Action - Identify legislation not consistent with UN Convention

Action 9 F: Undertake a stocktake to identify any legislation that contradicts the Convention on the Rights of Persons with Disabilities and explore options to improve consistency

Lead

1       The Office for Disability Issues (ODI) and the DPO Coalition.

2       Blind Citizens NZ is the DPO Coalition lead on this action.

Background

3       This action is part of a shared result area to promote access in the community under Priority 9: Increase government services’ responsiveness to disabled people. This follows from the update of the Disability Action Plan 2015.

4       The DPO Coalition calls for legislation to be more consistent with the Convention on the Rights of Persons with Disabilities (CRPD); while acknowledging that this needs to be carried out as a phased approach due to limited resources. In the future, this may involve exploring legislative changes to introduce new measures required by the CRPD.

5       This action is considered to be a priority as the last analysis of New Zealand legislation against the CRPD was done in 2008, during preparations for the Government’s ratification of the CRPD. The legislation changes made were considered "minor and technical" and able to be made through an omnibus Bill. Most of the changes referred to a person’s status under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Changes to the Human Rights Act 1993 regarding reasonable accommodations were also made.

6       The Government noted in their response to the UN Committee on the Rights on Persons with Disabilities’ (CRPD Committee) first Concluding Observations in 2015 that this action was in the Disability Action Plan. New Zealand’s second review by the CRPD Committee will take place during 2018 - 2019. This action therefore needs to be given a priority for completion in preparation for the next review. It can help ensure New Zealand’s international obligations are met.

7       Since 2008, understanding has progressed considerably on disability issues, particularly as New Zealand has ratified the CRPD during this time. There may be differences in what is considered to contradict the CRPD in 2017 than was the case in 2008.

Purpose of the Action

8       This action will allow us to understand how much, and to what degree, New Zealand has legislation that contradicts the CRPD.

9       Once we have a clear idea of what this legislation is, and how much there is, we will explore options for next steps.

10   This action informs future action consistent with Article 4(b) of the CRPD: “To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”.

Assumptions for this Action (including what is included and excluded from the scope of this Action)

11   ODI will take a 2017 rights-based approach to this action by looking to the CRPD and Committee advice where possible.

What “legislation” means for the purposes of this action

12   We define legislation that is in scope for this work as:

12.1       New Zealand Acts and Bills (proposed Acts, which were introduced and not yet enacted at the time of the work). This includes Amendment Legislation.

13      Legislation that is out of scope includes:

13.1       Repealed and revoked legislation

13.2       Other Legislative Instruments including Supplementary Order Papers ( a type of proposed amendment to a Bill), Orders in Council, regulations, rules, notices, determinations, proclamations and warrants.

13.3       Any local government by-laws.

Method to identify a list of relevant legislation for this action

14   Within the resources available to ODI, it is not efficient or practical to look at every piece of legislation in New Zealand to discover which contradicts the CRPD therefore:

14.1       ODI will consult with relevant disability sector organisations, government agencies and individuals to identify the legislation that they think, from their experience, contradicts the CRPD. ODI will consult with the DPO Coalition organisations first. A list of relevant agencies is in Appendix 1.

14.1.1      ODI will need to consider this advice and make a decision whether we agree that the legislation contradicts the CRPD for the purposes of this action or whether it is out of scope. The DPO Coalition will have the opportunity to provide their input into the legislation that is considered in and out of scope.

14.2       ODI will consult on a list of legislation which has references to disability in it which was last updated in 2011.

14.3       ODI will ensure that any legislation identified by the CRPD Committee in New Zealand’s 2014 review is included in this list.

14.4       ODI will run a word search for phrases concerning disability in current legislation on the legislation.govt.nz website to identify other legislation directly relevant to disabled people. For a list of suggested words see Appendix 2.

15   Once we have a list of legislation, we will check whether it does contradict with the CRPD, and identify the specific CRPD article that it contradicts. We will do this by collecting information in a table (see template in Appendix 3).

16   The DPO Coalition will have an opportunity to view this table and provide their input into the analysis.

What “contradicts” means for the purposes of this action

17   This action will identify legislation that contradicts the CRPD. This means legislation that directly goes against at least one Article of the CRPD. For example, if legislation said, or had the effect that, “disabled people cannot execute a trust or get married” then this is a direct contradiction to the CRPD.

18   Examples of legislative contradictions with the CRPD include:

 

Contradiction	Example	Why this contradicts the CRPD
Legislation identifies a   person with an impairment which results in a disadvantage for them	E.g. “This Act applies only   to people with mental health issues or Blind people”.	This is discrimination   based on disability.
Legislation identifies the   status of a person with an impairment which results in a disadvantage for   them	E.g. “A person, who is subject   to a compulsory treatment for a mental health issue, cannot execute a trust.”	This links a person’s   capacity to fulfil a role according to the person’s status under the   legislation rather than assessing their actual ability to perform the   function.
Legislation   disproportionally limits or disadvantages people with an impairment in   practice compared with others even though the legislation does not directly   identify a person with an impairment.	E.g. Anti-Money Laundering   Act, where you must have two forms of identification to prove your identity   in organisations covered by the AML Act.	A requirement for photo ID   currently disadvantages those who don’t have common forms of photographic   identification to prove their identity. We know that this disproportionately   affects disabled people particularly Blind people and those with learning   disabilities. This would be a limit on   legal agency and for identification.

19   Articles can be interpreted in different ways but, if available, Articles should be read in line with General Comments from the CRPD Committee as these provide further explanation on the intent of the articles. There are currently five General Comments which refer to:

19.1       Article 6: Women and girls with disabilities

19.2       Article 9: Accessibility

19.3       Article 12: Equal recognition before the law

19.4       Article 19: Right to independent living

19.5       Article 24: Right to inclusive education

20   These General Comments can be found on the CRPD Committee website at: www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx

21   There are likely to be differing opinions of what does or does not contradict. We will try to resolve this through consultation with the relevant stakeholder. If this cannot be resolved ODI will record any differing opinions in the final advice to the DPO Coalition and Senior Officials group.

If ODI determines that the legislation contradicts the CRPD, we will evaluate whether it is justified.

22   We will need to understand what the reason is for the legislation contradicting the CRPD and whether this is justifiable based on objective reasoning. For example, is it justifiable on grounds of providing safeguards for the most vulnerable people?

What “contradicts” does not mean for the purposes of this Action

23   Legislation will not be considered to contradict the CRPD if there is an:

23.1       omission in the legislation,

23.2       outdated, offensive, or inappropriate language. (While important, this only identifies the words used rather than the intent behind the provision in the legislation), and/or

23.3       the legislation takes a wider/narrower view than what the CRPD intended.

24   This is to ensure that this action is manageable within the resources available to ODI and the DPO Coalition.

25   If such legislation is identified by stakeholders it will be outside the scope of this action. However a record will be kept, and may be used as a starting point for subsequent work. Future work may allow for a scan of wider legislation beyond statutes.

Exploring options for next steps

26   ODI and the DPO Coalition will explore options for next steps. This may include doing an evaluation exercise to determine which changes to prioritise first. For example, we may decide to focus on lobbying for amendments to one piece of legislation that has a huge impact on disabled people rather than lobbying for 10 changes.

27   To enable exploring options for next steps, ODI will need to identify the responsible agency of legislation that has contradictions. Any change to legislation would need to be agreed by the responsible agency and Ministry and likely also led by them.

28   Options for next steps could include (but is not limited to):

28.1       Doing nothing (retain the status quo).

28.2       Remedying the contradiction when the legislation is next up for review.

28.3       Amending the legislation in the next 3 years.

28.4       Engaging with the Parliamentary Counsel Office to identify where we could prevent contradictions occurring in future legislation.

29   Outside the scope of this action are:

29.1       Drafting amendments to legislation, and

29.2       Considering improving legislation that does not contradict the CRPD.

Implementation Plan

30   There are three steps to complete this action:

30.1       Identifying the legislation to check for contradictions with the CRPD;

30.2       Evaluating the legislation to check:

30.2.1      Is it in scope of the action?

30.2.2      What CRPD Article does it contradict?

30.2.3      Can the contradiction be justified?

30.3       Exploring options for next steps.

What are the timeframes for implementation?

31   Phase 1: Scope discussed/agreed by DPO Coalition and Senior Officials [19 October 2017]

32   Phase 2: Draw up a list of legislation to analyse by consulting with DPO Coalition, relevant disability sector organisations, and government agencies to identify legislation that, in their experience, contradicts the CRPD[November 2017]

33   Phase 3: Initial evaluation of whether the legislation identified contradicts the CRPD [December/ January 2018]

34   Phase 4: Engagement with key agencies to discuss initial findings [February/March 2018]

35   Phase 5: Explore options for next steps [March/April 2018]

36   Phase 6: Final report and advice to the DPO Coalition and Senior Officials [April 2018]

What resources will the lead and partners contribute?

37   ODI will provide staff time towards this work.

38   The DPO Coalition, and the lead DPO agency Blind Citizens NZ will provide time towards this work.

What governance arrangements are in place for this project?

39   Oversight of this project will be provided by:

39.1       Brian Coffey, Director, ODI

39.2       Rose Wilkinson, Blind Citizens NZ, DPO Coalition

40   Decisions on this action will be directed to the Disability Action Plan governance: the DPO Coalition and Senior Officials.

Reporting – key milestones/deliverables

41   Regular updates provided through the Disability Action Plan progress report.

42   A list of legislation produced [November 2017]

43   Initial evaluation of legislation complete [December/January 2018]

44   Engagement with key agencies to discuss initial findings [February/March 2018]

45   Options for next steps explored [March/April 2018]

46   Report to DPO Coalition and Senior Officials group on options to remedy contradictions [April 2018]

Risks

Risks	Mitigation
There is a risk that other   legislation that contradicts with the CRPD is missed in the identifying the   legislation stage.	There may be opportunity for   future legislation checks to be made under the Disability Action Plan where   resources allow, which could identify anything missed in the current work.
There is a risk that by   doing this stocktake, there are high expectations that amendments will be   made to legislation, in a timely manner, and that this will not be taken up   by government agencies due to resources and/or different priorities for   action.	Communications on this   action will be clear that this work is about identifying any contradictions in   legislation, and exploring options to remedy the contradiction. But that   changes are outside the scope of this action.

Impact – what are we trying to achieve?

47   How will we know if the action has achieved the intended result/outcomes?

47.1       We will have a shared understanding of a 2017 rights-based approach of what New Zealand legislation contradicts the CRPD.

48   How will these indicators be measured or evaluated?

48.1       A report will be produced, and jointly agreed between DPO Coalition and Senior Officials that summarises the issues. The report will include options for remedying contradictions in legislation where problems have been identified.

Evidence base

49   Documents from the government’s preparation for ratification of the CRPD in 2008 will be used as a starting point to this action.

50   There is support for a further analysis of New Zealand legislation in line with the CRPD in academic texts such as:

50.1       The Convention on the Rights of Disabled Persons: A Remaining Dilemma for New Zealand? Sylvia Bell, Judy McGregor and Margaret Wilson (www.victoria.ac.nz/law/centres/nzcpl/publications/nz-journal-of-public-and-international-law/previous-issues/volume-132,-december-2015/Bell.pdf )

50.2       2017 Ministry of Health exploration of Mental Health Act relation to the CRPD and NZBORA.

50.3       Diesfeld, K. (2013) Compulsory Care, Rehabilitation and Risk: the Expected and Unexpected Issues raised by New Zealand's Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. In McSheery, B. & Freckleton, I (ed), Coercive Care: Rights, Law and Policy (pp. 241-257). Published by Routledge Milton Park, Abigndon, Oxon, England.

Related work

51   Actions that relate to this action explicitly include:

51.1       Action 2B: Building on work in action 2(a), identify better alternatives so that the Minimum Wage Exemption (MWE) process can be removed.

51.2       Action 7A: Ensure disabled people can exercise their legal capacity, including through recognition of supported decision making.

51.3       Action 7B: Explore the framework that protects the bodily integrity of disabled children and disabled adults against non-therapeutic medical procedures, including the issue of consent. This action will focus initially on options to protect against non-therapeutic sterilisation without the fully informed consent of the individual.

51.4       Action 8 A: Review the current care and support processes for disabled children who are (or are likely to be) subject to care under the Children, Young Persons and Their Families Act 1989 to establish whether they are being treated equitably and fairly, and in their best interests and, if not, to provide advice on changes needed to legislation, operational policy, operational delivery and/or monitoring and enforcement.

51.5       Action 9D: Explore how the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act) relates to the New Zealand Bill of Rights Act 1990 (NZBoRA) and the CRPD.

Appendix 1 – relevant agencies

1       Suggestions of stakeholders to contact to identify legislation include:

1.1 DPO coalition organisations

1.2 Human Rights Commission

1.3 Office of the Ombudsman

1.4 IHC New Zealand

1.5 CCS Disability Action

1.6 New Zealand Disability Support Network

1.7 Ministry of Education

1.8 Ministry of Social Development

1.9 Ministry of Health

1.10       Donald Beasley Institute

1.11       Complex Carers

1.12       Auckland Disability Law

1.13       Blind Foundation

1.14       National Foundation for the Deaf

2       Others to be identified.        

Appendix 2 - list of key words to look for in legislation when finding inconsistencies

1       How disabled people might be referred to in legislation, both as groups and by individual impairments:

1.1 Mental – mental, mental disorder

1.2 Physical - physical disorder,

1.3 Psychological, psychiatric

1.4 Blind – sight, vision, visual

1.5 Impair - impaired, impairment

1.6 Disabl - disabled, disabilities, disability

1.7 Handicapped

1.8 Special

1.9 Subnormal, abnormal

1.10       Intellectual

1.11       Incapacity, incompetence, competent, capacity

1.12       Deaf - hearing

1.13       Epilepsy

1.14       Disadvantage

1.15       Vulnerable

1.16       Insanity

1.17       Unsound mind

1.18       Welfare guardian

1.19       Property manager

1.20       Enduring power of attorney

1.21       Personal order

1.22       Invalid

1.23       Cripple

1.24       Retard – retardation, retarded

2       This is not an exhaustive list.