Decision on inquiry under the Disability Discrimination Act 1992: NSW CityRail station access - Summer Hill
Background
Submissions
Decision
Background
In July 1999 the Human Rights and Equal Opportunity Commission received a representative complaint under the Disability Discrimination Act ("DDA") lodged on behalf of people who use wheelchairs regarding current lack of accessibility of Summer Hill railway station, and seeking implementation of accessibility at that station this financial year.
The effect of sections 23 and 24 of the DDA, dealing with access to premises used by the public and services including public transport services, is that railway stations are required to be made accessible except in so far as this would impose unjustifiable hardship.
The Acting Disability Discrimination Commissioner at the time (Chris Sidoti) issued a public notice of inquiry on 23 July, inviting submissions by 24 September to assist in deciding the following issues.
1.The adequacy of CityRail's Easy Access program of station upgrading in relation to the requirements of the DDA.
2.Whether requiring provision of access at Summer Hill station with the priority sought by this complaint would impose unjustifiable hardship.
3.Whether on public interest grounds the Commissioner should refer the matter to the Commission for hearing and determination on the basis that it is of a nature such that it should be referred.
It also indicated that submissions in this matter might
- assist the Commission and the parties to the complaint in identifying options for resolution of the matter
- assist people who are within the class covered by this representative complaint to decide whether they wish to withdraw themselves from the class so as to preserve an independent right to complain regarding this matter
- inform the Commission's approach to handling of complaints which may be made regarding other stations
- inform consideration by the Commission and interested parties of any application for temporary exemption which might be made on this or related matters in future.
The notice of inquiry indicated that relevant issues to consider might include
- the weight and effect that should be given to commitments made by the Minister for Transport prior to the recent election regarding funding for upgrading of Summer Hill station
- the impact requiring priority for a particular station might have on improvements in accessibility of the CityRail system overall
- measures other than station upgrading that are planned or being undertaken or are required to improve accessibility of the CityRail system to people with a disability
Submissions
Submissions were received from the parties to the complaint, and from a small number of other individuals and organisations. Those making submissions were advised that the content of submissions could be made public except where specifically requested otherwise.
The notice of inquiry indicated that submissions received electronically would be posted on the Commission's web site. Most submissions were not received in electronic form, but arrangements were made to place a number of submissions on line for the information of people interested in this inquiry.
CityRail (respondent)
The initial submission on behalf of CityRail noted the complainant Council's concern that funding for alterations to the station to make it easily accessible were not included in the 1999/2000 NSW State Budget, but emphasised that funding was allocated in the recent budget for the planning in relation to the upgrade of Summer Hill Station to make it an "Easy Access" station. This submission noted further that
$26.7 million has been allocated for State Rail's Easy Access program with emphasis being placed on upgrading higher patronage stations and key regional centres. State Rail will continue planning, detailed design and preliminary construction work on other stations for easy access upgrades including Summer Hill, Beresfield, Katoomba and Rockdale. Construction work is currently underway at Liverpool, Town Hall, Wynyard, Central and Ashfield Stations. A development application was lodged with Ashfield Council at the end of February 1999. Council asked for a Heritage Impact Statement and State Rail is considering different options for the upgrade of the station following a report provided by a Heritage Consultant. Construction is scheduled to commence after the Olympics in 2000 when the redesign has been completed.
A second submission on behalf of CityRail stated that
It is proposed by the end of 2000, 45 CityRail stations will be completed - including Ashfield, Bondi Junction, Lidcombe, Wolli Creek, Penrith, Sydney Central, Wynyard, Town Hall and the four stations on the new Airport Line.
Over the next four years, it is proposed that a further 43 stations would be equipped with Easy Access facilities.
Ashfield Municipal Council (complainant)
In response, Ashfield Municipal Council's submission pointed to a history of commitments regarding access to Summer Hill station.
Residents of Summer Hill still clearly remember a letter from their local member Mr Whelan in 1988 that said that the State Government had provided funds in its budget for the construction of ramps at the station.
Nothing happened.
In 1991 the Liberal State transport minister wrote that funds were available for the "staged construction of ramps".
Nothing happened.
Mr Moss the Parliamentary Secretary for Transport indicated to Council through our local member that Summer Hill had been placed on the draft five-year capital works program for funding in the 1999/2000 financial year.
That did not happen.
Mr Scully and Mr Whelan held a press conference at the station in February this year in the lead-up to the state election. At that press conference they said that the Government had approved the upgrading of the station, and that funds were available to do the work
They clearly stated that this was not just another election promise and that a budget allocation had been made. They nominated the budget figure as being $2.4 million, which was to include full access as well as state of the art security cameras.
That did not happen.
This submission went on to note that
. a Development Application was lodged by the SRA and that Council officers made comments on the plans that were presented. One of the issues was the lack of a conservation study, but given the scope of the work required to be done in that study the report from the consultant should have been available within 4-5 weeks. It is now many months since the Development Application was lodged and there has been more than enough time to have undertaken the re-design that was necessary to re-lodge the Development Application.
Other submissions
An older person who is a resident of the Summer Hill area and has a spinal condition emphasised
- the great difficulty she had in negotiating stairs to gain access not only to the trains but to medical and shopping facilities, bearing in mind that the railway subway provides access from one side of the Summer Hill township to the other
- the struggle which stairs provided for other older people and also for people with children in strollers, in addition to the barrier presented to people using wheelchairs.
The submission from Residents for Access to Summer Hill set out in some detail the history of negotiations and commitments regarding access to this station and argues that Summer Hill ought to have been regarded as meeting the criteria for CityRail's initial Easy Access priority stations.
North Sydney Council Access Committee submitted that
- the resources required to complete the thirty stations in the original "Easy Access" program and the time line required should be taken into account before any decision is made to make other stations accessible
- the matter was of great public interest and should be referred to the Commission for determination and hearing
- CityRail should be requested to provide a report on their Easy Access program and the resources required to complete this program.
Decision
Achieving non-discriminatory access to public transport services and facilities is highly important in terms of achievement of the objects of the DDA both in itself and as a means of achieving more effective equality of opportunity in employment, education and social life for people with disabilities, as well as having potential benefits for many other members of the community, including older people and people accompanied by small children. In the circumstances of this complaint, the fact that the station access is only by way of stairs also presents a significant barrier to access to other local services.
I have, however, decided to discontinue inquiring into this complaint, pursuant to my power to do so under section 71(2)(g) of the DDA, on the basis that the subject matter has been adequately dealt with by another statutory authority.
CityRail's EasyAccess program commitments for achieving physical accessibility of CityRail stations, and current progress in implementation, follow the first five year target set out in the draft Disability Standards for Accessible Public Transport fairly closely. In my view this should be accepted as adequately addressing relevant requirements of the Disability Discrimination Act.
Although the draft Standards have not been authorised by the Attorney-General or the Parliament and thus have no legal force of their own, the Commission has previously indicated in its Advisory Note on public transport its view that the draft Standards generally reflect existing rights and obligations under the DDA. I accept and adopt that view. I note that the draft Standards have been subject to extensive consultative processes involving transport providers and people with disabilities and have also undergone extensive Regulation Impact Statement analysis.
The Commission's Advisory Note does caution that the compliance schedule in the draft Disability Standards, which provides for staged achievement of full accessibility (subject to residual issues of unjustifiable hardship) over a twenty year period, with interim compliance requirements at five, ten and fifteen year points, will not automatically be accepted for the purposes of decisions under the existing provisions of the DDA pending or absent the authorisation of Disability Standards.
This caution however is directed particularly to issues of accessibility of information and communications features of public transport. In my view this caution is less applicable to the issue presented by this complaint, of substantial and expensive construction works to provide physical access to station premises, which can more legitimately be seen as requiring substantial time to complete. For the purposes of this complaint I regard achievement of accessibility of stations at, or close to, the rate contemplated by the draft Standards as an adequate remedy.
This means that I regard a complaint about a particular station as adequately remedied by an acceptable overall rate of achievement of accessibility of stations, whether or not the particular station is first on the list of stations to be made accessible.
The Commission is not best placed to judge issues of priority of one station over another within an overall program where acceptable progress is being made. If it is accepted that not every station can be made accessible immediately, in my view the DDA has very little bearing on which stations should be upgraded first. These are more appropriately seen as issues for decision through political processes and for determination by transport operators.
The relevant issue for the purposes of the DDA is less whether political commitments for priority for one place or another have been met than whether commitments to adequate progress overall have been made and are being fulfilled. Although decisions on this point would be assisted if CityRail had already prepared and published the Disability Plan which NSW legislation requires or the action plan which the DDA invites, I consider that current progress and commitments should be accepted as adequate.
Moreover, the State Rail Authority has advised the Commission that Summer Hill station specifically is scheduled to have construction works commence in 2000. Although I appreciate the disappointment and frustration of community members who have received a number of commitments at the political level in the past, which for whatever reasons have not been fulfilled, the commitment now made by the responsible Authority should be regarded as providing an adequate remedy in the circumstances of this complaint.
I note that I do not think it is necessary for this purpose for me to decide how far the complainant Council's own administration of heritage requirements may have contributed to delay in commencement of construction works in this case. It may however be useful for me to refer to some comments, which I endorse, made by the Commission in its decision of March this year on an exemption application regarding Melbourne trams:
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.
I should emphasise that this decision does not preclude future complaints regarding access to this or other stations if progress in implementation of the Easy Access program does not continue at the projected rate in line with that contemplated by the draft Standards, or if the most recent commitments regarding Summer Hill station specifically are not met.
Likewise, this decision does not preclude complaints on other physical access issues which may arise regarding boarding and disembarking from trains (including in relation to needs for assistance), or other issues affecting access to rail services (including access to announcements, timetables and other information).
SUSAN HALLIDAY
Acting Disability Discrimination Commissioner
27 October 1999