Presentation to Ozewai Conference
December 5, 2007
Good morning everyone. I begin by acknowledging the traditional owners of the land on which we're meeting today.
I've always been fascinated by numbers. Although remembering some of my maths exam results, I'm not so sure that they have been as fascinated by me. If you ask a group of people to say the first number that comes into their heads, you'll get a lot of 7's. Perhaps it's because we all have an intuitive awareness that 7 is the smallest number of faces of a regular polygon that cannot be constructed with a ruler and compass. But other numbers are interesting too: for example, do you realise that 92 is the number of arrangements of 8 non-attacking queens on a standard chess board; or that 109 is a palindromic number in bases 5 and 9; or that 264 is the largest known number that has an undulating square (and if you want to know what an undulating square is, ask me tonight after I've had a few beers at the bbq and I'll give you a demonstration). Another number that interests me is 404, as in “htp error 404: file not found”. You know how it is: you do a Google search and on page 29 of the results you find the first match that's remotely relevant. You click on it and then you get it: “http 404: file not found”. Why 404: what about errors 1-403? The reason is almost stranger than fiction: when the bright young scientists at CERN in Switzerland were laying the foundations of the Worldwide Web in the early 90's, they used the locations of the buildings and offices in which they worked as a metaphor for the emerging virtual environment. When a user on the CERN network sent a request to access the database, it was processed in Room 404. If the request could not be fulfilled, then the user received a message “Room 404: file not found”. And so, when the HTTP specification was released, the “404” was retained in honour of its humble beginnings. And as well as a curious fact about the number 404, this glimpse into the genesis of the web reminds us that for all its appearance of rationality and mathematical precision, the Internet is spiced with qualities that are comfortingly human.
As someone who spends quite a lot of time thinking and talking about the relationship of the web to people with disability, I'm tempted to change that statement to be “discomfortingly human”. When web developers tell me that they're more concerned about using alt-text to achieve search engine optimisation than to make their pages accessible, I do wonder where we're hading; and when companies with billion-dollar budgets tell me that they can't find the money to provide an accessible alternative to the visual captcha on their Blog pages, I wonder where exactly we've come from. Do you remember that scene near the beginning of the movie 2001: A Space Odyssey, where the apes twig to the fact that a piece of bone can be used as a weapon? The bone is thrown into the air, and rotates slowly, gradually being transformed into a spaceship. A bone can be a constructive foundation, or it can be a weapon; a spaceship can be a symbol of exploration and the genius of the human spirit or it, too, can be a weapon of destruction. We humans are able to take any object in the external world, or anything that we create, and transform it into either a healing fountain or a toxic spring. The web is, in this sense, just another of our creations, and its constant undulations say as much about our values and ethics as they do about developments in protocols and technology.
There's a parable that's worth recounting here: there was an old couple who lived in a remote part of the Scottish highlands. They lived a very simple, isolated life, and had none of the trappings of our modern society. One day when the husband was away tending their sheep, the wife found a small mirror on the ground outside the house. She and her husband had never seen a mirror before, and she was fascinated to find that when she looked into it, she saw a young, beautiful, and smooth-skinned woman. She decided not to tell her husband about the mirror, in case he was seduced by this woman, but her husband noticed that she spent longer and longer each day looking at this small piece of glass. He became jealous, and concluded that the glass must be magic, and that it must contain his wife's lover. One day, he managed to steal the mirror when his wife was out, and although it pained him that he was no longer the object of his wife's affections after all their years together, he decided to take a look. He looked into the mirror, and exclaimed, “why? How could my wife have an affair with someone as old and wrinkled as that!”
Although legislation, standards and guidelines are not, of themselves, sufficient to guarantee an accessible web, they are necessary and valuable, and provide us with the tools to enable us to put our values into practice. Today I want to focus on this ensemble. Some of what I say will be familiar to you, some of it may not. But the bottom line is that we all have a part to play in the process of developing and implementing this ensemble.
Disability Discrimination Act (DDA)
The DDA is the key piece of Commonwealth legislation that relates to discrimination against the 20% of Australians who have a disability. Under the DDA, it is unlawful to discriminate against a person on the grounds of a disability.
The objects of the DDA include eliminating, as far as possible, discrimination against people with disabilities, and promoting recognition and acceptance that people with a disability have the same fundamental rights as the rest of the community.
The DDA uses a broad definition of “disability” that includes:
- Neurological, and
- Learning disabilities, as well as
- Physical disfigurement, and
- The presence in the body of disease-causing organisms.
It is worth noting, at this point, that the DDA definition of disability is broader than that used by the Australian Bureau of Statistics (ABS) in arriving at a figure for the percentage of the population that has a disability. In the context of web design and content management, the broader definition is particularly relevant. For example, people who have a temporary disability such as a broken arm will still want or need to be able to use the Internet, and so web pages that incorporate the principles of universal web design will benefit a much broader group than even the 20% figure that I quoted earlier.
Disability theorists such as Lennard Davis are emphasising that disability is not and should not be seen as some “exceptional” feature of human experience. As infants, we are all “disabled” in that we lack autonomy and independence, and there's a very good chance that sooner or later all of us will experience it again, as we age or following illness or injury. This insight suggests that making our society more accessible has benefits that extend far beyond the 20% suggested by the statistics. It also bears witness to the wisdom and far-sightedness of those who framed the DDA legislation.
The DDA sets out specific areas in which it is unlawful to discriminate. These areas include access to premises; accommodation; education; employment; the provision of goods, services and facilities; and the administration of Commonwealth laws and programmes. The definitions of “goods” and “services” in the DDA include the kinds of services provided for example, by banks and other financial institutions, retail shops, churches, cinemas, television stations, as well as services provided by government departments and agencies. An organisation such as a government department that provides services or information through a website is also liable for complaint under the DDA if those services are not accessible to people with a disability.
The DDA defines two kinds of discrimination: direct discrimination is when a person with a disability is treated less favourably because of that disability. An example would be if a university refused to allow a blind student to enrol, or if a shop assistant refused to serve a person because they were using a dog guide. Indirect discrimination refers to treatment that, on the face of it, is not discriminatory, but which actually has a disproportionate impact on people with a particular disability. For example, an employer might require that applicants for a particular job have a driver's license, even though the job does not involve driving. Such a requirement would indirectly discriminate against people who are blind or who have another disability that prevents them from driving a car. Providing emergency service information only in audio form may also involve indirect discrimination, as it would not be accessible to many people who are deaf or hearing-impaired. A website that requires the user to complete a visual verification procedure such as a captcha would discriminate against people who are blind or who have another disability that prevents them from deciphering the characters.
The DDA does recognise, however, that in certain circumstances, providing equitable access for people with disabilities could cause “unjustifiable hardship” for an individual or organisation providing goods or services.
Where a person with a disability believes they have been discriminated against, they can lodge a complaint with the Commission, which will investigate the complaint and attempt to conciliate a solution between the two parties. Where conciliation is not possible, the complainant may take their complaint to the Federal Court or Federal Magistrates Service, which have the authority to determine whether unlawful discrimination has occurred and what constitutes “unjustifiable hardship”. If the court concludes that removing discrimination would cause unjustifiable hardship, then the complaint is not upheld, that is, although there may be a finding of discrimination, there is no finding of unlawful discrimination.
There are two points to keep in mind about this notion of unjustifiable hardship: firstly, it implies that removing discrimination may involve some justifiable hardship - it is not enough for an organisation defending a complaint of disability discrimination simply to say that removing discrimination will be hard. Rather, the question is when that hardship becomes unjustifiable, and the answer will depend on a number of factors that can be considered by the court. Secondly, the concept of unjustifiable hardship recognises that not all discrimination can be removed, and that the rights of people with a disability are part of a social framework whose diverse and sometimes incompatible elements must be balanced.
Having said that, it is important to note that the defence of “unjustifiable hardship” is not available where a complaint relates to the administration of Commonwealth laws and programmes. This reflects the government's view that it has a particular responsibility to promote the objectives of the DDA, and to eliminate discrimination against people with a disability. In the context of information access and web accessibility, this means
Even in the case of non-government websites, it is hard to see how a website developer could succeed with a claim of unjustifiable hardship. We've had international best-practice standards in the area of web accessibility for 6 years now, and there is a lot of well-publicised and easily-available information and training on how to use them; there are also quite a few very good software tools that assist in the testing of websites for accessibility. The most recent one that I've become aware of is AccessEd, which is able to test intranet and secure sites as well as publicly-available websites, and it can also test the content in learning management systems such as Blackboard and Webct. Its developers say that it produces “plain English” descriptions and diagnostics.
The DDA operates primarily through a complaints-based mechanism. When lawyers say that, they're not implying that people who use it are complainers in the sense of being whiners and whingers. Unless instances of discrimination are exposed, they can't be addressed, and the complaints process is the way the DDA has decided is the most appropriate way for these incidents to be exposed. Unfortunately, there is a strong vein of stoicism in the Australian psyche that makes the British “stiff upper lip” look rather wimpish. Some sections of the disability community use the DDA less effectively than others, mainly because there is a perception that complaining is somehow wrong and litigious. This perception is quite convenient for potential discriminators, and in my view is one reason why web accessibility is not as much a part of the mainstream web development agenda as it was, say, 5 years ago. In my presentation tomorrow I'll be suggesting some approaches for remedying this situation, but for now I want to make it clear that the DDA is only effective when it is used, and it can only be used when all of us promote its objects in our work, in our talk, and in our lives.
Before moving on to discuss standards and guidelines, I thought it would be worth mentioning that the DDA includes a provision that establishes vicarious liability. This is Section 122, and it reads:
“A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.”
There have been comparatively few DDA complaints that have relied on this provision, but what it essentially means in the context of web accessibility is that developers who fail to advise their clients that a suggested design or content format will be inaccessible may themselves be liable for a DDA complaint, along with the client.
Although the DDA is based on a complaints mechanism, it does has several additional ways of achieving its objectives. One of these is the development of DDA Standards. Compliance with one of these standards is deemed to be compliance with the DDA itself in the area covered by the standard. So far, DDA Standards have been developed for public transport and education, and a considerable amount of work has been done on the development of a Standard covering access to premises. DDA Standards are important because they have systemic outcomes and can lead to significant change. For example, the DDA Standard for accessible public transport will, over the next 30 years, lead to one of the biggest changes to Australia 's transport infrastructure in our history.
There is no provision in the DDA for the development of mandatory standards for web accessibility. Some see this as a deficiency, while others point to the protracted nature of the standards development and maintenance process and prefer a less formal but more expeditious approach. The Commission continues to work with various sectors in the development of voluntary standards and guidelines. In consultation with the Australian Bankers Association (ABA) we developed standards for electronic banking, and only yesterday we announced the release of Guiding Principles for Accessible Authentication, which we've developed in collaboration with ABA and the financial services industry. Last year we were involved with the Communications Alliance in the development of a voluntary code for the design and deployment of accessible public payphones. These are voluntary standards and guidelines, and compliance with them does not constitute compliance with the DDA (that is, complaints can still be lodged), however, they do represent the outcome of a process of consensus-building, and the partnerships that are formed often lead to ongoing collaboration and good will. As I'll discuss in more detail tomorrow, the development of partnerships, in the context of community, openness and consultation, are essential if we are to eliminate disability discrimination. The voluntary nature of the standards and guidelines generally facilitates the process of development, and helps establish benchmarks for best practice.
The Commission has, as most of you are no doubt aware, published Web Accessibility Advisory Notes, which are not technical specifications, but advice about how to meet responsibilities under the DDA. These Notes reference the Web Content Accessibility Guidelines (WCAG) 1.0 which, in our view, is the international benchmark for best practice in accessible web design. Again as most of you know, the Web Accessibility Initiative (WAI) has been working hard on the development of version 2 of these guidelines, and a Last Call Working Draft is expected in the next couple of months. It's very encouraging to be able to report that a number of web accessibility experts in Australia have had a significant impact on shaping the emerging guidelines by providing comments on the various guidelines as they have been release. I have several discussions with representatives from the development committee, and I can tell you that Australian views are actively sought and valued. If you haven't so far submitted comments, then I encourage you to do so when the final draft is released.
We are hopeful that WCAG 2.0 will provide a stable and comprehensive framework for promoting and implementing accessibility as the Internet continues its rapid evolution. They probably won't be the last word on accessibility, though, and it may be that they will need to be supplemented with other guidelines in order to ensure that the objects of the DDA are achieved in cyber-space. One area, for example, where the WCAG2.0 guidelines have been criticised is access for people with cognitive disabilities. Once the final form of WCAG2.0 is known, we will assess them in the Australian context, and consult with the web accessibility community about how best to implement them and, if necessary, supplement them. I do want to assure you, however, that we are firmly of the view that it is important for Australia to implement guidelines that have international currency. The Web transcends geographical boundaries, and it's hard to see how a multiplicity of guidelines implemented only at the national level. One of the challenges that WCAG2.0 will pose for us is to find a way of developing policies that balance the various stakeholder interests but which will also integrate with international developments. We are prepared to participate in international efforts to develop any guidelines that may be necessary to supplement WCAG2.0.
Before leaving this subject, I want to stress that we support openness and transparency in the development of standards and guidelines. While the WCAG2.0 development cycle has not been without its critics, it has nevertheless provided for input from the public and the development committee remains identifiable and accountable to the community. Web accessibility is an evolving field of theory and practice, just as the Web itself is evolving, and we encourage vigorous, open and respectful discussion as a way for us to increase our knowledge, refine our views and build consensus.
Observing the Conventions
At the beginning of this presentation I referred to “http”, which is one of the protocols that drive the web. From “protocol”, it is only a small linguistic leap to “convention”, and for those of us in the disability rights field, the word “convention” connotes but one thing at present, the UN Convention on the Rights of Persons with Disabilities, which was adopted by the UN General Assembly on 13 December 2006. Australia was among the first countries to sign the Convention when it opened for signature on March 30 2007. Now, you might think that a UN Convention has little to do with web accessibility in Melbourne or Sydney, but it actually has quite a lot to do with it. For one thing, the Convention is far-reaching in its scope, and over time, it is likely to have a beneficial impact on changing the worldwide perception of disability and, hence, a positive impact on many aspects of life for people with disabilities. For another, it specifically identifies access to the Internet and information as part of an ensemble of fundamental rights and freedoms that should be enjoyed by people with disabilities. I think it is useful to keep the Convention in our minds as we discuss the Web during this week's conference, and so I'll provide you with a very brief overview of its content and sketch the procedures for its ratification.
Don Mckay, the Chair of the committee that negotiated the Convention, summarised its basic purpose: “What the Convention endeavours to do is to elaborate in detail the rights of persons with disabilities and set out a code of implementation”.
The Convention itself contains 50 articles. There is also an 18-article Optional Protocol on Communications that allows individuals and groups to petition the Committee on the Rights of Persons with Disabilities (which is established by Articles 34-39 of the Convention) if all national recourse procedures have been exhausted.
Article 3 of the Convention establishes the 8 general principles on which it is founded, namely:
a. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
c. Full and effective participation and inclusion in society;
d. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
e. Equality of opportunity;
g. Equality between men and women;
h. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Article 4 sets out the general obligations that parties to the Convention undertake for securing the rights recognised in the Convention, and the abolition of laws, regulations, customs and practices that constitute discrimination against people with disabilities.
Article 6 requires that countries ensure the equal rights and advancement of women and girls with disabilities; Article 8 requires protection of children with disabilities, and Article 10 obligates countries to guarantee that persons with disabilities enjoy their inherent right to life on an equal basis with others.
Under Article 15, countries must guarantee freedom from torture and from cruel, inhuman or degrading treatment or punishment, and prohibit medical or scientific experiments without the consent of the person concerned.
Under Article 17, countries must protect the physical and mental integrity of persons with disabilities, just as for everyone else.
Other Articles in the Convention deal with access to justice (article 13), independent living (Article 19), access to information (Article 21), education (Article 24), health (Article 25), work and employment (Article 27), and culture, leisure and sport (Article 20).
Probably the article of most direct relevance to our topic today is Article 9, which is titled “Accessibility”. I'll quote it in full, because it has significant and far-reaching implications for access, including access to cyber-space:
“1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
a. Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
b. Information, communications and other services, including electronic services and emergency services.
2. States Parties shall also take appropriate measures to:
a. Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to he public;
b. Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;
c. Provide training for stakeholders on accessibility issues facing persons with disabilities;
d. Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms;
e. Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;
f. Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;
g. Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;
h. Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.”
There is a lot to digest and analyse here, and unfortunately I don't have time to do either. Suffice to say that I look forward to conversations in the coming months with and between the disability sector, government and industry about the application of this article to those areas covered by the DDA, including access to cyber-space. I also encourage you all as part of Ozewai to play a leadership role in focussing attention on the implications of this article, and the Convention generally for access to the Web.
Australia was among the first countries to sign the main Convention, but it is important to stress that the Convention won't come into force until it is ratified. At present, 120 countries have signed the Convention, and 8 have ratified it. Before Australia is in a position to ratify a UN treaty (of which the Convention is an example), it must be tabled in both houses of parliament• treaties are tabled in the Parliament with a National Interest Analysis which notes the reasons why Australia should become a party to the treaty. Where relevant, this includes a discussion of the foreseeable economic, environmental, social and cultural effects of the treaty action; the obligations imposed by the treaty; its direct financial costs to Australia ; how the treaty will be implemented domestically; what consultation has occurred in relation to the treaty, and whether the treaty provides for withdrawal or denunciation.
So there is some way to go yet before we ratify the Convention, and there will be ample opportunity for discussion and analysis of the implications of the Convention for Australia . In the Commission's Disability Rights Unit, we have already started to explore how we can use the Convention as a thematic structure for our activities, and our website has links to resources for anyone who is interested in finding out more about the Convention.
In Australia , our laws are fairly advanced in areas such as disability discrimination, and so there may be less direct impact of the Convention than in those parts of the world that have yet to incorporate measures aimed at eliminating such discrimination. But I do think that, over time, the Convention will have a big impact here too, if only because it will provide further legitimacy and stimulus to advocacy and lobbying activities. The Convention was negotiated for quickly than any other UN rights-based Convention, and this is a clear indication of the universal recognition that people with disability are a vital part of the global community. The Convention may not tall us how to label our graphics, but it does tell us that accessibility is a core part of human rights, and it will give us confidence to move forward towards the freedom dignity and equality that accessibility can bring.
Section 508 Refresh
Moving now from the UN to the US . In 1968, almost one year before man walked on the moon for the first time, the US Congress enacted the Architectural Barriers Act, which was designed to make US federal government facilities fully accessible to people with disabilities. By 1973 it was clear that the Act's implementation was patchy at best, and so the Architectural and Transportation Barriers Compliance Board was created, to monitor compliance and develop minimum technical standards. Throughout the 70's and 80's, this Board (which came to be known as the Access Board) had its authority strengthened, and the passage of the Americans with Disabilities Act of 1990 extended its mandate to include: developing the accessibility guidelines for facilities and transit vehicles covered by the law; providing technical assistance and training on these guidelines; and conducting research to support and maintain the guidelines.
In 1996, the Board's mandate was extended still further when Section 255 of the US telecommunications Act required that telecommunications products and services be accessible to people with disabilities when such access is “readily achievable”. The Board was empowered to make guidelines on what access means in practice.
In 1998, a further extension of the Board's mission took place, to include access to electronic and information technology. On August 7, 1998, President Clinton signed into law the Rehabilitation Act Amendments of 1998 which cover access to federally funded programs and services. The law strengthens section 508 of the Rehabilitation Act and requires access to electronic and information technology provided by the Federal government. The Board is responsible for developing accessibility standards for such technology for incorporation into regulations that govern Federal procurement practices. The first version of the Board's guidelines issued under Section 508 was published in December 2000.
Last year, the Board announced its intention to revise the Section 508 guidelines and harmonise them with a revision of the guidelines produced under Section 255 of the Telecommunications Act. An overarching committee, the Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) was set up to oversee this work. It had its first meeting in September 2006, and I thank the Australian Mobile Telecommunications Association (AMTA) for its financial support for my attendance at this meeting as one of a number of international representatives. Since then, there have been two further meetings, and a fourth meeting will take place this week. I'll be participating by telephone as the representative from the Human Rights and Equal Opportunity Commission. The TEITAC committee comprises just over 40 members, drawn from the disability sector, government and industry. At its September, it established 7 subcommittees to carry out the technical work in revising the guidelines. These subcommittees are:\
* Subpart A (Purpose, Application, General Exceptions, Definitions, Equivalent Facilitation)
* Desktops, portables, peripherals, and other computer hardware
* Documentation and technical support (§508 Subpart D)
* Self contained, closed products
* Software, Web and Content;
These subcommittees carry out their work by teleconferences (some with more than 50 participants) and email, and report back to each meeting of the overarching committee. After this week's meeting, there will be two further meetings, one in July and a final meeting in September. All the subcommittee reports will be compiled into a final report, which will be submitted to the Access Board.
The TEITAC committee's activities are public and open, and their website provides comprehensive information, including meeting minutes and draft reports.
The Committee is nearing the completion of its work now, and I think it's fair to say that the revisions to the Section 508 and Section 255 guidelines will be significant. The current guidelines have had a major impact on improving access to a wide range of products and services, including government websites, software and telecommunications products, and demonstrate the value of accessible public procurement policies. It is our hope that the revised guidelines may provide a useful model for the development of similar procurement policies in Australia over time. And, of course, many of the products that are manufactured or developed for the US market are also available in Australia sooner or later, so trends towards greater accessibility initiated in the US have an international impact.
One theme of the Committee's discussions has been the wish to harmonise the guidelines with related international standards and guidelines wherever possible, including the Web Content Accessibility Guidelines (WCAG) 2.0
I wonder if those heroic pioneers searching frantically for lost objects in Room 404 at CERN foresaw what transformations would be wrought by their work in just under two decades. An ape throws a piece of bone into the air and it revolves and in the twinkling of a cosmic eye it's become a spaceship. We throw a bunch of protocols into the cybersphere, and who knows what we're turning out. Are we creating weapons of war or wands of wisdom and healing. Only time will tell .. No, that's not right … we will tell, or if not us, then our children. We're making civilisation, and civilisation is making us. Disability is part of that process of civilisation: we're a part of it, and it's a part of it. Today I've focussed on how we can stay legal and guided and standardised. And those things are important, and we each have a part to play in developing and promoting them. But legislation, standards, codes and guidelines are only some of the threads in the tapestry. Tomorrow I'll try to unravel some of the others.