AUSTRALIAN HUMAN RIGHTS COMMISSION

DISABILITY DISCRIMINATION ACT
1992 (CTH), section 55(1)

NOTICE OF REFUSAL OF A TEMPORARY EXEMPTION

Redline Buses

30 August 2012

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By this instrument, the Australian Human Rights Commission has refused the
application from Tasmanian Redline Coaches Pty Ltd trading as Tasmania’s
Own Redline Buses (Redline) for an exemption pursuant to Part 33A of the
Disability Standards for Accessible Public Transport 2002 (Transport
Standards).

SUMMARY

The Applicant requested a temporary exemption from the Transport Standards to
enable it to provide a public transport service using vehicles which do not
comply with the Transport Standards. The Applicant claimed that it would impose
a ‘capital hardship’ on it to make the vehicles in question comply
with the Transport Standards.

Having regard to the lack of accessible public transport services in Tasmania
and the amount of time that the Applicants have been aware of the requirements
of the Transport Standards, the Commission is of the view that the reason
advanced by the Applicant in favour of granting the exemption is outweighed by
the reasons against granting the exemption.

BACKGROUND

The Applicant operates bus services between the main cities in Tasmania and
some urban fringe areas.

Nature of Application

The Applicant seeks a temporary exemption from the Transport Standards so
that it may provide a public transport service with 11 buses purchased in 2010
which do not comply with the Transport Standards.

The Applicant seeks an exemption until February
2019.^[1]

Applicant’s reasons for requesting an exemption

The Applicant seeks an exemption because it claims that it would impose a
financial hardship upon it to make the 11 inaccessible buses comply with the
Transport Standards.

The Applicant states that the buses in question were purchased in 2010 to
provide a dedicated school bus service. Conveyances that are used to provide
dedicated school bus services are not required to comply with the Transport
Standards. However, the Applicant advises that it now wishes to provide a public
transport service with the 11 inaccessible buses in that it wishes to use these
buses as backup on public transport routes in times of peak demand.

The Applicant notes the requirement of the Transport Standards that
conveyances that were in use for public transport service when the Transport
Standards commenced and were still in use on 31 December 2007 were required, at
that time, to be 25% compliant with respect to physical access. The Applicant
states that it currently exceeds this requirement.

The Applicant notes the requirement of the Transport Standards that
conveyances that were in use for public transport service when the Transport
Standards commenced and are still in use on 31 December 2012 are required to be
55% compliant with respect to physical access. The Applicant claims that it will
meet or exceed this requirement by the target date.

Submissions received by the Commission

The Applicant’s request for a temporary exemption was posted on the
Commission’s website and interested parties were invited to comment on the exemption.

The Commission received five submissions in response to the Application: three submissions did not support the Commission
granting the exemption and two submissions did not express a view about whether
the Commission should grant the exemption.

Public Interest Advocacy Centre

The Public Interest Advocacy Centre (PIAC) submits that the Commission should
refuse Redline’s application for an exemption. PIAC submits that
exemptions should not be granted on the basis that, in substance, compliance
with the Transport Standards would impose an unjustifiable hardship upon the
Applicant. PIAC notes that unjustifiable hardship is a defence under the Disability Discrimination Act 1992 (Cth)(DDA) and the
Transport Standards. PIAC notes that the existence of financial hardship is just
one factor among many factors relevant to an assessment of unjustifiable
hardship. PIAC submits that, consistent with earlier decisions of the
Commission, the exemption process under the Transport Standards or the DDA
should not be used to ‘certify’ the existence of unjustifiable
hardship.

PIAC further states that it is an important requirement of the Transport
Standards that all new conveyances and conveyances coming into use to provide a
public transport service after the commencement of the Transport Standards
comply with the Standards. PIAC notes that beyond stating that it will comply
with the Transport Standards with respect to vehicles that were providing a
public transport service when the Transport Standards commenced, the Applicant
has made no commitments to improve the accessibility of its fleet.

PIAC also states that there has been a low level of compliance with the
Transport Standards by the bus and coach industry. PIAC submits that if the
Commission were to grant an exemption to the Applicant, it would add to the
already low levels of compliance with the Transport Standards in the bus and
coach industry.

Office of the Anti-Discrimination Commissioner, Tasmania

The Office of the Anti-Discrimination Commissioner, Tasmania (ADC) also
contends that the Commission should not grant an exemption to the Applicant.

The ADC notes that there are limited public transport options in Tasmania for
people with a mobility disability. The ADC states that there are 61 wheelchair
accessible taxis in Tasmania but that these taxis are restricted to operating in
particular areas. Individuals who live outside of the areas in which wheelchair
accessible taxis operate are forced to rely on private cars or on buses. The ADC
notes that even where a person with a mobility disability could catch a
wheelchair accessible taxi, these taxis are much more expensive than buses.

The ADC states that the Commission is in effect being asked to endorse a
claim of unjustifiable hardship rather than to offer protection from a complaint
on the basis that the Applicant is making progressive moves to achieving
compliance with the DDA and the Transport Standards. The ADC notes that whether
compliance with the DDA or the Transport Standards would impose unjustifiable
hardship is ultimately a question for the court. The ADC states that it is not
appropriate for the Commission to exercise its power to grant an exemption to
simply confirm the availability of the defence of unjustifiable hardship and
thereby authorise non-compliance with a disability standard.

ParaQuad Association of Tasmania Inc and Others

Paraquad Association of Tasmania Inc, Cerebral Palsy Tasmania and the Post
Polio Network Tasmania made a combined submission to the Commission requesting
that it not grant an exemption to the Applicant. The submission notes that as
there is no railway system in Tasmania, the bus system is particularly
important. The submission notes that there is a higher percentage of people with
a disability living in Tasmania than in other states.

Ms Jane Wardlaw

Ms Wardlaw is a member of the public who uses a wheelchair. She did not
express a view on whether the Commission should grant the exemption. Ms Wardlaw
provides a personal perspective on the difficulties of accessing public
transport in Tasmania. Ms Wardlaw advises that it is very expensive to use
wheelchair accessible taxis so an accessible bus service is important.

Ms Wardlaw states that she recently travelled to Hobart on a Redline coach
and that the customer service was very good. However, Ms Wardlaw notes that as
there are limited accessible services from Launceston to Hobart, she is
restricted in her departure and arrival times and her booking must be made at
least a week in advance.

Department of Infrastructure, Energy and Resources

The Department of Infrastructure, Energy and Resources (DIER) did not express
a view on whether the Commission should grant the exemption. DIER advises that
there are contracts between the Transport Commission and providers of public bus
services. DIER advises that it is a condition of these contracts that providers
lodge an action plan with the Australian Human Rights Commission describing the
steps that the provider is taking to comply with the requirements of the
Transport Standards. DIER advises that remuneration to providers includes a
capital component based on quotes from bus building companies for the supply of
vehicles which comply with the Transport Standards.

REASONS FOR DECISION

The Commission has considered all of the material that has been placed before
it, together with the Commission’s Guidelines on Temporary Exemptions
under the DDA, and has decided to refuse the Application. In assessing the
application, the Commission has weighed up the nature and extent of the
discriminatory effect of granting an exemption against the reasons advanced in
favour of the exemption.

The Transport Standards impose two distinct obligations on operators and
providers of public transport services in relation to time for compliance with
the Transport Standards.

Operators and providers must comply with the Transport Standards for
conveyances that were in use when the Transport Standards commenced and are
still in use for public transport at the target dates specified in Schedule 1 of
the Standards.^[2] Part 2 of Schedule 1
of the Standards requires that at 31 December 2012, conveyances must be 55%
compliant with the Transport Standards with respect to, amongst other features,
ramps and boarding. The Applicant advises that it will meet this target.

Operators and providers must also comply with the Transport Standards for all
conveyances brought into use for public transport service on and from the date
that the Transport Standards came into
effect.^[3] The Transport Standards
came into effect on 23 October 2002. Without an exemption from the Commission,
it would breach section 33.1 of the Transport Standards for the Applicant to now
bring the 11 inaccessible buses purchased in 2010 into use for public transport
service.

The Applicant states that the Commission should grant the exemption because
it claims that it would impose financial hardship upon it to make the
non-compliant buses accessible. The Applicant claims that the cost of fitting a
wheelchair lift is in excess of $38 000. The Applicant has not provided any
further information about the financial status of its business.

The entities that submitted that the Commission should refuse the exemption
noted the limited accessible public transport options that are available in
Tasmania. There is no railway service. There are relatively few wheelchair
accessible taxis and these taxis are much more expensive than buses and operate
in restricted areas. The submissions indicated that given these circumstances,
an accessible bus service is particularly important.

The purpose of the Transport Standards is to enable public transport
operators and providers to remove discrimination from public transport
services.^[4] The requirement that new
conveyances and conveyances entering public transport service after the
commencement of the Transport Standards are compliant with the Standards is
important in achieving this purpose and has been a requirement of the Transport
Standards since the Standards commenced.

The Applicant seeks that the Commission grant an exemption to it without
conditions. The fact that the Applicant has not outlined a plan for moving
towards compliance with the Transport Standards during the period of the
exemption is a further factor weighing against the granting of the
exemption.

The Transport Standards provide that it is not unlawful to fail to comply
with a requirement of the Transport Standards if it would impose an
unjustifiable hardship on any person of
organisation.^[5] The cost that would
be incurred by, or is reasonably likely to result from, compliance with the
relevant requirement of the Transport Standards is one factor that is relevant
to an assessment of unjustifiable
hardship.^[6]

If the Applicant claims that it would impose an unjustifiable hardship upon
it to comply with the requirement that all buses brought into public transport
service after the commencement of the Transport Standards comply with the
Transport Standards, it is open to it to rely on this defence in the event that
a complaint is made against it.

The Commission notes that public transport in Tasmania is relatively limited.
The failure to increase accessible public transport in accordance with the
Transport Standards has a particularly negative impact on individuals who are
reliant on accessible public transport.

Balancing the reasons in favour of granting the exemption and the reasons
against granting the exemption, the Commission considers that it would be
unreasonable to grant the exemption.

APPLICATION FOR REVIEW

Subject to the Administrative Appeals Tribunal Act 1975 (Cth), any
person whose interests are affected by this decision may apply to the
Administrative Appeals Tribunal for a review of the decision.

Dated this 30th day of August 2012

Signed by the President, Gillian Triggs on behalf of the Commission.

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^[1] It should be noted that an
exemption granted by the Commission must not be granted for a period of more
than 5 years: section 33A.1(5) Transport
Standards.

^[2] Section 33.1
Transport Standards.

^[3] Section
32.1(a)(ii) and section 33.2 Transport
Standards.

^[4] Section 1.2(2)
Transport Standards.

^[5] Section
33.7 Transport Standards.

^[6] Section 33.7(3)(a) Transport Standards.