Temporary exemption application under Disability Discrimination Act section 55: Wheelchairs not occupied by passenger on buses

Note: After further discussions with HREOC and disability representatives Westbus has notified HREOC that this application is withdrawn. This notice and submissions in response are being maintained on this site for information.

Exemption application

The Human Rights and Equal Opportunity Commission has received an application from Westbus for temporary exemption under section 55 of the Disability Discrimination Act ("DDA"). The exemption is sought from the effect of section 24 of the DDA, so far as it might require Westbus or its drivers to permit passengers using wheelchairs to transfer from wheelchairs to fixed seating on buses leaving a wheelchair unsecured and unoccupied in an allocated space.

Basis for application

Westbus seek temporary protection from potential liability for itself and its drivers if drivers exercise the discretion recognized under the NSW Passenger Transport (Bus Services) Regulation 2000 gives operators the discretion to prohibit entry to a bus when a person is accompanied by items that would cause inconvenience to other passengers. This protection is sought pending resolution of issues in this area through current review processes regarding the draft Disability Standards for Accessible Public Transport under the DDA.

Background

The draft Disability Standards for Accessible Public Transport under the DDA require new buses, and an increasing proportion of bus fleets over time, to provide access for passengers using wheelchairs onto buses and into two "allocated spaces".

The draft Standards were approved in principle by the Australian Transport Council in 1996 but are not yet in force. However, HREOC has stated on a number of occasions that the draft Standards generally reflect existing obligations under the DDA. Many public transport operators therefore have been making investment and operational decisions based on the draft Standards, including providing an increasing number of accessible buses featuring an allocated space.

Some wheelchair users (in particular some people with restricted upper body strength or hand or arm function) reportedly do not feel safe travelling in a bus allocated space without having active restraints such as belts applied. The draft Standards do not contain a requirement for active restraints - due to indications during the drafting that if people using wheelchairs could only be carried with active restraints applied, this would mean they would not be carried, due to operational and legal constraints on drivers leaving their seats to apply restraints.

In this situation, Westbus advises that some passengers seek to board in their wheelchairs, then transfer to a fixed seat for safer travel while leaving the wheelchair in the allocated space.

The draft Standards do not specify whether operators are required to accommodate travel in this manner. Further, as noted the draft Standards are not yet in force and so the current provisions of the DDA (and equivalent State and Territory equal opportunity legislation) continue to apply.

Section 24 of the DDA makes it unlawful to discriminate in provision of services, including public transport services, by refusing to provide service or in the manner or terms or conditions of service. This includes discrimination because a person is accompanied by an assistive device such as a wheelchair (DDA section 8). An exception to this is where provision of the service would impose unjustifiable hardship on the provider.

It is not clear from these provisions whether the DDA does or does not require buses to carry wheelchairs with the users of those wheelchairs having transferred to a fixed seat. This appears to depend on:

• whether an unsecured and unoccupied wheelchair in a bus presents an unreasonable risk to the safety of persons in the bus - in which case it would be likely to be an unjustifiable hardship on the operator to be required to incur such a risk;
• whether there are any feasible means of securing wheelchairs in this situation - so as to prevent the risk referred to from arising; or
• whether there are any recent or current developments regarding design or application of restraining systems which would present an alternative solution to this issue (including for people who are unable to transfer to a fixed seat but who do not feel safe travelling in an allocated space without active restraints).

Call for submissions

In accordance with its policy on exemption applications, the Commission seeks to give interested parties an opportunity to participate in the process of considering this application. In addition to assisting with HREOC's decision, submissions may also assist in the process of reviewing technical provisions of the draft Accessible Public Transport Standards.

Accordingly, the Commission seeks submissions by 5 August 2002, preferably by email to disabdis@humanrights.gov.au .

Submissions may also be addressed by mail to Disability Rights Unit, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney 1042. Where submissions are made by mail, a copy on disc should be included if possible.

Submissions would be welcome commenting on the issues identified in this Notice, or identifying and commenting on other relevant issues.

Graeme Innes

Deputy Disability Discrimination Commissioner

24 June 2002