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Thursday, 16 May 2002
Page: 2396

Mr McCLELLAND (10:12 AM) —At the outset, I should indicate that the opposition strongly supports the Disability Discrimination Amendment Bill 2002. There are some concerns in respect of the length of time it will take to implement all aspects, but it is worthy legislation. It has been worked on over a number of years by several governments, including cooperation by the federal and state governments, which after all is the way to go in this country.

We recognise and endorse the statements by the Parliamentary Secretary to the Minister for Health and Ageing, the member for Adelaide, when introducing the bill, when she said that transport disability standards `will greatly assist in breaking down social and economic barriers faced by people with a disability or mobility problem', and that they `will also further our standing within the international community as leaders in taking practical steps to reduce discrimination against people with disabilities'. In that context, we are concerned that those who are disabled in the community seem to be taking the brunt, or at least a significant part of the brunt, of paying for the government's deficit, and that is of concern.

In terms of the bill itself, I want to go through some of the technical provisions. The bill amends the Disability Discrimination Act to allow the Human Rights and Equal Opportunity Commission, known as HREOC, to grant exemptions from the disability standards which govern access to public transport services and facilities. The Australian Transport Council first recognised that it had to address issues concerning access to public transport in November 1994, following a number of successful complaints of discrimination against transport operators.

A national task force was established, including representatives of people with disabilities, to develop performance-based draft standards. The draft standards were first approved by the ATC in June 1996 and then subjected to a regulatory impact statement to examine the potential cost of implementation, as well as the potential benefits to the whole community. Some three years later, in 1999, the regulatory impact statement and the transport standards were again discussed by the Australian Transport Council. It was agreed that the standards should generally be adopted but that the Human Rights and Equal Opportunity Commission be given the power to grant exemptions from the standards.

In October 2000, cabinet endorsed the standards subject to an extension of the compliance timetable for trams and trains and exclusions for dedicated school bus services, small aircraft and airports, limousines, hire cars and charter boats. The Attorney-General then began working on redrafting the standards. A technical workshop was held in December 2000 with representatives of the transport, manufacturing and construction industry, operators and disability sector representatives. A draft of the standards relating to public transport was published by the Attorney-General on 27 September 2001. He has indicated that he intends to table the final standards in parliament after this bill has been passed. That will put meat on the bone; they will be significant. After the standards have been tabled in parliament they will take effect as provided by section 31 of the Disability Discrimination Act. Under section 32 of that act it is unlawful for a person to contravene a disability standard.

While Labor has criticised the length of time it has taken to develop the standards and has questioned whether it is necessary to allow 20 years to implement the standards and, indeed, 30 years for trains and trams, it is clear that the creation and adoption of the standards is a positive development and is one which Labor supports. In respect of that implementation time, if it can be shown that steps can be taken to hasten that, either by incentives or otherwise, that is certainly something that I believe this parliament should look at.

This bill implements part of the machinery for successful implementation of the standards. It was first introduced on 27 September 2001 and lapsed with the calling of the election. The bill essentially has two stated purposes. Firstly, the bill is said to provide up-front certainty by enabling a provider of public transport services or facilities to apply for an exemption from disability standards. The most obvious basis on which somebody would apply for an exemption is that compliance would cause unjustifiable hardship. This, it is said, would enable the provider to clarify their obligation up-front instead of waiting to be sued under the Disability Discrimination Act, and then raising a defence such as unjustifiable hardship.

Secondly, the bill will give the Human Rights and Equal Opportunity Commission the same power to grant temporary exemptions from the disability standards for accessible public transport when they come into force, as it has regarding the existing provisions of the Disability Discrimination Act. This will also provide consistency for the powers of HREOC. Before granting an exemption HREOC will be obliged to consult a body prescribed in regulations. The Attorney-General has indicated that the prescribed body will be the National Transport Secretariat. That secretariat is funded on a cooperative basis by the Commonwealth and the states and reports to the Australian Transport Council. The role of the secretariat will be to provide HREOC with technical advice. HREOC will also be able to consult with any other body or person it considers appropriate. An exemption from the disability standards relating to public transport can be for a period of up to five years. That period of time may appear to be of concern. However, for reasons I will discuss later, we are prepared to support attempts to resolve these matters without litigation. I should also note that an application can be made to HREOC for that exemption period to be extended. Labor agrees that the ability of HREOC to grant temporary exemptions from the standards is, however, important to the implementation process.

It is important that providers of public transport comply with disability standards. However, there is sense in enabling any uncertainty about compliance to be resolved by HREOC on a consultative basis rather than by litigation in the Federal Court. Clearly, that enables disability advocacy groups to be involved and it may also spare individuals the trauma and expense of litigation. Labor recognised this argument when we formulated the Disability Discrimination Act in 1992 and gave HREOC at that time the power to grant exemptions from the act.

The initial suggestion to extend the exemption power to the transport disability standards in this way came from the Human Rights and Equal Opportunity Commission itself. Provision for the exemption power was also an essential part of agreement by the Australian Transport Council ministers to the standards going ahead. The standards provide a blueprint of what accessible public transport means and how it should be achieved across Australia over the next 20 years—again, the sooner the better, but that is an outside time frame. Industry and consumers alike are anxious for the standards to enter into force and to give them certainty of rights and responsibilities. The exemption mechanism allows for a necessary element of regulatory flexibility and the provision for certainty. An example would be where an operator needs to trade off extra time for some elements for which they have difficulty meeting the timetable provided in the standards. That trade-off is against other elements where they can do better than the timetable. Again, that is commonsense.

Under the bill, the commission should only approve exemptions where it is convinced that this is consistent with the objects of the legislation. Temporary exemptions have had an important role in facilitating the progress that has been made in accessible transport in several states. The commission has an established policy of conducting public consultation before making a decision on exemption applications under the Disability Discrimination Act and, of course, will continue to apply that policy. This is in addition to the specific requirements in the amending legislation to consult with the National Transport Secretariat. Transport operators or consumers who disagree with or feel aggrieved by any such decision will be able to seek a review of the exemption decisions in the Administrative Appeals Tribunal. That process, we believe, brings an appropriate balance of consultation with the right to review. In summary, Labor supports the bill.