Human Rights Commission: no reason to shield Qld from legal action on trains

By Stephen Easton

Monday March 5, 2018

The Australian Human Rights Commission is not convinced that it should give the Queensland government a pass for its new-generation trains, which fail to meet accessibility requirements under laws against discrimination.

A preliminary ruling issued on Friday suggests the commission sees no good reason to provide the state with broad protection from legal action over several accessibility failures at this stage. However, it is likely to extend one existing exemption that Queensland Rail has previously received in relation to assistance with boarding, to the new trains until 2020.

The government and other interested parties have until March 16 to submit arguments and views before the final ruling.

State Transport Minister Mark Bailey said the partially complete roll-out would continue and noted the AHRC was only considering “whether people can lodge a complaint or not” under the federal anti-discrimination legislation — and if they can, it could be costly.

The government says it would also be expensive to remove the trains from service while the issues are addressed. It has committed $150 million to a three-year program to fix the problems with the trains, which were commissioned in 2013 by the previous government.

That fact hasn’t stopped the opposition from criticising the Palaszczuk government over the procurement failure. Deputy opposition leader Tim Mander suggested three years in government was already plenty of time to fix the mistake that his team left behind. The AHRC takes a neutral line on the political blame game:

“It is not clear to the Commission why the Queensland Government procured non-compliant trains in 2013, or why the rectification work did not occur between procurement in 2013 and entry into passenger service in 2017.”

The Queensland anti-discrimination commissioner, Kevin Cocks, is not impressed. In January, he argued the exemptions should not be granted, as did nearly all of the submissions to the AHRC.

“It is a grave indictment on the state that a major public works project was procured with apparent disregard for the laws that prohibit discrimination and set out minimum standards for public transport accessibility,” he said.

Two of the laws in question — one federal, and one state — have been in effect since 1992, while additional federal regulations were enacted in the Disability Standards for Accessible Public Transport 10 years later.

Cocks said it was “reprehensible” that the original procurement of the “new-generation rolling stock” was allowed to proceed in 2013 without meeting long-standing accessibility requirements.

“And in further defiance and disregard for the law, the NGR trains have been put in use without any rectification work and without the benefit of an exemption granted by the Australian Human Rights Commission.”

The government essentially argues that at this point, “the balance of the public interest” favours keeping the trains in service. It is weighing up the costs of the rectification work, and the various costs of taking the trains out of service — including unspecified costs under a confidential public-private partnership deal — until they are fixed.

The AHRC draft ruling states “the Commission is not persuaded that the reasons advanced in favour of the exemption outweigh the discriminatory impact of the non-compliant trains on people with disability” which would mean people with disabilities could make complaints against the state government under the federal legislation.

Presumably, the state government is also factoring the potential costs of compensation into its calculations.

Cocks argued the government had not provided enough detailed information about the design, building, delivery and rectification work — partly because some information was labelled commercial-in-confidence — and has not been clear about exactly what it will do for people with disabilities in the meantime. He wants “alternative arrangements” and a compensation scheme.

“Everyone has the right to use public transport,” wrote the Queensland anti-discrimination commissioner.

“Given that non-compliant trains are in use, people with disabilities are already very likely to be experiencing discrimination. The impact on those people must be the primary consideration in resolving the current situation.”

Cocks and many others also argued the AHRC should not extend QR’s existing exemption related to boarding assistance to the new trains, because they are configured differently to the older trains and would rely more on platform staff.

“Many stations are not staffed, particularly those in outer urban areas or on weekends and public holidays,” he said. “Many platforms, even at peak hour times, do not have platform staff waiting for each and every train stopping at a station.”

It appears the AHRC does not agree with him on that point. The government explains its arrangements for assisted boarding and alighting, and its take on many other issues, in its February 9 response to the public submissions.

On behalf of the government, the Department of Transport and Main Roads and QR argue the new trains are “substantially accessible” to people with disabilities and maintain that, on balance, Queenslanders of all abilities would be best served by keeping them on the rails.

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