09 October 2011


'New Zealand's Commitment to Combat Disability Discrimination' (Victoria University of Wellington Legal Research Paper No. 13/2011) by Petra Butler is a chapter in the forthcoming Critical Perspectives on Human Rights and Disability Law (Brill 2011) edited by Marcia Rioux, Lee Basser and Melinda Jones. It explores New Zealand's commitment to combat disability discrimination, especially in regard to the Convention on the Rights of Persons with Disabilities. The 31 page paper considers the NZ constitutional framework, policy developments, and practical measures.

Butler concludes that -
Together the New Zealand Bill of Rights Act [BORA], the Human Rights Act [HRA] and the New Zealand Disability Strategy [NZDS] ensure in theory the full, effective and equal enjoyment of human rights and fundamental freedoms by persons with disabilities. The Bill of Rights Act and Human Rights Act have a clear prohibition on the discrimination against persons with disabilities. Discrimination is unlawful whether it is committed by the government or by private individuals, unless there is a sufficient justification or an unreasonable request to accommodate. The New Zealand Disability Strategy is designed not only to promote non-discrimination but also to ensure that disabled people feel fully included in society. The BORA, the HRA and the NZDS all aim to include disabled people into non-disabled society especially in education, employment, community living, in accessing facilities and in the provision of goods and services. The New Zealand Disability Strategy has a particular emphasis on affirming the dignity of disabled persons, respecting their differences and trying to facilitate their participation in society.

Despite the legislative protections and policy initiatives, disabled persons still are and feel discriminated against, especially in healthcare and employment. Discrimination tends to impact negatively upon the standard of living of disabled people, which consequently inhibits their autonomy and their ability to participate fully as members of the community. However, progress is being made in all aspects of the Disability Strategy as demonstrated in the annual reports published by the Office for Disability Issues. One reason that disabled people still have trouble integrating into society is that there is still considerable uncertainty over what constitutes ‘reasonable accommodation’ in regards to disability but the Human Rights Commission has advocated for a more Convention compliant meaning. Uncertainty around the issue means that people are often unsure about what their obligations are in respect of accommodating persons with disabilities. It is possible that New Zealand’s recent ratification of the CRPD will provide a further impetus to ensuring the rights of persons with disabilities and their full participation in society. While the legislation and policy in New Zealand does ensure full rights and inclusiveness on a similar level to non-disabled people, in practice those policies need to be implemented fully.

The recurring theme throughout the individual monitoring research was that despite the fact that lawmakers and policymakers appear to have been conscientious in confronting many of the barriers to the full enjoyment of human rights by disabled people, it is the negative attitude and/or lack of understanding of impairments by non-disabled members of the community that cause the greatest difficulties for disabled people. The main source of negative experiences reported was social isolation – disabled people struggle with participation, inclusion and accessibility because people are not well-equipped to relate to people with impairments, and may therefore engage with them in an inappropriate way or even not engage with them at all. A lack of respect for difference is still widely experienced, particularly in the employment context where bureaucratic inflexibility prevents employers being able to accommodate the differing needs of disabled people even where those people are highly qualified and willing to work. The lack of reasonable accommodation in areas like employment and access to transportation is significant for the autonomy of disabled people – they may be compelled to turn down work opportunities or opportunities to participate socially where their impairment would make it awkward or untenable to accept them. Dignity is part and parcel of being able to participate in society and determine one’s own path in life, so the inability of non-disabled people to appropriately relate to disabled people ties in strongly to disabled people’s feelings of self-worth.

Overall, the ability of disabled persons to fully enjoy human rights in New Zealand appears to be limited more by attitudes borne from a lack of understanding of the everyday realities of disabled people’s lives than from lack of accommodations put in place through laws, policies and programs. This was reflected in the individual monitoring research, where the largest category of recommendations for change put forward by participants was in the area of raising awareness. The research suggests that rather than focussing on tangible issues like work, transport and education, further thought should be given to raising awareness in areas more intrinsic to a person’s self worth, such as friendships and social networks. New Zealand has developed a reasonable regulatory foundation from which to promote the human rights of disabled people, but now is not the time for New Zealand to rest on its laurels.