Home Insights Embracing inclusive design beyond the legal minimum: a case for making Australia more accessible

Embracing inclusive design beyond the legal minimum: a case for making Australia more accessible

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 buildings.

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 society. 

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 mind.

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 1992 (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 Act.  

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 2010, made under the Federal Disability Discrimination Act 1992. 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 approach.

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.



Real Estate Construction, Major Projects and Infrastructure

This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.