Recommendation for temporary exemption: Coffs Harbour-Sydney travel and tours service (Mr G.Kinny)

Recommendation

This is a recommendation for grant of a temporary exemption under section 55 of the Disability Discrimination Act (DDA) from relevant provisions of the Disability Standards for Accessible Public Transport and from sections 23 and 24 of the DDA insofar as they would prohibit operation of a public transport and tour service with a new vehicle lacking wheelchair access, until 1 December 2007, on condition that on or before that date wheelchair access be provided by replacement or refitting of the vehicle.

Application

The Human Rights and Equal Opportunity Commission has received an application from Mr G. Kinny for a temporary exemption under section 55 of the DDA from relevant provisions of the Disability Standards for Accessible Public Transport and the DDA to permit deferral of provision of wheelchair access on a public transport and tour service.

The application includes the following statements by the applicant:

I am currently in the process of starting an adventure tour business from Sydney to Coffs Harbour departing Sydney City every Wednesday morning arriving Coffs Harbour Friday afternoon … The secondary part of my business will be a shuttle service back to Sydney three days after the drop off in Coffs Harbour. This service will run every Tuesday and is designed for the backpacker to return to Sydney. However the service will be available to any person wishing to travel.

I am purchasing a new Toyota Coaster twenty seater bus, this is because of reliability and safety which this new bus will give. Financially I have extended myself to the limit and am unable to have wheelchair access built in at this stage. I have received a quote for $20,000 which is way out of my budget. My options as I see them are not to start the business at all or purchase an older model bus which will allow funds to be spent on wheelchair access. If I purchase an older model I believe reliability and safety will be compromised. The third option is to be given more time from the Human Rights and Equal Opportunity Commission.

If given the opportunity to defer the installation of wheelchair access I make a firm commitment to the Commission that I will have wheelchair access installed by December 2007.

Submissions and further information

In accordance with Commission policy on DDA exemption applications, a notice of inquiry was published on 6 July 2004.

One submission was received by the requested date of 17 July 2004, from the Jurisdictional Committee of the Accessible Public Transport National Advisory Committee - being officers with relevant responsibilities from State, Territory and Commonwealth transport departments and with whom the Commission is required by the regulations to consult in considering exemption applications in relation to the Disability Standards for Accessible Public Transport.

That submission recommended that further information be sought from the applicant before determining this application.

Further information was sought from the applicant regarding costs of the vehicle, costs of provision of access, available financial resources, and proposed menas of providing access.

The applicant submitted the following additional information:

Initially I intended purchasing a Toyota Coaster at a cost, on the road, of $107 500. With wheelchair access this would take the cost to $127 000. The intention was to upgrade to wheel chair access within three years. The cost of $107 500 was to was funded as follows;

• $95 000 Westpac loan,
• $12 500 cash saving (with another $18 000 cash savings allocated for further equipment such as camping equipment and trailer).

Unfortunately Westpac have declined the loan, as the business is a new business with no established figures. This can be verified with a letter from Westpac if required.

My alternative is now to purchase a Mercedes Sprinter with 14 passenger seats, as St George will lead $70 000. The cost of the Sprinter on the road is $85 000. However, the cost of wheelchair access on the Sprinter through the rear door in $14 000 with an internal lift. I would lose four seats permanently reducing the seating capacity down to 10, making it an unviable option.

My intention now is to purchase a Mercedes Sprinter and run it for three years and then trade it in for a Toyota Coaster. I would then install wheel chair access at a cost excluding inflation of $19 500. This is a viable plan, as the business will be established with established figures so business borrowings will be possible along with the funds from the Mercedes sale. So the purchase of the Coaster will be possible.

Wheelchair access in the coaster will be through the rear near side door. It will have a fully automatic wheel chair operation fitted internally.

Quotes for wheelchair access and technical data have been given by Dick Jones from Accessible Transit Specialists (phone 0425289568)

I assure the Commission my intentions are in no way to by-pass wheelchair access, however just to find a way that the business can become established. I am willing to complete a statutory declaration to declare that I will have wheel chair access installed in our vehicle by December 2007.

Issues

The Disability Standards for Accessible Public Transport require staged compliance with the Standards, but require immediate compliance for new vehicles (subject to the defence of unjustifiable hardship in exceptional circumstances and to the provision for temporary exemptions to be granted by the Commission.).

Granting an exemption to permit non-compliance, or deferred compliance, with a clear and specific requirement in the Disability Standards for Accessible Public Transport - that new vehicles should be accessible although existing vehicles may be brought into compliance over time - might be argued to involve in effect inappropriately changing the Standards as negotiated between the transport and disability sectors and as approved by the Parliament.

However, as already noted the requirement for compliance by all new vehicles is subject to the defence of unjustifiable hardship.

In previous decisions the Commission has not been prepared to grant exemptions purely to certify the existence of unjustifiable hardship.

However, the Commission has been prepared to grant exemptions on condition that the applicant makes and meets commitments to provide access within a reasonable period, on the basis that to grant an exemption in such circumstances (rather than leaving an applicant to raise possible hardship defences in response to complaints if access is not provided) can be appropriate as a means of promoting achievement of the objects of the DDA.

Instead of applying for an exemption and agreeing to provide access within three years, the applicant in this matter could choose to simply acquire and operate a new inaccessible vehicle, and seek to rely on a possible defence of unjustifiable hardship in response to any complaints which might be lodged during the life of that vehicle. Instead, he in effect asks to trade the requirement for new vehicle accessibility, subject to a possible hardship defence, for a commitment to 100% compliance at the point (December 2007) where the Standards require 25% bus fleet compliance.

I do not think that the Commission should automatically grant exemptions to permit introduction of new inaccessible vehicles in exchange for an accelerated program of phased compliance compared to the targets set in the Standards. However, in this instance, in view of the particular circumstances including the evidence regarding potential hardship and the single vehicle fleet involved, it would in my view be consistent with and promote the objects of the DDA to grant an exemption as proposed

David Mason

Director Disability Rights policy

9 September 2004