The Disability Discrimination Act (DDA)
The Australian Government's Disability Discrimination Act 1992 (DDA) has been in effect since March 1993. The DDA prohibits discrimination against people with disability or their associates in a range of areas including transport, education, employment, accommodation and premises used by the public.
The DDA is complaints-based (as opposed to compliance-based) legislation. It does not include legislative or regulatory guidance as to the specific steps that must be taken to ensure compliance with the general duties in relation to access to premises.
The National Construction Code and the Building Code of Australia
The National Construction Code (NCC) is an initiative of the Council of Australian Governments (COAG) developed to incorporate all on-site construction requirements into a single code. The NCC comprises the Building Code of Australia (BCA), Volume One and Two; and the Plumbing Code of Australia (PCA), as Volume Three.
The BCA is produced and maintained by the Australian Building Codes Board (ABCB) on behalf of the Australian Government and each State and Territory Government. The BCA is a uniform set of technical provisions for the design and construction of buildings and other structures throughout Australia, is referenced in all State and Territory building legislation, and applies to new buildings and new building work on existing buildings. The BCA contains specific provisions in relation to access to and within buildings by people with disability.
Concern with the lack of certainty regarding practical compliance obligations under the DDA led to amendments to Section 31 of the DDA, which came into effect in April 2000, to allow the Australian Government’s Attorney-General to formulate Disability Standards in relation to access to premises. Contravention of any Disability Standards formulated under the DDA is unlawful under Section 32 of the DDA. Section 34 of the DDA effectively provides that compliance with a relevant Disability Standard is sufficient to satisfy the DDA duty not to discriminate in relation to the subject area covered by the Standards.
The need to review the BCA access provisions as part of the development of Disability Standards in relation to access to premises stemmed from:
- recognition that the technical requirements of the BCA were not considered to meet the intent and objectives of the DDA; and
- the potential for inconsistencies between two legislative requirements in relation to access for people with disability to buildings, being the DDA and, through State and Territory building law, the BCA.
The ABCB was requested by the Australian Government to develop proposals for a revised BCA, to enable it to form the basis of draft Premises Standards. Once the Premises Standards had been formulated, the BCA would be amended so that the technical details of each document mirror each other. Therefore, compliance with State and Territory building law and the access provisions of the BCA would mean compliance with the Premises Standards and hence the DDA.
The ABCB established the Building Access Policy Committee (BAPC) to recommend changes to the BCA, to consult widely with industry and the community and to provide advice to the ABCB on access-related issues.
The Disability (Access to Premises - Buildings) Standards 2010
Through the BAPC and its Technical Working Group, draft Premises Standards were developed with wide stakeholder input to achieve a negotiated set of proposals for public comment in 2004.
A proposal was presented by the ABCB to the Government in mid 2005, followed by further advice on costs and benefits of the proposals in early 2006. A reference group to advise further on a range of unresolved matters was subsequently formed and provided its report to the Government in mid 2008.
On 2 December 2008, draft Disability (Access to Premises - Buildings) Standards, together with a number of associated documents, were tabled in the House of Representatives.
The Government referred the draft Premises Standards to the House of Representatives Standing Committee on Legal and Constitutional Affairs and asked the Committee to conduct consultations on the draft Premises Standards and to report to Parliament in the first half of 2009.
The Committee's report was tabled in the House of Representatives on 15 June 2009. A copy of the report can be accessed at: http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=laca/disabilitystandards/report.htm.
The Government tabled its response to the report and launched the Premises Standards on 15 March 2010.
The Premises Standards commenced operation on 1 May 2011, in line with the adoption by States and Territories of the 2011 edition of the BCA, which had been revised to align with the Access Code in the Premises Standards.
A copy of the Premises Standards and related documentation can be obtained from the website of the Attorney-General’s Department at www.ag.gov.au.
Throughout August and September 2010 the Australian Human Rights Commission (AHRC) and the ABCB delivered awareness seminars on the Premises Standards in all capital cities. A webcast of the seminar has been produced and is available here.
The ABCB has also released a training and awareness Resource Kit relating to the revised BCA provisions - Understanding the Disability Access Provisions.
Ongoing Review of the Premises Standards
Section 6.1 of the Premises Standards states the Minister for Innovation, Industry, Science and Research, in consultation with the Attorney-General, must commence a review of the effectiveness of the Standards within four years of the commencement of the Standards. The review must be completed within five years of commencement. Further reviews must be carried out every five years after the completion of the previous review.