3. The New Zealand context – Ki ngā kaupapa o Aotearoa
Disabled people are entitled to the full benefit of all general laws in New Zealand,
including human rights law, and specific law in the areas of employment, health
and disability, education, and access to services and information.
The New Zealand Bill of Rights Act 1990 (BoRA) affirms a number of the human
rights and fundamental freedoms contained in the ICCPR with special relevance
to disabled people. In addition to freedom from discrimination on the grounds
set out in the Human Rights Act 1993 (HRA), which includes disability, the BoRA
provides the same protections for disabled people, whether or not they are in
institutional settings, as for any other citizen from unreasonable search and
seizure, from arbitrary arrest and detention, and affirms the right not to be
subjected to torture or cruel treatment, nor to medical or scientific experimentation.
Specific legislative limitations on these rights (e.g., the Mental Health (Compulsory
Assessment and Treatment) Act 1992), permitted by section 5 of BoRA, are discussed
The HRA includes a broad definition of disability as a ground of prohibited discrimination,
- physical disability or impairment (e.g., respiratory conditions)
- physical illness
- psychiatric illness (e.g., depression or schizophrenia)
- intellectual or psychological disability or impairment (e.g., learning disorders)
- any other loss or abnormality of psychological, physiological or anatomical structure
or function (e.g., arthritis or amputation)
- reliance on a guide dog, wheelchair or other remedial means
- the presence in the body of organisms capable of causing illness (e.g., HIV/AIDS
The HRA’s prohibition against discrimination recognises that ensuring equality
for disabled people requires different treatment in certain circumstances so
that they can participate in employment, education, access to goods and services
and other areas where discrimination is prohibited. The provision of special
services or actions to enable equal participation of disabled people, known as ‘reasonable
accommodation’, is exempted from the definition of discrimination. ‘Special
measures to ensure equality’ may also be exempted from the definition of
Different treatment is permitted where:
- a disabled person requires special services or facilities to enable him or her
to participate and these can reasonably be provided; or
- there is a risk of harm to a disabled person or others that can be reasonably
reduced to a normal level.
The statutory tests for ‘reasonable’ accommodation depend on the
accommodation required. Where there is a risk of harm, a three-stage assessment
of the nature of the disability and its likely effect (on the workplace, for
example) is required:
- 1. Would there be a risk of harm to the individual or others?
- 2. Would it be reasonable to take the risk?
- 3. Could the organisation take reasonable measures, without unreasonable disruption,
to reduce the risk to a normal level?
Where special services are required, an assessment is made of the required services
and whether it is reasonable to provide them. Examples include providing a larger
computer screen, modifying a desk area, providing specific equipment, modifying
software, or changing job duties.
While there have been major changes in the ways in which disabled people are
cared for – from institutionalisation to independent living – many
continue to be particularly dependent on health and welfare services, either
permanently or temporarily. Two important laws provide enforceable codes to protect
the rights of disabled people in these situations:
- The Privacy Act 1993 empowers the Privacy Commissioner to issue codes of practice
applying the Information Privacy Principles set out in the Act to take into account
the special characteristics of specific industries, agencies or types of personal
information. The Health Information Code 1994 applies to providers of health
services and services for disabled people. It addresses the collection, storage
and security of personal health information, and protects the right of consumers
to access and correct information about themselves, as well as restricting its
use to the purpose for which the information is obtained.
- The Health and Disability Commission Act 1994 established the position of Health
and Disability Commissioner to develop a Code of Health and Disability Service
Consumers’ Rights and a mechanism for resolving complaints about service
delivery. The Code identifies ten rights, including the right to be treated with
dignity and respect at all times, non-discrimination in the delivery of services,
informed consent to medical procedures and the right to complain. It does not
include a right to access services.
The Health and Disability Commission (HDC) also provides a free, independent
advocacy service to support consumers in bringing a complaint under the Code.
The role of the advocates is not to determine whether a breach has occurred,
nor to mediate complaints, but to support consumers to resolve matters, in the
first instance directly with the service provider. If this process fails to resolve
the complaint, the HDC’s Proceedings Commissioner may take the complaint
to the Human Rights Review Tribunal or the relevant professional disciplinary
body on behalf of the complainant, or the complainant may pursue the matter on
their own initiative.
Options for resolving complaints concerning mental health services are more complicated.
People detained under the Mental Health Act may complain to District Inspectors
who have specialist knowledge of the services and a right of entry into secure
mental health service facilities. Other complaints about care or treatment may
be made to the Health and Disability Services Commissioner, to the Ombudsman,
or to a relevant professional health care body. The Human Rights Commission also
receives complaints about discrimination, more commonly in community settings,
as its function is to resolve disputes not to investigate the validity of complaints.
Limitations on fundamental rightsTop
In order to prevent harm to self or others, some legislation provides both protections
of and limits on the rights and freedoms of people with mental and intellectual
impairment. Although these enactments provide safeguards to prevent abuse of
these limitations, they remain unwelcome infringements of fundamental rights,
and are a frequent source of complaint.
- The Mental Heath (Compulsory Assessment and Treatment) Act 1992 defines the circumstances
and conditions under which people with mental illness may be subjected to compulsory
assessment and treatment. While the Act overrides the right to freedom of movement
and the right to refuse medical treatment, it also affirms other rights and provides
a sequence of review to safeguard against arbitrary detention, and a right to
receive treatment in the least restrictive setting possible. This Act is also
discussed in Chapter 10: The rights of people who are detained. The majority
of people experiencing mental health problems or receiving mental health care
do not come under the auspices of this Act.
- The Protection of Personal and Property Rights Act 1988 provides some protection
for people who lack capacity to make their own decisions by providing for the
appointment of welfare guardians and power of attorney. Unless it is proven otherwise,
all persons are presumed to have legal capacity. Where a person may be considered
not competent to exercise their full legal capacity, a court order may be sought.
The Act limits any restrictions on an individual’s legal capacity to
those specifically made by the court order. However, concerns remain about
of disabled people, especially older people, by people with powers obtained
under this Act.
Two significant new legislative initiatives have been adopted by Parliament,
but have not yet been implemented. There is further discussion of these two Acts
in Chapter 10: The rights of people who are detained.
- The Criminal Procedure (Mentally Impaired Persons) Act 2003 provides for detention
of people found unfit to stand trial or not guilty by reason of insanity, or
who are convicted of an offence but their mental condition means they would be
better detained in a psychiatric hospital or care facility than a prison. This
is intended to ensure that those in need of treatment receive it in a timely
fashion. When the need for treatment ceases, the offender is transferred back
- The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 sets
out processes for assessing the need for supervised or secure care for people
with an intellectual disability. People are subject to this Act through the criminal
courts, through the Family Court, a prison manager, or through the director of
the area mental health service. There are provisions for reasonable force to
be used for restraint, detention or transportation, powers for seclusion and
medication, and powers to require compulsory compliance with a care order. The
Act provides safeguards against abuse of these powers through a system of regular
clinical and court reviews, independent monitoring, and the opportunity for intervention
by a High Court judge.
Other significant legislationTop
- The Building Act 1991 enforces building codes and regulations, including the
Access Standard in the Built Environment: NZS41212001. Authoritative data about
the implementation of this standard to existing buildings are difficult to find,
and disabled people often report difficulties in simply gaining access to and
through public buildings and workplaces. This Act is also discussed in Chapter
12: The right to an adequate standard of living: focus on housing.
- The Injury Prevention Rehabilitation and Compensation Act 2001 provides compensation
and rehabilitation (treatment and disability support services) to all people
with impairments as a result of personal injury. However, those with similar
needs but whose impairment is not the result of injury are not covered by the
Act, and are therefore not eligible for ACC entitlements available to people
disabled by accident (including income support of 80 percent of previous earnings
and social and vocational rehabilitation).
- The State Sector Act 1988 includes explicit mention of disability in its equal
employment opportunity provisions.
- The Education Act 1964 allows for the establishment and funding of special classes,
clinics, or services, either separately or in association with any State education
institution. In addition, the Act recognises the need for funding of classes
or services that provide special education or facilities supplementing special
education provision, including the training of teachers for the purposes of special
- The Education Act 1989 provides for free primary or secondary school education
for disabled people from 5 to 21 years of age. A disabled person is entitled
to attend a state school, special school, special class, or special clinic and,
where appropriate, to receive additional education support from a special education
service. The Act is silent on enrolment of disabled people into tertiary and
early childhood education.
Other important initiatives have been introduced to Parliament, but have not
yet been passed.
- The repeal of the Disabled Persons Employment Promotions Act 1960: This Act,
exempting sheltered workshops from employment legislation, is currently being
repealed and replaced, so that disabled people working in sheltered workshops
will have the same minimum wage and employment rights as everyone else. Sheltered
workshops will continue to offer specialised environments for disabled employees,
with a range of vocational services and activities, and service providers will
continue to receive Government assistance to develop their businesses to support
employment. However, exemptions from the standard minimum wage and employment
rights may be permitted in some circumstances.
- The New Zealand Sign Language Bill provides official recognition of Deaf people’s
language as a unique New Zealand language and gives it equal status to spoken
language. New Zealand Sign Language (NZSL) includes signs that express concepts
from Maori culture. The Bill provides the right to use NZSL in legal proceedings.
Provision for the use of NZSL interpreters is already made in the Mental Health
(Compulsory Assessment and Treatment) Act.
There have been significant developments in Government policies and action in
relation to disability issues in recent years. These include:
- the appointment, in 2000, of a Minister for Disability Issues
- The 2001 New Zealand Disability Strategy – Making a World of Difference:
Whakanui Oranga, which sets out a vision and framework for action for disabled
- the establishment, in 2002, of the Office for Disability Issues within the Ministry
of Social Development
- the Ministry of Health’s (2003a) Disability Services Directorate Strategic
- the development of national strategies to address mental health and the creation
of the Mental Health Commission 1996.
The Disability Strategy
The Disability Strategy – Making a World of Difference: Whakanui Orangawas developed after wide consultation with disabled people and delivers a human
rights-based plan to promote a more inclusive and non-disabling society. It establishes
a high-level framework to ensure that all government agencies consider disabled
people in their decision-making processes.
The Disability Strategy has fifteen objectives and over one hundred related actions
for implementation. The objectives are to:
- encourage and educate for a non-disabling society
- ensure rights for disabled people
- provide the best education for disabled people
- provide opportunities in employment and economic development for disabled
- foster leadership by disabled people
- foster an aware and responsive public service
- create long-term support systems centred on the individual
- support high-quality living in the community for disabled people
- support lifestyle choices, recreation and culture for disabled people
- collect and use relevant information about disabled people and disability
- promote participation of disabled Maori
- promote participation of disabled Pacific peoples
- enable disabled children and youth to lead full and active lives
- promote participation of disabled women in order to improve their quality
- value families, whanau and people who provide ongoing support.
The New Zealand Public Health and Disability Act 2000 requires the Minister for
Disability Issues to report annually to Parliament on progress made in implementing
the strategy. In the Disability Strategy’s first year, only 10 government
departments developed action plans, but by the end of the 2003 year, all 37 had
complied to some extent, and it was possible to report some activity under each
of the 15 objectives (Minister for
Disability Issues, 2004). These indicated
a primary focus on developing each department’s own capacity to improve
consultation with disabled people, collect and use better data, as well as improve
accessibility to their information for disabled people, such as compliance with
e-government guidelines on website accessibility.
In spite of this, progress is slow from the perspective of disabled people. The
President of the Disabled Persons Assembly (DPA) said in his introduction to
the report (Gourley, 2004):
We are disappointed by continuing gaps in the reporting on implementation of
the Strategy. In our view this reflects a quaint notion that disability is a
charitable add-on, or aspect of social responsibility that does not sit within
the strategic imperatives of government agencies. Nothing could be further from
the truth. The Strategy points to a society that ‘fully values our lives
and continually enhances our participation’. To achieve this requires,
at the very least, a public service responsive to our rights and needs as a population
The Office for Disability Issues
The Office for Disability Issues (ODI) is located in the Ministry of Social Development,
with responsibility for:
- leading, monitoring and promoting the New Zealand Disability Strategy
- providing policy advice on disability issues, and leading strategic and cross-sectoral
disability policy across Government
- supporting the Minister for Disability Issues.
Key areas of work being addressed by the ODI include:
- Advice to Government on how to develop its systems for providing long-term disability
support services consistent with the Disability Strategy. This includes improving
the structures and processes to ensure easy-to-access, seamless and equitable
services. It means ensuring that people with similar impairments and/or associated
needs have equitable access to support, regardless of whether their impairment
is the result of an accident, sickness or a congenital condition, where they
live, their gender or ethnicity.
- Caregiver issues. In response to a 2001 Complaints Review Tribunal decision,
the Government is reviewing policy on payment of family members as caregivers.
- The New Zealand Sign Language Bill.
- New Zealand’s role in the development of an International Convention on
the Rights of People with Disabilities.
Disability Services Directorate Strategic Plan
The Disability Services Directorate Strategic Plan sets out a new direction for
the provision of a wide range of services to support the objectives of the Disability
Strategy. The strategic plan makes a commitment to the social model of disability
and full participation of disabled people. Services funded by the Directorate
are discussed below under Access to services:
National strategies to address mental health
Strategies to address psychological and psychiatric disability are the responsibility
of the Ministry of Health. In response to a number of critical public inquiries
into mental health services in the 1990s (e.g., Mason,
Johnston, & Crowe,
1996), a new national mental health strategy was developed (Looking Forward:
Strategic Directions for the Mental Health Service, Ministry of Health, 1994);
a second plan to 2015 is currently in development, and considerably greater investment
in mental health services has been made (128 percent increase since 1994). The
strategy set seven strategic directions, including more and better services,
balancing personal rights with protection of the public, strengthening promotion
and prevention, more and better services for Maori, and developing the mental
health services infrastructure. National Mental Health Sector Standards (NZS
8143:2001) have also been introduced, and all mental health services are required
to comply by June 2004 (Ministry of
Health, 2003a). This includes a non-discrimination
The Mental Health Commission
The Mental Health Commission was established in response to the recommendations
of the 1996 Inquiry into Mental Health Services (Mason, Johnston, & Crowe,
1996) to monitor the implementation of Government mental health strategy, reduce
discrimination against people with mental illness and strengthen the mental health
workforce. In 1998, it provided the Blueprint for Mental Health Services: How
Things Need to Be as the basis for Government action to address the changes required
to fully meet the service needs of the estimated three percent of the population
who experience serious mental illness. This included the shift to a recovery
philosophy and the setting of national guidelines for service provision.