Recommendation for granting of temporary exemption under the DDA: Airport Direct

This is a recommendation that the Commission grant an application for temporary exemption under the Disability Discrimination Act (DDA) regarding a public transport service known as Airport Direct.

Application

The Human Rights and Equal Opportunity Commission has received an application from Mr D.Williams, trading as Airport Direct, for a temporary exemption under section 55 of the Disability Discrimination Act (DDA) from relevant provisions of the Disability Standards for Accessible Public Transport (DSAPT) and the DDA to permit deferral of provision of wheelchair access on a public transport service known as Airport Direct operating from Shepparton to Melbourne.

This application follows an earlier application regarding the same service. The applicant there sought exemption from the effect of the DSAPT and the DDA insofar as they would require immediate wheelchair access to a newly acquired HiAce vehicle, for a period of 18months, on the basis that after 18months an additional larger vehicle would be acquired which does provide access although the original inaccessible vehicle would remain in operation.

That application was rejected by the Commission on 15 February 2006 on the basis that, in effect, it simply sought certification that provision of access in accordance with the specification by the DSAPT that new vehicles should be accessible would involve unjustifiable hardship on financial grounds, and, while the applicant might well be able to succeed in such a claim, this was more appropriately raised in defence to possible complaints.

The Commission's decision emphasised that a decision to refuse an exemption did not involve a decision that the operation of the service as proposed by Mr Williams would be unlawful.

The revised application now submitted differs from the initial application in several respects:

• Mr Williams seeks relief from potential liability pending replacement of the inaccessible vehicle, rather than permission to continue operating it into the future;
• Additional details are provided of technical proposals and financial quotes now obtained for modification of the inaccessible vehicle, together with confirmation of finance being sought, but refused, to enable these modifications to be made;
• The application includes commitment to procedures to provide transport for passengers unable to use the current vehicle pending provision of an accessible vehicle.

Public and APTJC consultation

In accordance with the Commission's policy on exemption applications under the DDA, a notice of inquiry and call for submissions was issued to give interested parties an opportunity to comment. No public comments were received.

Views were also sought from the Accessible Public Transport Jurisdictional Committee (APTJC), consultation with which is required in relation to exemption applications affecting the DSAPT.

APTJC's advice was as follows:

The Accessible Public Transport Jurisdictional Committee (APTJC) has considered the resubmission from Mr Daniel Williams, trading as Airport Direct, for a temporary exemption from the Disability Standards for Accessible Public Transport 2002 (Transport Standards).

APTJC considers that a temporary exemption to 30 March 2007 should be granted to Mr Williams who, contrary to his earlier submission, has now provided detailed information on:

•  the financial hardship incurred to comply with the Transport Standards; and

•  the commitment to remove the current vehicle from the service and replace it with a vehicle compliant with the Transport Standards by 30 March 2007.

Mr Williams also details the alternative means of access and direct assistance to be offered to people with disabilities during the temporary exemption period. As these interim arrangements have not yet been tested it will be incumbent on Mr Williams to monitor and actively ensure that the alternative services offered actually meet the needs of clients with disabilities through consultation with individual passengers about their specific needs when they request transport assistance.

Discussion

As with the previous application, it is not possible to state definitely that Airport Direct would be in breach of the Standards unless an exemption were granted : since the compliance targets and technical specifications of the Standards are subject to an unjustifiable hardship defence. The Commission has not been prepared (and in my view should not be prepared) to grant exemptions purely to certify unjustifiable hardship. It has however been prepared (and in my view should be prepared) to grant exemptions where there is an arguable case of discrimination, but also a reasonably arguable case of unjustifiable hardship, and where granting an exemption on appropriate conditions would promote the objects of the DDA. In my view as indicated by APTJC advice this is such a case.

Recommendation

I recommend that the Commission accept APTJC advice in this matter, and grant an exemption until 31 March 2007 in relation to the DSAPT and sections 23 and 24 of the DDA, to the extent that they might require replacement or modification of Airport Direct's current vehicle before that time; on condition that Airport Direct implement the measures for provision of alternative access proposed in its application, in consultation with any passengers requiring such access.

David Mason

Director Disability rights policy HREOC

20 November 2006