as researcher workshop on legal reserach collaboration jointly organized by faculty law master program law master program notary and doctoral in law of udayana university in cooperation with charles.
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
Progress…………5
5 - Positive Examples of Disability
Tourism…………….6
6Conclusions…………………………………………………
…….7
7Recommendations……………………………………………
.8
9Bibliography…………………………………………………
…….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.
This paper will explore the obligations of the State regarding the rights of disabled
pedestrians to have equal access to and within tourist destinations. To achieve this end we
will analyse international instruments such as the Convention on the Rights of People with
Disabilities, national and local laws and regulations and the policies behind such laws as they
are applied in Bali.
2
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.
Furthermore The Ministry of Transportation also issued Ministerial Decree No. KM71 Year 1999 on Accessibility, which outlines in detail what is meant by universal design
and correct structural measurements, not un-like the Australian Standards dealing with the
same matter, albeit in an Australian context. Another piece of legislation that deals with
disabled people specifically is Law No. 28 of 2002 on Buildings, which contains
implementation regulations concerning disabled access when designing and constructing new
buildings.
3
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.
Similarly, in Australia, the wording of legislation can be detrimental. For example;
proposed changes to discrimination law, if successfully passed through Parliament, would
have the effect of making it unlawful to treat someone unfavourably by offending or insulting
4
them because of their political opinions, industrial history, or social origin in any workrelated 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 conflicts arising from the interpretation and application of certain laws there remains a
gap between disability specific legislation and harmonisation with the rest of the legal
system.
5
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.
5. Current road traffic laws that contain provisions regarding the inclusion of disability
accessible infrastructure needs to be reviewed and strengthened to the extent that
breaching the requirements for disabled access can be effectively prosecuted.
6
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/2030-22/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
Simon Darcy, Disabling Journeys: The tourism atterns of eole with imairments in
Australia.
7
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.
Qualifications – lecture at faculty of lawUdayana University( fundamental law department).
8
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
Progress…………5
5 - Positive Examples of Disability
Tourism…………….6
6Conclusions…………………………………………………
…….7
7Recommendations……………………………………………
.8
9Bibliography…………………………………………………
…….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.
This paper will explore the obligations of the State regarding the rights of disabled
pedestrians to have equal access to and within tourist destinations. To achieve this end we
will analyse international instruments such as the Convention on the Rights of People with
Disabilities, national and local laws and regulations and the policies behind such laws as they
are applied in Bali.
2
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.
Furthermore The Ministry of Transportation also issued Ministerial Decree No. KM71 Year 1999 on Accessibility, which outlines in detail what is meant by universal design
and correct structural measurements, not un-like the Australian Standards dealing with the
same matter, albeit in an Australian context. Another piece of legislation that deals with
disabled people specifically is Law No. 28 of 2002 on Buildings, which contains
implementation regulations concerning disabled access when designing and constructing new
buildings.
3
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.
Similarly, in Australia, the wording of legislation can be detrimental. For example;
proposed changes to discrimination law, if successfully passed through Parliament, would
have the effect of making it unlawful to treat someone unfavourably by offending or insulting
4
them because of their political opinions, industrial history, or social origin in any workrelated 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 conflicts arising from the interpretation and application of certain laws there remains a
gap between disability specific legislation and harmonisation with the rest of the legal
system.
5
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.
5. Current road traffic laws that contain provisions regarding the inclusion of disability
accessible infrastructure needs to be reviewed and strengthened to the extent that
breaching the requirements for disabled access can be effectively prosecuted.
6
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/2030-22/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
Simon Darcy, Disabling Journeys: The tourism atterns of eole with imairments in
Australia.
7
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.
Qualifications – lecture at faculty of lawUdayana University( fundamental law department).
8