Appendix 3 – Legislation and standards

The following sections provide an overview of legislation and standards which impacts on the provision of transport services.

The Disability Inclusion Action Plan provides practical measures through which Transport for NSW can meet legislative requirements and their associated objectives and principles.

Anti-Discrimination Act 1977 (NSW)

The NSW Anti-Discrimination Act 1977 outlaws discrimination on the grounds of race, sex, marital status, homosexuality, age, disability, transgender and carer’s responsibility. Areas covered by the Act include:

  • Employment and employment agencies
  • Partnerships.
  • Trade Unions.
  • Education and qualifying bodies.
  • Access to places and vehicles
  • Provision of goods and services.
  • Accommodation.
  • Registered clubs.

The Anti-Discrimination Board of NSW (ADB) deals with written discrimination complaints. The complaints process includes assessment, investigation and may include conciliation. If this process does not resolve the complaint, the ADB may refer complaints to the NSW Civil and

Administrative Tribunal’s Administrative and Equal Opportunity division.

Disability Discrimination Act 1992

The Disability Discrimination Act 1992 (Cth) (DDA) seeks to eliminate discrimination against people with disability. Commonwealth, State and Territory departments and agencies and local government authorities have responsibilities under the DDA.

The objectives of the DDA are:

  • To eliminate discrimination, as far as possible, on the grounds of disability in areas of work, accommodation, education, access to premises, clubs and sport, the provision of goods, services and facilities, existing laws and the administration of Commonwealth laws and the administration of Commonwealth laws and programs.
  • To ensure, as far as practicable, that people with disability have the same rights to equality before the law as the rest of the community.
  • To promote recognition and acceptance within the community of the principle that people with disability have the same fundamental rights as the rest of the community.

The DDA does not require the development of action plans by service providers, however if action plans are developed, Section 61 specifies that Action Plans must include provisions relating to:

  • The devising of policies and programs to achieve the objects of the DDA.
  • The communication of these policies and programs to employees within the service provider.
  • The review of practices within the service provider with a view to the identification of any discriminatory practices. 
  • The setting of goals and targets, where these may reasonably be determined against which the success of the plan in achieving the objects of the Act may be assessed.
  • Evaluation of the policies and programs included in the Plan and the appointment of persons within the service provider to implement the Action Plan.

Disability Standards for Accessible Public Transport 2002 (Cth)

The Disability Standards for Accessible Public Transport 2002 (Cth) (Transport Standards) were made under the DDA and provide a framework to enable public transport service and infrastructure providers to remove discrimination from public transport services.

The Transport Standards incorporate Australian Standards, Australian/New Zealand Standards, and Australian Design Rules, and specify the minimum technical requirements acceptable for the provision of accessible public transport for vehicles, stations, bus stops, transport interchanges and wharves.

The purpose of the Transport Standards is to enable public transport service and infrastructure providers to remove discrimination from public transport services. The Transport Standards specify what is required to make public transport accessible and are intended to apply to the widest possible range of people with disability.

They prescribe physical standards for the built environment so that people with disability can have access to public transport services equivalent to the public in general. The Transport Standards also include concepts of amenity, availability, comfort, convenience, dignity, cost, and safety as features of transport to be taken into account in determining equivalence. The Transport Standards prescribe an incremental timetable for implementation. Under the Transport Standards public transport services and infrastructure, excepting trains which have a compliance target of 2032, should be fully accessible  by 2022, and a timeframe with interim compliance goals is set with target dates of 2007, 2012, and 2017.

Equivalent access

The Transport Standards recognise there may be instances where operators need to provide ‘equivalent access’ so that a person with a disability can use transport services. This is compliance by providing methods, equipment or facilities that provide alternative means of access with equivalent amenity, availability, comfort, convenience, dignity, price and safety as those methods specified in the Transport Standards.

This may include operators or providers offering direct assistance to passengers. However, this does not include the provision of separate or ‘parallel’ services.

Australian Human Rights Commission

If a customer believes that an operator or provider has breached the DDA, they can lodge a complaint with the Australian Human Rights Commission (AHRC).

The AHRC has the power to investigate and attempt to conciliate complaints of disability discrimination. If the conciliation is unsuccessful, they may start legal proceedings in the Federal Circuit Court  or the Federal Court. The AHRC’s website provides information on how to lodge a complaint.

Unjustifiable hardship

Not all discrimination is unlawful. The DDA states that discrimination will not be unlawful where the elimination of all differential treatment would impose an ‘unjustifiable hardship’ on service providers.

The Transport Standards have identified timeframes for the introduction of accessible services and this has provided a measure of financial certainty for Government and operators regarding the future cost of implementation.

‘Unjustifiable hardship’ may only be used as a defence against a complaint and not as a means of obtaining prior exemption. The Transport cluster acknowledges the need to apply the concept in particular and exceptional circumstances in considering access to transport. As indicated in the Transport Standards, compliance should be achieved to the maximum extent not incurring unjustifiable hardship.

Factors that a court is to consider when assessing whether unjustifiable hardship exists include:

  • The cost of meeting the Transport Standards.
  • Exceptional operational, technical or geographic factors.
  • Resources reasonably available.
  • Likely benefits or detriment of compliance.
  • Action plans developed.
  • Consultations involving people with disability.
  • Good faith efforts to comply.

Exemptions

Under section 33(A1) of the Transport Standards, an operator of public transport or a provider of public transport infrastructure may apply to the AHRC for temporary exemptions from compliance with some or all of the Standards. An exemption or a further exemption (from compliance with the same requirements as the exemption) must not be granted for a period of more than five years. Operators and providers who are granted exemptions must fully comply with the Transport Standards following the exemption period.

Disability Access to Premises Standards 2010

The Disability (Access to Premises – Buildings) Standards 2010 (Cth) provides design standards to assist public transport service and infrastructure providers to meet their obligations under the DDA. The instrument is intended to:

  • Ensure that dignified, equitable, cost- effective and reasonably achievable access to buildings, and facilities and services within buildings, is provided for people with disability.
  • Give certainty to building certifiers, building developers and building managers that, if access to buildings is provided in accordance with these Standards, the provision of that access, to the extent covered by these Standards, will not be unlawful under the Act.

Part 2 of the Standards set performance requirements for public transport buildings that are consistent with compliance targets set in the Transport Standards.

Disability Inclusion Act 2014 (NSW)

The Disability Inclusion Act 2014 (DIA) replaces the Disability Services Act 1993. The law was changed to reflect major developments in the past decade

including the signing of the United Nations Convention on the Rights of Persons with a Disability and the National Disability Insurance Scheme.

The objects of the DIA have been developed to reflect these changes. The objects are:

  • To acknowledge that people with disability have the same human rights as other members of the community and that the State and the community have a responsibility to facilitate the exercise of those rights.
  • To promote the independence and social and economic inclusion of people with disability.
  • To enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and services.
  • To provide safeguards in relation to the delivery of supports and services for people with disability.
  • To support, to the extent reasonably practicable, the purposes and principles of the United Nations Convention on the Rights of Persons with Disabilities.
  • To provide for responsibilities of the State during and following the transition to the National Disability Insurance Scheme.

Section 12 of the Act sets out the requirement for all public authorities to have in place a Disability Inclusion Action Plan setting out the measures it intends to take so that people with a disability can access general supports and services and participate fully in the community.

Government Sector Employment Act 2013

The Government Sector Employment Act 2013 (GSE Act) commenced on 24 February 2014. Two main instruments made under the GSE Act form the legislative framework for the employment and administration of the NSW Government sector workforce, including people with disability. Those instruments are the Government Sector Employment Regulation 2014 (GSE Regulation) and the Government Sector Employment Rules 2014 (GSE Rules).

The GSE Regulation  contains  provisions that have been transferred, with appropriate modifications, from the Public Sector Employment and Management Act 2002 and the Public Sector Employment and Management Regulation 2009 and provisions included by the GSE Act on new matters.

The GSE Rules are a form of statutory instrument that is made by the Public Service Commissioner. They have the force of law and include diversity rules covering the employment of eligible persons – such as people with disability – and the provision of diversity information.