What is Unjustifiable Hardship?

Unjustifiable hardship is a provision under the Disability Discrimination Act (DDA) and the Premises Standards. This provision recognises that, in certain circumstances, full compliance with accessibility requirements may not be reasonable.

Under Part 4.1 of the Premises Standards, it is not unlawful to fail to comply with a requirement. This is true if compliance would impose unjustifiable hardship.

Unjustifiable hardship is not simply inconvenience or cost. It is a high threshold that requires consideration of all relevant circumstances, including:

  • the cost of achieving compliance
  • the financial capacity of the project or organisation
  • the impact on people with disability
  • the benefits of improved access
  • any alternative means of providing access

Each claim must be assessed on a case-by-case basis, taking into account the specific building, scope of works and constraints.

No Pre-Approval Mechanism

Not all States and Territories have mechanisms to “grant” unjustifiable hardship. While some have access panels to review a claim, not all do. For example:

  • In Queensland, the Department of Housing can be contacted.
  • In South Australia, the State Planning Commission is the local authority.
  • While in Victoria, it is the Building Appeals Board.
  • In NSW, TAS and WA, the local Council or building certifier/surveyor can assess a Performance Solution as part of an unjustifiable hardship claim. An access consultant must prepare this report.

When there is no mechanism to make this claim, it is typically only tested:

  • if challenged under the DDA, or
  • through legal or complaint processes

This means that any reliance on unjustifiable hardship carries inherent risk and must be carefully justified.

Maximum Compliance Still Required

Even where unjustifiable hardship is established, compliance is still required to the maximum extent that does not impose unjustifiable hardship. This is a critical principle often misunderstood. It means that partial compliance, alternative solutions, or staged upgrades are usually expected.

Typical Applications

Unjustifiable hardship is most commonly considered in:

  • existing buildings undergoing alteration
  • projects with significant structural constraints
  • heritage buildings
  • upgrades requiring major vertical access (e.g. lifts)
  • situations where costs are disproportionate to the scope of works

These scenarios require careful balancing of compliance, feasibility and access outcomes.

Limitations and Risks

Unjustifiable hardship is not a design tool or shortcut.

  • It cannot be assumed or applied broadly
  • It must be supported by clear evidence and reasoning
  • Incorrect application can result in non-compliance or DDA exposure

Importantly, hardship must be shown to be unjustifiable, not merely difficult or expensive.

Our Approach

Access Central assesses unjustifiable hardship claims within the broader context of NCC/BCA compliance and the DDA.

This includes:

  • identifying where a claim may be relevant
  • assessing applicable hardship factors
  • exploring alternative access solutions
  • documenting clear, defensible justification

Our focus is to ensure that any reliance on unjustifiable hardship is appropriate. It must be evidence-based. It should also be aligned with certification and legal risk considerations.

Unjustifiable hardship is typically considered as part of a broader Performance Solution strategy.

Conclusion

Unjustifiable hardship is a limited and carefully applied provision within the Premises Standards. When used appropriately, it allows practical outcomes to be achieved while still maximising access and maintaining compliance obligations. Access Central can assist with any necessary application or submission to a State/Territory authority.