Accelerating accessibility in New Zealand through legislation

On 28 July, the Cabinet Social Wellbeing Committee agreed to push ahead with drafting an accessibility legislative framework from now until May next year.

Access Matters Newsletter

This is great news. From my experience with digital accessibility, accessibility gets peoples’ attention when it is law and when that law is enforced.

Slow progress to date

The Government appears to acknowledge that lack of enforcement has been a barrier to timely uptake to date:

Progress in removing barriers to accessibility in key life areas has been slow in recent years, and accelerating accessibility is a complex task. Accessibility is not well understood or applied, largely due to a fragmented regulatory system, responsibility spread across many central and local government agencies, and a lack of incentives or compulsion in the system to do better.

Cabinet paper: Framework to accelerate progress towards accessibility in Aotearoa New Zealand – Executive summary

As a recovering standardista, an increased compulsion to be accessible sounds exciting!

A brief history of accessibility standards in New Zealand

It sounds like the new legislation will extend far beyond the digital realm, but even there we are still struggling to make headway, 17 years later.

In 2003, Cabinet directed core government agencies to implement the New Zealand Government Web Standards.

Web Standards Cabinet Minute and Paper

I must admit that 2003 is a bit hazy now, but I do clearly remember the introduction of the New Zealand Government Web Guidelines v2.1 (Internet Archive), released in December 2002 and based on the Web Content Accessibility Guidelines (WCAG) 1.0. They marked my introduction to the implications of building in accessibility and were the impetus that I needed to learn more.

Sadly, my experiences at the time also reflected the objections listed in the cabinet paper. Not everyone saw accessibility in a positive light, and there was a fair amount of pushback and passing-of-the-buck, from both Government departments and vendors, over fears of rising development costs and curtailed scope for design and branding:

23. Second, some agencies maintain that they do not need to comply with the Guidelines because their websites target user groups that have the capability to access non-compliant websites or can use adequate alternate means.

24. Third, there is a problem of vendor-driven website design. In some cases, agencies without in-house web design expertise and technical resources have engaged website developers who are unaware of the Guidelines, or who disagree with them. Where agencies rely on the services of such vendors, and do not insist the Guidelines are followed, inaccessible sites can result.

25. Fourth, some agencies are using websites for branding. They argue that following the Guidelines restricts their ability to use some website technologies and web design to market their agency or services.

26. Last, some agencies are concerned with the cost of achieving Guidelines-compliance. They feel that the cost of compliance will either be too high for them to fund from their current baselines, or that the cost of compliance will outweigh any benefits delivered to users of their websites.

Cabinet Paper — New Zealand Government Web Guidelines – Why aren’t more agencies using the Guidelines?

To their credit, the Government pushed ahead anyway, these standards were formalised, then updated in 2010 to reflect WCAG 2.o and again in 2019 to reflect WCAG 2.1.

Accessibility – business as usual?

In 2020,

Most NZ Government organisation websites must comply with the New Zealand Government Web Accessibility and Web Usability Standards. These Standards identify a number of requirements regarding web content, legal and policy issues, and notably web accessibility.

Web Standards risk assessment – Web standards conformance and risk

Note the use of the keyword ‘must’, as this is deliberate. The 2019 Web Accessibility Standard 1.1 also uses this:

2.1.1 Every web page, excluding archived web pages, must meet the Web Content Accessibility Guidelines (WCAG) 2.1 at Level AA (subject to the exceptions set out in Section 3).

Web Accessibility Standard 1.1

The standard references the Internet Engineering Task Force (IETF)’s Key words for use in RFCs to Indicate Requirement Levels, to clarify exactly what ‘must’ means:

MUST This word, or the terms “REQUIRED” or “SHALL”, mean that the
definition is an absolute requirement of the specification.

Key words for use in RFCs to Indicate Requirement Levels

With these absolute requirements in place, it sounds like web accessibility should, must, be business-as-usual. Yet full compliance with WCAG 2.1 Level AA is still a moving target, and people with disabilities still struggle with non-compliant websites. So why is that?

The move to self-auditing

Initially the Government devoted resources to ensure that websites that claimed to be compliant actually were.

These were challenging, even scary times, but Government departments and developers rose to the challenge and we all learned a lot in a short period. It really felt like we were making progress.

But it didn’t take long for the Government’s State Services Commission to realise the huge effort involved in auditing every website within its remit. They formalised the idea of self-auditing, by producing a compliance checklist for businesses to use.

Why is SCC only doing audits on web sites after the compliance date?

You have been able to self-audit your own web sites ever since the guidelines were published. The delay in the compliance checklist has postponed a lot of audits.
SSC also considered it would be wasted effort to audit existing web sites before the compliance date because agencies had sites being redeveloped that may go public before the end of 2005.

Web Guidelines FAQ – Audit for Compliance (Internet Archive)

Nowadays, the Government prefers to use its limited resources to educate, rather than to audit. They employ some passionate people and have some pretty cool endeavours on the horizon. But the task of auditing has fallen on Government departments, who rely on self-assessments to determine whether their websites pass muster.

Reframing requirements as risk

The Government is pretty clear that these standard requirements must be upheld, but they unhelpfully introduce the concept of ‘risk’ to muddy the waters:

Failure to meet any aspect of the Web Accessibility or Web Usability Standard does not, in itself, present a risk. The risk lies in the consequences of that failure.

A “risk” is an event or condition (A) that leads to an outcome (B) that has an impact on the business (C). Without an impact on the business (C), there is no risk.

Web Standards risk assessment – Identify risks

If your organisation is mandated to implement the Standards, it’s important to know how your sites do or do not conform, as the kind and degree of non-conformance may be placing your organisation at risk.

Web Standards risk assessment – Web standards conformance and risk

The inability of an individual or group of individuals to use your site because it’s inaccessible could lead to negative consequences, including reduced uptake of online services and formal human rights complaints.

Web Standards risk assessment – Web standards conformance and risk

Court proceedings for breach of NZ Bill of Rights Act (1990).
Compensation may be payable. Judicial Review proceedings.
Complaint to the Human Rights Review Tribunal for a breach of the Human Rights Act (1993). Damages can be awarded up to $200,000.

Web Standards risk assessment – Risk severity – Legal risk, rating 5: severe

Complaint to the Human Rights Commission for discrimination on the grounds of disability.
Complaint to Ombudsman regarding UNCRPD or decision making process. Breach of Cabinet direction to comply with Web Standards.

Web Standards risk assessment – Risk severity – Legal risk, rating 4: significant

Perhaps this reframing of non-compliance as a potential risk speaks to business owners in a language that they understand. But to me as a black-and-white, logic-driven developer, it infers that there is room for re-interpretation of what is actually required, because if the things that must be done are not done, there is no guaranteed consequence for the business.

Many is the time that I’ve seen web standards requirements swept under the carpet or deferred until some vague idea of a future phase. This happened because the act of fixing an accessibility barrier was seen as more inconvenient than the inconvenience to the user of leaving it in there. In other words, the inconvenience to disabled users was justified, as it inconvenienced the business to fix it.

Putting business needs before human ones

I’m something of a realist these days. While I don’t think that full compliance is impossible, I do support businesses directing remediation efforts to those aspects of their business that most greatly affect users. However this still requires seeing non-compliance as a human issue and feeling some empathy for the users affected by it.

Framing non-compliance as business risk shifts the focus from human needs to those of the business. It might be perfectly acceptable for a business to disregard its obligations and alienate a specific user group, as long as no-one in the affected group actually bothers to go through the hassle of publicly complaining or taking legal action.

This puts the onus on users who are already disadvantaged to somehow stump up the courage, energy, time and money required to initiate legal action against non-compliant website owners.

This approach might work in the US, where there is a whole industry built on making legal action as convenient as possible. But in NZ it just leaves users feeling frustrated, and allows businesses to put their head in the sand and pretend that non-compliance doesn’t have any real consequences.

In summary

The current web accessibility standards have evolved to keep pace with the best practices stated in WCAG. But there’s no real compulsion on businesses to meet them. It’s up to users to take decisive action if their needs aren’t met.

My hope is that the forthcoming accessibility legislative framework puts some brawn and consequence behind both the new and current standards, rather than treating them as just something to aim for. How they’ll achieve this is yet to be seen, but it will be a welcome day when Government regulations have some real teeth again.

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