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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-07-27 Daily Xml
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DEVELOPMENT (BUILDING RULES CONSENT—DISABILITY ACCESS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 April 2011.)

Mr GRIFFITHS (Goyder) (17:16): I indicate that I will be the lead speaker for the opposition on this bill, and quite possibly the only speaker, so we should not take very long. I indicate from the start that the opposition supports the bill but waits with some expectation for when the regulations come out, and we will see what happens there. I also put on the record my thanks to the Hon. David Ridgway, who is the shadow minister responsible for this area, and his preparation of some notes which I can use.

I note that the bill was introduced by the minister on 6 April 2011. I had actually expected it to be debated some weeks ago. It appeared sometimes and then dropped off and now it is back, so we will eventually get there. The minister has introduced this legislation as a mechanism to align the Development Act and regulations with the commonwealth Disability Discrimination Act in ensuring greater and dignified access to buildings for people with a disability and also to provide greater certainty to the building industry, particularly where an application is seeking to upgrade or extend an existing building.

The framework for development assessment and for building rules and standards in South Australia is provided, as we would all appreciate, by the Development Act. The main technical document which is called up under the act and the regulations is the Building Code of Australia. The Building Code of Australia is the national technical document which sets the standards for building work.

Since the commonwealth Disability Discrimination Act was initiated in 1993, there have been some inconsistencies between it and the national law (the code). The incongruities between anti-discrimination law and building law have made it untenable for developers and property owners in situations where building works, carried out in compliance with building law, have ended in complaints to the Human Rights Commission. This has often meant extra work for builders, costs for clients and general difficulty within the industry.

In 2000, the commonwealth Disability Discrimination Act was amended so that it could allow for a set of standards, being the Premises Standards, relating to building access. Since then, discussions have been taking place on a federal level, mainly with the Australian Building Codes Board, to negotiate a set of technical requirements which would form the basis of those Premises Standards.

The standards, in the form of the commonwealth Disability (Access to Premises) Standards, were passed by the commonwealth parliament last year and will take effect on 1 May of this year. So, they are in place now and they are to be reviewed, I am advised, in five years' time.

The standards set out administrative provisions and an access code detailing technical building requirements. That code will be mirrored in the Building Code of Australia, which is maintained by a national board under intergovernmental agreement. The standards will apply to public buildings, i.e. new buildings, as well as upgrades or extensions to existing buildings requiring building approval.

The Premises Standards must now be reflected in the development regulations, under a head power within the act. The regulations will be picking up the exemptions and concessions for existing buildings out of that document, most notably, I am advised by the shadow minister, 4.1, 4.3, 4.4 and 4.5.

There are two main aspects of this bill. They should be considered in the context that section 53A of the Development Act already describes situations in which an application for the building rules consent would require a building upgrade as a condition of approval. Section 53A is divided into two subsections. The first deals with cases where an existing building is deemed to be unsound from a structural perspective, while the second deals with an existing building deemed to be inadequate from a disability access perspective. New buildings are not subject to this legislative change as they will already be covered by the Building Code of Australia.

The bill defines the affected part of a building, of which building work is to be carried out. The affected part is 'the principal pedestrian entrance of the building' and 'any part of the building that is necessary to provide a continuous accessible path of travel from the entrance to the location of the building work.' Therefore, the Premises Standards and, therefore, the Building Code, would thereupon apply to the new building, a new part of an existing building or, indeed, the affected part of an existing building.

The bill also makes a number of technical amendments. Firstly, it removes the prescribed date of construction, before which a building may be subject to section 53A, if deemed to be structurally unsound. It defers that date to the new regulations. Again, I enforce the point that the opposition waits with great expectation on the regulations when they come out in a draft form, after the bill has been approved by both houses.

As mentioned, it may also be required that prescribed alterations to a building impose the requirement to upgrade inadequate access and facilities. This clause would amend the section so that the affected part, rather than simply the facilities, may need to be upgraded if noncompliant with the Building Code.

Further, where there is currently a restriction on that subsection only applying to buildings constructed before 1 January 1980, that restriction is removed and the application of the section is fully dependable on alterations of a class prescribed by the regulations. The clause also provides that, by regulation, there may be circumstances where such an additional work is not required.

The Premises Standards contain a general exemption, the same as is found under the Disability Discrimination Act, for situations involving an unjustifiable hardship. The Premises Standards spell out much more clearly however, what factors would need to be considered by a court if someone was defending the decision to not comply with the Premises Standards.

In essence, this bill simply provides a head power, where all requirements to upgrade buildings in certain cases will be referred to regulations which reflect the Premises Standards and, therefore, the commonwealth Disability Discrimination Act and, indeed, the Building Code of Australia.

I again confirm that the regulations are yet to be finalised or seen by the opposition and the shadow minister was advised that no consultation was conducted on the bill, prior to its introduction on 6 April. The opposition has attempted to consult with organisations; those being the Property Council, the Housing Institute, the Master Builders Association, Julia Farr, Minda and Novita.

At the time of this report being prepared by the shadow minister, we had received a response from the Property Council, which has been informed by the department that it will be consulted on the regulations, and I have no doubt that the minister will ensure that consultation occurs quite widely. Mr Nathan Paine from the Property Council has commented that not all of the properties are financially viable for upgrading to today's accessibility standards and that is where, no doubt, the hardship exemption may be considered. However, the department asserts that the unjustifiable hardship provisions of the Premises Standards will be reflected in the regulations.

The Property Council is also concerned about the removal of the 1 January 1980 date and argues that a building of six months of age may, indeed, be subject to the same requirements. Now, the shadow minister conferred with parliamentary counsel on this matter and he has been advised that this circumstance could happen, however, he believes it appropriate to see the regulations and what building classifications may be subject to required upgrades.

We also envisage that the Housing Institute will be relatively unconcerned by the changes, given that it does not apply to private residences. As far as disability advocates are concerned, the bill only strengthens the disability access requirements which, we all in this chamber acknowledge, is a good thing.

Therefore, I confirm that the opposition supports the bill, notes that it has been some time before it has had a chance to be debated in the chamber and expects it to also go through in the other place, no doubt, with a strong contribution from the Hon. Kelly Vincent, who will make comments on this, I would expect.

Indeed, from an access point of view, it is an appropriate piece of legislation but, as with many things these days, it appears as though much of the structural change is going to occur by regulation. So, the opposition confirms that it will express a final opinion and reserve its right to deal with the regulations as it chooses, depending upon what the regulations actually say. So, with those few brief words I confirm that the opposition supports the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (17:25): I thank the member for Goyder for his positive contribution, as well as the Hon. David Ridgway who, as the member for Goyder mentioned, has also been involved in the formulation of the opposition's view on this matter and who has clearly decided to support the measure. Overall, I thank the opposition for this constructive approach in relation to this piece of legislation.

The member for Goyder's remarks about the importance of regulations being done well is a point well made, and I can indicate that I would be quite happy to have discussions with the member for Goyder or, indeed, the Hon. David Ridgway, in relation to any particular concerns they may eventually have in respect of the regulations that will ultimately be put before the parliament. With those few words, I think we can probably move on. I gather from what the honourable member has said that we will not have to bother about going into committee.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (17:27): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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