tate Obligations Concerning Rights of
Persons With Disabilities regarding the
Enjoyment of Pedestrian Access in
Tourist Destinations:
A Comparative tudy Between Indonesia and Australia
uthors:
I Nyoman Bagiastra Gary K
Danial K
Index
1 –
Introduction………
……3
2 – Legal
Issues……….4
3 - o What is the Problem?...5
4 - Disability Tourism and Economic
5 - Positive Examples of Disability
Tourism……….6
6 -
Conclusions………
…….7
7 -
Recommendations………
.8
9 -
Bibliography………
…….9
Introduction
Facts have shown that a number of pedestrians are injured each year on public roads, particularly in tourist destinations, as a result of insufficient infrastructure. One of the possible effects of these pedestrian injuries is the potential loss of or reduction in tourism to such areas due to a concern for personal safety. Of particular concern is the heightened risk of injury with regard to pedestrian access for people who have disabilities.
On the 30th of November 20 Indonesia took the final step incompleting a task that it
had begun years earlier by ratifying the United Nations Convention on the Rights of People with Disabilities. The Convention grew from the foundational principles enshrined in the United Nations Charter on Human Rightswhich states that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The preamble to the Convention reaffirms the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination and recognizes that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.
Following the analysis of the law and policies driving such laws will be a comparative analysis with the Australian laws and policies regarding the rights of people who have disabilities as both Indonesia and Australia have ratified the CRPD.
Legal Issues
People with disabilities are possessors of the same rights as people without disabilities yet ‘ersons with disabilities continue to face barriers in their articiation as equal members of society and violations of their human rights in all arts of the world’. Preamble to 2007 CRPD.
The Indonesian Constitution states that every citizen has the irrevocable right to freedom from discrimination of any kind and it is the Constitution that provides the framework from which Indonesian laws are made. For a law to be valid in Indonesia it must be consistent with the Constitution.
Given that Articles 5(), , 20, 28(i)(2) of Undang-UndangDasar 945, states that every citizen has the right to freedom from discrimination it is most certainly possible for laws to be passed that expressly guarantee such freedoms, laws like the Australian Disability Discrimination Act. With that in mind it must be considered whether or not any such laws have been passed in Indonesia and if so, what are the obligations of the State, if any, that the legislation creates.
In short, the answer is that there has been legislation enacted that outlaws discrimination generally including laws that address people with disabilities, for example, lawNo. 39 of 1999 Concerning Human Rights. Perhaps the most significant aspect of this law can be found in Article 7 part 2 which states that provisions set forth in international law concerning human rights ratified by the Republic of Indonesia, are recognized under this Act as legally binding in Indonesia. This can be interpreted as meaning that once the Convention on the Rights of People with Disabilities was ratified it became part of Indonesian law. Article 8, of the same legislation, states that it is the responsibility of the Government to ensure that human rights are protected, promoted, upheld and fulfilled.
Previous to the above mentioned legislation was the introduction of law No. 4 of 1997 On Persons with Disabilities. In this law it is stated that people with disabilities have the right to education, employment, access to public facilities, and equal opportunity and treatment in all aspects of their lives and livelihood. Importantly Article 4 declares that state-owned and private companies shall give equal treatment and opportunities to the disabled by employing them according to their disabilities and education. Although this law is progressive it is generally accepted that some of the wording used does not help with the negative way in whichdisabled people are viewed by society.
Not satisfied that enough progress had been achieved the Indonesian government introduced a national action plan spanning ten years. The object of the national action plan, or Renaksi, was to improve the lives and livelihood of people with disabilities through several means. Renaksi established important achievements that must be reached in order to achieve the objective of improving the lives of disabled people. It highlighted key issues that needed to be addressed such as the support of political leaders and religious leaders in implementing the national laws at the local level.
As has already been mentioned, albeit briefly, one of the biggest legislative issues faced by people with disabilities is getting the local provinces to implement the national laws as laid down by the government. One measure that the Indonesian government did not take is the signing of the optional protocol to the CRPD. The optional protocol represents an international treaty that is specifically designed to help strengthen the implementation and monitoring of the CRPD by creating a mechanism for people who have had their rights abused to be heard and have their claim investigated.
o what is the problem?
The legislative regime regarding disability and discrimination generally does not seem to be a major problem, however, it is the implementation of those laws locally that seems to be wanting of attention. This fact becomes particularly noticeable when one considers Article 4 of the Convention on the Rights of People with Disabilities which states:
1. States Parties undertake to ensure and romote the full realization of all human rights and fundamental freedoms for all ersons with disabilities without discrimination of any kind on the basis of disability.
Essentially what Article 4 means is that all the laws in force at the time of ratification must be reviewed and if necessary, amended or repealed to the extent that they are inconsistent with the CRPD. Furthermore the Convention creates a positive duty for the State to ensure that all possible steps will be taken to ensure that human rights regulations will be introduced by the relevant law making bodies that operate at the regional and local level.
Australia too has ratified the CRPD but it is widely recognised that Australia has a long way to go to achieve equality for people with disabilities also. What has been discovered so far is that although there are laws in place in Australia, Indonesia and in particular Bali the problem is not necessarily the lack of law, the problem lies in how people view disabled individuals.Having made that observation it is at this point that some differences between the Australian and Balinese legal framework can be highlighted. The major and most obvious difference can be found in the fact that every state and territory in Australia has implemented relevant laws which would represent the implementation of laws at a regional level that Indonesia has recognised is a necessary step to achieving equality for people with disabilities.
Complementing the suite of legislation in Australia there has also been a number of bodies established who have the power to exercise a number of functions regarding the administration of the discrimination legislation including the power to investigate and conciliate complaints.Similarly in Indonesia Article 75 of law No. 39 of 1999 does create the National Commission on Human Rights, however, they do not have the power of investigation and conciliation. This can be contrasted with the Australian Human Rights Commission which does have the power of conciliation and arbitration.
Contributing to the problem in many areas of the law in Indonesia is that people with disabilities have been classified as belonging to a subpopulation with social problems.A direct example of the aforementioned issue can be found in Article 4 of the Decree of the Governor of Jakarta No. 8, Year 2007, on Public Order which stipulates that persons who have illnesses that can disturb public order are prohibited from conducting activities on the street, public gardens, and other public spaces. Although the intent behind the decree is to exclude people with leprosy it can be interpreted as also including people with disabilities.The difference with Australian law being that there can be no categorization of people who it is acceptable to discriminate against generally.
them because of their political opinions, industrial history, or social origin in any work-related area. The problem being that one may be able to discriminate on such grounds.
Disability Tourism and Economic Progress
Tourism is the strongest driving force to the Balinese economy and the lack of disabled access can be recognised as a cost to the economy of Bali rather than a saving. Australian people with disabilities travel far less than those without yet those people do not see their impairment as the reason for them not traveling, rather, they attribute their lack of involvement in travel to a number of structural constraints with the most marginalised being those with mobility issues.
Disability should be seen as a social relationship or a set of differing social relationships between the people with disabilities and the organisations that control and administer the institutional and social environments in which they live, for example: the relationship between people with disabilities and the Tourism Associations and Tourism industry itself.
Fifteen percent of the worlds’ population live with disabilities, which is roughly one billion People.Over four million Australians live with disabilities, which represents nearly twenty percent of the population. In the month of February alone over fifty thousand Australian tourists travelled to Bali in 20 and the numbers have been steadily growing.Wha t this represents is a potential market for disability specific tourism notwithstanding the previously mentioned fact that many disabled Australians are reluctant to travel because the system is not adequate to meet their needs or the needs of their carers’.
Positive Examples
Although the picture painted thus far is a grim one for people with disabilities, there most certainly can be found many examples where positive steps forward have been achieved for the disabled tourist.
Bali Access Travel, for example, specialises in accessible wheelchair travel in Bali, Java and Lombok. They even offer services for equipment hire, airport transfers and even a home care service.Accommodation offered includes wheelchair accessible rooms, bathroom and a swimming pool with a hydraulic hoist to ensure accessibility. This highlights the fact that where disabled access exists, disabled tourists will go there and more importantly, spend money there.
Similarly all over Australia there are tourism organisations that specifically cater for the people with disabilities. One website alone offers direct links to over fifty disability specific bodies, organisation and tourist operators that cater for tourists with mobility issues.
Conclusions
The national Government has failed its’ positive duty to ensure the implementation of regulations at the local level resulting in a complete breakdown between the law and harmonisation with the Convention on the Rights of People with Disabilities.
Due to the negative perception of people with disabilities by the community generally, disabled access remains an on-going concern for both Bali and Australia.
Due to the insufficient implementation of national rules and guidelines there remains a gap between the law and equality for people living with disability.
Due to inadequate or non-existent control mechanisms, current disability discrimination laws are ineffective.
Due to a lack of understanding or knowledge about anti-discrimination laws the laws are ineffective.
Due to un-favourable terminology used in current legislation with regard to disabled people an un-realistic perception of disabled people’s right to equality in all aspects of life is perpetuated.
Due to a lack of effective funding from the national government some schools and foundations that are committed to delivering equal opportunities to people with disabilities, the national government has failed to fulfil the most basic of its’ obligations under international treaties and, arguably, Pancasila.
Indonesia has made many positive steps forward in the area of equality for disabled people by passing numerous laws on the subject, ratification of United Nations Treaties and the implementation of national action plans with the specific view to closing the gaps highlighted thus far. Although such steps are commendable there is a long way to go if Indonesia truly intends to realise the obligations that they have undertaken by ratifying the CRPD.
Recommendations
. In order to achieve equality there needs to be a paradigm shift in the way people view and think about individuals who have disabilities. This can only be achieved through education. A national campaign, supported by community leaders, religious leaders and governments, should take place with the exclusive purpose of affecting change in how society views people who have disabilities. This may be achieved by broadening and strengthening Renaksi (National Action Plan). It is also important to ensure that in re-educating people the goal must be to broaden the perception of disabled access from meaning wheelchair access to the many varying forms of access, such as, but not limited to, access for people who are vision impaired.
2. A human rights commission with the power of conciliation and arbitrationshould be established to hear and settle claims of abuse. Bearing in mind that the Indonesian legal system is multi-layered the commission too needs to be multi layered in order to gain the respect necessary to guarantee success at the regional and local levels. This can be achieved by effectively amending Article 75 of the law No. 39 of 1999, to grant the Human Rights Commission powers of arbitration and conciliation.
3. Current legislation needs to be reviewed with the sole purpose of removing or changing the negative stigma derived from the words within such legislation. This includes, but is not limited to, an immediate rewording of the Ministerial Decree No. 80/HUK/2010 concerning Budget Planning Guidelines, to remove ambiguities that allow disabled people to be categorized extremely negatively. Regulation 1 of 2015,n eeds to be amended to remove the continued ambiguity that arises through interpretational constraints resulting in Disabled people being excluded in public places as though they are diseased.
4. Current and future legislation needs to be constructed in a manner that creates a positive duty to avoid discriminatory actions.
6. The establishment of a national road authority in charge of overseeing the effective construction and maintenance of public roads and pedestrian walkways will be intrinsic to ensuring that rules regarding construction, particularly where disabled access is a concern, will be lawfully applied.
7. The establishment of a disability tourism commission that is mandated to work with governments, local leaders and stakeholders to fully understand the needs of tourists and potential tourists who have disabilities, to develop new initiatives aimed at improving the experience of disabled tourists and their carers’. The commission needs the freedom to be able to both make recommendations to the government and criticise the government fearlessly in pursuit of equality for disabled people.
8. The establishment of an authoritative standards commission to establish minimum applicable standards that are to be applied to the construction of all infrastructure that ensures the effective application of requirements, particularly in the area of disability access.
9. Current foundations and schools that are involved in delivering equality to people with disabilities must be directly and continuously funded by the national government to relieve the burden of having to finance themselves so that their focus can remain on delivering quality and meaningful services.
0. An independent law reform commission needs to be established with the mandate to evaluate the state of the law in Indonesia and give recommendations for change and the commission needs to be free from fear of retribution or prosecution in the event that the national government is criticized. This could be achieved by implementing legislation establishing such a commission, following the Australian model on the same subject as created under the Australian Law Reform Commission Act 1996 (Cth).(Originally the Law Reform Commission Act 973 (Cth).
Bibliography
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report 24, August 204.
https://www.alrc.gov.au/publications/equality-capacity-disability-report-24
Australian Standard AS 428.-2009 Design for access and mobility – General requirements for access – New building work.http://www.standards.org.au/Pages/default.aspx
Bali Access Travel.www.baliaccesstravel.com/
Chris Berg, Anti-discrimination laws: an act of confusion. http://www.abc.net.au/news/203-0-22/berg-an-act-of-confusion/4478038
D-Ability.org http://www.d-ability.org/travel.php?subcat_id=95
Jan Priebe and Fiona Howell, A Guide to Disability Rights Laws in
Indonesia.https://archive.org/details/A-Guide-to-Disability-Rights-Laws-in-Indonesia Malta Tourism Authority, Accessible Culture for All.
http://www.accessibletourismmalta.eu/sites/accessibletourismmalta.eu/files/attachments/Acce ssible%20Culture%20for%20All%20Flyer.pdf
https://www.academia.edu/2084246/Disabling_journeys_The_tourism_patterns_of_people_w ith_impairments_in_Australia
Trip Advisor, How Many Tourists Travel to Bali. http://www.tripadvisor.com/ShowTopic-g294226-i7220-k5349092 How_many_tourists_travel_to_bali-Bali.html
United Nations Charter.
United Nations Convention on the Rights of People with Disabilities.
Journal Articles and Working Papers
Simon Darcy, Disabling Journeys: The tourism atterns of eole with imairments in Australia.
https://www.academia.edu/2084246/Disabling_journeys_The_tourism_patterns_of_people_w ith_impairments_in_Australia
Jan Priebe and Fiona Howell, A Guide to Disability Rights Laws in
Indonesia.https://archive.org/details/A-Guide-to-Disability-Rights-Laws-in-Indonesia Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report 24, August 204.
https://www.alrc.gov.au/publications/equality-capacity-disability-report-24
Legislation Australia
Anti-Discrimination Act 1977 (NSW). Equal Oortunity Act 1995 (Vic). Anti-Discrimination Act 1991 (Qld). Equal Oortunity Act 1984 (WA). Equal Oortunity Act 1984 (SA). Anti-Discrimination Act 1998 (Tas). Discrimination Act 1991 (ACT). Anti-Discrimination Act 1998 (NT). Anti-Discrimination Act 1992 (Cwth). Law Reform Commission Act 973 (Cth).
Australian Law Reform Commission Act 996 (Cth).
Indonesia
Decree of the Governor of Jakarta No. 8, Year 2007, on Public Order. Law No. 4 of 1997 On Persons with Disabilities.
Law No. 28 of 2002 on Buildings.
Law No. 39 of 1999 Concerning Human Rights.
Ministerial Decree No. 06B/HUK/2010 concerning the Provision of Welfare Services in 50 Less-Developed Districts.
Ministerial Decree No.KM-71 Year 1999 on Accessibility.
Ministerial Decree No. 80/HUK/2010 concerning Budget Planning Guidelines to Achieve the Minimal Standard of Quality Welfare Services in the Provinces, Municipalities, and Districts. Undang-UndangDasar 945.
Curriculum Vitae
I NyomanBagiastra-Iam a candidate doctoral student of law, faculty of law at the universityudayana.
