Roundtable on Information Access for People with Print Disabilities
Disability Rights
Roundtable on Information Access for People with Print Disabilities
|
22 May 2006 Graeme Innes |
 |
Introduction
I'd like to acknowledge the traditional owners of the land on which we meet.
A long, long time ago, I can still remember sitting down to write my first Roundtable speech.
And I thought if I had a chance, then human rights I could advance
And equal access wouldn't stay just out of reach
And now I'm here again to give a
Few thoughts and perhaps deliver
Some good news on your doorsteps
And talk about some next steps
You know I've got a new appointment
I don't mean it to be a disappointment
But perhaps you're wondering where my point went
In starting off this way
Oh why, why has this Graeme Innes guy
Brought in with him rhyme and rhythm from "American Pie"?
There's a reason, so just please an instant to explain why
Without being boring and dry
Or at least I'll give it a try . .
Okay.
Perhaps you're thinking that the American Pie references were just a desperate effort, first thing in the morning, to engage the interest of an audience who had an enjoyable evening's networking over dinner last night.
A former colleague of mine once coined the expression "networked as a parrot" to describe the combined effects of good wine and discussions into the night with colleagues and friends from around this country. But I'm sure that expression didn't and doesn't apply at all to the mature and responsible group that we have turned into in our years of working together.
I thought it might be appropriate to try turning the format of a song into the format of a speech, in honour of the announcement last week by the Attorney-General of Australia that the Copyright Act would be amended to remove barriers to "format shifting" as a means of providing access for people with disabilities.
I haven't done the whole speech that way - obviously not because of any limits on my creative abilities! - but because the amendments haven't yet been released in detail or considered by the Parliament, and of course as a good lawyer I don't want to overstep the limits of what's permitted.
A song from the 70s was always going to be a pretty likely choice for this purpose. As I said to a deafness sector summit on Saturday evening, we often seem to find ourselves in human rights and in disability going over the same material year after year, like a 70s rock band, even if there have been changes in personnel and advances in technology.
Actually, this meeting is getting off lightly with the American Pie references - the deafness sector summit was subjected to thoughts about, and from, Deep Purple, in view of their sometime status as loudest band in the world. Now that would be a way to wake up an audience .
My notes for the deafness sector summit are on our web site now, so I won't go over all of the same points. I'm sure we'd all rather have a real conversation than just have me demonstrate for its own sake a very well tried version of text to speech.
The American Pie theme suggested itself for a number of reasons when I was thinking about topics I wanted to talk about today. The topics I have in mind include:
- Copyright reform and format shifting
- Direct access to accessible formats of published material
- Accessible procurement policies
- Web and software accessibility
- Codes and standards for accessibility
- Methods and strategies for pursuing equal rights.
Let's see how we go with those.
Copyright reform
Copyright reform in Australia , as many of you know, has been a long running and complicated process. But one of the factors behind the reforms announced last week by the Government was the Free Trade Agreement between the U.S. and Australia .
Two obviously important agendas for the U.S. in international trade at present are protection of intellectual property in things like music, films and information technology against illegitimate copying or piracy; and increased access to international markets for distribution of products in this area.
One of the anomalies that was highlighted by the Australia - US free trade agreement was that Australian copyright law imposed greater restrictions on consumers in dealing with copyright material from the US than US law did.
US copyright law contains a principle permitting "fair use" or "fair dealing" . Under that principle it has been regarded as permitted, for example, for consumers to make backup copies of CDs or movies they have bought and paid for. (The amendments announced for Australia don't have quite the same effect but do have some of the same purpose.)
Most of us have experienced tapes getting twisted or discs getting scratched or damaged by sunlight or just plain ageing.
(It seems that CDs, just like humans, experience increasing rates of disability as they get older.)
I've heard of more colourful accidents that can happen when a child of the digital age tries to make sense of older concepts of communication, and so posts a vegemite sandwich in the video or DVD player slot, or puts a DVD or video in the postbox, expecting it to play rather than to be irretrievably lost.
Apart from providing for backup against accidents like this, the other benefit of a broad copyright exception for fair use is in providing for and defining rights to move material you already own between formats.
This can be valuable to everyone, in providing more convenient access.
We all know now that you get so much value from music or other material you buy if you can carry it around with you wherever you go are, than if it is less portable. On basic economic theory that should mean you are more likely to buy it.
As you might expect, I take more books away on holiday now that they fit in my pocket in digital form than when it used to mean a suitcase full of Braille. And of course it hasn't occurred to me at all to make unfair remarks to my wife now about how much her suitcase of paper books weighs by comparison.
The music and film industries do seem now to be getting this point, that more convenient access for consumers is something worth selling.
Some analysts have suggested that we would not have seen the rise of Napster and similar means of evading paying at all for copyright material if, instead of attempting to resist the tide of technology, industry interests had decided earlier to ride, or surf, the tide of technology, by providing access when and where and how consumers want it.
For those of us with disabilities affecting access to print, though, format shifting often means not only more convenient and useful access, but the difference between access and no access at all.
Australia 's copyright laws have included for many years a statutory license to allow conversion of copyright material into accessible formats for the benefit of people with disabilities. But consumers, educational institutions, libraries and other relevant parties have been concerned that this license has been inadequate in its extent and in the certainty it has provided - in relation to what material is allowed to be converted, how it is allowed to be stored and distributed, and who is allowed to do the converting and distributing.
I'm very excited by the announcement of legislative changes to fill in the gaps in existing arrangements for format shifting to provide access for people with disabilities. I'm particularly pleased that this issue was addressed as part of the mainstream package of reform addressing format shifting issues. As we all know, it's all too common for disability access issues to be several years behind the mainstream of developments in the fast moving areas of information and communications technology and regulation.
In response to the Government's announcement I put out a press release which I intended to be a positive statement recognising a positive initiative by Government in dealing with a complex area of law full of technical difficulties, overlapping national and international legal regimes, and competing interests, and an initiative which the sector and the Commission have worked hard for over some years..
Luckily, like most good news stories, it didn't get much media attention.
Equality: still lost in translation
I say luckily, because looking at it again now the press release doesn't look as if I am very happy with the Government for announcing they were doing pretty much exactly what I had asked should be done in these amendments.
Of course, the details of the Bill to implement these proposed changes to copyright law are still important, and I hope that the Commission and the sector will be able to be involved in discussing those details.
But the real reserve behind what might be seen as the sound of one hand clapping in my response is this:
A right to convert materials yourself from inaccessible to accessible formats is a move forward, without question. But it is roughly equivalent to a right to get up and start running again from behind, after the rest of the pack has pushed you off the track and into the mud.
In my own experience these days, I don't spend too much time with my nose in the mud watching the other runners race away. As a lawyer I have the benefit of a high bracket income, and as a public servant I have access to whatever resources the Commonwealth of Australia can bring to bear through a particularly skilled and committed information technology staff.
But, time and again, I see evidence of unequal information access still causing real damage in our society.
Equal information access in education
As a parent myself one thing that causes me particular pain is to know that students are still waiting months for access to course materials. During those months they are missing out on learning what their peers are learning, and missing out on acquiring the skills they should be acquiring, or enjoying the opportunities they should have to demonstrate and use the skills they have.
Instead, they, and their teachers, and educational institutions more broadly, and their classmates, are learning a very different and destructive lesson - that equal access for people with disabilities is too hard, a silly utopian politically correct ideal that doesn't work in practice, the pursuit of which just makes life miserable for everyone involved.
We have several had complaints under the DDA where it has been accepted by all parties that translation of course materials by a student into formats accessible to them was permissible.
But the issue was, should the student and their family members have to spend many hours scanning and reformatting materials each week, while their peers who had direct access to the materials could spend those hours in study or part time employment or - so I'm told - various social and recreational activities?
A finding of indirect discrimination under the DDA requires a finding that a person has been required to comply with a condition or requirement which they are unable to comply with. Mostly courts have taken realistic approaches to this point, approaches which recognise the purpose of the DDA in promoting equality, holding for example that a theoretical possibility of compliance, or something that is physically possible but unsafe, isn't enough to exclude a right to complain.
But at least one court decision under the DDA seems to indicate that if you can manage under these constraints to pass the course while missing out on the opportunities taken by your peers to rise academically and fall over in other areas of life, you have no complaint.
As you might expect, I don't accept that it has to be like this.
Discrimination law reform
One avenue for addressing these issues is though reform of discrimination law.
In its origins, in American court decisions on racial discrimination, indirect discrimination was not meant to be a highly technical subject. The idea was to cut through the formalities of a situation and look at whether in fact a disadvantaged group was being subjected to further disadvantage.
For most of its life the indirect discrimination provision of the DDA has worked well along these lines, including in some decisions from the Full Federal Court.
But as I have said there have also been several decisions, mostly from more junior judges, which have taken more artificial and restrictive approaches.
I'm glad to say that in response to the review of the DDA by the Productivity Commission, the Government has agreed that the indirect discrimination provision of the DDA should be simplified. Reform along the lines of the Sex Discrimination Act provision in this area would I think be a major advance. This would put the focus of indirect discrimination law back on whether someone has been unreasonably disadvantaged instead of courts being misled into making mistakes in interpreting more technical rules, and I hope we will see reform on those lines in the next few months.
More specifically in the area of education, the Disability Standards for Education, which entered into force last year, try to cut to the chase through all those issues of the meaning of discrimination which produce interest and income for lawyers but frustration for everyone else, and instead set out at least in principle what it is that education providers have to do by way of reasonable adjustment to provide equal access.
This mixing of general discrimination law requirements and more specific regulations to adapt those requirements to the context of disability is another part of the American heritage of the DDA and one which seems to take some adjusting to for Australian lawyers, more familiar with an environment of rights based on general antidiscrimination provisions and individual complaints.
Complaints and the possibility of complaints remain an important driver for the implementation of the education standards but they are clearly not the only strategy needed.
In my paper to the deafness sector summit a few days ago I talked bout some possible approaches to complaints and complaint strategies. I'm happy to talk further on those issues today but perhaps you might prefer to come back to me about that outside this session.
More slices of the American pie
American culture is well known as including a willingness to use legal processes to assert what people see as their rights.
In the disability access area though there are two rather different slices of the American pie which I and the Commission have been trying to get on the table in Australia for a while now.
Information networks on adjustments
The first is better access to information on what adjustments to make and how to make them.
We have been very pleased to see the Government pick up the suggestion for an Australian equivalent of the U.S. Job Accommodation Network information and advisory service, and that should be launched later this year. I'm hoping that will be structured in a way that allows continued improvement through input of expertise and experience from the sector on good practice and successful adjustments.
I think it would be good to talk about some similar facility to bring together and provide easier access to all of the expertise that does exist in the education sector - so that no child needs to miss out on weeks or months of education while an overworked teacher tries to find appropriate resources.
Accessible procurement
The second theme is that of accessible procurement.
If as far as possible all systems and facilities comply with universal design concepts then meeting disability needs will far less often be a matter of making special adjustments and using time and money in that process. In the Commission's national inquiry on employment and disability we recommended that the Federal Government follow the U.S. Government's lead in adopting an accessible procurement policy.
As many of you probably know, regulations under section 508 of the US Rehabilitation Act 1973 require that wherever possible information and communications systems or facilities used by US federal government agencies have to meet standards for accessibility.
There is no reason in a Federal system, though, why every worthwhile initiative has to be taken up at central government level first or not at all.
I understand that the Victorian government has started work on an initiative in this area and I look forward to more details shortly. I'd like to see similar initiatives from other State Governments and indeed from other significant institutions in Australian society including education providers and major local government authorities. I hope to discuss ways of pursuing this issue both with disability sector organisations and with government over the next few months.
Conclusion
I mentioned earlier that I had been developing some ideas in the last few days at a deafness sector summit, which I wouldn't repeat all of here for reasons of time, but the notes are available on our website.
It's interesting to think that pretty much anything important that Australia 's Human Rights Commission has done in the disability area in the last 13 years would still fit on one compact disc - that's about the size of the disability files within our web site.
I take that as a small illustration of the point that information access isn't really constrained by technical or legal limitations at all any more. It's just a matter of deciding to do it. Let's keep talking together about how to move forward on that journey.