Cross-Examination: New Zealand’s compliance with the Convention on the Rights of Persons with Disabilities

By Georgia Osmond

 

Disability law is a highly specialised area of human rights law, and focuses on securing equal rights and opportunities for people with disabilities. The Convention on the Rights of Persons with Disabilities (the Disability Convention) was created in 2007, with the purpose of “promot(ing), protect(ing), and ensur(ing) the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”[1]

New Zealand played a large role in the development of the Disability Convention, and was one of the first signatories and states to ratify it.[2] However, actual practices in New Zealand relating to its implementation demonstrate that New Zealand’s compliance with the Convention could, and should, be better.

The Disability Convention

Disability is defined in the Disability Convention as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”[3]

The Disability Convention focuses on the ability of people with disabilities to participate fully in society on an equal basis with others. Other important principles that centre the Convention include the ability of people with disabilities to exercise their individual autonomy, non-discrimination based on disability, equality of opportunity and accessibility.[4]

To ensure these principles are met, there are a number of general obligations states parties must meet. For example, states must adopt appropriate legislative and administrative measures to allow for the implementation of the rights in the Convention, and must take all measures to either modify or abolish legislative instruments that would be deemed to be discriminatory against people with disabilities.[5] As a state party to this Convention, there is an expectation on New Zealand to fully meet these obligations, and make alterations to our law if necessary.

The situation in New Zealand

The most recent Disability Survey, done in 2013, provides statistics relating to disability in New Zealand. In 2013, 24%, or 1.1 million people in New Zealand, identified as disabled. This number generally increased as the age increased, with 59% of adults over 65 more likely to be disabled compared to 21% of adults under 65.[6] Māori and Pacific people have higher than average rates of disability, and 1 in 3 Māori identify as being disabled.[7] Having multiple disabilities was found in 53% of respondents, and in 63% of adults over 65.[8]

It has long been believed that New Zealand was good with human rights, and especially with disability. This belief has partially been due to the inclusion of disability as a ground of unlawful discrimination in the Human Rights Act 1993.[9] However, studies undertaken by the Committee on the Rights of Persons with Disabilities, and consistent cases being undertaken by Auckland Disability Law, would suggest that New Zealand is not as compliant with the Disability Convention as it is believed.

Where does New Zealand not comply with the Disability Convention?

Minimum Wage Act 1983, section 8

A Labour Inspector may, under this section, issue a wage exemption permit to a worker if the worker is limited by their disability in carrying out the requirements of their work, if reasonable accommodations that could have been made to carry out the requirements were considered by the worker and their employer, and if it is reasonable and appropriate to grant the permit.[10] The permit allows an employer to pay a person with disabilities less than the minimum wage for work they do, with no mentioned possibility of reviewing the wage rate or development towards receiving higher wages.[11]

This is considered to be in violation of art 27 of the Disability Convention, where states parties are required to prohibit discrimination on the basis of disability relating to all employment matters. It is also in violation of art 5 of the Disability Convention, where states parties have an obligation to prohibit discrimination on the basis of disability. This section could be seen as discriminatory, as it allows people to be paid significantly less than the minimum wage purely because of their disability.

Auckland Disability Law, a community law centre focused on providing legal services to people with disabilities, has encountered several cases where disabled people have been paid significantly less than the minimum wage. In one case, a worker was earning $1.25 an hour; in others, workers were earning only $3-$5 an hour.[12] The Committee on the Rights of Persons with Disabilities found that at least 1200 people were paid less than the minimum wage under these permits, and recommended the government looked at alternatives to this process.[13] This, however, has not yet been done. When 45% of disabled people over 18 are employed, and only 18% of disabled people in employment have an income higher than $50,000 a year,[14] this would suggest there are disparities between disabled and non-disabled people.

Protection of Personal and Property Rights Act 1988, section 12

Section 12 of this Act allows the court to appoint a welfare guardian if the person in question lacks the capacity to make or communicate decisions relating to aspects of their personal care and welfare, and if the appointment of a welfare guardian is the only way to ensure appropriate decisions are made relating to the welfare and care of that person.

This section has been criticised for its replacement of supported decision-making with that of substituted decision-making. One of the main principles of the Disability Convention is to enable disabled people to retain autonomy and continue to make their own choices over their lives.[15] This is also affirmed by art 12 of the Disability Convention, which encourages states parties to recognise that disabled people have legal capacity on an equal basis with non-disabled people. Though there may be some situations where a person has absolutely no ability to communicate or demonstrate their decisions, there are also other situations where disabled people may be deemed unable to communicate, but still have the ability to make decisions.

This also reflects the dominant view in New Zealand of disability, and disabled people, as requiring welfare and assistance, compared to the Disability Convention which focuses instead of the equal opportunities and capabilities of people despite their disabilities. This view of disability in New Zealand needs to change to allow disabled people to participate fully in decisions that affect them.

Human Rights Act 1993

The Human Rights Act 1993 is the legislation in New Zealand that deals with discrimination in all areas of life, including work, employment, and provision of goods and services. Most complaints that go to the Human Rights Commission deal with the issue of ‘reasonable accommodation’, a term that is not defined in the Act itself.[16] It is, however, defined in the Disability Convention as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden…to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”[17]

The lack of definition of ‘reasonable accommodation’ in the Human Rights Act, and the failure in the Disability Convention to provide states with an idea of how best to meet this requirement,[18] means that disabled people can be excluded from society if it is too hard to include them.

This is reflected in New Zealand legislation. For example, in the Human Rights Act itself, s 42 makes it unlawful to refuse public access to a public space or facility on any prohibited ground of discrimination. However, an exception is granted if it would be unreasonable to require a person to provide special services or facilities to accommodate people with disabilities.[19]  This is in direct conflict with art 19 of the Disability Convention, which recognises the right of disabled people to live and fully participate in the community.

There is also a lack of compliance with art 24 of the Disability Convention related to education. Under this article, states parties are required to ensure that people with disabilities are not excluded from the education system because of their disability, and that reasonable accommodations are made based on the needs of the individual. However, as there is no express definition of what ‘reasonable accommodations’ are, a school could potentially argue that it would not be reasonable for them to make changes to either the school itself or their teaching system, and therefore be able to exclude people with disabilities. Lack of resources also means schools may not have the facilities to support disabled people through their education. This also conflicts with the right of disabled people to be fully included in the community, and to not be discriminated against on the basis of their disability.

What next for New Zealand?

There have been some positive steps forward for New Zealand in relation to disability rights. There is greater representation of disabled people in the media, and services like close-captioning and audio description are making their way into our TV shows and movies. In 2014, telephone voting was used during the national election for blind, low vision, and people with physical disabilities, and this was repeated again in the 2017 election.[20] Implementation of an independent monitoring mechanism, including the Human Rights Committee, the Ombudsman and the New Zealand Convention Coalition Monitoring Group containing members of Disabled People Organisations provide a constant check and balance on the government and ensure that action is constantly taken to better include disabled people in society. More recently, action is being taken towards improving access to public transport for disabled people, which will allow more disabled people to properly participate in the community.

Much more work, however, needs to be done. This can come from changing the community attitude towards disability, from one of disabled people needing charity and assistance in their lives, to recognising them as functioning members of the community who have as much to give as non-disabled people. When disabled people are treated with the capacity to make decisions for themselves, and not defined purely by their disability, then New Zealand can take greater steps in becoming more inclusive, and truly becoming compliant with the Disability Convention. What this requires first, though, is a proper discussion about New Zealand’s legislation and a determined effort to change it for the better.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

[1] Convention on the Rights of Persons with Disabilities, (open for signature 30 March 2007, entered into force 3 May 2008), art 1.

[2] Sylvia Bell, Judy McGregor and Margaret Wilson “Convention on the Rights of Disabled Persons: A Remaining Dilemma for New Zealand” (2015) 13 NZJPIL at 278.

[3] Article 1.

[4] Article 3.

[5] Article 4.

[6] Stats NZ “2013 Disability Survey” (17 June 2014) Disability Survey: 2013 <www.archive.stats.govt.nz>.

[7]  Stats NZ, above n 6.

[8] Stats NZ, above n 6.

[9] Bell, McGregor and Wilson, above n 2, at 279.

[10] Minimum Wage Act 1983, s 8.

[11] Email from Sue Plowman (General Manager of Auckland Disability Law) to Georgia Osmond regarding New Zealand’s compliance with the Disability Convention (1 May 2018).

[12] Email from Sue Plowman, above n 11.

[13] Committee on the Rights of Persons with Disabilities Concluding Observations on the initial report of New Zealand CRPD/C/NZL/CO/1 (2014) at [57].

[14] Stats NZ, above n 6.

[15] Convention on the Rights of Persons with Disabilities, above n 1, preamble.

[16] Committee on the Rights of Persons with Disabilities, above n 13 at [11].

[17] Article 2.

[18] Bell, McGregor and Wilson, above n 2, at 286.

[19] Human Rights Act 1993, s 43(2).

[20] Blind Foundation “Vote by telephone dictation voting in the 2017 General Election” Blind Foundation <www.blindfoundation.org.nz>.