The Disability Discrimination Act and the rights of people with disabilities

The Disability Discrimination Act and the rights of people with disabilities

Graeme Innes AM Deputy Disability Discrimination Commissioner Human Rights and Equal Opportunity Commission ABCB Conference 'Building Australia's Future' 13 September 2005

INTRODUCTION

I recently returned from attending a United Nations meeting, where work is progressing on the development of an International Convention on the Rights of People with Disabilities.

The Convention covers all areas of public life, and Article 18 deals specifically with access to premises. It does not contain the detail included in our Building Code, but sets out some minimum requirements which will provide the basis for an international standard.

While the proposed Convention will be of enormous importance as an expression of the rights of people with disabilities throughout the world the critical issue is how signatories will act to implement it in their own countries.

Here in Australia we will have a head start on achieving compliance as, despite the many inadequacies of our service systems, we already have many laws, regulations, policy commitments and mechanisms to promote and protect the rights and dignity of people with disabilities.

Obviously, from my perspective as the Deputy Disability Discrimination Commissioner the most important of those laws is the Disability Discrimination Act (DDA).

On 26 May 1992 the then Minister for Health, Housing and Community Services, Brian Howe, moved that the Disability Discrimination Bill be read a second time. In his speech to Parliament he concluded by saying:

Our vision is a fairer Australia where people with disabilities are regarded as equals, with the same rights as all other citizens, with recourse to systems that redress any infringements of their rights; where people with disabilities can participate in the life of the community in which they live, to the degree that they wish; where people with disabilities can gain and hold meaningful employment that provides wages and career opportunities that reflect performance; where control by people with disabilities over their own bodies, lives and future is assumed and ensured; where difference is accepted, and where public instrumentalities, communities and individuals act to ensure that society accommodates such difference. Only then will we be able to say that justice has been achieved.

It was a vision shared by all sides of politics and the more than three million Australians with disabilities in our community.

It would be fair to say, however, that despite the expectations of some that the mere existence of the law would result in widespread systemic changes in attitude and behaviour the aspirations of our lawmakers are far from being realised.

Since the DDA became law on 1 March 1993 there have been thousands of complaints of discrimination dealt with by my colleagues in the Commission or the various State and Territory anti-discrimination agencies.

In the area of access to buildings some of those complaints have led to changes for individuals - such as a complaint by a wheelchair user who could not participate in his Graduation Ceremony because the stage was inaccessible.

And some have led to changes for hundreds or thousands - like the complaint against a number of hotel operators for not providing equipment that allowed people with hearing impairments to safely enjoy the hotel facilities.

While individual complaints under the DDA are critical for achieving compliance our lawmakers recognised that if those responsible for complying with the law failed to act on that responsibility there may be a need for a more regulated approach to achieving compliance.

To that end Parliament approved the inclusion of a provision that allows the Attorney General to develop Disability Standards which codify existing responsibilities under the law.

A Disability Standard should provide clarity on the meaning of the law and give people confidence that if they comply with the Disability Standard they are complying with the law. In 'building speak' I suppose you might say that the DDA is like a performance statement and the Disability Standard more like a deemed-to-satisfy statement.

In the area of building access there is clear evidence over the past 10 years of an industry failure to pro-actively respond to the requirements of the DDA. My own view is that to some extent that failure arose from a confusion among designers, developers and approval bodies about just exactly what was required when faced with an array of seemingly different anti-discrimination, building, planning and certification requirements.

Whatever the reasons for the failure, the Australian Government asked the ABCB in 2000 to develop a proposal to codify the level of building access for people with disabilities, in a manner that may be suitable for adoption as part of a Disability Standard for Access to Premises.

The proposal has always been to revise the relevant access provisions in the BCA and adopt them as the core of the Premises Standard so that in future compliance with the new BCA would also mean compliance with the Premises Standard.

In late 2000 the Board gave the task of developing that proposal to the Building Access Policy Committee (BAPC).

They say a week is a long time in politics - well I can tell you five years is a lifetime on the Building Access Policy Committee.

The BAPC set itself the task of trying to achieve a consensus on many difficult issues that required compromises from all parties. At the core of the debate was the question of balancing the existing rights of people with disabilities to full and equal access to the built environment with the provisions of the DDA that say that access need only be provided up to the point of unjustifiable hardship.

As you know the BCA is applied through State and Territory building law and enforced through building certification processes, whereas the DDA is administered through a federal body and enforced through the Federal Court.

The access provisions of the BCA apply across the whole of industry and are not subject to varying application according to the capacity of the developer to comply - whereas the DDA is. This means that under the normal complaints provisions of the DDA some building owners would be required to provide full and equitable access whereas others might not.

If, as we all desired, we were to have a Disability Standard that consisted primarily of the access provisions of a revised Building Code of Australia we needed to find a way of reconciling these two different regulatory regimes.

Continuing support for a Premises Standard

I would like to make it clear that the Commission continues to support the development of a Premises Standard which consists of, in the main, the relevant parts of a revised BCA. Despite the many difficulties that have arisen in trying to ensure these regulatory regimes are consistent I believe we should continue to strive to achieve that goal as far as possible.

I accept that this has necessarily involved compromises because of the need to negotiate a Premises Standard that provides for both the rights expressed under the current law balanced with the available unjustifiable hardship defence.

The benefits associated with national consistency, improved access and surety warrant a vigorous debate about the compromises to be made and I have encouraged all sides in the negotiation over the past few years to reach those compromises.

Having said that I am concerned that this project should not result in a Premises Standard that sets the bar too low simply to try and achieve a perfect fit between the two regulatory regimes.

I am particularly mindful of the risks of extending concessions in the draft Standard in an attempt to address legitimate concerns of some, but which result in concessions for those who objectively would not be successful in claiming a defence of unjustifiable hardship under the current complaints provisions of the DDA. I would like to return to this issue with three examples later.

Addressing the concerns of small business and rural and regional Australia

During the more recent discussions at the Building Access Policy Committee (BAPC) concerns expressed during the consultation process about the effect of the draft Premises Standard on small business and buildings in rural and remote Australia has been the focus for negotiations.

As a result a number of concessions have been proposed that provide for further exceptions or relaxing of requirements that will directly benefit small business in particular.

For example, small businesses operating out of new buildings:

• can expect to only be required to make one entrance accessible (as is currently required),
• are unlikely to be caught by any requirements for passing spaces because of the size of the buildings from which they operate,
• are unlikely to incur significant additional costs associated with toilet provision as a unisex accessible toilet counts also as one male and one female toilet,
• are unlikely to incur costs associated with providing access to all levels of their building depending on the outcome of continuing discussion on upper storey access in two and three storey buildings, and
• will have access to a range of more cost-effective lifting devices where access is required to the upper floor.

For small businesses operating out of existing buildings there are additional proposed exceptions including a proposal that where a building has an existing lift that lift (or lifts) need not be upgraded.

Most importantly I note that for existing buildings the continuing defence for unjustifiable hardship provides for additional protections from an adverse effect on the building owner or occupier.

I believe that these additional concessions address the concerns that industry has expressed and I cannot but agree with some commentators that any further concessions are unlikely to be consistent with the current provisions of the DDA.

The most significant outstanding issue of concern for me is that relating to the proposed provision of an exception to providing access to the upper storeys of two and three storey buildings. I will expand on my concerns later but at this stage would simply like to state how important it is that any concessions should be particularly careful to target small business and not simply businesses operating out of small buildings.

Unjustifiable hardship

As you know the current draft Premises Standard contains a provision that would allow owner/operators of existing buildings to continue to have access to a defence of unjustifiable hardship if a requirement of the Standard is too onerous.

There was unanimous agreement at the BAPC to this provision as it allows for a Standard that focuses on new buildings where costs can be assessed beforehand and where there is more flexibility in the range of design solutions that can be employed to minimise the cost impact of access requirements.

Most BAPC members recognised that this might not be possible for existing buildings undergoing new work so agreed to the unjustifiable hardship provision being included along with a number of concessions that were particularly responsive to the difficulties involved in providing access in existing buildings.

In most situations when approval and certification authorities are applying the building code to existing buildings a mechanism exists to either approve alternative solutions or accept a variation to the full application of the building code. In order to assist those authorities to undertake that role effectively, and in a way that was as far as possible consistent with the concept of unjustifiable hardship, a proposed Administrative Protocol was developed.

I continue to believe that the Protocol, and in particular the guidance it includes in relation to assessing when a provision in the new BCA might be too onerous, is a valuable tool.

Where an existing building owner/operator undertakes new work that triggers the application of the new BCA they will be able to argue within the building approval regime, that particular requirements could be fulfilled through an alternative solution or even waived on the grounds that it would make the project unviable.

I believe it is important we do not lose sight of the fact that a developer has available to them a means of ameliorating the effect of the new BCA (and Standard) according to their circumstances. This is particularly important when considering the effect of the Standard on small businesses. It is small business that is most likely to benefit from the continued provision for unjustifiable hardship defences.

While industry has expressed concern about the delays that might be involved for developers who have to argue their case to approval bodies or Access Panels, I have not seen any evidence to show that those concerns warrant an increase in the level of concessions being made available within the Premises Standard.

An outstanding issue that needs to be addressed as soon as possible is the question of whether or not the Government intends to extend the defence of unjustifiable hardship to new buildings as suggested by the Productivity Commission review of the DDA.

If this defence is included in the Premises Standard for new buildings I believe there is an even stronger argument that the Standard should not be further compromised to accommodate anything but exceptional circumstances.

Lowering the Premises Standard requirements too much in order to accommodate large segments of industry, while continuing to provide for unjustifiable hardship defences in exceptional circumstances appears to me to raise questions of whether or not such a Standard would be sufficiently consistent with the existing requirements of the DDA.

Targeting concessions

I mentioned earlier that throughout the development of the draft Premises Standard I have been concerned to ensure that any concessions specifically target those parts of industry that would likely experience unjustifiable hardship if the Standard were applied across the board.

I would like to use three examples to illustrate my concerns.

First is the question of access to Class 1b buildings, second is the issue of access to swimming pools and third is the difficult question of access to the upper storeys of low rise buildings.

Class 1b

Class 1b buildings (Bed and Breakfast, holiday cottages, farmstay and the like) are a growth area of holiday experiences for all Australians and overseas visitors. They represent a unique form of accommodation experience and while many are a cheap alternative to hotels many are luxurious and offer a distinctive opportunity to be out in the Australian bush and surrounded by wildlife.

Others allow visitors to indulge in theme holidays such as cooking, arts activities or natural therapies. Often the most attractive part of the experience is the small number of rooms or cottages available at the site. Often they can be the only form of accommodation in an area.

There was consensus in the BAPC that the Class 1b building classification needed to be clarified and that access provisions should be introduced. In proposing what triggers would be adopted to determine which Class 1b buildings would be required to provide accessible facilities the BAPC carefully considered the effect the proposals would have on the smallest of businesses such as those operating one or two rooms or cottages.

As a result, the majority supported the Standard being that where businesses operated three or more rooms or cottages at least one should be accessible. In addition to this concession, which targets the smallest of operations, operators would continue to have access to a defence of unjustifiable hardship in exceptional circumstances.

Representatives from the Bed and Breakfast industry expressed concern about this proposal during the public consultation period and there were suggestions the concession be extended.

I recently undertook a sample survey of a number of Local Governments in areas of high tourism.

Of the five Councils I contacted two had access requirements for all new Bed and Breakfast providers irrespective of numbers of bedrooms, one required access where there were three or more bedrooms and one required access if the B&B was a newly constructed building. Only one had no access requirements in its Development Control Plan.

While it is possible that the sample survey is not typical it clearly shows that there is a diverse set of requirements already in existence, some of which are consistent with the initial proposals in the draft standard, some of which require more and some less.

Bearing in mind one of the objectives of our current task is to try and eliminate inconsistencies I would suggest it is appropriate to ensure the issue is appropriately addressed in a revised BCA and Premises Standard.

My concern is that if the Premises Standard does not at least reflect current practice in many Local Government DCPs or policies there will continue to be wide variations across the country as Councils retain their current policies.

Interestingly, in my discussions with colleagues in New Zealand I was advised that there has been a requirement for many years that where six or more people can be accommodated in a Bed and Breakfast accommodation access must be provided to at least one room.

Swimming pools

Similarly, considerable time was spent at BAPC debating the issue of access to swimming pools. The original draft called for all new pools including plunge pools and publicly available spa to have at least one means of providing access.

Again, concern was expressed during the public consultation period that for some facilities this may be too onerous.

My concern about any significant departure from what had been proposed relates to the difficulty in developing concessions that are limited to genuinely targeting legitimate concerns.

Any proposed concession in this area must be able to distinguish between the possible legitimate concerns of a small country motel that is upgrading an existing plunge pool and the capacity of a multi-million dollar five star Hotel with a small guest pool associated with its gym to provide appropriate access.

This is particularly the case in relation to existing pools where the defence of unjustifiable hardship is retained.

Access in low rise buildings

While I welcome the fact that the current proposals represent a significant improvement of the extent of access provided in buildings, as I mentioned earlier the question of access to low-rise buildings continues to be of concern to me.

I would like to outline a number of factors that I believe need to be considered in addressing this issue:

• Outside of the CBD of most cities the vast majority of businesses, service deliverers and employers operate out of two or three storey buildings and limiting access to them has a significant effect on the lives of people with disabilities.

• Costs associated with new developments are not restricted to the actual building. They include land purchase and fitout costs that can in some circumstances double or triple the actual building construction investment in a development. In the event of a complaint against the owner/operator of a small building a Court/Tribunal would take into consideration the total investment in a project (not just the building work) and the resources available to the owner/operator. Looking at the cost of vertical transport in the context of the full investment of a development may well provide a different picture of potential cost increases.

• Where exceptional circumstances do exist in relation to existing buildings there are mechanisms for developers to seek to vary the requirement for full access, and if a defence of unjustifiable hardship is provided for new buildings this mechanism will also be available to them.

• A number of exemptions already exist in relation to Class 1b, 2, 3, 5, 6 and 9 buildings in specified situations which combined will have a significant effect on minimising the overall costs associated with access.

I am advised that limiting exemptions based on who owns a building, or what use the building is put to would not be possible within the BCA, but I would raise the possibility that there may be other ways of dealing with this issue through the Premises Standard and State/Territory building regulation.

I would find it very difficult to support a Premises Standard that, for example, allowed a nationally operating financial institution, a medical centre or a Commonwealth/State Government agency to operate out of the upper floors of a low-rise building where access was not provided to those floors.

I note that in New Zealand while there are some exemptions provided for in low rise buildings the upper floors of any building must be accessible if they are to be used as the public reception areas of banks, central or regional government offices or agencies, local government offices and facilities, public areas of hospitals, medical consulting rooms, dental surgeries, and other primary health care centres, places of public assembly for 250 or more people or public libraries. Similar provisions exist in the USA .

I acknowledge the need to respond to the genuine difficulties that small business and parts of rural Australia would experience if required to provide access to the upper floors of all buildings no matter what the size, but stress the need to ensure that any concession should be as limited as possible - balancing the need to assist small business with the existing rights of people with disabilities.

Quite apart from the legal questions of consistency with the DDA I must say that on the world stage I would be more than disappointed if after 5 years work we could not deliver a Standard that moved beyond the provisions that our close neighbours have had for almost 20 years.

Conclusion

There are clearly costs associated with the introduction of these proposed Standards. However, there are other issues which need to be considered -

• The DDA is law, and has been for 12 years -- industry has had plenty of time to respond to the law and develop effective means of compliance;
• Currently if the law is not complied with individuals can lodge complaints if buildings contain barriers to access. Determination of these complaints could be costly and time-consuming for building owners, and result in inconsistent court orders being imposed;
• The requirement not to discriminate unless unjustifiable hardship would occur means that there is already a significant potential cost outlay for building owners, over which they have little control;
• The proposals contain a number of concessions, exemptions and limitations which respond to the concerns raised, particularly by small business;
• Industry practice and good design will allow owners and operators to minimise the cost impact of the new requirements on new buildings;
• Work on existing buildings will continue to be protected by the unjustifiable hardship provisions.

Australia will face very significant demographic changes over the next 20 years - very large increases in the aged population, and corresponding increases in the numbers of people with disabilities.

How many of us will be at the ABCB conference in 2025? How many of us will be able to access buildings where only stairs provide for vertical movement, where there are no hearing loops, and where signage is inadequate?

Age and disability affect everyone - they're as certain as death and taxes.

If you, a member of your family or a close friend don't have a disability now, you can guarantee that will change within the next 20 years. We need a society that caters for, and includes, all of us. And we need buildings designed for such a society.

Weighed against all of these issues, any cost which the proposed Premises Standards may impose is just an investment in the type of society which we all want - one that includes us all.