First New Zealand Report on

Implementing the United Nations Convention on

The Rights of Persons with Disabilities

— Draft only—

First New Zealand Report on Implementing the United Nations Convention on the Rights of Persons with Disabilities

Overview

Articles 1 to 4

Article 5 - Equality and non-discrimination

Article 6 - Women with disabilities

Article 7 - Children with disabilities

Article 8 - Awareness-raising

Article 9 - Accessibility

Article 10 - Right to life

Article 11 - Situations of risk and humanitarian emergencies

Article 12 - Equal recognition before the law

Article 13 - Access to justice

Article 14 - Liberty and security of the person

Article 15 - Freedom from torture or cruel, inhuman or degrading treatment or punishment

Article 16 - Freedom from exploitation, violence and abuse

Article 17 - Protecting the integrity of the person

Article 18 - Liberty of movement and nationality

Article 19 - Living independently and being included in the community

Article 20 - Personal mobility

Article 21 - Freedom of expression and opinion and access to information

Article 22 - Respect for privacy

Article 23 - Respect for home and the family

Article 24 - Education

Article 25 - Health

Article 26 - Habilitation and rehabilitation

Article 27 - Work and employment

Article 28 - Adequate standard of living and social protection

Article 29 - Participation in political and public life

Article 30 - Participation in cultural life, recreation, leisure and sport

Article 31 - Statistics and data collection

Article 32 - International cooperation

Article 33 - National implementation and monitoring

Annex: Information

Overview

A short history

1The New Zealandgovernment’s vision of full participation and improved wellbeing for disabled people evolved over time, with a critical turning point occurring in the 1970s with deinstitutionalisation and a new paradigm of social inclusion.

2The New Zealand Disability Strategy has supported this vision: The New Zealand Disability Strategy (the Disability Strategy) was adopted in legislation in 2001[1]. Cementing the requirement for a disability strategy in legislation strengthened the focus on disabled people. The Minister for Disability Issues is required to report to Parliament annually on progress in implementing the Disability Strategy.

3The Disability Strategy emerged from, and drove, a systemic response to concerns about the way disabled people were treated and included changes to policies, legislation, infrastructure and service delivery. It involves a paradigm shift from exclusion and care outside mainstream society to inclusion and mainstreaming as the default option, with dedicated services for disabled people where this is not possible.

4We have developed a strong alignment with the Convention: The articles of the United Nations Convention on the Rights of Persons with Disabilities (the Convention), which New Zealand ratified in September 2008, built upon and advanced the principles underpinning the Disability Strategy. Because of our early work under the Disability Strategy, New Zealand believes it is well advanced in its progressive implementation of the Convention.

5The legislative framework is positive: The rights of disabled people are set out in overarching, inclusive legislation, with secondary legislation reinforcing this. There are few distinctions on the basis of particular disability types, mostly around presumed competence.

6Disabled people are essential partners: Part of the Disability Strategy’s strength is that disabled New Zealanders have firmly claimed ownership of it. Forging partnerships between government and the disability sector has enabled us to make progress towards our vision.

7Disabled people themselves know what is, and what is not, working well in New Zealand. They are essential partners as they know the reality of what actually happens and can feed back information to the government.

The current situation

8There is leadership at the highest level: Today, disabled New Zealanders live and increasingly work within their communities. They have an advocate at the highest level of government, the Minister for Disability Issues, supported by a Ministerial Committee on Disability Issues. New Zealand’s focus is to support disabled people to be valued and productive contributors who live “ordinary lives”.

9There is a vision for disabled people: Many examples of policies and services that aim to support inclusion and improved wellbeing for disabled people are described in this report. These cover a number of sectors including health, education, transport and many others. There is much to be celebrated.

10There are overall priorities for action: Full realisation of the rights of disabled people and their inclusion into New Zealand society is a multi-generational goal. The New Zealand Government has identified its priorities in the disability area and is taking concrete actions to achieve them. These priorities are:

  • accessible New Zealand - with communities accepting disabled people and providing accessible transport, information, communications and broadcasting
  • modern disability supports – providing support as early as possible to strengthen families and allow disabled people to look after themselves wherever possible
  • contributing citizens – ensuring disabled people can achieve at school and in paid work, have access to justice and experience the full rights of citizenship.

11There is active engagement with the sector: These government priorities were identified following consultation with the disability sector. The government continues to engage with the sector in the development of policies and practices. In the preparation of this report, a sector reference group commented on drafts of this report and their feedback was incorporated. This was followed by wider discussions with disabled people, disability groups and the general public, prior to the finalisation of this report.

Our challenges

12Discrimination and barriers still exist: Considerable barriers still lie in the attitudes of wider society and in its day-to-day practices. To some extent, disabled people are still seen as a marginalised group who need to be cared for and have special provisions made for them. The government is aiming, through the Disability Strategy and the implementation of the Convention, to make practices inclusive of all groups and empower disabled people to make their own decisions.

13Data about disabled people needs to be improved:Robust analysis and planning is difficult without data. Statistics on disabled people are now being collected that will allow us to better identify the problems they have and the outcomes they are achieving.

14The underlying philosophy and the government’s commitment are consistent:However, practice can and sometimes does, fall short. While the list of support services is impressive, there is a comparable list of instances where service ideals are not realised.

The future

15We are committed to progressive realisation: The global economic crisis and budget pressures in New Zealand are challenging. Despite budget pressures, new funding has been put into disability support services, and plans exist to help redress weaknesses in services as part of progressive realisation.

16Progress must continue: Many examples of good practice exist and are mentioned in this report. But good practice needs to become more commonplace and strengthen over time. Disabled people say there is still much further to go.

Articles 1 to 4

A New Zealand data snapshot[2]

17Across all New Zealanders:

  • 10 percent of children aged 0-14 years have a disability
  • disability increases with age - 20 percent of adults aged 45-65 years and 45 percent of adults aged 65 years and over are disabled
  • disability is relatively equal between male and female, except for children; boys make up 59 percent of disabled children.

18There are significant differences in disability rates across different ethnicities.

19The 2006 Disability Survey found that an estimated 95,700 Māori living in New Zealand were disabled. Adjusting for the different age structures of the Māori and non Māori populations, the age-standardised disability rate for Māori was 19 percent and the rate for non-Māori was 13 percent. Sixty-one percent of disabled Māori adults had more than one type of disability.

20The most common disability types for Māori adults aged 15–64 years living in households were[3]:

  • mobility – an estimated 28,100 or 8 percent of all Māori adults in this age group
  • agility – 23,100 (7 percent)
  • psychiatric/psychological – 16,400 (5 percent)
  • hearing – 15,600 (5 percent).

21There were more disabled Māori women (an estimated 37,200) than Māori men (30,200). This was 19 percent of all Māori women and 18 percent of all Māori men. Māori women had higher disability rates than non-Māori women in all age groups. Māori men had higher disability rates than non-Māori men in all age groups except those aged 75 years and over.

22For further statistical information see Annex.

23The Disability Strategy contains specific objectives promoting the participation of Māori and PacificIsland peoples[4] and there are separate health plans for Māori[5] and for PacificIsland people[6].

Legislation - New Zealand laws are consistent with the Convention

24Before New Zealand ratified the Convention, it reviewed all of its legislation and amended 23 Acts to ensure its legislation was consistent with the Convention. It was recognised that the Mental Health (Compulsory Assessment and Treatment) Act 1992 needed more attention but was deemed sufficiently compliant in its current form. The Juries Act 1981 retained an exclusion for intellectually disabled people and those whose impairment indicates they would be unlikely to be competent to serve (based on an individual’s assessed capacity).

25The Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 are the primary pieces of legislation that protect the rights of disabled people. They provide the standard for all other legislation to be measured against in terms of human rights. Disabled people are using the mechanisms under these and other Acts to challenge discrimination.

Government provides services and support for disabled people

26The New Zealandgovernment funds services (including direct financial assistance) to support disabled people. Disabled people receive extra support from a range of government agencies. Government-funded disability-related support services include personal support, employment assistance, equipment purchase and modifications to homes, to name just a few.

27This report describes the range of services that exist. Disabled people in New Zealand say that all of these services are not yet consistently available.

28In New Zealand there are specific disability-related income supports in the form of Sickness Benefit, Invalid’s Benefit, Disability Allowance and Child Disability Allowance (see Annex for more information).

29The Accident Compensation Corporation (ACC) government agency provides income support and compensation for people who have an impairment resulting from an injury and/or an accident. The services provided by ACC are different from those in the health and disability support system and this difference has been the subject of litigation. They tend to be more co-ordinated than health services and are financed by levies rather than capped funds from general taxation. In Trevethick v Ministry of Health Justice Dobson held in the High Court that the defendant discriminated between those who had a disability as a result of an accident and those who had a disability as a result of an illness. However, because the cause of a disability is not a prohibited ground of discrimination under the Human Rights Act 1993, it did not constitute unlawful discrimination.

What surveys tell us

30Many New Zealanders experiencing disability face barriers to full participation in society. The 2006 Household Disability Survey[7] found that:

  • 38 percent of disabled adults aged 25-64 years had no educational qualification, compared to 18 percent of non-disabled adults of that age
  • 60 percent of 15–64 year olds with a disability were employed in 2006, compared to 80 percent of non-disabled 15–64 year olds
  • 39 percent of disabled adults aged 15-64 years had annual personal incomes of less than $15,000, compared to 28 percent of non-disabled 15-64 year olds
  • 66 percent of disabled adults aged 25-64 years were partnered compared to 76 percent of non-disabled people of the same age[8].

Many definitions of disability are used in New Zealand

31Different definitions of disability are used for different purposes.

32The Disability Strategy defines “disability” as the process which happens when one group of people create barriers by designing a world only for their way of living, taking no account of the impairments other people have. Disability relates to the interaction between the person with the impairment and the environment. Using this definition helped shift New Zealand’s focus from a medical to a social model of disability, where people self-identify barriers in society that have disabled them.

33For the purposes of prohibiting discrimination, the Human Rights Act 1993 defines disability as:

  • physical disability or impairment
  • physical illness
  • psychiatric illness
  • intellectual or psychological disability or impairment
  • any other loss or abnormality of psychological, physiological, or anatomical structure or function
  • reliance on a guide dog, wheelchair, or other remedial means
  • the presence in the body of organisms capable of causing illness.

34This definition has been the subject of consideration before the Courts and has been found to be an exhaustive list of what constitutes a disability.

35Statistics New Zealand, which collects statistics on disability, defines disability as any self-perceived limitation in activity resulting from a long-term condition or health problem; lasting longer or expected to last longer than six months or more, and not completely eliminated by an assistive device. These definitions are used to determine legal coverage or clarity for data collection.

36Another type of definition relates to administrative eligibility for services, which incorporates a requirement to manage within fixed resources. The Ministry of Health uses the definition approved by the government to determine eligibility for disability support funding and services: “a person with a disability” is a person identified as having a physical, psychiatric, intellectual, sensory or age-related disability (or a combination of these), which is likely to continue for a minimum of six months and result in a reduction of independent function to the extent that ongoing support is required. The Ministry of Transport defines disability as a measured loss or reduction of physical or intellectual ability (resulting from an impairment) to perform an activity in the manner or within the range considered normal for a human being. The Ministry of Social Development uses a medical model to determine eligibility for financial support for disabled people through Sickness and Invalid’s Benefit (see Annex).

New Zealand is committed to progressive realisation of the Convention

37The government is committed to the full implementation of the Convention through progressive realisation over time. A Ministerial Committee on Disability Issues was established in February 2009 and it is developing a co-ordinated disability action plan focussing on the priorities which have long been talked about by disabled people. The Ministerial priorities have been identified and will be progressively worked on.

The Disability Strategy provides the overarching direction for government

38The Disability Strategy provides the overarching direction for government agencies to follow in the design of policy and provision of services impacting on disabled people. It is organised around 15 objectives that promote changing New Zealand from a disabling to an enabling society. Government agencies must consider the needs of disabled people as part of their planning cycles and report on progress annually. A number of local councils[9], including large ones such as Auckland and Christchurch, have developed strategic plans and/or action plans based on or making reference to the Disability Strategy.

39An independent implementation review found central government agencies have undertaken a significant level of activity to implement the Disability Strategy but more is needed to produce real improvements in outcomes for disabled people[10].

The Government is committed to consultation and partnership

40The government has made a commitment to consult and work in partnership with disabled people. Disabled people’s representatives were included in developing the Convention and continue to be involved in developing polices and initiatives and providing feedback on how well these are implemented.

41In New Zealand:

  • the Office for Disability Issues is the key government point of contact and is in regular contact with disability groups
  • the Ministerial Committee on Disability issues, headed by the Minister for Disability Issues, has asked for regular meetings with disabled people and disability organisations
  • several government agencies and many councils are supported by disability advisory groups
  • each of our 21 District Health Boards has a Disability Advisory Committee
  • the Ministry of Health meets several times a year with a Disability Services Consumer Consortium, which includes a range of non government organisations made up of disabled people.

Moving towards the future - new resources and initiatives

42Important things are already happening while the disability action plan is being developed. There is funding for a new public attitudes campaign which is now being planned with disabled people. A comprehensive monitoring process for the Convention involving disabled people is being implemented (see Article 33).

43In addition to its ongoing commitment to existing disability support services, the 2010New Zealand government budget delivered an extra $93 million to expand existing disability support services over the next four years. Of this amount, $72 million over the next four years will improve access to disability support services and includes:

  • $25.5 million for home and community support services
  • $3.4 million for other disability support services
  • $21 million for residential services for people with intellectual disabilities
  • $7.9 million for supported independent living
  • $2.7 million for respite care.

Article 5 - Equality and non-discrimination

Legislation forbids discrimination

44New Zealand’s legislation forbids discrimination on the basis of disability but does allow reasonable accommodation.

45Reasonable accommodation means the rights of a disabled person need not be met if doing so would be unreasonable. There is considerable uncertainly about what reasonable accommodation is. It is often the subject of debate with issues of risk, practical difficulty and cost being used as a rationale not to include disabled people or to charge them more for services. In Smith v Air New ZealandMrs Smith, a disabled woman who required oxygen, argued that Air New Zealand’s policy requiring individuals to pay for the provision of supplementary oxygen on their flights was discriminatory. (Because of the safety concerns inherent in bringing supplementary oxygen on to a plane, Air New Zealand requires passengers on domestic flights to pay for the cost of obtaining oxygen and associated equipment from a particular supplier rather than using their own equipment.) The Human Rights Tribunal and later the High Court held that it was unreasonable for Air New Zealand to provide supplementary oxygen without any additional cost.