|
Home
About
Us
Media
Priorities
Publications
Education
Students
Service
Guide
Contact
Us
|
Graeme Innes
Deputy Disability Discrimination
Commissioner
Human Rights and Equal Opportunity
Commission
Monday, 5th August 2002
Dear Graeme,
The Physical Disability
Council of NSW objects to the application from
Westbus, seeking temporary exemption from the
DDA. We urge the Human Rights and Equal
Opportunity Commission to reject the application
on the grounds that to grant it would
unreasonably and unfairly discriminate against a
section of the population of people with
disability.
Our arguments in favour of
denying the exemption are
straightforward.
- First among our views
is this: As an operator of a public service,
Westbus has a duty not to discriminate
against people by virtue of their disability.
We feel, therefore, that the responsibility
lies with Westbus to ensure that wheelchairs,
like prams, strollers, walking frames and
other items (such as luggage) can be carried
safely in their vehicles. The duty must
surely fall upon an operator to ensure its
vehicles are designed and operated to ensure
that all goods and items can be carried
safely.
- The application by
Westbus seeks to transfer responsibility for
safety from the operator to the passenger,
uniquely in the case of wheelchair users who
may or may not decide to transfer. This is
clearly not consistent with the NSW Passenger
Transport Regulations. No operator, in this
case, should be permitted to use the DDA as a
means of avoiding its obligations to conform
to other legislation.
- It appears to PDCN
that Westbus, faced with an employee-related
question of Occupational Health & Safety,
is electing to pursue what it sees as an
easier option, i.e. discrimination against a
proportion of its passengers. We feel that
Westbus should address its Occupational
Health & Safety concerns within the
context of a non-discriminatory framework for
passengers.
- The legislative issue
at the heart of this matter is not the
Disability Discrimination Act but the NSW
Passenger Transport
- Regulations. Westbus
could seek amendment to section 16 of the
Passenger Transport Regulations, giving its
driver's discretionary powers, without any
need to seek exemption from the DDA and,
thereby, deny the right of some people with
disability to be free from
discrimination.
- The decisions of
Westbus to reach an accommodation and
negotiated solution to safety matters in
relation to wheeled-walking frames (which are
permitted on the operator's buses) clearly
indicates that it is within the current power
and authority of Westbus to accommodate and
carry passengers with equipment that cannot
be stored in luggage areas. Given that
Westbus has, itself and without recourse to
the DDA, established precedent in relation to
the carriage of wheeled mobility aids we can
see no justifiable reason why it should be
permitted to abrogate its responsibility to
use the same power and exercise the same
authority when it comes to wheelchair
users.
In addition to the factors
above, which relate to the action of Westbus, we
wish to add the following considerations to our
objection to the application for exemption from
the DDA.
- Westbus and its State
regulator, the NSW Department of
Transport, could and should find ways
within the NSW Passenger Transport
Regulations to resolve the current difficulty
to the mutual benefit of the operator, its
employees and people with disability who use
wheelchairs.
- HREOC should not been
drawn into adjudicating on matters that are,
firstly, about Occupational Health and Safety
debates between an employer (Westbus) and its
employees (drivers and their union) and,
secondly, about the regulatory framework
established by the State under which Westbus
is granted a licence to operate a public
service.
- Even if it could be
shown that, in this instance, it is
legitimate for HREOC to become involved (and
PDCN maintains that HREOC is being drawn into
a debate that is not truly about disability
policy) we urge HREOC to reject the
application on the grounds that it does not
meet the test articulated by HREOC when it
granted a temporary exemption to Kendell
Airlines.
- At that time, HREOC
explained that a temporary exemption could be
and was granted to the airline because it
presented an acceptable action plan showing
how, during the period of the temporary
exemption, the airline would act to further
eradicate the possibility or likelihood of
discrimination. Westbus has offered no such
action plan. This operator shows no
inclination to take action, at any time
during the period of any exemption, to act to
eradicate discrimination. The strategy of
Westbus seems clear from its application.
During the period of its requested exemption
the operator proposes to do nothing but wait
for the DDA Draft Transport Standard to be
enforced.
- PDCN understood from
the ruling by HRDEOC in relation to Kendell
Airlines that doing nothing was and is
unacceptable with regard to applications for
temporary exemption from the provisions of
the DDA. It would clearly be inconsistent
with the precedent established in the Kendell
Airlines case for HREOC now to grant a
temporary exemption to Westbus.
In closing, I wish to
repeat that PDCN strongly objects to the
application from Westbus. We are certain that
the operator can and should build on its
existing procedures, operating policies and
regulatory obligations to negotiate with its
employees and the State regulator an acceptable,
non-discriminatory, safe solution to its current
Occupational Health and Safety
question.
Yours
sincerely,
Dougie Herd
PDCN Executive Officer
— PDCN Submission to Human Rights and
Equal Opportunity Commission - 2002
|
|
The
Physical Disability Council of NSW Inc (PDCN) is
the peak body representing people with physical
disabilities across New South Wales.
PDCN is involved in information, education and
systemic advocacy for, and on behalf of, people
with a physical disability.
|
