A DDA STANDARD - WHAT IS FAIR
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Graeme Innes Building Tomorrow's Future: Australian Building Codes Board
Conference |
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The DDA - law since 1992 - makes it unlawful to discriminate against people with a disability and their associates on the grounds of their disability.
This law applies in all areas of public life, and specifically access to public premises. This means that premises and related facilities should not impede the use in any way by people with disabilities.
Examples of public premises include hotels, restaraunts, public buildings, shops, offices etc. The law includes access to premises, and conditions of access or use. The only exception is if premises are so designed or constructed as to prevent access, and changes would cause unjustifiable hardship.
The concept of unjustifiable hardship is determined for each individual case, but includes
- consideration of the benefit and detriment to all concerned - the person with the disability, the respondent to the complaint, and the community generally
- the impact of the person's disability and
- the financial circumstances, and the estimated amount of expenditure required.
The DDA requires access- this is context for standards.
The Building Code of Australia regulates, through its adoption by Governments, the construction and refurbishment of buildings. It contains various provisions relating to access for people with disabilities, although compliance with it probably does not mean that a building is totally DDA compliant. This, of course, is a problem for designers, builders and regulators. Current uncertainty is one of the drivers for developing a standard.
Since the DDA came into operation the Commission has had a number of options available to it to pursue strategies to promote compliance. This has included:
- responding to complaints and waiting for case law and precedents to drive change
- promoting compliance through community education and providing guidance on the application of the law through strategies such as the Advisory Notes on Access to Premises, available on our website and more recently
- participating in processes designed to achieve compliance through the development of a DDA Standard in the area of access to premises.
The Commission has pursued all these strategies, but in the last 5 years has invested considerable resources in working with the Board and other interested parties to achieve changes to the DDA to allow for a DDA Standard in this area and in advising interested parties on how a DDA Standard might develop.
The Commission shares the frustration of others that after 5 years so little progress appears to have been made, but is encouraged by discussions at recent Building Access Policy Committee (BAPC) meetings, and yesterday's ministerial announcement by the Attorney and Senator Minchin which give hope that the next 9 months may see considerable progress.
This optimism is partly due to the fact that we now do have a change to the DDA to allow for the development of a standard.
The DDA was amended last year partly because of the clear message from the Attorney-General that he is eager to receive a consensually developed draft as soon as possible, but mainly because members of BAPC are united in their desire to see a Standard developed.
This last is important, because if there is not a co-operative process to develop the standard we will be left to operate in the current uncertainty.
In determining what is fair for a DDA standard the Commission would make the following points.
1. The Commission supports the desire to have a DDA Standard covering access to premises. Such a Standard would achieve clarity and a high level of certainty, for both the building industry and people with disabilities, which this area clearly needs. At present we have the uncertainty of the complaint process. this means that many developers don't make their buildings accessible because they do not understand clearly what "DDA compliant" means. Also, buildings are constantly at risk of complaints being lodged. Developers, owners and local councils all bear this risk.
2. The Commission supports the proposal that the most effective way of achieving this involves a revision of the BCA to achieve consistency with the DDA. Much of the work has been done already in the BCA- why create yet another different instrument?
3. Where a revised BCA has the support of all stakeholders the Commission would support a DDA Standard adopting (or referencing) the part of the BCA which deals with access issues.
4. Part of that process would involve a transparent consultation and the development of a Regulation Impact Statement process that had the support of all stakeholders. Whilst the ABCB's normal consultation will be part of this process, a broader consultation - particularly with the disability field- will be necessary. During this process what needs to be borne in mind is that the purpose is to draft a Disability Discrimination Act compliant standard- as part of that process some cost will have to be borne, provided that it is not unjustifiably hard.
5. A comprehensive DDA Standard would also have to include other sections where an issue was not addressed or not sufficiently addressed by a revised BCA. An example of this would be outdoor areas adjacent to buildings, or internal furniture or fittings. However, the whole standard does not have to be developed at once, and this broader part of the standard can probably be developed as the next step. The important point to remember about this stepped process is that the DDA complaints process will still apply to the areas not covered by a Standard.
6. A DDA Standard would have to be changed through a Parliamentary regulatory process in the event of any subsequent changes to the BCA. A mechanism will therefore have to be developed so that the relevant parts of the BCA and the standard remain the same. This may have an impact on the way that the ABCB amends the access provisions of the BCA.
7. For a revised BCA to achieve consistency with the DDA the revision must not be concerned solely with technical efficiency and cost effectiveness. The DDA is a piece of anti-discrimination law and as such it requires that barriers be removed unless doing so would involve unjustifiable hardship. It is vital that all interested parties recognise this difference. The courts have interpreted this provision quite clearly and have established that some difficulty or some cost does not constitute unjustifiable hardship. The Commission considers that one of its roles is to ensure all parties completely understand the implications of this part of the law in the context of proposed changes to the BCA. any draft standard will not achieve consensus if this is not taken into account.
8. A revised BCA for new buildings that is consistent with the DDA should not be unduly watered down because of concerns about the effect a revised BCA will have on existing buildings. However, the Commission recognises the difficulties involved in making some existing buildings accessible and acknowledges the value of having a nationally consistent mechanism, other than the court, for responding to appeals for exceptional circumstances where existing buildings are concerned. For that reason we have participated in and support ongoing discussions on a possible protocol or guideline which will sit outside a future DDA Standard.
9. The Attorney-General has made it clear he wants to see a revised BCA and a possible DDA Standard developed as soon as possible. For that to happen the Board and all other participants in the BAPC have to commit themselves to active participation in achieving consensus through negotiation and consultation. This involves the requirement that members of the BAPC come to the table with the authority to negotiate in good faith to achieve consensus.
10. If that consensus is not achieved the Commission would not be able to offer its support for a continuing process and would proceed with other strategies to achieve the objects of the DDA.
Conclusion
Everyone will benefit from the development of a DDA Standard on Access to Premises which adopts the relevant provisions of the BCA. The challenge for us all will be achieving consensus on the content of such a Standard. It is a challenge worth working hard for because the alternatives are not palatable both for the building industry and people with disabilities. In meeting that challenge both sides will need to balance the competing drivers of cost and equity, and recognise that some hardship will be involved. However, the benefits to be gained will be relevant to a larger proportion of the population than just people who currently have a disability. What is fair for a DDA Standard must be decided in the context of the overall objective of full participation for all members of the Australian community.
