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Access to premises - promoting compliance with the Disability Discrimination Act (1992)

A background information paper from the Federal Disability Discrimination Commissioner

At the first meeting of the Australian Building Code Board's Existing Buildings Working Group in August 1998 the Australian Human Rights Commission was asked to develop a paper on Action Plans and their role in assisting owners and operators of premises to move towards compliance with the Disability Discrimination Act (1992) (DDA).

The intention of the paper was to clarify current law and identify possible uses for Action Plans in relation to existing buildings. It was also intended that the paper would be considered alongside work being undertaken by other members of the Working Group who were drafting possible protocols for dealing with development and building approval applications for existing buildings.

The Existing Buildings Working Group has only met once although considerable work has been done on a draft Administrative Protocol that will be discussed at the next BAPC due to take place in July. The Commission had also drafted material on Action Plans, but after further consideration I have decided to expand that draft to include a summary of my views on the current review of the BCA and a number of compliance promotion activities in the area of access to premises. In doing so I have a number of objectives.

The first is to provide a briefing for new members of the BAPC on my views concerning the application of the DDA in the area of access to premises.

The second is to encourage a speedy completion of the current review of access related provisions covered by the Building Code of Australia (BCA). I will outline in this paper what I intend to do both at a policy level and in my complaints handling role to recognise progress in the revision of the BCA as it occurs.

My third objective is to encourage the development of effective mechanisms for responding to requests from owners and operators for approval for less than full compliance with the BCA (or indeed the DDA) in existing buildings undergoing new work or significant refurbishment. I will outline in this paper what options may be available both at a policy and complaints handling level to encourage development in this area.

My fourth objective is to describe the possible role of Action Plans in assisting owners and operators to create accessible environments in existing premises, particularly existing buildings not undergoing new work or significant refurbishment.

I provided this summary statement to the Australian Building Codes Board through its Building Access Policy Committee meeting in July 1999. It is published on the Commission's Internet site at www.humanrights.gov.au

Chris Sidoti

Acting Disability Discrimination Commissioner

 

 

Initiatives to achieve better access

Over the past four years the Commission has undertaken a number of initiatives to provide guidance to owners, operators and users of premises on their rights and responsibilities under the DDA. In addition the Australian Building Code Board (ABCB) has committed itself to revising the BCA to make it more consistent with the DDA.

Many individuals, companies, local governments and industry professionals have attempted to develop best practice means of ensuring access for all users. All these initiatives contribute to the development of an accessible environment, but nothing has provided those responsible for premises with the certainty they are seeking that they are fully complying with anti-discrimination law.

In previous publications I have stated my wish to see a future DDA Disability Standard covering all aspects of access to, and use of, premises. A DDA Standard in this area could provide a high degree of certainty for all parties.

Such a DDA Standard could cover all premises, which are defined in the DDA as covering far more than just a building structure and include new and existing buildings; transport systems and infrastructure; car parks; pathways; street furniture; public gardens and parks. Up to now however most discussion has centred on new premises and in particular those parts of new buildings that are specifically covered by the provisions of the Building Code of Australia.

Any future DDA Standard covering all aspects of access to and use of premises would need to address a broader range of access issues and could consist of a number of elements including:

Most, perhaps all, parties support the necessary changes to the DDA to allow for a DDA Standard in the area of access to premises. While amending the Act seems likely to occur following the recent Federal Cabinet decision it will be some considerable time before we actually have a comprehensive Standard covering all of the above in place.

In my view we could expedite the process by having a comprehensive DDA Standard covering access to premises evolve over time to include some or all of the above elements as they are completed. This would mean that those elements not included in a DDA Standard would still be subject to the general complaint provisions of the DDA.

 

1. Parts of new buildings covered by the BCA

Most effort over the past four years has gone into revising the BCA to make it more consistent with the provisions of the DDA. Progress in this area has been slow due in part to a concern in some quarters that significant changes to regulations covering new buildings will result in unacceptable economic and technological difficulties for owners and operators of existing buildings undergoing new work.

I do not share those concerns. While existing buildings undergoing new work or significant refurbishment require an approval which 'triggers' the need for compliance with the current BCA

  1. there is already a mechanism at a local level for building owners and operators to seek variations from compliance with the current requirements of the BCA or local planning regulations in relation to existing buildings undergoing new work or significant refurbishment, and
  2. the Disability Discrimination Act is clear in its intent to ensure owners and operators do not experience unjustifiable hardship in relation to the provision of access for people with disabilities.

The current mechanisms for obtaining variations may not give owners, operators and users the certainty they are looking for in terms of protection from complaints under the DDA. However this should not necessarily have led to a cautious approach to changing the BCA to achieve consistency with the DDA.

If a future revised BCA is to achieve consistency with the requirements of the DDA and be referenced as part of a future DDA Standard its scope and provisions should not be limited by concerns about their effect on existing buildings when mechanisms already exist to address those concerns.

The case of Cooper v Coffs Harbour City Council and the Commission's comments on that case show that building and development approval bodies have a responsibility to consider the requirements of the DDA and a right to make decisions about what might constitute unjustifiable hardship when making those decisions.

The review of the BCA is taking a long time and many critical issues are yet to be resolved but I remain committed to a future DDA Standard referencing a suitably revised BCA.

While waiting for that process to be completed, however, there are a number of steps I can take to recognise progress as it occurs.

In July 1997 Commissioner Hastings issued the Advisory Notes on Access to Premises aimed at assisting those responsible for premises to better understand their responsibilities in relation to the DDA. In March 1998 I re-issued those Advisory Notes and made a commitment to revising them regularly as and when changes to the BCA occurred.

I intend to review the Advisory Notes sometime in the future to identify if there are any specific areas where I can reference parts of an amended BCA 96 as providing an appropriate level of access. This would indicate to those responsible for premises and those who use premises that particular identified specifications are in my view consistent with the objects of the DDA. Clearly this review will not involve referencing those parts of the BCA still subject to research and further negotiation.

In addition where I identify particular parts of the BCA that I consider are consistent with the DDA and where access is provided to that prescribed level I would consider exercising my authority to decline any complaint where I am satisfied that an act is not unlawful under sec 71(2)(a). Such a decline could of course be reviewed by the President of the Commission.

I will seek comment from interested parties on those items I intend to reference as part of the review of the Advisory Notes.

This commitment will support the completion of the review of the BCA and offer increasing certainty while a DDA Standard is being progressively developed.

I also have the authority to decline complaints where the issue in question has been adequately dealt with by another statutory authority (DDA s.71(2)(g)) or where some remedy has been sought and in my opinion the matter has been adequately dealt with (DDA s.71(2)(e)). I will discuss the possible use of this authority in relation to new buildings in the section headed 'Opportunities for local initiatives' below.

 

2. Parts of buildings not covered by the BCA

While the scope of the BCA has been extended to include a number of issues such as tactile warning indicators and signage there are still a number of potential barriers for people with disabilities using buildings that are not covered by the BCA. This includes items such as furniture and fitments and services such as changing rooms in clothing shops. I would support any moves to extend the scope of the BCA but, where it cannot be extended to include specific items, the Commission's Advisory Notes on Access to Premises will continue to be an important reference point for people wishing to achieve a level of access consistent with the DDA.

Any issues concerning access to and use of buildings not covered by the BCA will need to be addressed through some other consultative process if they are to be included in any future DDA Standard. I encourage all interested parties to discuss ways in which this may be achieved.

In the meantime complaints relating to discrimination in this category will continue to be subject to the current complaints handling procedure. See also the section headed 'Opportunities for local initiatives' below.

 

3. External premises not covered by the BCA

There are many public areas outside buildings, such as parks, BBQ areas and street furniture, not covered by the BCA and therefore not included in current consultations. They are nonetheless subject to the DDA. These will need to be addressed by the BAPC or some other process if they are to be included in any future DDA Standard.

Complaints relating to discrimination in this category will continue to be subject to the current complaints handling procedure and the Commission's Advisory Notes on Access to Premises will continue to be an important reference point. See also the section headed 'Opportunities for local initiatives' below.

 

4. Management and maintenance

The BCA does not specifically address issues concerning the way a building functions in terms of management and maintenance issues. Many management and maintenance issues however are critical for continuing access to and use of premises. For example a failure to maintain a lift may result in it not operating, thereby denying access to someone using a wheelchair to all parts of a building.

Discrimination arising from inadequate or inappropriate management will continue to be subject to the normal complaints handling procedure.

 

5. Existing premises undergoing building work

Existing premises, including heritage buildings, are covered by the DDA and could also be the subject of a future DDA Standard. At this stage however discussion is focusing on establishing nationally consistent mechanisms for dealing with existing buildings undergoing new work or refurbishment and requiring a development or building approval.

I understand that the aim of the ABCB is to facilitate the development of a nationally consistent protocol and mechanism for

The proposal would be to establish in each state and territory a mechanism that would allow for the setting up of panel(s) with responsibility to assess applications from owners and operators according to a nationally consistent set of guidelines or protocols. These guidelines would in effect assist the panels to make decisions on the technical and economic issues involved in compliance with the BCA.

I support further discussion on this proposal for a number of reasons.

  1. The Commission does not have the resources to undertake technical and financial assessments of all building and development applications requesting a variation.
  2. The Commission does not have the expertise to provide approval for performance based equivalent access measures in existing buildings.
  3. Local panels with a representative input including people with access expertise would be the most suitable body to assess applications.

The ABCB envisages that, in the event of a future BCA being referenced as part of a DDA Standard, these panels would be invested with the authority to process applications for variations from compliance with the Standard.

I can see no legal difficulty in each state and territory adopting consistent mechanisms and guidelines for assessing applications for variations from the BCA and I would encourage work on that to begin. There needs to be further discussion concerning the legal authority under the current DDA for a future DDA Standard to recognise these mechanisms.

A nationally consistent mechanism however would take considerable time to develop and would to some degree be dependent on the completion of the review of the BCA.

 

Opportunities for local initiatives

While supporting continued discussions on possible national mechanisms for processing requests for variations in relation to existing buildings I am eager to take whatever action I can now to encourage local initiatives to create accessible environments.

Many developers, owners, operators and local governments are genuinely attempting to ensure premises are non-discriminatory. Initiatives such as Access Policies or Development Control Plans prepared by local governments are creating a clear expectation that developers and operators must ensure their premises are non-discriminatory by including access in the very beginning of the design brief stage.

The decision in Cooper v Coffs Harbour City Council makes it clear that local government has a critical role to play in relation to the DDA in exercising approval authority. If approval authorities exercised their power with due regard to the provisions of the DDA (as recommended in the Commission's comment on Coopers v Coffs Harbour City Council available on the Commission's Homepage at www.humanrights.gov.au) the likelihood of successful complaints against developers, operators and local government would be significantly reduced.

I am now considering ways to provide further assistance to those responsible for premises and those responsible for approving developments and have issued a draft policy on this matter.

Central to this is that development and building approval bodies develop a framework that ensures the provisions of the DDA are thoroughly applied in the approval process.

This framework would include a number of elements designed to ensure development approvals for new premises and those for existing premises undergoing new work or significant refurbishment included a requirement for access at a level consistent with the DDA. These elements could include

  1. a Development Control Plan (DCP) or Access Policy attached as a requirement to all new development applications and all applications for existing buildings requiring approvals
  2. an active information and education program in the area aimed at architects, designers, builders and developers
  3. a formally constituted body with representation from key sectors including the disability sector responsible for making recommendations to Council in relation to applications for variations from compliance with the DCP or Access Policy.

Developing a local framework will be of significant benefit to developers, owners and local governments. Where a framework was constructed and applied in a way which resulted in outcomes consistent with the objects of the DDA, and where a premise owner or operator had obtained a variation consent from the appropriate body using such a framework, then a complaint against the owner, operator and local government might be declined unless there was some evidence that the approval body had not acted correctly or had not addressed the issue that was the subject of the complaint.

A decision to decline a complaint could be made under section 71(2) (e) (g) or (h) of the DDA which allow me to decline complaints where I consider the subject matter of the complaint has been, or could be, dealt with appropriately elsewhere.

A decision to decline a complaint would be dependent on my being satisfied with the implementation of the framework established by the approving authority. Under the DDA a decision to decline would be subject to review by the President of the Commission.

 

6. Existing buildings not undergoing new work or refurbishment

Options discussed above relate to existing buildings undergoing new work or significant refurbishment. There are many existing premises that are not subject to the need for development or building approval but which are still covered by the provisions of the DDA.

Owners and operators have been encouraged by the Commission to develop Action Plans to address identified barriers to access to those premises and the services operating out of them.

 

Benefits of Action Plans

Section 61 of the Disability Discrimination Act 1992 allows for the development of Action Plans that may be lodged with the Commission for registration. Any Action Plan lodged should consist of a number of elements described in Guides developed by the Commission and available at

www.humanrights.gov.au

Action Plans can be of benefit to an owner, operator or service provider as they:

While the mere existence of an Action Plan does not in itself constitute a defence under the DDA any plan registered with the Commission (or any other relevant document) must be considered by the Commission when considering a defence to unlawful discrimination on the basis of unjustifiable hardship.

An Action Plan could also be used at any time in the complaints handling process by a respondent wishing to convince a complainant of its commitment to eliminating discrimination.

For an Action Plan to be effective it must convince prospective complainants and ultimately a hearing Commissioner or the Federal Court that it shows real commitment to eliminating discrimination, reflects relevant priorities developed in consultation with people with disabilities, has clear timelines and is in fact being implemented. A new Commission publication available on the Commission's Homepage at

www.humanrights.gov.au entitled Developing an Effective Action Plan discusses these issues in detail.

 

Current procedure of the Commission in relation to Action Plans

Action Plans lodged with the Commission are placed on a register held by the Disability Rights Unit following a brief review against the elements identified in s 61 of the DDA. There is no assessment or endorsement of an Action Plan by the policy unit.

The Disability Rights Unit updates the register on the Commission Homepage and wherever possible links are made to the actual plans so that interested parties can access them directly. Where this is not possible the Commission will assist people wishing to access specific plans by either providing a hard copy or referring the enquirer to the organisation that submitted the specific plan.

 

Action Plans and temporary exemption applications

A number of organisations have sought temporary exemptions from the Commission from liability under the DDA for specific periods while either developing or implementing their Action Plans.

The DDA gives the Commission power to grant temporary exemptions from any of the provisions of the DDA which otherwise make acts unlawful, except those regarding harassment, Disability Standards and those acts which are offences.

Exemptions may be granted for up to five years. There is also provision for exemptions to be extended or further exemptions granted. A five year exemption is obviously substantial in itself and the provision for extension and/or further exemption means that potentially the process of exemption could continue indefinitely.

The DDA does not specify any procedure or criteria governing decisions by the Commission regarding temporary exemptions, beyond stating that they

- must be granted in writing

- must be for a specified period

- may be granted subject to terms and conditions

- must be notified in the Commonwealth Gazette with a statement of reasons for decision and findings on material facts and

- are subject to review by the Administrative Appeals Tribunal on application by any person affected by the decision.

The Commission has developed procedures for considering applications for temporary exemptions which include the opportunity for all interested parties to comment on any application prior to the Commission making a decision. This policy and procedure is available on the Commission Homepage.

An organisation could apply for a temporary exemption for a specified period while developing its Action Plan. For example an existing building owner may identify that the building does not provide for equitable access for people with a range of disabilities. The owner may wish to undertake a full access audit and consult with a range of people with disabilities while developing an Action Plan to address those barriers. The owner could apply for an exemption to cover the period within which the Action Plan is being developed and subsequently apply for an exemption for the period during which the Action Plan is being implemented.