My submission on the Accessibility for New Zealanders Bill
Submissions on the Accessibility for New Zealanders Bill close on Monday 7 November 2022. You can make a submission here and the process is fully accessible.
I am including my submission here in the hope that it might inspire others also to submit. It is in my view deeply flawed legislation. Disabled new Zealanders must make our voices heard. Here’s my submission.
Submission to the Social Services and Community Committee on the Accessibility for New Zealanders Bill
From Jonathan Mosen MNZM
Thank you for the opportunity to submit on the Accessibility for New Zealanders Bill.
In this submission, I will argue that:
- The process that led to the drafting of this legislation was fundamentally flawed because consultation was inadequate
- The Bill is not guaranteed to remove a single accessibility barrier and may in fact cause harm
- Enforceable standards are essential for moving accessibility forward
- Whaikaha being involved in the monitoring of accessibility legislation represents a potential conflict of interest
- The type of bill preferred by advocates of accessibility legislation would create further confusion, fragmentation and bureaucracy
- This Bill should be withdrawn and a truly inclusive, genuinely disability-led process should begin, culminating in civil rights legislation for disabled people similar to that found in other jurisdictions that are considered world-leading on disability rights.
About the submitter
I am totally blind and hearing impaired, and have been an advocate for disability inclusion all my life. During my time as Manager Government Relations for the Royal New Zealand Foundation for the Blind, I played a key role in advocating for access to information to be viewed the same way as access to the built environment. The Amendment to the Copyright Act 1994 began the long journey that ended with the enactment of the Marrakesh Treaty by the World Intellectual Property Organisation (WIPO). This has made the production and exchange of accessible books easier.
I have a Master’s degree in public policy. My thesis proposed a model very similar to the Enabling Good Lives framework now in place. I have also played a hand in significant constitutional reform promoting the self-determination of disabled people.
I am a former accessibility professional and consultant, having held senior leadership roles at some of the world’s leading assistive technology companies, where I helped design some of the technology blind people now use to succeed in study and employment. I have authored many eBooks and audiobooks on blindness technology and consulted to large multinational corporations on website and app accessibility. My views are internationally respected and sought regarding making apps, websites and other media accessible.
As someone who has been fortunate enough to have travelled extensively internationally, I have experienced first-hand how far behind New Zealand is when it comes to accessibility and inclusion.
The views I express in this submission are mine alone. They do not necessarily reflect those of any organisation with which I am currently or have in the past been associated.
Inadequate consultation process
The foundations upon which this legislation has been built are fundamentally shaky. I take considerable interest in public policy processes that affect me. I read many consultation documents and submit on those where I feel I have value to add. The process that has led to this Bill has been one of the most exclusionary and limited that I can recall.
This Bill was introduced because a coalition of individuals and organisations known as the Access Alliance advocated for the introduction of accessibility legislation to address the many accessibility barriers in New Zealand that create a disabling society. Numerous events have been held in which those who supported this approach could voice their support. Members of Parliament from various political parties signed on to support such legislation and formed the Parliamentary Champions for Accessibility Legislation.
The mandate of service provider organisations to advance this Kaupapa is limited. While service providers are of course entitled to their opinion as organisations based on what they observe, it cannot be assumed that the opinions expressed by service providers reflect those of the clients to whom they provide services. Many of us become clients of disability service providers because we need their services, not to give them a mandate to speak for us. If Government wants to know what disabled people think, they must ask them directly. Failing to do so reflects a form of paternalism that is completely inappropriate in 2022. It is no different from my supermarket claiming that they speak for me just because I shop there.
Any group may advocate for a course of action they believe in, and indeed I congratulate the Access Alliance for the hard mahi they have done to get our accessibility crisis on the legislative agenda. But the Public Service must allow anyone with a range of alternative solutions the opportunity to make their case. During the last five or six years of advocacy on accessibility legislation, I have been in touch with several experienced advocates on disability issues who share my concerns that accessibility legislation is not the best way to confront the serious issues we face. We all assumed that at some point, the Government would initiate a genuine round of consultation, perhaps with a green paper, seeking views on the best way of making New Zealand society more accessible. I have been waiting patiently for the chance to have input into the process, and was not given one. In a spirit of genuine co-design and “nothing about us without us”, it should have happened at the time the Government was forming a view. Disabled New Zealanders are around a quarter of the country’s population, yet most of us have not had the chance to offer comment on potential solutions. This is acknowledged in the Regulatory Impact Statement (RIS) for the Bill, which state, “Full public consultation has not yet been undertaken, meaning analysis of the impact of the proposed changes on Māori and other groups has been constrained.”
The Department of Prime Minister and Cabinet (DPMC) has provided advice on community engagement. This can be found at https://dpmc.govt.nz/our-programmes/policy-project/policy-methods-toolbox/community-engagement. The document references guidance from the International Association for Public Participation. Their five principles are:
- Informing – providing information to help people understand problems, opportunities or issues, and alternative solutions
- Consulting – obtaining public feedback on analysis, alternatives or decisions
- Involving – working directly with the public to ensure concerns and aspirations are consistently understood and considered
- Collaborating – partnering with the public in the design or decision-making process, including to identify alternatives or preferred solutions
- Empowering – placing decision making in the hands of the public.
I believe that these principles have not been adhered to because extensive consultation took place primarily with a coalition advocating one position. Poor consultation has led to poor legislation.
The DPMC notes, “Making an intentional decision to engage with communities to develop policies and solve problems is not only good policy practice, it’s fundamental to the way that government builds its relationship with citizens.” I agree. In this case, the exclusive nature of this consultation has damaged confidence in due process and has given the impression that not every disabled citizen’s voice or opinion is equal.
The bill before the Committee
A ticking the boxes bill
It has been argued that this Bill does nothing that the Minister could not already do, in terms of forming committees to provide advice on accessibility. The Disclosure Statement remarks that a legislated committee of this nature is unusual. The RIS makes the point that by having a law which requires the creation of an accessibility committee, it ensures that the work will be ongoing and not at the mercy of changing Cabinet priorities or Governments from different sides of the political spectrum. That is of course true, but then the question must be asked whether the Committee is empowered to do anything of real consequence, commensurate with the seriousness of the crisis we face?
Sadly, it appears to me that this Bill is the simplest way of being able to tick the box against another election promise, while not delivering any substantive, measurable improvement. The Disclosure Statement for this Bill states, “An enabling legislative framework is used because it recognises and can support the disability community’s desire for fundamental change, balanced against the Government’s priorities and resources, while creating stronger accountability and reporting mechanisms to hold the Government to account.” This is a revealing statement. It makes it clear that the Government does not view the dire state of accessibility in New Zealand as a high priority worthy of serious resource allocation that would be truly remedial.
This legislation will never, and does not ever, require the Government to remove a single barrier.
The Bill provides for the creation of a Committee to then appoint a second Committee which will consider accessibility issues and advise the Minister. The Minister is required to report on progress to Parliament. Critically, there is no tangible measurements that helps us determine if we are making any progress towards a more accessible society.
It relies on goodwill for any progress, and for disability issues to be high enough on the political agenda and Government work programme for that progress to occur. Right now at least, despite being a quarter of the population, disabled people are conspicuous by our absence in the House, so we cannot influence matters from the Cabinet room or even the caucus room.
Article Nine of the United Nations Convention on the Rights of persons with Disabilities (UNCRPD) refers to accessibility, and make specific reference to standards. Since this Bill does not create any standards setting function, it falls short of our obligations under international law.
It is disturbing that this country seems to have fallen into a pattern where many critical disability issues are given low priority. A handful of disabled people challenge the lack of prioritisation of our issues, and are dismissed at best or branded militant troublemakers at worst. Finally, New Zealand faces scrutiny from the UN, which validates the concerns of the disabled people who have been rebuffed. It is a cycle that repeatedly embarrasses us on the international stage and it has to stop. If enacted, you can be sure that this legislation will further tarnish our reputation internationally.
The role of Whaikaha
In the absence of a new independent body, it is proposed that the Chief Executive of Whaikaha, the Ministry of Disabled People, play a critical role in this legislation. I do not think it is appropriate for the Chief Executive of Whaikaha, who has considerable say in the services disabled people receive and who provides them, to also be expected to champion the rights of disabled people in an accessibility context. After all, Whaikaha itself may create accessibility barriers by virtue of the decisions it makes, so there is a fundamental conflict of interest.
I want to be clear that that is not a reflection on the individual currently holding the role, in whom I have considerable confidence. But it is my belief that it is not good public policy to mix these two functions in the one role, no matter who holds the position.
The Bill will cause harm
Some have argued that even if the Bill is largely ineffectual, we should at least agree that having accessibility legislation on the statute books is progress, and work to improve the bill at a later time. I emphatically disagree. New Zealand legislation is littered with occurrences of disabled people being asked to be patient, be grateful for what’s being offered and make do. The most serious example of this is accident compensation legislation, where over 50 years ago, congenitally disabled people were promised that the scheme would be extended to them eventually. We are still waiting. If we accept this current Bill even while acknowledging that it is not fit for purpose, it is likely to take the opportunity for truly effective legislation off the table for a generation, at enormous cost to the independence, freedom, dignity, employability and productivity of disabled people. The stakes are too high to settle for piecemeal legislation.
If enacted, the Bill will do further harm by creating additional fragmentation, a subject I will return to later in this submission. It could also funnel accessibility issues into a forum with no real means of resolving them speedily if at all.
There is a significant call from proponents of accessibility legislation to amend the Bill substantially so that it implements what the RIS refers to as Option Four, overarching accessibility legislation. I concur with most of the RIS’s reasons for ruling out this option and will return to this topic when I outline my proposed solution below.
Disability rights legislation
While I only speak for myself in this submission, I would be surprised if it were possible to find a disabled New Zealander who considers the current state of accessibility to be satisfactory. If there is one thing that unites us all, it is that there is an urgent need that must be addressed.
While I agree with many of the reasons that Option Four was ruled out in the RIS, I believe there is a better solution than Option Three, and that is disability-specific rights-based legislation. I am disappointed that the RIS ruled out the option of rights-based legislation, and that members of the public did not have the opportunity to challenge that position before legislation was introduced.
The RIS states, “We have ruled out using rights-based legislation. We already have a strong human rights framework, and there is risk in a new accessibility system that takes an individualised approach. The HRA is also unlikely to be amended for reasons of complexity, both in terms of the wide scope of work required to carry this out, and the interactions that would need to be established between human rights legislation and other legislation. However, rights-based legislation and new dedicated accessibility legislation can play complementary roles.”
While disability rights legislation is out of scope for the current work of the Committee, I will comment on why I support this approach, in order to substantiate my recommendation that this current Bill should be withdrawn while genuine, inclusive dialogue begins.
We are worthy
The idea that new disability rights legislation should not proceed because it is complex demeans disabled people. I could write pages of indicators that demonstrate the deeply marginalised state of disabled people. Things are even worse where there is intersectionality, such as for tangata whaikaha Māori, women, the LGBTQ community and ethnic minorities. Only 42.2% of disabled people are in work compared with 78.9% of nondisabled people. The unemployment rate of disabled people is over twice as high as it is for nondisabled people. 48% of disabled people are not in employment, education or training. Accessible housing is far too scarce. I could go on.
The Public Service has the experience and capacity to draft new disability rights legislation if there were a will to do so. The reality is that despite being arguably the largest minority in the country, we are the most invisible, the most underrepresented. The current conditions in which disabled New Zealanders must exist are a colossal failure, both economically and morally. We are worth the allocation of resources that would be required to tackle the complexity and deliver meaningful change.
Much has changed in terms of attitudes and international law since the Human Rights Act was enacted in 1993, and when compared with other jurisdictions, our framework can hardly be described as strong as the RIS claims. I applaud the Human Rights Commission for the outstanding mahi it does to advance the rights of disabled people using the tools it has been given, but disability rights legislation needs reworking and strengthening, and that should include a new Act which codifies our UNCRPD obligations in domestic law.
Such an act must include the ability to enact enforceable standards. Individual complaints, which should be supported by an advocacy service on behalf of the disabled person rather than a mediation service, could provide valuable data that would feed into the creation of standards. I do not subscribe to the view that we can make a distinction between the concept of reasonable accommodation pertaining to an individual, and a barrier being something systemic and thus requiring a different approach. If we as disabled people have a mechanism for notifying an independent entity about accessibility barriers, it may be necessary to then embark on a second process to get individual redress for personal harm caused, whether that harm be lost opportunity, distress suffered, denial of a good or service, or all of the above.
It is better to have a single framework that approaches an issue as a breach of someone’s rights, with protection of those rights being enshrined in enforceable standards. This allows individual redress to occur, but system changes can also be applied to prevent the same discrimination from occurring to others.
Disabled people are already presented with a bewildering array of overlapping choices in all aspects of life, from service delivery to funding for equipment to resolving of barriers. The entity a disabled person must approach if they need equipment will vary depending on the nature of their impairment. If they are congenitally disabled, there are further choices between funding entities depending on whether the equipment is primarily intended for vocational purposes or for safety in the home. Where there is ambiguity, funding entities may not deny that there is a need, but in order to minimise drain on their appropriation, they will try to send the disabled person away to another entity.
There are already various ways to seek resolution of a grievance which a person may experience as an act of discrimination against them, but which, if resolved, would eliminate a systemic accessibility barrier that affects everyone. Here are just a few examples in my own life.
Inaccessible local Government voting
After years of putting up with it, I am determined to do all I can to ensure that I cast a secret ballot like everyone else in the 2025 local government elections. Presently, the only way I can vote is to have someone fill in my ballot paper for me, thus compromising one of the most sacred rights every citizen has in a democracy. My options for seeking resolution include a complaint to the Human Rights Commission (HRC), taking the matter to the Office of the Ombudsman, and participating in any parliamentary inquiry. If my options were exhausted without resolution, I could use the optional protocol of the UNCRPD, where I feel confident New Zealand would be strongly condemned given that the right for disabled people to cast a secret ballot is mentioned specifically in the Convention. If the problem were to be resolved for me, it would be resolved for everyone.
in 2018, I objected to receiving an inaccessible code to complete the Census, while my census code was passed on without my permission to a disability agency. There were several agencies who might have helped, including the Human Rights Commission, the office of the Privacy Commissioner, the Ombudsman, the Health and Disability Commissioner’s Complaints Resolution Service, and of course Stats NZ itself. As well as complaining to the Ombudsman’s office, I chose to take it to Parliament and appeared before a Select Committee. I had experienced discrimination personally, but the problem was also systemic.
There are many similar examples. The point they illustrate is that when a person is disabled because of an accessibility barrier that could be removed, that is a breach of their human rights. Making a distinction between rights that have an accessibility focus and all other rights is arbitrary and, ironically, could create an additional accessibility barrier in itself as disabled people struggle to determine the correct entity to contact.
I am in touch with some disabled people in Canada who report that this is exactly what has happened since the enactment of Canada’s federal accessibility legislation. They report that even though a single standard has yet to be adopted, entities are ducking for cover, bouncing disabled people from one possible form of remedy to another.
The legislation before this Committee will make no significant difference at best, and is likely to be harmful.
Accessibility legislation is not the optimal answer to what we all agree is a significant and pressing problem.
I urge this Committee to conclude that because of the groundswell against this Bill, it should be withdrawn. Immediately thereafter, fully inclusive, open consultation must take place with all stakeholders, including giving every disabled individual who wishes to the opportunity to have meaningful input.
I assume that any additional consultation would now be conducted by Whaikaha, and I suspect this will cause the process and recommendations to be very different. There should be an explicit expectation that disabled people have the opportunity to comment on a new disability rights legislative framework which incorporates accessibility as just one of those rights.
Yes, there will be a delay, but in not proceeding with this Bill, we will have lost nothing of consequence and have so much to gain in the medium term. I am an optimist, and I believe this country still has the opportunity to be a beacon of accessibility best practice. If this Bill is not withdrawn, that opportunity will be squandered for a generation.