I object to the application by the Taxi Council of Queensland and the Taxi Council of western Australia for exemption from the operation of ss.5, 6 and 24 of the Disability Discrimination Act 1992 (“the DDA”) as far as they relate to Part 1.2 of Schedule 1 of the Disability Standards for Accessible Transport 2002.

I ask HREOC to reject the application in its entirety.

I write as a wheelchair user living and working in NSW who has used taxi services in Queensland within the last two months for both pleasure and business purposes. 

I believe that the exemption would unreasonably restrict my right to travel free from unlawful disability discrimination.  I believe that the applicants and their members should be bound by the requirements of ss.5, 6 and 24 of the Disability Discrimination Act 1992 (“the DDA”) as far as they relate to Part 1.2 of Schedule 1 of the Disability Standards for Accessible Transport 2002 noting that there remains available at all times a defence of unjustifiable hardship should any case ever be raised against the applicants and/or their members .

Contrary to the claim by the applicant, the aim of the exemption application is inappropriate and unreasonable.   

The applicant asserts (with no supporting evidence) that the application,

“seeks to remove from taxi booking companies any potential responsibility for the actions or inactions of others involved in the delivery of taxi services (such as taxi drivers and Government regulators of the taxi industry) over whom the taxi booking companies have no legal or other capacity to exercise control.”

The suggestion that taxi networks / booking services have no legal or other capacity to exercise control over network affiliates is preposterous nonsense.  There is, of course, the DDA.

In addition, however, and in Queensland in particular, the assertion flies in the face of report of the Queensland Government’s review of taxi and limousine services conducted under the terms of the Commonwealth National Competition Policy.  The review was commenced in August 2003, involved consultation with taxi industry providers and resulted in four strategic outcomes, which are:

• “better peak time services and safety
• improved customer service and choice
• improved accountability for service delivery
• better engagement with community and industry.”^[1]

The applicant’s assertion that networks have no control over performance of taxis affiliated to each network contradicts the State-wide strategy adopted by Queensland Transport in late 2007.  Specifically, the applicant seems to suggest that Action strategies 7, 8 and 9 of the Government strategy (dealing with performance standards) somehow apply to all taxis except wheelchair accessible taxis.

The industry in Queensland has a duty … I stress the word duty … to meet State Government determined performance standards.  The industry, including networks / booking services, accepts its duty to meet those performance standards and further accepts that legitimate penalties can be applied if the performance standards are not met.  Given that the taxi industry, including networks / booking services, accepts its responsibility to meet performance standards for the taxi fleet as a whole it simply defies logic for the applicant to suggest that somehow that same responsibility ceases to apply to a particular segment of the industry, namely wheelchair accessible taxis affilited to networks.

There is no “compelling reason” to grant the exemption. 

In clause 24 of its submission the appicant asserts:

“The most compelling reasons for granting the exemption relate to the fact that … taxi booking companies cannot control the time between the offering of the job to the taxi drivers operating within its network and the actual time the taxi is dispatched and/or arrives at the place where the fare is to be collected.”

I contrast the unsupported assertion of the applicant above with the following statement in the 2004 Discussion Paper (August 2003) by the Queensland Government on “taxi and limousine development.”^[2]

“Service contracts for taxi booking companies were introduced in 1994 because of the increasingly important role played by booking companies in coordinating and managing taxi services. While drivers and licence operators still have some influence over what jobs to accept and where to provide services, booking companies are in the best position to understand demand and to manage the delivery of services to the community to meet that demand in a timely manner.

The model for the future presented by these recommendations is an evolution of the existing regulatory structure in which booking companies are required to meet performance standards under service contracts. As more and more responsibility for meeting performance levels is

given to booking companies, they will need more flexibility to address their business needs and the ability to manage the performance of their fleets.

At the same time the booking companies will be held accountable for effectively using taxi operators and drivers within their company to deliver improved levels of service for the community.”

(Please note: the emphases given is mine not the report.  The sections highlighted clearly indicate, however, that in the regulatory regime currently operating in Queensland and in operation for at least 13 years, booking services are understood to have a legal and operational duty to deliver “improved levels of service for the community”.

In contrast to clauses 29, 30 and 31of the applicant’s submission, I contend that there are no “sound social reasons” to approve the application. 

To be frank, clauses 29, 30 and 31 are intellectual gibberish.  There is no connection whatsoever between the applicant’s (poor) description of vehicle types on the one hand and a booking service or network’s obligation to meet either the performance standards of the Queensland Government’s regulatory framework and / or the requirements of the DDA on the other hand.

The applicant’s proposition (clauses 32 and 33) that the “public interest” is served by an exemption approval is, quite honestly, ridiculous and offensive. 

The implication that the safety of vulnerable people in rural communities is somehow threatened by networks and booking services meeting their obligation under the DDA has a sinister undertone.  It is scaremongering, wedge-politics intended to suggest that the legitimate legal rights of mobility-impaired passengers are at odds with older people and women.  This is an argument that seeks to ‘blame the victim’.  The applicants should be ashamed of themselves for sinking to such intellectually bankrupt depths.  I hope HREOC will not be hoodwinked by such dangerous, emotive and unfounded nonsense.

The applicants seem to not understand the consequences of their own application. 

In clause 35, the applicant states:

“Taxi booking companies would still be obliged and expected to use their reasonable endeavours to eliminate unlawful discrimination, including disability discrimination, from all of their operations”.

The definition of what constitutes lawful action with regard to booked wheelchair accessible taxi services is set out in the Clause 1.2 of Schedule 1 of DDA Accessible Transport Standards.  The applicant cannot have it both ways.  The Taxi Council can’t assert that it seeks to be exempt from the provision of Clause 1.2 of Schedule 1yet at the same time claim it would be obliged to eliminate unlawful discrimination.  In this area of transport services, wheelchair accessible taxis, the ONLY possible definition of unlawful discrimination is found in the duty set our by the clause the applicant wants not to be held to.  The words Catch and Twenty-two come to mind when reading the applicant’s twisted, tortuous and incoherent attempt at logic.

The applicant offers not one shred of evidence to support its claim that “Taxi booking companies have taken reasonable steps to avoid/reduce/eliminate discrimination” (clauses 37 and 38). 

The DDA accessible transport standards have been in force for 5 years (and under discussion for perhaps a decade before that).  That there would be a requirement for booked services to have equal response times by December 2007 can hardly have come as a surprise to the Queensland Taxi Council.  It is disappointing that the Council’s response to the arrival of the first DDA Disability Standards target date is to do nothing but submit an application for exemption for another five years of less favourable treatment without even offering a disability action plan to indicate how the Council’s members might meet their duty in the future. 

The applicant’s assertion that “The exemption is broadly consistent with the objects of the DDA” (clauses 39 to 42) is a delusional, self-serving fancy. 

It would, at least, be honest for the Queensland Taxi Council to admit its members simply cannot guarantee to meet their legal duty, to submit an action plan that would show how they might do so in the future and to ask for an exemption while they carry out a change management strategy.  But that’s not what the applicant does.  It is insulting for the applicant to pretend that its application somehow serves the purposes of the DDA.  The applicant knows it doesn’t.  I know it doesn’t.  I hope HREOC knows it doesn’t too.

I repeat the inconsistency between the applicant’s position (this time with specific reference to clause 42) and the duty the Queensland Taxi Council’s members have to the State’s regulatory framework for taxis which sees (and requires) that,

“booking companies will be held accountable for effectively using taxi operators and drivers within their company to deliver improved levels of service for the community.”

The claim by the applicant that “there are no other non-discriminatory ways of achieving the objects/purposes for which the exemption is sought” lacks credibility and defies evidence of the real world.   

If the claim were true, I wonder, why the Queensland Taxi Council would bother to participate in the Queensland Government’s DDA Reference Group, which met in September and November 2007. 

Likewise, if the applicant’s claim were true there would have been be no prospect of positive change anywhere in Australia yet in other jurisdictions I know from personal and professional experience that response times (in NSW for example) have improved (albeit from a poor base and not yet as much as they need to) in part as a result of voluntary action taken by Networks (including penalties, incentives, GPS direction of drivers and altered agreements between Networks / booking services and drivers and operators)

The assertion by the applicant that “the exemption is necessary” is bizarre and unsupportable. 

The exemption application is many things.  Necessary isn’t one of them.  The applicant’s assertion in clauses 47 and 48 that the exemption would provide “certainty” is particularly bizarre.  The applicant takes the core argument – the concept of certainty – promulgated by HREOC in favour of the Standards (including Clause 1.2 of Schedule 1) and stands the argument entirely on its head.  The only certainty offered by the Queensland Taxi Council is the certainty that wheelchair users in Queensland would have no legal protection from second-rate service delivery.

It’s difficult to know how to respond to the applicant’s pointless observation that there “would be support for the exemption from other stakeholders.” 

So what?  That doesn’t make the application correct or defensible. 

An opinion poll survey in 2004 reported that 51% of Australians supported the re-introduction of the death penalty for murder.  That doesn’t make hanging right nor does it necessarily mean that Parliament should legislate in favour of it. 

The simple fact is that the settled will of the Australian Parliament is that people with disability should not be treated less favourably than people with no disability when it comes to the provision of goods and services.  Taxi booking services are ..wait for it … a service.  The DDA’s accessible transport standards set out a framework that will result (over time) in the realisation of Parliament’s will.  To be candid, the Queenslan Taxi Council just needs to wake up and smell the coffee or get with the programme or, to borrow from the Nike Corporation … just do it.

The only assertion by the applicant with which I can agree is the observation that “there would be opposition from other stakeholders”. 

I can personally end the uncertainty of the applicant in clause 51 where the Queensland Taxi Council makes the disingenuous remark that it is “unknown” if an exemption of this type would be opposed.  I oppose it.  I know that other stakeholders also oppose the application.  And I hope HREOC will reject the application in its entirety.

Dougie Herd

1^st February 2008