DDA overview - building access

With this likely outcome, it’s surprising that the provisions regarding discrimination in access in buildings against people with disabilities haven’t been more widely respected. One reason lies in the structure of the legal process. Pursuing an action to lodge a complaint is likely to be expensive and success is not assured, so the result is that many obvious design shortcomings have not been subjected to complaint. Insufficient case law has accumulated to persuade commercial developers that their chances of being brought to task are more than minimal. Despite many public buildings embracing the best principles of non-discriminatory access, new buildings – particularly commercial ones – have continued to be constructed to minimal building-law requirements. These often fall short of the standards the courts deem satisfactory for non-discriminatory accessibility in terms of the provisions of DDA.

Australia’s solution is to align building regulation with the intent of the DDA where it deals with access to buildings, so that a non-conforming building design fails to obtain a permit for its construction. The consequence of failing to meet the DDA is risk of complaint; the consequence of failing to meet building legislation is the absence of legal permission to build the building. The latter has real, immediate leverage⁽¹⁾ .

The necessary alignment of building regulations occurred in Australia on 1 May 2011, the date upon which the Disability (Access to Premises-Buildings) Standards (the 'Premises Standards') and the National Construction Code (NCC)⁽²⁾ became effective.

Why did such an obvious solution take 20 years to eventuate?

Australia's constitution established legislative responsibility and authority of the Australian Government. Matters not mentioned in the constitution remained, by convention, the responsibility of the states. There are now also two federal territories – the Northern Territory and the Australian Capital Territory – with similar responsibilities.

Federal responsibility doesn’t prevent the states from making parallel or similar laws. All states except Western Australia have their own disability-discrimination legislation, some of which preceded the federal act. By protocol, an action brought under a state act disqualifies itself from processing under the federal one, and vice versa.

Building regulation, by default, is the responsibility of the states and territories. The legislation is not uniform. To remedy this, the Australian Model Uniform Building Code was first released in the early 1970s. Developing separately from building administration law, it recognised that uniform technical specifications – the regulations – could be agreed regardless of the administration of their application.

The Building Code of Australia (BCA) became a uniform specification for the technical requirements for buildings in 1990. BCA 96 was the first performance-based edition and was adopted by each of the eight jurisdictions in their building legislation between July 1996 and January 1998. Initially, it was amended twice a year and by 1 January 2002 the dates of adoption were at last aligned. The publication then assumed the year date for identification, and amendments were made annually. The last issue was BCA 2010. The 2011 edition is called the National Construction Code (NCC)⁽³⁾ .  

The method used to align the intent of the DDA with the legislative force of state and territory building regulation is to exploit the DDA’s capacity to make Disability Standards. The DDA states that it is unlawful to contravene a Disability Standard, but that compliance with a Disability Standard is an effective defence against a complaint brought under the broader provisions of the DDA. A Disability Standard acts like a Code of Practice. None of the state anti-discrimination laws contains a provision to make disability standards.

The DDA was amended in 2000 to include 'access to premises' as a legitimate subject for a Disability Standard. By 2009, and following a change in government, the Draft Disability (Access to Premises-Buildings) Standards 2009 were tabled in Parliament, subjected to scrutiny by Parliamentary Committee, disallowed, stalled by a federal election, amended slightly and finally passed by both Houses in September 2010. Their effective date was established as 1 May 2011. Although 'buildings' are only a subset of 'premises' as defined by the DDA, this disability standard is almost universally known as the Premises Standards.

The Premises Standards contain a section entitled the Access Code, which describes technical specifications, complete with performance requirements and deemed-to-satisfy provisions (the remainder of the Premises Standards contains administrative provisions). It references Australian Standards (not to be confused with Disability Standards – the AS/NZS1428 suite addresses similar subjects as BS8300) in the latter. The structure and style of the Access Code is identical to equivalent sections of the NCC.

The amendments to BCA 2010 included the insertion of the Access Code to replace the relevant provisions addressing accessibility, and the new document became NCC 2011. It also became effective on 1 May 2011.

The effect of this alignment is that a building which complies with its state or territory building legislation also meets the intent of the (federal) DDA insofar as the Access Code describes particular attributes. If a complaint is made under the federal law, the respondent(s) may use this compliance with state or territory building law as an effective defence.

Although the framework is robust, the fabric is far from perfect. The Report of the Inquiry into the Draft Premises Standards, by the House of Representatives Standing Committee on Legal and Constitutional Affairs (June 2009), identified two matters which it considered were dealt with unsatisfactorily:

1. emergency egress by people who can't use stairs
2. wayfinding by people who are blind or vision impaired

The final version of the Access Code contained no amendment in respect of these specifications.

Furthermore, the Access Code is restricted to matters that were contained within the BCA so items of fitout generally, including furniture (reception desks, shop counters etc) were excluded. Elements of infrastructure – footpaths, pedestrian crossings, parks, playgrounds, bridges, tunnels and the like – aren’t 'buildings' so they, also, are not caught up by the Access Code. Existing buildings not undergoing building activity which triggers regulatory scrutiny are not subject to the Premises Standards.

Finally, there is no provision for access to or within privately occupied dwellings except for those intended for short-term occupation. Section 23 of the Act only deals with access for 'members of the public'. The campaign for accessibility in housing has its own strategy, identifiably separate from these initiatives.

Nonetheless, the introduction of the Premises Standards ensures that the elements in the carcasses of new Australian buildings – entrances, lifts, stairs, ramps, doorways, circulation spaces, sanitary facilities and car parking etc – will be configured in such a way that the need for future structural modification to satisfy the intent of the DDA is obviated.

Those elements of accessibility which are not subject to the Access Code remain the province of the broader reach of the DDA. Although it is early days, it is expected that the Access Code will be used as a yardstick in assessments for many such cases although they may lie outside its precise scope.

The Premises Standards apply to existing buildings undergoing renovation, refurbishment, or extension, where the activity constitutes 'building work'. One of the considerations in establishing the degree of accessibility in the Premises Standards was how onerous the requirements should be for such buildings. If the bar was set too high, commercial buildings – particularly high-rise ones – may face accelerated redundancy. The option of establishing different requirements for new buildings was tested, and rejected.

From inception, the DDA invoked the defence of unjustifiable hardship against a claim of disability discrimination. The burden of proving that something would impose unjustifiable hardship lies on the person claiming it. The Premises Standards now define 16 circumstances which must be taken into account, together with any other relevant ones in determining whether compliance with the Access Code would involve unjustifiable hardship. These are likely to be the criteria by which apparently onerous requirements applied to existing buildings will be assessed. Despite this additional detail, the way to determine conclusively whether unjustifiable hardship exists is through the same process that determines whether or not unlawful disability discrimination has occurred – in other words, through ruling on a complaint by a federal court. Neither the Act nor its Disability Standard has any provision to consider those premises subject to the Premises Standard, and those that are not differ from each other in respect of their need to comply with the DDA.

Although state and territory building legislations already contain provisions for relief from full application of the BCA/NCC, the mechanisms differ – they cannot determine a claim of unjustifiable hardship under the DDA, because they don’t have the authority of the federal court. The liability of a building certifier (and all others nominated in the Premises Standards) has existed since 1992, but the introduction of the Premises Standards has focussed attention on it.

A further mechanism for use by all state and territory jurisdictions to advise a building certifier considering an application for building consent where the NCC is not met in full was prepared by the ABCB at the time the Premises Standards were developed. It is titled 'A Model Process to Administer Building Access for People with a Disability' and known colloquially as 'The Protocol'⁽⁴⁾ . It anticipates the establishment of access panels, which may advise the certifying authority about the likelihood, should it exercise its discretion to grant building consent, of the decision being accepted by a federal court. Adoption by separate states and territories jurisdictions has been far from consistent.

The Protocol is not intended to apply to existing buildings where no building work is being carried out other than where there is a change of use or classification.

This is uncharted territory. It is hoped that a body of case law will develop to provide better guidance, and that the decisions will be reasonably consistent. The Protocol proposes that each administration is to draw the attention of all other administrations to any activity, which in its opinion, affects the implementation of the objectives and principles of The Protocol.

(1) Michael Small, as Senior Policy Officer for the Australian Human Rights Commission, wrote a comprehensive background paper in 2003 entitled Building Regulation and access – an Australian view. See www.humanrights.gov.au/publications/building-regulation-and-access-australian-view

(2) The Premises Standards may be viewed at www.comlaw.gov.au/Details/F2011C00214

(2) The Guideline on the Application of the Premises Standards is available online at www.humanrights.gov.au/disability_rights/standards/PSguide.html

(3) A more detailed history may be followed at the Australian Building Codes Board’s website www.abcb.gov.au/ncc-online/About

(4) Australian Building Codes Board reproduced by consent