Application for temporary exemption: "La La Land" Byron Bay

The Human Rights and Equal Opportunity Commission has received an application under section 55 of the Disability Discrimination Act for a temporary exemption regarding "La La Land Byron Bay", a restaurant and bar located in upstairs premises at Byron Bay NSW.

The application seeks an exemption from those provisions of the DDA which would require disability access to the premises, for a period of one year. The applicants indicate their preparedness to provide disability access within a period of 12 months from the point when the Council responsible grants a certificate of occupancy.

The application is stated to be made on the basis of financial constraints - that is, the limits of bank finance immediately available for renovations including provision of disability access.

The application notes that local government has granted a development application for change of use to a nightclub and that conditions on this approval will in any event require provision of disability access.

Call for submissions

In accordance with the Commission's policy on exemption applications under the DDA, a notice of inquiry was published on the Commission' web site on 11 March 2005 seeking submissions by 22 April. No submissions were received. However, the application was accompanied by correspondence with the local disability access committee supporting a 12 month exemption in this matter.

Discussion of issues

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; but
• 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.

In this instance, unlike a number of other recent applications, the application is made not as a precondition of or in substitution for the responsible local government body making its own decision, since local authority approval has already been obtained.

The commitment indicated by the applicants to implementing disability access within 12 months means that this is not an instance where the Commission is being asked to use the temporary exemption power to certify indefinitely and by administrative decision that a potential unjustifiable hardship defence has been made out.

The purpose of this application is thus restricted to that of dealing with potential liability under the DDA during a transitional period when access has not yet been implemented, but will be.

As with any exercise of the exemption power, approving the application as requested would involve accepting that the business may operate in a discriminatory manner for the exemption period, and in a manner which but for the exemption would be potentially unlawfully discriminatory.

In deciding whether an exemption should be granted, the Commission must of course make its own decision as to whether the exemption period requested represents a reasonable period within which access should be achieved. It appears appropriate however to give some weight in this respect to the views indicated locally by the disability access committee for the area concerned. The Commission's policy on dealing with exemption applications under the DDA lists consultation with people with disabilities as a factor relevant to the Commission's decision making.

The applicants are seeking protection for a period of 12 months from the time that a certificate of occupancy is granted. It is doubtful however whether a valid exemption under the DDA can be dated to commence contingent on a decision by another body rather than from a fixed date. It may be appropriate to incorporate a degree of flexibility in an exemption by other means, by requiring that works be commenced and substantially completed within the exemption period rather than fully completed.

Recommendation

I recommend that the applicants be granted an exemption for a period of 12 months from the operation of sections 23 and 24 of the Disability Discrimination Act to the extent that those provisions would require provision of disability access to the upper floor of their premises, on condition that work to provide such access be commenced and substantially completed within that period.

David Mason

Director Disability Rights policy

27 April 2005