Open Letter to the Premier of NSW about the Scourge of Locked Accessible Toilets

Monday 24 September 2018

Hon Gladys Berejiklian MP
Premier of New South Wales

RE: The Scourge of Locked Accessible Toilets

Dear Premier,

Physical Disability Australia (PDA) is a national peak membership-based representative organisation run by people with physical disability for people with physical disability. PDA was founded 21 years ago and we have over 1,000 members from all Australian States and Territories (232 in NSW). Our purpose is to:

– Encourage all levels of government to enable and provide every Australian living with a physical disability with opportunities to realise their full potential;
– Embrace and promote difference and diversity for an inclusive society; and
– Work with governments, industry and the community to promote the rights, responsibilities, issues and participation of people with physical disability.

We are writing to you now to let you know of an opportunity you have to improve access for people with physical disabilities across NSW by eliminating a discriminatory practice that causes them grief on a daily basis – the fact that many wheelchair-accessible public toilets in your State are fitted with access-hindering Master Locksmith Access Key (MLAK) locks.

According to the Australian Government’s toilet map website[1], there are over 540 publicly available accessible toilets fitted with MLAK locks in NSW. This means roughly 1 in 6 public wheelchair accessible public toilets are inaccessible to those who do not have an MLAK or who can’t use them because they lack the physical ability to do so. The same website reports there are fewer than 40 of these in the remainder of the country.

This issue was recently highlighted on the Coast Community News’ website[2] where it was reported that this issue had prompted the CEO of the Charmhaven Tennis Centre, Brett Bevan, to call for “[The Central Coast] Council [to] suspend immediately its policy of locking its disabled toilets and move to unlock all disability toilets”.

Mr Bevan argued that “the process of forcing those who are disabled to have to pay any sum of money to be able to use a public accessible disabled toilet is outrageous, immoral and unconscionable.”

PDA agrees. We also assert that this practice is unlawful because it contravenes section 49B (1) (b) of your State’s Anti-Discrimination Act 1977[3]and section 6 of the Federal Disability Discrimination Act 1992[4] in that it imposes conditions upon people with a physical disability that are not imposed on the able-bodied population: that they must purchase a key, or ask to borrow one from a council office or local business in order to use a public toilet.

It is worth noting that the legal question of whether or not this practice is, in fact, unlawful is more-or-less settled. The NSW Anti-Discrimination Board’s newsletter, Equal Times, in 1999[5] and again in 2001[6] provided summaries of successful conciliations in which ‘perpetrators’ came to understand that it was unlawful to lock wheelchair-accessible toilets and undertook to discontinue this practice.

Similarly, the Australian Human Rights Commission’s website[7] also has details of successful conciliations where ‘respondents’ accepted that it was unlawful to require people with disability to buy or borrow a key where able bodied people had unfettered access to public toilets.

The Federal Magistrates Court (as it was then called) has also found that the practice of having wheelchair-accessible toilets locked was discriminatory[8]

Unfortunately, discrimination law is complaints driven, and people with physical disabilities (principally in NSW) will continue to be disadvantaged as long as local authorities, public transport operators, and the managers of other community facilities can blithely install MLAK locks on wheelchair accessible toilets.

We invite you then to take this opportunity to work with your opposition colleagues and wipe out this systemic discrimination by bringing about the removal of MLAK locks from all public wheelchair accessible toilets they maintain so that they are as freely usable as the general-use public toilets they sit alongside.

Yours Sincerely,

Physical Disability Australia

Letters similar to this have been sent to the Leader of the Opposition and Ministers for Local Government, Planning, Disability Services, Transport and Infrastructure, and Innovation and Better Regulation (and their opposition counterparts) with the hope that you can agree on a coordinated bipartisan solution to the scourge of locked accessible toilets.

[1] https://toiletmap.gov.au/Find#

[2] https://coastcommunitynews.com.au/central-coast/news/2018/08/council-must-reassess-locking-disabled-toilets/

[3] https://www.legislation.nsw.gov.au/inforce/f38c7dc7-ba45-ee6e-d61f-9c8e3cbd52cf/1977-48.pdf:

[4] https://www.legislation.gov.au/Details/C2018C00125

[5] http://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/EqTimeNSWADBNlr/1999/43.html

[6] http://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/EqTimeNSWADBNlr/1999/43.html

[7] https://www.humanrights.gov.au/dda-conciliated-cases-access-premises

[8] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2001/18.html

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