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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
30/03/2009
Disability (Access to Premises - Buildings) Standards [draft]

CHAIR —Welcome. The committee does not require you to speak under oath but these proceedings are formal proceedings of the Commonwealth parliament. Giving false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. We have a very helpful written submission from the commission, but would you like to make a brief introductory statement before we go to questions?

Dr Szoke —I would like to make a short statement to set the scene in terms of the particular perspective that we have taken at the Victorian Equal Opportunity and Human Rights Commission. I thank the committee for the opportunity to present to you. We welcome the draft standards and we think they are long overdue. As we have noted in our submission, we believe the standards have the potential to operate some certainty which will benefit business, building services and, probably most importantly, people with a disability, who have been waiting a long time for the small gains that the standards will offer.

We note that the standards will operate to harmonise building regulation and discrimination laws—and we think that is important—and create a clearer legal environment in which developers and decision makers operate. We believe the standards will also facilitate compliance with the DDA by actively addressing systemic discrimination without relying on individual complaints. This is a particular theme which is paramount in the mind of the Victorian Equal Opportunity and Human Rights Commission which arises out of our review of our own state jurisdiction, where we have identified systemic discrimination and the need to have regulatory tools to address that.

Access to public space is central to the social inclusion and the participation in public life of people with disabilities. Currently there are tangible and physical barriers to equality for persons with disabilities. Many buildings and premises exist and continue to be created that indirectly discriminate against people with disabilities. It is not only about being able to enter certain buildings or knowing you will be alerted if there is an emergency; it is about having access to services, employment, education and accommodation. These are basic areas of public life where we expect people to be treated fairly and be able to safely participate.

In addition to clarifying legal obligations, accessible buildings benefit the community as a whole. Accessible buildings are accessible for everyone. This includes people with a range of disabilities but also those who require pram or stroller access, older people who might, for example, have difficulties with grades and stairs, anyone who suffers an injury from time to time in their life and any person who ever needs to move large or heavy items. So accessibility, safety and convenience measures in buildings benefit the whole of the Australian community.

I note that what we are looking at today is not the full story about accessible buildings. The draft standards apply to certain classifications of new buildings and renovations of existing buildings that require building approvals. Existing buildings that are not being renovated will continue to be subject to the DDA and also to state based discrimination legislation. Likewise, buildings that have classifications outside of the scope of the standards will continue to be subject to these laws. The standards do not cover all aspects of accessibility, such as wayfinding and emergency issues. In this way the standards will have an important but necessarily limited effect on access to premises.

We note in our submission that one of the omissions of the current version of the standards includes the common areas of class 2 buildings, which are generally residential apartment blocks. Until accommodation issues around accessibility are resolved, we are looking at only part—even though it may be a significant part—of the problem, and we want to state that point quite clearly. The draft standards represent a rare and timely opportunity to facilities substantive equality outcomes—rare because there are very few opportunities to tackle widespread systemic discrimination with a single change, and timely because, as you are well aware, we currently have a federal stimulus funding earmarked for infrastructure in addition to a need to construct new buildings as a result of the Victorian bushfires. Our commission has in fact written to the Premier indicating that disability access should be at the forefront in any reconstruction that occurs in Victoria.

As noted in our submission, the commission is not placed to provide commentary on technical matters, and to this end we want to put on the public record that we have greatly benefited from the assistance that our federal counterpart, the Australian Human Rights Commission, has given to us in helping us to understand some of the technical dimensions of the accessibility issue. Our submission indicates that we strongly support five-year reviews of these standards, to take into account technical solutions that may become available in the future.

We would also like to see the timeline for reviews set so that the review is completed in five years, rather than commenced in five years. In this way, best practice and innovation rather than minimum compliance can be encouraged in the sector. We support the transparent review of the standards. We would encourage the committee to consider the possibility of incorporating a data collection mechanism in the standards. In most of our work, one of the things that we are very keen to advocate is transparency in relation to achieving milestones, particularly where the object is to try to achieve equality in whatever form it may take. That is the conclusion of my formal statement. We will do our best to answer any questions that committee members may have.

CHAIR —First of all, I want to ask you about the class 2 buildings. We have had an enormous number of submissions and, indeed, witnesses before the inquiry that have put forward views about the omission of class 2 buildings from the draft standards—it being noted that they had been included in the 2004 draft. It is the commission’s view that class 2 buildings should be covered by the premises standards. I want to ask you about an aspect of that. I think it is fair to say that there is a controversy raised in some of the submissions about whether antidiscrimination law applies within class 2 buildings. Does the commission have a view on whether antidiscrimination law currently applies?

Dr Szoke —It is our view that it does. The way that our commission has approached matters where an individual complaint has been lodged is to basically look at them in the context of indirect discrimination. So where someone is not able to access accommodation because the barriers are presented in relation to physical accessibility, in a sense they are being presented with a requirement or a criterion that they are not able to meet.

There is a related issue that is of more immediate concern to us and that is that, in terms of what the commission receives as individual complaints, there are a very small number of matters that actually relate to accessibility in general, yet our research that we undertake under our research powers indicates that there are many barriers, particularly in relation to accessing accommodation by people with disabilities. Hence the concern about issues that are systemic and issues where people with a disability may not choose to lodge individual complaints because they have a primacy of having other life matters met; they cannot spend all of their time in that process. Perhaps Chelsey, as our legal expert in this area, would like to add something.

Ms Bell —I would like to add that in relation to antidiscrimination law in Victoria we actually have a specific part of our act that is a standalone provision that makes it unlawful for accommodation providers to refuse reasonable alterations to a property at the tenant’s expense. In that way we said that our act certainly covers those aspects of access to accommodation in relation to disability. We also note that the final report into the review, by Julian Gardner, of the Equal Opportunity Act, which is currently underway and being considered by the Victorian parliament, recommends an amendment of that section in our act so that it was clear that the act covers property governed by the rules of an owners corporation. I believe that there may be some Queensland case law about the applicability of antidiscrimination provisions in relation to owners corporations. We would certainly be looking at complaints of that nature.

Mr PERRETT —Further to that, do you say that you cannot pass the costs on to the tenants?

Ms Bell —Under our current act, the relevant section—section 51—states that the alterations are at the cost of the tenant.

Mr PERRETT —Of the tenant?

Ms Bell —Yes. So it would be unlawful to unreasonably refuse those reasonable alterations that were to be paid for by a tenant. I can provide the committee with a copy of it.

Mr PERRETT —No, I misheard what you said, that is all. In terms of universal design principles for class 1 buildings, we heard earlier from Mr Fox about the UK experience. Does either of you have any thoughts on that and on what is world’s best practice on class 1 and class 2?

Dr Szoke —This is where we have very much deferred to a much greater expertise at the federal level and the Australian Human Rights Commission. What our submission has covered really is the recognition that this was a segment of the built environment that was included in the 2004 standards but is not included at the moment and we think that there are still some equity issues in terms of people with disabilities being able to access those class 1 buildings. Chelsey may wish to comment on that. But in terms of where there is world’s best practice, we cannot help in that regard.

Mr PERRETT —You have had no individual cases in terms of class 1 buildings?

Dr Szoke —We always find it very difficult to answer questions about individual matters that come before the commission because of the secrecy provisions, but I would reiterate that the way that we use our complaints data is to demonstrate the gaps in complaints. We have had other issues which are to do with class 1 building but we do not think complaints are the best indication of where inequity or inaccessibility is evidenced or experienced by people with disability.

Mr PERRETT —I take that on board, but when your annual report looks at education, transport, buildings, do you break down the groupings in terms of building access?

Dr Szoke —No. The annual report will identify the six areas which our legislation covers and the now 19 attributes and does not break down the built environment into those categories.

Mr PERRETT —So it is just buildings. You do not know whether it is a playground or what it is.

Dr Szoke —No. Having said that, I imagine that we could look at our data but I suspect that the numbers are small. We can undertake to take that question on notice and if we can provide additional information that we think would be helpful to the committee we will do so.

CHAIR —It would be helpful if you could do that.

Mr ANDREWS —Apart from the visual alarms for emergency egress, are there other technical solutions that have been identified?

CHAIR —If I can focus in on that, Mr Andrews’s question relates to page 5 of your written submission. You are advancing the proposition that the present form of the draft premises standard in relation to emergency egress really dates back to a time, 2004, when there had not been as much work done on technical solutions for emergency egress as has now occurred. Your proposition is that it is no longer appropriate for these premises standards to be expressed at the level of generality that they are. Mr Andrews is helpfully saying, ‘What else is there apart from visual alarms for emergency egress, which is the example that you give, of technical solutions which have been found?’

Dr Szoke —The only one we have identified has been the visual alarms. I do not think we can add anything further to that. I am afraid that you will find that we really do not have the kind of technical background that perhaps you are looking for.

CHAIR —That is understood. We accept the position that the commission is in a sense coming from as an agency that enforces legislation and you are not a technical agency. We have got a whole range, as you might imagine, of very technical submissions that have been made.

Mr ANDREWS —You make reference to the class 2 buildings—

Mr PERRETT —It is for all class 2 buildings, isn’t it?

Ms Bell —I think our recommendations are relating to the common areas but we thought it important to highlight the whole area of class 2 buildings as residential buildings as well, in this context.

Mr ANDREWS —You make reference to other jurisdictions which can use local planning powers to promote accessible class 2 accommodation. Are you able to say which jurisdictions do that and do you have any view about the desirability of that approach? Is it, for example, more flexible and could look at a variety of circumstances that arise on a case-by-case basis?

Dr Szoke —In terms of the question of other jurisdictions, can we take that question on notice because I do know that information in my briefing here. In relation to the second question, from our view there is a balance between flexibility and transition, if you like, because the built environment does not turn around that quickly and having some certainty in terms of how the standards relate. In the absence of these standards being finalised, for example there have been a number of municipalities in Melbourne that have tried to look at getting local laws that will allow a higher threshold in relation to accessibility. That has been difficult in terms of the different legislative responsibilities of local, state and federal government and so it has not been able to be resolved. That was seen very much as a stopgap measure, I think. Our preference would be that the standards were clear enough and aspirational enough to achieve the sort of accessibility that we have identified very broadly as being one that is equitable in the longer term.

The flip side of that is that we are very keen that the standards progress subject to five-year reviews and not get held up by trying to dot all the i’s and cross the t’s. At least if we get this set of standards out and there is the opportunity for a five-year review and that is very much built in the terms of what we have mentioned, that generates, we believe, the kind of start of the aspirational aspects that are important for people with a disability.

Mr SLIPPER —Have you had any concerns expressed to you in relation to heritage buildings and the need to improve standards with respect to them but at the same time some owners saying that to update standards in accordance with what is required today will destroy the heritage nature of the particular building?

Dr Szoke —Yes, we have, and in fact on occasions we have had at least the exchange of correspondence with the Heritage Council in relation to these issues. One of the heritage buildings where we have had not formal complaints but specific concern expressed has in fact been our own parliament house, where accessibility has to be gained by the back entrance.

CHAIR —This building was presented to us by the people that run it as being a good building. Speaking for ourselves, we think it could have been a great deal better.

Mr PERRETT —There seems to be a ramp going nowhere.

CHAIR —There is a ramp that goes to a set of steps at the front, an apparently noncompliant ramp on the side, and coming off Russell Street we have got a little lift.

Dr Szoke —That is right, and the lift is in the courtyard here. I do not comment about this building—

An audience member—We agree.

Dr Szoke —but the answer is yes.

Mr SLIPPER —With respect to the state parliament house here, with the stairs the entrance is almost inaccessible even to able-bodied people!

Dr Szoke —They are grand. But we have not undertaken any issue in a formal sense, in a systemic sense, which is really by virtue of our capacity more than our desire; we just do not have the resources. But we have, as I said, had those interchanges with the Heritage Council at various times. Our view is that there are plenty of cities that have buildings that are much older than ours that have achieved a much greater level of accessibility. The one that springs to mind for me is London, where there are buildings which are much older than our heritage buildings and they have been made accessible in a dignified way without taking too much away from the actual physical appearance of heritage buildings.

Mr SLIPPER —But you can see both sides of that question, can’t you?

Dr Szoke —Yes. A lesser problem is that we have the same debate with the department of transport around heritage trams. The preservation of history is fine but I think it can be overridden and, if you like, tastefully overridden by trying to address accessibility issues in a dignified way.

Mr SLIPPER —There could be some heritage buildings too which are used as residential properties, which I imagine is an area you would take particular interest in.

Dr Szoke —They would have similar constraints. I think the private accommodation of that significance in terms of heritage area is more likely to be in affluent suburbs where maybe owners can make other alterations and can afford to. I guess that is the other aspect of accessibility, the affordability of making those changes in private residences. I think at a minimum in terms of our public buildings there still remains an issue in this city and probably in some of the facilities in regional Victoria as well. Having said that, I do not want to take away from the attempts that have been made at various times, for example within our state parliament, to improve accessibility. But the reality is that it is still through the backdoor through a very heavy wrought iron gate.

Mr SLIPPER —How would you improve accessibility to the Victorian parliament house from the front? It would be almost impossible, wouldn’t it?

Dr Szoke —It would be very challenging. I do not know whether you have gone in through the accessible entrance at the back of Parliament House. It is worth at least doing that walk. Even that could be improved in terms of signs, visibility and the accessibility from the street entrance, while being mindful of all the security considerations.

Mr SLIPPER —Thank you.

Dr Szoke —I am not suggesting we build a ramp up Spring Street, but I think it could be improved, even in its current form.

Mr SLIPPER —At least you could sit on it.

Dr Szoke —Maybe. I think you would have noticed that even the lift in the square at the back here is not always reliable.

Mr SLIPPER —I saw someone in a wheelchair today in that lift. That lift is extraordinarily difficult to negotiate for someone in a wheelchair.

Mr ANDREWS —It has a constant-pressure button which, in itself, is problematic.

Dr Szoke —That is okay if you can apply constant pressure.

Mr PERRETT —I was just going to take Mr Slipper’s question further in terms of the onus being on building owners, in a heritage sense especially. Obviously when the onus is on you—as in London or the United Kingdom—to get it right and make it universally accessible then it does happen. Could I suggest that if there is a complaint based approach to it then the attitude is, ‘Well, we’ll just keep going until we get the complaint and then we’ll see what we can do as an absolute minimum.’ Would those be the different ways of thinking? The UK model is, ‘Let’s get it right for everyone,’ versus ‘Let’s keep going til someone makes an issue of it.’

Dr Szoke —Our commission is pretty much on the record as saying that we have had 30 years of laws protecting people against discrimination in Victoria, and those laws have relied on individual complaints but we still have discrimination in many areas of life, and against many attributes. It was really our initiative which called on the attorney to make a review of our own legislation so that we could address things in a more systemic way. The built environment is a heavy, immovable beast and—as Mr Dreyfus has reminded me—when a relatively modern facility such as this facility behind us still has not got accessibility right it is pretty extraordinary. I think this building is eight years old, or something like that. Some of those ramps might lead to nowhere because, if you remember, this building set in an empty building site for a long time with just a car park around it. I do not know; I am not making excuses. We think there probably needs to be a little bit more stick. That is really what we have talked about in terms of aspiring to certainty of what is required.

The other thing is that anecdotally, through my discussions with big builders in particular and people involved in the building industry, I have found that they are very compliance oriented. So they will say, ‘We do lots of things now to make buildings accessible. We have this and we have that. We have the accessible toilet on the ground floor.’ In the current kind of economic environment we need to be pushing people to be much more proactive about enabling people to access the built environment.

Mr PERRETT —You talked about the stick. I was wondering if there was a carrot as well. We have heard some argument about the possible economic benefits. Are there Heart Foundation equivalents for buildings that are attractive in the market place? Has that occurred around the world?

Dr Szoke —The example that we keep looking to is the environmental movement, which seems to have captured people’s hearts and minds much more quickly than the human rights framework. The star rating of buildings seems to have worked quite well. That is a very interesting suggestion of yours that there might be some sort of star rating in terms of accessibility. I am sure there are, in some of the bigger constructions. I guess what worries us, particularly in terms of the class 2 buildings, is that there is an issue of new developments, but it is really that transition of existing building stock and the incentives to push that along to get accessibility.

Mr PERRETT —It could be like the Heart Foundation tick but with the sign of a wheelchair. But that would be a misnomer. It would not tell you about strollers, the two-year old or an infirm person with a walking frame. We do not have that right, do we?

Dr Szoke —No.

Mr PERRETT —I am not familiar with the Victorian legislation, but the Queensland antidiscrimination legislation, though obviously complaints based, is more educative and tries to guide people to where they should be rather than just responding.

Dr Szoke —We would describe ours as that as well. Just to give you some context, our commission has a number of functions and certainly part of those inquiries are individual complaints. Probably about 40 per cent of our resources would go to that. But we have an education function and we have a systemic function as well through our research powers currently and we are hoping that they will be enhanced in the future.

CHAIR —In the very last section of your submission you talk about the implications of the Victorian human rights framework, the Victorian Charter of Human Rights and Responsibilities, the Subordinate Legislation Act and the Scrutiny of Acts and Regulations Committee, and make the point, helpfully, that these draft premises standards will operate as an amendment to the Building Code of Australia for the purposes of the Victorian legislative framework. Victoria and the Australian Capital Territory are the only jurisdictions which have formal general human rights protections of this nature. I am interested to get a description from you of how the Victorian charter, and I suppose you would have to add in the Subordinate Legislation Act provisions as well, is going to interact with the implementation of the draft premises standards in Victoria, and I think probably by extrapolation we could say the Australian Capital Territory as well.

Dr Szoke —Just for the record, it is worth restating how the charter of human rights operates in the context of its interaction with other state laws and the requirements it places on public authorities. As with the ACT model, the charter of human rights in Victoria is described as a dialogue model and that dialogue occurs from the time a bill is presented to parliament where there are statements of compatibility that are developed through to policy and service delivery, and the positive duty that is placed on public authorities to comply with the charter. Public authorities would include, as we have stated in our submission, the Building Commission and local councils, and they are required to proactively take into account not just the equality right but the other rights that are contained in the charter. Some of those are around freedom, respect and dignity and so on.

In terms of how it interplays with the DDA, I will flick to Chelsey in relation to the specifics of the legalities. While she is collecting her thoughts, we have talked about the fact that the charter does not have an individual remedy provision beyond an administrative complaint through the Ombudsman’s provisions or where there is an existing matter afoot and the rights could be joined to that matter. So if there is an existing matter that is afoot in a court or a tribunal, some of the charter rights might also be brought into play there. Your specific question was the interaction with the DDA?

CHAIR —Yes. I understand the preparatory requirements of the charter. Let us say that the access to premises standards come into effect, can someone challenge them under the Victorian charter?

Dr Szoke —They cannot challenge them as a stand-alone challenge. I do not think they can—can they, Chelsey?

Ms Bell —What the charter basically means for the legislative process in Victoria is that the department and the minister, in putting those changes to the regulations forward, would need to make public comments about its compatibility with the Charter of Human Rights and Responsibilities, and there may be some opportunity for members of the public to comment or for the Scrutiny of Acts and Regulations Committee to look at any compatibility issues. There is no way of striking out a law under the charter. If a claim that the DDA provisions were incompatible with the charter did come up in the Supreme Court—

CHAIR —Sorry—the access to premises standards?

Ms Bell —Yes, sorry; the access to premises standards—then I am not entirely sure what would happen, but the Supreme Court does have the ability to make a declaration of incompatibility.

Dr Szoke —That would be about our state laws, though, rather than the standards.

CHAIR —The point you are making in the submission is that the standards are part of state law once they come into effect.

Dr Szoke —Right. Can we take it on notice?

CHAIR —If you would.

Dr Szoke —It would be very interesting.

CHAIR —We would be very pleased to hear back from you about this, because Victoria is the only state which, thus far, has a charter of human rights and responsibilities, and we would be interested to have comment from you—as, in a sense, the lead agency in the state—about this.

Mr SLIPPER —Has the Supreme Court ever taken the course of action you suggested it might?

Ms Bell —No, it has not, and it would have to be quite an unusual situation, you would imagine. Basically, the charter allows for human rights to be limited. The rights in the charter are not absolute. It is just that any limitation on rights needs to be reasonable, justified and proportionate. So those are the kinds of things that are usually considered in parliament’s statement of compatibility.

Dr Szoke —I am just grappling with the question now in terms of what the flow-on effects would be. I think that Chelsey is right: if the Supreme Court actually issued a declaration of inconsistency, that would be a pretty big statement. But then what the implications are, in terms of federal standards and so on, I am not sure. So we will take that on notice.

Mr SLIPPER —Fun for lawyers!

Dr Szoke —Maybe.

Mr PERRETT —Dr Szoke, you said you had a lot of interaction with developers and people who put up buildings. Without going into specific cases, can you give me some good examples of where you have had joy in terms of sorting out some access issues early, or has the horse bolted by the time you hear about it, almost?

Dr Szoke —Certainly in the context of matters that do come to us as individual matters, we have an early resolution process that we try to engage in, and we have tried to get some local resolutions. I can think of some specific matters where there has been a class of problem, if you like, but I do not think we have had much success in that regard. They have been matters like suburban offices in older parts of inner-city Melbourne where the issue of the step up into offices has been problematic and where we have been dealing with—

Mr PERRETT —Like a redevelopment, then?

Dr Szoke —No, just dealing with landlords who would lease their premises for public purposes, and whose response would be, ‘We’ve met the standards that have been imposed by the city council; we don’t need to do more than that.’ I cannot think of any good examples that we have been able to achieve. However, I would also like to take that on notice and just recheck with the people who are more engaged in those discussions.

Mr PERRETT —It is easy to see the bad examples—those where it ends up in court documents.

CHAIR —Thank you very much for the evidence that you have given here, for your attendance and, indeed, for the written submission. The secretariat will send you a copy of the transcript with any corrections that need to be made, and we would be grateful if you could contact the secretariat about that. You have taken a few questions on notice and we would be very happy to have the answers from you as quickly as possible. Thank you very much for coming.

Dr Szoke —Thanks for the opportunity to present to you.

[1.30 pm]