Presentation to Web Content and Performance Management Conference

Presentation to Web Content and Performance Management Conference

Bruce Maguire

Policy Officer, Human Rights and Equal Opportunity Commission

March 25, 2003

Good morning everyone. I'm actually thinking of developing a theory of corporate management based on reactions to that introduction. For example, when I say good morning to first year university students, they echo "good morning" back to me; when I say good morning to politicians, they remain silent, lest they be misquoted; when I say good morning to management consultants, they write it down; and when I say good morning to web content strategists, they hurry off to turn it into a inaccessible bitmap image.

I am here today representing, firstly, the Australian Human Rights and Equal Opportunity Commission (HREOC), and, second, I'm here to represent at least 20% of the population, and 20% of your customers: of course, I'm referring to people who have a disability.

In some ways, the basic message of my presentation today is that I shouldn't be giving it: issues affecting people with a disability cannot be quarantined out from other issues, just as people with a disability cannot be separated from the rest of the population, and from the rest of your customers and clients. When people with a disability use the Web, they do so for exactly the same reasons as other members of the community, for example, to find information about goods and services, to pay bills, book airline tickets, and so on. People with a disability are in every way part of the population, and they are part of your client group. Show me an aspect of web content and performance management or web development that affects or has an impact on your customers, and I'll show you how it impacts on or affects users with a disability; there isn't a single issue or topic being discussed at this conference that does not, in various ways, have implications for users of your web pages and content who have a disability.

In the context of the web, it is customary to refer to "accessibility", and the principles of accessible web design when discussing how people with a disability can gain independent and equal access. Using these terms, I can restate my basic message by saying that accessibility is part of usability, the principles of universal design are applicable to everyone, and so if you want a web page or its content to be usable by your customers, then you have to think accessibility first, accessibility second, and accessibility all the way down the line.

Presentations like the one I'm giving today run the risk of implying that you can design a web page, manage its content, and evaluate its performance; and then, if you have time and the resources, you can do some accessibility testing. This view is actually much more common that you might imagine, and certainly much more common than it should be. Yet, this view makes little sense when examined logically, and it leads to conduct that is unlawful.

I want to deal with the illegality first, by providing a brief overview of the Commonwealth Disability Discrimination Act. I'll begin by giving you a brief outline of the functions of the Human Rights and Equal Opportunity Commission, which administers that Act.

The Australian Human Rights and Equal Opportunity Commission (affectionately known as HREOC) was established in 1986, replacing the former Human Rights Commission that had been established in 1981. The Commission has a number of functions clustered around the administration of Commonwealth and international legislation dealing with human rights.

Firstly, HREOC has responsibility in relation to seven international instruments to which Australia's government has committed itself. These instruments are

1. International Covenant on Civil and Political Rights

2. International Labour Organisation Discrimination (Employment) Convention ILO 111

3. Convention on the Rights of the Child

4. Declaration of the Rights of the Child

5. Declaration on the Rights of Disabled Persons

6. Declaration on the Rights of Mentally Retarded Persons, and

7. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

Secondly, the Commission administers a number of pieces of Commonwealth legislation:

1. The Disability Discrimination Act 1992

2. The Racial Discrimination Act 1975

3. the Sex Discrimination Act 1984

In addition, the Aboriginal and Torres Strait Islander Social Justice Commissioner has specific functions under the HREOC Act and under the Native Title

Act, 1993. These functions relate to the monitoring of the enjoyment or otherwise by Indigenous people of their rights under the law.

Each major function of the commission is supported by a policy unit. The instruments; the Racial Discrimination Unit promotes the objectives of the Racial Discrimination Act; the Sex Discrimination Unit promotes the objectives of the Sex Discrimination Act; and the Disability Rights Unit promotes the objectives of the Disability Discrimination Act (DDA). These objectives are:

" eliminate discrimination against people with disabilities

" promote community acceptance of the principle that people with disabilities have the same fundamental rights as all members of the community, and

" ensure as far as practicable that people with disabilities have the same rights to equality before the law as other people in the community.

The Commonwealth Disability Discrimination Act 1992 (DDA) makes it unlawful to discriminate against a person on the grounds of a disability. The Act 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.

I pause to note that the DDA definition of disability is broader than that used by the Australian Bureau of Statistics (ABS) in arriving at a figure for the percentage of the population that has a disability. In the context of web design and content management, the broader definition is particularly relevant. For example, people who have a temporary disability such as a broken arm will still want to be able to use the Internet, and so web pages that incorporate the principles of universal web design will benefit a much broader group than even the 20% figure that I quoted earlier.

The DDA sets out specific areas in which it is unlawful to discriminate. These areas include accommodation, employment, access to premises, and the provision of goods, services and facilities. The definition of "services" in the DDA includes financial and information services provided, for government Websites. An organisation such as a government department that provides such services is liable for complaint under the DDCA if those services are not accessible to people with disabilities.

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 complain to the 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". It is important for government departments to note that the defence of "unjustifiable hardship" is not available where a complaint relates to the administration of Commonwealth laws and programmes. This reflects the government's view that it has a particular responsibility to promote the objectives of the DDA and to eliminate discrimination against people with a disability. In the context of the current conference, this means that if a person lodges a complaint against a website that is involved with the administration of Commonwealth laws and programmes, then that website must be made accessible if the complaint is upheld. Even in the case of non-government websites, it is hard to see how a website could succeed with a claim of unjustifiable hardship, given the considerable amount of information, training and techniques that exist for making websites accessible, and given also the ready availability of affordable technologies for achieving such accessibility.

It is also important to bear in mind that the DDA covers intranet sites as well as external sites, and that government departments, in their role as employers, need to consider the accessibility of their intranets to employees or potential employees with a disability.

It thus makes good sense to develop and implement strategies designed to minimise the risk of complaints under the DDA. Such strategies will help to ensure that websites and web content are accessible, and thus promote the objectives of the DDA.

The DDA allows for the development of what are known as DDA standards, in certain specific areas, these areas being accommodation, education, employment, the administration of Commonwealth laws and programmes, transport and, most recently, 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, and so far the process has been very slow - too slow, some would say. At the moment, the only DDA standard that has been promulgated is the Accessible Public Transport Standard, which came into force in October 2002. Much work has also been done on the development of an education standard, and a standard covering access to premises. At this stag, there is no ongoing work on the development of a standard covering the administration of Commonwealth laws and programmes, including Commonwealth government websites.

The Commission's view is that the development of DDA standards offers a significant and effective opportunity for the elimination of discrimination through systemic change.

The Commission also has a role in assisting organisations understand their responsibilities under the DDA, and supporting initiatives aimed at promoting compliance through best practice such as voluntary industry standards, guidelines, or codes of practice. While these Industry Standards have no force in law, the Commission has supported their development in the hope that they will provide a level of access consistent with the requirements of the DDA. The W3C Web Content Accessibility Guidelines 1.0 are now widely considered to represent the world best practice on web accessibility, and while they are not part of the Disability Discrimination Act, nor are they part of a DDA standard, they do provide a valuable measure of performance in the area of web accessibility.

The DDA and Government Websites

There have been a number of DDA complaints against Commonwealth government websites, including some whose developers content or managers are here today. Some of these complaints relate mostly to issues of website navigation, but there is a growing number of complaints relating to the format in which content is presented on government websites. In particular, the ADobe Portable Document Format (PDF) is becoming the subject of complaints on the grounds that it is inaccessible to people who are blind or vision-impaired.

The PDF format has become widely used for making documents available on web pages. Despite considerable work done by Adobe, PDF remains a relatively inaccessible format to people who are blind or vision-impaired. Software exists to provide some access to the text of some PDF documents, but for a PDF document to be accessible to this software, it must be prepared in accordance with the guidelines that Adobe have developed. Even when these guidelines are followed, the resulting document will only be accessible to those people who have the required software and the skills to use it. Many blind or vision-impaired people do not have the financial freedom to spend the $1,000+ typically required to upgrade their software to take advantage of the latest accessibility features, and requiring a user to upgrade to this extent in order to read a standard document is like designing web content presentation in such a way that most people will have to buy a new computer in order to read it. Clearly, this is not a reasonable approach to the discharge of a government's social responsibility to provide relevant information to its citizens.

The Commission's view is that organisations who distribute content only in PDF format, and who do not also make this content available in another format such as RTF, HTML, or plain text, are liable for complaints under the DDA. Where an alternative file format is provided, care should be taken to ensure that it is the same version of the content as the PDF version, and that it is downloadable by the user as a single document, just as the PDF version is downloaded as a single file.

It should also be borne in mind that not all content can be made accessible online to people who are blind or vision-imaired. The use of coding strategies such as the "longdesc" tag does provide a way for web designers and content managers to make charts and other graphical information accessible, but there will still be situations where no adequate alternative exists. Organisations that need to make such pictorial content available must therefore develop strategies for making it accessible, for example, by using qualified contractors to produce tactual maps and diagrams on request. The most effective and efficient way of doing this is by incorporating accessibility issues into overall web content management.

An associated issue concerns the extent to which new and emerging technologies are accessible. There has, for example, been some encouraging progress made during the past year towards some accessibility of Macromedia's Flash technology. However, at best, this accessibility is only available to users who have the latest versions of screen-access software, and to developers who use the latest version of the Flash development tools and follow strict guidelines. The value of web accessibility is now generally recognised, and so companies often use marketing and media to promote their accessibility initiatives. But, as is so often the case, "the devil is in the detail", and what might be accessible in theory is often inaccessible in practice.

The moral from this brief discussion is that web design and content management must, wherever possible, proceed on the basis of technologies that are readily available to users and that have been well-tested. These are, however, generous constraints, and there is no incompatibility between accessibility and sophisticated or attractive design. The myth that accessibility means plain vanilla text is just that - a myth.

Government Commitment to Web Accessibility

Australian governments have given a commitment to web accessibility. In June 2000, the Online Council, representing the Commonwealth and all State and Territory governments, agreed that the Worldwide Web Consortium's Web Content Accessibility Guidelines 1.0 will be the common best practice standard for all Australian government websites. It is pleasing to hear that the National Office for the Information Economy (NOIE) estimate on the basis of surveys that it has conducted, that substantial progress has been made in reaching the Online Council's initial target, and that most government departments now also include accessibility as a criterion in their contracts for the outsourcing of web design and management services. Thus, many Commonwealth government websites have now implemented the W3C web accessibility guidelines to the level of single-A compliance.

Naturally, the question arises as to where we go from here. The Commission's view is that the W3C Web Content Accessibility Guidelines have become sufficiently stable and well-authenticated for them to be considered as the benchmark for international best practice. The guidelines present three levels of compliance, of which the single-A was the first to be developed, and the minimum level of accessibility. The progress that many government departments have made in achieving single-A compliance is significant and praiseworthy; however, websites that have only reached this level of compliance will be difficult or impossible for some groups of users with a disability to access. It is important, then, to regard single-A compliance as an interim measure against which to rate the performance of government websites. Implementation of double-A and triple-A compliance will not only improve accessibility of websites, but also reduce the risk of complaints under the DDA.

The Commission's Role

Last year, the Human Rights and Equal Opportunity Commission announced its intention to conduct a survey of key Australian government and non-government websites to assess their usability by people with a disability. Precise details of the methodology and implementation of this survey are still being finalised, but it is hoped that the results will provide useful quantitative and qualitative measures of the extent to which the principles of accessible web design are being applied. The Commission has produced a range of resources, including eh Web Accessibility Advisory Notes, that provide guidance and information to web developers and content managers about how to promote the objects of the DDA through the Web. We are also happy to work with government and industry to help them meet their responsibilities under the DDA by developing strategies aimed at improving accessibility.

Conclusion

People with a disability are not a separate segment of the population that can be left until everything else has been taken care of; similarly, providing accessible websites and content is not simply a matter of ticking some boxes on the sign-off sheet. Applying the principles of universal web design is good social policy, it promotes the objectives of the Disability Discrimination Act, and, as the Internet Industry Association have shown in the development of their Accessible Web Action Plan, it makes good economic and marketing sense. In other words, making the web and its content accessible is not a contest between web developers and people with a disability. It is a partnership whose aim is the promotion of full and independent universal access through the utilisation of the powerful technologies that are now available. The result will be an online superstructure that empowers citizens and promotes an inclusive society that is accessible to all.