Recommendation for refusal of temporary exemption under the DDA: Airport Direct

This is a recommendation that the Commission refuse an application for temporary exemption under the Disability Discrimination Act (DDA) regarding a public transport service known as Airport Direct.

Application

On 26 September the Commission received an application from Mr D.Williams for a temporary exemption under section 55 of the DDA from relevant provisions of the Disability Standards for Accessible Public Transport and the DDA, to permit deferral of provision of wheelchair access on a public transport service to be known as Airport Direct operating from Shepparton to Melbourne .

The applicant seeks exemption from the effect of the DSAPT and the DDA insofar as they would require immediate wheelchair access to a newly acquired HiAce vehicle, for a period of 18 months, on the basis that after 18 months an additional larger vehicle will be acquired which does provide access.

The application includes the following statements by the applicant:

The service will be running two times daily with a 13 seat Toyota HiAce which was chosen for its fuel economy and reliability while the business works up enough custom to run three times daily and own two busses where the larger of the two will accommodate for disabled people.  Airport Direct has a business plan to have another bus after 18 months from the commencement of business. 

Although it is possible to alter the Toyota HiAce for disabled access it will dramatically alter my small bus and take away comfort and seating for all passengers.  Since it is essential that Airport Direct is considered a bus service and not a taxi service, the bus must have 13 seats.  In the Toyota HiAce the only option is to remove seats or have removable seats and to engineer the floor so that restraining devices can be put into place. 

I stress that the financial hardship that Airport Direct will receive due to these necessary modifications is real, not only due to the costs of the modifications but also due to the costs of not being able to receive accreditation and therefore not being able to operate.  If given the opportunity to defer the installation of wheelchair access I will make a firm commitment to the Commission that I will have wheelchair access installed by 18 months from the date of commencement of business. I ensure that Airport direct will be implementing the necessary measures to meet the needs of providing the service to disabled patrons while exempt by providing these passengers with help onto the bus and the appropriate storage of there wheelchair on the buses trailer.

Issues

The Disability Standards for Accessible Public Transport while permitting staged compliance overall, require complete compliance for new vehicles.

This is subject to possible defences based on unjustifiable hardship.

In previous decisions the Commission has not been prepared to grant exemptions purely to certify the existence of unjustifiable hardship. However in previous instances (for example the Coffs Harbour travel and tours matter) the Commission has been prepared to grant exemptions on condition that the applicant makes and meets commitments to provide access within a reasonable period, on the basis that to grant an exemption in such circumstances (rather than leaving an applicant to raise possible hardship defences in response to complaints if access is not provided) can be appropriate as a means of promoting achievement of the objects of the DDA.

Where an application for exemption is refused it remains open to an applicant under the DDA and under the Disability Standards for Accessible Public Transport to seek to defend possible complaints on the basis of unjustifiable hardship.

Submissions

In accordance with the Commission's policy on exemption applications under the DDA, a notice of inquiry was issued seeking submissions on this application.

One submission was received, from the Accessible Public Transport Jurisdictional Committee (APTJC), a body which the Commission is required under the DDA and its Regulations to consult before making decisions on applications for exemption in relation to the Disability Standards for Accessible Public Transport. A requirement to consult does not of course mean that the Commission is required to follow APTJC's views, only to give them due regard.

APTJC comments as follows:

The Accessible Public Transport Jurisdictional Committee (APTJC) has considered the Airport Direct application for temporary exemption from the Disability Standards for Accessible Public Transport 2002 (Transport Standards) (as amended). APTJC recommends that a temporary exemption should not be granted as the applicant has provided no evidence to indicate that access for people with disabilities to the public transport service cannot be provided. APTJC recognises that there may be some financial hardship incurred by the applicant, but this has not been proven.

While the applicant has outlined options to make the new vehicle accessible and indicated that suitable vehicles are available in the 13 seat size range, he has failed to provide any commitment to retrofit the original vehicles. The Transport Standards specify that all new public transport vehicles must be accessible to people with disabilities.

In considering the Airport Direct application, APTJC referred to the exemption granted to Mr G. Kinny of Coffs Harbour-Sydney Travel and Tours Service, on 21 September 2004. APTJC determined the Airport Direct application to be intrinsically different to this previous application as it gave a commitment to upgrade an existing vehicle.

APTJC recommends that HREOC should encourage future applicants to provide a business plan or financial modelling in order to prove their claim that providing access will result in financial hardship.

As APTJC note, the applicant in the Coffs Harbour Travel and Tours matter provided details of funds available and quotes for several options for providing disability access. If the Commission were inclined to grant the application in this matter, in my view it would be appropriate to seek similar details from the applicant first, rather than regarding the current lack of such details as fatal to the application.

However, in my view the second point of distinction drawn by APTJC and the Coffs Harbour Travel and Tours matter is more substantial. As they note, the conditions set in that matter involved deferral for three years of the requirement for new vehicles to be accessible, with a commitment to achieve full accessibility at that point.

In the present matter, the applicant seeks an exemption to permit one inaccessible vehicle to enter service on the basis that a second, accessible, vehicle will enter service alongside it after 18 months. The distinction between this application and the Coffs Harbour Travel and Tours matter is that in this case the inaccessible vehicle will also remain in service rather than being replaced by an accessible vehicle after a relatively short period.

This result might well be found lawful in the event of complaints on the basis of the unjustifiable defence. I do not think however that an exemption from the Commission is required or justified to certify that position.

The applicant would of course remain free to resubmit an application revised in this respect for further consideration, and a decision could be drafted to make this clear.

In my opinion, however, the present application ought to be refused.

Graeme Innes

Disability Discrimination Commissioner

23 December 2005