Commission Advisory Notes on Public Transport

Commission
Advisory Notes on Public Transport

Last updated: 24 October 2002

These advisory notes are superseded by the entry into force of the
Disability Standards for Accessible Public Transport. They are maintained
here for historical reasons.

Introduction

Draft
standards reflect existing DDA obligations

Use
of the draft standards in compliance activity

Use
of the draft standards in developing Action Plans

Complaint
handling

Use
by passengers

Note
on implementation schedules

Exemption
applications

Introduction

This
Advisory Note is issued by the Australian Human Rights Commission
(the Commission) under section 67 of the Disability Discrimination Act (DDA). It
is intended to clarify the existing obligations which public transport
operators, and providers of related infrastructure (such as boarding points),
have under the DDA, and to assist them in eliminating discrimination.

It
is also intended to clarify the relationship of these existing obligations
to the draft Disability Standards for Accessible Public Transport (and
accompanying guidance material) issued by the Australian Transport Council
in 1996. The Attorney-General has now received Cabinet approval to place
the Standards before the Parliament for authorisation, subject to a number
of amendments emerging from the Regulation Impact Statement process. See
our transport page for links
to more information.

In
the Commission's view, Standards have an important role in reducing the uncertainty
to which providers are exposed at present. This Note is not intended to
substitute for authorisation of appropriate Standards.

Pending
the authorisation of Standards, transport providers remain subject to
the existing requirements of the DDA (and largely equivalent obligations
under State and Territory laws of all States and Territories).

The
DDA imposes a general obligation not to discriminate in service provision
(including public transport services) and in access to premises (including
vehicles and vessels). This obligation is subject to the limitation that
non-discriminatory service and access is not required where it would impose
unjustifiable hardship.

Discrimination
under the DDA includes direct and indirect discrimination, and thus clearly
includes lack of equal accessibility, but is not defined in any further
detail.

In
particular, the DDA does not provide (and equivalent State and Territory
laws do not provide) any schedule defining how long movement towards non-discriminatory
service provision may permissibly take. This Advisory Note encourages
public transport operators and related infrastructure providers to consider
the draft Standards as a basis for developing and implementing their own
strategies for achieving non-discriminatory service over time. It also
provides information on the provision of the DDA for granting of temporary
exemptions.

Draft
standards reflect existing DDA obligations

Subject
to issues discussed later in this Note (in particular regarding implementation
schedules), the Commission regards the draft Standards as reflecting the existing
obligations of public transport operators and providers under the DDA.
While they give more guidance for practical implementation than the brief
provisions of the DDA, in the Commission's view they do not seek to impose any
substantial new obligations.

This
does not mean that the specifications given in the draft Standards will
always and in all circumstances be regarded as mandatory under the DDA.
The draft Standards recognise the concept of "equivalent facilitation"
- that is, alternative means of providing equal access to the same public
transport service. They recognise that in some circumstances it may be
shown that to achieve non-discriminatory service would impose unjustifiable
hardship. They also seek to encourage innovation and recognise that they
may need review in future in the light of technical and other change.

Similarly,
the Commission will be bound to take into account evidence of any relevant technical,
regulatory or other developments in exercising its functions under the
DDA.

Use
of the draft standards in compliance activity

Public
transport operators and providers of relevant infrastructure are encouraged
to refer to the draft Standards in planning and implementing measures
to comply with the obligations which they have under the DDA. This should
include design and implementation of new services and construction, as
well as changes to existing services, facilities and premises over time.

Use
of the draft standards in developing Action Plans

Public
transport operators and providers are encouraged to refer to the draft
Standards as a basis for development of voluntary Action Plans under the
DDA.

Development
of an Action Plan gives transport operators and providers a means of planning
their own measures to achieve compliance with the DDA, rather than possibly
having these measures imposed on them as a result of complaints.

Simply
having an Action Plan is not a defence against complaints. The DDA allows
for preparation of Action Plans as a way of achieving compliance with
obligations under the DDA, not as a substitute for compliance with those
obligations. However, development and imp[lementation of an effective
action plan should reduce the potential for successful complaints:

• by
  removing the causes of complaint over time;
• by
  demonstrating to people with a disability, their associates and advocates
  that the provider is already taking all achievable measures to ensure
  equal treatment and access to services; and/or
• by
  providing a method through which continuing concerns can be addressed
  co-operatively rather than through complaints.
• As
  noted below, the Commission will consider a service provider's Action Plan in
  relation to any application for exemption by or on behalf of that service
  provider.

The Commission
has prepared guides on the development of Action Plans for business and
for State and Territory Government authorities. Subject to staff availability
the Commission may also be able to provide more direct advice and assistance on
request regarding development of an Action Plan.

Complaint
handling

The
draft Standards do not have direct legal force. The Commission is bound to apply
the provisions of the DDA. However, given the Commission's view that the draft
Standards generally reflect the existing effect of the DDA, the Commission will
take the draft Standards into account in dealing with complaints under
the DDA.

Use
by passengers

This
Advisory Note is directed principally to operators and providers, who
have responsibilities under the DDA. Passengers with a disability may
also wish to refer to the draft Standards in considering what to expect
in using public transport services; and whether, and how, a complaint
of discrimination may be brought successfully in cases where non-discriminatory
access and service is not provided.

Note
on implementation schedules

The
draft Standards include an implementation schedule under which particular
obligations would only arise after five, ten, fifteen or twenty years.
If the Standards were in force, operators and providers would not be required
to implement those obligations earlier, whether or not they could have
shown that earlier implementation would have imposed unjustifiable hardship.

Given
the importance of certainty of obligation for providers, the Commission regards
this effect, limiting some otherwise available rights, as an acceptable
part of draft Standards which overall would promote elimination of discrimination.

In
the absence of Standards, or unless an exemption is obtained from the Commission,
providers are exposed to immediate liability for any discriminatory features
which it would not have been an unjustifiable hardship to remove, in the
period since the entry into force of the DDA (and the period, in some
cases substantially longer, since the entry into force of equivalent obligations
under State or Territory law).

In
particular, the Commission considers that in many cases the five years which the
draft Standards would provide for achieving equal accessibility of information
and communications features of public transport may be longer than the
period which would be found permissible under the existing provisions
of the DDA.

Operators
and providers are encouraged to give these areas particular consideration
for early attention accordingly.

Exemption
applications

The Commission
has power under section 55 of the DDA to grant temporary exemption (for
a period of up to five years, but with successive exemptions on the same
matter being permitted) from most of the discrimination provisions of
the DDA, including section 24 which applies to services and to public
transport services in particular. Exemptions may be issued subject to
conditions.

The Commission
will consider applications for exemption on terms which promote the objects
of the DDA. This does not involve using the exemption power to certify
past compliance efforts as sufficient. Consistent with the objects of
the DDA, it does involve encouraging such efforts and their continuation.

Generally,
commitment to and demonstration of continuing progress towards non-discriminatory
service provision (whether through development and updating of a formal
Action Plan or otherwise) will be relevant.

The Commission
will consider the draft Standards, and measures taken or proposed to be
taken to comply with them, in relation to applications by a public transport
operator or provider for temporary exemption under the DDA. This includes
consideration of the implementation schedule contained in the draft Standards,
although, as noted above, the Commission would not automatically endorse that schedule
in all respects.

The Commission
has issued Guidelines on applications for temporary exemption under the
Disability Discrimination Act. Transport operators or providers considering
applying for a temporary exemption are encouraged to refer to these guidelines.
The Commission has also made a number of decisions on exemption applications regarding
transport. These decisions are available on our exemptions
page.