Recognising the need for universal design approaches through engagement with the United Nations

by Dr Ben Gauntlett - Disability Discrimination Commissioner at the Australian Human Rights Commission

In Australia 4.4 million people live with disability, each of whom has their own lived experience and unique story. Every person with disability has the right to be treated on an equal basis to other people, to live free from discrimination and to be included in the community. These rights are enshrined in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) but are also a dynamic, living part of the experiences of people with disability.

The CRPD is the most recent international human rights treaty entered into by the international community and was ratified by Australia in 2008. It is created with an understanding of people with disability as the holders of rights, which entitle them to be treated with dignity and respect.

However, the CRPD is also novel in that it recognises the concept of 'universal design' and the importance of universal design to people with disability. Under the CRPD, universal design is the design of products, environments, programmes and services so that they are usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. The concept of universal design does not exclude the use or creation of assistive devices for particular groups of persons with disabilities where this is needed, but seeks to emphasise the importance of inclusive design.

A general obligation exists on all parties to the CRPD, like Australia, to “undertake or promote research and development of universally designed goods, services, equipment and facilities, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines”.(i) The breadth of the obligation concerning universal design reflects its importance in facilitating the meaningful inclusion of people with disability. As a general obligation to the CRPD it underpins specific articles such as those relating to accessibility and the right to independence. In particular, universal design in housing, which makes a house accessible, can radically alter an individual’s ability to live independently and undertake economic and social participation.

Adopting universal design principles is a critical aspect of disability policy in Australia. The CRPD is given effect in Australia though a number of policies and laws, such as the National Construction Code and the Disability Discrimination Act 1992 (Cth). In Australia, it is often thought that the only disability policy that exists is the National Disability Insurance Scheme (NDIS). This is incorrect. A raft of Commonwealth, State and Local government laws and policies impact upon the lives of people with disability in Australia. The interrelationship of these laws and policies is critical. In particular, because the nature of disability is unpredictable and people with disability are diverse, there is a need to design for everyone rather than retrospectively change products, environments, programmes and services when a person with disability is or may be present.

Although Australia has made many significant improvements in its laws and policies relating to people with disability, it still needs to improve on how products, environments, programmes and services are designed. This has been emphasised by the United Nations Committee on the Rights of Persons with Disabilities (Committee).

As a signatory to the CRPD and its Optional Protocol, Australia is assessed by the Committee in relation to its obligations to respect, promote and fulfil the rights of people with disability. As the national human rights institution, the Australian Human Rights Commission (the Commission) supports the Committee by providing an independent report on Australia’s compliance with the CRPD and recommendations on how the rights of people with disability can be fully recognised.

Australia most recently appeared before the Committee in 2019 in Geneva and I had the privilege of providing both an oral statement and submission to the Committee on Australia’s progress with implementing the CRPD.(ii) This allowed me to raise the systemic gaps in Australia’s social policy and ongoing discrimination which has denied people with disability the full enjoyment of their human rights. This includes the lack of a national framework to recognise the legal capacity of people with disability, ongoing indefinite detention of people with disability in the criminal justice system and the sterilisation of women and girls with disability without free, prior and informed consent.

The Commission’s submission recommended that the Committee consider the lack of progress relating to Article 9 (Accessibility) and Article 19 (living independently and being included in the community), including the lack of appropriate, affordable and accessible private and social housing, which severely limits the capacity of persons with disabilities to choose their place of residence.

In Australia, over 96% of people with disability live in the community, many of whom are not able to access housing which meets their needs.iii For people with disability, this lack of housing impacts their ability to live independently, participate in the community and enjoy the highest quality of life. Given approximately 1 in 5 Australians live with disability, housing policy requires a policy and legislative response from all levels of government and both the public and private sector.

The inclusion of universal design principles in housing planning allows people with disability the opportunity to choose their own home, in their own community on an equal basis with others. It also ensures that housing can be adapted to suit different care needs, reduces disability and aged care support costs and increases independence for people with disability.(iv) Despite efforts to increase the availability of accessible housing, only 5% of housing built between 2010 and 2020 met the Liveable Housing Design Silver Standard.(v)

In its final report, ‘Concluding observations on the combined second and third periodic reports of Australia’, the Committee concurred with the Commission’s recommendation that mandated national access requirements are necessary to ensure that Australia fulfils its obligations under the CRPD. The Committee also recommended

Australia increase the range, affordability and accessibility of public and social housing for persons with disabilities, including by implementing a quota for accessible social housing and by developing regulations and standards to guarantee the progressive application of universal design principles in accessible housing.

I am pleased that in April 2021 Australia has moved to progress this recommendation with the Building Ministers’ agreeing to implement national minimum accessibility standards in the National Construction Code 2022 for new houses and apartments.

Since this meeting however, some Australian States have indicated a potential reluctance to implement this agreement. This outcome is regrettable as it means there is a potential breach of Australia’s obligations under the CRPD. Hopefully, all States will realise the benefit of minimum mandatory accessibility standards for new houses and apartments.

Additionally, there is also still an urgent need to increase the amount of social housing and to ensure that social housing embraces universal design principles. But our understanding of universal design and the related concept of accessibility should not be limited to the physical environment. This is particularly critical as key services including communication tools, government information and education are rapidly being digitised.

The Commission recently released the Human Rights and Technology report which demonstrates that people with disability have lower rates of digital inclusion compared to the general community, resulting in exclusion from information and services.(vi)

With the rapid pace of technological innovation and design, we cannot allow people with disability to be left behind and prevented from accessing the expansive benefits that technology brings. We need to ensure accessibility and inclusion for people with disability across all aspects of life. The Commission’s Human Rights and Technology report provides recommendations and insight into how this can be achieved.

We must develop a culture of universal design in all aspects of our society, from housing to technology. When accessibility is considered only at the end of the design process, people with disability are denied the opportunity to fully enjoy their rights to inclusion. This has been recognised through the Commission’s engagement with the United Nations CRPD processes. However, every one of us has the obligation to raise awareness of the responsibility of governments to promote and legislate for universal design approaches.

i United Nations General Assembly 2007, Convention on the Rights of Persons with Disabilities, A/RES/61/106 (24 January 2007) [4]

ii Australian Human Rights Commission 2019, Information concerning Australia’s compliance with the Convention on the Rights of Persons with Disabilities, https://humanrights.gov.au/ourwork/ legal/submission/ information-concerning-australias-compliance-convention-rights-persons

iii Australian Institute of Health and Welfare, People with disability in Australia, p. 164.

iv Gusheh M, Murphy C, Valenta L, Bertram N, Maxwell D 2021, Adaptable Housing for People with Disability in Australia: A Scoping Study, Australian Human Rights Commission, Sydney https://humanrights.gov.au/our-work/disability-rights/publications/ adaptable-housing-peopledisability-australia-scoping-study