Application for temporary exemption under Disability Discrimination Act section 55: Oxford Hotel, Casino

The Human Rights and Equal Opportunity Commission has received an application from BCA Check Building Surveyors for exemption under section 55 of the Disability Discrimination Act (DDA) regarding accessibility of the upper floor of the Oxford hotel, Casino.

Application

The application seeks exemption from liability under DDA section 23 (access to premises) and other applicable provisions (which would include section 24 on provision of goods, services and facilities).

The application discusses difficulties and expense in making the upper floor of this venue accessible to people with disabilities.

Issues

The application is made in the context of a development application made to Richmond Valley Council for approval of alterations to the building, including conversion of residential suites to a restaurant and bar.

The restaurant will operate on the ground and first floor in combination and the application indicates that current Building Code of Australia requirements will be complied with, including that 30% of the public space in the restaurant will be accessible, and that all services to be available on the first floor will also be available on the accessible ground floor.

The application states that the first floor is not accessible to persons with disabilities and that to provide access to the first floor would impose unjustifiable hardship, taking into account that access to the restaurant will in any event be available on the ground floor. It indicates that an access ramp would be inappropriately long and would not be practicable to fit inside or outside the building, while a lift would involve financial expenditure which could not be recovered in a small rural community.

The applicants indicate that the exemption application follows a request from the Richmond Valley Council that the applicants approach the Commission.

Proposed recommendation

I propose to recommend to the Commission that the application be refused.

The applicant's contentions may well be correct that it would involve unjustifiable hardship to provide access to the first floor, given site constraints and financial factors. These factors would be available to be argued as a possible unjustifiable hardship defence in the event of complaints.

However, in previous decisions the Commission has indicated that:

• it is not appropriate to grant exemptions purely to certify the existence of unjustifiable hardship on financial or other grounds;
• it is not an appropriate use of the Commission's power under section 55 of the DDA to substitute for the power of local government to approve or decline to approve buildings for use;
• local government bodies which consider that they are exposed to excessive uncertainty regarding potential liability under the DDA in making decisions on building access issues should themselves consider making applications for exemption; such applications might include appropriate criteria and processes for making decisions and might also be accompanied by other commitments on improving access in local communities.

In my view the same approach should be applied in this instance.

Request for submissions

In accordance with the Commission's policy, I am requesting public input on this application and on the recommendation which I propose to make, outlined above.

Submissions are requested by 14 March 2005, preferably by email to disabdis@humanrights.gov.au. Submissions may also be made by mail to Disability Rights policy unit, HREOC, GPO Box 5218, Sydney NSW 1042.

David Mason

Director Disability Rights policy

7 February 2005