Recommendation for temporary exemption: S.A. Minister for Transport and Others

MEMORANDUM TO:

Sir Ronald Wilson

Commissioner Antonios

Commissioner Dodson

Commissioner O'Connor

Commissioner Sidoti

Commissioner Walpole

CC: Diana Temby

FROM: Commissioner Hastings

DATE: 30 January, 1996

SUBJECT: Application for Temporary Exemption

The Commission has previously granted a temporary exemption under section 55 of the Disability Discrimination Act 1992 (DDA) to the South Australian Minister for Transport, TransAdelaide and the South Australian Passenger Transport Board from the operation of section 24 of the DDA, specifically in relation to the lack of access for people who use a wheelchair to existing buses.

The temporary exemption operated from 7 February 1995 until 1 November 1995, during which time the SA Minister for Transport was involved in extensive consultation over the development of an Action Plan to address discriminatory practices relating to transport services.

On 31 October 1995 the Commission received a second application for a temporary exemption, from the same applicants, from the operation of section 24 of the DDA in relation to the manner in which the applicants provide transport services in South Australia. This application is not restricted to access to buses for people who use a wheelchair, but relates to all services provided by the operators and seeks to cover a period of five years, or until such time as Accessible Public Transport Standards are authorised, whichever is the earlier.

REASONS GIVEN BY THE APPLICANT IN SUPPORT OF THE APPLICATION

Reasons given for the application are stated in the application for exemption attached.

The Action Plan relied on in support of the application is not circulated in the Commision papers because of its size but may be obtained by members from Mr Mason in DDA Policy.

PROCEDURE FOLLOWED IN RELATION TO THE APPLICATION

The Commission's policy relating to applications for temporary exemption under the DDA provides for a number of alternative mechanisms for interested parties to participate in the process of decision making in relation to the application.

In this instance I decided that a notice of the application (attached) should be circulated to interested parties, along with a copy of the application, requesting comments within a period of six weeks ending on 16 January 1996. Interested parties were also informed of the Action Plan which was submitted with the application, and advised of how they could obtain a copy. A list of interested parties contacted is attached.

This procedure was used on the basis that:

(1) the interested parties identified have been closely involved in the process of commenting on the previous exemption application and have been involved in consultations relating to the development of the Action Plan attached to the application;

(2) interested parties were therefore in a position to respond effectively within the timetable set.

SUBMISSIONS RECEIVED

Submissions were received from:

(1) Disabled Peoples International (Whyalla Branch Inc.)

(2) Disability Action Inc.

(3) National Federation of Blind Citizens of Australia Ltd.

(4) Commissioner Josephine Tiddy (S.A. Commissioner for Equal Opportunity.)

These submissions may be summarised and commented on as follows.

Disabled Peoples International (Whyalla Branch Inc.)

This submission focuses on issues concerning access to public transport for people living in rural and country areas and expresses strong opposition to the request for a temporary exemption, unless 'there is a legal binding agreement between the SA Government and the Disability Discrimination Commissioner to implement the Action Plan..'. The organisation has expressed little confidence in the SA Governments commitment to implementing the proposed Action Plan throughout rural and country areas.

Comment

Whilst this submission expresses clear opposition to the granting of a temporary exemption most of the issues of concern raised are either outside the authority of the DDA or reflect a misreading of the effect of an exemption, should one be granted.

The submission does however express a genuine concern about the detail of the Action Plan which forms the basis of the application, particularly in relation to the needs of people with a disability in rural and country areas.

Disability Action Inc

Whilst recognising the demonstrated commitment of the SA Government to developing an accessible public transport system, this submission opposes the granting of a temporary exemption in the terms requested by the applicant.

The submission expresses concern over the lack of detail within the Action Plan and submits that the plan was not prepared according to an appropriate process. The submission draws attention to the need for considerably more work within the Action Plan to address issues relating to modes of transport other than buses, which has been the main area of work so far. There is also concern expressed about the possibilities of Government 'cut backs' which may effect the good intent of the current Ministers and thereby limit the achievement of the Action Plan.

Comment

Whilst comment relating to the 'good intent' of the SA Government is not directly relevant to the application, this submission makes a number of reasonable observations concerning the focus of the Action Plan and the need for more detail on outcomes relating to modes of transport other than buses if the Action Plan is to support an exemption regarding public transport services generally.

National Federation of Blind Citizens of Australia Ltd

This submission similarly acknowledges the 'good faith' of the applicants, but opposes the application. Concern is expressed over the very general nature of the Action Plan which does not appear to 'explore the ways in which access for blind and vision impaired people will be achieved', nor create any obligation on the part of the SA Government to consult with consumer organisations on matters affecting blind or vision impaired people.

The submission also points out that much of the Action Plan is premised on the development of Transport Standards under the DDA, which may or may not proceed.

Comment

This submission correctly identifies the primary focus of the work undertaken in relation to the Action Plan as being oriented to access to buses by people who use wheelchairs. Whilst the SA Minister for Transport has clearly made considerable effort to establish procedural mechanisms for consumer input to the Passenger Transport Board, comments in this submission relating to the substantive rights of people across the range of people with a disability have some merit.

S.A. Conunissioner for Equal Opportunity

Commissioner Tiddy notes that it is clearly correct that the applicants do not have the financial resources to provide access to all public transport vehicles by all persons with a disability including those using a wheelchair. She notes the participation of disability representative organisations in the preparation of the relevant Action Plan and the approval expressed regarding the Action Plan by complainants concerned in previous relevant HREOC proceedings. On this basis she suggests approval of a further exemption, for five years or until applicable Disability Standards come into force.

Comment

Commissioner Tiddy' s comments, as indicated by their reference to this as a "further" exemption, do not clearly identify the fact that the exemption currently applied for is significantly broader than that previously sought and granted. As is clear from other submissions received and referred to above, disability community participation in and general support for an Action Plan cannot be taken to mean that there is necessarily approval of an exemption based on that Action Plan. That immediate universal access to all relevant vehicles may not be financially or practically achievable is not in itself a sufficient reason for granting an exemption regarding physical access to vehicles, given the provision by the DDA for unjustifiable hardship to be considered in detennination of complaints. Clearly, still less is it a sufficient reason to grant an exemption regarding matters not demonstrated to be subject to the same practical and financial constraints of implementation.

SUMMARY

The application for a temporary exemption is based on two principal premises: that the applicants do not have the financial or other resources to provide immediate access to all users of public transport, and that the Action Plan submitted by the applicants sets out the procedure by which the SA public transport system will provide non-discriminatory access by 2015.

Without questioning the effort made and commitment evidenced by the applicants to move towards full accessibility, I believe it would be inappropriate to remove all rights under the DDA of all people with a disability to make complaints for a period of five years on the basis of the content of the Action Plan. Granting such an exemption would deprive all people with a disability of the right to make a complaint for the next five years over any aspect of transport service provided by the applicants. The Action Plan does not provide detailed commitments concerning practical change in any area other than access to buses by people who use a wheelchair.

The Action Plan does, however, provide details of mechanisms and time frames to continue to address issues relating to access to buses by people who use a wheelchair in a timely manner. A temporary exemption on similar lines to the previous exemption would, therefore, appear to be justified on a similar basis to the reasons adopted by the Commission in granting that exemption: that such an exemption would not deprive persons with a disability of substantial rights, and would promote cost effective resolution of issues in this area in a manner consistent with the objects of the DDA.

An appropriate period for such an exemption would appear to be 9 months, given that the applicants propose to submit a revised Action Plan in October 1996 providing further details of strategies and performance measures addressing discriminatory practice. It is not necessary to provide that such an exemption expires on the entry into force of applicable Disability Standards, given that (by virtue of section 33) such Standards are not subject to the operation of exemptions under section 55 in any event.

RECOMMENDATION

That the applicants be granted an exemption from the operation of section 24 of the DDA:

• for a period of 9 months
• regarding and restricted to issues of lack of access to existing buses operated by the applicants or on their behalf, for people using a wheelchair
• subject to continued implementation of the Action Plan as submitted with the application for exemption.

A draft instrument giving effect to this recommendation is attached.

ELIZABETH HASTINGS

Disability Discrimination Commissioner