DDA exemption application by Public Transport Corporation (Victoria) and Others for Melbourne trams: Reasons for decision
Contents
2. Applicants and activity for which exemption is sought
3. Statutory
provisions from which exemption is sought
3.1 Provisions
in the DDA
3.2 DDA
and the draft Standards for Accessible Public Transport
4. Grounds
of application
4.1 The
Melbourne tram fleet
4.2 Victoria's
initial plan
4.3 Victoria's
revised plan
5.
Issues
for consideration
5.1 Submissions
on the application
5.2 What
should be done to make Melbourne trams accessible?
5.3 The
question of heritage values
6. Findings on material questions of fact
7. Conclusion
1. The exemption
Pursuant to section 55 of the Disability Discrimination Act 1992 (the DDA) the Commission has granted a conditional exemption from the provisions of section 23 and section 24 of the DDA in respect of the manner in which the applicants provide tram and light rail services in Melbourne (see Notice of HREOC exemption decision re: Public Transport Corporation (Victoria) and Others, adopted by the Commission 15 March 1999).
The exemption extends only to matters
- arising from provision of services using vehicles forming part of the applicants' fleet at the date of this decision and
- relating to physical access to those vehicles.
The exemption is subject to the following conditions.
- The exemption commences on 16 March 1999 and expires on 15 March 2004.
- The applicants are to implement the DDA action plan 21st Century Accessibility (the action plan) lodged with the Commission on 4 November 1999, as varied by the amendment to that action plan lodged by the applicants on 9 March 1999.
- Without prejudice to the importance of the action plan as a whole the applicants are to implement the following undertakings given in the action plan:
- provided that an adequate interface between low floor trams and infrastructure can be achieved, new trams will be introduced in Melbourne commencing in 2002 with 106 vehicles being replaced by the end of 2004 by 90 larger capacity low-floor vehicles
- apart from the issues of physical access dealt with by the exemption, the applicants will bring existing trams progressively into compliance with the draft DDA Standards for Accessible Public Transport by continuing the program of on-vehicle measures including improvements to such features as stop buttons, pull cords, grab rails, handrails, lighting along tram aisles and destination signs
- the 53 W-Class trams which are proposed to be retained for heritage purposes will operate according to the scheme described in section 5.4.6 of the action plan only on routes where as far as reasonably possible an accessible alternative is available or will become available.
- Where a routinely timetabled service operated by W-Class trams is provided to the public free of charge on a particular route then the accessible alternative must be provided free of charge to those people with disabilities who are unable to access W-Class trams and at least as frequently as the service provided by the W-Class trams.
- The applicants are to require as far as possible that any person who operates privatised services will also implement the action plan or an action plan lodged by that person that is at least as beneficial to people with disabilities as the action plan.
- The applicants are to publish annually a report on progress towards implementing the action plan and are to include in that report any steps taken by operators of privatised services that improve accessibility. This condition applies not only to tram and light rail services but to all matters covered by the action plan.
- If the applicants conclude that an adequate interface between low floor trams and infrastructure cannot be achieved and the introduction of low floor trams cannot commence in 2002 then the Commission will consider alternative appropriate exemption conditions that will facilitate implementation of the action plan.
The effect of the decision will be that if the applicants commence in 2002 to replace their existing fleet with accessible trams they will not be acting unlawfully in continuing to provide services with trams that are now part of their fleet even though those may be inaccessible to some people with disabilities.
This decision applies to services operated by the applicants and to privatised services as defined in these findings and reasons.
2. Applicants and activity for which exemption is sought
The applicants are
- the Public Transport Corporation (PTC) established under the Transport Act 1993 (Vic)
- Met Tram 1 and Met Tram 2 established under the Rail Corporations (Amendment) Act 1997 (Vic), now known as Yarra Trams and Swanston Trams
- the Department of Infrastructure (DoI), which administers the operation of public transport in Victoria under the provisions of the Transport Act and other legislation and
- the Minister for Transport for the State of Victoria.
The activity sought to be exempt is restricted to physical access to trams and the safety zones at which they pick up and set down passengers. The applicants are not seeking exemption for any other aspect of tram operation or for other public transport.
The applicants request that the exemption apply to the PTC and any successor, transmittee, assignee, franchisee or subcontractor (whether immediate or not) of the whole or part of the business conducted by the PTC. The applicants also request that the exemption apply to Met Tram 1 and Met Tram 2 and any successor, transmittee, assignee, franchisee or subcontractor (whether immediate or not) of the whole or part of the businesses conducted by Met Tram 1 or Met Tram 2. These successors, transmittees, assignees, franchisees or subcontractors are or will be the operators of privatised services.
A substantial part of Melbourne public transport services is provided by trams. Bus and railway systems are also major parts of Melbourne public transport. The whole system is the subject of the DDA action plan 21st Century Accessibility published in October 1998 by the Victorian authorities. The plan describes how all Victorian public transport will progressively be made accessible for people with disabilities.
3. Statutory provisions from which exemption is sought
3.1 Provisions in the DDA
The applicants are seeking exemption from sections 23 and 24 of the DDA. Section 23 concerns access to premises that the public are entitled to enter or use. Section 24 concerns goods, services and facilities. Taken together these two sections cover public transport services, the vehicles that provide those services and the infrastructure such as tram stops that are part of those services.
Section 23 of the DDA provides:
23. (1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if:
(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and
(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.
Section 24 of the DDA provides:
- This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
24. (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
3.2 DDA and the draft Standards for Accessible Public Transport
The applicants state that the action plan as published conforms to the draft DDA Standards for Accessible Public Transport, except for the time schedule for implementation.
The relevance of the draft Standards, not currently in force, to existing obligations under the DDA and this application of exemption from those obligations, is discussed further below. It is sufficient at this point to note that the Commission regards the draft Standards as generally reflecting existing rights and obligations under the DDA, while recognising that the draft Standards are not themselves in force and may be subject to further revision before possible authorisation, and that the Commission's powers and responsibilities are defined by the DDA as presently in force.
Under the action plan as published, it would take longer to make trams accessible than provided in the general time schedule in the draft Standards, assuming that the Standards commence now or in the near future. The draft Standards provide for a twenty year compliance period for full accessibility, with interim compliance requirements at five, ten and fifteen year points, subject to variation for unjustifiable hardship. Under the action plan as revised, some interim targets in the time schedule provided by the draft Standards would appear to be met although the time for full accessibility would remain beyond that indicated in the draft Standards.
It is important to note that the compliance requirements of the draft Standards would be subject, as the existing provisions of sections 23 and 24 of the DDA are subject, to an unjustifiable hardship defence. The compliance schedule provided needs to be read taking this into account. It would be open to the applicants under the existing provisions of the DDA, or under the draft Standards if in force, to argue in response to complaints that making some or all trams fully accessible by or prior to the dates set out in the compliance schedule, or by any other date, or even at all, would impose unjustifiable hardship. Whether such an argument succeeded would depend on relevant evidence produced in response to a complaint.
To the extent that the applicants accept and implement the conditions of this exemption, they in effect forego the right which they would otherwise have to seek to establish that they are not required to implement particular aspects of accessibility of trams earlier than proposed by them or even by later dates. Equally, granting the exemption relieves the applicants from having to establish a defence of unjustifiable hardship in response to complaints in relation to matters covered by the exemption. The applicants however have presented arguments and evidence in the context of this exemption application regarding unjustifiable hardship which in their view would be imposed were full accessibility of Melbourne's tram and light rail systems required within less than the time they propose.
4. Grounds of application
4.1 The Melbourne tram fleet
Trams are one of the defining features of the urban environment of Melbourne and its immediate suburbs. They have been part of the lives of people in Melbourne for much of the twentieth century. Victorian government policy is that trams be retained.
The applicants base their request for exemption on these points.
- Melbourne has a large fleet of trams, comprising 476 vehicles in daily service. This is much larger than in any other Australian capital city. Adelaide (21 vehicles) and Sydney (seven vehicles) are the only other capital cities with tram or light rail services.
- The Melbourne tram fleet is quite modern. More than 400 of the vehicles have been commissioned within the past 20 years. Nevertheless, the tram system has a significant historical characteristic which sets it apart from the public transport system in other cities. This is reinforced by the heritage value associated with the 53 older-style W-class trams which remain in service. These are more than 40 years old and are considered a Melbourne icon with significant local support and tourist interest.
- Trams are designed to have long service lives. A recent consultancy study conducted by the international firm Interfleet Technology Ltd indicated that Melbourne's modern-style trams (Z, A and B-class) could achieve service lives of at least 40 years. This means decisions about how to achieve accessibility on the tram network are correspondingly more complex than for many other public transport vehicles.
Infrastructure that has been established for decades often poses significant access problems for people with disabilities and the current Melbourne trams are no exception. The applicants for this exemption propose to make trams accessible but say that they cannot do so within the general timeframe proposed by the draft Standards. As noted above, this timeframe in the draft Standards is subject to a defence of unjustifiable hardship, as are the existing requirements of DDA sections 23 and 24.
As indicated in the Advisory Note previously adopted by the Commission regarding public transport, the draft Standards are a reasonably adequate statement of what compliance with the DDA requires. The applicants consider themselves exposed to a risk of liability under the DDA to the extent they do not comply with those draft Standards.
The application is restricted to questions of physical access to trams. The applicants say that they
... submit this Exemption Application in regard to the provision of tram and light rail services in Melbourne. Specifically the activity for which an exemption is sought is the provision of tram and light rail services to the public of Melbourne with respect to the physical ingress to (boarding) and egress from (alighting) vehicles used by the operator.
In terms of the DDA and the Draft Standards, tram and light rail services in Melbourne are inaccessible because the vehicles can only be boarded via steps ( the relevant Draft Standards are 8.1 - 8.3 and 8.5 - 8.8 concerning boarding and 14.1 -14.3 concerning stairs). This Application does not seek exemption from Standards not related to physical access (refer section 2.2.6 of this Application).
It should also be noted that the width and other layout features of the mid-roadway tram waiting areas known as safety zones have been designed with regard to the current vehicle boarding regime; it is not intended to fundamentally redesign safety zones ahead of the fleet replacement program, so, to that extent, the Application is also intended to cover safety zones. (But it should be noted that the provisions of Draft Standards relating to matters such as signage, information displays and colour contrasting paintwork will be complied with at safety zones in accordance with the expected timelines and are not included in the Application.)
The Melbourne tram fleet comprises vehicles in six classes as set out in the table below.
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The size of the fleet, the fact that it comprises different types of vehicle and its age profile are all significant factors in this application. The nub of the problem is that trams have a long design life and often an even longer working life. The current draft Disability Standards for Accessible Public Transport (considered without reference to a defence of unjustifiable hardship which might or might not be able to be established) set a compliance schedule that is shorter than the design life, and much shorter than the predicted operational life, of all but the oldest class of trams.
The applicants refer to their support for the DDA and the draft Standards and say that in all other respects they intend to comply. But on this one issue of the timetable for tram replacement they seek some relief.
The comparison of replacement according to the schedule in the draft Standards and according to design life is contained in the following table. It should be noted that replacing trams at the expiry of their "design life" would in itself represent significantly earlier replacement than might otherwise be undertaken, since in practice trams can serve and have in fact served considerably beyond an original or notional design life.
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Note that this table assumed authorisation of Disability Standards in the terms of the current draft or in relevantly similar terms in early 1999. As noted below, Victoria's revised proposal takes account of the fact that in the event such Standards have not yet been authorised.
4.2 Victoria's initial plan
The applicants' action plan as submitted on 4 November 1998 envisaged postponing the commencement of DDA compliance for tram access until 2008. Then fleet replacement would commence and proceed as the existing vehicles (apart from the W-Class) reached their 30 year design lives. As noted above, the replacement of vehicles at the expiry of design life would represent a significant bringing forward of fleet replacement compared to replacement at the end of actual operating life. On this basis the program would be expected to conclude after twenty-seven years, in about 2026. But there would have been a significant delay at the beginning.
4.3 Victoria's revised plan
The applicants modified their original proposal by submitting a variation to their action plan on 2 March 1999. This happened after submissions had been received and after a public forum was conducted in Melbourne by the Commission to discuss issues arising from the original application. That variation is set out here in full.
- Victoria will introduce low floor trams some six years earlier than proposed in the Exemption Application (i.e. commence 2002 rather than 2008);
- Victoria will replace 22% of existing vehicles by the end of 2004 (although vehicles may be replaced at a rate slightly below one for one); and
- The end date for full replacement of trams does not change from that previously advised.
Victoria did not cease consideration of tram replacement when it lodged its Exemption Application. As part of the "indicative bid" phase of the franchise process Victoria encouraged bidders to provide enhanced bids involving the replacement.
Victoria has also further considered the submissions made to HREOC and the discussion at the forum in Melbourne. It is clear that many of the parties involved hold the start date for tram replacement as being the most critical aspect of this issue as it is the first tangible evidence of implementation of Victoria's commitments.
In light of the above, Victoria has reconsidered its position in respect to replacement and will require bids on the basis of the introduction of new generation low floor trams to replace Z1/Z2 trams by the end of 2004. The Government will, however, only proceed on this basis if bidders can demonstrate that they will be able to adequately solve the interface between the low floor trams and Melbourne's infrastructure.
The table below summarises the impact this approach will have on the tram replacement schedule outline in Victoria's Exemption Application. The table demonstrates that:
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- Assumes promulgation of Standards in June 1999.
- Assumes promulgation of Standards in January 2000.
- Assumes 53 W-Class trams not replaced.
- Replacement program projected to finish in 2026.
- Although replacement is brought forward, the timelines required under the draft standards would still not be met (although if the 53 W-Class trams are excluded from the calculation the first timeline under the draft standards would be met); and
- in the early years of the replacement program most of the replacement will [have] occurred in the Swanston franchise which has the bulk of the older trams in the system so that even though the network as a whole broadly complies with the draft standards one of the businesses will not.
- Previous governments had given undertakings about making trams accessible but nothing had happened.
- The present government had done little so far to make trams accessible and its promises to take action should not be believed.
- The proposed exemption was contrary to the draft Disability Standards for Accessible Public Transport.
- If granted, an exemption would prevent people with disabilities from lodging complaints about disability discrimination in public transport.
- The Commission should not grant the exemption but should require the applicants to do things to make trams accessible.
- There are 80 low-floor buses in the fleets of suburban bus operators with more to be introduced.
- There are 17 coaches equipped with wheelchair hoists on V/Line Passenger bus routes.
- Due to the purchase of 25 modern Sprinter trains and retro-fitting of eight older carriages many V/Line Passenger rail services are operated by vehicles with appropriate accessibility features including accessible toilets.
- Full access audits have been carried out on the metropolitan train and V/Line Passenger systems and sample routes on the bus and tram networks have also been audited.
- Public transport information is available in accessible formats including Braille, via TTY (telephone typewriter) and on the Internet.
- Customer contact staff in each of the transport modes now undergo customer service training programs which include disability awareness modules.
- hoists do not offer benefits for passengers other than those in wheelchairs (it is estimated that only around 1 per cent of people classified as having a disability would benefit from a wheelchair hoist)
- it is likely that many people in wheelchairs would still be concerned about the extent of the benefit they would derive from a wheelchair hoist retro-fitted to a tram.
- tram boardings via a wheelchair lift would involve substantial disruption to timetables.
- Previous consultation with disability reference groups in Melbourne was conducted on this issue during 1996 and at that time the Accessible Transport Consultative Council confirmed, in a letter to the Minister, that retro-fitting is not considered to be the most beneficial option.
- This opinion was given in the context of it being apparent from international evidence that a range of low-floor designs for new vehicles are available and would offer more accessibility benefits. As a consequence, the retro-fitting option is not the Applicants' preferred outcome.
- the first target in the draft standards is met
- the second target is in fact exceeded
- only modest progress is made towards the third target
- the fourth target is equalled.
- While
it is acknowledged that the trams are not accessible, the requirement
for accessibility needs to be balanced against heritage and other
issues. To achieve this it is expected that DOI and the new operators
will negotiate an overall tram deployment regime such that use of
the W-class trams provides for maximum visibility in a tourist/heritage/
city image sense, but that their use in public transport terms is
increasingly that of a niche role. It is expected that the W-class
vehicles will be mainly deployed on services such as:
- the free City Circle route, which offers tourists and other city visitors a heritage/experience trip around the edges of the Central Activities District
- St Kilda Road trips where there are multiple routes and the overall frequency of trams is such that there will never be a long wait for an alternative vehicle (for example, route 8 to Toorak, which is a relatively short route beyond the St Kilda Road section, and route 16 to St Kilda Beach, which has nearby alternative routes on that part of the route beyond St Kilda Road)
- city shuttle services (for example, Brunswick Street to Spencer Street along Macarthur Street and Collins Street) which are typically provided in the busy middle-of-the-day peak to supplement other trams and where the frequency is again such that a long wait for another tram is never necessary
- route 12, to South Melbourne and St Kilda Beach, where alternative tram routes into the city are close by, and a demand responsive accessible bus service also operates.
Notes:
The applicants also say:
The principles behind Victoria's Exemption Application and Action Plan have not been changed (other than bringing forward replacement even earlier than foreshadowed) and the change in approach necessitates longer first franchises (to accommodate the capital expenditure required of bidders). The need for an exemption is therefore not removed because:
5. Issues for consideration
5.1 Submissions on the application
The Commission's policy is to consult in public about exemption applications so that it has the benefit of as many views as possible before it makes a decision. To that end the application for exemption was published on the Internet together with an information sheet on how submissions should be made. The Commission also notified a range of disability community and other relevant organisations directly. A notice inviting submissions was published in the press and information sheets and copies of the application were sent to people who made inquiries.
Submissions that were received in suitable format were published on the Internet so that any interested party could see what was being said. Eighteen written submissions were received. The Commission thanks all those who took time to make submissions on the application.
The Acting Disability Discrimination Commissioner on behalf of the Commission conducted a public forum in Melbourne on 8 February 1999 at which oral submissions were made. The forum was attended by approximately 40 people with disabilities and representatives from community organisations with wide memberships. Representatives of the applicants also attended to answer questions and provide information. There was a vigorous and helpful discussion of issues about accessibility of Melbourne trams. The Commission again thanks all those who participated.
The written and oral submissions all emphasised the important role that trams play in the Melbourne public transport system. They strongly asserted the rights of people with disabilities to have access to that system and were particularly critical of the lack of action over many years to make trams accessible. A number of people referred to the acquisition of inaccessible trams in the 1980s and early 1990s even though obligations concerning accessibility were part of the Victorian Equal Opportunity Act from 1981 and part of the DDA since 1992 .
Most submissions opposed granting the exemption. The views expressed were diverse but most had five concerns in common.
The Commission has decided nonetheless to grant the exemption on certain conditions. Its responses to the contentions made in submissions follow.
Previous governments have given undertakings about making trams accessible but nothing had happened.
Previous governments may have failed to meet commitments on accessibility of trams. Certainly many people with disabilities cannot use Melbourne trams because the trams are not accessible. It is also true that inaccessible trams were acquired after 1981 even though the law of Victoria may well have required that they be accessible, and a smaller number were acquired after the DDA entered into force in 1992.
The Commission considers it irrelevant to consideration of the current exemption application that previous governments may have given commitments and then failed or been unable to deliver accessible trams. The Commission would be mistaken in law if it were to give decisive weight to statements and actions that are matters of history and that were not attributable to the present applicants. Even if it were relevant it is not necessarily true that actions of present governments will be the same as those of past governments, only that they may be. The issue for present purposes is whether the commitments made by the present government are sufficiently credible to justify granting an exemption. The Commission has found that these commitments are sufficiently credible.
In this respect the Commission emphasises again that the exemption is conditional on those commitments being met.
Further, interested parties need not wait until 2002 to make any arguments that action is not occurring as promised in the intervening three years. The Commission is not taking (and compelling other parties to take) the applicants purely on trust for that period.
The exemption is subject to a condition that the applicants report annually and publicly on progress in implementing their action plan, including in relation to privatisation of services. The Commission also has power (implicit in the power to grant an exemption) to vary or revoke the exemption if sufficient grounds appear at any point for doing so. Interested parties would be free to bring to the Commission any evidence which might arise that commitments due to be delivered in or beyond 2002 would not be met. For example, information to the Commission indicated a lead time of approximately eighteen months for entry into service of new trams even if the applicants were required to commence fleet replacement immediately. Interested parties might wish to approach the Commission either for variation of the exemption or with complaints if appropriate specifications or orders are not in place early enough in advance of 2002 to permit deliveries to commence on time.
Whether actions of the Victorian authorities in acquiring inaccessible trams after 1981 or after March 1993 were unlawful under Victorian law or the DDA, or whether it was or is unlawful not to have refitted trams already acquired for accessibility, does not require determination in the present proceeding. If it did, investigation of available technology and costs of applying that technology at relevant times would be required.
In any case, past unlawful action cannot be regarded in itself as an absolute barrier to a current application for exemption. In its nature, an application for exemption under the DDA involves acknowledgment of at least a substantial risk that past or current actions or states of affairs would be found to involve unlawful discrimination. The conditions on which the Commission has decided to grant this exemption and the commitments made by the Victorian authorities are intended to achieve change from the (possibly unlawful) discriminatory present to a non-discriminatory future.
The present government has done little so far to make trams accessible and their promises to take action should not be believed.
The applicants have lodged with the Commission under DDA section 67 a disability discrimination action plan 21st Century Accessibility. The plan sets out in detail the steps being taken to make all public transport in Victoria accessible. In the foreword the Minister for Transport, the Hon. Robin Cooper, says
It is increasingly obvious that the make-up of public transport users is changing. Victoria's tram, train and bus services are not just being used by daily commuters, schoolchildren and tourists. Our transport services are now being used by those who no longer have a car, the active elderly, parents with young children and prams, people with shopping, travellers with luggage or backpacks. Coupled with the ageing of the population, the demand for accessible public transport will only increase.
The Victorian Government is not only committed to the provision of a transport service that is clean, safe and reliable. The provision of accessible services that make it easier for people with special needs to use is vital for the future.
Over the past few years, the Government has demonstrated its commitment to accessible transport through participation at the Australian Transport Council and its support for the acceptance of the Draft Standards. The Victorian Accessible Transport Consultative Council has also continued to advise me and the Public Transport Corporation about accessibility issues.
The action plan introduced by the Minister contains a description of past and current actions and commitments for the future. Significant action has already occurred.
The Melbourne tram system at present is an example of how infrastructure creates barriers to people with disabilities. The applicants have a detailed plan about how to change that. There is evidence of commitment to accessible public transport in the form of a detailed action plan and open acknowledgment of legal obligations under the DDA. The Victorian Government has actively supported the development and introduction of standards for accessible public transport. It has already made significant progress towards fully accessible train and bus networks. If it fails in its commitment in relation to trams people with disabilities can lodge complaints under the DDA or the Victorian Equal Opportunity Act.
The proposed exemption is contrary to the draft Disability Standards for Accessible Public Transport.
The draft DDA Standards for Accessible Public Transport were developed after an extensive period of consultation with the community, industry and governments. The draft remains under consideration and the draft Standards are not yet law. Standards are made by the Minister (the federal Attorney-General) not by the Commission. The Commission supports the Standards and urges their speedy adoption.
The Commission has published Advisory Notes to set out its attitude to the draft Standards while they have not been authorised so as to become law. The Commission said:
HREOC will consider the draft Standards, and measures taken or proposed to be taken to comply with them, in relation to applications by a public transport operator or provider for temporary exemption under the DDA. This includes consideration of the implementation schedule contained in the draft Standards, although ... HREOC would not automatically endorse that schedule in all respects.
None of the submissions received on this application suggest that the draft Standards are not a proper basis for the Commission's consideration. In considering the present exemption application the Commission has used the draft Standards as the basis for what is an acceptable level of compliance with the DDA.
As noted earlier in these reasons, the draft Standards provide a timetable for progressive movement towards full accessibility. But they also provide that this timetable is subject to considerations of unjustifiable hardship and can be varied in its application for that reason.
Several submissions pointed to the inclusion of an unjustifiable hardship provision in the draft Standards as a significant concession by the disability community. However, none of the submissions appeared to take sufficient account of the effect of this provision on the obligations which the applicants might have under the draft Standards when authorised or the effect of the provision of the DDA for unjustifiable hardship on existing obligations. The Commission was urged to accept the timetable for fleet replacement as immutable but in view of the flexibility which is provided by the draft Standards and the existing provisions of the DDA it is unable to do so.
Sections 23 and 24 of the DDA quoted above provide that unjustifiable hardship is a defence to a complaint of disability discrimination. Section 11 of the DDA gives a list of matters to be taken into account when a claim of unjustifiable hardship is being considered. The draft Standards at clause 33.11 contain a detailed provision concerning unjustifiable hardship and the last part of that clause allows extended implementation timetables if unjustifiable hardship can be shown. Clause 33.11 provides:
33.11 In determining whether compliance with a requirement of these Standards would involve unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(Subclauses a - m are a detailed but not exhaustive list of benefits and detriments for people with disabilities and others and the technical, operational and financial matters relevant to unjustifiable hardship. For the sake of brevity they are omitted here but this is in no way to minimise their significance.)
(n) where a person or organisation concerned has given an Action Plan to the Commission under section 64 of the DDA, the terms of that Action Plan and any evidence regarding its implementation;
(o) the nature and results of any processes of consultation, including at local, regional, State, national, international, industry or other level, involving or on behalf of an operator concerned, any infrastructure providers as relevant, and people with a disability, regarding means of achieving compliance with relevant requirements of these Standards and including in relation to the factors listed in this section;
(p) where a person or organisation seeks a longer period to complete compliance with these Standards or a requirement of these Standards than is permitted by the preceding sections on Adoption and Compliance, whether the additional time sought is reasonable, including by reference to the factors set out in paragraphs (a) to (o) above, and what undertakings the person or organisation concerned has made or is prepared to make in this respect.
The general timetable for accessibility in the draft Standards requires progressive implementation over a period of twenty years commencing when the Standards become law. As the Standards have not yet become law, the twenty years has not commenced (so far as the Standards are concerned as distinct from the existing effect of the DDA). The applicants have chosen to develop their action plan as if the Standards had commenced although they need not have done so. They could have relied on the general provisions of the DDA and sought to defend any complaints on the basis of unjustifiable hardship. Their action plan is thorough and contains targets to be achieved and a process for review. It provides evidence of commitment. It also lets everyone know what to expect whether as a consumer, a service provider or the Commission. The applicants must be aware that if expectations are disappointed then that will reflect upon them and expose them to complaints under the DDA. The Commission commends them for taking this open and public approach.
The Commission concludes that the applicants have in their application and action plan addressed sufficiently the issues which are raised in clause 33.11 of the draft Standards and which arise for consideration under the existing unjustifiable hardship provision of the DDA. It follows that the Commission does not accept the proposition that granting the exemption would be contrary to the draft Standards or to the objects of the DDA.
If granted, an exemption will prevent people with disabilities from lodging complaints about disability discrimination in public transport.
In the Commission's exemption decision in Re: Minister for Transport for South Australia and others, on an application similar to the present one, the then Disability Discrimination Commissioner, Elizabeth Hastings, said:
A conditional exemption granted by the Commission pursuant to section 55 of the DDA is no bar to the lodgement of complaints. It is, however, an absolute defence provided that the conditions of the exemption are observed. If an exemption is granted to the present applicants, the bare minimum condition placed upon the grant would be that the Action Plan submitted in support of the application is implemented and, if need be, improved. Whether this condition is being met at any particular time would be a matter of fact to be determined. If the Action Plan is not implemented, then an essential condition of the exemption is breached and the present applicants would have to defend a complaint on the usual ground of unjustifiable hardship. I expect that this would be an undesirable outcome from their point of view. It is, however, a matter for them to decide.
An exemption granted to Victorian authorities means that until it expires some things that might be disability discrimination under the DDA are not unlawful. However, complaints can still be lodged. If the conditions of the exemption are being met by the tram operators then the complaints would be dismissed. If the exemption conditions are not being met or the complaint is about aspects of public transport outside the scope of the exemption then the complaint would be dealt with on its merits.
The Commission should not grant the exemption but should require the applicants to do things to make trams accessible.
A number of submissions asked the Commission to reject the application and make the applicants acquire low-floor trams immediately or fit existing trams with hoists or both.
Apart from dealing with a complaint, the only formal way the Commission can affect accessibility of Melbourne trams is to grant an exemption and set conditions that the applicants will observe. Refusing the current application or granting it on conditions are options available to the Commission but it does not have power to put conditions on a refusal.
This is not to dismiss the suggestion in submissions that fitting vehicles with assistive devices is an alternative that will provide access while long-term fleet replacement is underway. That issue is examined next.
5.2 What should be done to make Melbourne trams accessible?
Submissions were divided on the question of what should be done to make trams accessible. Some people thought that acquiring new low-floor vehicles was the only solution. Some thought that hoists should be fitted to existing vehicles because fleet replacement is a process that will take years to complete. A further option to insert a low-floor mid-section in existing articulated vehicles was brought to the Commission's attention and the applicants were asked to consider it.
A fleet replacement option that will be implemented progressively between 2002 and 2026 has the obvious disadvantage that in its initial stages and for some years thereafter the tram fleet will be only partly accessible.
On the other hand fitting every existing vehicle with hoists (retrofitting) would be cheaper than acquiring new vehicles and could be accomplished much more quickly, although it should be noted that retrofitting must itself be a process that cannot be accomplished overnight. Obviously vehicles must be taken out of service not just for the attachment of hoists and associated equipment but for internal modifications that would provide spaces for wheelchairs and access through the vehicles to those spaces. Given the size of the Melbourne tram fleet it is reasonable to assume that a retrofitting program would itself take a number of years to complete.
The low floor midsection option
At the Commission's request the applicants also considered an accessibility solution used in some countries where articulated trams are in operation. This involves placing a low-floor mid-section between the two existing halves of the articulated vehicle. Although maximum accessibility is possible in only part of the vehicle it could be a useful interim measure where articulated vehicles are relatively new and not due for replacement for many years. There are 132 articulated trams (the B-Class) in the Melbourne fleet at present.
The applicants examined this option and advised that they did not favour it. The cost per vehicle would be about $700,000 compared to costs of about $2 million per vehicle for total replacement. Further, the necessary infrastructure at tram stops is likely to be incompatible with new infrastructure required for purpose built low floor vehicles to be acquired under the revised proposal. Without needing to adopt precise cost figures, the Commission accepts that these factors mean that it would be unreasonable to require fitting of low floor mid sections to the B class articulated trams as a condition of this exemption. The relevant debate to consider accordingly is that regarding fitting of hoists to existing vehicles.
The hoist retrofitting option
In considering whether retrofitting is a viable option for the purposes of this exemption application the Commission must form its own opinion. Opposing views offered in submissions are of some weight but they are not decisive for either side of the issue.
Information presented to the Commission indicates that the technology of hoists has developed rapidly in recent years and that their safety and reliability of operation is now sufficient for them to be used widely in passenger transport. The applicants have installed hoists on some V/Line Passenger coaches. The point at issue is whether an improvement in accessibility for wheelchair users and others with severe mobility impairments within a relatively short period is so preferable to bringing forward fleet replacement that the Commission should seek to require the former course of action.
In this context, the Commision must consider the future cost of fleet replacement when the retrofitted vehicles reach the end of their working lives. In some cases these working lives would be relatively short, raising questions of the cost effectiveness of retrofitting. In other cases investment in retrofitting might lead to extension of working lives sought from existing vehicles and thus the postponement of their replacement with vehicles which could offer superior accessibility.
The cost of retrofitting would be additional to the cost of fleet replacement. Although modest when compared with the overall expenditure necessary for fleet replacement the additional funding would still need to be found. .
It might be necessary to find that additional funding by delaying the fleet replacement program Although retrofitting is presented as a temporary measure it could present an attractive reason for future tram operators to extend the lives of existing vehicles that even with hoists would offer diminished accessibility to many community members. Retrofitting is an option that can readily be taken up again if circumstances warrant. However, a substantial number of existing low-floor trams that are appreciated for their ease of use by the whole community appears the best guarantee of continuation of the fleet replacement program, thereby achieving maximum accessibility in the shortest possible period.
There is also the question about which method of providing accessibility gives the best outcomes for the most people. This is a legitimate question for the Commission to consider having regard to the object of the DDA to "eliminate discrimination as far as possible" and the duty of the Commission under section 10 of the Human Rights and Equal Opportunity Commission Act to ensure that its functions (including functions under the Disability Discrimination Act) are conducted "with regard to the principle that every person is free and equal in dignity and rights" and "efficiently and with the greatest possible benefit to the people of Australia".
There is evidence that being lifted on a hoist poses problems for people who are not seated in a stable wheelchair. Blind people, the frail elderly and people who can walk but have impaired mobility are among those who may experience some difficulty.
On the other hand retrofitting would permit wheelchair users in particular to have access to trams sooner than would otherwise be the case. It is an open question how many other people with disabilities would be advantaged. Some people have expressed concern about the obvious "setting apart" use of an overt assistive device imposes. Others say that the independence and participation that freedom of movement brings are essentials of human dignity outweighing the momentary stigma of using a hoist and perhaps inconveniencing others by a small delay.
The applicants' views
The applicants are opposed to fitting existing trams with hoists. They commissioned consultants Rust-PPK to prepare a detailed technical study of tram accessibility and have given a copy of the report to the Commission. The Commission has not found it necessary to form any views about the technical matters canvassed in the report other than to note that they indicate the complexity of adapting infrastructure in an already crowded urban environment. The purpose of the report was the narrow one of examining how the existing trams could be made accessible on two specific routes. It does not compare the costs and benefits of doing this with those arising from new low-floor trams. The report states only that "[in] keeping with world-wide trends, it is expected that future trams for Melbourne would be of the low floor design".
The applicants address retrofitting in their action plan and say that the Accessible Transport Advisory Council (ATCC), the body that advises the Minister for Transport on accessibility issues, supports their view. The ATCC includes representatives of people with disabilities but it did not make a submission on the exemption application. Its chairperson attended the public forum in Melbourne and made oral submissions supporting the action plan. A number of ATCC members also attended the forum as private individuals and expressed a range of views including anxiety that any delay in the introduction of accessible trams would be completely at odds with the objectives of the DDA.
The exemption application says:
The major device to be fitted in a retro-fit program would be a wheelchair lift or hoist, with consequent changes to the tram body and doors and to the interior of the vehicle. (Changes at safety zones and other stops would also be required.) It has been estimated by the consultants Rust PPK that the cost of a retro-fit program would be up to $160,000 per tram or approximately $68 million for the total fleet of 423 vehicles. A retro-fit program could be spread over 20 years as a means of meeting the progressive compliance timelines and the trams, once retro-fitted, would not need to be replaced until at least after a 40 or 50-year service life. As a means of meeting the compliance targets and yet avoiding (or at least substantially deferring) the much higher costs of full fleet replacement, retro-fitting can be seen as an attractive commercial approach.
However, on many other grounds, it is not seen as desirable; it is widely acknowledged that retro-fitting of wheelchair hoists is a poor solution from a customer perspective. Among the reasons for this are:
Submissions on retrofitting
The Rust-PPK conclusions were strongly contested in written and oral submissions. Mr Frank Hall-Bentinck, an experienced advocate for and respected member of the disability community, made a submission that was in large measure followed by a number of others who made submissions. Mr Hall-Bentinck said:
12. The Applicants state "hoists do not offer benefits for passengers other than those in wheelchairs (it is estimated that only around 1 per cent of people classified as having a disability would benefit from a wheelchair hoist)." This statement seems to be based on very little research as people with ambulatory disabilities, elderly citizens and parents with prams would be able to use trams if they have hoists with handrails. The Federal Attorney-General's Regulation Impact Statement on the Draft Disability Standards for Accessible Public Transport (page 17) quotes ABS(1993) demographic statistics that 10.3 percent of the Australian population experience handicaps which affect their mobility. Easy access to trams would allow this Group of people to continue to travel around their local communities, to the shops and community centres. In Table 3.1 (Clare and Tulpule 1994 p36) of this RIS (page 20) that in year 2041, 13.5 percent of the Australian population will experience handicaps which affect their mobility. How long will we be denied easy access to the tram network?
13. The Applicants statement "it is likely that many people in wheelchairs would still be concerned about the extent of the benefit they would derive from a wheelchair hoist retro-fitted to a tram" again seems to based on very little research, how many people in wheelchair have said they did not want retro-fitting of trams? Which Groups were consulted? What did they say?
14. The Applicants statement "tram boardings via a wheelchair lift would involve substantial disruption to timetables." is again based on very little research. At present tram time tables are affected by road conditions, heavy traffic, the numbers of people boarding and/or alighting, accidents etc. Trams will be no different to buses, for which the Applicants have not claimed any exemptions.
The Uniting Church in Australia Synod of Victoria argued against retrofitting and for an adjustment of the fleet replacement schedule:
In the Exemption Application it is argued that "uncertainty" will be created in the minds of potential bidders for the tramway system if the 5 year extension is not granted. Should this be the case, the Uniting Church wonders if consideration could be given to altering the 5 year increments of 25%, 55%, 90% and 100% replacement schedule according to the Draft Standards. In order to progressively replace the trams purchased from 1975 onwards, commencing in the 1999 - 2004 period, a lower than 25% figure in the first 5 year period, with subsequent "catch-ups" during the 20 year period, may alleviate any such financial pressures. However, the Uniting Church believes that any determination of the relativities of "uncertainty" need to be weighted towards the needs of people with disabilities, rather than potential bidders within the privatisation process. The life opportunities of people with disabilities must not be compromised any further by an inaccessible tramway service, and that people with disabilities receive a clear and positive message that their needs are not negotiable because of a shift in emphasis from public to private management.
Villamanta Legal Service said that:
Whilst the timetable for replacement of existing trams extends the period for compliance by 10 years, the $1 billion is paid out in irregular periods. For instance between 2004 and 2009 $124 million has to be found, between 2009 and 2014 $388 million has to be found, yet between 2014 and 2019 only 70 million is required. Would it not be simpler to stagger the introduction of the new trams in a way that would alleviate the burden of some years and spread it evenly? This would also stagger the burden when these new trams come to the end of their 'lives'.
Several submissions suggested a mixed regime of retrofitting and new vehicles. For example, Mr John Annison of the Institute of Disability Studies at Deakin University provided a scheme on the basis of the applicants' original plan to commence fleet replacement in 2008. Mr Annison said that plan should be rejected in favour of the following.
3.1. In regard to the replacement of the existing tram fleet (excluding the Heritage W Class) with accessible trams:
1. Require all new trams and all trams substantially repaired following any accident of mishap (e.g., a fire on board) be fully accessible to people with any type of mobility difficulty;
2. Require that 106 of the current 132, B Class trams be modified to provide platform lift access or similar, suitable for use by all people with mobility difficulties within the next 5 years;
3. Require that the remaining 26 of the B Class trams be modified to provide platform lift access or similar within ten years
4. Require the replacement of 101 of the existing 106, Z1 and Z2 Class trams by fully accessible trams within ten years.
5. Require the replacement of the remaining 5, Z1 and Z2 Class trams, and the replacement of the 115, Z3 Class trams together with 28 of the 70, A Class trams by fully accessible trams within 15 years.
6. Require the replacement of the remaining 42, A Class trams by fully accessible trams within twenty years.
7. Require the replacement of the 132, modified B Class trams within 30 years.
The Commission would have considerable interest in a proposal such as this in the context of the applicants' original plan. But the applicants have responded to the views expressed in submissions and at the forum by submitting a revised plan that makes the case for retrofitting much less compelling.
The Commission's view
The applicants' revised proposal is set out in the following table.
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This table gives accessibility figures at years representing each of the five year compliance points in the general timetable in the draft Standards (taking 1999 as a notional commencement date) and at the point two years beyond required to complete the replacement program.
The rate of progress during the proposal compared to the rate in the general timetable required under the draft Standards is shown in the next table. The durations of the proposal and the draft Standards general timetable are different and, because benchmarks in the draft Standards are set in terms of 5 year periods, the comparison must be approximate.
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This table is included to illustrate that under the applicants' timetable, setting aside an initial delay while ordering and delivery commences
The applicants' proposal puts fleet replacement after 15 years at 66 percent. This is substantial progress and of equal importance it represents a "critical mass" which should make it possible to operate the great majority of tram services in an accessible way with new low floor trams. The measures being taken to achieve accessible buses and trains in accordance with the draft Standards will at that stage have achieved replacement of 90 percent of respective fleets. A high proportion of all vehicles used in the Melbourne public transport system therefore will be accessible to people with disabilities after 15 years.
There are two periods in the tram replacement program where progress is slow. These fall between 2004 and 2009 and between 2015 and 2019. The Commission is satisfied that tolerating these periods represents a reasonable offset against the cost of commencing to replace in 2002 vehicles whose 30 year design life is not reached until 2008 or in some cases much later, and where potential operational life might extend many years beyond that. On that basis the Commission finds the proposal acceptable, considering the terms and objects of the DDA. This result is in keeping with clause 33.11 of the draft Standards.
As new trams are introduced questions will inevitably arise about their distribution across routes. Some submissions argued that in the interests of equity the distribution ought to be uniform across the system. On the other hand the applicants said that there are more of the older Z-Class trams in the Swanston Trams business than in the Yarra Trams business. This means that Swanston Trams routes will become accessible sooner because they will receive the first low-floor vehicles.
Similar issues about how to deploy new vehicles have arisen when low-floor buses are introduced. Certainly a service does not become accessible on the day the first vehicle commences service, nor when the second, third and fourth commence. The choice that confronts operators is whether to concentrate new vehicles in a way that makes a particular route accessible quickly or to diffuse the benefits throughout the system, perhaps leaving all routes below the critical numbers necessary to make any route effectively accessible. This is an operational decision of great importance to people with disabilities. The Commission does not consider this a decision that should be made by the Commission in the context of this exemption application. Rather, the people who are going to run the trams and the people who are going to use the trams should discuss the issue. The action plan provides for continuing consultation with people with disabilities and the recommended exemption condition that the action plan be implemented is all the Commission should do on this point now.
5.3 The question of heritage values
The applicants say that trams are "icons of Melbourne" and as such they are enjoyed by residents and visitors alike. The 200 W-Class trams are between 40 and 60 years old and it is said that they have significant heritage values that cannot be replaced. These trams feature prominently in tourist and promotional material. The City Circle tram service provided free of charge is operated only by W-Class trams and is a tourist attraction. The applicants point to the importance of tourism to the economy and the role Melbourne plays in generating approximately 60% of tourist revenue in Victoria.
The Minister for Transport has agreed that 53 of the W-Class trams will remain in service. The applicants do not take these vehicles into account when calculating the numbers involved in fleet replacement. For that purpose they only consider the Z, A and B-Class trams. They do not propose to make accessible the W-Class trams that remain in service.
Heritage issues are commonly met when questions of accessibility of premises and facilities are addressed. Heritage is a genuine community value that enriches our lives and deserves respect. It is perhaps not generally realised that so far as buildings are concerned the competition between heritage values and the rights of people with disabilities is more apparent than real. Access problems can usually be solved in ways that facilitate access without detracting from heritage. The issue is harder to resolve, however, in the case of public transport vehicles.
As a general principle the DDA requires access for people with disabilities in ways that recognise their rights. The Commission would be reluctant to accept a proposition that heritage values should prevent people from getting an education, going shopping or having a job. Public transport is an important factor in living in Australian society and is particularly important for people with disabilities. Its importance can only grow as Australia's population ages. A participant at the public forum on this application said, "A community would have a poor set of values if access is seen as less important than heritage". The Commission agrees.
The applicants have proposed a scheme for retaining the heritage W-Class trams in a way that does not significantly affect their overall plan to make Melbourne public transport accessible. That scheme is set out at section 2.2.5 of the application and section 5.4.6 of the action plan.
The Commission has concluded that the proposal does not detract from the overall advancement of the objects of the DDA which the action plan achieves and that the 53 W-Class trams to be retained indefinitely in operation should fall within scope of the exemption, provided that certain conditions are met. This conclusion is based on the fact that the primary use of these vehicles will be on tourist routes where heritage values may reasonably be given relatively more weight than in general public transport service. Some W-Class trams will also continue in service to supplement the existing general fleet but these will be phased out as that fleet is replaced by new low-floor vehicles.
The applicants say:
The Commission does not accept that it should grant an exemption on the basis that it is "expected that the W-class vehicles will be mainly deployed on services such as .". Rather it grants the exemption on condition that the W-class trams to be retained in long term service are used only on the four services listed and on one further condition relating to the City Circle routes.
The City Circle route is provided free of charge. If it is to be operated with vehicles that are inaccessible to people with disabilities then an accessible alternative to that route or any other that is conducted on the same basis must be provided, and it must be free of charge to people who cannot get into or out of W-Class trams. The exemption for W-class trams is granted subject to a further condition to that effect.
This decision permits the W-class trams to be retained in service. The Commission does not consider that it should decide in the context of the present application whether modification of W-class trams should be required in future.
The Paraplegic and Quadriplegic Association of Victoria make the point that W-Class trams have been made accessible elsewhere.
The argument for the retention of W class trams without alteration to provide access, may have some validity if there are plentiful other trams which are accessible on the same lines. However in Seattle in the USA, there are several Melbourne W class trams on a route similar to the city circle route. In this city, where access and disability rights are taken more seriously, access is provided to these trams via raised, ramped platforms, requiring no alteration to the outside of the tram and only minimal restraints on the inside.
The applicants argue that infrastructure may be complicated and difficult to use where different vehicles that require varied ramp heights are used on the same route. Even so it does not seem beyond the realm of possibility that a technical solution could be found, in particular for the City Circle route where only one class of vehicle is to operate. Although an exemption for the remaining W-Class vehicles is appropriate until 2004 the Commission suggests that the applicants, the National Trust and disability representatives should continue to discuss this issue during that period.
6. Findings on material questions of fact
The Commission's decision that a conditional exemption be granted depends upon the findings of fact contained in these reasons.
The Commission accepts the applicants' arguments that the existing Melbourne tram system presents challenges in achieving accessibility for people with disabilities that are specific to that system.
Much work is still to be done to make public transport fully accessible and many people with disabilities continue to experience difficulty and frustration in using public transport. A system that is only partly accessible will provide satisfactory services only part of the time at best. This will continue for some time whatever course is adopted with respect to this exemption application. The Commission is satisfied, however, from the substantial work has been done and the work that is continuing that the applicants are committed to addressing accessibility of trams and are pressing ahead with their project to make all modes of public transport accessible.
The applicants have made a substantial financial commitment to make trams accessible. The cost per vehicle is said to be between $2 million and $3 million dollars in today's terms suggesting overall expenditure in the order of $1 billion dollars. This expenditure is not all due to accessibility requirements. Trams will need to be replaced in any event as they approach the end of their working lives. There may also be factors concerning the efficiency and amenity of new vehicles that would move the applicants and the operators of privatised services to acquire new trams early.
The applicants say that they are prepared to incur a very substantial additional cost by bringing forward acquisition of new trams instead of making replacements when existing vehicles reach the end of their working lives. They have not presented costings for their revised proposal but the original proposal to commence in 2008 was said to incur an additional cost of $45 million per year. It is reasonable to assume that this is not diminished by bringing the commencement