Notice of HREOC exemption decision
re: Lautoka Pty Ltd, trading as Wild Bunch Floral Designers

Disability
Discrimination Act 1992

Application
pursuant to section 55 for exemption from a provision or provisions of
Part 2, Divisions 1 and 2

Notice
of decision

The
Human Rights and Equal Opportunity Commission gives notice of a decision
made on 27 June 2000 under section 57 of the Disability Discrimination
Act 1992 ("DDA") concerning accessible premises.

Applicants

The
exemption application was submitted on behalf ofLautoka Pty Ltd, trading
as Wild Bunch Floral Designers

Decision
of the Commission

The
Commission decided to refuse the application.

Finding
and reasons

In
making this decision the Commission accepted the findings and reasons
contained in the recommendation and statement of reasons prepared by the
Deputy Disability Discrimination Commissioner and published by the Commission
on the Internet at the following address:

www.hreoc.gov.au/disability_rights

Copies
may also be obtained by telephoning the Commission's Disability Rights
Unit on 02 9284 9613.

Review
of decision

Subject
to the Administrative Appeals Tribunal Act 1975, application may
be made to the Administrative Appeals Tribunal for a review of the decision
to which this notice relates by or on behalf of any person or persons
whose interests are affected by the decision.

Alice
Tay

President

on
behalf of the Commission

27
June 2000

Recommended
decision on Application for exemption under Disability Discrimination
Act section 55: Wild Bunch

Application

Lautoka
Pty Ltd (trading as Wild Bunch Floral Designers) have requested an exemption
under section 55 of the Disability Discrimination Act from liability under
the Act, for a period of five years, regarding lack of wheelchair access
to a heritage listed building at 131 King William Street Adelaide.

The
exemption is sought on the basis that

• The
  premises was built more than 100 years ago and currently the ground
  floor level is approximately 500 millimetres above street level
• local
  government restrictions and State heritage listing compliance issues
• the
  local government requires ramp access to be 1:20 ratio on the slope
  of the ramp
• in
  the location concerned the building is 500 millimetres form the street
  level (implying that any ramp would approximately be 10 metres in length).
  Restrictions in all the possible locations are less than 10 metre or
  major structural changes to the building would be required.
• front
  of the building, main entrance and stairs are all heritage listed
• this
  makes provision of disabled access to the building impracticable in
  the circumstances
• local
  government approval may be refused in view of potential liability under
  the Disability Discrimination Act

The
applicants indicate that they would be happy to take alternative measures
to ensure disabled people can access the shop front by means of a portable
ramp.

Notice
of inquiry and submissions

In
accordance with the Commission's policy on exemption applications under
the DDA a notice of inquiry was issued seeking submissions by 23 June.
No submissions were received.

Recommended
decision

The Commission has
decided on a number of occasions that it ought not to grant exemptions
where there is no substantial prospect of the conduct concerned being
held to be unlawful in the absence of an exemption

In my view, so long
as the applicants deliver on their commitment to secure equally effective
access for people with disabilities, including by provision of a portable
ramp and such other measures as may be required, no unlawful act will
occur. The DDA is not a building code and does not require building modifications
for their own sake, but as a means of avoiding discrimination in access
to premises and in access to the goods, services, facilities and opportunities
which are provided within premises.

I recommend therefore
that the requested exemption be refused.

Relevance of
unjustifiable hardship factors

Because of my view
of lack of any unlawful act so long as equal access is provided by whatever
means, I do not think it is necessary to decide whether in the circumstances
the applicants would experience unjustifiable hardship if required to
modify the premises to provide access.

I note that the Commission
has decided on a number of occasions (including in the Melbourne Trams
and Lutheran Schools matters) that it ought not to use the exemption mechanism
simply to provide a shield against complaints on unjustifiable hardship
grounds, although in this case the applicants are not seeking simply to
be allowed to do nothing but are prepared to take other measures to provide
access.

Local government
decisions

I note the concern
of the applicants that local government approval may be refused in view
of potential liability under the Disability Discrimination Act. The proposed
decision on this application does not determine whether relevant authorities
should or should not grant requisite development or building approvals.
That is a decision for those authorities to take in view of their own
responsibilities. If those authorities consider (after taking into account
the terms of this decision) that they are unable to discharge those responsibilities
because of potential liability by virtue of section 122 of the DDA and
the decision of the Federal Court in Cooper
v HREOC (the
Coffs Harbour City Council case), it is open to them to apply for an exemption
under section 55 in their own right and seek to persuade the Commission
that this would advance the objects of the DDA (possibly including by
reference to procedures or criteria to be applied by local authorities
in making their decisions).

GRAEME
INNES AM

Deputy Disability Discrimination Commissioner

23
June 2000