Preface

All rights reserved. Published 2011

Published by Disability Rights Promotion International (DRPI)
York University 4700 Keele Street
5021 TEL Building Toronto
ON M3J 1P3 Canada

Author: Petra Butler

This report relies on research conducted in the Law Faculty of Victoria University of Wellington, New Zealand and research done by the Convention Coalition, a collaboration of disabled peoples’ organisations in New Zealand. The research utilised a systemic monitoring template devised by Disability Rights Promotion International (DPRI), an international project developed to monitor the human rights situation of people with disabilities, based at York University in Toronto, Canada.

This research was supported by funding from New Zealand’s Office for Disability Issues (ODI). ODI does not necessarily share the views expressed in this material. Responsibility for its contents rests entirely with the author.

Disability Rights Promotion International

This publication has been produced by Disability Rights Promotion International (DRPI). In November 2000, the United Nations Special Rapporteur on Disability, Bengt Lindqvist, hosted an international seminar at the Almåsa Conference Centre in Sweden. Twenty-seven experts from around the world discussed measures to strengthen the protection and promotion of the human rights of persons with disabilities. The seminar was attended by representatives of all the major international disability organisations, the UN Office of the High Commissioner for Human Rights and the UN Secretariat, disability rights activists and experts on human rights. Seminar participants recommended the creation of a global system to monitor disability rights – that is, to collect, track and report on information about ways in which persons with disabilities are enjoying their human rights. The DRPI project was designed and developed by Bengt Lindqvist and Marcia Rioux to work towards creating a global disability rights monitoring system.

As governments of countries around the world ratify the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol, it is important to make sure that the rights guaranteed to persons with disabilities on paper are achieved in their daily lives. For the CRPD to have a real and positive impact on the lives of persons with disabilities, governments need to have a baseline of information so that they can identify gaps in whether and how persons with disabilities are exercising their rights. This information makes it possible to measure how the situation is improving. Collecting, tracking and reporting on information about whether persons with disabilities are enjoying their rights, also called ‘monitoring’ rights, plays an important role in this process.

Working collaboratively with persons with disabilities, their organizations and allies, DRPI has developed tools and methods to facilitate disability rights monitoring as well as supporting materials and courses to build capacity in monitoring. DRPI has adopted the twin-track approach to advancing the rights of persons with disabilities, that is, recognizing the importance of universal ratification, implementation and monitoring of the CRPD to achieving the full enjoyment of rights by persons with disabilities while also acknowledging the important role to be played by other human rights treaties that apply to persons with disabilities, for example, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). In keeping with the twin-track approach, DRPI’s tools and methods can be used to monitor both the CRPD and the other international and regional human rights treaties that apply to persons with disabilities.

DRPI has its International Coordination Centre at York University in Toronto, Canada and regional centres in Africa (Kigali, Rwanda), Asia-Pacific (Bangkok, Thailand), Europe (Belgrade, Serbia), Latin America (Buenos Aires, Argentina) and North America (Toronto, Canada). It has partnered with organizations of persons with disabilities national human rights institutions, universities and research centres around the world to conduct disability rights monitoring projects lead by persons with disabilities, in 10 countries located across all continents. DRPI monitoring reports from Kenya (2007), Cameroon (2007), India (2009), Bolivia (2009), Philippines (2009) Canada (2010) and New Zealand (2010), submissions made to the UN Commission on the Status of Women (2008) and Human Rights Council (2010), as well as DRPI’s disability rights monitoring tools, training materials and information about current monitoring activities are all available on the project website.

Project Directors and Principal Investigators:

Bengt Lindqvist, UN Special Rapporteur on Disability (1994-2002), Sweden
Marcia Rioux, Professor, York University, Canada

International Coordination Centre Staff :

Rita Samson, International Project Coordinator
Mihaela Dinca-Panaitescu, Canada Project Coordinator
Christopher Lytle, Research Associate
Paula Pinto, Research Associate

The DRPI project has received financial support from the Swedish International Development Cooperation Agency (Sida), the Social Sciences and Humanities Research Council of Canada (SSHRC), the Department of Canadian Heritage, York University, State University of New York at Buffalo, L’Institut de réadaptation en déficience physique de Québec (IRDPQ), le Centre interdisciplinaire de recherche en réadaptation et intégration sociale (CIRRIS) and the Swedish Association of the Visually Impaired (SRF). We thank all of these organizations for their generous support.

Section 1: Introduction

This report aims to outline New Zealand’s approach to the protection of the rights of persons with disabilities. The research was supported by funding from New Zealand’s Office for Disability Issues. The report relies on research conducted in the Law Faculty of Victoria University of Wellington, and research done by the Convention Coalition, a collaboration of disabled peoples’ organisations in New Zealand¹. The research utilised a systemic monitoring template devised by Disability Rights Promotion International (DPRI), an international project developed to monitor the human rights situation of people with disabilities².

The DPRI’s systemic monitoring template is structured around the Convention on the Rights of Persons with Disabilities³. The template is designed to measure the laws, policies and programs in existence in the given country as well as their practical application and effect. Monitors are required to compile descriptive data in relation to the laws, policies and programs at play, but must also test the impact of those laws, policies and programs against other analytical sources such as budgets and statistics, and conduct integrated analysis to measure consistency with human rights treaties in fact. Included in this analysis is a discussion of whether and how well the country performs in relation to five general human rights principles:

• Dignity
• Autonomy
• Participation, inclusion and accessibility
• Non-discrimination and equality
• Respect for difference

This methodology operates to identify and draw attention to critical gaps and deficiencies in national legislative and policy frameworks in protecting and promoting the human rights of persons with disabilities⁴.

Note #1

The latter has been published by the Disabled Persons Assembly as Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand.

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Note #2

See Appendix A.

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Note #3

Convention on the Rights of Persons with Disabilities (opened for signature 30 March 2007, entered into force 3 May 2008).

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Note #4

It is designed to be used in conjunction with the DRPI Individual Experience monitoring which provides information about the lives of people with disabilities. Using the two methods of data collection, it is possible to get a reading of the gap between a country’s laws, policies and programs and the impact on the exercise of rights of individuals with disabilities.

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Section 2: Overview

New Zealand is a democratic constitutional monarchy in which Parliament is the supreme lawmaking body. New Zealand is not a federal system: the unicameral Parliament has complete power to make law for all of New Zealand⁵. Parliament consists of the House of Representatives and the Governor General⁶. The three branches of the New Zealand government are the legislature, the executive and the judiciary. In theory the three branches have separate membership and functions. While there are significant areas of practical overlap between the executive and legislative branches, the combination of constitutional convention and the nature of the electoral system preserve an adequate separation of powers.

In the context of human rights, the legislature creates human rights legislation, the executive is responsible for implementing policies that comply with the legislation and the judiciary has a significant role to play in enforcing human rights. While judges may provide several different remedies for breaches of human rights⁷, because of the principle of parliamentary sovereignty, their powers do not extend to striking down legislation that is inconsistent with human rights. The independence of the judiciary is an important constitutional principle. Judges have security of tenure and salary so that judges may be free of fear or favour when deciding cases⁸. In New Zealand the courts have been instrumental in developing remedies for breaches of the New Zealand Bill of Rights Act 1990. The fundamental protections for human rights in New Zealand are contained in the New Zealand Bill of Rights Act 1990 (BORA) and the Human Rights Act 1993 (HRA). While both acts are important parts of the New Zealand constitution, neither of them are supreme law and can, in theory, be amended by a simple majority in Parliament.

Note #5

Constitution Act 1986, s 15.

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Note #6

Constitution Act 1986, s 14.

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Note #7

Remedies are stay of proceedings, exclusion of evidence, and Baigent damages (damages for the breach of the New Zealand Bill of Rights Act), see Andrew Butler & Petra Butler, The New Zealand Bill of Rights Act 1990: a commentary (Lexis Nexis, Wellington, 2005) pp 965 et seq. Part 1A of the Human Rights Act 1993 gives the Human Rights Review Tribunal (and the courts on appeal) the right to declare legislation inconsistent with s 19 BORA (freedom from discrimination).

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Note #8

Constitution Act 1986, ss 23 and 24.

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Section 2.1: Sources of Law

New Zealand does not have a written, entrenched constitution. Rather, the constitution of New Zealand consists of certain statutes adopted from the United Kingdom, certain New Zealand statutes, constitutional case law, the Treaty of Waitangi, the prerogative powers of the Sovereign, and constitutional conventions⁹. The Treaty of Waitangi is a document signed by the Crown and the indigenous people of New Zealand, the Māori, on 6 February 1840. The Treaty has not been incorporated into New Zealand law and is not considered directly justiciable. Nevertheless, the principles of the Treaty are taken into account when passing legislation¹⁰. New Zealand ratified the core international human rights treaties, however, they have not been incorporated into New Zealand law as such- although both, the BORA and the HRA, were passed in order to affirm New Zealand’s commitment to its international human rights obligations, in particular the International Covenant on Civil and Political Rights¹¹. In an established line of case law courts have affirmed the necessity and utility of interpreting the domestic human rights provisions in the light of equivalent international provisions and jurisprudence developed there under¹² but have also referred to New Zealand commitments under international human rights law when interpreting ordinary statutes¹³. Section 19 BORA prohibits discrimination against individuals by the government and the HRA prohibits discrimination in the private sphere.

Note #9

Department of the Prime Minister and Cabinet: Cabinet Office “Cabinet Manual 2008” 2008, (accessed: 23 June 2011).

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Note #10

Department of the Prime Minister and Cabinet: Office “Cabinet Manual 2008” 2008, (accessed: 25 June 2011) para 7.60.

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Note #11

See also already the Long Title to the Race Relations Act 1971 which stated as one its two purposes that it was an Act to, among other matters, implement the International Convention on the Elimination of All Forms of Racial Discrimination. The Race Relations Act 1971 was amalgamated with the Human Rights Commission Act 1977 in the Human Rights Act 1993.

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Note #12

See A Butler & P Butler The Judicial Use of International Human Rights Law in New Zealand (1999) 29 VUWLR 173; K Keith Roles of the Courts in New Zealand in Giving Effect to International Human Rights- with some history (1999) 29 VUWLR 27; A Conte From Treaty to Translation: The use of international human rights instruments in the application and enforcement of civil and political rights in New Zealand (2001) 8 Canta L Rev 54.

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Note #13

For example: Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA): Tavita had exhausted all his appeal rights in regard to staying in New Zealand prior to the birth in New Zealand of his daughter. The issue was whether the Minister, in deciding whether to execute the removal order, was required to take the interests of the child into account (in accordance with the International Covenant of the Rights of the Child which New Zealand has ratified). In the context of an interim order application under s 8 of the Judicature Amendment Act 1972, the Court of Appeal said no more than that it was arguable that there was such an obligation. The Court did observe, however, that it would be hesitant to accept the Minister’s argument that he and the NZIS were entitled to ignore international instruments as this implied New Zealand’s adherence to the Covenant and the Convention were partly window-dressing. See A Butler & P Butler “The Judicial Use of International Human Rights Law in New Zealand” (1999) 29 VUWLR 173; K Keith “Roles of the Courts in New Zealand in Giving Effect to International Human Rights- with some history” (1999) 29 VUWLR 27; A Conte “From Treaty to Translation: The use of international human rights instruments in the application and enforcement of civil and political rights in New Zealand” (2001) 8 Canta L Rev 54.

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Section 3: Effective and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities in New Zealand

Section 3.1: Introduction

New Zealand has several laws and policies in place to respect and ensure the equal and effective enjoyment of all human rights and fundamental freedoms by persons with disabilities. The three most important documents in ensuring the rights and freedoms of disabled people are¹⁴: The New Zealand Bill of Rights Act 1990, the HRA, and the New Zealand Disability Strategy. There are also several “minor” laws and policies which provide further protection for the rights of persons with disabilities (legislation governing health, education, and other social services)¹⁵. Furthermore, there is leadership on a very high level: the Minister for Disability Issues, supported by the Ministerial Committee on Disability Issues and the Office for Disability Issues advocate on behalf of New Zealanders with disabilities¹⁶. In the 2010 budget the Government made an extra NZ$93 million available to expand existing disability support services until 2014. NZ$72 million are vouched to be spent to improve access to disability support services. Further, a full-time Disability Rights Commissioner has been established.

Despite the legal protections, persons with disabilities still face practical barriers which prevent their full, effective and equal enjoyment of human rights and fundamental freedoms in New Zealand society¹⁷. The New Zealand Disability Strategy was launched in 2001 to remove these barriers. While the Strategy has made much progress, much more work needs to be done before disabled people can say that they have full enjoyment of their rights. The Strategy has been supplemented by the Disability Action Plan, agreed on by the Ministerial Committee, which focuses in particular on three areas: support for living, mobility and access, and jobs¹⁸.

In 2010 unlawful discrimination on the grounds of disability was the largest single category of complaints to the Human Rights Commission arising most frequently in the areas of employment (29.4 per cent of such complaints) and public sector activity (33 per cent). Over one third of all disability complaints involved an issue concerning the “reasonable accommodation” of their disability.¹⁹

Note #14

Despite the use of the phrase persons with disabilities in the Convention and the accompanying template, the phrase disabled people has been used throughout the report and the template because it is the phrase used throughout the New Zealand Disability Strategy. The phrase people experiencing disabilities which is much closer to the Convention phrasing, was rejected because there were mixed reactions to the term. Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011) 11.

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Note #15

Eg. Education Act 1989, Public Health and Disability Act 2000.

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Note #16

See in regard to the Ministerial Committee: Office for Disability Issues website (accessed 22 June 2011).

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Note #17

See, Robyn Hunt, The rights of disabled people – draft for discussion (Human Rights Commission, Wellington, May 2010) foreword.

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Note #18

Office for Disability Issues website (accessed: 27 June 2011).

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Note #19

Human Rights Commission and The Office of Human Rights Proceedings Annual Report 2010 (accessed: 11 June 2011).

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Section 3.2: Non-discrimination

Section 3.2.1: General

Section 19(1) of the BORA prohibits discrimination against persons on the grounds specified in section 21 of the HRA. Under section 21(1)(h) of the HRA, disability includes: a physical disability or impairment, physical illness, psychiatric illness, an intellectual or psychological disability or impairment, any other loss or abnormality of psychological, physiological, or anatomical structure or function, reliance on a guide dog, wheelchair, or other remedial means, or the presence in the body of organisms capable of causing illness. BORA only applies to acts done by the legislative, executive or judicial branches of government or by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law²⁰. Part 1A of the HRA prohibits discrimination by government, related persons and bodies, or persons or bodies acting with legal authority, and section 92J allows the Human Rights Review Tribunal to grant a declaration of inconsistency if there has been a breach of section 19 of BORA²¹. Part 2 of the HRA prohibits unlawful discrimination among private persons. While the prohibition on discrimination is general because it includes discrimination on several different grounds, it also explicitly prohibits discrimination based on a person’s disability.

Section 19(2) of BORA states that measures taken in good faith to advance the position of persons disadvantaged because of a prohibited ground of discrimination, do not constitute discrimination. Sections 73 and 74 of the HRA contain similar provisions. Thus special measures adopted to assist disabled people in society do not constitute discrimination.

Section 65 of the HRA also prohibits indirect discrimination on the prohibited grounds of discrimination. If any conduct that is not apparently in contravention of the Act, but has the effect of treating a person or group of persons differently in a situation that would usually constitute unlawful discrimination, that conduct shall be unlawful unless the person establishes good reason for it.

The Human Rights Commission in the Consistency 2000 Project considered the potential of intra-disability discrimination. Intra-disability discrimination is when people who have one type of disability may be treated differently to people who have a different type of disability²². The Commission noted that some social welfare programmes accord preferential treatment to people who are blind over others with equivalent levels of disability such as deafness or paraplegia. Inherent in the principle of respect for difference of persons with disabilities is the idea that others must respect the different needs of persons with different disabilities. However, if one cannot justify why people with one type of disability are treated differently from people with another type of disability, then different treatment could amount to unlawful discrimination on the ground of disability. The Commission held that distinctions made within the ground of disability are capable of contravening Part II of the Human Rights Act 1993²³. The Commission recommended that the different definitions of disability in legislation should be reviewed and made consistent but this recommendation has not been implemented²⁴. In Trevethick v Ministry of Health Justice Dobson held in the High Court that the defendant discriminated between those who had a disability as a result of an accident and those who had a disability as a result of an illness. However, because the cause of a disability was not a prohibited ground of discrimination under section 21 HRA, it did not constitute unlawful discrimination²⁵.

Note #20

The New Zealand Bill of Rights Act 1990, s 3.

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Note #21

37.7 per cent of all complaints under Part 1A of the HRA 1993 related to disability (Human Rights Commission and The Office of Human Rights Proceedings Annual Report 2010 (accessed: 11 June 2011).

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Note #22

Human Rights Commission Consistency 2000: Report to the Minister of Justice pursuant to Section 5 (l) (k) of the Human Rights Act 1993 31 December 1998, 71.

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Note #23

Human Rights Commission Consistency 2000: Report to the Minister of Justice pursuant to Section 5 (l) (k) of the Human Rights Act 1993 31 December 1998, 49. It has to be noted that at the point in time in which the Consistency 2000 Report was compiled Part 1A of the HRA did not exist. The issues in regard to inter-ground discrimination in BORA are analogous to the ones raised in regard to the HRA.

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Note #24

Human Rights Commission Consistency 2000: Report to the Minister of Justice pursuant to Section 5 (l) (k) of the Human Rights Act 1993 31 December 1998, 72.

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Note #25

Trevethick v Ministry of Health [2008] NZAR 454.

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Section 3.2.2: Justified Limitations

Note #26

New Zealand Bill of Rights Act 1990, s 5.

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The rights and freedoms in the BORA are subject to such reasonable limits as are prescribed by law as can be demonstrably justified in a free and democratic society²⁶. Therefore discrimination against persons with disabilities may, in some circumstances, be legal under the Act.

In general, if a person can accommodate the characteristics of another person who has a disability, then under the HRA the disabled person must be accommodated. However, a person with a disability need not be accommodated if it is unreasonable to expect someone else to provide the required accommodation. A disabled person need not be accommodated if it would pose a risk of harm to the disabled person or others and it is unreasonable to take that risk. There is a presumption within academic circles and among practitioners that if the HRA allows discrimination when it is unreasonable to accommodate a disabled person, then there is a prima facie presumption that the Government may be entitled to do the same. However, the theory has not been tested and the Government should ideally lead by example in promoting human rights. The question is to what extent the Government must accommodate someone under section 19 BORA, in light of section 5 BORA. This has not been tested in Court.

Section 3.2.3: The Courts

Note #27

Andrew & Petra Butler, The New Zealand Bill of Rights Act 1990: a commentary (Lexis Nexis, Wellington, 2005) 17.9.33 (p 499).Andrew & Petra Butler, The New Zealand Bill of Rights Act 1990: a commentary (Lexis Nexis, Wellington, 2005) 17.9.33 (p 499).

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Note #28

8 HRNZ 902; [2010] NZHRRT 1.

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Unfortunately, New Zealand case law has failed to develop a consistent approach to the concept of discrimination. Basic ideas such as different treatment, comparator groups, indirect discrimination, the role of intention, causation and so on are not well understood. Equally, the relationship between section 19 and section 5 of BORA is not well thought through at this point in time²⁷. The decision which has been hailed as one of the most significant victories in the disability sector was Atkinson v Ministry of Health ²⁸. Parents of profoundly disabled adult children challenged the Ministry of Health’s policy of not paying family members to provide certain personal care to their children where those children had been assessed as requiring care. The Ministry has funded external caregivers but not family members. The Human Rights Review Tribunal held that policy to be unjustifiably discriminatory due to family status.

Section 3.3: Dignity and Respect for Difference

Note #29

Quilter v Attorney-General [1998] NZFLR 196, 205 (CA) Thomas J.

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Note #30

Quilter v Attorney-General [1998] NZFLR 196, 223 (CA) Thomas J.

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The Quilter case in the New Zealand Court of Appeal explored the principle of respect for difference in regards to discrimination. Justice Thomas noted that there will always be differences between human beings, and that distinctions between people must be made if governance is to be effective and provide for the inevitable variety of differences between people. However, his Honour also stated that distinctions that treat certain persons as being less worthy of concern, respect and consideration on the basis of personal differences which are irrelevant, in effect, treat them as second-class citizens²⁹. His Honour went on to note that historically people who could be described as different have not fared well.³⁰

Note #31

Quilter v Attorney-General [1998] NZFLR 196, 205 (CA) Thomas J.

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Note #32

Quilter v Attorney-General [1998] NZFLR 196, 228 (CA) Thomas J.

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Justice Thomas also explored the principle of respect for dignity in Quilter. His Honour noted that “The existence of discrimination can only be determined by

assessing the prejudicial effect of the distinction against… the fundamental purpose of preventing the infringement of essential human dignity.³¹

Justice Thomas also stated that the fundamental concept of human dignity is what underlies all human rights legislation. ³²

 

Note #33

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 22 June 2011).

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The entire thrust of the New Zealand Disability Strategy is to recognise that disabled people have different needs and if those needs are not met, then it has a detrimental impact on the dignity of persons with disabilities.³³

Section 3.4: Reasonable Accommodation

Note #34

Human Rights Act 1993, ss29, 36, 37, 39, 41, 43, 49.

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Note #35

Human Rights Commission and The Office of Human Rights Proceedings Annual Report 2010 (accessed: 11 June 2011) 13.

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Note #36

Human Rights Commission and The Office of Human Rights Proceedings Annual Report 2008 2009 (accessed: 11 June 2011) 13.

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Note #37

Human Rights Commission and The Office of Human Rights Proceedings Annual Report 2008 2009 (accessed: 11 June 2011) 13.

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The principle of respect for difference recognises that disabled people have unique needs and in order for disabled people to be fully integrated into society, those special needs may require the provision of remedial aids or additional services. The HRA holds that it is unlawful to discriminate against persons with disabilities if it is reasonably possible to accommodate their special needs³⁴. However, as the Human Rights Commission noted there is considerable uncertainty about what constitutes reasonable accommodation in New Zealand. In 2008 36.5 per cent of all complaints regarding disability discrimination to the Human Rights Commission involved the reasonable accommodation issue.³⁵ The concept is not defined in the Act and there is minimal case law on the issue³⁶. The Commission has advocated for a new definition of reasonable accommodation based on the Convention meaning:

Reasonable accommodation in relation to disability means necessary and appropriate modifications and adjustments that do not impose a disproportionate or undue burden, where needed in a particular case, to ensure a person with disabilities is able to enjoy the rights in this Act on an equal basis with others.³⁷

 

Note #38

Smith v Air New Zealand 2011 [NZCA] 22.

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In 2011 the Court of Appeal considered what constituted reasonable accommodation in regards to discrimination on the grounds of disability. The complainant, Mrs Smith, required extra oxygen on long haul flights, and she needed it to be provided in a very specific manner. On long haul flights Air New Zealand provided her with extra oxygen in the specified manner and charged her USD$75 per sector. The issue was whether Air New Zealand was required to provide the oxygen in the manner that Mrs. Smith required without requiring more onerous terms, specifically the cost of the oxygen. The Court of Appeal held that it was reasonable for Air New Zealand to provide the oxygen with an additional charge, because the actual cost of providing the oxygen was much greater than the charge that Air New Zealand imposed on Mrs. Smith. The Court held that the service provider, Air New Zealand, had to provide the services not less favourably subject to a reasonableness requirement (the standard employed being similar to standard laid out in Article 2 of the CRPD)- and a charge was reasonable.³⁸

Section 3.5: Remedies

Note #39

Human Rights Act 1993, s 5.

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Note #40

Human Rights Act 1993, s 76.

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Note #41

Human Rights Act 1993, s 92B.

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Note #42

Human Rights Act 1993, s 89.

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Despite the prohibition on discrimination against persons with disabilities, disabled people often find themselves discriminated against. However, there are several remedies they can seek to protect their rights. The Human Rights Commission has the right to inquire into any governmental or non-governmental law or practice which infringes a person’s human rights³⁹. Other functions of the Commission include facilitating the resolution of disputes about compliance, assessing complaints alleging breaches of the HRA, mediation, or to taking further action to resolve disputes⁴⁰. The Commission aims to resolve disputes through mediation or by procuring a settlement between the parties. However, if those methods of dispute resolution are unsuccessful, a complainant can also bring proceedings to the Human Rights Review Tribunal⁴¹. The Human Rights Review Tribunal can enforce settlements reached between the parties to a dispute.⁴²

Note #43

Human Rights Act s92I(3)

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Note #44

Human Rights Act, ss. 92J, 92K.

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Note #45

Human Rights Act 1993, s 92R.

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Note #46

Human Rights Act 1993, s. 123.

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The Tribunal can order the following remedies: a declaration of a breach by the defendant, an order restraining the defendant from continuing the breach, damages, an order requiring the defendant to perform certain acts regarding redress for loss or damage, or any other relief that the Tribunal thinks is fit⁴³. The Tribunal can also issue a declaration of inconsistency if an enactment is inconsistent with the freedom from discrimination provision under section 19 of the BORA, even though the offending Act or policy will still continue in operation⁴⁴. The Tribunal can refer the granting of remedies to the High Court if it believes that the granting of that remedy would be outside its jurisdiction or if the Tribunal determines that the granting of those remedies are more appropriate for the High Court⁴⁵. If a complainant is unsatisfied with the result of the Tribunal, then the complainant can appeal to the High Court and complainants also have the right to appeal to the Court of Appeal on a point of law.⁴⁶ The principle of access to justice through the courts is also an important principle in New Zealand law.

Note #47

Human Rights Commission and The Office of Human Rights Proceedings Annual Report 2008 2009 (accessed: 11 June 2011) 13.

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Section 27 of the NZBORA states that every person has the right to justice and that if any person feels that their rights are violated, that person can seek redress through civil proceedings, judicial review or through an appropriate tribunal. In 2008 26.8 per cent (the single largest category of complaints) of complaints to the Human Rights Commission concerned disabilities⁴⁷. Those statistics indicate that persons with disabilities are able to exercise their right to justice and have been doing so through a review of their claim by the Commission.

Note #48

Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260 (CA), 266, 270 (Cooke P); Simpson v Attorney General [Baigent’s Case] [1994] 3 NZLR 667 (CA) 677 Cooke P, 698 (Hardie Boys J).

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Note #49

R v Butcher [1992] 2 NZLR 257 (CA), 269 (Gault J); Simpson v Attorney General [Baigent’s Case] [1994] 3 NZLR 667 (CA), 718 (MaKay J); R v Shaheed [2002] 2 NZLR 377 (CA), 410 (Blanchard J).

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Note #50

Simpson v Attorney General [Baigent’s Case] [1994] 3 NZLR 667 (CA).

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In regard to breaches of the BORA, courts have held that the lack of an explicit remedies clause in BORA, does not preclude the courts from granting remedies if there is a proven violation of BORA rights⁴⁸. Some Judges have taken the lack of a remedies clause as an indication that Parliament has left the courts to decide what constitutes an appropriate remedy for the breach of BORA rights⁴⁹. In Simpson v Attorney-General the Court of Appeal held that compensation could be an appropriate remedy for a violation of the BORA, especially when no other remedy was available⁵⁰.

Note #51

Human Rights Committee Consideration of Reports submitted by States Parties: Concluding Observations: New Zealand (7 August 2002) CCPR/CO/75/NZL para 8.

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However, the UN Human Rights Committee noted that the BORA is not supreme law and as such Parliament can legislate in violation of it, leaving a potential claimant with no remedy for a breach of his or her rights. The Committee was particularly concerned that this did not satisfy the obligation to provide an effective remedy for a breach of rights under Article 2 of the International Convention on Civil and Political Rights, which New Zealand has ratified⁵¹.

Section 3.6: The New Zealand Disability Strategy

Note #52

In 2006 660,300 New Zealanders reported a disability (= 17 per cent of the total population).

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Note #53

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 22 June 2011) 8.

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The New Zealand Disability Strategy – Making a World of Difference was launched in 2001 with the aim of removing all the barriers that disabled people experience in the New Zealand community. The Strategy recognises that most of our society is designed by people who do not have impairments and therefore do not take the impairments that some others live with into account⁵². The goal of the New Zealand Disability Strategy (NZDS) is to create a fully inclusive society where people with disabilities can say that they live in a society that highly values our lives and continually enhances our full participation.⁵³ The Strategy is based around 15 Objectives and 116 detailed Actions designed to enhance the lives of disabled people and to make society more inclusive of disabled people. The Strategy does not use the exact wording of the template but it is clear that the general human rights principles of dignity, autonomy, participation, inclusion and accessibility, non-discrimination and equality and respect for difference underlie the Objectives and Actions of the NZDS. The Strategy is implemented by Government work plans and goals that focus on achieving the objectives of the NZDS. The Office for Disability Issues is responsible for monitoring Government agencies that are implementing the Strategy and the Office writes annual reports which review the progress that Government departments have made. The Minister for Disability Issues must present to Parliament a report on progress with implementation each year.

Note #54

Human Rights Commission The rights of disabled people – draft for discussion (Human Rights Commission, Wellington, May 2010) 9.

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In a 2007 review of the first six years of the Strategy, disabled people acknowledged that the implementation of the Strategy had resulted in improvements in accessibility and communications, wider recognition of their value and contribution within their communities, and some inclusion within central decision-making processes. However, many participants of the review felt progress had been too slow and some disabled people had benefitted more than others.⁵⁴

Note #55

Office for Disability Issues, June 2009.

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Note #56

Office for Disability Issues Work in Progress 2010 (Wellington, December 2010) 10.

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Furthermore, the Government has established a Ministerial Committee on Disability Issues. One aim of the Committee is to focus the Government on improving the circumstances of disabled people and people who support them, improving the accessibility of the world they live in and improving disability support⁵⁵. The Ministerial Committee agreed in 2010 to the Disability Action Plan which focuses on three key areas where the life of disabled people can be enhanced: support for living, mobility and access, and jobs.⁵⁶

Section 3.7: Promoting awareness

Note #57

Office for Disability Issues Work in Progress 2007″ 2007 (accessed 10 June 2011) 13. Office for Disability Issues Work in Progress 2008 2008 (accessed 26 June 2011) 7.

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Note #58

Office for Disability Issues Improving attitudes towards disabled people (accessed 21 May 2011).

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Objective 1 of the NZDS is to encourage and educate for a non-disabling society which respects and highly values the lives and contributions of disabled people. The Ministry of Health, for example, headed a multi-agency work plan entitled Like Minds, Like Mine to help address the stigma and discrimination associated with mental illness. This advertising programme has been successful in increasing awareness and changing attitudes, but affected people still feel discrimination in many aspects of their lives⁵⁷. As the Office for Disability Issues lists, disabled people encounter barriers in society in relation to, for example, schools, which may assume that disabled children have less potential than other children, and hold lower expectations of them; dealing with professionals such as medical professionals, who may fail to understand disabled people’s needs and how to meet these; employers, who may believe that disabled people have little to offer them, will create unacceptable levels of health and safety risks, and will need much costly support to perform as well as non-disabled people; or their communities, who may be afraid of disability, wary of disabled people, and likely to stereotype disabled people as others.⁵⁸

Note #59

Human Rights Commission, The rights of disabled people- draft (Human Rights Commission, Wellington, May 2010) 15.

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Note #60

Office for Disability Issues “Work in Progress 2010” (Wellington, December 2010) 8.

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The New Zealand Household Disability Survey provides information in regard to outcomes for disabled people. For example, there are significant differences in disability rates across different ethnicities in New Zealand. Eighteen per cent of disabled people are European, Asians have the lowest rate of disability with 5 per cent⁵⁹. The Office for Disability Issues commissioned a review of statistical data from 1996, 2001, and 2006 Disability Surveys comparing key social and economic outcomes for disabled people and non-disabled people over time. There was no clear overall pattern of improvement or deterioration over the surveyed period in the position of disabled people relative to non-disabled people.⁶⁰

Note #61

Human Rights Commission (last accessed 25 June 2011).

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Already specific information in the regard to the Convention has been published. The Health and Disability Commissioner produced Are you committed to the Convention? and Is your agency committed to the Convention? to assist governmental and non-governmental organisations that provides disability support.⁶¹

Section 3.8: Women with Disabilities

Note #62

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference

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Note #63

Human Rights Commission (last accessed 25 June 2011).

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Note #64

Human Rights Commission (last accessed 25 June 2011).

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Objective 14 of the NZDS is to promote the participation of disabled women in order to improve their quality of life and it is accompanied by six detailed Actions⁶². The Committee on the Elimination of Discrimination Against Women recommended, in its fifth periodic report, that New Zealand should pay particular attention to the situation of disabled married women with a view to ensuring their economic independence. In their sixth and latest periodic report the Committee recognised that the Ministry Women’s Affairs is working with the Office for Disability Issues to support the participation of disabled women in all areas of life and the removal of the barriers that they face, through the implementation of the New Zealand Disability Strategy⁶³. The Committee also noted in particular that disabled women in New Zealand had been active participants in the development of the proposed CRPD.⁶⁴

Section 3.9: Children with Disabilities

Note #65

New Zealand Household Disability Survey, 2006.

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Note #66

Developed in accordance with Article 23 of the United Nations Convention on the Rights of the Child. Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011) 17.

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Note #67

Office for Disability Issues Work in Progress 2008 (accessed 26 June 2011) 55.

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Note #68

Office for Disability Issues Work in Progress 2008 (accessed 26 June 2011) 55.

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Note #69

Ministry of Youth Development Third and Fourth Periodic Report for the United Nations Committee 2008 (accessed: 25 June 2011) para 9.5.

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Note #70

Ministry of Youth Development Third and Fourth Periodic Report for the United Nations Committee 2008 (accessed: 25 June 2011) para 9.5.

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Note #71

Ministry of Youth Development Third and Fourth Periodic Report for the United Nations Committee 2008 (accessed: 25 June 2011) para 9.5.

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Ten per cent of New Zealand children, aged 0-14 years have a disability. Boys make up 59 per cent of those children⁶⁵. Objective 13 of the New Zealand Disability Strategy is to enable disabled children and youth to lead full and active lives, in conditions that prepare them for adulthood. The Objective includes ten specific Actions which are based on ensuring their dignity, affirming their right to a good future, recognising their emerging identities as individuals and reinforcing their sense of self, promoting self-reliance facilitating their active participation in the community⁶⁶. The Ministry of Social Development has launched the Early Years Intervention approach to ensure that disabled children and their families can access support services as early as possible⁶⁷. The Ministry of Social Development also fostered inter-agency collaboration between Child Youth and Family and the Ministry of Health which will provide better advocacy for children and young people with disabilities⁶⁸. The proportion of disabled children who attend mainstream schools rose from 74 per cent in 2001 to 88 per cent in 2006⁶⁹. The Ministry of Education also has a Better Outcomes for Children Plan 2006-2011 which is designed to raise achievement and improve services for children eligible for special services through Group Special Education⁷⁰. The Ministry of Youth Development noted that most children who have disabilities are able to live with their parents, or in an alternative family setting. There are few children or young persons in New Zealand who live in a residential facility due to their disability.⁷¹

Note #72

Committee on the Rights of the Child Consideration of Reports Concluding Observations: New Zealand CRC/C/15/Add.216 para 39.

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Note #73

Committee on the Rights of the Child Consideration of Reports Concluding Observations: New Zealand, CRC/C/15/Add.216 para 40.

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Note #74

Ministry of Youth Development Third and Fourth Periodic Report for the United Nations Committee 2008 (accessed: 25 June 2011) para 9.18.

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Note #75

Ministry of Youth Development Third and Fourth Periodic Report for the United Nations Committee 2008 (accessed: 25 June 2011) para 9.19.

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The UN Committee on the Rights of the Child was concerned that children with disabilities are not fully integrated into all aspects of society and that support services, are often difficult for families of children with disabilities to access⁷². The Committee’s recommendations in response to New Zealand’s second periodic report on the UN Convention on the Rights of the Child was to ensure that adequate human and financial resources are allocated to implement the New Zealand Disability Strategy, in particular the integration of children with disabilities into mainstream education and other aspects of society⁷³. The Ministry noted that significant progress had been made, since the last report in integrating disabled children into the education system and ensuring that their health needs are adequately met⁷⁴. However, the Ministry still recognises that children and young people with disabilities face additional challenges and that ensuring children and young people with disabilities receive all the opportunities that are accorded to others, are matters that need to be continually monitored and addressed.⁷⁵

Section 3.10: Māori and Pacific Peoples

Note #76

Statistics New Zealand Quick Stats about Culture and Identity: Ethnic Groups in New Zealand 4 February 2009 (accessed: 30 June 2011).

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Note #77

Human Rights Commission, The rights of disabled people– draft (Human Rights Commission, Wellington, May 2010) p 15.

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Note #78

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011).

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Note #79

Faiva Ora National Pasifika Disability Plan (accessed 27 June 2011).

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Even though it is not mentioned in the monitoring template, the New Zealand Disability Strategy has specific Objectives that are designed to cater to the needs of Māori and Pacific disabled peoples. Māori are the indigenous people of New Zealand and the second largest ethnic group at 14.6 per cent of the total population. 6.9 per cent of the population are Pacific Islanders⁷⁶. Total disability rates were 17 per cent for Māori and 11 per cent for Pacific Islanders⁷⁷. Objective 11 of the New Zealand Disability Strategy is to promote the participation of disabled Māori and Objective 12 is to promote the participation of disabled Pacific people⁷⁸. Both objectives aim to provide disabled Māori and disabled Pacific people with culturally appropriate resources that can be accessed in a culturally appropriate way. In October 2010, the Faiva Ora National Pasifika Disability Plan was released. It sets out the Government’s priorities in regard to Pacific disability issues in the health sector until 2013.⁷⁹

Note #80

Office for Disability Issues: Work in Progress 2008 2008 (accessed 26 May 2011) 49.

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Note #81

Office for Disability Issues: Work in Progress 2008 2008 (accessed 26 May 2011) 50.

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Note #82

Office for Disability Issues: Work in Progress 2008 2008 (accessed 26 May 2011) 50.

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In 2008 the Ministry of Health provided $300 000 of funding to the Māori Provider Development Scheme which is designed to accelerate and improve Māori health and disability workforce development by enhancing and supporting the delivery of effective health management, administration, and clinical expertise of the Māori health and disability workforce⁸⁰. The Ministry of Education has also implemented the Māori Education Strategy, which aims to ensure mainstream providers of disability services provide accessible and culturally appropriate services for disabled Māori and their whānau. The goal of the project is to improve equity of education provision for Māori learners with special needs⁸¹. Te Puni Kokiri (Ministry of Māori Development) is trying to increase the capacity of Māori disability consumer groups with the aim of providing grant funding to projects that help realise the potential of disabled Māori. In 2008 several projects received funding, most of which included the perspectives and participation of visually impaired and deaf Māori.⁸²

Note #83

Office for Disability Issues: Work in Progress 2008 2008 (accessed 26 May 2011) 52.

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Note #84

Office for Disability Issues: Work in Progress 2008 2008 (accessed 26 May 2011) 52.

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The Ministry of Education is responsible for implementing the Pacifica Education Plan 2006-2010 which is designed to improve the education of Pacific peoples in New Zealand⁸³. It also contains specific actions for the special education needs of Pacific Islanders in New Zealand. The Ministry of Health has undertaken to publish articles on Pacific peoples’ health to inform and provide evidence for the Pacific Health and Disability Action Plan Review.⁸⁴

Section 3.11: Convention on the Rights of Persons with Disabilities

Note #85

United Nations, Enable: Rights and Dignity of Persons with Disabilities (accessed 22 June 2011).

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Note #86

Acts amended: Community Trust Act 1999; Education Act 1989; Juries Act 1981; Juries Amendment Act 2008; Local Government Act 2002; Maori Trust Boards Act 1955; Maritime Transport Act 1994; Motor Vehicle Sales Act 2003; Mutual Insurance Act 1955; New Zealand Council for Educational Research Act 1972; New Zealand Superannuation and Retirement Income Act 2001; Public Trust Act 2001; Reserve Bank of New Zealand Act 1989; River Boards Act 1908; Sale of Liquor Act 1989; Social Security Act 1984; Soil Conservation and Rivers Control Act 1941; Taranaki Scholarships Trust Board Act 1957; Te Ture Whenua Maori Act 1993; Trustee Act 1956; Waitangi National Trust Board Act 1932.

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Note #87

See for example: Taranaki Scholarships Trust Board Act 1957 amendment; Education Act 1989 amendment; Public Trust Act amendment.

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On 9 September 2008 New Zealand enacted the Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008. On 25 September 2008 New Zealand ratified the Convention on the Rights of Persons with Disabilities (CRPD)⁸⁵. The 2008 Act amends 23 other Acts⁸⁶ to make them more compliant with the CRPD. A considerable number of amendments concerned the membership of persons with disabilities to boards. The amendments focus on the fact whether a property order pursuant to the Protection of Personal and Property Rights Act 1988 was made in regard to a person as to whether they can be a member of a board⁸⁷. The Act omits the qualifier ‘physical’ from the definition of disability, thus giving the word disability a more inclusive, and Convention-compliant meaning. However, the Act does not specifically state that its purpose is to give effect to the CRPD, nor does it incorporate the CRPD into New Zealand legislation. The Convention is publicly available in Māori, New Zealand sign language, audio, and Braille. An easy read version in Māori and English is also available.

Note #88

Office for Disability Issues Work in Progress 2010 (Wellington, December 2010) 11.

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In October 2010, the Government made an important step towards imbedding the Convention into New Zealand by agreeing to a framework to promote, protect, and monitor the implementation of the Convention. That framework consists of the Ministerial Committee on Disability Issues as the Government mechanism to implement the Convention across Government and ODI (Office for Disability Issues) as focal point. The independent mechanism comprises three entities: the Human Rights Commission, the Office of the Ombudsmen, and the Convention Coalition, a governance-level steering group formed by six major disabled people’s organisations.⁸⁸

Note #89

Hon Ruth Dyson (Minister for Disability Issues) (2 September 2008) 649 NZPD 18340.

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The Minister for Disability Issues noted, during the second reading of the United Nations Convention on the Rights of Persons with Disabilities Bill, that the New Zealand Government only ratifies treaties when it is satisfied that its laws, policies and practices are not inconsistent with the treaty⁸⁹. However, the extent to which New Zealand’s laws, policies and practices are in compliance with the Convention is the subject of this report.

Section 3.12: International Cooperation

Note #90

New Zealand Agency for International Development NZAID Human Rights Policy Statement (accessed: 23 June 2011) 3.

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Note #91

New Zealand Agency for International Development Ending Poverty begins with Health (accessed: 24 June 2011) 17; see also New Zealand Agency for International Development International Development Policy Statement (accessed 27 June 2011).

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Note #92

New Zealand Agency for International Development Pacific Regional Social Development Programme 12 December 2008 (accessed: 24 June 2011).

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The primary focus of the New Zealand Agency for International Development (NZAID) is to eliminate poverty, but poverty in the international context is seen not just as a developmental issue, but also as a human rights issues⁹⁰. NZAID‘s overarching operating principles include equity and human rights. Therefore NZAID recognises that the

highest attainable standard of physical and mental health is a human right of all people regardless of gender, age group, ethnicity, social class or disability. ⁹¹

One of NZAID‘s regional health priorities in the Pacific is non-communicable diseases and other societal issues such as disability.⁹²

 

Note #93

Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill and international treaty examination of the Convention on the Rights of Persons with Disabilities (232-1) 2008 (Report of the Justice and Electoral Committee) 4;6.

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Note #94

Office for Disability Issues December 2008 Update on Convention 11 December 2008 (accessed: 13 June 2011) 6.

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New Zealand was involved in the negotiations of the CRPD at the UN and New Zealand ratified the Convention in time for New Zealand to participate in the first Conference of States Party to the Convention⁹³. New Zealand has also been elected to the Conference of States Parties’ President’s Bureau, which will enable New Zealand to continue in its international leadership role in promoting disability issues. ⁹⁴

Note #95

Human Rights Commission About the Human Rights Commission (accessed: 15 June 2011).

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The Human Rights Commission is a member of the Asia Pacific Forum of National Human Rights Institutions and the International Coordinating Committee of National Human Rights Institutions. It holds an A accreditation which is a pre-requisite for participating in the Human Rights Council and requires the Commission to comply completely with the UN Paris Peace Principles.⁹⁵

Note #96

Disability Rights in Aotearoa New Zealand 2010

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NGOs that act for disabled people have not only formed the Convention Coalition (a governance-level steering group formed by six major disabled people’s organisations) to pursue issues that disabled people in New Zealand face, they have also taken party in a project by Disability Rights Promotion International (DRPI). DRPI is a collaborative project working to establish a comprehensive and sustainable international monitoring system to address disability discrimination globally. The aim of the monitoring project is to provide robust information that Disabled People’s Organisations and the Government can use to formulate better disability policies.⁹⁶

Section 4: Specific Issues

After outlining New Zealand’s adherence to non-discrimination in regard to persons with disabilities, the following part of this report addresses some specific and very pertinent issues facing disabled people.

Section 4.1: Accessibility

Note #97

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011) 10.

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Note #98

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011) 25.

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Note #99

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 May 2011).

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The New Zealand Disability Strategy notes that although New Zealand has standards for accessibility, most public and private buildings are designed and built by non-disabled people for non-disabled people⁹⁷. Standard 4121 is the code of practice for design for access and use of buildings by persons with disabilities. Action 6.6 is to ensure that all Government departments and public services are located in buildings that are accessible to disabled persons⁹⁸. Action 8.5 tries to ensure that all new scheduled public transport will be accessible, so that inaccessible public transport can be phased out. Action 8.6 is to develop accessible routes between buildings, public spaces and public transport. ⁹⁹

Note #100

Building Act 2004, s 118.

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Note #101

Human Rights Act 1993, s 42(1).

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Note #102

Human Rights Act 1993, s. 43(2), 43(4), 43(5).

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The Building Act 2004 states that if modifications are being made to a building that the public will use, then reasonable and adequate provision … must be made for persons with disabilities.¹⁰⁰ The HRA prohibits discrimination in the use of places, vehicles or facilities on the grounds of disability¹⁰¹. However, one does not have to take unreasonable steps to accommodate a person who has a disability in the use of places, vehicles or facilities, or if accommodating a person would result in an unreasonable risk of harm.¹⁰²

Note #103

Human Rights Commission Barriers to public transport deny many New Zealanders access to jobs and education opportunities 10 May 2005 (accessed: 26 June 2011).

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Note #104

Human Rights Commission Barriers to public transport deny many New Zealanders access to jobs and education opportunities 10 May 2005

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In 2005 the Human Rights Commission published a report on the accessibility of public transport to persons with disabilities entitled The Accessible Journey: Report of the Inquiry into Accessible Public Land Transport. The Chief Commissioner noted that

Many disabled people without accessible public transport are trapped in a lifetime sentence of poverty, marginalisation and dependency. They face enormous difficulty [in doing] things that non-disabled people take for granted.¹⁰³

Two of the Commission’s recommendations were the mandatory provision for the participation of disabled people in all public land transport planning, funding and implementation and the establishment of a national Ministerial Advisory Committee of disabled people to advise the Minister of Transport.¹⁰⁴

 

Note #105

Land Transport Management Act 2003, s 35, amended by Land Transport Management Act 2008, s 28.

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Note #106

Public Transport Amendment Act 2008, s 2.

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Note #107

Public Transport Amendment Act 2008, s 10(1)(a)(iii).

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Note #108

Public Transport Amendment Act 2008, s 20(2)(l).

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Some of the Commission’s recommendations are now reflected in legislative provisions. The Land Transport Management Act 2008 states that the needs of the transport disadvantaged must be considered in the planning and funding of public transport.¹⁰⁵ Transport disadvantaged means people whom the regional council has reasonable grounds to believe are the least able to get to basic community activities and services. The Public Transport Amendment Act 2008 requires that quality standards should take into account the services that are offered to passengers with disabilities¹⁰⁶. Regional Councils must now show in their regional transport plans how their services will assist the transport disadvantaged¹⁰⁷. When proposing a regional public transport plan, regional councils are required to consult with several groups including the transport disadvantaged.¹⁰⁸

Note #109

Ministry for the Environment (last accessed 22 June 2011).

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The Urban Design Protocol, a voluntary framework, coordinated by the Ministry for the Environment, seeks to ensure that successful towns and cities accommodate all citizens and offer opportunities for everyone.¹⁰⁹

Note #110

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand.

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Note #111

Ibid, at 44–45.

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Note #112

Ibid, at 45.

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Note #113

Ibid.

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Note #114

Ibid, at 65.

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Participants in individual monitoring research pointed to transport and accessibility issues as significantly impeding their ability to participate in social networks¹¹⁰. Participants reported difficulty with public transport, and struggled in particular when required to travel outside of mainstream centres, where suitable accommodation and accessible venues become harder to find¹¹¹. Such difficulties had caused some participants to miss significant events in the lives of people in their social networks¹¹². Participants also reported difficulty with accessibility in venues commonly associated with social interaction, such as restaurants, bars, nightclubs and cinemas¹¹³. The recommendations arising out of the results of the individual monitoring indicate that although some progress has been made, accessibility issues remain an obstacle for social participation for disabled people.¹¹⁴

The policies and initiatives designed to make the physical environment more accessible for disabled persons recognises that their needs with respect to access to certain physical services are different. Independent accessibility to public transport in particular is a development which would make a significant contribution to the autonomy and dignity that disabled persons are able to enjoy. Legislative provisions which require the inclusion of persons with disabilities in the planning and implementing of public transport is a positive step, but responses from participants in individual monitoring suggest that there is progress yet to be made in this regard.

Section 4.2: Right to Life

Note #115

Andrew & Petra Butler, The New Zealand Bill of Rights Act 1990: a commentary (Lexis Nexis, Wellington, 2005) at [9.4.1].

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The right to life is the most basic human right. It is guaranteed in most bills of rights. Section 8 of the BORA provides that

No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

The provision is directed not to the quality of life that a person enjoys, but rather to whether or not that person continues to be alive¹¹⁵. Section 8 is aimed at acts (or omissions) that produce fatality; anything short of fatality does not engage s 8.

 

Note #116

National Screening Unit Antenatal Down Syndrome Screening in New Zealand 2007 (National Screening Unit, Wellington, 2007) at 10.

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Note #117

Ibid.

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Note #118

Ken Orr “The Killing of Unborn Children with Down syndrome – Genocide” (2010) Right to Life New Zealand.

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Note #119

See Andrew & Petra Butler, The New Zealand Bill of Rights Act 1990: a commentary (Lexis Nexis, Wellington, 2005) at [9.4.6].

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A particularly difficult question surrounding the word life is whether it extends protection to the unborn foetus. In New Zealand pregnant women may elect to undergo screening for certain foetal anomalies, in particular Down Syndrome¹¹⁶. Screening does not give a definitive answer as to whether a particular anomaly exists, but results indicate the degree of risk that the anomaly is present (if necessary further procedures are available to provide a more definite diagnosis)¹¹⁷. Pro-life organisations such as Right to Life New Zealand have expressed concern that the availability of such procedures will lead to a greater number of aborted pregnancies¹¹⁸. New Zealand law has not come to a conclusion on the issue of whether life extends to foetuses, but even a conclusion in the affirmative would not necessarily render abortion contrary to BORA.¹¹⁹ It might, however, raise questions over whether the right to life is afforded to disabled and non-disabled persons on an equal basis.

Note #120

R v Martin (No 3) [2004] 3 NZLR 69 (HC) at [15].

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It should be noted that since the focus of s 8 of BORA is on preventing state authorities (or in some cases other persons) from depriving a person of his or her life, s 8 cannot be relied upon to support the proposition that a person has the right to be assisted to commit suicide. It confers no legal right to insist upon medical intervention that would end the person’s life. ¹²⁰

Section 4.3: Right to Liberty and Security of the Person

BORA does not provide a general affirmation of the right to liberty and security of the person. However s 21 protects against unreasonable search and seizure, and s 22 protects the liberty of the person by affording everyone the right not to be arbitrarily arrested or detained.

Section 4.4: Liberty of Movement and Nationality

Note #121

New Zealand Bill of Rights Act 1990, s 18(2).

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Note #122

New Zealand Bill of Rights Act 1990, s 18(3).

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Section 18(1) of BORA provides that Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand. New Zealand citizens have the right to enter New Zealand¹²¹, and everyone has the right to leave New Zealand¹²². The right to freedom of movement thus encompasses the right to move physically within New Zealand, the right to enter and remain in New Zealand, and the right to a passport.

Note #123

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011) at 20.

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The New Zealand Disability Strategy identifies the lack of independently accessible public transport and the cost of car modification as barriers to participation in community life. Objective 8 of the NZDS is to support quality living in the community for disabled people, and included under this objective are three actions directed at achieving this objective – requiring public transport to be accessible, encouraging the development of accessible routes to connect transport systems, and developing nationally consistent access to passenger services where there is no accessible public transport.¹²³

Note #124

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand.

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As noted above, participants in individual monitoring research reported enduring difficulties with respect to public transport, especially outside of the main centres. Airline travel was described as “hit or miss”, and the disinclination of airlines to accommodate disabled people was lamented¹²⁴. This suggests that some work remains to be done with respect to freedom of movement as a practical matter for disabled people.

Section 4.5: Legal Capacity and Access to Justice

Note #125

New Zealand Bill of Rights Act 1990, s 29.

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Note #126

New Zealand Bill of Rights Act 1990, s 27.

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Except where indicated, the BORA applies for the benefit of all legal persons and of all natural persons¹²⁵. Every person has the right to justice and that if any person feels that their rights are violated, that person can seek redress through civil proceedings, judicial review or through an appropriate tribunal. ¹²⁶

Section 4.5.1: Capacity

The presumption at law is that a person is generally regarded as having full legal capacity unless it can be shown that they do not have sufficient capacity.

Section 4.5.2: Access to justice

Section 19 of the BORA prohibits discrimination against all persons, including, under section 21(h) of the HRA, persons with disabilities. Persons with disabilities have the right to seek redress, through the courts if necessary, if they feel that their rights are being violated.

Note #127

Protection of Personal and Property Rights Act 1988, ss 5, 24 and 93B.

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The Protection of Personal and Property Rights Act 1988 presumes that people have the competence to manage their own personal care and welfare, and decisions related to their property and that people have the ability to communicate those decisions, unless the contrary is proved. ¹²⁷

Note #128

Criminal Procedure (Mentally Impaired Persons) Act 2003, s 4.

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The Criminal Procedure (Mentally Impaired Persons) Act 2003 has special provisions for persons with mental disabilities, who, as a result of their mental disability, may be disadvantaged in a trial. A defendant is declared unfit to stand trial if, due to a mental impairment, the defendant is unable to conduct a defence or instruct counsel to do so, or plead to the charges, or if the defendant is unable to understand the nature and consequences of the trial or if the defendant is unable to communicate properly with counsel in order to conduct a defence. ¹²⁸

Note #129

Evidence Act 2006, s 85.

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Note #130

Evidence Act 2006, s 95.

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Note #131

Evidence Act 2006, ss 103 and 105.

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Note #132

Office for Disability Issues “Work in Progress 2008” 2008 (accessed 26 May 2009) 24.

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In determining whether or not a witness should answer questions in court proceedings, a Judge is entitled to take into account any physical or mental impairment¹²⁹. A judge may determine that a witness should not be cross-examined if the witness has a physical or mental impairment¹³⁰, or that a witness should give evidence by an alternative method if consideration needs to be taken of the witness’ physical or mental impairment¹³¹.

Additionally, the Ministry of Justice has developed an Interpreters Strategy which includes having sign language interpreters in courts, new information that is easily accessible by disabled jurors and call centres to meet the needs of the deaf, the hearing impaired and those who have speech impediments.¹³²

Note #133

Human Rights Commission and The Office of Human Rights Proceedings “Annual Report 2008” 2009 (accessed: 11 June 2009) 12.

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In 2008 26.8 per cent (the single largest category) of complaints to the Human Rights Commission concerned disabilities¹³³. This can be legitimately interpreted as illustrating that persons with disabilities are able to exercise their right to justice through a review of their claim by the Commission.

Note #134

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 61.

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Note #135

Ibid, at 62.

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Note #136

Ibid.

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Note #137

Ibid.

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Responses given by participants in individual monitoring research largely support the conclusion that disabled people do commonly report human rights violations when they occur¹³⁴. Mention is made, however, of some reluctance to report in the workplace context, and resignation with respect to health and transportation issues¹³⁵. Seven per cent of participants reported that they had not reported human rights violations because they felt nothing would have come of it¹³⁶. A further 5 per cent did not report because they feared that doing so would jeopardise the provision of services already in place. In many cases participants readily gave examples of situations or occasions where they felt something was “not quite right”, but did not go so far as to class them as human rights violations.¹³⁷

The BORA recognises the dignity of persons with disabilities by recognising their right to seek redress for discrimination. The new communication strategies implemented by the Ministry of Justice aim to foster the autonomy and participation of disabled people and by enabling them to make complaints on their own. The BORA not only affirms the principle of non-discrimination and equality for persons with disabilities but also reiterates their right to seek access to justice for the violation of that right. Other legislation also recognises the legal rights of persons with disabilities.

Section 4.6: Freedom from Torture, Exploitation and Abuse

Note #138

New Zealand Bill of Rights Act 1990, ss 9, 10, 11.

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Note #139

The Crimes of Torture Act 1989, s 3.

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Under the BORA everyone has the right not to be subjected to torture or cruel, degrading or disproportionately severe treatment or punishment, the right not to be subjected to medical or scientific experimentation and the right to refuse to undergo medical treatment¹³⁸. The Crimes of Torture Act 1989 declares it a crime for a public official or a person acting in an official capacity to commit torture or related offences.¹³⁹

Note #140

Health and Disability Commissioner Code of Health and Disability Services and Consumer Rights 2004 (accessed: 25 June 2011).

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The Code of Health and Disability Consumers Rights contains several rights which would encompass the rights of persons with disabilities not to be subjected to torture, violence or exploitation by health and disability service providers¹⁴⁰. The Code includes the right to be treated with respect, to be free from coercion, harassment, sexual, financial or other exploitation, and minimisation of potential harm to the consumer. The consumer also has the right to be fully informed about unexpected risks and side effects and the right to give informed consent.

Note #141

Intellectual Disability (Compulsory Care and Rehabilitation Act) 2003, s 3

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Note #142

Mental Health (Compulsory Assessment and Treatment) Act 1992, Title.

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Note #143

Intellectual Disability (Compulsory Care and Rehabilitation Act) 2003, ss 61 and 62. Section 61 reads: “(1)A care manager may restrain a care recipient if that is necessary to prevent the care recipient from doing 1 or more of the following:(a) endangering the health or safety of the care recipient or of others:(b)seriously damaging property:

(c)seriously compromising the care and well-being of the care recipient or of other care recipients.

(2)A care recipient may not be restrained under subsection (1) by the application of a mechanical restraint if—

(a) 1 or more authorised individuals can personally restrain the care recipient to achieve the purpose for which the care recipient is to be restrained; and

(b)it is reasonably practicable for those individuals to do so.

(3)The following provisions must be followed when a care recipient is restrained:

(a)a person exercising the power of restraint may not use a greater degree of force, and may not restrain the care recipient for longer, than is required to achieve the purpose for which the care recipient is restrained:

(b)a person exercising the power of restraint must comply with guidelines issued under section 148 that are relevant to the restraint of the care recipient:

(c)in an emergency, a care recipient may be restrained by a person who, under a delegation given by the care recipient’s care manager, has immediate responsibility for the care recipient, but that person must immediately bring the case to the attention of the care manager:

(d)the duration and circumstances of each episode of restraint must be recorded in a register kept in accordance with guidelines issued under section 148.

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The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 provides for the care and rehabilitation of persons with intellectual disabilities, while having regard to their health, safety and rights¹⁴¹. The purpose of the Mental Health (Compulsory Assessment and Treatment) Act 1992 is to redefine the circumstances in which persons may be subjected to compulsory psychiatric assessment and treatment and to provide better protection for the rights of those persons¹⁴². However there are exceptions to prevent a patient from causing harm or if another law proscribes forced medical treatment¹⁴³. The Protection of Personal and Property Rights Act 1988 provides for a specialised court procedure, including full rights of participation for the individual concerned, to determine whether an individual meets the high threshold of wholly lacking capacity to manage his or her own affairs. Where that threshold is met, a statutory manager can be appointed to act on the individual’s behalf for property and/or welfare matters.

Note #144

Taunoa v Attorney General [2008] 1NZLR 429 (SC) Elias CJ, Blanchard, Tipping, McGrath and Henry JJ.

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In the Taunoa case the judge recognised the special needs of persons with disabilities in relation to be free from torture, violence or exploitation under section 9 of BORA. Mr Tofts was a prisoner who experienced a mental illness which was known to the Department of Corrections. As such he should never have been placed on the Behavioural Management Regime as his time on the regime aggravated his mental illness. The Court held that, because of his illness, the regime breached Mr. Tofts’ section 9 BORA right, but it did not breach section 9 in regard to the other prisoners who did not have mental impairments.¹⁴⁴

It has to be noted that since 2008 the Government is working successfully with the Disability Coalition against Violence (an association of NGOs) to address violence issues against disabled people.

While legislative protections are in place to protect all people from torture, special provisions also exist to protect those who use disability services. The protections recognise that such treatment would not fulfil any of the general human rights principles and in particular would violate the principles of dignity and respect for difference.

Section 4.7: Inclusion in Society

Note #145

Statistics New Zealand 2006 Disability Survey 2007 (accessed 26 May 2009) 3.

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Note #146

Inquiry into the quality of care and service provision for people with disabilities. September 2008 Report of the Social Services Committee, 9, (accessed: 25 June 2009).

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Eighty-two per cent of disabled people are adults living in households, while just 5 per cent live in residential care facilities¹⁴⁵. The Social Services Select Committee has noted that in general, people with disabilities live in the general community. In 2006 the last large institutional centre for persons with disabilities in New Zealand was closed down¹⁴⁶.

Note #147

Inquiry into the quality of care and service provision for people with disabilities. September 2008 Report of the Social Services Committee, 24, (accessed: 25 June 2009).

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The Ministry of Health purchases services to help home and community support services which are designed to assist people living at home. Some people may have specifically tailored living arrangements which offer more flexibility and independence than residential services. However, the Committee also recognised that the support available was often not enough to meet the needs of disabled people¹⁴⁷.

Note #148

See Office for Disability Issues Progress Report – 2008; Objective 8: Support quality living in the community for disabled people (2008) .

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Note #149

Inquiry into the quality of care and service provision for people with disabilities. September 2008 Report of the Social Services Committee, 24, (accessed: 25 June 2009).

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The Ministry of Health provided a report in July 2007 on District Health Boards’ (DHBs) progress towards increasing the range of support options available to older people, including improving and expanding home–based services. The report required more work to be undertaken in 2008/09 on service cover, which will define the minimum range of support services that should be available for older people¹⁴⁸. The Ministry of Health has also tried to increase the use of relapse prevention plans for people with mental health conditions¹⁴⁹.

Note #150

Cabinet paper – Ministry of Health’s new model for supporting disabled people (accessed:27 June 2011).

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In June 2010 the Ministry of Health unveiled a new model for disability support. The model is based on 4 characteristics¹⁵⁰:

1. a stronger focus on providing information and personal assistance through introducing local area coordinators
2. moving towards allocating an indicative dollar value of support an providing clear guidance on what funding can and cannot be used for, rather than allocating particular types of services
3. more choice and control for people over the support they purchase
4. broadening accountability arrangements to cover the Ministry of Health, providers and disabled people, and a stronger focus within quality monitoring on whether people are living an everyday life.

 

Note #151

Ministry of Health Office for Disability Issues Work in Progress 2008 2008 (accessed 26 May 2009) 39.

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The Ministry of Economic Development has aimed to improve the New Zealand Relay Service which provides communication for people who are deaf or who have hearing and speech impediments. More deaf people and hearing impaired people have been using the Relay Service leading to a 25 per cent increase in relay minutes used.¹⁵¹

Note #152

Ministry of Health Office for Disability Issues Work in Progress 2008 2008 (accessed 26 May 2009) 39.

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The Department of Building and Housing in conjunction with the Barrier-Free Trust has produced a guide on accessible service counters and car parks to facilitate easier access for disabled persons in previously less accessible spaces. The Department of Building and Housing has included accessibility as a factor in the review of the Building Code which is currently underway¹⁵².

Objective 8 of the NZDS is to support quality living in the wider community for disabled people. Actions in support of this objective are aimed at providing affordable, quality housing, support in rural areas, independent communication and appropriate health services. The Ministry of Health also provides money and assistance to encourage and help disabled persons to live independently in the community.

Note #153

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 41.

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Note #154

Ibid, at 42-43.

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Note #155

Ibid.

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Note #156

Ibid, at 59.

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Social participation was easily the biggest single issue that emerged from individual monitoring¹⁵³. Responses tend to indicate that difficulties with inclusion exist on a personal rather than an operational level, with intangible barriers such as negative attitudes and lack of understanding among non-disabled people proving more difficult to surmount¹⁵⁴. Participants reported experiences of being made to feel disabled, where non-disabled people interacting with disabled altered their behaviour in ways that highlighted the person’s disability, whether by pointing the disability out to others, treating the person differently, or ignoring the person altogether¹⁵⁵. The research suggests that non-disabled people are frequently unsure of how to relate to people, and that education as a means of raising awareness is a commonly suggested solution¹⁵⁶.

The New Zealand Disability Strategy is aimed at including persons with disabilities into a society that is largely designed for non-disabled people. The fact that most disabled people are able to live in the community rather than in residential care facilities is a good indicator that there is a reasonable degree of inclusion in society. However the perspectives of disabled people that emerged from individual monitoring tend to suggest some degree of disconnection between the support mechanisms provided and the actual experience of disabled persons as they interact with the community.

Section 4.8: Freedom of Expression and Access to Information

Note #157

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 25 June 2011) 14.

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Note #158

New Zealand Sign Language Act 2006, s 6.

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Note #159

New Zealand Sign Language Act 2006, s 3.

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Note #160

New Zealand Government Web Standards New Standards Released 2009 (accessed: 24 June 2011).

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Note #161

Office for Disability Issues Work in Progress 2008 2008 (accessed 26 June 2011) 14-17.

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The New Zealand Disability Strategy recognises that many disabled people face barriers to communication and thus to education, employment and inclusion in society. Poor Braille and Sign Language literacy is a problem for deaf and blind New Zealanders who want to communicate with each other as well as with sighted and non hearing impaired people¹⁵⁷. Therefore, Actions 3.2, 6.4, 6.5 and 8.3 of the Disability Strategy all support the effective communication of persons with disabilities. In 2006, New Zealand Sign Language became an official language of New Zealand¹⁵⁸. New Zealand Sign Language can now be used in legal proceedings and Government departments now have guiding principles to increase the use of NZSL¹⁵⁹. The New Zealand Relay service is a free, almost constant service that enables people who are deaf, hearing impaired, deaf blind or speech impaired to make telephone calls. The New Zealand Government has issued new Web Standards for its Government department websites, which come into force from 31 October 2009. The standards recognise that in order to reach the widest possible audience, Government websites must be accessible and useful to everyone including disabled people¹⁶⁰. The Ministry of Education has also launched several initiatives to help make education more accessible for persons who have disabilities.¹⁶¹

Note #162

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 46.

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Note #163

Ibid, at 46–47.

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Again, individual monitoring suggests that practical difficulties experienced by disabled people are more closely related to the attitudes of those with whom they interact with than the support mechanisms that are in place to address a particular impairment¹⁶². Participants from the deaf community reported difficulties with the unwillingness of hearing people to engage in communication with them, as well as dealing with the complexities of learning and communicating in what is effectively a second language¹⁶³. As noted above, such problems have implications for the participation and inclusion in society of disabled persons.

Section 4.9: Respect for Privacy

There is no general right to privacy in BORA, the HRA or the Privacy Act 1993. However, the Privacy Act has guiding principles for the collection of personal information.

Note #164

Privacy Commissioner Health Information Privacy Code 1994 December 2008 , (accessed: 25 June 2011).

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Note #165

Health Act 1956, s 22B

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Note #166

Health and Disability Commissioner Code of Health and Disability Services and Consumer Rights 2004 (accessed: 25 June 2011).

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Note #167

P v D [2000] 2 NZLR 591, para 37, (HC) Nicholson J.

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Despite the lack of a general right to privacy, there is an obvious correlation between privacy and personal dignity, especially in relation to information about a person’s health. The Health Information Privacy Code 1994 governs the collection and use of health related information by health agencies¹⁶⁴. Health information includes information relating to any disabilities that a person has or has had¹⁶⁵. The Code of Health and Disability Services Consumers Rights also guarantees that every consumer of health and disability services has the right to have his or her privacy respected¹⁶⁶. New Zealand case law also recognises the value people place on the confidentiality of personal health information.¹⁶⁷

Section 4.10: Education

Note #168

Education Act 1989, s 8. The majority of disabled children in New Zealand are enrolled in the mainstream school system. 25 per cent of the students were receiving special education support; 40 per cent need at least one type o f equipment or support service to help with their education [Human Rights Commission, The rights of disabled people – draft (Human Rights Commission, Wellington May 2010) p 19].

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Note #169

Ministry of Education Special Education Policy 31 July 2008 (accessed 25 June 2011).

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Note #170

Ministry of Education National Education Goals 23 January 2009 (accessed: 25 June 2011).

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Note #171

Ministry of Education National Administration Guidelines 9 February 2009, (accessed: 25 June 2011).

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Note #172

Office for Disability Issues Work in Progress 2008 2008 (accessed 26 June 2011) 17.

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Note #173

Controller and Auditor-General, Ministry of Education: Managing Support for Students with High Special Educational Needs (Office of the Auditor-General, Wellington 2009).

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Note #174

Education Review Office, Including Student with High Needs (Wellington, June 2010)

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Note #175

Ministry of Education, Success for All-Every School, Every Child (Wellington 2011).

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The Education Act 1989 states that children who have special educational needs whether because of disability or otherwise have the same rights to enrol and receive education as everyone else¹⁶⁸. The Government also has other policy guidelines to ensure that children with special educational needs are provided with an adequate education. The Government’s Special Education Policy is designed to improve learning outcomes for all children and young people with special education needs at whatever educational institution they attend¹⁶⁹. Some of the National Educational Goals also focus on children with special educational needs. Goal 2 aims to have equality of educational opportunity for all New Zealanders, by identifying and removing barriers to achievement. Goal 7 aims for success in their learning for those with special needs by ensuring that they are identified and receive appropriate support¹⁷⁰. Under National Administration Guideline 1 schools are meant to identify students who have special needs and then develop and implement teaching strategies which aid students with special needs¹⁷¹. The Ministry of Education has also allocated $18.2 million in property modifications in 131 mainstream schools in order to improve access for disabled students and teachers¹⁷². In 2009 the Controller and Auditor-General released a report in regard to the performance audit of the Ministry of Education management of four initiatives set up to support up to 20,500 students with the highest level of support needs. The report concluded that there was need for improvement in the areas of identification of students with high needs, data collection, and consistency in treatment throughout the country¹⁷³. In 2010 the Education Review Office (ERO) undertook a systemic audit of school’s inclusive practices in relation to the broader grouping of students who need additional support or assistance, principally comprising disabled students. The audit indicated that approximately half of the schools in the study comprehensively demonstrated inclusive practices¹⁷⁴. ERO observed that inclusive practises were primarily a question of approach, rather than resources. The quality of leadership and the extent to which schools adopt a specialised form of teaching for students with high needs were decisive. In response to ERO‘s findings the Government undertook a review of special education¹⁷⁵.

Note #176

Daniels v Attorney General (3 April 2002) [2002] BCL 475, para 142 (HC) Baragwanath J. The Court of Appeal in Daniels v Attorney-General [2003] 2 NZLR 742, however, held that the disestablishment of special needs units at schools and the mainstreaming of special needs students was not discriminatory as some parents had claimed (see in regard to a critical discussion of the High Court and Court of Appeal decision: EJ Ryan Failing the System? Enforcing the Right to Education in New Zealand 35 (2004) VUWLR 735).

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Note #177

Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill and international treaty examination of the Convention on the Rights of Persons with Disabilities (232-1) 2008 (Report of the Justice and Electoral Committee) 7.

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Note #178

Attorney-General v Daniels [2003] 2 NZLR 742 (CA).

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Despite the special provisions for the education of persons with disabilities, in Daniels v Attorney General the Court noted that a sizeable number of children with special needs are missing out on the support they need to participate in school life as much as any child¹⁷⁶. The Justice and Electoral Select Committee also noted that persons with disabilities tend to have lower educational achievements than persons who do not have disabilities¹⁷⁷. Despite the fact that the Education Act 1989 contains the right to an education and the Court noted that the educational requirements of special needs children are often not met, the Court of Appeal in Attorney-General v Daniels held that the right to an education was not a free standing, judicially enforceable right¹⁷⁸.

Note #179

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 52.

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Note #180

Ibid, at 53.

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Note #181

Ibid.

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Close to half of the sample taken for individual monitoring research had participated in tertiary education, including a number of masters degrees¹⁷⁹. Nevertheless a significant number of experiences involving disrespect for difference and problems with regard to participation, inclusion and accessibility were reported¹⁸⁰. On the other hand, experiences involving positive dignity also featured in a significant number of responses. Most negative responses related to experiences in primary and secondary school, or to problems with accessing information¹⁸¹. The responses reflect a much more positive result in terms of attitudes and understanding than is shown in most other categories.

Section 4.11: Health, Habilitation and Rehabilitation

Note #182

Actions 7.9, 8.4, 13.5, 14.4 in Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011).

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Note #183

New Zealand Public Health and Disability Act 2000, s 3.

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Note #184

New Zealand Public Health and Disability Act 2000, ss. 35, 13(1)(a) and s 13(3).

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Several Actions of the New Zealand Disability Strategy are directed at enhancing the health of and disability support services available to persons with disabilities¹⁸². Furthermore, as discussed under para 19, The Ministry of Health’s new funding model provides for a better choice and decision-making power in regard to the services purchased. The purpose of the Public Health and Disability Act 2000 is to provide for the public funding and provision of health services, including disability support services in order to promote the inclusion and participation of people with disabilities in society and to provide the best care and support possible¹⁸³. The Act also requires each District Health Board to have a Disability Support Advisory Committee and requires the National Advisory Committee to report annually to the Minister on the type and priorities of disability support services which should be publicly funded¹⁸⁴.

The Code of Health and Disability Services Consumers’ Rights (the Code) was promulgated as a regulation under the Health and Disability Commissioner Act 1994 and came into force on 1 July 1996 and ensures patients’ rights in New Zealand. The Code rights relating to informed consent (in particular, Rights 5, 6 and 7) which are of particular interest, embody three essential elements: effective communication between the parties (Right 5); provision of all necessary information to the consumer (including information about options, risks and benefits) (Right 6), and the consumer’s freely given and competent consent (Right 7). The Code starts from a presumption of competence. Right 7(2) states:

Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent.

 

Following on from this Right 7(3) provides:

Where a consumer has diminished competence, that consumer retains the right to make informed choices and given informed consent, to the extent appropriate to his or her level of competence.

 

Note #185

Katherine Greig Informed Consent in the Code of Health and Disability Services Consumers’ Rights 8th Medico- Legal Conference (8 Feb 2000)

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The understanding of the Office of the Health & Disability Commissioner is that the fact that a consumer has, for instance, an intellectual impairment or severe behavioural problems does not necessarily mean that she or he is incompetent to consent to all health and disability services. The provider must focus on whether the consumer has the ability to understand the information necessary to give informed consent. This will depend on the individual consumer and the type of service. For example, the level of competence necessary to consent to treatment with a high degree of risk or complexity or with serious consequences for the consumer will usually be different from that required to consent to minor and low risk procedures. In assessing the consumer’s competence to consent, the provider may wish to check with other experts or take into account the views of caregivers or support persons. The assessment of a person’s competence is itself a health procedure which should be performed with ‘reasonable care and skill’ under Right 4(1) of the Code. Certainly if a decision is made that a person is not competent, that should be documented and the reasons stated.¹⁸⁵

Note #186

First New Zealand Report on Implementing the United Nations Convention on the Rights of Persons with Disabilities (March 2011) para 187; see also Alixe Bonardi, The Balance between Choice and Control: Risk Management in New Zealand Intellectual Disability Services (Fulbright New Zealand, July 2009).

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Analysis of health data, carried out by the Ministry of Health in 2010, indicates the health of people with intellectual disability in New Zealand is markedly poorer than for people without identified intellectual disability. Hospital events relating to coronary heart disease and chronic respiratory disease occur approximately 1.5 to 2 times the rate of people without an intellectual disability. Prevalence data indicates higher than average rates of diabetes, and public hospitalisations for injury and mental health conditions are over three times higher than for people without an intellectual disability. People with intellectual disabilities are also over-represented in mental health and addiction statistics.¹⁸⁶

Note #187

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011) 26.

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Note #188

Injury Prevention, Rehabilitation and Compensation Act 2001, ss 79 and 80.

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Note #189

Injury Prevention, Rehabilitation and Compensation Act 2001, s. 81.

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Note #190

Office for Disability Issues Work in Progress 2008 2008 (accessed 26 June 2011) 36.

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Objective 7 of the NZDS is to create long term support systems focused on the individual. Under that Objective Action 7.4 is to develop and maintain effective rehabilitation services. One of the purposes of the Injury Prevention, Rehabilitation and Compensation Act 2001 is to provide a framework for the social and vocational rehabilitation of those who have suffered personal injury and have cover under the Act with the aim of restoring as much as possible a claimant’s health, independence and participation in life. The purpose of vocational rehabilitation is to help a claimant to obtain or maintain employment, and the purpose of social rehabilitation is to enable the claimant to regain independence. The provisions of social rehabilitation could include aids and appliances, attendant care, child care, education support, home help, home modifications, training for independence and transport, if required. In March 2008 the Accident Compensation Corporation (ACC) began a service trial of the Integrated Rehabilitation Service for Adults with moderate to severe Traumatic Brain Injury (TBI). The trial will set national standards to improve the effectiveness of rehabilitation for people with TBI.

Note #191

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 49–50 .

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After social participation, health was the second most significant theme in terms of negative experiences being reported by participants in individual monitoring research. The research suggests that—

in a medicalised environment, where impairment takes precedence over the person, marginalising practices such as the instruction to ‘stop signing and put your hands down, and you’re going to listen to me, and then you’re going to tell the deaf person the message’ … are likely to occur.¹⁹¹

 

The quotation in the above passage refers to an instruction given by medical staff to an interpreter at a health facility in Auckland. The instruction appeared to disregard the fact that sign language interpreters’ practice is to interpret as the speaker speaks, rather than convey the information to the deaf person second hand after the speaker has finished speaking.

Note #192

Ibid, at 50.

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Responses also commonly referred to the problem of finding good quality and reliable carers. Many participants attributed this to the low wage and undervalued nature of caring work. Overall, reported experiences relating to health, habilitation and rehabilitation were overwhelmingly negative, with references to discrimination, disrespect for difference, negative dignity, lack of autonomy and segregation and isolation outweighing their positive counter points by more than three to one. ¹⁹²

The provision of adequate access to healthcare has implications for all of the general human rights principles under examination. Again, the operational aspects of healthcare provision for disabled people tend to reflect a high degree of respect for difference and non-discrimination, but individual monitoring responses raise questions about whether these expectations are being met at ground level.

Section 4.12: Work and Employment

Note #193

The employment rates for adults with disabilities are: Māori 45 per cent (./. 67 per cent non- disabled Māori adults); non Māori 62 per cent (./. 77 per cent non Māori non- disabled adults) (source: Human Rights Commission, The rights of disabled people– draft (Human Rights Commission, Wellington, May 2010) p 13.

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Note #194

Human Rights Act 1993, s 29.

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Section 22 of the HRA prohibits discrimination in employment on one or more of the prohibited grounds of discrimination in section 21¹⁹³. However, an employer does not have to provide remedial means to accommodate an employee with a disability if it would be unreasonable for the employer to do so or if doing so would result in an unreasonable risk of harm¹⁹⁴. Under section 104 of the Employment Relations Act 2000 an employee is discriminated against if the employer refuses to offer the employee similar terms of employment, remuneration, training, or promotion as are made available to employees of substantially similar qualifications and experience based on one of the prohibited grounds of discrimination. The prohibited grounds of discrimination under Section 105 are the same as under the Human Rights Act 1993, which includes disability.

Note #195

Human Rights Commission and The Office of Human Rights Proceedings Annual Report 2008 2009 (accessed: 11 June 2009) 31.

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Note #196

Equal Employment Opportunities Trust Disability Factsheet (accessed: 16 June 2011) 1.

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Note #197

Isaac v Chief Executive of the Ministry of Social Development (5 June 2008) ERA AA 200/08 5086872, para 133, Campbell J.

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Note #198

Aubrey v Chief Executive of the Department of Child Youth and Family Services, (13 August 2004) CA 93/04, H Doyle.

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However, people with disabilities still face discrimination in employment. In 2008, the largest number of complaints concerning disability discrimination to the Human Rights Commission was employment (27.7 per cent)¹⁹⁵. The Equal Employment Opportunities Trust stated that only 43.6 per cent of persons with disabilities participate in the workforce compared with 69.8 per cent of persons who do not have disabilities¹⁹⁶. However, there are instances of people with disabilities being employed and being well accommodated in the workforce. In Isaac v Chief Executive of Ministry of Social Development the Judge held that the Ministry (the employer) not only took all practicable steps to assist Ms Isaac in her daily functions, but went the extra distance.¹⁹⁷ In Aubrey v Department of Child, Youth and Family Services the Judge also held that Mrs Aubrey was not discriminated against because of her disability because her needs were sufficiently ascertained and met¹⁹⁸.

Note #199

Local Government Act 2002 s 40, the State Sector Act 1988, Long Title, and the Crown Entities Act 2004, s12.

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Note #200

Equal Employment Opportunities Trust Equal Employment Opportunities Trust 2007 (accessed 16 June 2011).

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Note #201

Juries Act 1981, s 22(2)(a).

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Apart from the prohibition on discrimination in the BORA there is no generic policy of the State that asserts the principle of equality of opportunity for persons with disabilities. However, several statutes and organisations have equal employment opportunities policies and provisions¹⁹⁹. Section 77D of the State Sector Act 1988 defines an equal employment opportunity programme as a programme that is aimed at the identification and elimination of all aspects of policies, procedures, and other institutional barriers that cause or perpetuate, inequality in respect to the employment of any persons or group of persons. There is also an Equal Employment Opportunities Trust which provides help to employers on diversity issues, including on accommodating persons with disabilities²⁰⁰. Even though not strictly related to Employment it should be noted that disabled people can serve on a jury. However, their right to serve can be challenged if they are not capable of acting effectively as a juror²⁰¹.

Note #202

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 54 .

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Note #203

Ibid.

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Responses given in individual monitoring research suggest that employment is an area where there is room for improvement with respect to the general human rights principles, in particular respect for difference, although this feeds into issues of participation, dignity and equality. The research points out that although rates of educational attainment among disabled people are high, this work ability is not reflected in employment rates²⁰². Many participants referred to difficulties associated with the more mundane aspects of working life, such getting up, getting dressed and making one’s way to work, pointing out that although such things are simple enough to be taken for granted by most non-disabled people, for many disabled people such things require extra time and energy, with the consequence that potential productivity is affected²⁰³. Many workplaces struggle to accommodate this consideration, and often when they do the disabled persons that benefit from such measures are perceived as receiving special treatment, which has obvious repercussions for a person’s dignity and ability to participate in the workplace community. Again this experience tends to reflect that it is attitudes, rather than operational matters, have the greater impact on New Zealand’s recognition of general human rights principles.

Section 4.13: Adequate Standard of Living and Social Protection

Note #204

Ministry of Foreign Affairs and Trade National Report submitted in accordance with paragraph 15(a) of the Annex to the Human Rights Council Resolution 5/1: New Zealand April 2009 (accessed: 16 June 2011) 7.

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Note #205

As at 1 April 2009, the disability allowance was $55.88 per week: Work and Income New Zealand Disability Allowance 1 April 2009 (accessed: 26 June 2011 ).

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Note #206

Human Rights Commission New Zealand Action Plan for Human Rights: Priorities for Action 2005–2010 at 1.1 .

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Note #207

Human Rights Commission Human Rights in New Zealand Today ngā Tika Tangata O Te Motu: New Zealand Action Plan for Human Rights — Mana ki te Tangata 2005 (accessed: 15 June 2011).

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New Zealand is party to the International Covenant on Economic Social and Cultural Rights but there is no explicit legislative provision for the protection of such rights in New Zealand²⁰⁴. Section 69C of the Social Security Act 1964 allows the Chief Executive to grant a disability allowance to person who has suffered a reduction in independence as a result of a long term disability²⁰⁵. Under Section 25A of the Disabled Persons Community Welfare Act 1974 a person who is in residential care as a result of a disability has the right of review of disability services which that person has been provided with. The New Zealand Action Plan for Human Rights (NZAPHR) report identified as one of its outcomes that every disabled person in New Zealand should have an adequate standard of living²⁰⁶. The NZAPHR noted that disability-related expenses and barriers to and in employment contribute to the significant disadvantages that disabled people experience in terms of their living standards. The report notes that there are inevitable additional costs to having a disability and policies and practices need to take that into account. Because disabled people face major barriers in obtaining and retaining work, they often have lower incomes which result in a lower standard of living.²⁰⁷

Note #208

Office for Disability Issues Housing New Zealand Corporation: Healthy Housing (accessed: 26 June 2011).

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Note #209

Office for Disability Issues Housing New Zealand Corporation: Income Related Rents (accessed: 26 June 2011).

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Note #210

Office for Disability Issues Housing New Zealand Corporation: Social Allocation System (accessed: 26 June 2011).

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Note #211

Ministry of Health Disability in New Zealand: Ministry Funded Services (accessed: 26 June 2011).

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Note #212

Healthy Housing is a joint project between Housing New Zealand Corporation and District Health Boards (DHBs). The programme works with Housing New Zealand tenants in selected areas, and began in 2001. Healthy Housing aims to: raise awareness of infectious diseases like meningococcal disease, rheumatic fever, tuberculosis, cellulitis and respiratory diseases; improve access to health and social services; reduce the risk of housing-related health problems and reduce overcrowding.

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Note #213

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 54–55 .

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The Housing New Zealand Corporation, in conjunction with four District Health Boards, has initiated the Healthy Housing programme which aims to reduce the risk of housing related diseases, conditions and injuries. During 2006-2007 the Corporation assisted 1750 households with Healthy Housing initiatives, some of which were for disabled people²⁰⁸. The Housing New Zealand Corporation has a social allocation system which allocates houses according to need. The social allocation system helps disabled people who would usually find it hard to find housing that caters to their needs²⁰⁹. Housing New Zealand also has a system of income related rents for disabled households because disabled people often have lower than average incomes, making it more difficult to secure adequate housing. An Income Related Rent means that no more than 25 per cent of a person’s income is spent on rent. 90 per cent (57,000) of Housing Corporation tenants pay income related rents, which includes a large proportion of disabled people²¹⁰. The Ministry of Health has also established a Needs Assessment and Services Coordination (NASC) system to help determine the amount of funding from Ministry of Health and from Disability Support Services which is available to people with lifelong impairments. The NASC helps people to determine which services are the most appropriate for them so that their needs can be met in the community²¹¹. Disabled people with physical disabilities who require modified housing are assisted through Housing New Zealand Corporation’s (HNZC’s) Suitable Homes Service and Healthy Housing programme²¹², through ACC and/or through the Ministry of Health.

A person’s standard of living impacts on that person’s dignity. Initiatives therefore aim to create systems where disabled persons’ impairments do not materially impact on their standard of living. A higher standard of living promotes the ability to participate more fully in society. The individual monitoring research does not touch directly on the standard of living of disabled people, but it does mention that the lower incomes and higher living costs experienced by many disabled people in comparison to non-disabled people does create a dilemma in striking the appropriate balance between work and health – some participants felt compelled to refrain from full time work and accept a lower income, and therefore a lower standard of living, in order to preserve their health. ²¹³

Section 4.13.1: Independent living

Note #214

Ministry of Health The New Zealand Disability Strategy: Making a World of Difference 2001 (accessed: 26 June 2011) 27.

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Note #215

Statistics New Zealand 2006 Disability Survey 2007 (accessed 26 June 2011) 3.

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Note #216

Report of the Social Services Committee Inquiry into the quality of care and service provision for people with disabilities. September 2008, 9, (accessed: 25 June 2011).

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Note #217

Report of the Social Services Committee Inquiry into the quality of care and service provision for people with disabilities. September 2008, 24, (accessed: 25 June 2011).

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Note #218

Ministerial Committee on Disability Issues (accessed : 27 June 2011).

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Note #219

Disability services (accessed: 28 June 2011).

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Objective 8 of the New Zealand Disability Strategy is to support quality living in the community for disabled people²¹⁴. Most disabled people in New Zealand already live in the community. 82 per cent of disabled people are adults who live in households, 14 per cent are children who live in households and only 5 per cent of disabled people are adults who live in residential care facilities²¹⁵. In 2006 the last large institutional centre for persons with disabilities in New Zealand, the Kimberley Centre, was closed down²¹⁶. In 2006 the Social Services Committee commissioned an inquiry into the Quality of Care and Service Provision for People with Disabilities. It noted that the Ministry of Health provides home and community support services which are designed to enable disabled people to have more independence by living at home. However, the Committee also recognised that the support available was often not enough to meet the needs of disabled people²¹⁷. The Disability Action Plan²¹⁸ has as one of its key foci to support disabled people to live independently as much as possible aligned with the Ministry of Health’s new model of supporting disabled people. The new model is based on four corner stone’s: focus on providing information; clearer funding guidelines; more choice and control over the support they purchase; more accountability²¹⁹.

Note #220

[2010] NZHRRT 1 (8 January 2010).

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The Human Rights Review Tribunal in Atkinson & others v Ministry of Health ²²⁰ has found that parents have been discriminated against by the Ministry of Health because

they are not allowed to be paid for the services they provide to their child (or children) while anyone else providing the very same care to their child (or children) is able to be paid.

Nine parents and their severely disabled adult children had asked the Human Rights Review Tribunal to find the Ministry of Health in breach of the New Zealand Bill of Rights Act 1990 due to discrimination.

 

Note #221

See Carers’ Strategy, (accessed 22 June 2011)

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The 2006 Census paints the following picture:

• 38 per cent of carers in New Zealand are between 45 and 64 years old, with a further 31 per cent between the ages of 30 and 44
• 12 per cent of carers are 65 years or older. The most common source of help for those needing support is from a family, whanau or aiga member. Help with household tasks, such as heavy housework and meal preparation, was most commonly given by a spouse or partner, followed by daughters, sons and parents. After family and whanau, the next most frequent sources of help were paid individuals and voluntary organisations
• Women are more likely than men to be carers. Around 63 per cent of carers in New Zealand are women. International research shows women are also more likely to be the main carers and to provide assistance for more hours
• Maori and Pacific peoples are more likely to provide unpaid support than other ethnic groups. Generally, Maori and Pacific peoples face complex caring responsibilities, particularly in the 15–44 age groups. The younger average age of Maori and Pacific careers, their higher rates of severe disability, and their larger households make it more likely they are caring for more than one person and across more than one generation. ²²¹

 

The Tribunal did not accept that the support given by family members to heavily dependent persons, particularly when they reach adolescence and adulthood can be considered as natural support. Nor did the Tribunal find any evidence that the financial impact to pay family members currently excluded would not be sustainable. Our own intuitive view is that the impact is not likely to be great within the disability sector. The Tribunal also found that the policy acted against the objectives of the NZ Disability Strategy.

Section 5: Conclusion

Together the New Zealand Bill of Rights Act, the Human Rights Act and the New Zealand Disability Strategy ensure in theory the full, effective and equal enjoyment of human rights and fundamental freedoms by persons with disabilities. The Bill of Rights Act and Human Rights Act have a clear prohibition on the discrimination against persons with disabilities. Discrimination is unlawful whether it is committed by the government or by private individuals, unless there is a sufficient justification or an unreasonable request to accommodate. The New Zealand Disability Strategy is designed not only to promote non-discrimination but also to ensure that disabled people feel fully included in society. The BORA, the HRA and the NZDS all aim to include disabled people into non-disabled society especially in education, employment, community living, in accessing facilities and in the provision of goods and services. The New Zealand Disability Strategy has a particular emphasis on affirming the dignity of disabled persons, respecting their differences and trying to facilitate their participation in society.

Despite the legislative protections and policy initiatives, disabled persons still are and feel ²²² discriminated against, especially in healthcare and employment. Discrimination tends to impact negatively upon the standard of living of disabled people, which consequently inhibits their autonomy and their ability to participate fully as members of the community. However, progress is being made in all aspects of the Disability Strategy as demonstrated in the annual reports published by the Office for Disability Issues. One reason that disabled people still have trouble integrating into society is that there is still considerable uncertainty over what constitutes ‘reasonable accommodation’ in regards to disability but the Human Rights Commission has advocated for a more Convention compliant meaning. Uncertainty around the issue means that people are often unsure about what their obligations are in respect of accommodating persons with disabilities. It is possible that New Zealand’s recent ratification of the CRPD will provide a further impetus to ensuring the rights of persons with disabilities and their full participation in society. While the legislation and policy in New Zealand does ensure full rights and inclusiveness on a similar level to non-disabled people, in practice those policies need to be implemented fully.

The recurring theme throughout the individual monitoring research was that despite the fact that lawmakers and policymakers appear to have been conscientious in confronting many of the barriers to the full enjoyment of human rights by disabled people, it is the negative attitude and/or lack of understanding of impairments by non-disabled members of the community that cause the greatest difficulties for disabled people. The main source of negative experiences reported was social isolation – disabled people struggle with participation, inclusion and accessibility because people are not well-equipped to relate to people with impairments, and may therefore engage with them in an inappropriate way or even not engage with them at all. A lack of respect for difference is still widely experienced, particularly in the employment context where bureaucratic inflexibility prevents employers being able to accommodate the differing needs of disabled people even where those people are highly qualified and willing to work. The lack of reasonable accommodation in areas like employment and access to transportation is significant for the autonomy of disabled people – they may be compelled to turn down work opportunities or opportunities to participate socially where their impairment would make it awkward or untenable to accept them. Dignity is part and parcel of being able to participate in society and determine one’s own path in life, so the inability of non-disabled people to appropriately relate to disabled people ties in strongly to disabled people’s feelings of self-worth.

Overall, the ability of disabled persons to fully enjoy human rights in New Zealand appears to be limited more by attitudes borne from a lack of understanding of the everyday realities of disabled people’s lives than from lack of accommodations put in place through laws, policies and programs. This was reflected in the individual monitoring research, where the largest category of recommendations for change put forward by participants was in the area of raising awareness²²³. The research suggests that rather than focussing on tangible issues like work, transport and education, further thought should be given to raising awareness in areas more intrinsic to a person’s self worth, such as friendships and social networks²²⁴. New Zealand has developed a reasonable regulatory foundation from which to promote the human rights of disabled people, but now is not the time for New Zealand to rest on its laurels.

Note #222

In a 2008 survey 57 per cent of respondents identified disabled people as being subject to some or a great deal of discrimination (Human Rights Commission, UMR research: Treaty of Waitangi, Personal/Group Discrimination & Disabilities (December 2008))

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Note #223

Disability Rights in Aotearoa New Zealand 2010: A report on the Human Rights of Disabled People in Aotearoa New Zealand (2010) DPA New Zealand at 58.

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Note #224

Ibid, at 65.

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Appendix: DRPI Law, Policy & Program Monitoring Template

The content of Appendix A is DRPI’s National Law and Policy template, which is updated on an ongoing basis.