“Access to the arts: Being Discriminating rather than Discriminatory"

Presentation to Arts Activated Conference

September 26 2007

Graeme Innes AM

Good morning everyone. I acknowledge the traditional owners of the land on which we meet today.

Take a piece of canvas, some chicken wire, paint and plastic, and put them together so that they resemble a potato cooked in its jacket. Mount the whole thing on a block of wood, add a label that says "baked potato with butter" and what have you got? You've got a famous example of Pop Art. The collector who bought it is alleged to have remarked, "pop is the art of today, tomorrow and all the future". Human nature being what it is, I imagine they said much the same thing after they'd put the final touches to those prehistoric cave paintings. (I might add that the same gentleman who produced the potato went on to produce an ice-cream cone eleven feet high, and a hamburger seven feet across).

Thanks for the chance to speak with you today. I'm here because Bruce Maguire, the Human Rights Commission's accessible arts expert, had the opportunity to attend a meeting in New York , and took the better offer.

I want to quote from Tolstoy (no, don't panic, I'm not going to read War and Peace). In his essay "What is Art", Leo Tolstoy described art as "one of the conditions of human life". He wasn't just referring here to visual art, but rather to what we would today call "the arts". And the words Tolstoy uses are remarkably similar to our contemporary discourse that focuses on human rights and access.

Modern post-industrial societies such as Australia do put a high value on the arts. We also put a high value on human rights, including the right to participate fully in all aspects of the artistic and cultural life of the community. Yet, all too often, we don't bring those two values together. The result is that a number of groups including, of course, people living with disability, often experience discrimination as spectators of, and participants in, the arts.

With this in mind, I'm very pleased to have the opportunity to be a part of the Arts Activated conference today, in my dual roles of Human Rights Commissioner and Disability Discrimination Commissioner. In this brief presentation, I want to illustrate how the Disability Discrimination act (or DDA) can be used as a lobbying and advocacy tool in the campaign to make the arts more accessible, and then I'd like to say a few words about the relevance of the UN Convention on the Rights of Persons with Disabilities.

The Commonwealth Disability Discrimination Act (DDA) makes it unlawful to discriminate against people with a disability in certain key areas of community life, including accommodation; access to premises; education; Goods, services and facilities; and the administration of Commonwealth laws and programmes. 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 an arts education provider refused to allow a blind student to enroll, or if a museum refused admission to a person who was accompanied by an assistance animal such as a hearing dog.

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, providing emergency services 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 provides ticket-booking facilities, but which requires the use of a mouse rather than a keyboard, would discriminate against people who are blind, or who have another disability which prevents them from using the physical mouse. an organisation that distributes newsletters, brochures and other information only in PDF format would be indirectly discriminating against people who are blind or who have other print disabilities, because PDF is not generally considered to be an accessible format.

The DDA does not refer to the arts specifically, but there are a number of ways in which the DDA does cover many aspects of arts access. The DDA operates primarily as a complaints-based process, and over the years, quite a few relevant complaints have been lodged: Here are some, taken from our website:

A man who has quadriplegia, and uses an electric wheelchair, complained under the DDA that when he went to see several films during a film festival, some of the cinemas used for the screenings were not accessible, and that he was given incorrect information by staff regarding the wheelchair accessibility of festival venues. He also stated that the festival website did not have information on the wheelchair accessibility of venues. The Festival organiser agreed to provide information about wheelchair accessibility of the cinemas on its website. It also agreed to improve the training of its staff for future festivals, and encourage the venues it uses to improve their wheelchair accessibility. The cinemas agreed to consider the complainant's concerns in any future renovations to be done at the cinema. They also agreed to improve the training of staff in the wheelchair accessibility of the cinemas.

Let me talk now about access to our heritage without destroying it. There are access consultants who are familiar with techniques and strategies for achieving this. I'm reminded of a man who uses a wheelchair who lodged a complaint under the DDA, alleging that a recently renovated restaurant did not have adequate access. The restaurant owner noted that the building had heritage listing, and that extensive local government planning processes just completed had given approval for the renovated premises, without compliance with the disability access requirements of the Building Code, on the basis that modifications to the front entrance to make it accessible would be inconsistent with heritage requirements. After a conciliation conference, the matter was settled when the restaurant agreed to seek approval for modifications to provide side door ramped access, and provision of an accessible car parking space.

We get quite a few inquiries from owners or occupiers of heritage-listed buildings. There is a misconception that the DDA doesn't apply in such cases, and that heritage listing overrides disability access. The DDA certainly isn't about the destruction of heritage buildings, and other aspects of our culture, but people with disabilities have the same rights to enjoy the physical manifestations of our culture as the rest of the community. Just because a building is heritage-listed doesn't mean that access considerations are irrelevant: such listing doesn't take precedence over the DDA. Of course, there may be cases where providing full access are found to be unreasonable, and in other cases it might cause unjustifiable hardship, but that's a matter for the courts to decide, not the owner or occupier of the building. The basic point is that the main purpose of a building that is open to the public, and used by government or business, is to serve the public - which both in law and in fact includes people with disabilities.

One other matter that we're often asked about in this context is whether organizations that hold arts-related events in inaccessible buildings, be they heritage-listed or otherwise, have any responsibilities under the DDA. The answer is that yes, they do. Under the DDA, it is unlawful to permit discrimination if there is a power to prevent it. Bodies that organise events, or provide funding for such events, have some power to decide where those events will be held. If they allow inaccessible venues to be used, then they may be liable for complaints under the DDA.

Just before moving away from heritage issues, I'd like to commend Accessible Arts, and the Arts Law Centre of Australia, for collaborating on a project that is currently underway, to examine the nexus between disability discrimination legislation and heritage conservation legislation. Bruce Maguire is providing some advice on behalf of the Human Rights Commission to the people undertaking this project, and we look forward to a useful outcome.

While the DDA does indirectly address many issues relating to arts access, the UN Convention on the Rights of Persons with Disabilities refers directly to arts in the context of culture. Because this is such an important and far-reaching initiative, I thought I'd give you a very brief introduction.

The Convention 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. 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 are 8 general principles which serve as the foundation of the Convention. These are set out in Article 3, and are:

a. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;

b. Non-discrimination;

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;

f. Accessibility;

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.

The Convention creates a number of obligations for countries that have ratified it. To quote the Convention, “States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities, without discrimination of any kind on the basis of disability."

The Convention is comprehensive, and includes reference to many areas of life in which disability discrimination can and does occur. For our purposes today, the first two parts of Article 30 are worth quoting:

"Article 30 - Participation in cultural life, recreation, leisure and sport

1. States Parties recognize the right of persons with disabilities to take part, on an equal basis with others, in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:

* Enjoy access to cultural materials in accessible formats;

* Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;

* Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible,

* enjoy access to monuments and sites of national cultural importance.

"2. States Parties shall take appropriate measures to enable persons with disabilities to have the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society. …"

An important point to note here is that the Convention anticipates the mutuality of access: people with disabilities have the same artistic and creative potential as other members of the community, and access involves the right to be able to express and develop that potential, to the benefit of all society.

I would strongly encourage you to read the convention, and to participate in the discussions and activities that will be occurring over the coming months, as Australia embarks on the process of national consultation that is necessary before the Convention can be ratified. The Commission's website has some very valuable resources, as well as information on how you can be involved.

Many governments, non-government organizations, and disability groups, collaborated during the development of the UN Convention. It's a compelling example of what we can achieve when we work together as partners. I believe we can also bring about significant, much-needed improvements in arts access, by developing networks, making connections, and fostering a spirit of collaboration. Those working in the arts field vigorously defend the notion of artistic freedom. Those of us involved with arts access should not feel timid about asserting our rights with equal vigour. Freedom has two faces: there is "freedom from", for example, freedom from discrimination, harassment, victimisation, and so on; but there is also "freedom to", which includes freedom to participate fully in artistic and cultural life - freedom to attend the films of our choice, freedom to attend music in accessible venues, freedom to enjoy audio-described and Auslan-interpreted tours and exhibitions and, in general, freedom to enjoy the fruits of our collective artistic and cultural endeavours.

We should be discriminating: after all, some of us like big baked potatoes, others like blue poles, and others are really into the art of ice cream making. But while it's OK to be discriminating, it's not OK to be discriminatory. Disability discrimination has no place in the arts, just as it has no place in other areas of life. This conference is a valuable opportunity for us to celebrate artistic achievement, and to plan a future that is increasingly accessible.

I'll conclude by reminding you that Bruce Maguire is the Disability rights Unit's resident arts critic, and when he gets back from New York he'll be very happy to discuss any aspect of arts access with you (start by asking him how big the hamburgers are there).