Notice of temporary exemption application: Hervey Bay RSL Club

See now decision; recommendation; also submissions in response

Application

The Human Rights and Equal Opportunity Commission has received an application from Hervey Bay RSL Club (by email dated 5 February 2007) for a temporary exemption under section 55 of the Disability Discrimination Act (DDA) from relevant provisions of the Disability Standards for Accessible Public Transport (DSAPT) for a period of 12 months.

The application (MS Word format) is attached.

The Club advise that:

• they were required to take over provision of their courtesy bus service from a contractor by 1 February 2007 on one month's notice
• advice was sought from HREOC, the Queensland Anti-Discrimination Commission and the Queensland Department of Transport on access requirements, but advice received was unclear and conflicting
• two inaccessible vehicles were leased pursuant to a decision made on 15 January 2007-02-06
• the club has now become concerned following discussion with local disability community advocates that this places them in contravention of the DSAPT
• they wish to comply with all applicable requirements and seek an exemption of 12 months to permit the vehicles to be either replaced with accessible vehicles or retrofitted for access.

Issues

The DSAPT require compliance for vehicles new to public transport service. "Public transport service" is defined by the DSAPT as "an enterprise that conveys members of the public" and includes "community transport conveyances that are funded or subsidised by charity or public money and that offer services to the public".

By email of 22 January (that is, after the Club had already made its decision) the Club requested advice on whether the DSAPT would apply to the buses, and whether a policy providing for patrons requiring accessible transport to use accessible taxi services as an alternative and pay with Qld Transport provided vouchers would involve potential liability.

By email the same date HREOC advised:

A service provided only to members and guests of members would not be a service provided to the public, and thus would not be covered by the Disability Standards for Accessible Public Transport - which, where they apply, do require new vehicles to be accessible.

However, the more general anti-discrimination provisions both of the Disability Discrimination Act and of the Queensland Anti-Discrimination Act would apply to such a service.

These provisions are less specific than those of the Disability Standards - but if a person experiences detriment through not being able to board the buses provided to other patrons then a complaint would be possible. Examples might be if a member or guest were required to wait for longer than other patrons before accessible transport arrived; or being unable to travel with others in their party. This is not to say that unlawful discrimination would necessarily be found - only that there would be potential liability.

In my view it remains correct that if a service is provided only to persons who are members, or guests of members, of a club, it is not a service to the public for the purposes of the DSAPT - but is a service covered by section 24 of the DDA.

If, however, the buses are available to visitors more broadly rather than only to members and guests of members then a service to the public is being provided and the DSAPT do apply.

The breadth of availability of the service provided (which determines whether the DSAPT apply) is clearly something which the Club and members of the local community are in a better position to know than is HREOC.

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.

Accordingly, the Commission seeks submissions by 13 March 2007 , 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.

Issues which persons making submissions might choose to address include:

• would an exemption be justified having regard to the Commission's guidelines on exemption applications
• if an exemption were granted, should it extend to protect the Club from liability under section 24 of the DDA or only from potential liability by reference to the DSAPT.

To promote open public discussion and exchange of views, the Commission intends to make submission publicly available by posting submissions made electronically on its Internet site. Requests for material to be treated as confidential should be clearly indicated.

David Mason

Director Disability Rights policy

6 February 2007