Proposed recommendation for temporary exemption: Buchan Bus 'n Freight

Legal

Proposed recommendation for temporary exemption: Buchan Bus 'n Freight

See now decision and submission in response to recommendation: Accessible Public Transport Jurisdictional Committee (MS Word)

Application

The Human Rights and Equal Opportunity Commission has received an application from Mr D. Beaven, trading as Buchan Bus n Freight, for a temporary exemption under section 55 of the Disability Discrimination Act (DDA) from the provisions of the Disability Standards for Accessible Public Transport so as to permit the continued use for public transport service of a vehicle which is not wheelchair accessible and which was acquired second hand in 2004.

The exemption is sought for the period to 31 December 2010.

This application is further to an exemption granted on 8 January 2004 for a period of two years.

The application indicates that:

the service has been operating under a trial subsidy arrangement provided by the Victorian Department Of Infrastructure (DOI)
DOI has decided to implement this service on a more permanent basis and wishes to negotiate a contract providing a subsidy, on conditions including compliance with the Disability Standards for Accessible Public Transport (DSAPT).
The applicant is concerned that the DSAPT may require purchase of a new bus, which his own finances and the DOI subsidy of 40% of costs would not be sufficient to fund.
The applicant has not had any requests for accessible transport in operation of the service to date.
The applicant's service is able to transport scooters for elderly persons, who are assisted to board, but does not provide wheelchair access.
The applicant would be prepared to meet the costs of maxi taxi transport for any person denied travel pursuant to the exemption.

Issues

As from 31 December 2007, and for the whole period covered by the exemption requested, the Disability Standards for Accessible Public Transport require that operators of public transport services meet a range of accessibility requirements for 25% of their services, including in relation to accessible boarding of bus services.

This requirement is subject to the proviso that compliance is not required if and to the extent that it would involve unjustifiable hardship.

Clearly, for an operator whose fleet consists of a single bus, to provide compliant access for 25% of services in fact would require achievement, as from 31 December 2007, of compliance for 100% of that single vehicle fleet: a requirement not applying to operators of much larger bus fleets for a further 15 years, until 31 December 2022.

I consider it highly likely that to require single vehicle operators to replace their “fleets” more rapidly than larger operators are required to would be found to involve unjustifiable hardship. At least for the period until 31 December 2012, when larger bus fleets will be required to achieve compliance for 50% of services, that degree of likelihood in my view is so high as to approach certainty.

The Commission has decided on a number of occasions that it is not a proper use of the power to grant temporary exemptions simply to certify the existence of unjustifiable hardship.

However, where an applicant for exemption proposes positive measures to achieve access during the period of the exemption applied for, the Commission has been prepared to take into account, in support of granting an exemption, factors which might be also relied on in support of a defence of unjustifiable hardship.

In this instance I consider that to grant an exemption would not involve any diminution of rights under the DSAPT in substance and