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No easy victory; earthquake strengthening and access

A long debate ended recently over accessibility rules. It ended with a partial victory for the disability and access community. It’s a partial victory a lot of people contributed to. It also ended with some questions and lessons for how we advocate and work with government.

The biggest lessons are the importance of getting in early and understanding that our advocacy often has to deal with a broad range of government departments and interests. Sometimes there are competing interests and groups all trying to influence government on an issue, including those which might not traditionally be interested in disability issues or rights.

After the Canterbury Earthquakes, the government established the Canterbury Earthquake Royal Commission to look into various issues, including ways to address earthquake prone buildings. During the Commission’s inquiry some building owners said that accessibility and fire safety requirements could be a barrier to earthquake strengthening. It was here that things went wrong. It is also here that a stitch in time could have saved nine.

Instead of talking to the disability and access community to get another perspective, the Commission told the Government to remove the requirement to upgrade accessibility when earthquake strengthening. For over 24 years the Law has said that as long as it is reasonable, building owners should meet access rules when upgrading buildings open to the public. This has meant that buildings across New Zealand have slowly become more accessible to everyone.

The result of the Commission’s recommendation was to significantly weaken current legislation and create a loophole that could be exploited by building owners. It is not clear whether the Commission knew the significance of its recommendation or the likely resistance it would face. The then Department of Building and Housing (Now part of the Ministry of Business, Innovation and Employment) should have known though.

The Department advised the Commission on the accessibility requirements and for me there are big question marks around the quality of the advice it gave (We would later OIA the Department for the evidence it had on accessibility being a barrier for earthquake strengthening – it showed they had nothing beyond the anecdotal comments of building owners). If the Department’s advice had been better informed or disabled people/access experts had been involved in the Commission’s inquiry, the access exemption might have been stopped before it began.

The Department, by then, part of the Ministry of Business, Innovation and Employment picked up the Commission’s recommendations. By now, an estimated 15,000 to 25,000 public buildings were due to be earthquake strengthened. The stakes were high for an access exemption. Hundreds, if not thousands, of buildings could be made accessible, but only if the access exemption was removed or weakened.

Ministry of Business, Innovation and Employment opened up the earthquake strengthening proposals for public consultation. The disability and access community had woken up to the opportunity and the danger. A number of organisation and individuals submitted, including us. The submissions of the disability and access community were opposed, however, by the majority of employers, engineers and building owners, who submitted in favour of the access exemption. Councils were divided on the issue. This would not be an easy fight.

In addition to organisation, like us, individuals also opposed the access exemption. Husband and wife team, Felicity and Julian Emmett started the Disability Protest group, organised a petition and appeared in the media. Unfortunately, Felicity passed away before their petition could be presented to Parliament, but Julian carried on the fight; presenting the petition and talking to the Select Committee.

The earthquake strengthening proposals were put into a draft bill, including the access exemption. The Local Government and Environment Select Committee then considered the Bill and asked for submissions. We did a joint submission this time with the Disabled Person’s Assembly (DPA) and gained support from 14 organisations, including the NGO Health & Disability Network, which has 285 non-profit members. We also gained support from prominent accessibility experts, such as Alexia Pickering. Others submitted as well.

Then there was a very long wait as a general election delayed the Committee process. Finally in June this year, the Committee released an interim report and called for yet more submissions. The news was not good; the access exemption had largely survived intact.

It is safe to say that morale was a bit low by this point. It seemed inevitable that the proposed access exemption would become law and a major loophole would be introduced into the access requirements. Still, it was once more back into the breach with a final joint submission (Just one page this time asking the Committee to consider the decision fairly, I had run out of things to say by this point). Others did final submissions too, including Julian Emmett.

Then in early September, the Committee released the final report. The access exemption was still there, but it had been significantly altered. Surprisingly, the alterations were broadly positive for the disability and access community. The Committee had significantly raised the criteria to qualify for an access exemption.

Building owners now have to show that the access requirements would be unduly onerous, rather than just having to show that the benefits of earthquake strengthening outweigh the costs of not improving access. Unduly onerous is a much higher criteria.  The building owners will also have to show that the level of non-compliance is no more than is necessary.

This is a partial victory. The higher criteria will lead to fewer building owners getting exemptions, the loophole has been reduced. It is definitely not perfect, removing the access exemption would have been far better. Even better would have been stopping the access exemption before it was proposed. Importantly though, this partial victory will mean more buildings will become accessible and that is what matters.

Sam Murray
National Policy Coordinator