Access regulation – Radical antitheses

On this International Day of People with Disability, Dr Raelene West points out that access to the built environment is still problematic. Dr West is a Research Fellow at the University of Melbourne in the Melbourne Disability Institute. This article was originally published in Architecture Victoria Magazine edition 2, 2024.

If you have gone up to your local shops recently you would probably notice that about 1/3 of the shops still have steps at the front entrance and are therefore inaccessible to those using a wheelchair. These include retail outlets, restaurants and cafes, take away food outlets, and health and well-being shops. Steps at the front entrance of these shops also create difficulty for mums with prams and the elderly who utilise walkers - and despite many other restaurants and cafes having an accessible entrance with level entry and no steps, many do not have accessible amenities that someone in a wheelchair could utilise if they were having a meal there (something most able bodied people take for granted as part of their eating and dining experiences). So why is it that in Australia in 2024 we still don't have a fully universal accessible built environment of shops and public premises?

Partly it is a combination of historical factors where people with a disability were excluded from society - institutionalised and discriminated against based on their impairment. The built environment wasn't built for people with a disability because it wasn't presumed that they were a part of society or included in society. This exclusion was built on the concept of ableism, often preconditioned but sometimes based on unconscious bias, whereby ‘the abled’ hold attitudes and judgement that devalue and differentiate disability and where able-bodiedness is more ‘highly valued’ and ‘equated to normalcy’ (Campbell (2008:1). Since the 1980s in Australia, a lot of this discrimination, ableism and stigmatisation leading to exclusion has been unpacked and addressed and most people with a disability in Australia are now working towards living ‘normal’ lives filled with employment, education relationships, leisure and entertainment and general inclusion in our society.

However, the legislation related to achieving universal accessibility in Australia is weak, to the extent that accessibility in the public environment is only becoming accessible at a glacial pace. The Commonwealth Disability Discrimination Act (DDA Act) was passed in Australia in 1992 in recognition of these barriers of discrimination, stigma and ableism encountered by individuals with an impairment. The inception of the DDA established the principal legal mechanism whereby various forms of discrimination would begin to be addressed that would ensure the reduction and elimination of all forms of discrimination in Australia based on impairment.

In terms of building accessibility, the DDA obliged an individual or entity to lodge a discrimination complaint, In most cases, this took the path of conciliation with either the Equal Opportunity Commission (state level) or Human Rights Equal Opportunity Commission (federal level) before being taken to the High Court. It sought on a case-by-case basis to counter instances of discrimination and provide an outcome to reduce the discrimination. Although not implicitly stated in the DDA, the concept of ‘reasonable adjustment’ is implied whereby it is deemed necessary to demonstrate that where discrimination existed, a reasonable attempt is being made to eliminate and/or reduce these levels of discrimination.

A number of years after the inception of the DDA, it became apparent that the individual complaint process placed considerable burden on individuals with a disability that were required to make a complaint about each and every inaccessible premises, and then follow the complaint through to the high court for resolution. In an attempt to provide create more systemic change and lower the burden on the individual, the formulation of a set of DDA standards, which would be codified with the then Building Code of Australia, were implemented. These DDA standards would seek to identify the technical detail and regulatory mechanisms that could be used to effectively implement broad-based systemic change to reduce the discrimination of lack of accessibility. The implementation of these DDA standards would also seek to provide assurance for government and industry as to their obligations to legally meet the requirements of the DDA.

So in 2010, 18 years after the development of the DDA, the DDA Access to Premises were passed. This was an extremely positive step and achievement for the disability community and finally it was thought it would mean wide-scale and rapid change to inaccessibility of the built environment. However, the DDA Access to Premises Standards in the main, only address the construction of new premises. Only very weak guidelines are in place to address existing buildings that currently do not provide accessibility to their premises. A building must undergo a renovation of 50% or over before the premise owners are then required to renovate the building to accessible standards. If no renovations are conducted by a premise owner, then there is no legal requirement for them to make their premises accessible now or in the future. In real terms, this means that every shop or restaurant in Australia that currently has any step at the front entrance has no incentive or legal requirement to alter their premises to provide access features for people with impairment if no building works are undertaken.

Worsening the situation is the loophole where installation of access elements are avoided by businesses leasing premises who can claim that they are just doing a ‘fit-out’ not renovations to avoid enacting the access requirements of standards. Fit-outs do not require Council permits and/or a building approval and thus do not trigger implementation of access standards as ‘fit-outs’ are not included within the Premises Standards. Further, even if a premise does trigger the access standards they can claim unjustifiable hardship if they view the access provisions as being too costly or of too much hardship to install. In addition, rarely do restaurant, cafe` and deli premises have accessible amenities for people with impairment, amenities that the mainstream able-bodied population take for granted as a part of their dining out/lunching experience.

Owners of these inaccessible premises have had years to alter and modify their premises to be socially inclusive of all members of society and have not done so. Retailers continue to be able to trade despite this discriminatory attribute to their business. There is also no requirement for the owners to demonstrate that they will be improving access to their premises in the near future, and no incentives offered by any level for government to help owners address this discriminatory practice.

As such, 32 years after the implementation if the DDA, a significant proportion of the existing built environment in Australia in 2024 still does not have physical access to their premises. So next time you are up at your local shops have a look around and notice how many times you step up into a shop or restaurant or cafe, have a look around and think to yourself if I was out here with one of my friends in a wheelchair or with my partner with a pram or your aging parents using a walker, how difficult it would be to access many of these shops if at all. Australia, I think we can do access better and faster. 

*Campbell, F. (2008) “Refusing Able(Ness): A Preliminary Conversation about Ableism.” Journal of Media and Culture 11 (3). https://journal.mediaculture.org.au/index.php/mcjournal/article/view/46.