AUSTRALIAN HUMAN RIGHTS COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (Cth), Section 55

DISABILITY STANDARDS FOR ACCESSIBLE PUBLIC TRANSPORT 2002 (Cth), Section 33A.1

DISABILITY (ACCESS TO PREMISES – BUILDINGS) STANDARDS 2010 (Cth), Section 5.1

NOTICE OF DECISION ON APPLICATION FOR TEMPORARY EXEMPTIONS: AUSTRALASIAN RAILWAY ASSOCIATION

By this instrument, the Australian Human Rights Commission (‘the Commission’) gives notice of its decision in relation to an application made by the Australasian Railway Association for temporary exemptions pursuant to section 55 of the Disability Discrimination Act 1992 (Cth), section 33A.1 of the Disability Standards for Accessible Public Transport 2002 (Cth), and section 5.1 of the Disability (Access to Premises –Buildings) Standards 2010 (Cth).

1                    THE APPLICATION

1.1             The Australasian Railway Association (‘ARA’) has made an application, on behalf of its members (‘members of the ARA’), for a number of temporary exemptions from:

1.1.1      the Disability Discrimination Act 1992 (Cth) (‘DDA’);

1.1.2      the Disability Standards for Accessible Public Transport 2002 (Cth) (‘Transport Standards’); and

1.1.3      the Disability (Access to Premises – Buildings) Standards 2010 (Cth) (‘Premises Standards’).

2                    DECISION OF THE COMMISSION

2.1             The decision of the Commission on each part of the ARA’s application is set out in Schedules One and Two.

2.2             The Commission has decided to grant to members of the ARA a number of temporary exemptions pursuant to section 55 of the DDA, section 33A.1 of the Transport Standards, and section 5.1 of the Premises Standards, in the terms set out in Schedule One, and subject to the terms and conditions described in that schedule.

2.3             The Commission has decided to decline to grant a number of the temporary exemptions sought by the ARA in the terms set out in Schedule Two.

3                    CONSIDERATION AND REASONS

3.1             In making its decision, the Commission relied upon the following:

3.1.1      The ARA’s application and submissions;

3.1.2      Advice from the Accessible Public Transport Jurisdictional Committee;

3.1.3      Submissions from other interested parties; and

3.1.4      An expert report commissioned by the Commission.

3.2             These documents are available on the Commission’s web site at https://www.humanrights.gov.au/australasian-railway-association-ara.

3.3             In making its decision, the Commission had regard to the following:

3.3.1      the terms and objects of the DDA;

3.3.2      the Transport Standards;

3.3.3      the Premises Standards;

3.3.4      the Disability Standards for Accessible Public Transport Guidelines 2004 (No. 3); and

3.3.5      the Commission Guidelines: Temporary Exemptions under the Disability Discrimination Act (2010).

3.4             The history of the application and the reasons for the Commission’s decision are set out in Schedule Three.

4                    MEANING OF IMPORTANT TERMS

4.1             For the purposes of this decision, ‘rail’ means trains, light rail and trams.

4.2             Unless the contrary intention appears, any term used in this decision and in the Transport Standards has the same meaning in this decision as it has in the Transport Standards.

4.3             Unless the contrary intention appears, any term used in this decision and in the Premises Standards has the same meaning in this decision as it has in the Premises Standards.

4.4             Unless the contrary intention appears, any term used in this decision and in the DDA has the same meaning in this decision as it has in the DDA.

5                    REVIEW OF DECISION

5.1             Subject to the Administrative Appeals Tribunal Act 1975 (Cth), application may be made to the Administrative Appeals Tribunal for a review of the decision to which this notice relates by or on behalf of any person or persons whose interests are affected by the decision.

Dated this 1st day of October 2015

Signed by the President, Gillian Triggs, on behalf of the Commission.

SCHEDULE ONE 

NOTICE OF GRANT OF TEMPORARY EXEMPTIONS

The Commission grants to members of the ARA, on the terms and conditions set out in this schedule, the following temporary exemptions from the operation of the provisions of the Transport Standards, the Premises Standards, and the DDA set out below.

As well as the terms and conditions specified below, each of these exemptions is granted subject to the condition that the Commission may, on its own motion, revoke the exemption if it becomes satisfied that the exemption is no longer justified.

The conveyances, infrastructure and premises to which each decision applies are identified in the heading to each temporary exemption.

The exemptions are, with one exception, granted for a period of five years.

Pursuant to section 34 of the Transport Standards and section 6.1 of the Premises Standards, each of those sets of Standards is subject to review every five years. If, at any time in the five years following this decision, either the Transport Standards or the Premises Standards are remade in an amended form, any exemption granted from a section of the Standards that is amended will cease operation at the time the amendment comes into effect.

In relation to each exemption from the Transport and Premises Standards below, the relevant standard is reproduced, followed by the exemption granted and the terms and conditions to which the grant is subject.

PART A – EXEMPTIONS FROM THE TRANSPORT STANDARDS

• 2.1 Access paths – Unhindered passage

(1)     An access path that allows unhindered passage must be provided along a walkway, ramp or landing.

(2)     An access path must comply with AS1428.2 (1992) Clause 8.1.

Temporary exemption: rail premises and rail infrastructure

For a period of five years, flange gaps of up to 75mm are permitted where a level crossing forms part of an access path on rail premises or rail infrastructure. This exemption is subject to the following conditions:

• the member concerned provides a written report to the Commission and the ARA within 12 months of this exemption, and provides an updated version of this report every 12 months on:
  • action taken to improve safe use of level crossings where they form part of an access path;
  • progress made in the removal of level crossings; and
  • any developments in research into possible technical solutions for bridging flange gaps; and
• the ARA makes these reports available to the public through its website.

Temporary exemption: existing rail premises and existing rail infrastructure

For a period of five years, an access path is required to provide entrance and exit only at a single boundary point for existing rail stations where providing access at each entrance would require significant structural building work or not be feasible due to space, topographical or heritage reasons, subject to the following conditions:

• the primary station entrance/exit is an accessible entrance;
• an accessible entry is well signposted and directional signage, including the international symbol for access is provided at any inaccessible entry;
• an accessible entrance connects to each platform and all accessible facilities such as any unisex accessible toilet or accessible parking;
• any inaccessible entrance is upgraded in relation to access features such as handrails, stairway nosings and tactile ground surface indicators (‘TGSIs’) where this would not involve significant structural work;
• the ARA member concerned ensures that service users can obtain journey-planning information about accessible pathways through station precincts:
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on which rail stations have inaccessible entrances, and provides an updated version of this report every 12 months; and
• the ARA makes such reports available to the public through its website.

•  
• 2.4 Access paths – Minimum unobstructed width

(1)     The minimum unobstructed width of an access path must be 1200 mm (AS1428.2 (1992) Clause 6.4, Width of path of travel).

(2)     However, the minimum unobstructed width of a moving footway may be 850 mm.

•  
• Temporary exemption: existing rail premises and existing rail infrastructure

For a period of five years, for existing rail premises and existing rail infrastructure:

• where the 1200mm minimum unobstructed width for access paths cannot be met due to structural and technical constraints, an access path with a minimum unobstructed width of 1000mm may be provided;
• the 850mm minimum unobstructed width (applicable to doorways and gateways) is also permitted on access paths for the purposes of passing an obstruction limited to less than 800mm in length; and
• platform edge warning TGSIs are permitted to intrude into access paths.

This exemption is subject to the following conditions:

• where site constraints result in an access path with a minimum unobstructed width of 1000mm, and where site constraints require further intrusion of TGSIs into the access path, such intrusion is the minimum required;
• where restricted paths of travel exist due to structural and technical constraints, the ARA member concerned ensures that service users can obtain information about restricted paths of travel at any particular rail station or infrastructure:
  • at the location of the restriction; and
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on which rail stations have restricted paths of travel, and provides an updated version of this report every 12 months; and
• the ARA makes such reports available to the public through its website.

• 2.6 Access paths — conveyances

-             (1) Subject to subsection (3) and section 2.7, an access path that allows continuous and unhindered passage must be provided with a minimum width of at least 850 mm.

 (2) Subsection (1) applies to doorways and stairs, and between entrances, exits, allocated spaces and other essential facilities for passengers using wheelchairs and other mobility aids.

 (3) If the conveyance exists or is ordered before the commencement of this section, the minimum width may be reduced to 800 mm at any doorway restriction.

Temporary exemption: existing rail conveyances

For a period of five years for existing rail conveyance external doors, and for a period of five years for existing rail conveyance internal doors, the width of an access path may be reduced to a minimum of 760mm where it is not possible to provide a width of 850 mm due to unavoidable design constraints and/or safety issues, subject to the following conditions:

• direct assistance is available; and
• the ARA member concerned ensures that information is available to passengers in advance of travel of instances where there are restricted paths of travel on particular conveyances:
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available.

For a period of five years, access may be provided only by means of stairs to upper and lower decks of double deck existing rail cars, subject to the condition that access to unique facilities is assured.

For a period of five years, an access path is only required at a single door rather than all doors of existing rail conveyances, subject to the following conditions:

• equivalent access is provided at an alternative door of the rail conveyance in the following circumstances:
  • if an allocated space is not available; or
  • to ensure access to unique facilities; or
  • to ensure a passenger can both board and alight the rail conveyance;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this exemption on measures taken to ensure that staff and passengers are adequately informed of both the access paths available at the doors of existing rail conveyances and the equivalent access measures available; and
• the ARA makes such reports available to the public through its website.

• 4.2 Passing areas – Two-way access paths and aerobridges

(1)     A passing area must be provided at least every 6 metres along any two-way access path that is less than 1800 mm wide (AS1428.2 (1992) Clause 6.5 (b), Passing space for wheelchairs and Figure 3).

(2)     A passing area is not required on an aerobridge.

Temporary exemption: existing rail platforms

For a period of five years, for existing rail platforms, a passing area every 9 metres along any two-way access path that is less than 1800mm wide is permitted where it is not possible to provide one every 6 metres due to structural or heritage constraints. This exemption is subject to the following conditions:

• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on which rail station platforms do not provide passing spaces every 6 metres where any two-way access path is less than 1800mm wide, and provides an updated version of that report every 12 months, and that these reports include a description of any measures taken by the ARA member to address any impacts this may have on users; and
• the ARA makes such reports available to the public through its website.

• 5.1 Resting points – When resting points must be provided

(1)    There must be resting points for passengers along an access path if the walking distance between facilities or services exceeds 60 metres (AS1428.2 (1992) Note to Clause 7, Continuous accessible path of travel).

 (2) A resting point must provide seats (AS1428.2 (1992) Clause 27.1(a), Street Furniture).

Temporary exemption: existing rail premises and existing rail infrastructure

For a period of five years, compliance with clause 5.1 is not required for existing rail premises and existing rail infrastructure to the extent that site constraints prevent compliance (rather than only add expense or difficulty). This exemption is subject to the following conditions:

• the ARA member concerned consults with local user groups to identify key locations where it is anticipated that customers will be waiting or require rest;
• the ARA member concerned provides a report to the Commission and the ARA on the outcome of consultations and locations of any non-compliance; and
• the ARA makes such reports available to the public through its website.

• 6.4 Slope of external boarding ramps

-                           The slope of an external boarding ramp must not exceed:

-                         

-            (a) 1 in 14 for unassisted access (AS/NZS3856.1 (1998) Clause 2.1.8 (e) (including the notes)); and

-            (b) 1 in 8 for unassisted access where the ramp length is less than 1520 mm (AS1428.2 (1992) Clause 8.4.2 (a) and AS1428.1 (2001) Figure 8); and

-            (c) 1 in 4 for assisted access (AS/NZS3856.1 (1998) Clause 2.1.8 (e)).

-             

Temporary exemption: rail conveyances

For a period of five years, where the relationship between the platform and rail carriage means that an external board ramp can only be provided at a gradient greater than 1 in 8 and less than 1 in 4, ARA members are not required to provide staff assistance in ascending or descending the ramp.

This exemption is granted subject to the following conditions:

• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on:
  • the number of locations where boarding ramp slopes of 1 in 8 or better cannot currently be achieved;
  • measures to be taken to increase the number of locations where external boarding ramp slopes of 1 in 8 or better will be achieved; and
  • results of examination by the operator of alternative methods for achieving accessible boarding;
• the ARA member concerned provides an updated version of the report to the Commission and the ARA every 12 months;

• the ARA makes the reports available on its website;
• the ARA member concerned ensures that service users can obtain information about restricted access at any particular rail station or infrastructure:
  • at the location of the restriction; and
  • via the ARA member’s websites and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available; and
• the ARA member concerned provides free travel for any assistant accompanying a person with disability who requires assistance boarding a train as a result of non-compliance with clause 6.4.

• 8.2 Boarding – When boarding devices must be provided

(1)     A manual or power assisted boarding device must be available at any accessible entrance to a conveyance that has:

(a)     a vertical rise or gap exceeding 12 mm (AS/NZS3856.1 (1998) Clause 2.1.7 (f)); or

(b)     a horizontal gap exceeding 40 mm (AS/NZS3856.1 (1998) Clause 2.1.8 (g)).

Temporary exemption: rail conveyances

For a period of five years, a manual or power assisted boarding device is only required at a single door rather than all doors of a rail conveyance, subject to the following conditions:

• equivalent access is provided at an alternative door of the rail conveyance in the following circumstances:
  • if an allocated space is not available; or
  • to ensure access to unique facilities; or
  • to ensure a passenger can both board and alight the rail conveyance;
• the ARA member concerned ensures that service users can obtain information about specified boarding points at any particular rail station or infrastructure:
  • at any platform at which there is a specified boarding point;
  • via the ARA member’s websites and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on measures taken to ensure that staff and passengers are adequately informed of both the doors of rail conveyances at which boarding devices are available and the equivalent access measures available;
• the report is updated every 12 months, and the updated report is provided to the Commission and the ARA; and
• the ARA makes these reports available on its website.

• 8.7 Boarding – Signals requesting use of boarding device

-                          (1) Any signal for requesting the deployment of a boarding device must be located in an allocated space.

 (2) If possible, a signal is to be placed according to the dimensions given in AS1428.2 (1992) Clause 11.4, Call buttons.

•  
• Temporary exemption: rail conveyances
•                   
•                  For a period of five years, signals for requesting boarding devices may be located in or within reach from, rather than only in, allocated spaces on rail conveyances.

• 11.2 Handrails and grabrails – Handrails to be provided on access paths

-                       (1) Handrails must be placed along an access path wherever passengers are likely to require additional support or passive guidance.

 (2) A handrail must not infringe an area on a roadside boarding point that may be needed to deploy a boarding device.

Temporary exemption: rail platforms

For a period of five years, rail platforms are exempt from clause 11.2, subject to the following conditions:

• where an ARA member receives a request for the installation of a handrail at a specific point on a platform, installation is undertaken unless the operator is of the view that installing a handrail will adversely affect customer flows, reduce the width of access paths or prevent seating from being placed along the building shoreline or affect safety; and
• where a request is made but the installation of a handrail does not proceed, the ARA member concerned provides a written report on the request and the reasons for not taking action to the Commission and publishes the report on the ARA member’s website.

• 12.2 Doorways and doors – Compliance with Australian Standard — premises and infrastructure

-                   Doorways and doors must comply with AS1428.2 (1992) Clause 11 (except Clause 11.5.2).

Temporary exemption: existing rail platforms

For a period of five years, existing doorways and doors on existing rail platforms do not need to comply with the requirements of AS 1428.1:2001 clause 11.1.1, subject to the condition that the doorways and doors comply with AS 1428.1:2009 clause 13.5.2(e).

• 12.4 Doorways and doors – Clear opening of doorways

-                           Doorways must comply with AS1428.2 (1992) Clause 11.5.1, Clear opening of doorways.

Temporary exemption: rail conveyances

For a period of five years, where design constraints arising from narrow gauge rail tracks prevent installation of toilet doors on rail conveyances with an opening width of 850mm, a reduction in toilet door opening width from 850mm to 760mm on rail conveyances is permitted subject to the following conditions:

• the ARA member concerned makes available an on-board narrow wheelchair that can pass through a reduced clear door opening if required; and
• the ARA member concerned ensures that service users can obtain journey-planning information about reduced door opening widths:
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available.

•  
• 14.3 Stairs – Compliance with Australian Standards — conveyances

(1)     If stairs are provided on a conveyance mentioned below, they must comply with:

(a)     AS1428.1 (2001) Clause 9.1 (including the notes), Stair construction; and

(b) AS1428.2 (1992) Clause 13.2, Configuration of steps, Clause 13.3, Warning strip at nosing of steps and Figures 8 and 9.

 (2) However, the minimum access path width on stairs in the conveyance must be 850 mm.

Temporary exemption: rail conveyances

For a period of five years, stairs on rail conveyances are exempt from clause 14.3 in relation to:

• the minimum width of stairs; and
• the requirement for opaque risers on retractable steps at carriage doors;

subject to the condition that the ARA member concerned makes staff assistance available on request.

• 15.2 Toilets – Location of accessible toilets

-                          Accessible toilets must be in the same location as other toilets.

Temporary exemption: existing rail premises and existing rail infrastructure

For a period of five years, for existing rail premises and existing rail infrastructure, accessible toilets are not required to be in the same location as other toilets where space limitations or essential heritage considerations mean co-location is not feasible, subject to the following conditions:

• any accessible toilet that is not in the same location as other toilets is located on an accessible path of travel that links to other accessible features and is located as closely as possible to the other toilets;
• directional signage, including the international symbol for access, is provided at the other toilets identifying where the accessible toilet is located; and
• the ARA member concerned provides information on the location of accessible toilets to service users:
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available.

•                   
• 15.3 Toilets – Unisex accessible toilet — ferries and accessible rail cars

-                 If toilets are provided, there must be at least one unisex accessible toilet without airlock available to passengers using wheelchairs or mobility aids.

•  
• Temporary exemption: accessible rail cars

For a period of five years, if toilets are provided, a unisex accessible toilet without airlock is not required in every accessible rail car, subject to the following conditions:

• the exemption is limited to ARA members constrained by space limitations arising from narrow gauge rail services;
• one unisex accessible toilet without airlock is provided on an access path from each allocated space;
• the first toilet provided on an access path from each allocated space is a unisex accessible toilet without airlock;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on which services are affected;
• the ARA member provides an updated version of the report to the Commission and the ARA every 12 months; and
• the ARA makes these reports available on its website.

• 15.4 Toilets – Requirements for accessible toilets — ferries and accessible rail cars

-                          (1) An accessible toilet must:

 (a) comply with the requirements set out in this section; and

 (b) allow passengers in wheelchairs or mobility aids to enter, position their aids and exit.

 (2) The minimum dimension from the centre line of the pan to the near-side wall must be 450 mm (AS1428.1 (2001) Figure 22).

 (3) The minimum dimension from the centre line of the pan to the far-side wall must be 1150 mm (AS1428.1 (2001) Figure 22).

 (4) The minimum dimension from the back wall to the front edge of the pan must be 800 mm (AS1428.1 (2001) Figure 22).

 (5) The toilet seat must be between 460 mm and 480 mm above the floor (AS1428.1 (2001) Figure 18).

 (6) Hand washing facilities must be provided either inside or outside the toilet (AS1428.1 (2001) Clause 10.2.1 (b), Water closets).

Temporary exemption: Narrow gauge and standard gauge accessible rail cars

For a period of five years, compliance with clause 15.4 is not required for narrow gauge and standard gauge accessible rail cars, subject to the following conditions:

• accessible toilets are configured and maintained such that passengers using mobility aids (that conform to the assumptions in Part 40 of the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3)) may enter, position their aids, use the accessible toilets and exit;
• the ARA member concerned consults with people with disability to identify the dimensions that best balance the requirements for accessible paths of travel and circulation space inside accessible toilets;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on the outcome of consultations;
• the ARA makes the report available on its website;
• the ARA member concerned makes available information on its website and through travel centres and customer contact centres about any limitations and dimensions achieved in accessible toilets; and
• the ARA member concerned arranges, on request, a viewing or on-board trial to assist passengers to journey-plan before booking.

• 17.5 Signs – Electronic notices

-                       (1) Presentations of words or numbers on electronic notices must be visible for at least 10 seconds, unless the electronic notice is for the purpose of ticket validation.

 (2) If the electronic notice is for this purpose, the words or numbers on the notice must cease to be visible before the end of 10 seconds if the ticket validation device is used by another person within that time.

Temporary exemption: rail premises and rail infrastructure

For a period of five years, electronic notices may be displayed at rail premises and rail infrastructure for less than 10 seconds where more frequent updating is necessary because of the frequency of services or the volume of information to be displayed. This exemption is subject to the following conditions:

• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on progress in the development and availability of alternative passenger information display systems;
• the ARA member prepares an updated version of the report every 12 months, and provides a copy of the report to the Commission and the ARA; and
• the ARA makes these reports available on its website.

• 18.1 Tactile ground surface indicators – Location

-                   Tactile ground surface indicators must be installed on an access path to indicate stairways, ramps, changes of direction, overhead obstructions below a height of 2000 mm, and hazards within a circulation space or adjacent to a path of travel (AS1428.2 (1992) Clause 18.1, Tactile ground surface indicators).

Temporary exemption: existing rail premises and existing rail infrastructure

For a period of two years, for existing rail premises and rail infrastructure, compliance with clause 18.1 of the Transport Standards is not required other than in relation to stairways, escalators, ramps and overhead obstructions below a height of 2000 mm, subject to the following conditions:

• the ARA member concerned within 2 years of this decision consults with people with disability and orientation and mobility experts to develop site-specific strategies to identify architectural solutions or alternative way finding aids consistent with AS1428.4: 2002 Appendix B;
• the ARA member concerned within 2 years of this decision provides a written report to the Commission and the ARA on the nature and outcome of these consultations; and
• the ARA makes the report available on its website.

• 20.1 Lighting – Illumination levels — premises and infrastructure

-                          Any lighting provided must comply with minimum levels of maintenance illumination for various situations shown in the notes to AS1428.2 (1992) Clause 19.1, Illumination levels.

Temporary exemption: rail premises and rail infrastructure

For a period of five years, compliance with clause 20.1 is not required on rail premises and rail infrastructure, subject to the condition that the ARA member concerned complies in full with the lighting levels set out in in the table below.

TABLE 1 – LIGHTING LEVELS FOR RAILWAY STATIONS

-                       

• 21.1 Controls – Compliance with Australian Standard — premises and infrastructure

-                 Controls must comply with AS1428.1 (2001) Clause 11.

Temporary exemption: rail premises and rail infrastructure

For a period of five years, controls in rail premises and rail infrastructure are not required to comply with AS 1428.1:2001 clause 11.1.1(c), subject to the condition that the controls concerned meet the requirement of a maximum 20N force for operation as required under AS 1428.1:2009 clause 13.5.2(e).

• 27.3 Information – Size and format of printing

-                       (1) Large print format type size must be at least 18 point sans serif characters.

 (2) Copy must be black on a light background.

Temporary exemption: rail conveyances, rail premises and rail infrastructure

For a period of five years, compliance with clause 27.3(2) is not required for rail conveyances, rail premises and rail infrastructure if alternative colours adopted to provide information achieve a minimum of 30% luminance contrast.

•                   
• 28.2 Booked services – Period of notice of requirement for accessible travel

-                          Any advance notice required of a requirement for accessible travel must not exceed the period of notice specified for other passengers.

Temporary exemption: rail conveyances

For a period of five years, ARA members operating rail conveyances may request up to 48 hours notice from people:

• requiring use of an allocated space; and/or
• requesting operator assistance to get on or off the conveyance and/or locate an allocated space or seating;

even if this notice period exceeds the period of notice specified for other passengers.

This exemption is subject to the condition that the ARA member concerned develops and makes available details of advanced booking requirements:

• via the ARA member’s website and downloadable fact sheets; and
• in person at Travel Centres where they exist; and
• via a telephone call to the Customer Contact Centre where available.

PART B – EXEMPTIONS FROM THE PREMISES STANDARDS

• H2.2 Accessways

 (1) An accessway must comply with AS 1428.2.

Temporary exemption: rail premises and rail infrastructure

For a period of five years, flange gaps of up to 75mm are permitted where a level crossing forms part of an access path on rail premises or rail infrastructure. This exemption is subject to the following conditions:

• the member concerned provides a written report to the Commission and the ARA within 12 months of this exemption, and provides an updated version of this report every 12 months on:
  • action taken to improve safe use of level crossings where they form part of an access path;
  • progress made in the removal of level crossings; and
  • any developments in research into possible technical solutions for bridging flange gaps; and
• the ARA makes these reports available to the public through its website.

Temporary exemption: existing rail premises and existing rail infrastructure

For a period of five years, an access path is required to provide entrance and exit only at a single boundary point for existing rail stations where providing access at each entrance would require significant structural building work or not be feasible due to space, topographical or heritage reasons, subject to the following conditions:

• the primary station entrance/exit is an accessible entrance;
• an accessible entry is well signposted and directional signage, including the international symbol for access is provided at any inaccessible entry.
• An accessible entrance connects to each platform and all accessible facilities such as any unisex accessible toilet or accessible parking;
• any inaccessible entrance is upgraded in relation to access features such as handrails, stairway nosings and TGSI where this would not involve significant structural work;
• the ARA member concerned ensures that service users can obtain journey-planning information about accessible pathways through station precincts:
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on which rail stations have inaccessible entrances, and provides an updated version of this report every 12 months; and
• the ARA makes such reports available to the public through its website.

• H2.2 Accessways

 (3) The minimum unobstructed width of an accessway must be 1.2 m, except that:

(a) the minimum unobstructed width of a moving walkway forming part of an accessway may be not less than 850 mm; and

(b) the minimum unobstructed width of a doorway in an accessway may be not less than 850 mm.

•  
• Temporary exemption: existing rail premises and existing rail infrastructure

For a period of five years, for existing rail premises and existing rail infrastructure:

• where the 1200mm minimum unobstructed width for access paths cannot be met due to structural and technical constraints, an access path with a minimum unobstructed width of 1000mm may be provided;
• the 850mm minimum unobstructed width (applicable to doorways and gateways) is also permitted on access paths for the purposes of passing an obstruction limited to less than 800mm in length; and
• platform edge warning TGSIs are permitted to intrude into access paths.

This exemption is subject to the following conditions:

• where site constraints result in an access path with a minimum unobstructed width of 1000mm, and where site constraints require further intrusion of TGSIs into the access path, such intrusion is the minimum required;
• where restricted paths of travel exist due to structural and technical constraints, the ARA member concerned ensures that service users can obtain information about restricted paths of travel at any particular rail station or infrastructure:
  • at the location of the restriction; and
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available;
• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on which rail stations have restricted paths of travel, and provides an updated version of this report every 12 months; and
• the ARA makes such reports available to the public through its website.

• H2.2 Accessways 

(7) A passing area must be provided at least every 6 metres along any two-way accessway that is less than 1 800 mm wide.

Temporary exemption: existing rail platforms

For a period of five years, for existing rail platforms, a passing area every 9 metres along any two-way access path that is less than 1800mm wide is permitted where it is not possible to provide one every 6 metres due to structural or heritage constraints. This exemption is subject to the following conditions:

• the ARA member concerned provides a written report to the Commission and the ARA within 12 months of this decision on which rail station platforms do not provide passing spaces every 6 metres where any two-way access path is less than 1800mm wide, and provides an updated version of that report every 12 months, and that these reports include a description of any measures taken by the ARA member to address any impacts this may have on users; and
• the ARA makes such reports available to the public through its website.

• H2.4 Handrails and grabrails

(2) Handrails must be placed along an accessway wherever passengers are likely to require additional support or passive guidance.

Temporary exemption: rail platforms

For a period of five years, rail platforms are exempt from clause H2.4(2), subject to the following conditions:

• where an ARA member receives a request for the installation of a handrail at a specific point on a platform, installation is undertaken unless the operator is of the view that installing a handrail will adversely affect customer flows, reduce the width of access paths or prevent seating from being placed along the building shoreline or affect safety; and
• where a request is made but the installation of a handrail does not proceed, the ARA member concerned provides a written report on the request and the reasons for not taking action to the Commission and publishes the report on the ARA member’s website.

• H2.5 Doorways and doors

Doorways and doors must comply with clause 11 (except clause 11.5.2) of AS 1428.2.

Temporary exemption: existing rail platforms

For a period of five years, existing doorways and doors on existing rail platforms do not need to comply with the requirements of AS 1428.1:2001 clause 11.1.1, subject to the condition that the doorways and doors comply with AS 1428.1:2009 clause 13.5.2(e).

• H2.9 Location of accessible toilets

Accessible toilets must be in the same location as other toilets.

Temporary exemption: existing rail premises and existing rail infrastructure

For a period of five years, for existing rail premises and existing rail infrastructure, accessible toilets are not required to be in the same location as other toilets where space limitations or essential heritage considerations mean co-location is not feasible, subject to the following conditions:

• any accessible toilet that is not in the same location as other toilets is located on an accessible path of travel that links to other accessible features and is located as closely as possible to the other toilets;
• directional signage, including the international symbol for access, is provided at the other toilets identifying where the accessible toilet is located; and
• the ARA member concerned provides information on the location of accessible toilets to service users:
  • via the ARA member’s website and downloadable fact sheets; and
  • in person at Travel Centres where they exist; and
  • via a telephone call to the Customer Contact Centre where available.

• H2.11 Tactile ground surface indicators – Location

Tactile ground surface indicators must be installed in accordance with AS 1428.4 on an accessway and must indicate changes of direction in accordance with clause 18.1 of AS 1428.2.

Temporary exemption: existing rail premises and existing rail infrastructure

For a period of two years, for existing rail premises and rail infrastructure, compliance with clause H2.11 of the Premises Standards is not required other than in relation to stairways, escalators, ramps and overhead obstructions below a height of 2000 mm, subject to the conditions that the ARA member concerned:

• within 2 years of this decision consults with people with disability and orientation and mobility experts to develop site-specific strategies to identify architectural solutions or alternative way finding aids consistent with AS1428.4: 2002 Appendix B;
• within 2 years provides a report to the Commission and the ARA on the nature and outcome of these consultations; and
• the ARA makes the report available on its website.

• H2.12 Lighting

Any lighting provided must comply with minimum levels of maintenance illumination for various situations shown in the notes to clause 19.1 of AS 1428.2.

Temporary exemption: rail premises and rail infrastructure

For a period of five years, compliance with clause H2.12 is not required on rail premises and rail infrastructure, subject to the condition that the ARA member concerned complies in full with the lighting levels set out in the table below.

TABLE 1 – LIGHTING LEVELS FOR RAILWAY STATIONS

-                       

• H2.15 Controls

Controls must comply with clause 11 of AS 1428.1.

Temporary exemption: rail premises and rail infrastructure

For a period of five years, controls in rail premises and rail infrastructure are not required to comply with AS 1428.1:2001 clause 11.1.1(c), subject to the condition that the controls concerned meet the requirement of a maximum 20N force for operation as required under AS 1428.1:2009 clause 13.5.2(e).

PART C – EXEMPTIONS FROM THE DISABILITY DISCRIMINATION ACT

The Commission also grants to members of the ARA an exemption from sections 23 and 24 of the DDA as follows:

If:

• a matter is regulated by a section of the Transport Standards or Premises Standards; and
• the relevant section of the Transport or Premises Standards is subject to an exemption granted by this instrument; and
• a member of the ARA complies with the relevant section of the Transport or Premises Standards, as modified by the relevant exemption; and
• the member of the ARA complies with any conditions subject to which the relevant exemption is granted;

the member of the ARA is, with respect to that matter, exempt from the operation of sections 23 and 24 of the DDA.

SCHEDULE TWO

NOTICE OF DECISION TO DECLINE TO GRANT EXEMPTIONS

The Commission has decided not to grant to members of the ARA exemptions from the following Standards of the Transport Standards and Premises Standards.

PART A – TRANSPORT STANDARDS

3.1 Circulation space for wheelchairs to turn in

Section 3.1 of the Transport Standards regulates manoeuvring areas for wheelchairs in public transport premises and infrastructure. The ARA seeks an exemption allowing members to provide manoeuvring areas that comply ‘only with the lower end of the range of dimensions’ incorporated in section 3.1.

The Commission’s expert report states that section 3.1, correctly construed, does not impose a ‘lower range’ of permissible dimensions. Compliance with the minimum 2070 mm by 1540 mm dimensions for 180 degree turns as required by section 3.1 will constitute compliance with the standard. The exemption sought is therefore not necessary.

The Commission agrees with the assessment in the expert report. The Commission therefore declines to grant the exemption.

11.2 Handrails and grabrails

As is recorded in Schedule One, the Commission has decided to grant members of the ARA an exemption from s 11.2 of the Transport Standards with respect to rail platforms.

As is noted in the expert report, in ‘Group 2’ of its application, the ARA again requests an exemption from s 11.2 in relation to rail platforms. That is, it repeats the application made in ‘Group 1’ of its application.

Group 2 of the ARA’s application is stated to contain applications for exemptions for which the ARA had previously, but about which the Commission deferred making a decision in 2007.

In the application leading to the 2007 exemptions, the ARA sought an exemption from s 11.2 in relation to rail premises and rail infrastructure generally. The Commission granted an exemption in relation to rail platforms, but otherwise deferred its decision. The Commission has therefore interpreted this part of the ARAs current application as an application that its members be exempt from section 11.2 of the Transport Standards insofar as it relates to rail premises and rail infrastructure generally.

The Commission decided to defer its decision in relation to this application in 2007 on the grounds that further discussions were required between the ARA and interested parties in order to determine:

• with more precision the circumstances in which the exemption would apply; and
• the impact of the ARA’s proposal on people with disabilities.

As the expert report notes, the ARA has provided no information about any further discussions on these lines. Further, ARA members have operated without the benefit of an exemption since 2007 (indeed, since the Transport Standards commenced in 2002). The ARA has not provided evidence demonstrating that the exemption sought is necessary.

The Commission agrees with the observations in the expert report.

In addition, the Commission notes that if section 11.2 cannot be complied with in particular locations, ARA members can seek to develop equivalent access solutions, or rely on the defence of unjustifiable hardship.

In these circumstances the Commission is not satisfied that the grant of an exemption would be justified. The Commission declines to grant the exemption.

21.2 Passenger operated devices for opening and closing doors

Section 21.2 of the Transport Standards regulates devices for opening and closing doors on conveyances.

In 2007, the Commission deferred making a decision about an application in the same terms as that now made in relation to section 21.2. It did so because it had formed the view:

that further consultation is required between the ARA and interested parties, including the Commission, to determine whether there are safety issues involved in relying on operator assistance for the operation of emergency exits.

As the expert report notes, the ARA has provided no details of discussions addressing these issues. The ARA’s submission does not adequately address these safety issues.

Further, as the expert report notes, the ARA members have operated without the benefit of an exemption since 2007 (indeed, since the Transport Standards commenced in 2002). The ARA has not provided evidence demonstrating that the exemption sought is necessary.

The Commission agrees with the observations in the expert report.

In addition, the Commission notes that if section 21.2 cannot be complied with in particular circumstances, ARA members can seek to develop equivalent access solutions, or rely on the defence of unjustifiable hardship.

In these circumstances the Commission is not satisfied that the grant of an exemption would be justified. The Commission declines to grant the exemption.

21.3 Location of passenger operated controls for opening and locking doors

Section 21.3 of the Transport Standards regulates the location of passenger controls for opening and locking doors on conveyances.

In 2007, the Commission deferred making a decision about an application in the same terms as that now made in relation to section 21.3. It did so because it had formed the view that further consultations were necessary between the ARA and interested parties to determine the impact the exemption would have on access for people needing to approach door controls side on.

As the expert report notes, the ARA has supplied details of consultations that have occurred since 2007, but not of consultations addressing the issues identified by the Commission at that time. The expert report identifies that the exemption could reduce accessibility for certain people with disabilities.

Further, as the expert report notes, the ARA members have operated without the benefit of an exemption since 2007 (indeed, since the Transport Standards commenced in 2002).

In addition, the Commission notes that if section 21.3 cannot be complied with in particular circumstances, ARA members can seek to develop equivalent access solutions, or rely on the defence of unjustifiable hardship.

The Commission accepts the opinion in the expert report that the grant of an exemption has not been shown to be necessary.

In these circumstances the Commission is not satisfied that the grant of an exemption would be justified. The Commission declines to grant the exemption.

26.2 Hearing augmentation – listening systems — Public address systems – conveyances

This part of the ARA’s application raises difficult technical questions.

The ARA submitted that technical difficulties frequently prevent the installation of compliant hearing augmentation loops. In particular, the ARA refers to electrical interference from on-board equipment on ‘existing fleet’.

Several submissions received from the public questioned the ARA’s submissions, in particular referring to technological advances and the fact that compliance with the standards is possible in some conveyances.

The expert report was unable to resolve the technical matters in issue in relation to this application. As a consequence, the report recommended that an exemption be granted to allow for a technical group to be convened to investigate the issue.

As discussed in Schedule 3, in the Commission’s view there is a presumption that the legislative scheme contained in the DDA and relevant disability standards should apply. It is not appropriate for the Commission to grant exemptions from disability standards or the DDA unless it is satisfied that there are good reasons to do so.

The submissions made to the Commission were inconclusive. The expert report was unable to determine whether the ARA’s technical claims were justified.

On the basis of the material before it, the Commission is not satisfied that the grant of the exemption sought would be justified.

The Commission notes that it is open to ARA members to develop equivalent access solutions. The ARA’s submissions describe some steps its members have taken in that regard. In conveyances where it is genuinely not possible to comply with the Standards, ARA members may rely on the unjustifiable hardship defence.

The Commission declines to grant the exemption sought.

PART B – PREMISES STANDARDS

H2.2 Accessways

The ARA seeks an exemption from subsection (6) of s H2.2 of the Premises Standards. Subsection H.2.2(6) applies the same requirements as s 3.1 of the Transport Standards, but in relation to ‘public transport buildings’.

For the reasons given in relation to the discussion of the exemption sought from s 3.1 of the Transport Standards, the Commission considers that it is unnecessary to grant the exemption.

The Commission therefore declines to grant the exemption sought.

DecisionS to ‘decline’ rather than ‘defer’

The ARA submitted that in the event the Commission decided not to grant any of the exemptions sought at this time, it should ‘defer’ its decision rather than decline to grant an exemption. This approach was said to be more ‘reasonable’ ‘where the matter is to be addressed in the current review of the Transport Standards.’

The Commission finds this submission unpersuasive. The question of whether ARA members propose to advocate for change in relation to the current review of the Transport Standards is a separate question from whether the Commission is satisfied that it is appropriate to exercise its powers to grant exemptions. The Commission’s power under the DDA and the relevant disability standards is to grant exemptions. Where the Commission is not satisfied that an exemption should be granted, it will decline to grant the exemption. The ARA has not indicated that it possesses further evidentiary material that it wishes to place before the Commission, and, in any event, the ARA has had ample opportunity to provide evidence and make submissions to the Commission. In those circumstances, the current application in relation to these exemptions will not remain under active consideration by the Commission. The Commission does not consider it is appropriate to defer its decision in relation to these parts of the application. For that reason, the Commission has declined to grant the exemptions sought.

SCHEDULE THREE

CONSIDERATION AND REASONS FOR DECISION

BACKGROUND

The Australasian Railway Association (ARA) is an association incorporated in the Australian Capital Territory. It is a peak industry body representing ‘rail operators, track owners and managers, manufacturers, construction companies and other firms contributing to the rail sector.’

On 22 January 2007 and 5 November 2007, the Commission granted members of the ARA a number of exemptions from the DDA and the Transport Standards pursuant to sections 55(1) and 55(1A) of the DDA (‘the 2007 exemptions’). The Commission extended the effect of these by granting further exemptions on a number of occasions, most recently on 18 December 2014. In the remainder of these reasons, these exemptions are referred to as the ‘2007 exemptions’. The exemptions now in force will expire on 30 September 2015.

The 2007 exemptions were granted after extensive discussions and public consultations. The Commission decided that granting the exemptions was justified, on the basis that:

• increased certainty of obligations would assist members of the ARA in taking measures to improve the accessibility of rail services for people with disabilities; and
• applying conditions to exemptions (such as reporting and consultation requirements) would assist the ARA and the community in assessing current levels of compliance with the Transport Standards, in determining future measures to promote accessibility, and provide useful information for the periodic review of the Transport Standards.

On 25 September 2013, the ARA made a new application to the Commission on behalf of its members. It requested that the Commission:

• grant exemptions to members of the ARA, exempting them from the operation of the DDA ‘and its subordinate instruments’ for a period of five years, on the condition that they comply with a proposed National Code of Practice for Accessible Rail Services; or
• in the alternative:
  • grant exemptions to members of the ARA extending the effect of the 2007 exemptions
  • grant a number of exemptions to members of the ARA under the DDA and its ‘subordinate instruments’ previously applied for by the ARA, which the Commission had decided not to grant in 2007; and
  • grant a new exemption relating to the provision of boarding devices at accessible entrances to trains.

After extended discussions with the Commission, the ARA withdrew this application, and submitted a fresh application. The final version of this application was transmitted to the Commission on 11 May 2015. It is that application which is currently under consideration.

THE APPLICATION

The ARA now applies, on behalf of its members, for temporary exemptions from:

• a number of Standards in the Transport Standards;
• a number of Standards in the Premises Standards; and
• sections 23 and 24 of the DDA.

The exemptions sought from the Transport Standards would in effect extend the operation of a number of the 2007 exemptions that are currently in force. 

The ARA has not made detailed submissions about the exemptions sought from the provisions of the DDA. Sections 23 and 24 of the DDA are provisions of general application, making unlawful discrimination on the ground of disability in relation to access to premises and the provision of goods and services. They are likely to apply to members of the ARA in relation to matters which are not regulated by the Transport Standards or Part H2 of the Premises Standards (for instance, acts and practices of ARA members undertaken in their day-to-day administration). The Commission understands that the intention of the ARA in seeking these exemptions is to ensure that its members, insofar as they act in accordance with an exemption granted under the Transport Standards or the Premises Standards, will not be found to have acted unlawfully under s 23 or 24 of the DDA.

The ARA asks that these exemptions be granted for a period of five years.

A copy of the ARA’s application can be found on the Commission’s website at https://www.humanrights.gov.au/australasian-railway-association-ara.

Following a request for clarification by the Commission, the ARA supplied a list of members on behalf of which the application is made. That list is reproduced in Schedule Four to this decision.

Following the receipt of the ARA’s final application, the Commission called for public submissions about its merits. The Commission did this by:

• publishing the application on its website, and calling for public submissions
• writing to State and Territory anti-discrimination bodies, inviting them to make submissions
• writing to a number of peak bodies representing persons with disabilities, inviting them both to make submissions and to publicise the application and the Commission’s call for submissions among their members
• writing to the Accessible Public Transport Jurisdictional Committee (APTJC), inviting it to make submissions.

In this way, the Commission satisfied its obligation to consult APTJC, pursuant to s 33A.1(4)(a) of the Transport Standards and s 5.1(4)(a) of the Premises Standards.

One submission received from All Aboard, a representative body for people with disabilities with a focus on accessible public transport, observed that a number of members of APTJC are also members of the ARA. The Commission has noted this submission. The Commission is required to consult APTJC prior to granting any exemption under the Transport Standards or the Premises Standards. There is no suggestion that the submission made by APTJC was not made in good faith.

The Commission received a number of submissions during its public consultation. A list of these submissions is contained in Schedule Five to this decision. The submissions themselves were made available on receipt on the Commission’s website to facilitate further public consideration of the application.

The ARA provided a further written submission on 14 August 2015, addressing matters raised in other submissions, as well as specific questions asked by the Commission.

This application, and the submissions received in relation to it, raise a large number of technical issues about limitations affecting rail conveyances, rail premises and rail infrastructure; the requirements of the Transport and Premises Standards in relation to these; and the extent to which compliance with the Standards is difficult or impossible to achieve. To assist it in assessing these matters, the Commission engaged an external expert consultant, Mr Michael Small of Small Consulting Pty Ltd, to provide advice in relation to the application. Mr Small provided an expert report on 31 August 2015. That report was made available on the Commission website, and the ARA, APTJC, and members of the public who had previously made submissions were notified of that fact and invited to comment on aspects of the report. In particular, all parties were invited to comment on the conditions subject to which Mr Small recommended any exemptions be granted.

The ARA and several members of the public provided further submissions in response to the expert report.

The submissions and the expert report above can be accessed on the Commission website at https://www.humanrights.gov.au/australasian-railway-association-ara.

The Commission has considered all of the materials referred to above in reaching its decision in relation to the application.

LEGISLATIVE REGIME AND THE COMMISSION’S POWER TO GRANT EXEMPTIONS

The DDA, the Transport Standards and the Premises Standards

The DDA makes unlawful discrimination on the ground of disability in a range of fields. Most relevantly for the present application, the DDA makes unlawful discrimination in relation to access to premises (s 23) and the provision of goods and services (s 24).

The DDA also empowers the Minister to formulate disability standards (s 31 of the DDA). The Transport Standards and the Premises Standards are disability standards made under that provision.

The Transport Standards came into operation on 23 October 2002. The purpose of those standards is stated to be ‘to enable public transport operators and providers to remove discrimination from public transport services’ (s 1.2(2)). At the time they were made, the Transport Standards regulated aspects of conveyances, premises and infrastructure used to provide public transport services.

The Premises Standards came into operation on 1 May 2011. Those standards regulate aspects of buildings, and facilities and services within buildings. They include, in Part H, a series of standards applicable to certain buildings and structures which are designated ‘public transport buildings’. Public transport buildings include assembly buildings and certain other structures used for public transport. On the same date the Premises Standards came into effect, the Transport Standards were amended so that they no longer apply to ‘public transport buildings’. The effect of these amendments was to move the regulation of accessibility requirements for ‘public transport buildings’ from the Transport Standards to the Premises Standards. However, the substance of the requirements imposed in relation to those buildings did not change.

It is for this reason that in 2007, exemptions were granted only from provisions of the DDA and the Transport Standards, while the present application seeks in addition exemptions from parts of the Premises Standards.

Pursuant to s 34 of the DDA, a person will not contravene the DDA if they act ‘in accordance with a disability standard.’ In this way, disability standards provide an avenue whereby persons and bodies such as public transport operators and providers can ensure they will not be found to discriminate unlawfully on the ground of disability.

Conversely, pursuant to s 32 of the DDA, it is unlawful to contravene a disability standard.

The Commission’s powers to grant exemptions

The Commission has the power to grant exemptions under the DDA (s 55).

The Transport Standards commenced operation on 23 October 2002. At that time, the Commission had a power to grant exemptions from disability standards under s 55(1A) of the DDA. In 2010, the power to grant exemptions from disability standards was removed from the DDA. At the same time, an equivalent power was inserted in s 33A of the Transport Standards.

The Premises Standards contain an equivalent power to grant exemptions in s 5.1.

Where the Commission has granted an exemption under the DDA, the Transport Standards or the Premises Standards, it has the power subsequently to grant further exemptions. In relation to the current application, some of the exemptions sought are ‘further exemptions’, while some are being applied for for the first time.

The effect of an exemption under the standards is that where a person fails to comply with either the Premises Standards or the Transport Standards, but that failure is in accordance with an exemption that has been granted by the Commission, the person does not contravene the standards (Transport Standards s 33A.3; Premises Standards s 5.3). However, that does not automatically mean their conduct is ‘in accordance with’ the relevant Standard (and so within the proviso contained in s 34 of the DDA). For that reason, a person seeking an exemption under a disability standard may also choose to seek an exemption from the DDA, as the ARA has done in this case.

Exemptions granted by the Commission may be granted subject to terms and conditions. Failure to comply with such a term or condition does not, of itself, amount to unlawful conduct. However, where the beneficiary of an exemption fails to comply with a condition attached to the exemption, they will be deprived of the benefit of the exemption. They will then be subject to the requirements of the relevant disability standard or the DDA in the usual way.

The Commission’s powers to grant exemptions are expressed in broad terms. However the Commission is of the view that exemptions should not be granted lightly. The Commission must be satisfied that the grant is justified, and substantial evidence is needed to justify it.

The Commission has issued guidelines about how it proposes to exercise its power under the DDA. These provide that the Commission will consider:

• whether an exemption is necessary;
• whether granting an exemption would be consistent with the objects of the DDA;
• an applicant’s reasons for seeking an exemption;
• submissions by interested parties;
• all relevant provisions of the DDA; and
• any terms or conditions subject to which an exemption might be granted.

The objects of the DDA are stated in s 3 to be:

(a)   to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i)      work, accommodation, education, access to premises, clubs and sport; and

(ii)    the provision of goods, facilities, services and land; and

(iii)  existing laws; and

(iv)  the administration of Commonwealth laws and programs; and

(b)   to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c)   to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

The Guidelines state, by way of example, that exemptions may be granted where doing so will facilitate greater compliance with the DDA over time.

The Guidelines do not expressly deal with the Commission’s powers to grant exemptions under the Premises Standards or the Transport Standards. However the Commission considers that the factors that are relevant to the exercise of its powers under the DDA are also relevant, mutatis mutandis, to the exercise of its powers under the standards.

DECISION TO GRANT EXEMPTIONS

As noted above, the 2007 exemptions were granted because the Commission was satisfied that:

• increased certainty of obligations would assist members of the ARA in taking measures to improve the accessibility of rail services for people with disabilities; and
• applying conditions to exemptions (such as reporting and consultation requirements) would assist the ARA and the community in assessing current levels of compliance with the Transport Standards, in determining future measures to promote accessibility, and provide useful information for the periodic review of the Transport Standards.

The ARA submitted that compliance with the Standards is in many respects not possible, and that granting the exemptions would provide certainty to operators, which would, in turn, allow resources to be appropriately allocated to improve accessibility.

A large number of the submissions received during the public consultation opposed the grant of the exemptions, for a number of reasons, including:

• members of the ARA have had since 2002 to comply with the Transport Standards;
• it is not appropriate for industry-wide exemptions to be granted. Different members of the ARA have different conveyances, premises and infrastructure, and not all of them require exemptions or exemptions in identical terms;
• some ARA members currently comply with some standards from which exemptions are sought. Granting exemptions where they are not required may encourage these members to reduce the accessibility of their conveyances, premises and infrastructure;
• the Transport Standards and the Premises Standards have a number of features which make the grant of industry-wide exemptions unnecessary, in that:
  • it is open for rail operators and providers to comply with the Transport Standards by providing equivalent access, including direct access [or in the case of the Premises Standards, providing alternative solutions;[1]
  • the Transport and Premises Standards do not currently require total compliance. Both provide for gradual implementation by stipulating a range of target dates;
  • Where compliance with the Standards is genuinely not possible, a defence of unjustifiable hardship is available;
• The ARA did not propose that the exemptions sought be subject to the conditions applying to the 2007 exemptions; and
• in these circumstances, it would be more appropriate for individual members of the ARA to make individual applications for exemptions.

The Commission considers that there is considerable force in a number of these submissions. In passing the DDA and making the Transport and Premises Standards, the government has created a comprehensive regime intended to ensure the accessibility of public transport for persons with disabilities. Those instruments contain a number of provisions which do provide some flexibility to public transport operators and providers, including the equivalent access provisions under the Transport Standards and the possibility of providing alternative solutions under the Premises Standards,[2] the adoption of target dates for gradual, progressive compliance, and the availability of a defence of unjustifiable hardship.

However, the Commission also accepts the findings of the expert report to the effect that the rail industry faces legitimate difficulties in fully complying with the DDA and the Standards. These difficulties have their origin, at least in part, in constraints arising from legacy infrastructure and rolling stock, and from the nature of the rail environment.

The Commission considers that many of the concerns raised in the public submissions can be in large part addressed by appropriately drafting any exemptions granted, and by making them subject to appropriate terms and conditions. For instance, some of the exemptions that the Commission has decided to grant apply only to certain types of conveyance (such as narrow gauge); others are stated to apply only where compliance with a particular standard is not possible because of factors such as site constraints or technical limitations. In some circumstances where full compliance with the Standards is not possible, the grant of an appropriate exemption may, if subject to an appropriate condition, improve access for some persons with disability, by, for example, providing certainty for passengers by ensuring certain reduced, but achievable, standards are met, or ensuring appropriate information is provided to the public to enable better journey planning.

The Commission notes that APTJC supported the grant of the exemptions. PWDA also supported the grant of some of the exemptions sought, subject to the imposition of appropriate terms and conditions. A number of the submissions acknowledge, to varying extents, that there are topographical and technical constraints which cannot always be overcome by rail operators and providers.

The expert report finds that, at this time, the factors which led the Commission to grant the 2007 exemptions are still applicable.

The factors weighing for and against the grant of the exemptions sought are finely balanced. However, on the basis of the expert report, the Commission has decided to grant the majority of the exemptions sought.

The Commission considers that a five year exemption period should provide the ARA and its members with sufficient time to:

• comply with the provisions of the Transport and Premises Standards; or
• explore, identify, document, and implement methods of providing equivalent access or alternative solutions; and/or
• identify and document situations where compliance with the standards would impose unjustifiable hardship on particular members of the ARA, and comply with the Standards to the maximum extent not involving unjustifiable hardship.

The Commission considers that in the long term, it is appropriate that members of the ARA comply with the Standards, or rely, where appropriate, on the defences they provide. At the expiry of the exemptions now granted, the Transport Standards will have been in effect for 18 years. Members of the ARA will have benefited from exemptions granted by the Commission for 13 years. Further, the target dates in the Transport Standards and the Premises Standards will at that stage require 90% compliance with most elements of those standards. That means that the effect of granting further exemptions will potentially have a greater impact on the rights of persons with disabilities. In light of these considerations, there can be no assumption that further exemptions will be granted to members of the ARA. Persuasive reasons would be required to justify the grant of any further exemptions, as would detailed evidence establishing both the justification for any further grant, and the impact such a grant would be likely to have on persons with disabilities.

The exemptions granted from the Transport Standards relate to requirements of those Standards to which the 2007 exemptions applied, and so are further exemptions, though the conditions subject to which the exemptions are granted have been varied in some respects. (The Commission’s power to grant further exemptions under the Transport Standards is contained in s 33A.1(3).  The Commission considers that it would, in any event, have the power to grant these exemptions under s 33A.1(2)). 

Sections 12.4, 15.3 and 15.4 of the Transport Standards

The Commission notes that it has granted an exemption from sections 12.4 of the Transport Standards only in relation to narrow gauge rail. That is because the reasons given by the ARA in support of its application refer only to constraints applying in that context. The Commission notes that its decision in this regard is in accordance with the expert report. In its further submission of 15 September 2015, the ARA asserts that the factors justifying the grant of this exemption apply to all rail gauges. However the ARA has supplied no detail or evidence for this claim. In those circumstances, the Commission cannot be satisfied that the grant of these exemptions is justified in relation to standard gauge rail. To the extent that certain standard or broad gauge conveyances cannot comply with these standards, it is open to the relevant ARA members to develop and document methods of providing equivalent access, or alternatively, to claim unjustifiable hardship.

The ARA has not objected to a similar decision made by the Commission to grant an exemption from section 15.3 of the Transport Standards only in relation to narrow gauge conveyances.

The ARA also submitted that the exemption granted in relation to section 15.4 of the Transport Standards should apply to all rail gauges. The Commission notes that the ARA’s application only sought an exemption in relation to narrow gauge and standard gauge conveyances. The Commission decided in 2007 to grant an exemption only in relation to these gauges. The ARA has made no submissions, apart from the assertion in its letter of 15 September, and provided no evidence supporting the grant of a wider exemption than that granted in 2007.

The ARA also objected to the condition, recommended in the expert report, that the exemption granted from section 12.4 should be subject to a condition that narrow wheelchairs be provided. The ARA claimed that this requirement would be dangerous, and would have a negative effect on the dignity of persons with disabilities. The Commission does not accept this objection. Narrow wheelchairs are provided in other contexts where space is limited (for instance, on aircraft). Further, the ARA’s own application, in relation to section 12.4, explicitly contemplates the supply and use of narrow wheelchairs, stating that ‘[t]hese widths do not always permit use of larger mobility devices and customers may need to transfer into an on-board operator-supplied wheelchair’.

‘New’ and ‘existing’ conveyances, premises and infrastructure

One submission strongly urged that any exemptions granted should only apply to conveyances, premises and infrastructure in service in 2002, at the time the Transport Standards commenced operation.

The Commission acknowledges this submission and the rationale for it. On the other hand, the Commission accepts the opinion in the expert report that the factors justifying the grant of some exemptions apply to items refurbished or commissioned after 2002 (for instance, topographical and site constraints may be extremely difficult or impossible to overcome).

A principal concern motivating this submission appears to be a concern that it may encourage ARA members to upgrade conveyances, premises or infrastructure to a standard below that required by the Standards. This concern is partly addressed by:

• providing that, where appropriate, exemptions are granted only with respect to existing conveyances, premises and infrastructure; and
• drafting the exemptions so that they only apply in certain circumstances (such as where full compliance with the Transport Standards is not possible for technical or structural reasons).

Finally, the Commission notes that the exemptions granted by this decision are granted for a period of five years, and there is no guarantee they will be renewed. In those circumstances, it is not to be expected that operators will purchase, install or build new conveyances, premises or infrastructure that do not fully comply with the standards unless there are legitimate constraints preventing them from doing so. Acting otherwise would expose them in the long term, if not the short term, to the potential for complaints to be brought under the DDA.

Duration of Exemptions

The Commission has, with one exception, decided to grant the exemptions for a period of five years.

The expert report suggests that the exemptions could be granted for a period of three years, as it is currently anticipated that the Transport Standards will be amended in that period. The Commission has adopted the alternative approach suggested in the report: that is, to grant the exemptions for a period of five years, unless the Standards are remade at an earlier date. It may take longer than anticipated for the Transport Standards to be remade. Further, the Commission notes that at the time of writing, there is no indication of whether Part H of the Premises Standards is likely to be amended, or whether the ARA is actively advocating such amendments.

The one exception with respect to the duration of the exemptions granted is in relation to the exemption granted from section 18.1 of the Transport Standards. The Commission has accepted the recommendation in the expert report that an exemption of two years’ duration is sufficient in relation to that standard.

CONDITIONS

The Commission has in most cases decided to make the grant of exemptions subject to conditions. In so doing, the Commission has generally accepted the recommendations in the expert report (though these have in some cases been modified slightly for the sake of clarity or consistency).

The majority of submissions received by the Commission during the public consultation strongly advocated retaining conditions attached to the 2007 exemptions.

In November 2014, in correspondence leading to the ARA’s revised application, the Commission directed the ARA’s attention to the conditions attached to the 2007 exemptions, and invited the ARA to include in any revised application submissions addressing what conditions might be attached to any exemptions granted. The ARA also had an opportunity to make submissions about potential conditions in its response to the public submissions supplied to the Commission in August.

Following the receipt of the expert report on 31 August, the Commission invited the ARA, APTJC and others who had made submissions about the ARA’s application to respond to the expert report, and in particular to its recommendations in relation to potential conditions.

In its submission dated 15 September 2015, the ARA states that there is some ‘inconsistency’ in the conditions recommended in the expert report. It is true that the expert report recommends that different conditions be attached to different exemptions (if granted). The explanation for this variance is that the particular conditions attaching to each exemption have been tailored to the particular exemptions sought. The Commission has accepted the advice in the expert report in this regard.

The Commission has imposed conditions on the exemptions it has granted for a number of reasons, including:

• to limit the negative impact of some of the exemptions granted, by restricting the scope of those exemptions;
• to limit the negative impact of some of the exemptions granted, by ensuring positive measures are taken to provide equivalent access, or to mitigate any reduction in accessibility;
• to limit the negative impact of some of the exemptions granted, by ensuring information is available to passengers. This can aid in journey planning;
• to encourage the development of new ways to improve accessibility of rail transport;
• to enable the public to monitor the impact of the exemptions; and
• to assist members of the ARA to develop methods of providing equivalent access, or, where appropriate, to document and establish a defence of unjustifiable hardship.

The Commission is not satisfied that, in the absence of these conditions, the potential negative impact the exemptions would have on the rights of persons with disabilities seeking to use public transport would be justified.

The Commission notes that in its submission of 15 September, the ARA appears broadly to accept the conditions recommended in the expert report. However, the ARA expresses concern about some of the recommended reporting requirements. The ARA states that while it supports ‘prospective’ reporting, it objects to any condition requiring ‘retrospective’ reporting. That is, the ARA objects to any conditions that would require members to collect and publish information about levels of compliance with the Standards of existing conveyances, premises, and infrastructure.

The ARA states that ‘retrospective’ reporting would be an ‘expensive exercise.’ However, the only figure it gives is an estimate from Queensland Rail that a ‘full audit of its urban network’ would cost $4 million. It is not clear if this costing relates only to collecting the information that would be required to satisfy the conditions recommended in the expert report, or if it also includes other matters.

The Commission notes that a number of the 2007 exemptions contain ‘retrospective’ reporting conditions in the sense the ARA uses that term. It would therefore be of some concern if ARA members were not already in possession of some of this information. Further, the provision of information about existing rail conveyances, premises and infrastructure is essential to allow persons with disability to plan journeys and so meaningfully access public transport.

The Commission is not satisfied that the grant of the exemptions sought would be justified in the absence of the recommended reporting conditions. The Commission is also not satisfied, on the basis of the submission made by the ARA, that the cost of reporting would be prohibitive. However, in the event that particular members of the ARA consider that conditions attaching to particular exemptions are too onerous, it is open to those members not to rely on the exemption, and either to provide equivalent access or alternative solutions, or to rely on the unjustifiable hardship defences available under the DDA and the Standards.

The ARA has also expressed an interest in developing a ‘streamlined’ reporting mechanism. The Commission has no objection to efficient reporting mechanisms, provided that the reports comply with the relevant conditions.

Several of the submissions received by the Commission expressed the view that the Commission should actively monitor compliance with any conditions attached to exemptions. The Commission is not in a position actively to monitor compliance with the DDA or various disability standards. Nor is it in a position actively to monitor exemptions granted or compliance with conditions attached to those exemptions. For this reason, the Commission has adopted the recommendations in the expert report that reporting conditions attached to exemptions require ARA members to provide reports to the ARA, and that the ARA ensures those reports are made available on its website.

The primary method of ensuring compliance with the DDA and disability standards is through the complaints mechanism contained in the Australian Human Rights Commission Act 1986 (Cth). In the event a member of the ARA fails to comply with a condition attached to an exemption, and a person suffers unlawful discrimination as a result, it would be open to the person aggrieved to make a complaint to the Commission.

THE REVIEW OF THE TRANSPORT STANDARDS

The ARA has made extensive reference in its submissions to the review of the Transport Standards that is currently underway.

The Commission notes the views expressed in the expert report that a number of the matters addressed in this decision may be addressed in the long term by amendment of the Transport Standards. In the event and to the extent that that occurs, the exemptions granted by this decision will cease to have effect.

While information gathered in compliance with some of the conditions attached to exemptions granted by this decision may be useful in considering what changes, if any, should be made to the Transport Standards, that is not the principal reason for the Commission imposing these conditions.

In deciding to grant exemptions, the Commission does not intend to express a view about the merits of any particular amendments that may be made to the Transport Standards. In particular, the Commission should not be taken to be endorsing suggestions that the ‘prescriptive’ or ‘compliance based’ approach of the Transport Standards may be inappropriate in the rail environment.

DECISION TO DECLINE TO GRANT EXEMPTIONS

The Commission has declined to grant certain exemptions the ARA has applied for. The Commission’s reasons for these decisions are provided in Schedule Two.

SCHEDULE FOUR

LIST OF ARA MEMBERS TO WHICH EXEMPTIONS APPLY

SCHEDULE FIVE

SUBMISSIONS RECEIVED

The Commission received submissions from the following people and organisations:

• Australasian Railway Association (ARA)
• Mr Andrew Stewart
• Accessible Public Transport Jurisdictional Committee (APTJC)
• All Aboard network
• Association of Consultants in Access Australia (ACAA)
• People with Disability Australia (PWDA)
• Deafness Council of NSW
• Deaf Australia
• Minister for Transport Queensland
• Victorian Council of Social Services (VCOSS)
• Mr Peter Kerley

Several of these submitters made multiple submissions. Copies of all submissions are available on the Commission website at https://www.humanrights.gov.au/australasian-railway-association-ara.

[1] For a discussion of ‘alternative solutions’ in relation to public transport buildings, see Australian Human Rights Commission, Guideline on the Application of the Premises Standards (Version 2, February 2013), at p. 110 (available at https://www.humanrights.gov.au/guidelines-application-premises-standards).

[2] Alternative solutions are permitted under s3.2(2) of the Premises Standards. See the discussion of alternative solutions in Australian Human Rights Commission, Guideline on the Application of the Premises Standards (Version 2, February 2013), at pp. 15-16, 110 (available at https://www.humanrights.gov.au/guidelines-application-premises-standards).