As discussed in Chapter 2, one of the goals of the Premises Standards is to harmonise the requirements of the Disability Discrimination Act with those of the Building Code.  However, the Premises Standards would not apply to all types of buildings regulated by the Building Code.  The Standards would not impose any requirements on Class 1a, Class 2 and Class 4 buildings.¹ In addition, the Premises Standards would not apply to Class 1b buildings with fewer than four rooms or dwellings,² places other than buildings, and fit out issues related to premises.  In each of these cases, the general antidiscrimination provisions of the Disability Discrimination Act would continue to be available to the extent to which they are relevant.³

A number of submitters to the inquiry argued that the scope of the Premises Standards should be broadened to cover a greater range of buildings and aspects of the built environment.  Particular focus was given to Class 1a (residential), Class 1b (bed and breakfast or holiday cottage), Class 2 (apartment) buildings, and to fit out issues.

Some submitters argued that the Premises Standards should impose obligations on a larger class of persons.  In particular, a number of submitters argued that access consultants should be explicitly included in the list of persons with responsibilities under the Standards.

Finally, a number of submitters argued that the Premises Standards should differentiate further between new and existing buildings.

Class 1a buildings are detached and semidetached residential buildings, such as houses, townhouses, and terrace housing.⁴ Most residential housing in Australia falls into this classification.  The Premises Standards would not apply to Class 1a buildings at all.  This is because private homes are not open to the public and thus do not come within the access to premises provisions of the Disability Discrimination Act.⁵

Some submissions to the inquiry stated that access to suitable and affordable housing is a significant problem for people with a disability.  For example, the Victorian Disability Advisory Council submitted that:

Housing is lagging behind the access we now expect in public buildings…Anecdotal evidence indicates that people with a disability often experience problems accessing housing, particularly in the private rental sector, due to the lack of appropriate housing and/or rejection by landlords.⁶

The Australian Network for Universal Housing Design emphasised that improving access to residential accommodation need not be onerous.  They argued that traditional building design could easily be altered to accommodate access,¹¹ and that universally designed homes may incorporate a range of low cost access measures to make the house more accessible.¹² The Victorian Council of Social Services suggested a minimum list of features to provide access to housing for most people which they argued ‘are low or no cost, largely unobtrusive, and could easily be incorporated into most common housing designs…’¹³

Unfortunately, because Class 1a buildings were not included in either of the drafts of the Premises Standards, the Regulation Impact Statements do not provide any estimates of the costs of providing accessibility or adaptability in these buildings.

Evidence provided to the Committee demonstrated that significant initiatives have already been taken at all levels of government to improve the provision of accessible housing.  The Queensland Government has developed a Smart and Sustainable Homes Program,¹⁴ and the Victorian Government has launched a Build for Life awareness campaign.¹⁵ The Commonwealth Department of Health and Ageing has produced guidelines and educational material in relation to accessible and adaptable housing,¹⁶ and one of the criteria the Australian Government will apply in assessment of social housing proposals for the Economic Stimulus Plan will be the adherence of the proposal to ‘universal design principles to facilitate better access for persons with disability and older persons’.¹⁷

In addition, evidence to the Committee suggested that the private sector has also displayed some interest in promoting greater accessibility for residential housing.¹⁸

The Australian Human Rights Commission acknowledged that access to housing was an important issue which needed to be addressed, but told the Committee that access to Class 1a buildings had never been part of the Premises Standards project, and that in their view the Premises Standards were not the appropriate instrument to address the problem.¹⁹ The Attorney-General’s Department agreed, and told the Committee that the Australian Government’s current focus was on providing access to accommodation provided as a service, rather than residential accommodation.²⁰

The Committee considers the adequate provision of accessible and adaptable Class 1a housing to be of vital importance to the well being, lifestyle, and dignity of people with a disability in Australia.  However, the Committee accepts that the Premises Standards are not the most appropriate instrument for improving the provision of accessible housing.

All levels of Government should continue to work towards greater provision of accessible, adaptable and visitable housing.  The Committee urges the Australian Government to continue working with the States and Territories, as well as with the private sector to develop planning policies and guidelines to encourage provision of adaptable or universally accessible housing.

Class 2 buildings are buildings containing two or more ‘sole-occupancy units’.  In general, this applies to blocks of residential apartments and flats but not hotels, motels or the like.  The Premises Standards would not apply to any part of Class 2 buildings.  However, the Disability Discrimination Act will arguably apply in some circumstances, and developers, owners and managers of Class 2 buildings may be potentially subject to complaints of unlawful discrimination.²¹

By contrast, the 2004 draft Premises Standards imposed accessibility requirements on Class 2 buldings, including access to and through a pedestrian entrance, to units on at least one floor, to certain common areas, and on any other floors served by an accessible ramp or lift.²² The 2004 Regulation Impact Statement estimated the cost of these requirements at $33 million per annum for new buildings (a 0.6 per cent cost increase over the costs of construction which would otherwise apply) and $25 million per annum for existing buildings (a 2.3 per cent cost increase).²³ This represented around 2.9–3.2 per cent of the total cost of the 2004 draft.  The 2008 Regulation Impact Statement estimates the total annual cost of the Premises Standards requirements at $620 million.  If the 2004 costings for Class 2 buildings continue to be valid, reinstatement of the 2004 proposal for Class 2 would therefore increase the total cost of the 2008 draft by 9.5 per cent.  The increase in the proportionate impact of Class 2 accessibility requirements on the overall costings is a result of the substantial reduction in costs made by other changes in the 2008 draft.²⁴ To offset these increased costs, it can be expected that there would be some additional benefits.  However, it is not possible to quantify the benefits of the provision of access to Class 2 buildings from the information provided in the 2004 Regulation Impact Statement.

At least 63 submitters to the inquiry covering a broad cross-section of interest groups argued that the decision to not apply the Premises Standards to Class 2 buildings should be reversed; most of these submitters considered that access to at least the common areas should be required.²⁵ Further, 16 submitters also recommended that a proportion of units in Class 2 buildings should be required to be universally accessible, adaptable or visitable.²⁶ The Property Council of Australia submitted that they supported the exclusion of Class 2 buildings from the scope of the Standards.²⁷

Evidence to the inquiry indicated that some developers have developed or are developing initiatives to provide accessibility in Class 2 buildings (including Lend Lease, Meriton and Stockland)²⁸ as have some industry bodies (including Smarta Housing, Landcom, the Housing Industry Association and the Property Council of Australia).²⁹ Despite these initiatives few Class 2 buildings provide adequate accessibility.  The ACT Government submitted that this was because of market failures in the building design and construction industries.³⁰

Submitters noted the benefits of the provision of accessible Class 2 accommodation.  The ACT Government argued that:
Failure to provide for reasonable disability access to class 2 buildings will deny people with disabilities the benefits derived from living in apartments, including—

• the benefits of proximity to community facilities and CBDs in many cities;

• lower purchase costs or rental costs than houses;

• not having to maintain grounds such as lawns, gardens and backyards;

• close integration with neighbours in adjacent apartments rather than the social isolation that living in a house can cause.³⁹

Submitters also argued that advantages from accessible design would flow to other members of the community, including parents with prams, removalists, maintenance staff who are required to lift heavy loads, and residents using shopping trolley and wheelie bags.⁴⁰

Submitters argued that some State, Territory and local governments already impose significant accessibility and adaptability requirements on Class 2 buildings.⁴¹ Local councils frequently lead the way.⁴² The Australian Network for Universal Housing Design submitted that:

In NSW, for example, access requirements for Class 2 buildings are often enforced via inclusion in a Local Government Development Control Plan’s or Local Environment Plan. In addition to access to the common areas, it is common that a certain percentage of units/apartments (between 10–25%) are also required to be ‘adaptable’ and comply with the requirements of AS4299 Adaptable housing.⁴³

However, reliance on local councils to take the lead on accessibility is not a complete solution.  Victorian local councils do not have the power to impose accessibility requirements unilaterally.⁴⁴ The Australian Network for Universal Housing Design also submitted that the existence of multiple regimes has led to undesirable consequences, including:

1. Significant variations in the level of access achieved between Class 2 buildings limiting the predictability of the access features for people with a disability and older people.

2. Poor design outcomes, as design, development and certifying professionals are required to continually investigate which access features apply in each situation rather then being able to rely on codified requirements.⁴⁵

Submitters noted that there are international examples of accessibility requirements being imposed on Class 2 buildings, including Canada, the United Kingdom, United States, and Norway.⁴⁶

There are a number of reasons to believe that the accessibility requirements of the 2004 draft would not have imposed an unreasonable burden on the developers of Class 2 buildings and bodies corporate.  As noted by the Australian Human Rights Commission, the requirement that access only be provided on floors with an accessible ramp or lift meant that there was:

a built in concession for small 2 and 3 storey blocks of ‘walk-up’ flats if there were no common use facilities on the upper floor. In this situation access would not be required to the upper floors.⁴⁷

In addition, the availability of the unjustifiable hardship exemption allowed for further concessions to be assessed on a case-by-case basis.⁴⁸ This would be particularly important in reducing the cost impact of requirements in existing Class 2 buildings.  Finally, equivalent requirements are already imposed by a number of jurisdictions around Australia without apparent negative effects on the building sector.

An issue which was frequently raised in relation to Class 2 buildings was the increasing use of these buildings as ‘serviced apartments’, that is, as short-term accommodation.⁴⁹  Unfortunately, the Building Code definition of Class 2 buildings does not distinguish between buildings used solely for private residential accommodation, those used for commercial serviced apartments, and those containing a mixture of the two.⁵⁰ Under the current proposal, no accessibility requirements would apply to these buildings even if used for commercial purposes.  If the Premises Standards were amended to require access to common areas of Class 2 buildings as proposed by many submitters, this would still not impose a requirement for the provision of accessible rooms (unlike in Class 3 buildings).⁵¹

Submissions from the hotel sector argued that investment in new hotel accommodation would be discouraged in favour of new investment in serviced apartments if access requirements for Class 2 buildings are not codified in the Premises Standards.⁵² In contrast, the Queensland Tourism Industry Council submitted that imposition of requirements on Class 2 buildings used for short stay accommodation would ‘seriously threaten the economic viability’ of tourism operators offering accommodation in this class of buildings.⁵³

Submitters suggested that the Building Code of Australia definition of Class 2 buildings should be clarified to address the use of Class 2 buildings for short-term accommodation.⁵⁴ Representatives of the Australian Building Codes Board explained that this issue has been considered, but it has not been possible to reach agreement on a definition of ‘serviced apartment’.⁵⁵ They argued that the current system would not be capable of policing changes of use to serviced apartments, because ‘we just do not have people on the ground that walk about knocking on people’s doors and asking them whether they own specific premises’.⁵⁶

A number of submitters noted that there is some dispute over the application of the Disability Discrimination Act to Class 2 buildings.  This is because the access to premises provisions of the Act only apply in areas ‘that the public or a section of the public is entitled or allowed to enter or use’.⁵⁷ The Attorney-General’s Department told the Committee that:

There is a question about the extent to which premises that are privately owned and occupied or rented long term are in fact accessible to the public in the relevant meaning of that term.⁵⁸

The Australian Human Rights Commission told the Committee that the 2004 draft had dealt with this uncertainty by providing that the Premises Standards requirements for Class 2 buildings only applied in buildings where one or more sole-occupancy units are made available for short term rent. However, the requirements incorporated into the Building Code would have applied to all Class 2 buildings.⁶⁴

The Committee agrees that there are good reasons for the Premises Standards to provide access to the common areas of Class 2 buildings.  First, despite some developer-led initiatives, the market has not responded appropriately to the needs of people with a disability or to the requirements of the Disability Discrimination Act, even where Class 2 buildings are primarily used for short-term accommodation.  As a consequence, people with a disability are excluded from an affordable accommodation option which might otherwise be well suited for their needs.  The complaints mechanism for the Disability Discrimination Act has clearly failed to promote cultural change in this area. 

Secondly, evidence presented to the Committee demonstrated that equivalent (or stronger) access requirements are already required in a large and growing number of areas throughout Australia, without apparent negative consequences for the property sector.  It would be desirable to build on these initiatives with a more consistent and generally applicable set of requirements. 

Thirdly, inclusion of requirements for Class 2 buildings would promote certainty for building developers that they would discharge their responsibilities under the Disability Discrimination Act if they comply with the Building Code. 

Finally, and most importantly, the Committee believes that the social and economic benefits of provision of access would be substantial for both people with a disability and other members of the community, and the costs (as estimated by the 2004 Regulation Impact Statement) relatively modest.  This is particularly the case given Australia’s rapidly ageing population.

Recommendation 2

The Committee recommends that the requirement for access to be provided to the common areas of Class 2 buildings, which was contained in the 2004 draft Premises Standards be included in the Premises Standards.

Class 1b buildings are, by-and-large, smaller buildings used for short-term accommodation, such as boarding or guest houses, bed‑and‑breakfasts and ‘eco lodges’.  Class 1b buildings can be either a single small building, or a number of dwellings situated on the one allotment.⁶⁵ The Premises Standards would impose accessibility requirements on Class 1b buildings with four or more bedrooms or dwellings.  These requirements would include access to and within at least one bedroom and to common areas, or where the Class 1b consists of four or more free-standing dwellings, to a specified ratio of those dwellings.⁶⁶

The 2004 draft Premises Standards differed from the Premises Standards by requiring access within Class 1b buildings with three or more rooms or dwellings.⁶⁷ The Regulation Impact Statement also explains that Class 1b buildings of less than three rooms would have been protected from a complaint under the Disability Discrimination Act, while under the 2008 Premises Standards, Class 1b buildings of less than four rooms are not protected.⁶⁸

Representatives of the Attorney-General’s Department told the Committee that the decision to move from a threshold of three rooms to one of four rooms for access to Class 1b buildings was the result of a compromise between cost and benefits, in the context of a failure of the disability and property sectors to agree on an appropriate threshold.⁶⁹

The 2004 and 2008 Regulation Impact Statements provide a number of case studies on the impact of the Premises Standards on the cost of construction and upgrade of Class 1b buildings.  A comparison of the estimates of the two Regulation Impact Statements is set out below.  As can be seen, the amendments made to the 2008 draft and changes in the Regulation Impact Statement methodology considerably reduce the costs imposed by the Premises Standards on both new and existing Class 1b buildings.⁷⁰ More importantly, it is clear that provision of access in new Class 1b buildings is significantly more cost-effective than upgrades to existing buildings.  Upgrades to existing Class 1b buildings would have some of the highest proportionate costs imposed by the Premises Standards on any building class.

Table 1: Comparison of 2004 and 2008 estimates of cost increases to upgrade and construction of Class 1b buildings as a consequence of the Premises Standards

Source: 2004 Regulation Impact Statement pp. 54, 57 and 2008 Regulation Impact Statement pp.61, 64

Many submitters argued that significant problems would be caused by the higher threshold of four bedrooms or dwellings adopted in the revised Premises Standards.  Submitters argued that the four bedroom threshold would mean that very few Class 1b buildings would be required to be accessible, and that this would perpetuate an undersupply of affordable holiday accommodation for people with a disability.⁷¹

The Australian Human Rights Commission submitted that:

earlier discussions with organisations representing B&B operators suggested that a concession for 1, 2 and 3 bedroom B&B's (i.e. making the trigger 4 bedrooms) would effectively exclude more than 60% of the industry from the need to provide any access. Conversely a concession for 1 and 2 bedroom B&B's (i.e. a trigger of three bedrooms) would result in protection for about 40% of the industry.⁷²

Submitters noted that the threshold would perpetuate uncertainty, as Class 1b buildings below the threshold would continue to have obligations under the general provisions of the Disability Discrimination Act.⁷³ In addition, the City of Sydney argued that provision of access would promote social inclusion, provide benefits to other sectors of the community, help to meet the goals of the UN Convention on the Rights of Persons with Disabilities, and promote tourism.⁷⁴

Mr John Moxon told the Committee of his personal difficulties in finding accessible accommodation in regional NSW:

Two weeks ago, I travelled through western New South Wales with my wife. We went to Kelso, Orange, Molong, Dubbo, Cobar, Lake Cargelligo and Forbes… I did not find one accessible bed and breakfast in any of those centres. I am not saying that there are not any, but I found none… So please do not try to convince me that we do not need more accessible accommodation—we do.⁷⁵

Many submitters accordingly argued that the Premises Standards should apply to a greater proportion of Class 1b buildings.  A small number of submitters argued that the Premises Standards should apply to all Class 1b buildings.⁷⁶ For example, the Spinal Injuries Association (Qld) argued that:

Class 1B cabins are commonly used for variously priced accommodation or unique natural settings accommodation. They tend to offer a service no different to a Class 3 building so should not be treated differently to a Class 3…In many regional and remote areas, these are often the ONLY form of accommodation.⁷⁷

A larger number of submitters argued that the threshold for compliance should be reduced to three rooms.⁷⁸ The Australian Human Rights Commission told the Committee:

…once you get above three bedrooms, you start to miss out on the commercial interests building eco-lodges, cabins et cetera for the tourist industry. It seems to the Commission that people with disabilities should not be excluded from utilising more than half of those facilities.⁷⁹

In addition, a number of submitters argued that while a concession should be maintained for existing small Class 1b buildings, all new and purpose-built Class 1bs should be required to be accessible.⁸⁰ For example, the Disability Council of NSW submitted that the same requirements for accessibility as imposed on Class 3 buildings should apply to new, purpose-built Class 1b buildings.⁸¹ The Australian Human Rights Commission submitted that there was less need for a concession for new buildings because ‘access could be addressed in the design phase of the development’,⁸² while the Australian Federation of Disability Organisations argued that new facilities ‘can more readily absorb the costs of providing accessibility’.⁸⁴

By contrast, the building industry raised significant concerns about the costs of extending accessibility requirements to Class 1b buildings, particularly existing buildings.  They argued that most bed and breakfasts are very small commercial operations,⁸⁴ and that:

To modify existing Class 1a buildings to comply with the new proposals for Class 1b would be out of the question for most of these people. …It is not too much to say that the imposition of the Disability Standards would drive most B&Bs and small guest houses out of business.⁸⁵

Bed and breakfasts, eco lodges and similar small accommodation providers are an affordable, popular and growing segment of the tourism sector.  It is therefore important that accessibility should be required in the greatest number of Class 1b buildings as possible.  However, the Committee recognises that many Class 1b buildings are run by small businesses with very limited resources.  It is clear that the proportional cost increases imposed by the Premises Standards are very substantial in existing buildings.  It is likely that in a large number of Class 1b buildings with fewer than four rooms that these costs would be substantial enough to justify a claim of unjustifiable hardship.  The Committee therefore considers that the current threshold of four bedrooms or dwellings for accessibility in existing buildings is appropriate.

However, the Regulation Impact Statements demonstrate that the increases in costs flowing from accessibility requirements in new Class 1b buildings are much more modest.  Furthermore, evidence to the Committee suggested that the current threshold may exclude 60 per cent of existing bed and breakfasts from the application of the Premises Standards.  The Committee considers that it is important to ensure that the proportion of accessible Class 1b accommodation increases from this rather low level into the future.  Moreover, it is not obvious why small Class 3 hotels of 1 to 3 rooms are required to be accessible, when newly built Class 1b bed and breakfast accommodation is not.  The Committee therefore concludes that it would be desirable to impose accessibility requirements on all new purpose-built Class 1b buildings, regardless of the number of rooms or dwellings they provide.  Such a provision should be consistent with the requirements which the Premises Standards would impose on all Class 3 buildings, including very small hotels.

The Committee notes that one difficulty in this area is the lack of concrete information on the numbers of Class 1b buildings which would be exempted by thresholds of three or four rooms.  It is therefore important that the five year review consider: (1) how many Class 1b buildings were exempted from compliance by the four room threshold, and how many were not; and, (2) whether the imposition of access requirements has had an effect on the conversion of existing buildings to Class 1b buildings or on the construction of new Class 1b accommodation.

Recommendation 3

The Committee recommends that requirements for accessibility be imposed on all new and purpose-built Class 1b buildings regardless of the number of bedrooms or dwellings they contain, but that the proposed four bedroom threshold be maintained for existing buildings.  The general provisions of the Disability Discrimination Act continue to be available for existing buildings with one to three bedrooms.

The Disability Discrimination Act adopts a very broad definition of premises.  Section 4 of the Act defines ‘premises’ to include:

• a structure, building, aircraft, vehicle or vessel; and

• a place (whether enclosed or built on or not); and

• a part of a premises (including premises of a kind referred to in paragraph (a) or (b)).

This definition is a ‘broad and inclusive’ one,⁹⁰ and may extend to all aspects of a building (including the fitout, furnishings and maintenance), other aspects of the built environment such as footpaths, and even to areas such as parklands.  All such premises have access requirements imposed on them by the Disability Discrimination Act if they are publicly available.⁹¹

The Building Code of Australia is intended to regulate the conditions under which an approval will be given for the construction or renovation of a building.  As a consequence, the Building Code applies to a much narrower set of circumstances than contemplated by the Premises Standards.  It does not apply to post-construction features of a building such as fitout or furnishing, or to the ongoing maintenance of the building.  It also does not apply to places other than buildings.

A number of submitters argued that fitout was an important area of discrimination which needs to be addressed.  Dr Max Murray submitted that by failing to provide requirements in respect of fitout, the Premises Standards would not provide complete certainty to building owners and managers as to their compliance with disability discrimination obligations.⁹²  The Australian Human Rights Commission submitted that:
People with a disability… regularly experience discrimination in relation to access to and use of premises arising from the fitout of buildings.
This might include accessing reception areas, using facilities such as drinking water fountains, information booths, queuing systems, retail change rooms and circulation space around products.⁹³

The Commission accepted that fitout was not within the scope of the current project, but recommended that the issue be progressed through an appropriate process following the finalisation of the Premises Standards.⁹⁴

Other submitters argued that the Premises Standards should impose obligations on places other than buildings, such as footpaths and parkland.⁹⁵

Commissioner Graeme Innes told the Committee that there were two main reasons why fitout and places other than buildings were not included in the Premises Standards:

The first is that this piece of work was done to achieve uniformity with the Building Code of Australia. So where the standards would go was prescribed by the narrower piece of regulation, which was the building code which applied to buildings in that stricter sense. We have all been aware that the broader fit-out within premises and outside, in parklands, is an area that the DDA [Disability Discrimination Act] covers and where there may well be a need for future regulation. The second reason was that the aim was to bite off a piece of work that could be chewed, and it has taken us 10 years to chew it.⁹⁶

Representatives of the Australian Building Codes Board agreed, and noted in addition that building fitout does not necessarily require building approval, and is likely to change throughout the life of the building.⁹⁷

Evidence presented to the Committee clearly demonstrates that full access to the built environment requires fitout to be accessible in addition to the building structure.  However, there are a number of challenges in regulating fitout through an instrument such as the Building Code of Australia.  In particular, compliance with the Building Code is primarily assessed before and at the end of the building process.  Fitout may not have been completed by the time of final building approval.  In addition, fitout may change over the life of a building without the need for a building approval.  The Committee therefore accepts that the Building Code of Australia and the proposed Premises Standards are not the best instrument for regulation of building fitout.  The Committee notes that it would remain possible to bring a complaint under the Disability Discrimination Act in relation to discriminatory aspects of building fitout.

The Committee believes that it would be appropriate to regulate building fitout through further disability standards under the Disability Discrimination Act.  Such standards should regulate critical aspects of fitout such as the design of service counters and other furniture, staff areas (such as tea rooms and kitchens), car park boom gates and ticket machines, and the design of any signage such as tenant’s boards which is not regulated by the Building Code.

Recommendation 4

The Committee recommends that consideration be given to the development of disability standards in relation to building fit out and places other than buildings.

The Premises Standards would require all new buildings to provide accessibility at the time of construction.  However, existing buildings would only be required to provide access at the time of building upgrades.  The Premises Standards would impose access requirements on the new parts and affected parts of existing buildings, at the time of an application for a building approval.⁹⁸ This ‘owner upgrade trigger’ means that the Premises Standards would not apply to any part of an existing building until a renovation or extension significant enough to require a building approval is⁹⁹ conducted.  Instead, the general access to premises and complaints provisions of the Disability Discrimination Act would continue to apply to any aspect of an existing building which has not been the subject of a building application under the Premises Standards.  Because the Premises Standards impose requirements only on the new or renovated area of a building and an accessible path of travel to that area, it may be many years until all aspects of existing buildings are required to be upgraded.

Evidence from submitters indicated that concerns were raised by the disability sector about the owner upgrade trigger during negotiations on the Premises Standards.  Submitters argued that the disability sector only agreed to this provision on assurances from industry that within five to seven years the:

natural building upgrade cycle would trigger the full application of the Premises Standards and thus the upgrade of the entrance and path of travel, toilets, lifts etc within an existing building by the building owner.¹⁰⁰

Some submitters suggested that more should be done to ensure that existing buildings must be upgraded to provide access.  One suggestion was that an additional trigger could apply access requirements ‘to the whole of the existing building if the extent of the new refurbishment equates to 50 per cent of the volume of the building over a three-year period.’¹⁰²  This was the proposed trigger under the 2004 draft of the Premises Standards.¹⁰³ However, in general, submitters accepted that the owner upgrade trigger should be adopted subject to examination at the five year review.¹⁰⁴

The Housing Industry Association also submitted that more could be done to provide certainty in relation to existing buildings that have not been the subject of a building approval.  They recommended:

that the Government commit to developing further Guidelines for existing buildings and the potential options for voluntary upgrading, situations which may give rise to mandatory upgrading and the ongoing liability of building owners for existing buildings that pre-date the Premises Standard.¹⁰⁵

Application of access requirements to the vast stock of existing buildings in Australia, most of which are owned privately, is a significant policy challenge.  Ideally, access to all buildings should be provided as soon as possible.  However, mandated access upgrades might impose significant costs on building owners, particularly if they are not contemplating any other building activity.  The Committee therefore believes that the ‘owner upgrade’ trigger for compliance with the Premises Standards is an appropriate one.  This is particularly so if it is indeed the case that the natural building upgrade cycle would mean that access requirements are applied to the majority of existing buildings within a reasonable time period.  Access to existing buildings which have not been upgraded should continue to be open to complaint under the Disability Discrimination Act.

Given the reservations of the disability sector as to whether the trigger would require rapid adoption of accessibility, the Committee considers that it would be appropriate for the five year review of the Premises Standards to consider what proportion of the existing building stock has been upgraded for access during the first five years of the operation of the Premises Standards.  The owner upgrade trigger should be reconsidered at the time of the five year review if it can be shown that it has not resulted in a significant proportion of existing buildings providing access.

The Premises Standards would apply somewhat differently to new and existing buildings.  The most important difference is that existing buildings would not be required to comply with the Premises Standards until a building approval is sought in respect of that building.  By contrast, all new buildings would be required to comply from the time of construction.  In addition, concessions are provided for certain lifts and accessible toilets in existing buildings, and in relation to the affected part of an existing building where the application for building approval is submitted by a lessee.¹⁰⁶

A number of submitters noted that provision of access is more difficult or expensive in existing buildings.¹⁰⁷ These arguments are supported by the Regulation Impact Statement, which estimates the proportional increases in costs caused by the Premises Standards as much greater for existing buildings than for new buildings.¹⁰⁸ The Regulation Impact Statement also makes it clear that the ratio of benefits to costs is much higher for new buildings because of the lower costs of construction.¹⁰⁹

By contrast, some submitters argued that greater requirements could be imposed on new buildings than on existing buildings.  For example, the Australian Human Rights Commission recommended that all new or purpose-built Class 1b buildings should be required to be accessible, regardless of the number of dwellings they contain.¹¹⁴

Representatives of the Attorney-General’s Department told the Committee that it would be technically possible to further differentiate between new and existing buildings in the Premises Standards.  However, they explained that the current provisions were a negotiated compromise between concerns at the cost of the 2004 draft Premises Standards and provision of adequate levels of access.  They argued that the Committee should give weight to the outcome of those negotiations.¹¹⁵

On balance, the Committee believes that the compromise which was struck in the formulation of the Premises Standards between providing the best possible access for people with a disability, controlling costs for upgrades of existing buildings, and ensuring consistency of regulation across all buildings is an appropriate one. 

The provision of access in new buildings is considerably less expensive than in existing buildings, because building design can address accessibility from the inception of the project.  Provision of access in new buildings would not require any adjustments to existing structural elements, and topographical difficulties can be designed around.

The primary focus of the Premises Standards is on the construction and physical fabric of a building.   Requirements for accessibility are assessed when building approval is given and at the completion of construction.  The Standards do not explicitly address any management practices or maintenance of the building which may occur after construction.  However, there may be scope under State and Territory planning laws for planning authorities to impose obligations in these areas after construction.

A number of submitters argued that building managers do not always maintain facilities in a usable state, and that the Premises Standards should impose obligations for maintenance on building owners.¹¹⁶ Maintenance issues which were noted in submissions included:

• use of accessible toilets as storage areas, or permanent locking of facilities;¹¹⁷

• poor maintenance of hearing loops;¹¹⁸

• inadequate policing of accessible car parking spaces;¹¹⁹

• theatres not reserving accessible seating for people with a disability;¹²⁰ and

• objects such as pot plants and rubbish bins obstructing access in lifts.¹²¹

Submitters to the inquiry told the Committee that it was not enough to ensure that a building provides access at the time of its construction.  Requirements for maintenance and management of the facilities are also required.¹²² Mr Placido Belardo told the Committee that many minor modifications over the life of a building might combine to prevent access, and that:
if you are solely focused on the time at which the building permit is issued, without a corresponding check to see whether subsequent issues would be addressed, then you could have a problem. ¹²³

Ms Nicole Lawder of the Deafness Forum of Australia told the Committee that a lack of standards in the area of maintenance mean that ‘it is usually up to a consumer, an individual, to identify that that is not working and to try to progress it’.¹²⁴

Submissions differed in their suggestions as to how maintenance requirements might be enforced.  The Deafness Forum of Australia suggested that requirements for maintenance might be linked to inspection of fire systems.¹²⁵ Spinal Cord Injuries Australia suggested that a guideline document for building managers could be developed and distributed at the time of building completion.¹²⁶ Mr Sean Lomas from that organisation also suggested that:
maybe there could be a change in the standards to recognise that, once a building is deemed compliant with the standards, that is recognised to be an ongoing commitment, and any failure to commit to that leaves you open to individual cases of discrimination.¹²⁷

Maintenance and management of accessible facilities is an important issue.  It would undermine the object and purpose of the Premises Standards to impose accessibility obligations on buildings at the time of their construction if building owners and managers did not maintain that accessibility throughout the life of the building. 

The Committee notes that there is not currently a comprehensive regime for monitoring ongoing compliance with the Building Code apart from certain safety provisions, and in particular the fire safety provisions.¹²⁸ Evidence presented to the Committee did not identify a mechanism capable of ensuring the comprehensive inspection of buildings needed to ensure that all of the accessible features of a building are maintained and managed adequately.

However, the Committee considers that it would be open for a person affected by poor management or maintenance practices to bring a complaint of unlawful discrimination under the Disability Discrimination Act.  The certainty provided by the Premises Standards increases the likelihood that such a complaint would be successful without the need to go to court because in most cases it would be clear that the access envisaged by the Premises Standards was not in fact being provided.

The Committee therefore considers that no provision in relation to ongoing management or maintenance of access needs to be included in the Premises Standards.  However, this should be reconsidered at the time of the five year review if widespread problems are evident.

The Premises Standards define three categories of person who would bear responsibilities under the Standards.  These are ‘building certifiers’, ‘building developers’, and ‘building managers’.  These terms are defined to capture those people with responsibility for or control over the building certification, the design and construction of the building, and the ongoing management of the building.¹²⁹

A number of submitters suggested that the Premises Standards should explicitly impose requirements on access consultants, as a category of professionals with a significant interest and expertise in the design of access to buildings.  For example, the Victorian Access Consultants Network argued that access consultants do not come within the scope of section 2.2 of the Standards, and that:

Given the important nature of Access Consultants professional expertise in access related to the built environment, and the increasing reliance on Access Consultants to provide this specialist professional advice, it is imperative that Access Consultants are included.¹³⁰

Some submitters also suggested that Access Panels set up under the Model Protocol should include an Association of Consultants in Access Australia accredited consultant as the ‘person skilled in access’.¹³¹

Access consultancy is a relatively new profession which has rapidly attained significant importance in providing access advice to developers and building approval authorities.  The profession has made considerable progress towards organising and self-regulating in an Association of Consultants in Access Australia.¹³²

Representatives of the Department of Innovation, Industry, Science and Research indicated that the examples of persons currently provided in the Standards were chosen because:

there is a degree of accreditation of professional bodies, and some degree of responsibility, in that the people who are signing off on these things will be the ones that, if there is a complaint lodged, will have to respond to those particular issues. ¹³³

Furthermore, representatives of the Attorney-General’s Department explained that:

Firstly, it is possible perhaps that an access consultant is included within 2.2(3) already, if they are indeed a person with responsibility for, or control over, the design or construction. The examples are only examples; they are not a list. Secondly, a person who is a building developer must be ‘a person with responsibility for, or control over, its design or construction’. I think it is an open question whether or not an access consultant would have that level of power within the arrangements for the construction of a building.¹³⁴

The Committee acknowledges that access consultants play an important and increasing role in advising on accessibility requirements for the built environment.  As a result, it is likely that some access consultants would have obligations under the Premises Standards because of the degree of responsibility or control that they exercise over building projects.

The Committee does not believe that it would be appropriate for the Standards to impose any requirements on access consultants in situations where they do not have responsibility or control.  In cases where the Standards have been breached, it is quite appropriate that liability should primarily fall on those most centrally involved in the commission of the breach.

The Committee therefore does not believe any change is necessary to further recognise access consultants in the Premises Standards.