The Premises Standards contain a number of exemptions and concessions.  Concessions are provided in relation to certain existing lifts, accessible sanitary compartments and to lessees. The Premises Standards also provide an ‘unjustifiable hardship’ concession which is available to building certifiers, developers and managers where strict compliance with the Premises Standards would impose an unreasonable burden. In addition, the Premises Standards preserve the exception which the Disability Discrimination Act provides in cases where a discriminatory act is done in direct compliance with certain other laws.¹

The exemptions and concessions in the Premises Standards are limited to matters regulated by the Premises Standards. They do not apply to general discrimination claims under the Disability Discrimination Act.

This chapter considers the key concessions, exemptions and exceptions raised during the inquiry.

The Committee shares these reservations and is not convinced that providing access based on building use is the most effective means of codifying building access obligations. The Committee also accepts that, without further research, the impact of different types of threshold is unknown. It is unclear how many buildings, or what type, would be exempt under a 150m2 threshold compared with a 200m2 or 300m2 threshold. For this reason, the Committee accepts the approach set out in the Premises Standards but has recommended, in Chapter 7, that this exemption be reconsidered as part of the five year review. The Committee considers that further research should be conducted before the review.

In addition to commenting on the size threshold, a number of submissions suggested that the content of the exemption is too broad as the upper storeys of small buildings are exempt from all accessibility requirements under the Premises Standards.²⁰ In practice, this means:

Small buildings would not be required to incorporate features such as handrails on ramps and stairways, slip resistant luminance strips on the nosing of steps, tactile ground surface indicators and Braille and tactile signage, unisex accessible toilet amenities and ambulant toilet amenities on floors other than the entrance level. All of these elements are vital to supporting the safe access and egress of people who have an ambulant disability and those who are blind or vision impaired.²¹

One of the key purposes of the Premises Standards is to ensure that reasonably achievable, equitable and cost effective access to buildings, and facilities and services within buildings, is provided for people with a disability. Accordingly, there is considerable merit to the suggestion that the upper storeys of small buildings should not be exempt from all accessibility measures. This is particularly so where the accessibility measures do not impose a significant cost burden.

The Committee considers that the upper storeys of small buildings should not be exempt from all accessibility requirements. Consideration should be given to imposing low cost accessibility requirements on the upper floors of buildings regardless of size. However, the cost implications of provision of lift access may be unreasonably high compared to the total building cost for small buildings.

Recommendation 5

The Committee recommends that the small building exemption for Class 5, 6, 7b or 8 buildings be limited to the provision of lift or ramp access between floors.

The justification for this exemption relies largely on the cost of providing access to upper floors of small buildings. However, there was some debate as to whether installing a lift is now less expensive. At the public hearing in Melbourne, the Committee was informed that:

From our understanding, this exemption is a result of the costs that might be borne by a building of a smaller size, like this one. However, in considering this, we now have AS1735 part 16 lifts, which means that lifts can be half their installation cost. We think that that particular concession should also be revisited.²²

The Australian Human Rights Commission added that the cost of providing access to a small building,²³ as a proportion of the upgrade, is less than previously estimated as a consequence of increased construction costs. The result is that the proportionate costs for access to the upper floor of a two storey 400m2 Class 5 or 6 building has dropped from 10 per cent to six or seven per cent.²⁴

A number of submitters pointed out that a blanket exemption for small buildings assumed that all small buildings would suffer the same financial hardship.²⁵ A better approach, they suggested, would be to remove the exemption and allow the unjustifiable hardship provision to be used:
The [Office of the Anti-Discrimination Commissioner] strongly supports a 5-year review of the Premises Standards, and that it specifically consider amending the small buildings concession to make it applicable only if unjustifiable hardship can also be established, or removing the small buildings concession so that only the unjustifiable hardship concession is available.²⁶

The Committee has considered the issues raised by the submissions in relation to the cost of providing access to upper floors of small buildings in light of the unjustifiable hardship provision. Given the information currently available and the significant cost identified by the Regulation Impact Statement for installing a lift, an exemption for lift access in small buildings seems appropriate. However, the Committee has recommended in Chapter 7, that this exemption should be revisited as part of the five year review to determine whether it is appropriate to exclude lift access on the basis of cost. The review should specifically consider whether it would be more appropriate to remove the blanket exemption and instead rely on the unjustifiable hardship provision.

In addition to the small building exemption, clause D3.4 of the Access Code provides a list of other areas not required to be accessible. These areas, listed in paragraphs D3.4(a), (b), (c) and (e), include:

• cleaners store rooms, commercial kitchens, staff serving areas in a bar, foundry rooms, cool rooms, fire lookouts, lighthouses, rigging lofts;²⁸

• areas only used for building services and maintenance;²⁸

• areas containing raw or hazardous materials;⁹ and

• upper floors of warehouses used wholly for wholesale and/or logistic distribution purposes.³⁰

Many submissions indicated that these exemptions are too broad and potentially exclude people with a disability from areas in which they can safely work. A number of submissions commented specifically on paragraph D3.4(d) which excludes ‘the upper floors of warehouses used solely for wholesale and or logistic/distribution purposes which are not accessible to the public’:³¹

There is absolutely no reason why the upper floors of warehouses should not be accessible. People with disabilities are quite capable of performing many duties associated with logistics and distribution of goods.³²

Indeed, Blythe–Sanderson Group pointed out that the areas excluded by this provision ‘constitute the main areas within which a person with a disability would be… likely to work in these types of buildings.’³³

The list of exempt areas in clause D3.4(a), (b), (c) and (e) was also the focus of criticism. Submissions suggested that this clause, in general, assumes people with a disability have limited abilities:
There seemed to be an underlying assumption about the sorts of jobs that people with a disability could and could not do in relation to parts of the buildings that did not need to be accessible.³⁴

The primary concern is that this clause reduces employment opportunities for people with a disability.³⁵ This concern is not limited to the list of exempt areas in paragraphs D3.4(a), (b), (c) and (e); it was also raised in relation to the small building exemption.³⁶

The Australian Building Codes Board informed the Committee that the intention of clause D3.4 was to provide more certainty:

In the [Building Code of Australia], the current provision states that access is not required to an area if access would be inappropriate because of the particular purpose for which the area is used. It is basically a subjective performance type statement. Through the process of reviewing those provisions, practitioners identified that it was very difficult to actually identify when that occurred, so they were looking for more certainty, and the list that we now have under D3.4 was a negotiated set of areas worked on through [Building Access Policy Committee] to identify those areas that were thought to be inappropriate, as the previous intent of the clause stated. Whether we have got them right or not is another matter, of course, but that was the outcome of those negotiations.³⁷

The Committee was also advised that clause D3.4 attempted to identify areas likely to be subjects of successful unjustifiable hardship claims. Representatives from the Attorney-General’s Department explained that clause D3.4 attempts:

… to pre-chart what might be the basis of an unjustifiable hardship claim. To the extent that you could argue that some of these areas could not be the subject of a successful claim or might be defended on the basis of unjustifiable hardship, the list provides, if you like, a pre-determination of that issue.³⁸

The Committee understands the desire for certainty.  In most instances, the Premises Standards have effectively codified ‘dignified access’ by providing exact measurements, size and dimensions to be incorporated into building design. With regard to paragraphs D3.4(a), (b), (c) and (e), however, the same clarity was not achieved.

The Committee realises that certain areas, by their nature, cannot be made accessible for people with a disability. However, the Committee considers that in the attempt to achieve certainty, the net of exemptions in clause D3.4 (a), (b), (c), (d) and (e) has been cast too widely.

Indeed, it is arguable that the list of areas exempt by paragraphs D3.4 (a), (b), (c) and (e) does not provide certainty because the list itself is not exhaustive. The use of the phrase ‘or the like’ where there is no common class in the list of disconnected examples does not provide certainty and invites litigation.

It is difficult to accept paragraphs D3.4(a), (b), (c), (d) and (e) in their current form when they are likely to reduce employment opportunities for people with a disability. This is contrary to the Australian Government’s Social Inclusion Agenda which includes a commitment to constructively address barriers that exclude Australians from community life.³⁹ As a part of the Social Inclusion Agenda, the Federal Government is developing a National Mental Health and Disability Employment Strategy. This strategy will form a key part of the Government’s response to increasing employment opportunities for people with a disability.⁴⁰

While recognising that some spaces cannot safely be made accessible, the Committee concludes that a more effective way to provide access to a range of buildings is to remove paragraphs D3.4(a), (b), (c), (d) and (e) and replace them with an exemption for areas which pose a clear health and safety risk for people with a disability. The unjustifiable hardship provision of the Premises Standards should continue to be available.

Recommendation 6

The Committee recommends that the exemptions in paragraphs D3.4 (a)–(e) be replaced with a general exemption for areas which pose a clear health and safety risk for people with a disability.

Perhaps the most important limitation on the application of the Premises Standards is the ‘unjustifiable hardship’ exception.⁴¹ This exception reflects an existing exception for unjustifiable hardship in the Disability Discrimination Act.⁴²

The Premises Standards provide that it is not unlawful to fail to comply with a requirement of the Standards to the extent that compliance would impose unjustifiable hardship on a person or organisation.⁴³ Unjustifiable hardship can only be assessed on a case-by-case basis and even where unjustifiable hardship is proven, compliance is still required to the maximum extent not involving unjustifiable hardship.⁴⁴

All relevant circumstances of the particular case must be taken into account in determining whether there is unjustifiable hardship. The Premises Standards sets out 16 factors which may be taken into account in making such a determination.⁴⁵

Submissions focused mainly on three of the sixteen factors: the cost involved in compliance in paragraph 4.1(3)(a); the reference to ‘regional or remote location’ in paragraph 4.1(3)(f) and the heritage provision in paragraph 4.1(3)(k).

In making a determination of unjustifiable hardship, paragraph 4.1(3)(a) allows ‘any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the requirement’ to be taken into account.

The Property Council of Australia, although not directly addressing this paragraph, noted that unjustifiable hardship is decided without an exact formula on a case-by-case basis. For this reason, the Property Council proposed a financial benchmark:  
Where the cost of access increases the cost of the retrofit or construction by 15 percent or more (including losses of rentable space), a project should automatically qualify for unjustifiable hardship.⁴⁶

The Australian Human Rights Commission responded to this proposal with concern, pointing out that the 15 per cent benchmark ‘would seriously oversimplify the way that unjustifiable hardship is assessed and the balancing that needs to be taken into account in order to achieve that assessment by a tribunal.’⁴⁷

The Committee understands the concern that there are no clear rules for determining unjustifiable hardship. However, it does not support the proposal for a benchmark which would automatically determine claims for unjustifiable hardship. This would undermine the intent of the unjustifiable hardship provision which is to only exempt compliance where it would be unjustifiable in the circumstances of the person concerned.

Subsection 4.1(3) provides that in determining whether compliance with a requirement of the Premises Standards would involve unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including, in paragraph (f):

Any exceptional technical factors (such as the effect of load bearing elements on the structural integrity of the building) or geographic factors (such as gradient, topography or regional or remote location), affecting a person or organisation’s ability to comply with the requirement.

The submissions indicated a concern that a claim of unjustifiable hardship could be made simply because a building was located in a regional or remote area. As well, submissions pointed out that the need for access is not any less in regional or remote areas:⁴⁸

Many older people and people with a disability live and reside in areas which would be deemed regional and/or remote. The necessity for access is therefore not reduced and could be seen to be more important in smaller towns and villages. Our concern is that this reference infers that a ‘blanket exemption’ applies to buildings and businesses in regional and remote areas.⁴⁹

At the roundtable in Melbourne, the Committee was told that the phrase ‘regional or remote location’ was not intended to provide a lower standard of accessibility in regional and remote Australia but rather, was intended to capture geographically specific problems, such as snow and ice:

For example, a ski lodge may have three entrances, but for seven months of the year two of them are only usable if you are coming in on skis. There were some questions about the number of entrances there needed to be on an accessible path of travel.⁵⁰

There was acknowledgement that this intention may not be adequately represented in paragraph 4.1(3)(f).⁵¹

The Committee considers that the intention of the provision is not clearly reflected in the use of the phrase ‘regional or remote location’. The conditions envisaged could be taken into account under ‘geographic factors’ without a specific reference to regional or remote areas. The Committee therefore recommends that the phrase ‘regional or remote location’ be removed from paragraph 4.1(3)(f).

Recommendation 7

The Committee recommends that the words ‘regional or remote location’ be deleted from paragraph 4.1(3)(f) of the Premises Standards.

In making a determination of unjustifiable hardship the Premises Standards provides that the heritage value of a building can be taken into account:

If detriment under paragraph (j) involves loss of heritage values – the extent to which relevant heritage value or features of the building are essential, and to what extent incidental, to the building.⁵²

In general, submitters questioned the perceived assumption that increasing access must necessarily result in a decrease in heritage value.⁵⁴ In response to this perceived assumption, Arts Access Australia referred the Committee to research which found that ‘heritage and disability legislation can co-exist such that physical access is provided for people with a disability while not impacting significantly on the heritage value of the venue.’⁵⁵

The Victorian Equal Opportunity and Human Rights Commission provided examples where a greater level of accessibility has been achieved in cities with heritage buildings much older than in Australia:
The one that springs to mind for me is London, where there are buildings which are much older than our heritage buildings and they have been made accessible in a dignified way without taking too much away from the actual physical appearance of heritage buildings.⁵⁶

There was concern that the heritage value provision of the unjustifiable hardship provision is too vague and requires clarification. The submission from Eric Martin and Associates asks who attributes ‘heritage value’:

Is a listing on a National, State/Territory or local statutory list required? Are non-statutory lists such as the National Trust of Australia or Professional Institutions considered acceptable?⁵⁷

There was a suggestion that to provide clarity, the provision should adopt the language used by the heritage sector itself:

Council would encourage the Committee to consider re-wording this clause to reflect the practice and terminology used by the Heritage sector in determining the appropriateness of alterations to heritage buildings. i.e. ‘whether the application of the Premises Standards requirements would impact on the elements of the buildings which have significant heritage value’.⁵⁸

The Heritage Council of New South Wales recommended that the provision be amended so that ‘detriment’ means:

• the potential loss of cultural significance of a heritage listed place and/or
• the potential loss of fabric of high heritage value, and/or
• An irreversible impact on the cultural significance.⁵⁹

In its current format, the heritage provision distinguishes between heritage features which are ‘essential’ and heritage features which are ‘incidental’. It is unclear how this distinction would work in practice. The Committee was informed that:
If the building is heritage because somebody lived in it, then it would be incidental. The building would essentially still be there. But if it is a heritage building because of its architectural and aesthetic value, then it is an essential feature of the building.⁶⁰

The Committee supports the inclusion of a heritage value provision in determinations of unjustifiable hardship. However, the Committee also agrees with the arguments raised by many submitters that providing access to heritage buildings does not have to diminish the heritage value. The Australian heritage industry could look overseas for examples of how a compromise might be reached.

The extent to which heritage value or features of the building would be diminished by providing access should be considered when determining whether there is unjustifiable hardship. However, there is evidently some concern with the wording of this provision and it does not seem to capture the intended policy. At the very least, it appears the meaning of ‘heritage value’ is unclear and that the phrase ‘to what extent incidental’ adds little meaning.

Recommendation 8

The Committee recommends that further consideration be given to clarifying the meaning of ‘heritage value’ in paragraph 4.1(3)(k) of the Premises Standards. Consideration should be given to ensuring consistency with the tests used in State and Territory legislation in relation to heritage. The Committee further recommends that the words ‘and to what extent incidental’ be deleted from paragraph 4.1(3)(k) of the Premises Standards.

The unjustifiable hardship provision in the 2004 Premises Standards varies considerably from the current provision. The main difference is the emphasis that the 2004 provision gives to the benefits of compliance in making a determination of unjustifiable hardship. Currently, paragraph 4.1(3)(i) provides that ‘benefits reasonably likely to accrue from compliance with these Standards, including benefits to people with a disability, to building users or to other affected persons, or detriment likely to result from non-compliance’ can be taken into account.

However, the 2004 provision for unjustifiable hardship included noticeably more detail, such as:

• The extent to which the building work concerned involves public funds, and consequently the extent to which it is expected that the building will be accessible to the public, including people with disabilities;⁶¹

• The extent to which the building is used, or is intended to be used for significant public purposes (such as electoral purposes or for holding public consultation by local government); and⁶²

• The extent to which the building has a significant community function (including serving the cultural, religious, artistic, sporting or educational needs of the community)…⁶³

The Committee received little comment on this issue but considers it appropriate that the hardship of compliance should be balanced against the benefits of compliance. The Committee recommends that the unjustifiable hardship provision be amended so that consideration of the benefits of compliance includes specific reference to the use of public funds, the use of the building for public purposes and the extent to which the building has a significant community function.

Recommendation 9

The Committee recommends:

•  that subsection 4.1(3) of the Premises Standards be amended to include consideration of the extent to which the building work concerned involves the use of public funds; and

• that paragraph 4.1(3)(i) be amended to include specific reference to the use of the building for public purposes and the extent to which the building has a significant community function.

Clause D3.3 of the Access Code specifies which parts of a building are required to be accessible. Paragraph D3.3(b) provides that every stairway and ramp must be accessible:

Except for ramps and stairways in areas exempted by clause D3.4, fire-isolated ramps and fire-isolated stairways…⁶⁴

The Disability Council NSW explained the effect of this exemption on fire stairs and ramps as follows:

The Committee heard that this paragraph was an attempt to clarify a provision of the Building Code which exempts stairways not used by the public:

The current building code provision talks about stairways that are not used by the public not being subject to the accessibility provisions. Once again, this was an attempt to provide some more certainty around that term because practitioners were unaware of what it meant. How do you determine whether a stairway in a building is used by the public or is there for other purposes? Some people had a view that fire-isolated stairs were not meant to be used by the public except in emergency egress circumstances, whereas a stair connecting two levels in the middle of a floor obviously would be used by the public in moving between those floors.⁶⁶

Many submissions have pointed out that fire-isolated ramps and stairways could still be subject to certain accessibility requirements for ambulant people with a disability.⁶⁷ This could include luminance contrast, tactile ground surface indicators and a second handrail.

The Committee is aware of concerns that tactile ground surface indicators could be hazardous in an emergency evacuation.⁶⁸ However, the Committee was also told that where tactile ground surface indicators have presented a trip hazard, evidence indicates that this is because they have not been installed according to specifications.⁶⁹

A second hand rail is not currently required in fire-isolated stairs by the Building Code. Imposing such a requirement would require many stairways and landings to be widened.⁷⁰

It seems incongruous that fire-isolated stairs and ramps are exempt from the accessibility features of the Premises Standards. Indeed, the Australian Human Rights Commission pointed out that:

…emergency egress would probably be a prime time where you would want the access features for ambulant people with disabilities, and perhaps others who are caused more stress or pressure by the need to evacuate promptly.⁷¹

There is value in clarifying the obligations of the current Access Code with respect to public use stairways. However, it is questionable whether it can be said that emergency stairs should be excluded from the phrase ‘public use’ as many people choose to use these stairways as an alternative to the lift or elevator.  Indeed, there are campaigns in many buildings encouraging people to take the stairs rather than the lift. There are also buildings where designated fire-isolated stairs are also the most frequently used stairwells in the building. For instance, many of the stairs in Parliament House are designated fire-isolated stairs but are used frequently by building occupants to move between floors.

The Committee recommends that the current exemption for fire-isolated stairs and ramps in paragraph D3.3(b) be amended to provide accessibility as far as practicable.

Recommendation 10

The Committee recommends that the current exemption for fire-isolated stairs and ramps in paragraph D3.3(b) be amended to provide accessibility as far as practicable, with particular consideration given to tactile ground surface indicators, luminance contrast stair nosings and second handrails.

The Premises Standards provide that where the applicant for building approval is a lessee and not the owner of a building there is no requirement for an upgrade of the path of travel from the entrance of the building to the new work.⁷² The concession is not available if the lessee occupies the whole building.⁷³

The Premises Standards guidelines state that ‘this concession recognises that, in most instances, the lessee is not responsible for common areas of the building and requiring them to upgrade the path of travel themselves would be unreasonable.’⁷⁴ The lessee would still be required to comply with the Premises Standards in relation to the new work which is under their control.

Although there was support for the concession in principle, there was some concern raised in submissions that building owners might use the lessee concession to avoid their responsibilities under the Premises Standards,

…the lessee concession may be used by some building owners who wish to avoid the Premises Standards ‘new building works’ trigger. Council are concerned that some building owners may seek to encourage lessees to submit applications for new building works on their behalf to avoid having to undertake more extensive access improvements to the building as required by the Premises Standard.⁷⁵

The Australian Building Codes Board was able to provide the Committee with further information relating to the number of building applications made by lessees rather than building owners. These figures indicate that one of the key assumptions in the analysis provided by the Regulation Impact Statement – that 50 percent of major upgrades on commercial buildings are tenant driven – was unable to be substantiated.⁷⁶ However the Australian Building Codes Board went on to note that this would have little impact on the cost-benefit analysis:

While a reduction to costs and benefits has been identified, these are only ‘delayed’, given the assumption that the public area of major commercial buildings will be upgraded over a 15 year cycle. Thus, when considered over this period, there is no net reduction in costs or benefits.⁷⁷

The Committee is of the view that section 4.3 provides an important concession for lessees, who should not be financially responsible for upgrading the path of travel between the entrance and the new work. However, further consideration should be given to whether building owners should take on this responsibility. The lessee concession should remain part of the Premises Standards but the Committee has recommended, in Chapter 7, that this exemption be reconsidered as part of the five year review.

The Committee considers that where existing lifts travelling more than 12 metres already meet the dimensions 1100mm by 1400mm, it would impose an unreasonable burden to require an upgrade to the 90th percentile dimensions as part of the upgrade of an existing building. The Committee supports the inclusion of the lift concession.

The Premises Standards adopt the 90th percentile dimensions for accessible toilets.⁸⁵ However, a concession is provided for existing buildings in respect of toilets which are compliant with the 80th percentile dimensions.⁸⁶ The Premises Standards Guidelines explain that this concession means:

Where there is an existing accessible toilet in an existing building that meets the layout requirements and floor dimension requirements of the 2001 edition of AS 1428.1 of 1600mm by 2000mm, there would be no need to increase the size of the facility to meet the new requirements.⁸⁷

The concession recognises that requiring toilets already compliant with the 80th percentile dimensions to upgrade to the 90th percentile dimensions would impose an unreasonable cost.⁸⁸

Only a handful of submissions commented on the toilet concession. Similar to the lift concession, both the Housing Industry Association and the Property Council of Australia support the inclusion of the toilet concession.⁸⁹ The Property Council of Australia submission goes on to note their opposition to the use of 90th percentile dimensions elsewhere in the Premises Standards.⁹⁰

The submission from Mr Robert Knott noted that the provision provided for dimensions less than the 90th percentile, which ‘was considered to be the objective of the [Disability Discrimination Act].’⁹¹ The Disability Discrimination Legal Service support the concession but recommended the following qualification:
If the new building works would affect an existing toilet facility, then the Standards should apply; and
In any other case, the permit application should be accompanied by  a costs estimate to support any claim of unjustifiable hardship (instead of the unreasonable costs of complying with the Premises Standards).⁹²

The Committee considers that where existing toilets already meet the dimension requirements of the 2001 edition of AS 1428.1 of 1600mm by 2000mm, it would impose an unreasonable burden to require an upgrade to the 90th percentile dimensions. The Committee supports the inclusion of the toilet concession in its current format.

As discussed in Chapter 2, compliance with the requirements of the Premises Standards would provide certainty to building developers, owners and managers that they would not be subject to a successful discrimination complaint in relation to the matters covered by the Premises Standards.

Section 34 of the Disability Discrimination Act provides that if a person acts in compliance with a disability standard the unlawful discrimination provisions contained in Part 2 of the Disability Discrimination Act do not apply.

This general rule also applies with respect to the concessions, exemptions and exceptions in the sense that these buildings are acting in compliance with the Premises Standards where the Premises Standards explicitly states that there is no requirement to provide access. As a result, successful complaints, where access has not been provided in accordance with the concessions or exemptions provided in the Premises Standards, are unlikely.

There is, however, some question as to how section 24 of the Disability Discrimination Act will interact with the Premises Standards. Section 24 of the Disability Discrimination Act provides that it is unlawful for a person who provides goods or services, or makes facilities available, to discriminate against a person with a disability.⁹³ The Australian Human Rights Commission suggested that:

If a dentist, a solicitor or a doctor is providing a service in the upper level of a small building, there will still be a basis for a complaint against the provision of that service, which is not to do with the building; it is to do with the provision of the service. It is not clear how that will play out, but I cannot see that the standard will prevent that section applying.

The Attorney-General’s Department reiterated that ‘there was some doubt on how all that will play out’:

because the provision in the Disability Discrimination Act that empowers a standard—that makes a standard as forceful as it is—provides that, if a particular act is done in direct compliance with a standard, then, insofar as that act is concerned, it is completely immune from any of the operative provisions in part II of the Disability Discrimination Act. So it is not only okay in terms of access to premises but it is okay in terms of any of the requirements under part II of the act. So it will become a question of whether or not the service provision falls within the particular act that we are looking at… unknown70unknown1….So if access is covered in the service provision, and we purport to cover access in this standard, then that will provide complete immunity, even to a complaint made under the service provision part of the DDA.⁹⁴

Finally, as mentioned at the start of this chapter, the exemptions and concessions in the Premises Standards are limited to the application of the Premises Standards and are not applicable in general discrimination claims under the Disability Discrimination Act. Complaints can still be made under section 23 of the Disability Discrimination Act in relation to access to buildings outside the scope of the Premises Standards; buildings within the scope of the Premises Standards but where the application of the Premises Standards has not yet been triggered; and, matters outside the scope of the Premises Standards, such as fitout and places other than buildings.

The Committee recognises the importance of the exceptions, exemptions and concessions in reducing the cost implications of the Premises Standards. Notwithstanding this, the Committee has recommended that the exemption, exception or concession be narrowed for certain provisions. In recommending changes to these provisions in this chapter, the Committee has been careful to enhance accessibility without creating a significant increase in costs.

Section 24(1) of the Disability Discrimination Act 1992 (Cth) states that:

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discrimination against another person on the ground of the other person’s disability or a disability of any of that other person’s associates.