27 May 2010

The wait is over? Disability Access to Premises Standards to commence

by Joe Catanzariti

Businesses and builders will have greater certainty in satisfying the requirements under anti-discrimination laws.

On 15 March 2010, the Disability (Access to Premises - Buildings) Standards 2010 were tabled in Parliament by the Attorney-General. The Standards are intended to take effect nationwide from 1 May 2011.

The Standards will go a long way to harmonising the Building Code of Australia (BCA) with the Disability Discrimination Act 1992 (Cth) (DDA) and equivalent State and Territory legislative regimes. Accordingly, businesses and builders alike will have greater certainty and guidelines as to how buildings are to be designed and constructed so as to satisfy the requirements under anti-discrimination laws.

The Australian Building Codes Board has also announced that the BCA will be reviewed to ensure it mirrors the Standards. Once this occurs, and if, as expected, the States and Territories likewise adopt the amended BCA through respective building regulation laws, compliance with the Standards is also likely be a prerequisite to obtaining building approvals.

Objects of the Disability Access to Premises Standards

It is expected that the Standards will now provide clarity as to how buildings are to be designed and constructed, including when renovated. In particular, clause 1.3 of the Standards states its objects are:

  • to ensure that dignified, equitable, cost-effective and reasonably achievable access to buildings, and facilities and services within buildings, is provided for people with a disability; and
  • to give certainty to building certifies, building developers and building managers that, if access to buildings is provided in accordance with the Standards, the provision of that access, to the extent covered by the Standards, will not be unlawful under the DDA.

Pending the Standards' coming into effect, it is important to keep in mind that compliance with existing regulatory building or construction requirements will not necessarily provide a defence to anti-discrimination laws.

Effect of compliance with the Disability Access to Premises Standards

As the Explanatory Statement highlights, the Standards partially codify the requirements of Part 2 of the DDA in relation to unlawful discrimination in the provision of access to premises.

As the Standards have been made under the authority of section 31 of the DDA, where a person or organisation acts in accordance with the Standards, Part 2 of the DDA (which deals substantively with discrimination) will not apply to that particular act. Essentially, building certifiers, developers, and managers will be immune from being the subject of an unlawful discrimination complaint under the DDA insofar as they have complied with the Standards.

However, Part 2 of the DDA acts as a double-edged sword, as contravention of the Standards will constitute an unlawful act under the DDA unless a relevant defence can be established.

The DDA is broader in scope however than the Standards in terms of the types of premises it applies to. Accordingly, compliance with the Standards will not always relieve a person or organisation of compliance with the DDA. In particular, whereas the DDA applies to areas such as existing buildings not subject to renovations, parkland, playgrounds and other non-building facilities, the Standards do not cover such areas.

Requirements of the Disability Access to Premises Standards

The Standards will apply to:

  • building certifiers;
  • building developers; and
  • building managers.

The requirements of the Standards are contained in Schedule 1, and are referred to as the "Access Code." In particular, the types of buildings to which the Standards apply fall into the same classes as those currently covered by the BCA.

The requirements are set out in broad terms and pertain to matters encompassing access, exits, evacuation facilities, car-parking and communication facilities. These areas are also covered by the "Performance Requirements," which all relevant buildings must comply with. By way of example, the Performance Requirements mandate that access is to be provided, to the degree necessary, to enable people to:

  • approach a building from the road boundary and from any accessible car parking spaces associated with the building;
  • approach the building from any accessible associated building;
  • access work and public spaces, accommodation and facilities for personal hygiene; and
  • identify access ways at appropriate locations which are easy to find.

As with the DDA, there are however a number of exceptions to compliance with the Standards. These include where compliance would cause an unjustifiable hardship, or where an exemption is granted under a statutory authority. Moreover, concessions are made in cases of existing accessible lifts, existing accessible toilets and where the application for building approval is submitted by a lessee of the premises.

Implications of the new Disability Access to Premises Standards

The Standards are not intended to necessarily impose more onerous obligations than those that already exist, but rather clarify the requirements of the DDA. Nevertheless theyact as a guide to complying with the DDA before the anticipated 1 May 2011 commencement day. However, once the Standards come into effect they are expected to introduce a greater level of legal certainty which many have observed has been lacking to date.

Thanks to Ben Petrie for his help in writing this article.

This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.