Disability rights in New Zealand

The Universal Declaration of Human Rights recognizes the inherent dignity, equal and inalienable rights of all human beings. A person with disabilities is entitled to have equal human rights to any able person without any discrimination. They also have the right not to be harassed, taunted, or teased for having disabilities.^[1] Human rights in New Zealand are protected by the New Zealand Bill of Rights Act 1990 (NZ BORA) and the Human Rights Act 1993. New Zealand also signed and ratified to the United Nations Convention on the Rights of Persons with Disabilities (The Disability Convention) in 2008.

Sources of Disability Rights

There were no specific conventions dealing with disability rights before The Disability Convention so disability rights had to be fit under the Universal Declaration. Locally, New Zealand does not have any legislation dealing specially with disability rights so disability rights have to be included within the basic human right legislation.

The Universal Declaration of Human Rights

New Zealand became a member of the United Nations on October 24, 1945 and was a signatory in the Universal Declaration of Human Rights. Article 1 of the Universal Declaration ^[2] says that all human beings are born free and equal with dignity and rights. The Declaration became the standard in judging government conduct in relations to human rights. The Declaration started out as having only moral and political authority, not creating legal obligations like the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)^[3] However, the Universal Declaration principles are now widely recognized they have attained a legal force as being part of the customary law of nations, including New Zealand. It has also been accepted as the authority in interpreting human rights provisions of the United Nations Charter, binding all members.^[4]

The Disability Convention

The United Nations reasoned that in a perfect world, the Universal Declaration would be enough in protecting everyone. However, the 650 million people in the world with disabilities, representing 10 percent of the world population lacks the opportunities of the mainstream population. People with disability face many physical and social obstacles that prevent them from exercising many of their rights. Therefore, a convention that deals with disability and the right of people with disabilities seemed to be necessary.

The United Nations Convention on the Rights of Persons with Disabilities is the international standard for rights of the people with disabilities. New Zealand ratified the Convention in 2008 and therefore has a legal obligation to respect, promote and fulfill the rights provided in the Convention. The Convention is aimed at protecting the dignity of people with disability and ensuring that they are treated fairly and equally under the law.^[5] It does not create any new rights or entitlements but expresses existing rights in a way that address the needs and situations of people with disabilities.^[6] It provides people with disabilities a voice, visibility and legitimacy as equal human beings and their issues in New Zealand and around the world.^[7]

The NZ BORA 1990

The NZ BORA aimed to affirm, protect and promote human rights and fundamental freedoms in New Zealand.^[8] It also affirmed New Zealand’s commitment to the ICCPR. The Act provides the right to be free from discrimination on the grounds of discrimination stated in the Human Rights Act 1993.^[9] These grounds include disability. Despite the propositions that the NZ BORA has obtained 'constitutional status' because of the nature of rights it protects and its affirmation of the ICCPR, it is not supreme law and it can still be overridden by Acts of the Parliament.^[10]

The Human Rights Act 1993

Section 21(1)(h) of the Act makes discrimination based on disability, without lawful justification, unlawful. Section 21(1)(h) of the act defines disability as:^[11]

1. physical disability or impairment
2. physical illness
3. psychiatric illness
4. intellectual or psychological disability or impairment
5. any other loss or abnormality of psychological, physiological, or anatomical structure or function
6. reliance on a guide dog, wheelchair, or other remedial means
7. the presence in the body of organisms capable of causing illness (such as HIV or hepatitis)

Unlawful Discrimination

Discrimination happens when a person is treated unfairly or treated less favourably than other people in the same or similar circumstances.^[12] Discrimination can also occur against the relatives and associates of the people with disabilities.^[13] Discrimination is only unlawful if it happens in one of the areas of activity set out in the Act including employment, education or government activity.^[12] The New Zealand Human Rights Commission provided a formula to help determine whether an activity or a practice amounts to unlawful discrimination. The following components must be present for the discrimination to be unlawful:

           Ground + area + disadvantage + absence of exception or justification = unlawful discrimination.[14]

Lawful Discrimination

There are lawful justifications of discrimination based on disability. In relation to employment, a person with a disability can be treated differently if that person could not perform the duties without the help of special services and it is unreasonable to expect the employer to provide such services or facilities.^[15] If the environment where duties are to be performed is such that it poses a risk of harm to the person with disability or danger to others, including the risk of infecting others with an illness while fulfilling the duties and it is not reasonable to take that risk, is also a lawful justification for different treatment.^[16] The justification will not be lawful if the duties can be performed with some adjustment of activities by the employer and that adjustment does not involve unreasonable disruption on the activities of the employer.^[17]

Indirect discrimination

The Human Rights Act also protects people from indirect discrimination. The prohibited grounds are the same for both direct and indirect discrimination. Indirect discrimination can occur when an action or policy that seems to treat everyone the same actually discriminates against people because of a particular characteristic. This is especially true for people with disabilities. It would be an indirect discrimination against people who use wheelchairs if the only way to get to the shop is by climbing the stairs.^[12]

Equal suffrage and by ballot

The NZ BORA gives a person with disability equal right to vote by secret ballot. This is provided that they are over 18 years old and they have obtained a New Zealand citizenship or permanent residency.^[18] However, they can be denied this right in some contexts. A person with mental health conditions who has been detained for three years or more for criminal offending is disqualified from voting.^[19]

The right by secret ballot can be compromised when the voter has visual impairment or has difficulty interpreting and reading the ballot. They would need assistance in placing their vote which means disclosing their preference to another person.^[20]

The Political participation for Everyone Report ^[21] found that New Zealand’s voting and political systems were not designed for everyone, especially not for people with disabilities. It has found that people with disabilities have experienced hurdles in exercising their right to vote and right to participate in political and public life. The hurdles included inaccessible information and voting papers, limited voting method. There was also a lack of physical facilities where people with disabilities can engage with politicians.

In September 20, 2014, New Zealand introduced voting by telephone and commended by the United Nations on its Concluding Observations for enabling people with disabilities to vote.^[22]

General accessibility

The Human Rights Commission claims that New Zealand is a fully inclusive society which recognises and values people with disability as equal participants.^[23] Their needs are considered integral to the social and economic order and not identified as “special”.^[23] A full inclusion require a barrier-free physical and social environment. The Better Design and Buildings for Everyone: Disabled People's Rights and the Built Environment Report 2012 ^[24] found that New Zealand’s built environment is not often designed taking into account the needs of all users. This particularly excludes people with disabilities, who make up 17 to 20% of the New Zealand population, from using and accessing facilities and services like buildings, parks and recreation facilities.

Access to information

The Better Information for Everyone: Disabled People's Rights in the Information Age Report ^[25] found that information is not accessible to a wide range of people with disability. Human rights depend on the accessibility of information, products and services. New Zealand information and communications were found to have often been designed for one kind of end user, someone who can see and read in English competently with no learning disabilities and is an internet literate.

Making a complaint

People who feel that their human rights have been breached can make a complaint to the Human Rights Commission. The Commission is an independent Crown entity responsible for administering the Human Rights Act 1993. It also monitors the Convention on the Rights of Persons with Disabilities. The Commission offers free and confidential services. It can advise complainants on whether the complaint is covered by the Human Rights Act and if they can help through mediation. If mediation does not work, they can give advice on possible legal options. A complaint can be made in sign language with interpreters available.

The Commission also developed guidelines to using disability rights language as a practical tool when referring to people with disability.^[26] The language being used reflect attitudes toward people with disability. The Commission suggested to use people-centred language which recognises a person with disability is first and foremost a person. In their view, this is one of the many ways New Zealand can promote and respect the dignity of people with disability in accordance with the Disability Convention.

Recognition of people with disabilities

The International Day of Persons with Disabilities first started in 1992 and it is celebrated yearly on December 3. The United Nations promote this day across the world to encourage a better understanding of disability issues. Every year has a different theme. The theme for 2015 was “Inclusion matters: access and empowerment for people of all abilities” which aimed at ensuring that people with disabilities are empowered to create and use opportunity.^[27]

In 2015, thousands of bright free orange wristbands written "Inclusion Matters" on them were sent out to organisations throughout New Zealand for the day of celebration and acknowledgement. The government of New Zealand believes that by wearing the wristband, "you are calling for the inclusion of disabled people into all areas of life."^[28]

References

External links

• Human Rights Commission
• New Zealand Disabled Person's Organisations Report
• Disabled People's Rights Report
• New Zealand Bill of Rights Act
• Human Rights Act 1993