11 July 2014

Submission on the draft report for the 2012 review of the Disability Standards for Accessible Public Transport 2002 

humanrightscommission.vic.gov.au

Introduction
The Victorian Equal Opportunity and Human Rights Commission (the Commission) welcomes the opportunity to make a submission on the Review of the Disability Standards for Accessible Public Transport 2002 – Draft Report (draft report). 
The Commission is a statutory body that has responsibilities under a number of laws which are relevant to the provision of public transport in Victoria, including the Equal Opportunity Act 2010 (Vic) (the EO Act) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). 
The Commission made a submission to the 2012 review of the Disability Standards for Accessible Public Transport (Transport Standards) on 14 June 2013 that was informed by an online survey to seek community feedback about accessibility to public transport in Victoria for people with disabilities. The Commission subsequently published a report that explored the results of the Commission’s online survey.
The Commission set out the relevance of the Charter and the EO Act in its earlier submission, including that: 
•	the Charter requires public authorities, which can include public transport operators, to act compatibly with human rights when they deliver public transport services; and 
•	the EO Act makes it unlawful for public transport operators to discriminate in the provision of public transport services and in relation to the access to, or use of, public premises (including vehicles). 
The Commission consulted with its Disability Reference Group (DRG) in preparing this submission. The DRG meets quarterly to discuss systemic discrimination and human rights issues that affect people with disabilities. 
The 2007 review and recommendations 
The recommendations of the 2012 review (the draft recommendations) will replace the recommendations of the 2007 review. While the Commission appreciates the importance of making recommendations that reflect current accessibility issues, the draft recommendations should not be less stringent than the 2007 recommendations. 
For example, despite continued calls for the Transport Standards to be amended to include dedicated school buses and community transport vehicles, the draft report fails to reflect recommendations 13 and 14 of the 2007 review (discussed below). 
Another example is that recommendation 7 of the 2007 review (that federal, state and territory governments provide funding for projects in regional and rural regions where local governments are unable to resource upgrades of public transport infrastructure) has not been retained. 
The Commission notes that since the 2007 review, the federal funding landscape has changed. In particular, one of the key initiatives of the Australian Government’s 2014-2015 budget is the creation of an $11.6 billion Infrastructure Growth Package. In light of the new federal infrastructure initiative, the Commission considers that recommendation 7 of the 2007 review should be retained to ensure that federal funding is directed towards improving public transport infrastructure for people with disabilities and the broader community. 
Commission recommendation 1: The 2012 review should retain recommendation 7 of the 2007 review that federal, state and territory governments provide funding for projects in regional and rural regions where local governments are unable to resource upgrades of public transport infrastructure.
Finally, the draft report notes that recommendation 2 of the 2007 review has been completed because the Australian Bureau of Statistics (ABS) included questions on public transport patronage in their disability surveys. The Commission considers that the ABS should be required to release the full findings from the 2012 Survey of Disability, Ageing and Carers, to inform the modernisation process. 
Commission recommendation 2: The 2012 review should recommend that the Australian Bureau of Statistics release the full findings from the 2012 Survey of Disability, Ageing and Carers to help inform the modernisation process.

The draft recommendations
Given that the vast majority of the recommendations of the 2007 review were not implemented, it is imperative that there is a clear and transparent process for implementing the final recommendations of the current review.
In this section, the Commission has provided comments on each draft recommendation of the 2012 review. 
Draft recommendation 1 – National reporting on compliance 
That the Australian Government, jointly with state and territory governments, establish a national framework for reporting on compliance by 30 June 2016. 
The Commission welcomes the draft recommendation to establish a national reporting framework, particularly in light of the Committee on the Rights of Persons with Disabilities’ recent recommendation that sufficient resources be allocated by governments to ensure future monitoring of the implementation of the Transport Standards.
However, to ensure that the reporting framework is effective and captures relevant information, the Australian Government should also be required to consult with people with disabilities and the disability sector in developing the framework. 
Commission recommendation 3: That draft recommendation 1 is amended to require the Australian Government to consult with people with disabilities and the disability sector in developing the national compliance reporting framework. 

Draft recommendation 2 – Modernise the Transport Standards 
That the Australian Government, jointly with state and territory governments, commence a process for updating and modernising the Transport Standards. This work should be undertaken in close consultation with local government, industry and the disability sector, and include research on the technical issues raised in this review, the development of options, and assessment of the impact of any proposed changes to the standards, with this work to be completed by 30 June 2016. 
The Commission welcomes the draft recommendation to modernise the Transport Standards. The Commission considers that modernising the Transport Standards is not only an opportunity to address the technical issues raised in the 2012 review, but to strengthen soft infrastructure in the Transport Standards including the provision of information to people with disabilities, disability awareness training, and communication access. 
For that reason, the Commission has reiterated its recommendations from its earlier submission about the provision of information for replacement services, education and training, and communication access. These recommendations are set out below. 
The Commission considers that the modernisation process is also an opportunity for the Australian Government to consider access to public transport for people with a diverse range of disabilities, not just physical and sensory disabilities (such as autism spectrum disorder and mental health disability). This should be reflected in draft recommendation 2 to ensure that the Transport Standards keep pace with current and emerging accessibility issues. 
Finally, the Commission considers that the Australian Government should be required to consult with federal, state and territory anti-discrimination bodies in modernising the Transport Standards. As the experts in equal opportunity law in specific jurisdictions, anti-discrimination bodies have an important role to play in helping to remove discrimination from public transport services for people with disabilities. 
Commission recommendation 4: That draft recommendation 2 is amended to ensure that as part of the modernisation process, the Australian Government: 
•	considers the needs of people with a diverse range of disabilities (not just physical disabilities); and 
•	consults with people with disabilities, the disability sector and federal, state and territory anti-discrimination bodies. 

Provision of information 
The Commission welcomes the focus on the provision of information to people with disabilities as part of the modernisation process given that there are a number of ongoing issues with the accessibility of information (including that information about public transport, whether prior to or during a journey, is often inconsistent, unreliable, inaccurate or not available at all). 
However, the Commission is concerned that the draft report does not address the issue that a lack of appropriate and accessible information about service disruptions and replacement services can create significant challenges for people with disabilities (for example, for people with autism spectrum disorder and intellectual disabilities).
Commission recommendation 5: That the 2012 review recommends that the Transport Standards specify that information about service disruptions and replacement services must be communicated in accessible formats. 

Education and training 
Staff attitude is recognised as one of the main barriers to non-discriminatory access for people with disabilities. Therefore, it is essential that the Australian Government takes steps to improve customer service and staff awareness about consumers with disabilities. 
The draft report notes concerns that public transport employees do not know when and how to assist passengers with disabilities. Given this, disability awareness training should address the reasonable adjustments that may need to be made for people with disabilities accessing public transport services, and explain how reasonable adjustments are compatible with workplace health and safety requirements. 
Commission recommendation 6: That the 2012 review includes an additional recommendation that Part 37 of the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) is included in the Transport Standards to emphasise the importance of effective customer service. The Transport Standards should also require compulsory disability awareness training and education for all public transport staff. 

Communication access 
In its submission to the 2012 review, the Commission recommended that Part 16 of the Transport Standards (Symbols) should include reference to Scope’s Communication Access Symbol. The Communication Access Symbol should be used to identify public transport premises, conveyances and infrastructure that are ‘communication accessible’. 
The Communication Access symbol is the newest access symbol in Australia. In 2009 the Communication Resource Centre led the development of a symbol to represent Communication Access. When people see this symbol, they know that the place or service is communication accessible. 
To display the symbol, services must meet specific criteria for communication access. To assess this, people with communication disabilities use a checklist to assess a business or service to determine if it meets the minimum standards to be awarded the Communication Access symbol. 
All communication accessible services and businesses are listed in a directory on Scope’s website. These include a number of local councils, the Victorian Electoral Commission reception and enrolment team, community health centres, several disability services, local business and retailers. 
V/Line is also seeking accreditation following a major consultation exercise and audit process. This indicates that gaining accreditation is possible for public transport operators, even in a very large organisation with a dispersed workforce. They have approached this in a staged manner, over two years, including an upcoming pilot in one region. As noted by V/Line:
The achievement of this symbol will be a significant move forward for V/Line. The process has identified gaps in our communications and has already improved information access for all of our customers. 
The culture of the organisation has shifted throughout the process with a new emphasis on understanding the various needs of our customers. Those who will most benefit are customers with communication disabilities, physical disabilities, difficulties reading, vision impairments and hearing impairments.
The Commission is disappointed that the draft report did not consider communication access or reflect that communication challenges can create a significant barrier to accessing public transport services. This is an issue that the Commission considers is integral to modernising the Transport Standards. 
The Commission considers that the Australian Government should be required to consider communication access as part of the modernisation process. 
Commission recommendation 7: That the 2012 review recommends that Part 16 of the Transport Standards (Symbols) includes reference to Scope’s Communication Access Symbol. The Communication Access Symbol should be used to identify public transport premises, conveyances and infrastructure that are ‘communication accessible’ (that is, that they meet Scope’s criteria and assessment for communication access). 

Draft recommendation 3 – The complaints process 
That the Australian Government considers the concerns raised about the complaints process. 
The Commission welcomes the recommendation for the Australian Government to consider the complaints process under the Transport Standards. However, in order to be effective and accountable, draft recommendation 3 should include clear implementation actions for the Australian Government, including the requirement to report on its findings in relation to the complaints process by a particular date. 
Enforcement of the Transport Standards
In its submission to the 2012 review, the Commission recommended that the federal Disability Discrimination Act 1992 (DDA) should be amended to make it clear that a breach of the Transport Standards provides a standalone mechanism for lodging a complaint of unlawful discrimination with the Australian Human Rights Commission.
Although section 32 of the DDA provides that it is ‘unlawful for a person to contravene a disability standard’, in Haraksin v Murrays Australia Ltd (No 2),  the Federal Court of Australia recently found that non-compliance with the Transport Standards does not of itself provide a sufficient basis for lodging a complaint of unlawful discrimination with the Australian Human Rights Commission because ‘non-compliance with the Transport Standards does not of itself constitute unlawful discrimination.’
Instead, the Federal Court explained that the significance of breaching the Transport Standards is twofold: 
•	Under section 34 of the DDA, if a person acts in accordance with the Transport Standards, the prohibition of disability discrimination (under Part 2 of the Act) does not apply to the person’s act. Therefore, if a respondent complies with Transport Standards, it will avoid liability for unlawful disability discrimination. 
•	A breach of the Transport Standards can have ‘evidentiary significance’ in a proceeding involving a complaint of unlawful discrimination (in that case, the respondent’s failure to comply with the Transport Standards made it “almost impossible” for the respondent to resist the applicant’s claim of unlawful discrimination).
The draft report acknowledged that a number of submissions called for the Australian Government to amend the DDA to reflect the Commission’s concerns. However, the draft report concluded that: 
Section 32 of the DDA makes it clear that ‘it is unlawful for a person to contravene a disability standard.’ When this section was initially introduced, the accompanying explanatory materials confirmed that the intention was to ensure that by making it unlawful for a person not to abide by a disability standard it would allow a person to lodge a complaint under the DDA. There is, therefore, no need for legislative amendment to make a breach of the Transport Standards unlawful.
The Commission reiterates its concerns that following the Federal Court’s decision in Haraksin v Murrays Australia Ltd (No 2), a person’s ability to make a standalone complaint of unlawful discrimination for a breach of the Transport Standards is not clear. The Commission considers that the DDA must be amended to clarify the point and ensure that people can confidently make a standalone complaint of unlawful discrimination for a breach of the Transport Standards, as this was clearly Parliament’s intention when it introduced the original provision.
Commission recommendation 8: That draft recommendation 3 is amended to:
•	include clear actions for the Australian Government to implement (including the requirement to report on its findings about the complaints process by a particular date). 
•	state that the Disability Discrimination Act 1992 is amended to clarify that a breach of the Transport Standards provides a standalone mechanism for lodging a complaint of unlawful discrimination with the Australian Human Rights Commission. 

Draft recommendation 4 – Whole-of-journey accessibility
That the Australian Government, jointly with state, territory and local governments, develop accessibility guidelines for a whole-of-journey approach to public transport planning by 31 December 2015.
The Commission welcomes the recommendation that the Australian Government develop accessibility guidelines for a whole-of-journey approach to public transport planning. In order to achieve meaningful access to public transport, there must be greater emphasis on improving whole-of-journey accessibility outcomes for passengers with disability, rather than piecemeal compliance with the Transport Standards. 
Incorporating the whole-of-journey accessibility guidelines into state and territory governments’ public transport action plans, accompanied by implementation plans, is one way of ensuring that these guidelines achieve real change. The Commission also considers that to achieve these outcomes, the whole-of journey accessibility guidelines should have the same status as the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) – that is, that passengers, operators and providers should be required to consult the accessibility guidelines when interpreting the Transport Standards.
Careful consideration will need to be given to how whole-of-journey accessibility will be defined, measured and reported. Consultation with people with disabilities, the disability sector and state and territory anti-discrimination bodies as well as state, territory and local governments, will be essential to this development.
Commission recommendation 9: That draft recommendation 4 specify that:
•	the Australian Government will consult people with disabilities, the disability sector and anti-discrimination bodies in the development of accessibility guidelines for a whole-of-journey approach to public transport planning
•	the accessibility guidelines are given the same status as the current Guidelines.

Draft recommendation 5 – National motorised mobility aid labelling scheme
That the Australian Government in collaboration with state and territory governments to develop and implement a national motorised mobility aid labelling scheme.
A national motorised mobility aid labelling scheme could assist passengers and providers by clarifying which mobility aids will be compatible on various modes of public transport. Ongoing consultation with people with disabilities and the disability sector is necessary, and will help identify issues such as people with disabilities requiring modifications to their mobility aids following purchase.
Commission recommendation 10: That draft recommendation 5 specify that the Australian Government should consult with people with disabilities and the disability sector in developing and implementing a national motorised mobility aid labelling scheme. 

Draft recommendation 6 – National wheelchair accessible taxi compliance milestones
That the Australian Government, jointly with industry, state and territory governments, develop consistent national compliance milestones and response times for wheelchair accessible taxis by 30 June 2016.
The Commission does not support reducing the 2007 compliance milestone of achieving the same response time for wheelchair accessible taxis (WATs) as for other taxis. A reduced milestone is not in keeping with the aim of the Transport Standards to enable public transport operators and providers to remove discrimination from public transport services. Although only the Australian Capital Territory has achieved equivalent wait times, other states and territories have made considerable progress due to efforts directed to meeting the milestone.
As noted in the draft report, people with disabilities continue to experience unacceptably long waiting times for WATs, or in some cases, non-attendance of WATs. In Victoria, this is despite an increase in the number of WAT licenses and existing contractual and legislative obligations that require WAT drivers to prioritise wheelchair jobs. 
Another significant issue in Victoria is the inability to effectively audit passive rejection and waiting times of wheelchair accessible jobs. The Commission has been working with the Victorian Taxi Services Commission to emphasise this issue and to highlight that the potential central booking service is an opportunity to build auditing capability. If the Victorian Government does not proceed with the central booking service, another mechanism will need to be developed.
The Commission is concerned by the draft report’s suggestion that the Australian Taxi Industry Association be tasked with developing the milestones for its own industry. However, the draft report’s acknowledgment of the need to work with the disability sector is welcome. The Commission is also concerned that the draft report proposes such a significant length of time to develop a new milestone, particularly given that improvements may stall while states and territories wait for clarification.
Commission recommendation 11: That the 2012 review maintain the 2007 milestone for response times for accessible taxis to be the same as for other taxis.

Draft recommendation 7 – Review of Disability Access Facilitation Plan 
That the Department of Infrastructure and Regional Development, in close consultation with the Aviation Access Forum, undertake a review of the Disability Access Facilitation Plan initiative by 30 June 2015, with the aim of improving the overall effectiveness and accessibility of the plans. 
The Commission welcomes the draft recommendation to undertake a review of the Disability Access Facilitation Plan Initiative. However, the Commission considers that the recommendation should make it clear that the review will be undertaken with appropriate consultation with the disability sector. 
Two wheelchair policy 
In its submission to the 2012 review, the Commission expressed concerns about public transport operators placing a cap on the number of passengers with disabilities (for example, the “two wheelchair policy” of some Australian domestic airlines). These concerns were echoed in a number of other submissions to the 2012 review and reflected in the draft report.  
The Commission considers that this is a serious issue that is relevant not only to domestic air travel but to all forms of public transport in Victoria. In particular, placing an unreasonable or arbitrary cap on the number of passengers with disabilities is unlawful discrimination. Further consultation with the DRG has highlighted the severe impact of this policy on those who travel to regional areas not serviced by many flights and any groups of people with disabilities who travel together.
The Department of Infrastructure and Regional Development is currently reviewing the two wheelchair policy. The Commission looks forward to the outcomes of this review and would welcome any positive developments.

Additional comments  
It is disappointing that the draft report acknowledges several significant issues without making recommendations to address them. In this section, the Commission provides comments on three clear gaps in the draft recommendations. 
Community transport
Community transport services for targeted groups of people are currently excluded from the Transport Standards. 
This means that community transport services do not have to be accessible unless they are providing services to the general public. However, many targeted community transport services are intended to provide transport for people with disabilities and older people. This exclusion also runs counter to the purpose of the Transport Standards to remove discrimination from public transport for people with disabilities. For those who live in areas not effectively serviced by public transport, community transport is often their only option.
The Australian Government’s response to the 2007 review supported the recommendation that the Transport Standards be amended to require new community transport vehicles with more than 12-seat capacity to comply with the Transport Standards commencing in 2017, with full compliance by 2032. The Commission would welcome this inclusion in the Transport Standards.
Instead, the draft report suggests that extensive data gathering, consultation and analysis with community transport operators and providers is required before this recommendation could be supported. If this is the case, the draft report should recommend that the Australian Government undertake this work as a priority. 
Commission recommendation 12: That the 2012 review recommend that new community transport vehicles must comply with the Transport Standards. At a minimum, the draft report should recommend that the Australian Government conduct the necessary data gathering, consultation and analysis to determine the impact of such a recommendation as a matter of urgency (within twelve months).

Dedicated school buses
Dedicated school bus services are currently excluded from the physical access requirements in the Transport Standards. 
This means that students with disabilities are excluded from excursions, cannot travel to and from school with their peers and frequently have to rely on expensive private or taxi transportation. This exclusion discriminates against students with disabilities and limits their ability to participate fully in education.
The draft report acknowledges that in rural areas, community and school buses are the only means of transport for people with disabilities, and are therefore an essential public transport service. 
The Australian Government’s response to the 2007 review supported the recommendation to phase in the application of dedicated school bus services to the physical access requirements in the Transport Standards. However, the draft report notes the recommendation is not complete due to the Accessible Public Transport Jurisdictional Committee concluding that the current approach to meeting the transport needs of school students with disability is adequate, and that unmet need has not been proved. 
The Commission’s own research into the experiences of students with disabilities in Victorian schools revealed a variety of transportation issues, including a need for accessible transport to excursions. More than one in four students with disabilities reported problems accessing and using transport. The submissions from the disability sector to the 2012 review are also evidence of unmet need.
If further evidence is required, the draft report should recommend that the Australian Government conduct this research as a matter of urgency. The onus to provide further evidence should not be placed on people with disabilities or the disability sector. 
Commission recommendation 13: That the 2012 review recommend dedicated school bus services be phased in to the physical access requirements in the Transport Standards. At a minimum, the draft report should recommend that the Australian Government conduct the necessary data gathering, consultation and analysis to determine the need for such a recommendation as a matter of urgency (within twelve months).
Accessible toilets and ‘Changing Places’
In its previous submission, the Commission described its concerns about the practice of locking accessible toilets at train stations in the Melbourne CBD and metropolitan area, and about the lack of Changing Places facilities in train stations. Without appropriate facilities, people with disabilities may have to be changed on a public toilet floor, go home when in need of a change, or have to sit in wet incontinence pads. This affects the accessibility of the whole journey.
Despite acknowledging these issues, the draft report does not recommend amending the Transport Standards.
Commission recommendation 14: That the 2012 review recommend that accessible toilets are provided with the same availability as standard toilets at public transport premises.
Commission recommendation 15: That the 2012 review recommend that Part 15 of the Transport Standards requires new public transport premises to include a Changing Place toilet to ensure that people who require accessible toilets have a safe and dignified place to change.

Correction – compliance codes 
The draft report notes that the Commission ‘opposes the legalisation of compliance codes.’ However, the Commission clarifies that it does not oppose the legalisation of co-regulatory compliance codes. Rather, as noted in its submission to the 2012 review, the Commission considers that a co-regulatory system is not a feasible option unless there is clear, effective and transparent consultation with state and territory governments, state and territory anti-discrimination bodies and the broader community to determine the scope of the power to make a compliance code. 
In particular, the Commission noted in its earlier submission that the Australian Human Rights Commission may not have the standalone expertise to certify a compliance code that covers the provision of public transport in all states and territories without engaging in appropriate and broad consultation. 

Commission’s recommendations 
Commission recommendation 1: The 2012 review should retain recommendation 7 of the 2007 review that federal, state and territory governments provide funding for projects in regional and rural regions where local governments are unable to resource upgrades of public transport infrastructure.
Commission recommendation 2: The 2012 review should recommend that the Australian Bureau of Statistics release the full findings from the 2012 Survey of Disability, Ageing and Carers to help inform the modernisation process.
Commission recommendation 3: That draft recommendation 1 is amended to require the Australian Government to consult with people with disabilities and the disability sector in developing the national compliance reporting framework. 
Commission recommendation 4: That draft recommendation 2 is amended to ensure that as part of the modernisation process, the Australian Government: 
•	considers the needs of people with a diverse range of disabilities (not just physical disabilities); and 
•	consults with people with disabilities, the disability sector and federal, state and territory anti-discrimination bodies. 
Commission recommendation 5: That the 2012 review recommends that the Transport Standards specify that information about service disruptions and replacement services must be communicated in accessible formats. 
Commission recommendation 6: That the 2012 review includes an additional recommendation that Part 37 of the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) is included in the Transport Standards to emphasise the importance of effective customer service. The Transport Standards should also require compulsory disability awareness training and education for all public transport staff. 
Commission recommendation 7: That the 2012 review recommends that Part 16 of the Transport Standards (Symbols) includes reference to Scope’s Communication Access Symbol. The Communication Access Symbol should be used to identify public transport premises, conveyances and infrastructure that are ‘communication accessible’ (that is, that they meet Scope’s criteria and assessment for communication access). 
Commission recommendation 8: That draft recommendation 3 is amended to:
•	include clear actions for the Australian Government to implement (including the requirement to report on its findings about the complaints process by a particular date). 
•	state that the Disability Discrimination Act 1992 is amended to clarify that a breach of the Transport Standards provides a standalone mechanism for lodging a complaint of unlawful discrimination with the Australian Human Rights Commission. 
Commission recommendation 9: That draft recommendation 4 specify that:
•	the Australian Government will consult people with disabilities, the disability sector and anti-discrimination bodies in the development of accessibility guidelines for a whole-of-journey approach to public transport planning
•	the accessibility guidelines are given the same status as the current Guidelines.
Commission recommendation 10: That draft recommendation 5 specify that the Australian Government should consult with people with disabilities and the disability sector in developing and implementing a national motorised mobility aid labelling scheme. 
Commission recommendation 11: That the 2012 review maintain the 2007 milestone for response times for accessible taxis to be the same as for other taxis.
Commission recommendation 12: That the 2012 review recommend that new community transport vehicles must comply with the Transport Standards. At a minimum, the draft report should recommend that the Australian Government conduct the necessary data gathering, consultation and analysis to determine the impact of such a recommendation as a matter of urgency (within twelve months).
Commission recommendation 13: That the 2012 review recommend dedicated school bus services be phased in to the physical access requirements in the Transport Standards. At a minimum, the draft report should recommend that the Australian Government conduct the necessary data gathering, consultation and analysis to determine the need for such a recommendation as a matter of urgency (within twelve months).
Commission recommendation 14: That the 2012 review recommend that accessible toilets are provided with the same availability as standard toilets at public transport premises.
Commission recommendation 15: That the 2012 review recommend that Part 15 of the Transport Standards requires new public transport premises to include a Changing Place toilet to ensure that people who require accessible toilets have a safe and dignified place to change.