Presentation to Accessible Arts Workshop

Presentation to Accessible Arts Workshop

Sydney Opera House
December 10, 2004

Bruce Maguire

Policy Officer, HREOC

Good morning everyone. I begin by acknowledging the traditional owners of the land on which we are meeting today.

George Bernard Shaw once said that the only alternative to torture in life is art. I'm not sure that you could my presentation this morning art, but I do hope it isn't torture.

Once upon a time, there was a young king who had just inherited the throne after the death of his father. He called the royal court together, and asked each of the courtiers how they planned to serve him now that he was their new king.

"I am your councillor," said the first courtier.

"I am your general," said the second.

"I am your chamberlain," said the third.

"I am your butler," said the fourth, and so on, through the hunts-man, the footman, and the warden.

At the end of the line stood an old man who had so far said nothing.

"Who are you?" asked the king.

"I am your storyteller," replied the old man gravely.

"Storyteller indeed!" responded the young king. "Do you take me for a child? I have no need of a storyteller!" He was about to order the old man to be taken away, when the old man spoke up.

"What you have just told me, sire, is precisely what King Dabzhelim told the wise man, Bidpai. In fact, the King threw Bidpai into the dungeon for his fables. But, the King soon recalled Bidpai when he realised he had been acting just like the blind man in the fable."

"What fable?" demanded the young king, whereupon the old man bowed and began to tell his story.

Stories are one of the main methods we use to make sense of, and reflect upon, our history, our culture, and who we are collectively and as individuals. Artists play a crucial part in shaping, reshaping, and interpreting our historical, cultural, and national stories. Access to art in all its forms - music, dance, painting, sculpture - gives us the opportunity to understand where we have come from, who we are now, and how we can civilise the world that we will leave our children. Yet people with a disability have been largely excluded from equal and independent access to art in all its forms.

As a society, we have traditionally designed our performance and exhibition spaces, and distributed arts-related information in ways that limit or totally prevent people with disabilities from participating in the creation or appreciation of art. The basic message of my presentation today is that art, without boundaries and without barriers, is a reality that is within our capacity to achieve, and that we all have a role in being part the solution. Kiersten and Accessible Arts, as well as the Opera House in organising this seminar, are at the forefront of proclaiming this message.

Kiersten has given you a general overview of the legislation relating to disability discrimination. Some people see this kind of law as a burden, as yet another imposition that stifles initiative and creativity. Really, however, disability discrimination legislation is one way in which we as a society are finally acknowledging that disability is part of the universal human experience, and that people with a disability have the right not only to share our collective stories, but to help create them.

The Human Rights and Equal Opportunity Commission, where I work as a Policy Officer, administers a range of human rights legislation, including the Commonwealth Disability Discrimination Act 1992 (DDA). The DDA is the key piece of Commonwealth legislation that relates to discrimination against the more than 20% of Australians who have a disability. Just think about that figure for a moment. At least one in 5 people in the Australian population has a disability. This figure is increasing as the population ages. 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:

* Physical

* Intellectual

* Psychiatric

* Sensory

* Neurological, and

* Learning disabilities, as well as

* Physical disfigurement, and

* The presence in the body of disease-causing organisms.

The DDA sets out specific areas in which it is unlawful to discriminate against people on the grounds of disability. 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 services provided, for example, by retail shops, churches, cinemas, theatres, cultural centres, and entertainment venues. An organisation that provides services or information through a website is also liable for complaint under the DDA if the services and information 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 an art gallery refused admission to a person who was accompanied by an assistance animal such as a guide 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, 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 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 that prevents them from using the physical mouse.

The DDA recognises, 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 Human Rights Commission, which will investigate the complaint and, where appropriate, 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. Or to put it in the words of a recent Federal Court decision, unjustifiable hardship "connotes much more than just hardship". Here's an example: 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 films 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 that 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.

The second point about the concept of unjustifiable hardship is that there is a recognition 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. I often receive phone calls from building managers or church trustees who say things like, "we occupy an old building, or one that is heritage listed. The DDA doesn't apply to us, right?" I answer, "wrong".

The DDA reinforces the right of people with a disability to enjoy our heritage too. In most cases, though, it is possible to provide reasonable levels of access to our heritage without destroying it, and 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 render 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 a disability car parking space.

The DDA also allows for the development of what are known as DDA standards, in certain specific areas, including transport and access to premises. DDA standards provide much more specific information about what needs to be done to comply with the DDA in a particular area. Once a DDA standard has been promulgated, then contravening the standard amounts to a breach of the DDA itself; but, on the other hand, if an organisation is complying with a DDA standard, then they are deemed to be complying with the DDA in the area in question, and so a complaint cannot be successful. It is therefore important that DDA standards be developed with full consultation and consideration. At the moment, we have a DDA standard covering Accessible Public Transport, which came into force in October 2002. Much work has also been done on the development of a standard covering access to premises, and we hope that this standard will be finalised soon.

It is important to bear in mind that just because there is no DDA standard for a particular area, it does not mean that the DDA does not apply. The DDA is framed in terms of discrimination, not the meeting of particular technical requirements. For example, the DDA makes no specific mention of websites. The DDA covers discrimination in the provision of goods and services, regardless of how those goods and services are provided. These days, goods and services are increasingly provided via the Web, and so websites fall within its scope. There are international best-practice guidelines for the design of accessible websites, and it is very hard to see how any organisation could successfully argue that making their website accessible to people with disabilities would result in unjustifiable hardship.

People with a disability are not a separate segment of the population that can be left until everything else has been taken care of; Whether you are designing an arts venue, organising a festival, operating a gallery, or distributing information about an upcoming concert, it makes good sense to think accessibility first, accessibility second, and accessibility all the way down the line. I can't think of a single instance where complying with the DDA has restricted market share or stifled creativity, and in almost all cases there are unanticipated but real benefits. For example, a website that is designed so that it is accessible to people with a disability will probably also be accessible to the increasing number of people who are browsing the web on their mobile phones. Buildings that are designed for accessible will also benefit older Australians and mothers with babies in strollers.

In a short presentation such as this, I haven't had time to discuss the other ways in which the the legislation allows for the objects of the DDA to be promoted. I'm thinking particularly of disability action plans and temporary exemptions from certain DDA provisions that help organisations meet their responsibilities in a strategic way. One of our roles in the Commission is to work with organisations and businesses to help them develop a reasonable and nuanced response to the requirements of the DDA. I have never met a person with a disability who enjoys lodging a DDA complaint, and I have never met a business or organisation who enjoys defending one. The key is to think in terms of partnerships, not contests, and I would encourage you to take advantage of the resources and services that we in the Commission can offer you.

I want to finish my presentation today with a story. There was once a young girl who lived in a Persian village. She had an adventurous disposition, and she liked to explore the hills and valleys near the village. One day she ventured further than usual,, and she came upon a cave. She went into the cave, and as her eyes gradually became accustomed to the deep darkness inside, she was thrilled to see a large pearl shimmering on the floor. She bent down to pick it up, but as she did so, she noticed that the pearl was clutched in the claws of a great and fierce-looking dragon. She stood still for a long time, trying to summon up the courage to fight the dragon and take the pearl. But eventually she sadly turned away: the dragon was too terrible, and her fear too great.

Many years went by. The young girl grew older, and had many experiences. But she never forgot that wondrous pearl. She decided that before she grew too old she would go back and take a last look. So she went all the way back to that Persian village, and once again found the cave. The pearl was still there, as enticing and lustrous as ever. But as she bent down, she noticed to her astonishment that that great and terrible dragon was now just a little pussycat. so she reached out her hand, and took the pearl.

The moral of this story is that the more we live life and face its many challenges, the easier it is to confront the dragons, wherever we find them. Discrimination is a dragon that can devour those who are disadvantaged and which quenches the genius and generosity of the human spirit. But this dragon, too, can be transformed into a harmless pussycat by the way we orient our actions. Whenever we design a building, build a website, organise a concert, or deliver information, we have a choice. We can choose to fight the dragon of discrimination, or we can choose to allow discrimination to take an even firmer grip on us. I urge you, whether you are managing an exhibition of Matisse, or organising a performance of Vivaldi, or arranging a tour by Linkin Park, or whether you are just helping the local school to organise its end-of-year dance concert, I urge you to remember that pearl: in this case, the pearl is the achievement of a just, equal and inclusive society.