Updated as at 28/3/2001.

1. Disability Discrimination

A Human Rights and Equal Opportunity Commission (HREOC) report (1) found physical barriers, affordability and equipment access barriers are preventing people with disabilities from having effective access to e-commerce and new information technology services.

2. Right of access to information

Human rights commitments made by Australian governments under various international agreements require:

* people have access to information, government services and opportunities in areas such as education and employment;
* people have access to commercial services necessary to secure an adequate standard of living without unnecessary restrictions and without discrimination on grounds such as age or disability;
* signatories ensure equal access and treatment in public services and programs and ensure these rights without any discrimination.(2)

Ensuring people with disabilities have access to appropriate internet and information technology resources falls within these obligations.

Commonwealth, State and Territory legislation make these obligations legally binding. The Commonwealth government’s Best Practice Model for Business(3) requires business (in accordance with the legislation) to make reasonable adjustment in the provision of goods and services to ensure they are accessible to people with a disability.

3. Disability discrimination legislation

Disability discrimination legislation has been enacted in each State and Territory. The legislation requires persons with disabilities have the same basic human rights as other members of Australian society(4) and additional rights to ensure specific needs are met including:

* the right to services to attain a reasonable quality of life;
* the right to choose their own lifestyle, have access to information provided in a manner appropriate to their disability and cultural background and allow informed choice; and
* the right to receive services in a manner which least restricts their rights and opportunities.

The legislation requires services to be designed to ensure the conditions of everyday life of persons with disabilities are the same as, or as close as possible to, norms and patterns which are valued in the general community.(5)

The prevalence of the internet as a means of communicating, transacting and conducting business raises the issue of accessibility of those services to people with disabilities. Online service providers and web developers must ensure the services and sites they provide are accessible to all members of the community.

(a) Disability Discrimination Act 1992 (Cth)(6)

As well as separate legislation in each State and Territory, the Disability Discrimination Act (Act) makes disability discrimination against the law in the areas of:

* employment and work related areas; and
* goods, services and facilities.

The Act applies to commercial and government websites.

(b) Employment and work related areas

Discrimination is only allowed if a disabled person cannot do the "inherent requirements" of the work or the person needs "adjustments" to equipment which would be an "unjustifiable hardship" for the employer.

The "inherent requirements" of a job are not defined in the legislation but generally refer to what is necessary to get the basic job done.

Adjustments are alterations or changes designed to assist a person with a disability. For example, installing ramps for wheelchair access or in the case of sensory impairments, modified telephones or internet with voice enabled software. An employer may also be required to provide services or facilities to an employee with a disability.

Unjustifiable hardship for the discriminator involves identifying:

1. what adjustments the person needs; and
2. likely effects on anyone concerned.

How the adjustments will affect the employer, the business, other employees, customers and the person with the disability should be taken into consideration. For example, the costs of installing special software may be too expensive for a small employer or small business.

The legislation allows anyone who provides goods or services to develop Action Plans(7). If an Action Plan has been lodged with the Commission, it will be taken into account when deciding whether there is unjustifiable hardship.

(c) Goods, services and facilities

Disability discrimination is against the law in the provision of goods, services and facilities. This includes:

* free services;
* goods, services and facilities provided by governments;
* professional services; and
* media and television services.

Discrimination is allowed if "adjustments to enable use of the goods, services or facilities would be an "unjustifiable hardship" for the provider.

(d) Who is affected by the legislation?

Discrimination legislation may apply to any person who uses the internet or online services and to any person or organisation that provides access to the internet or online services. Research has shown that people access online services in the following places(8):

* Work and home;
* Friend or neighbour’s house;
* TAFE or other tertiary institution;
* Public library;
* Shops, store or telecafes;
* School; and
* Government agencies or departments.

Organisations and service providers involved in providing the above may need to comply with discrimination legislation.

In some cases the technologies such as email, may be used for discriminatory purposes, for example sending sexually discriminating emails.(9)

(e) Case studies

A telecommunications provider discriminates against a visually impaired person by not supplying a teletypewriter on the same basis it supplied standard telephones to non-visually impaired people in the same community.(10) This decision may have implications to the supply of modified technology (hardware and software) in an online context.

A website may discriminate if it fails to allow access by all members of the public to public information presented on the site. For example, a website may be designed in a way that the visually impaired cannot enlarge the text.(11)

4. Legal barriers to reproduction of material

Recent changes to copyright legislation ensures the reproduction of material for the purpose of making it accessible to people with disabilities does not infringe copyright.

If copyright holders retain an absolute right of control over digitisation of their works(12) the failure or refusal to make the copyright material available on reasonable terms may expose copyright holders to liability under the Act.

5. Electronic Transactions

Legislation gives equivalent recognition to electronic and paper communications but does not require or prohibit any particular electronic format.(13) Some digital communications may not be in a format accessible to disabled or impaired members of the community. The provider of such a communication may be liable under the Act.

6. W3 Web Content Accessibility Guidelines(14)

The World Wide Web Consortium ("W3C") (http://www.w3.org) was created in October 1994 "to lead the World Wide Web to its full potential by developing common protocols that promote its evolution and ensure its interoperability." W3C has more than 400 Member organisations from around the world.

In May 1999, the W3C launched the Web Access Initiative which is a set of content guidelines for web authors. The Guidelines explain how to make web content accessible to people with disabilities and is intended for all web content developers.

* Provide equivalent alternatives to auditory and visual content.(15)
* Don’t rely on colour alone.(16)
* Use markup and style sheets and do so properly.(17)
* Clarify natural language usage.(18)
* Create tables that transform gracefully.(19)
* Ensure that pages featuring new technologies transform gracefully.(20)
* Ensure user control of time-sensitive content changes.(21)
* Ensure direct accessibility of embedded user interfaces.(22)
* Design for device independence.(23)
* Use interim solutions.(24)
* Use W3C technologies and guidelines.(25)
* Provide content and orientation information.(26)
* Provide clear navigation mechanisms.(27)
* Ensure that documents are clear and simple.(28)

Other practical approaches include using the Bobby program. Bobby is a public software program(29) designed to evaluate website accessibility.



Other relevant Fact Sheets:

Sources of Law
* Disability Discrimination Act 1992 (Cth)
* Discrimination Act 1991 (ACT)
* Anti-Discrimination Act 1992 (NT)
* Anti-Discrimination Act 1977 (NSW)
* Equal Opportunity Act 1995 (VIC)
* Equal Opportunity Act 1984 (SA)
* Equal Opportunity Act 1984 (WA)
* Anti-Discrimination Act 1991 (QLD)
* Sex Discrimination Act 1984 (Cth)
* Copyright Act 1968 (Cth)
* Electronic Transactions Act 1999 (Cth)

End Notes
1. Accessibility of electronic commerce and new service and information technologies for older Australian and people with a disability: Report of the Human Rights and Equal Opportunity Commission on a reference from the Attorney-General 31 March 2000
2. International Covenant on Civil and Political Rights (articles 25 and 26)

3. See Commonwealth Government e-commerce guidelines titled "Building Consumer Sovereignty in electronic Commerce: A best practice model for business"

4. See for example, Disability Services Act 1993 (NSW) Schedule 1

5. See for example, Disability Services Act 1993 (NSW) Schedule 1

6. There is similar discrimination legislation in each State and Territory:
Discrimination Act 1991 (ACT)
Anti-Discrimination Act 1992 (NT)
Anti-Discrimination Act 1977 (NSW)
Equal Opportunity Act 1995 (VIC)
Equal Opportunity Act 1984 (SA)
Equal Opportunity Act 1984 (WA)
Anti-Discrimination Act 1991 (QLD)

7. The Disability Discrimination Act 1992 (Cth) does not require service providers to prepare and implement Action Plans. But if a business plan is prepared, it must include certain things (section 61)

8. HREOC report on "Accessibility of electronic commerce and new service and information technologies for older Australian and people with a disability"

9. For example, in Australia sexual harassment is a legally recognised form of sex discrimination. Email, like other communication can be used as a medium of unwanted attention amounting to harassment for the purposes of the relevant legislation. The inappropriate use of email, screen savers and internet may also amount to sexual harassment in some circumstances

10. Scott v Telstra [1995] EOC 92-717

11. Maguire v Sydney Organising Committee for the Olympic Games [2000] FCA 1112 (3 August 2000). A complaint about the internet was made to the Human Rights and Equal Opportunity Commission (HREOC) by Bruce Maguire who is blind. Mr Maguire complainedthe Official Olympic Website was inaccessible to him. HREOC found that the SOCOG website could be made accessible to Mr Maquire at a low cost within a short period of time however SOCOG refused to comply with the orders. At a hearing in November, SOCOG was ordered to pay damages of $20,000 to Mr Maguire. HREOC found that the design of the website was discriminatory as it failed to allow access to Olympic information. HREOC rejected SOCOG’s assertion that to make the website accessible was "too difficult, too onerous, too time consuming, too risky and too expensive."

12. Copyright Act 1968 (Cth)

13. Electronic Transactions Act 1999 (Cth)

14. Full description of the Guidelines can be found at http://www.w3.org

15. Provide content that, when presented to the user, conveys essentially the same function or purpose as auditory or visual content

16. Ensure that text and graphics are understandable when viewed without colour

17. Mark up documents with proper structural elements Control presentation with style sheets rather than with presentation elements and attributes

18. Use markup that facilitates pronunciation or interpretation of abbreviated or foreign text

19. Ensure that tables have necessary markup to be transformed by accessible browsers and other user agents

20. Ensure that pages are accessible even when newer technologies are not supported or are turned off

21. Ensure that moving, blinking, scrolling or auto-updating objects or pages may be paused or stopped

22. Ensure the user interface follows principles of accessible design: device independent access to functionality, keyboard operability, self voicing etc

23. Use features that enable activation of page elements via a variety of input devices

24. Use interim accessibility solutions so that assistive technologies and older browsers will operate correctly

25. Use W3 technologies and follow accessibility guidelines. Where it is not possible to use a W3C technology, or doing so results in material that does not transform gracefully, provide an alternative version of the content that is accessible

26. Provide context and orientation information to help users understand complex pages or elements

27. Provide clear and consistent navigation mechanisms, orientation information, navigation bars, a site map etc to increase the liklihood that a person will find what they are looking for at a site

28. Ensure documents are clear, simple and easily understood

29. Bobby can be downloaded from http://www.cast.org/