Letter to small business organisations on draft premises standards

The Australian Human Rights Commission recently (May 2004) met with representatives from a number
of small business organisations to discuss the draft Premises Standards.
The purpose of the meetings was to provide additional information on a
number of specific concerns that had been raised. The Commission followed
up the meetings with a letter which is reproduced below.

Thank you for the opportunity to meet last week to discuss matters relating
to the draft Premises Standards.

As I explained in our meeting our purpose was to begin an ongoing dialogue
over access related issues as they affect your members. I would welcome
an invitation to meet with your Directors at some time in the future if
you feel that would be of value.

I would like to take this opportunity to highlight a couple of the issues
I raised during our discussions in relation to concerns your members may
have about the draft.

As you know owners or operators of premises or providers of goods and
services are already covered by State/Territory and Commonwealth laws
prohibiting discrimination against people with a disability. In addition
under the Building Code of Australia (BCA) all new and renovated buildings
used by the public, that require a development or building permit, are
also already required to provide extensive access features such as wheelchair
accessible entrances, unisex accessible toilets and appropriate signage.

At two levels, therefore your members are already required to comply
with existing laws and regulations. The difficulty faced by owners and
operators of buildings is that case law has shown that the requirements
of building law are not sufficient in many instances to satisfy anti-discrimination
laws such as the Disability Discrimination Act (DDA).

At any time a small business may be the subject of a discrimination complaint
if a person with a disability experiences a barrier to equal access to,
or use of, buildings or the services operating out of them.

If a complaint of discrimination proceeded to the Federal Court the only
defence available to an owner/operator would be that of unjustifiable
hardship. Under the DDA some guidance is given to the Court on how to
assess such defences:

DISABILITY DISCRIMINATION ACT 1992 - SECT 11

Unjustifiable hardship

For the purposes of this Act, in determining what constitutes unjustifiable
hardship, all relevant circumstances of the particular case are to be
taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered
by any persons concerned; and

(b) the effect of the disability of a person concerned; and

(c) the financial circumstances and the estimated amount of expenditure
required to be made by the person claiming unjustifiable hardship; and

(d) in the case of the provision of services, or the making available
of facilities-an action plan given to the Commission under section 64.

It is up to the Court to consider all relevant circumstances in making
its decision. While the Commission and other anti-discrimination bodies
have dealt with many hundreds of individual complaints through conciliation
there have so far been few complaints go as far as the Federal Court or
Federal Magistrates Court.

Of those that have the clear message that has been given by the Court
is that in order to fulfil the objects of the DDA, as adopted by Parliament,
it is clear that those covered by it may well experience some hardship
in order to comply.

Clearly with existing buildings that may have been built 10, 20 or 50
years ago the technical and cost difficulties of achieving full access
are likely to be greater and the defence of unjustifiable hardship likely
to be more available.

Overseas case law suggests that, while most successful complaints involve
limited expenditure, additional costs of up to 20% associated with providing
access - depending on the resources available to the owner/operator -
is on occasion required in order to achieve equity.

At the moment, therefore, we have a situation where owners and operators
of new and existing buildings face the possibility of complaints, but
do not know exactly what they must do to avoid discriminating.

Over the past four years the Building Access Policy Committee (the committee
established by the Australian Building Codes Board to develop the draft
Premises Standard) has been working to overcome a number of difficulties
including:

" inconsistencies between building law and anti-discrimination law


" confusion over which law has precedence, and

" the lack of surety in the building sector about how to build a
building that does not result in discrimination.

The result of this work is the draft Premises Standard which, when formulated
by the Attorney General, will essentially describe in detail the type
and level of access that should be provided in order to satisfy the existing
requirements of the DDA. Complying with the Premises Standard will mean
that an owner/operator will be complying with the DDA in those matters
covered by the standard.

Following formulation of the Premises Standard by the Attorney General
the BCA will be changed to reflect what the Premises Standard says, so
that in future compliance with the BCA will result in compliance with
the DDA. This will give industry and the community the surety both seek.

As I explained in our meeting the recent public comment period was an
opportunity for organisations like COSBOA and its members to provide comment
on the essential question the BAPC has tried to answer. That question
is "Given that the law already requires access be provided have we
defined a level of access in the Premises Standard that appropriately
balances the rights of people with disabilities with the defences of unjustifiable
hardship?"

Our greatest concern as we move towards the completion of this task is
that the public debate that takes place on the draft is informed and reasoned.

I understand your concerns about the proposed Premises Standard relate
to the overall cost impact on some of your members and in particular issues
such as access to the second floor in two storey buildings, the provision
of unisex accessible toilets and the possible loss of usable space arising
from increased circulation requirements. I also understand that you are
mainly concerned about these issues as they relate to existing buildings
undergoing renovation or change of use.

I appreciate the concerns you and your members might have, and in order
to assist with the current debate I would like to offer some comment on
the proposals in some critical areas. I do not seek to lobby in favour
or against any of the proposals, but simply to facilitate a fuller understanding
of the issues so that the public debate will be better informed.

First the question of whether or not the Premises Standard is retrospective.
The Premises Standard will be triggered in exactly the same way as the
current BCA is triggered. That is, it will only apply to new buildings
and those existing buildings that trigger the application of the current
BCA to new building work, in the form of renovations or additions, or
to change of use from one classification of building to another. (The
only variation to this is in the case of transport related buildings such
as railway stations which are subject to an existing Transport Standard.)

This is what happens today with State and Territory building law. For
example, if an old building with one or two steps into it is renovated
that building may currently trigger a requirement under the BCA that wheelchair
access be provided. This is not retrospective legislation; it is simply
applying current day health, safety and amenity requirements to buildings
in specifically triggered situations.

Secondly, the question of access to the upper storey in low rise buildings.
There is no doubt that the DDA would currently allow someone to lodge
a complaint against an owner/operator who operates a retail outlet or
a service from the upper floor of a two storey building.

The BAPC therefore had to determine whether or not to include access
to all floors in the Premises Standard. Some proposed that the cost of
doing this would be too onerous and others proposed that failure to require
access to the upper floors would unacceptably reduce the rights of people
with disabilities under the DDA.

Eventually the majority of BAPC members resolved to include the requirement
in the draft and seek comments from others.

One issue that I believe needs clarification is the expected costs associated
with providing such access in small, low usage buildings such as an office
block or retail shop. I understand that lifting devices in such situations
can be purchased for between $30,000 and $40,000, not the $160,000 quoted
in the case studies used in the Regulation Impact Statement prepared by
external consultants. On a project costing, for example, $250,000 this
additional cost of providing access to the upper floors would amount to
around about 12%.

Where project costs are greater, such as in a strip of new low rise shops
or where additional fitout costs are included in the overall project cost
the percentage of increased costs associated with providing access will
be significantly reduced.

For existing buildings the Premises Standard recognises that making an
inaccessible building accessible can give rise to very difficult technical
and cost consequences. For this reason, for existing buildings only, the
Premises Standard will retain the defence of unjustifiable hardship for
owner/operators.

The BAPC has proposed a mechanism to be set up in each State and Territory
which will give owner/operators of existing buildings, who believe they
would face an unjustifiable hardship if required to implement the new
BCA, a means of appealing against the full BCA requirements. The mechanism
proposed is an Administrative Protocol which will set up an Access Panel
to assess appeals by owner/operators against a set of 'criteria' including:

(a) The economic viability of a project including-

(i) any loss of occupiable or rentable area;

(ii) the cost of upgrading ancillary features, such as the path of travel
to the new work or the associated facilities, in relation to the overall
cost of the new work; and

(iii) resources reasonably available to the person or organisation who
would be required to meet to the costs of providing access.

(b) Whether the new work involves public funds. Buildings serving a public
function and receiving public funds may, for example, need to demonstrate
particularly exceptional circumstances to justify lack of access.

(c) The extent of the benefit from providing access including-

(i) the type and use of the building, for example, lack of access to a
shopping centre or a medical centre will have an impact on a wider group
of people than a building to which the general public is not normally
admitted;

(ii) whether alternative access is available to the building or to the
services and facilities provided within the building;

(iii) whether the building exists for, or is used for, significant public
purposes. For example, if the building is used for electoral purposes
or by local government for consultative purposes; and

(iv) whether the building has a significant community function, including
cultural, religious, artistic, or sporting aspects of a community, or
is used for educational purposes.

(d) The significance of any heritage value of features in a building that
may be affected by changes to provide access. Every case should be considered
on its own merit. This means that the importance of retaining any significant
heritage feature needs to be weighed against the obligation to provide
access under the DDA.

(e) Technical limits.

(f) Topographical restrictions or other site constraints.

(g) Any relevant safety and health factors.

(h) The requirements of other legislation.

It is my belief that this mechanism will effectively manage and respond
to legitimate concerns of those individuals or organizations that have
a genuine difficulty in meeting the requirements.

Thirdly, the question of the proposed requirement for a unisex accessible
toilet wherever there is a bank of male and female toilets. Under the
current BCA owner/operators of new buildings and existing buildings undergoing
renovation or change of use may already be required to provide a unisex
accessible toilet if the toilets are made available to the public or customers.
For your members who come into this category the proposed Premises Standards
will be of little consequence. For those operating out of existing buildings
the claim of unjustifiable hardship will be available if the requirement
would be technically too difficult or too costly.

For owner/operators that do not make their toilets available to anyone
but staff the Premises Standard will be requiring something new. This
requirement has been proposed for two reasons. First, the availability
of a unisex accessible toilet will ensure that current or prospective
future employees with disabilities will have access to toilet facilities,
and secondly because over the life of a building no-one knows when the
use of that building will change to become a more public facility.

However, I would draw your attention to an important aspect of the BCA
and the proposed Premises Standard. A single unisex accessible toilet
can count as one male and one female toilet, meaning that where a small
business is currently required under the BCA to provide one male and one
female toilet the provision of a single unisex accessible toilet will
meet that requirement. While there will be costs associated with the accessible
toilet there would also be saving in costs associated with eliminating
the need for two cubicles, two toilets, doors, washbasins and mirrors
etc.

Finally, the question of loss of usable space due to greater circulation
space requirements. Currently under the BCA circulation space requirements
include features such as doorways (800mm minimum), corridors and clear
paths of travel (1000mm minimum). Under the proposed Premises Standard
these features are to increase to a minimum of 850mm and 1200mm respectively
in order to ensure greater equity and amenity for people using mobility
aids such as wheelchairs or walking frames.

While these increases will impact on some businesses I would ask your
members to consider current industry practice when assessing its impact
on them. For example, I am led to understand that many retailers building
a new building already exceed the minimum doorway opening requirements
because of the need for better customer flow; designers already minimise
the use of long corridors because they are an inefficient use of space
and places such as small supermarkets already have aisles wider than the
minimum in order to ensure two trolleys can pass each other and shelves
can be stocked.

As I stated at the beginning of this letter, my intention is not to question
the right of COSBOA or its members to vigorously assess the proposals,
but simply to add to a broader understanding of the intent and effect
of the proposal to assist in the debate.

Please feel free to circulate copies of this letter, which I will also
send to you electronically, to your members. I will also be placing a
copy on our web page at http://www.humanrights.gov.au/disability_rights/buildings/access_to_pre…

I look forward to meeting with you and your Directors at some future
date.

Yours sincerely

Graeme Innes AM

Deputy Disability Discrimination Commissioner