Local Government - gatekeepers to a more accessible community

Dr Sev Ozdowski OAM,
Acting Disability Discrimination Commissioner

National Local Government Community Services Conference
- Just and Vibrant Communities
Townsville 28 July 2003

Introduction

Allow me to commence by acknowledging the traditional owners of the land on which we meet.

I also acknowledge Ms Jenny Merkus, President of the Local Government Community Services Association of Australia (LGCSAA). I would like to congratulate Jenny and other members of the conference planning committee who have put together a varied and exciting program of speakers. I also acknowledge Mayors, councillors and distinguished ghuests and speakers who have travelled from around Australia to be here.

Looking at the range of initiatives taking place throughout Australia I am impressed by both the creativity and commitment shown by your colleagues in the pursuit of 'Just and Vibrant Communities'.

I am particularly pleased to see issues relating to people with disabilities so prominent in your program. About 21% of the Australian community has a disability, and the proportion is increasing with the ageing of our population.

Yet it is not so many years ago that discussions on issues such as 'social capital'; 'vibrant communities' and 'culture and diversity' would have overlooked the needs and contributions made by people with disabilities in our community.

Areas to be covered

Today I would like to focus on how Local Government can play a role in strengthening human rights for people with a disability at a local level and how that contributes to a sustainable community.

I want to particularly look at the role of Local Government as:

a direct service provider, and
a development approvals and certification body.

I would also like to take the opportunity to update you on a very important project which will have broad implications for Local Government - that is the development of the Disability Standard on Access to Premises.

Human rights and sustainability

Let me begin by making some observations about human rights and sustainability.

The Sustainable Communities Network based at Edith Cowan University describes a sustainable community as one:

"that has an explicit systemic approach to the integration of ecological, social, cultural and economic features to meet the needs of the present without compromising the needs of the future. … (It is) concerned with what it is that enables individuals or families to participate in the social and economic life of their communities in a sustainable way. It considers how to avoid the economic or social exclusion of some members of the community from the opportunities available to the community or nation at large".

The terms that stand out for me in this description are 'compromising the needs of the future', 'social exclusion' and 'participation'.

When I think about the needs of people with disabilities in our community it seems clear to me that a sustainable community is one that, for example:

Does not compromise the future of our children or ourselves by constructing buildings and services that are accessible only to those who do not have a disability
Does not continue to exclude people with disabilities from contributing to the social capital and diversity of our community
But does support and welcome people with disabilities as participants in the cultural, political and economic development of a community.

In a sense a sustainable community is one which achieves broad principles of human rights and in particular the objectives of the Disability Discrimination Act.

A community that enhances an individual's feelings of attachment, value and connection is likely to be a community that does not discriminate.

To put it simply a community that is not accessible is not sustainable.

It is vital, therefore, that the rights and expectations of people with disabilities are an integral part of any discussion on sustainability.

In preparing for this conference I reviewed a number of web pages and articles on 'sustainable communities' and was disappointed to find few specific references to people with disabilities in the material.

There are a number of Local Government authorities throughout Australia which have adopted valuable 'Sustainable Community Indicators' that have the capacity to address issues relating to people with disabilities such as:

The quality of community spaces
The unemployment level
Improved community participation
The availability of appropriate housing

However, when looking at some of the indicators I could not find evidence that data relevant to the needs of people with disabilities was being collected.

Clearly I may not have been looking in the right place, but it seems to me that the debate on sustainability has not yet sufficiently addressed questions of access, participation and community for people with disabilities.

Perhaps I could give a couple of examples of where Local Government could, and in many cases does, contribute to the human rights of people with disabilities by developing and maintaining sustainable communities.

Sustainable services

Local Government authorities as direct service providers or facilitator of services are in a perfect position to ensure today's services do not exclude or compromise tomorrow's citizens.

Clearly the way you design and deliver your services have important implications for sustainability.

Our understanding of how to make services available to all our citizens is much clearer than when the DDA was enacted 10 years ago. For example:

We know how to ensure services delivered through the Web are accessible to blind people
We know that our telephone information services should be supplemented by a TTY service for Deaf and speech impaired people
We know that public toilets provided at the annual fair must include wheelchair accessible toilets
We know that critical information sent out to citizens must be in plain English
We know that when we develop policies to allow pavements to be used by local businesses those policies must ensure access is maintained along the footpath.

Many Local Government authorities actively plan and commit resources to ensuring their services are accessible by developing a Disability Action Plan.

Developing an Action Plan highlights the breadth of roles which Local Government has in creating accessible and sustainable communities including:

ensuring accessibility of its own services and facilities;
playing a local leadership role in increasing awareness and acceptance of the needs of residents and visitors with disabilities, and
regulating building and development work within the community.

Over seventy Local Government authorities around Australia have prepared Disability Action Plans and provided them to the Human Rights and Equal Opportunity Commission.

In fact there are more Disability Action Plans registered from local government than from all State and Commonwealth government departments and agencies combined.

The numbers of Action Plans registered varies considerable throughout Australia however.

Here in Queensland for example, the Commission's register lists five Disability Action Plans whereas in Victoria, around 60% of local governments currently have an Action Plan.

The Municipal Association of Victoria expects that this figure will reach 85% by the end of the year.

It is clear that many more Local Government authorities are actively involved in action to eliminate discrimination than those who register an Action Plan with the Commission.

I would take this opportunity, however, to encourage those who are taking action to formalise their commitments and register your plan with the Commission.

Sustainable public places and spaces

Local Government authorities play a critical role in supporting and maintaining a sustainable built environment by exercising their building approval and certification functions.

As the population ages all of us are increasingly likely to have one or more significant disabilities - in mobility, hearing or vision.

A built environment that forces people from their communities as age or disability affects them is neither economically nor socially sustainable.

Historically, Local Government has had responsibilities under building and planning laws to ensure that new public developments and renovations provide access for people with disabilities to a level described in the Building Code of Australia.

However, since the DDA came into force the Commission has held a view that Local Government should also do all it can to require access is provided consistent with the DDA.

Many Local Government authorities have responded to this by developing Access Policies or Development Control Plans which describe a level of access which is more consistent with the DDA.

Much of the confusion that currently exists will be resolved when work has been completed on a Disability Standard on Access to Premises which I will talk about later.

When completed Local Government and private certifiers will be much clearer about what developers must do in order to meet their responsibilities under the DDA and I am confident this will have a major impact on our built environment of the future.

There will be some areas, such as pavements, public parks and picnic areas that will not be covered by the Premises Standard at this point in time.

Local Government authorities may be responsible for these parts of the built environment, or responsible for approving them and it is important the principles of sustainability are applied to them.

Housing

One particular area of the built environment I do want to mention here is housing.

In nearly all of the Sustainable Community Indicators I looked at while preparing for this conference the need for appropriate housing for all was highlighted - yet none of them listed the availability of accessible or adaptable housing as one of the sets of data collected to measure progress.

For people with disabilities, particularly for those with mobility disabilities, the availability of what might be called 'Universal Housing' is one of the most important features of a sustainable community.

The Commission recently participated in a Forum on Accessible Housing organised by the Australian Building Codes Board during which a community based organisation, the Australian Network for Universal Housing Design (ANUHD) presented its views on housing needs.

The Chairperson of ANUHD, Margaret Ward stated:

A positive development has been the concept of sustainability aiming for social, economic, and environmental efficacy. While the focus to date has been on environmental efficiency and affordability, the concept of universal housing design is clearly a key element. The capacity for housing to meet the widest variety of human needs and maintain doing so over the lifetime of the building will have a significant influence on this desired "triple bottom line"

I share that view and congratulate those Local Government authorities who have taken the initiative to require that a percentage of new housing developments should be built to Adaptable Housing specifications.

Those initiatives are a good start, but what we need to work towards now is a clearer set of definitions of what makes a house accessible, adaptable or visitable and what we mean by the term Universal Housing.

We also need to discuss the need for consistency throughout Australia so that people know that if their housing needs change over time they can stay within their community rather than be forced to leave.

All those present at the Forum, including representatives from the housing industry, Government and ANUHD agreed to a plan of action involving further research and we look forward to developments on this front.

Just and Vibrant Communities

In concluding this part of my address I would like to quote from my predecessor Elizabeth Hastings:

"A community which includes people with a disability is not some experiment of over-bold social engineers; it is the real community we have now, waiting to be acknowledged. Accessibility is not an experiment we can or should defer, while we procrastinate over whether this or that is really the right time or the right way to try it".

It is quite clear that Local Government authorities are making enormous efforts to ensure our communities are 'just and vibrant' instead of procrastinating.

One way of ensuring progress is maintained, however, might be for Local Governments using Sustainable Community Indicators to ensure the human rights of people with disabilities are more clearly integrated into the measures adopted to assess progress.

Progress towards a DDA Access to Premises Disability Standard

I would like to turn now to providing you with an update on developments in relation to the proposed Disability Standard on Access to Premises (Premises Standard).

The development of a Premises Standard has been a major focus for our work and we continue to commit significant resources to the completion of this project.

Responsibility for the development of the draft Premises Standard rests with the Building Access Policy Committee (BAPC) established by the ABCB.

The BAPC includes representatives from industry, design professionals, government, property owners and the disability sector. The Australian Local Government Association (ALGA) and the Australian Institute of Building Surveyors (AIBS) are also represented on this committee.

In order to minimise duplication of regulation and create consistency between building law and anti-discrimination law the proposed Premises Standard will essentially consist of the access provisions of a revised Building Code of Australia (BCA).

While the definition of 'premises' in the DDA includes more than just buildings the Premises Standard will be limited at this stage to those areas actually covered by the BCA.

Ensuring consistency between the BCA and DDA will provide benefits for all concerned:

Property owners and operators will have the surety of knowing that compliance with the new BCA will also result in compliance with the relevant parts of the DDA. If a building complies with the new BCA, and by definition the Premises Standard, complaints of discrimination under the DDA will not be successful.
People with disabilities will have much better access, increased opportunities to participate in all aspects of the community and the surety of knowing that access is consistent throughout Australia.
The service industry and small business community will have opportunities to access a broader market and minimise the likelihood of discrimination complaints
Local Governments and those responsible for approvals and certification of buildings will be much clearer about what is required to fulfil responsibilities under both building and anti-discrimination law.

When the new BCA and Premises Standard are completed all new buildings and those parts of existing buildings undergoing renovation or change of use, and requiring development or building approval, will have to comply with the new access requirements.

In some circumstances, however, full compliance for existing buildings undergoing renovation or change of use may not be required if technical or cost issues are prohibitive at the time.

In order to allow for this the Premises Standard will retain the provision for unjustifiable hardship defences in relation to existing buildings.

The BAPC has been developing an Administrative Protocol to be adopted by all States and Territories to try and address these questions of possible unjustifiable hardship.

More information on the Administrative Protocol and the proposed Access Panels is available on the Commission's website.

Work on drafting the performance and technical changes to the BCA, so that it can be referenced as part of the Premises Standard, is nearly complete.

The next phase is the development of a Regulatory Impact Statement (RIS) on the proposed changes.

The RIS will look at the benefits and costs associated with the proposed changes and, like the proposals themselves, will be available for a period of public comment before finalisation.

Consulting on the proposals

You may remember in early 2002 members of the BAPC participated in information forums organised by the ABCB in every State and Territory aimed at clarifying what work was taking place and why.

These meetings were very well attended by people with disabilities, regulators, developers, designers and those responsible for certification.

The meetings built on the information provided in the ABCB's Directions Report on a Disability Standard on Access to Premises which was released in December 2001.

A CD- ROM of one of the meetings and all the material produced for it was made and distributed to every Local Government in Australia and others on request.

The development of proposed changes to the BCA and a Premises Standard has been a complex and difficult job involving consultation and negotiation between representatives of people with disabilities, industry, government and property owners.

It is expected that the draft changes to the BCA and the Premises Standard will be completed and released before the end of 2003.

The BAPC will begin discussions with representative groups from government, industry and the disability sector as soon as the material is finalised.

A broad three month period of public comment is due to commence after the holiday period in February 2004.

Inevitably when the draft detailed material is released it will be the first opportunity for many individuals and organisations to participate in the process of developing the standard.

It is important therefore for organisations with a particular interest in this project, such as Local Government, should be ready to contribute to the public comment period as far as their resources allow.

I will be discussing this issue further in the workshop tomorrow.

The role of Local Government and Private Building Surveyors

There are a number of issues I believe that Local Governments and others involved in the approval and certification processes need to focus on over the next few years.

Contributing to the Premises Standard

As mentioned earlier the timetable for public comment on the draft new BCA and Premises Standard is for release in February 2004.

Now is the time to thoroughly inform yourselves and colleagues of the purpose of the proposed changes and the timetable for comment on the draft. It is also the right time to make plans for how you intend to contribute: directly or through appropriate associations or community organisations.

Preparing for change

When the new BCA and Premises Standard are adopted there will be a renewed demand for training and education throughout the approvals, design, constructions and certification industries.

Approval bodies and certifiers will need to be ready to apply the new requirements, interpret its provisions and explain them to applicants.

Minimising liability

The new BCA access provisions and Premises Standard will provide a much clearer picture of what needs to be done to ensure compliance with the requirements of both the BCA and the DDA. While this benefits everyone concerned it is also true to say that such clarity will make it more obvious when a development is not compliant.

Approval bodies and certifiers who fail to ensure all the BCA requirements are met in relation to new buildings will be exposed to complaints under s 122 of the DDA as someone who 'aids or permits' discrimination. Clearly professional organisations and individual operators need to be rigorous in their work, especially in areas of access they may not be familiar with.

Local Government and Building Surveyors have a vital role to play in ensuring the intent of the BCA and Premises Standard are met in delivering accessible communities and, as a primary gatekeeper, we look to them to ensure everyone can get through the gate.

Thank you and I wish you well in the rest of your conference. May your discussions make a major difference to the development of just and vibrant communities in Australia.