1.
Introduction
The Physical Disability
Council of New South Wales (PDCN) is opposed to
ORTA’s
application for exemption from the
DDA. In summary,
we cite the following reasons for urging the
HREOC to reject ORTA’s application for
exemption.
- ORTA admits that there
are insufficient numbers of accessible buses
to meet existing demand for services plus the
additional demand created by the
Games.
- ORTA acknowledges that
people with disability will experience
detriment that will disadvantage them in
relation to people with no disability. This
would be a clear breach of the DDA. People
with disability will face economic, social
and transport hardships that will not be
encountered by the comparitor in law (people
with no disability).
- ORTA offers no
evidence in its application that it has
actively or passively sought to encourage,
procure or provide an increased and
sufficient supply of accessible buses to meet
the general and Games requirements of people
with disability.
- ORTA offers no
guaranteed alternative solution to people
with disability discriminated against,
disadvantaged by or experiencing detriment as
a result of ORTA’s last-minute plan to
commandeer vehicles from existing fleets
already acknowledged to be inadequate for
existing, non-Games requirements.
- ORTA’s strategy
for providing some accessible bus services
for the Games perpetuates, re-enforces and
encourages inactivity by current and future
providers of bus services with regard to
accessible bus services.
- ORTA’s request
for exemption from the DDA is predicated upon
discrimination in the provision of bus
services.
- ORTA’s request is
neither reasonable nor
justifiable.
In the sections below we
offer more detailed analysis of ORTA’s
application and elaborate on our reasons for
opposing the application.
2. Section
2.1
In Section 2.1 of its
application for exemption to the DDA, ORTA
acknowledges that it was created by the
Government of New South Wales specifically to
meet the transport demands of the Sydney 2000
Olympic and Paralympic Games (the Games), in
recognition of the need for a single body to
co-ordinate the planning and delivery of Olympic
and Paralympic transport services.
Nowhere in the application
submitted by ORTA is any evidence provided or
any suggestion made that since its creation,
ORTA attempted to prepare for the transport
demands of the Games, with specific regard to
wheelchair accessible buses. No evidence is
offered to show efforts of good faith by ORTA to
increase the availability of wheelchair
accessible buses. The failure of ORTA to act to
prepare for needs that have been articulated by
organisations of people with disabilities
throughout ORTA’s entire existence is
simply inexcusable, unjustifiable and
constitutes a clear disregard for
responsibilities and obligations which ORTA, its
own application, concedes belong appropriately
to ORTA.
In short, ORTA has not
done what it was established to do in respect of
citizens and visitors with disabilities and it
has made no effort to fulfil its obligations.
PDCN believes that failure in this area alone is
sufficient grounds for denying the
application.
3. Section
2.5
In Section 2.5 of its
application for exemption ORTA acknowledges
that:
The provision of
bus services for Olympic and Paralympic
officials, athletes, spectators and
accredited media includes the provision of
accessible bus services for people with a
disability.
ORTA acknowledges that
meeting the transport needs of people with
disabilities is not a marginal part of its
remit. The provision of accessible transport is
a component of ORTA’s core business
purpose. The application for exemption by ORTA
is an admission by ORTA that it has failed to
deliver the required outcome of a core component
of its business purposes. If anyone or any
organisation should run the risks associated
with such business failure it should be ORTA and
its responsible officers. The burden of
ORTA’s failure should not be borne by
people with disabilities seeking to make use of
public transport.
To grant exemption sends a
signal that people with disability can be
ignored at the last minute by any large
organisation charged with planning a major
public event. It is precisely such large
organisations, charged with planning major
public events, that should be told that they
cannot ignore people with disabilities and be
given the blessing by a human rights
organisation.
4. Section
2.6
In Section 2.6 of its
application ORTA asserts
ORTA is committed
to ensuring that people with a disability
have equal access to the Games as the rest of
the community.
ORTA’s assertion is
pious, pompous rhetoric unless and until it is
backed up with action or the presentation of a
chronicled and verifiable history of ORTA
initiated activity intended to secure a goal
which ORTA can articulate but obviously fails to
understand. PDCN believes absolutely that people
with a disability should have access to the
Games on the same bases as the rest of the
community. PDCN also believes that people with a
disability should have access to all of the
civil society and the wider communities in which
they live and work. PDCN is absolutely certain
that one opportunity must not be created at the
expense of the other. ORTA cannot be allowed to
‘rob Peter to pay Paul’, so to speak.
If ORTA is so poorly organised and inefficient
as to adopt this inadequate and shameful option
of last resort to deal with the consequences of
their own inactivity, neither ORTA nor its
associates in this application, should be spared
the possible consequences of their own inertia
and complacency. HREOC should not grant
ORTA’s application. To do so would
legitimise inaction as a policy option and
sanction the setting of the needs of one sector
of the disability community at odds with those
of others. That is not what the DDA is supposed
to be about, in the view of PDCN.
5. Section
2.6
In Section 2.6 of its
application ORTA states:
In order to
provide accessible bus services for people
with a disability, ORTA will need to procure
a significant number of ultra-low floor and
accessible buses from both public and private
bus operators in New South Wales, the
Australian Capital Territory, Queensland,
Victoria and South Australia.
PDCN believes this section
confirms ORTA’s inaction. ORTA has done too
little too late to address a need that has been
obvious to anyone with an interest in
disability, transport and/or Games issues. The
need has been evident since the Olympic and
Paralympic Games were awarded to Sydney more
than 7 years ago. The need has been evident
since before ORTA was created. No evidence has
been presented of any strategy, operational plan
or activity initiated, subscribed to, supported
or actioned by ORTA to provide an accessible bus
service for people with disability. ORTA should
pay for ORTA’s failure to act to anticipate
wholly predictable requirements. People with
disability who need and use accessible buses for
activities not related to the Games must not be
penalised by ORTA’s deliberate and
conscious failure to procure or seek to procure
accessible vehicle before this date or by means
other than commandeering vehicles currently
operating in public service.
6. Section
2.11
In Section 2.11 of
ORTA’s application ORTA asserts
that
During the Paralympic
Games period, ORTA’s ability to procure
sufficient numbers of accessible buses will be
further restricted, for the following
reasons:
- School terms will
recommence nationally during the Paralympic
period and student transport services must be
maintained, thus restricting the availability
of buses for ORTA services during the
Paralympic Games.
- In addition to
services for spectators, accessible buses are
also required for other Paralympic client
groups, including athletes, officials and
accredited media.
ORTA’s assertion is
arrant nonsense and deliberately misleading,
disingenuous and duplicitous word play that
amounts to no more than smoke and mirrors. None
of the restrictions on ORTA’s ability to
fulfil its obligations to provide accessible
transport are, can or should be attributable to
seemingly external factors beyond ORTA’s
control. The existence of schools in Sydney is
not a reason ORTA will fail to meet its
obligations as an Olympic Roads and Transport
Authority. And the requirement to provide
accessible transport resources for PARALYMPIC
Games cannot be considered by any reasonable
observer to be anything other than intrinsic to
the whole idea of Paralypianism. ORTA is
restricted in its capacity to provide accessible
buses for the Olympics and Paralympics because
ORTA did nothing about its obligation to provide
those buses until it submitted its exemption.
ORTA has offered no evidence in its application
to support any other reading of its failure to
act.
7. Section
3.1
In Section 3.1 of its
application ORTA acknowledges:
Accessible buses
are currently used on regular services
provided by bus operators.
PDCN makes the simple and
straightforward observation: that is exactly the
point. It is because the accessible buses ORTA
seeks to commandeer at the eleventh hour are, in
ORTA’s words, “currently used on
regular services provided by bus operators”
that their application for exemption should be
rejected. The buses are currently being used
because the people with disabilities who
currently use them need the accessible buses on
which they travel. ORTA’s role was not to
do nothing for several years before removing
buses from public use creating a real detriment
for people with disability denied access to them
for the period of the Games. ORTA’s duty
was to recognise that the Games create
additional demand for services and to plan to
meet that additional demand without any
unreasonable negative consequences on demand
that existed before the Games and which will
continue after the Games. ORTA presents no
evidence that it sought to deal with the
problems of additional demand.
8. Section 3.2 to 3.4
inclusive
In Sections 3.2, 3.3. and
3.4 of its application ORTA admits
that:
2. Bus operators
who operate accessible vehicles are concerned
that the deployment of accessible buses to
ORTA and the consequential effect on their
provision of regular accessible services to
their usual passengers may be seen as
contravening the provisions of the
DDA.
3. Bus operators who
operate accessible vehicles are nervous about
the potential for complaints against them
under the DDA, and the uncertainty that
necessarily follows from this has made them
extremely reluctant to commit to providing
accessible buses to ORTA for use during the
Games.
4. Many bus operators
who operate accessible vehicles have
expressed the view that they will only
provide ORTA with accessible buses if the
operator can be assured there will be no
action taken against them in the event of a
complaint.
PDCN believes that the
admission by ORTA of the profound reservations
of bus operators about ORTA’s strategy of
commandeering existing buses rather than
planning to procure and provide additional
accessible buses is confirmation from the
applicant of their own inaction and failure. The
conditional response of bus operators set out in
Section 3.4 shows, in PDCN’s view, that bus
operators understand the breach in legal rights
they are being asked to condone and collude
with. ORTA’s application and the view of
bus operators (as reported by ORTA itself)
concede that ORTA’s strategy is deeply
flawed, morally unjustifiable and, without the
acquiescence of the HREOC, almost certainly
illegal. HREOC should not make legal that which
is morally indefensible. ORTA’s application
should be denied.
9. Section
5.3
In Section 5. 3 of its
application, Demand for Services, ORTA provides
information about the additional demand for
accessible buses, which it correctly
anticipates, will be required to meet the
additional transport requirements created by the
awarding of the Games to Sydney. ORTA offers no
evidence or explanation of any effort on its
part to increase the supply of accessible buses
to meet the additional need that could be and
was foreseen. PDCN is of the view that, given
the acutely sensitive political circumstances of
ORTA’s application, if they could have
presented evidence of action taken in good faith
ORTA would have presented the information. We
fear that no evidence to show any attempt by
ORTA increase the supply of accessible buses
mans that no such attempt was made. Inaction
should not be rewarded by exemption. ORTA’s
application should be refused.
10. Section
5.4
In Section 5.4 of its
application, Limited supply of Accessible Buses,
ORTA indicates that it understands that there
exists a shortage of accessible buses generally.
Given that ORTA concedes its understanding that
demand will increase (see section 5.3 of its
application) ORTA is clearly acknowledging that
current supply does not meet current demand and
cannot, therefore, be expected to meet
additional demand. Specifically, ORTA concedes
(in its own application, Section 5.4.1)
that
There are not
enough accessible buses to provide both the
accessible services ORTA requires for the
Games and the regular accessible services
which bus operators currently run.
ORTA is unambiguous in
stating the problem. ORTA clearly understands
the current inadequacy of provision of
accessible buses. Nowhere in its application
does ORTA offer any evidence of any sort that at
any time of having sought to anticipate and/or
take action to overcome the difficulties created
by insufficient supply in relation to
anticipated demand. ORTA appears to have placed
the under-supply of accessible buses in the
‘too hard basket’ until the very last
minute before presenting a ‘fait
accompli’ to the HREOC, people with
disability and the communities of Australia from
which it wishes to commandeer a face-saving
solution.
11. Section
5.6
PDCN believes that Section
5.6 in ORTA’s application, Showcase for
accessible services, is wholly irrelevant to any
of the issues relating to exemption from the
DDA. PDCN agrees that the transport services of
the Games ought to have been seen by ORTA as an
opportunity to show the best of Australian
achievement in the area of socially inclusive
transport possibilities. ORTA should have,
therefore, been instrumental over a sustained
period of time in advancing the provision of
accessible transport so that its showcase did
not undermine the day to day reality or quality
of life of people whose transport options ORTA
now seeks to severely constrain, perhaps even
remove entirely for more than two months. Sadly,
ORTA appears to have taken no action and
presents no evidence in its application to show
that ORTA has contributed to create a showcase
without detriment to existing service
users.
In Section 5.6.2 of its
application ORTA directly contradicts earlier
arguments in its application. ORTA
states:
The Games will
showcase Australia’s ability to provide
equal access for people with a
disability.
However, as we have shown
above, in Section 5.4.1 of its application ORTA
concedes:
There are not
enough accessible buses to provide both the
accessible services ORTA requires for the
Games and the regular accessible services
which bus operators currently run.
Both statements cannot be
true at the same time. Either ORTA is correct in
section 5.6.2 in which case no exemption is
required or Section 5.4.1 is accurate, in which
case the Games do not offer the prospect of
showcasing Australia’s ability to provide
equal access. If Section 5.4.1 is accurate, and
PDCN agrees with ORTA that it is, the
application must be denied by the
HREOC.
12. Section
5.7
In Section 5.7.1 of its
application ORTA states that;
whilst there will
be some detriment to the passengers seeking
to use regular services it will be offset by
the benefit to those travelling to the Games,
or as part of Games-time transport.
PDCN makes two
observations with regard to this section.
Firstly, ORTA concedes that its strategy creates
detriment for Australian citizens and visitors.
The requirements of the DDA to protect the
rights of Australian residents, citizens and
visitors should not be waived in the face of
detriment admitted before the event. Secondly,
ORTA seeks to compare apples and pears by
setting the detriment of one group against the
potential benefit of another group. We believe
that this is neither a valid or acceptable
comparison under the terms of the DDA. As we
understand it, the DDA requires a comparison
between people with disability and people with
no disability. HREOC is required to make that
comparison, no other. In the section above ORTA
admits that its action will create detriment for
people with disability when compared to people
with no disability. That seems to PDCN to be an
admission by ORTA that it intends to
discriminate against people with disability.
HREOC should not release ORTA from the
consequences of its intention, stated above, to
create detriment and to discriminate against a
section of society deemed to be protected by
Australian law, in this instance the
DDA.
In any case, ORTA offers
no evidence of having estimated the benefits and
detriment, and therefore there is no evidence to
show that “some detriment” will be
offset by unquantified “benefit”. How
does ORTA know that the benefit will be greater
than the detriment? How many people will benefit
and how many will lose? What will be the losses
of the losers and the benefits of those who
benefit?
13. Section 7
In Section 7 of its
application, Briefing of Peak Disability Groups,
ORTA states
5. ORTA will be
conducting briefings with peak disability
groups to provide them with transport
information and enable their feedback on
ORTA’s exemption application.
6. The disability
groups to be briefed include the National
Disability Advisory Council, the NSW
Disability Council, the Physical Disability
Council of Australia, ParaQuad, the Physical
Disability Council of NSW, the Australian
Quadriplegic Association and People with
Disabilities (NSW) Inc. These briefings will
provide the opportunity for broad
dissemination of ORTA’s accessible
transport plans for people with a
disability
PDCN wishes it to be made
known that up to and including Monday, 13 June
2000 no representative of ORTA has made any
contact, verbally, in writing, electronically or
in person with any person representing the
Physical Disability Council of NSW. PDCN has not
been briefed by ORTA, we have been provided with
no transport information by ORTA, our feedback
on ORTA’s exemption application has not
been sought by ORTA and we have not been
included in any ORTA briefing of any
sort.
14. Section 9
In Section 9 of its
application, Urgent Application, ORTA submits
arguments in support of its claim
that
Urgent consideration of
this application is sought, for the following
reasons:
PDCN believes it is
important to recall a few key dates from the
chronology of events. Specifically,
- Work on Sydney’s
bid to host the 2000 Olympics commenced at
least as early as 1991.
- The International
Olympic Committee made the public
announcement that Sydney would host the 2000
Olympic and Paralympic in September 1993. The
fact that the Games are coming to Sydney is
neither a recent revelation nor has it been a
secret withheld from transport
planners.
- The Act creating ORTA
was approved in October 1998.
- The Olympics are due
to take place in September 2000.
- The Paralympics are
due to take place in October
2000.
- ORTA’s
application to HREOC was received by HREOC on
26 May 2000.
The timetable above does
not support ORTA’s claim of urgency. It
does suggest, however, that for most –
virtually all – of the period since the
Games were awarded to Sydney in 1993 the issues
of accessible transport have been ignored. The
inaction and delay of ORTA undermine their
assertion that their need was unforeseeable,
urgent or justifiable. PDCN believes that HREOC
should refuse to grant ORTA the exemption from
the DDA that it seeks.
Dougie Herd
Executive Officer
Physical Disability Council of New South
Wales
13 June 2000
