It could be assumed that this is a relatively simple question; however, the history and evolution of the relevant legislative requirements has precluded a simple answer.
The main object of the Disability Discrimination Act (DDA) (1992) is to eliminate discrimination as far as possible across a number of areas, including education, employment and of course buildings. Any premises that allow for public access must also provide suitable access to people with disabilities.
A standard under the DDA was implemented in 2010, the Disability (Access to Premises – Buildings) Standards (2010), which intends to codify the requirements for access to people with a disability under the DDA. One of its main objectives is to provide certainty to the construction industry that their responsibilities under the DDA will be met if the requirements of this standard are satisfied. In 2011, the Access Code within the Access to Premises standard was essentially reflected by section D3 of the Building Code of Australia (BCA).
Under this standard and the BCA, all ‘new parts’, extended or refurbished, of existing buildings as well as ‘affected parts’ require access. Affected parts of buildings are defined as the principal entry of an existing building that contains a new part as well as the path of travel from the entry to the new part. ‘Affected parts’ are also required to provide access in accordance with the Standard and the BCA.
In the interest of reducing the cost of implementing access in existing buildings, a number of concessions have been included in the Access to Premises Standard. The concessions include:
- A lessee concession – building work by a lessee to a new part of the building will not see the “affected parts” requiring access under the standard. This concession does not apply where the lessee is the sole lessee to the building;
- A lift concession – an existing lift within a ‘new part’ or “affected part” of a building which travels more than 12 metres, will not require modifications to meet the increased internal car floor space required (i.e. 1,400 millimetres by 1,600 millimetres);
- A toilet concession – existing accessible sanitary facilities and compartments within a new or affected part of an existing building will not require modifications where it meets the requirements of the superseded AS 1428 Part 1 (2001).
Even though significant measures have been taken to harmonise the requirements of the Access to Premises Standard and the BCA, the BCA (2013) does not cite these concessions in any way. For the most part, however, these concessions have been included in the Building Regulations applicable to each state and territory.
The requirements of the Access to Premises Standard and the BCA are generally triggered by the need to obtain a building permit for works to an existing building and are assessed by a municipal or private building surveyor.
Further to this, however, the DDA also relies on a complaint-based system where a complainant could be a person with a disability or their associate. Complaints would normally be initially lodged with and mediated by the Australian Human Rights Commission along with the building owner, manager, etc. Where a suitable resolution cannot be reached, complaints under the DDA do have the capacity to escalate to proceedings within a federal court.
It should be noted that a complaint under the DDA can be made at any time and even though meeting the requirements of the aforementioned standards and codes may provide some certainty in defending such a complaint with regard to base build elements, there are some omissions in these documents which could also lead to possible discrimination. Some omitted items include furniture and fitments, directional signage and way-finding, lighting levels and lighting design, and emergency evacuation for people with disabilities.
An accredited access consultant can perform an access audit to identify and highlight potential areas of discrimination and provide advice in implementing sensible and cost effective measures to mitigate these.
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