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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
03/04/2009
Disability (Access to Premises - Buildings) Standards [draft]

ACTING CHAIRMAN —Welcome. Although the committee does not require you to speak under oath you should understand that these hearings are formal proceedings of the Commonwealth parliament and that giving false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. There are three members of the committee present: Mr Perrett, the Labor member for Moreton; Mr Neumann, the Labor member for Blair; and me, Peter Slipper, the LNP member for Fisher, based on the Sunshine Coast. I invite you to make a brief introductory statement before we proceed to questions.

Ms Tomasich —I would like to thank the committee for giving me the opportunity to give evidence at this parliamentary inquiry. The Cairns Community Legal Centre Inc. is a not-for-profit community organisation which provides legal services for the benefit of socially and financially disadvantaged members of the community. The centre includes a generalist service, which is the core service of the centre; a disability discrimination legal service; and a seniors legal and support service. We were confident that the committee would receive sufficient submissions from individuals and organisations addressing whether particular provisions in the premises standards met access needs for people with disabilities.

The focus in our submission is to look at how the premises standards would be expected to operate in a legal framework to ensure that buildings in future would be compliant with the Disability Discrimination Act, the DDA. After all, we are the ones who would be using the legislation to assist clients who allege they have been discriminated against in access to premises. We consider it important that the premises standards, as subordinate legislation, are subject to the DDA and not the Building Code of Australia. Therefore, we recommended that the premises standards adopt the objects of the DDA.

Even though the premises standards will give certainty to the building and design industry we would expect industry to continue to refer to and rely on the BCA, secure in the knowledge that the compliance with the BCA will guarantee compliance with the DDA. The people who would use and rely on the premises standards document itself—those people who have been discriminated against and their advocates—need a document that is easy to navigate and understand.

Next, since the access code in the premises standards will update various provisions in the BCA, it is important to ensure that existing provisions in the BCA are not diminished by the premises standards. In our submission we have identified several instances where the changed provisions resulted in a reduced level of performance requirement and consequently a lower level of access. In looking at application of the premises standards we addressed inclusion of class 2 buildings and class 4 parts of buildings and where a significant change of use without change of classification of building occurs.

A further local example not included in our submissions is a complex of over 300 holiday apartments constructed in 13 buildings, all assessed as class 2, with five pools, one lap fool and one beach pool, none of which is required to be accessible under the premises standards. Most of the building have stairs at the main entrance and only two buildings include lifts, where they have four floors of residential units.

The exceptions and concessions part of the premises standard has generated serious concerns for us. We appreciate the reasons for the building industry wanting to have exceptions for unjustifiable hardship included. However, the BCA does not include such considerations currently in its application and we understand that this is not intended to change. In our submission we put forward a range of reasons why we consider that unjustifiable hardship provisions should be removed in their entirety.

Furthermore, the BCA has 75 performance requirements which various state building regulations require construction of buildings to comply with. Of those, only nine relate to access and egress, four to lift installation, and three to sanitary facilities. The building regulations require that all relevant performance requirements are complied with through either deemed-to-satisfy provisions or alternative solutions which are at least equivalent to those provisions. We questioned, therefore, how and why unjustifiable hardship should be a consideration for 16 requirements which were not previously exempted and not for others. We then looked at the provisions in the Access Code of the premises standard and compared them to existing provisions in the BCA and to other provisions in the Access Code itself. We identified several discrepancies which cause confusion or do not clearly achieve the stated objective for the change and others which resulted in diminished requirements and a lower level of access.

Since the driving force for the premises standard was the gap between access levels provided in the BCA and that required in the DDA, we looked at what mechanism could best ensure compliance with the revised BCA and therefore the DDA. We cannot see how a panel that only advises on questions which are not relevant to the BCA can work to ensure compliance with the DDA. As an alternative to the access panel for the administration of building access we put forward a proposal based on the Victorian Building Appeals Board, an independent statutory authority established under that state’s Building Act. We are of the opinion that compliance and modification functions of that building appeals board would serve to adequately ensure compliance with the DDA if its functions were expanded to include investigative, corrective and disciplinary functions. I am now happy to answer questions relating to our submission.

ACTING CHAIRMAN —Thank you very much. What proportion of the work of the Cairns Community Legal Centre would be in the area of this inquiry?

Ms Tomasich —I am the only solicitor in the centre who deals specifically with disability discrimination. I would estimate that approximately 25 per cent of my time would be devoted to access requirements.

ACTING CHAIRMAN —I noticed what you said in your submission in respect of heritage. I think you said that these values are already catered for and that alternative solutions do not need to be included in unjustifiable hardship. What do you mean by this statement and how does the centre see the relationship between alternative solutions and unjustifiable hardship?

Ms Tomasich —The way I understand that the BCA operates is that if, for whatever reason, the designers or building engineers cannot comply with the deemed-to-satisfy provisions, they can put forward an alternative building solution that will still have to meet the performance requirements. This is important in heritage buildings or others where they cannot, for whatever reason, comply with the deemed-to-satisfy provisions but still have to meet the basic requirements of the performance requirements. Under the BCA there is no component under which they can look at unjustifiable hardship. They might put that forward as one reason but it is not going to be the main reason for approving or rejecting a modification.

ACTING CHAIRMAN —The centre recommends that all nine existing performance requirements relating to access and egress and the BCA be included in the standards. What would be the benefit of including these performance requirements in the standards?

Ms Tomasich —By having them in the standards, if there is any complaint about, for example, circulation spaces—which would be covered under the existing performance requirement No. 2, which has been left out—that would covered under the premises standards and it would therefore be either a clear-cut compliance issue or not and they would not have to go through the current complaints process of lodging a complaint with the Australian Human Rights Commission and having to take it forward individually through the courts. Whatever compliance system you set up, whether it is the access panel or the Building Appeals Board as suggested, it would cover everything that is included for access for people with disabilities. It does not leave anything out.

ACTING CHAIRMAN —Before I invite my colleagues to address any matters to you, I have one last question. The centre recommends removing the lessee concession in paragraph 79. Do you accept that, where a lessee only occupies a small part of the building, there might be a significant cost involved for a lessee to provide an accessible path of travel?

Ms Tomasich —The way I understand it, it is not the responsibility of the lessee to provide the upgraded path of travel from the principal entrance; it is up to the building owner. The lessee is responsible for the building costs within their own tenancy.

Mr PERRETT —In your submission you said the standards:

… should also apply to any building or part of building which undergoes a significant change of use without a change of Classification.

Did you really mean any building, or did you mean class 2 buildings and above?

Ms Tomasich —I mean any building to which the premises standards apply. They would not apply to building classification 1.

Mr PERRETT —I want to take you to some of the bed and breakfast type buildings—class 1B. If you have four or more, you have to make one of them accessible. What are your thoughts on that?

Ms Tomasich —I have no real thoughts on that. I thought other people would address that. I have seen some submissions suggest that that should be reduced to one in three, but personally I have no particular opinion one way or the other.

Mr PERRETT —The example you gave of a holiday centre with 200 rooms—

Ms Tomasich —It was actually 300 apartments.

Mr PERRETT —Is it for holiday people? What sort of building is it?

Ms Tomasich —The one I spoke to in my introduction or in the submission?

Mr PERRETT —The one you spoke to in your introduction.

Ms Tomasich —In that example, there are over 300 apartments constructed in 13 separate buildings, therefore they are either permanent letting or holiday letting.

Mr PERRETT —So they are obviously not going for the disabled market.

Ms Tomasich —No, and most of the buildings are not accessible.

ACTING CHAIRMAN —What proportion of the clients do you think would be disabled and would need the benefit of some special provision?

Ms Tomasich —I do not have those figures on hand. I would have to take that on notice. I think, if you look at the Australian Bureau of Statistics, they would give you some sort of guide on what proportion of the population generally have access or mobility impairment.

ACTING CHAIRMAN —Can you maybe check that for us and get that information to the secretariat at some time, please?

Ms Tomasich —Yes, I will.

ACTING CHAIRMAN —Thank you very much.

Mr NEUMANN —Ms Tomasich, you have recommended that the idea of the access panels be done away with and you have recommended that in their stead we look at a different approach entirely. You are talking about the Building Appeals Board in Victoria as the prototype for what you are suggesting. Have you had a good look at the composition of that board? It does not include any experts in disability, except perhaps occupational therapists in certain circumstances. Would you recommend, if we adopt that approach, that there be experts in the area of disability?

Ms Tomasich —I think the access consultants, in paragraph 136.8, would serve that function.

Mr NEUMANN —They are the people you are recommending with expertise in disability?

Ms Tomasich —Yes, for disability access.

Mr NEUMANN —I apologise; I did not pick that up. Have you looked at decisions that have been made in the past by that Victorian board—the jurisprudence that has developed over the years?

Ms Tomasich —The PowerPoint presentation that was delivered at the conference that I mentioned gave case examples where applications for modifications had been submitted. One example was an assembly building that had previously been used as a warehouse. They wanted a permit so that access for people with disabilities would not be provided. The background to it was that the warehouse was supposed to be used as a place of worship, and access to the building would be via a doorway and then up a stairway consisting of eight rises. They said that to install a ramp would result in a ramp link of 20 metres and that it would require cutting through existing concrete floor slabs. The applicant argued that the building would be unviable and impractical and would result in unjustifiable hardship for the owner. In that particular instance the determination was refusal to give the approval because, as the building was an assembly, it would not be in the public interest to approve such a request.

Mr PERRETT —Maybe they thought faith healing was really going to take off.

Mr NEUMANN —How would the board be different from, say the access panels? How would it improve compliance with the standards over the access panels?

Ms Tomasich —The applications can be made to the board for compliance certification. So if there were any doubt in the planning stage as to whether something would comply with the BCA, they would put in an application and within four weeks get a determination. If they feel that they cannot comply with the deemed-to-satisfy provisions and they want to put in an alternative solution because they feel that that particular provision should not apply, they can apply for a modification. Again, this is during the planning stage. The board would then make a determination which is actually binding on the developer, on the designer. So they would have to actually have the plans drawn, and it would be compliant with the BCA, so there would be no problems later on with trying to rectify things. The access panel that is being put forward under this premises standards proposal would simply act as an advisory body to certifiers on whether unjustifiable hardship should be taken into account or whether or not a particular building solution should be approved. It has no enforcement procedures. It has no authority to actually enforce compliance with the BCA.

Mr NEUMANN —I presume that you would not support this suggestion of some people that the access panels be given jurisdiction to determine those issues and thereby fetter, say, the access to courts. We have had submissions from certain organisations that access panels be given that power to adjudicate and that the alternative remedy to court is therefore nullified. I presume you would not agree with that.

Ms Tomasich —There would not be any need to take it to the court if the Building Appeals Board had made a determination on whether or not it complies with the BCA.

Mr PERRETT —In your submission you make a number of observations about possible impacts resulting from the extension of access requirements as proposed by the standards compared with those in the building code. I take you specifically to the class 1b buildings and swimming pools. Your proposition in paragraph 149 is that that only constitutes a minor percentage of total building approvals. Where did that notion come from? Is that the Cairns experience or are you surmising generally?

Ms Tomasich —I did not rely on any figures, just general observations about the types of buildings that are being constructed in our area.

Mr PERRETT —Do you have any idea of what the cost might be like for this sector in particular in trying to comply? I do not know the costs of modifying swimming pools. I do not know whether you buy swimming pools off the shelf or whether they are designed generally, when you are talking of class 1b buildings.

ACTING CHAIRMAN —Would they fit on the shelf?

Ms Tomasich —I have no idea on the cost. The provisions would be for new applications for pools with a surrounding distance of 40 metres or more.

Mr PERRETT —I am not sure how big that pool is—not that big, I suppose.

Ms Tomasich —I do not think the small bed and breakfast places would be covered by the premises standards, simply because of the size of the pools they would have in that location. I have no figures to actually base that on; it was just a normal expectation.

Mr PERRETT —Thank you.

ACTING CHAIRMAN —As there are no further questions, Ms Tomasich, we would like to thank you very much for being a witness at the hearing today. The secretariat will send you a copy of the transcript for any corrections that need to be made. I would appreciate it if you would liaise with the secretariat in relation to the information you have undertaken to provide the committee. We would appreciate that information as soon as possible, but I understand that it could take some time to collate. We very much appreciate your joining us.

Ms Tomasich —Thank you for the opportunity.

[10.01 am]