After section 218 of the Principal Act , the following section is inserted in Division 2A:

218A.     Application for modification of regulations relating to access for persons with disabilities

(1)  An application may be made to the Appeal Tribunal for a determination that an access provision of the Building Code of Australia –

(a) does not apply; or

(b) applies with the modifications or variations specified in the application –

to a building, or land on which a building is to be constructed, specified in the application.

(2)  The application may be made by –

(a) the owner of the building or land; or

(b) a lessee of the building, who proposes to have, or is having, building work carried out in respect of the building; or

(c) any person acting on behalf of a person referred to in paragraph (a) or (b), other than the relevant building surveyor.

(3)  An application must be made on the ground that compliance with the access provisions of the Building Code of Australia would impose unjustifiable hardship on the applicant.

(4)  Before determining a matter under this section relating to disability access, the Appeal Tribunal is to notify, and seek submissions from –

(a) the Director; and

(b) any affected reporting authority; and

(c) the relevant building surveyor.

(5)  In determining whether compliance with an access provision of the Building Code of Australia would impose unjustifiable hardship on the applicant, the Appeal Tribunal must take into account the objects of the Disability Discrimination Act 1992 of the Commonwealth and all relevant circumstances of the particular case, including the following:

(a) any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or be reasonably likely to result from, compliance with the provision;

(b) any reductions in capital, operating or other costs, or increases in revenue, that would be directly achieved by, or be reasonably likely to result from, compliance with the provision;

(c) the extent to which the construction of the building has been or will be financed by government funding;

(d) the extent to which the building –

(i) is used for public purposes; and

(ii) has a community function;

(e) the financial position of the applicant;

(f) any effect that compliance with the provision is reasonably likely to have on the financial viability of the applicant;

(g) any exceptional technical factors (such as the effect of load-bearing elements on the structural integrity of the building) or geographic factors (such as gradient or topography) affecting a person's ability to comply with the provision;

(h) financial, staffing, technical, information and other resources reasonably available to the applicant, including any grants, tax concessions, subsidies or other external assistance provided or available;

(i) whether the cost of alterations to make any premises accessible is disproportionate to the value of the building, taking into consideration the improved value that would result from the alterations;

(j) benefits reasonably likely to accrue from compliance with the provision, including benefits to persons with disabilities, to building users or to other affected persons, or detriment likely to result from non-compliance;

(k) detriment reasonably likely to be suffered by the applicant, building developer, or building manager, or by persons with disabilities or other building users, including in relation to means of access, comfort and convenience, if compliance with the provision is required;

(l) if detriment under paragraph (k) involves loss of heritage significance, the extent to which the heritage features of the building are essential, or merely incidental, to the heritage significance of the building;

(m) any evidence regarding efforts made in good faith by the applicant or a person required to comply with the provision, including consulting access consultants or the relevant building surveyor;

(n) whether the applicant has given an action plan (within the meaning of Part 3 of the Disability Discrimination Act 1992 of the Commonwealth) to the Australian Human Rights Commission under section 64 of that Act, the terms of the action plan and any evidence of its implementation;

(o) the nature and results of any processes of consultation, including at local, regional, State, national, international, industry or other level, involving or on behalf of the applicant, a building developer, building manager or the relevant building surveyor and persons with disabilities, about means of achieving compliance with the provision, including in relation to the factors listed in this subsection.

(6)  If a substantial issue of unjustifiable hardship is raised having regard to the factors mentioned in subsection (5) , the Appeal Tribunal must consider the following additional factors:

(a) the extent to which substantially equal access to public premises is or may be provided otherwise than by compliance with the access provisions of the Building Code of Australia;

(b) any measures undertaken, or to be undertaken, by, on behalf of or in association with a person or organisation in order to ensure substantially equal access.

(7)  A determination under this section must provide for compliance with the access provisions of the Building Code of Australia to the maximum extent not involving unjustifiable hardship.

(8)  For the purposes of this section, unjustifiable hardship is to be interpreted and applied having due regard to the rights and interests of all relevant parties.

(9)  In this section –

access provisions of the Building Code of Australia means a performance requirement –

(a) that is contained in Section D, Part E3 or Part F2 of the Building Code of Australia Volume One; and

(b) in respect of which there is an equivalent performance requirement contained in the Access Code within the meaning of the Disability (Access to Premises - Buildings) Standards 2010 of the Commonwealth;

building developer means a person with responsibility for, or control over, the design or construction of the building;

building manager means a person with responsibility for, or control over, the management of the building.