Recommendation for granting of temporary exemption under the Disability Discrimination Act: Hervey Bay RSL

By email dated 5 February 2007 the Human Rights and Equal Opportunity Commission received an application from Hervey Bay RSL Club 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 Club advised 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
• 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 (as well as the vehicles being covered under section 23 to the extent members of the public are allowed to use them, and there also being issues under section 27 in relation to benefits of membership of an association).

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.

Submissions

In accordance with the Commission' policy on exemption applications, a notice of inquiry was published on 6 February 2007.

Two submissions were received and are available on the Commission's website.

A submission from prominent local access activists Robin and Sheila King supported granting of an exemption on the basis of the applicants' proposals for providing access within a reasonable period and good faith shown by the applicants in dealing with access issues in the past.

The Accessible Public Transport Jurisdictional Committee advised that in its view buses provided only for club members and guests are not public transport and so the DSAPT do not apply.

Recommendation

In my view it would be consistent with and promote the objects of the DDA to grant the applicants an exemption for 12 months, conditional on retrofitting or replacing their vehicles to comply with the provisions of the DSAPT within that time and reporting to the Commission within 6 months on how they propose to achieve compliance.

Although it is likely that as advised by APTJC the principal purpose of the buses concerned is to provide a service not to the public but to a more restricted group of members and guests, in my view it is also possible that in practice and on occasions the buses may also be involved in providing service to the public more generally – for example when collecting someone and taking them to the club even though they have not yet signed in as the guest of any particular member.

I recommend therefore that the exemption granted apply in relation to the DSAPT as well as to the same effect in relation to sections 23, 24 and 27 of the DDA.

David Mason

Director Disability Rights policy HREOC