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Access on the agenda

Disability Disability Rights

Access
on the agenda: No longer an afterthought

Paper delivered by Elizabeth Hastings
Disability Discrimination Commissioner 1993-97

at the
Creating Accessible Communities Conference
Fremantle,
12 November 1996

Elizabeth HAstings

Introduction: Access for the real community, not just
the imaginary one

It
is easy to discourage any vision for social change as "utopian".
It is easy to emphasise the solid, inevitable, natural quality of the
existing order, of the world as we know it, however unattractive, against
the imagined, idealistic, unpractical quality of what might be, however
desirable.

What
is, is as solid as the steps you cannot get up. As inevitable as the newspaper
print you cannot read; or the notice you cannot understand; or the rule
you cannot comply with. As natural as all the things you cannot expect
to do, the places you cannot expect to go, the economic and social and
cultural and political life you cannot expect to be fully part of - because
you have a disability.

The
feel of all of this soaks into us like (Sydney) rain. It soaks into all
of us: people who have a disability and people who don't have one, or
at least not yet. It is easy to believe that it is all too hard, too expensive;
too much to expect or to demand; that what is is what should be.

Even
for those of us who do not believe change is all too hard, it is easy
to begin to feel that any change towards equality and access is such an
uncertain experiment that it must be preceded by at least five years of
committee discussions, in the hope of getting every detail absolutely
right before one even contemplates discussing it publicly, let alone beginning
implementation. Such is the anxiety people feel about change, particularly
change of regulations and standards.

Now,
there is no doubt that getting from where we are now to a community genuinely
and thoroughly accessible to people with a disability does require effort.
Above all it appears to require an effort of imagination, as well as other
sorts of effort. But in the most fundamental sense for a democratic society,
it is the inaccessible present situation that is founded on imagination
or illusion; and the accessible and inclusive community which we seek
to imagine that is founded on reality.

I mean,
of course, that disability is an integral part of the human experience.
In the real Australian community at least 18% of the members have a disability.
In addition there are the family members, carers, friends, and collaborators
or potential collaborators in work or other enterprises, whose full participation
in the life of the community is diminished by the lack of accessibility.

Keeping
this in mind is an antidote to discouragement or excessive caution in
seeking an accessible, equal and inclusive community. A community which
includes people with a disability is not some experiment of over-bold
social engineers; it is the real community we have now, waiting to be
acknowledged. Accessibility is not an experiment we can or should defer,
while we procrastinate over whether this or that is really the right time
or the right way to try it.

In
the real community, everywhere someone's hopes and aspirations are being
thwarted, their talents are being wasted, their moral and material resources
are being used up, and often those of their family too, for every day
that goes by before the achievement of an accessible community in any
respect you can think of.

Access in the whole community, not just an artificially
limited one

"The
community" is not just a place; it is not just a house or street;
not just a new type of "placement" for bold social engineers
to accommodate people with a disability instead of sending us to institutions
with high walls. In plain speech, the real community is not exclusively
made up of local facilities for everyday life. The real community is not
only bricks, mortar and concrete, and the mere pulling down of concrete
barriers is not the provision of access to our community.

It
is no great gain for people with a disability if, instead of being dammed
up behind a few thick institutional walls, our lives are poured out into
thousands, or millions, of stagnant little puddles, allegedly in the community
but in fact isolated by lack of information, by lack of transport, by
lack of opportunity, by lack of education, by negative attitudes, from
the streams and currents and rapids and ocean waves of its real life.
(Let my people surf, as some of my Internet-obsessed staff might say.)

Of
course the ordinary aspirations of people trying to live ordinary lives
are hugely important: whether a person can get into and use the local
supermarket, video shop, bank, picture theatre, and football ground matters
a lot, particularly to that person. But "living in the community"
means more than these things.

For
example, access to a community means more than just being able to be a
consumer, or a recipient of services. It must mean at least the possibility,
if one wants it, of political participation in local, state, and national
affairs. It must mean access to the places where votes are taken and meetings
are held, and access to the information provided or exchanged there to
make participation possible or meaningful. It must mean access to all
the things we do as a community or that community membership makes possible
for an individual. It must mean education and employment; developing and
using abilities for one's own fulfilment and for the benefit of other
people.

I do
not have access to the community, as it exists for other members, if I
can participate in the local school but not in the tertiary course in
film making or science or law available to others of similar interests
and ability. Furthermore, since employment is hugely important both in
ensuring an adequate income and as a source of socially valued role and
social connectedness, I do not have equal access to many aspects of the
life of the community if I don't have equal opportunity in employment.

Access to the community as more than access to physical
spaces

Let
me follow for a moment more my point that access to the community implies
more than simply access to and in particular places in a person's local
area. Clearly, access means more than physical access alone, or more than
access only for people with a physical disability. A sign giving essential
directions which cannot be read or understood is a very effective barrier
to access, and an attitudinal barrier will exclude many people just as
effectively. But my point is also that, in the Australian community at
least, with its distances and separated populations, its reliance on technology,
access also includes access to "transactional spaces" which
are not necessarily identical with particular physical place. These "transactional
spaces" are those created by information and communications technology,
whether one is talking of "cyberspace", or of the capacity of
television to bring the world into a person's home, or of telephone communications.

Access "to" people with a disability as
well as "for"

A
little earlier I mentioned talents being wasted. I think it is important
to remember, when we are talking about an accessible community, that access
is not a one way street, even if it does have properly designed kerb ramps!
It is not just a matter of people with a disability having access to "the
community", there is also the question of whether the community has
access to people with a disability, of whether we are to be cut off like
an island continent.

In
the United States, the Clinton Administration has been fond of using phrases
like "We do not have even one American to waste!" in explaining
the need for a more accessible society, in particular the need for more
effectively inclusive education for people with a disability. Of course,
American political culture and rhetoric is different from ours, but I
would not be at all sorry to find at least this area of discussion in
Australia becoming more Americanised. I think there is something immensely
important in the idea of common citizenship, not just as a matter of common
entitlement to equality and justice, but of common opportunity to contribute
to the common good.

It
is true and good to say that people with a disability should enjoy a decent
life just because we are human beings; it is true and good to say that
we should have assistance in attaining a decent life if we need it, because
some of us do need it and we are part of a community that can afford to
provide that assistance; it is true and good to say that we should have
justice because it is just.

There
is, however, more to be said if we are not merely talking about claims
on society in the abstract, which either go unfulfilled or fall on the
State as representative of society; and certainly to talk only of claims
on the State is not enough. Entitlements to benefits gained from the State
may be and in many cases are founded on justice, but they end up being
administered and experienced as if they were founded on pure benevolence,
concern for welfare, or, that much debased word, charity. Even to be a
recipient of justice is still to be a recipient. In any case, the actual
and politically accepted roles of the State in our society are limited
and seem to be shrinking year by year.

So
I think it is essential to emphasise that access is not only about justice
for people with a disability, not only about needs. It is also about being
able to participate and contribute, to take up our responsibilities as
citizens, and the ability of other people in the community, indeed the
whole community, to benefit from this participation and contribution.

I am
not seeking here to make the frequently made point that universal design,
design for accessibility, often directly benefits many other people in
addition to people with a disability. Mind you, it is a frequently overlooked
point, a valid point and a useful one - it does not hurt to have allies
and there will be more of them for people with a disability as the Australian
population ages. But today I want to stress another point: that the contribution
and participation of people with a disability in whatever area of the
life of the community we are talking about is valuable in itself, not
just because the things that make this participation and contribution
possible also make things easier for other people.

Sometimes
this is easy to see: is it more important that computer speech processing
and synthesis equipment is convenient for lawyers who are not very good
at using a keyboard, or that it enables a Stephen Hawking to work and
communicate? But I hesitate to even mention "famous cripples"
like this in public. We do not all need to be Hawking or Beethoven or
Helen Keller, or Einstein with the attention deficit disorder now attributed
to him, for our contribution to matter and be worth having - not if we
are really a community with "not one person to waste"; not if
we are really a community "for all of us"; not if we are really
a community at all.

There
are many ways that this matters.

Will
Australian employers have access to the most effective use of the full
range of skills and abilities of all of Australia's people or only, at
most, 82%? Will our cultural, artistic, scientific endeavours? Our political
systems? Will business have access to the broadest possible potential
markets, or only to ones discounted by at least 18 per cent?

I have
tried on other occasions to encourage a raising of the level of debate
on the economics of discrimination and equality in relation to people
with a disability; to see if we might start to discuss more than just
the costs of providing access and the costs of regulatory regimes intended
to secure access and equality. I have tried to stimulate more and better
consideration of the costs of the lack of accessibility; the costs of
segregated provision of services rather than mainstream access.

This
is an issue worthy of serious attention on the microeconomic reform agenda
- not just the province of bleeding hearts.

Let
me give you a quote from the latest issue of my regular newsletter which
tries to make some of these points in a more straightforward way. I said
to my readers:

    Many
    of you will soon be doing your Christmas shopping, and taking your holidays.
    May you find accessible goods to buy, and accessible accommodation and
    entertainment to enjoy! Likewise, may those of you in the retail, hospitality
    and entertainment business reap the benefit of providing discrimination
    free services and facilities to consumers and holiday-makers with disabilities,
    and to their families and friends!

Laws for the real community

Probably
nothing I have said so far seems very new. When all we are doing is acknowledging
the real community, including people with a disability as it does, most
steps in achieving access and equality will seem obvious, boring even,
at least once they are achieved or maybe once they are sketched out. But
it has been a long road, and still is, from the consciousness of people
with a disability that we do exist and are part of the community, to the
demand that this reality be accommodated and that the required social
changes occur.

For
better or worse, this society places great faith in the law and legal
institutions as means of delivering such change. The law in Australia
has gone a long way towards recognising the real community which includes
people with a disability rather than just the imaginary community which
does not, but we are still only in the early stages of working through
the program of giving those laws real effect.

The
jurisdiction of the original federal Human Rights Commission of 1981,
on which I served as a Commissioner, included reference to United Nations
instruments on the rights of people with a disability. That jurisdiction
did not create enforceable rights in relation to disability and there
was a limited amount we were able to do with it, but in the same period,
and largely in response to the aspirations, expectations and energy surrounding
the International Year of Disabled Persons, general State laws on discrimination
were either created or amended to include people with a disability.

Through
the 1980s, the federal level of law and government produced the most sweeping
statements of inclusion and human rights for people with a disability
but, now it can be seen clearly, not in a way entirely matched by the
actual scope or practical effect of laws and programs.

Not
until the passage of the Disability Discrimination Act in 1992 did legislation
at the Federal level catch up with the rhetoric, in recognising the real
composition of the real community and requiring that all people have equal
access to the ordinary rights and responsibilities of citizenship.

The
Disability Services Act of 1986 was and is an important piece of legislation,
but for all its impressive statements of the rights of people with a disability
as human rights, it was and remains a narrowly based piece of legislation,
concerned only with our rights as users of specialised services for people
with a disability. It is, frankly, very depressing when representatives
of the disability community send me submissions, sincerely meant and developed
with scarce time and resources, that a regulatory regime on disability
access in a service for the whole community such as public transport must
explicitly reflect the Principles and Objectives of the Disability Services
Act. Why should it? How would anyone be better off if it did? These questions
are not answered; it seems to be simply assumed that if the subject matter
is in any way about disability, the Principles and Objectives of the DSA
must be applied. These Principles and Objectives are at best appropriate
for their specific area of application - they are not appropriate to be
adopted as an all purpose touchstone of simple faith.

In
this State of Western Australia, and also in New South Wales, the State
Disability Services Act performs much wider functions than in other states
and territories. As well as regulating services specific to people with
a disability, it requires Government departments and agencies, whatever
sort of service they provide to the public, to develop plans indicating
how they will ensure that their services are equally effectively provided
to those members of the public who have a disability.

From
what I have seen, the Disability Services Commission here in Western Australia
is exercising its mandate under this legislation with an energy, intelligence
and focus on practical results unsurpassed anywhere else in Australia.
I have been particularly impressed by the recently released checklists
for achieving accessibility, and I shall certainly be taking up the invitation
in those materials to reproduce their content. They give clear guidance
as to what must be done in order to comply with the provisions of the
Disability Discrimination Act, and the Western Australia Equal Opportunity
Act, to create inclusive community.

Action plans for Commonwealth Government

In
1994 Federal Cabinet adopted the Commonwealth Disability Strategy as,
amongst other things, a policy response to the requirements of the DDA.
The Strategy as adopted included a commitment that Commonwealth departments
and agencies would lodge Action Plans under the DDA. These would be their
own plans on how to ensure that the Commonwealth's own agencies comply
with the Commonwealth's own legislation, and would be lodged by 1997.

To
date only one such plan has lodged by a Commonwealth Department or agency.
This contrasts with a steady stream of Action Plans from education providers
and local government authorities, and plans beginning to come in from
State government and private business enterprises. Let me admit at once
that the Human Rights and Equal Opportunity Commission is only now finalising
its own Action Plan - these things always take longer than you expect!

Let
me admit further that, although the guidance material which we prepared
for Commonwealth agencies on development of action plans was widely praised
when it was distributed, clearly this material has not yet been as successful
in practice as we hoped it would be in assisting those responsible for
producing Action Plans. A perception seems to have developed, in some
Departments at least, that preparing a plan needs to be a vast, resource-
consuming bureaucratic exercise.

The
Commission will be consulting with departments over the next few months
to see if any further assistance or clarification we or others can provide
would assist in getting results.

Although
elements of the process under the Western Australian Disability Services
Act and the DDA are different and should not be confused, I think organisations,
including Commonwealth departments or agencies, looking at developing
a DDA Action Plan could do much worse than pick up and work through the
checklists developed by the Western Australian Disability Services Commission.

In
the Human Rights and Equal Opportunity Commission's own guidance material
in this area, we have tried to direct attention to some basic points:

  • can
    people with a disability get in to the places where Commonwealth laws
    and programs are administered?
  • if
    they cannot now, what is being done to achieve equal access over time?
  • what
    is being done to ensure access to the program where access to the particular
    building is not yet provided?
  • can
    people with a disability communicate with the agency and receive information
    from it?
  • will
    they be treated with equal respect and effectiveness by staff as the
    users of an agency's services?

It
cannot, surely, be too hard to make a plan to address these points and
to identify what further points might need to be addressed in future revisions
of an initial plan.

Action plans for business and other sectors

I
am reinforced in this view, that it is not too hard just to make a plan
and make a start on the road towards accessibility, by the response that
I am getting in my current work promoting the Action Plan concept to business
organisations and major enterprises.

An
Action Plan is not an absolute defence against complaints; but it does
provide an enterprise with a structure for arranging its own effort towards
compliance with the DDA before complaints force a response on it. An Action
Plan developed and implemented with a reasonable degree of commitment
is likely enough to persuade most people who could make disability discrimination
complaints not to: most people with a disability are amazingly eager to
be reasonable, given the opportunity.

Most
managers are not aware of the ways in which existing ordinary practices
may exclude people with disabilities. I have consistently found that people
become very interested and enthusiastic once we start to discuss the concrete
and practical things they can do to make their enterprise more accessible.

I have
referred in my regular Newsletter to the fact that an organisation as
large and significant as Telstra is working on an Action Plan, which I
hope will be launched in the very near future. Another major enterprise
in the telecommunications industry is also interested in developing an
Action Plan, and several major banks are actively engaged in work towards
a Plan or giving it serious consideration.

Here
in Western Australia there is what I think is the outstanding example
of the Department of Transport's Action Plan. I have no doubt that areas
needing improvement, addition and revision will become apparent with experience,
but I think this Plan, as it is, is significant. It is particularly so
for the commitment to effective consultation with people with a disability
that went into its development, done in a way that appears to have produced
effective input without unproductive delay in getting a final result;
for the breadth of issues it covers; and for its adoption of meaningful
targets and definitions of what the access aimed for means.

What access means

"What
the access aimed for means." This of course is where we get to the
hard part. It is all very well to tell builders or designers of other
facilities or systems that they should consult people with a disability
- and so they should. But because our needs are various and individual,
the answers someone will get, who actually needs to make a decision, may
well also be various and individual, and more or less comprehensive, depending
who is consulted. This is why if accessibility is to implemented or even
attempted, it is important to have agreed or authoritative standards stating
clearly what access means in different situations.

Standards

When
the DDA was passed, provision was made for rights and obligations to be
set out in more detail and with more certainty through instruments to
be known as "Disability Standards", which could be developed
by the Attorney-General, subject of course to approval or amendment by
the Federal Parliament. Once a Standard is in force, actions in conformity
with that Standard are protected from being unlawful acts under the DDA.

It
was recognised that, in the interests of everyone involved, there needed
to be better ways of deciding how, when and where services should be made
accessible, rather than fighting about it case by case by case, or having
design of services and facilities dependent on the progress of more or
less random complaints and how those complaints are handled by different
courts and tribunals interpreting the very general terms of discrimination
laws.

Transport
standards

Against
this background, and in response to a number of complaints under the DDA,
the Australian Transport Council established a Taskforce to develop draft
Disability Standards for accessibility of public transport. I represented
the Attorney-General on that Taskforce. As well as representatives of
all Transport Ministers, the Taskforce included representatives of the
bus and coach and taxi industries, and a number of representatives of
people with a disability.

After
extensive consultative processes, the Taskforce agreed on draft Standards.
In turn the Ministers referred the draft Standards, agreed to be "a
technically feasible" way of providing access, to the Attorney-General
in June this year.

The
draft Standards set out a twenty year timetable for moving to more fully
equal accessibility of public transport services. This timetable includes
some points which have to be achieved substantially earlier: in particular
the Standards, when adopted, would apply to all new equipment and facilities
from that point.

The
draft Standards also provide transport operators with the capacity to
argue that some obligations should be deferred within or beyond the twenty
year period, or in exceptional cases should not apply at all; they preserve
the existing ability of operators to argue that in particular circumstances
providing equal access would impose unjustifiable hardship.

The
draft Standards attempt to provide an appropriate combination of flexibility
and certainty. They contain a mix of performance requirements, and more
detailed technical specifications of one or more acceptable ways of complying
with these requirements. Most of these specifications simply apply existing
Australian Standards.

The
draft Standards do not purport to deal with every last operational issue
or every possible user requirement, but in my view they represent a vast
advance on the present position in terms of everyone being able to see
in some detail what is required of them and how and by when it should
be achieved.

The
Attorney-General's Department has commenced the Regulatory Impact Statement
("RIS") process required before the draft Standards on public
transport can be considered for adoption.

For
people who want to comment on the draft, for transport providers preparing
Action Plans, and for people with a disability and others seeking resolution
of issues of non-discriminatory access to public transport, copies of
the Draft Standard can be obtained from the Human Rights Branch of the
Commonwealth Attorney-General's Department.

Education
standards

Inspired
in part by the progress made with Transport Standards under the DDA, Education
Ministers have also established a Task Force to consider development of
Standards. Although the Commission is not directly represented on this,
I have been able to meet with this group and separately with many of its
members. I have shared with them the Commission's experience in the development
of other Standards and information which we have accumulated, through
the complaints process and in discussions in five States with a large
number of parent groups, teachers' unions, education providers and policy
makers, about major barriers and challenges which must be addressed if
people with a disability are to achieve equality of access to and participation
in education.

The
Commission has contributed to drafting of example Standards to be included
in the next report of the Task Force to Education Ministers in December,
and will continue to contribute to this important project as it progresses.

Employment
standards

At
the request of the DDA Standards Project (the disability community representatives)
the period for comment on a draft Disability Standard on discrimination
in employment has been extended, from the 29 November date originally
agreed, to the end of February 1997. It is disappointing that this will
inevitably delay further consideration of Standards in this area, but
a revised draft will be issued for further comment as soon as possible.
The draft Standard is available from my office in standard or large print,
Braille or tape, and is also now available at the Commission's site on
the Internet.

Commonwealth
Government information and communications

The
possible need for a DDA Standard on equal access to Commonwealth Government
information and communications has been raised from a number of sources,
including in the settlement last year of a complaint by the National Federation
of Blind Citizens of Australia. After what I think are unconscionably
long delays, for a number of reasons which I will no go into here other
than to make clear they were not my or the Commission's doing, an Issues
Paper in this area has just been released for discussion. The Issues Paper
is available in a range of formats from the Human Rights Branch of the
Commonwealth Attorney-General's Department. This paper is also available
on the Commission's site on the World Wide Web.

The
discussion of issues in this paper is clearly dated in some respects,
not surprisingly since the initial draft was done (by my office) over
a year ago, but here are the main issues raised:

General
issues

  • How
    far should Standards go beyond a general obligation to provide equal
    access? Should they specify particular forms and formats in which information
    and communication is and is not required to be provided?
  • What
    requirements should apply only where requested by a person with a disability
    rather than as a matter of routine?
  • In
    situations where fully equal access is not required or possible, does
    any "second best" rule apply about the level of access?
  • Do
    Standards need to address the question of additional fees or charges
    for providing information in non-standard forms?

Access
to information materials produced in print

  • Must
    materials always be made available in Braille? In large print? On tape/other
    audio form? On computer disc? On sign language video? In other forms
    such as "words and pictures"?
  • In
    what circumstances do some formats not need to be produced?
  • What
    production standards should be applied to these formats?
  • May
    production and distribution of non-standard print formats be contracted
    out to commercial producers or community organisations? Or must non-standard
    print materials be available from the same source as standard print?
  • Should
    non-standard print versions of information always be made available
    at the same time as standard print material? If not, what "second
    best" rules apply?
  • Other
    than "words and pictures" and "plain language" versions
    of print, what means would enable equal access for people whose disability
    involves difficulties with comprehension?
  • When
    should readers or other assistants have to be provided to afford access
    to printed materials?

Computerised
information

  • How
    far may on-line access (or other computerised information such as computer
    disc or compact disc) substitute for direct production by agencies of
    Braille, large print and audio output?
  • What,
    if any, technical requirements should Standards address (e.g. to ensure
    that output is accessible and that material can be translated between
    formats)?
  • What,
    specifically, should Standards on information and communication say
    about physical accessibility of equipment and facilities used to provide
    access on computer?
  • Can/should
    Standards include anything about making access to computerised information
    easier for people with comprehension difficulties?
  • The
    Commonwealth may in some cases rely on electronic transfer of information
    rather than on direct production of materials in forms other than standard
    print. If it does this, how far must it increase individuals' and/or
    organisations' capacity to receive information electronically and reproduce
    it in appropriate forms (e.g. by provision of funds, equipment, staff
    assistance or training)?

Broadcast
information

  • Should
    DDA Standards say something about captioning of Commonwealth information
    broadcast on television (e.g. information from the Australian Electoral
    Commission and free time allocated to political parties)?
  • Should
    DDA Standards say anything else about equal access to broadcast information?

Telephone
communications

  • Should
    Commonwealth agencies have to provide direct TTY access? Could they
    provide access in some or all circumstances by other means, such as
    through the national relay service or through computer networks?
  • Should
    DDA Standards set specific requirements about relay services?
  • Where
    there is direct TTY access, what level of access should be provided?
  • Should
    DDA Standards say something about telebrailler access?
  • Should
    DDA Standards say something about voice amplification features of telephones?

Face
to face communications

  • When
    should Commonwealth authorities have to provide interpreters, note-takers
    or other assistants?
  • What
    qualifications/accreditation should such assistants have?
  • What
    equipment should Commonwealth authorities have to provide? What equipment
    should be the responsibility of the person with a disability?
  • Should
    communications facilities such as hearing loops be addressed in these
    Standards, or in Standards about Commonwealth premises?

These
issues, and the rest of the paper, have been released to encourage discussion
and to alert interested parties to the kind of issues being considered
by the group considered drafting of Standards in this area. Draft Standards
to be released for public comment some time in 1997 will be informed by
responses received to this paper, but drafting is likely to commence soon
- probably as early as next month - rather than waiting for an extended
period for extensive responses to the discussion paper to accumulate.

Built environment and the Building Code of Australia
(BCA)

Over
the past few months I have received a number of requests from the building
industry, designers, regulators, managers and users for the Commission
to develop guidelines to clarify what does and does not constitute discrimination
in "access to and use of premises"' under the DDA.

I decided
last month that I would commence work on such draft guidelines, as a statement
of principle and policy of the Commission. I shall be seeking comments
from interested organisations and individuals towards the end of the year
with a view to the guidelines being adopted by the Commission in March
1997. I hope that these guidelines will be particularly useful to people
and organisations in the process of developing premises.

Guidelines
will effectively answer the question "What can developers, owners,
managers, operators and regulators do to eliminate discrimination against
people a disabilities and thereby reduce the chance of a successful complaint
against them under the DDA?" Guidelines would be the Commission's
opinion of what would, under normal circumstances, amount to reasonable
access in the context of the objects of the DDA.

The
defence of unjustifiable hardship as provided for in the DDA would not
be altered by the issuing of a guideline, although the Commission would
consider the degree to which a respondent had achieved the level of access
described in the guideline when considering a complaint.

The
draft guideline will be available by the middle of December and open for
comments until by late February 1997. Again, it will be published on the
Internet.

The
issuing of guidelines is a process quite separate from the negotiations
and consultation taking place over the revision of the Building Code of
Australia.

There
is no question that I support the Australian Building Codes Board's revision
of the BCA, which I see as a fundamental component of the response to
calls for equitable and dignified access. The Guidelines are intended
to promote exactly this.

For
anyone not familiar with the detail of processes in this area, let me
try to set out the major points.

The
Australian Building Code Board (ABCB), which is responsible for the BCA,
launched the new BCA 96 at its national conference on 14 October.

BCA
96 is primarily a performance based code which attempts to encourage architects,
builders, managers and regulators to move towards innovative ways of achieving
high standards of safety, health and amenity in the construction of buildings.
BCA 96 does, however, also contain specifications which are "deemed
to satisfy" particular performance requirements, and there are a
number of significant changes and additions in the area of access for
people with disabilities.

BCA
96 will not be given authoritative effect through State and Territory
laws until at least mid 1997 because of legislative requirements.

The
ABCB has made it very clear that the launch of BCA 96 in no way alters
their commitment to completing their review of the BCA in order to achieve
consistency with the requirements of the DDA. This review is now well
under way. The period for comment on the Discussion Paper which the ABCB
released at the end of July has now closed and the ABCB will be looking
at responses with a view to releasing a further paper early in 1997 with
specific proposals for changes to the BCA.

I value
the opportunity to contribute to revising the BCA so it gives adequate
guidance about providing access that complies with the DDA. My membership
of the Building Access Policy Committee, and participation in the review
of the BCA, however, does not limit my current responsibilities to ensure
that the objects of the DDA are achieved.

Issues
surrounding equitable access to and use of premises are complex and require
work on a number of fronts and so it is important that all those involved
coordinate actions across our respective areas of responsibility. I have,
in proposing that the Commission issue guidelines, responded to very constructive
requests from my colleagues in the BCA revision process and builders,
designers, operators, users and regulators in the community. I welcome
assurances of support I have received from a number of sources for the
development of interim guidelines and the significant role they have to
play in attaining certainty in relation to stakeholder rights and responsibilities
under the DDA.

Telecommunications reform

Another
very important area of access where I have been asked to develop guidelines
is access to telecommunications services.

You
are probably aware of a determination last year by the President of the
Commission in a case brought against Telstra by a Perth man, Mr Scott,
who wanted Telstra to provide him with a TTY since, being deaf, he could
not use a standard handset. Sir Ronald Wilson upheld the complaint, and
Telstra is not only complying with the decision in respect of Mr Scott
and thousands of others similarly situated, but as I have said earlier
is planning to launch an Action Plan shortly indicating how it will provide
nondiscriminatory access to its services more generally.

One
of the results of this case appears to be in the provisions of the draft
Telecommunications Bill released recently by the Government. The "standard
telephone service" which carriers are required to deliver has been
redefined to include not just standard handsets, but other equipment required
to provide equal access for a person with a disability. The Bill does
not prescribe precisely what equipment and facilities must be provided
in particular circumstances; the approach, rather, is that what is required
is whatever is needed to comply with the DDA - hence the request to me
from a major disability organisation for guidelines on the effect of the
DDA in this area.

I am
giving this request serious consideration, and have not yet decided whether
such guidelines under the DDA should be prepared. The Telecommunications
Bill provides for the making of its own "disability standards"
to define what obligations in this area mean in detail, and this provision
is clearer than that in the DDA in requiring consultation with affected
parties before such Standards are made. Standards as proposed under the
Telecommunications Bill, however, do not provide an absolute defence under
the DDA as DDA Disability Standards would.

I hope
to have further discussions with the Department of Communications in the
near future to assist me in determining what role the Commission can best
play in this area.

World Wide Web access paper

Because
of the increasing importance of the Internet as a means of publication,
and its potential as a means of access to information for people with
a disability, I have issued a paper seeking comment on the possibility
of the Commission adopting guidelines under the DDA on accessibility of
World Wide Web pages. Distribution of this paper will be primarily through
the Internet but it is available from my office on paper - if you must
have it that way! - or in other formats. I hope that this paper will provoke
debate in an area which has seen much work and interest overseas, but
as far as I can determine not nearly enough in Australia to date.

Conclusion

I
have sought in this paper to indicate some of the scope suggested by the
phrase "accessible communities". As you have seen, this idea
takes us ranging widely through different aspects of the experience of
being a human being in community with all human beings. The primary experience
of a human being with a disability, at least the primary experience in
relation to community, is one of thoughtless, unnecessary and hurtful
exclusion from nearly every social, political, educational, cultural,
commercial or communication transaction. To encounter a barrier to freedom
of movement or interaction once in a lifetime seems to send some people
into a frenzy of punitive litigation; to encounter such barriers all day
every day is the ordinary experience of people who have a disability.
Luckily for those who have carelessly erected these barriers, people who
have disabilities are much better at accommodating to a hostile environment
than those without disabilities are at accommodating energetic, involved,
money-spending, talented and responsible citizens with disabilities. If
this were not so our courts would be entirely devoted to restoring the
taken-away rights of people who have disabilities.

I commend
this conference for its proactive emphasis, and trust that you will arrive
at solutions and plans which will, once and for all, bring an end to the
artificially constructed, excluding universe in which we have lived till
now. Yes; I do wish to change the world as we know it.