Access to Premises - an update on progress
Introduction
There has been considerable progress in the last few months on work towards developing a Disability Standard on Access to Premises (Premises Standard). This progress is largely due to the effort put into the project by the Australian Building Codes Board and members of the Building Access Policy Committee and its Technical Working Group.
The development of a Premises Standard has been a major focus for our work and we will continue to commit significant resources to the completion of this project.
This paper provides an update on progress from the Commission's perspective as well as some ideas about how organisations might prepare for the upcoming public comment period.
Please feel free to circulate the update to individuals and organisations who may be interested.
Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner
8 July 2003
Progress towards a DDA Access to Premises Disability Standard
Responsibility for the development of the draft Premises Standard rests with the Building Access Policy Committee (BAPC) established by the Australian Building Codes Board (ABCB). The BAPC includes representatives from the disability sector, industry, design professionals, government, property owners, Local Government and Building Surveyors.
In order to minimise duplication of regulation and create consistency between building law and anti-discrimination law the proposed Premises Standard will essentially consist of the access provisions of a revised Building Code of Australia (BCA).
While the definition of 'premises' in the DDA includes more than just buildings the Premises Standard will be limited at this stage to those public areas actually covered by the BCA. Those parts of buildings or the wider built environment not covered by the BCA or proposed Premises Standard, such as service counter heights, some fixtures and fittings, public picnic areas and street furniture on the pavement will continue to be subject to the existing DDA provisions.
In addition the BAPC has identified a number of areas, such as accessible emergency egress and way-finding within buildings, which require further research before being finalised and which will therefore not be included in this stage of the Premises Standard development.
Ensuring consistency between the BCA and DDA will provide benefits for all concerned:
- Property owners and operators will have the surety of knowing that compliance with the new BCA will also result in compliance with the relevant parts of the DDA. If a building complies with the new BCA, and by definition the Premises Standard, complaints of discrimination under the DDA will not be successful.
- People with disabilities will have much better access, increased opportunities to participate in all aspects of the community and the surety of knowing that access is consistent throughout Australia.
- The service industry and small business community will have opportunities to access a broader market and minimise the likelihood of discrimination complaints
- Local Governments, designers, builders and those responsible for approvals and certification of buildings will be much clearer about what is required to fulfil responsibilities under both building and anti-discrimination law.
When the new BCA and Premises Standard are completed all new buildings covered by the standard and those parts of existing buildings undergoing renovation or change of use, and requiring development or building approval, will have to comply with the new access requirements.
In some circumstances, however, full compliance for existing buildings undergoing renovation or change of use may not be required if technical or cost issues are prohibitive at the time. In order to allow for this the Premises Standard will retain the provision for unjustifiable hardship defences in relation to existing buildings.
The BAPC has been developing an Administrative Protocol to be adopted by all States and Territories to try and address these questions of possible unjustifiable hardship. The Administrative Protocol is discussed later in this update.
Work on drafting the performance and technical changes to the BCA, so that it can be referenced as part of the Premises Standard, is nearly complete. The next phase is the completion of a Regulatory Impact Statement (RIS) on the proposed changes. The RIS will look at the benefits and costs associated with the proposed changes and, like the proposals themselves, will be available for a period of public comment before finalisation.
Consulting on the proposals
The development of proposed changes to the BCA and a Premises Standard has been a complex and difficult job involving consultation and negotiation between representatives of people with disabilities, industry, government and property owners.
It is expected that the draft changes to the BCA and the Premises Standard will be completed and released before the end of 2003. The BAPC will begin discussions with representative groups from government, industry and the disability sector as soon as the material is finalised. A broad three month period of public comment is due to commence after the holiday period in February 2004.
While the proposed public comment period is vitally important, consultative strategies have been employed over the past two or three years to try and provide opportunities for individuals and organisations to understand and contribute to the drafting of the proposals. This has included:
1. All representatives on the BAPC have a responsibility to report back
general progress to their nominating organisations and through them to
their broader constituency. Each member of the BAPC has worked out their
own mechanisms for doing this. Some have established Reference Groups
who provide additional input, some report directly to their constituents
through newsletters or email networks. Every BAPC member has encouraged
interested individuals and organisations to contribute ideas and concerns
about what issues need to be addressed at every stage of the process and
the BAPC has received numerous comments and requests in response.
2. While the membership of the BAPC is quite broad there are many groups
with an interest in this work who are not directly represented. BAPC members
have taken steps to ensure that these groups are kept up to date with
developments and on occasion specific meetings have taken place to alert
organisation to the changes being considered.
3. Organisations such as the ABCB and Commission provide regular updates
on developments and specific pages on their websites have been established
to encourage feedback and comment. (for example http://www.abcb.gov.au/content/access/
and http://www.humanrights.gov.au/disability_rights/buildings/access_to_premises.html)
4. In the process of developing specific technical proposals extensive
discussions have taken place with technical experts, manufacturers, regulators
and representative organisations.
5. In early 2002 members of the BAPC participated in information forums
organised by the ABCB in every State and Territory aimed at clarifying
what work was taking place and why. These meetings were very well attended
by people with disabilities, regulators, developers, designers and those
responsible for certification. The meetings built on the information provided
in the ABCB's Directions Report on a Disability Standard on Access to
Premises which was released in December 2001. http://www.abcb.gov.au/content/access/
. A CD Rom of one of the meetings and all the material produced for it
was made and distributed to every Local Government in Australia and others
on request.
6. Every opportunity has been taken to brief interested organisations
and their members at events such as annual conferences, through trade
magazines and through community group networks.
Inevitably when the draft detailed material is released it will be the first opportunity for many individuals and organisations to directly participate in the process of developing the standard. It is important therefore for organisations with a particular interest in this project to be ready to assist their members to contribute to the public comment period as far as their resources allow.
This could include:
1. Ensuring your members are aware of the timetable for the public comment
period.
2. Ensuring resources are allocated in your organisations work plan -
whether that is staff time or the time of volunteer members with a particular
interest in this area. Community based organisations that have few resources
may wish to consider strategies for locating one-off resources to participate
more effectively.
3. Running a series or articles and updates in your newsletters, association
magazines and webpages in the build up to the public comment period.
4. Identifying a small group of members and/or staff who are willing to
focus on this issue over the next 9 months and co-ordinate your organisations
submissions. This is particularly important for organisations who wish
to make detailed technical comments on the draft material. A small group
could more easily get to grips with the complexity of the material and
draw on resources to formulate a comprehensive response. For example,
the AIBS or a national disability advocacy organisation might consider
establishing a small expert group to identify issues of concern to its
members and co-ordinate a response - rather than expect all members to
develop their own submissions.
State-wide or national bodies might wish to seek out a range of BAPC members prior to the release of the draft material or during the comment period to clarify issues.
The Commission and other members of the BAPC would be happy to discuss these or other possible strategies. BAPC members can be contacted through the ABCB at Matthew.McDonald@abcb.gov.au
An Administrative Protocol
As stated earlier, the revised access provisions of the BCA and the Premises Standard will apply to all new public buildings. It will also apply to those areas of existing buildings undergoing new building work or change of use where development and building approval is required by State or Territory legislation.
There will, however, always be questions about how to interpret the Alternative Solution provisions of the BCA. For existing buildings there will also be legitimate questions about whether or not a requirement might involve an unjustifiable hardship. For example, some existing buildings may have been designed and constructed many years ago, and it may be simply impossible technically to meet the requirements of the revised BCA/Premises Standard in full.
Leaving these questions to individual interpretation or requiring legal action to resolve the matter does not appear to be appropriate or effective. For this reason the BAPC has also been working on drafting an Administrative Protocol suitable to be used by State and Territory building control administrations, which will assist them in achieving the best possible resolution to these issues.
Under the Protocol, each State and Territory building regulation body adopting it would set up a mechanism which would include an Access Panel, made up of people with relevant expertise, to deal with a number of issues including:
1. Determining whether or not a proposed Alternative Solution meets the
Performance Requirements of the revised BCA. This applies to both new
buildings and existing buildings undergoing new work.
2. Determining whether or not a requirement to fully comply with the revised
BCA would result in an unjustifiable hardship for a particular development
in an existing building.
It is not proposed that the Protocol will form part of a Premises Standard, but it will be open to State and Territory administrations to adopt voluntarily. The proposed Protocol will be released for public comment later this year.
The Commission envisages the views of an Access Panel would be sought in a number of circumstances, for example:
1. A Local Government may be approached by a developer who claims they
could not meet the full BCA requirements in relation to the new building
work on an existing building renovation because of severe technical limits.
In this case the Local Government or the developer may call on the expertise
of the Access Panel.
2. A building approval authority may require full BCA compliance in an
existing building changing use, but the building owner may feel providing
full access would cause them an unjustifiable hardship at this point in
time. In this case the building owner may seek to approach the Access
Panel.
3. A Council or private Building Surveyor might seek the views of an Access
Panel when faced with an Alternative Solution to an access issue in a
new or existing building.
People will continue to have the right to lodge a complaint with the HREOC and the courts if they feel that an incorrect decision has been made by an Access Panel. It is expected, however, that the expertise used to apply the Protocol and the guidelines under which it will work will result in decisions that are consistent with the DDA.
In some ways the Administrative Protocol proposes a mechanism that many
Local Governments have already established following the Commission's
advice on the consequences of the Cooper v Coffs Harbour City Council
case.
http://www.humanrights.gov.au/disability_rights/faq/Local_govt/local.htm
Inevitably when the new BCA and Premises Standard are adopted there will be a period when Local Government and private certifiers generally will seek the guidance and support of Access Panels when faced with difficult questions as decisions by Access Panels will provide greater surety and protection.
The Commission expects, however, that as knowledge of the new requirements grows and decisions of Access Panels become widely available approval authorities will develop the skills and confidence to make decisions without the need to refer to an Access Panel. This will be especially true in those Local Governments that have already established policies and procedures for dealing with current claims by developers.
The future of the Advisory Notes
The Commission's Advisory Notes on Access to Premises were issued in 1997 http://www.humanrights.gov.au/disability_rights/standards/Access_to_premises/premises_advisory.html and have become a widely referenced tool for those seeking clarification on a range of access related issues. The purpose of the Advisory Notes was:
1. To provide a checklist of all the issues (or elements) the Commission
believes should be considered when designing new premises to ensure access
for people with different types of disability.
2. To provide technical 'Reference points and notes' to assist people
to better understand the design options open to them when trying to achieve
equitable access to premises.
When the Premises Standard is adopted those responsible for buildings will have the surety of knowing that compliance with the BCA will also mean compliance with the DDA (for those parts of premises covered by the standard). At this point much of the content of the Advisory Notes will no longer be relevant because the Premises Standard will state specifically what level of access meets the requirements of the DDA.
The Commission will at that point withdraw the Advisory Notes and consider what it can do to continue to assist people in relation to those parts of the built environment not covered by the Premises Standard, such as:
- Some building fit-out elements
- Public parks and gardens
- Public picnic and BBQ areas
- Street furniture on the pavement
- Recreational areas such as beachfronts, play areas and jetties
- Pedestrian crossings, and
- Discrimination by staff.
No decision has been made at this point in time about whether the Commission will issue another Advisory Note, a 'Frequently asked Question' format or seek support for developing an additional part to the Premises Standard.
Keeping up to date
The next few months are going to see a number of documents released for public comment. You can keep up to date on progress by regularly looking at the ABCB or HREOC web sites
ABCB http://www.abcb.gov.au/
HREOC http://www.humanrights.gov.au/disability_rights/index.html
You can also register on the email mailing lists of either organisation.
ABCB http://www.abcb.gov.au/content/mailinglist/
HREOC http://www.humanrights.gov.au/disability_rights/contact/contact.html#emailyou