Section 2: Law, Policy, and Programs designed to Protect, Promote and Fulfill the Rights of Disabled People

New Zealand’s human rights legislation, notably the Human Rights Act 1993, and other human rights legislation applicable to New Zealand, meant that the implementation of The Convention did not create new rights for disabled people. While The Convention does not create new rights for disabled people per se, it does build on conventional understandings of what is required to implement existing human rights as they relate to disabled people. The Convention elaborates on obligations already applicable to New Zealand internationally through other human rights instruments and domestically through human rights legislation.

The New Zealand Disability Strategy

The history of the New Zealand Disability Strategy can be traced to the rise of new social movements around the world in the 1960s and 70s; during this era indigenous rights, women’s rights and gay and lesbian rights were making their way onto the political agenda for the first time. Since the 1970s political struggle for indigenous rights in New Zealand has moved towards biculturalism. The resulting bicultural policy framework, setting up an ethos of partnership between Maori and the Crown, has influenced and shaped the making of disability policy. The Treaty of Waitangi has been a major instrument in asserting indigenous rights in New Zealand and negotiations between Maori and the Crown have established important principles that are relevant to disability rights in New Zealand.

As a policy document Te Tiriti establishes a partnership relationship between the Crown and Maori. More specifically three guiding principles, partnership, participation and protection have emerged, each of which is linked to an article of Te Tiriti o Waitangi . The partnership principle requires that Crown and Maori act in good faith with one another. Participation requires that each partner is able to participate in affairs of the nation. Protection means there is an obligation on the Crown to actively protect Maori interests. These principles are integral to the development of social policy in New Zealand.

According to Sullivan (1999): many within the Disability Rights Movement in New Zealand see themselves as occupying a similar position to Maori in mainstream society.

• Maori were colonised by the British; disabled people have been colonised by medical and associated professionals;
• Maori were made strangers in their own land; many disabled people were locked up in institutions and made strangers to their communities;
• Maori were forced to participate in a biased, mono-cultural system; disabled people were excluded from participating in their communities on their own terms;
• Maori are discriminated against by racism; disabled people by disablism/ableism;
• Maori have high rates of failure in an institutionally racist education system; disabled people are routinely excluded from an ableist, mainstream education system;
• Maori are subject to higher rates of unemployment and lower rates of income than non-Maori; disabled people have high rates of unemployment and many are condemned to survive on subsistence level income supports;
• Just as Maori have had tino rangatiratanga (ie self-determination) denied and made subject to British law, disabled people have had their humanity denied and made subject to pity, medicalisation and welfarism;
• Just as Maori have been granted a limited form of tino rangatiratanga over tribal resources, many disabled people have been granted limited control over their lives within the confines of services, individual life plans, group homes and so on.

In addition, a similar process can be seen in the suppression of Te Reo Maori (Maori Language) and New Zealand Sign Language within the education system. Like Te Reo, Sign Language was explicitly discouraged or forbidden, most deaf children in New Zealand nevertheless picked up sign language as an unofficial 'playground' language in residential schools (Kennedy, 2002).

Given these parallels, it is not surprising that a number of disabled people in Aotearoa New Zealand came to the conclusion that they needed their own treaty; a treaty to establish a genuine partnership with government; a treaty to guarantee our equal participation in society; a treaty which affirmed the active protection of our citizenship rights by the state. With the election of a Labour-led coalition government in 1999, this seemed a distinct possibility because in opposition they had promised to have a Minister and Office for Disability Issues and the development of a New Zealand Disability Strategy¹.

Note #1

This strategy was a requirment of s.8 of the Public Health and Disability Act 2000

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After extensive consultation with disabled people, was adopted in 2001. It is founded on the social model and aims to create a non-disabling society by progressively removing the barriers to participation which confront impaired people.

Underpinning The Strategy is a vision of a fully inclusive society. New Zealand will be inclusive when people with impairments can say they live in:

“A society that highly values our lives and continually enhances our full participation” (NZDS, 2001:1).

Fifteen objectives are set out for the Government to achieve on its way towards a non-disabling society. Ministries, departments and state agencies are required to report on the progress they have made in implementing The Strategy in their annual reports to Parliament. In the 2004/05 Progress Report, it was noted that a growing number of crown entities and territorial authorities were willingly taking part in The Strategy’s implementation even though they were not required to.

Given this, many disabled people in Aotearoa New Zealand saw The Strategy as their treaty with the Government building towards social participation on their own terms.

It also set the ground work for the development of a partnership between disabled people and the government and the active protection of disabled people by the government. Such a partnership was highly visible during negotiations around The Convention; from the beginning the New Zealand delegation was one of only a few to consist of State officials and disabled people.

The United Nations Convention on the Rights of Persons with Disabilities is an extension of an ethic and principle present in the New Zealand Disability Strategy and an acknowledgement that there is a need to proceed in the same direction towards the realisation of full human rights for disabled people.

United Nations Convention on the Rights of Persons with Disabilities

The impetus for a Convention gained momentum in 2001 when the General Assembly agreed to look at the need to address disabled peoples’ rights. The Convention itself was drafted over the next five years and adopted on 13 December 2006 at the United Nations Headquarters in New York, and entered into force on 3 May 2008. The Convention signifies a shift in attitudes away from the idea of disabled peoples as objects of charity, medical treatment and social protection towards viewing disabled people as "subjects" with the same human rights as other members of society.

No new legislation was required for New Zealand to implement The Convention domestically. However, a number of minor and technical changes were made to various Acts to ensure they were in line with The Convention. The Minister of Disability issues led the amendments to the legislation.

Implementation of The Convention meant that the Government and people of New Zealand must ensure to disabled people the full realisation of human rights and fundamental freedoms on an equal basis with others and without discrimination on the basis of impairment.

The Office for Disability Issues was established within the Ministry of Social Development in 2002. Within the structure of the New Zealand Government, while the role of the Office of Disability Issues is functionally different, its establishment parallels the Office of Treaty Settlements, whose role is to negotiate historical Treaty settlements in New Zealand. The Office for Disability Issues’ core role is to promote and monitor implementation of the New Zealand Disability Strategy, and support the Minister for Disability Issues providing a focal point within government on disability issues and lead cross-sector policy development. The Office for Disability Issues has a role to monitor and implement The Convention.

The Convention requires States to take action to remove barriers to the participation of disabled people in society, whether this is done through legislation, practice, or other measures. Many articles interweave civil and political rights (such as nondiscrimination or access to justice) which must be immediately realised at the time of ratification) and economic, social and cultural rights (such as the right to the highest attainable standard of health or accessible transport services, which may be realised progressively, to the maximum of available resources).

Where rights can be progressively implemented, it is up to the Government to decide how quickly and to what degree the implementation will happen, so long as there is a clear and concrete commitment that action will happen to the maximum of its available resources.

This process is similar to the current implementation of the New Zealand Disability Strategy, where any costs are met by government agencies’ ordinary funding processes, whether by internal resource allocation or budget bids, and implementation is subject to obtaining the resources needed.

A right in The Convention that is not explicit in earlier human rights treaties is article 19 (living independently in the community). This article expands the need for States to recognise the right of disabled people to live in the community, with choices equal to others, and to take effective and appropriate measures to facilitate this happening. Such measures include enabling disabled people to: choose their place of residence and choose who they live with; access a range of in-home and community support; and access community services and facilities available to the general population. While this is consistent with the New Zealand Disability Strategy, ratification of is likely to result in pressure for increased pace of change in its implementation.

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