BUS STOP INFRASTRUCTURE - DISABILITY DISCRIMINATION ACT 1992
LGA POSITION PAPER FEBRUARY 2007
Summary
At the LGA General Meeting of 31 March 2006 a resolution was passed supporting an
application on behalf of all Councils to the Human Rights Equal Opportunity Commission
(HREOC) seeking temporary exemption from Part 7 of the DDA standards (in relation to
Bus Shelters) on the basis of unjustifiable hardship. Refer item GM310306/7.7 of the
LGA General Meeting agenda.
Prior to making application to HREOC the LGA sought legal advice on the merits and/or
risks of such an application. The advice revealed:
 Councils have long been committed (almost a 'public policy' position) to ensuring
that appropriate public transport infrastructure is provided in their area. This
commitment has evolved through previous unrecorded joint funding agreements
between the Public Transport Division(PTD) and relevant Councils for provision
and ongoing maintenance of existing bus shelters. Councils have co-operated
with the PTD in this regard and have otherwise engaged with third parties (eg
Adshell) to ensure that users of public transport (vis buses) within the Council
area have access to a bus shelter.
 HREOC have made it clear successful claims against unjustifiable hardship
would be rare. This means HREOC would in all likely hood refuse the exemption
which would result in a costly and lengthy appeal.
 Non compliance with the standards will leave Local Government authorities liable
for a general breach of the Act . A breach will only come to the attention of
HROC by way of a complaint. It will not be an offence for a Council to have failed
to meet the standards.
The LGA President John Rich has raised the matter of bus shelters with the Minister for
Transport and the LGA secretariat have also initiated discussions with Ms Heather
Webster, Executive Director, PTD, DTE, regarding possible funding assistance.
The PTD have advised that more clarity in the DDA standards is required before further
discussion is undertaken regarding bus stop infrastructure; to ensure that the standards
are applied in a consistent manner and to provide a better understanding of levels of
funding assistance required.
The LGA President has written to the Federal Attorney General seeking to bring forward
the timing of the review of the DDA standards which is scheduled for the end of 2007.It
is understood the PTD have also written to the Federal Attorney General in this regard.
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While the review will provide opportunity for clarification of application of the transport
standards it will not resolve the current uncertainty regarding State and Local
Government responsibilities for existing and new bus stop infrastructure at PTD bus
routes.
Recommendation: That the LGA engage the State Government in a cooperative
strategy to;
1. Undertake discovery and audit of “historical” bus shelter contracts
between Councils and the PTD (or equivalent previous entity) to establish
contractual responsibilities of each party in relation to:
 existing bus shelters;
 existing bus stops; and
 infrastructure requirements following route changes.
2. Establish responsibilities of passenger transport service providers and
operators for existing and new bus stop infrastructure (bus shelters and
bus stops) and identification of DDA responsibilities in relation to the
infrastructure.
3. Establish agreement on the process the State Government will utilise to
engage Local Government prior to establishment of new and proposed
changes to PTD bus routes (particularly in relation to ascertaining the
extent of existing Council road infrastructure and community planning
issues).
4. Establish a suitable agreement addressing PTD bus stop infrastructure and
funding level provisions by each party (State and Local Government).
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BUS STOP INFRASTRUCTURE - DISABILITY DISCRIMINATION ACT 1992
LGA POSITION PAPER DECEMBER 2006
Background
The Federal Disability Discrimination Act 1992 (the Act) provides protection against
discrimination based on disability.
Among other things the Act requires that public places and facilities must be accessible
to people with disabilities. For Local Government this includes places and facilities such
as public buildings, footpaths and walkways and public transport infrastructure such as
bus shelters. A number of Councils have expressed concern regarding the costs
associated with complying with the new standards required of public transport ‘operators’
and ‘providers’ to upgrade transport services. This is particularly the case where the
Passenger Transport Division (PTD) suggests that Local Government is responsible for
both existing bus stop infrastructure and at new or relocated bus routes. Councils do not
generally agree with the position of PTD in this regard.
An “operator” is defined in the Act as a person or organisation that provides a public
transport service to the public or to sections of the community. A “provider” is defined as
a person or organisation that is responsible for the supply or maintenance of public
transport infrastructure.
Councils providing community bus services could be classified as both an operator and
a provider. Councils maintaining existing bus shelters, through previous unrecorded joint
funding agreements between the PTD may be defined as a “provider” in respect of those
specific bus shelters. This also applies in the instance where a Council might choose to
relocate a bus shelter resulting from a change of bus service by the public transport
provider.
Where a Council chooses to provide or maintain a bus shelter it is responsible for it
under DDA.
Survey of Councils has indicated that the majority of bus shelter infrastructure within
Council areas service PTD bus routes. Councils have advised that the cost of upgrading
bus shelters(PTD) to comply with the DDA new standards is in the order of $3,000 per
shelter. By way of example a medium sized metropolitan Council with 435 bus stops will
need $1.305 million to meet the full requirements of the Act.
Where Councils provide bus shelters, the Act requires that Councils must ensure that
25% of eligible bus stops comply with the relevant standards by 2007. Using the above
example the cost for a medium sized metropolitan Council could be in the order of
$327,000 to ensure compliance of 25% of bus shelters by 2007.
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All existing bus stops are required to comply with the Standards (i.e. must be upgraded
to compliance levels) by target dates specified as follows:
 31 December 2007 – 25% of bus stops;
 31 December 2012 – 55% of bus stops;
 31 December 2017 – 90% of bus stops;
 31 December 2022 – 100% of bus stops.
Responsibility for Bus Shelters and compliance with DDA
Councils have long been committed (almost a 'public policy' position) to ensuring that
appropriate public transport infrastructure is provided in their area. This commitment has
evolved through previous unrecorded joint funding agreements between the Public
Transport Division and relevant Councils for provision and ongoing maintenance of
existing bus shelters. Councils have co-operated with Public Transport Division (PTD) in
this regard and have otherwise engaged with third parties (eg Adshell) to ensure that
users of public transport (vis buses) within the Council area have access to a bus shelter
wherever possible, as protection both in terms of inclement weather conditions and as
shade from the sun and otherwise as a resting place where a seating facility is included.
The circumstances, therefore, are that the third party bus shelters are, the property of
those third parties (note, that they are constructed and maintained pursuant to Section
221 authorisations) and other bus shelters are, in absence of any agreement about the
ownership of the infrastructure, ordinarily regarded as being the property of the Council.
As such, the issue of compliance with the Standards in respect of bus shelters which are
other than the property of third parties, or expressly the property of the PTD, is a matter
for Councils.
Responsibility for Bus Stops and compliance with DDA
Responsibility for construction and maintenance of bus stops will depend on the
legislative power under which the bus stop was erected. In any given case, the provider
could be
1. a Council
2. the Minister for Transport; or
3. Trans Adelaide
If a particular bus stop was constructed under a provision of the Local Government Act
(eg the State has provided the funding and the Council has erected the bus stop) a
Council is likely to be responsible for the supply and maintenance of that bus stop.
If a particular bus stop was constructed under a provision of the Passenger Transport
Act 1994, the Minister administering that Act (Minister for Transport) will be responsible
for that bus stop.
If a particular bus stop was constructed under the Trans Adelaide(Corporate Structure)
Act 1998, Trans Adelaide will be responsible for that bus stop.
The low probability of success in establishing” unjustifiable hardship”
The Human Rights Commissioner responsible for disability discrimination, Mr Graeme
Innes has, in his publication of his views regarding bus stops on 2 June 2006, made it
clear that successful claims of unjustifiable hardship would be rare, but would ultimately
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be a matter for determination by a Court. This means that HREOC would, in all
likelihood, refuse the exemption, meaning a lengthy and costly appeal process through
the courts with no guarantee of success.
There are a few Court decisions on the concept of unjustifiable hardship, and they
generally indicate that each case must be addressed upon its individual facts. A
“blanket” exemption for all Local Government authorities on the ground of unjustifiable
hardship is therefore problematic – whilst some Councils might be placed in a dire
financial situation by compliance, others may not. The fact that Councils might have to
increase rates to comply, whilst unpalatable, will probably not amount to a finding of
undue hardship.
Applications for a temporary exemption from the Standards, or from some aspect of the
Standards (for example the requirements of the “compliance time frame”) are subject to
a public comment process through HREOC. This will mean that the particulars of the
LGA’s application will be released publicly to numerous disability action groups, and no
doubt, to the media, for comment. This may lead to comment being made, which could
reflect poorly on the LGA and its members. Similarly, HREOC will, given its charter and
its nature, give some weight to any comment made by such bodies through this public
process in deciding whether or not to grant an exemption. There are not many
foreseeable positive aspects to this process when considering making an application.
With regard to the advice received it is not considered appropriate for the LGA to
continue with an application, on behalf of all Council, to HREOC on the basis of
unjustifiable hardship
Financial liability for breaches.
It is unlawful to contravene the Standard (under Section 32 of the Act), and noncompliance with the Standard will leave Local Government authorities also liable for a
general breach of the Act (under Section 24). However, an alleged breach of the law will
only come to the attention of HREOC by way of a complaint lodged by an aggrieved
party with respect to a particular bus shelter or shelters.
Such a complaint would be made pursuant to Section 24 of the Act on the basis that a
disabled person was directly or indirectly discriminated against in the provision of
facilities and services at the bus shelter. A complaint alleges an “unlawful act” not an
offence. It will not be an offence for a Council to have failed to meet the Standards.
Recommendations
As a matter of law, legislative obligations will always override any contractual
arrangements and it appears that the arrangements between Councils and the PTD are
primarily, contractual.
Section 33.2 of the Disability Standards for Accessible Public Transport 2002, requires
"providers" to comply with the Standards regarding infrastructure in use for public
transport at the target dates set out in Schedule 1 to the Standards.
Therefore, if the bus shelters were to be removed by the first of those dates (31
December 2007) the compliance obligations and associated costs would not be issues
of concern for Councils. That being said, removal may not be a feasible consideration as
it would be in direct contradiction to the current public policy of Councils in relation to bus
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shelters. It may also give rise to disputes between Councils and the PTD where financial
contributions have been made by the PTD.
Options for Councils in this regard might be:
 Continue
to provide appropriate funding to maintain and relocate bus
shelters(DTD), including meeting DDA standards; or
 Continue to provide funding to maintain existing bus shelters(PTD), including
meeting DDA standards, but do not undertake placement of new shelters or
undertake replacement of bus shelters following changes to bus routes; or
 removal of all bus shelters (PTD) by Dec 07.
Given the obvious conflict removal of bus shelters by Councils would generate, it is
recommended that the LGA further engage the Minister for Transport and PTD in
negotiations to develop a cooperative strategy to identify relevant functional
responsibilities for provision and maintenance of bus shelter infrastructure, including
compliance with DDA transport standards.
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