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New Zealand Human Rights Commission Submissions |
Last Updated: 28 June 2015
Submission of the
Human
Rights Commission on
DISABILITY
(UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH
DISABILITIES)
BILL
To the Justice and
Electoral
Committee
21 July 2008
Contact person:
Sylvia Bell
Principal Legal & Policy Analyst
Direct Dial (09) 306 2650
1.1 This submission is made by the Human Rights Commission (the Commission).
The Commission is an Independent Crown Entity that derives
its mandate from the
Human Rights Act 1993 (HRA). Its primary functions are found in s.5(1) and
include advocating and promoting
respect for, and an understanding of, human
rights in New Zealand society, encouraging harmonious relations among diverse
groups,
promoting equal employment opportunities and resolving complaints of
unlawful discrimination.
1.2 In carrying out these functions, the Commission promotes the use of a
human rights approach which involves linking decision making
at every level to
the agreed human rights standards, balancing rights where necessary, in order to
maximise respect for all rights
and rights holders and to protect those who are
particularly vulnerable. A human rights approach also emphasises the importance
of participation, empowerment and non-discrimination.
2.1 Section 5(2)(m) of the HRA requires the Commission to develop a National
Action Plan for the promotion and protection of human
rights in New Zealand.
2.2 Mana ki te Tangata: the New Zealand Action Plan for Human Rights was published in 2005[1]. It is based on a consultation that the Commission had carried out the previous year to identify how well New Zealanders thought their human rights were protected and where there was room for improvement. A significant number of people with disabilities contributed to the consultation process[2].
2.3 The results of the consultation formed the basis for Human Rights in New Zealand Today: Nga Tika Tangata O Te Motu (HRNZT)[3] which is the first comprehensive assessment of the state of human rights in New Zealand.
2.4 While the issues prioritised by people with disabilities were similar to those identified by other groups, HRNZT also noted[4] that:
... society’s failure to recognise the barriers it creates for disabled people and to actively consider how to accommodate their differences has led to some dissatisfaction with the HRA provisions for reasonable accommodation. Many of the participants felt it provides a lower level of rights than for non-disabled people, and mocks the purpose of the Act by providing an easy ‘escape clause’ for non-compliance.
2.5 At the time HRNZT was written there was no international treaty on the rights of disabled people - although New Zealand was actively involved in the development of what would become the Convention. The Action Plan therefore identified as a priority the importance of New Zealand taking a leadership role in the development of a comprehensive international human rights disability convention.
2.3 The Action Plan also identified the need to review the exceptions in the HRA[5]. A significant number of the exceptions in Part 2 involve reasonable accommodation.
2.4 At present the HRA does not define reasonable accommodation. The
Commission considers that the interests of disabled people would be better
served if the HRA contained a definition based on that
in the Convention and it
included a general obligation to accommodate disability. Although the
Commission would continue to make decisions on a case by case basis, these
changes would go a considerable way towards
clarifying the rights and
responsibilities of all the parties involved in matters relating to disability
discrimination.
3. Summary
3.1 The Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill will enable New Zealand to ratify the Convention by amending inconsistent domestic legislation. The changes relate principally to statutory provisions which involve automatic disqualification for office by reason of mental disorder and certain sections in the HRA relating to reasonable accommodation.
3.2 The Commission supports the Bill in principle as it is consistent both with priorities in the Action Plan and with the purpose in the long title to the HRA which refers to the provision of “better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights”. However it has a concern about the change that is proposed to the exception for education and considers that the wording which will amend the provision relating to residential accommodation could be improved.
3.3 This submission:
(a) advocates for the HRA to include a general obligation to accommodate disability and a definition of reasonable accommodation based on that in the Convention:
(b) identifies the relevant provisions in the Convention;
(c) outlines the concept of reasonable accommodation in the HRA;
(d) addresses the specific amendments designed to redress non- Convention compliant aspects of the HRA; and
(e) recognises the significance of amending legislation based on the stereotypic assumption that a person is incapable of performing certain public or fiduciary roles because they are mentally disordered in terms of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
4.1 The Convention was developed in response to the concern that people with disabilities were not able to fully enjoy the rights protected by the major international treaties.
4.2 Art.4 requires States to [at (1)(e)]:
... take all appropriate measures to eliminate discrimination on the basis of
disability by any person, organisation or private enterprise.
4.3 Discrimination on the basis of disability is defined in Art.2
to mean:
any distinction, exclusion or restriction on the basis of disability which
has the purpose or effect of impairing or nullifying the
recognition, enjoyment
or exercise, on an equal basis with others, of all human rights and fundamental
freedoms in the political,
economic, social, cultural, civil or any other field.
It includes all forms of discrimination, including denial of reasonable
accommodation” (emphasis added).
4.4 Reasonable accommodation is further defined as:
... necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
4.5 The Convention therefore envisages disability discrimination as accommodating the needs of people with disabilities to ensure they can enjoy the rights that others enjoy on an equal basis, but at the same time recognises that a balance needs to be struck when a disproportionate burden is placed on employers or landlords, or the providers of public goods and services, in providing the accommodation.
4.6 While the Disability Rights Convention is silent on the practical implications of implementing reasonable accommodation, a background paper on reasonable accommodation prepared by the United Nations Department of Economic and Social Affairs which identifies the way in which the concept has been developed in national legislation throughout the world[6], notes [at p. 21] that despite the difference in terminology all formulations tend to have certain features in common:
(1) an insistence on “reasonableness in the circumstances”;
(2) an underlying proportionality test that balances the rights of, and burdens and benefits to, all persons affected by the proposed accommodation or adjustment; and
(3) placing the burden of establishing that the accommodation sought is reasonable on the person seeking it and proof of unjustifiable hardship (or its equivalent) on the person who is required to provide the accommodation.
The HRA makes it unlawful to discriminate on certain grounds in a number of areas, but does not define discrimination. Rather it makes it unlawful to treat people differently on those grounds. Although there is no explicit reference to equality in the HRA, there is a general assumption (that is explicitly referred to in the Convention at Art.12.1) that everybody is entitled to equal protection of the law on a non-discriminatory basis (see for example, the comments of Thomas J in Quilter v Attorney- General [1997] NZCA 207; [1998] 1 NZLR 523(CA) at pp.573 and 575).
5.2 However, treating everybody the same does not mean that everyone will
enjoy equal outcomes – identical treatment can lead
to unequal results.
This is particularly so in the case of disability discrimination which differs
in significant respects from other
types of discrimination. As Gummow, Hayne and
Heydon JJ in Purvis v New South Wales [2003] HCA 62; (2003) 202 ALR 133 [at paras 198
& 199] observe:
... disability discrimination legislation necessarily focuses upon a criterion of admitted difference. The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as “normal”. It follows that disability legislation must be understood from the premise that the criterion for its operation is difference.
5.4 In the United Kingdom, Baroness Hale of Richmond made similar comments recently in London Borough of Lewisham v Malcolm [2008] UKHL 43 [at para 74] noting that:
... if the object of the disability discrimination legislation is to
“level the playing field”, to enable disabled people
to do things
that they would not otherwise be able to do, then simply ignoring their
disability and asking that they be treated in
exactly the same way as
non-disabled people will not do. A reasonable adjustment has to be made for the
special difficulties which
their disabilities present.
5.5 The Commission adopts the position that to ensure something approximating an equal outcome, it is often necessary (and at times essential) to treat people with disabilities differently to allow them to participate on equal terms[8]. This is consistent with a “broad and purposive interpretation” of the Act and one that, as Kirby J observed in Purvis (at 46) of the Disability Discrimination Act (Cth) 1995, “furthers the goal of truly equal treatment for disabled persons”.
6.1 While the HRA arguably imposes a general obligation to
accommodate on the State as a result of Part 1A, it does not impose a similar
obligation under Part 2 but rather requires accommodation in specific areas
unless it is unreasonable for the provider to supply
it. The HRA also provides a
defence in some areas which allows discrimination if a person’s disability
creates a risk to themselves
or others and the employer cannot reduce the risk
to a normal level without unreasonable disruption.
6.2 As noted earlier it is the Commission’s opinion that there is a demonstrable need for the HRA to include an overarching requirement to accommodate disability, preferably including a definition similar to that found in the Convention.
6.3 In the absence of such an obligation the Commission is generally
supportive of the changes as they will reinforce the recognition
that different
treatment may be necessary to ensure equal access for people with disabilities.
However, it has concerns about the
suggested changes relating to the exception
for educational establishments and the wording of the amendment relating to the
provision
of land, housing and accommodation.
i. Clause 9: Exceptions relating to educational establishments[9]
Under s.57 it is unlawful for an educational establishment to refuse to admit someone, admit them on less favourable terms, deny them any benefit or exclude them, by reason of disability. Section 60 provides two exceptions - mitigation of risk (which applies to all parts of s.57) and the right to refuse admittance to a student where their disability is such that they would require special services or facilities and it is not reasonable for the establishment to provide them. In other words, the right of an educational establishment to claim it is unreasonable to provide special services or facilities only applies to admittance to the institution. The other parts of 57 – that is, admittance on less favourable terms and conditions, denial or restriction of benefits provided by the establishment, exclusion or any other detriment are not subject to the same limitation.
The explanatory note to the Bill suggests that clause 9 will require educational institutions to reasonably accommodate all the other actions prohibited by s.57. The Commission’s concern is that the amendment could have the effect of further restricting - rather than promoting - the education of people and children with disabilities in some cases.
As currently worded the HRA only allows educational establishments falling within s.57 to consider whether special services or facilities are necessary (and if it is unreasonable to make them available) on admittance[10]. Once admitted, the establishment has a responsibility to ensure that the disabled person is not treated less favourably, or denied the benefits or services provided to other students or exclude them because of their disability.
To give schools or educational establishments the option of claiming it is unreasonable for them to accommodate disabled people after admitting them seems to go against the spirit and intention of both the HRA and the Convention. Educational establishments need to understand that, to avoid allegations of disability discrimination, once a disabled person is accepted as a student the establishment may need to treat them differently to ensure they can access the benefits of the establishment on equal terms with non-disabled people. To be able to claim less favourable treatment or that denial/ restriction of benefits can be justified because it is not reasonable to provide it would, in the Commission’s opinion, be inconsistent with the ameliorative purpose of the Act. The Commission therefore recommends not making the changes to s. 57 suggested in the Bill.
ii. Clause 8: exception in relation to housing
Section 56 creates an exception to s.53 relating to residential accommodation.
Section 53 makes it unlawful to refuse to dispose of any estate or interest in land, residential or business accommodation, or to dispose of it on less favourable terms and conditions, by reason of disability. It is also unlawful to treat someone seeking to obtain an interest in land or accommodation differently because of disability, terminate an interest in land or accommodation, directly or indirectly deny them the right to occupy land or accommodation or impose a term that would limit by reason of disability the class of people who might be invitees or licensees of the occupier of any land, business or residential accommodation.
At present s.56 only covers mitigation of risk. There is no specific requirement to provide special services or facilities to ensure equal access to accommodation for people with disability.
The explanatory note to the Bill suggests the effect of clause 8 will be:
... to require that persons dealing in health, housing and accommodation are required to provide special services or facilities for people with disabilities, unless these special services or facilities cannot reasonably be provided in the circumstances.
If this statement is intended to describe the effect of the amendment, then it is problematic for a number of reasons as s. 53 only applies to land, housing and other accommodation. The provision of health services is covered by s.44 (provision of goods and services). It would be a mistake to assume that cl. 8 will effect any change in this area.
It is also wrong to assume that clause 8 would impose an obligation to provide special services or facilities to make accommodation suitable for people with disabilities. What the clause does is provide a defence for failing to provide special services to make accommodation accessible to people with disabilities on the grounds that it may be unreasonable in the circumstances.
As is clear from the description in the first paragraph, s.53 deals both with interest in land and the physical occupation of premises. Clause 8 will only be relevant to the right to physically occupy land or accommodation, i.e.
s. 53(1)(d).
Section 53(1)(d) makes it unlawful to deny someone the right to occupy land or accommodation - either directly or indirectly - by reason of their disability. It is unlikely (though not impossible) that providers of accommodation will deny a person with a disability the right to occupy premises or land outright. Denial is more likely to be unintentional, raising the issue of indirect discrimination.
Indirect discrimination describes the situation when an apparently neutral policy or practice has the effect of disadvantaging a group against whom it is unlawful to discriminate. Not providing special services or facilities will amount to indirect discrimination in some cases. However, s.65 HRA permits indirect discrimination if the person or organisation responsible establishes a good reason for it. This arguably imposes a test analogous to the reasonableness standard proposed in cl.8.
The Commission recommends that rather than providing potential providers or landlords with a defence against accommodating the special needs of people with disabilities, cl.8 is redrafted to reflect a presumption that special services or facilities designed to make accommodation suitable for occupation by a person with a disability will be provided unless it is unreasonable to expect it. This would be more consistent with the statement in the explanatory note and the intent of Art.19(a) of the Convention[11].
iii. Clause 6: exception for qualifying bodies
At present s.39 allows qualifying bodies to discriminate where they consider a person seeking a qualification is unable to perform the duties required or they pose a risk of harm to others because of their disability (including the possibly of infecting others with an illness) and it is not reasonable to take the risk.
While one reason for this may be that the body granting the qualification is not likely to be the provider of the accommodation, a qualification should not be refused simply on the assumption that a person is unable to do a job. A future employer may well be in a situation to accommodate the person’s disability. This problem will be addressed by s.2A(a).
The Commission has had complaints in the past from people who wished to work in a hospital or area such as the hospitality industry, but were unable to do so because they were denied the necessary qualifications as they had Hepatitis B or were HIV+[12]. In reality they presented a minimal risk and any risk could have been easily accommodated. The proposed s.2A(b) recognises that qualifying bodies must take account of the fact that any risk may be able to reduced to a normal level by an employer or any other relevant person in deciding whether to grant a qualification.
iv. Clause 7: exceptions for vocational training bodies
Vocational training bodies are required to mitigate the risk of harm but not to provide special services or facilities to ensure people with disabilities can access training opportunities. Clause 7 would address this situation by amending the provision to ensure training opportunities are accessible to people with disabilities in the same way as other forms of education or employment.
v. Clause 4: exception for partnerships
At present firms cannot treat partners or potential partners less favourably because of any of the grounds on which it is unlawful to discriminate. Subsection(3) allows a partnership to fix reasonable terms for participation if a partner or potential partner has restricted capacity to participate because of disability or age, or requires special conditions to participate in the partnership.
The changes proposed would insert a new section 2A which would effectively require the provision of special services for people with disabilities to enable them to be accepted, or remain, in a partnership if the services could be reasonably provided. This is reinforced by repealing subs(3) and replacing it with a provision which permits the partnership to offer a partner, or prospective partner, reasonable (different) terms and conditions if the provision of special services or facilities does not allow them to contribute on a normal basis.
There is then a mitigation of risk provision that states that not employing a
person with a disability because they pose an unreasonable
risk will not amount
to discrimination, unless the firm could take measures to reduce the risk to a
normal level without unreasonable
disruption.
As currently drafted s.36 allows a person to be offered lesser terms or conditions because their disability or age means their capacity to contribute is restricted. It is arguable that this amounts to reasonable accommodation as envisaged by the Convention. The changes emphasise the need for partnerships to explore the provision of special services to allow a person to function, or continue to function, as normal and are consistent both with reasonable accommodation as contemplated by the Convention and with Arts.27(1)(a) & (b)[13].
The only decision in New Zealand on reasonable accommodation is Smith v Air New Zealand [2005] NZHRRT 30 at para 126. In Smith the Human Rights Review Tribunal noted that the standard at which a respondent could be expected to accommodate (in relation to services under s.52) was one of reasonableness not undue hardship and had the test been one of undue hardship, the respondent would not have discharged the burden of establishing the defence.
While the Commission does not necessarily agree with the Tribunal’s conclusion (and the threshold issue is one aspect of the decision that is currently being appealed), the introduction of “unreasonable disruption” as the point at which risk does not need to be accommodated is consistent with the standard in the Convention.
vi. Clause 5: organisations of employees or employers and professional and trade organisations
Under s.37 an organisation of employers or employees or a professional or trade association cannot refuse to accept someone for membership or deprive them of membership because of any of the prohibited grounds.
Clause 5 will add a new s.1A which will require such organisations to provide special services or facilities to allow people with a disability to become members and have equal access to the benefits of membership if it is reasonable to do so.
The Commission considers that, although the present reference to “less favourable terms” in subs.(1)(b) suggests that it would be unlawful to offer membership to a person with a disability on the same terms as everyone else if they could not benefit equally, the amendment will reinforce the idea that different treatment is necessary at times for people with disabilities to fully access the benefits of membership.
The new s. 2A will add a mitigation of risk with the same threshold criteria for the defence as the partnership exception. The same comments apply to this amendment as to the changes proposed to s.36.
7.1 Part 2 of the Bill will amend a number of other statutes to ensure that people are not disqualified from holding office by reason of a number of grounds -including mental disorder within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT) Act). The Commission sees these changes as consistent not only with the Convention requirement to combat stereotypes in all areas of public life[14] but also as recognition of the fact that people with disabilities should be able to fully participate in public life on an equal basis with others.[15]
7.2 The Commission therefore fully supports the idea that as a matter of principle people who fall within the MH(CAT) Act are not be automatically disqualified from consideration for statutory office. It does not follow that because a person is deemed to be mentally disordered for the purposes of the MH(CAT) Act, they lack capacity to make informed and reasoned decisions in other areas.
7.3 A test based on the criteria found in the Protection of Personal and Property Rights Act 1988 (PPPR Act) – such as that suggested - is more appropriate since the PPPR Act itself is based on a presumption of competency and deems all people to have legal capacity.[16]The Commission considers it is also fitting that the less intrusive test in the PPPR Act relating to the management of property (rather than personal welfare) is adopted as the standard.
7.4 However, the changes should be consistent. It is a little
difficult to see the justification for Schedule 2 of the
Maritime Transport Act
1994 (the Maritime Transport Authority) or s.55(1) of the Soil Conservation and
Rivers Control Act 1941, for
example, referring specifically to the definition
of disability in the HRA 1993 while s.103 Education Act 1989 (relating to the
appointment
of trustees to school boards) only refers to the relevant provisions
of the PPPR Act. The Commission’s preference would be
for a uniform
reference to the PPPR criteria in all the affected legislation.
8. Conclusion
8.1 The Commission supports the Bill as it will allow ratification of the United Nations Convention on the Rights of Persons with Disabilities.
8.2 Ratification of the Convention is a significant step to ensuring the protection of the rights of people with disabilities. It will provide a useful benchmark for policy makers and legislators seeking to promote the rights of people with disabilities as it will clarify certain concepts – such as reasonable accommodation - that are integral to achieving substantive and genuine equality for people with disabilities.
8.3 Any concerns about the HRA’s compliance with the Convention would be alleviated by inclusion of a general obligation to reasonably accommodate.
8.4 In relation to the amendments in the Bill the Commission has significant concerns about the suggested change to s.57 which it considers could adversely affect the educational opportunities of people with disabilities in some cases. It therefore recommends that the change to s.57 is not made. The Commission also considers that the wording in clause 7could be improved if it was drafted as a positive obligation to accommodate.
[1] Human Rights Commission Mana ki te Tangata: the New Zealand Action Plan for Human Rights (2005) Wellington
[2] 1 in 5 New Zealanders live with a disability. As disability increases with age (and New Zealand is an aging society) this ratio is likely to increase in the coming years. The significant number of people living with a disability is also reflected in complaints received by the Commission. Almost a quarter of all complaints and enquiries relate to disability.
[3] Human Rights Commission,
Human Rights in New Zealand Today: Nga Tika Tangata O Te Motu, Wellington
(2004)
[4] Ibid at 81
[5] Supra fn 1 at 3.2
[6] The Concept of Reasonable Accommodation in Selected National Disability Legislation, Background conference document prepared by the Department of Economic and Social Affairs: A/AC.265/2006/CRP.1.
[7] The Human Rights Act does not specifically refer to reasonable accommodation. It is used as a convenient way of referring to the concept as it is generally understood.
[8] See Equal Rights Trust , The Ideas of Equality and Non-Discrimination: Formal and Substantive Equality (2007) particularly the section on a human rights approach to equality at p.6. The document is available at www.equalrightstrust.org/ertdocumentbank.
[9] The educational establishments referred to in s.57 will for the most part be private schools. Schools administered under the Education Act fall within Part 1A of the HRA and will already be required to accommodate as a result of the application of the Bill of Right Acts through Part 1A. See, for example, A & P Butler The New Zealand Bill of Rights Act: a Commentary (LexisNexis, Wellington, 2005) at para 17.19. The Butlers suggest that as far as the BoRA is concerned, the concept of reasonable accommodation belongs under s.5 BoRA. Thus any prima facie discrimination that arises out of a failure to acknowledge difference and to treat a person accordingly needs to be justified in terms of s.5 and in principle reasonable accommodation can pass the s.5 test.
[10] The present provision is not dissimilar to s.22(4) Disability Discrimination Act 1995 (Cth) which led to the problems in Purvis v New South Wales [2003] HCA 62; (2003) 202 ALR 133. As of a result of that case, s.22(4) was repealed and replaced by a broader provision which extended the availability of the unjustifiable hardship exemption for disability discrimination to education providers in respect of students already enrolled in the an educational institution. However, in Australia a provider needs to establish “undue hardship” to justify not providing the accommodation. “Undue hardship” has been described as a higher standard than “reasonable” (see comments on Smith v Air New Zealand [2005] NZHRRT 30 in relation to cl.4). It would follow that if the change is made, the effect could be that providers only need to satisfy the lesser threshold in order to be exempt from making the necessary accommodation.
[11] Article 19 is the right to
independent living. It requires States Parties to recognise the equal right of
all persons with disabilities
to live in the community with choices equal to
others including ensuring that they have the opportunity to choose their place
of
residence ...on an equal basis with others and are not obliged to live in a
particular living arrangement.
[12] The HRA defines
disability as:
(i) physical disability or impairment;
(ii) physical illness;
(iii) psychiatric illness;
(iv) intellectual or psychological disability or impairment;
(v) any other loss or abnormality or psychological, physiological or anatomical structure or function;
(vi) reliance on a guide dog, wheelchair or other remedial means;
(vii) presence in the body of organisms capable of causing illness.
[13] Art.27(1) recognises the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to people with disabilities by taking appropriate steps through legislation, to inter alia:
(a) prohibit[ing] discrimination on the basis of disability with regard to all matters including hiring and continuance of employment, and career advancement; ...
(b) protect[ing] the rights of persons with disabilities, on an equal basis
with others, to just and favourable conditions of work
including equal
opportunities and equal remuneration ...
[14]
Art.8(1)(b)
[15]
Art.29
[16] Ss. 4 & 5
PPPR Act 1988
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