Recommendation for temporary exemption: Tactile Ground Surface Indicators (Queensland Rail)

I recommend that, pursuant to an application under section 55 of the Disability Discrimination Act ("the DDA"), the Commission grant Queensland Rail a temporary exemption from sections 23 and 24 of the DDA so far as they require installation of Tactile Ground Surface Indicators.

The exemption should be for a period of 6 months and should be on condition that

• Queensland Rail consult with interested parties and report to HREOC within four months on the approach which Queensland Rail will adopt to use of TGSIs
• This consultation include requesting the chair of the Rail Modal Group of the Accessible Transport Standards Consultative Committee to convene a meeting no later than March 2002 of that group together with representatives of the National Transport Secretariat, Blind Citizens Australia, the Physical Disability Council of Australia and the relevant Standards Australia committee with a view to identifying if possible an appropriate uniform approach to use of TGSIs for rail operators nationally
• Queensland Rail agree to apply TGSIs in accordance with the outcome of these consultations to any stations upgraded by them during the period of the exemption, within a further twelve months. [I note that QR have advised that they are prepared to comply with these conditions.]

The purpose of this recommended short exemption with the conditions attached is to permit settlement of a consistent approach to installation of TGSIs and to ensure that safety issues for other travelers have been adequately dealt with.

Background

On 5 November 2001 the Human Rights and Equal Opportunity Commission received an application from Queensland Rail ("QR") for temporary exemption under section 55 of the DDA regarding installation of Tactile Ground Surface Indicators (TGSIs).

The exemption was requested until the Australian Transport Council completes its review of the draft Disability Standards for Accessible Public Transport, scheduled for September 2002. The review involves consultation with industry and disability sector representatives through an Accessible Transport Standards Consultative Committee (ATSCC) and groups established under that committee for each transport mode, including a Rail Modal Group. HREOC is represented on the Rail Modal Group and the ATSCC.

The draft Standards are not yet in force. QR applied for exemption from the existing effect of the DDA (section 23 regarding access to premises and section 24 regarding services including public transport services) so far as it concerns TGSIs.

However, HREOC has previously advised (including in its DDA Advisory Note on Public Transport, available on its web site) that the draft Standards generally reflect the existing effect of the DDA. QR have therefore framed their application to seek exemption from the provisions of the DDA so far as they have an equivalent effect to parts 18.1, 18.2, and 18.4 of the draft Standards.

These provisions are as follows.

18.1 Location

Tactile ground surface indicators must be installed on an access path to indicate stairways, ramps, changes of direction, overhead obstructions below a height of 2000 mm, and hazards within a circulation space or adjacent to a path of travel (AS1428.2 (1992) Clause 18.1, Tactile ground surface indicators).

18.2 Style and dimensions

(1) The style and dimensions of tactile ground surface indicators must comply with AS1428.4 (1992).

(2) The stated dimensions may be reduced where a conveyance design does not provide the necessary area.

[These two clauses apply to conveyances - buses, ferries, trains, trams, light rail - rather than premises or infrastructure]

18.4 Instalment at railway stations

Colour contrasted tactile indicators must be installed at the edges of railway platforms as prescribed by AS1428.4 (1992) Clause 6.7.

Draft disability standards parts 18.3 (regarding bus boarding points) and 18.5 (regarding wharves) are not covered in this temporary exemption application.

Australian Standards on TGSIs

Australian Standard 1428.4 (1992) which is referred to in the draft Accessible Public Transport Standards is a technical standard covering, amongst other things, the design and installation of TGSIs. TGSIs provide cues, which, when combined with other environmental information, assist people who are blind or who have a vision impairment with their orientation.

There are two basic types of TGSI.

Warning indicators are designed to provide information about hazards on a path of travel, for example a set of stairs or a platform edge. Warning TGSI's consist of a series of bevelled dots or domes at a height of between 4 and 5 millimetres on a strip 600 to 800 mm wide across a path of travel and set back a specified distance from the hazard.

Directional indicators are designed to provide information about changes of direction or location points on a path of travel. They may be used, for example, to assist people to locate the entrance to a building or a bus stop. Directional indicators consist of raised bevelled strips at a height of between 4 and 5 millimetres running in the direction of the path of travel.

AS 1428.4 (1992) specifies that TGSIs should be easily distinguishable from the surrounding area and requires a luminance-contrast of 30%. The luminance-contrast is a comparison of the amount of light reflected by one surface compared to the amount of light reflected by the background or surrounding surface. Often TGSIs will be a bright yellow or another colour that contrasts well with the surrounding area. AS 1428.4 (1992) also specifies that TGSIs should be made of slip resistant materials which shall not be susceptible to fading or chipping.

A revised version of this Australian Standard exists in draft form and is due to be released publicly in the first half of 2002, but at present the 1992 version remains the one referenced in the draft Accessible Public Transport Standards.

Basis for application

QR's application raised concerns regarding:

• Possible hazards for other passengers including people with other disabilities
• Ambiguity in relevant standards including difficulties of measurement of a required 30% luminance contrast

QR indicates that while it wishes to comply as fully as possible with the draft Standards and with relevant Australian Standards, it is concerned regarding issues of safety and of value for money in proceeding with TGSI installation pending clarification of how TGSI are to be applied.

QR has indicated that if the draft Standards enter into force in their present form QR intends to make a further application for exemption from the Standards pending review of the TGSI provisions.

Submissions

In accordance with the Commission's published policy on exemption applications under the DDA, a Notice of Inquiry was issued on 8 November 2001, seeking submissions by 20 December. The notice asked for comments on

• what hazards TGSIs might present to other passengers including passengers with other disabilities in public transport settings
• the value of TGSI's to blind people or people with a vision impairment when travelling
• difficulties associated with measuring luminance-contrast and possible solutions to those difficulties.

Submissions were received from

• a number of organizations representing blind and vision impaired people as well as from individuals who are blind or have a vision impairment
• several physical disability organizations
• several public transport operators and public transport regulators
• other experts including access consultants and the chair of the relevant Australian Standards committee.

Issues from submissions

1. Value of TGSIs

Blind Citizens Australia advised as follows:

Tactile ground surface indicators (TGSIs) are an essential tool to assist people who are blind or vision impaired to navigate public spaces in safety, with dignity and with confidence. By detecting the pattern of the TGSIs and/or their colour, people who are blind use them, in combination with other environmental cues, to avoid dangerous environments, to orient themselves and to navigate a path of travel with more ease. … Train stations, ferry terminals and wharfs, and bus, tram and light rail stops and depots are hazardous environments for people who are blind. Platform edges, curbs, stairs and obstacles in the path of travel are more difficult to safely negotiate when the environment is crowded and noisy and the consequences of mistakes can be much greater.

Other submissions noted that TGSIs remain useful even when a person is travelling with a guide dog, and that in the absence of warning TGSIs at platform edges, people using white canes are compelled to use an unsafe technique of trailing the cane over the edge.

Submissions also emphasized the importance of directional indicators to enable blind and vision impaired travelers to find essential points such as lifts or other access and exit points, and ticket facilities.

All submissions from transport operators and regulators also accepted the importance of TGSIs. However, they also endorsed QR's concerns regarding clarity of standards and issues for other passengers. Victoria's Department of Infrastructure commented:

Victoria was the first State in Australia to introduce Tactile Ground Surface Indicators onto Railway Station platforms. However, the concerns that have been raised by Queensland Rail's application need to be addressed.

2. Issues for passengers with other disabilities

Some submissions argued strongly that TGSIs implemented in accordance with Australian Standards, or in accordance with the (not yet published) revised draft AS1428.4, did not present any additional hazard or barrier for other travelers including people with physical disabilities.

Blind Citizens Australia's submission states:

the Physical Disability Council of Australia has advised that TGSIs in use in conveyances, on platforms and within QR buildings and facilities do not present a safety hazard for people with physical disabilities.

(It should be noted that the Physical Disability Council of Australia did not itself provide a submission on this application.)

R Stuart commented:

The inconvenience to other passengers and disabled persons has never been scientifically tested. All evidence is hear say and opinion. … The normal environment has numerous lips and edges that are greater or equal to the profile of the tiles. These lips and edges are negotiated by the disabled and the general public without fuss.

The Association for the Blind, Western Australia, referred in their submission to studies indicating that TGSIs in most settings were not a major problem for wheelchair users.

However, the submission from Arthritis Victoria presents a different perspective:

The provision of tactile tile surfaces for blind and vision impaired persons is of great importance to the mobility and quality of life for those affected, and play a vital directional and safe travel role. However, these undulating and uneven surfaces can be detrimental to the balance and secure footing of people with various musculoskeletal diseases, or those with lower limb or foot deficiencies.

The principal concern in this submission is with directional rather than warning indicators. This submission argues that the raised rectangular bar in directional tiles:

can be a real hazard for people with irregular gait caused though a number of reasons including, joint replacement, musculoskeletal disease especially arthritis and osteoporosis, Multiple Sclerosis, the elderly and the frail, and any person who is of unstable footing who strikes the edge of a raised tile surface.

The Victorian Department of Infrastructure commented:

TGSI's do provide the important information to assist people who are blind and vision impaired, but they do hinder access for people with other disabilities. Are we to ignore comments from sufferers of arthritis, multiple sclerosis and cerebral palsy when they say that encountering TGSI's restricts their access and mobility? Does it require scientific research to determine that what they are saying is correct? Are they to be told they're wrong?

As Chair of the AS1428.4 Working Group, Mr Ivan Peterson provided the following comments:

• Membership of the Standards Australia Working Group which developed the Standard and is conducting the current review has always included expertise in the area of human movement, ergonomics and pedestrian trips and falls. The Standard and the current review reflect the availability of this expertise.
• Peak bodies for people with physical mobility impairment have also been represented in all aspects of the Standard's development.
• Experience has shown that there has been no increase in the number of trips and falls per passenger journey on railway platforms where Tactile Ground Surface Indicators have been installed. This experience has been gained at capital city railway station platforms over many years and many millions of passenger journeys. Positive experience in Australia with regard to trips and falls has seen draft International Standards are being developed with specifications that mirror those of the Australia Standard.
• The Standard requires that Tactile Ground Surface Indicators comply with appropriate Standards for pedestrian surfaces with regard to slip resistance.
• TGSI's must comply with slip resistance standards across the whole of their surface.
• TGSI's do not therefore contribute to the incidence of pedestrian slips. If pedestrian slip on TGSI's then they would also be just as likely to slip on the surrounding pedestrian surface in the same conditions.
• One profile of Tactile Ground Surface Indicator in the 1992 Standard, type A, which was highly effective for people who are blind or vision impaired but did cause discomfort for people in wheelchairs or with sensitive feet has been withdrawn for that reason and is no longer used or manufactured in Australia.
• It is possible that some TGSI's, imported prior to the development of the Australian Standard and the specifications for TGSI profiles and surfaces detailed may have caused some discomfort. With the development of the Australian Standard imported TGSI's have been modified to comply and have performed satisfactorily.
• It is recognised that it requires more force on the part of a manual wheelchair user to realign the wheelchair when stationary on warning TGSI's in particular. To minimise this problem the draft Standard proposes that the TGSI treatment for bus and tram stops includes flat areas at the point where users will board buses or trams.
• It is also important that TGSI's are not installed where there are sufficient tactile cues which people who are blind or vision impaired can use for way finding information.

It appears possible that safety issues have indeed been resolved appropriately in the latest Australian Standards revision, and that concerns raised in submissions relate to designs installed pursuant to 1992 version which would not comply with the revised version when that emerges. On the material available, however, it is not possible to come to a definite conclusion on this. In my view this confirms the need for a short term exemption to permit further discussions among interested and expert parties.

The divergence in evidence in submissions on whether safety issues have or have not been adequately resolved must be of concern. It is necessary to ensure that the interests of all passengers are taken into account, including the elderly and others who are ambulant but have physical disabilities, as well as considering the interests of people who are blind or vision impaired and those of people using wheelchairs.

In these circumstances it appears reasonable to permit a short period for confirmation or otherwise of the view that safety issues have been resolved adequately in the revised draft AS1428.4.

It is necessary in this context to note again that this revised draft is not yet published.



Despite the range of input involved in development of Australian Standards, it should be noted also that Australian Standards are not in themselves subject during their development to the same public process of evaluation through consultation on a Regulation Impact Statement as Federal Government policy now requires for regulatory and quasi regulatory instruments and as was conducted for the Accessible Public Transport Standards.

It is arguable that a short period of delaying for evaluation of risks and appropriate solutions would constitute a "special measure" reasonably intended to provide for equality, and thus be lawful under section 45 of the DDA (so far as potential liability under the existing effect of sections 23 and 24 is concerned). There may be some comparison here with my own decision constituting the Human Rights and Equal Opportunity Commission in Macpherson v Telspec, where I held it was not unlawful to place a temporary restriction on an employee's duties in the situation of that case while a definitive assessment of safety concerns was obtained.



QR thus may well have a defence under the DDA without recourse to an exemption. However, this defence is not so clear that an exemption should be refused because it is unnecessary. Although there may be a valid defence, there is clearly an arguable case of discrimination in failing to install TGSIs even temporarily. This emphasises the desirability of resolving these issues as quickly as possible.

3. Clarity of requirements in Standards

A number of submissions argue, contrary to the views of QR and other rail operators, that AS1428.4 (either in its existing or revised version) is in fact clear in its requirements and readily applied.

However, if major users of the standards do not find them sufficiently clear (and on the evidence provided in submissions as well as in QR's application they do not), that appears conclusive to me that the standards are not in fact sufficiently clear, irrespective of the fact that their meaning may be clear and simple to their drafters and some other experts.

I think that the views indicated in Mr B.Tolliday's submission of the inadequacies of QR's application of TGSIs to date only serve to confirm this problem so far as the existing 1992 edition Australian Standard is concerned. If a major operator has in fact installed TGSIs incorrectly at multiple locations there must be some question as to whether the standard is in fact as self explanatory as has been suggested.

Regarding the revised draft Australian Standard, the views expressed by the Victorian Department of Infrastructure also appear persuasive that there remain issues of clarity and consistency needing to be addressed.

In particular, this submission points to:

• apparent inconsistencies within the draft Australian Standard as to whether a single or double row of TGSI tiles is appropriate and to problems in determining whether and where directional tiles are required in a railway setting.
• lack of provision in the standards for placement of directional tiles on railway stations. The Department of Infrastructure supports blind and vision impaired community comments on the importance of directional tiles although also noting concerns about the impact of these indicators on other travelers.

A number of submissions (both from consumer representatives and from industry) emphasise the need for consistent, stable and predictable approaches to hazard warning TGSIs in particular.

The proposed exemption is intended to encourage prompt settlement of an approach which as far as possible is consistent between different locations, and preferably also consistent between different operators.

I should emphasise that it is possible that the result of consultations during the exemption period may well be for a more comprehensive installation of TGSIs than is provided for in the current draft Accessible Public Transport Standards at least so far as railway stations are concerned, if safety concerns for other passengers are found to be adequately resolved. In relation to railway premises and infrastructure, the draft Accessible Public Transport Standards provide for use of TGSIs only at platform edges.

More comprehensive provision is made in the Accessible Public Transport Standards for use of TGSIs within conveyances; however the need for this provision of the draft Standards is currently under review by the ATSCC Rail Modal Group. In my view it would be appropriate for the requested exemption also to apply to conveyances accordingly.

4. Measurement of luminance contrast

A number of submissions argue that despite its apparent complexity, measurement and testing of luminance contrast does not in fact present the difficulties apprehended by QR. These arguments appear more persuasive than arguments for the adequacy of existing standards on TGSIs in other respects. Nonetheless, a short period of exemption is in my view appropriate to permit discussion and trialling and testing.

5. Relationship to State anti-discrimination legislation

The Brisbane Branch of Blind Citizens Australia noted in their submission that if QR were to be granted a temporary exemption from installing TGSI's, they could be in breach (albeit temporary) of settlement agreements entered into under the Queensland Anti Discrimination Act.

In response to this it should be noted first that HREOC is responsible only for decisions under the DDA.

In previous decisions HREOC has endorsed the approach of the Victorian Civil and Administrative Tribunal in Doveton North Primary School that "an exemption will not be granted where this will be futile - that is, where the conduct sought to be exempted is clearly prohibited by another law".

The argument of futility does not, however, apply here. First, the Queensland AntiDiscrimination Act, like the DDA and like other State and Territory legislation in this area, also provides for a temporary exemption mechanism which a successful applicant for exemption under the DDA may seek to use.

Second, in my view it is strongly arguable that a DDA exemption sets aside potential liability under State anti-discrimination legislation by virtue of section 109 of the Constitution.

This is so notwithstanding the provision of DDA section 13(3) that the DDA is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently.

This provision deals only with "cover the field" inconsistency. It does not, and constitutionally could not, deal with the other form of inconsistency, that is direct inconsistency. It is clear from the decision of the High Court in Clyde Engineering v Cowburn that there is direct inconsistency if Commonwealth legislation permits conduct which State legislation prohibits (in this case, the conduct of not installing TGSIs during the period of the exemption). This is so notwithstanding that it is possible to comply with both laws, by complying with the State requirement and not taking advantage of the permission in the Commonwealth law. This was in fact precisely the situation in point in Clyde Engineering v Cowburn.

I note that in endorsing the adoption of the Accessible Public Transport Standards, Australian Transport Council Ministers agreed to approach their respective Attorneys-General to secure amendments to State and Territory equal opportunity legislation to pick up or reflect the federal standards once these are in force. The standards are not yet in force and I am not aware of any amending legislation having yet been introduced. For present purposes it suffices to say that nothing in the Queensland AntiDiscrimination Act prevents it being within power and appropriate for HREOC to grant this exemption.