The most publicised issues affecting people with physical disabilities in the general community are mobility, independence and access to premises. Owners and operators of commercial establishments and facilities put their business interests above all. Many times, in so doing, they may neglect to invest in physical adjustments, or to adopt operational policies, which promote the right of physically disabled persons to equal access.
The Disability (Access to Premises-Buildings) Standards 2010 (“Premises Standards”) came into effect on 1 May 2011. It sets minimum requirements in relation to access, which includes the provision of (and specifications for) vertical lifts and the measurements and gradients of paths to enable those with mobility impairment to travel independently. The Premises Standards apply to:
a buildings of the specified classes where building approval is lodged on or after that date; and
b new work undertaken on an existing building, such as an extension or renovation of the new or modified part of the building.
In most circumstances it is also necessary to provide an accessible path of travel, from and including the principal public entrance, to a new or modified part of a building. It is intended that the Building Code of Australia (“BCA”) will be harmonised with the Premises Standards. Therefore, compliance will be achieved principally through the normal building certification process.
Existing buildings that are not undergoing any renovation or change of use that would need building approval continue to be subject to the existing provisions of the DDA. Owners and operators continue to be exposed to complaints if non-discriminatory access is not provided.
Under section 55 of the EO Act a person who has provided accommodation to a person with a disability must allow the person to make “reasonable alterations” to that accommodation to meet their particular needs if:
•the alterations are at the expense of the person with a disability;
•the alterations do not require alterations to the premises of another occupier;
•it is “reasonably practicable in the circumstances” to restore the accommodation to its previous condition; and
•the person with the disability agrees to restore the accommodation to its previous condition before leaving it and it is “reasonably likely” that they will do so.
Both the EO Act and the DDA prohibit refusing access to premises on the ground of disability (see Discrimination and human rights). However under section 29A of the DDA, discrimination by failing to provide access to premises is not unlawful if avoiding discrimination would impose an unjustifiable hardship. Under section 11(2) of the DDA, the claimant bears the burden of proving that avoiding discrimination would result in unjustifiable hardship. “Unjustifiable hardship” does not mean mere inconvenience or relatively minor expense. What is unjustifiable hardship to a small business may be insignificant to a large company.
The law does not define unjustified hardship. When resolving the question, courts consider what adjustments the person needs and the likely effect of the person’s disability, or of any adjustments needed, on anyone concerned. All relevant circumstances of the particular case must be taken into account, including the following:
•the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
•the effect of the disability of any person concerned;
•the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
•the availability of financial and other assistance to the first person;
•any relevant action plans given to the Commission under section 64.
Compliance with access requirements
Currently, under the EO Act and the DDA, only a tribunal or court may determine whether a building has been constructed with equal or adequate access facilities for people with disabilities. Following the enactment of the Premises Standards, the BCA compliance and enforcement regime may monitor the course of construction of a building so that both the owner and user will be assured of compliance with access requirements.
Due to the technical nature of the standards, it is advisable to involve an access expert in conducting an access audit.
Special manner of providing service
Under section 46 of the EO Act, a service provider may discriminate against a person on the basis of the person’s disability if:
•the person requires adjustments to be made to the provision of a service by the service provider in order to participate in or access the service or derive any substantial benefit from the service; and
•the service provider has complied with section 45; and
– the adjustments are not reasonable, having regard to the facts and circumstances set out in section 45(3); or
– the person could not or cannot participate in or access the service or derive any substantial benefit from the service even after the adjustment is made.
See the EO Act for additional exceptions for insurance (s 47), credit providers (s 48), supervision of children (s 49).
Buildings protected by the Heritage Act
Buildings listed under the Heritage Buildings Register are not exempt from providing access to persons with a physical disability. Alterations to these buildings to provide access are allowed provided they would be carried out without taking away the heritage character of the buildings. Permits are required for any activity that may alter or damage such buildings, place or object. A permit is not required for minor repairs or for replacing new for old. Activities that require a permit include additions to structure, subdivision and demolition. Providing for lifts, wider hallways or toilet facilities may involve works requiring a permit.
The Executive Director of Heritage Victoria accepts permit applications and processes them within 60 days. Applicants who are not satisfied with a permit refusal, or conditions imposed on the permit, may appeal to the Heritage Council within 60 days from when the permit is issued or the notice of refusal given.
ResCode was launched in May 2001. The Code includes standard B25, which requires that entries on the ground floor of dwellings and residential buildings should be accessible (or able to be easily made accessible) to people with limited mobility. ResCode does not indicate precisely how independent access is to be achieved. The requirement is only access to the entries of dwellings; hence all other avenues of movement within the dwelling are excluded.
Liveable Housing Design Guidelines
Liveable Housing Design (“LHD”) is an approach to housing that meets the needs of all people at various stages of their lives, including people with a disability and senior Australians. On 13 July 2010 the Australian Human Rights Commission launched the LHD initiative, with the aims of:
a developing new housing by 2020 that will include a number of basic design features that make them safer and easier to move around in; and
b providing awareness within the residential design and construction industry and governments about the benefits of incorporating universal design principles into new housing.
The LHD is voluntary. However, signatories to the agreement must commit to working together to develop education and training resources, release technical guidelines to assist the housing industry and identify possible incentives for encouraging industry and owners to adopt the use of the technical guidelines.
As part of the Commonwealth–State Disability Agreement (see “Legislation and definition” in Understanding disability and the law), the Disability Standards for Accessible Public Transport and Guidelines Standards became law on 23 October 2002. The Transport Standards set out a 20-year timetable by which almost all public transport will become accessible to people with a disability: 25% must be accessible within five years, 55% within 10 years, 90% within 15 years and 100% within 20 years.
This does not mean that public transport providers have no present obligation to provide disability access. For example, failure of a bus company to provide an accessible bus service may be challenged under the EO Act or the DDA. The bus company would usually rely on the defence of “unjustifiable hardship” or “reasonable manner of providing services” discussed above.
The standards also allow equivalent access. Equivalent access is a process, often involving the provision of direct assistance, under which an operator or provider is permitted to vary the equipment or facilities that give access as long as an equivalent standard of amenity, availability, comfort, convenience, dignity, price and safety is maintained.
Transportation that is chartered privately needs to comply with access requirements under the EO Act and DDA prohibition against discrimination in the provision of transportation, or goods and services.