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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.

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