HUMAN RIGHTS AND LEGAL ISSUES

Introduction

8.1 The Terms of Reference for the Inquiry asked whether the public transport services available to disabled people comply with human rights standards. This chapter discusses human rights legislation domestically and internationally, explores human rights in policy frameworks, and examines the issue of discrimination.

8.2 Human rights govern how individual human beings live in society and with each other, as well as their relationship with the State and the obligations that the State has towards them. Human rights aim to recognise and protect the dignity of all people whatever their status or condition in life. They are said to be inherent, inalienable and universal. In other words, human rights apply to everyone, regardless of distinctions such as race, sex or disability.[56] Disabled people enjoy the same rights as all New Zealanders, including the right not to be discriminated against in the provision of public transport.

New Zealand human rights law

8.3 In New Zealand, human rights are protected by the Human Rights Act 1993 (the Human Rights Act) and the New Zealand Bill of Rights Act 1990 (the Bill of Rights). The long titles of both Acts refer to the protection of human rights in New Zealand in terms of the international instruments. The Bill of Rights, which establishes a set of minimum standards to be met by the three branches of government in their dealings with individuals,[57] specifically refers to the International Covenant on Civil and Political Rights. The reference in the preamble to the Human Rights Act is more general, referring without further qualification to the United Nations Covenants and Conventions.

8.4 A primary function of the Human Rights Commission (the Commission) is promoting respect for and understanding and appreciation of human rights in New Zealand society. One way this is achieved is through the administration of a complaints process for dealing with unlawful discrimination.

8.5 There are 13 grounds on which it is unlawful to discriminate. The grounds include disability, which is defined in section 21(h) of the Human Rights Act to mean 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, and the presence in the body of organisms capable of causing illness. Although not specifically mentioned, the definition is broad enough to include sensory impairment.

8.6 The Human Rights Act applies to both the public and private sectors. Discrimination by public sector agencies is dealt with under Part 1A and is measured against the Bill of Rights standard. An action will be considered discriminatory if it involves a distinction based on a ground of discrimination prohibited by the Human Rights Act, and the distinction cannot be justified under section 5 of the Bill of Rights. Section 5 excuses the infringement if the limitation of the right can “be demonstrably justified in a free and democratic society”.[58]

8.7 Part 2, which applies to the private sector, differs from Part 1A. The alleged discrimination must occur in certain areas such as employment, accommodation, educational facilities and the provision of goods and services. Discrimination in access to public places, vehicles and facilities, and the provision of goods and services is particularly relevant to this Inquiry.

8.8 Part 2 is more prescriptive than Part 1A. Rather than relying on the section 5 test, specific exceptions are identified in particular areas. For example, while section 42 makes it unlawful to discriminate in access to places, vehicles and facilities, section 43 permits an exception for disability if the person’s disability means that they would need special services or facilities to enable them to access or use the place or vehicle and it would not be reasonable to require the provision of those services.[59]

8.9 The concept of reasonable measures is a core element of Part 2. A reasonable measure – or reasonable accommodation – is a technical term that refers to changes that an employer or provider can make to a workplace or facility to ensure that a disabled person can do a job or access a place or vehicle. Whether an employer or provider should make such changes is balanced against the disruption it may cause.

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8.10 In an earlier complaint involving the Stagecoach bus company,[60] the Commission described reasonable accommodation as the right of disabled people to live normal lives as fully integrated and empowered members of the community – except to the extent that such a right might not reasonably be able to be catered for.

International human rights law

8.11 The international human rights instruments differ from discrimination laws. They address inequality in a more collective and systemic way, recognising that inequality is often based on membership of a particular group and on that group’s position in society.[61]

The international human rights framework

8.12 The contemporary human rights framework has its origins in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948. The principles in the Declaration are given legal force through a variety of international treaties. When a State ratifies one of these treaties, it accepts that it will be bound by the terms of the treaty and guarantees its delivery domestically. In ratifying a treaty, therefore, a State recognises the international law and accepts a legal obligation to respect, protect, promote and fulfil the rights in the treaty.

8.13 The two major treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR deals with rights such as the right to freedom of expression, the right to justice, and what are termed “physical integrity rights” – for example, the right to life and the right not to be subjected to torture. The ICESCR addresses rights such as the right to work, housing and food. Both require the relevant rights to be applied without discrimination.

8.14 The rights in the ICCPR are absolute and take effect as soon as a State ratifies the Covenant. As the rights in the ICECSR require significant financial commitment, a State undertakes to provide the rights progressively, depending on the resources available. To ensure that this is not used to avoid compliance, States must demonstrate that they have made every effort to use the resources at their disposal to satisfy at least their minimum obligations. A State cannot commit itself to the Covenant and then indefinitely delay taking steps to satisfying its commitments.

8.15 Transport is not explicitly mentioned in the major international instruments, but it is implicit in rights such as the rights to education, work and health. For example, Article 12(d) of the ICESCR refers to “the creation of conditions which would assure to all medical service and medical attention in the event of sickness”. This clearly assumes that people will have the means to access the relevant services. Transport can therefore be seen as integral not only to the right to health, but as a major contributor to the ability to access and exercise all the rights guaranteed under the human rights treaties.

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8.16 More recent treaties, such as the Convention on the Rights of the Child, specifically refer to the importance of taking the needs of disabled children into account to ensure (inter alia) that they have effective access to education, health care, preparation for employment and recreation, in a manner conducive to the fullest possible social integration and individual development.[62] A specific treaty addressing the rights of disabled people is currently under consideration by an Ad Hoc UN Committee.[63] The treaty would promote a just and inclusive society, requiring signatories to take appropriate measures to ensure accessibility for disabled people, allowing them to live independently and participate fully in all areas of life. This would include developing and remodelling public transportation.

Interpretation of the treaties

8.17 The performance of States once they have ratified a treaty is reviewed by a UN Committee of Experts. In addition to reporting on how States have implemented their international commitments, the Expert Committees draft general comments based on their experience, which are recognised as the most authoritative legal interpretation of a treaty.

8.18 In 1994, the UN Committee on Economic, Social and Cultural Rights issued a general comment clarifying the nature of States’ obligations to disabled people in relation to the ICESCR. Starting from the premise that the UN Declaration recognises that all human beings are born free and equal in dignity and rights, and recognising that the ICESCR applies fully to “all members of society”, the Committee stated that people with disabilities are not only entitled to the full range of rights in the Covenant, but:

“… insofar as special treatment is necessary, States parties are required to take appropriate measures, to the maximum extent of their available resources, to enable such persons to overcome any disadvantages, in terms of the rights specified in the Covenant, flowing from their disability.”[64]

8.19 The comment goes on to note that the effect of market driven policies makes it important that the regulation of both public and private spheres of activity is equitable and, given the increasing privatisation of public services, it is essential that “non-public entities [are] subject to both non-discrimination and equality norms in relation to persons with disabilities”. It also notes that the effects of discrimination for disabled people have been particularly severe in the fields of education, employment, housing, transport, cultural life and access to public places and services, and that:

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“… the failure of Governments to ensure that modes of transport are accessible to persons with disabilities greatly reduces the chances of such persons finding suitable, integrated jobs, taking advantage of educational and vocational training, or commuting to facilities of all types. Indeed, the provision of access to appropriate, and where necessary, specially tailored forms of transportation, is crucial to the realisation by persons with disabilities of virtually all the rights recognized in the Covenant.”

Other international standards

8.20 There are also a large number of United Nations resolutions and declarations that are not binding in the same way as the treaties, but which establish standards of behaviour and practice. These standards can acquire significant status as a result of their moral force and specific application. This is particularly the case where they apply to groups such as disabled people who are not the subject of a specific convention.

8.21 Among the major outcomes of the Decade of Disabled Persons was the adoption by the General Assembly of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993.[65] The Rules reinforce the importance of an accessible environment, and recommend that States remove obstacles to participation and ensure accessibility to public transport.

A human rights approach to policy

8.22 Over recent years, the United Nations has also identified an approach which provides a useful conceptual base for analysing the human rights implications of policy and practice.[66] A human rights approach has particular relevance to this Inquiry. For example, a familiar theme during the Inquiry process was the degree to which disabled people felt shut out of the decision-making process at every level of transport planning. Positive suggestions came from advocates and providers about how the voices and views of disabled people could be effectively integrated into transport planning to improve the accessible journey.

8.23 The elements of a human rights approach emphasise:

Does the present provision of transport discriminate against disabled people?

8.24 The provision of public transport is complex. Responsibility rests with central government, which sets the legal framework, establishes policy, and funds aspects of it; with regional government, which also partially funds and is accountable for implementing the legislation; with local councils, which have responsibility for the infrastructure; and with the actual providers.

8.25 During the Inquiry, it became clear that while there is general acceptance of the importance of the accessible journey, there is no comprehensive approach to implementation and accountability. The result is that the accessible journey is unattainable for many disabled people. As the effect is to greatly reduce their ability to participate in areas of life, such as education and employment, that most people accept as their right, access to transport can be seen as a human rights issue.

8.26 It is difficult to attribute fault to any particular part of the system. It is the system as a whole that is the problem. The Commission therefore considers that the manner in which public transport is currently provided and regulated in New Zealand arguably amounts to systemic discrimination against disabled people.

8.27 The term is used to describe discrimination that is widespread, persistent, and entrenches inequality. It also applies to situations where legislation, policies, practices or organisational structures – often unintentionally – enshrine discrimination. Systemic discrimination may involve allegations of a pattern of violations or a systemic failure to protect the rights of a group of individuals.[67]

Why the Commission reached this conclusion

8.28 In reaching the conclusion that the present provision of public land transport discriminates in many respects against disabled people, the Commission was guided by the human rights standards in the international instruments and commentaries which emphasise the importance of equal participation and non-discrimination, and the New Zealand laws which make it illegal to discriminate in the provision of goods and services and access to public places and vehicles – albeit with qualifications.

Central government

8.29 Central government sets the legal framework and determines the policy which applies to the provision of transport. Both the New Zealand Disability Strategy (2001) and the New Zealand Transport Strategy (2002) include objectives and actions intended to ensure accessible transport for disabled people. They fit together with other related strategies such as the New Zealand Positive Ageing Strategy (2001).

8.30 The New Zealand Disability Strategy has explicit actions involving the phasing out of inaccessible public transport and the development of an accessible, connected system. The New Zealand Transport Strategy sets out a vision of an affordable, integrated, safe, responsive and sustainable transport system by 2010.

8.31 The two strategies involve a whole of government approach and demonstrate a high-level strategic direction for legislation, policy and practice. In the report Human Rights in New Zealand Today – Ngā Tika Tangata o te Motu, one of the positive conclusions was the strong support from New Zealanders for the development of the New Zealand Disability Strategy. However, the report also noted that a strengthening of commitment to implementation, resourcing and evaluation of the strategy was needed to ensure its success. Strategies are valuable as catalysts, to promote shared understanding and provide tangible evidence of broad government commitment to community progress and wellbeing. However, their success depends on moving from aspirational language to clear, achievable objectives with specific timelines, accompanied by valid implementation and accountability mechanisms.

8.32 One way a State’s commitment to its international obligations is measured is in how it develops policy. A human rights approach to policy stresses the moral importance of the interests at stake, emphasising the priority they should be accorded in the allocation of resources, the status of the rights holder, and the prescriptive (as opposed to the merely aspirational) nature of the duties imposed on the State with respect to realisation.[68]

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8.33 The way in which existing public land transport policies are formulated and how they are currently implemented fails to ensure that disabled people are able to enjoy rights equally with other members of the community. This is inconsistent with the principles of non-discrimination and participation that are central to a human rights approach.

Regional councils and local authorities

8.34 A combination of laws applies to the provision of public transport. These are discussed in some detail in Chapter 6.

8.35 The legislative regime – which includes the Transport Services Licensing Act 1989 (TSLA), the Land Transport Management Act 2003 (LTMA), the Land Transport Act 1998 (LTA) and the Local Government Act 2002 (LGA) – devolves responsibility for planning to regional councils. Local authorities have both planning and funding responsibilities. However, there is no comprehensive approach to implementation and accountability in relation to disabled people. For example, while “access and mobility” is one of the five legislative pillars underpinning transport policy, without specific definition of these terms they can, and have been, interpreted without specific reference to disabled people.

8.36 Even though both the TSLA and LTMA require the needs of the “transport disadvantaged” to be taken into account, and both the LGA and the LTA require consultation with affected communities, disabled people are not always consulted, nor are their views taken into account, in planning the provision of public transport. At present the needs of disabled passengers are seldom considered as a core requirement in planning, funding and implementation. When they are considered, it is often as a special need after the key decisions have been made. Again, this is incompatible with a human rights approach, which stresses participation in decision-making and emphasises the importance of linking decision-making at every level to human rights norms.

8.37 In addition to planning and allocating funding, regional councils contract for the provision of services and provide information about timetables. Local authorities have responsibility for infrastructure and premises, including roads, footpaths, intersections and kerbs, bus stops, bus shelters and land transport hubs and terminals. In terms of the accessible journey, local bodies therefore effectively determine whether a disabled person is able to get to their ultimate destination.

8.38 While the Commission recognises that a local council or regional authority cannot be compelled to deploy its funding in a particular way, where a council or authority is accorded a statutory discretion in deciding, for example, how a service will be provided,[69] there is an assumption that the discretion will be exercised in a manner consistent with the rights and freedoms in the Bill of Rights.[70] Accordingly, regional councils and local authorities should take into account the views and requirements of all their constituents when providing a public service. If they omit to take into account the needs of a specific group such as disabled people, this could arguably amount to discrimination in terms of Part 1A of the Human Rights Act.

Transport providers and operators

8.39 The Land Transport Act requires regional councils to prepare a Regional Land Transport Strategy to ensure an integrated, safe transport system is provided for the region. Services may be provided through direct contracts with a council or by commercial enterprises. All services must be registered with the council. While councils can refuse to register a commercial service, inaccessibility by itself is not a reason for declining registration. Accessibility can, however, be specified by councils as a contractual requirement. Both commercial and contracted service providers may be held responsible under the Human Rights Act for providing an inaccessible service.

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8.40 The Inquiry complements the Commission’s complaints process. While issues that were raised during the Inquiry will not be addressed as complaints, this does not mean that similar matters may not be the subject of complaint in the future. Disabled people have become more strategic in how they make complaints and the Inquiry has heightened awareness of how to use the law.

Direct discrimination

8.41 Part 2 of the Human Rights Act makes it illegal to discriminate against disabled people in certain areas, including provision of services and access to public places, vehicles and facilities. Discrimination may be either direct or indirect. Direct discrimination can mean treating someone differently when they should be treated the same or the same when they should be treated differently. Indirect discrimination renders practices unlawful which are apparently non-discriminatory but which, in fact, have a disproportionately adverse effect on one of the groups on which it is unlawful to discriminate.[71]

8.42 Refusing a disabled person access to a public place, vehicle or facility will amount to discrimination under section 42, while failing to provide a service or treating a person less favourably in the provision of a service because of their disability is unlawful under section 44. Avoiding discrimination against disabled people will require not only treating them equally, but taking steps to ensure they have equal access to a service. If a person with a mobility impairment is unable to access a bus or, having boarded it, finds there is no provision to fasten his/her wheelchair to stop it slipping, or a person with vision impairment is unable to read a timetable, then this could be said to constitute discrimination in the provision of goods and services, as either refusing to provide the service or providing it on less favourable terms.

8.43 There are exceptions to both sections 42 and 44. Discrimination is permitted if a person’s disability requires a service or access to be provided in a special manner and it would be unreasonable to require the provision of such special services or facilities.[72] A disabled person may also be discriminated against if there is a risk that their disability could cause harm to themselves or others and it would not be reasonable to take that risk.[73] This exception does not apply if it is possible to take reasonable measures to reduce the risk to a normal level without unreasonable disruption.[74]

8.44 While there is little specific guidance to interpretation, as a general principle, exceptions to human rights law are narrowly interpreted. This is because they have the effect of restricting laws that are the “final refuge of the disadvantaged and disenfranchised” and the “last protection of the most vulnerable members of society.”[75] If a provider chooses to rely on the exceptions in sections 43(2) or 52, claiming that it is not reasonable to provide the necessary changes, it must provide convincing evidence to support this.

8.45 In an earlier complaint by a group of disabled people involving access to public transport,[76] the Commission considered that the combined effect of sections 44 and 52 introduced the concept of reasonable accommodation into the provision of goods and services.[77] It concluded that service providers had an obligation to accommodate the requirements of disabled people unless it was not reasonable for them to do so. In deciding what amounted to “reasonable”, the Commission referred to an Australian case, Waters & Ors v the Public Transport Corporation.[78] In that case, the High Court of Australia said that what was reasonable was a question of fact, to be determined by taking into account “all the circumstances of the case”, including the size of the operation, the available alternatives, the cost of providing the services required, and the conduct of the service provider.

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8.46 The fact that the service which the complainants sought to access was a public service used daily by thousands in the city was considered significant by the Commission, and influenced its decision that the company had not discharged the burden of establishing the exception in section 52. The Commission concluded that, “to the extent that the complainants required the service to be provided in a special manner, it was reasonable to require the operator to provide the service in that special manner”.

Indirect discrimination

8.47 The Human Rights Act also applies where people are treated the same, but the effect is to disadvantage or exclude a group of people against whom it is unlawful to discriminate. That is, the situation is said to give rise to indirect discrimination. While indirect discrimination is conceptually complex,[79] it is also a powerful way of challenging situations which disadvantage or exclude disabled people.

8.48 In some cases, a practice will give rise to both direct and indirect discrimination. In the Stagecoach case, the company’s buses were inaccessible to people in wheelchairs. Providing a service to the public using inaccessible vehicles meant that people in wheelchairs were discriminated against directly, because they were treated less favourably than people who did not use a wheelchair. However, as a group they were also discriminated against indirectly, because they were expected to use a service which imposed a condition that they found difficult, if not impossible, to comply with.

8.49 The conduct or condition giving rise to indirect discrimination will not be considered unlawful if a good reason can be established. Good reason should not be confused with reasonableness. To establish “good reason”, the condition or practice complained of must be justified by factors unrelated to any prohibited ground, there must be an objective balance between the discriminatory effects and the (reasonable) needs of the defendant, and the condition must be the least discriminatory way of achieving the objective.[80]

8.50 The following example demonstrates how indirect discrimination can occur and how the “good reason” defence might apply. People with visual impairments told the Inquiry that their ability to access services was significantly affected by the difficulty they experienced in reading timetables and signage on buses. The number of people affected is potentially significant.

8.51 Although providers could argue that they were providing the same service to everyone, clearly the way in which services are identified and provided is likely to impact disproportionately on people with visual impairments. It could therefore be argued that disabled people are indirectly discriminated against.

8.52 It is difficult to see how a provider could successfully argue a defence of good reason in such a case. Not only is the impact on service users considerably greater than the provider’s need to supply the service in the way it does, but the problems can be addressed in a way that would not discriminate against people with visual impairment, for example, by placing signs in a position (such as the side of the bus) where they are more easily read, or providing timetables in Braille or large print.

8.53 The limited case law available suggests that a high standard is necessary to support the defence of good reason. Commercial expediency will not be enough. For example, under the Human Rights Commission Act 1977, the Tribunal in Air New Zealand[81] quoted overseas cases and stated that a discriminatory effect could only be justified if it were for the need, not the convenience, of the business concerned. In the North Health case,[82] Cartwright J held that the emphasis should be on necessity, not convenience or cost savings.

Summary of how the Commission views the legal position

8.54 There are many positive aspects of the present system. There is a wide definition of disability in the Human Rights Act, and statutory recognition of the need to address the requirements of affected communities. There is evidence of strong commitment to the New Zealand Disability Strategy and to the New Zealand Transport Strategy. At all levels, there are positive indications of a commitment to the concept of the accessible journey.

8.55 Despite these positive aspects, the public transport system still discriminates against disabled people in many respects. While no one individual or sector can be held fully responsible, central, regional and local councils and those more directly responsible for the provision of services are all vulnerable to complaints of discrimination. The Commission considers, however, that it is possible to modify, or even eliminate, the risks.

8.56 If disabled people are to fully realise their human rights outlined in the major international instruments, the provision of accessible public land transport is fundamental. A human rights approach to formulating policy is therefore not only appropriate, but essential, and the flow-on effect would be reflected in improved implementation of policy at regional and local level.

8.57 In relation to the provision of services and the maintenance and development of the infrastructure which creates barriers for disabled people, the Commission considers that attempts should be made to reasonably accommodate their needs by eliminating those barriers. At present, there is a continuing risk for those responsible if the situation is not addressed.

8.58 Under the Human Rights Act, it is unlawful to refuse disabled people access to a public place, vehicle or facility or to fail to provide them with services or provide services on less favourable terms. The Act provides certain limited exceptions if the necessary changes are unreasonable or it is too onerous or disruptive to provide them.

8.59 The question, therefore, is whether it is unreasonable to expect regional and local councils and service providers to eliminate the barriers to ensuring that disabled people can access public transport at all levels. The Commission considers that, consistent with the concept of reasonable accommodation, councils and providers should address the needs of disabled people within a reasonable time frame.

8.60 While indirect discrimination is more complex than direct discrimination, it also covers more ground, since it deals with apparently neutral practices and requirements.[83] The defence of good reason may seem to provide an exception, but regulatory bodies and providers will not always find it easy to rely on this defence. This is not only because it has been interpreted as involving a high standard, but also because the person or body responsible for the discrimination needs to have made a genuine attempt to identify less discriminatory alternatives. The Commission considers that less discriminatory options are available for most of the barriers identified.

8.61 The Commission considers that the accessible journey is critical because it dictates whether disabled people are able to access other fundamental rights, such as the ability to work, obtain an education, participate in the community and socialise. Without a transport system that is not only accessible, but also available, affordable and acceptable to them, disabled people are prevented from living a full and inclusive life, in contravention of their human rights.