1 August 2008 

Lynn Pillay
Chairperson
Justice and Electoral Committee
Parliament House
WELLINGTON 

Dear Madam, 

UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES 

At the Select Committee hearing last week, members of the Committee expressed an interest in the Human Rights Commission’s (the Commission’s) views on how a generic definition of reasonable accommodation could be incorporated in the Human Rights Act (HRA) and some suggested wording. The Commission also undertook to provide the Committee with an analysis of relevant complaints by people with disabilities. We have also taken the opportunity to provide some comment on the Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill. 

STATUTORY OBLIGATION TO ACCOMMODATE PEOPLE WITH DISABILITIES

The Convention envisages people with disabilities being accommodated in a way that ensures they can enjoy the same rights as non-disabled people on an equal basis. It also recognises that a balance needs to be struck so that a disproportionate burden is not placed on employers or landlords, or the providers of public goods and services.

As we indicated when we appeared before the Committee, the Commission considers that the interests of disabled people would be better served if the HRA contained a general obligation to accommodate disability and a definition of reasonable accommodation.

The only decision in New Zealand on reasonable accommodation is Smith v Air New Zealand [2005] NZHRRT 30. 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. 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), it considers that clarification of the threshold to ensure it is consistent with the Convention is necessary.

The Convention defines reasonable accommodation as:


The Commission suggests the following definition could be included in section 2 HRA:


This would ensure the Commission continued to make decisions on a case by case basis and would also go a considerable way towards clarifying the rights and responsibilities of all the parties involved in matters relating to disability discrimination.

COMPLAINTS RECEIVED BY THE COMMISSION RELATING TO REASONABLE ACCOMMODATION

Over the period from June 2002 to June this year the Commission received 619 matters that were considered to involve an element of reasonable accommodation. Of these 283 were progressed through the disputes resolution process. The following information is based on those complaints. Most of the complainants did not seek costly modifications.

i. A number (55) involved complaints of inability to access facilities or services normally available to the public. 43 related to wheel chair access to public transport, usually planes or buses, although one involved access to a public viewing platform and several involved inaccessible buildings (including the Maritime Museum);

ii. Some complaints were simply the unintended consequence of assuming that everyone could be treated the same. For example, a blind complainant who wished to place an advertisement was told that it had to be in writing;

iii. 49 involved allegations of less favourable treatment in educational or vocational training, the complainant either being denied access – such as the woman with dyslexia who was not admitted to a florists’ course or the young woman with epilepsy who was refused entry to a social work course - or not being provided with the necessary help to complete the course - for example, refusal on the part of the institution to provide reading material in a suitable format or a reader writer or to allow an extra 30 minutes in an examination to someone with writing difficulties;

iv. 18 involved primary or preschool children who were prevented or restricted from attending school or pre-school facilities because they had special needs;

v. The majority of complaints were employment related (87), most of which were resolved through mediation or supporting the complainant to self-advocate.

AMENDMENTS TO SPECIFIC SECTIONS OF THE HUMAN RIGHTS ACT 1993

Although the HRA does not refer to equality, there is an assumption that everybody is entitled to equal protection of the law on a non-discriminatory basis. However, treating everybody the same does not mean that everyone will enjoy equal outcomes – identical treatment can lead to unequal results.

While arguably the HRA 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 Act 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. Although the Commission supports what the Bill sets out to do, it has a concern about the change proposed to the exception for education and considers that the wording which will amend the provision relating to residential accommodation could be improved.

Clause 9: Exceptions relating to educational establishments
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. (The educational establishments referred to will be private schools as schools administered under the Education Act fall within Part 1A of the HRA and will be required to accommodate as a result of the application of the Bill of Right Acts through Part 1A [Refer note 1] unless they are providing a service such as accommodation (for example) - in which case Part 2 will apply).

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. This is because 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 [Refer note 2] . 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.

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:


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.

Rather than providing potential providers or landlords with a defence against accommodating the special needs of people with disabilities, cl.8 could be 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 [Refer note 3].

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+ [Refer note 4]. In reality they presented a minimal risk and any risk could have been easily accommodated. More recently, a nanny was refused the right to graduate because she was epileptic even though her epilepsy was well controlled and she had completed the course satisfactorily.

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.

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 addresses 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.

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) [Refer note 5].

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.

Amendments to other statutes
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 [Refer note 6] and that people with disabilities should be able to fully participate in public life on an equal basis with others [Refer note 7].

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. Because a person is deemed to be mentally disordered for the purposes of the MH(CAT) Act, they do not always lack the capacity to make informed and reasoned decisions in other areas. A test – such as that suggested - based on the criteria found in the Protection of Personal and Property Rights Act 1988 (PPPR Act) is more appropriate since the PPPR Act itself is based on a presumption of competency and deems all people to have legal capacity [Refer note 8]. 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.

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. A uniform reference to the PPPR criteria in all the affected legislation would be more appropriate.

To sum up, the Commission supports the Bill as it will allow ratification of the United Nations Convention on the Rights of Persons with Disabilities and this will be a significant step in protecting 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.

Any concerns about the HRA’s compliance with the Convention would, however, be alleviated by if the Act contained a definition based on that in the Convention and included a general obligation to accommodate disability. In relation to the amendments - the Commission has concerns about the suggested change to s.57 which it considers could adversely affect the educational opportunities of people with disabilities in some cases and considers that the wording in clause 7 would be improved if it was drafted as a positive obligation to accommodate. 

Thank you for the opportunity to provide this comment and we are happy to discuss any matters that may require clarification.

Yours sincerely,

Dr Judy McGregor,
ACTING CHIEF COMMISSIONER

Footnotes:

Note 1:
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.

Note 2:
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) 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. 

Note 3:
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.

Note 4:
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.

Note 5:
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

Note 6:
Art.8(1)(b)

Note 7:
Art.29Ss. 4 & 5 PPPR Act 1988

Note 8:
Ss. 4 & 5 PPR Act 1988