Recommendation for temporary
exemption: Northern Districts Model Engineering Society

Application

The Commission has received an application from the Northern Districts
Model Engineering Society for a temporary exemption under section 55 of
the Disability Discrimination Act (DDA) from those provisions of the DDA
which could otherwise require installation of a wheel chair lift to the
first floor meeting room of the applicants' near complete clubrooms at
Balcatta, Western Australia.

The application states that it is made on the basis of unjustifiable
hardship and indicates that:

• the building has been constructed by the volunteer members of the
  society over the past 2 and a half years
• some public funding has been provided through grants of $40,000 from
  the City of Stirling
• a stair lift was procured at the commencement of the project but has
  been found unsuitable for the purpose
• the Society may need up to 2 years to raise the funds necessary to
  purchase and install an appropriate lift
• the building when completed becomes a City of Stirling asset but the
  City's position is that it cannot accept the building as complete until
  a wheelchair lift is installed
• the applicants cannot formally occupy the building until accepted
  by the City
• it will take the applicants an estimated 2 years to raise the $30
  000 necessary for purchase and installation of an appropriate lift
• in the event of a person requiring lift access attending its meetings
  or joining the Society will arrange for meetings to be held on the ground
  floor which is wheelchair accessible.
  

Call for submissions

In accordance with Commission policy on exemption applications under
the DDA a notice of inquiry and call for submissions
was published on the HREOC website. No submissions were received by the
requested date of 17 October 2003 or subsequently.

Issues

The Notice of Inquiry on this application set out the issues as follows:

• Although issues which would be relevant to determination of an unjustifiable
  hardship defence in the context of complaints may also be relevant to
  determination of the merits of an application for temporary exemption,
  the Commission has not been prepared to grant exemptions simply to certify
  the existence of unjustifiable hardship.
• In particular, it does not appear an appropriate use of the Commission's
  power under section 55 of the DDA to substitute for the power of local
  government to approve or decline to approve buildings for use. It may
  be that local government bodies which consider that they are exposed
  to excessive uncertainty regarding potential liability under the DDA
  in making decisions on building access issues should themselves consider
  making applications for exemption. Such applications might include appropriate
  criteria and processes for making decisions and might also be accompanied
  by other commitments on improving access in local communities.
• However, exemptions have been granted to provide time to implement
  solutions to access barriers (such as in the Melbourne Trams decision).
  In this matter the applicants are seeking time to implement access rather
  than a simple certification of unjustifiable hardship.
• Exemptions have been refused where there is no reasonably arguable
  case of unlawful discrimination (see the Employers Making a Difference
  decision) but have been granted where it is possible although unlikely
  that there would otherwise be liability for unlawful discrimination
  (such as the ORTA decision).
• It appears likely that if the applicants implement the measures they
  propose to ensure that no member of the public or of the Society is
  excluded from activities because of the lack of wheelchair access to
  the second floor, no act of unlawful discrimination will occur. However
  it is also possible that despite such arrangements the lack of access
  to the upper floor could result in discrimination
  

Recommendation

In view of the issues as discussed above I consider it would be appropriate
for the Commission to grant, for a period of two years, exemption from
liability under sections 23 and 27 of the Disability Discrimination Act,
regarding lack of lift access to the upper floor of the applicants' premises,
on condition that the applicants

(1) report to the Commission within twelve months on progress towards
providing access to the upper floor and

(2) conduct meetings and other activities during the period of the exemption
in a wheelchair accessible venue if notified that any person requiring
lift access wishes to attend.

Graeme Innes

Deputy Disability Discrimination Commissioner

3 November 2003