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

CHAIR —Thanks for coming, Mr Belardo. 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 could be regarded as a contempt of the parliament. You have provided us with a helpful written submission. Before we proceed to some questions, would you like to make a brief introductory statement?

Mr Belardo —Yes, thank you. We would like to thank the committee for conducting this inquiry and also for allowing us to be present today and to articulate our written submission. I will say something about the organisation that I come from. As you would know from our submission, we are a community legal centre. We specialise in disability discrimination. We are a small organisation with a large catchment area, because we are quite statewide. We have four employees. I am the only one working full time. I have a co-solicitor who works two days a week. We have a manager who works two days a week and an admin person who works three days a week. I thought I would picture that to give you an indication of the resources that we have.

The submission that we provided is largely based on our casework experience. We do not have the expertise to deal with engineering or architectural matters. We have a great deal of background in disability advocacy. You would note that our submission has a strong disability perspective. I think that we have probably made a concise submission. It is probably not as lengthy and detailed as the others. We thought that we would focus on the issue of unjustifiable hardship and the notion of which buildings should be subject to the standards in relation to how these buildings are used by members of the public or those who would have permission to be in the buildings, like a guest or an employee.

The casework that we have is quite diverse. The bulk of our casework relates to employment, education and the provision of goods and services. But, just the same, access to physical premises is also a substantial part of that casework. Our experience in relation to education and employment and cases involving the provision of goods and services is that they also hinge on access to premises. For example, with education, access to premises would be an issue probably 80 per cent of the time. The same thing is true for the provision of goods and services. We strongly support alternative dispute resolution, such that about seven out of 10 of our cases are actually solved at mediation or conciliation, but we do have a great interest in bringing matters to a litigious stage if the merits of the case and the exercise will benefit the public interest. Thank you.

CHAIR —Thanks very much. Just to pick up that last point you made, I imagine that a small service like yours could not possibly afford to litigate every single complaint, which is why you favour alternative dispute resolution.

Mr Belardo —That is right. It is also an approach that we prefer not just because of resources but because we believe it is a better way of dealing with things. But we do take that on, on a case-by-case basis. I listened to the discussions here earlier about the charter. We do have cases before the Supreme Court in relation to the charter and we do have cases in relation to education standards.

CHAIR —Your submission is pretty detailed and it goes to a number of specific matters about the draft standards but does not offer any general comments, so I would like to start with that. Overall, does your service support the notion that underlies these standards, which is that it is better to provide certainty to people building new buildings than leave them subject to a complaint based regime?

Mr Belardo —Yes, we do. You will note in the first paragraph of our submission that we do support any incentive or innovation in terms of providing certainty in relation to disability access. I suppose that our submission, for purposes of privacy, as I said, focused—

CHAIR —No, it was not a criticism, Mr Belardo. I am just trying to pin down that you do support the notion that underlies the standards and their introduction, even though you have some suggestions and criticisms.

Mr Belardo —Yes, because we strongly believe that, similarly to the transport issue, this is something that policy on law reform would be able to address, rather than leaving it to a complaint based approach.

CHAIR —Turning to one of your major concerns—the one set out on page 3—you have suggested some criticisms of the unjustifiable hardship concept and the way it is presently expressed. Are you able to offer us what you think should be the test or the criteria for use as to what constitutes unjustifiable hardship?

Mr Belardo —I think the list provided by the draft standards is good. I think it is a good starting point. You would note that under the disabilities convention we have no such list and we just follow what the courts have laid down in terms of what may constitute unjustified hardship in every case. I think the list is quite good, but I just thought that because unjustifiable hardship is really legislated discrimination, it is an exemption, it is a defence, and therefore it must pass a very rigid test. So I have outlined those points which I thought are really matters that should not be included there because they are a strong departure from the notion of providing access.

CHAIR —So, to paraphrase: you have provided detailed and reasoned criticism of some of the factors, and your submission is not that there ought to be a completely different definition of unjustifiable hardship but, rather, that some of the factors that are listed to be taken into account are inappropriate or should be slightly differently worded so as to make the exemption more limited and clearer.

Mr Belardo —That is correct. I think that even if the draft premises standards do not mention unjustified hardship, that is built in there. That is just the reality, that that is a defence that is always there.

Mr PERRETT —I must admit I am more familiar with Queensland cases or, more specifically, with education unjustifiable hardship cases. But if I could paraphrase the development of discrimination law over the last 10 or 20 years, the presumption at the start was, ‘It’s not my problem how someone in a wheelchair gets into my building; that’s up to them,’ and the presumption today would almost be universal accessibility. We are not quite at that stage yet, but I wonder if you would agree with that continuum.

There have been some trigger cases along the way. Certainly the planners—with all respect to architects—made decisions, such as at the Sydney Opera House, where the aesthetics outweighed the accessibility, but now the two would be combined. The trigger cases included the Hills Grammar case involving the girl in the wheelchair and the Cocks case, with the convention centre in Brisbane. You needed people like that to challenge the views. In terms of making unjustifiable hardship a straight percentage—I am not sure how you would come up with what it is—I thought you would have to go case by case to look at what unjustifiable hardship is. Obviously those people had legal advice, probably bad legal advice, as it turns out, about what made school premises accessible or what made a convention centre accessible. I would suggest that you do have to go case by case.

Mr Belardo —I think that is true. That is bound to happen even in the future. I suppose there is a beautiful thing about having a list, as the draft access to premises standard has. I would like to put it in a simple way. You would have a tick box so that, from my perspective, if a client approached me asking, ‘Do I have a case in relation to this?’ we would have at least some very concrete points that we could somehow test for a particular premises. I suppose it makes it easier for us to provide someone with advice about whether there is really a case of unjustifiable hardship: is there something that we could look at objectively at this point in time, or do we have to go through a litigious process to test that?

Mr PERRETT —I am a dad with two young kids. I do not take them to court when I cannot go in with my pram; I just do not go in there. But obviously that is not going to change the world, is it? We have had people like Kevin Cocks say: ‘Well, that’s not right. We need to do something here.’ You have brave parents or parents who have had the time and energy to challenge something. This is not really a question, but, in terms of having a complaint based evolution through to a tick box, I am not sure what the best way to go is.

Mr Belardo —I think that the combination is to have this and still go through the complaint process. Our experience is that a lot of people know what they need to do to comply with existing regulations, but for some reason they just do not do it. It might be for economic reasons or budgetary constraints, or it might be because of miseducation or a particular attitude. I think we will have to wait for a very, very long time for the time to come when we do not have this complaint process that somehow is the venue to test things. Whether it is education, premises standards or transport standards, it is just like a coin: each side has to be tested for its merit.

Mr ANDREWS —Mr Belardo, in your ‘Summary of submissions’, in paragraph 2, you say:

… the Premises Standards should impose the same compliance requirements in the maintenance and management of subject buildings.

Can you expand upon that for me as to what you specifically have in mind?

Mr Belardo —My understanding is that you have a building permit applicant and we then set out the criteria via the standards and, if that is approved, well and good. It is just that, over the lifetime of a building, even probably give or take two, three or five years—whether it is by reason of wear and tear or minor modifications that, over time, accumulate to some sort of substantial changes in a part of the building—if you are solely focused on the time at which the building permit is issued, without a corresponding check to see whether subsequent issues would be addressed, then you could have a problem. As I would imagine it, if I had a client saying, ‘I would like to challenge the access issue in relation to this building,’ and I look at the initial stages, but the problem actually arises after the building is erected, then we would have a problem. We would then go back to the older approach, which is to go through the Disability Discrimination Act, which does not have the innovations that the standards have made.

Mr ANDREWS —I understand that as a general proposition, but are you proposing that there be some trigger mechanism that a building owner would understand or contemplate from time to time that would say to that person or corporation, ‘Therefore we need to do X or Y’?

Mr Belardo —Yes, that is something that I would look forward to.

Mr ANDREWS —Then my next question is: do you have any suggestions or proposals for what that trigger mechanism or mechanisms should be?

Mr Belardo —I have to be honest with you: I would not know about the logistics of carrying out these things. But an audit would be an ideal mechanism.

Mr ANDREWS —So are you suggesting that a building owner should undertake a disability access audit periodically?

Mr Belardo —That is, I suppose, an effective measure. We do have that in relation to other requirements—for example, in terms of occupational health and safety, and in terms of compliance with health requirements for those serving food in a particular establishment. They tend to have to renew their permission or authority to conduct their particular business. So I suppose that, if a certain premises is licensed to provide rental accommodation or to provide a particular service, then there must be a way to do that. If this permit is renewed annually or semi-annually or whatever, you could, for instance, have a tick box: ‘Have you actually complied? Is this still outstanding?’ Is there a way that we could bring that particular premises back under the microscope to be checked on compliance issues?

Mr ANDREWS —Would that have to be on a case-by-case basis?

Mr Belardo —It is hard to say whether it could be on a case-by-case basis because then we would negate the universality of that requirement.

Mr ANDREWS —Let me put a case to you. You could have two buildings which contain—let us leave residential uses aside for the moment—business office accommodation. One might be a building which people from time to time need physical access to. One could be an office that operates an internet business at which is not expected that, generally, anybody other than the proprietor would attend. That would suggest to me that maybe—if one were to go down this track—a case-by-case approach would be desirable.

Mr Belardo —Yes, I can understand the examples you have given. It is just that it is difficult for me to say that we should do it case by case because, even if one building is more frequently attended than the other, the common dilemma is that those buildings are subject to public access. If what is happening there is being done as part of a commercial enterprise, then there must be a way whereby, in the same way that we pay taxes every year and we renew business permits every so often, we could have a space there in which we could say, ‘What about a section for disability access?’

For example, if there is some regulation about internet access and how it relates to law enforcement or commercial enterprise, then there must be a process to say that the building has done seven out of 10 and one of those 10 items must at least relate to disability access. I do not see the difficulty of them saying that it was already done. As a matter of practice it is actually being implemented for every building rather than on a case-by-case basis.

Mr ANDREWS —Thank you.

Mr SLIPPER —I would like to refer to the issue of heritage buildings. You mention that claims are often made with respect to changes to give access to disabled people that would destroy the heritage character of the building. You say that these are often overstated or maybe just inaccurate. Could you elaborate on that and tell us how you think this is the case, and also, given the design of some of these buildings, how on earth can you actually make the changes that should be made and yet preserve the nature of the building?

Mr Belardo —We have a very strong view in relation to disability access and heritage value. As you would note in our submission we say that the notion that heritage value would supersede disability access is really a vicious myth and we strongly negate that. Philosophically we just do not understand why heritage value or why a building subject to heritage classification would not be accessible to a person who is entitled to access that building. We do have a lot of experience in terms of buildings that have bleated that defence. Luckily it has been negotiated in a more amicable way. In today’s age when we are trying to send people to Mars, we just do not believe that there is no way that a building with proper design and, I suppose, imagination that a certain way could be devised to provide suitable disability access.

Mr SLIPPER —Don’t you think in some cases the decision that has to be made by the community is either to preserve a heritage building in its mint condition or convert that heritage building into one which has modern day notions of access and in doing so it stops being a heritage building in a mint condition?

Mr Belardo —I do not see that happening, sir, with due respect. I just do not see the inconsistency. How can a building lose its heritage character simply because access is provided? If the community decides that a building should not be classified under heritage listing, then that classification is for everyone probably more for people with disabilities. In our submission we deferred to veterans of local and overseas conflicts. If we have returning veterans, who have been disabled because of their service to the country, who find a building that they cannot have access to, then that probably is, as we say, a highly insulting thing to do.

Mr SLIPPER —I can see both sides of the debate. I have a lot of sympathy with what you are saying, but on the other hand I can also understand how someone might want to preserve a building in its original state.

Mr Belardo —We have no problem, sir, with buildings being heritage listed or preserving their  character. We just do not see why it is always said that the building will lose its heritage character. I have not seen a building that has lost its heritage character. Most of the museums that we have are old buildings, and I suppose that revenue is generated by people going there. They have ramps, they have lifts and they have audiovisual signs that cater to people who have a hearing impairment. When you say that there are two sides to the argument, we really think that there is no argument at all, that these buildings are for everyone.

Mr SLIPPER —These were not exactly your words but the gist of what you said before was that there have been people who take that particular position but, happily, they have been prepared to negotiate. Have there been some cases where you have been unsuccessful in getting the sort of access that you wanted put in?

Mr Belardo —Yes. I will give you an example just to illustrate my point. A provider is conducting services in a building where the provision of lift access will really impose a significant cost, so much so that the respondent to that claim says, ‘You cannot come here; we’ll come to you.’ In that sense the complaint is resolved in a way, because the idea is to make the services accessible to our client. Obviously there are different ways of doing things, so ‘if you cannot come to us we will come to you’ can resolve that. As a legal practitioner I would be negligent if I did not consider that to be something that the court would consider. If the idea is to provide access then providing physical access is probably the best practice, but, given the economic realities that we have, if it is a small business and if there are difficulties which when translated into a dollar figure would be quite significant, our client would say, ‘I’m not prepared to take that risk, so what we should do is take this different way of providing services rather than my actually going there.’

Mr PERRETT —Mr Belardo, just expanding on that, have you had other positive outcomes that did not involve people taking their services to your client and where, through your client’s actions, the DDLS has facilitated some positive changes?

Mr Belardo —In relation to heritage buildings?

Mr PERRETT —Not specifically in heritage buildings, but I assume that is where it is more problematic.

Mr Belardo —Yes.

Mr PERRETT —I mean where there has been a win-win situation, some good news.

Mr Belardo —For example, we had a situation in relation to access issues for a cluster of units whereby a certain section of the common area was a problem issue. We had significant success in mediating an outcome. A lot of Australia Post premises are located in heritage buildings—some of them are corporate offices and some of them are franchised offices. Access to Australia Post premises is a significant issue. We are not saying that we have been very successful, because there are many Australia Post outlets which really require suitable access, but we have had some success in that regard, and we are continuing to advocate not only in relation to installation of suitable access but also in relation to the way in which merchandise is displayed. You find the way that many small stores arrange their merchandise really clutters whatever space is available for a person to move around in. We were successful in convincing a particular venue to use more convertible chairs so that there will be more flexibility in allowing a person who might require a wheelchair to be seated in a particular location.

Mr PERRETT —Thank you; that is exactly what I wanted to hear.

CHAIR —In the summary of your submission you made a comment that says:

Substantial access should not be a substitute to equal access or compliance with the Premises Standards. There should be sufficient guidelines to clarify the notion of substantial access, and it should only be a default position if compliance with the Premises Standards would impose unjustifiable hardship.

Are you able to expand on this difference between substantial access and equal access?

Mr Belardo —I suppose that part of the submission really comes from our disability advocacy perspective. I could perhaps answer that by giving an illustration. We have had cases where, instead of providing suitable access in the front of the building, you then find this access somewhere at the back of the building. In terms of the mechanical process of a person relying, for example, on mobility equipment negotiating the distance between the front section of the building and the back, that no doubt provides access to that building. We have heard that most building owners will say, ‘We are providing access; it is not the same, but substantially you could enter the building.’ We do not have a great quarrel with that. It is just that it really should be a default provision, so much so that they really have to first establish why they cannot provide equal access. We are not blind to the possibility that there might be genuine issues in accomplishing that, but it should be a default provision rather than something that they could just claim on that basis.

CHAIR —We have no further questions. Thank you for your detailed submission and also for coming before the committee here today.

Mr Belardo —Thank you very much. Before I go, I will quickly digress to mention to you that a couple of years ago we drafted a submission and wrote a letter to the office of the Treasurer in relation to a possible amendment to the taxation legislation. I remembered that because the gist of the submission was to allow a business operator to claim the cost of renovations immediately rather than having the cost depreciated.

CHAIR —That is an accelerated depreciation allowance proposition.

Mr Belardo —That is right. I just thought I would mention that.

CHAIR —It might be a little outside the scope of this inquiry but, if we think it appropriate, we will make a comment about it. Thank you.

[2.04 pm]