An Opinion Piece by Bryce Tolliday, ACA Fellow
As an access consultant and an advocate, it really grates when building certifiers, service and product suppliers, designers and others, make observations about designs or make certain requests for designs to be changed, by saying what we as access consultants are proposing is not a mandatory requirement but rather a “nice to have” or a recommendation about addressing the DDA.
This is a nonsense and clearly shows a misunderstanding about our Laws which impact new building work, and/or how these Laws should be managed to ensure that new building work is not unlawful, and probably more importantly the value a good access consultant brings to the table.
A mandatory requirement is a condition, specification or criterion which must be met or fulfilled. It is non-negotiable and essential for a project to comply with or fulfil expected outcomes of laws or regulations. S.23 of the DDA says that it is unlawful on the grounds of a person’s disability for another person to discriminate or disadvantage a person with a disability in relations to the provision of access to premises. There is no part of this requirement which could be considered not a mandatory requirement.
On the other hand, a non-mandatory outcome is often referred to as a “nice to have” ie., it is desirable but not essential. Again, if I refer to s.23 of the DDA, there is nothing in the language of this section which could be construed as being “nice to have.”
I would argue that it is not possible to have a non-mandatory outcome or requirement under the DDA, only because the objects of the DDA are so broad. S.5 of the DDA say that the objects are to eliminate, as far as possible, discrimination (or disadvantage) on the grounds of disability in the area of access to premises or services.
Those who usually try to progress the non-mandatory argument are almost always people who believe the NCC is the primary building regulation in Australia. This is not the case. The NCC is a regulatory document which is enacted in each State or Territory by State/Territory Law, whereas the Disability Discrimination Act (Clth) 1992 is a Commonwealth Law and includes several Disability Standards which are also Commonwealth Law. The laws of the Commonwealth take precedent over all State Law. The Citta Hobart Pty Ltd and Anor v Cawthorn decision in the High Court confirmed this hierarchy.
The challenge many of the people who run the non-mandatory argument are unwilling or unable to confront, usually because of a lack of knowledge, is how do you deal with a Law which does not contain specific outcomes for specific design proposals (Performance Requirements and/or Deemed to Satisfy provisions such as occur in the NCC)? A Law which instead contains expectations that disadvantage will not occur in the way access to premises and services is provided, without being specific about what the disadvantage is, who might experience disadvantage; and why or how to best address this.
I guess one good question to ask the person who is trying to progress the non-mandatory argument would be, if you do not provide what is being proposed will anyone be disadvantaged who has a disability? If they cannot provide an evidence-based substantive response, which clearly demonstrates that disadvantage will not occur, then clearly what is being proposed by the access consultant is a mandatory requirement under the DDA.
Compliance with the NCC or the DDA are both mandatory. Both have Performance Based outcomes or expectations, and both reference various Australian Disability Standards. Unlike the NCC, the outcomes expected by the DDA can go beyond its own Disability Standards, requiring a much broader evaluation of the design proposals and an understanding of how the buildings could be used by people with a range of disabilities, many of which are not currently covered by AS1428. The NCC on the other hand, if the compliance model proposes a Deemed to Satisfy outcome, is thereby limited by AS1428 (and AS2890.6 and AS1735.12), and most likely will expose the building to non-compliance with the DDA. The main areas of risk are wayfinding, egress and building fitout.
As occurred in Ryan v SCHHS, the mandatory requirements determined by the Federal Court went well beyond anything in the NCC, the Premises Standards or AS1428, but clearly included addressing physical and sensory disadvantage imposed by the design. Matters such as defining shorelines using luminance contrast or address disabling glare are not covered by AS1428, but were in fact expected in other Design Guidelines (Queensland Health Cap Works Requirements) or International Standards such as ISO21542. Further, the provision of raised tactile and Braille signage throughout the entire hospital for all wayfinding signs, again was not covered by the NCC or AS1428.4.2 but was definitely an expected outcome in documents such as the QH Wayfinding Design Guideline and Cap Works Requirements and various other International Design Standards.
The value of a good access consultant is what they bring to the table to address mandatory requirements beyond the limited, but important, outcomes expected by Australian Standards and how to apply this knowledge to explain the risk, and then to address this risk under the DDA. A good access consultant will strongly advocate for an outcome which includes as many people as possible in the final built outcome.
This is the role of the access consultant.
On a closing note (and this is the advocate in me): the ABCB, through my experience with ME64, has always said they will not regulate internal building fitouts, as many buildings regulated by the NCC are not fitted out at the time of completion. I accept this as true for some buildings like office towers and maybe some shopping centres and/or factory buildings, but all other buildings usually are completed with a fitout. This is certainly true for hospitals, education buildings, hotels, accommodation buildings and the like. What would be wrong with broadening the requirements of the NCC (or the Premises Standards) to include building fitout and then when a building is not fitted out when final certification occurs, the access consultant could provide a Performance Solution, which in turn binds any future building fitout to minimum compliance requirements such as dealing with glare, shorelining design and raised tactile and Braille wayfinding solutions throughout? Just a thought!