Commonwealth

One of the most significant documents that has been introduced by the Commonwealth Government is the Disability Access to Premises Standards requiring in principle access to:

• 1. Accessible paths of travel to the main door or doors
• 2. Car Parks
• 3. Accessible paths inside the building to all services and facilities
• 4. Doorways
• 5. Toilets
• 6. Goods, services and facilities

*There are a number of reasons why this is significant.

First, the guiding principles of the Premises Standards are the objects of the Disability Discrimination Act 1992 (Cth) (DDA), which are:

• to eliminate, as far as possible, discrimination against persons on the basis of their disabilities in various areas, and in particular access to premises, work, accommodation and the provision of facilities, services and land;

• to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

• to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

Second, the purpose of the Premises Standards is:

• to ensure that dignified, equitable, cost-effective and reasonably achievable access to buildings, and facilities and services within buildings, is provided for people with disability, and

• to give certainty to building certifiers, developers and managers that if the Standards are complied with they cannot be subject to a successful complaint under the DDA in relation to those matters covered by the Premises Standards.

Third, it is unlawful to contravene the Premises Standards.

Fourth, the Premises Standards specify how the objects of the DDA are to be achieved in the provision of accessible buildings.

Finally, the Premises Standards prescribe national requirements for new buildings and where new building work is being undertaken in existing buildings in order to comply with the DDA in the areas and for the buildings covered by these Standards.

There is no doubt that the introduction of the Premises Standards will lead to widespread and important improvements in the accessibility and safety of all new and upgraded public buildings in Australia.

These changes will improve the opportunities for people with disability to participate in and contribute to the economic, cultural, social and political life of our community as equal citizens.

The changes will also assist in creating a more sustainable built environment capable of responding to our changing circumstances and our family and community needs.

All of us will benefit from these changes as our individual capacity changes over time.

The changes will also require the development of new skills, knowledge and approaches from those in the building industry including developers, designers and architects, builders, project managers, certifiers and building operators.

The implementation of the Premises Standards, and corresponding changes to the Building Code of Australia, will inevitably raise some questions and result in some challenges. A review of the Premises Standards must start by 1 May 2015 and be completed by 1 May 2016 and this will provide us with an early opportunity to address any issues that arise.

In the meantime this Guideline will be updated from time to time as experience in implementation and interpretation develops.

It is important to note that complying with the Premises Standards does not mean those responsible for buildings are fulfilling all their responsibilities in relation to possible discrimination under the DDA. Another article identifies a number of areas where complaints of discrimination may still be made in relation to the use of buildings even if the Premises Standards has been complied with.

*Extracted from the Human Rights Commission's Guidelines on the Application of the Premises Standards.

For further information about how to better understand the application and content of the Premises Standards, please see the Australian Human Rights Commission’s publication Guideline on the Application of the Premises Standards which can be found at http://www.humanrights.gov.au/disability_rights/standards/PSguide.html

To obtain a copy of the Premises Standards, a copy can be downloaded at http://www.comlaw.gov.au/Details/F2010L00668

Technical compliance questions can be directed to suitably qualified and experienced professionals in the design, construction and certification area such as an architect, building surveyor or Local Government Building Certifier. State and territory building control administration bodies may be able to provide assistance with technical compliance questions.

This Federal Legislation can be reviewed at https://www.comlaw.gov.au/

From 1 May 2011, any new building open to the public, or existing buildings undergoing significant renovation, are required to comply with the Disability (Access to Premises - Buildings Standards 2010. The Standards clarify how to ensure buildings are accessible to people with disability and meet the requirements of discrimination law. 

Over time, the Premises Standards will ensure that buildings in Australia become more accessible, and more useful to an ageing population. More accessible buildings will assist in achieving equal participation for people with disability in employment, education, access to services, and other areas of participation in economic, social and cultural life.

The Premises Standards contain an Access Code which has been fully incorporated into the National Construction Code [NCC]. There are exceptions identified in the  Premises Standards which are not recorded in the NCC; and, the Australian Human Rights Commission have developed guidelines to assist in the effective interpretation of the requirements to minimise discrimination, whilst not introducing unreasonable hardship on property owners and developers.

This is a complex area of knowledge that requires a full appreciation of the context for its effective application to remove the barriers to access for people who live with disabilities.

Access to private residences (Class 1a buildings) and the accessibility of the internal parts of flats or apartments (Class 2 buildings) are generally not subject to the DDA and are therefore not addressed by the Premises Standards.

Those responsible for private residences, however, are encouraged to consider the design guidelines issued by Livable Housing Australia www.livablehousingaustralia.org.au/

Be warned that State Legislation is in place which, in NSW for instance, imposes obligations on developers to provide diversity including Adaptable Housing and Livable Housing.

Section 23 Access to premises of the DDA refers to non-discriminatory access to and use of premises and covers more than just the construction of buildings used by the public. Section 4 of the DDA defines ‘premises’ as follows:

 Premises includes:

1. a structure, building, aircraft, vehicle or vessel; and
2. a place (whether enclosed or built on or not); and
3. a part of premises (including premises of a kind mentioned in paragraph (a) or (b)).

This definition of premises extends well beyond the scope of the BCA, which is primarily concerned with the construction and safety of buildings. The DDA definition of premises includes areas such as parkland, recreation area, playgrounds, transport vehicles and could apply to non-building elements such as furniture, fixtures and fittings.[1]

While the Premises Standards could address a broader range of access issues in the built environment, at this stage they only apply to public buildings of the type covered by the building classifications within the BCA and only to new buildings and existing buildings that undergo building work that involves extensions to, or modifications of the building where a building or construction approval is required.

This means that there are a number of situations where the Premises Standards are either not triggered or do not apply, including:

• Existing buildings – those buildings that existed before the Premises Standards came into force (or where an application for building/construction approval was sought before the Premises Standards came into force) and are not undergoing any building work.

• Fitout features of a building for which building approval is generally not required (in some states this may be exempt development) – this might include reception desks, drink fountains, removable workstation partitions, change rooms in clothes shops, moveable furniture, fixtures and fittings.

• Some wayfinding features of buildings not covered by the signage requirements of the Premises Standards – for example tenants’ boards, room identification, directions to key building facilities or features.

• Some short-term holiday accommodation buildings such as those bed and breakfast facilities or holiday cabins that are specifically excluded from the Premises Standards (see discussion under Part D3 of the Access Code below).

• Public footpaths, parks, recreation areas, transport conveyances – those parts of the built environment that are not covered by the Premises Standards.

The Premises Standards also do not cover possible discrimination by staff or building operators in their interactions with people with disability using a building.

In all these situations if a person with disability experiences discrimination because the building or feature is not accessible, or because of discriminatory treatment, a complaint can be made directly under the provisions of the DDA.

So, for example, it will continue to be possible for a person with disability to complain about access to a local shop or hotel that was built before the Premises Standards commenced, about the inaccessibility of certain fixtures and fittings or about the inaccessibility of directional information not covered by the Premises Standards.