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

Section 3.1: Introduction

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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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.

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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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.

Note #19

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

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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

Section 3.2: Non-discrimination

Section 3.2.1: General

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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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.

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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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.

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

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