids and mobility aids to be in addition to baggage allowance

Recommendation: Defer decision: exemption justified in principle but discussion required of specification of size limits and of limits of assistance in stowing

31 Priority - Priority seating

Recommendation: Grant exemption

[Note: APTJC disagreed with this proposal but regarded it as making no net change to the existing position.]

DISCUSSION OF RECOMMENDATIONS

1.9 Access path

Recommendations:

• Approve temporary exemption on nominated boundary point for existing stations, subject to the limitation that an exemption on this point does not exclude any requirement for fuller upgrading of access paths or entrances which arises under legislation giving effect to applicable provisions of the Building Code of Australia, as in force during the period of the exemption.
• Require report during exemption period from each operator on stations with mix of accessible and inaccessible entrances and constraints on upgrading entrances for access
• Not satisfied of need for exemption on nominated boarding point

Obligations of operators and providers of related infrastructure (for rail and for other modes) are currently defined by reference to the following definition in the Standards:

1.9 Access path

An access path is a path that permits independent travel for all passengers within public transport premises, infrastructure or conveyances.

ARA's original application requested that for rail operators and infrastructure providers an exemption be granted which redefines an access path as follows:

An access path is a path that permits independent travel for all passengers within public transport premises, infrastructure or conveyances. An access path may include a compliant walkway, ramp or lift .

An access path on a rail conveyance is a path from the external passenger doorway to the allocated space, priority seats and other essential facilities for passengers with mobility aids .

An access path on a railway station is a clear and unobstructed path from a nominated boundary point to a nominated accessible boarding point on each platform and to all accessible facilities.

ARA argued that improved definition is required for access paths for a rail environment, including certainty about where various access features must be provided.

APTJC disagreed with ARA's proposal on this point, viewing it as an editing issue more appropriately considered during the 5-Year Review of the Transport Standards.

The main differences between current obligations and ARA's initial proposal appear to be:

1. An access path on conveyances would be specified as required only to reach allocated spaces, priority seating and other essential facilities for passengers with mobility aids.

A number of submissions questioned the inclusion of the reference to facilities for passengers "with mobility aids" as being too restrictive regarding other passengers with physical disabilities, or with other impairments such as vision impairment which may affect mobility.

ARA's revised proposal is modified slightly in relation to conveyances, referring to essential facilities "accessible to" passengers with mobility aids rather than "essential facilities for passengers with mobility aids".

Further clarification that an access path is not required to extend to, and will not necessarily be provided to, all areas within conveyances might be appropriate to undertake through revision of the Standards and development of industry codes and action plans.

It is not clear however that this point in itself would constitute an exemption, noting that the required extent of an access path is also addressed in other clauses of the Standards, in respect of which ARA has also applied for exemption, such as in relation to stairs within conveyances.

2. An access path for stations would be required only from a nominated boundary point and to a nominated boarding point and to all accessible facilities.

Nominated boundary point

Submissions raised the issue of whether it is acceptable to provide a single access path where stations have multiple entrances without having to refer to issues of unjustifiable hardship.

Submissions including AFDO pointed to a distinction in this respect between new and existing stations, indicating some acceptance of the ARA's proposals in relation to existing stations, but seeking full compliance for new stations.

Submissions also argued that if a proposal for access from a single point on the boundary is to be accepted for existing stations, this should be the principal or most used entrance in line with current building requirements.

ARA's modified proposal on this issue accepts the distinction put by submissions between new stations - where they accept that an access path should "permit independent travel for all passengers within the station" - and existing stations, where they seek permission to provide an access path only from a nominated boundary point to a nominated accessible boarding point on each platform and to all accessible facilities. They propose acknowledging that the nominated boundary point should "where possible" be the principal entrance or the one most accessible to surrounding pedestrian and transport modes.

ARA's proposal to be permitted to direct initial efforts to achieving at least one accessible entrance for existing stations, and where possible the principal or most convenient entrance for passengers, rather than being required to upgrade all entrances before a station may be counted towards the targets for accessible premises, may be defended as a means of ensuring that accessible travel is made possible to and from as many stations as possible within the resources available within the period of the exemption.

Granting a temporary exemption on this point for existing stations appears appropriate on this basis.

This does not mean accepting such an approach as permanently sufficient. The same choice of entrances being provided for all passengers is not purely a matter of principle. In some settings (such as where entrances are from streets on opposite sides of railway lines) passengers might need to travel significant distances to reach the accessible entrance, and be denied convenient access from the station to community facilities on one side until all entrances are accessible.

For this reason, it appears appropriate to make an exemption on this point subject to a condition requiring reporting during the exemption period on the number of stations having a mix of accessible and inaccessible entrances, constraints on achieving access, consideration of the impact of restricted access on equal amenity for passengers with disabilities and prospects for further upgrades in future.

This proposed exemption would apply only to accessibility of entrances. Access to facilities within the station from an accessible entrance would remain covered by the provisions of the Standards on access paths (subject to any further relevant exemptions which might be granted) and does not need to be defined by an exemption on this point.

Access path to nominated boarding point and accessible facilities

Some submissions argued that, except where unjustifiable hardship can be shown, it is unacceptably discriminatory to limit people with disabilities to one access path, when other passengers have more than one available. Submissions also argued that there should be an accessible boarding point for each car.

As discussed below it appears justifiable to clarify that boarding assistance may only be available at one entrance to a train. The approach of providing an access path only to a single nominated boarding point however raises some additional issues.

AFDO indicated concerns that ARA's proposal could be seen as directing all passengers with disabilities to use a single access path including lifts even for those who can use and prefer stairs and being directed to a single boarding point even where this is not necessary for access for them.

It appears clear that at least in the context of many existing stations there may be constraints in providing a compliant access path along the full length of a railway platform.

In some settings, nominating a single consistent accessible boarding point could be an effective response to these constraints as well as facilitating provision of assistance: for example if assistance is always available at the middle of the train and the middle of the platform.

In other settings, however, the position where boarding assistance is available might vary from train to train.

Participants at HREOC's forum on 6 April 2006 also emphasised that where train - platform gaps are small enough, many people using wheelchairs or other mobility aids, as well as other people with disabilities, can board without assistance and benefit by provision of an access path to enable boarding at more than one point on the platform. It therefore promotes equal access to have an access path extending to as much of the platform as possible. While on some stations constraints may be so severe as to permit only an access path as far as a nominated boarding point, on others more extensive access may be possible.

It is thus not clear that an exemption permitting provision of an access path only to a nominated boarding point is justified for all existing stations.

Where site constraints prevent more extensive access it would appear to be possible for operators to raise a defence of unjustifiable hardship with strong prospects of success, particularly if effective measures are taken to ensure as nearly equivalent access as possible (such as making available customer information on details of the access arrangements at each station to avoid a passenger being inconvenienced during a journey by unforeseen access limitations) and to ensure that all facilities required by the Standards to be accessible (such as ticketing and toilet facilities) are located in accessible areas.

If ARA members nonetheless continue to seek a greater degree of certainty than is available currently on this issue, further discussion would be required of how an exemption on this point might be limited to apply to situations where it is merited, and what conditions might be applied to promote provision of equivalent access.

APTJC have noted the concept of "essential" facilities would also require further clarification if it were to be incorporated in an exemption. The exemption recommended here however does not import such a concept into obligations - rather it is the Standards which already include this concept.

Assistance animals: ARA proposal 1.11AX

Recommendation: Grant exemption on modified terms as set out below

HREOC has previously identified uncertainty in the operation of the assistance animals provision of the DDA as requiring attention, and has engaged in public consultation on this issue over an extended period.

In July 2003 the Disability Discrimination Commissioner released a paper discussing concerns that section 9 of the DDA does not give adequate definition to rights and responsibilities in relation to animals other than guide or hearing dogs, and seeking comments on options for reform. Concerns identified included

• lack of clarity on what evidence may be required of an animal's status as an appropriately trained animal and of a person's need for assistance by that animal;
• lack of express provision in section 9 that as well as the animal being trained to provide assistance, the training extends (as guide dog and hearing dog training does) to giving other parties a high degree of assurance of appropriate behaviour and health standards in the animal, such that it can be safely admitted where dogs or other animals are not otherwise permitted.
• assertion, in a number of cases, of a right claimed to be founded on the DDA to be accompanied (including on public transport) by clearly inappropriate breeds of dog including large and intimidating breeds;
• confusion in this area undermining the effectiveness of legally recognised access rights for guide dogs and hearing dogs (in terms of recognition by retailers and other service providers and in terms of public acceptance);
• lack of clarity of rights and responsibilities contributing to conflict between service providers and users of "other" assistance animals.

The paper also sought comments on possible approaches to recognition of assistance animals and agencies for their accreditation, either directly under the DDA or under State and Territory based regimes or both.

Submissions were received from a range of individuals and organisations in the disability community and from several public transport providers including rail operators.

After considering submissions HREOC released a report in November 2003 recommending changes to the DDA to address the issues raised in its discussion paper.

The Government undertook to consider these issues in the context of a response to the Productivity Commission review of the DDA, which was completed in 2005.

It is of course not possible for HREOC to pre-empt the results of consideration of legislative reform by the Government or the Parliament. Equally, the fact that legislation on an issue may shortly be forthcoming does not relieve HREOC of its responsibility to consider an exemption application raising the same issue on its merits.

An initial proposal by ARA to restrict coverage to assistance dogs rather than animals was withdrawn after consideration of views expressed in submissions.

ARA's proposal would restrict obligations of its members to permit passengers to be accompanied by assistance animals to those instances where assistance animals are registered as such.

Registration would clearly provide more certainty for assistance animal users as well as for public transport providers and other relevant parties, and would be expected to provide a means for quality control of the training and suitability of assistance animals for use in public. However, it is not yet the position that there are registration procedures for assistance animals in place in all jurisdictions. This proposal in its current form would thus appear to have the effect of permitting exclusion of people who in fact have a disability requiring assistance, and whose animal is in legitimate use to provide such assistance, and where these facts may be capable of being sufficiently clearly evidenced to transport providers by means other than registration.

ARA also seeks to require assistance animals to be under the direct control of the user. As noted in submissions, this appears unduly restrictive, in that on occasions an assistance animal might instead be under control by another person on behalf of the user. Further, while in general an assistance animal such as a guide dog may be expected to be under direct physical control by or on behalf of its user, exceptions to this might well arise in public transport settings. For example, a guide dog might be left in a sleeping compartment while its user, once familiar with the layout, or with the assistance of a companion, goes to another part of the train such as a lounge or dining car.

It appears appropriate to grant an exemption in relation to assistance animals, but in narrower terms than those requested by ARA:

• so as to permit operators to apply reasonable requirements for independent evidence that an assistance animal is required to alleviate the effects of a person's disability and that the animal meets appropriate standards of training, behaviour, and hygiene, and to refuse passage to an animal in respect of which such evidence is not or cannot be provided
• with the specification that evidence of recognition or registration by a body authorised under a law of any State or Territory should be accepted as sufficient for this purpose
• and on condition that an operator concerned include in its training of customer service staff information on the right of passengers requiring use of an assistance animal to travel on its rail services accompanied by such an animal.

Such an exemption would also appropriately state that should the DDA be amended in relation to assistance animals during the currency of the exemption the exemption would cease to apply, being displaced by such an amended provision.

1.11BX Boarding Point

Recommendation: Refuse exemption: not an independent point of exemption

ARA's proposed definition on this point (which is unchanged in their revised proposal) appears intended only to clarify rather than to change the existing position.

APTJC disagree with this proposal on the basis of their general preference for considering new provisions instead in the course of the 5 year review of the Standards.

One submission raised a need for it to be specified here that an accessible boarding point would include boarding devices. However, obligations to provide these are already specified elsewhere.

Submissions questioned whether the proposed definition was sufficiently specific, and proposed reference to the "immediate point" or "immediate designated point" rather than "place" where passengers board.

This point does not appear to constitute an independent point of exemption, rather than a statement interpreting the Standards in a manner which appears consistent with their existing effect. It is not clear that its inclusion is needed to define the ambit of other points on which an exemption might be granted.

1.11CX Booked Services on Trains

Recommendation: not an independent point of exemption

ARA's proposed definition on this point (which is unchanged in their revised proposal) appears intended only to clarify rather than to change the existing position.

APTJC disagree with this proposal on the basis of their general preference for considering new provisions instead in the course of the 5 year review of the Standards.

This point does not constitute an independent point of exemption rather than a statement interpreting the Standards in a manner which appears consistent with their existing effect. It is not clear that it is required to define the ambit of other points on which an exemption might be granted.

1.11DX Unbooked Services on Trains

Recommendation: not an independent point of exemption

ARA's proposed definition on this point appeared intended only to clarify rather than to change the existing position.

However, the statement that unbooked services are generally suburban raised some concerns. Several submissions referred to access needs including needs for direct assistance in longer distance unbooked services and expressed concern that the proposed clause could reduce or obscure obligations in relation to these.

APTJC disagreed with this proposal on the basis of their general preference for considering new provisions instead in the course of the 5 year review of the Standards.

ARA's revised proposal responds to concerns by removing the reference to unbooked services being generally suburban and adds a reference to an allocated space, rather than only a seat, being booked or reserved.

This point does not constitute an independent point of exemption rather than a statement interpreting the Standards in a manner which appears consistent with their existing effect. It is not clear that it is required to define the ambit of other points on which an exemption might be granted.

1.15X Disability Aid

Recommendation: Defer decision: an exemption may be justified in principle to define limits of required staff assistance but requires further discussion of drafting and of accompanying positive obligations including training

ARA proposed that a definition be provided of "disability aid", a term seen as currently undefined within the Standards. In some respects this proposal is not purely definitional but raises requests for limitation of potentially existing obligations in accommodating disability aids and in providing assistance.

APTJC disagreed with this proposal on the basis of their general preference for considering new provisions instead in the course of the 5 year review of the Standards.

Some submissions argued that this proposal is unnecessary since adequate definition is already provided by the Guidelines. These submissions, however, do not deal with the limited legal status of the Guidelines, or indicate why that status should not be enhanced by way of an exemption to reduce uncertainty.

Other submissions did indicate awareness that the Guidelines are not legally definitive but regarded this as an important feature to be maintained so that people are able to travel with whatever aids meet their requirements rather than disability aids having to fit within particular specifications. These arguments, however, may indicate why ARA sees a need for greater certainty regarding the disability aids which are required to be accommodated.

These issues of limitations are discussed further below in relation to mobility aids.

ARA initially proposed that definitions exclude devices primarily designed as transport vehicles, but withdrew this proposal in response to submissions.

ARA also proposed that their obligations should be defined by assigning responsibility to passengers for supply, assembly and operation of disability aids, although in response to submissions the ARA revised proposal adds a note on assistance with folding and storing chairs on booked services at clause 28.1.

An exemption on this point may be an appropriate means for providing greater clarity on what assistance will be provided and the limits of assistance available. However, further discussion appears needed on

• what further instances there may be where staff assistance should be required (such as where passengers are not able to move independently within conveyances using their own mobility aids due to internal constraints such that reliance is required on direct assistance and use of aisle chairs similar to those used in aviation)
• whether staff assistance can be wholly limited to stowing manual wheelchairs (rather than extending to matters such as disconnecting and reconnecting batteries and folding down the back of an electric chair for stowage)
• whether an exemption is sought partly on operational grounds of staff availability or whether it should be more narrowly tailored to address situations presenting an unacceptable risk to staff health and safety
• what commitments and reporting requirements on staff training and passenger information might accompany an exemption on this point to ensure that any exemption promotes access as far as possible.

1.18 Infrastructure

Recommendation: Exemption not required

ARA seek to limit the definition of infrastructure, to exclude items unrelated to provision of public transport service.

APTJC indicated disagreement on the basis that this is an editing issue better dealt with within the 5 year review of the Standards.

Submissions raised concerns about unintended impacts on matters that should remain covered. It was noted that limitation to facilities used to gain "direct access" to public transport service might not only exclude matters such as retail concessions, as intended by ARA, but extend to issues such as ticketing (although these may be covered elsewhere under the heading of premises). Submissions also noted that the proposed definition could exclude information systems, and proposed instead reference to facilities "needed by passengers in order to use" a public transport service.

ARA's revised proposal removes the proposed exclusion of areas beyond immediate boarding points.

It is not clear that an exemption in relation to the Standards is required to limit potential responsibility of ARA members for inaccessible facilities in retail concessions. Services not provided as part of a public transport service are not covered by the Standards although they remain covered by the general provisions of the DDA.

It would be possible for HREOC to consider an application exemption for ARA members against such ancillary liability as they might have under section 24 for discrimination by lessees or concession holders. However, HREOC's practice on exemption applications indicates that such an application would have better prospects if it were accompanied by an action plan or other measures designed to promote improvements in access to the relevant services over time.

1.18X Level Crossing

Recommendation: not an independent point of exemption

ARA proposed a definition of a level crossing, to accompany their proposed new obligations clause 2.5AX.

APTJC disagreed with this proposal on the basis of their general preference for considering new provisions instead in the course of the 5 year review of the Standards.

Submissions expressed concern about referencing an Australian Standard which is not yet finalised. One submission proposed that level crossings be defined instead as follows:

A level crossing is any vehicular and/or pedestrian crossing of a railway corridor at grade.

ARA's revised proposal adopts this wording.

This appears an unexceptionable definition, but not one which constitutes an exemption from any existing obligation.

Safety issues regarding crossing of flange gaps are discussed under other proposals.

1.19AX Mobility Aid

Recommendations:

• Reject exemption on aids designed for more than one person or recreational use;
• Defer for further discussion exemptions to limit obligations regarding mobility aids not conforming to the assumptions in the Standards: exemption appears justified in principle, but by reference to specific situations to be identified, rather than by way of general limitation or definition

ARA argue that a definition is needed for a term currently undefined by the Standards.

APTJC disagree with this proposal on the basis of their general preference for considering new provisions instead in the course of the 5 year review of the Standards.

ARA's proposal in this area raises several issues.

Use by one person

ARA's proposed definition limits mobility aids to aids designed to be used by one person. Submissions queried the need for this limitation.

If a mobility aid fits within the dimensions provided for or assumed in the Standards and meets other necessary performance requirements (either already contained in the Standards or as might be included in an exemption) in particular regarding safety and stability, it is not clear why the one person limitation is necessary or justified. It would be perverse for example if an exemption constrained a parent using a wheelchair to carry their baby or small child with a mobility aid not designed to accommodate the additional person in safety and comfort, rather than being able to use a mobility aid with additional design features for the purposes of carrying an additional person.

It appears appropriate to reject an application to limit obligations in this area to devices designed to carry one person.

Transport and recreational devices as mobility aids

ARA indicated that their proposed definition includes wheelchairs and scooters but excludes devices designed primarily for transport or recreation. ARA's revised proposal accepts submissions on not excluding devices designed as transportation vehicles but maintains the proposed exclusion of devices designed for recreation.

However, again, if a device fits within the dimensions provided for or assumed in the Standards and meets other necessary performance requirements (either already contained in the Standards or as might be included in an exemption) and is in fact being used by a person with a disability as a mobility aid it is not clear why its use should not be permitted despite being designed primarily for recreation. Instances of amputees using skateboards for mobility may be less likely to occur in Australia as a matter of economic necessity than in other countries. However, the DDA and its processes (whether development of Standards or decisions on exemption applications) should not unnecessarily hinder innovative use of technology by people with disabilities any more than by transport providers.

Uniform limitations across transport modes

In relation to the specific limitations proposed, submissions strongly objected to limitations based on bus dimensions being imported into rail environments. Submissions disputed that uniform limitations across transport modes are actually justified by issues regarding integrated ticketing as indicated by ARA.

ARA's revised proposal appears to accept these arguments and reframes limitations on mobility aids according to what are seen as limitations in a rail environment. Whether these limitations should be accepted through an exemption and if so on what terms remains to be discussed as below and under proposed point 1X1.

Justification for limitations on mobility aids

Some submissions objected to any definition of a compliant mobility aid in a manner which defines obligations rather than only providing guidance, on the basis that

people with disabilities ... need to meet their own individual and technical requirements

and that

It is not necessary to define a disability aid as these standards are about Accessible Transport. Each disability aid is specific to an individual so can not be specified in an accessible Transport Standard.

These submissions give some indication of why ARA consider it necessary to seek more certainty on their obligations and their limitations in this area.

Any set of standards involves a process of determining what range of user requirements can and must be met within particular environments, having regard to fundamental design constraints, the rights of other users, and the level of expense or difficulty that can justifiably be imposed on providers and operators in those environments - rather than imposing an open-ended obligation to accommodate any and all requirements that are presented or asserted.

The DSAPT do not take the complete range of mobility aids which people with disabilities use now, or may use in future, as a given to be accommodated, any more than they take pre-existing rail engineering practice as given.

The range of mobility aids currently in use clearly does relate to a range of user needs. It also relates to a range of user preferences and to economic and design decisions. Some of these may require reconsideration of their appropriateness or practicability in particular contexts - just as the specifications of rail vehicles and infrastructure relate to a combination of fundamental performance requirements, accidents of history (such as rail gauges), economic factors and design decisions: some of which need to be revisited to accommodate the needs of passengers with disabilities, and some of which are less readily altered.

However, specifications in relation to mobility aids may be better conceived and presented as specifications for what can be accommodated within particular settings, rather than as an attempt to standardise a transport compliant mobility aid for all purposes through an all purpose definition.

AFDO's submission appears persuasive in arguing that limitations in rail environments are more specific to particular settings and should be dealt with separately in the context of those settings (boarding ramp loads; size of allocated space; size of available luggage/stowage space) rather than by seeking to impose more general limitations on mobility aids. AFDO note for example that weight limitations appear applicable only to boarding ramps.

A mobility device which cannot fit within an allocated space may nonetheless be able to enter and travel in a short distance or suburban train, without unjustifiable hardship to providers or other passengers. On a long distance train, a passenger using such a device may be able to transfer from it and have it accommodated in a luggage area - if the device meets reasonable size limitations.

Conversely, in some settings even a mobility aid meeting the assumptions might not be able to be accommodated as baggage if it cannot be folded or safely lifted - demonstrating another difficulty with setting a one size fits all purposes specification of mobility aid dimensions.

1.19BX Nominated Accessible Boarding Point

Recommendation: not an independent point of exemption; see other relevant proposals.

ARA's proposal here is not an independent point of exemption but a definition accompanying their proposals under other points including 2.1 and 8.1 and is discussed below under those headings.

1.21 Premises

Recommendation: not an independent point of exemption

In this area ARA's proposal would have the effect of

• changing the current reference to premises supplied by "operator" to refer to "provider": in line with the position that some rail operators use station premises provided by a separate infrastructure provider.
• excluding open platforms, open shelters and footbridges from "premises" while noting these are covered under "infrastructure" .

This proposal might be one which would usefully clarify the drafting of revised Standards or be adopted in an industry code but it does not appear to have the effect of providing an exemption.

1.23X Sleeping berth

Recommendation: not an independent point of exemption

This proposal, which is unchanged in ARA's revised application, provides a definition currently lacking. Some submissions endorsed the need for such a definition.

This proposal might be one which would usefully clarify the drafting of revised Standards or be adopted in an industry code, but it does not appear to have the effect of providing an exemption.

1X Mobility Aid

ARA's proposals here extracted relevant clauses on criteria for mobility aids from the Guidelines in order to avoid arguments about possibly limited legal status for this material; but also made some revisions and additions.

APTJC disagreed with this proposal on the basis of their general preference for considering new provisions instead in the course of the 5 year review of the Standards.

Specific parts of ARA's proposal are discussed below.

1X1.

Recommendation: Defer for further discussion to determine appropriate approve exemptions to limit obligations regarding mobility aids not conforming to the assumptions in the Standards, but by reference to specific situations rather than by way of general limitation or definition

This sets out size limitations based on Guidelines Part 40 and AS1428.2

Submissions referred to material from the Guidelines in relation to use of larger mobility aids and argue these should be accommodated. Some submissions assert strongly that any attempt to limit the size of mobility aids is inconsistent with the intent of the Standards.

ARA's concern is clearly to set some limits on the extent of the continued expansion of dimension of mobility aids to be accommodated.

As with disability aids more generally, however, it is not clear that uniform size limitations are required and justified, rather than limitations in rail environments being more specific to particular settings and, as proposed by some submissions, being able to be dealt with separately (boarding ramp loads; size of allocated space; size of available luggage/stowage space; manoevring areas; ability to use furniture).

Submissions objected strongly to the proposal for 750 mm rather than 800mm width. One submission stated:

It would be unreasonable to restrict access to trains, ferries, taxis etc over an accessway constriction on buses. While integrated ticketing may allow bus and train to be accessed with a single ticket, people may choose not to use the bus, knowing that they will not fit. This bus constraint should not restrict access to other modes of transport.

ARA's revised proposal responded to these issues by stating a 800mm by 1300mm footprint for mobility aids but noting that in limited locations mobility aids would need to be able to pass through a 760mm opening, for example in a corridor passing an accessible toilet or through an existing carriage door.

Several submissions noted that scooters could not satisfy the dimensions proposed for fit under furniture and proposed instead that dimensions from relevant standards for knee clearance be used.

ARA' revised proposal responds to these concerns by referring to the knee clearance specifications in AS1428.1.

Submissions queried the need for mobility aids to be able to be positioned in a single manouevre in a rail conveyance and objected to the proposed specifications in this area as reducing existing rights, on the basis that while the 2070 by 1540 dimensions are indicated as a minimum, dimensions of 2270mm by 1740mm are also indicated as preferable where achievable and should be achieved at least in new conveyances premises and infrastructure.

ARA's revised proposal adds a note on this point that the 2270mm by 1740mm space should be attained where possible.

One submission queried the need for specifications regarding maximum mass, on the basis that this was covered in the guidelines, but did not address the lack of legal status of these. Other submissions accepted the need for clarity regarding mass, but noted that this constraint only applies to boarding ramps, and should not be taken as constraining the mass of passenger plus mobility aid if and where boarding without a boarding ramp is possible.

ARA's revised proposal responds to these issues by adding wording to make clear that the mass limitation relates only to use of a ramp rather than being a general limitation.

It appears that ARA's proposals under this point would be appropriate to accept, subject to each limitation being specified as applying only where it is relevant as indicated above. Extensive further discussion ought not to be required to determine appropriate drafting on this point.

1X2. Performance criteria

Recommendations:

• Approve exemption regarding flange gaps, but as exemption for access paths rather than as feature of mobility aids, and subject to reporting on accompanying positive measures;
• Further discussion required of possible limits of exemption on staff assistance with stowage and operation
• not satisfied that exemption required on other points

ARA propose setting out requirements for braking, anchoring, stability, propulsion, batteries, wheels and gaps, ramps, operation and storage.

Gap crossings

ARA's initial proposal specified that mobility aids must be able to cross vertical gaps of 20 mm (rather than the current 12mm) and horizontal gaps of 65 mm (rather than the current 40 mm), noting that maintenance of platform/train interface to more demanding tolerances than this is not practicable and that many people with disabilities can safely cross such gaps.

Submissions queried whether this revision would be appropriate, given that the current requirement is not to maintain 12mm and 40mm vertical and horizontal gaps but to deploy boarding devices if these specifications are not achieved.

The ARA revised proposal accepts these points, and does not seek an exemption in relation to gap crossings other than for flange gaps as below.

Safety and stability

One submission argues that any requirement for anchorage points on mobility aids should be phased in, in the same manner as access requirements for rail cars. It is not clear, however, how such a requirement, if actually required for safe carriage now, could be phased in.

Other submissions raised concerns that the reference to safety requirements for mobility aids on public transport was not defined, noting that an Australian Standard in this area is under development but not completed.

Submissions raised concern regarding lack of provision for any testing or certification of mobility aids to comply with stability requirements.

The Standards already state an assumption that mobility aids will be stable under normal manoeuvring forces for the conveyance concerned. It is not clear that sufficient evidence has been presented to justify an exemption permitting specific restrictions, such as requiring anchorage points for mobility aids on trains, or that such a requirement should apply to all rail services.

References in the Standards and Guidelines to anchorage are in terms of mobility aids complying with other regulatory requirements for securing where these exist, rather than directly expecting or requiring that all mobility aids on all public transport will have anchorage points.

Flange gaps

ARA's revised proposal maintains that gaps of up to 75mm are part of the technical constraints of the rail environment.

APTJC indicate agreement with ARA on the view that flangeway gaps cannot safely be reduced below 75mm.

Other submissions objected to a requirement for mobility aids to be able to cross flange gaps of 75mm, arguing that such gaps should have to be justified on an unjustifiable hardship basis and should not be accepted as permanent but rather subject to continued research.

As indicated by the heading in part 33.7, however, the unjustifiable hardship defence is intended to apply to exceptional cases. A constraint which appears to exist for all instances of rail operations throughout Australia and indeed worldwide does not appear well suited to being dealt with through a mechanism intended for exceptional cases.

It appears appropriate to grant an exemption on this point, subject to reporting during the exemption period on measures being taken to promote provision of access paths which do not require traversing of flange gaps, and on any developments in acceptable methods for bridging flange gaps.

As noted below ARA's proposals under 2.5AX below do include a commitment for level crossings used as part of an access path to comply with the requirements for access paths so far as technically possible.

Reporting should be required however on measures to avoid or reduce the use of level crossings as part of access paths noting the difficulties of achieving full compliance with access path specifications.

Ramps

Submissions object to ARA's proposal for a requirement to be able to climb a 1 in 12 ramp unassisted, preferring 1 in 14 consistent with existing requirements. ARA's revised proposal accepts this point and thus does not seek an exemption on this issue.

Submissions sought a limitation on 1 in 4 ramps for assisted access, suggesting 1200mm as permitting a 300mm rise. ARA's revised proposal maintains the 1520mm figure from existing Standards. It may be appropriate to revisit this issue in the context of review of the Standards or the development and possible approval of an industry code, but on this issue ARA are simply proposing to continue to apply the existing Standards and thus an exemption on this point does not appear necessary.

Stowage of mobility aids

As discussed under 1.15X above, submissions object to the proposed clause indicating that passengers are responsible for stowage etc of mobility aids, noting that as drafted it appears to cut across existing obligations at least in relation to taxis. As indicated in relation to proposed point 1.15X, further discussion appears required on this issue to ensure that any exemption is confined to the extent justified by safety issues for staff and does not unduly restrict access.

1X3. Orientation

Recommendation: approve exemption in relation to orientation and location of allocated spaces and priority seating on conveyances

ARA proposes providing, in accordance with the existing Guidelines, that operators may determine location and orientation of passengers.

Some submissions argue that this is discriminatory unless all passengers are also required to face whichever way the operator determines. Other submissions accept the proposed approach, if expressed as applying only where justified on safety grounds.

One submission indicates that the proposed clause is too broad and suggested restricting the reference to conveyances only. In relation to premises and infrastructure, providers and operators may more appropriately (and potentially less offensively) be seen as determining the location and orientation of facilities (including at nominated boarding points as proposed by ARA) rather than of the passengers themselves. ARA's revised proposal accepts these points and refers to orientation only of seating and allocated spaces on conveyances.

Despite the statement in the Guidelines, there have been complaints made on this issue. An exemption on this point appears appropriate to ensure that the Standards operate as intended.

2.1 Access paths

Recommendations:

• grant an exemption permitting provision of only a single access path for existing stations
• further discussion required of need for and limits of possible exemption regarding access to single boarding point.
• decline an exemption for action according to updated specifications, as unnecessary since this would clearly provide equivalent access to that specified in the Standards.

[These recommendations are consistent with APTJC advice]

ARA proposed that it be specified that access paths are to be provided "to a boarding point" rather than more generally and that providers may nominate the access path.

ARA also proposed updating reference from AS1428.2 (1992) to AS1428.1 (2001) with the addition of 1200mm width for walkways etc and of maximum crossfall specifications of 1:40 or 1:33 for bitumen finishes.

One submission argued there is a need for further emphasis here and in following clauses on placement of tactile indicators in accordance with AS1428.4

Submissions queried referencing existing building standards here in view of these being under review and raised particular concerns regarding the degree of camber provided for.

As already noted some submissions saw more justification for the proposed approach of a single nominated access path for existing buildings than new stations. AFDO's initial submission summarised concerns in this area by stating that if an access path can be made compliant with existing standards without unjustifiable hardship, then it should be. APTJC expressed agreement with ARA proposals in this area on 2.1.1 and 2.1.3, but subject to inclusion of criteria for determining when more than one access path is required such as in larger buildings.

One submission proposed the following alternative drafting, distinguishing between new and existing facilities:

2.1 Unhindered passage

(1) An access path that allows unhindered passage must be provided along a walkway, ramp or landing.

(2) On existing premises and infrastructure, where technical constraints do not permit compliance with Part 2.1(1) an access path that allows unhindered passage to a boarding point must be provided. The Provider may nominate the access path.

(3) An access path must comply with AS1428.1 (2001), subject to Part 2.X and with the following exceptions and additions:

(a) Walkways, ramps and landings shall have an unobstructed width of not less than 1200 mm.

(4) An access path must have a maximum crossfall of 1 in 40 except for 1:33 if the surface is a bituminous seal.

ARA's revised proposal adopted this revised approach.

The proposed changes in referencing here could be seen, as APTJC sees them, as a drafting change more appropriately considered in the context of review of the Standards and/or the development of an industry code.

ARA's proposal here could also be seen however as a request to be excused from complying with one set of standards on condition of compliance with other standards. The latter appears to be within the scope of the exemption power and HREOC's previous practice in exercising it.

AFDO indicated agreement on this point subject to there being a timetable for compliance and a potential trigger for full upgrade linked to the Access to Premises Standard.

On the issue of permitting provision of only a single access path from a nominated boundary point for existing stations, it appears appropriate to recommend a temporary exemption, subject to

• reporting on constraints in this area, impacts on passenger amenity and plans for reduction of these impacts; and
• the limitation that an exemption on this point does not exclude any requirement for fuller upgrading of access paths or entrances which arises under legislation giving effect to applicable provisions of the Building Code of Australia, or under a Disability Standard on Access to Premises if in force during the period of the exemption.

As discussed under point 1.9 above, further discussion is needed to determine whether an exemption permitting provision of an access path only to a single boarding point can be limited to those situations where such a restriction is justified or necessary, and what accompanying conditions on such an exemption might be appropriate including in relation to information and assistance for passengers to ensure that this approach does not unduly impair equal access in practice. A decision on an exemption permitting a single boarding point should therefore be deferred.

2.2 Continuous accessibility

Recommendation: Not an independent point of exemption since only restates current obligations more accessibly.

ARA's proposal here lists features requiring to be linked by an access path, in place of current obligations requiring reference to AS1428.2 (1992) clause 7 for this.

APTJC disagree with this proposal on the basis that editing and referencing of Australian Standards are better dealt with through the 5 year review of the Standards.

A number of submissions including AFDO while accepting this proposal in principle argue that it is important not to omit the material from AS1428.2 clause 7(e) and the notes dealing with siting of facilities and fatigue issues. AFDO note that their acceptance in this area is contingent on resolution of issues in relation to clause 1.9 and is restricted to rail only.

ARA's revised proposal incorporates a reference to the material from the requested clause.

Stating the required actions expressly rather than by reference to Australian Standards or other documents has clear advantages in terms of accessibility for all concerned, whether in Standards, an exemption decision or an industry code. It is not clear however that on this point ARA are seeking any variation to or exemption from existing obligations.

2.4 Access paths - Minimum unobstructed width

Recommendation: grant exemption

ARA's proposal here while not seeking substantial change to existing obligations seeks to make clearer that the 1200 mm minimum is varied for doorways and gateways.

One submission proposed inclusion of explanatory material to make clear that

• while existing infrastructure and premises may not be able to meet the 1200 mm minimum width for access paths in all locations due to technical constraints, in these situations a path of more than 1000 mm width should be provided;
• if the access path stricture is of a very limited nature (eg access around a power pole or column) a minimum of 850 mm width should be acceptable;
• alternate paths of travel should be provided if access path strictures are of an extended nature (e.g. over several metres).

ARA's revised proposal incorporates the requested explanatory material.

This proposal could be seen as purely explanatory rather than constituting an exemption since the Australian Standards referred to in the DSAPT already provide for narrowing of access paths at doorways. However, the requested exemption would also to insert clearer statements of other permitted limitations on width of an access path which may occur due to features on a railway platform. It appears appropriate to grant an exemption on this point, applying to existing infrastructure only as recommended by APTJC.

2.4X Access paths - Minimum unobstructed width for railway platforms

Recommendation: grant exemption consistent with ARA revised proposal

ARA's proposal here reflects the outcomes of the QR exemption application and related national meeting on TGSIs convened by HREOC in December 2002; and requires accordingly that while new platforms must comply fully with unobstructed width for access paths, for existing platforms reduction of unobstructed access path to 1 metre is allowed where required by site constraints, and where unavoidable allowing platform edge warning TGSIs to intrude into the access path.

Some submissions argued that platforms should be brought into full compliance with the standards as they stand in accordance with the upgrade schedule provided, except where unjustifiable hardship can be shown in particular cases. Other submissions argue that the outcome referred to on TGSIs should be regarded only as guidelines rather than given legal status. Other submissions indicate agreement with ARA proposals in this area.

One submission proposed inclusion of explanatory material indicating that

• warning TGSIs are an important safety feature for people who have vision impairments
• however they introduce a level of difficulty for many people who have mobility impairments
• every attempt to keep access paths clear of TGSIs must be made, but not at the expense of the safety of blind passengers.

ARA's revised proposal incorporates the requested material.

Noting the degree of public discussion already conducted on this issue it appears appropriate to grant an exemption on this point in terms consistent with ARA's revised proposal. APTJC and AFDO agree with this proposal.

2.5 Poles and obstacles, etc: requirements for contrast

Recommendation: Defer decision for further discussion

ARA proposed replacing the current requirement for 30% luminance contrast between obstacles and background with a requirement for colour contrast in view of difficulties found in measuring luminance.

APTJC indicated agreement with ARA's proposal on 2.5.1 (minimum unobstructed width of paths), but disagreement on 2.5.2, viewing this as an editing and referencing issue more appropriately addressed within the 5 year review of the Standards and expressing concern that current work by Standards Australia should not be pre-empted.

AFDO indicated concern that colour contrast should not replace luminance contrast without acceptable specifications for defining and measuring colour contrast.

Other submissions however indicated agreement with ARA's proposal on the basis that field experience indicates that luminance contrast fails to produce a consistent visual contrast, but called for emphasis on strong colour contrast for example by referring to "distinct" colour contrast.

ARA's revised proposal includes the requested emphasis and some material from Australian Standards on inappropriate colour combinations.

Further discussion appears required to confirm whether ARA's proposals deliver equivalent access to those currently specified in the Standards.

2.5AX Level crossings

Recommendation: Grant exemption, subject to reporting on measures to reduce use of level crossings as part of access paths and on research into other possible solutions

ARA's proposals include an obligations clause to apply where a public pedestrian level crossing is used as a direct access path to a boarding point.

ARA's initial proposal required compliance with draft AS1742.7, Pedestrian Level Crossings. Submissions expressed concern about giving effect to an Australian Standard not yet finalised.

Submissions in relation to this clause raised concerns also raised in relation to proposed clause 1.18X regarding mobility aids. Submissions argue that while eliminating flangeway gaps at present may involve unjustifiable hardship, this position should not be accepted as permanent.

One submission proposed alternative drafting in this area as follows:

2.5AX Level Crossings

If a public pedestrian level crossing is used as a direct access path to a boarding point it shall, so far as is technically possible, comply with the requirements for an access path.

This drafting is seen as acknowledging the lack of current technical solutions in relation to flange way gaps while not closing off possible future technical solutions.

ARA's revised proposal accepts this approach and adds a note that providers must seek a safe solution to flangeway gaps but that no acceptable solution currently exists.

As noted above an exemption on this point appears appropriate subject to reporting during the exemption period on measures to reduce the use of level crossings as part of access paths and on research on possible solutions.

2.6 Access paths - Access paths - conveyances

Recommendations:

• Reduction in width of access path: grant exemption for existing carriage doors with minimum width of 760mm on condition that direct assistance is available
• Defer decision on other restrictions and new carriages: further discussion required to ensure sufficient specification of unavoidable constraints.
• Stair access to areas of double deck carriages: grant exemption on condition that access to unique facilities is assured.

Reduction in width of access path

ARA proposed provision for reduction of access paths from 850mm to 750mm as a "local restriction" where required by design constraints. ARA's revised proposal alters this to 760mm.

APTJC questioned whether the problem is sufficiently well defined by ARA.

ARA's proposal would also permit reduction of access path to 750mm (rather than 800mm at present) at doorway restrictions for those conveyances ordered before 2 April 2004 (when the provisions of the Standards dealing with access paths on conveyances commenced following the technical review of the Standards).

ARA's reasons refer to consistency with existing part 40 Guidelines and design constraints in vehicles. However, submissions argue that 850 mm is required on the basis that a moving mobility aid requires greater clearances than one stationary in an allocated space. Submissions also questioned the appropriateness of applying the 2004 date, on the basis that operators and manufacturers were on notice of requirements prior to this and that genuine constraints may be addressed through unjustifiable hardship.

ARA also referred here to desirability of consistency between transport modes and constraints on buses, but in response to submissions generally rejecting this argument, this point was not pursued by ARA at the forum convened by HREOC on 6 April. It was also pointed out at that forum that if it were appropriate to give paramount importance to consistency between modes, rather than dealing with ARA's application in its terms as only concerned with rail, would tend towards rejecting the application in favour of deferring the issues to a review process covering all modes.

At the 6 April 2006 forum ARA presented strong arguments that doors of existing rollingstock cannot generally be widened without compromising the structural strength and thus crashworthiness of carriages. It appears appropriate to grant a temporary exemption on this point for existing carriages only, subject to a condition requiring direct assistance to help passengers negotiate the narrower doors where necessary.

For new rollingstock, with an intended service life of 40 years or more, a temporary exemption can have only limited benefit. This is not the same thing however as concluding that an exemption would be pointless and of no effect (on which grounds HREOC might properly decide to refuse an exemption). An applicant might decide to pursue limited protection available through a temporary exemption and hope to persuade relevant authorities to make regulatory changes later (including in the present case through the five year review of the Standards). HREOC's role is then to determine what to do with the application before it.

If unavoidable design constraints in fact dictate a maximum achievable clear access path of 760 mm it is hard to see that there is any diminution of existing substantive legal rights in saying so by way of exemption - since an unjustifiable hardship defence ought to succeed. An exemption granted only in respect of situations where unavoidable design constraints exist would not provide any protection where a reduced access path was provided as a matter of less constrained design choice. Care would however need to be taken in drafting any such exemption to avoid appearing to permit more discretionary reductions in clear access paths.

Stairs

ARA proposes removing stairs from the definition of an access path. ARA argue that stairs cannot be part of an access path. Some submissions including AFDO argue that stairs should continue to be covered in order to assure appropriate access features for blind and vision impaired passengers on stairs. It may be noted, however, that ARA do not propose that stairs should be subject to no standards at all - refer to their proposals under clause 14.

ARA seek inclusion in obligations of a note that some parts of a conveyance may not be accessible to some passengers. NSW Cityrail have indicated through this process and in previous discussions that they consider they need more certainty that double deck stock is permissible. Accordingly this proposal incorporates existing language from the Guidelines.

Some submissions agree with the proposal to make clear that mobility aid access to upstairs sections of double deck carriages is not required. One submission argued however that mobility aid access to upper decks of double deck stock should in fact be required, and referred to United States and Canadian practice in providing lift access to long distance double deck trains (but without noting that in these instances upper decks provide specific facilities such as dining cars). This submission may lend more weight than might otherwise have been thought to attach to ARA's view that an exemption is necessary on this point.

The major argument against such an exemption is that a complaint regarding stair access to upper floors is highly unlikely to succeed (in the absence of the unique facilities and very different operational circumstances of North American long distance double deck trains). This, of course, is also an argument that an exemption would be unlikely to involve any real diminution in rights. On balance, stating by way of exemption that double deck carriages are permitted to have access to their upper and lower sections only by way of stairs so long as this does not prevent access to any unique features such as sleeping or dining facilities appears appropriate.

This would also provide an opportunity to emphasise that if - as has been indicated by ARA - adequate performance of hearing augmentation systems can only be secured on upper decks, equivalent access must be assured in other areas, since people with mobility and hearing impairments are not separate groups of passengers, and all members of the travelling public can expect to experience some degree of both these types of impairment with increasing probability as their age advances.

2.8 Access paths - Extent of path

Recommendation: issue addressed under 2.6; additional exemption not required.

ARA's initial proposal in this area provided that "an access path must extend from the entrance of a conveyance to the allocated spaces, priority seats and other essential facilities for passengers with mobility aids and people with vision impairment using canes and assistance dogs" instead of "from the entrance of a conveyance to the facilities or designated spaces provided for passengers with disabilities" . ARA's revised proposal refers only to people with mobility aids.

APTJC regarded ARA's proposal as unduly restrictive.

ARA also propose that obligations should include a note that some manoeuvring may be needed where allocated spaces adjacent to an access path are occupied.

ARA seek a statement that "an access path need not extend through an area with hearing augmentation".

A number of submissions indicate that this proposal may require redrafting or deletion.

ARA's point under clause 2.6 on the extent of the access path appears to address ARA concerns that a compliant access path to an area in a conveyance should not be required purely because that area has hearing augmentation (noting concerns that the best area for hearing augmentation on double deck stock may be upstairs). The separate statement of this point in proposed clause 2.8.5 appears to be capable of meaning (although this result is clearly not intended) that if any area has hearing augmentation, then an access path is not required to or through that area wherever it is located. Submissions also raise concerns that some people with mobility impairments also have hearing impairments and that if hearing augmentation is not possible the requirement to provide equivalent access should remain rather than all obligations in this area being set aside.

3.1 Manoeuvring areas - Circulation space for wheelchairs to turn in

Recommendation: Grant exemption accepting use of lower end of range of dimensions stated for existing premises and infrastructure where required by space constraints.

ARA proposed that obligations here should state dimensions expressly rather than by reference to Australian Standards.

APTJC disagree with this proposal on the basis that editing and referencing of Australian Standards are better dealt with through the 5 year review of the Standards.

Submissions argue that it should be stated that the turn required may be made in multiple points and that the information from Australian Standards should if possible be reproduced more completely.

Some submissions including AFDO also argue that, while constraints in some existing locations mean that the proposed dimensions of 2070 by 1540 mm have to be accepted, for new infrastructure and premises a space of 2270 mm in the direction of travel and 1740 mm wide should be provided.

ARA's revised proposal makes clearer that the proposal here is not only intended to make required specifications more directly accessible but to provide that for existing premises and infrastructure space constraints may dictate use of the lower end of the range of dimensions stated in AS1428.2, and that against this it is accepted for new premises and infrastructure the largest dimensions in the range provided by AS1428.2 are to be applied.

4.1 Passing areas - Minimum width

Recommendation: Not an independent point of exemption

ARA proposes deletion of this clause in setting out their proposed revised obligations, since the same information is contained in clause 4.2. APTJC disagree with this proposal on the basis that editing and referencing of Australian Standards are better dealt with through the 5 year review of the Standards.

Avoiding duplication might be appropriate in an industry code or in revised Standards but it is not clear that an exemption is available to make a purely editorial change of this nature unless an exemption is granted for compliance with an industry code or similar document as a whole.

4.2 Passing areas - Two-way access paths and aerobridges

Recommendation: Grant exemption for existing platforms, subject to re-opening if Premises Standards process results in different provision and with requirement for reporting during exemption period on instances where exemption has been relied on, impacts for passengers, and measures taken to minimise these.

ARA proposed an increase of distance between required passing areas to 9 metres, for consistency with current and proposed building code provisions.

APTJC agree with this proposal.

ARA's revised proposal is altered only in omitting reference to aerobridges, irrelevant in a rail environment.

Some submissions argue that this change should be left until after current building standards processes are concluded.

One submission notes that the TGSI exemption process outcome referred to does not provide a general justification for reducing passing spaces, but rather acknowledges constraints on existing platforms. The ARA proposal appears intended to be consistent with this view.

One submission argued that no issues in this area should be raised in relation to railway platforms, since the provision deals with access paths less than 1800mm wide and a platform less than 1800mm wide does not seem possible. This clause, however deals with clear access path width (taking into account required TGSI width and set back from platform edge for these, as well as other features of platforms such as signs, seats and poles), not with overall platform width.

Railway platforms and associated areas are clearly unusual amongst premises, both in constraints on available space and in their intense level of crowding at some times. These factors present competing arguments for less generous and more generous provision of passing space and other features of access paths, compared to other parts of the built environment.

On this point, unlike a number of others, ARA are arguing for these factors to be balanced by applying the same specifications in the rail environment as in other places. A short term exemption applied to existing infrastructure only and requiring reporting on locations where it is necessary to rely on this exemption and measures to reduce any impact on passenger amenity appears to be a means of promoting increased access in future rather than diminishing existing access. APTJC supports an exemption on this point.

4.3 Passing areas - Passing areas - conveyances

Recommendation: Defer decision: Further discussion required to confirm that proposed change would not substantially diminish access in practice, including possible positive measures to ensure equivalent access through staff assistance.

ARA proposes a change in obligations from requiring passing area in a carriage if the train provides more than 1 wheelchair space, to requiring a passing area if the carriage itself provides more than one space.

APTJC submitted that the problem and proposed solution here are not sufficiently well defined. Subsequent APTJC comment indicates agreement in principle but not in form.

Some submissions argued that existing requirements need to be maintained so that people can move between cars for whatever reason e.g. to meet friends. Other submissions from disability organisations however agree with the proposed change in this respect.

The implications of such a change on long distance trains in particular, where facilities may be distributed among several carriages, were discussed briefly at the forum on 6 April 2006. ARA argued that because of limited aisle widths and issues of stability people would not be propelling themselves in their own wheelchairs along such trains in any event. (These issues might be regarded as justifying a specific exemption for long distance trains although on the same basis it could also be argued that a lack of passing areas in carriages in these trains is already permissible by reference to the concepts of unjustifiable hardship and/or equivalent access).

Some further discussion appears required before HREOC could make a decision on this point, to clarify that the proposed change would not substantially diminish access in practice, including possible positive measures to ensure equivalent access through staff assistance.

5.1 Resting points - When resting points must be provided

Recommendation: grant exemption for existing infrastructure to the extent required by site constraints, subject to report during exemption period on impacts.

ARA's proposal seeks to state requirements expressly instead of by reference, and also proposes adding "Where major site restraints do not allow for resting points as required, these shall be provided in locations where the infrastructure permits."

APTJC submitted that this issue should be deferred to the 5 year review of the Standards in view of implications for other modes and for all passengers.

The argument of implications for other modes, however, does not appear persuasive in view of the fact that this application is concerned only with rail facilities.

Some submissions including AFDO indicated agreement with the proposed approach for existing platforms, in instances where full compliance with existing requirements cannot be achieved, but not for new platforms. ARA's revised proposal accepts this distinction.

Other submissions argued that infrastructure should in any case be upgraded to provide resting points in accordance with the compliance schedule. ARA's argument however is that in some locations constraints are such that this is not achievable.

It appears appropriate to grant an exemption on this point. AFDO and APTJC agree with this recommendation subject to a requirement for ongoing consultation. It should be noted that this would only apply where constraints actually prevent providing resting points as required by the Standards, rather than only making provision more expensive or difficult.

6.1 Ramps - Ramps on access paths

Recommendation: refuse exemption as unnecessary: use of updated specifications appears sufficiently clearly permitted as equivalent access

ARA's proposal here would update reference to AS1428(2) (1992) to current AS1428(1) which is used in the Building Code (other than for ground surfaces where the reference to AS1428(2) is maintained.

While some submissions argue that the 2001 edition of AS1428(1) does not provide equivalent access to AS1428(2) (1992), other submissions including AFDO indicate agreement with the proposed revision here. Submissions also suggest express specification of a minimum 1200 mm width between handrails.

APTJC indicate agreement on 6.1 but argue that proposals on 6.1.1 and 6.1.2 should be considered instead through the 5 year review of the Standards.

If those submissions which indicate that the updated specifications preferred by ARA provide equivalent access to those used in the Standards are correct, it is not clear that an exemption is required.

6.2 Boarding ramps

Recommendation: Refuse exemption: not an independent point of exemption

ARA propose here that specifications be set out expressly instead of requiring reference to Australian Standards. AFDO indicate agreement with this proposal.

APTJC submit that this is an editing and referencing issue better left to the 5 year review of the Standards.

This proposal appears directed to making specifications more accessible rather than altering obligations. As such it does not constitute an independent point of exemption.

6.3 Ramps - Minimum allowable width

Recommendation: Refuse separate exemption: subject matter covered better by proposals on 8.5

ARA proposed a change from minimum allowable ramp width of 800mm to minimum "trafficable" width of 750 mm.

Submissions argued that there is no sufficient justification for rail operations to reflect bus constraints and that people who cannot fit on a bus should if possible be able to travel by train so that they are able to travel by mass transit modes at all.

Submissions also raised the issue that narrower ramps would reduce safety margins.

ARA's revised proposal reverts to the 800mm specification while noting that kerbs on ramp sides might reduce trafficable width and that existing conveyances with entrances less than 800 mm might involve ramp widths reducing below 800mm.

This proposal does not make clear whether this means reducing the width of the ramp only where it meets a narrower door or along its length. These issues appear more clearly dealt with in ARA's proposal under 8.5 and are discussed below under that heading.

8.1 Boarding - Boarding points and kerbs

Recommendation: Grant exemption specifying that assisted boarding is only required at a single entrance rather than all doors, subject to discussion of possible conditions on staff training and passenger information

ARA's proposal here would insert a clause specifying that the provider may nominate a single accessible location for boarding of a conveyance. 

APTJC argue that this issue should be considered through the 5 year review of the Standards.

Some submissions argue that if this approach is implemented the train will have to make multiple stops to permit access to each car (on the basis of a view or assumption that passengers should be able to board any car they choose). One submission argues for the same reasons that gap closing mechanisms should be fitted to every door.

Other submissions accept that assisted boarding can only be expected to occur at one door on a train, but wish it to be made clearer that passengers who can board independently are not required to board at the nominated point.

At the forum convened by HREOC on 6 April, ARA clarified the purpose of their application on this point as involving a request for recognition (without requiring recourse to arguments based on unjustifiable hardship or equivalent access) that boarding assistance and a ramp or boarding device may only be available at one door of a train rather than at all doors.

Acceptance of this point appears required by recognition of the realities of public transport operation in Australia , where each carriage is not provided with its own attendant.

This point is related to but distinct from that raised by points 1.9 and 2.1 where ARA seek to be permitted to provide an access path only to such a nominated boarding point.

As with point 2.1 above, however, reporting during the exemption period appears required on measures taken in relation to staff training and information for passengers, to ensure that an exemption does not unnecessarily limit equality of access but rather promotes positive measures.

8.2 Boarding - When boarding devices must be provided

Recommendation: Refuse exemption as not necessary, as revised application on this point reflects existing position

As noted under clause 1X2, ARA initially sought a change in the dimensions of the train/platform gap before a boarding device must be provided, increasing the vertical rise from 12mm to 20mm and the horizontal rise from 40mm to 65mm, noting that maintenance of platform/train interface to more demanding tolerances than this is not practicable and that many people with disabilities can safely cross such gaps.

APTJC indicated agreement with this proposal on the basis that the gaps specified in the standards are not achievable in a rail environment.

Submissions queried, however, whether this revision would be appropriate, given that the current requirement is not in fact to maintain 12mm and 40mm vertical and horizontal gaps - but to deploy boarding devices if these specifications are not achieved.

The ARA revised proposal accepts these points, but adds a note that larger gaps are unavoidable in many situations and need to be addressed by equivalent access for example by deploying a ramp.

It would not have been appropriate to grant an exemption in the terms originally proposed. As APTJC now note, the ARA revised proposal reflects rather than varying existing obligations, and an exemption on this point is therefore not required.

8.5 Boarding - Width and surface of boarding devices

Recommendation: approve exemption consistent with revised application

ARA's initial application proposed a change from current specification of 800 mm width to 750 mm "trafficable width". 

The revised application on this point omits this term but adds a note that kerbs or guard rails may be counted within the 800mm dimension.

In discussions at the forum on 6 April 2006 it appeared to be accepted that this did not reduce existing requirements. This however is not so clear from the terms of the relevant clause of the Standards as to render an exemption unnecessary.

ARA also seek specification that boarding devices may reduce to less than 800mm at the point where they abut existing doors with less than 800mm openings which cannot be modified.

This appears to be a necessary result of accepting (as recommended) of ARA's proposal under 2.6 above on door widths of existing conveyances.

8.6 Maximum load to be supported by boarding device

Recommendation: Exemption not required

ARA propose inserting words to make clear that the maximum 300kg ramp load includes any assistant required rather than this being an additional allowance over and above the mass of passenger and mobility aid. 

APTJC oppose this proposal.

Although this item has been raised on many occasions by operators as a concern needing to be addressed, ARA's proposal appears not to alter in any way the existing effect of the Standards. Unless HREOC were to approve an exemption on the basis of an industry code or similar comprehensive document it is not clear that an exemption is available on this point rather than clarification as requested by ARA awaiting review of the Standards or possibly earlier revision of the accompanying Guidelines.

8.7 Boarding - Signals requesting use of boarding device

Recommendation: Approve exemption

ARA initially proposed that application of this clause to rail operators be replaced by obligations defined under point 8.8 as discussed below.

Some submissions including AFDO objected to this on the basis that proposed changes under 8.8 do not adequately cover alighting. Some submissions argued that signalling devices must continue to be required to be located in allocated spaces to facilitate a passenger being able to remain in their allocated space until the vehicle stops.

APTJC stated here their general view that editing and referencing issues should be deferred to the 5 year review of the Standards.

ARA's revised proposal would require a signal to be located "in or near" the allocated space, and to be "in" the space wherever possible, and in a position functional for a passenger using a wheelchair.

This proposal does not appear to be confined to issues of editing and referencing as indicated by APTJC but to be intended to secure a more performance based approach and to allow some explicit scope for difficulty in locating request buttons within an allocated space by referring to this being required "if possible".

Discussions at the forum on 6 April appeared to indicate that ARA's revision of its proposal had dealt with objections on this issue.

8.8 Boarding - Notification by passenger of need for boarding device

Recommendation: Defer decision: further discussion needed to confirm appropriateness of specifications

ARA's proposal here seeks to give more flexibility in how operators achieve the performance requirement of ensuring that passengers can notify staff of a need to deploy a device for boarding or alighting. 

APTJC state here their general view that editing and referencing issues should be deferred to the 5 year review of the Standards.

Submissions argue that locating a request signal in the entrance area will be problematic in crowded environments and that devices need to remain located in or near the allocated space accordingly:

Passengers may not have time to reach the entrance before the train pulled out. Alerting staff from the allocated space buys time and certainty in the process of alighting. It is anticipated that movement towards the entrance would not begin until the train was stationary. Progress may be slowed through crowding by other passengers, inappropriately stored baggage or the person's disability. Location of the call button in the allocated space ensures consistently being able to alert staff of the need for an access ramp or similar..

As with 8.7 above, ARA's revised proposal responds to this point and requires signal devices on conveyances to be located in or near allocated spaces.

One submission accepts that design constraints may affect placement of call buttons but indicates concern that the standards referenced are not the appropriate ones, Clause 11.4 of AS1428.2 being more appropriate for seated people who need to operate call buttons. This submission also noted that a request signal device for alighting can only be located on the conveyance, not at the boarding point, and that any exemption here needs to distinguish between boarding and alighting requests.

Discussion appears to be needed of whether the lowering of the reach range for call buttons to 550mm minimum (rather than 700mm as in AS1428.1) in accordance with design constraint issues is consistent with user requirements, or whether, in circumstances where placement in the reach range currently provided for is not practicable, access by other means ought to continue to be required - noting that variation may in any event be justified on the basis of equivalent access if individual operators have sufficient confidence in alternative approaches after their own consultations with users with disabilities.

9.1 Allocated space - Minimum size for allocated space

Recommendation: Approve exemption for actions consistent with the Guidelines.

ARA propose incorporation here of elements from the Guidelines indicating required overhead clearances and that it may not be possible for a passenger to locate their mobility aid in an allocated space in a single manoeuvre.  

ARA also propose express provision that operators may determine location and orientation of allocated spaces.

APTJC state here their general view that editing and referencing issues should be deferred to the 5 year review of the Standards.

Giving authoritative status to elements contained in the existing Guidelines does not however appear adequately characterised as an editing issue.

Although some passengers in rail or other vehicles may object to being required on safety grounds to travel facing the rear when passengers not seated in or on mobility aids are not so required, this provision is consistent with the provisions of the current Guidelines. It is not clear that there are any major issues of principle against giving material from the guidelines more definite legal status.

Several submissions raised issues regarding insufficient space for assistance dogs to lie down in front of seating on long distance services. These appear to be requests for current specifications to be made more generous however rather than comments on ARA's exemption proposals.

As noted earlier in relation to mobility aids, submissions regard the proposals made here regarding clearance for mobility aids under furniture as inappropriately excluding scooter type devices. Some submissions argue that an allocated space should be free of any intrusions and thus not require any knee space specification which is relevant rather to dining tables and counters.

An exemption appears justified here to confirm that acting in accordance with the Guidelines is lawful.

9.6 Number of allocated spaces to be provided - train cars, etc

Recommendation: Further discussion required before decision possible

ARA proposed reductions in the number of allocated spaces required for rail cars, from 2 per car to 1 per car on unbooked services to 1 per car (except for articulated trams), and for booked services a scale of 2 for 1-7 cars, 3 spaces for 8-11 cars, and 4 spaces for 12 or more cars.

APTJC submitted that an exemption has not been shown to be justified on this point and that the issue requires further consideration in the context of the 5 year review process.

Submissions argued that current requirements should be maintained, referring to issues of an ageing population and possible increased usage of allocated spaces in future. One submission accepted that revision for trams and light rail in line with bus specifications could be justified but argued for current requirements for heavy rail to be maintained.

ARA's revised proposal specifies a total of 2 allocated spaces per car for each car set having 32 or more fixed seats on unbooked services, and reserves for further discussion issues proportions on booked services.

Further discussion appears required of whether as argued by ARA allocated space requirements for long distance trains can be safely reduced compared to suburban trains, having regard to lower number of passengers per car on booked services; and whether experience has given sufficient assurance that the proposed revised allocated space requirements would be sufficient.

Submissions argue that operator concerns about under utilisation should be dealt with by use of removable seating. At the 6 April 2006 forum ARA argued that such an approach would face substantial logistic difficulties. However, it could be argued that if ARA is correct in its view that additional allocated spaces would rarely be required, these logistic difficulties would consequently also rarely arise. Further discussion of the practicalities of removing seats (including whether for existing trains this would require workshop facilities or major alterations such as to electrical connections) appears required.

The requirement for access in different classes of travel is proposed to be replaced by a requirement for accessible sleeping berths and allocated spaces if seating and sleeping accommodation are provided.

ARA argues that the requirement for allocated spaces in each class is inefficient and tends against consolidation of allocated spaces as encouraged by the Standards. It is not clear from the application whether ARA are proposing as a means of achieving the efficiencies concerned that passengers requiring an allocated space should nonetheless be required to have access to the same choice of facilities and fares as other passengers, i.e. by being accommodated in the coach for a higher class of travel at a lower fare, or (as appeared to be contemplated in ARA comments at the 6 April 2006 forum) having access to all the facilities of the higher class despite the berth or space being located in a car otherwise allocated to passengers travelling at a lower class. Further clarification in this respect, and discussion of impacts on either approach on passenger amenity including choice of travelling companions, would be useful before making a decision.

9.7 Allocated space - Consolidation of allocated spaces

Recommendation: Further discussion required to determine if ARA proposal involves request for exemption

ARA propose that the requirement should be to, if possible, locate spaces in close proximity to provide options of travelling with companions, rather than to if possible consolidate spaces to accommodate larger mobility aids as in the current standards. 

This approach is consistent with but not necessarily dependent on ARA's overall approach that mobility aids must fit within the "standard" envelope to be accommodated.

APTJC argues that this proposed exemption should be rejected as it results in no net change.

Further discussion may be useful of whether this is accurate and in particular of how much operator and design discretion is regarded as being included in the phrase "if possible".

One submission argues that the proposed change could lead to increased segregation in a separate carriage. It is not clear what the basis of this argument is - since spaces which are consolidated, as currently required if possible, will be in the same carriage even more inevitably than spaces which are close to each other.

Another submission argues that consolidation should continue to be required where possible to accommodate larger mobility aids, given the use of these in practice, while conceding that their use on public transport should be discouraged:

The issue of large mobility aids might be better addressed through a public education campaign and through regulations defining maximum dimensions and performance of scooters prior to their being approved for sale.

It is not at all clear, however, what regulatory and approval regime and avenues for public education are envisaged here or practicable.

While an exemption may be unnecessary given the degree of discretion afforded by words "if possible", and likely constraints on unfeasibly large mobility aids from other elements of trains such as doors and passageways, further discussion appears necessary before determining that an exemption in this area should be refused as being redundant.

9.10 Allocated space - International symbol of accessibility to be displayed

Recommendation: grant exemption

ARA propose providing discretion as to where and how the access symbol should be displayed rather than as at present requiring marking on floor surfaces. They also note that marking is redundant on booked services since the space is reserved for that passenger by virtue of the booking.

One submission accepts ARA's argument for flexibility in relation to signage on the floor but calls for clearer language indicating that the accessibility symbol must be clearly visible at all times.

APTJC agree with the proposed change to 9.10.1 but call for issues under 9.10.2 to be deferred to the 5 year review of the Standards.

ARA's revised proposal adds the word "clearly" to the requirement for display and a note that the symbol must remain visible in crowded conditions at least from close proximity.  

ARA's proposal could be seen as beneficial in reducing possible segregating effects of prominent marking with the access symbol so long as the priority status of the space is sufficiently indicated. However submissions also argue that current requirements are important in making clear the priority and space entitlements for mobility aid users, and question what consultation ARA refers to in its reasons here.

On this issue it may be relevant to note that the Standards were intended to provide flexibility as well as certainty, and only to require compliance with particular specifications where this is critical to provision of access. It is not clear why an exemption should not be granted indicating that marking of an allocated space should be effective, rather than being required to be achieved and regarded as being satisfied by floor based signage.

It should be noted that such an exemption would not include changes to the form of the access symbol itself including the colours. Any use of different symbol and background colours would thus continue to require demonstration of provision of equivalent access including consultation in this respect.

10.1 Surfaces - Compliance with Australian Standard

Recommendation: Exemption not required

ARA propose that in relation to surfaces, infrastructure should be dealt with by a separate clause 10.1X, and that for conveyances the reference should be changed from AS1428.1 Supplement 1(1993) C12 to AS1428.1 Supplement 1 (1990) C13.

Some submissions including AFDO endorse separation as proposed, but call for further discussion to ensure that appropriate specifications and references are selected.

APTJC indicate that the change of reference proposed by ARA is incorrect. ARA's revised proposal changes the reference to C12 rather than C13.

Some submissions dispute ARA reasons regarding availability and correctness of referencing of Australian Standards.

Other submissions acknowledge problems with regulation by reference, including in access and in keeping up to date, but note that compliance with a later version than the one referred to in the Standards will be highly likely to constitute compliance by equivalent access.

This argument appears persuasive against the necessity of an exemption on this point considered in isolation (although updating and correction of specifications could be appropriate in the context of an industry code, review of the Standards, or by way of indication in the Guidelines of specifications providing equivalent access).

10.1X Surfaces - Compliance with Australian Standard

Recommendation: Not an independent point of exemption

This proposed separate clause for infrastructure states requirements from AS1428.1(2000) C12 being the relevant provision for external environments and does so expressly rather than by reference.

One detailed submission indicates agreement but seeks incorporation of definitions for slip resistant and traversable by mobility aid. ARA's revised proposal adds a note that normal safety requirements apply to surfaces.

One submission noted that assistance dogs are reluctant to cross other than short grates. Another submission argues that further consultation is required in this area. APTJC state a general view that editing and referencing issues should not be dealt with in an exemption application but should await attention through the 5 year review of the Standards.

APTJC's view of this point as being purely one of referencing rather than seeking an exemption appears to have substance.

11.1 Handrails and grabrails - Compliance with Australian Standard - premises and infrastructure

Recommendation: Defer decision for further discussion

As with proposed changes under clause 2.5 above, ARA proposes substitution of a requirement for colour contrast for the current requirement for 30% luminance contrast in view of difficulties seen in measurement of luminance contrast.

APTJC argue that there is not yet sufficient evidence on this issue to justify an exemption.

Some submissions express concern about removal of the luminance contrast requirement. One detailed submission agrees with ARA's proposal but calls for reference to "marked" colour contrast.

One possible approach would be to grant an exemption subject to a requirement for consultation and report during the exemption period. The recommendation however, taking into account APTJC views, is to defer decision on this point to permit further discussion.

11.2 Handrails and grabrails - Handrails to be provided on access paths

Recommendation: Grant exemption for railway platforms; defer decision for other areas for further discussion

ARA proposed removal for all buildings at railway premises of the requirement to provide handrails wherever passengers are likely to require additional support or passive guidance.

ARA raised concerns that handrails placed from property boundary to boarding point would create dangers and barriers to movement, including for mobility aid users, and noted that alternative means of wayfinding are available.

ARA also noted that ramps and stairs would still be required to have handrails and that rest areas with seating are provided every 60 metres (other than on those platforms subject to space constraints covered by their requested exemption under clause 5.1)

APTJC accepted this proposal but only for railway platforms, with remaining issues to be considered instead during the 5 year review of the Standards.

Submissions argued that a blanket exception is not appropriate and that there should be case by case assessment - although not specifying how this might occur other than by reference to unjustifiable hardship.

One submission refers to particular needs for handrails where passengers are required to queue or wait standing. AFDO raise particular concern regarding the impact of the proposed change in obligations in this area on passengers who are blind or vision impaired.

It may be noted that other than for ramps or stairs, the draft Access to Premises standards (which are not yet in effect or final, but which have already been the subject of consultation equivalent in its extent to that applied to the transport standards) do not require handrails either for walkways or as a means of wayfinding and support within buildings classed as assembly areas (which railway buildings are).

Discussion could be useful on whether there are any instances which can be identified, either from existing standards or otherwise, where handrails do not create obstructions to movement, and do perform important roles in providing support and wayfinding information (such as in long corridors), without presenting barriers to safe passage, or to flows of large numbers of people including people using mobility aids (as may be the case in concourse areas).

One submission accepts that providers require discretion about where to use handrails but argues that it is important for obligations to be maintained indicating that where handrails are used to direct pedestrian flows they should also provide support and guidance, so that drafting on the following lines would be appropriate:

If handrails are placed along an access path they must provide passengers additional support and passive guidance.

It appears clear that literal implementation of the current terms of the Standards on this point would be impractical in many situations. Further discussion appears required however to determine what more restricted description of placement of handrails might be appropriate including by way of exemption.

11.3 Handrails and grabrails - Handrails on steps

Recommendation: grant exemption

ARA's proposal here incorporates details from the relevant Australian Standard to reduce need for reference to other documents and to provide that extensions on handrails are not required on conveyances due to space constraints.

APTJC state their general position that referencing issues should await being dealt with in the 5 year review of the Standards.

Some submissions indicate agreement with this proposal where there is restricted space on conveyances, so long as stair access is not required for equitable use.

This proposal does not appear to be restricted to referencing issues as it would restrict obligations to provide extensions on handrails. At the forum held on 6 April 2006 there appeared to be considerable support for the view that in this respect an exemption could be justified. AFDO have indicated support for an exemption on this point.

11.4 Handrails and grabrails - Handrails above access paths

Recommendation: Exemption not required

ARA's initial proposal here would provide an exception for placement of handrails where "local controls or equipment are in place" on conveyances, and import from the Guidelines a provision that grabrails may be used where handrails cannot be installed.

The revised application alters this to refer to where "unavoidable design constraints exist or control equipment is nearby".

AFDO argues that an exemption is not required here, on the basis that constraints in particular conveyances should be addressed on the basis of equivalent access within existing obligations under the Standards.

APTJC argue that an exemption has not been shown to be justified since the specifications only apply if handrails are installed.

In view of this, discussion appears required to determine whether in view of this there is any need for an exemption.

11.5 Handrails and grabrails - Compliance with Australian Standard

Recommendation: Exemption not required

ARA's proposal here imports content from relevant Australian Standard to reduce the need to refer to external documents; and also notes that design constraints may limit compliance.

Submissions argue that a blanket exception is not appropriate and would reduce safety of travel, and that there should be case by case assessment. It is not clear however how this would be different to an exemption requiring design constraints to be demonstrated.

APTJC state their general position that referencing issues should await being dealt with in the 5 year review of the Standards.

On this issue it is not clear that an exemption is required, since instances where compliance with the specifications given is not possible appear to be fairly specific and thus to be capable of being dealt with through provision for equivalent access and unjustifiable hardship, rather than being universally applicable constraints as with some other issues.

11.6 Grabrail to be provided where fares are to be paid

Recommendation: Further discussion required of appropriate performance requirement to replace obligation to meet prescriptive requirement.

ARA initially proposed that this requirement only apply where fares are required to be paid by "manual exchange of money" and noted that other means of support than a grabrail may be possible such as a benchtop.

The revised proposal is for simple deletion of the obligation under clause 11.6.

APTJC oppose an exemption on this issue and recommend further consideration of the issue in the context of the 5 year review of the Standards.

Discussion may be needed of whether, if the intent is to replace an obligation to provide grabrails with a more performance based obligation to provide support, a revised clause should say this expressly rather than simply removing the obligation to provide grabrails.

11.7 Handrails and grabrails - Grabrails to be provided in allocated spaces

Recommendation: Not an independent point of exemption

The proposed removal of reference here to Australian Standards does not appear to have any substantive effect but only to reduce repetition, since the requirement for grabrails to conform to relevant standards is as stated by ARA already given in clause 11.5.

12.1 Doorways and doors - Doors on access paths

Recommendation: Further discussion of safety issues required

ARA's proposal imports from the guidelines the point that conveyance doors may be controlled by the operator for safety reasons rather than being independently operable by passengers; and also imports into this clause the proviso from clause 33.3 that compliance may be achieved by equivalent access.

APTJC argue that there is no need to import provisions from the Guidelines. As noted elsewhere in these comments however the limited legal status of the Guidelines may need to be considered in this respect.

Submissions raise concern about reliance on operator assistance. However, if no passengers are permitted to operate doors independently it is not clear that there is a discrimination issue (although there may well be safety issues) in making independent operation unavailable to passengers with disabilities.

12.2 Doorways and doors - Compliance with Australian Standard - premises and infrastructure

Recommendation: Agree to revised proposal

ARA initially proposed removing reference to toilet doors here. ARA noted that toilet doors are dealt with separately in part 15.

Submissions however did not regard standards referenced in part 15 as dealing adequately with toilet doors and opposed proposed changes in this area.

APTJC state their general position that referencing issues should await being dealt with in the 5 year review of the Standards.

Some submissions proposed separation of new and existing premises here with existing premises being required to meet current Building Code requirements but new premises being required to meet AS1428.2 clause 11. ARA's revised proposal adopts this approach.

12.3 Doorways and doors - Weight activated doors and sensors

Recommendation: Exemption not required

ARA initially proposed replacing reference to pressure pads being sensitive enough to detect a 15kg "service animal" with a reference to "assistance dog".

This point is related to, but not dependent on ARA's preference for replacing other references to assistance animals with references to assistance dogs. APTJC objected to this proposal on the basis that a change from "animal" to "dog" should await the 5 year review of the Standards.

It is not clear that on this point this change makes any substantive engineering or access difference either way. It is not clear why the same sensors should not work equally well for any 15kg animal with 2 or 4 legs. Animals with more legs (such as assistance octopuses perhaps? or a kangaroo with a tail functioning as a fifth leg), or animals with no legs at all (such as an assistance python?), might distribute their weight more evenly, and thus might fail to set off some sensors depending on design, but it is not anticipated that such assistance animals would be in common use in Australia in the next 5 years at least.

Consideration of the possible implications of use of these types of animal is no longer required in this process, however, as ARA have revised their proposal to maintain the existing reference to animals. On this basis it is not clear that an exemption is required on this point simply to change the reference from "service" to "assistance" animal.

12.4 Doorways and doors - Clear opening of doorways

Recommendation: approve revised proposal

ARA proposed reduced width for toilet doors of 750mm instead of 850mm in view of difficulties presented by door closing mechanisms required for toilet doors and constraints of rollingstock width in conjunction with required width of the access path outside the door.

Submissions queried here as in relation to other issues the rationale of reducing rail conveyance dimensions to match bus constraints.

Some submissions accept that 750 mm doors may be all that is achievable in some circumstances but argue that this should be required to be demonstrated case by case on unjustifiable hardship grounds. Other submissions propose 800mm as a reduced minimum where required by constraints in existing premises and conveyances.

APTJC argued that this issue should be left to the 5 year review of the Standards in view of lack of agreement on the issue.

One submission while agreeing with ARA's proposals in principle argues that in return dimensions for other toilets should be expanded to enable use if an accessible toilet was out of service. Issues of appropriate signage were also raised.

An obvious issue is whether, if ARA's view of design constraints is accepted, obligations in this area should nonetheless require 850mm as a general rule and concede a lesser width only where required by design constraints, to provide greater passenger amenity in any circumstances where wider loading gauge might permit more inclusive design.

Responding to this point, ARA's revised application states an 850mm clear opening but adds that where technical constraints can be demonstrated, either in existing or new conveyances, a 760 mm opening may be accepted.

It may be appropriate to grant an exemption on the basis of the revised ARA proposal on this point, since specification of requirements which can be expected to be met appears more likely to promote access than specification of requirements which are widely regarded as unachievable in most circumstances.

APTJC endorse granting an exemption on this issue.

13.1 Lifts - Compliance with Australian Standard - premises and infrastructure

Recommendation: exemption not required

ARA propose insertion here of internal lift car dimensions of 1100mm by 1400mm from AS1735.12 (1999).

This Australian Standards clause is among those already referenced; ARA appear here to be seeking assurance that current requirements for lifts in rail environments will be maintained whether or not more generous dimensions are adopted in future in relation to lifts more generally, rather than seeking to relax current requirements. It is not clear that this assurance is available through the current process since an exemption cannot bind future standards development.

APTJC question the accuracy of the referencing by ARA here as well as stating their general view that referencing issues should be left to the 5 year review of the Standards.

Several submissions including AFDO accept ARA's proposals in this area but call for guidance notes to be added indicating that a two door "travel straight through" lift not requiring reversing out is safest. ARA's revised proposal includes a note to this effect.

An exemption on this point would not appear to alter current obligations.

14.1 Stairs - Stairs not to be sole means of access

Recommendation: Grant exemption for internal stairs on double deck carriages.

ARA proposed that this clause have added the words "to facilities designated for passengers with mobility impairment".

This appears intended to reflect ARA's proposals on the required extent of the access path under clauses 2.6 and 2.8, which in turn appear consistent with the current effect of the Standards.

However there may be some concern that reference to "designated" facilities could be more restrictive than access to facilities required to be accessible more generally. APTJC objects to the proposed exemption on this point on the basis that reference to mobiliy aid users alone is too restrictive (as well as on the basis of their general view, discussed elsewhere in these comments, that an issue dealt with in the Guidelines need not be the subject of an exemption.)

Since Clause 14.1 simply restates the effect of the access path provisions earlier in the standards, a simpler means of dealing with both this concern and operator concerns in the context of drafting Standards or an industry code could be to delete clause 14.1 altogether and leave the issue to clauses 2.6 and 2.8.

ARA also proposes that clause 14.1 should contain an express exception for internal stairs on double deck trains. Operator concerns in this respect may also be more appropriately dealt with by simply deleting clause 14. This would appear to avoid both any need for an express exemption in the terms proposed by ARA to deal with NSW CityRail concerns, and any risks of excluding obligations to provide access to unique features that might be provided on an upper or lower deck of double deck stock in future (such as sleeping or dining facilities as is the case on some trains overseas).

As indicated above by reference to clause 2.6 it appears appropriate to grant an exemption confirming that stair access is acceptable for access to upper and lower decks of double deck carriages on condition that access to unique facilities is assured.

14.3 Stairs - Compliance with Australian Standards - conveyances

Recommendation: Approve exemption subject to conditions that direct assistance is provided for access via external stairs and report during exemption period on measures taken to ensure effectiveness of access including staff training and passenger information.

ARA proposed removing the current requirements for stairs on conveyances to comply with the dimensions given in AS1428.1 and 1428.2, including requirements on width, and replace these with requirements on rise and slope drawn from AS1657.

ARA note that stairs on conveyances are not part of the access path (although some submissions object to this on the basis that stairs can still be an important part of the access path for ambulant people with disabilities including blind and vision impaired people) and argue that current requirements of clause 14.3 therefore unreasonably restrict ability to design carriages for maximum capacity. They note that US and UK access standards exclude internal stairs for this reason.

APTJC endorses an exemption on this point, regarding it as technically and operationally impossible to provide compliant stairs in conveyances.

Issues here are not restricted to internal stairs, given possibilities that one or more external steps combined with direct assistance might remain the means of access to some trains in some settings for some time .

ARA's proposal does include a requirement for entrance stairs to comply with AS1657 (1992) Figure 3.

One submission proposed including here an express requirement for equivalent access through assistance where external stairs are used on conveyances.

15.1 Toilets - Unisex accessible toilet - premises and infrastructure

Recommendations: approve revised proposals subject to report during exemption period on impacts and consultation

Unisex or gender specific accessible toilets

ARA initially proposed being permitted to substitute accessible facilities in male and female toilets instead of a unisex accessible toilet because of security and safety concerns and cultural concerns about unisex facilities.

As noted in submissions, the requirement for the first toilet provided to be a unisex accessible toilet was included in the Standards on universal design grounds. Some people requiring an accessible toilet also require the services of an assistant, who may be a person of the opposite gender. This situation (as well as that of parents accompanying children of the opposite gender) will not be catered for by accessible toilets located within gender specific facilities. AFDO argued that current requirements consistent with Building Code requirements should be maintained.

ARA's revised proposal accepts that unisex accessible toilets should be preferred but proposes that gender specific accessible toilets should be permitted to remain in existing premises and infrastructure if technical constraints prevent construction of unisex units.

Door closing force

ARA also proposed deletion of the requirement to comply with AS14281.1 (2001) clause 10.2.10(e) on force required to open a door due to concerns that door closing mechanisms cannot meet this requirement.

Standards on force required to open a door relate to a range of capacities of people with physical disabilities to open doors, however, rather than only to the capabilities of particular door closing technologies. If door closing mechanisms require more direct force to be applied to open a door than a reasonable range of people with disabilities can exert, discussion appears needed of alternative technologies which are being or could be applied to enable doors to be opened and closed before it could be concluded that current standards are impracticable.

APTJC opposed an exemption on this point on the basis just outlined. AFDO called for further research on specifications in this area.

One submission argued that most commercial door units do in fact meet the 20N requirement in Draft AS1428.1-200X, and that this should be the standard accordingly.

The revised proposal accepts these views and includes a 20N maximum door opening force.

15.2 Toilets - Location of accessible toilets

Recommendation: Approve revised proposal subject to reporting during exemption period on locations where co-location is not possible, impacts on passenger amenity, and management approaches including passenger information to ensure equal access

ARA proposed replacing the requirement for accessible toilets to be at the same location as other toilets with a requirement that they be in the same location or a location of equivalent convenience on the access path if possible.

ARA noted that the same location as other toilets may not be a feasible or safe location for accessible toilets in some circumstances.

APTJC agreed with ARA's proposal here. Some submissions accepted ARA's point here in principle, but wish to see stronger encouragement to co-locate accessible and other toilets if possible to minimise use of less convenient or less obvious locations.

It may be questioned however whether the words "if possible" are required, given the provision for unjustifiable hardship in the Standards.

ARA's revised proposal accepts that for new premises and infrastructure accessible toilets must be co-located with others, but still seeks their proposed modified obligation in relation to existing premises and infrastructure, with an added note that if technically and structurally possible they should be co-located with other toilets in these cases also.

15.3 Toilets - Unisex accessible toilet - ferries and accessible rail cars

Recommendations:

• Compliant mobility aid: separate exemption does not appear required - issues dealt with by provisions on access path and proposal on 15.4 below
• Requirement for trains rather than for accessible carriages: approve revised proposal subject to condition that first toilet in any accessible car be a unisex accessible toilet.

"Compliant" mobility aid

ARA propose that current obligations be varied to require toilets to be accessible to passengers using "compliant mobility aids" rather than "wheelchairs or mobility aids".

It is not clear however that this clause, or an exemption from the existing clause 15.3, actually needs to specify what sort of mobility aid a passenger must be using to access an accessible toilet, since relevant limitations are already given by specifications of what an access path is and what an accessible toilet on a train is (including in clause 15.4 below).

Accessible toilet in each accessible rail car or each train

ARA propose that the obligation to provide accessible toilets should be applied to each train rather than to each accessible rail car. ARA's revised proposal adds a note indicating that where possible an accessible toilet must be provided on an access path from each allocated space or accessible seat or berth, or else equivalent access provided.

It is not clear that this provision would differ substantially from existing obligations other than in emphasis. If (as appears to be the case for toilet equipped NSW suburban cars) toilets are provided in an adjacent carriage on an access path from allocated spaces in the adjoining carriage, this would appear to provide reasonably closely equivalent access to provision of a toilet in the same car. Granting an exemption to confirm this could however be appropriate to remove doubt, if made subject to other conditions promoting access, in particular that proposed by submissions that (consistent with proposed building standards) the first toilet in any accessible car should be a unisex accessible toilet.

15.4 Toilets - Requirements for accessible toilets - ferries and accessible rail cars

Recommendation: Approve exemption where compliance not possible (narrow gauge and standard gauge stock) subject to a requirement to report during exemption period on implementation and consultation; seek further information on whether exemption should be extended to all carriages.

ARA propose an exemption from requirements for accessible toilets to meet the specifications in AS1428.1 (2001), on the basis that compliance with these requirements is not possible given rollingstock dimensions and requirements for adjacent access path. They propose replacing an obligation to meet these requirements with performance based requirements for passengers using mobility aids to be able to enter and use the toilet.

APTJC accepted this proposal in principle subject to consultation on acceptable dimensions.

Some submissions argued that it is not impossible, only difficult, to comply, and that any instances of impossibility should require more specific exemption in particular circumstances, or justification case by case on unjustifiable hardship grounds. Other submissions distinguish in this respect between new and existing conveyances.

If, as appears to be the case, compliance with current specifications is impracticable in most rail conveyances, it would be preferable to replace these specifications with performance requirements that operators can be expected to comply with, rather than leaving these performance requirements to be inferred by passengers, operators and (in the event of disputes) the courts after the event, from a combination of current specifications and the unjustifiable hardship clause which requires compliance to the extent possible.

One submission refers to recent ferry toilets as fully meeting Australian Standards and argues that if one mode can meet specifications in full, other modes which cannot should have to rely on unjustifiable hardship. This however appears to overlook that (1) the present matter is concerned with obligations for rail and not for other modes (2) the Disability Standards do provide different specifications in some respects for different modes in view of different constraints; and

(3) an approach which requires treating an entire mode of transport as an "exceptional case" so as to be appropriate for the application of the unjustifiable hardship defence both strains language as a matter of interpretation, and invites such broad application of the unjustifiable hardship defence as potentially to undermine the effectiveness of the Standards much more generally in providing certainty of rights and obligations.

Submissions note that figures and specifications used by ARA may soon be outdated by revision of Australian Standards in this area. Some submissions here and on other issues argue that it would be preferable to update Australian Standards for all conveyances rather than develop rail specific specifications.

Discussions at the forum on 6 April 2006 appeared to indicate that

• compliance with AS1428.1 specifications is not only difficult but unachievable in narrow rail gauge (1067mm) and standard rail track gauge (1435mm) settings in Australia
• compliance with these specifications is possible in broad rail gauge (1600mm) environments, but provision of unobstructed space to these dimensions may present hazards in a moving vehicle for passengers needing to be able to reach handrails etc for support.

16.2 Compliance with AS2899.1 (1986)

Recommendation: Refuse exemption: Not an independent point of exemption

ARA proposes expanding the list of illustrations and symbols to be used if applicable from referring to AS2899.1 to also include AS1742.1-2003 on traffic control and ISO 7001:1990 on public information symbols, which cover a wider range of symbols including pictograms.

This appears intended to expand rather than diminishing operator obligations to provide accessible and useable information. However AFDO while expressing appreciation of this intent indicate concern that proposals in relation to 16.2 and 16.3 could diminish access for passengers who are blind or vision impaired.

APTJC oppose this proposal on the basis that it extends the requirements of the Transport Standards.

There is no reason under the DDA why an applicant for exemption cannot agree to take on additional obligations in some areas, to set against limitations on obligations in others, and HREOC's policy on exemptions in fact encourages applicants to provide information on any respects in which they are able to do this. However, if considered in isolation this point does not constitute an independent point of exemption.

16.3 Symbols - Accessibility symbols to incorporate directional arrows

Recommendation: Not an independent point of exemption

ARA propose changes to this requirement to reflect changes to 16.2 requiring more strongly the use of applicable pictograms.

APTJC disagree with this proposal on the basis of their general position that editing and referencing issues should be dealt with instead in the 5 year review of the Standards.

Preliminary view: as for 16.2

16.5 Symbols - Accessibility symbol to be visible on accessible doors

Recommendation:Grant exemption

ARA propose deleting trains from the conveyances covered by this requirement on the basis that a door may not be able to be reliably labelled as accessible unless it will align with an accessible boarding point. This will depend on a carriage's position in the train which may vary from one day to the next. They also propose deleting the requirement for internal signage on the basis that once passengers have boarded they will know where the accessible door is.

APTJC disagree with this proposal.

As noted by some submissions, this change and those following are linked with ARA's proposals regarding accessible boarding points. However, some submissions which accept ARA's proposals regarding boarding points nonetheless support continued requirements for access signage on carriages where there is an allocated space - apparently to inform passengers who do not require operator assistance or a boarding ramp that the carriage is accessible in relation to allocated space and other features. Against this, there may be issues of passengers being misled by provision of an access symbol into thinking that each car so marked provides accessible boarding in accordance with the Standards.

17.4 Signs - Destination signs to be visible from boarding point

Recommendation: Reject exemption: depends on decision regarding nominated boarding point proposal which is recommended against at this point

ARA proposes that the obligation should be for signs to be visible from a nominated boarding point rather than from boarding points in general. AFDO express concerns that this would in effect require people with sensory impairments to wait and board at the nominated boarding point, with particularly undesirable consequences given limited seating and the correlation between ageing and sensory impairment. It is not clear that this would in fact be the effect of an exemption on this point, noting that in practice signs may not be visible to other passengers either along the full length of some platforms . Equally, however, a refusal of an exemption does not amount to a determination that destination signs must be placed along the full length of a platform - since in many situations more limited placement might be justified on the basis of equivalent access and/or unjustifiable hardship.

APTJC indicate disagreement with this proposal on the basis of lack of agreement on the nominated boarding point approach.

17.5 Signs - Electronic notices

Recommendation: Grant exemption subject to report on consultation experience during exemption period

ARA propose replacing the requirement to display electronic notices "for at least 10 seconds" with a requirement to display "for the maximum time period operationally possible" due to a concern that 10 second display is not achievable in view of requirements to convey a large amount of information during short periods when trains are at stations.

Submissions objected that 10 seconds is the minimum required for passengers. One submission accepted that constraints may apply in busy situations but proposes that the exemption reflect this by only applying above a stated frequency of service.

APTJC endorse ARA's proposal subject to consultation.

17.6 Signs - Raised lettering or symbols or use of Braille

Recommendations: Approve exemption for conveyances; defer decision regarding infrastructure

ARA proposed reduction of the 0.8mm height specification for raised lettering to 0.6mm in the interests of requirements for vandal proofing and design constraints. They indicate that RBS (now Vision Australia ) agrees with this specification.

APTJC have agreed with this proposal for conveyances but not for infrastructure.

Submissions indicated concerns about departing from specifications given in other technical documents in this area, noting that placement of braille and tactile signage is in any event optional in difficult locations but that where it is mandated by building codes it should comply with technical standards. AFDO propose alignment of rail obligations with those in the draft Premises Standard, indicating that these were developed by the Australian Braille Authority and Blind Citizens Australia as the peak technical and representative bodies.

ARA's revised proposal seeks the reduction to 0.6mm for conveyances but adopts a range from 1.0 to 1.5mm for premises and infrastructure in line with building code requirements.

Recommendations: Approve exemption for conveyances; defer decision regarding infrastructure - further discussion of proposed specifications required including by reference to development of Premises Standard.

18.1 Tactile ground surface indicators -Location

Recommendation: Approve exemption subject to conditions requiring report on experience and consultation during exemption period

ARA propose to replace existing obligations with obligations based on wording from AS1428.4: 2002 Appendix B, which provides for architectural solutions or alternative way finding aids as alternatives to TGSIs in order to avoid over use and unnecessary barriers to people with mobility impairments.

AFDO endorse the use of alternatives to TGSIs to warn of hazards and provide direction although believing that the existing Standards provide appropriately for this.

APTJC argued that there is insufficient evidence to support a claim for exemption on this point. Some submissions expressed concern that reference to "valid architectural solutions" may be too uncertain. Other disability community submissions however endorsed ARA's approach.

18.2 Tactile ground surface indicators - Style and dimensions

Recommendations: Approve exemption from TGSI requirement on conveyances. Defer decision for further discussion of appropriateness of reference to limitations and constraints regarding infrastructure

ARA propose to restate this obligation, including through provision of a diagram, so that reference to another document is not required. They also propose removal of application of this requirement to conveyances, on the basis that requirements for TGSIs in conveyances were intended to be removed in the 2004 amendments to the Standards but clause 18.2 was missed in this process; and to provide for situations where the tolerances specified cannot be met.

APTJC indicate agreement regarding conveyances although also indicating a general preference for editing issues to be left to the 5 year review of the Standards.

Submissions query the constraint raised regarding curved platforms. One submission accepts this constraint but proposes language to ensure that any departure from standards is minimised:

It may clarify the intent of Part 18.2(2) if the curved platform scenario is mentioned: "Where the tolerance between the truncated cones cannot be met, such as when TGSI tiles must be cut to allow their close abutment on a curved platform or kerb-side, it shall be minimised."

ARA's revised proposal accepts this redrafting.

18.4 Tactile ground surface indicators - Instalment at railway stations

Recommendation: Decline exemption as unnecessary as an independent point of exemption.

ARA propose that obligations here should be restated in terms not requiring reference to Australian Standards, and that TGSIs should not be required where alternative hazard barriers are in place (e.g. where a platform edge is fenced off.) Some submissions express a preference for continued reference to AS1428.4. APTJC argue that alternative hazard barriers, such as fences, walls or architectural solutions are also tactile indicators and already provide a permissible alternative to TGSIs.

It is not clear how far an exemption here could be properly granted purely to confirm or clarify, rather than to vary, the extent of an obligation.

19.1 Alarms - Emergency warning systems

Recommendation: Not an independent point of exemption

ARA propose to amend the obligation in this area so that it refers to "people with a disability" rather than people with a vision impairment being able to locate emergency exits.

This is consistent with ARA's proposals for greater stress on provision of pictogram and symbolic information but does not appear to diminish any obligations towards people with vision impairments. Some submissions however raise concerns about a possible need for further specification of how emergency information should be conveyed. AFDO endorse the broadening of reference here to all people with disabilities but seek particular emphasis on blind and vision impaired people. ARA's revised proposal adds a note emphasising needs in this area.

APTJC oppose this proposal on the basis that it extends the requirements of the Transport Standards.

There is no reason under the DDA why an applicant for exemption cannot agree to take on additional obligations in some areas to set against limitations on obligations in others, and HREOC's policy on exemptions in fact encourages applicants to provide information on any respects in which they are able to do this. However, considered as an independent point rather than as part of a more comprehensive code it is not clear that this proposal involves an exemption.

20.1 Lighting - Illumination levels- premises and infrastructure

Recommendation: Grant exemption

ARA propose that the obligation for lighting levels at railway stations should be in terms of compliance with a table of lighting levels expressly set out, consistent in most cases with AS1428.2, but with levels for the platform at enclosed stations and covered areas at open stations being drawn from AS1680.2.1, and for open platforms being the much lower level of lighting drawn from AS1158.3.1 (but with higher lighting consistent with AS1428.2 at points such as timetable displays, telephones and ticket machines. )

ARA have referred to difficulties arising in delivering high levels of illumination along the whole length of open platforms; lack of need for this on safety or access grounds if enhanced lighting levels are provided where required; safety concerns for drivers coming from darkness immediately into bright light; and impacts on amenity of neighbouring properties.

Some submissions including APTJC indicated agreement with these proposals although calling for further consultation and reassessment at the point of the 5 year review.

ARA have referred to the fact that lighting is an issue on which full compliance is required by the first 5 year point, and the consequent need for works to be conducted now, as a particular reason for seeking an exemption on this point.

In view of the reasons for exemption on this point presented by ARA and the discussion of those reasons in submissions, including endorsement by APTJC, it appears appropriate to grant an exemption from clause 20.1 in the terms proposed by ARA, for a period of 5 years, on the condition for each operator that the lighting levels set out are met in full by 31 December 2007 (the compliance point set by the Standards. An operator not fully meeting the modified obligations in this area by that date would lose the benefit of the exemption and would need to demonstrate unjustifiable hardship in responding to any complaints made under the provisions of the Standards, which would in that event continue to define the operator's obligations.

Such an exemption would be displaced by remaking of the Standards, whether amended or unchanged on this point. In that event ARA members would need to bring their facilities into compliance with the Standards, subject to their continuing capacity to raise and seek to make out the defence of unjustifiable hardship.

21.1 Controls - Compliance with Australian Standard - premises and infrastructure

Recommendation: Exemption as for 15.1

ARA proposed removing the requirement for door closers to comply with the force criteria in AS1428.1 (2001) clause 11 on the basis that no door closers available comply with this clause.

APTJC regard this and other items under clause 21 as an editing and referencing issue better dealt with in the 5 year review of the Standards.

As indicated above submissions questioned whether this point justifies the change proposed by ARA or whether alternative technologies for controlling doors are required to be used as a result. Submissions emphasised the importance of independent operation of doors. AFDO indicated however that a change from the current requirement is accepted. As noted above one submission indicates that doors can comply with the 20 N force specified in Draft AS1428.1-200X, and that this should replace the current specification.

ARA's revised proposal accepts this point.

Issues on this point are discussed above under 15.1

21.2 Controls - Passenger-operated devices for opening and closing doors

Recommendation: Further discussion required of safety issues and of need for exemption

ARA propose exempting emergency door controls from the requirement to comply with AS1428.2 (1992) clauses 23.2 and 23.3, on the basis that these controls need to require more force to avoid inadvertent use or vandalism.

Some submissions including AFDO indicate that ARA's proposal here is acceptable only if emergency controls are operable only by staff and not by passengers, or if it can be guaranteed that staff assistance will always be provided as a form of equivalent access for passengers unable to operate these controls. ARA's revised proposal adds a note confirming that if emergency door controls do not meet the access specifications direct assistance may be provided.

21.3 Controls - Location of passenger-operated controls for opening and locking doors

Recommendation: Further discussion needed to confirm how access would remain possible for people needing to approach controls side on

ARA proposes to vary obligations in this area to permit door controls to be placed closer than 500mm from an internal corner so long as they remain accessible to a person using a "compliant mobility aid".

One submission proposed splitting obligations here to deal separately with internal controls which do not suffer from floor level variation constraints referred to by ARA and external controls which do due to varying relative platform heights, and proposed additional words to be inserted to make clear that sufficient circulation space is required to ensure access to controls.

ARA's revised proposal accepts these changes.

Discussion appears needed to confirm that such a change will not prevent access by people needing to approach controls side on due to limited reach.

22.1 Furniture and fitments - Tables, benches, counters, etc

Recommendation: further discussion required

ARA propose to replace existing obligations for tables, benches, counters and similar fixtures to comply with AS1428.2, with obligations for

• At least one ticket counter to be suitable for passengers using mobility aids; and
• Tables provided for designated wheelchair locations on booked services to be suitable for passengers using mobility aids as indicated in ARA's proposed figure 1X-X.

APTJC regard this as an editing and referencing issue better dealt with in the 5 year review of the Standards.

One submission, while agreeing with ARA that specific reference to ticket counters is needed, argues that a point of reference is necessary to indicate what height is suitable for a person using a mobility aid, and suggests maintaining reference to AS1428.2 Clause 24.1.1. Submissions also indicate that on the assumption that eating areas within public transport premises are covered by the Standards, there remains a need for tables, counters etc to remain covered in this clause in the terms of the current Part 22.1.

Discussion may be needed of

• whether tables are and will be only provided on booked services; and
• whether, taking into account the point made by ARA regarding design flexibility and performance requirements, the statement that a ticket counter must be suitable for passengers using mobility aids gives sufficient guidance or specificity.

22.5 Accessible sleeping berths - trains

Recommendation: further discussion required of justification and extent of possible exemption

ARA proposed that obligations in this area should be altered by

• reducing the minimum requirement from 2 berths in each set of up to 4 sleeping cars, to 1 berth in a train with sleepers but 2 berths if more than 1 car has sleepers; and
• removing the requirement for accessible berths in each class (on the basis that an accessible berth is a unique design and larger than a standard class berth in any case).

ARA referred to statistics indicating people requiring accessible berths as less than 1% of the population to support their view that the proposed revised allocations are sufficient, and draw comparisons with allocations in buildings.

Review of requirements for accessible accommodation in hotels etc in the current review of building standards has taken into account similar statistics, but also the need to over-provide compared to the average in smaller facilities - since larger samples of the population are more likely to conform closely to averages, while smaller samples are more likely to deviate from averages .

A reduction to 1 berth if a train has a single sleeping car obviously precludes the possibility of 2 passengers who require an accessible berth travelling on the same service if, notwithstanding the statistics, two people requiring accessible berths nonetheless do wish to travel on the same service, by chance or as friends or partners. Submissions express particular concern in this respect.

The proposed access to premises standards allocate 1 accessible room for hotels/motels providing 1-10 rooms; 2 for those providing 11-40; 3 for those providing 41-60 and 4 for those providing 61-80.

Reference to these figures is not to say that they are directly transferable. Given design constraints applying in a rail vehicle there might be reasons to justify reductions below levels of accessible accommodation required in buildings.

A single sleeping car accommodating perhaps 18 passengers may do so in 10 or fewer "rooms" or compartments and thus be compared with the smallest hotels, required to provide only 1 accessible room.

Further discussion may be required of whether together with a minimum allocation of independently accessible facilities, additional accessible facilities can be provided with assisted access (with assistance from operators and/or passenger provided assistance).

Submissions including APTJC rejected the proposals as diminishing existing rights and lacking sufficient justification and refer to future increases in numbers of people with disabilities in view of Australia 's ageing population .

ARA's revised proposal seeks to vary the requirements stated in the Standards only for existing conveyances and maintain the levels of provision of accessible berths currently required by the Standards for new trains.

Preliminary view: Further discussion is required. It is not clear why, if ARA are right about usage, they should not have the benefit of less demanding requirements for all trains, new and existing; or, if they are wrong, why they should have lower requirements for any trains at all, including existing trains.

23.1 Street furniture - Seats

Recommendation: not an independent point of exemption

ARA's proposal here sets out specifications and diagrams rather than requiring reference to Australian Standards. AFDO indicate acceptance of this proposal. APTJC regard this however as an editing and referencing issue better dealt with in the 5 year review of the Standards.

24.1 Gateways - Gateways and checkouts

Recommendation: Defer decision - further technical discussion required before HREOC could be satisfied an exemption was appropriate

ARA's proposal here sets out specifications and diagrams rather than requiring reference to Australian Standards.

In addition to their general position that editing and referencing issues, and issues which also arise for other modes, should be deferred to the 5 year review of the Standards (on which comments above under "General Issues" should be noted), APTJC raise concerns that the proposed changes would disadvantage passengers with disabilities.

Discussion may be needed to ensure that the proposed specifications for height of swipe card readers are appropriate, as well as those for coin operation (based on those for vending machines and phones). Some submissions argue that there is a need for research to check this point. Some submissions endorse ARA's proposal in principle on card readers but add a specification of 900- 1100mm as the permitted range. ARA's revised proposal accepts this change.

On other controls submissions disagree with ARA's selection of specifications and recommend use of clause 28 of AS1428.2 as more directly relevant.

One submission notes that passes issued for free travel for blind passengers do not work to activate electronic gates thus preventing independent access. Discussion may be appropriate of whether progress towards independent access in this area might be made during the period of an exemption.

Recommendation: defer decision: further discussion needed of whether specifications provided are appropriate.

25.3 Payment of fares - Vending machines

Recommendation: Defer decision: Exemption in principle should be approved but requires identification of appropriate conditions for equivalent access

ARA propose that obligations here should include the word "ticket" to clarify that obligations apply only to ticket machines, not drink and food machines - on the basis that although sited on railway property these are not owned by rail operators.

ARA's proposal sets height, operating force and lighting requirements in accordance with AS1428.2 but omits requirement for tactile and Braille lettering on the basis that the large numbers of destinations required would not fit on machine with these

APTJC agree in principle with this proposal but recommend redrafting after further discussion.

Discussion may be needed in particular of possible commitment to provide or at least pursue other means of ensuring access for vision impaired people e.g. audio output on touchscreen machines (comparable to developments with other interactive devices such as ATMs).

One submission emphasises barriers to vision impaired people in using touch screens. This submission notes that Braille on vending machines is not required rather than a tactile and visually contrasting surface for controls. AFDO argues that ARA's proposals would diminish access for blind or vision impaired people.

25.4 Payment of fares - Circulation space in front of vending machine

Recommendation: Further discussion required to confirm whether any exemption from existing obligations proposed here rather than editing change only

ARA propose that obligations here should be defined not by reference to Australian Standards but by reference to ARA's proposed revised clause 3.1. AFDO indicate acceptance of this subject to acceptance of their proposals regarding separation of new and existing facilities under clause 3.1. APTJC regard this however as an editing and referencing issue better dealt with in the 5 year review of the Standards.

26.2 Hearing augmentation - listening systems - Public address systems - conveyances

Recommendation: Grant exemption subject to conditions requiring consultation and report within 12 months on equivalent access measures

ARA propose replacement of the obligation in this area under the Standards, to provide hearing augmentation complying with AS1428.2 (1992) clause 21.1, with a performance requirement to ensure that people with hearing impairments can receive a message equivalent to that received by other passengers. This proposal is put on the basis that testing by operators shows that Australian Standards for hearing augmentation cannot be met in railway carriages due to interference from motors and other equipment.

APTJC agree with an exemption on this point, regarding ARA's case here as strong and well-researched.

Some disability community submissions also expressed agreement with ARA views on constraints but ask for clarification and consultation on what will be regarded as equivalent access. AFDO emphasised that summary captioning will not provide equivalent access if it fails to contain all essential information provided to other passengers.

An exemption in this area appears justified, subject to conditions on an exemption requiring consultation and a report back to HREOC on equivalent access measures as a means of advancing identification and implementation of effective measures in this area.

27.1 Information - Access to information about transport services

Recommendation: Reject exemption on this point - not shown to be justified

ARA's proposal here extracts material from the Guidelines regarding expectations of passengers and seeks to clarify the ambit of information covered.

APTJC regard this proposal as unnecessary on the basis that it simply adds material from the guidelines. As noted above under "General issues" however, material in the guidelines does not have the same legal status as material in the Standards or in conditions on an exemption.

AFDO object to the requirement for passengers to have basic literacy in English. While this expectation is included in the Guidelines it might need to be considered whether it is consistent with other obligations in relation to information (including use of pictograms etc as accepted by ARA) to give this expectation stronger effect through an exemption on this point.

27.2 Direct assistance to be provided

Recommendation: Approve exemption subject to requiring consultation on equivalent access measures and report on experience during exemption period.

ARA's proposal here imports material from the guidelines on availability of information in all formats, and proposes a change from requiring direct assistance if a passenger's preferred format not available, to requiring equivalent access more generally (which might take the form of direct assistance or other measures).

APTJC regard this proposal as unnecessary on the basis that it simply adds material from the guidelines. As noted above under "General issues" however, material in the guidelines does not have the same legal status as material in the Standards or in conditions on an exemption.

Submissions argue that the Standards require the method of equivalent access here to be direct assistance. This does not appear to be the correct interpretation since the equivalent access clause applies to all obligations including this one.

One submission endorses the ARA proposal but seeks addition of a specification that information available only from particular outlets or locations will be available in a timely manner. ARA's revised proposal adds a note to this effect.

27.3 Information - Size and format of printing

Recommendation: Grant exemption subject to report on consultation and experience during exemption period

ARA propose that the obligation for print to be black on white to be altered to provide more flexibility but require colour contrast.

Some submissions oppose change from the requirement for black on white. Other submissions endorse ARA's proposal for flexibility but call for supporting material or further specifications on acceptable combinations for optimal contrast. ARA's revised proposal adds references on this issue.

APTJC endorse proposed changes under 27.3.1, but not 27.3.2 - on the basis that there remain divergent views on best practice in achieving contrast. It is not clear however that this is an argument against rather than for the proposal for a temporary exemption on this point. The divergent views referred to may be seen as resulting in the uncertainty for operators which the exemption seeks to rectify. An exemption subject to a requirement to consult and report offers a means of reducing that uncertainty while advancing access. It may be noted that it is possible to place a condition to consult and report on the grant, but not the refusal, of an exemption.

27.4 Information - Access to information about location

Recommendation: Refuse exemption as unnecessary

ARA propose adding "essential" to information required to be provided and to add reference to equivalent access.

APTJC indicated concern about operators determining what information is essential. ARA's revised proposal specifies announcements of next stop, safety related announcements and unscheduled changes of service as essential. It may be noted that this is in fact broader than the current obligation which refers only to information on whereabouts during the journey. Such a change might be appropriate in a revision of the Standards or in an industry code but it is not clear that it constitutes an independent point of exemption.

28.1 Booked services - Notice of requirement for accessible travel;

28.2 Booked services - Period of notice of requirement for accessible travel

Recommendations:

• Grant exemption to allow requiring reasonable notice for accessible travel or assistance
• Further discussion required on exemption in relation to provision of assistance transferring to seats on booked services

ARA proposed replacing obligations under these two clauses - which together provide that an operator may require advance notice of a requirement for accessible travel on booked services, but that this "must not exceed the period of notice specified for other passengers" - with an exemption having the effect that operators may require reasonable advance notice and that passengers requiring assistance or having special requirements may be required to notify operators of these when they book.

ARA also proposed that operator obligations be qualified by an obligation on passengers who require assistance transferring from a mobility aid to a seat, or with feeding, hygiene, medication or assembly and operation of disability aids to book and travel with a carer.

It is difficult to ascertain what if anything the current provision in clause 28.2 means: that is, what issues other passengers not having requirements for accessible travel or assistance would be giving notice of , so as to provide a point of comparison with notice requirements for accessible travel.

APTJC have indicated agreement with the proposal to provide an exemption in relation to 28.2 although they also queried APTJC's proposed replacement obligation.

Although ARA's proposal numbered 28.1(2) on passengers requiring assistance is extracted from the existing Guidelines, it may be questioned why different forms of requirement for notice should apply proposed for accessible travel and for assistance - reasonable advance notice for one, and a fixed point of notice when booking for the other. In some circumstances some passengers might book 15 minutes before departure, and yet require forms of assistance which it would be reasonable to require more notice of than this. In other circumstances, it might be reasonable for the assistance required to be provided on minimal notice, despite a compulsory advance booking period (for example if a passenger who has had to book a week or more in advance temporarily acquires a disability on the day of travel which requires some readily provided assistance).

One submission argues that this clause should specify what a reasonable notice period should be. It is not clear that such an all purpose period can be specified however.

It appears appropriate to grant an exemption permitting requirements to provide reasonable notice, subject to reporting by ARA members on application and impact of these requirements.

Further discussion appears required of the limits of operator responsibilities for assistance to passengers, in particular in relation to transferring to and from seats, and whether and why rail operator responsibilities in this area ought to be less than those applying to airlines. It is recommended that a decision on this point be deferred pending such discussion.

Submissions argue that operators should fit additional seats in allocated spaces when not required for accessible travel, rather than limiting allocated spaces and contemplating removing seats to provide extra spaces. Further discussion appears needed of whether this approach provides a practical solution.

28.3 Booked services - Location of carers, assistants and service animals

Recommendation: Not necessary -request for exemption not persisted with

ARA proposed, but no longer seek, a change here in reference from "service animal" to "assistance dog" . Issues in this respect have been discussed above in relation to proposed clause 1.11AX.

29.1 Food and drink services - Equal access to food and drink services

Recommendation : Refuse exemption as unnecessary

ARA seek provisions in this area to make clear that operators are not responsible under the Standards for accessibility of food and drink retail outlets within their premises.

It is not clear whether this would involve any substantive change in responsibility in relation to retail services. Some submissions including APTJC argue that leased concessions on railway premises should be within the operator's obligations, since an operator can exercise control through lease or contract conditions. However, it is not clear that these concessions are "provided as part of a public transport service" by reason only that they are provided on transport provider premises.

The position is clearly different regarding food and drink service provided as part of the ticket price, or by the operator itself even for an additional fee, but ARA do not seek exemption regarding these - except if there are or may be any such services on unbooked train services.

Other submissions including AFDO agree with ARA's approach in principle but recommend a different approach in detail, such as "Operators and providers must ensure that any food or drink that that they or their contractors provide, whether for payment or not, as a service to all passengers as part of a public transport service is equally available to all passengers."

ARA's revised proposal adds notes indicating that vending machines on railway premises may not be part of the public transport service; and that catering by operators or providers should afford at least equivalent access.

Recommendation: an exemption should be rejected on the basis that it is not required.

30.1 Belongings - Disability aids and mobility aids to be in addition to baggage allowance

Recommendation: Defer decision: exemption justified in principle but further discussion required of specification of size limits and of limits of assistance in stowing

ARA propose some limitations on obligations in this area:

• Disability aids which will be transported in luggage compartment to comply with operator's size limitations for passenger luggage (proposed 30.1(3))
• Only disability aids complying with proposed part 1X may be carried on public transport conveyances (31.1(4))
• Operators not required to carry mobility aids as additional luggage where allocated space for mobility aids is provided and all allocated spaces are already booked (30.1(5))
• Operators not responsible for assembly, disassembly or operation of mobility aids (30.1(6)).

APTJC disagreed with this proposal and recommended that it should instead be considered during the 5-Year Review of the Transport Standards, arguing that (1) this is an issue which affects all modes of public transport, and (2) it is unnecessary to include content from the Transport Standards Guidelines in the Transport Standards.

Neither of these arguments, as discussed above, exclude the need for consideration of the particular exemption sought.

In relation to 30.1(3) some submissions argue that there is and should be no size limit on mobility aids. As discussed earlier in these notes, these views do not appear soundly based - because of the need to ensure that aids can be manoeuvred through spaces defined in other parts of the Standards. However, it needs to be discussed whether reference to "reasonable" size limitations would be appropriate and sufficiently clear, as it is not clear that HREOC should simply endorse whatever size limitations an operator decides on from time to time.

In relation to 30.1(4), as noted in discussion above of clause 1.19AX it might be more appropriate to state limitations more specifically: that is, that a mobility aid not fitting within the allocated space need not be accommodated there, while a mobility aid not fitting within reasonably available luggage space need not be accommodated there either. One submission raises an objection in relation to this clause to the dimensions of the allocated space being adopted as an all purpose limitation on size of mobility aids able to be accommodated on public transport. It may be noted in this context that some long distance services may have luggage vans able to accommodate quite large scooters, while other services might have, and reasonably have, much more restricted space.

In relation to 30.1(5), ARA's reasons on this point deal with oversized mobility aids, but the proposed revised obligations apply to all mobility aids and would appear in effect to require passengers on long distance services to remain in their wheelchairs rather than transferring to fixed seats if preferred. It is not at all clear that this would be a reasonable result if any facilities for stowage can reasonably be made available.

In relation to proposed clause 30.1(6) as noted by several submissions it is not made clear what assistance may be expected from operators in folding and stowing and retrieving wheelchairs.

An exemption may be justified in principle but further discussion appears required of drafting in relation to reasonableness of size limits and in relation to assistance in stowing and retrieving.

31 Priority - Priority seating

Recommendation: Grant exemption

ARA propose a provision in this area stating that operators may determine orientation and location of priority seats.

AFDO and some other submissions indicated acceptance of this proposal (subject in AFDO's case to the point that priority seats should offer equality of amenity including on issues such as view). APTJC disagreed with this proposal but regarded it as making no net change to the existing position. Some submissions noted that the guidelines indicate that priority seats may be expected to be near the entrance.

An exemption on this point would appear to afford operators greater certainty of the lawfulness of acting in accordance with the Guidelines while not diminishing any substantial rights.