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Embracing inclusive design beyond the legal minimum: A case for making Australia more accessible for all – Construction & Planning

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A tour of Australia’s urban streetscapes reveals a
patchwork of construction zones, closed footpaths and, newly,
chaotic e-scooter parking. Minor inconveniences of time and
distance to some, these haphazard additions to our everyday
movement offer an insight into how people without two steady legs
and free hands constantly manoeuvre streets, train stations and

Let’s reconsider accessibility of our public places

With Australia’s public and social infrastructure being
revitalised by massive government spending, there exists an
opportunity to reconsider the traditional concepts of
accessibility. These standards are based on ageing legislation and
historical understandings of movement and accessibility of

Why does this matter?

Disability is a common experience, with the Australian Bureau of
Statistics recording in 2018 that 17.7% of the population live with
some form of disability. Facilitating, welcoming, and celebrating
the role of people with disabilities, chronic diseases and mobility
requirements in our society is an essential part of building a
stronger social fabric.

Those working to deliver infrastructure, housing and other
community projects must keep the target of accessibility-for-all in

Cawthorn’s loss in the High Court of Australia

A recent High Court decision illustrates the legal-minimums are
insufficient at encouraging and welcoming all members of our
community into public places. Further, inconsistencies between
Federal and State law can undermine the efficacy of state tribunals
in determining discrimination.

Earlier this year, the full bench of the High Court of Australia
found unilaterally in favour of developer Citta Hobart Pty Ltd and
Parliament Square Hobart Landowner Pty Ltd
(Appellants) and against disability advocate David
Cawthorn (Cawthorn).

The Appellants were the developer and landowner, respectively,
of a development known as Parliament Square at the rear of Hobart
Parliament House in Hobart. Cawthorn, a paraplegic who relied on a
wheelchair for mobility, brought a claim of discrimination against
the Appellants under the Anti-Discrimination Act 1998
(Tas) (Tasmanian Act).

Access to Parliament Square from Hobart’s waterfront
precinct requires a 35 metre uphill push for people using
wheelchairs and prams. One of Parliament Square’s three
entrances, is only accessible by stairs.

Cawthorn’s complaint was referred to Tasmania’s
Anti-Discrimination Tribunal, which dismissed his claim. The
Appellants argued that they had complied with the relevant
Commonwealth legislation (the Disability Discrimination Act
(Cth) (Commonwealth Act)), and that the
Tasmanian Act (which provides broader protections to people with
disabilities) was inoperative under s 109 of the Australian
Constitution because it was inconsistent with the Commonwealth

After losing an appeal in the Tasmanian Supreme Court, the
Appellants appealed to the High Court, who only agreed to hear the
case on the basis that the Appellants would not seek costs if they
won. All seven Justices allowed the Appellant’s appeal and
reinstated the original decision of the Tribunal.

What are the legal requirements when it comes to designing
access to buildings?

For builders, architects and planners, there are legislative
requirements mandating access requirements.

Federally, the main requirements for disability access are found
in the Disability (Access to Premises – Buildings) Standards
, made under the Federal Disability Discrimination Act
. These standards apply to all new building projects in
which an application for construction approval is required to be
made to the relevant state authority. They include minimum
requirements, for example, the provision of well-lit ‘exit’
signs in buildings.

There are not, however, specific statutes or regulations
containing accessibility requirements. While each State and
Territory has its own general disability legislation, these do not
impose direct requirements for premises. For example,
Victoria’s Disability Act 2006, only imposes
requirements on the premises of disability service providers.

Instead, legislation in each jurisdiction requires service
providers to avoid discriminating against people with disability,
and this legal ‘bare minimum’ is often satisfied by
providing an alternative (and most often clunky), accessible route
to obtain a service.

Whether this standard remains fit for purpose is up for debate.
The Victorian Government is currently circulating exposure drafts
for the Disability Inclusion Bill 2022, which will create
a general duty for public service entities to promote and advance
disability inclusion in society.

The value of ‘universal design’

Public spaces shouldn’t just be accessible to all;
accessibility by all should be encouraged at public spaces.

‘Universal design’ offers a potential solution, and
originates in a school of architectural thought which aims to
maximise the utility and convenience of the built environment
equally for all users. It differs from ‘accessible design’
by delivering a unified user experience, irrespective of whether a
given person has a disability.

This approach is built on a recognition that accessible design
features are often useful to all, and in its implementation, it
avoids making visual distinctions between different users on the
basis of their abilities. The stand-alone wheelchair and pram
entrance, a hallmark of accessible design thinking, becomes the
main entrance in a design which embraces the universal

In the absence of universal legislation, it is essential the
community considers and embraces empathic and universal design
thinking, to welcome and encourage all of us to access and freely
move around our public spaces.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

    Lawyers Weekly
Law firm of the year

Employer of Choice for Gender Equality

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