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Submission — 10 December 2010Submission to the Scrutiny of Legislation Committee, on Review of Part 8 of the Statutory Instruments Act: Forms Authorised by Legislation.Use the links below to access sections of the submission, or
1. IntroductionThe Scrutiny of Legislation Committee of the Queensland Parliament is conducting a consultation examining the operation of Part 8 of the Statutory Instruments Act 1992. Part 8 is comprised of section 58, which sets out requirements for forms that are to be approved or made available by an entity under an Act or subordinate legislation. Part 8 is set out in the Schedule to this submission. This submission concerns accessibility of forms required by Queensland public entities. About the Anti-Discrimination Commission QueenslandThe Anti-Discrimination Commission Queensland (ADCQ) is an independent statutory authority established under the Queensland Anti-Discrimination Act 1991 (the Queensland AD Act). The scheme of the Queensland AD Act is to prohibit discrimination, both direct and indirect, on certain grounds in certain areas of activity, unless an exemption under the Act applies, and to provide a mechanism for resolving contraventions of the Act. Other objectionable conduct is also prohibited, including sexual harassment, victimisation, vilification and unlawful requests for information. There are 16 grounds on which discrimination is unlawful; relevantly, these include race, impairment, and association or relationship with a person with any of the attributes. Discrimination is prohibited in the areas of work, education, the provision of goods and services, accommodation, club membership and affairs, the administrations of State laws and programs, superannuation, insurance, and local government. The functions of the ADCQ include promoting an understanding, acceptance and public discussion of human rights in Queensland, as well as inquiring into and where possible effecting conciliation of complaints of contraventions of the Queensland AD Act. Complaints that are not resolved through conciliation can be referred to the Queensland Civil and Administrative Tribunal for hearing and determination. The ADCQ has established and interacts with a number of advisory committees in order to keep in close contact with immediate issues affecting key stakeholder groups such as the disability community. 
2. Accessibility2.1 Potential discriminationAgencies that require the completion of forms, do so in either or both, the provision of goods and/or services, and/or the administration of State laws or programs. The provision of goods or services and the administration of State laws or programs are areas of activity in which discrimination is prohibited under the Queensland AD Act. [1] Where prescribed forms are not provided in an accessible format, there is potential indirect discrimination: that is, the imposition of a term or requirement with which a person with an attribute cannot comply, and that may not reasonable. In Maguire v Sydney Organising Committee for the Olympic Games (No. 2) [2000] HREOCA 31 (24 August 2000) the complainant, who is blind, succeeded in a complaint against the Sydney Organising Committee for the Olympic Games because its website was not accessible to him. A complaint about an inaccessible website (or elements of it) could also be made under the Queensland AD Act. Equality before the law is a fundamental concept of our legal system. It is also an obligation under the various international covenants to which Australia is a party to ensure equality before the law and freedom from discrimination. [2] Equality before the law includes equality of access to the legal system and the administration of government. Achieving equality often involves providing extra services or assistance to overcome or address impediments such as impairments or language barriers. It is thus incumbent on service providers and administrators of State laws and programs to provide information, including prescribed forms, in a manner that is accessible to people with impairments or language barriers.
2.2. Assistive technologiesMany prescribed forms are made available to the public on agency websites. People with impairments such as visual (including blindness) or dexterity and mobility (which restrict the use of a mouse or a keyboard) often rely on assistive technologies to improve interaction with a computer. Assistive technologies include:
2.3. Problems with electronic formsAlthough the provision of forms on websites increases the availability for much of the public, it does not necessarily assist accessibility for people with impairments. Many agencies provide electronic forms on their websites only in the Portable Document Format (PDF). See for example: QCAT forms (Queensland Civil and Administrative Tribunal) [3], forms for Property, titles and valuations (Department of Environment and Resource Management) [4], Body Corporate and Community Management forms (Department of Justice and Attorney-General) [5]. The Australian Government recently released its report on accessibility of the Portable Document Format for people with disability [6]. Vision Australia was commissioned by the Australian Government to undertake a study into the way PDF files are accessed by commonly used assistive technologies and the implications of using PDF by people with a disability. The Report states [7]: Overall, the Study found that there is insufficient evidence to establish that the development of the Portable Document Format and improvements in assistive technologies have advanced enough for PDF files to be considered accessible for people with a disability, particularly for those who are blind or have low visions. In October 2010 the Australian Human Rights Commission published World Wide Web Access: Disability Discrimination Act Advisory Notes Version 4.0 [8]. Although recent versions of the PDF specification allow the inclusion of features to improve access for people with a disability, the Advisory Notes state [9]: The Commission's advice, current October 2010, is therefore that PDF cannot be regarded as a sufficiently accessible format to provide a user experience for a person with a disability that is equivalent to that available to a person without a disability, and which is also equivalent to that obtained from using the document marked up in traditional HTML. The Advisory Notes warn (in the following paragraph): Accordingly, organisations that publish documents only in PDF risk complaint under the DDA [Disability Discrimination Act 1992] unless they make the content available in at least one additional format and in a manner that incorporates principles of accessible document design. Additional formats should be published simultaneously with the PDF version, and at least one such format should be downloadable as a single document if the PDF version is available as a single download.
2.4 Conventions, guidelines and standardsAustralia is a party to the Convention on the Rights of Persons with Disabilities (CRPD), which, relevantly, requires parties to:
The World Wide Web Consortium released version 2.0 of the Web Content Accessibility Guideline (WCAG 2.0) in December 2008. The Online and Communication Council, representing the Commonwealth and all State and Territory governments, has endorsed WCAG 2.0, requiring all Federal, State and Territory websites to conform to WCAG 2.0 single A level by the end of 2012. The Queensland Government Chief Information Office administers Information Standard 26 Internet [12] which outlines the minimum requirements for Queensland Government agencies in the creation, implementation, and management of agency internet sites for the delivery of information and services. It requires the implementation of all Mandatory Principles must be complete by December 2010. Mandatory Principle 1 requires: Agency internet sites must provide for maximum accessibility and usability for all groups of the community and maintain a consistent and customer focused view of Queensland Government. At a minimum agencies must:
2.5 What Part 8 says about accessibilityThe only provision in part 8 of the Statutory Instruments Act 1992 relating to accessibility is the requirement for copies of the form to be available, for purchase or free of charge, at the places stated in the Gazette notice, on the same day as the Gazette notice, or as soon as practicable.
3. SummaryAlthough anti-discrimination legislation and the international covenants require forms to be made accessible, including for people with impairments and language barriers, this is not happening. In order to achieve better accessibility of forms, the ADCQ recommends that the Statutory Instruments Act 1991 prescribe mandatory accessibility, such as: 3.1 Information (in a variety of languages) on how and where to seek assistance in completing forms for those with language barriers. 3.2 All forms to be made available on the internet. 3.3 Adopting the recommendations of the Australian Human Rights Commission that:
4. Schedule - Statutory Instruments Act 1992Part 8 Forms58 Forms – notification and availability (1) This section applies if under an Act or subordinate legislation (the authorising law) forms are to be approved or made available by an entity. (2) A form under the authorising law must have a heading stating the name of the authorising law and briefly indicating the form’s purpose. (3) All forms under the authorising law must be numbered using a system that gives each form a unique number.
(4) All versions of a form under the authorising law must be numbered consecutively using a system that gives each version of the form a unique number. (5) The approval or availability under the authorising law of a form, or a new version of a form, must be notified in the gazette. (6) Subsection (5) may be complied with—
(7) On the day the approval or availability of the form is notifiedor as soon as practicable after the day, copies of the form must be available (for purchase or free of charge) at the place, or each of the places, stated in the notice. (8) Failure to comply with this section does not affect a form’s validity. (9) This section does not apply to a form declared by regulation under this Act to be a form to which this section does not apply.
5. Footnotes1. For the goods and services area, see sections 45 to 51 of the Anti-Discrimination Act 1991; for the administration of State laws and programs, see section 101 of the Anti-Discrimination Act 1991. |
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