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New Zealand Law Foundation Research Reports |
Last Updated: 28 March 2021
Disability legislation and outcomes
A review of the social and economic impact of disability and accessibility legislation in New Zealand and selected jurisdictions
NZIER report to the Blind Foundation of New Zealand December 2017
NZIER is a specialist consulting firm that uses applied economic research and analysis to provide a wide range of strategic advice to clients in the public and private sectors, throughout New Zealand and Australia, and further afield.
NZIER is also known for its long-established Quarterly Survey of Business Opinion and Quarterly Predictions.
Our aim is to be the premier centre of applied economic research in New Zealand. We pride ourselves on our reputation for independence and delivering quality analysis in the right form, and at the right time, for our clients. We ensure quality through teamwork on individual projects, critical review at internal seminars, and by peer review at various stages through a project by a senior staff member otherwise not involved in the project.
Each year NZIER devotes resources to undertake and make freely available economic research and thinking aimed at promoting a better understanding of New Zealand’s important economic challenges.
NZIER was established in 1958.
Authorship
This paper was prepared at NZIER by Victoria Hinson and Todd Krieble. It was quality approved by NZIER Senior Fellow John Yeabsley.
The external peer review comments by disability and law consultant Karen Heine, and Sue Plowman, General Manager at Auckland Disability Law were gratefully received.
The assistance of Sarah Spring and Jessica Matthewson is gratefully acknowledged.
Funding
This report is part funded by a grant from the Law Foundation.
L13 Willeston House, 22-28 Willeston St | PO Box 3479, Wellington 6140 Tel +64 4 472 1880 | econ@nzier.org.nz
© NZ Institute of Economic Research (Inc) 2012. Cover image © Dreamstime.com
NZIER’s standard terms of engagement for contract research can be found at www.nzier.org.nz.
While NZIER will use all reasonable endeavours in undertaking contract research and producing reports to ensure the information is as accurate as practicable, the Institute, its contributors, employees, and Board shall not be liable (whether in contract, tort (including negligence), equity or on any other basis) for any loss or damage sustained by any person relying on such work whatever the cause of such loss or damage.
Contents
1. Introduction
This report addresses the following research questions:
This report provides:
This report has been commissioned by the Blind Foundation as a member of the Access Alliance. This report is part funded by a grant from the Law Foundation.
2. Purpose and orientation
The purpose of this report is to improve our understanding of the legislative base and outcomes for PWD.
Our approach is to:
The countries (and in some case sub-national jurisdictions) examined in this report are countries with whom we have similarities. These are a group of countries that often look to each other for ideas and solutions to similar problems. While there are many similarities there are also many differences that make direct comparison unwise.
Despite a Commonwealth heritage each jurisdiction has a different legislative history and each society takes a different approach to discrimination and disability. Despite UN statistical conventions, statistics between countries are not always directly comparable.
Casual links between laws and outcome are difficult to draw. Nevertheless, there are general impressions and lessons that can be drawn from these different country experiences.
An especially importance aspect of the law is to calibrate change at a pace that is challenging but does not get ahead of what society can accept and manage. This is the ‘incrementalist’ rather than ‘rationalist’ approach to public policy. The continuous advent of new technology and changing social attitudes/expectations regarding PWD suggest laws will need to be designed so they are flexible and adaptable.
In the philosophy of law there is a concept of legitimacy1 that requires consent, beneficial consequences, reason and approval of those subject to the law. Laws reflect social values and social values do evolve. With changing technology, the possibilities to improve the lives of PWD will grow. In the words of Acemoglu and Jackson:
Equilibrium law-breaking depends on social norms ... laws that are in strong conflict with prevailing social norms may backfire, while gradual tightening of laws can be more effective in influencing social norms and behaviour.2
Laws are not static and good law is flexible in light of evolving circumstances as is the case with the ability of technology to improve the lives of PWD. In a famous piece of commentary on jurisprudence, James Garner says that:
1 https://plato.stanford.edu/entries/legitimacy/
Experience is developed by reason and reason is tested by experience. Nothing else maintains itself in the legal system. Law is experience organised and developed by reason, authoritatively promulgated by the lawmaking or law-declaring organs of a politically organized society and backed by the force of that society.3
The point is that laws can be designed to evolve as we learn from experience.
3. The UN Convention for the Rights of People with Disabilities
The United Nations Convention for the Rights of People with Disabilities (UNCRPD), with particular focus on Article 9 Accessibility, is the overarching instrument against which each of the selected jurisdictions has been assessed. Accessibility is also one of the underlying core principles of the Convention (Article 3).
The Convention and its Optional Protocol were adopted on 13 December 2006. The Convention entered into force on 3 May 2008:
The decision to add a universal human rights instrument specific to persons with disabilities was borne of the fact that, despite being theoretically entitled to all human rights, persons with disabilities are still, in practice, denied those basic rights and fundamental freedoms that most people take for granted.4
As described by the UN itself:5
The Convention is intended as a human rights instrument with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.
3.1. What the Convention requires
Countries who have become party to the UNCRPD (State Parties) have general obligations, such as to adopt legislation and administrative measures to ensure the human rights of persons with disabilities and to take all appropriate measures to eliminate discrimination on the basis of disability.6
The Convention also contains detailed provisions requiring State Parties to take appropriate measures in particular areas to address the barriers that PWD may face in realising their rights. Article 9 of the Convention requires State Parties to take appropriate measures to ensure accessibility in the physical environment, transportation, information, communications (including technology), and services.
6 UNCRPD Article 4.
Article 9 specifies that these appropriate measures are to include, amongst other things:
The Committee on the Rights of Persons with Disabilities issued a General Comment on Article 9 outlining issues and recommendations for State Parties to improve accessibility, based on information such as State Parties initial implementation reporting to the Committee.7
As part of setting the context, the General Comment addressed the differences between the duty to address accessibility and that of reasonable accommodation:8
before receiving an individual request to enter or use a place or service”;
and
In discussing the States’ Article 9 obligation to adopt, promulgate and monitor national accessibility standards, the Committee stated “If no relevant legislation is in place, adopting a suitable legal framework is the first step”.9 The Committee also recommended that the legal framework “should provide for the mandatory application of accessibility standards and for sanctions, including fines, for those who fail to apply them”.10
The Committee acknowledged throughout the General Comment that the Convention allows State parties to ensure access is achieved through gradual implementation in a progressive and systematic way;11 however, the Committee also stressed the need for
10 UN Committee on the Rights of Persons with Disabilities, General Comment No. 2 (2014) Article 9: Accessibility CRPD/C/CG/2, 22 May 2014, para 28.
11 UN Committee on the Rights of Persons with Disabilities, General Comment No. 2 (2014) Article 9: Accessibility CRPD/C/CG/2, 22 May 2014, see, for example, paras 14 and 27.
States to “establish definite time frames and allocate adequate resources” for doing
so,12 as well as continuous monitoring.13
3.2. Reporting, complaints and inquiries
In accordance with the Convention,14 a UN Committee on the Rights of Persons with Disabilities has been established, with members nominated and elected by States Parties to the Convention. States parties are obligated to submit to the Committee regular reports on how the rights of the Convention are implemented.15 During its sessions, the Committee considers the reports of States parties and addresses its concerns and recommendations to the State party concerned in the form of concluding observations. States parties must report initially within two years of accepting the Convention and then every four years.
The Optional Protocol to the Convention allows individuals and groups from ratifying countries to petition the Committee about a violation by their State Party of the provisions of the UNCRPD, after recourse to all national procedures have been exhausted. As such, the Optional Protocol enables the Committee to undertake two further forms of monitoring, through the individual communications (complaints) procedure and the inquiry procedure for investigation of alleged gross or systematic violations of the Convention.
In addition, in June 2014, the UN Human Rights Council decided to appoint, for a period of three years, a Special Rapporteur16 on the rights of persons with disabilities (SRRPD). This decision was due to the UNHRC being “Deeply concerned that, in all parts of the world, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights, and conscious that greater attention is needed to these challenges” and the fact that the mandate for the Special Rapporteur on Disability of the Commission for Social Development was to expire on 31 December 2014.17
The first SSRPD took office on 1 December 2014 and is mandated to:18
12 UN Committee on the Rights of Persons with Disabilities, General Comment No. 2 (2014) Article 9: Accessibility CRPD/C/CG/2, 22 May 2014, para 24.
13 UN Committee on the Rights of Persons with Disabilities, General Comment No. 2 (2014) Article 9: Accessibility CRPD/C/CG/2, 22 May 2014, see, for example, paras 14 and 24. The Committee noted in para 10 that “One common challenge has been the lack of an adequate monitoring mechanism to ensure the practical implementation of accessibility standards and relevant legislation”.
14 UNCRPD Article 34.
15 UNCRPD Article 35.
16 Special Rapporteurs are appointed by the United Nations Human Rights Council to examine and report back on particular human rights themes, or situations concerning a speci•fic country in all parts of the world. The Special Rapporteurs and Independent Experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world.
17 UN Human Rights Commission Human Rights Council resolution 26/20 Special Rapporteur on the rights of persons with disabilities.
18 http://www.ohchr.org/EN/Issues/Disability/SRDisabilities/Pages/SRDisabilitiesIndex.aspx (last accessed 15 July 2017).
4. Assessment of selected jurisdictions
This section examines the approach to disability accessibility legislation and economic outcomes for PWD in the selected jurisdictions – Australia, Canada and the United Kingdom – as compared with New Zealand. These three countries have a common legal heritage and way of thinking about the law. Within Canada, Ontario is the focus because Ontario has had specific disability law in place longest and has a deeper experience to learn from. Australia is examined as the national level because the Government of Australia has taken a strong central government approach to disability.
Direct comparisons are not always possible due to constitutional circumstances (Australia and Canada being federal) and different approaches to what is measured and how it is measured.
Nonetheless these are three countries that New Zealanders look to for ideas and broad comparisons of social and economic outcomes.
4.1. Literature review
The analysis includes a literature review of the selected jurisdictions. The discussion and analysis of the literature are presented in an interpretive, descriptive way for each country, reflecting a focus on disability-specific legislation and related studies and grey reports.19
4.2. Assessment framework
The framework for comparing disability legislation includes a legal assessment of the legislative models, an assessment of the efficiency and effectiveness of those models and a comparison of the social and economic outcomes, in each of the jurisdictions as compared with New Zealand.
4.2.1. Legal assessment
The legal assessment focuses on basic similarities and differences in the legislative models identified in the literature review (above) as compared with each other and New Zealand, namely:
19 “Grey” reports refer to those produced by government, academics, business and industry in print and electronic formats, but which is not controlled by commercial publishers. The Grey Literature Report, http://www.greylit.org/about (last accessed 28 November 2017), citing New frontiers in grey literature: fourth International Conference on Grey Literature, Kellogg Conference Center, Washington, D.C., USA, 4-5 October 1999.
It also takes into account compliance with the United Nations Convention for the Rights of People with Disabilities (UNCRPD), with particular focus on accessibility (Article 9).
4.2.2. Efficiency and effectiveness assessment
Efficiency refers to the ability of the regulatory regime to achieve the purpose of the law without any wasted resources. This is called productive efficiency. The concept of allocative efficiency in the concepts of this report relates to whether the legislation is aligned to ‘right objectives’ – implementation of the of the UNCDPD in the first place
The latest version of the Government Expectations for Good Regulatory Practice was issued in April 2017. “The government believes that durable outcomes of real value to New Zealanders are more likely when a regulatory system:
information on the regulatory system’s performance.”20
20 Government Expectations for Good Regulatory Practice, 21 April 2017, http://www.treasury.govt.nz/regulation/expectations, p 2.
.
The Government Expectations note that “a regulatory system should deliver, over time, a stream of benefits or positive outcomes in excess of its costs or negative outcomes. We should not introduce a new regulatory system or system component unless we are satisfied it will deliver net benefits for New Zealanders” 21
Effectiveness relates to producing the right result. This is important because sometimes policies and laws produce different or unintended results.
4.2.3. Outcomes assessment
The NZIER outcome framework examines:
Schooling and higher levels of education are important for PWD to participate in society and work. Education can be affected by the availability of support and accommodations.
Workforce participation is important for participation in society and financial independence. Disability can impact on the degree to which people are able to participate in work.
Social networks are important to life outcomes. Participating in social events and community activities is part of wellbeing.
Workforce and social participation depend on access. Transport and communication networks are a critical element of participation in society. PWD face physical and technical barriers that lead to exclusion. Disability discrimination occurs when PWD are treated less fairly than people without disability (PWoD).
All of the jurisdictions examine have ageing populations. As disability increases with age the proportion of the population with one or more disability will also increase.
21 Government Expectations for Good Regulatory Practice, 21 April 2017, http://www.treasury.govt.nz/regulation/expectations, p 2.
4.3. Australia
4.3.1. Context for assessment
4.3.2. Disability legislation assessment
Federal legislation
At the federal (or Commonwealth) level, Australia has a separate statute for disability discrimination – the Disability Discrimination Act 1992 (DDA).
At the time the DDA was enacted, a variety of anti-discrimination acts for PWD already existed in most of the states and territories (and still does today). A federal law was enacted to:
regard to the rights of PWD
The DDA prohibits both direct and indirect discrimination against people on the basis of their disability across a range of areas: work and employment, education, access to publicly available premises, the provision of goods, services and facilities, accommodation, disposal of an estate or interest in land, membership of clubs and incorporated associations, sport and the administration of Australian Federal laws and programs. The DDA applies to the Australian Government, States and Territories, and private sector bodies23 and operates in addition to States and Territories laws.
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009
The Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) made a range of significant changes to federal discrimination laws, including significant changes to the DDA. The main impetus for the changes was the Australian Productivity Commission’s 2004 report, Review of the Disability Discrimination Act
22 Australia, House of Representatives, Hansard, vol. HR184 (26 May 1992), pp. 2750-5.
23 Implementation of the Convention on the Rights of Persons with Disabilities, Initial report submitted by Australia under article 35 of the Convention CRPD/C/AUS/1, 3 December 2010, para 15.
1992,24 which recommended a range of changes to improve the operation of the DDA.25
Key changes to the DDA included: 26
wider range of circumstances
Positive duty
The DDA includes a positive duty to make reasonable adjustments for a person with a disability.27 As noted above, this duty was added in 2009, following the Australian Productivity Commission’s 2004 report, as well as for consistency with the requirement to make ‘reasonable accommodation’ in the UN Convention on the Rights of Persons with Disabilities.28
However, a recent Australian Human Rights Commission (AHRC) inquiry discussed the possibility, raised by submitters, of having a wider positive duty to promote substantive equality or prevent discrimination. The AHRC noted that the idea of a positive duty to promote substantive equality or prevent discrimination was
24 Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth), The Productivity Commission’s report is available online: <http://www.pc.gov.au/projects/inquiry/dda/docs/finalreport> at 18 August 2009.
25 Australia Human Rights Commission, Improved rights protection for people with disability - Commentary on the 2009 changes to the Disability Discrimination Act 1992 (Cth) and related measures, August 2009, p. 1.
26 Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, p. 1; see also Australia Human Rights Commission, Improved rights protection for people with disability - Commentary on the 2009 changes to the Disability Discrimination Act 1992 (Cth) and related measures, August 2009.
27 DDA s 5(2); see also Australia Human Rights Commission, Improved rights protection for people with disability - Commentary on the 2009 changes to the Disability Discrimination Act 1992 (Cth) and related measures, August 2009.
28 Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, 9 [41-7].
considered in previous inquiries and discussion papers, and that the Victorian Equal Opportunity Act 2010 has adopted a positive duty on employers, the recruitment industry and others to eliminate discrimination, harassment and victimisation. The AHRC recommended that the Australian Government consider the benefits of a positive duty to promote substantive equality or eliminate discrimination being inserted in federal discrimination laws.29
Exemptions/defences (and threshold)
The DDA provides two key exemptions or defences in relation to discrimination:
‘inherent’ requirements of the job, even with reasonable adjustments.30
“Unjustifiable hardship” is defined as follows:32
(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
- (a) the nature of the benefit or detriment likely to accrue to, or be suffered by, any persons concerned; and
- (b) the effect of the disability of a person concerned; and
- (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship;
- (d) the availability of financial and other assistance to the first person; and
- (e) any relevant action plans given to the Commission under section 64.
Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
Implicit in the concept of unjustifiable hardship is that some hardship will be justifiable:
the concept of ‘unjustifiable hardship’ connotes much more than just hardship on the respondent. The objects of the [DDA] make it clear that elimination of
29 Australian Human Rights Commission, Willing to Work National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability, May 2016, pp. 333 -4 and Recommendation 49.
30 DDA s 21A.
31 See ss 21B and 29A of the DDA.
32 DDA s 11.
discrimination as far as possible is the legislation’s purpose. Considered in that context, it is reasonable to expect that [a respondent] should have to undergo some hardship...33
Burden of proof
The onus of proving the elements of the defence of ‘inherent requirements’ (applicable only in the area of employment) is on the person responding to an allegation of discrimination.34 Similarly, the burden of proving that something would impose unjustifiable hardship lies on the person claiming the hardship.35
In either case, it must first be established that discrimination has occurred; only then does the respondent have to establish the defence of ‘inherent requirements’ or unjustifiable hardship.36
Recent amendments to the Australian Human Rights Commission Act 1986 have further emphasised the need to first establish a claim for discrimination. The amendments include that a complaint must set out as fully as practicable the details of the alleged acts and that it must be reasonably arguable that those acts are discrimination. The amendments also require the President of the Commission to carry out an initial assessment of a complaint and consider whether to terminate the complaint before commencing an inquiry.37
Standards
The DDA provides for, and is intended to be supported by, standards.
Standards are legally binding regulations set by the Attorney-General, informed by advice from the government department responsible for administering the particular standard (e.g., the Department of Education with respect to the Disability Standards for Education 2005) and required to be regularly reviewed.38 The Australian Human Rights Commission may also advise the Attorney-General on development of standards.
33 Australian Human Rights Commission, Federal Discrimination Law, 2016, pp. 413-6, citing Finney v Hills Grammar School [1999] HREOCA 14 (extract at [1999] HREOCA 14; (1999) EOC 93-020). Affirmed on review in Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] FCA 658; (2000) 100 FCR 306, 318 [48]. See also Access For All Alliance (Hervey Bay) v Hervey Bay City Council [2004] FMCA 915, [84].
34 Australian Human Rights Commission, Federal Discrimination Law, 2016, p. 379, citing Commonwealth v Human Rights and Equal Opportunity Commission (1996) 70 FCR 76, 87-88; Power v Aboriginal Hostels Ltd [2003] FCA 1475; (2003) 133 FCR 254, [19] (Selway J); Williams v Commonwealth [2002] FMCA 89, [144].
35 DDA s 11(2).
36 Australian Human Rights Commission, Federal Discrimination Law, 2016, p. 379, citing Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987; (2002) 123 FCR 561, 568 [24]-[25]; Daghlian v Australian Postal Corporation [2003] FCA 759, [113]- [114].
37 Australian Human Rights Commission, Fact sheet Changes made to the Australian Human Rights Commission Act 1986, April 2017, discussing the recent amendments, including new requirements for a complaint to set out as fully as practicable the details of the alleged acts, and it must be reasonably arguable that those acts are discrimination (https://www.humanrights.gov.au/sites/default/files/Fact%20sheet%20-
%20Changes%20to%20the%20AHRCA%20%28April%202017%29.pdf).
38 Australia Attorney-General’s Department, Australia’s Anti-Discrimination Law, https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Australias-Anti-Discrimination-Law.aspx.
To the extent that they apply to a situation, the standards operate to override the general direct and indirect discrimination provisions and their exemptions.39
The only method of ‘enforcing’ the standards is through the DDA’s individual complaints process. This enforcement approach has not been found to be satisfactory40 (see discussion below concerning Compliance).
Standards can be made in the areas of employment, education, public transport services, access to premises, accommodation and the administration of Commonwealth laws and programs. However, to date, standards have been made in only in three areas:
One researcher noted that “It took a decade of consultation and negotiation before the first standards were introduced (public transport [in 2002]), another few years to see Disability Education Standards [2005]”.41 The Building – Access to Premises Standards took about another 5 years after the education standards to be made (in large part because of the work done to harmonise the requirements of the DDA and the Building Code in one document, ensuring that people meeting the Premises Standards cannot be the subject of a complaint under the DDA).42
The Standards have been successful in some respects. For example, the most recent review of the Transport Standards concluded that they “continue to be effective in bringing forward investment in accessible infrastructure and conveyances, and in requiring governments, public transport operators and providers to plan and implement upgrades to the conveyances and associated infrastructure they are responsible for”.43 Similarly, the most recent review of the Education Standards found that “In terms of access and participation, physical access to education facilities is generally considered to have improved markedly, and there are also numerous examples of very effective adaptive practices by educators that enable access to curriculum”.44 And the first review of the Access to Premises Standards, completed in April 2016, found that those Standards have made some improvements in providing
39 DDA ss 34 and 35.
40 Australian Department of Infrastructure and Transport, Review of the Disability Standards for Accessible Public Transport 2002 Final Report, July 2015, p. 12: “This review received submissions arguing for this process to be strengthened to better enable community members to pursue complaints through the court system, where appropriate.” See also 2015 Review of the Disability Standards for Education 2005, Final Report, 17 July 2015, p. vi. “A key concern for many stakeholders is the reliance on complaints mechanisms for enforcement of the Standards.”
41 Belinda Smith, Australian Anti-Discrimination Laws - Framework, Developments and Issues, University of Sydney Law School Legal Studies Research Paper No. 08/24, March 2008, p. 21. Available from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1101909.
42 Australian Office of the Attorney-General (October 2010) Disability (Access to Premises-Buildings) Standards 2010: Explanatory Note. See also Australian Department of Industry, Innovation and Science, Review of the Disability (Access to Premises - Buildings) Standards 2010 (Premises Standards), April 2016, https://industry.gov.au/industry/IndustrySectors/buildingandconstruction/Pages/PremisesStandardsReview.aspx (last accessed 15 September 2017).
43 Australian Department of Infrastructure and Transport, Review of the Disability Standards for Accessible Public Transport 2002 Final Report, July 2015, p. 10.
44 Urbis (on behalf of the Australian Government Department of Education and Training), Final Report – 2015 Review of the Disability Standards for Education 2005, 17 July 2015, p. vi.
PWD, dignified, equitable, cost effective and reasonable achievable access to public buildings.45
However, the Transport Standards review also found that implementation and progress against the Transport Standards was uneven and “most submissions from the disability sector, local governments and other bodies advise of continuing deficiencies in the physical accessibility of public transport conveyances and infrastructure, the quality of public transport information and engagement of public transport staff, and a lack of effective planning for whole-of-journey accessibility”.46 That review also heard widespread criticism of the absence of a national system of reporting on compliance with the standards, which the review itself considered a hindrance to its work.47
The Disability Education Standards review found that the extent to which the Standards’ objectives were achieved was dependent, not only on the construction and clarity of the Standards themselves, but also on the extent to which supporting policies and programs were developed, funded and effectively implemented.48 For example, review participants were particularly positive about the implementation of the More Support for Students with Disability initiative, the Nationally Consistent Collection of Data on School Students with Disability, and the development and delivery of high quality online resources for educators (via the University of Canberra).49
The absence of standards for employment has been identified as an area of particular concern;50 however, it seems to be generally acknowledged in Australia that DDA employment standards may take some time yet to be developed and that other ways of promoting voluntary standards will have to explored.51 For example, the AHRC has published a good practice resource for employers.52 The Australian Government has yet to publish a response to the AHRC’s Willing to Work Report, including its recommendation that “the Australian Government further consult with individual, employers and peak bodies to consider the merits of developing disability standards for employment”.53 Instead, its focus appears to be on improving employment
45 Australian Department of Industry, Innovation and Science, Review of the Disability (Access to Premises – Buildings) Standards 2010 (Premises Standards), April 2016, p. 7. https://industry.gov.au/industry/IndustrySectors/buildingandconstruction/Pages/PremisesStandardsReview.aspx (last accessed 15 September 2017).
46 Australian Department of Infrastructure and Transport, Review of the Disability Standards for Accessible Public Transport 2002 Final Report, July 2015, pp. 11 and 125.
47 Australian Department of Infrastructure and Transport, Review of the Disability Standards for Accessible Public Transport 2002 Final Report, July 2015, pp. 11 and 125.
48 Urbis (on behalf of the Australian Government Department of Education and Training), Final Report – 2015 Review of the Disability Standards for Education 2005, 17 July 2015, p. ii.
49 Urbis (on behalf of the Australian Government Department of Education and Training), Final Report – 2015 Review of the Disability Standards for Education 2005, 17 July 2015, pp. iv and v.
50 Australian Human Rights Commission, Willing to Work National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability, May 2016, p. 328.
51 Australian Human Rights Commission, Willing to Work National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability, May 2016, pp. 314-6 and 340. See also B Smith, Australian Anti-Discrimination Laws, p. 21.
52 Australian Human Rights Commission, Willing to Work Good practice examples: A resource for employers, 2016.
53 Australian Human Rights Commission, Willing to Work National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability, May 2016, recommendation 54.
outcomes for PWD disability by providing services and funding to address barriers to employment of PWD.54
Guidelines
Under the DDA, the AHRC can issue Guidelines (or ‘Advisory Notes’) to assist persons and organisations to understand their rights and comply with their responsibilities under the DDA and accompanying Standards. Guidelines can be made for the same areas as Standards; however, unlike the Standards themselves, Guidelines and Advisory Notes are not legally binding. To date, the AHRC has issued Guidelines and Advisory Notes in relation to access to premises, accessible bus stops, world wide web accessibility and insurance.
Action plans
The DDA provides for organisations to develop action plans for the elimination, as far as possible, of disability discrimination in the areas covered by the Act.
There is no obligation to develop or provide an action plan to AHRC,55 but if an organisation chooses to do so, the plan must conform to specific requirements in the DDA. An action plan must include provisions relating to: the development of policies and programs to achieve the Act’s objectives; communication of these; review of its practices to identify discriminatory practices; setting of goals and targets (where reasonable) against which the success of the plan may be assessed; means of evaluating the policies and programs; and the appointment of persons responsible for implementation.56
Once developed, an action plan can be given to the AHRC. In the event of a complaint, the Commission is required by the DDA to consider the organisation's action plan.57
Action plans have had a strong take up by a large number of organisations across Australia (the AHRC’s database currently includes over 500 plans available for viewing on line or download, together with implementation reports in many cases58). As one researcher commented, “it appears ... that organisations are seeking to gain some sort of public recognition or acknowledgement of their diversity efforts through this mechanism. The Act ... might be indirectly prompting their development by creating a public expectation that companies take action (or at least must be seen to be taking action)” with regard to promoting participation and equality for those with disability.59 However, this does not appear to have translated into an improved understanding
54 See, for example, Australian Department of Social Services’ Disability Employment Service website, including Budget 2017 announcement about improving employment outcomes for people with disability and changes to the Disability Employment Services (DES) program, at https://www.dss.gov.au/our-responsibilities/disability-and-carers/programmes- services/disability-employment-services (last accessed 31 October 2017).
55 DDA s 60.
56 DDA s 61.
57 DDA s 11. See also Australia Human Rights Commission, Action Plans and Action Plan Guides, https://www.humanrights.gov.au/our-work/disability-rights/action-plans-and-action-plan-guides.
58 Australia Human Rights Commission, Action Plans and Action Plan Guides, https://www.humanrights.gov.au/our- work/disability-rights/action-plans-and-action-plan-guides.
59 Belinda Smith, Australian Anti-Discrimination Laws - Framework, Developments and Issues, University of Sydney Law School Legal Studies Research Paper No. 08/24, March 2008, p. 22. Available from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1101909.
among employers about the range, type and impact of different disabilities or how to provide workplace adjustments in a cost-effective way.60
Compliance and enforcement
The Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) establishes the regime for making complaints of unlawful discrimination.61 Under the combination of the DDA and AHRC Act, the AHRC has the ability to investigate and conciliate complaints of disability discrimination under the DDA. The AHRC does not have the power to decide if unlawful discrimination has happened. If a complaint is not resolved or is discontinued for some other reason, the person alleging unlawful discrimination can take the matter to court. The court can decide if unlawful discrimination has happened. The Commission cannot take the matter to court for the person or help the person present his or her case in court.62 However, the Commission can seek leave of the Court to intervene in proceedings that involve issues of discrimination on the ground of disability.63 AHRC also has powers to undertake general inquiries into human rights issues in Australia and generally promote the goals of the legislation through education and guidelines.
The AHRC states that “Remedies that can be achieved through the Commission’s conciliation process are very broad and may include: apologies, financial compensation, reinstatement, and agreements for employers to introduce training or changes to policies to prevent discrimination in the workplace”.64 However, others have expressed concerns about individual complaints-based approach to enforcement65 and noted the limitations of:
60 See, e.g., Australian Human Rights Commission, Willing to Work National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability, May 2016, which found “there is a pervasive lack of understanding among employers ... and a perception that workplace adjustments are costly and difficult” (p. 8).
61 See AHRC Act, Pt IIB – Redress for unlawful discrimination.
62 Australian Human Rights Commission, The complaint process for complaints about sex, race, disability and age discrimination, https://www.humanrights.gov.au/complaint-process-complaints-about-sex-race-disability-and-age- discrimination#Heading40 (last accessed 18 July 2017).
63 DDA s 67(1)(l).
64 Willing to Work National Inquiry, Appendix 6 International human rights obligations, federal discrimination laws and the Fair Work Act p. 412.
65 Willing to Work National Inquiry, Appendix 6 International human rights obligations, federal discrimination laws and the Fair Work Act Chapter 7. See also Note 6, above.
66 Belinda Smith, Australian Anti-Discrimination Laws - Framework, Developments and Issues, University of Sydney Law School Legal Studies Research Paper No. 08/24, March 2008, p. 6. Available from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1101909. See also Belinda Smith and Dominique Allen, Whose Fault Is It? Asking the Right Questions When Trying to Address Discrimination, University of Sydney Law School Legal Studies Research Paper No. 11/52, October 2011, p. 5. Available from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1914844
structural discrimination, and little to prevent discrimination or promote equality more generally.67
UN Convention compliance
History
Australia signed the Convention in March 2007, and ratified it in July 2008. Australia acceded to the Optional Protocol for the Convention in August 2009.
Compliance reporting
Australia submitted its initial report on implementation of the UNCRPD to the UN Committee on the Rights of Persons with Disabilities (the Committee) in December 2010. The Australian Human Rights Commission made a submission. Several shadow reports were also submitted by various disability groups. The Committee provided its concluding observations in October 2013.
One of the Committee's principal areas of concern was that Australia had not yet brought its legislation fully into line with the Convention. It was also concerned about Australia's interpretative declarations on articles 12, 17 and 18 of the Convention. As a result, the Committee recommended that Australia incorporate all rights under the Convention into domestic law and that it review its interpretative declarations on articles 12, 17 and 18 with a view to withdrawing them.68
Concerning accessibility in particular, the Committee noted that the Disability Standards for Accessible Public Transport 2002 and the Disability (Access to Premises
– Buildings) Standards 2010 introduced regulations to address accessibility barriers for persons with disabilities. The Committee remained concerned at the level of compliance with accessibility standards and regulations in Australia, and recommended that sufficient resources be allocated to ensure the monitoring and implementation of the disability standards and requirements.69 The Committee was also concerned that students with disabilities were still being placed in special schools and many of those in regular schools were being placed in special classes or units, despite having Disability Standards for Education for ensuring education on an equal basis.70
67 Belinda Smith, Australian Anti-Discrimination Laws – Framework, Developments and Issues, University of Sydney Law School Legal Studies Research Paper No. 08/24, March 2008, p. 6. Available from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1101909
68 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of Australia, CRPD/C/AUS/CO/1, 21 October 2013, paras.8- 9.
69 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of Australia, CRPD/C/AUS/CO/1, 21 October 2013, paras. 20-21.
70 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of Australia, CRPD/C/AUS/CO/1, 21 October 2013, para. 45.
4.3.3. Social and economic outcomes assessment
Disability rates and trends
Disability rates increase with age. One-third of the Australian population has a disability by age 60. Disability rates have been stable between 2003 and 2015 for all age groups.
Figure 1 Disability rates by age
Disability rates by age – 2003, 2009, 2012, 2015
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
0–4 5–14 15–24 25–34 35–44
45–54 55–59 60–64 65–69 70–74 75–79
80–84
85–89 90 and
over
2003 2009 2012 2015
Source: Australia Bureau of Statistics
Disability rates are relatively stable by age group. Because disability is age related, overall disability rates will increase as the population ages.
Disability and education
The proportion of Australians aged 15 to 64 years with a disability who had completed Year 12 increased from 35.6% in 2012 to 41.0% in 2015.
Of PWD, 17.0% reported having completed a Bachelor Degree or above compared to 30.1% of PWoD. PWD were more likely to have a Certificate level qualification (28.4%) than those without disability (22.5%).
Figure 2 Disability and education
Percentage of population aged 15 to 64 by highest level of educational attainment, 2015
50%
45%
PWD PWoD
43.7%
35.7%
30.1%
28.4%
22.5%
17.0%
9.0%
10.2%
40%
35%
30%
25%
20%
15%
10%
5%
0%
Bachelor degree or above
Advanced diploma or diploma
Certificate No non-school qualification
Source: Australian Bureau of Statistics
Disability and employment
In 2015, there were 2.1m working age Australians with a disability. Of these, 1.0m were employed. 114,900 were looking for work. This means that 53.4% of working age PWD were in the workforce compared to 83.2% of PWoD.
In 2015, the unemployment rate for PWD was 10.0%; compared to 5.3% for PWoD.
Of PWD, 27.0% were working full-time, compared with 53.8% of those PWoD. Nearly half of PWD were not in the labour force (46.6%), compared with 16.8% of PWoD.
The proportion of PWD working part-time increased from 19.0% in 2012 to 21.1% in 2015.
Figure 3 Disability and unemployment
Age standardised (persons aged 15-64) unemployment rates, 2015
12%
10%
9.9%
5.3%
8%
6%
4%
2%
0%
PWD PWoD
Source: NZIER interpretation of Australian Bureau of Statistics
Figure 4 Disability and labour force participation
Percentage of persons aged 15 to 64 not in labour force, 2015
50%
46.6%
16.8%
40%
30%
20%
10%
0%
PWD PWoD
Source: Australian Bureau of Statistics
Disability and income
In 2015, 41.9% of working age PWD reported their main source of income from government superannuation or allowance, followed by wages (36.5%). Of PWD with a profound disability, 82.8% report receiving a government superannuation or allowance as their main income, compared to 37.2% for those with a mild disability.
49.4% of PWD lived in the lowest two quintiles of households for equivalised gross household income, compared with 24.3% of PWoD. Only 13.4% of PWD live in households with incomes in the highest quintile, compared to those without disability at 26.5%. Given the smaller proportion of people earning a wage or salary and their greater reliance on government superannuation and allowances. Income levels for PWD would be lower than PWoD. In 2015, the median gross income for a PWD was
$465 per week, compared to $950 per for a PWoD.
Figure 5 Disability and income
Percentage of population aged 15 to 64 by equivalised gross household income quintiles, 2015
PWD
PWoD
25.3%
26.1%
26.5%
24.1%
23.0%
20.6%
16.6%
13.4%
13.4%
11.0%
30%
20%
10%
0%
Lowest quintile Second quintile Third quintile Fourth quintile Highest quintile
Source: Australian Bureau of Statistics
Experience of disability
Social and community participation
77.4 % of PWD participated in social and community activities. Social participation for PWD declines with age and increases with severity of disability.
Accessibility
Of PWD, 40.2% (1.6m) used public transport. 78.5% of PWD report using all forms of public transport. The main issues for those reporting difficulties were:
Discrimination
8.6% of PWD reported they had experienced discrimination or unfair treatment because of their disability in the last 12 months. Reported discrimination does not vary significantly by gender with women (8.9%) experiencing more than men (8.3%).
Young people with disability, aged 15 to 24 years, report more discrimination (20.5%) compared to aged 65 years and over (2.1%). Employers and potential employers are the primary source of reported discrimination.
Many PWD avoided situations because of their disability. For women, 35.1% reported situation avoidance compared to 28.1%. 20.1% of older people 65 years and over were less likely to avoid situations because of their disability compared to 46.5% for those aged 15-24.
4.3.4. Overall efficiency and effectiveness
The DDA generally rates fairly well when assessed against the New Zealand Government’s expectations for good regulatory practice. The legislation has clear objectives and seeks to achieve them in a least cost way (through the progressive development of standards involving extensive consultation with a wide range of affected parties). The standards approach, including regular review of them, is flexible enough to allow regulators to adapt it to the attitudes and needs of different regulated parties. It also provides scope to evolve to changing circumstances or regulatory system’s performance. And it allows regulated parties to adopt efficient or innovative approaches to meeting their regulatory obligations. The standards generally set out legal obligations in ways that are easy to find, navigate and understand.
The different approaches of the transport standards and the education standards demonstrate this flexibility, as well as their ease of understanding. The Public Transport standards are specific (e.g., by 2012, bus providers had to ensure that at least 55% of buses were wheelchair accessible) and “essentially represent an industry wide agreement of a timetable for the introduction of services, equipment and facilities that will gradually make public transport accessible for users with disability. In contrast, the Education Standards introduce an obligation on education providers to undertake consultation with students (and applicants) and provide ‘reasonable adjustments’ to enable the student’s equal participation.71
The DDA has processes that produce predictable and consistent outcomes for regulated parties across time and place, in terms of a federal statute that standardises scope of rights offered around the country and the use of standards; however, this predictability and consistency is somewhat undermined by an individual fault-based confidential conciliation of complaints approach for enforcing the standards. This enforcement approach and associated lack of transparency also has implications for
71 Belinda Smith, Australian Anti-Discrimination Laws - Framework, Developments and Issues, University of Sydney Law School Legal Studies Research Paper No. 08/24, March 2008, p. 21. Available from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1101909.
the DDA’s ability to be (and be perceived as) proportionate, fair and equitable in the way it treats regulated parties.
The DDA is generally well-aligned with existing requirements in related regulatory systems (particularly the relationship between federal and states/territories); however, some issues have been identified in terms of the relationship between the DDA and other federal laws such as the Fair Work Act 2009 (see literature review, above).
The observations of the UN Committee monitoring the UNCRPD indicate the DDA, and Australia’s implementation of it, has raised some significant concerns about compliance with international obligations.
4.4. Ontario
4.4.1. Context for assessment
Note: Statistics are for the whole of Canada not just Ontario
4.4.2. Disability legislation assessment
Canada is the only country that has disability rights enshrined in its constitution.73 The Canadian Charter of Rights and Freedoms provides in section 15 that every individual has the right to the equal protection and equal benefit of the law without discrimination. It explicitly includes mental or physical disability among its prohibited grounds; however, this section applies only to the federal and provincial governments.
There is no national disability legislation in Canada. Disability is addressed under a number of federal statutes, the most significant being the Canadian Human Rights Act 1977. The purpose of this Act is to ensure that all individuals have an opportunity to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered or prevented by discriminatory practices based on disability. The Act applies to the federal government, First Nations governments and private companies that are federally regulated (e.g., banks, trucking companies, broadcasters and telecommunications companies). The Act is enforced through mediation of individual fault-based complaints made to the Canadian Human Rights Commission. Unresolved complaints can be taken to the Canadian Human Rights Tribunal.
The Act provides for exemptions based on a bona fide occupational requirement (in relation to employment) and bona fide justifications (in relation to goods, services and facilities) where it would impose undue hardship “considering health, safety and cost” to accommodate the person.74 Section 24 provides for regulations prescribing standards of accessibility but there do not appear to be any.75
72 McColl, Jaiswall and Roberts, A Review of Federal Disability Policy in Canada (3rd ed), March 2017.
73 McColl, Jaiswall and Roberts, A Review of Federal Disability Policy in Canada (3rd ed), March 2017, p. 6.
74 Canadian Human Rights Act1985 s 15.
75 See Government of Canada Justice Laws Website, http://laws-lois.justice.gc.ca/eng/acts/h-6/ (last accessed 17 July 2017), which lists regulations made under the Canadian Human Rights Act.
Other significant federal legislation addressing disability includes the Employment Equity Act 1995, the Access to Information Act 1985, the Broadcasting Act 1991, Canada Transportation Act 1996.
Ontario
In the province of Ontario, Ontario’s Human Rights Code provides that every person has a right to equal treatment with respect to services, goods, facilities, occupancy of accommodation, employment, and membership in trade unions, occupational associations or self-governing professions, without discrimination because of disability. The Code requires accommodation of the needs of persons with disabilities unless this would cause undue hardship, considering the cost, outside sources of funding, if any, and health and safety requirements.
However, Ontario also has a separate statute – Accessibility for Ontarians with Disabilities Act 2005 (AODA), which is the focus of this discussion.76 AODA became law on June 13, 2005 and aims to identify, remove, and prevent barriers for PWD on or before January 1, 2025. AODA applies to all levels of government, non-profits, and private sector businesses in Ontario that have one or more employees (full-time, part- time, seasonal, or contract).
To achieve its aims, AODA relies on the establishment and enforcement of standards setting out requirements for the identification, removal and prevention of barriers that keep persons with disabilities from participating fully in all aspects of society. The standards also contain time periods for implementing the required measures.
There is a phased-in approach to compliance, with deadline dates for each standard based on organisation type (e.g., public or private sector) and size (large or small). The deadline dates primarily range between 1 January 2012 and 1 January 2017.
The statute itself focuses on:
inspection, search warrants, directors’ orders and administrative penalties).
Ontario is the first province and one of the first jurisdictions in the world to enact specific legislation establishing a goal and time-frame for accessibility.77 However, while generally positively viewed, this approach also has its challenges. The rate of progress is a widespread source of concern in Ontario and its implementation has not
76 Much of the description of the AODA regime is drawn from Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014.
77 https://www.ontario.ca/page/about-accessibility-laws. Note, however, that Manitoba enacted the Accessibility for Manitobans Act in December 2013 and Nova Scotia enacted the Accessibility Act in April 2017.
delivered the expected results for PWD.78 The pace of standards development and review required for the AODA is also said to have resulted in implementation fatigue, training fatigue and review fatigue.79
Positive duty
In a sense, the entire AODA is a positive duty – to achieve accessibility for Ontarians with disabilities by 2025.
Accessibility standards are a critical part of the AODA. The AODA authorizes the Government to establish accessibility standards by regulation. The standards set out requirements for the identification, removal and prevention of barriers that keep persons with disabilities from participating fully in all aspects of society. The standards also contain time periods for implementing the required measures. The standards are discussed in further detail below.
Exemptions/defences (and threshold)
The AODA’s standards provide for set different requirements based on the size of the organisation. For example, small organisations80 are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations. Other examples of exemptions include:
The latest review of the AODA (known as the “Moran Review”) identified concerns about the relationship between the Code and the AODA. In particular, concern was expressed that the various exceptions in the AODA standards are less exacting than the Code’s ‘undue hardship’ criterion, which is understood to provide a higher level of accessibility than the AODA does currently. The Review was told that a number of standards have weak or vague requirements that are out of step with the Human Rights Code (e.g. the complete exemption of smaller organisations from many technical requirements, such as accessible websites; “where not practicable” exemptions such as those concerning websites, accessibility in procurement, or external paths of travel).81
78 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, pp. 21, 40.
79 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, p. 27.
80 Defined as an organisation with fewer than 50 employees in Ontario O. Reg. 191/11, s. 2.
81 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, pp. 51- 52.
As Ontario’s Human Rights Code has primacy over the AODA, this misalignment can result in an organisation finding that complying with the AODA standards does not necessarily protect it against complaints under the Code.82
Burden of proof
The extent of the coverage of the AODA and its detailed standards to achieve accessibility across all areas of public life means that “burden of proof” is not the same issue as it is in other jurisdictions with more generally worded obligations to ensure reasonable accommodation. Under the AODA and its standards, the enforcement agency (the Accessibility Directorate of Ontario) has the initial burden of establishing an obligated person or organisation failed to comply with their legislated requirements; the burden then shifts to the person or organisation to demonstrate they complied or were covered by an exemption.
Standards
So far, five standards have been established in regulation under the AODA.
The Customer Service standard became law on January 1, 2008. It is designed to ensure equal opportunity for PWD to obtain, use and benefit from goods and services. The standard requires providers of goods or services to take steps that include the following: establish policies, practices and procedures for accessible customer service; train staff and volunteers; allow service animals and support persons in areas that are open to the public; and create a feedback process.
This was followed by the Integrated Accessibility Standards Regulations (IASR) on 1 July 2011, which initially included three standards:
82 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, p. 52.
imposed on municipalities that license taxicabs as well as on school boards and other public sector organisations that provide transportation services.
The Design of Public Spaces (Built Environment) standard was added to the IASR on January 1, 2013. Its goal is to prevent barriers for PWD in newly constructed or redeveloped public-use areas. Public spaces and features affected include recreational trails and beach access routes, outdoor public eating areas, outdoor play spaces, exterior paths of travel (such as sidewalks), parking areas, service counters, queuing guides and waiting areas.
Like the AODA, the IASR applies to all levels of government, non-profits, and private sector businesses in Ontario. The IASR also identifies organisations as large (50 or more employees) or small (fewer than 50 employees) for the purposes of the various IASR obligations.
The specific standards are very detailed yet performance-based. For example, one of the regulations for standards in the area of Information and Communications specifically addresses libraries of educational and training institutions:
Libraries of educational and training institutions
18. (1) Subject to subsection (2) and where available, the libraries of educational or training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability, upon request.
(2) Special collections, archival materials, rare books and donations are exempt from the requirements of subsection (1).
(3) Obligated organizations to which this section applies shall meet the requirements under this section in accordance with the following schedule:
The regulations define “accessible formats” as “may include, but are not limited to, large print, recorded audio and electronic formats, Braille and other formats usable by persons with disabilities”.83
Apart from the specific standards, the IASR also enacts general requirements. The IASR requires that all but small organisations:
83 O. Reg. 191/11, s. 2.
In addition, the Government of Ontario, Legislative Assembly and designated public sector organisations are asked to prepare an annual status report to measure the progress of their plan and to post it on their website (in an accessible format upon request).
Small organisations are only required to develop, implement and maintain accessibility policies; but are under no obligation to create documents for the public.
All organisations are also required to provide training on the requirements of the accessibility standards to all employees, volunteers, persons who participate in developing the organisation’s policies, and anyone else who provides goods and services on behalf of the organisation. The training must be ongoing and appropriate to the duties of the person and should be administered as soon as possible. All but small organisations are required to keep training records.
Enhanced accessibility standards for the Built Environment covering new construction or extensive renovation of buildings have been incorporated into the Building Code. These amendments update requirements for barrier-free path of travel throughout buildings; elevator access; visitable apartment suites; visual fire safety devices; public washrooms; access to public pools; accessible and adaptable seating in theatres and other public assembly buildings; and renovations. Because these standards were placed in the Building Code, they are enforceable under Ontario’s Building Code Act 1992; they are not a regulation under the AODA and so not subject to the AODA’s enforcement regime or standards review process.84
There is a phased-in approach to compliance with the AODA standards, with deadline dates for each standard, based on organisation type and size, primarily ranging between 1 January 2012 and 1 January 2017.
The Moran Review noted that one of the most common pieces of feedback it received focussed on the difficulty of interpreting the meaning of the standards under the AODA. Comments included that standards are often not clear enough or specific enough about what is required, and that they are framed very generally, making it hard to know when they have been met.85 The content of the standards were also the subject of concern, including about serious gaps and deficiencies and that important aspects of everyday life were not in the scope of the current requirements (disability community), as well as that the overall regime is too complex and should be simplified (obligated organisations in public and private sectors).86
Compliance and enforcement
The AODA takes a regulatory approach to compliance and enforcement.87
84 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, p. 13.
85 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, p. 28.
86 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, pp. 40- 51.
87 The Ontario Human Rights Code provides for individual fault-based complaints.
AODA requires organisations to file accessibility reports when directed to do so, confirming compliance with applicable standards. This self-reporting mechanism is fundamental, as the review of reports is the primary tool for monitoring compliance. Self-reporting represents the first stage in a progressive enforcement regime that also encompasses inspections (with powers of entry and search warrants), orders, administrative penalties, appeals, and ultimately prosecutions and fines.
The Moran Review noted that Government figures released in November 2013 showed that only about 30 per cent of the 51,000 organisations with 20 or more employees that were required to file compliance reports had done so.88 More recent Government figures indicate that private sector reporting increased to 38 per cent in December 2014.89 However, concerns have been expressed that the compliance reports “reflect no measurable objectives that would tell organisations where they are, what remains to be done or how they rate” and do not provide a measuring stick for gauging improved accessibility.90
The Accessibility Directorate of Ontario (ADO) within the Ministry of Economic Development and Growth is currently responsible for administering the AODA, including compliance and enforcement.91
The AODA provides for the appeal of orders (including penalties) to a tribunal to be designated by the Government. The Government has designated the Licence Appeal Tribunal (LAT), which deals with appeals under more than 25 different statutes, for this purpose.
UN Convention compliance
History
Canada signed the Convention on the opening day for signing, 30 March 2007. Canada ratified the Convention in March 2010. Canada has not acceded to the Optional Protocol for the Convention.92
Compliance reporting
Canada submitted its initial report on implementation of the UNCRPD to the UN Committee on the Rights of Persons with Disabilities (the Committee) in February 2014. The Canadian Human Rights Commission made a submission. A large number of shadow reports were also submitted by various disability groups. The Committee provided its concluding observations in May 2017.
88 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, p. 33.
89 Accessibility Directorate of Ontario, https://www.ontario.ca/page/accessible-ontario#enforcecompliance.
90 Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, p. 18.
91 ADO was moved from the Ministry of Community and Social Services to here in 2013, and “stakeholder from both the obligated sectors and the disability community generally applauded the move" Mayo Moran, Second Legislative Review of the Accessibility for Ontarians with Disabilities Act 2005, November 2014, p. 40.
92 UN Division for Social Policy and Development, Disability, Timeline of Convention Events at https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/timeline-of- events.html; UN Treaty Body database at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx.
Amongst other things, the Committee was concerned that the Convention’s provisions had not yet been appropriately incorporated into legislation and policies across sectors and levels of government.93 The Committee recommended that Canada:
Take leadership in convening provinces and territories in order to ensure a pan- Canadian approach to implementation and enact a comprehensive national action plan for implementing the Convention in collaboration with provincial and territorial governments and in consultation with persons with disabilities through their representative organizations. 94
The Committee also expressed particular concerns about accessibility, including “persisting barriers” to access to transport, as well as information and communication for persons with psychosocial and/or intellectual disabilities.95 Its recommendations included that Canada:
Review current accessibility legislation and plans at the federal, provincial and territorial levels to ensure that they address all features of accessibility, in particular the physical environment, transportation (including civil aviation) and information and communication, including information and communications technologies and systems, and that they comprise mechanisms to monitor and regularly evaluate compliance with accessibility standards.96
4.4.3. Social and economic outcomes assessment
Disability rates and trends
Times series data is not available for Canada or Ontario. Ontario’s rates of disability
are very slightly above the national average.
93 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of Canada, CRPD/C/CAN/CO/1, 8 May 2017, para.9.
94 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of Canada, CRPD/C/CAN/CO/1, 8 May 2017, para.10.
95 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of Canada
,CRPD/C/CAN/CO/1, 8 May 2017, para. 21.
96 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of Canada
,CRPD/C/CAN/CO/1, 8 May 2017, para. 22.
Figure 6 Disability rates by age
2012
45%
40%
35%
30%
25%
20%
15%
10%
5%
0%
15-24 25-44 45-64 65-74 75 and over
Source: Statistics Canada
Canada uses larger age groupings to report disability rates but the age rates are similar to Australia.
Disability and education
Canada has lower education rates for PWD compared to PWoD. Like Australia, 20.0% of PWD have less than a high school diploma compared to 11.4% for PWoD. 26.7% of PWoD have a university qualification compared to 13.9% for PWD.
Figure 7 Disability and education
Percentage of population aged between 15 and 64 by highest level of educational attainment, 2011
50%
40%
PWD PWoD
39.5%
26.6%
26.7%
23.7%
20.0%
13.9%
11.4%
38.2%
30%
20%
10%
0%
Less than high school High school diploma or
Postsecondary
University certificate,
diploma or equivalent
Source: Statistics Canada
equivalent
certificate or diploma below bachelor's level
diploma or degree or bachelor's level or higher
Disability and employment
Employment of PWD in Canada fits the standard profile of a large proportion of PWD not participating in the labour market at 45.1%, compared to 20.6% for PWoD.
Figure 8 Disability and unemployment
Age standardised (persons aged 15-64) unemployment rates, 2011
16%
14%
14.4%
7.1%
12%
10%
8%
6%
4%
2%
0%
PWD PWoD
Source: NZIER interpretation of Statistics Canada
Figure 9 Disability and labour force participation
Percentage of persons aged 15 to 64 not in labour force, 2011
50%
40%
30%
20%
10%
0%
45.1%
|
|
|
|
||
|
|
|
|||
|
|
20.6%
|
|||
|
|
|
|
|
|
|
|
|
|
||
PWD PWoD
Source: Statistics Canada
Disability and income
Income for people with disabilities is $10,000 less than for those without disabilities
Median total income of 15 to 64-years of age PWD was $20,420, compared with
$31,160 for PWoD. For people 65 years and older, the median was $21,450 for PWD and $24,920 for PWoD. The difference is less pronounced at age 65 years or older due to superannuation and other income support.
Men with disabilities have higher median total incomes than did women with disabilities. Total income decreased as severity increases (see Figure 10). The median for persons with:
Figure 10 Disability and income
Persons aged 15 to 64 years’ median total income (thousands) by disability status, 2010
35,000
30,000
25,000
20,000
15,000
20,420
21,620
16,810
14,390
31,160 29,950
10,000
5,000
0
PWD PWoD Mild
Moderate
Severe
Very
disabilities disabilities disabilities
severe disabilities
Source: Statistics Canada
Experience of disability
Social and community participation
Canadian data on social and community participation is very limited. The Canadian Participation and Activity Limitation Survey 2006 reports that pain, mobility and agility affect 3 million Canadian adults (approximately 11% of the total population aged 15 and over).
Accessibility
20% of PWD use public transport and 8% reported using specialised transit. The majority reported no difficulty using transport. Difficulties increased to 29% among those with very severe disabilities.
Table 1 Difficulty using public or specialised transit
Global severity class, aged 15 years or older with disabilities, 2012
|
Level of difficulty
|
Mild
|
Moderate
|
Severe
|
Very severe
|
Total
|
|
No difficulty
|
90.3%
|
83.3%
|
67.9%
|
51.7%
|
74.0%
|
|
Some difficulty
|
6.7%
|
12.3%
|
17.1%
|
19.4%
|
13.4%
|
|
A lot of difficulty
|
3.0%
|
4.4%
|
14.9%
|
28.9%
|
12.6%
|
Source: Statistics Canada, Canadian Survey on Disability
Discrimination
Statistics Canada labour market participation statistics show 12% of PWD reporting having been refused a job because of their condition. over the last five years.
4.4.4. Overall efficiency and effectiveness
The AODA does not generally comply with the New Zealand Government’s expectations for good regulatory practice. While the statute has clear objectives, the extensive bureaucracy (organisational arrangements, systems and processes) and the significant compliance costs associated with that bureaucracy does not seek to achieve the objectives in a least cost way.
The progressive development of standards involving consultation with affected parties, and regular review of those standards, should provide flexibility for regulators to adapt the regulatory approach; however, the AODA’s statutory deadline for accessibility has resulted in a pressure to develop and implement standards quickly, which undermines the ability of regulators to consider and adapt the regulatory approach in any meaningful way or to evolve in response to changing circumstances or new information on the regulatory system’s performance.
The AODA and standards attempt to be proportionate, fair and equitable in the way regulated parties are treated, by having different requirements for small and large organisations. However, the AODA and standards do not set out the legal obligations in ways that are easy to find, navigate and understand. The legislation’s focus on compliance processes, various deadlines, differing obligations based on organisational size and numerous detailed standards mean regulated parties are still unclear about what they actually need to do in a practical way to provide accessibility. As a result, the system does not allow regulated parties to adopt efficient or innovative approaches to meeting their regulatory obligations. Both public and private sector organisations have indicated that the overall AODA regime is too complex and should be simplified.97
The AODA has issues in terms of alignment with existing requirements in related regulatory systems, including confusion about its relationship to the Ontario Human Rights Code and differing obligations under each. Also, the making of building accessibility standards under the Building Code mean those standards are not subject to AODA’s enforcement regime or standards review process.
97 Moran Review pp. 49-51.
4.5. United Kingdom
4.5.1. Context for assessment
Notes: Some areas of policy and legislation concerning England, Wales and Scotland remain the sole responsibility of the UK government, whereas others have been devolved to the Scottish Government or Welsh Government, or there is shared competency.
4.5.2. Disability legislation assessment
The UK does not have disability-specific legislation; it addresses disability primarily through the Equality Act 2010, which is consolidated rights-based legislation. This Act has two main purposes:98
The Act covers discrimination on the basis of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It covers all areas of public life, including work, education, goods and services (including buying and renting property), public services, and private clubs and associations.
An important purpose of the Act is to create a single approach to discrimination against people with different protected characteristics, where this is appropriate. The developments resulting in the Equality Act “were based on the premise that bringing the law on all these [protected characteristics] together must inevitably benefit them all. And, to a great extent, that does seem to have been the case. But it ignores a crucial distinction between disability and the other protected. For the other protected characteristics, with the possible exception of pregnancy and maternity, equality of opportunity is largely achieved by equality of treatment. For disabled people, equality of opportunity, to the extent that it is achievable, often requires different treatment”.99 This has led some to question whether merging disability with the other
98 Explanatory Note to the Equality Act 2010, para 10, http://www.legislation.gov.uk/ukpga/2010/15/notes/contents (last accessed 11 September 2017).
99 House of Lords Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people HL Paper 117, Report of Session 2015-16, March 2016, para. 45.
protected characteristics in a single Equality Act has perhaps put disabled people at a disadvantage100 and lowered the protection available to disabled people.101
Further, while the Act is intended to cover all areas of public life, a recent Select Committee on the Equality Act 2010 and Disability, appointed by the House of Lords to consider the impact on PWD of the Equality Act 2010, noted that “Nearly six years after the Equality Act 2010 was enacted a number of its provisions are still not in force”,102 These include, for example, section 36(1)(d) concerning reasonable adjustments for common parts of premises, and section 165 dealing with the transport by taxi of passengers in wheelchairs. The delay in commencement of these provisions was attributed to the UK Coalition Government’s Red Tape Challenge.103 Further, the UK Government has indicated some provisions will never be brought into force.104
Positive duties
The Equality Act 2010 prohibits discrimination arising from disability (that is, treating a disabled person unfavourably, not because of the person’s disability itself, but because of something arising from, or in consequence of, his or her disability, such as the need to take a period of disability-related absence).
The Act also contains a positive duty to make reasonable adjustments for disabled persons. More specifically, where a disabled person is placed at a substantial disadvantage in comparison with non-disabled people, the Act requires reasonable steps to be taken to avoid the disadvantage. The duty comprises three requirements:105
The duty applies to the following areas: services and public functions;106 premises;107 employers;108 partnerships;109 education.110 The Schedules to the Act set out specific
100 House of Lords Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people HL Paper 117, Report of Session 2015-16, March 2016, para. 47.
101 C. Moses, How Equal is the Equality Act 2010? A critical assessment of the effects of harmonisation of discrimination law with regard to age and disability claims, University of Leicester School of Law Research Paper No. 17-01, pp. 1 and 27-8.
102 House of Lords Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people HL Paper 117, Report of Session 2015-16, March 2016, para. 59. See also UK Independent Mechanism, Submission to inform the CRPD List of Issues on the UK, February 2017 (https://www.equalityhumanrights.com/en/our-human-rights- work/monitoring-and-promoting-un-treaties/un-convention-rights-persons-disabilities), p. 6 expressing similar concern.
103 House of Lords Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people HL Paper 117, Report of Session 2015-16, March 2016, p. 26.
104 Equality and Human Rights Commission, What is the Equality Act?, https://www.equalityhumanrights.com/en/equality-act- 2010/what-equality-act (last accessed 8 November 2017).
105 Equality Act 2010 s. 20; see also Explanatory Note to the Equality Act 2010 paras 82-86.
106 Equality Act 2010 s 29(7).
107 Equality Act 2010 s 36(1).
108 Equality Act 2010 s 39(5).
109 Equality Act 2010 s 44(7).
110 Equality Act 2010 s 85, 91 and 92.
details of the duty and applicable exceptions for particular areas; for example, Schedules 8 and 9 concern employment. The extent of the duty can be further specified in regulations.111 Failure to carry out this duty constitutes discrimination.112
The Act also contains a positive duty for the public sector, requiring public authorities when exercising their functions to have “due regard to”: the need to eliminate discrimination, harassment and victimisation; advance equality of opportunity between people who share a protected attribute and those who do not; and foster good relations between people who share a protected attribute and those who do not (public sector equality duty).113 The extent of this duty was recently considered when the UK became the first State Party to be investigated under the UNCRPD, after the Committee on the Rights of Persons with Disabilities received formal request for the Committee to investigate from a number of organisations of persons with disabilities alleging that serious and systematic violations of the provisions of the Convention were occurring against persons with disabilities as a result of welfare reforms.114 The Inquiry Report made of series of recommendations, including that the UK “conduct a cumulative impact assessment of the measures adopted since 2010 ... on the rights to independent living and to be included in the community, social protection and employment of persons with disabilities and ensure that such assessment is rights- based and meaningfully involves persons with disabilities and their representative organisations”.115 The UK Government strongly disagreed with the conclusions of the Inquiry Report, including that the public sector equality duty to have “due regard” required a formal impact assessment.116
Exemptions/defences (and threshold)
The Equality Act 2010 provides that it is possible to justify unfavourable treatment of a person arising from their disability, if it can be shown to be a proportionate means of achieving a legitimate aim.117
One legal researcher concluded that “protection available to disabled people has been lowered by the [Equality Act 2010]. In particular case law shows that Respondents can successfully rely on a defence of pursuing their ‘legitimate aims’ of protecting public money, and minimising disruption in the workplace, over the need to accommodate disabled Employees”.118
111 Equality Act 2010 s 22.
112 Equality Act 2010 s 21.
113 Equality Act 2010 s 149.
114 UN Committee on the Rights of Persons with Disabilities, Inquiry concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention – Report of the Committee CRPD/C/15/R.2/Rev.1, 6 October 2016, paras 1 – 5. See also BBC News, "UN: 'Grave' disability rights violations under UK reforms", 7 November 2016, http://www.bbc.com/news/uk-37899305 (last accessed 17 July 2017).
115 UN Inquiry Report para 114(a).
116 The United Kingdom Government Response to the Report by the United Nations Committee on the Rights of Persons with Disabilities under article 6 of the Optional Protocol to the Convention CRPD/C/17/R.2/R.3, 3 November 2016.
117 Equality Act 2010 s 15(1)(b).
118 C. Moses, How Equal is the Equality Act 2010? A critical assessment of the effects of harmonisation of discrimination law with regard to age and disability claims, University of Leicester School of Law Research Paper No. 17-01, p. 1. The view that the Equality Act 2010 reduced the protection provided by the previous Disability Discrimination Act 1995 was also expressed by a number of disability groups during a recent review of the Equality Act 2010 – see House of Lords Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people HL Paper 117, Report of Session 2015-16, March 2016, pp. 22-23.
Concerning the positive duty to make reasonable adjustments, as discussed above, the Schedules to the Act also specify particular exceptions for particular areas, such as employment.
Burden of proof
The Equality Act 2010 provides for a ‘shifting’ burden of proof. Where a person alleges discrimination under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.119
Codes of practice
The Equality Act 2006 (the 2006 Act), a precursor to the Equality Act 2010, created the Equality and Human Rights Commission (EHRC).120 Section 14 of the 2006 Act enables the EHRC to issue a Code of Practice in respect of specified areas of discrimination legislation, to assist in compliance with the legislation and to promote equality of opportunity. The Commission has prepared and issued Codes of Practice under the Act in relation to Employment, Services and Equal Pay. The main purpose of the Codes is to provide detailed explanations of the provisions in the Act and to apply legal concepts in the Act to everyday situations. This will assist courts and tribunals when interpreting the law and help lawyers, advisers, trades union representatives, human resources departments and others who need to apply the law.121
The Codes do not impose legal obligations. They are not an authoritative statement of the law; only the tribunals and the courts can provide such authority. However, the Codes can be used in evidence in legal proceedings brought under the Act. Tribunals and courts must take into account any part of the Codes that appears to them relevant to any questions arising in proceedings. If those who have duties under the Act's provisions follow the guidance in the Codes, it may help to avoid an adverse decision by a tribunal or court in such proceedings.
The recent House of Lords Select Committee on the Equality Act 2010 and Disability discussed in some detail the importance of and need for further Codes to provide detailed, easy to access guidance on how to comply (particularly with regard to reasonable adjustments).122
Compliance and enforcement
The EHRC is the regulatory body responsible for compliance with, and enforcement of, the Equality Act 2010.123 It can provide information, advice, guidance, education and
119 Equality Act 2010 ss 15 and 136; see also Explanatory Note to the Equality Act 2010, para 443. http://www.legislation.gov.uk/ukpga/2010/15/notes/contents (last accessed 11 September 2017).
120 Merging the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission.
121 https://www.equalityhumanrights.com/en/advice-and-guidance/equality-act-codes-practice#h1.
122 House of Lords Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people HL Paper 117, Report of Session 2015-16, March 2016, pp. 69-71.
123 Equality Act 2006 s 81(1)(e).
training, and undertake research.124 It also has a range of enforcement powers, including:
The EHRC used to have a power to conciliate complaints; however, this power was removed in 2013.132
UN Convention compliance
History
The UK signed the UNCRPD on the opening day for signing in March 2007 and ratified it on 8 June 2009. It acceded to the Optional Protocol in August 2009.133
Compliance reporting
The UK submitted its initial report on implementation of the UNCRPD to the UN Committee on the Rights of Persons with Disabilities (the Committee) in November
124 Equality Act 2006 s 13.
125 Equality Act 2006 s 16.
126 Equality Act 2006 s 20.
127 Equality Act 2006 ss 21 and 22.
128 Equality act 2006 ss 23 and 24.
129 Equality Act 2006 s 31 and Schedule 2.
130 Equality Act 2006 s 32.
131 Equality Act 2006 ss 28 and 30.
132 Equality Act 2006 s 27 [repealed].
133 UN Division for Social Policy and Development, Disability, Timeline of Convention Events at https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/timeline-of- events.html; UN Treaty Body database at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx.
2011. The Equality and Human Rights Commission made a submission on England. A number of shadow reports were also submitted by various disability groups.
The UK was the first State Party to be investigated under the Convention. The Committee on the Rights of Persons with Disabilities began receiving information early in 2012 about the alleged adverse impact on persons with disabilities of the UK’s implementation of reforms of its legislation and policies.134 In April 2013, the Committee received a formal request to investigate allegations “that serious and systematic violations of the provisions of the Convention were occurring”.135 This investigation delayed completion of the Committee's consideration of the UK's initial report for the first periodic examination of the UK’s implementation of the Convention.136
Following its investigation, the Committee considered that “there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been met in the State party”.137 This conclusion was based on a number of findings, including that several measures of its welfare reform had disproportionally and adversely affected the rights of persons with disabilities, that the UK did not conduct a comprehensive human rights-based cumulative impact assessment even though reliable sources indicated it was feasible, and that the impact assessments the UK did conduct prior to the implementation of several of the welfare reform measures expressly foresaw an adverse impact on persons with disabilities.138 The UK Government strongly disagreed with the Committee’s findings in the report and did not accept the Report’s conclusion that there was evidence of grave and systematic violation of the rights of disabled people.139 As the CRPD does not contain any mechanism that allows the Committee to enforce its recommendations and the UK Government rejected all the recommendations made, that is the end of the UN investigation process.
The Committee has now completed the first periodic examination of the UK’s implementation of the Convention and provided its concluding observations in August 2017. With regard to accessibility, the Committee was “concerned by the insufficient scope, content and number of obligatory and implemented accessible standards relating to, among others, the physical environment, affordable housing, ICT, transport, and information in urban as well as rural areas”. It also expressed concern about “the austerity measures that have hindered the advancement of accessibility for
134 BBC News, "UN: 'Grave' disability rights violations under UK reforms", 7 November 2016.
http://www.bbc.com/news/uk-37899305 (last accessed 17 July 2017).
135 UN Committee on the Rights of Persons with Disabilities, Report of the Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention CRPD/C/15/R.2/Rev.1, 6 October 2016 at para 3.
136 UN Committee on the Rights of Persons with Disabilities, Report of the Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention CRPD/C/15/R.2/Rev.1, 6 October 2016 at para 6.
137 UN Committee on the Rights of Persons with Disabilities, Report of the Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention CRPD/C/15/R.2/Rev.1, 6 October 2016 at para 113.
138 Report of the Inquiry Concerning the United Kingdom under article 6 of the Optional Protocol at para 113 (c),(d) and (i).
139 Observations of the Government of the United Kingdom of Great Britain and Northern Ireland on the report of the Inquiry carried out by the Committee under article 6 of the Optional Protocol to the Convention-Advance Unedited Version CRPD/C/17/R.3, 3 November 2016 at para 1.
persons with disabilities”.140 The Committee recommended (amongst other things) that the UK Government, in close collaboration with organizations of persons with disabilities:141
4.5.3. Social and economic outcomes assessment
Disability rates and trends
The United Kingdom House of Commons produced Key statistics on people with disabilities in employment in December 2016. The Papworth Trust has produced Disability in the United Kingdom Facts and Figures 2016, a comprehensive report on disability and the experience of PWD.
United Kingdom reports on disability in slightly different manner but appears to have similar outcomes to Canada.
Disability prevalence in the United Kingdom is 17% in the working age population.
Figure 11 Disability prevalence by age group
2014/15
50%
45%
20%
17%
7%
40%
30%
20%
10%
0%
Working age adults State Pension age
adults
Children All People
Source: Family Resources Survey, Gov UK
140 UN Committee on the Rights of Persons with Disabilities, Advance unedited version of Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland CRPD/C/GBR/CO/1, para 24.
141 UN Committee on the Rights of Persons with Disabilities, Advance unedited version of Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland CRPD/C/GBR/CO/1, para 25.
Disability and education
Figure 12 Disability and education
Persons aged 16 to 64 years’ employment rates by highest qualification, Q2 2016
100%
90%
80%
70%
60%
50%
88.1%
84.3%
78.7%
78.2%
71.7%
74.9%
58.5%
56.1%
45.6%
41.3%
PWD PWoD
40%
30%
20%
10%
0%
Degree or equivalent
Higher education A level GCSE A* to C Other
Source: Gov UK
PWD are nearly 3 times as likely to have no qualifications. Lack of ability to finance education and a health condition are the 2 main barriers to education for PWD.
9.2% of working age PWD do not hold a formal qualification, compared to 6.5% of working age PWoD. 4.9% of working age PWD hold degree-level qualifications compared to 28.1% of working age PWoD.
Disability and employment
The House of Commons Key statistics report on people with disabilities in employment shows a declining gap between PWD and PWoD in period 1998 to 2014.
Figure 13 Disability and employment
Disability employment gap (% points not seasonally adjusted), 1998 to 2016. Different colours indicate changes in survey questions/definitions
45%
40%
35%
30%
25%
20%
15%
10%
5%
0%
1998Q2 2002Q2 2006Q2 2010Q2 2014Q2
Source: Office for National Statistics
44.3 % of working age PWD are economically inactive. This is four times higher than PWoD at 11.5%. Lack of job opportunities and lack of transport options are the two main reasons cited.142
Disability and income
UK statistics on disability and income are limited. The Papworth Trust report that:
Experience of disability
A 2016 Papworth Trust report sums up a wide range of statistics related to disability. The Papworth Report draws on many sources. Highlights are covered below.
Social and community participation
More than 25% of PWD do not have choice and control in their daily lives.143
142 Papworth Trust, Disability in the United Kingdom 2016: Facts and Figures, 2016. http://www.papworthtrust.org.uk/sites/default/files/Disability%20Facts%20and%20Figures%202016.pdf
143 Ibid.
PWD had a lower rate of engagement with arts and culture at 72%, compared to 79% for PWoD. The gap in sports participation is higher with 29% of PWD participating compared to 54% of PWoD.
Accessibility
29% of PWD reported some buildings being inaccessible compared to 6% of PWoD. The main issues were stairs, doors and corridors. 36% of PWD reported difficulty in accessing public services compared to 24% of PWoD.
20% of PWD have difficulties relating to their impairment or disability in accessing transport.
Discrimination
Nearly 80% of people in the British Social Attitudes Survey considered there was a little or a lot of prejudice towards PWD. PWD are significantly more likely to experience unfair treatment at work than non-disabled people. In 2008, 19% of PWD experienced unfair treatment at work compared to 13% of PWoD.
One-third of PWD have difficulties relating to their impairment in accessing public, commercial and leisure goods and services.
4.5.4. Overall efficiency and effectiveness
The UK approach has mixed results when assessed in light of the Expectations for Good Regulatory Practice. The Equality Act 2010 has clear objectives, but not all of its provisions have been brought into force and the government has made public statements indicating some provisions will never be commenced. Also, the highly prescriptive and detailed Act by its very nature:
By providing the EHRC with enforcement powers, the UK approach has potential to produce predictable and consistent outcomes for regulated parties across time and place. This approach also has the potential to be proportionate, fair and equitable in the way regulated parties are treated by addressing disability accessibility in a more systemic way, as compared with an individual faults-based complaints approach.
The UK legislation is not well-aligned with existing requirements in related regulatory systems, as demonstrated by the confusion over the interface with the Building Code requirements. The legislation has also been undermined by recent welfare reforms, indicating serious regulatory mis-alignment.
The observations of the UN Committee monitoring the UNCRPD indicate very significant concerns with the UK’s implementation of its legislation and compliance with its international obligations.
4.6. New Zealand
4.6.1. Context
4.6.2. Disability legislation assessment
New Zealand deals with disability discrimination primarily through a combination of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1993 (HRA).144
NZBORA sets out a range of civil and political rights, such as the rights to freedom of expression, religious belief, freedom of movement, and the right to be free from discrimination on the grounds set out in the HRA. NZBORA requires the government and anyone carrying out a public function to observe these rights, and to justify any limits placed on them.
The HRA prohibits discrimination on a range of grounds (e.g., race, sex, age, disability) in specified areas of life (e.g., employment, education, goods and services, access to public places, vehicles and facilities).
The HRA applies to discrimination by private organisations and individuals, as well as to the public sector; however the Act has two non-discrimination standards:
As a result, a combination of the HRA and NZBORA applies to government discrimination. For example, the HRA provisions about employment discrimination (including the grounds such as disability and the exceptions) apply to both the public
144 Legislation specific to a particular area may also have provisions about disability discrimination. For example, the Education Act 1989 s 8 states “people who have special educational needs (whether because of disability or otherwise) have the same rights to enrol and receive education at State schools as people who do not”.
145 HRA Part 1A.
146 HRA Part 2.
and private sector. Complaints about discrimination on any of the specific grounds in other areas of government activities (e.g., provision of services) can be brought under the HRA but the NZBORA standard will be applied when determining whether unjustified discrimination has occurred.
The HRA is enforced through confidential mediation of individual fault-based complaints made to the New Zealand Human Rights Commission (HRC); unresolved complaints can be taken to Human Rights Review Tribunal. Complainants can request that the independent Director of Human Rights Proceedings provide publicly funded representation for their case at the Tribunal. The Director makes decisions on representation according to criteria in the HRA.147 Complainants can also choose to take their case to the Tribunal themselves or to engage their own counsel. The Commission itself can also choose to:148
The HRA does not have a general definition of discrimination and instead defines what is meant by discrimination in each area of life. However, each definition is similarly worded in terms of ‘less favourable treatment’. None of these individual definitions of discrimination contains an explicit positive duty to reasonably accommodate a person
147 HRA s 92 – criteria include such things as whether the complaint raises a significant question of law, the likelihood of success and whether resolution would affect a large number of people.
148 HRA s 5(2).
149 HRA s 5(2).
with a disability. However, the Court of Appeal has found that the HRA contains an implied positive duty to accommodate a person with a disability.150
Likewise, the HRA does not contain a general exception. Exceptions in relation to disability are specified in relation to each area of life. Again, the exceptions are similarly expressed, referring to ‘reasonableness’; for example:
UN Convention compliance
History
New Zealand signed the Convention on the opening day for signing on 30 March 2007.
Generally, New Zealand’s approach is to ratify international human rights treaties only once the Government is satisfied that its laws, policies, and practices are not inconsistent with the treaty at issue. Legislative compliance was addressed through the Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill 2008. The Bill amended the Human Rights Act 1993 to clarify the scope of its provisions in relation to enabling a person to refuse to accommodate a person’s
150 Smith v Air New Zealand Ltd [2011] NZCA 20; [2011] 2 NZLR 171 (18 February 2011) concerning HRA ss 44 and 52, which found the two sections, read together, created an implied positive duty to accommodate the person with a disability subject to a reasonableness requirement.
151 HRA s 29.
152 HRA s 43.
153 HRA s 52.
154 HRA s 56.
155 HRA s 60.
disability in certain areas of activity. It also amended legislative provisions in other statutes and regulations that were inconsistent with the Convention.156
The Bill was passed in early September 2008, and New Zealand ratified the UNCRPD later that same month.
The Convention says State Parties should establish a framework, including one or more independent mechanisms, to 'promote, protect and monitor' progress in implementation of the Disability Convention.157
While the other comparable jurisdictions have simply tasked their national human rights institution or NHRI (e.g., the UK’s EHRC) as their independent monitoring mechanism (IMM), New Zealand has established a tripartite IMM comprising:
group of national disabled people’s organisations)
As one example of their work, on 25 November 2015, the IMM jointly published a guide on reasonable accommodation of persons with disabilities.159
In 2016/2017, the Office for Disability Issues commissioned a review of disabled people-led monitoring in New Zealand. The review looked at the effectiveness and efficiency of the ‘disabled people-led monitoring of their rights’ initiative and provided recommendations to inform future arrangements. The review noted that:
in the view of the [UN] Country Rapporteur for the 2014 country review, New Zealand’s IMM is in a strong position compared to many other countries. The 2014 concluding observations of the UNCRPD Committee commended New Zealand for its implementation of an IMM.160
156 Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill, introduced 1 July 2008, Explanatory Note. See also New Zealand’s initial state party report on Implementation of the Convention on the Rights of Persons with Disabilities, CRPD/C/NZL/1, 31 March 2011.
157 Article 33.
158 Office of the Ombudsman, http://www.ombudsman.parliament.nz/what-we-do/protecting-your-rights/disabilities- convention (last accessed 15 July 2017).
159 See Human Rights Commission, Ombudsman and Article 33 Convention Coalition Monitoring Group, Reasonable Accommodation of Persons with Disabilities in New Zealand, https://www.hrc.co.nz/files/7814/4848/7923/imm_reasonable_accommodation_guide.pdf.
160 Malatest International on behalf of Office for Disability Issues, Review of Disabled People Led Monitoring of the UNCRPD, May 2017, p. 14 (http://www.odi.govt.nz/united-nations-convention-on-the-rights-of-persons-with-disabilities/nzs- monitoring-framework/report-on-the-review-of-disabled-people-led-monitoring/ (last accessed 15 July 2017). See also
Media Release by Minister for Disability Issues, “NZ World Leader in disabled people-led monitoring of rights”, 22 May 2017,
https://www.beehive.govt.nz/release/nz-world-leader-disabled-people-led-monitoring-rights (last accessed 15 July 2015).
Compliance reporting
New Zealand submitted its initial report on implementation of the UNCRPD to the UN Committee on the Rights of Persons with Disabilities (the Committee) in March 2011. The NZ Human Rights Commission made a submission. A number of shadow reports were also submitted by various disability groups. The Committee provided its concluding observations in October 2014. Government published its response to those observations in June 2015.
A number of the Committee’s recommendations concerned policies and practices. One
recommendation concerning legislative compliance was:
The Committee recommends that, in order to clarify the meaning of reasonable accommodation, the State Party give consideration to amending the Human Rights Act 1993 to include a definition of reasonable accommodation, in conformity with the definition of reasonable accommodation in article 2 of the Convention. (refer paragraph 12).161
The New Zealand Government did not agree with the recommendation, noting that New Zealand’s Court of Appeal already considered the definition of reasonable accommodation in the Human Rights Act 1993 to be consistent with the definition in Article 2 of the CRPD.162 It was noted that further clarification would be provided through the development of guidelines.
Concerning accessibility in particular, the Committee noted the review into access to buildings for PWD, which the Government commissioned in late 2013.163 The Committee recommended that:
Concerning accessibility in education, the Committee noted the steps New Zealand was taking to increase inclusive primary and secondary education, and the ongoing challenges to doing so, such as the lack of reasonable accommodation. The Committee also noted that New Zealand did not have an enforceable right to inclusive education. The Committee recommended that further work be undertaken to increase the
161 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of New Zealand, CRPD/C/NZL/CO/1, 31 October 2014, para. 12.
162 While not identified, the case referred to was Smith v Air New Zealand Ltd [2011] NZCA 20; [2011] 2 NZLR 171 (18 February 2011). The Court found that, while the HRA does not contain an explicit obligation of reasonable accommodation, an obligation to reasonably accommodate arises implicitly from the structure of the provisions.
163 Information on the review, including a report on the consultation phase produced in June 2014 and the Accessibility Plan Public Buildings Programme of Work, can be accessed on the MBIE website (http://www.mbie.govt.nz/info- services/building-construction/safety-quality/disability-access-review).
164 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of New Zealand, CRPD/C/NZL/CO/1, 31 October 2014, paras. 19-20.
provision of reasonable accommodation in primary and secondary education, and to increase the levels of entry into tertiary education for persons with disabilities. The Committee also encouraged New Zealand to establish an enforceable right to inclusive education.165
The Committee also made recommendations in relation to the Convention’s obligations for State parties to collect appropriate statistical and research data to enable formulation and implementation of policies to give effect to the Convention. In particular, the Committee recommended that New Zealand produce a report from the Disability Survey 2013 comparing the human rights outcomes of disabled women and men with those of non-disabled women and men; it also recommended that government departments, crown entities and local authorities should collect and publish disaggregated data on PWD in their annual reports.166
In response to these recommendations, New Zealand has undertaken a series of initiatives for improvements in this area. For example, in 2016, the Office for Disability Issues prepared a report providing a brief overview of major concerns for disabled New Zealanders, drawing on published data from Statistics NZ’s 2013 Disability Survey and the New Zealand Convention Coalition Monitoring Group’s research reports on disabled people’s lived experience of disability.167 Also, in May 2016, Statistics NZ carried out a stocktake of government data on disabled people.168 And in June this year the government announced that a new set of questions is being included in national surveys to improve information about disabled people and their lives. The questions, known as the Washington Group Short Set of Questions on Disability, will be included in the New Zealand General Social Survey, carried out every two years, and annually in the June quarter of the Household Labour Force Survey (HLFS) beginning with the June 2017 quarter.169 The first article and accompanying data tables presenting a comprehensive suite of labour market statistics, broken down by disability status were published on 7 September 2017, drawing on the June 2017 quarter of the HLFS.170
165 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of New Zealand, CRPD/C/NZL/CO/1, 31 October 2014, paras. 49 – 50.
166 UN Committee on Rights of People with Disabilities, Concluding Observations on the Initial Report of New Zealand, CRPD/C/NZL/CO/1, 31 October 2014, paras. 68 and 70.
167 Office of Disability Issues, Improving information about disabled people, http://odi.govt.nz/guidance-and- resources/improving-information-about-disabled-people/.
168 Office of Disability Issues, Stocktake of government date on disabled people, http://www.odi.govt.nz/assets/Uploads/stocktake-of-govt-data-on-disabled-people.docx.
169 Media release by Minister for Disability Issues and Minister of Statistics, “Improved data collection for disabled people, 27 June 2017, http://www.beehive.govt.nz/release/improved-data-collection-about-disabled-people (last accessed 14 July 2017). See also Statistics NZ, Improving New Zealand Disability Data, a paper outlining the agency’s plans to publish new data about disabled people, http://www.stats.govt.nz/browse_for_stats/health/disabilities/improving-disability-data.aspx (last accessed 14 July 2017).
170 Statistics NZ, Labour Market Statistics (Disability): June 2017 Quarter, 7 September 2017, http://www.stats.govt.nz/browse_for_stats/income-and- work/employment_and_unemployment/LabourMarketStatisticsDisability_HOTPJun17qtr.aspx (last accessed 7 September 2017).
4.6.3. Social and economic outcomes assessment
Disability rates and trends
Disability rates increase sharply with age in New Zealand. There has been an increase in overall disability rates between 2001 and 2013. In particular, disability rates have increased from 54% to 59% for the 65 years of age and older age group.
Figure 14 Disability rates by age
Disability rates by age – 2001, 2013
70%
60%
50%
40%
30%
20%
10%
0%
0-14 15-44 45-64 65+
2001 2013
Source: Statistics NZ
Disability and education
Figure 15 Highest qualification with and without a disability
Percentage of the population by highest qualification
40%
PWD PWoD
30%
20%
10%
0%
No qualification School qualification
at level 1 to 4
Post-school qualification at level 1 to 6
Bachelor's degree or higher
Source: Statistics NZ Disability Survey, 2013
Disability and Employment
Unemployment rate among people with disabilities
The latest available official data from 2013 shows that there are around 925,000 working age PWD in New Zealand.171 Responses to the Statistics NZ Disability Survey 2013, show that 42,000 PWD aged from 15 years old were participating in the labour force, but unemployed. In comparison, 416,000 were in part-time or full-time employment.
PWD are more likely to be unemployed or not participating in the labour force than PWoD. The rate of unemployment of people in the labour force with disabilities is close to twice the rate among those without disabilities (see Figure 16).
171 Statistics NZ Disability Survey 2013 labour force statistics
% of labour force
9.2%
5.3%
10%
8%
6%
4%
2%
0%
PWD PWoD
Source: NZIER analysis of the Disability Survey 2013
Figure 17 shows that 31.8% of PWD aged from 15 to 64 years172 were defined as not in the labour force. Unsurprisingly, PWD are more likely to be defined as not participating in the labour force because one of the criteria for not being in the labour force includes permanent disability. But disability may not be the reason that they are not participating in the labour force. PWD may also be attending education courses, taking on personal or family responsibilities, not actively looking for work or in early retirement.
Figure 17 Not in the labour force
% of people aged 15 to 64 years’ old
31.8%
19.3%
35%
25%
20%
15%
10%
5%
0%
PWD PWoD
Source: NZIER analysis of the Disability Survey 2013
172 People aged 65 years and over are excluded because retirement is a reason to be not participating in the labour force.
Disability and Income
Of those in the workforce, PWD have lower incomes than PWoD. PWD are more proportionally more likely to be in lower-skilled occupations and in part-time work. 38% of disabled workers received incomes of $30,000 or less for the year to March 2013, compared with 30% of PWoD. Only 14% of PWD had incomes over $70,000, compared to 23% for PWoD.
Figure 18 Disability and income
Employed adults’ total annual personal income by disability status, 2013
28.5%
26.7%
PWD
PWoD
23.6%
22.6%
20.7%
19.6%
16.0%
14.1%13.9%
14.1%
30%
25%
20%
15%
10%
5%
0%
$15,000 or less $15,001–$30,000 $30,001–$50,000 $50,001–$70,000 $70,001+
Source: NZIER analysis of the Disability Survey 2013
Experience of disability
Social and community participation
The New Zealand Disability Survey provides a wealth of information. The statistics below are from the 2013 Disability Survey managed by Statistics NZ.
Satisfaction with the amount of contact they had was similar for disabled and non- disabled adults:
right’ amount of contact with family
amount of contact with friends.
Disabled women were less likely to have ‘about the right’ amount of contact with
family compared with non-disabled women (72% and 76%, respectively).
The proportion of disabled adults for whom contact with family was ‘about right’ increased with age (63% for 15–44 age group, 69% for 45–64, and 82% for 65+). These age differences are similar to those found for contact with friends.
The biggest differences between disabled and non-disabled children were for:
Disabled adults were less likely to participate in most leisure activities than non- disabled adults. The exception was voluntary work where there was no evidence of difference between the participation rates for disabled and non-disabled adults.
The biggest differences between disabled and non-disabled adults were for:
Disabled adults were more likely than non-disabled adults to say they had felt lonely, at least occasionally, in the past four weeks (38% compared with 29% of non-disabled).
Disabled people were far less likely to say they had very good or excellent health – only 10% said their health was excellent compared with 33% of non-disabled people.
Disabled people were more likely than non-disabled to say their health was good or fair/poor. Over a quarter (29%) rated their health fair or poor compared with only 4% of non-disabled people.
Discrimination
PWD report having experienced more discrimination than PWoD. PWD reported twice the rate (7.8%) of four or more instances of discrimination compared to PWoD (3.9%).
Figure 19 Disability and discrimination
Discrimination rate in the last 12 months for adults (aged 15+) living in private households
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
85.6%
7.8%
3.9%
3.0%
4.1%
2.0%
2.4%
91.1%
PWD PWoD
None Once Two or three times More than three times
Source: NZIER analysis of the Disability Survey 2013
4.6.4. Overall efficiency and effectiveness
An assessment of New Zealand’s legislation and approach to disability accessibility in
light of the Expectations for Good Regulatory Practice indicates mixed results.
The legislation has clear objectives and arguably seeks to achieve those objectives in a least cost way through some fairly minimal and broadly worded obligations and exceptions. As the obligations are fairly minimal and broadly worded, they are easy to find and understand; however, this is somewhat complicated by having individual definitions of discrimination in each area of life (rather than a single general definition), with multiple permitted exceptions in the various specified areas of life specified areas of life. The Human Rights Act has been drafted so as to ‘dovetail’ with other legislation (particularly the New Zealand Bill of Rights Act), in an attempt to reduce confusion and complication.
The legislation has no flexibility to adapt the regulatory approach or to evolve to changing circumstances or the regulatory system’s performance without further legislation. Also, the reliance on individual faults-based complaints means the New Zealand approach may not be proportionate, fair and equitable in way regulated parties are treated. This approach also means processes may not necessarily produce predictable and consistent outcomes for regulated parties across time and place.
The UN Committee’s observations to date indicate no significant concerns about New Zealand’s compliance with international obligations. While the Committee commented on New Zealand’s legislation having a positive duty of “reasonable accommodation”, it did not comment on the legislation’s defence/exception of “reasonableness” (“not reasonable to require/provide” “cannot reasonably be provided/made available”), including whether it was too low a standard for exempting from the obligation to reasonably accommodate PWD.
4.7. Summary of assessment
4.7.1. Legal frameworks
Table 2 sets out a summary of the assessment of the legislative models for addressing accessibility for PWD in Ontario, the UK and Australia as compared with New Zealand. There are some similarities across the legislative models (e.g., positive duty to accommodate PWD; burden of proof); however, there are also some significant differences. In particular, the degree and nature of, and mechanisms for, prescribing obligations (and exceptions) in each model are quite different.
Table 2 Legislative models
|
|
Australia
|
Ontario/Canada
|
United Kingdom
|
New Zealand
|
|
Focus
(accessibility-specific, disability-specific or consolidated rights)
|
Disability-specific
|
Accessibility-specific
|
Consolidated rights
|
Consolidated rights
|
|
Degree of prescription
|
Moderately prescriptive
|
Highly prescriptive
|
Highly prescriptive
|
Low prescription
|
|
|
Australia
|
Ontario/Canada
|
United Kingdom
|
New Zealand
|
|
Compliance and enforcement
|
Individual complaints
|
Regulatory (compliance and enforcement body with powers of inspection,
search warrants, orders for compliance and penalties for non-compliance)
|
|
|
|
Positive duty
|
Positive duty to make reasonable adjustments for PWD
|
Positive duty to achieve accessibility for Ontarians with disabilities by
2025
|
Positive duty to make reasonable adjustments for PWD
|
Implied positive duty to reasonably accommodate PWD
|
|
Exemptions / defences
|
|
|
|
Specific exceptions in each area (e.g., employment), all with similar
threshold of
‘reasonableness’
|
|
Burden of proof
|
|
|
|
|
Source: NZIER
4.7.2. Efficiency and effectiveness
It is difficult to draw direct causal link between disability legislation and outcomes for PWD. It is still possible to assess the degree to which a jurisdictions legal regime meets good regulatory practice.173 Table 3 summarises the assessment of each jurisdiction’s approach against New Zealand’s regulatory standards.
Table 3 Efficiency and effectiveness of disability law
|
Jurisdiction criteria
|
Australia
|
United Kingdom
|
Ontario
|
New Zealand
|
|
Clear objectives
|
Yes
|
Generally yes
Not all statutory provisions commenced public statements that some
provisions will never be commenced
|
Yes
|
Yes
|
|
Seeks to achieve objectives in least cost way
|
Yes
Standards progressively made, only after extensive consultation, and
regularly reviewed
|
No
Highly prescriptive
|
No
Highly prescriptive
Extensive bureaucracy (organisational arrangements, systems and
processes)
Significant compliance costs associated with bureaucracy
|
Yes
Minimal, broadly worded obligations
Low bureaucracy
|
|
Flexible enough to allow regulators to adapt regulatory approach
|
Yes, through standards
|
Generally no
highly detailed statute (incl. 21 Schedules) of duties and
exceptions)
flexibility provided when provisions brought into force
|
No, largely due to statutory deadline of 2025
|
No
No ability to make regulations, only guidelines or voluntary codes of
practice
|
173 Government Expectations for Good Regulatory Practice, 21 April 2017, http://www.treasury.govt.nz/regulation/expectations.The government believes that durable outcomes of real value to New Zealanders are more likely when a regulatory system seeks to meet these expectations.
|
Jurisdiction criteria
|
Australia
|
United Kingdom
|
Ontario
|
New Zealand
|
|
Processes produce predictable and consistent outcomes for regulated parties
across time and place
|
Yes – through standards and federal statute that standardises scope
of rights offered around the country
No – enforcement via individual complaints
|
Yes – EHRC enforcement approach has potential to produce predictable
and consistent outcomes
|
No
focus on compliance processes, various deadlines and numerous detailed
standards mean regulated parties still unclear what actually
need to do in
practical way
|
No – because primarily relies on individual complaints for
enforcement
|
|
Proportionate, fair and equitable in way treats regulated parties
|
No – because relies on individual complaints for enforcement
|
Yes – EHRC enforcement approach has potential to be proportionate,
fair and equitable in way treats regulated parties
|
Attempts to through different requirements for small and large
organisations
|
No – because primarily relies on individual complaints for
enforcement
|
|
Consistent with relevant international standards and practices to maximise
benefits from trade and from cross border flows of people,
capital and
ideas
|
N/A
|
N/A
|
N/A
|
N/A
|
|
Well-aligned with existing requirements in related regulatory systems
|
Generally yes
but note differences with Fair Work Act
|
No
Building Code interface confusion
undermined by welfare reforms and regulatory red tape reviews
|
No
confusion over relationship to Ontario Human Rights Code
Building accessibility standards in Building Code mean not subject to
AODA’s enforcement regime or standards review process
|
Generally yes, because designed
to ‘dovetail’ with NZBORA
But different standards for public and private sectors in some areas
creates complexity
|
|
Compliance with international obligations
|
Generally yes (based on UNCRPD reporting)
|
No (based on UNCRPD reporting, incl. recent inquiry)
|
Yes in theory (enforceable standards)
[UNCRPD reporting is not Ontario- specific]
|
Yes (based on UNCRPD reporting)
|
|
Sets out legal obligations in ways that are easy to find, navigate and
understand
|
Generally yes?
|
No
unhelpfully detailed
some provisions not in force
|
No
unhelpfully detailed
|
Yes
Broadly worded obligations, organised by areas of life
|
|
Jurisdiction criteria
|
Australia
|
United Kingdom
|
Ontario
|
New Zealand
|
|
Scope to evolve to changing
circumstances or regulatory system’s
performance
|
Yes – regular review of standards
|
Generally no
Highly detailed statute (incl. 21 Schedules) of duties and
exceptions)
Flexibility provided when provisions brought into force
|
No – largely due to statutory deadline of 2025
Yes – regular review of standards
|
No
HRC has some system-level functions; but there is no ability to make
regulations or other legally binding mechanisms to support Act’s
requirements
|
Source: NZIER
4.7.3. Summary social and economic outcome assessment
Table 4 provides a snapshot of the finding for each of the four jurisdictions examined. There is a lack of directly comparable statistics. The percentage of the working age population with a university degree is fairly similar across the four jurisdictions. Income and experience with disability are difficult to compare but show disadvantage in all four jurisdictions. The stand-out statistic is New Zealand’s significantly lower proportion of PWD who are not in the labour force.
Table 4 Disability outcomes: state, trends and gaps
|
|
Australia
|
Ontario/Canada
|
United Kingdom
|
New Zealand
|
|
Education
|
17% of working aged PWD have a Bachelors or higher compared to 30% of
PWoD
|
14% of working aged PWD have a university certificate or higher
compared
to 26.7% of PWoD
|
14.9% of working age PWD hold degree-level qualifications 28.1%
|
14.9% of working age PWD hold a degree-level qualification compared to
26%
for PWoD
|
|
Employment
|
46.6% not in labour force
|
45.1% of PWD not in labour force
|
44.3% of PWD
not in labour force
|
31.8% of PWD not in labour force.
|
|
Income
|
49% of PWD in bottom two quintiles
|
median income for PWD was $20,420,
compared with
$31,160 for PWoD
|
19% of households live in relative poverty (60% of median income)
|
38% of PWD in work earn
$30,000 or less
|
|
Experience with disability
(participation, access and discrimination)
|
8.6% of PWD
reported they had experienced discrimination in 12 months
|
12% of PWD
reporting having been refused a job because of their condition. over the
last five years
|
19% of PWD
experienced unfair treatment at work compared to 13% of PWoD
|
7.8% of PWD
report four or more instances of discrimination compared to 3.9% for PWoD
in last
year
|
Source: NZIER
The reasons for New Zealand having greater workforce participation are not known but active labour market policies, a strong economy and social attitudes will play a role. In any event there remains a very sizable proportion of New Zealanders with a disability who are:
It is important not to infer a direct relationship between the legislation in any one jurisdiction and the outcomes for PWD because this work does not statistically isolate the variables that might explain the differences and infer a casual link.
5. Possible changes for New Zealand legislation
This project has not examined the full suite of policies and practices that can improve life outcomes for PWD. The focus in the report has been on legislation.
Each country takes a different approach to legislation. The literature review and assessment of the legislative models in the selected jurisdictions indicate areas for possible improvements to New Zealand legislation that warrant further exploration and consideration.
Standards and associated mechanisms
One of New Zealand’s responsibilities under the UNCRPD Article 9 is to develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of public facilities and services.
Voluntary standards are an option; however, should it be determined that standards should be mandatory, there is currently no ability under the HRA to do so. Consideration should be given to providing an ability to make legally binding standards (e.g., by adding regulation-making powers to the HRA or developing accessibility legislation that provides for regulations). Any legislation providing for the making of standards should be designed to meet the Government Expectations for Good Regulatory Practice; in particular, it should have:
The standards found in legislation in the United Kingdom and Ontario appear to have gone too far, too quickly, with very prescriptive and numerous standards across a range of areas, stretching beyond the ability of business to implement and comply. Attention has been diverted away from improvements in accessibility and towards compliance processes (in Ontario in particular) and the associated costs. This can lead to the credibility of the regulatory regime being thrown into question.
Australia’s more flexible approach of allowing for more prescriptive (e.g., transport) or more outcomes-based (e.g., education) standards as required for the particular area, and its more participatory and progressive approach to developing, implementing and regularly reviewing standards, suggests a workable approach to standards.
Australia’s legislation also provides for another useful mechanism that could be considered for New Zealand: voluntary organisation action plans. While the Australian experience is they do not necessarily contribute to an improved understanding among employers about the range, type and impact of different disabilities or how to provide workplace adjustments in a cost-effective way, they would have value in raising public expectations, positive role modelling and promotion of compliancy leaders.
Compliance and enforcement
All of the selected jurisdictions, as well as New Zealand, appear to struggle with the question of how best to achieve compliance with anti-discrimination and accessibility legislation.
Australia’s approach for the development and regular review of standards may provide an approach to consider and on which to build for the purposes of compliance and enforcement. While Australia’s Attorney-General makes the regulations that set standards, the government department responsible for administering the particular standard (e.g., the Department of Education with respect to the Disability Standards for Education):
This suggests the responsible government department should also have a role in ensuring compliance and, where necessary, enforcing the standards as part of that department’s regulatory responsibilities.
In addition, consideration could be given to providing the HRC additional functions and powers similar to those of the UK’s EHRC (e.g., investigations into compliance with the Act; unlawful act notices; the ability to enter into binding agreements with organisations). These powers could be considered a logical extension of the HRC’s current powers and functions (e.g., power to conduct inquiries; ability to take or intervene in proceedings, including class actions).
Positive duty
While the courts have determined the HRA has an implied positive duty to reasonably accommodate PWDs, adding an explicit duty to the Act would provide greater clarity and certainty about the duty, including the nature and extent of it. Legislating for a positive duty would also allow the burden of proof to be clearly identified as resting with the person claiming to have met the duty or an exception to the duty.
Threshold for exceptions
New Zealand’s specific exceptions to disability discrimination under the HRA appear to have a lower threshold (‘reasonableness’) as compared with the selected jurisdictions, particularly Australia’s well-defined threshold of “unjustifiable hardship” (and Ontario’s Human Rights Code threshold of “undue hardship”). Consideration could be given to raising New Zealand’s legislated threshold for claiming an exemption from the HRA’s (currently implied) obligations to reasonably accommodate PWDs.
6. Conclusion
New Zealand has responsibilities under the UNCRPD, including Article 9’s requirement for State Parties to take appropriate measures to ensure accessibility in the physical environment, transportation, information, communications (including technology), and services. The first UN review of New Zealand’s UNCRPD compliance was generally favourable; however, areas identified for New Zealand to work on included implementation and the lack of minimum enforceable standards for accessibility.
This report has considered the current legislative models for accessibility for PWD in jurisdictions that New Zealand usually benchmarks itself against; namely, Canada and particularly Ontario, Australia, and the United Kingdom.
The legislative models have been assessed in terms of how they compare to each other across some common points of reference (e.g., extent of prescription; compliance with UNCRPD), the efficiency of each of the models from a good regulatory practice perspective and effectiveness in terms of their impact on social and economic outcomes. The report also provides a literature review of available, relevant information from the selected jurisdictions on their experience of their legislative models, with a view to identifying lessons and possible improvements for New Zealand legislation.
While the jurisdictions examined in this report are countries with whom we have many similarities, there are also many differences that make direct comparison or the ‘lifting’ of aspects of a legislative model unwise. Despite a Commonwealth heritage, each jurisdiction has a different legislative history and each society takes a different approach to discrimination and disability.
Nevertheless, there are general impressions and lessons that can be drawn from these different country experiences.
The educational, employment and income outcomes are similar across the jurisdictions examined. New Zealand appears to be doing better on employment but the attribution of this to legislation, active labour market policies or other economic conditions is not clear. What is clear is that a large portion of the population of PWD are not participating in the economy and society as the overall population.
New Zealand deals with disability discrimination primarily through a combination of NZBORA and the HRA. Both of these laws are consolidated rights legislation rather than specific to disability discrimination or accessibility for PWD. New Zealand’s legislation provides a principle-based framework with broadly worded obligations about not discriminating. There is no explicit positive duty to make reasonable adjustments for PWD, although the New Zealand courts have found an implied duty. The threshold for exceptions to discriminatory actions is low and easy to meet. There no flexibility to adapt the regulatory approach or to evolve to changing circumstances and no way to provide for standards. The law relies on individual faults-based complaints to achieve compliance.
The literature review and assessment of the legislative models in the selected jurisdictions indicates:
logical extension of the HRC’s current powers and functions
robust threshold (“unjustifiable hardship”) for exceptions to the positive duty to reasonably accommodate PWD, and voluntary organisation action plans.
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