On 12 August, Blind Citizens NZ and the Barrier Free New Zealand Trust hosted a forum to discuss New Zealand’s building laws as they apply to people with disabilities. Included were Government officials and representatives from disability organisations, including service providers and consumer organisations, and interested stakeholders. The programme involved presentations from a range of knowledgeable professionals during the morning with discussion occurring during the afternoon.

On 12 August, Blind Citizens NZ and the Barrier Free New Zealand Trust hosted a forum to discuss New Zealand’s building laws as they apply to people with disabilities. Included were Government officials and representatives from disability organisations, including service providers and consumer organisations, and interested stakeholders. The programme involved presentations from a range of knowledgeable professionals during the morning with discussion occurring during the afternoon.

We express our appreciation to Wellington City Council for its support including that it provided an accessible venue and met catering requirements for the entire day.

Outcomes of the day will be available in due course. But here now are some immediate reactions of my own.

I remember back in the 1980s being involved in work to update New Zealand Standard 4121 which deals with access by people with disabilities to public buildings and facilities. Blind Citizens NZ was also involved when the Standard was updated I think around 2001.

Section 118 of the Building Act 2004 states that if provision is being made for the construction or alteration of a public building, reasonable and adequate provision by way of access, parking provisions, and sanitary facilities must be made for persons with disabilities who may be expected to visit or work in that building and carry out normal activities and processes in that building. This doesn’t apply to every building, but it does apply to a whole range of types of buildings typically used by the public.

So what does this mean for us as disabled people. First, it talks about disabled people who visit or work in a building and carry out normal activities and processes in a building. These words imply that we should have a high degree of access to these buildings. After all, if we are to work in a building, we must be able to move with relative freedom throughout that building. Also if we are to carry out normal activities and processes in a building, then again we must be able to move freely throughout that building just like anyone else.

The act also talks about reasonable and adequate provisions by way of access, parking provisions and sanitation facilities. Access refers to our ability to get into and out of the building and move around the building. Also there is a clear requirement for buildings to have toilets and parking facilities disabled people can use.

Finally, although these provisions must be reasonable, which means we can’t demand absolutely everything we could think of, they must also be adequate, which means they actually do need to meet our needs.

Section 119 of the Act is where the above Standard 4121 is cited as a compliance document, meaning that if developers follow this Standard, they will achieve the above access requirements.

Why then do we find that more and more public buildings, even brand new ones, do not comply with the Standard? yes it is true the Standard is now rather out of date. But that is not the real problem.

Presentations made at the forum explained that over the years, the relevant government departments and even the courts have interpreted the Act in such a way that the Standard is only optional. One reason for this is the Building Code itself has its own provisions for access to buildings by people with disabilities. Over the years, the law has come to be interpreted such that developers can comply with the Act by simply following the Building Code. It is pretty obvious I think that if the Standard is merely optional, a developer is likely to only follow the Building Code with its reduced requirements for access. Hence we do find even new buildings today are not as accessible as they should be.

I have read some of these critical determinations myself, and I personally believe they do not stand scrutiny in a legal sense. But they stand as the current law until they are challenged or until Parliament again updates the building laws if it wants to more clearly state its intention that public buildings must be accessible for people with disabilities.

I think it is absurd that s 119 of the Act specifically cites the Standard as a compliance document for the purpose of determining how a building must be accessible to meet the requirements of s 118, and yet the Act is interpreted so this is merely optional. During the Forum we were told that the Human Rights Commission carefully considered seeking a Declaratory Judgment from the High Court. This is a procedure whereby the Human Rights Commission can ask the Court to determine any question as to the construction or validity of a law. The Human Rights Commission appears to be convinced that there is little point in doing this because the interpretation of the current law appears to be settled. I agree that is the case, but I cannot help wondering whether this is simply because nobody has really mounted a determined challenge to try to convince the Court that the Building Code on its own is not sufficient to meet the intention of s 118 that public buildings must have reasonable and adequate access provisions for people with disabilities. This is really the reason why s 119 is in the Act, because it cites the Standard as a compliance document for this purpose. I believe it can and should be argued that the Standard therefore has a status that makes it more than merely optional. After all, a standard that is optional is really not a standard at all.

I would also add that even if the Human Rights Commission did apply to the High Court for a statutory declaration but failed to convince the Court to give effect to the Standard, that would not be a wasted effort, because it would then signal to Government that the building legislation has failed to meet the primary intention of making public buildings accessible to people with disabilities.

So here we are now some thirty years later and the Standard that we need to define what it means for a public building to be accessible is only optional, which means developers don’t actually have to follow it. In fact it goes back even longer in the sense that I understand there were similar access provisions in the old Disabled Persons Community Welfare Act.

I think as a result of the Forum, we now have a clearer picture of the current situation. Unfortunate though it may be, the law is currently interpreted in a way that diminishes the access provisions Parliament has specifically made for us as disabled people. There is no clear agreement on the best way forward. We can only hope that the Government will soon be convinced to do something. After all, now that New Zealand has ratified the United Nations Convention on the Rights of Persons with Disabilities, the Government is obliged to ensure that we disabled people can make full use of public buildings and facilities.