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It’s time to legislate against digital access discrimination in Australia

A few days ago I was alerted by a colleague as to a news item on Pro bono News titled ‘Disability Groups Call For Accessible ICT in Public Service Workplaces’.  In the news item it talks about the woefully low 3.6% employment rate of people with a disability in the Federal public service, and how much of this can be attributed to inaccessible ICT procurement policies. The argument is that if there is inaccessible equipment, including computers and websites, then it is difficult for people with a disability to stay employed in a government role.

However, what the article glosses over is that the Federal government in fact has some very good policy relating to ICT procurement for people with disability. The larger issue is why then does it not work in practice, and what can be done about it?  I thought it’d be a good time to briefly reflect on how web accessibility has been handled in government circles to date, and the desperate need to update our ancient disability discrimination laws to fix it.

WCAG? What WCAG?

The first internationally adopted standard in relation to the creation of accessible web content is generally considered to be the Web Content Accessibility Guidelines (WCAG) 1.0, released by the World Wide Web Consortium (W3C) in 1999.  While many countries including the USA and New Zealand legislated this standard, Australia was essentially missing in action with ad-hoc policy across the Federal government and various state governments. While there were some exceptions to this such as Victoria who took the WCAG 1.0 standard a little more seriously than others, broadly speaking Australia did not actively embrace the provision of accessible content in government.

Maguire V SOCOG

It is then perhaps with some irony that in 2000 the eyes of the world turned to Australia to see what would happen when the strength of WCAG 1.0 was put to a legal test. In the Maguire V Sydney Organising Committee for the Olympic Games (SOCOG) case, a blind man took SOCOG to the then-named Australian Human Rights and Equal Opportunity Commission (HREOC) due to the Sydney 2000 Olympics website being inaccessible making it impossible to purchase tickets and keep up with the Games activities for assistive technology users. Maguire discusses his experience in a video created by the now-more-simpler-named Australian Human Rights Commission (AHRC):

As noted into the video, Maguire ultimately won the case but at a massive personal cost. The reason it is such a difficult process relates to the legal framework designed to protect people with a disability against discrimination, the Disability Discrimination Act of 1992 (DDA).

The legal process

The biggest issue in fighting the lack of technology support as a person with a disability is how the DDA handles technology – or rather the lack of it. Currently there is no reference to anything related to Information and Communications Technology (ICT, computers, the Internet or anything that could specifically address a person with a disability that cannot access online information in the DDA. There is, however, an advisory note published in 2014 by the AHRC which explains that Section 24 can apply. It is explained as follows:

The provision of information and online services through the web is a service covered by the DDA. Equal access for people with a disability in this area is required by the DDA where it can reasonably be provided. This requirement applies to any individual or organisation developing a website or other web resource in Australia or placing or maintaining a web resource on an Australian server. This includes web pages and other resources developed or maintained for purposes related to employment; education; provision of services including professional services, banking, insurance or financial services, entertainment or recreation, telecommunications services, public transport services, or government services; sale or rental of real estate; sport; activities of voluntary associations; or administration of Commonwealth laws and programs. All these are areas specifically covered by the DDA.

In addition to these specific areas, provision of any other information or other goods, services or facilities through the internet is a service, and as such, discrimination in the provision of this service is covered by the DDA. The DDA applies to services whether provided for payment or not.”

Unfortunately, while the note suggests certainty, it also highlights the long bow that must be drawn in recognising access to the Internet as a service. Furthermore, it does not recognise the most critical part of the argument and that is that barriers to online information are not just about denial of service, but denial of an essential service. As the DDA does not specifically mention this and the legislation pre-dates the arrival of the World Wide Web for most people, it is unable to enforce online access. Therefore, the DDA is broken. As such, policy – even good policy – cannot rectify it.

Good policy is no substitute for legislation

The frustration with the lack of ICT support in the DDA is that there has been a lot of good policy created that should be helpful in addressing inequity. The problem is that it has no teeth. While Australia was slow in adopting WCAG 1.0, it did a much better job in adopting WCAG 2.0 which remains the current Australian requirement. Shortly after the arrival of WCAG 2.0 in 2008, the Federal government created the National Transition Strategy (NTS) which set specific deadlines for Federal government websites to make their content accessible. The plan was for all websites to conform to the Level A target of WCAG 2.0 by the end of 2012 and Level AA by the end of 2014. The states and local governments also got on board, and it seemed that web accessibility was soon going to be a thing of the past.

However, an interim report card after the first deadline indicated that only 26% of websites self-reported to be WCAG 2.0 Level A compliant. While the government saw this as largely good news as it had got the accessibity of government websites from near-0% to 26%, the disability community was less than impressed and the final report was never released to the public.

Policies today

So, coming back to the present, what policies are in place to ensure that people with a disability can gain effective access to online content and get jobs that require online access? Well there have been some positives. The two most notable in government circles is the Digital Service Standard (DSS) in which point 9 specifically refers to accessibility. As such, there is certainly good policy to say that the Federal government should be making its content accessible. In relation to procurement, there has also been progress. As of last year, there is a specific disability ICT procurement standard based on an almost direct text adoption of the European Standard (EN 301 549). The Federal government was so excited about the work, it committed to its adoption before the standard was even finished!  When these efforts are combined with the overall AHRC ruling on the relevance of the DDA, it should be the case that Australia is a beacon of digital access. Unfortunately, in practical terms, these policies have little impact.

The DDA doesn’t work – let’s fix it

The upshot is that the policies we have do not work despite a lot of passionate and dedicated people in government trying to fix it. It is clear that unless there is specific legislation to handle ICT discrimination for people with a disability, it will continue to be the case that policies can be ignored without any consequences, putting the pressure on individuals with disabilities to lodge a claim.

As such, I join the disability groups mentioned in the news item at the start of this article in a call for change. However, in my view there’s no point in creating more internal government policy as it clearly doesn’t work. It seems ridiculous that 18 years after the Maguire case, the processes for addressing online access issues largely remain the same.  The time has come to fix the law itself – to update the DDA so that digital access is acknowledged as an essential human right, and by doing so a clear case can be made that failure to abide by the provision of digital access has enforceable consequences.

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