Transformational change. Let’s pull the Accessibility for New Zealanders Bill and go for a disability rights act instead
Introduction
For more than five years, a coalition called the Access Alliance has been advocating for the introduction of new accessibility legislation. The Bill, now before the House and open for public submissions, is not the bill the coalition asked for and they are understandably unhappy. As well as encouraging people to submit on the legislation, they have launched a petition asking the community to tell Parliament that standards need to be a part of the Bill.
I have been troubled by the weaknesses of what has been suggested in recent years, and by the lack of open dialogue about whether what has been proposed is in fact the best solution. It was always likely that, had the Bill been introduced in the form the Access Alliance wanted, I and others would have opposed it. Ironically, the introduction by the Government of a Bill that does nothing of consequence has created the opportunity for greater unity and a truly disability-driven fresh start.
I am publishing this article now because I fear we are about to make a colossal mistake that will set disabled people back for at least a generation. The stakes are too high to stay silent. I hope that you will give these thoughts consideration, and that if you feel they have merit, you will incorporate them into a submission on the Accessibility for New Zealanders Bill.
What we’ve got
Let me cut right to the chase and state that this legislation will never, and does not ever, require the Government to remove a single barrier. Much as we might be deluged with political platitudes, that’s the nub of this issue.
The Government’s Accessibility for New Zealanders 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. This is a similar mechanism to that used presently requiring the Minister to report to Parliament on the Disability Strategy. Just like the Disability Strategy, while disabled people are consulted on its content, there is no binding agreement between disabled people and the Minister about what will be done.
The Bill neither provides for the creation of enforceable or unenforceable standards, nor creates any other regulatory body or function. It relies on goodwill for any progress, and for disability issues to be high enough on the political radar and Government work programme for that progress to occur. And right now at least, disabled people are conspicuous by our absence in the House, so we cannot influence matters from the Cabinet room or even the caucus room.
The Bill falls a long way short of the principles for accessibility legislation devised by Access Matters.
Why we’ve got it
According to those who have researched the Government’s approach to the legislation, the Government rejected legislation based on the principles espoused by the Access Alliance because they felt it would be too complex and would create duplication of existing legislation or functions. The Government also said that it would be too limited. In other words, you can’t turn every disability issue into an accessibility issue.
I agree with the Government on these points and have been saying exactly this since this model was proposed more than five years ago.
When you create duplication, you create the potential for entities to argue over who is responsible for the removal of a barrier or the realisation of a right. This in turn creates the potential for confusion, frustration, and inaction.
Since the enactment of Canada’s federal accessibility legislation, I have spoken with disabled Canadians who have experienced exactly this. Despite that legislation having standards-making capacity, none have yet been developed. Yet even now, there are Canadians who are being shunted between multiple entities when they believe they are facing an accessibility barrier which is, by virtue of its occurrence, also discrimination against them personally.
In their excellent report “Making New Zealand accessible: a design for effective accessibility legislation”, which I recommend to anyone with an interest in this mahi, Warren Forster, Tom Barraclough and Curtis Barnes noted this risk. While I agree with most of this thorough report, and I acknowledge the point they make about it being impossible to remove overlap completely since legislation must be viewed in its entirety, I think they are optimistic about managing boundary lines between overlapping frameworks designed for disabled people. 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. The systemic barrier leads to discrimination against individuals who encounter it. If we attempt to create separate mechanisms for redress of individual discrimination and systemic barriers, we will create complexity for disabled people who are being discriminated against, and delay progress to a less disabling society. If, as Forster et al propose, 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, or both.
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.
To understand the frustrations a fragmented approach would create, we need look no further than to the daily experience of being a disabled New Zealander. When we need a piece of equipment, we may get tossed back and forth between Government entities who will argue over who should fund it depending on its primary use. If our impairment was acquired as the result of an accident, we are treated differently from those whose impairment is not related to an accident. Some impairments have more favourable entitlements than others, either based on legislation or on which impairments have been deemed more worthy of philanthropic support. The disability system is riddled with confusion and inequity. We do not need another piece of legislation adding to the hodgepodge. This, ironically, would create an accessibility barrier in itself for people with some impairments, or who simply find navigating the bureaucratic labyrinth challenging.
The Government also ruled out the Access Alliance approach because they claim that a regime such as the one seen in Ontario Canada simply forces compliance, while not creating behavioural change. Even if it is true, I’ll take a less disabling society however I can get it, thanks. There are many situations where a conscientious Government will step in to advance the interests of a minority, whether the majority likes it or not. I have no doubt that numerous Uber drivers and restaurant proprietors accommodate my wife’s guide dog because they know that not doing so is illegal. They can resent it all they like, but we can get to where we want to go and enjoy our meal. And I don’t hear this argument about reluctance applied any time the Government introduces a new tax.
While I accept some of the Government’s points, I disagree with the Government’s response to them. I also regret deeply that there was not an open process where anyone with an interest and expertise in this matter could have helped to craft the Bill.
It may seem counterintuitive, but I believe the reason why the Access Alliance has failed to achieve its objectives is because it wasn’t asking for enough. More widespread legislative reform may have taken longer, but it would have resulted in far more consequential reform and would have been so unquestionably game-changing for disabled people that many of us would have advocated and protested staunchly for it.
The Inclusive New Zealand Act
The present Government has said that it is not interested in disability rights legislation. That is an extraordinary stance for a Government that self-identifies as progressive to take, and we should not meekly accept it. Disabled people make up a quarter of the population. That’s a lot of votes, and if we choose to exercise our power, that’s a lot of influence. I urge the Government to think again, and I urge our community to encourage that rethink.
I believe we would be well served by a single piece of legislation, as a working title I will call it the Inclusive New Zealand Act. It would better articulate the rights disabled people have in New Zealand society than does the current Human Rights Act, while also advancing the removal of accessibility barriers. It would be ground-breaking in that it would be rights-based, while also using enforceable standards. This would avoid the pitfalls of using the court system to prove a range of discrimination cases in order to set legal precedent, as is the case with disability rights legislation in some other countries.
Yes, that would mean taking disabled people out of the Human Rights Act.
The Human Rights Act 1993 is antiquated legislation when it comes to disability issues. While we have a long way to go, attitudes towards, and expectations of disabled people have advanced markedly in nearly 30 years. The Act predates New Zealand’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which occurred 15 years after the passage of this legislation.
When the Act was passed, we were so thrilled to have finally been recognised in a formal sense. Yet even then, the Human Rights Act fell well short of what disabled Americans had achieved with their successful advocacy for the Americans with Disabilities Act (ADA), which was enacted in 1990. New Zealanders are fortunate that despite the mediocrity of our own legislation, we have benefited from some of the victories won by Americans under the ADA.
Like this new Bill, the Human Rights Act is too dependent on goodwill. Mediation is at the heart of redress and this tends to focus on individual issues. These issues can, and in a few cases have, led to systemic change, but that is rare. Access to the next step, the Disputes Review Tribunal, is complex and expensive, and is little publicised or understood.
Unlike Australia’s Disability Discrimination Act, our Human Rights Act does not provide for the creation of enforceable standards. It is individually focussed.
The Disability Rights Commissioner would be the key role associated with the new Act I am proposing. This would address another fault with the present Bill before Parliament. 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 discriminate 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. We need someone dedicated exclusively to disability rights in charge of this new framework, who will challenge the Government without fear or favour.
Part One of this Act would contain the rights that people with impairments must have realised for there to be a nondisabling society. Much of this work has already been done with the UNCRPD, but uniquely New Zealand factors, particularly Te Tiriti o Waitangi, must be fully accounted for. This model would provide for factors that are difficult to shoehorn into an accessibility paradigm, such as the rights of disabled people to migrate here without being subjected to further scrutiny merely because they have an impairment.
A rights focus has a much wider scope than an accessibility focus. For example, as Forster et al point out, mandating an accessible workplace is different from the right to employment. To make employment possible, well-resourced education and training must be available. Getting a job requires not just the reduction of accessibility barriers, but attitudinal barriers too. That requires public education.
Having defined the rights New Zealanders must have actualised for there to be a nondisabling society, there must be clarity about how we make and measure progress. The UNCRPD requires states parties to adopt accessibility standards, and also makes mention of adhering to the principles of universal design. So the second part of the Act would provide for the creation of ENFORCEABLE standards to make our rights real. All new legislation should contain an impact statement regarding compliance with the Inclusive New Zealand Act.
Finally, the third part of the Act would cover enforcement and complaints processes. I don’t think it is desirable for us to have, nor do I think New Zealand would accept, a highly litigious process such as the ADA. However, we must as much as possible avoid multiple pathways for resolution of a disability rights issue, resulting in ambiguity about where a disabled person must go to get redress. When complaints are lodged, disabled people must be equipped for success. Where mediation is used, a disabled person should have access to someone with mediation skills who is their advocate and on their side. There is often a power imbalance in human rights complaints at present, because larger organisations turn up with intimidating lawyers, while a disabled person often attends alone. Meanwhile, the Human Rights Commission’s mediators do not take sides.
Forster et al’s concept of a regulator and a court should fit into this wider model. The regulator should be disability-driven, but the wider community must have representation too. There will be compliance costs and it is only right and fair that those who will be expected to comply have ample input into the process. Consultation on any standards must be inclusive.
Conclusion
The Accessibility for new Zealanders Bill cannot be salvaged in a way that won’t harm the very people it seeks to help. If its provisions remain largely unchanged, you may conclude that it is largely benign, so while we have gained little, at least it’s something. But I think there is a real chance that the Bill in its present form will actually do harm. It will create a new Committee with no power whatsoever, through which a lot of accessibility discussion will be funnelled for no tangible benefit to disabled people. That could mean that progress actually slows down.
If the original concept of the legislation as envisioned by the Access Alliance is rescued, harm is likely to come from that too, with yet another confusing choice a disabled person has to make about how to attempt resolution.
History has taught us that if we accept half-baked legislation as an interim measure, there will always be higher priorities. There are many examples of this happening. The Accident Compensation Scheme is 50 years old. When it was designed, it was intended that accident victims would be served first, and congenitally disabled people would be covered later. Half a century has gone by, and the inequities in our system remain. They are grossly unfair and heart-breaking. We keep being told by politicians that they understand the disparity that has been created for disabled people, yet there are always bigger priorities that mean the matter hasn’t been addressed. If we settle for a flawed solution now, we’ll be stuck with it for a long, long time, regretting having squandered this opportunity for consequential reform.
As a good chunk of the people who pay the wages of politicians even though we are not represented in Parliament, it is up to us to draw a line and say, “enough is enough”. No more patchwork solutions, no more piecemeal approaches that will make nondisabled people feel good. We need comprehensive disability rights reform, and we need to start work on it now. It will take a while, but really, given the ineffectual Bill before the Select Committee, what will we be losing?
I still believe that we can be world-leading in some of our social legislation. We are a small enough country that with the will, we can create something that will change life for disabled people dramatically.
I urge submitters to call for an Inclusive New Zealand Act that covers the critical issues the Access Alliance have highlighted, but so much more as well, all under one entity. Imagine the celebrations when we have a wide-ranging piece of legislation that codifies in law the rights of disabled people, and how to make them real.