In its era, Australia’s Disability Discrimination Act (DDA) 1992 was groundbreaking. Current times, over three decades later, and those ahead, necessitate its change. The Review of the Disability Discrimination Act being undertaken by the Australian Government Attorney General’s Department is, therefore, timely.
Australia’s DDA legislation also includes a suite of Disability Standards. These are the Disability Standards for Accessible Public Transport 2002 (Transport Standards), the Disability Standards for Education 2005 (Education Standards), and the Disability (Access to Premises – Buildings) Standards 2010 (Premises Standards), all of which as well as DDA itself, directly reference the built environment.
Visionary Design Development Pty Ltd is a transdisciplinary consultancy operating at the intersection of disability and built environment. The recent doctoral studies of Mary Ann Jackson, an Architect, Urban Planner, and Access Consultant and Visionary Design Development’s Director, focused on enabling conditions that create direct, productive interaction between people with disability and built environment practitioners, particularly those within the architecture profession. It is in this capacity that we welcome the opportunity to make a submission to this very necessary Review endeavour.
Our Submission is brief and presented under four headings: (Existing) Regulatory framework around DDA, Accommodation, Access to Services and Public Places, and Positive duty.
(Existing) Regulatory framework around DDA
We acknowledge that legislation and policy, i.e., the instruments of regulatory frameworks, invariably develop asynchronously. This frequently results in the production of subordinate documents, available separately. In our professional experience and according to research findings, members of the architecture profession, rather than being familiar with the full content of the regulatory framework around the DDA, tend to consider only the Premises Standards as relevant to their work. One reason for this is that it is written in similar language to Australia’s National Construction Code (NCC). However, because the NCC is, ostensibly, harmonised with Premises Standards, the architecture profession (as a whole) rarely properly considers the full content of the Premises Standards nor understands its ramifications. The differing review methodologies, timescales, and governance of the different instruments foments further misunderstandings and implementation recalcitrance, the latter evidenced by the protracted endeavour to include ‘liveable housing’ requirements in the NCC.
RECOMMENDATION 1
Insert all current and future Disability Standards, particularly the Premises Standards, directly into the DDA.
RECOMMENDATION 2
Remove all duplicated Premises Standards content from the NCC, thereby forcing built environment practitioners to work directly with the full DDA content.
Accommodation
We know from the Disability Royal Commission that people with disability have difficulty finding accessible private and social housing. People with disability and disability advocates are championing Individualised Living Options (ILO) rather than the ‘group homes’ of the past. However, there are very few direct regulatory requirements for accessible ‘private and/or social’ housing that is detached, semi-attached, or town/terrace housing, i.e., the types of dwellings conventionally classified as Class 1a under the NCC. Additionally, various states and the federal government are dragging their heels on including liveable, accessible housing requirements within the NCC. The lack of regulatory requirements for accessible housing also severely constrains people with disability’s ability to visit friends and family.
RECOMMENDATION 3
Extend the reach of the Premises Standards to include all forms of housing.
Access to services and public places
Endeavouring to access services and public places invariably results in encountering physical and/or digital spaces that are not specifically covered within the current content of the Premises Standards. Further, aligned with privatisation ideologies, many services previously provided by the public sector in public buildings have been outsourced. These are now often located in ‘private’ places, and digitised. Therefore, ‘services’ and ‘public places’ in the modern, technological era are very different to those of the era in which the DDA was first devised. Moreover, the overlap between ‘the built environment’ and ‘the digital environment’ is becoming increasingly entangled.
RECOMMENDATION 4
Create a new, comprehensive Disability Standard that covers both built and technological infrastructure: Disability Standards for Accessible Public Places.
Positive duty
The DDA, one of Australia’s four, primary, federal-level anti-discrimination Acts, utilises a complaints-based process to address discrimination. Currently, the process of complaining is very onerous on individuals with disability and, particularly in respect to built environment accessibility complaints, very convoluted. Australia’s DDA was enacted well prior the emergence of the human rights model of disability and the United Nations Convention on the Rights of Persons with Disability (UNCRPD), both of which are underpinned by concepts of rights-holder rights and duty-bearer obligations. ‘Positive duty’ was introduced into Australia’s Sex Discrimination Act in December 2022. Positive duty necessitates proactive, meaningful action up-front rather than reliance on individualised, after-the-fact responses.
Built environment practitioners must be made aware of their duty-bearer obligations. Therefore, positive duty obligations must also apply to built environment education systems and to professional (architect) registration systems particularly in respect of required ‘competencies’, the latter necessitating detailed attention be paid to Australia’s system(s) of architecture course accreditation.
Further, positive duty requirements should stipulate that it is discriminatory for building owners and real estate letting agents to lease inaccessible buildings.
RECOMMENDATION 5
Include the principle of ‘positive duty’ in the revamped DDA.
RECOMMENDATION 6
Stipulate arenas within which positive duty is to be proactively pursued and minimum mechanisms for achieving same.