Cabinet paper: Accelerating Accessibility in New Zealand Proposal

Proposal

1. This paper:
   1. reports back on the detailed design of the accessibility framework that takes a progressive approach to identifying, preventing, and removing barriers to participation for disabled people, tāngata whaikaha and whānau whaikaha Māori [1] and others with accessibility needs;
   2. seeks agreement on: how Te Tiriti o Waitangi will be embedded in the accessibility framework; how the Board (in the form of a Ministerial Advisory Committee) will operate; relevant institutional arrangements; and the operation of the monitoring, evaluation and review mechanisms, including which of the proposals go into primary legislation.

Relation to Government priorities

2. This proposal sits alongside our Disability System Transformation proposals to establish a Ministry for Disabled People and national implementation of the Enabling Good Lives approach. It also supports Labour’s 2020 Election Manifesto to “introduce an Accessibility for New Zealanders Act to help New Zealand to become more welcoming and accessible for disabled people and other New Zealanders with accessibility needs”.

Executive Summary

3. In October 2021, Cabinet agreed to my proposal [SWC-21-MIN-0145] to introduce and implement a new approach to identifying, preventing, and removing barriers to participation for disabled people, tāngata whaikaha and whānau whaikaha Māori and others with accessibility needs.
4. My intent to introduce legislation was announced on 29 October 2021 alongside the announcement to create a new Ministry for Disabled People (name to be confirmed) (new Ministry) [SWC-21-MIN-0146].
5. Cabinet agreed for me to approve technical elements of the legislation but requested that I report-back following policy and community engagement on some key areas. I have now undertaken this engagement and seek Cabinet’s agreement to set out the following proposals in primary legislation:
   
   1. the Board be a Ministerial Advisory Committee (Committee) comprising 6-8 members with a diversity of skills, including a majority of disabled people
   2. the role of the Committee be to provide independent advice on addressing accessibility issues to the Minister for Disability Issues
   3. the Committee’s advice be tabled in the House of Representatives (the House), alongside a commitment by the Minister to respond in a reasonable timeframe with a response that demonstrates how the Committee’s advice has been considered
   4. Te Tiriti o Waitangi be embedded in the legislation and through how the Committee operates, including ensuring comprehensive knowledge of Te Tiriti o Waitangi, te ao Māori and tikanga Māori is a key consideration for Committee appointments as a collective and at least half the Committee’s members are Māori
   5. a monitoring and evaluation framework be established that includes an annual oversight report from the Committee; information sharing provisions; and five- yearly legislative reviews.
6. Cabinet also agreed for me to approve technical elements of the legislation within the agreed policy parameters. I have made decisions on the purpose and principles of the legislation, how the Committee will operate, and mechanisms for considering their advice on addressing accessibility barriers.
7. In order to effectively address accessibility barriers, the Committee will have to engage with a range of affected sectors and interested parties in relation to the barriers it wants to address (for example, the public sector, local government, businesses, educational and health institutions, transport operators and NGOs). [Redacted content].
8. Introducing the accessibility legislation is only the first step. How it is implemented is vital. [Redacted content]
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9. I am presenting another paper to Cabinet alongside this paper, reporting back on the proposals relating to Disability System Transformation on:
   1. agreement to establish the new Ministry, including relevant transitional arrangements
   2. implementing the Enabling Good Lives approach on a national scale
   3. future opportunities for further disability system transformation once the new Ministry is established and fully operational
   4. the location of the accelerating accessibility work programme, including transitional arrangements
   5. the future of the Office for Disability Issues, including recommendations on its future location within government [SWC-21-MIN-0146 refers].

Background

10. In December 2018, Cabinet agreed to commence the design of an approach to achieve a fully accessible New Zealand, in collaboration with key stakeholders [CAB-18- MIN-0591 refers]. In July 2019, Cabinet noted my oral report back, which indicated support from stakeholders for a legislative mechanism [CAB-19-MIN-0329 refers].
11. In June 2020, Cabinet [CAB-20-MIN-0295 refers] noted my intention to accelerate accessibility through a new accessibility framework that would sit alongside awareness raising, education, and training and agreed that any new framework should set accessibility as a high-level concept rather than a detailed, prescriptive definition.
12. Subsequently, in October 2021, Cabinet agreed to my proposal [SWC-21-MIN-0145 refers] to introduce a new accessibility framework that takes a progressive approach to identifying, preventing, and removing barriers to participation for disabled people, tāngata whaikaha and whānau whaikaha Māori and others with accessibility needs (such as parents of young children, people with temporary injuries and older people).
13. Cabinet also agreed for me to approve technical elements of the legislation within the agreed policy parameters. I have made the following decisions:
    1. the purpose of the accessibility framework be to work towards a fully accessible New Zealand where disabled people, tāngata whaikaha and whānau whaikaha Māori and others with accessibility needs have an equal opportunity to achieve their goals and aspirations
    2. the principles reflect key domestic and international instruments such as Te Tiriti o Waitangi and the United Nations Convention on the Rights of Persons with Disabilities.
    3. membership of the Committee be recommended by a nominating panel and appointed by the Minister for Disability Issues after consideration by the Appointments and Honours Committee. A separate process should be used for appointing Māori members determined by tāngata whaikaha and whānau whaikaha Māori, using existing mechanisms valued by them [2]
    4. the Committee creates a work programme setting out the barriers it intends to provide advice to the Minister on in the short-to-medium term which the Minister considers and signs off after making any amendments necessary
    5. the Committee name be decided by the Committee after its establishment
    6. the Minister presents the Committee’s advice on addressing accessibility barriers on its work programme (provisionally named “Increased Participation Plans”) to
    7. the House, alongside a commitment to respond, after collaboration with relevant Ministers, in a reasonable timeframe in a way that demonstrates how the advice has been considered
    8. the Government’s response is published within a reasonable timeframe.
14. Following Cabinet’s agreement, I directed officials to work on the detailed design of the framework in targeted consultation with disabled people, their families, whānau, communities and representatives.

The accessibility framework will take a broad, holistic, and ambitious approach to addressing accessibility barriers in multiple ways

15. The accessibility framework needs to take a broad view of accessibility and be holistic and ambitious in its approach in addressing accessibility barriers in line with feedback from engagement (see Appendix One for a summary of key themes). Taking this approach is necessary to achieve the fully accessible society disabled people and others with accessibility needs have a right to and expect.
16. A broad approach means recognising that accessibility barriers can be addressed in multiple ways, which when put together, make up an overarching accessibility framework. Accessibility barriers are addressed through:
    1. legislation, which sets out the framework to enable systemic accessibility barriers to be addressed
    2. leadership structures through which the framework is implemented, including a Committee and specific responsibilities on a Chief Executive (proposed to be the Chief Executive of the new Ministry), and the Minister for Disability Issues to support and oversee the framework (detailed from paragraph 32).
    3. a consistent methodology to progressively remove accessibility barriers and monitor progress made through the framework, including progressively assigning responsibilities on relevant Chief Executives and Ministers as plans are developed within their portfolio areas (detailed from paragraph 62).
17. This framework will work alongside existing accessibility mechanisms across a range of areas, such as the Accessibility Charter, New Zealand Sign Language Act 2006, and existing work the public sector is doing to increase accessibility, as well as work done outside government (for example, the private sector). It will also sit alongside the Human Rights Act 1993 but unlike that Act which focuses on individual instances of discrimination, focus on addressing systemic accessibility barriers.

A clear purpose statement and principle underpinning the legislation is needed

18. To achieve the vision of a fully accessible New Zealand, a clear purpose statement underpinning the legislation is necessary.
19. The purpose of the framework that the legislation will put in place will include:
    1. to work towards a fully accessible New Zealand where disabled people, tāngata whaikaha and whānau whaikaha Māori and others with accessibility needs have an equal opportunity to achieve their goals and aspirations by:
       1. progressively identifying, preventing, and removing accessibility barriers; and
       2. progressing and growing current accessibility practices across New Zealand.
20. Based on feedback from the disability community that accessibility is a core aspect of people’s experience of disability, but not the only one, it is clear that people working to address accessibility barriers under the legislation should consider the broader disability context. Inserting a principles section outlining principles that people must have regard to when making decisions and exercising powers under the legislation would be an effective way to do this.
21. I consider that the core principle of the accessibility framework in achieving its purpose be to honour and realise the rights of disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs as detailed in the following documents:
    1. te Tiriti o Waitangi, particularly allowing for the exercise of Māori rangatiratanga and ensuring equitable outcomes
    2. the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which the Government ratified in 2008, in particular, Article 9 which aims – “To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others […]”
    3. other domestic and international instruments as relevant (for example, the UN Convention on the Rights of the Child and the UN Declaration on the Rights of Indigenous Peoples, the UN Convention on the Rights of Older People, the New Zealand Disability Strategy, and the Better Later Life Strategy).
22. This will shape how the proposed legislation operates in practice; for example, it will provide a basis for the Committee to draw on when they are working to address accessibility barriers. Tying the principles back to these documents also recognises that accessibility is an ever-evolving concept and gives enough flexibility to define what accessibility looks like in different domains, which helps us to ensure the work done under the legislation supports disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs experiencing barriers in different sectors.

Te Tiriti o Waitangi should be embedded in the strategic intent, leadership, and day-to-day implementation of the accessibility framework

23. As one of New Zealand’s founding documents, I expect that Te Tiriti o Waitangi (Te Tiriti)/the Treaty of Waitangi is embedded and given effect to throughout the accessibility framework at a number of levels.
24. Māori experience higher rates of disability across all age groups, with approximately 26 percent identifying as disabled compared to 24 percent of non-Māori. They are also more likely to experience disability after an injury than non-Māori (21 percent compared to 13 percent).
25. Additionally, due to the effects of colonisation, Māori experience significant systemic inequities in a range of areas including health, education, employment, and justice. This results in tāngata whaikaha and whānau whaikaha Māori facing compounding barriers in relation to accessibility and experiencing poorer life outcomes more broadly.
26. It is essential that Te Tiriti is embedded throughout the accessibility framework in a way that addresses these inequities through:
    1. enabling Māori to have choice in what role they have in designing and implementing solutions to accessibility barriers
    2. ensuring people working to address accessibility barriers have a good understanding of tikanga and kawa
    3. ensuring people administering the legislation are able to adequately assess the impacts on Māori in a way that aligns with Te Tiriti
    4. supporting the Māori-Crown relationship as systemic accessibility barriers are progressively identified, prevented, and removed.
27. Officials have explored and sought feedback from community groups representing tāngata whaikaha and whānau whaikaha Māori on two high-level approaches that Te Tiriti can be practically embedded into the legislation to achieve these outcomes:
    1. through inserting a general treaty clause in the legislation’s purpose section, requiring those making decisions under the legislation to honour Te Tiriti in the process of removing barriers to participation. This will lay the foundation for more specific guidance and policies under the legislation.
    2. reinforced through how the Committee operates, including supporting tāngata whaikaha and whānau whaikaha Māori to determine a process by which Māori voices and perspectives are reflected on and implemented by the Committee.
28. Groups officials engaged with were generally supportive of this approach. They were clear that it is important to reflect Te Tiriti in the accessibility framework in multiple ways, including committing to genuine partnership with tāngata whaikaha and whānau whaikaha Māori throughout the framework.
29. With this feedback in mind, I consider the most effective ways to embed Te Tiriti into the legislative framework are:
    1. ensuring that comprehensive knowledge of Te Tiriti, te ao Māori and tikanga Māori is a key consideration for Committee appointments as a collective
    2. specifying that at least half of the Committee’s membership must be Māori
    3. specifying that the process by which Māori voices and perspectives are reflected on the Committee will be determined by tāngata whaikaha and whānau whaikaha Māori
    4. specifying that, as part of its strategic leadership role, the Committee:
       1. complete and report on an analysis of Te Tiriti and Māori interests in all more-than-minor decisions [3] made with regard to the accessibility barriers that it seeks to address (including those that detailed in Increased Participation Plans), recognising it also has a general duty to honour Te Tiriti in how it operates
       2. ensure Māori inclusion and participation in its work to address barriers in a way that is empowering for Māori
       3. report on how it has met Te Tiriti obligations through annual reports
       4. ensure its work reflects tikanga Māori, the experiences of tāngata whaikaha and whānau whaikaha Māori, and te ao Māori
       5. use kaupapa Māori approaches as part of its assessments of the Government’s progress in implementing Increased Participation Plans in its annual report (see paragraph 39.6 below).
30. As well as these legislative requirements, I expect that the Committee continuously increases its knowledge of Te Tiriti, te ao Māori and tikanga Māori through seeking annual training opportunities.
31. I seek agreement to embed Te Tiriti in the accessibility framework in this way.

Strong, clear leadership is needed

32. To achieve the vision of a fully accessible New Zealand where disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs have an equal opportunity to achieve their goals and aspirations, strong, clear leadership is needed to implement the accessibility framework.
33. In my last report, Cabinet agreed to implement a single source of leadership with three aspects: a Board, a Chief Executive (proposed to be the Chief Executive of the new Ministry) and the Minister for Disability Issues, to support and oversee how the framework operates.

A Ministerial Advisory Committee providing independent advice will drive change

34. Following advice from officials, I have decided that the Board should be established as a Ministerial Advisory Committee (Committee), to provide direct, independent advice to both the Minister for Disability Issues and the Chief Executive of the new Ministry on what and how accessibility barriers should be addressed.
35. In agreeing to establish this mechanism, Cabinet decided against taking a more prescriptive approach to increasing accessibility through a new regulatory regime. While there are some advantages to taking a prescriptive approach, I considered this to be too inflexible, challenging and resource intensive to implement, and that a flexible approach better aligns with my other proposal to establish a new Ministry and progress broader system transformation [SWC-21-MIN-0146 refers].
36. Community representatives have been clear that they want the Committee to have a high profile and be able to directly influence government. To achieve this, I propose that the Committee be set up with key elements set out in the legislation; for example, requirements for the Committee to be established and for its members to be appointed; outlining its functions; and setting out how government will work with it. Setting out key elements in legislation will give the Committee the necessary mana, authority and permanence to address systemic accessibility barriers over the long- term.
37. [Redacted content]
    1. [Redacted content]
    2. [Redacted content]
    3. [Redacted content]

The Committee will set the ambition for the strategic direction of accessibility and oversee the Government’s implementation of accessibility initiatives through a range of functions

38. The Committee has a key role to play in progressively removing accessibility barriers through setting the ambition for the strategic direction of and overseeing the Government’s implementation of the accessibility framework. How I envisage this operating in practice is outlined in Appendix Two.
39. To deliver on this purpose, the Committee should have a range of functions, including:
    1. identifying barriers to be addressed, including working with the Chief Executive to commission research, gather data and carry out environmental scanning on accessibility barriers, and utilising established notification mechanisms (such as voice mechanisms established through the new Ministry and any bespoke notification mechanisms developed over time).
    2. publishing a short-medium term work programme that sets out the accessibility barriers it intends to provide advice to the Minister on. This should align with the UNCRPD, NZ Disability Strategy and Disability Action Plan, as well as obligations in Te Tiriti.
    3. creating Increased Participation Plans that set out how to prevent and remove an accessibility barrier on their work programme (detailed in the section below).
    4. encouraging understanding of accessibility and engaging with affected sectors and interested parties in relation to accessibility (for example, the public sector, local government, businesses, educational and health institutions, transport operators and NGOs)
    5. recommending technical advisory committees be established to advise the Committee on complex and technical barriers, which would be agreed to and
    6. appointed by the Chief Executive. Committees would provide specialist knowledge and support (for example, private sector or local government) on a barrier (for example, IT, buildings, engineering) as well as expertise from disabled people who have first-hand experience of that barrier. Other government agencies and leaders will also be involved where advice relates to their areas of responsibility. providing an annual report to the Minister (who will table it in the House) that gives a broad, independent assessment of the Government’s progress in addressing the accessibility barriers on the Committee’s work programme and highlights emerging issues.
40. In carrying out these functions, I recognise the Committee will have a substantive workload. [Redacted content].
41. In reporting directly to the Minister for Disability Issues on the accessibility experiences of disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs, I expect the Committee to engage extensively with disabled people in all their diversities (including Māori, Pacific, women and rainbow disabled people), their whānau, others with accessibility needs (such as older people and parents of young children), other established Committees (for example the New Zealand Sign Language Committee), and relevant industries (such as transport or construction). There should be formal engagement with tāngata whaikaha and whānau whaikaha Māori and iwi and Māori and a complete analysis of Te Tiriti and Māori interests when the Committee makes more-than-minor decisions (such as decisions that relate to Increased Participation Plans).
42. In undertaking this engagement, the Committee is likely to initially leverage the voice mechanisms established by the new Ministry, as well as the Disabled People’s Organisation (DPO) Coalition, the Independent Monitoring Mechanism (IMM), and other existing disability focused networks. [Redacted content].
43. Accessibility barriers are incredibly diverse and addressing them will impact a wide range of sectors and New Zealanders, so I expect that engagement will vary depending on the particular barrier the Committee is working to address at the time.
44. The Committee will also be subject to the Ombudsmen Act 1975 and the Official Information Act 1982.

The Committee should consist of 6-8 members with a range of characteristics and skillsets

45. Taking community feedback into account, I consider that the Committee have a minimum of 6 but maximum of 8 members. An additional provision for co-option will enable the Minister to appoint other members (up to a maximum of 10 members total) on the recommendation of the Committee if it finds it needs to fill additional attributes.
46. The community has been clear that that disabled people should make up the majority of the Committee’s membership (including when additional members are co-opted), as they have the most direct experience of disabling accessibility barriers. Officials looked at whether membership should be prescriptive on the basis of impairment (for example, specifying that at least one member of the Committee must be visually impaired or have a learning disability). However, this option was not popular, and it would be challenging to ensure all impairments are fairly represented.
47. In addition to being a disabled person, other experience could include people who are whānau and carers of disabled people. As recognised by community representatives, knowledge of key disability documents such as the UNCRPD and relevant professional experience such as technical and strategic skills and government and private sector experience is also key to ensure that the Committee is able to provide advice on solutions to barriers.
48. The legislation should in general terms outline the required skillsets and expertise of Committee members but leave the mix of composition to the appointing Minister and nominating panel. This must consider the need for the majority of members to be disabled reflecting a broad range of types of impairments, at least half of the Committee’s members to be Māori, whānau and carer representation, and as far as possible, reflect a gender balance and include perspectives of people from different cultural backgrounds (such as Pacific people and their aiga) and young and older people. As a collective, the Committee should also have comprehensive knowledge of Te Tiriti, te ao Māori and tikanga Māori and have relevant professional experience such as strategic skills, government and private sector experience.

Disability community representatives should have input into nominations for the Committee through a community nominations panel

49. One of the key markers of the Committee’s success will be the extent to which it is able to effectively represent the interests and have the trust and confidence of disabled people and whānau of disabled people. This needs to be balanced with the Minister for Disability Issues having ultimate responsibility for ensuring the Committee has the right mix of people to discharge its functions effectively.
50. Taking community feedback into account, I propose that an effective way to strike this balance is through establishing a community nominations panel made up of disabled people to recommend nominations for the Committee to the Minister for Disability Issues. Members of the nominating panel will be drawn from either groups that are important to the disabled community (such as the DPO Coalition), relevant to the specific perspectives required (such as those valued by Pacific disabled people and their aiga) or are individuals that hold key roles (such as the Disability Rights Commissioner).
51. In addition to the nominating panel, a separate process should be used for appointing Māori members determined by tāngata whaikaha and whānau whaikaha Māori, using existing mechanisms valued by them such as those recommended by the National Iwi Chairs Forum.

The final name of the Committee should be decided by the Committee after it is established

52. Disability community groups had a range of opinions on what the Committee’s name should be. Some wanted “accelerating” to be included to show that the Committee will push for accessibility barriers to be addressed at a faster rate than previously.
53. To reflect the above feedback and the Committee’s role, [Redacted content] the final decision on the name will rest with the Committee.

The new Ministry should administer the legislation and be responsible for work on accessibility through its Chief Executive, which should be supported across the public service

54. Removing participation barriers is central to improving disabled people’s lives. Aligning accessibility with the broader transformation of how the government system responds to the needs of disabled people, which will be stewarded by the new Ministry, would allow for a coordinated and more far-reaching approach to improving outcomes for disabled people and their whānau across government.
55. I am seeking agreement for the new Ministry to be responsible for the accelerating accessibility work, its Chief Executive be responsible for working with other Chief Executives to raise awareness of accessibility across the public service and improving the quality of accessibility related data, and the administration of the accessibility legislation in a separate paper to Cabinet. [Redacted content].
56. To enable the Chief Executive to discharge its responsibilities in relation to accessibility properly, I propose the Chief Executive have a role in overseeing accessibility measures and mobilising resources across the public service to accelerate accessibility. [Redacted content].
57. It is important to note that while accessibility is a core part of people’s experience of disability, accessibility is distinct from, and broader than, disability. Therefore, I also expect agencies will continue to run their own functions to increase accessibility and as part of this, consider advice from the Committee as it gets into its work, supported by the new Ministry.
58. Further, while the new Ministry will play a key role in the administration of the legislation on work related to accessibility, the collective success of the accessibility framework will also depend on agencies across government prioritising accessibility, supporting the Committee in its work, and on Chief Executives of other agencies working with the Chief Executive of the new Ministry.

Oversight of and support from the Minister for Disability Issues is needed for the accessibility framework to succeed.

59. As Minister for Disability Issues, I will play a key role in overseeing the accessibility framework and gaining cross-government support. At times, Cabinet agreement will be needed to effectively address a range of accessibility barriers. The success of the accessibility framework will also depend on Ministers and Cabinet considering and prioritising accessibility across a wide range of portfolios over a number of years, in order to make meaningful progress. This includes relevant portfolio Ministers in relation to the Increased Participation Plans the Committee develops over time (detailed from paragraph 68). As part of this role, I commit to give full regard to the advice of the Committee.
60. In line with feedback from the disability community, I propose that the roles for the Minister for Disability Issues in overseeing the accessibility framework should be to:
    1. appoint a community nominations panel to recommend members for appointment to the Committee, including with relevant Māori authorities in appointing Māori members [4]
    2. appoint members to the Committee after consideration by the Appointments and Honours Committee
    3. where necessary, appoint co-opted members to the Committee on the recommendation of the Committee
    4. where necessary, remove Committee members on the grounds of non- performance, engaging in principles of natural justice and ensuring reasonable accommodations for members
    5. agree to the Committee’s work programme after making any amendments necessary
    6. present Increased Participation Plans from the Committee to the House
    7. respond to the Committee, after collaboration with relevant Ministers, within a reasonable timeframe in a way that demonstrates how the Committee’s advice has been considered
    8. ensure the Government’s response to the Committee’s advice is published within a reasonable timeframe
61. Officials will work with the PCO to draft the roles of the Minister into the legislation.

The accessibility framework will progressively remove barriers and monitor progress

The Committee will provide the ambition for how government should address accessibility barriers, supported and overseen by the Minister for Disability Issues

62. The Committee will maintain a public work programme that sets out the accessibility barriers that it wants to address and provide independent advice on in the short-to- medium term [Redacted content]. This will ensure there is transparency on what barriers the Committee intends be addressed and to help build momentum and support for accessibility more broadly. How I envisage this working in practice is outlined in Appendix Two.
63. I am committed to ensuring that the Committee can propose the accessibility barriers it wants to address and provide independent advice on addressing those barriers. However, as the Committee sits within government and will draw on resources from across the public service, I need to be comfortable with the content of the work programme and will therefore need to be able to amend and agree to it. While this means the Committee is not independent from Government, the legislation will set out that its advice on each barrier (in Increased Participation Plans, detailed below) will be. I will consult other Ministers when barriers in the work programme relate to their portfolios.
64. I am aware, through the targeted engagement done by Ministry of Social Development (MSD) officials, that there is already strong knowledge of accessibility barriers within the disabled community. I anticipate the Committee will draw on what is already known about accessibility barriers in setting its initial work programme.
65. I also expect that the Committee will focus on addressing the complex and challenging barriers that sit across portfolios to ensure that we achieve the substantive shift required to achieve a fully accessible New Zealand.

The Committee will create plans setting out its independent advice on how to address accessibility barriers

66. Throughout the year, the Committee will meet to discuss how to address the barriers on its work programme, including commissioning advice and research from the Chief Executive who is responsible for providing administrative support to the Committee [Redacted content]. The Committee will recommend establishing technical advisory committees as required to provide specialist support in the domain of a barrier (for IT, building codes, engineering) and commission research and request relevant information from the Chief Executive. This process will help the Committee to understand a barrier’s root cause, develop potential viable solutions and undertake appropriate engagement with the wider disability community.
67. Depending on the nature of the barrier, this is likely to require input from officials across a range of agencies, which will in turn need to provide relevant information and resources to the Committee. It is important to note that agencies will not be able to absorb this into their work programmes without trade-offs or new funding.
68. The Committee will work to create plans which set out their independent advice on how to address an accessibility barrier on their work programme, provisionally named “Increased Participation Plans”.
69. Increased Participation Plans will set out the root cause of, and potential solutions to, barriers and the expected outcomes of addressing them.
70. The Committee will have considerable discretion in the content of the Increased Participation Plans and how it goes about creating them. However, based on feedback from the disability community about the role of the Committee, I expect that the Committee will comprehensively analyse how their solutions honour Te Tiriti o Waitangi and be co-designed with disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs as much as possible. In order to set out a strong case for change, is also important that the Committee consider implementation pathways in consultation with relevant sectors that will have to implement their solutions, such as government agencies, local councils and businesses. I also expect the Committee to discuss their plans with relevant Chief Executives and the Minister for Disability Issues as they are developed.
71. Once an Increased Participation Plans has been completed, the Committee will provide their advice for resolving barriers to the Minister for Disability Issues. To demonstrate the importance of this advice, the Minister for Disability Issues will present it to the House, and after collaboration with relevant Ministers, respond in a reasonable timeframe that demonstrates how the advice has been considered and subsequently publish the response.
72. Part of the Government’s response may include taking the Committee’s advice to Cabinet. Cabinet will need to decide how far and fast the Committee’s proposals will be progressed, which will be subject to usual Cabinet processes, including Budget bids and regulatory change where required.

Robust monitoring and evaluation mechanisms are needed to ensure the accessibility framework is addressing barriers as intended

73. Regular monitoring and evaluation is needed to assess whether individual barriers are being removed effectively, as well as the overall effectiveness of the accessibility legislation in progressing New Zealand towards being fully accessible as intended. Monitoring, review of results and evaluation of progress will be incorporated into and inform the cycle of barrier identification, resolution and review. I am committed to considering evaluation findings and proposing changes as needed to ensure the system is progressively realising a fully accessible New Zealand.
74. To support this work, the Committee will submit an annual report to the Minister for Disability Issues that provides high-level oversight of the Government’s progress towards actioning its advice in Increased Participation Plans. Its report may also include identifying opportunities for improvement, emerging issues and challenges, and lessons learned from abroad.
75. This will be supported by monitoring and evaluation activities undertaken by the new Ministry and other public service agencies leading implementation of the Government’s response to the Committee’s advice. Specific activities undertaken by the new Ministry, in collaboration with other involved public service agencies, will include:
    1. undertaking research and data collection on individual barriers as commissioned by the Chief Executive
    2. drafting measures and indicators for use in monitoring progress in resolving individual barriers
    3. collating and reporting on whole-of-government progress and results achieved in actioning advice in Increased Participation Plans
    4. drafting the Government’s response to the Committee’s advice in a reasonable timeframe in a way that demonstrates how their advice has been considered.
76. To reflect their commitment to Te Tiriti, I expect the new Ministry will consider how kaupapa Māori evaluation approaches can be included across these activities.
77. Other involved public service agencies can also be commissioned by their Chief Executives to undertake research and data collection on an individual barrier, and to draft measures and indicators for use in monitoring progress of an Increased Participation Plans. Public service agencies working to action the advice in Increased Participation Plans will undertake their own monitoring of progress (and report on that progress) for their Chief Executives and Ministers and include a progress update within their individual annual reports. They will also share monitoring information with the new Ministry, for the purpose of whole-of-government reporting.
78. Alongside monitoring and evaluation activities undertaken by the Ministry and other public service agencies, the IMM, made up of the Human Rights Commission, Office of the Ombudsman, and DPO Coalition, will also continue to play its important role in monitoring the effectiveness of the accessibility framework as part of their role to monitor New Zealand’s implementation of the UNCRPD.

Information-sharing provisions will be required to make the monitoring and evaluation framework work

79. Information sharing provisions between government agencies will be required in the legislation to enable the new Ministry and involved public service agencies to meet the monitoring and evaluation responsibilities as set out in the legislation. These provisions are only intended to facilitate the sharing of anonymised and aggregate data between agencies and will comply with the Privacy Act 2020 and the Official Information Act 1982.
80. Public service agencies working to action advice in Increased Participation Plans will also need authorisation to require, receive and consider information from the wider public sector, including local authorities (where they are the local regulator) for the purpose of establishing baselines, monitoring, and reporting of results. The legislation, therefore, needs to authorise the sharing of information reasonably required for the purposes of data collection, monitoring, review, and evaluation. However, it is expected that more detailed data needs will become clear as Increased Participation Plans are developed in specific areas, and relevant regulators including local government will be involved in the development of those Increased Participation Plans at the time.
81. This information will need to be made available to the Committee, who will need access to data to establish baselines and benchmarks, assess progress achieved, identify priority barriers, and develop and recommend an Increased Participation Plan to address an individual barrier.

The legislation will be reviewed regularly to ensure it is addressing accessibility barriers as intended

82. Regular periodic review of the legislation is a further important mechanism. In my previous paper to Cabinet, I said the legislation should be reviewed every three years. However, following advice from officials, I consider a review should take place every five years to allow more time for the framework to be implemented, and to go through the full cycle of addressing accessibility barriers. Officials have suggested that a review at three years, especially initially, will not provide enough time to see the impact and tangible effects of the legislation. This is particularly likely if there are any delays in appointing Committee members, and because of the likely time and resourcing involved in carrying out a full legislative review. While I recognise that pushing the review period out risks not gaining a clear picture of how the legislation is performing early on, I consider that the legislation should be reviewed formally every five years to ensure the system has time to work through a full cycle before it is first reviewed and noting that regular monitoring and evaluation of the framework’s implementation will occur throughout this time, as outlined above.
83. I expect reviews will be repeated every five years to gain a clear picture of how well the legislation is performing over time in preventing and removing barriers in all areas of life. This is particularly important as many people expressed that the accessibility framework does not go far enough and should be more regulation-focused, similar to existing legislation in Canada and the UK. Regular review would enable further mechanisms to be explored if it is found the legislation is not preventing and removing barriers as intended and allow continuous improvement over time given the long-term nature of the work to achieve a fully accessible New Zealand.
84. Regular periodic review would also allow assessment of the extent to which recommendations from previous reviews have been picked up and therefore strengthen accountability to the disability community and others with accessibility needs. I also expect that review of the legislation will need to be carried out by a person or group independent of the accessibility structure, to provide transparency and assurance that the process is free from any perception of bias. [Redacted content].

Legislative Implications

85. Following my last paper to Cabinet in September 2021, Cabinet agreed to me issuing drafting instructions to the Parliamentary Counsel Office (PCO) and approving technical elements of the framework within agreed policy parameters [SWC-21-MIN- 0145 refers].
86. Following advice from officials, I have agreed to the following technical elements forming the basis of drafting instructions. The first phase of instructions has been agreed and sent to PCO covering:
    1. the accessibility framework’s purpose and principles
    2. the roles of the Chief Executive and Minister for Disability Issues in overseeing the framework; and
    3. the name and nominations process for the Committee.
87. Officials will begin to work on the details to be included in further drafting instructions after Cabinet decisions on this paper.
88. I expect this Bill to be referred to Select Committee following its introduction into the House in July 2022. I expect a high level of interest from the disability community.
89. I expect the Select Committee process, where public submissions can be made, will run for six months after introduction. I estimate the Bill’s enactment date to be the end of July 2023 and estimate the commencement date to be August or September 2023.
90. Making the Select Committee process accessible to everyone who wants to participate is paramount. I have directed officials to work with PCO and Parliamentary Services, who have responsibility for the legislation and process, to ensure that this occurs.

Implementation

91. While I undertook to report back to Cabinet on the detail of elements in this paper, [Redacted content]
    1. [Redacted content]
    2. [Redacted content]
    3. [Redacted content]
92. I consider MSD should be responsible for the legislation until it is transferred over to the new Ministry. [Redacted content].
93. I also expect it will take 6-9 months to recruit the Committee members once the legislation is enacted.

Financial Implications

94. [Redacted content]
    1. [Redacted content]
    2. [Redacted content]
    3. [Redacted content]
95. [Redacted content].
96. As noted in my last paper to Cabinet on accessibility, there will also be associated downstream costs as accessibility barriers are addressed, which could be significant depending on the nature and scale of the barrier and the solutions proposed. These costs will need to be considered and met at the time subject to existing checks and balances (for example, Cabinet approval, CBA, budget processes).

Risks

97. As outlined in my last paper to Cabinet, there are risks to establishing this framework. It relies heavily on transparency through reporting and monitoring. Cabinet’s previous agreement to take a flexible approach means we will need to build in ‘teeth’ over time to ensure accessibility in New Zealand is meaningfully improved. Decisions on which of the Committee’s proposals to take forward will need to be discussed at Cabinet, so they can be weighed up against government priorities and resource commitments. The success of the system in delivering change will ultimately depend on accessibility being prioritised by successive Governments.
98. In addition, because advice on addressing accessibility barriers is yet to be set out, downstream costs are unknown, so there are risks that the most meaningful actions required remain unfunded. Accessibility barriers can also range in scale. Care will be needed to make sure the framework takes a progressive realisation approach, that ensures the scale of change and work to improve accessibility does not lead to duplication, misalignment, and overloading capacity across both the public and private sector.
99. There is also a risk that disabled people do not have trust and confidence in this framework because they do not consider it will bring about the fundamental change that they expect to rebalance the inclusion and participation of disabled people. Many people that MSD officials engaged with expressed that the accessibility framework does not go far enough and should be more regulation-focused, similar to existing legislation in Canada and the UK. There is also a risk that engaging with the Committee is seen as a replacement for engaging with the disability community rather than a vehicle to engage with the disability community.
100. I acknowledge these concerns and recognise the trade-offs involved. However, I consider that a flexible, progressive approach over time remains preferable, so Governments can set priorities to resource accessibility measures. Further, although the proposed legislation does not have a regulatory focus, it is my expectation that new regulations relating to accessibility will be introduced in some areas, particularly where detailed technical standards are already part of the law in that area, but that will need to be worked through with relevant stakeholders at the time those barriers are considered. Taking a flexible approach will give obligated parties time to understand and adopt efficient or innovative approaches to meeting regulatory obligations, and it will allow the ability to adapt to changes in society.
101. Some of these risks can be mitigated through careful implementation of the accessibility framework and consultation and engagement on implementation, as well as ongoing public awareness raising, education, and training activities in relation to accessibility. Other risks, however, will need to be monitored through regular reviews to ensure we are making the progress that we expect to. As such, I expect the Act to be formally reviewed on an ongoing basis as outlined in paragraphs 82-84 above.

Impact Analysis

Regulatory Impact Statement

102. A supplementary Regulatory Impact Statement on the proposals to embed Te Tiriti o Waitangi has been prepared and is attached.
103. A Quality Assurance Panel from MSD reviewed the RIS and considered the information and analysis summarised in it meets the quality criteria set out in the RIS framework (clarity and conciseness, completeness, convincing, consultation

Population Implications

104. Improving accessibility brings about increased quality of life, creates more independence, has a positive impact on wellbeing, and supports greater social integration for disabled people and tāngata whaikaha and whānau whaikaha Māori. Improving accessibility will have a positive impact and improve outcomes for disabled people and tāngata whaikaha and whānau whaikaha Māori who face barriers to accessing the built environment, information, education, health, goods, and services. The flexibility of this accessibility framework means that it can adapt to any scale or number of accessibility barriers across any system.
105. However, taking a progressive approach means that positive impacts will be felt unevenly as different accessibility barriers are prioritised.
106. As well as benefiting disabled people and tāngata whaikaha and whānau whaikaha Māori, improving accessibility will benefit all people with accessibility needs and their supporters, including parents and older people. For wider society, it can create a greater consumer base as more people can engage in information, services, goods, and products. It creates a larger and more diverse talent pool for employers to hire from and improves social cohesion.

Human Rights

107. Improving accessibility will support disabled people, tāngata whaikaha and whanau whaikaha Māori and others with accessibility needs, to achieve their human rights including their social, economic, and cultural rights, and civil and political rights. The proposals set out in this paper will result in work to identify, prevent and remove barriers to better align our practice with the New Zealand Bill of Rights Act 1990 (BORA), the Human Rights Act 1993, the UNCRPD, and other relevant international instruments
108. The UNCRPD lists accessibility as one of its core principles under Article 3[f], while Article 9 details the Government’s obligations in taking appropriate measures to ensure disabled people have access on an equal basis with others to the physical environment, to transportation, to information and communications, including information and communication technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. By addressing accessibility barriers over time, this framework will progressively realise those rights.

Consultation

109. To date, officials have undertaken targeted engagement with experts across a range of fields (including policy, regulatory, legal, public service, advocacy, and business). Officials sought feedback from groups representing disability communities to inform the detailed design of the accessibility framework through a combination of online meetings with advocacy groups from November 2021 to February 2022 and through a discussion paper sent out to around 35 advocacy groups.
110. The DPO Coalition, New Zealand Sign Language Committee, National Enabling Good Lives leadership group, Enabling Good Lives Waikato, Tofa Mamao Collective, I-Lead, Pou Tāngata (National Iwi Chair Forum), Enabling Good Lives Governance Group, Establishment Unit Community Steering Group, Te Ao Mārama Disability Advisory Group, Mana Pasifika, and the Whānau Ora Interface Group were consulted.
111. The following agencies were also consulted: Local Government New Zealand, Department of Corrections, Ministry of Housing and Urban Development, Office of the Ombudsman, Office for Seniors, Sport New Zealand Tertiary Education Commission, Ministry for the Environment, Kāinga Ora, the Human Rights Commission, Ministry of Business, Innovation and Employment, Ministry for Pacific Peoples, Oranga Tamariki – Ministry for Children, Manatū Wāhine – Ministry for Women Accident Compensation Corporation, Ministry of Health, Public Service Commission, Ministry for Primary Industries, Department of Internal Affairs, Waka Kotahi, Ministry of Education, the Treasury, Te Arawhiti, Te Puni Kōkiri, Ministry for Culture and Heritage, and the Department of the Prime Minister and Cabinet.

Communications

112. I intend to release this paper alongside the paper on Disability System Transformation.

Proactive Release

113. I intend to proactively release this Cabinet paper in a range of alternate formats, with redactions as appropriate under the Official Information Act 1982, within 30 business days of decisions being confirmed by Cabinet or alongside announcing the proposals if later than 30 days.

Recommendations

The Minister for Disability Issues recommends that the Committee:

1. [Redacted content]
   1. [Redacted content]
   2. [Redacted content]
   3. [Redacted content]
2. note that the purpose of the legislation will include to work towards a fully accessible New Zealand where disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs have an equal opportunity to achieve their goals and aspirations by progressively addressing accessibility barriers and progressing and growing current practices to accessibility
3. note that the principles that will underpin decisions made under the legislation will be to honour and realise the rights of disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs as outlined in the United Nations Convention on the Rights of Persons with Disabilities, Te Tiriti o Waitangi and other domestic and international instruments as relevant
4. note the first phase of drafting instructions sent to PCO covers:
   1. the accessibility framework’s purpose and principles
   2. the roles of the Chief Executive and Minister for Disability Issues in overseeing the framework; and
   3. the make-up of and nominations process for the Committee
5. invite MSD officials to instruct PCO on the second phase of drafting instructions following Cabinet decisions on this paper
6. agree Te Tiriti o Waitangi be embedded into the accessibility framework by:
   1. including an obligation to honour Te Tiriti o Waitangi in the purpose section of the legislation, and
   2. reinforcing this through both requiring minimum representation on the Committee of half Māori members, and through Committee member capabilities and operational requirements
7. agree the Committee will:
   1. be a Ministerial Advisory Committee embedded in legislation
   2. be made up of between 6-8 members (with the ability to co-opt up to 10 members total)
8. note the skills and capability of Committee members will be considered as a collective, with a focus on ensuring:
   1. the majority of members are disabled and reflect a broad range of types of impairments
   2. whānau and carer representation
   3. relevant professional experience (eg strategic skills, government and private sector experience)
   4. collective comprehensive knowledge of Te Tiriti, te ao Māori, and tikanga Māori, and an undertaking to continue to build that knowledge
   5. as far as possible, a range of cultural backgrounds including Pacific, gender balance and the perspectives of young and older people
9. note that the Committee will set the ambition for the strategic direction of accessibility and oversee the Government’s implementation of accessibility initiatives by:
   1. publishing a short-to-medium term work programme setting out the accessibility barriers it intends provide advice on
   2. providing advice to the Minister for Disability Issues on how to address individual barriers on their work programme in the form of Increased Participation Plans
   3. encouraging understanding of accessibility and engaging with affected sectors and interested parties in relation to accessibility
   4. publishing an annual report that gives an independent assessment of the Government’s progress towards implementing Increased Participation Plans
   5. recommending the appointment of technical advisory committees to the Chief Executive to advise the Committee on complex and technical barriers
10. note that for the Committee to report directly to the Minister of Disability Issues on the experiences of disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs, it will be required to undertake in-depth and accessible engagement with disabled people, tāngata whaikaha and whānau whaikaha Māori, and others with accessibility needs and relevant parties in the preparation of their advice
11. note that a high level of support from Cabinet and across government will be needed to support the work of the Committee
12. note that this will rely on agencies across government and local government prioritising accessibility in their work and on Chief Executives of other agencies working with the Chief Executive of the new Ministry for Disabled People on accessibility
13. note that the changes needed to address accessibility barriers, while yet to be determined, are likely to be large with significant impacts on both government and non-government parties
14. note I am seeking Cabinet agreement in a separate paper, that the new Ministry for Disabled People be responsible for the accelerating accessibility work programme with the Ministry of Social Development responsible for the work until the legislation is enacted unless the Minister for Disability Issues agrees to transfer it earlier.
15. agree that the Chief Executive of the new Ministry for Disabled People will lead and co-ordinate work on accessibility across government
16. [Redacted content]
17. note that the role of the Minister for Disability Issues in overseeing the accessibility framework should be to:
    1. appoint a community nominations panel to recommend members for appointment to the Committee, including with relevant Māori authorities in appointing Māori members
    2. appoint members to the Committee after consideration by the Appointments and Honours Committee
    3. where necessary, appoint co-opted members to the Committee on the recommendation of the Committee
    4. where necessary, remove Committee members on the grounds of non- performance, engaging in principles of natural justice and ensuring reasonable accommodations for members
    5. agree to the Committee’s work programme
    6. present Increased Participation Plans from the Committee to the House
    7. respond to the Committee, after collaboration with relevant Ministers, within a reasonable timeframe in a way that demonstrates how the Committee’s advice has been considered.
    8. ensure the Government’s response to the Committee’s advice is published within a reasonable timeframe
18. agree to the establishment of a monitoring and evaluation framework that includes an annual oversight report, regular monitoring and evaluation activity by the new Ministry for Disabled People and involved public service agencies, and information sharing provisions
19. note that the legislation will be formally reviewed every five years.

Authorised for lodgement

Hon Carmel Sepuloni Minister for Disability Issues

Footnotes

1. This phrasing aims to reflect the preferred language of community groups representing Māori disabled people and their whānau. Return to text
2. Such as those recommended by the National Iwi Chairs Forum. Return to text
3. [Redacted content]. Return to text
4. such as those recommended by the National Iwi Chairs Forum. Return to text