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HG Alert: Disability Discrimination: More Certainty for the Property Industry - May 2009

Both State and Federal legislation prohibit discrimination against people with disabilities. One of the most problematic areas of anti-discrimination law, from a compliance perspective, arises for owners, managers and developers of publicly accessible buildings, who are legally required to ensure equitable access for people with disabilities. Recent developments at the Federal level will assist stakeholders in the property industry to ensure compliance with that obligation.

Disability discrimination law is one of the few areas of discrimination law where positive action is required to ensure compliance. In this context, failure to make appropriate provision for disabled-access to buildings is unlawful and can result in complaints being made to both State and Federal regulators. Complaints can lead to orders for payment of compensation and for the performance of building modifications. Substantial expense can be involved, therefore, building owners, managers and developers cannot afford to disregard their legal obligations.

The discrimination jurisdictions are entirely complaint driven, and the legislation itself provides little guidance on how compliance can be achieved and complaints avoided. Last December the Federal Government tabled draft Disability (Access to Premises – Buildings) Standards in Parliament. If and when the Premises Standards become law, they will form the basis for compliance with the Commonwealth Disability Discrimination Act 1992 for new buildings or, where new building work is being undertaken, in existing buildings. The draft Premises Standards are currently being reviewed by a parliamentary standing committee, which is expected to publish its report within the next couple of months.

Purpose and scope of the Premises Standards

The stated purpose of the standards is to:

  • ensure achievable, equitable and cost-effective access to buildings for people with disabilities; and
  • provide certainty to building certifiers, developers and managers, that buildings which comply with the Premises Standards do not breach the Act.

If and when the standards are adopted, it will be unlawful to contravene them. They will apply to:

  • new buildings;
  • new work on existing buildings; and
  • certain existing public transport facilities.

The standards will not apply to existing buildings, unless they are undergoing new work or a change of use or classification. Where new work is concerned, they will only apply to the part that is being upgraded and the path of travel from the principal entrance to the new work. The standards will not apply to single dwellings such as detached houses, townhouses, villas or residential apartment building, but will apply to:

  • boarding houses, guest houses and backpacker accommodation;
  • residential parts of hotels, motels and schools;
  • accommodation for the aged, children or people with a disability;
  • residential parts of detention centres;
  • office buildings used for professional or commercial purposes;
  • shops or buildings used for retail or supply of services to the public, such as restaurants, bars, kiosks, hairdressers, showrooms and service stations;
  • car parks and buildings used for storage or display of goods for sale by wholesale;
  • any building or laboratory used for processing, assembling, altering, repairing, packing or finishing goods for sale; and
  • public buildings such as, health care facilities, assembly buildings in schools, and aged care facilities.

The standards will impose obligations upon persons who have responsibility for and control over matters covered by the standards, including:

  • property developers and owners;
  • building designers, certifiers and managers;
  • builders;
  • project managers; and
  • operational staff.

They will regulate such things as:

  • pedestrian access to buildings and access ways within buildings;
  • the number of accessible car parking spaces in car parks;
  • signage (including braille and tactile signage), and hearing augmentation and tactile indicators;
  • the number and location of wheelchair seating spaces in assembly buildings;
  • access to swimming pools;
  • ramps;
  • the size of lift cars and platforms; and
  • the number and accessibility of sanitary facilities.

The Act will continue to apply to those matters that are not covered by the standards (such as furniture, fit-out of buildings, and matters such as discriminatory actions of staff in refusing access to buildings or facilities).

Once in operation, the standards will apply from the time that an application for building approval is made to a building authority or, in circumstances where no application is necessary (ie if the work is being done on behalf of the Commonwealth or a State instrumentality), from the date of commencement of the work.

Concessions

The draft standards also provide for concessions which are additional to existing concessions in the Act. In particular, under the current regime it is not unlawful to discriminate against disabled persons (eg by failing or refusing to provide appropriate means of access to or use of premises), if compliance would result in unjustifiable hardship, or if the premises were designed so as to be inaccessible by persons with a disability.

The standards propose the following additional concessions:

  • Unjustifiable hardship: This is where it would be unreasonable to require full compliance, such that it would impose unjustifiable hardship.
  • Acts done under statutory authority: Where a person is acting in compliance with a law prescribed in the regulations, industrial instruments, awards or determinations made under the Act.
  • Lessees: If the lessee of the building the subject of new works is the applicant, they are not required to upgrade the path of travel from the entrance of the building to the new work. This exception recognises that in most circumstances lessees are not responsible for common areas.
  • Lift concession: Floor dimensions of lifts in existing buildings need not meet the new minimum requirements where new work is undertaken.
  • Toilet concession: Existing buildings undergoing new work that satisfy previous toilet standards for floor dimensions and layout need not meet the new minimum requirements.

Implications

As noted by a recent Parliamentary release, the standards represent a substantial departure from the current legislative obligations to provide non-discriminatory access to publicly accessible buildings, which are “enforced on an ad hoc basis” and “driven by individual complaints”. The standards will introduce greater certainty for building owners, managerial staff and developers insofar as, if a new or renovated building complies with the standards, the unlawful discrimination provisions of the Act will not apply (to those matters covered by the standards). Also, as the standards will become part of the Building Code of Australia (BCA), developers and others who comply with the BCA will also meet the requirements of the Act. Whilst the standards have no relationship to equivalent State discrimination legislation (such as the Anti-Discrimination Act 1991 in Queensland), it can be expected that compliance with the standards will, in State discrimination jurisdictions, assist stakeholders in those jurisdictions also to manage their statutory obligations.

The proposed concessions will no doubt be welcomed by building owners, managers and developers, particularly where existing buildings are being renovated. However, the “unjustifiable hardship” concession might continue to present some difficulty in practical application. Decisions regarding unjustifiable hardship can only be made by a Court after a complaint has been made. Therefore, non-compliance with the standards will make persons responsible for buildings vulnerable to complaints under the Act. Even where a complaint is unsuccessful, respondents to the complaint may still find themselves significantly out of pocket as the result of seeking to manage it.

For further information please contact HopgoodGanim’s Industrial and Employment team.