Improving Access for All

Improving access for all

Submission to the Senate Community Affairs Committee, Inquiry into the delivery of outcomes under the National Disability Strategy 2010 – 2020 to build inclusive and accessible communities

April 2017

Level 5, 175 Liverpool Street, Sydney NSW 2000 Phone: 61 2 8898 6500 • Fax: 61 2 8898 6555 • www.piac.asn.au

Table of Contents 1. Introduction ...... 2 1.1 The Public Interest Advocacy Centre ...... 2 2. Summary of recommendations ...... 3 3. Access to transport ...... 5 3.1 Access to public transport ...... 6 3.2 Transport Standards and reporting requirements ...... 8 4. Access to communications and information systems ...... 10 4.1 Accessing online services, facilities and places ...... 10 4.2 Broadcast television and audio description ...... 15 4.3 Video on demand services ...... 17 4.4 Banking and touchscreen EFTPOS payment devices ...... 22 5. Any other related matters ...... 24 5.1 Elections ...... 24 5.2 Jurors ...... 32 6. Conclusion ...... 34

1. Introduction The Public Interest Advocacy Centre (PIAC) welcomes the opportunity to provide a submission to the Senate Community Affairs Committee in its inquiry into the delivery of outcomes under the National Disability Strategy 2010 – 2020 (the Strategy) to build inclusive and accessible communities.

Drawing from our casework, we address the following terms of reference:

(a) The planning, design, management and regulation of: (ii) Transport services and infrastructure – with a focus on public transport; (iii) Communication and information systems – with reference to accessibility and the internet, broadcast television, video on demand services and banking; (b) Potential barriers to progress or innovation and how these might be addressed. (d) Any other related matters – including participation in political and public life, such as voting in elections and participating in juries; and

We provide specific recommendations as to how accessibility could be improved across these areas.

1.1 The Public Interest Advocacy Centre PIAC is an independent, non-profit law and policy organisation that works for a fair, just and democratic society. We empower citizens, consumers and communities by taking strategic action on public interest issues, including through test-cases, policy development and working closely with stakeholders to achieve practical outcomes.

PIAC has been a leading advocate of the rights of people with disability for many years. PIAC regularly represents claimants in disability discrimination complaints to the Australian Human Rights Commission, and in strategic litigation.

The issues raised within this submission are drawn from our casework experience and our work with disability organisations. Many of the issues raised in this submission have been addressed in previous submissions by PIAC to various inquiries.1

1 For example, see PIAC, Opening the door for disability access: submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs, Inquiry into the draft Disability (Access to Premises – Buildings) Standards (13 March 2009), available at https://www.piac.asn.au/wp-content/uploads/09.03.13- PIAC_sub_re_premises_std.pdf; PIAC, Get on board! 2012 Review of the Disability Standards for Accessible Public Transport (31 May 2013) available at https://www.piac.asn.au/2013/06/19/get-on-board/; PIAC, Equality before the law for people with disability, Submission in response to Australian Law Reform Commission’s Issues Paper: Equality, Capacity and Disability in Commonwealth Laws (20 January 2014) available at https://www.piac.asn.au/wp-content/uploads/14.01.20_equality_before_the_law_for_people_with_disability_- _submission_to_alrc_issues_paper.pdf; PIAC, Submission to the Australian Communications Media Authority in its statutory review of Part 9D of the Broadcasting Services Act 1992 (Cth) (21 July 2016) available at https://www.piac.asn.au/2016/07/26/review-of-part-9d-of-the-broadcasting-services-act-1992/.

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2. Summary of recommendations

Recommendation 1 – Amend the Transport Standards to explicitly provide for vision impairment The federal government should consider amending the Disability Standards for Accessible Public Transport 2002 to incorporate standards to increase accessibility for people who are blind or have low vision, such as audible announcements on trains and buses, and audible functions at bus stops, including a proposed timeline for compliance.

Recommendation 2 – Amend the Transport Standards to provide for procurement The federal government should consider amending the Disability Standards for Accessible Public Transport 2002 to require that accessibility and compliance with the Transport Standards must be a primary consideration in all procurement processes.

Recommendation 3 – Ride sharing services to be incorporated into the Transport Standards The Transport Standards should be amended so that the definition of a ‘conveyance’ in Division 1.2, Standard 1.12, captures ride sharing services and services such as Uber.

Recommendation 4 – Require publishing of operator and provider data on compliance The Transport Standards should be amended to require public transport operators and providers to make publicly available data that sets out the extent to which they comply with the Transport Standards. Such data should be provided in accessible formats, and should be accompanied by plain English explanations prepared by the transport operator or provider.

Recommendation 5 – Develop a mandatory reporting regime for public transport The federal government should consider the appropriateness of working with the states and territories, and the disability sector, to develop a mandatory reporting regime in relation to access to public transport. It may be appropriate for this to be reflected either within the Transport Standards, legislative amendment to the DDA or alternate legislation.

Recommendation 6 – review of captioning and audio description on electronic media The federal government should review captioning and audio description on electronic media, as referenced in the 2010 Media Access Review Final Report.

Recommendation 7 – Consider most appropriate mechanism for WCAG 2.0 enforceability The federal government should consider the most appropriate mechanism by which to make compliance with WCAG 2.0 enforceable in Australia, including, but not limited to consideration of: • New legislation; • Legislative amendment to the DDA; • The Minister developing a disability standard regarding web accessibility under section 31 of the Disability Discrimination Act 1992 (Cth).

Recommendation 8 – Community education regarding web accessibility standards Community education and advertising, including industry-specific advertising, should be provided and adequately funded to inform Australians regarding web accessibility standards.

Public Interest Advocacy Centre • Improving access for all • 3 Recommendation 9 – Legislate for minimum requirements of audio description on broadcast television The federal government amend Part 9D of the Broadcasting Services Act 1992 (Cth) to include minimum requirements for the provision of audio description on broadcast television, starting with a base minimum of 14 hours of audio described content, and legislate for gradual increments on an annual basis.

Recommendation 10 – accessible information and accessible programming All catch-up TV services should be required to provide accessible information regarding accessible programs on their service, including clearly labelled programs by accessibility type (such as closed captioning, audio description).

Recommendation 11 – Legislate for video on demand programs previously broadcast on TV The federal government should legislate to provide that where a program has been previously captioned on broadcast television, it should be captioned when provided on a catch-up TV service.

Recommendation 12 – legislate for accessibility on video on demand services The federal government should legislate to create minimum mandatory standards surrounding web accessibility, and minimum mandatory standards surrounding video on demand services (including catch-up TV services), including captioning, audio description requirements and accessibility.

Recommendation 13 – work with industry to advance audio description on video on demand The federal government should develop a plan with broadcasters and industry to advance the introduction of audio description on video on demand services.

Recommendation 14 – Require collection and publication of data regarding accessibility The federal government should require regular collection and publication of data regarding accessibility in video on demand services, including the provision of captioning, audio description and web accessibility, and empower the Australian Communications Media Authority, or a similar body, to monitor and publish this data.

Recommendation 15 – Develop disability standards regarding accessibility and banking The federal government should develop a new standard under section 13 of the DDA in relation to the accessibility of banking services.

Recommendation 16 – Legislate to require federal voting procedures to be accessible The Australian government should implement the Productivity Commission’s recommendation that the Commonwealth Electoral Act 1918 (Cth) (CEA) should be amended to ensure that federal voting procedures are accessible (physically and in provision of information and independent assistance), and the Australian Government should encourage State and Territory governments to follow suit. In particular, the CEA should be amended to require amended to require that polling places meet accessibility standards, similar to legislation in the United States and Canada.

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Recommendation 17 – Formulate Disability Standards in relation to elections The Australian government should formulate Disability Standards in relation to the conduct and accessibility of federal, State and Territory elections under Part 2, Division 2A of the Disability Discrimination Act 1992 (Cth).

Recommendation 18 – Implement internet voting for the next federal election The federal government should engage with the Australian Electoral Commission, the disability sector and other relevant stakeholders to introduce internet voting options similar to the iVote system at the next federal election.

Recommendation 19 – Work with stakeholders to ensure accessible voting materials The federal government should work with the Australian Electoral Commission, political parties the disability sector to ensure that information in relation to elections is to voters who are blind or have low vision at the next federal election.

Recommendation 20 – AEC to adopt accessibility training and procedures The AEC should increase accessibility training for electoral staff and introduce a new procedure for removing barriers and obstacles to accessibility on election day and during the pre-polling period.

Recommendation 21 – AEC to improve and its Disability Inclusion Strategy The AEC should strengthen its Disability Inclusion Strategy by adopting detailed, measurable targets for increasing accessibility in line with the recommendations of the ANAO’s second audit report. The AEC should make the Strategy publically available on its website and increase the transparency of its reporting.

Recommendation 22 – Repeal ‘unsound mind’ provisions in the Commonwealth Electoral Act The federal government should repeal s93(8)(a) and s118(4) of the Commonwealth Electoral Act 1918 (Cth), as recommended by the Australian Law Reform Commission.

Recommendation 23 – Work with the states and territories to harmonise jury legislation The Australian government should work with the states and territories to harmonise jury legislation in a manner that relevantly implements the recommendations of the NSW Law Reform Commission’s 2006 Report and the Australian Law Reform Commission’s 2014 Report.

3. Access to transport Article 9 of the Convention on the Rights of Persons with Disabilities (CRPD) provides that State Parties shall take appropriate measures to ensure persons with disabilities access, on an equal basis to others, to the physical environment and to transportation, both in urban and rural areas. These measures, including the identification and elimination of obstacles and barriers to accessibility, shall apply to building, roads, transportation, other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces.

Public Interest Advocacy Centre • Improving access for all • 5 3.1 Access to public transport The Disability Standards for Accessible Public Transport 20022 (Transport Standards) have been important in increasing access to public transport for wheelchair users and people with a mobility disability.

However, PIAC has identified the need for improved accessibility for people who are blind or have low vision. In particular, our casework has highlighted that people who are blind or have low vision do not always have the same level of access to information as other passengers.

Part 27 of the Transport Standards provides for requirements regarding information. Standard 27.1 provides for access to information about transport services, requiring that

General information about transport services must be accessible to all passengers.

Standard 27.4 provides for access to information about location, requiring that

All passengers must be given the same level of access to information on their whereabouts during a public transport journey.

The 2012 Review of the Transport Standards noted that

The Transport Standards compliance schedule called for 100 per cent compliance on information provision by 2007. However … the accurate measurement of compliance is problematic…

People with disability, especially those who are hearing or vision-impaired also complained about poor, inconsistent and untimely provision of public transport information which is impacting on their ability to travel. The review also heard from design consultants who advised that the relevant sections on information provision in the Transport Standards need to be reviewed and updated.3

3.1.1 Trains When trains do not provide audible announcements, this prevents passengers who are blind or have low vision from traveling safely and independently. Those passengers are denied important information such as the next station on their journey, and information about hazards.

The importance of audible announcements on trains was acknowledged in the case of Innes v Rail Corporation of NSW (No. 2) [2013] FMCA 36, in which PIAC represented Mr Graeme Innes. This case concerned the failure of Rail Corp to provide clear, audible ‘new stop’ announcements.

The Court found that this failure amounted to disability discrimination. Specifically, Rail Corp breached Disability Standard 27.4: ‘all passengers must be given the same level of access to information on their whereabouts during a public transport journey’. This breach was found to be ‘by persistent human failing’.4 The Court further found that Rail Corp’s action amounted to indirect discrimination and that Rail Corp had failed to make reasonable adjustments which enabled Mr Innes to know his whereabouts on the rail network.

2 Available at https://www.legislation.gov.au/Details/F2011C00213. 3 Commonwealth of Australia, Review of the Disability Standards for Accessible Transport 2002, Final Report (July 2015) at 72, available at https://infrastructure.gov.au/transport/disabilities/review/files/Review_of_Disability_Standards_for_Accessible_P ublic_Transport.pdf (accessed 23 February 2017). 4 Innes v Rail Corporation of NSW (No. 2) [2013] FMCA 36, [156].

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The importance of audible announcements regarding hazards, such as platform length, was also demonstrated by the case of an athlete injured at a railway station in NSW’s Blue Mountains. In April 2014, a blind Paralympian, Mr Bart Bunting, was injured when getting off the train at Leura railway station. No audible announcement was provided regarding the shorter length of the platform, and the train doors automatically opened without a platform to step onto. Subsequently, Mr Bunting exited the train with his guide dog, ‘stepping out into thin air’5 and fell heavily onto the railway tracks. PIAC represented Mr Bunting and secured a settlement for him.

Sydney Trains now more frequently provides audible announcements to passengers on its trains. Sydney Trains has committed to improving communication with people who are blind or have low vision about changes and developments on the rail network. Sydney Trains also receive monthly reports by independent verifiers of the quality of audible announcements on the Sydney Trains network.

3.1.2 Buses While audible announcements have been introduced on trains following the Innes case, travelers who are blind or have low vision face similar challenges when seeking to travel independently by bus.

For people who are blind or have low vision, audible announcements while on-board buses, and audible information at bus stops, is crucial. This is because all other important cues as to the bus location, bus number and timetable, are visual. People who are blind or have low vision are not able to rely on other cues such as signage, visual information or landmarks to obtain vital information about their journey including their whereabouts, delays and connecting bus services.

Some bus types already have the capacity for announcements and hearing loops. For example, in Sydney, audible and visual ‘next stop’ announcements are available on Transitway and Metrobus services and hearing loops have been installed.6 However, PIAC has received information that of the approximately 2000 buses in the Sydney fleet, only around 150 have the capacity for audible announcements. PIAC has also received complaints from blind individuals and peak organisations that even when buses have the capacity to make audible announcements, these are frequently turned off by individual drivers.

It has also been reported to PIAC by a peak disability organisation that since the procurement of the Metrobus service, at least one new fleet of new buses has been bought by Transport for NSW without the capacity to make audible announcements.

People who are blind also face difficulties in identifying flagging down the right bus. The 2012 Review of the Transport Standards noted that people who are blind or have low vision had experienced problems in ‘flagging down buses in motion’.7

5 Matthew Bevan, ‘Vision impaired athlete falls onto tracks at Leura station’, ABC 702, 15 April 2014, available at http://www.abc.net.au/local/audio/2014/04/15/3985823.htm (accessed 21 February 2017). 6 NSW Transport, Private correspondence to PIAC, 14 February 2017. 7 Commonwealth of Australia, Review of the Disability Standards for Accessible Transport 2002, Final Report (July 2015) at 52, available at https://infrastructure.gov.au/transport/disabilities/review/files/Review_of_Disability_Standards_for_Accessible_P ublic_Transport.pdf (accessed 23 February 2017).

Public Interest Advocacy Centre • Improving access for all • 7 have low vision, such as audible announcements on trains and buses, and audible functions at bus stops, including a proposed timeline for compliance.

3.1.3 Taxis and Ride Sharing Services PIAC has received multiple complaints from individuals with disabilities that there continue to be ongoing problems for people with disability in accessing taxis and ride sharing services, including Uber.

PIAC has received multiple complaints from clients who are blind, use a guide dog and have been refused access to an Uber8 or a taxi. For taxis, this is in breach of Standard 28.3(3) of the Transport Standards which provides that

If a passenger is travelling with a service animal, the animal must be able to accompany the passenger at all times and to travel without encroaching onto an access path.

However, Uber and other ride sharing services are not explicitly dealt with in the Transport Standards. This is a particular problem, given the growing reach of services such as Uber.

There are also ongoing issues for wheelchair users in accessing Uber, as there are a lack of accessible Uber cars.

PIAC has also received multiple complaints from wheelchair users who have requested a wheelchair accessible taxi, only for the taxi never to arrives, or refuse to take them for short fares.

3.2 Transport Standards and reporting requirements

In 2017, the Transport Standards will be subject to review. At present, the Standards do not require public transport authorities to report their progress towards compliance. There is also no national reporting framework for transport operators and providers.

PIAC has previously submitted that

transport operators and providers should be required to make data regarding the extent to which they comply with the Transport Standards publically available.

Reporting on compliance is essential not only for the purpose of monitoring government compliance, but also because providing people with disabilities with clear information on the extent to which a provider or operator complies with the Transport Standards would have a

8 For example, see ABC News, ‘Uber apologises over discrimination against blind customer, human rights activist Graeme Innes’, 15 April 2016, available at http://www.abc.net.au/news/2016-04-15/uber-driver-refuses-blind- customer-ex-commissioner-graeme-innes/7328984 (accessed 28 February 2017).

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very practical impact on the day-to-day travel and use of public transport services by people with disability.9

While the DDA provides for the creation of disability action plans,10 which may be voluntarily provided to the Australian Human Rights Commission for publication on its website, this does not go far enough, as: • there is no requirement that plans must be submitted; • there any requirement for plans to be consistent with the compliance targets set out in the Transport Standards; • there is no independent regulator to monitor whether plans have been implemented.11

Despite the fact that under s32 of the DDA it is unlawful to contravene a disability standard, there is no monitoring or reporting mechanism under the DDA to assess compliance with these standards.

The 2012 Review of the Transport Standards identified that, while a key issue was to determine to what extent the Standards had reduced disability discrimination, this was difficult without an appropriate evidence base:

The review found that due to the lack of a national reporting framework, meaningful quantitative analysis of accessibility between 2007 and 2012 could not be conducted. Therefore the review is limited to data that has been provided in written submissions, at public consultation sessions, and in response to enquiries to governments.12

By way of contrast, in the field of accessibility in broadcast television, there are legislative requirements regarding record-keeping and annual compliance reports.

Part 9D of the Broadcasting Services Act 1992 (Cth) (BSA) stipulates the amount of captioning required for broadcast television programs. Relevant broadcasters and licensees are required to keep written and audio-visual records that are sufficient to ascertain compliance with certain provisions of the BSA.13 Annual compliance reports addressing compliance with the captioning requirements must be provided by broadcast television licensees to the Australian Communications Media Authority.14

Of all the Standards created under the DDA,15 the Transport Standards have been in operation for the longest period of time.

It would be appropriate to consider introducing a reporting mechanisms whereby the DDA or the Standards themselves mandate a level of compliance reporting against specific provisions within the Standards. PIAC has previously suggested that

9 See PIAC, Get On Board! Submission to the 2012 Review of the Disability Standards for Accessible Public Transport (2013) at 16, available at https://www.piac.asn.au/2013/06/19/get-on-board/ (accessed 21 February 2017). 10 See Disability Discrimination Act 1992 (Cth), Part 3. 11 See PIAC, Get On Board! Submission to the 2012 Review of the Disability Standards for Accessible Public Transport (2013) at 17, available at https://www.piac.asn.au/2013/06/19/get-on-board/ (accessed 21 February 2017). 12 Commonwealth of Australia, Review of the Disability Standards for Accessible Transport 2002, Final Report (July 2015) at 73, available at https://infrastructure.gov.au/transport/disabilities/review/files/Review_of_Disability_Standards_for_Accessible_P ublic_Transport.pdf (accessed 23 February 2017). 13 Broadcasting Services Act 1992 (Cth), s130ZZD. 14 See Broadcasting Services Act 1992 (Cth), s130ZZC. 15 The Disability Standards for Accessible Public Transport 2002, the Disability Standards for Education 2005 and the Disability (Access to Premises – Buildings) Standards 2010.

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there should be a national framework for the consistent and regular reporting of Action Plans by public transport operators and providers. An essential part of this framework would be to provide an appropriate agency with the funding to allow that agency to monitor levels of compliance with the Transport Standards, and to develop a body of data on the accessibility of public transport, consistent with the Transport Standards.16

4. Access to communications and information systems Article 9 of CRPD requires State Parties to take appropriate measures to ensure persons with disabilities access information and communications technologies on an equal basis with others.

In PIAC’s casework, we have identified that people with disability face challenges in accessing communications and information systems. This is especially the case for people who are blind or have low vision. This impacts across a range of technologies, including the internet, broadcast television, video-on-demand services and banking.

4.1 Accessing online services, facilities and places Exclusion from access to services, facilities and places causes social isolation. The 2009 Shut Out report identified the impact of lack of access to the built environment and information for people with disability:

For many people with disabilities the built environment acts as a powerful barrier to their full inclusion in the community. It affects their day-to-day functioning in ways few others can appreciate. The inability of people with disabilities to access the facilities that everyone else in the community takes for granted—cafes, public buildings, swimming pools, libraries, sporting facilities and movie theatres—limits their independence and compromises their quality of life.17

With the growth of online services, facilities, places and communities, the problems faced by people with disability in accessing physical premises have now also shifted to the online world and to new technologies.

16 See PIAC, Get On Board! Submission to the 2012 Review of the Disability Standards for Accessible Public Transport (2013) at 17, available at https://www.piac.asn.au/2013/06/19/get-on-board/ (accessed 21 February 2017). 17 Commonwealth of Australia, Shut Out: The Experience of People with Disabilities and their Families in Australia, National Disability Strategy Consultation Report Prepared by the National People with Disabilities and Carer Council (2009) at 42, available at https://www.dss.gov.au/sites/default/files/documents/05_2012/nds_report.pdf (accessed 28 February 2017).

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People with vision and hearing disabilities are now increasingly blocked from accessing goods, services and facilities online. This will only grow as the Australian population ages, and as more retailers and service providers develop online services or offerings.

In Australia, it is now a well-accepted principle that physical entry to premises must be accessible. The same must apply to online spaces: accessible navigation, accessible webpages and products that pave the way so that all Australians can access relevant services.

The problems of online accessibility may involve:

• a webpage or the online pathway to access a product or service may not be accessible by screen-reader technology and therefore will be impossible to navigate; • information, a product, facility or service online may not be provided in an accessible format; • the online service may not provide options that are required for people with disability, such as options for people with disability regarding ticketing.

The National Disability Strategy acknowledged that

The use of the Internet is becoming increasingly important for accessing education and government services, social networking and community support… It is important that people with disability are not left behind as the use of digital communication continues to grow.18

In December 2010, the Australian Government released its Media Access Review Final Report, Investigation into access to electronic media for the hearing and vision-impaired.19 Many of the recommendations of the report have been implemented.

However, some of the recommendations of the Media Access Review remain outstanding. For example, the report recommended that another review of captioning and audio description on electronic media in Australia be commenced in 2014, which would ‘consider what further actions are appropriate based on the media environment at that time’.20 This review did not occur.

4.1.1 Accessing goods, services and facilities online

Many websites continue to be inaccessible to people with disability. This especially affects people who are blind or have low vision, as websites are often not compatible with screen reader technology. This has a broader effect as it prevents individuals from accessing services.

In the past, PIAC has represented clients in disability discrimination claims addressing accessibility of ticketing webpages, and online supermarket stores.

18 Australian Government, National Disability Strategy 2010 – 2020 (2011) at 33, available at https://www.dss.gov.au/sites/default/files/documents/05_2012/national_disability_strategy_2010_2020.pdf (accessed 20 December 2016). 19 Australian Government, Investigation into access to electronic media for the hearing and vision-impaired, Media access review final report (December 2010) (‘Media Access Review’) available at http://www.abc.net.au/mediawatch/transcripts/1105_bcd.pdf (accessed 23 February 2017). 20 Australian Government, Media Access Review at 5 (Recommendation 22).

Public Interest Advocacy Centre • Improving access for all • 11 Case study – online ticketing

In 2000, PIAC represented Mr Bruce Maguire in a disability discrimination claim against the Sydney Olympic Games Organising Committee (SOCOG).

Mr Maguire is blind and was unable to access the webpage of the Sydney Olympic Games, and information regarding ticketing and events for the Games.

The Human Rights and Equal Opportunity Commission found that Mr Maguire had been unlawfully discriminated against and SOCOG was required to make its website accessible.

Case study – online shopping

In 2014, PIAC represented Ms Gisele Menage, who is blind, in legal proceedings against Coles for inaccessibility of its online site.

Ms Menage said that it took up to 12 hours to order her groceries online. In 2015, the case settled, with Coles agreeing to make improvements to its website to make it more accessible.

Despite the outcomes of these cases, many Australian websites continue to be inaccessible to screen reader technologies. There is also a lack of community and business awareness about the ways in which a website and online services should be made accessible in Australia.

Even if a service provides a physically accessible option for people with disability, (for example, an audio described movie session at a cinema) it can be difficult for an individual who is blind or has low vision to know where and when that service is available, as the internet webpage advertising the service is not accessible or easily navigable.

Example – inaccessibility of a cinema booking webpage

Steve, who is blind, would like to go to the cinemas to watch the new release of the Star Wars film, ‘Rogue One’. He has heard that some well-known Australian cinema chains are showing ‘Rogue One’ with audio description. He researches on the internet to find a cinema where he can watch the film with audio description.

The cinema webpages that he finds are not compatible with his screen reader, and so he is not able to find out the locations and session times that provide audio description.

In the end, he arranges for a friend to do the research for him and his friend books the tickets for them both. Steve is glad that he can watch the movie, but is frustrated that he cannot find out basic information about the movies that he wants to watch, or book his own ticket.

4.1.1.1 Accessing education online

In our casework, PIAC has identified that individuals who are blind have found that university courses do not provide course materials in accessible formats. As more universities, colleges and education providers increase the online components of a course, and provide online offerings of courses such as via ‘distance education’, barriers to accessibility can be anticipated to increase.

The issue of accessibility in education has previously been addressed in case law in the context of conversion from written materials to Braille and other reasonable adjustments, such as access to sign language. However, the issue of accessibility in online education has not yet come before the courts.

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The Disability Standards for Education 2005 (Cth) apply to most providers of education, from preschools and kindergartens to schools, universities and adult education providers.21 The Standards provide that students are entitled to ‘reasonable adjustments’. However, in determining whether an adjustment is ‘reasonable’, an education provider must assess specific criteria, the last being ‘the costs and benefits of making the adjustment’.22 The defence of unjustifiable hardship remains open to the education provider even where an adjustment has been assessed as reasonable.

Without more specific legal requirements to guide education providers regarding their obligations to provide accessible formats in online offerings, issues of accessibility are reduced to consideration by the education provider on an individual case-by-case basis.

Such decisions are usually time-sensitive for people wishing to access higher education, as they may be financially penalised if they do not withdraw their enrolment prior to certain dates.

In the context of online courses, there is the possibility that education providers may be able to more easily contend that overhauling a course’s entire online offering in order to make it accessible to a student or a few students with disability may constitute unjustifiable hardship.

If the onus was instead placed on education providers from the outset to make their websites and online education courses accessible, this would provide more people with disability with effective access to higher education.

4.1.1.2 United States and online services

In the United States, in the case of NAD v MIT/Harvard, the National Association of the Deaf alleges that the Massachusetts Institute for Technology and Harvard University discriminated against deaf and hard of hearing people by failing to caption online content that they make available to the general public, including massive open online courses. The case is currently being litigated, with orders as to motions made in November 2016.23

In the United States, there have been a number of landmark cases that have focused on accessibility in online goods, services and facilities, including transport, commerce, entertainment and education.24 3Play Media identified some examples:

• ‘2001 – Martin v MARTA – ruling in favour of accessible online bus schedules for people who are blind; • 2007 – NFB v Target – Target agreed to make its e-commerce site accessible to people who are blind; • 2011 - NFB v Penn State University – Penn State agreed to make campus IT accessible for people who are blind; • 2012 - NAD v Netflix – Netflix agreed to caption all movies; • 2013 - GLAD v [CNN] – Ongoing suit against CNN because online videos lack captions (currently being litigated)

21 See Disability Standards for Education 2005 (Cth), Standard 1.5. 22 Disability Standards for Education 2005 (Cth), Standard 3.4(2)(e). 23 Disability Rights Education and Defense Fund, ‘NAD Lawsuit Against Harvard and MIT Moves Forward’, Media release, 4 November 2016, available at https://dredf.org/2016/11/08/nad-lawsuit-against-harvard-and-mit- moves-forward/ (accessed 23 February 2017). 24 3PlayMedia, How the ADA Impacts Online Video Accessibility, Issue Brief (2016) at 4, available at http://info.3playmedia.com/rs/3playmedia/images/ADA-Brief.pdf (accessed 11 January 2017) (“Issue Brief”).

Public Interest Advocacy Centre • Improving access for all • 13 • 2015 - NAD v MIT/Harvard – Lawsuit over lack of accurate, comprehensive, video captioning in public-facing, free online courses (currently being litigated).’25

In the case of National Association of the Deaf (NAD) v Netflix, the NAD asserted that the online business of Netflix was a ‘place of public accommodation’ within the meaning of the Americans with Disabilities Act 1990, despite lacking a physical location. The District Court of Massachusetts agreed, thus finding that Netflix qualified as a ‘place of public accommodation’ and was therefore required to comply with the Act.26 Similar questions have been at issue in other American jurisdictions.

The meaning of ‘access to premises’ under s23 of the DDA has not yet been interpreted in this way.

By contrast to the United States, Australia does not have the same extent of case law securing rights for Australians with disability in accessing services online.

4.1.2 Web accessibility guidelines

While web accessibility standards have been developed, they have no enforceability in Australian law. Australian case law has not yet determined their relevance to the DDA, although they could be relevant in future cases regarding (online) access to premises, or in the provision of goods, services and facilities.

The World Wide Web Consortium (W3C) develops web standards such as .html, .xml, .css, also known as W3C Recommendations. W3C’s Web Accessibility Initiative has developed recommendations relevant to accessibility:

• Web Content Accessibility Guidelines: WCAG Overview, WCAG 2.0 (December 2008); • Authoring Tool Accessibility Guidelines: ATAG Overview, ATAG 1.0 (February 2000); and • User Agent Accessibility Guidelines: UAAG Overview, UAAG 1.0 (December 2002).27

The earlier version of WCAG 2.0, was the Web Content Accessibility Guidelines 1.0, which were adopted in 1999.28

Australian governments at all levels have endorsed WCAG 2.0, and all government websites (federal, state and territory) were required to meet these guidelines at the minimum compliance level (Single A) by the end of 2012. The Australian Government required all federal websites to meet the medium conformance level (Double A) by the end of 2014.29

In December 2014, the Australian Human Rights Commission published an advisory note on World Wide Web Access and the Disability Discrimination Act, stating that

25 Further useful information on the obligations and further cases can be seen here - http://www.ebglaw.com/content/uploads/2016/05/Workshop-3-2016-ADA-Website-Accessibility-Workshop- Participant-Material.pdf. 26 3PlayMedia, Issue Brief, above n 24, at 2. 27 Web Accessibility Initiative, ‘How WAI develops accessibility guidelines through the W3c process: Milestones and opportunities to contribute’, available at https://www.w3.org/WAI/intro/w3c-process.php (accessed 20 December 2016). 28 W3C, ‘Web Content Accessibility Guideline 1.0, W3C Recommendation 5 May 1999’, available at https://www.w3.org/TR/WCAG10/ (accessed 10 January 2017). 29 See Australian Government, Department of Finance, ‘Web Accessibility National Transition Strategy: Introduction’, available at https://www.finance.gov.au/publications/wcag-2-implementation/introduction.html (accessed 20 December 2016).

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The Commission believes that the Web Content Accessibility Guidelines (WCAG) 2.0 that were released by the World Wide Web Consortium (W3C) in December 2008 provide the most comprehensive set of testable benchmarks for assessing key aspects of the accessibility of websites and other web content, and represent current international best practice in most areas of accessible web design.

Familiarity with techniques for implementing these guidelines is therefore essential for anyone involved with the design or evaluation of accessible web content.30

It would be appropriate for the WCAG 2.0 guidelines be provided with a measure of enforceability in Australia.

This would make an important systemic difference, assisting people with disability to be able to access online services, goods and facilities.

4.2 Broadcast television and audio description Audio description is a narrative soundtrack that runs alongside audio, and describes actions and non-verbal cues that are occurring on screen so that people who are blind and vision-impaired can fully enjoy programs on television.

Australia is currently lagging behind other nations in the accessibility of its broadcast television services, particularly in its failure to legislate minimum required amounts of audio description, and provide audio described programs. For example, audio description has been referenced in UK legislation since 1996 and some UK channels now audio describe 20 per cent of broadcast content.31

In Australia, audio description was first trialed on ABC broadcast television in 2012 for 13 weeks, and on ABC’s catch-up TV service, iview, in 2015 for 15 months. The federal government has not made a commitment to continue these trials or to provide audio description on a permanent basis.

No trial of audio description has ever been conducted on Australian commercial channels, and there is no requirement that this occur.

30 Australian Human Rights Commission, World Wide Web Access: Disability Discrimination Act Advisory Notes ver 4.1 (2014) at 3.1, available at https://www.humanrights.gov.au/world-wide-web-access-disability- discrimination-act-advisory-notes-ver-41-2014#required (accessed 10 January 2016). 31 See PIAC, Review of Part 9D of the Broadcasting Services Act 1992 (Cth) (21 July 2016) at 7, 9, available at https://www.piac.asn.au/2016/07/26/review-of-part-9d-of-the-broadcasting-services-act-1992/ (accessed 28 February 2017).

Public Interest Advocacy Centre • Improving access for all • 15 By way of contrast, audio description was first introduced in New Zealand in 201132 and Able33 currently provides an average of 40 hours of audio description per week across two channels of New Zealand’s broadcaster, Television New Zealand.34

In 2010, the Australian government’s Media Access Review recommended that after the completion of the audio description trial and the receipt of technical advice from the Australian Communications and Media Authority on the results of the trial, ‘the government give further consideration to the introduction of progressive audio description requirements’.35 This trial occurred in 2012. To date, there has not been consideration of introducing progressive audio description requirements, and there is no reference to audio description in any Australian law.

Part 9D of the Broadcasting Services Act 1992 (Cth) stipulates the amounts of captioning required to be provided on broadcast television by national broadcasters, commercial television broadcasters and subscription television licensees. Failure to comply with these requirements constitutes a breach of the relevant broadcasting licence. Relevant parties are also required to provide annual compliance reports.

PIAC submits that amending Part 9D of the BSA to introduce minimum requirements for the number of hours of audio described broadcast content would be appropriate, as the legislative framework already exists in relation to captioning, including the oversight role of the Australian Communications Media Authority.

The 2012 trial of audio description on ABC provided 14 hours per week of audio described content.

PIAC submits that it would be appropriate to set this standard as a baseline minimum, and that gradual increases in the required amounts be incorporated into legislation. In the UK, the regulatory body for communications industries, the Office of Communications (Ofcom), developed a code that prescribes the required gradual increases in the percentage of audio described content.36

Recommendation 9 – Legislate for minimum requirements of audio description on broadcast television The federal government amend Part 9D of the Broadcasting Services Act 1992 (Cth) to include minimum requirements for the provision of audio description on broadcast television, starting with a base minimum of 14 hours of audio described content, and legislate for gradual increments on an annual basis.

32 Blind Citizens NZ, ‘An update on audio description on New Zealand television- now twelve months on’, available at https://www.abcnz.org.nz/update-audio-description-new-zealand-television-now-twelve-months (accessed 13 February 2017). 33 Able is a not-for-profit charitable trust dedicated to making media accessible for people who are deaf or blind, and provides access services for NZ’s leading broadcasters. See Able, ‘Who We Are’, available at http://able.co.nz/about-us/who-we-are (accessed 13 February 2017). 34 Email correspondence with Able, dated 14 February 2017. 35 Australian Government, Media Access Review, above n 19, at 3 (Recommendation 6). 36 See Ofcom, Ofcom’s Code on Television Access Services, last updated 13 May 2015, at 4 - 5, available at http://stakeholders.ofcom.org.uk/binaries/broadcast/other-codes/tv-access-services-2015.pdf (accessed 29 June 2016).

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4.3 Video on demand services The term ‘video on demand services’ broadly includes catch-up TV services, such as ABC iview, and subscription TV services, such as Netflix. It also includes ad-supported video on demand services, transactional video on demand services, and free video on demand services.37

There is no legislation requiring accessibility of video on demand services in Australia. This means that there are no legislative requirements to provide audio description, captioning or signing, or for these online services to be WCAG 2.0 compliant.

This means that the provision of any accessibility features by video on demand services, whether captioning, audio description or signing, or accessibility in navigation, is completely voluntary.

The DDA is the only available source of a right to accessible entertainment when accessing video on demand services.

4.3.1 Catch-up television Catch-up TV services in Australia include ABC iview, SBS On Demand, Plus7, 9Now, TenPlay and Foxtel Go.

Even where catch-up TV services have provided accessible programs, these are not always easy for consumers to find.

4.3.1.1 Captioning

While Part 9D of the BSA places captioning requirements on broadcasters for broadcast television, at present there is no legislation that requires captioning when exactly the same program is shown on a broadcaster’s catch-up TV service.

While ABC, SBS and Channel 7 have elected to provide some captioning on their catch-up TV services, the amounts provided in no way compare with the requirements for broadcast television.

37 Further examples of video on demand include catch-up TV services (such as ABC iview, SBS On Demand, Plus7, 9JumpIn, TenPlay, Foxtel Go); ad-supported video on demand services (such as Big Star Movies, Smh.tv/theage.tv, 7Sport, YouTube, Viewster); and subscription video on demand services (such as AFL Live Pass, BBC iPlayer, BeamaFilms, Cricket Australia Live Streaming, EPL On Demand, Fox Sports Premium, IndieFlix, Mubie, NBA League Pass, NBL.TV, NRL Digital Pass, Netflix, Presto, Qello Concerts, QuickFlix, Stan, Watch AFL Global Pass; transactional video on demand services (such as Dendy Direct, EzyFlix, Fetch TV, Foxtel Movies On Demand, Google Play, iTunes, Sony Entertainment Network, Telstra Bigpond, Vimeo On Demand, Xbox Video); free video on demand services (such as 4ME TV, AnimeLab, Crackle, Hannabee and Vimeo). See Media Access Australia, Access on Demand: Captioning and audio description on video on demand services (April 2015), at 6 – 14, available at https://mediaaccess.org.au/research-policy/research-and- reports/access-on-demand-captioning-and-audio-description-on-video-on-demand-services (accessed 14 February 2017).

Public Interest Advocacy Centre • Improving access for all • 17 For example, Media Access Australia identified the amount of captioning provided by catch-up TV services in February 2015:38

Service Content Percentage captioned ABC iview Programs from ABC1 and 64% ABC2 SBS on Demand Programs from SBS1 and 32% (of English language SBS2, plus a movie library general entertainment programs) Plus7 Programs from Seven, 7Two 9% and 7Mate 9Jumpin Programs from Nine, Gem 0% and GO! TENplay Programs from Ten, Eleven 0% and One Foxtel Go Programs from a selection of 0% Foxtel channels

By contrast, in the UK, catch-up TV services are required to report regarding levels of access. In 2014, the catch-up TV services of ‘Channel 4 (4oD), Channel 5 (Demand 5) and ITV (ITV Player) provided captions on 65 per cent, 72 per cent and 74 per cent of their programs respectively’.39

Section 130ZS of the BSA makes provision for the captioning obligations of multi-channelled services.

It may be possible to extend the provisions in this Part so that programs that were previously captioned when transmitted on a broadcast television service, should be captioned when provided on a catch-up TV service.

The United States was the first country in the world to introduce legislation that creates obligations regarding captioning on video on demand services, with the 21st Century Communications and Video Accessibility Act 2010 (CVAA). Media Access Australia identifies that

The CVAA introduced a requirement that any TV program that was broadcast with captions must also be captioned when distributed over the internet, and gave the Federal Communications Commission the power to determine deadlines for this to take place.40

4.3.1.2 Audio description

38 Media Access Australia, Access on Demand: Captioning and audio description on video on demand services (April 2015), Table 2, at 17, available at https://mediaaccess.org.au/research-policy/research-and- reports/access-on-demand-captioning-and-audio-description-on-video-on-demand-services (accessed 28 February 2017) (“Access on Demand”). 39 Ibid, at 7. 40 Ibid, at 6.

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There is no requirement that catch-up TV services provide audio description in Australia, and none of the Australian catch-up TV services provide audio description.

A 15-month audio description trial occurred on ABC iview from 2015 – 2016. The report of the trial, which was released on 5 April 2017, coincided with the the Commonwealth Minister for Communications announcing the formation of an Audio Description Working Group to examine options for increasing the availability of audio description services in Australia. The Working Group is due to provide a report to Government on its findings by 31 December 2017. While this is a welcome initiative, it is disappointing that there was no commitment in either the report or the announcement to any further provision of audio description on iview.

In the UK, audio described content is voluntarily provided on BBC’s and Channel 4’s catch-up TV services, BBC iPlayer41 and 4oD.42

4.3.2 Subscription video on demand services

The most popular subscription video on demand services in Australia are Netflix, Stan and Presto. These services derive content from other parties; for example, Stan derives content from ABC, Sony Pictures, MGM, CBS Studios and BBC Worldwide.43

There is no Australian legal obligation for these services to provide captions, audio description or to be WCAG 2.0 compliant.

This is despite the fact that some content providers would have relevant captioning and audio description files available.

ACCAN identified the accessibility of subscription video on demand in Australia in 2015:44

Provider Closed captions? AD? WCAG 2.0 compliant? Netflix AU Yes (most titles) Yes (limited titles) No Stan Yes (some titles) No No Quickflix Yes (few titles, No No difficult to identify) Presto No No No Foxtel Play No No No

Media Access Australia noted in 2015 that the operation of

Netflix in Australia is particularly significant, given that the level of captioning on its content is at or close to 100%, and access to this content (in standard definition format) costs only $8.99 per month.

41 See BBC, ‘iPlayer – Audio described’, available at http://www.bbc.co.uk/iplayer/categories/audio- described/highlights (accessed 22 February 2017). 42 Channel 4, ‘Categories – Audio Description’, available at http://www.channel4.com/programmes/categories/audio-described (accessed 22 February 2017). 43 Media Access Australia, Access on Demand, above n 38, at 12 – 13. 44 Katie Ellis, Mike Kent, Kathryn Locke, Melissa Merchant, ACCAN and Curtin University, Accessing subscription video on demand: A study of disability and streaming television in Australia (August 2016) at 9, available at https://accan.org.au/grants/current-grants/1066-accessing-video-on-demand-a-study-of-disability-and- streaming-television (accessed 22 February 2017).

Public Interest Advocacy Centre • Improving access for all • 19 The levels of captioning on these services can be largely attributed to the workings of the 21st Communications and Video Accessibility Act 2010 in the US. This legislation may have been framed with the interests of Deaf and hearing impaired Americans in mind, but the largest VOD providers, such as Netflix or iTunes, are global enterprises, and the benefits provided in the Act have flowed on to many other countries, including Australia.

We believe that the lesson to be drawn from this is that legislation and government regulation are essential factors for the adequate provision of access services.45

4.3.2.1 Audio description

The only subscription video on demand service to provide audio description in Australia is Netflix Australia. Netflix Australia provides audio description for some of its content for subscribers.

The decision to provide audio description in Australia is potentially linked to its operations in the US. Netflix US first introduced audio description in April 2015, when it provided audio description of a Netflix Original series, Daredevil, the story of a blind lawyer who is a Marvel superhero by night.46 There are now more than 250 titles available on Netflix US that are audio described.47

In April 2016, Netflix reached a historic settlement with the American Council for the Blind that ensured increased accessibility for people with disability, including specific improvements to Netflix’s website, application and streaming service. The terms of the settlement agreement are helpful in determining the requirements that should be placed on video on demand services in Australia.

Under the settlement, Netflix committed to: • Ensure that its applications on mobile applicable devices complied with the BBC Mobile Accessibility Standards version 1.0 (or applicable successor) by 31 December 2016; • Ensure that its website (for browsers that support HTML5 video and premium video extensions), complies with the AA standard of WCAG 2.0; • Netflix shall ensure that its website, for browsers that support HTML5 video and premium video extensions, complies with the AA standard of WCAG 2.0 except for obligations to provide audio description for video content. • Further provision was made in the agreement as to how audio description of video content will be provided.48

4.3.3 The case for accessibility legislation

Media Access Australia has previously recommended that

Netflix has proven that it is possible to caption video on demand content and therefore other providers should voluntarily caption. If this does not happen, the Federal government should legislate captioning levels.49

45 Media Access Australia, Access on Demand, above n 38, at 16. 46 American Council of the Blind, The Audio Description Project, ‘Audio description via Netflix’, available at http://www.acb.org/adp/netflix.html (accessed 20 December 2016). 47 American Council of the Blind, The Audio Description Project, ‘Netflix Audio described programs’, available at http://www.acb.org/adp/netflixad.html (accessed 20 December 2016). 48 Disability Rights Advocates, ‘Netflix to Enhance Access for Customers Who Are Blind’, 14 April 2016, available at http://dralegal.org/featured/netflix-enhance-access-customers-blind/ (accessed 28 February 2017). 49 Cited in Katie Ellis, Mike Kent, Kathryn Locke, Melissa Merchant, ACCAN and Curtin University, Accessing subscription video on demand: A study of disability and streaming television in Australia (August 2016) at 11, available at https://accan.org.au/grants/current-grants/1066-accessing-video-on-demand-a-study-of-disability- and-streaming-television (accessed 22 February 2017).

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These comments are also relevant in considering the introduction of audio description.

The interim report of the ABC iview audio description trial (released November 2016) and the final report of the iview trial are useful documents in assisting governments and broadcasters to anticipate the types of technical issues that may arise in developing the required technology, including anticipated timeframes.

However, even if the government were to introduce audio description on iview, this does not go far enough, as it will not sufficiently address systemic issues of access, such as:

• Lack of requirements regarding captioning and audio description on catch-up TV services by commercial broadcasters and SBS, and other video on demand services; • Lack of web accessibility of catch-up TV services and video on demand services; • Lack of web accessibility of many Australian websites.

In the United States, the 21st Century Communications and Video Accessibility Act 2010 created obligations regarding communications access and video programming, and record-keeping obligations for industry.50 The obligations require advanced communications services51 and products to be accessible by people with disabilities.

In the UK, the relevant Department said in 2013 that it would consider legislating to make video on demand services more accessible if sufficient progress was not made in three years.52 In April 2016, the Department viewed that progress was being made and that it did not intend to legislate in this area as yet.53

In Australia, however, sufficient progress is not being made. At a basic level, no formal reporting regarding accessibility is even required in this area, and therefore, it is difficult to even assess where progress has been made. PIAC submits that legislation must be the next step to drive compliance.

50 The Act is available at https://www.fcc.gov/consumers/guides/21st-century-communications-and-video- accessibility-act-cvaa. 51 ‘Advanced communications services’ are defined as (1) interconnected voice over Internet protocol (VoIP) service; (2) non-interconnected VoIP service; (3) electronic messaging service; and (4) interoperable video conferencing service. This includes, for example, text messaging, e-mail, instant messaging, and video communications: see US Federal Communications Commission, ‘21st Century Communications and Video Accessibility Act (CVAA)’, available at https://www.fcc.gov/consumers/guides/21st-century-communications- and-video-accessibility-act-cvaa (accessed 24 February 2017). 52 Ofcom, Accessibility of on demand programme services (3 August 2016) at 3 [2.6], available at https://www.ofcom.org.uk/__data/assets/pdf_file/0020/62390/VOD-condoc.pdf (accessed 23 February 2017). 53 Ibid, at 4 [2.7].

Public Interest Advocacy Centre • Improving access for all • 21 4.3.4 Data collation and publication regarding accessibility and video on demand

In the UK, Ofcom has the power to regularly collect and publish data from video on demand service providers on the accessibility of their services.

Ofcom notes that as a result it can ‘provide information for consumers on accessible services, while also monitoring and assessing progress, and engaging with service providers who need to improve in this area’.54 In late 2016, Ofcom consulted regarding the collation and publication of this data.55

In a similar way, it would be appropriate for an Australian statutory body to be empowered to collate and publish data regarding accessibility in video on demand services.

4.4 Banking and touchscreen EFTPOS payment devices Touchscreen EFTPOS payment devices which have recently been released onto the Australian market are inaccessible to people who are blind or vision impaired. PIAC is currently representing two clients in unlawful disability discrimination complaints to the Australian Human Rights regarding the inaccessibility of one touchscreen EFTPOS payment device.

Traditional EFTPOS devices use a physical keypad, which incorporate a raised dot on the #5 of the keypad, precise numerical targets regarding keypad layout (distance between the keys on the keypad) and uniform personalised identification number (PIN) entry procedure to guide people who are blind or have low vision so that they can enter their PIN. These features are set out in the voluntary Australian Bankers Association (ABA) Industry Standards regarding the Accessibility of Electronic Banking (2002 EFTPOS Standards), which are discussed further below.

However, touchscreen EFTPOS devices require users to enter their PIN onto a touchscreen, such as a tablet, where there are no audio cues available to indicate the location of the numbers. There is also no tactile overlay on the smooth glass surface of the screen to indicate the location of the numbers.

In an article for the Digital Gap Initiative, Gisele Mesnage and Ted McCoskey wrote about the problems faced by people who are blind attempting to use one type of touchscreen EFTPOS device, the Commonwealth Bank’s ‘Albert’56 device, including:

• In one instance, a woman who was blind and attempting to pay a consultation fee exceeding $100 at a doctor’s surgery was required to whisper her PIN to the receptionist, who entered the number of her behalf;

54 Ibid, at 4 [2.8]. 55 Ibid, at 1 [1.5]. 56 Commonwealth Bank, ‘Albert, the clever EFTPOS tablet that can enhance your business’, available at https://www.commbank.com.au/business/merchant-services/eftpos-options/in-store/albert.html (accessed 14 February 2017).

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• People potentially being locked out of their account after incorrectly entering their PIN three times; • The ‘accessibility solution’ for the machine was an audio-played instruction lasting more than 10 minutes, that would be impractical to use in a busy shop setting in which other customers are waiting to be served.57

The writers also identified that

many other users rely on the tactile nature of current model EFTPOS machines in order to enter their PIN numbers. Those with Parkinson’s or other dexterity issues with their hands, to name just a few… Many people with cognitive or other learning disabilities also rely on tactile clues to complete tasks like this.58

As noted above, in 2002, voluntary industry standards regarding accessibility in banking were developed by a working group comprised of financial service sector representatives, the Human Rights and Equal Opportunity Commission and community and consumer groups.

The 2002 EFTPOS Standards heavily reference the importance of ensuring uniformity in the layout and operation of EFTPOS devices, and contain precise numerical targets designed to enhance consistency and accessibility. Clause 11.2 of the 2002 EFTPOS Standard stated that

All users of EFTPOS terminals will benefit from consistency in layout and operation. Examples where consistency is important include: - Keypad layout, - PIN entry procedure, - The order of steps for a purchase.

Experience has shown that consistent and predictable human interfaces benefit users. The benefits can include faster learning, greater productivity, fewer errors and greater satisfaction. Consistent interfaces also benefit the industry by promoting greater acceptance of products and services.

Clause 11.2 of the 2002 EFTPOS Standard also specifically noted that

touch operated controls should not be used on EFTPOS terminal equipment because of the various problems they cause for people who are blind or have physical disabilities.

The Australian Bankers Association website states that a number of voluntary industry standards relating to accessibility, including the 2002 EFTPOS Standard, are currently under review.59 PIAC has been provided a copy of the Consultation Draft of the Accessibility Principles for Banking Services (Proposed Banking Service Guidelines), which are intended to replace the 2002 EFTPOS Guidelines. PIAC is concerned that if released in their current form, the Proposed Banking Service Guidelines demonstrate a significant departure from fundamental principles such as uniformity and the inaccessibility of touchscreen technologies, which formed the basis of the voluntary 2002 EFTPOS Standards. In particular, the Proposed Banking Service Guidelines: • Remove the requirement for electronic banking devices to incorporate a physical keypad;

57 Digital Gap Initiative, ‘Commbank’s new EFTPOS “Albert”: Accessibility short changed’, available at http://www.digitalgap.org/2015/09/18/commbanks-new-eftpos-albert-accessibility-short-changed/ (accessed 21 February 2017). 58 Ibid. 59 This includes the Industry Standards on Accessibility of Electronic Banking – Standard on Automated Teller Machines (ATMs), Standard on Electronic Electronic Funds Transfer at the Point of Sale (EFTPOS), Standard on Automated Telephone Banking and Standard on Internet Banking. See Australian Bankers Association, ‘Industry standards – accessibility’, available at http://www.bankers.asn.au/Industry-Standards/ABAs- Accessibility-of-Electronic-Banking-/Industry-Standards---Accessibility (accessed 21 February 2017).

Public Interest Advocacy Centre • Improving access for all • 23 • Fail to encourage banks to be proactive in their efforts to ensure equal access to EFTPOS terminals; and • Were developed by a working group comprised of representatives from the banking and financial sector only.

PIAC acknowledges the importance of technical development and innovation. However, we are concerned the Proposed Banking Service Guidelines represent a substantial move away from the evidence-based policy position of the 2002 EFTPOS Standard. Instead, it is apparent that the Proposed Banking Service Guidelines and have been developed to complement touchscreen EFTPOS devices released onto the market prior to the revision of the industry guidelines.

In addition to the matter raised above, compliance with the 200 EFTPOS Standard is voluntary, and there is no industry mechanism to enforce compliance.

It is PIAC’s view that requiring people who are blind or have low vision to access touchscreen EFTPOS payment devices may constitute indirect or direct discrimination under the DDA.

5. Any other related matters Other issues relevant to this inquiry are matters relevant to participating in political and public life, such as participating in elections and on juries.

5.1 Elections The right of persons with disabilities to participate in political and public life was recognized in Article 29 of CRPD. This includes the right and opportunity for persons with disabilities to vote and be elected, by ensuring that ‘voting procedures, facilities and materials are appropriate, accessible and easy to understand and use’, and ‘protecting the right of persons with disabilities to vote by secret ballot’.60

The importance of equal access to civil life is addressed in the National Disability Strategy, which acknowledges the barriers that prevent people with disability from accessing polling booths or casting an independent, secret ballot,61and outlines commitments to address voting accessibility. The ‘Current commitments 2010’ within the Strategy state:

The Commonwealth, States and Territories are providing information and voting services to people with disability, such as specific services for voters with vision impairment, assistance at polling places to voters with cognitive disabilities, accessible polling places and changes to electoral law to enable polling officials to assist people with disability to vote outside the polling place.62

Despite these commitments, PIAC is of the view that current voting procedures remain unsatisfactory for people with vision impairment and that insufficient progress has been made in ensuring the accessibility of polling places for people with mobility disability. In PIAC’s view, the findings of the Productivity Commission’s 2004 Review of the Disability Discrimination Act remain relevant:

60 UN Convention on the Rights of Persons with Disabilities, Article 29. 61 National Disability Strategy 2010 – 2020, at 37. 62 Ibid, at 40.

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Physical access and provision of accessible information and independent assistance at polling places are not uniform. Given the importance of voting, it is inappropriate to rely on individual complaints to improve access.63

The Productivity Commission recommended that the Commonwealth Electoral Act 1918 (Cth) be amended to include general access requirements to ensure accessibility of federal voting, both physically and in the provision of information and independent assistance. The Productivity Commission recommended that the Australian government should encourage state and territory governments to follow suit.64

Implementation of the Productivity Commission’s recommendation would be in line with legislative requirements of accessibility which exist in both the USA and Canada. As recognised by the Productivity Commission, the United States has ‘specific legislative requirements in place requiring accessible polling places to be used unless the responsible officer certifies no such place is available in the district.’65 In Canada, the Elections Act 2000 provides that polling stations shall be in premises with level access,66 and that before voting begins, each returning officer shall provide each deputy returning officer in his or her electoral district with an adequate number of templates, provided by the Chief Electoral Officer, to enable electors who are visually impaired to mark their ballots without assistance.67

The Productivity Commission also suggested that the formulation of Disability Standards for elections could be used to clarify any general legislative access requirements.68 The Productivity Commission noted that Standards could apply to both federal and State and Territory voting arrangements and would therefore encourage the States and Territories to improve access.

63 Productivity Commission, Review of the Disability Discrimination Act 1992 (Report No. 30, 30 April 2004), at 258 [Finding 9.2],available at http://www.pc.gov.au/inquiries/completed/disability-discrimination/report/disability- discrimination.pdf (accessed 13 February 2017). See discussion of voting from pages 254-258. 64 Ibid, at 258 [Recommendation 9.2]. 65 Ibid, at 257. 66 Canada Elections Act 2000, s121(1), note that s121(2) provides an exception to this, that ‘if a returning officer is unable to secure suitable premises with level access for use as a polling station, the returning officer may, with the prior approval of the Chief Electoral Officer, locate the polling station in premises without level access’. The Act is available at http://laws-lois.justice.gc.ca/eng/acts/E-2.01/ (accessed 27 February 2017). 67 Canada Elections Act 2000, s119(1). 68 Productivity Commission, above n 66, 258.

Public Interest Advocacy Centre • Improving access for all • 25 5.1.1 Accessibility to elections for individuals who are blind or have low vision People who are blind or have low vision are unable to read printed materials that are important to the voting process. Most significantly this includes the ballot papers themselves, but also other relevant materials issued by the relevant electoral commission or by political parties, such as how-to-vote cards and information about candidates.

Case study – Discrimination and elections

In 2004, Mr Darren Fittler, who is blind, requested the NSW Electoral Commission to provide him with Braille ballot papers for the NSW election. The subsequent failure of the NSW Electoral Commission to provide this to Mr Fittler was found by the NSW Administrative Decisions Tribunal to constitute unlawful discrimination, preventing him from voting privately, and he was entitled to $5,000 compensation.69

The disability sector has called for the expansion of electronic and internet voting to enable individuals to vote in private on the same terms as other Australians.

‘Electronic voting’ or ‘computer assisted voting’ refers to voting that occurs at a polling place, using a computer/tablet to vote via the use of audio guides. Internet voting, specifically refers to a category of electronic voting which relies on the internet for the transmission of ballots, and in some cases can occur remotely.

At the 2011 and 2015 NSW state elections, the iVote internet voting system was made available to a limited group of people, including people with restricted mobility, remote and rural voters, and people outside the State on polling day.70 The iVote system was also made available at the 2017 Western Australian state election.

People With Disability Australia has described the iVote system as ‘the most advanced form of electronically assisted voting’ and stated that ‘we believe that the experience of NSW, which has been evaluated and continuously monitored since its first use in 2011, should provide comfort to the federal parliament that the integrity of this system is strong’.71

5.1.1.1 Federal elections

Prior to 2007, people who were blind or had low vision did not have any accessible option to vote in federal elections.

In 2007, computer-assisted voting was trialed at the federal election at some limited locations. Part XVB of the Electoral Act and Part IVB of the Referendum Act provided for these electronic voting trials.72

69 See Geesche Jacobsen, ‘Blind voter awarded $5000 for poll booth humiliation’, Sydney Morning Herald, 24 April 2008, available at http://www.smh.com.au/news/national/blind-voter-awarded-5000-for-poll-booth- humiliation/2008/04/23/1208743039809.html (accessed 13 February 2017). 70 Vision Australia, ‘It’s time to reconsider electronic voting at federal elections’, available at http://www.visionaustralia.org/about-us/news-and-media/latest-news/news/2016/11/24/it-s-time-to-reconsider- electronic-voting-at-federal-elections (accessed 13 February 2017). 71 People With Disability Australia, Joint Standing Committee on Electoral Matters, Inquiry into and report on all aspects of the conduct of the 2016 federal election and matters related thereto, Submission (2 December 2016) at 6, available at Submission No. 124 at http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/2016Election/Submissions (accessed 28 February 2017). 72 Electoral and Referendum Amendment Regulations 2010 (No. 3) (SLI No. 27 of 2010) Explanatory Statement, available at http://www.austlii.edu.au/au/legis/cth/num_reg_es/earar20103n227o2010517.html (accessed 1 March 2017).

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In 2010, ‘the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 amended these Parts to provide a broad legislative framework for the conduct of electronically assisted voting at future elections for voters who are sight-impaired’. 73

In 2010, people who were blind or had low vision could visit an Australian Electoral Commission office and vote by telephone.74 Vision Australia regarded this as ‘a limited and suboptimal outcome’.75

At the 2013 federal election, the Blind and Low Vision Telephone-Assisted Voting Service was introduced, and again made available for the 2016 election, this time ‘allowing voters to be able to cast their vote over the telephone from any location’, including in their homes.76

However, PIAC has received multiple complaints from consumers that they were not satisfied with the quality of this service, for example, people have no way of knowing if their vote has been accurately recorded. Vision Australia has noted its

strong view that the call centre model, regardless of the manner in which it is implemented, does not provide people who are blind or have low vision with the same amenity and convenience as the rest of the community, nor does it represent a secret and independent vote.77

Vision Australia noted to the Joint Select Committee on Electoral Matters that it took a great amount of time for people who are blind or have low vision to prepare for, and then use, the telephone-assisted voting service. The lack of independence in voting meant that individuals felt uncomfortable about asking for lengthy candidate lists to be repeated, and this ‘led to people feeling pressured to vote quickly, and in as simple a way as possible (‘above the line’)’.78 Vision Australia also noted that people found it was difficult to find accessible information about the candidates.

At present, the AEC website states that voters who are blind or have low vision have the options of: • Casting a vote over the telephone from any location; or • Casting a vote with assistance at any polling place or by post.79

Casting a vote with assistance means that people who are blind are still unable to cast a secret ballot.

73 Ibid. 74 Andrew Devenish-Meares, ‘New voting system gives blind and low vision voters more choice’, Ramp Up, 26 August 2013, available at http://www.abc.net.au/rampup/articles/2013/08/26/3833791.htm (accessed 28 February 2017). 75 Vision Australia, Submission to the inquiry into and report on all aspects of the conduct of the 2016 federal election and matters related thereto (2016) at 3, available at Submission No. 35, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/2016Election/Submissions (accessed 14 February 2017) (“Submission to JSCEM”). 76 Blind Citizens Australia, Submission to the Joint Standing Committee on Electoral Matters, Inquiry into and report on all aspects of the conduct of the 2016 federal election and matters related thereto (2016) available at http://www.aph.gov.au/DocumentStore.ashx?id=bab80c6e-1a48-45c1-8982-f8fb9f3b43d2&subId=415339 (accessed 13 February 2017). 77 Vision Australia, Submission to JSCEM, above n 75, at 3. 78 Ibid, at 9. 79 Australian Electoral Commission, ‘Voting options’, available at http://www.aec.gov.au/Voting/ways_to_vote/ (accessed 22 February 2017).

Public Interest Advocacy Centre • Improving access for all • 27 In 2016, Vision Australia recommended to the Joint Standing Committee on Electoral Matters in its inquiry into and report on all aspects of the conduct of the 2016 federal election that

The AEC be directed to develop, without delay, automated telephone and web-based voting options, delivering an accessible voting platform equivalent to the NSW iVote system, and in accordance with the Electoral Council of Australia (ECA) telephone voting standard and the Australian Government’s web accessibility standards (WCAG 2.0), for implementation in the next Federal election…

Development of accessible voting options [should] involve end users with disability to test the platforms…

Accessible voting options be made available for use for the full voting period including pre- polling and on Election Day…

Political parties and independent candidates be required to ensure that information, including ‘how to vote card’ information is made available in a range of accessible formats to people who are blind or have low vision, and that the AEC monitor compliance with this requirement.80

5.1.2 Mobility, accessibility and voting PIAC has received complaints regarding the lack of physically accessible polling booths, particularly federal elections. The list of expected polling places maintained on the AEC’s website indicates that as few as 3% of polling places will be fully wheelchair accessible at the next federal election in 2019. A number of federal electorates lack even one fully accessible polling place. The majority of federal polling places are listed by the AEC as accessible only with ‘assistance’.81 Even where polling places are listed as accessible or partially accessible, physical obstructions and lack of awareness by electoral officials can mean that polling places are rendered inaccessible in practice on election day.

Lack of accessible polling booths has resulted in people with mobility disabilities being forced to vote in the street or from their cars, with reduced privacy. Lack of accessibility can also discourage enrolment and voting by people with mobility disabilities.

Importantly, disability advocates do not consider postal voting an adequate alternative for a number of reasons, including the inability of postal voters to take into account the final days of the election, lack of access to electoral materials handed out on the way to the polling place and the desire of people with disability to engage in the electoral process on the same terms as other Australians.

80 Vision Australia, Submission to JSCEM, above n 75, at 2. 81 Australian Electoral Commission, Expected Election Day Polling Places, available at http://www.aec.gov.au/about_aec/cea-notices/election-pp.htm (accessed 1 January 2017). The term “Assisted” is not defined on the AEC website.

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5.1.2.1 Reports of the Australian National Audit Office

In 2010, the Australian National Audit Office (ANAO) tabled a performance audit report on the AEC’s preparation and conduction of the 2007 election. In that report, the ANAO recommended that the AEC work with other government agencies, state governments and other parties to identify opportunities to secure accessible polling booths. The ANAO also recommended that the AEC to redevelop its strategic program of polling inspection.82 The AEC agreed to these recommendations with qualification.83

The full recommendation 7 is reproduced below:

The ANAO recommends that the AEC:

(a) work with other Australian Government agencies that provide funding for the construction, upgrade or maintenance of facilities that are, or may be, used as polling booths to identify opportunities to secure access to these facilities for electoral events as part of the funding arrangements; (b) seek to implement standing arrangements with venue owners, particularly state governments, to secure suitable and accessible polling booths on just terms, with particular regard to the needs of the elderly and disabled, and the availability of premises in large rural divisions; (c) negotiate the use of suitable Commonwealth-agency venues, in particular as pre-poll voting centres and fresh-scrutiny centres; and (d) redevelop the strategic program of inspection of polling places to include systematic post- election evaluation and to identify improvements (where possible) of venues that are used as polling booths.84

Three performance audits were subsequently conducted to assess the AEC’s implementation. The second audit assessed, among other issues, the implementation of recommendations around the suitability and accessibility of polling booths.

In this second audit, the ANAO identified that inspections of potential polling places undertaken by the AEC prior to elections were ‘less then fully satisfactory’.85

The ANAO found that prior to the 2013 election, available reports of inspections of polling places indicated that 88 per cent of the sampled inspections identified shortcomings with the premises. This was ‘most often the case in relation to the provision of access for voters with a disability, and the provision of amenities for polling places staff’.86

Further, the AEC’s policies and procedures were ‘silent’87 on the action to be taken, if any, in the event that the premises of an intended polling place were unsatisfactory.

82 ANAO, Audit Report No. 28 2009 – 10, The Australian Electoral Commission’s Preparation for and Conduct of the 2007 Federal General Election at 35 (Recommendation 7), available at https://www.anao.gov.au/sites/g/files/net2446/f/ANAO_Report_2009-2010_28.pdf (accessed 22 February 2017). 83 Ibid, at 139 [4.104] – [4.106]. 84 Ibid, at 35 (Recommendation 7). 85 ANAO, Report No. 4 2014 – 15, Second Follow-Up Audit into the Australian Electoral Commission’s Preparation For and Conduct of Federal Elections at 48 [2.37], available at https://www.anao.gov.au/sites/g/files/net2446/f/ANAO_Report_2014-2015_04.pdf (accessed 22 February 2017). 86 Ibid, at 48 [2.37]. 87 Ibid, at 48 [2.37].

Public Interest Advocacy Centre • Improving access for all • 29 Within this sample, AEC inspections had concluded that premises did not provide wheelchair access in 18 per cent of polling places.88 However, the ANAO found that

in none of these instances did the AEC seek to identify an alternative polling place premise that would provide improved accessibility or to engage with the premises owner about possible modifications, a situation that does not sit comfortably with the AEC’s Disability Inclusion Strategy.89

The ANAO noted that the proportion of polling places assessed by the AEC as providing full access fell over three years, from 29.5 per cent at the 2007 election, to 16 per cent at the 2010 election, to 11.8 per cent at the 2013 election, although noting the impact of the Disability (Access to Premises - Buildings) Standards 2010 which commenced operation on 1 May 2011.90

The ANAO identified that inaccessibility of polling places was potentially not being rectified: the vast majority of polling places were the same at the 2013 election as at the 2010 election (90 per cent), and in only a very small number of cases was an alternative venue considered when inspections found premises to be unsatisfactory (9 per cent).

The ANAO concluded that

This situation helps to explain why the AEC has not made significant progress in delivering upon its publicly stated aim to maximise the number of polling places at each election which have full or assisted wheelchair access.91

The ANAO recommended that the AEC abolish, replace or consolidate (as appropriate) where the premises have been assessed as not suitable for voters.92

As noted above, the list of expected polling places maintained on the AEC’s website indicates that as few as 3% of polling places will be fully wheelchair accessible at the next federal election. This represents a further decrease in the proportion of accessible polling places since the ANAO’s second audit and demonstrates the failure of the AEC to effectively implement the ANAO’s recommendations to date.

For this reason, and as outlined above, PIAC recommends that the Commonwealth Electoral Act 1918 (Cth) should be amended to include a legislative requirement for polling places to meet accessibility standards. This would be in line with international practice. Particular reference should be had to s 121(1) of the Canadian Electoral Act 2000, requiring that polling stations be in premises with level access.

PIAC also considers that the Australian Electoral Commission should be encouraged to increase accessibility training for electoral staff and introduce a new procedure for removing barriers and obstacles to accessibility on election day and during the pre-polling period.

88 Ibid, at 50 [2.39]. 89 Ibid, at 50 [2.39]. 90 Ibid, at 49 [2.38] 91 Ibid, at 49 [2.38] 92 Ibid, at 27 (Recommendation 1).

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5.1.3 AEC framework for elections

In 2012, the Australian Electoral Commission (AEC) developed the Disability Inclusion Strategy 2012-20 to support the National Disability Strategy and its aims.93 PIAC notes that the Strategy is not publicly available on the AEC’s website, nor are the annual reports on the AEC’s progress under the Strategy.

PIAC’s is concerned that the Strategy lacks detail and does not set measurable targets for achieving its broadly stated goals. For example, in relation to physical accessibility of polling places and temporary AEC premises, the Strategy focuses on ‘enhanced visibility of polling place accessibility’ (i.e. publishing accessibility information on the AEC website), but stops short of any commitment to select polling places on the basis of accessibility, to adopt accessibility targets (such as at least one fully accessible polling place in each electorate), or to provide additional training of staff regarding accessibility.94

In relation to providing alternative or assisted voting options, the Disability Inclusion Strategy and the 2016 Report on Progress, Disability Inclusion Strategy list the options already available to voters (telephone voting and postal voting). However, no commitment is made in providing or working towards providing electronic voting, which is specifically identified by the vision impaired community as the best means of ensuring a private vote.95

The lack of specific, measurable targets within the AEC’s Disability Inclusion Strategy, coupled with the consistent failings identified in the ANAO Reports highlight the need for legislated accessibility requirements and national Disability Standards in relation to the conduct of elections. The AEC should also be encouraged to strengthen its Disability Inclusion Strategy, make it publically available and increase the transparency of its reporting.

5.1.4 Voting and individuals with a cognitive disability The Commonwealth Electoral Act 1918 (Cth) outlines the people who are entitled to be enrolled on the Electoral Roll and to vote.

Section 93(8) provides that

A person who:

(a) by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting; or (b) has been convicted of treason or treachery and has not been pardoned;

93 Australian Electoral Commission, 2015-16 Report on Progress, Disability Inclusion Strategy 2012-20 (November 2016), available on request from the AEC. 94 Ibid, at 7. 95 Ibid, at 11-12.

Public Interest Advocacy Centre • Improving access for all • 31 is not entitled to have his or her name placed or retained on any Roll or to vote at any Senate election or House of Representative election.

Section 118(4) makes further provision regarding objections and the requirement that a medical practitioner issue a medical certificate stating that a person is incapable of understanding the nature and significance of enrolment and voting.

PIAC previously identified in our 2014 submission to the ALRC that • The definition of ‘unsound mind’ does not give a clear indication as to a person’s capacity to participate in the electoral process; • The test of legal capacity should be premised on the presumption that a person has the capacity to make all decisions for themselves, and understand the implications of their decision; • Any decision made in relation to a person’s capacity should be subject to an avenue of appeal; • the Committee on the Rights of Persons with Disabilities recommended in 2013 that Australia enact legislation to restore the presumption of the capacity of persons with disabilities to vote and exercise choice, and ensure that all aspects of voting in an election are made accessible to all citizens with disabilities.96

The ALRC recommended in its Report into Equality, Capacity and Disability in Commonwealth Laws that provisions relating to unsound mind (s93(8)(a) and s118(4)) be repealed.97 The ALRC also recommended that state and territory governments should similarly repeal ‘unsound mind’ provisions.98

5.2 Jurors Article 13 of CRPD provides that ‘State Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others…in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings…’99

The National Disability Strategy outlined that an area for future action was to

Ensure people with disability have every opportunity to be active participants in the civic life of the community—as jurors, board members and elected representatives.100

96 PIAC, Equality before the law for people with disability, Submission in response to the ALRC’s Issues paper Equality, Capacity and Disability in Commonwealth Laws (20 January 2014) at 32 – 33, available at https://www.piac.asn.au/wp-content/uploads/14.01.20_equality_before_the_law_for_people_with_disability_- _submission_to_alrc_issues_paper.pdf (accessed 28 February 2017). 97 ALRC, Equality, Capacity and Disability in Commonwealth Laws, Final Report, ALRC Report No. 124 (November 2014) at 20 (Recommendation 9-1), available at https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_124_whole_pdf_file.pdf (accessed 22 February 2017). See Recommendations 9-1 to 9-7, which address electoral matters. 98 Ibid, at 20 (Recommendation 9-2). 99 UN Convention on the Rights of Persons with Disabilities, Article 13. 100 National Disability Strategy 2010 – 2020, at 41.

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The provisions relating to eligibility of jurors varies across Australia. However, people who are deaf or blind are often excluded from jury service as the presence of an interpreter in the jury room would not comply with relevant jury legislation.

In 2006, the NSW Law Reform Commission (NSW LRC) report, Blind or deaf jurors101 recommended that the Jury Act 1977 (NSW) be amended ‘to reflect that people who are blind or deaf should be qualified to serve on juries, and not be prevented from doing so on the basis of that physical disability alone’.102

The NSW LRC recommended that the Jury Act 1977 (NSW) be amended to reflect that:

• People who are blind or deaf should have the right to claim exemption from jury service;

• The Court should have power to stand aside a blind or deaf person summoned for jury duty if it appears to the Court that, notwithstanding the provision of reasonable adjustments, the person is unable to discharge the duties of a juror in the circumstances of the trial for which that person is summoned. This power should be exercisable on the Court’s own motion or on application by the Sheriff;

• Interpreters and stenographers allowed by the trial judge to assist the deaf or blind juror should swear an oath faithfully to interpret or transcribe the proceedings or jury deliberations, and should be permitted in the jury room during deliberations without breaching jury secrecy principles, so long as they are subject to and comply with requirements pertaining to the secrecy of jury deliberations;

• Offences be created, in similar terms to those arising under s 68A and 68B of the Act, in relation to the soliciting by third parties of interpreters or stenographers for the provision of information about the jury deliberations, and in relation to the disclosure of information by such interpreters or stenographers about the jury deliberations.103

The NSW LRC also recommended that

• The Sheriff should develop guidelines for the provision of reasonable adjustments, including sign language interpreters and other aids for use by deaf or blind jurors during the trial and deliberation.

• A blind or deaf person receiving a notice of inclusion on the jury roll or a jury summons should be required to complete a form either claiming exemption from jury duty or notifying the Sheriff of the reasonable adjustments required by that person to participate as a juror.

• All relevant personnel, including judicial officers and court staff, should be given the opportunity to participate in professional awareness activities that focus on practical measures to facilitate the inclusion of blind or deaf persons as jurors. The Judicial Commission should develop supporting materials and procedural guidelines as part of this process.104

In October 2016, the need for state-based legislative change to enable people with disability to participate as jurors was highlighted through the case of Lyons v State of Queensland [2016] HCA

101 NSW Law Reform Commission, Blind or deaf jurors, Report 114 (September 2006), available at http://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-114.pdf (accessed 13 February 2017). 102 Ibid, at ix. 103 Ibid, at ix. 104 Ibid, at x.

Public Interest Advocacy Centre • Improving access for all • 33 38.105 In this case, the appellant, Ms Lyons, was a profoundly deaf person who had been excluded from jury service because she required the services of an Auslan interpreter. Ms Lyons alleged that this constituted unlawful discrimination contrary to the Anti-Discrimination Act 1991 (QLD) by the State of Queensland.

However, the Court held that, absent specific legislative provision, Queensland law did not permit an Auslan interpreter to be present during jury deliberations, and that the appellant was therefore not qualified to serve as a juror and the Deputy Registrar was required to exclude her from the jury panel.

Each state and territory jurisdiction’s relevant jury legislation differs in the specific provisions regarding eligibility of jurors. This indicates the need for harmonised legislative change across Australia.

At a federal level, the Australian Law Reform Commission recommended in August 2014 (at Recommendations 7-12 to 7-15) that the Federal Court of Australia Act 1976 (Cth) be amended to provide that:

• a person is qualified to serve on a jury if the person can be supported to understand retain, use and weigh information and communicate the person’s decisions to the other members of the jury and to the court;

• the trial judge may order that a communication assistant be allowed to assist a juror to understand the proceedings and jury deliberations;

• a communication assistant be required to swear an oath or affirm to faithfully communicate the proceedings or jury deliberations; and

• a communication assistant be permitted in the jury room during deliberations without breaching jury secrecy principles.106

6. Conclusion People with disabilities in Australia still face many barriers to equal access to goods, services, facilities and the equal participation in society. There remains much work to be done to ensure accessibility of existing goods, services and facilities. It is also critical to ensure that accessibility is guaranteed for new systems and technologies. People with disability should not be required to fight for accessibility and it must not be an afterthought.

105 Lyons v State of Queensland [2016] HCA 38 available at http://eresources.hcourt.gov.au/downloadPdf/2016/HCA/38 (accessed 13 February 2017). 106 ALRC, Equality, Disability and Capacity in Commonwealth Laws, above n 97, at 19 (Recommendation 7-13) – (Recommendation 7-15).

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