Access to technology is at least as important as accessing premises. One struggles to find a transaction that, these days, takes place without the use of digital technology – computers, payment devices, mobile phones and tablets, white goods and appliances.
The Digital Gap Initiative advocates for national, compliance-based standards to address impediments to accessibility of digital technologies.
This post is the first in a three-part series explaining what we mean by this and how we see the change Australia needs initially taking shape.
The bottom line: we need a form of compliance-based (or, “enforceable”) standards ASAP. By this we mean “hard law”, law that is passed through Parliament, not “soft law”, such as industry standards and the current Advisory Notes on Web Accessibility, which are not passed through Parliament and do not give rise to rights to have obligations enforced.
Digital Gap Initiative here explores, as a first step, standards formulated by the Attorney-General under section 31 of the Disability Discrimination Act 1992 (Cth) (“DDA standards“). When done well, in consultation with all stakeholders, DDA standards offer far greater certainty for all involved – government, business and the community. Read on to learn more.
What are DDA Standards?
Disability standards are issued under section 31 of the Disability Discrimination Act 1992 (Cth) (“DDA”).
Despite being able to promulgate standards since 1993, only three standards exist:
- Disability Standards for Education;
- Disability Standards for Accessible Public Transport; and
- Premises Standards.
The Human Rights Commission’s Advisory Notes on web accessibility are also made under the DDA (section 67) but these are merely to provide guidance to people on how they can avoid discrimination. It is not unlawful not to comply with the Advisory Notes but they are taken into account by the Commission and courts in determining whether discrimination has occurred. Beecher suggests that the Advisory Notes were in fact intended to be standards but never made it into that compliance-based form because sufficient agreement could not be reached in 1999 on their content.
What makes standards unique?
These standards differ from voluntary codes, guidelines and advisory notes issued by the Australian Human Rights Commission (“the Commission”), government departments and industry bodies. Standards are mandatory because section 32 of the DDA provides: “It is unlawful for a person to contravene a disability standard.”
Standards give greater certainty to stakeholders than voluntary codes, advisory notes and guidelines because, if a person complies with a relevant standard, the DDA will not apply to them (section 32). So, standards prevent complaints against a person if that person has complied with the relevant standard.
Standards aren’t voluntary
Section 31 gives the Attorney-General power to formulate standards “in relation to any area in which it is unlawful … for a person to discriminate against another person” on the ground of disability. The Attorney-General, collaborating with other Ministers such as the Minister for Education, formulated the existing standards.
Section 31 allows standards to deal with aspects of the law such as what governments, public authorities and private sector organisations at both state/territory and federal level need to do to comply with the DDA in a particular area. Standards can also set out what would count as a “reasonable adjustment” and/or “unjustifiable hardship” under the DDA and make exemptions from the standard (or give the AHRC power to make such exemptions from the standard).
The only requirement on the Attorney-General before he goes about formulating standards is that he takes into consideration any comments made by ministers of states or territories who are responsible for matters relating to disability discrimination.
Standards can then be formulated by the passing of legislative instruments (a.k.a. subordinate or delegated legislation), which are enacted via an abridged law-making process but still must be tabled in Parliament.
Certainty for all involved: why standards are critical and desirable
Standards under section 31, as a first step, are key to ensuring certainty for stakeholders about how to comply with the DDA. DDA compliance is key to service providers and employers avoiding costly discrimination complaints and litigation, and in a society where it is difficult to name goods and services not provided using a form of digital technology, compliance will allow them to reach a market of over 1 in 5 Australians who experience disability.
Most importantly, DDA compliance is crucial to closing what we refer to as the “digital gap” – giving people experiencing disability equal opportunities to people not experiencing disability. This is fundamental to upholding the internationally and domestically recognised rights of people experiencing disability (Convention on the Rights of Persons with Disabilities especially the general obligation in Articles 4(f)-(i) and the specific obligations in Articles 9 and 21).
Where to from here?
Stay tuned for Part II: What might Standards for Accessibility of Digital Technology look like and who would have to comply with them? …