Report
Date:
4 June 2021
Security Level: IN CONFIDENCE
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To:
Hon Carmel Sepuloni, Minister for Disability Issues
Accelerating Accessibility: Legislative approach to Act
developing new enforceable accessibility standards
Purpose of the report
1
This report seeks your agreement to the legislative approach to developing new
enforceable accessible standards within the future accelerating accessibility system.
Executive summary
2
The accelerating accessibility work programme aims to create a system that will
progressively remove the barriers preventing every New Zealander from fully
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participating in all aspects of their community and society. Legislation is only one
component of accelerating accessibility and will need to sit alongside other key
components (eg institutional arrangements to drive change and other policy
interventions such as education and awareness building) to support and affect social
change.
3
In June 2020, Cabinet agreed to officials progressing further work on the detailed
aspects of a legislative framework and other mechanisms to accelerate accessibility
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[CAB-20-MIN-0295 refers].
4
In May 2021, you provided a verbal update to Cabinet on the work undertaken to
date on the accelerating accessibility programme, signalling that you would be
the
seeking Cabinet agreement to a final policy proposal in September 2021
[REP/21/5/484 refers]. In this update, you set out the different ways that legislation
could be used to accelerate accessibility, emphasising to Cabinet that a balance
needs to be struck in the approach between:
4.1 legislation creating new powers and functions that will direct all New Zealanders
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(including the public sector, business, and wider society) to consider and
prioritise the removal of accessibility barriers.
4.2 legislation remaining flexible enough to allow accessibility outcomes to be
realised in a broad number of ways, ensuring that it can be future proofed. This
consideration recognises that as every individual has different access needs
there is no one ‘universal’ form of accessibility. Transformation could be costly
and that in some cases, will need to be realised over a long period of time.
5
Officials are working in partnership with the Access Alliance to develop the detailed
powers and functions that a new legislative framework will need to enable. Any
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legislative framework needs to set a wide-reaching mandate for the systematic
review of accessibility barriers, setting out processes and powers in legislation to
ensure their effective prevention and removal.
6
We expect that a new accessibility system will need a range of powers and functions
to create change. Government leadership around accessibility will need to be
strengthened, establishing policy work programmes around key life areas, alongside
The Aurora Centre, 56 The Terrace, PO Box 1556, Wellington – Telephone 04-916 3300 – Facsimile 04-918 0099
education and public awareness raising to change attitudes towards accessibility.
Other approaches could include funding new accessibility initiatives or research,
publication of accessibility data or establishing new training around accessibility.
Ensuring that the new framework can adapt and respond to different accessibility
barriers and take the most appropriate action to remove those barriers will be key to
the system’s success.
7
Before providing you with advice on the specific detailed design of the legislative
framework and the required powers and functions that will drive this change, officials
are seeking your direction on one aspect the approach to creating new enforceable
accessibility standards.
8
Within a new accelerating accessibility system, there may be scenarios in which new 1982
enforceable accessibility standards are required to ensure that accessibility outcomes
are achieved. While this may be a tool of last resort, as one of the most robust
functions of a new accessibility system, the approach taken to this power will shape
the overall detailed design of the accessibility system.
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9
We have identified two potential approaches to how a new system could enable the
creation of new enforceable accessibility standards:
9.1 A function within legislation that enables an accessibility body to make
recommendations to Ministers on new enforceable accessibility standards to sit
within existing relevant legislative and regulatory regimes and be administered
by existing regulators.
9.2 A function within legislation that enables an accessibility body to make
recommendations to Ministers on new enforceable accessibility standards to sit
within a brand-new accessibility regulatory regime. Under this model, the
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Accessibility Act would function as ‘over-arching’ legislation, drawing in specialist
legislation related to accessibility (such as for building, education, employment,
environment) underneath one Act.
10 Officials recommend that the first approach will strike the best balance between
ensuring that accessibility barriers are identified, and steps taken to remove them,
while providing the flexibility to do this in a way that works.
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11 The Access Alliance have a concern over the proposed approach. While they note that
the preferred approach in the report will still achieve significant and major gains for
accessibility, they are concerned over situations in which there is no suitable
regulatory authority to enforce a new accessibility standard. In this situation, there
the
may be a requirement to amend relevant primary legislation to create new powers to
enforce an accessibility standard. This may be a time-consuming process.
12 To address this concern, the Access Alliance are proposing that we establish a mixed
model in legislation that could both establish new accessibility regulations under the
Accessibility Act along with new regulations in other existing regulatory regimes.
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13 Officials acknowledge this concern but consider the likelihood of this situation
occurring as low, due to New Zealand’s comprehensive legislative and regulatory
system and the fact that a regulatory response will only be one of the tools for
removing accessibility barriers. Gaining agreement to this mixed approach within
legislation will be challenging without a clear understanding of when or whether those
powers would be required.
14 Should you agree with the proposed legislative approach to creating enforceable
standards, officials will provide you with further advice on the detailed design of the
new accelerating accessibility system. This advice will seek decisions on the other
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powers and functions that we consider necessary to meet the objectives of the
accelerating accessibility programme. This further advice will form the basis of a
Cabinet paper seeking agreement to the final policy approach to accessibility for you
to present to your colleagues in September.
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Recommended actions
It is recommended that you:
1
note that a new accelerating accessibility system will require a broad range of powers
and functions to create change, including in some circumstances the ability to develop
enforceable standards
2
note that officials recommend a legislative approach to developing enforceable
standards that would enable them to be incorporated into existing legislative and
regulatory regimes
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3
agree that officials further develop this legislative approach to enforceable
accessibility standards as part of the wider accelerating accessibility legislative
framework
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Agree / Disagree
4
note that the Access Alliance has expressed concern over one aspect of the proposed
approach, but that officials consider that this is a risk that can be managed
5
note that officials have discounted the option of creating a new standalone
accessibility regulatory system under the Accessibility Act
6
note that further policy work will continue, in partnership with the Access Alliance, to
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determine the more detailed aspects of a new accessibility system before a final
proposal is presented to Cabinet
7
note that following your agreement to the preferred legislative approach to developing
new enforceable accessibility standards, officials will consult with relevant public sector
bodies and a broad range of external experts on the detailed design of a future
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accessibility system
8
note that officials propose that final policy decisions are sought from Cabinet in
the
September 2021
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Julia Bergman
Date
General Manager
Disability, Seniors and International Policy
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Hon Carmel Sepuloni
Date
Minister for Social Development and
Employment
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It is well established that change is needed to improve accessibility
in New Zealand
15 In June 2020, Cabinet noted that disabled people experience disproportionate
disadvantage in many areas of life. It was agreed that the New Zealand Government
needs to address the rights, needs and concerns of disabled people through work on
accessibility. We know that change is needed because:
15.1 One in four New Zealanders have invisible or visible disabilities and experience
barriers in everyday life hindering their ability to participate in society.
15.2 Knowledge and awareness of accessibility barriers in New Zealand is inconsistent.
It can be difficult for people experiencing accessibility barriers to effectively bring
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these to the attention of decision makers, and many policies, services and
buildings are designed by people who are unaware of the barriers people face.
15.3 In New Zealand, there is no coordinated, effective system to remove or reduce
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these barriers, or to prevent accessibility barriers in the future. Currently, the
accessibility system is driven by many actors across a range of sectors, and there
is no single point of leadership driving change. Existing regulation on accessibility
is fragmented and has been criticised by access advocates for its lack of clear
direction and incentives.
16 Addressing these issues and ensuring all New Zealanders can fully participate in
society will require an enabling, responsive and progressive framework for improving
accessibility for disabled people. Any framework will therefore need to achieve the
following objectives:
16.1
Provide enhanced leadership and accountability for the identification and
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removal of accessibility barriers
This will ensure that there is a clear focus and drive to address systemic
accessibility issues in a way that the current fractured system for addressing
accessibility barriers is unable to do.
16.2
Create clear processes for considering and removing barriers
This will enable a consistent and effective approach to removing accessibility
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barriers, including the establishment of policy work programmes and strategies
to remove accessibility barriers, and the ability to develop both voluntary and
enforceable accessibility standards where appropriate.
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16.3
Incorporate the voice of expertise into decision making
The voices of those with expertise, including disabled people, older people,
family, whānau, Māori, carers and representatives from business and wider
society will need to be incorporated into decision making around the identification
and removal of accessibility barriers.
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16.4
Build knowledge and awareness of accessibility barriers
This will ensure that all New Zealanders understand the barriers that people face
to full participation in society. Creating understanding and awareness of the
accessibility challenges people face will be a key driver to creating effective
change.
There are a number of key design principles that need to be
incorporated into a new accessibility system
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17 Creating an effective system to accelerate accessibility across New Zealand is a
significant task. Accessibility barriers are evident across almost every aspect of
society and therefore systematically removing them will require careful consideration.
18 Officials have identified a series of key design principles that will need to be built into
the new accelerating accessibility system to achieve the programme’s ambitious
objectives:
18.1
Flexible and progressive
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The design of the system needs to enable accessibility to be achieved
progressively, recognising that existing barriers touch all aspects of life.
Accordingly, any system of law, policy, institutions, and processes will need to be
flexible, empowering a broad range of both legislative (eg creation of new
enforceable accessible standards) and policy interventions (eg incentive schemes
or new dedicated funding) to drive change. This will ensure that governments
can set priorities to resource accessibility measures and ensure that obligated
parties have time to meet new accessibility objectives.
18.2
Transparent, consistent, equitable
Any new accessibility system must bring all New Zealanders on the accessibility
journey. It will therefore be important that:
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• a Te Tiriti o Waitangi framework is embedded from the outset and is
apparent across the design of the accessibility system, with the values of
kāwanatanga (partnership), rangatiratanga (protection, revitalisation and
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honouring) and ritenga (participation) underpinning the framework
• upholds international declarations and conventions, such as the United
Nations Declaration on the Rights of Indigenous Peoples, and the United
Nations Convention on the Rights of Persons with Disabilities (UNCRPD)
• there are predictable and consistent accessibility outcomes across the
system.
18.3
Universal
The Act must enable measures to be taken that can influence and change
behaviours towards accessibility across all areas of society.
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18.4
Inclusive and easy to understand
A new system needs to operate in a way that is itself accessible, ensuring
disabled people are involved in all aspects of decision making.
19 It will be key that the accelerating accessibility work programme also considers and
aligns with other ongoing disability-related work programmes, including system
transformation. You and the Minister of Health have directed Ministry of Social
Official
Development (MSD) officials to work with the disability community to consider a
broader scope for system transformation. Your September 2021 system
transformation Cabinet paper will include initial advice on a broader scope including
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outlining what change could look like and how this fits with other work underway
across government. Work on a broader scope will consider all functions within the
cross-government disability system and new machinery of government and
institutional arrangements may be recommended.
20 While work has been undertaken on the different ways these design principles could
be realised within this new system, we are seeking your direction on the scale of
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powers and functions that are required.
Careful consideration is required around the powers and functions
set out in new accessibility legislation
21 Policy work to date has looked at the variety of purposes and different avenues of
influence an Accessibility Act could have. Any new legislation will need to provide
enhanced leadership to enable the identification and review of accessibility barriers to
allow their subsequent removal.
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22 In considering the powers and functions of legislation that could affect this change,
there is a careful balance that needs to be struck between a legislative approach that
has the power to ensure accessibility barriers are removed, while ensuring there is
enough flexibility that this can be achieved in a number of ways.
23 New legislation needs to have powers and functions to provide assurance to the
disabled community that accessibility barriers are being actively removed. Such
legislation needs to build awareness across society on the need to be accessible and
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set new expectations on what is required from parties to ensure that they identify
and remove accessibility barriers. These components will be critical to the
legislation’s success and its acceptance by the disabled community.
24 However, the powers and functions required to create this change also need to be
balanced with a need for the legislative approach to be flexible. Flexibility is
important for a number of reasons:
24.1 As every individual could have a range of access needs, the system may need to
enable accessibility outcomes to be realised in new and innovative ways – the
more prescriptive legislation is on how accessibility should be realised, the
harder this will become.
24.2
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Currently, the cost of accessibility barriers is largely met by disabled people,
other groups with access needs and their whānau. While it is necessary that
change is required to spread these costs more evenly, this change will be a
significant adjustment that will move these costs to both the public sector,
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business and wider society. As a result, it will be important that legislation is
designed in such a way that it does not create unrealistic obligations that cannot
be met.
24.3 Failure to create an adequately flexible system could mean that legislation is not
‘durable’, creating the risk that the legislation is not future proofed.
25 Taking a balanced approach between these two positions in any legislative approach
will therefore be crucial in ensuring both the legislation’s effectiveness and its
longevity.
We are seeking your direction on the scope of powers that the new
accessibility legislation will have to create enforceable accessibility
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standards
26 We would expect that a new accessibility system will need a range of powers and
functions to create change. Government leadership around accessibility will need to
continue, such as through the establishment of policy work programmes and
strategies, alongside education and public awareness raising to change attitudes
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towards accessibility. Other components could include funding new accessibility
initiatives or research, publication of accessibility data or establishing new training
around accessibility. Ensuring that the new framework can adapt and respond to
different accessibility barriers and take the most appropriate action to remove those
the
barriers will be key to the system’s success.
27 One of the functions of a future accessibility system will be its ability to establish new
enforceable accessibility standards in legislation.
28 The current accessibility system relies on voluntary standards or guidance and has in
some cases reinforced a societal attitude that accessibility is a secondary
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consideration. Many in the disability community have identified this as the reason for
slow progress on accessibility issues and have heavily advocated for the new
accelerating accessibility system to include mechanisms to establish enforceable
accessibility standards.
29 While enforceable standards will not be the answer to removing all accessibility
barriers, and in many cases will be a tool of last resort, there will be some instances
in which higher rates of compliance with an accessibility standard will only be
achieved through meaningful enforcement, given effect through law.
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30 A decision is required around the approach to this function, as this will have flow on
impacts to the rest of the design of the accessibility system.
31 There are two broad approaches in which a new accessibility system could establish
new enforceable standards:
31.1 A function within legislation that enables an accessibility body to make
recommendations to relevant Ministers on new enforceable accessibility
standards. Should these recommendations be agreed, the relevant public sector
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agency responsible for that legislative or regulatory system would be responsible
for establishing and enforcing that new standard.
31.2 A function within legislation in which an entity can recommend to responsible
Ministers that new enforceable accessibility standards be developed and set out
under the authority of the Accessibility Act. Under this model, the Accessibility
Act would function as ‘over-arching’ legislation, drawing in specialist legislation
(such as for building, education, employment, environment) under one Act. This
approach would likely require the establishment of a tribunal to fulfil a judicial
function, with new resources required to carry out inspections, provide
mediation services, serve infringement notices and set and enforce penalties for
non-compliance.
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32 Both approaches would require careful design in legislation and will require extensive
consultation with existing public sector regulators. Following your decision on a
recommended approach, officials will consult with existing public sector regulators
and provide you with further advice on the detailed design of that approach.
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We consider that the first approach to creating enforceable
accessibility standards will be the most effective
33 Officials preferred approach to creating enforceable standards, where there is a clear
need for this type of intervention, is to enable an accessibility entity to recommend
new enforceable accessibility standards to Ministers and have these standards
incorporated within the most relevant existing legislative or regulatory regime.
34 Spreading the responsibility for establishing and enforcing accessibility standards
across existing regulatory and legislative regimes will ensure that those with relevant
policy and regulatory expertise are the ones administering and enforcing new
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standards. For instance, should there be agreement to new enforceable accessibility
standards to be developed around Transport, we would expect this to be developed
and enforced by the relevant regulator in that space. Making other public sector
regulators responsible for considering and acting on accessibility barriers treats
accessibility as it needs to be treated – as everyone’s responsibility.
35 An approach that incorporates accessibility standards into existing regulatory regimes
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will likely be a more cost-effective way of establishing new enforceable accessibility
standards. Utilising existing regulatory and legislative regimes will enable a new
accelerating accessibility system to use existing enforcement and compliance
resource already in place across government. It also limits the need to replicate
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subject specific regulatory and policy expertise within the accessibility entity, instead
relying on resources already in place across relevant public sector regulators.
36 This approach will also ensure that compliance measures developed are proportionate
and in line with existing approaches to enforcement and compliance within that
jurisdiction.
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37 This would be the simplest system to establish and administer. Establishing a
function within legislation for an accessibility entity to make recommendations to
Ministers on new enforceable accessibility standards to be incorporated into existing
regulatory and legislative systems will be a relatively straightforward function to
establish in legislation. There are existing examples of entities with this power, ie the
Law Commission and the Commerce Commission.
38 We have not yet consulted with other public sector agencies on this approach,
however following your preference around the agreed approach we will look to
engage widely to seek views.
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Officials do not advise taking an approach that would create a new
and separate accessibility regulatory system
39 Officials considered whether an Accessibility Act could be used to establish a new
accessibility regulatory system. This type of Act would have created an entity with
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powers to create new enforceable accessibility standards and house these under the
Accessibility Act.
40 Where the recommended legislative approach would see an entity recommend the
development of enforceable standards within a regulator’s existing regulatory or
legislative system, this approach would see a new accessibility entity become a
regulator.
41 There are benefits to this approach. If there were to be situations in which there is no
suitable regulatory authority to enforce a new accessibility standard, an ability to
create new accessibility regulations under the Accessibility Act could circumvent the
need to amend other forms of primary legislation. This approach could also mitigate
the potential of creating accessibility silos across multiple areas of legislation.
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42 Despite these benefits, officials do not see this as a viable approach. It would be
extremely complex due to the number of interactions that this new regulatory system
would have with a wide range of other forms of primary and secondary legislation.
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43 Operationalising this approach would also be challenging. Establishing a body with
powers to amend other forms of legislation would be significantly hard to pass into
law. The only way in which this approach could be achieved would require officials to
undertake the work that is required to identify accessibility barriers and set out the
most appropriate approach to removing those barriers prior to passing legislation.
This would significantly delay the time until legislation would be able to be passed.
44 It will be a costly approach that would require substantial resources to deliver the
range of regulatory powers and functions that would be required. This could include
the establishment of a tribunal to fulfil a judicial function and resources to carry out
inspections, provide mediation services, serve infringement notices, and set financial
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and other penalties for non-compliance.
45 The Access Alliance are supportive of a mixed model that could both establish new
accessibility regulations under the Accessibility Act along with new regulations in
other existing regulatory regimes. This approach would address concerns over
instances in which there may be no suitable legislative framework in which new
accessibility regulations could be placed.
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46 Officials acknowledge this concern but consider this a low risk due to New Zealand’s
comprehensive legislative and regulatory system and the fact that a regulatory
response will only be one of the tools for removing accessibility barriers. It would also
be challenging to establish these types of powers within legislation without a clear
the
understanding of when or whether those powers would be needed.
We will provide you with further advice on the detailed design of
the accessibility system
47 Following your decision on the proposed approach to creating enforceable
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accessibility standards, officials will provide you with further advice on the other
powers and functions that a new accelerating accessibility system will require for it to
be successful.
48 A more detailed overview of what this advice will cover has been attached as an
annex
(Annex 1) but will broadly cover:
48.1 The recommended approach to developing and establishing key life areas (these
have previously been referred to as domains of accessibility)
48.2 The functions required to effectively identify accessibility barriers across a key
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life area
48.3 The functions and processes that will enable identified accessibility barriers to be
considered and removed
48.4 The accountability measures in the system to ensure that appropriate measures
are being undertaken to remove accessibility barriers
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49 We are mindful of our responsibility to ensure that a Te Tiriti o Waitangi framework is
incorporated within the detailed design of the accelerating accessibility system.
Further advice detailing the range of powers and functions of the new accelerating
accessibility system will cover how we are incorporating Te Tiriti into this new
system.
50 In developing this advice, officials are looking at a range of existing government
levers to ensure that, where we can, we are drawing from legislative models with
powers and functions that have been successful in the delivery of their objectives.
Officials are engaging with a broad range of stakeholders on the
potential design of the new accelerating accessibility system
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51 We are continuing to develop our approach to engagement with the business sector.
First, we are developing a short survey to raise awareness about the government’s
commitment, to and the benefits of, accelerating accessibility, and to gather
information about what is preventing businesses from improving accessibility. The
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second approach is to test options for a legislative framework with trusted business
leaders.
52 We are also developing an engagement approach with other agencies to get their
early view on the design of the new accelerating accessibility system. We are mindful
that any new system will have impacts on other agencies, so we will ensure that we
consult extensively before the final policy proposal is presented to Cabinet in
September 2021.
53 We have also reached out to a range of experts to seek their views on the best
approach to accelerating accessibility in Aotearoa. This includes those with extensive
legal and regulatory experience and business expertise.
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File ref: REP/21/6/585
Responsible manager: Karin Dalgleish, Manager, Disability
Official
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Annex 1 – Further advice on the detailed design of the accessibility system
Key Life Areas
One of the new functions of the accessibility system will be to set out the process in which
key life
areas are established. Our experience from looking at overseas jurisdictions that
have established new legislative systems to remove accessibility barriers has shown the
importance of grouping accessibility issues together into domains of accessibility (we have
referred to these as key life areas in previous forms of advice). Key design questions
around this function include:
• Whether certain key life areas should be designated at the outset, whether they
should be created over time or a mixed approach which designates a few at the
outset with the ability to add more
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• The process in which new key life areas are developed, considering who needs to
be consulted in their development and how final decisions are made on these
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• Whether key life areas should be designated in primary legislation or set out in a
different way, ie Cabinet mandate.
Identification of accessibility barriers
Once a key life area has been decided upon, there will need to be a function or functions
that enables barriers across a key life area to be identified. These could include:
• Functions to conduct inquiries, reviews and studies around a key life area
• Consultation requirements to ensure that data is collected around disabling
experiences across a key life area
• A function to receive notifications around disabling experiences.
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Functions to remove accessibility barriers
Once relevant accessibility barriers have been identified across a key life area, there will
need to be functions that enable the removal of these barriers. Functions could include:
• Education and awareness building, making information and guidance around
accessibility available
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• Process for reviewing and updating existing accessibility standards, along with
establishing new voluntary accessibility standards and guidance where
appropriate
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• Process for creating new enforceable accessibility standards
• Establishing advisory groups or committees, ensuring that expertise, including
disabled people and their representative organisations, older people, family,
whānau, Māori and carers, representatives from business, the wider civil society
and government agencies, is incorporated into the development of new
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accessibility measures.
Accountability measures
There will need to be processes within the new accessibility system to ensure that barriers
are being proactively removed. Functions to ensure this happens could include:
• Review periods within legislation to track progress
• Powers to monitor and receive data around compliance with accessibility
measures
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• Powers to review and report on how well regulatory bodies are enforcing or
upholding relevant accessibility standards
• Requirements to respond to recommendations made by an accessibility entity
within a set period of time.
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