AMA submission on petition 'Help Strengthen the Accessibility for New Zealanders Bill'

Access Matters Aotearoa has made a submission to the Petitions Committee regarding the 'Help strengthen the Accessibility for New Zealanders Bill' petition, as follows.

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Access Matters Aotearoa (AMA) Submission on the petition Help strengthen the Accessibility for New Zealanders Bill

5 April 2023

Petitions Committee

Parliament Buildings

Wellington

Tēnā koutou

Access Matters Aotearoa (AMA) welcomes the opportunity to submit on the petition Help strengthen the Accessibility for New Zealanders Bill (Bill).

About Access Matters Aotearoa

Access Matters Aotearoa (AMA) is a movement comprising 20,000 individuals and organizations from the disability and neurodiversity sectors in New Zealand. We advocate for legislation that ensures people with disabilities have equal opportunities to participate in society, learn, work, and engage in social life.

AMA recognizes the economic benefits of an inclusive society and campaigns for accessibility legislation that establishes minimum, enforceable industry-specific national standards for accessibility, applicable to all areas of life in New Zealand. This measure will give life to New Zealand’s obligations under the United Nations Convention on the Rights of Disabled Persons (UNCRPD).

AMA believes that New Zealand should be fully accessible by 2035, and the proposed Bill needs significant changes to achieve this vision. AMA emphasizes that lack of accessibility equals to disability discrimination, which can be direct or indirect and advocate for laws that prohibit unfair treatment of people with disabilities and their access needs.

AMA requests the opportunity to be heard by the Petitions Committee through video conference. Please, contact Juliana Carvalho, to arrange this.

Areas of Support

AMA believes that wider scope of removing accessibility barriers will result in faster and more effective removal of barriers. For this reason, we support that the Bill applies to the Crown, Government departments and departmental agencies, statutory entities, Veteran's Affairs and local authorities (specified entities).

AMA welcomes the creation of an Accessibility Committee (Committee), to provide advice and recommendations to the designated Minister (Minister) on accessibility barriers and practices and the prevention or removal of those barriers by specified entities, and to assess and report on progress made by specified entities in implementing the Committee's recommendations. We support the Committee being provided the power to request relevant information from specified entities in order to assess and report on progress.

We support legislative and policy change that recognises the role of te Tiriti o Waitangi and the importance of striving towards equitable outcomes for tāngata whaikaha and their whanau. We welcome the inclusion of clause 5, providing for te Tiriti, the creation of a Māori nominations panel in clause 13, and the duty on the Committee in clause 16(1)(a) to give effect to the principles of te Tiriti and consider tikanga and te ao Māori in exercising its functions.

AMA believes that effective development and implementation of public policy is essential for enhancing and improving access to goods, services and programmes not available to those with disabilities, and supports the ability of the Committee to influence those through the powers above.

We recognise that the environment in which accessibility barriers and obstacles exist is evolving, and that the legislative framework will need regular review to ensure it can respond to this evolution. For this reason, we support the requirement for a review of the Act in clause 25.

Meaningful change for disabled people, tāngata whaikaha and their whanau will not occur without effective legislative and government measures that provide for this. AMA supports a Bill that provides accountability to specified entities to enable this.

Recommendations

AMA suggests several amendments to strengthen the Bill and make it fit for purpose:

the Accessibility Committee;
accessibility standards;
the establishment of a regulator;
a barrier notification system; and
a disputes resolution process.

In addition, we make some preliminary recommendations below.

We note that the Bill as proposed only applies to specified entities, which include government departments, departmental agencies, statutory entities and local authorities. AMA notes OECD figures from 2014 ^[2] show that Government spending only accounts for 40.1% of New Zealand’s GDP. By ignoring the needs to disabled consumers, British businesses lose and average of £2 billion per month ^[3]. Our estimates show inaccessibility may cost New Zealand businesses between $395 and $522 million annually ^[4]. Moreover, under the UNCRPD Article 9, New Zealand must ensure that all private facilities open to the public are accessible to people with disabilities. However, this has been found to have no legal force in New Zealand which only emphasises the need for robust accessibility focussed legislation. AMA believes that, to better remove accessibility barriers, this should be extended to persons conducting a business or undertaking (PCBUs) as defined under the Health and Safety at Work Act 2015.

As discussed above, we support mandatory review of the Act, however, we believe that a three-year review, as recommended in the Ministry of Social Development Regulatory Impact Statement: Accelerating Accessibility (RIS) will allow for more responsive change than the current five-year period.

To ensure timely accountability to Parliament, we recommend that clauses 17(3) and 25(4) be amended to provide that the Minister present the annual monitoring report and report on the review of the Act to the House of Representatives as soon as is practicable "and no later than 20 working days after receiving the report."

AMA suggests that the definition of "disabled" in clause 11(2) (a) of the Bill should be expanded to include all individuals with access needs.

Accessibility Committee

AMA has concerns pertaining to the role of the Committee.

Clause 15 of the Bill enables the Committee to develop a work programme that outlines the accessibility barriers that they will advise the Minister about. This duplicates decades of work. Barriers that disabled people face have already been identified and include:

a 2005 RNZFB report, Barriers to Employment Identified by Blind and Vision-Impaired Persons in New Zealand which notes attitudinal barriers of employers, transportation barriers, and inaccessible technology.
Rebekah Graham, executive officer of Parents of Vision Impaired (NZ) highlights Barriers in education for blind, low vision, deafblind, and vision impaired (kāpō) students such as physically inaccessible playgrounds, lack of alternate formats for written material, and unwelcoming attitudes of teaching staff.
Alison Kearney’s 2016 report The right to education: What is happening for disabled students in New Zealand?, also identified barriers in education including lack of funding for teacher aids, lack of teacher knowledge about impairments, and parents being asked to remove their children from school ^[5].
The Ministry of Business, Innovation and Employment acknowledge less than 10% of published information generally available to the community is also accessible to those with a print disability, meaning 168,000 New Zealanders are deprived of knowledge and opportunities^[6].
The joint Ministry of Transport and Waka Kotahi report Understanding barriers to accessing social and economic opportunities in Aotearoa New Zealand highlights significant barriers to accessing transport for instance hard-to-read signage, misused mobility carparks, broken footpaths, and inaccessible bus shelters.
Sam Murray and Roger Loveless (2021) highlight the lack of accessible housing which has detrimental flow on effects including limiting access to employment and education. Further, if accessible housing is not available, disabled people have to spend more resources (time, money, effort) to complete everyday tasks like cooking a meal ^[7].
The Disabled Person-Led Monitoring of the UNCRPD report ‘My Experience, My rights. A monitoring report on disabled person’s experience of Housing in Aotearoa New Zealand (2020) demonstrated the limited choices disabled people had when accessing adequate housing, and the lack of control they had over their living situations. Interviewees reported significant barriers when trying to access the housing market due to tenants or as buyers’ attitudes.
Mirfin-Veitch, B. Diesfeld, K. Gates, S. Henaghan, M. (2014). Developing a more responsive legal system for people with intellectual disability in New Zealand. Dunedin: Donald Beasley Institute. Addresses the issues people with intellectual disability face as a specific group of disabled citizens who are recognised as being disadvantaged in their interactions with the legal system.
Milner, P. & Bray, A. (2004). Community Participation: People with Disabilities Finding their place. Dunedin: Donald Beasley Institute and NZCCS. Highlights the barriers faced by disabled people to community participation.

The Bill enables the Committee to make recommendations to the Minister about the prevention or removal of accessibility barriers by specified entities. Clause 17 of the Bill provides that the Committee report annually to the Minister outlining the progress made by specified entities in implementing the Committee’s recommendations. It is unclear what further action can be taken should recommendations be delayed or ignored. If Committee recommendations are ignored the 1 in 4^[1] New Zealanders who identify as disabled will continue to struggle with access barriers that significantly reduce their probability of employment, education, and participation in society ^[8].

AMA notes also that the Committee's functions and duties, as outlined in subpart 2 of the Bill, are extensive, and may be onerous given Committee members will likely be part of other groups or organisations with additional commitments. We note that support and adequate resourcing of the Committee will be essential to ensure the Bill achieves its objectives. We also believe the Committee should be independent and have real powers.

AMA recommends that the Committee be empowered to make binding recommendations to specified entities as part of its progress assessment process. We also recommend that the Minister be statutorily required to take into account the Committee's recommendations when directing the Ministry of Disabled People or otherwise undertaking policy decisions.

AMA believes the enabling framework the Bill proposes leaves the responsibility of improving accessibility heavily in the hands of the current leadership. There are no guarantees the recommendations made by the Committee will be implemented. There are no guarantees that as leadership changes the priorities in government might change too and accessibility might fall back in the rank of importance.

CRPD Concluding Observations on Accessibility

The United Nations Committee on the Rights of Persons with Disabilities highlighted the most pressing issues with regards to the non-compliance of the article 9 of the UNCRPD: Accessibility.

AMA request that the Select Committee address the concerns identified by the United Nations Committee, and adopts the recommendations, as listed below for the Accessibility for New Zealanders Bill.

“15. The Committee is concerned about:

(a) The slow progress in implementing the Building Act 2004, which prolongs inaccessibility to public buildings and the progressive upgrade of existing buildings;

(b) Continued barriers experienced by persons with disabilities in accessing the physical environment, transportation, information and communications, including information and communications technologies and systems;

(c) The lack of affordable and accessible housing and the modest target of 15% accessibility for new build public housing;

(d) Reports from organisations of persons with disabilities that the Accessibility for New Zealanders Bill, currently before Parliament does not contain enforcement mechanisms, may not cover private entities or local government, lacks standard-setting and decision-making bodies, and lacks obligations to make tangible changes within fixed time frames.

Recalling its general comment No. 2 (2014) on accessibility, the Committee recommends that the State party:

(a) Expedite implementation of the Building Act 2004 and commit to targets and timeframes for implementation measures;

(b) Adopt and implement an accessibility strategy underpinned by the principle of universal design to eliminate existing access barriers, in close consultation with and active involvement of organisations of persons with disabilities, including underrepresented groups, such as persons of small stature;

(c) Adopt the principle of universal design and commit to a target of 100% accessibility for new build public housing and introduce mandatory accessibility requirements for new housing constructed by the private sector;

(d) Establish a co-design and co-production process with organisations of persons with disabilities to address concerns about the Accessibility for New Zealanders Bill, following release of the Select Committee’s report.”

Accessibility Standards

AMA supports the creation of meaningful accessibility standards that (among other things) endeavour to design and build an environment that is accessible for all New Zealanders, promote awareness, and ensure that services meet the needs of disabled people and treat them with respect and independence. We agree with the Legislation Drafting Advisory Committee that laws should set out what people can and cannot do, rather than merely setting out aspirational goals ^[9].

We recommend the Committee be granted the power to develop both binding and non-binding standards for identified domains (physical and digital environments). The creation of standards should be subject to a consultative process prescribed by the Bill, which should include consultation with Māori, relevant organisations representing disabled people, tāngata whaikaha and their whānau, specified entities and any other stakeholders the Committee considers relevant. The standards may then be established via regulations made under the Act, with failure to comply with binding standards constituting an offence. AMA recognises that not all sectors are amenable to binding standards, and believes that allowing for the Committee to develop standards for phased implementation via regulation will allow for a robust process of developing, testing, learning and adjusting, which will ensure standards are not onerously imposed.

AMA also recognises that New Zealand is so behind other countries in terms of accessibility standards that some already existing practices could be implemented without delay or reinventing the wheel. For example, audio description, captioning and some other technical and specific standards to make information accessible are well established in other countries, like the United States.

Further, in the United States, the Access Board is an independent federal agency that promotes equality for people with disabilities through leadership in accessible design and the development of accessibility guidelines and standards. Created in 1973 to ensure access to federally funded facilities, the Board is now a leading source of information on accessible design. The Board develops and maintains design criteria for the built environment, transit vehicles, information and communication technology, and medical diagnostic equipment under the Americans with Disabilities Act of 1990 (ADA) and other laws.

Accessibility standards are key to achieving the Bill’s goals by remove accessibility from being just one consideration among many (which can be overlooked by government) and instead make it a key consideration across a wide range of public and private decisions.

Including accessibility standards in the Bill framework is the smart thing to do, the right thing to do, and it’s the right time to do it.

What are standards?

“A standard guides activities of organizations in a way that is consistent across sectors. It means people can expect the same level of service or quality of products.”^[i]

Standards can cover a huge range of activities undertaken by organisations and the people who interact with them.

“The key function of standards are:

To identify people who have rights and obligations to remove barriers;
To help those people understand what they need to do to be compliant;
To agree on key indicators for assessing whether those standards are effective or not; and
To state the consequences if they are not compliant.”^[ii]

Standards are knowledge. They are powerful tools that can help drive innovation and increase productivity. They can make organisations more successful and people’s everyday lives easier, safer and healthier.

Why we need accessibility standards in the Bill

At the very least, the Bill should “create a system that structures the development of accessibility standards. The legislation must set out a process for development, drafting, publication and enforcement of these standards”^[iii].

“Delegation of law-making is usually justified for the following reasons”, which we believe equally apply to the technicality, pace and flexibility expected of accessibility standards:

the pressure of parliamentary time;
the technicality of the subject matter;
any unforeseen contingencies that may arise during the introduction of large and complex schemes of reform;
the need for flexibility;
an opportunity for experiment; and
emergency conditions requiring speedy or instant action”.^[iv]

Removal of barriers through accessibility standards will include ‘designing away’ barriers before they can operate to exclude or disable people.

An environment is “somewhere where people exist or occupy a space. Environments contain different features. Some of these features can be barriers which disable people.”^[v]

A domain is a “subset of environments that have related features. Multiple domains may interact within a single environment. For instance, a person with a sensorial impairment may be excluded from public transport because of digital barriers that inhibit access to relevant information, or physical barriers that exclude them from accessing or operating a vehicle.”^[vi]

A barrier is a negative feature of an environment. A feature is negative when it interacts with a person’s impairment to prevent that person from full and effective participation in society.

The standards should achieve the following purposes:

“(a) To design and build an environment that is accessible by all New Zealanders for now and the future.

(b) To meet the demands of the ageing population.

(c) To promote awareness of accessibility issues, and to train and disseminate knowledge about making buildings more accessible.

(d) To depart from the minimum standards approach adopted in existing accessibility standards.

(e) To prioritise accessibility when access requirements are in conflict with short-term economic sustainability.

(f) To increase awareness of the economic benefits of accessibility for businesses.

(g) To reduce the need for those disadvantaged to resort to bringing a discrimination action under the Human Rights Act 1993.

(h) To ensure that services meet the needs of disabled people and people with access needs and are compatible with their assistive devices and services animals.

(i) To ensure services respect dignity and independence.

(j) To implement principles of universal design.

(k) To prevent public monies being used to create barriers for disabled people and people with other access needs”^[vii]

We can quickly adapt overseas standards in Aotearoa New Zealand

Aotearoa New Zealand can quickly adapt appropriate overseas standards as non-enforceable standards.

“Accessibility standards should be developed and implemented in a way that strikes a balance between the overdue need for legal intervention and the constitutional principle against enforcing costly change too rapidly. To avoid unnecessary delay the process can begin with non-enforceable standards, which can have significant cultural and political effect immediately. Those standards will then be tested and monitored, before giving way to enforceable standards in appropriate cases”^[viii].

“There could be three categories of standards:

Enforceable standards; and
Non-enforceable standards.
A mixed standard that is partially enforceable and partially non-enforceable”^[ix].

Please refer to Chapter 5: Accessibility Standards in the Making New Zealand accessible: A design for effective accessibility legislation^[x] paper for more detail on this proposed model.

Forster, Barraclough and Barnes describe the benefits of non-enforceable standards as follows (emphasis added in bold):

“Non-enforceable standards are intended to allow gradual adoption of accessibility requirements while also allowing immediate application. Non-enforceable standards will be drafted with the intention that they become enforceable after a process of consultation, testing and monitoring.

We acknowledge that calls for accessibility legislation have been made on the basis that existing voluntary standards are ineffective at making Aotearoa accessible. We agree that non-enforceable standards will not be enough. However, non-enforceable standards do serve a purpose by enabling rapid transition toward a clear set of expectations around accessibility that can be tested and monitored. The clear signal from the Act is that, once non-enforceable standards are set, if they do not achieve compliance by voluntary removal of barriers, then they will become enforceable.

Another benefit of formalising non-enforceable standards under the Act is that they will be collated in a way that makes them more accessible, as understood in the purpose of the Legislation Act 2012, because they are held in one place with a clear framework around them.

If all standards were required to be enforceable, they would have significant legislative effect, and this would require significant consultation. There could be significant delay in their development, drafting and implementation. By contrast, if non-enforceable standards are given formal recognition, then this enables them to become applicable immediately and have influence, even if they won’t all be immediately enforceable.

Nevertheless, nobody ultimately responsible for removing a barrier will be able to convincingly argue they did not know what their obligations were.”^[xi]

Some examples of domains that are often used, and could also be used in standard development are listed below^[xii]:

“Housing
Procurement
Employment
Transportation
Digital and information systems
Broadcasting and communication
Educational
Attitudinal
Hospitality
Retail
Customer service
Political and democratic processes
Access to justice processes
Supported decision-making
Health systems
Social support systems and social welfare
Building compliance
Consultation
Justice systems including court processes and non-court processes”.^[xiii]

How will it change all New Zealanders lives

In Aotearoa New Zealand, we like to think we live in a classless and fair society. We take pride in having a can-do attitude where working hard translates into getting ahead. We know, of course, that the reality is somewhat different for many of us. Our society was designed and built for just a portion of our population. In this, we have privileged some and excluded many.

Almost a quarter (24%) of New Zealand citizens identify as having some form of disability. People aged 65 or over are much more likely to be disabled (59%) than adults under 65 years (21%) or children under 15 years (11%). In 2017, there were around 11,000 serious injuries. With population growth and people living longer many of these figures are increasing. Barriers prevent many people from participating fully and equally in society. This exclusion also has a negative impact on people’s family and friends.

Fully including people with access needs in every aspect of life benefits everyone – standards are key to this

Having clear and easy to use standards will unlock the potential of people with visible and invisible disabilities and other access needs, who are currently often excluded from education, employment and participation in society. This change will create the conditions to:

make it easier for people to complete primary and secondary education, and take part in higher education
make it more likely that people can secure jobs, easily travel to work, and move around within the workplace
make it easier for people to take part in the economy through the purchase and use of goods and services.

New Zealand needs standards to ensure that people with access needs aren’t excluded from the labour market doesn’t make good business sense. Inaccessible digital online services and products means potential customers can’t spend their money with these businesses. Difficulties accessing education and vocational training leads to society denying itself the talents of potential professionals. Society as a whole would prosper from greater inclusion and participation of this diverse community of people.

Digital accessibility

“Despite the positive start to digital accessibility, New Zealand is now falling behind in terms of compliance with industry standard guidelines. New Zealand websites have generally poor compliance with WCAG increasing the barriers that people with disabilities face when using technology. A recent review of the top 1000 New Zealand websites shows that 97.5 per cent had at least one WCAG2.1 error, and 60 websites had more than 100 errors (Harrison 2021)”^[xiv].

Accessible digital procurement

“Government Procurement Rule 61 states that purchasers must pay attention to web standards (Rule 61: Web standards 2021). But this does not help government agencies or businesses know what they should be looking for or how to pay attention to web standards, and international suppliers sometimes need to be used to meet the requirements…A vendor should be able to prove that the product they are delivering meets the guidelines, either through usability testing with people with access needs, or expert reviews against the guidelines. A lack of understanding and information of what good looks like means that agencies and mainstream businesses run the risk of buying technology that does not meet the standards. We should provide more information about what good looks like, and how to measure it.”^[xv]

How will it affect the NZ economy

The “Click away Dollar” of lost business in New Zealand is estimated to be between $395 - $522 million.^[xvi]

It’s not easy for businesses that want to tap into the accessibility market right now. Having clear and consistent standards, as a resource in a ‘one-stop-shop’ within the framework of the Bill will help businesses know what to do.

Twenty five percent of business customers are likely to have accessibility needs, and 15 – 20% of the workforce are likely to be neurodiverse. There are simple things that business can do to reach a new, loyal customer base, and unleash the potential of the workforce, and increase engagement.

At a time when business is looking for a loyal customer base and labour force, this is an expedient way to convert sunk cost into a great opportunity. Everyday, people are progressing plans, developing apps, and putting up new buildings. Accessibility must be built in from the very beginning.

Excerpt from Case Study: ANZ New Zealand’s Accessibility Journey and support for accessibility legislation in New Zealand (emphasis added in bold):

“In lieu of legislated accessibility standards in New Zealand, we have tried to align ourselves with our parent company ANZ Australia, who work closely with the Australian Network on Disability. We also strive to achieve the standards outlined in the Web Content Accessibility Guidelines (WCAG 2.1) within our digital environments.

Accessibility legislation will help reinforce the priority this topic and the people impacted by it deserve. Further to legislation however, clear and easily applied standards would provide tangible guidance on how businesses and organisations can apply legislation to best effect.

ANZ acknowledges the importance of accessibility within the organisation and are working towards developing our own expertise in this area. We are building connections within the accessibility community to learn, develop, and grow on our journey. We value these connections as we acknowledge that better outcomes are realised through sharing and growing together as a community, even though we are fortunate to have the size and scale to have individuals and groups focussing on the topic.

Accessibility standards would offer a level playing field for businesses, enable focus on practical application over analysis of best practice, and provide continuity of accessibility practices, which ultimately creates consistency of customer experience. This in turn is best for anyone who benefits from, or relies on, improved accessibility in general.”^[xvii]

With an estimated population of 1.85 billion, people with disabilities are an emerging market larger than China. Their friends and family add another 3.3 billion potential consumers who act on their emotional connection to people with disabilities. Together, disability touches 73% of consumers. A market bigger than China, the Disability Market influences over $13 trillion in annual disposable income. When asked, people with disabilities say that between 75% – 80% of their customer experiences are failures.^[xviii]

“New Zealand is also an exporter of software with some large companies based here having huge markets elsewhere in the world. In fact, New Zealand software exports are outstripping our sales of wine (O’Neil 2020). Private businesses in Aotearoa are not mandated to meet the minimum accessibility standards, while many of the countries we are exporting to do require all digital products to meet certain accessibility standards. We should be doing more to ensure our software meets international requirements”

Examples of Australian Accessibility Standards and their potential application to Aotearoa New Zealand

Example: Accessibility Standards for Public Transport

Source: Australian Disability Standards for Accessible Public Transport 2002^[xix]

Information desks, check-in counters, etc — airport terminals. At least 5% of information desks, check-in counters and similar airport fixtures used by passengers must be suitable for use by passengers in wheelchairs or similar mobility aids. (Part 22.2)
Accessible sleeping berths — ferries. If a ferry has sleeping berths, at least one accessible sleeping berth must be provided for every 32 beds or bunks on the ferry. (Part 22.4)
Instalment at accessible bus boarding points. Colour-contrasted tactile indicators must be installed at accessible boarding points at bus stops or in bus zones. (Part 18.3)
Taxi registration numbers. Raised taxi registration numbers must be placed on the exterior of passenger doors forward of the handle. (Part 17.7)
Stairs not to be the sole means of access – public conveyances and infrastructure. Stairs must not be the sole means of access. (Part 14.1)
Minimum number of seats to be provided. If a waiting area is provided, a minimum of 2 seats or 5% of the seats must be identified as available for passengers with disabilities if required. (Part 7.1)

Comparison of Spark Arena in Auckland with a similar-sized arena in Australia

Auckland City skyline showing Spark Arena rooftop on a fine day

Figure 1 ALT TEXT: Auckland City skyline showing Spark Arena rooftop on a fine day.

Spark Arena in Auckland seats up to 12,000 people. There are 17 wheelchair seating spaces available per show for the musical Hamilton during May and June 2023 (seating availability differs for events). These are all located in the left-side back row of the lower bowl. To book accessible tickets you must contact Ticketmaster via phone to determine availability. You can’t simply book them online. Then you must phone Spark Arena separately to book a mobility carpark, which are very limited. Spark Arena has no public carpark for patrons so attendees that don’t secure a mobility park would need to make their own way to the arena from other nearby carparks.

If Spark Arena was in Australia, the arena would have to comply with the Disability (Access to Premises — Buildings) Standards 2010^[xx]. The arena would need to have at least 118 wheelchair seating spaces. These seats must cover all group sizes from single seats up to groups of 10. The wheelchair seating spaces must be evenly distributed throughout the entire arena. If the arena had 1000 carpark spaces, a minimum of 20 accessible carparks must be provided.

Comparison of Enrolment in education

Figure 2: ALT TEXT: Two young teachers hold painters letters aloft for a class of young children

A child’s right to an inclusive education is enshrined in New Zealand law and in the UN Conventions that New Zealand is signatory to, including Article 23 of the UN Convention on the Rights of the Child (UNCRoC) and Article 24 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD)^[xxi]. Additionally, the Human Rights Act 1993^[xxii] prohibits schools from refusing or failing to admit a person as a student based on any of the grounds of discrimination in the Act including disability.

A 2022 Education Review Office report ^[xxiii] (ERO) shows 21% of disabled learners were discouraged from enrolling at their local school, 27% have been asked to stay home on official school days, and 29% have never been able to participate in school camps.

Some schools only enroll students if they have Ongoing Resourcing Scheme (ORS) funding in place. To obtain ORS ^[xxiv] funding the child must be very high needs for example completely reliant on NZ sign language or braille or be significantly cognitively impaired. In other words, if you are not disabled enough, you can’t get funding, and if you can’t get funding you can’t enroll at your chosen school.

The Human Rights Act 1993 section 60^[xxv] states a school may refuse admission to a student with a disability if the school cannot reasonably provide the special services or facilities that the student needs. Essentially this could mean that the school can’t afford to make the adjustments needed for your child so you can go somewhere else thank you very much.

Despite this, the ERO report shows that disabled kids in low-decile schools have better outcomes, especially around acceptance and inclusion. Only 50% of disabled students in high decile (8-10) schools were supported to learn in the way they felt most comfortable. Only 1/3 of parents of disabled students at high decile schools felt the school adapted the learning program to meet their child’s disability and only 23% of high decile schools supplied specialist support when needed.

Under the Australian Disability Standards for Education 2005 ^[xxvi]:

A person with a disability can seek admission to, or apply for enrolment in, an

institution on the same basis as a prospective student without a disability if the person has opportunities and choices in admission or enrolment that are comparable with those offered to other prospective students without disabilities.

An education provider that:

(a) refuses a prospective student with a disability a place in the institution, or in the particular course or program applied for by the prospective student, on the ground that the student would be able to enrol in another institution or a course or program at another institution; and

(b) does not refuse students without disabilities places on the same ground;

does not treat a prospective student on the same basis as a prospective student without a disability. (Part 2.2)

The education provider must take reasonable steps to ensure that the prospective student is able to seek admission to, or apply for enrolment in, the institution on the same basis as a prospective student without a disability, and without experiencing discrimination. This includes discussing the needs of the student during the enrolment process and presenting enrolment information in accessible formats. (Parts 4.2 and 4.3)

If there is an activity in which the student cannot participate (because of their disability), the student is offered an activity that constitutes a reasonable substitute within the context of the overall aims of the course or program and any activities that are not conducted in classrooms (extra-curricular activities or activities that are part of the broader educational program), are designed to include the student. (Parts 5.2 and 5.3)

Any changes to accommodate a disabled student are done in consultation with the student and their parents or caregivers before the adjustment is made to determine whether the adjustment will achieve the desired outcome. (Part 3.5)

Teaching and delivery strategies for courses or programmes are adjusted to meet the learning needs of the student and address any disadvantage in the student’s learning resulting from his or her disability, including through the provision of additional support. (Part 6.3)

Comparison access to Public Transport

A group of friends want to travel to Waiheke Island for a day tour using the hop-on hop-off bus tour. One of the people in the group is blind and another is a wheelchair user.

Figure 3: ALT TEXT: Aerial shot of Waiheke Island showing the Waiheke Ferry Terminal

The person who is blind has to catch the bus from Sandringham Road into the city centre to meet her friends at the ferry terminal. Her nearest bus stop just has a pole with a written bus timetable. No audio timetable is available. No digital timetable is available, but she finds this hard to access anyway. She would have no idea when the bus she wants will be arrive and must flag down every bus that she hears until she gets the right bus. She needs to get off the bus at the corner of Wellesley Street and Queen Street. If she is lucky, the bus will have audio warnings for upcoming stops. She’s has noticed that slowly more buses have this feature. Without audio announcements, she must rely on the bus driver remembering the stop she wants to get off at. She has noticed most drivers are happy to do this, but sometimes they forget. When she gets to Queen Street, she would have to navigate her way down to the waterfront. She could catch another bus or walk. There would be hazards everywhere (e.g. cones, scaffolding and roadworks) and she would have to navigate different detours every time. Hopefully, she would make it to the ferry in time.

The wheelchair user can use ramps to board the ferry at both the downtown and Waiheke ferry terminals and travel to the island. However, the buses on Waiheke Island are not wheelchair accessible. She would either have to use a taxi to get to every place her friends want to visit, or she could just wait at the ferry terminal until everyone returns from their fun day out.

Under the Australian Disability Standards for Accessible Public Transport 2002^[xxvii]:

General information about transport services must be accessible to all passengers.
Large print format type size must be at least 18 point sans serif characters, black on a light background.
All passengers must be given the same level of access to information on their whereabouts during a public transport journey. (Part 27)
Operators must designate at least 2 of the seats provided on their unbooked buses as priority seating for passengers with disabilities and other groups in need of special assistance (for example, the aging). (Part 31)

Under the Disability (Access to Premises — Buildings) Standards 2010^[xxviii] Part DP1, access must be provided to enable people to approach the building from the road boundary.

With these standards the blind passenger would easily catch the bus, make her way down a hazard free footpath, and make it to the ferry terminal on time. The wheelchair user can travel on the bus on Waiheke Island and fully participate in the day’s activities.

Given the importance of tourism to the New Zealand economy, public transport accessibility should be a priority. Especially at a tourist hotspot like Waiheke. By not having standards New Zealand is missing out on hundreds of thousands of tourism dollars.

Establishment of a Regulator

AMA supports Cabinet's decision in 2020 that accessibility legislation sit alongside regulatory systems, and the Minister for Disability Issues' acknowledgement that officials should develop a legislative approach to enforceable standards to be incorporated into the legislative regime.

To give effect to this, we recommend that a regulator be established to monitor the compliance of specified entities. This regulator should be a Crown entity with powers of investigation and enforcement, including the ability to accept enforceable undertakings.

Given the Bill as currently drafted does not provide for any dispute resolution or enforcement, we advocate for a regulator to bring an action against a specified entity (as the Commerce Commission is able).

We note that the Human Rights Act 1993, which prohibits discrimination on the basis of disability, does little to practically address discrimination. Further, it is a complicated and costly process to address discrimination through the Human Rights Commission, and its tendency towards confidential settlement of disputes means there is little system learning. We recommend that the Bill provide the regulator to bring an action for infringement against an infringing entity. We note that the power to issue fines is typically reserved for the courts.

Where initial enforcement processes are ineffective at remedying the infringement, the Bill should provide the regulator the ability to bring an action against the infringing entity to the District Court or High Court, similar to the enforcement mechanisms under Part 6 of the Commerce Act 1986.

Currently, the Bill does not provide any obligations on specified entities (including on PCBUs). AMA recommends that, in addition to standards and recommendations, specific statutory obligations be imposed, including a duty to identify barriers, a requirement to keep records, and to provide accessibility plans.

Barrier Notification System

To ensure that Aotearoa New Zealand is barrier free by 1 January 2035, the Bill should provide for a barrier notification system. This system will enable the regulator to set processes, plans and systems to adequately record barriers identified through notification.

This notification system should require the regulator to provide an anonymous mechanism through which an individual can notify the regulator of a disabling experience that it can then investigate. Given the recent judicial review against Living Streets Aotearoa, that dismissed the UNCRPD as not imposing any obligations on government agencies to consult with disabled people, a barrier notification process may be the only avenue for disabled people to convey concerns about design concepts. Further, there should also be a duty on specified entities to keep a record of each disabling experience for at least five years.

This system must also include a duty on specified entities to notify and remove barriers under their control.

Disputes Resolution Process

The Bill should create a dispute resolution scheme providing for an individual to file a complaint with the regulator, which the regulator may investigate at its discretion (in line with guiding principles in the Bill). Following the conclusion of this investigation, the regulator should have the power to order the regulated entity to take corrective measures or pay compensation. Alternatively, the Bill could provide for a free-to-consumer dispute resolution process that specified entities must be part of (similar to the Financial Service Providers (Registration and Dispute Resolution) Act 2008).

Where a specified entity or individual has a dispute with the regulator in regard to the result of an investigation, the Bill should provide for a process of mediation to resolve the dispute.

The established regulator could also be responsible for the dispute’s resolution scheme.

We understand that the reasonable accommodation concept will be key in the dispute resolution process.

‘Reasonable accommodation’ is an important concept in the UNCRPD and it means to make a change that is reasonable to accommodate the need of a person with a disability. ‘Reasonable’ means that the change requested is needed; not too difficult to make; and not cost prohibitive.

Reasonable accommodation removes barriers so disabled people can study and work, access information, use services and get where they want to go; just like everybody else.

The Convention defines reasonable accommodation as ’necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. It recognises that disabled people face many barriers to participate fully in everyday life, and many of these barriers can be removed. Reasonable accommodation can help to overcome or eliminate these barriers. It should be provided in all aspects of life so disabled people are not disadvantaged by the way a system or service operates. Accommodating disabled people’s needs generally costs very little and often nothing at all. It can be as simple as changing attitudes, providing another means of communication, or improving the physical accessibility of a space.^[xxix]

Access Denied Diaries

Through the Access Denied Diaries, AMA has compiled hundreds of disabling experiences shared by our supporters. There are examples of access barriers in regards physical access, transport, education, employment, communications, retail, healthcare and so on. We invite you to read a few of the stories:

“We went to Keith Hay Park but I couldn't play with my siblings because my wheelchair can't get into the playground. This is because there is a wooden barrier around the entire playground. I had to sit in my wheelchair and watch my siblings play.”

“I have encountered many access barriers when trying to find a new job. It's difficult to find an employer who understands the way my brain ticks and tocks, and who can make necessary accommodations - such as breaking down instructions better, or simply not giving me so many instructions at the same time. My Dyspraxia also means it's taking me a long time to learn to drive, which limits my options a lot due to the location of many jobs.”

"I encounter an access barrier every time I try to go to the movies. Not a single cinema, that I know of in Aotearoa New Zealand, routinely provides audio descriptions for its films. Overseas cinemas have headsets to listen to the audio description track, so blind and low vision patrons like me can follow the film. The audio description tracks already exist. They are made by the movie producers and released with the film. The cinemas don't have to create anything! They just have to provide a few headsets, sync the track up, and play it. It's as simple as broadcasting subtitles, or the soundtrack at a higher volume - which are not perfect solutions from what I have heard from d/Deaf folks, but at least d/Deaf people get something to make movies accessible

I have to pick the films I see based on whether or not I think I have any chance of following them. I often have to go home and Google the movie to find out what happened at the end! If I am with a friend, they will whisper descriptions in my ear the whole way through the movie. This is so lovely of them, but it is extra work, and it's socially awkward for both of us. Audio description headsets - and the cinema's willingness make the audio description track available - would let me access movies equally with others when out watching films. The new access laws should make businesses meet reasonable standards of accessibility, including providing access for blind and low vision patrons. New Zealand businesses should provide an equal level of access for all their customers, as is required of businesses in countries overseas that have good accessibility legislation.”

“I was applying to participate in a market research project, but was declined because the office used for the research panel is upstairs, and they do not have any means to get a wheelchair user into that room.”

“I have been a member of Prime Research for many years and you have to apply for opportunities to participate via a survey. If you meet the criteria or demographic for the panel they call you to book a session. I have been called approximately seven times, as I meet the criteria, but when I ask if the venue is wheelchair accessible, they say, ‘Oh sorry. No you cannot take part.’ They never offer to try and do my interview any other way. This means I miss out on the money I would have received for participating. I miss out on meeting others who have similar interests. I miss out on the experience of being involved in a market research panel. I want new access laws that ensure all buildings are accessible, or that there has to be alternative accommodations for people with access and/or mobility needs. Being disabled, I sometimes have to be creative in finding ways to make a little extra money, for day to day living. I want to see positive change so that these sorts of simple opportunities are made available and accessible to people with disabilities.”

“I encountered an access barrier when I tried to watch a documentary in my high school history class. The documentary was not captioned properly - it had very inaccurate auto generated captions - and so I could not understand it as I am Deaf. I didn't do very well on the assessment. I experience a lack of access to media every single day because New Zealand does not legally require media to be captioned. I find this very frustrating and disheartening, and it makes it harder for me to receive an education. In response I created a petition to change captioning laws in New Zealand. I want accessibility legislation to make it a legal requirement for media producers and broadcasters to add captions and audio descriptions to all media.”

“I have tried to use a Travelscoot - "the world's lightest foldable electric mobility scooter" - on public transport, such as buses, a number of times. I've had bus drivers refuse to allow my Travelscoot on-board as a mobility device, or to give me any assistance with loading and unloading it. The last time I was refused access to public transport, I had been summoned and selected for jury duty. After two days I informed the judge of my situation, and they ordered a disability vehicle to pick me up, take me to court, and drop me back home each day. All at additional cost, which could have been avoided if my mobility device had been allowed on so-called 'public' transport. This is a recurring access barrier for me, and the impact is having no transportation. Try walking home, when you can't walk! I have a solution - my TravelScoot - but it's of no use when you are then denied access. I would like to see our politicians and lawmakers using only mobility devices and public transport for a month or two, and see how it feels!”

These are just a handful of examples of the barriers New Zealanders face every day. We encourage to visit our website and read them all. The Bill in its current form will perpetuate these disabling experiences.

Conclusion

The Bill as it stands is not effective at removing access barriers and it is fundamental that the Members of Parliament understand the impact of a lack of accessibility in the lives of 24% of our country population, their whānau, and communities they are part of.

In a AMA poll with our supporters, we found that 31% oppose the Bill in its current form, 58% support the Bill in principle, however want changes to be made, 2% support the Bill subject to specific inclusions and only 9% support the Bill in its current form.

AMA hosted a legal panel in partnership with the AUT Law School. There was consensus of opinion that the Bill in its current form will not adequately address the systemic removal of barriers that hinders disabled peoples’ participation in this country.

In order to be beneficial to our community, the Bill needs to be modified with the meaningful input of disabled people and people with other access needs. International disability experts who reviewed New Zealand's progress against the UN Convention on the rights of Persons with Disabilities agree this needs to happen.

AMA supports this Bill subject to the following inclusions:

an extended scope to include PCBUs;
a three-yearly review of the Act;
timely accountability to the House of Representatives;
enforceable accessibility standards;
the establishment of an independent regulator;
a barrier notification system; and
a disputes resolution process.

Nāku noa, nā,

Juliana Carvalho, Lead Campaigner, Access Matters Aotearoa

References

[1] 2013 Disability Survey - https://www.stats.govt.nz/information-releases/disability-survey-2013

[2] Government at a Glance 2015: Country fact sheet, New Zealand - https://www.oecd.org/gov/New-Zealand.pdf

[3] The Purple Pound - https://wearepurple.org.uk/the-purple-pound-infographic/

[4] Purple Dollar estimate for New Zealand based on Purple Pound Research from the UK. Peter Chou. July 2022.

[5] The right to education: What is happening for disabled students in New Zealand? - https://dsq-sds.org/index.php/dsq/article/view/4278/4217

[6] The Marrakesh Treaty - https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/copyright/the-marrakesh-treaty/

[7] Disability the Living Standards Framework and Wellbeing in New Zealand - https://ojs.victoria.ac.nz/pq/article/view/6732

[8] Disability, education and the labour market: A longitudinal portrait for New Zealand – AUT January 2016 - https://blv-website-uploads-production.s3.amazonaws.com/uploads/2016/04/Disability-education-and-the-labour-market-A-longitudinal-portrait-for-New-Zealand.pdf

[9] Ministry of Social Development "Regulatory Impact Statement: Accelerating Accessibility" (23 September 2021) at 6 - https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/information-releases/cabinet-papers/2021/accelerate/regulatory-impact-statement-accelerating-accessibility.pdf

[i] Accessibility Standards Canada. Frequently asked questions. Definition of a standard. Accessed on 18 January 2023. https://accessible.canada.ca/about-us

[ii] Forster, Warren; Barraclough, Tom; Barnes, Curtis. Making New Zealand accessible: A design for effective accessibility legislation. 29 September 2021. Chapter 5 – Accessibility Standards. Page 92.

[iii] Forster, Warren; Barraclough, Tom; Barnes, Curtis. Making New Zealand accessible: A design for effective accessibility legislation. 29 September 2021. Chapter 5 – Accessibility Standards. Page 91.

[iv] Forster, Warren; Barraclough, Tom; Barnes, Curtis. Making New Zealand accessible: A design for effective accessibility legislation. 29 September 2021. Chapter 5 – Accessibility Standards. Page 95.

[v] Overview of the Access Matters Aotearoa 'Example Accessibility Bill’. Available to download from https://www.accessmatters.org.nz/example_accessibility_bill

[vi] Overview of the Access Matters Aotearoa 'Example Accessibility Bill’. Available to download from https://www.accessmatters.org.nz/example_accessibility_bill

[vii] Access Matters Aotearoa 'Example Accessibility Bill'. Part 4, Section 25. Available to download from https://www.accessmatters.org.nz/example_accessibility_bill.

[viii] Forster, Warren; Barraclough, Tom; Barnes, Curtis. Making New Zealand accessible: A design for effective accessibility legislation. 29 September 2021. Chapter 5 – Accessibility Standards. Page 91.

[ix] Forster, Warren; Barraclough, Tom; Barnes, Curtis. Making New Zealand accessible: A design for effective accessibility legislation. 29 September 2021. Chapter 5 – Accessibility Standards. Page 93.

[x] Available to download from https://www.accessmatters.org.nz/making_new_zealand_accessible_a_design_for_effective_accessibility_legislation and https://forster.co.nz/accessibility-report#:~:text=In%20a%20ground%2Dbreaking%20report,so%20many%20of%20our%20people.

[xi] Forster, Warren; Barraclough, Tom; Barnes, Curtis. Making New Zealand accessible: A design for effective accessibility legislation. 29 September 2021. Chapter 5 – Accessibility Standards. Page 93.

[xii] Explanatory note - The regulator will undertake a process to identify domains within environments to organise sets of features will a goal of identifying barriers to set standards to. Multiple domains may interact within a single environment. For instance, a person with a mobility impairment may be excluded from public transport because of digital barriers that inhibit access to relevant information, or physical barriers that exclude them from accessing or operating a vehicle. Standards such as web accessibility standards or public transportation accessibility plans already exist and were set within domains.

[xiii] Access Matters Aotearoa 'Example Accessibility Bill'. Schedule 1 - Examples of domains that are often used, and could also be used in standard development. Available to download from https://www.accessmatters.org.nz/example_accessibility_bill.

[xiv] https://accessadvisors.nz/news/a-history-of-digital-accessibility-in-aotearoa/

[xv] https://accessadvisors.nz/news/a-history-of-digital-accessibility-in-aotearoa/

[xvi] Purple Dollar estimate for New Zealand based on Purple Pound Research from the UK. Peter Chou. July 2022. Unpublished.

[xvii] Case Study: ANZ New Zealand’s Accessibility Journey and support for accessibility legislation in New Zealand. Provided to the Access Matters Campaign by ANZ Bank New Zealand Limited. September 2021.

[xviii] Design Delight from Disability - 2020 Annual Report: The Global Economics of Disability. Return on Disability. Available to download from https://www.rod-group.com/content/rod-research/edit-research-design-delight-disability-2020-annual-report-global-economics

[xix] Disability Standards for Accessible Public Transport 2002. https://www.legislation.gov.au/Details/F2011C00213

[xx] Disability (Access to Premises — Buildings) Standards 2010. https://www.legislation.gov.au/Details/F2011C00214

[xxi] Paraphrased from Parents of Vision Impaired NZ Position Statement: Education (2022). https://pvi.org.nz/wp-content/uploads/PVI-position-statement-education.docx

[xxii] Human Rights Act 1993 section 57. https://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304637.html

[xxiii] Thriving at school? Education for disabled learners in schools. https://ero.govt.nz/our-research/thriving-at-school-education-for-disabled-learners-in-schools

[xxiv] Criteria and definitions for Ongoing Resourcing Scheme (ORS). https://www.education.govt.nz/school/student-support/special-education/ors/criteria-for-ors/

[xxv] Human Rights Act 1993 section 60. https://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304641.html

[xxvi] Disability Standards for Education 2005. https://www.legislation.gov.au/Details/F2005L00767

[xxvii] Disability Standards for Accessible Public Transport 2002. https://www.legislation.gov.au/Details/F2011C00213

[xxviii] Disability (Access to Premises — Buildings) Standards 2010. https://www.legislation.gov.au/Details/F2011C00214

[xxix] https://www.ombudsman.parliament.nz/sites/default/files/2019-03/summary_reasonable_accommodation_of_persons_with_disabilities_in_new_zealand.pdf