Background and update on the Convention - December 2008

New Zealand ratified the United Nations Convention on the Rights of Persons with Disabilities (the Convention) on 26 September 2008. The government is now required to implement its provisions. We have demonstrated international leadership with the Convention during its negotiations, and there is an expectation amongst other States and NGOs that we will take a lead role in putting it into action. Partnership with disabled people’s organisations is critical to honouring the spirit of the Convention in its implementation, promotion and monitoring.

Background

The Convention is the first international human rights treaty of the 21st century, and entered into force in May 2008. It does not create new rights for disabled people. Instead, it builds on conventional understandings of what is required to implement existing human rights as they relate to disabled people. These rights are laid out in other treaties (which New Zealand has also ratified), particularly the International Covenant on Civil and Political Rights and the International Covenant on Economic, Cultural and Social Rights.

While these other treaties cover everyone's enjoyment of human rights, the reality for disabled people is quite different. At the end of the 1990s, statistics  compiled by the United Nations showed that disabled people were often denied the rights enjoyed by others. As a consequence, they experienced multiple disadvantages in many aspects of daily life, and were often States' most marginalised and vulnerable population group.

In New Zealand, one in five people report having an impairment (or disabilities). Disabled New Zealanders typically have lower employment rates, lower incomes, lower education attainment, and more unmet health needs than non-disabled people (from the 2001 and 2006 Post Census Disability Survey).

The Convention was developed to overcome these disadvantages and inequities. These often resulted from discrimination on the basis of disability and the invisibility of disabled people in government policy and services.

The Convention describes measures and actions that States should undertake to ensure that disabled people are able to enjoy rights and opportunities on an equal basis with others. It does not provide any more rights than non-disabled people enjoy. However, sometimes extra or different things are needed to enable disabled people to reach the same level of enjoyment, and have an opportunity to live a good life.

Negotiating the Convention

In July 2002, the Office for Disability Issues was established within the Ministry of Social Development to provide a dedicated focus in government on disability. Our core role is to promote and monitor implementation of the New Zealand Disability Strategy, lead and provide advice on policy impacting on disabled people, and support the Minister for Disability Issues.

It was about this time that the United Nations started considering the need for a new treaty focusing on disabled people. At first, the United Nations did not think this was needed, as existing human rights instruments should already apply. Another treaty was therefore thought to be unnecessary.

However, research commissioned by the United Nations human rights agency and lobbying by international NGOs changed this view. As noted above, research shows that the existing human rights treaties failed to protect disabled people.

In 2003, the United Nations formally decided to start negotiating a new treaty. New Zealand was represented at this meeting and all subsequent meetings as the treaty text was developed. 

New Zealand showed leadership in its commitment to partnership with disabled people by including disabled people's representatives in our official delegations in the negotiations. After demonstrating the value of this approach, many other States followed. The active involvement of disabled people's organisations was a first for the United Nations. 

The participation of the disabled delegates meant that government officials were constantly faced with the reality of disability. This helped to avoid political distractions that often delay such United Nations negotiations.

The practical approach that the Convention takes is a direct reflection of this involvement of disabled people. The fact that the Convention was negotiated in only four years was another achievement. Usually, they can take much longer. 

In 2005, New Zealand was elected to chair the United Nations committee that was leading negotiations on the Convention. This was a significant achievement and marked the recognition by other States of our leadership role. This position was held by the then Permanent Representative to the United Nations, Don Mackay.

The Convention was formally adopted by the United Nations General Assembly in December 2006. New Zealand signed in March 2007, along with 80 other States. This was the largest number to sign a human rights treaty on the same day.

New Zealand traditionally has a high standard to meet before treaties are ratified. In August 2007, the Office for Disability Issues initiated a whole of government process to check for any inconsistencies of domestic legislation or policy with the Convention. The results of this checking were presented to Cabinet in May 2008.

While policy was considered to be largely in line with the Convention, some legislation was identified as needing amendment to remove inconsistencies. The Disability Bill 2008 provided for these changes. It also clarified some provisions in the Human Rights Act 1993 regarding reasonable accommodation for disabled people. 

In September 2008, Parliament unanimously passed the Disability Bill. Following its Royal Assent, New Zealand was able to ratify the Convention on 26 September.

What the Convention says

Generally, States need to take action to remove barriers to the participation of disabled people in society. This is done through legislation, policy, and other measures.

Many of the Convention articles interweave civil and political rights (such as non-discrimination or access to justice) which must be immediately realised at the time of ratification, and economic, social and cultural rights (such as the right to the highest attainable standard of health or accessible transport services), which may be realised progressively, to the maximum of available resources.

Where rights can be progressively implemented, it is up to the government to decide how quickly and to what degree the implementation will happen, so long as there is a clear and concrete commitment that action will happen to the maximum of its available resources.

This process is similar to the current implementation of the New Zealand Disability Strategy, where any costs are met by government agencies' ordinary funding processes, whether by internal resource allocation or budget bids, and implementation is subject to obtaining the resources needed.

Many rights are interdependent. Some articles describe action that may be a means to achieve an outcome but which is not an end in itself. For example, personal mobility (article 20) requires access to buildings and transport services (article 9), as well as other supports to enable someone to enjoy independent living and being included in the community (article 19).

At a minimum, States should not do anything that restricts the freedom or liberty of disabled people. States need to ensure that disabled people enjoy full rights of citizenship, on an equal basis with others. States should also ensure mainstream goods and services are provided in a non-discriminatory way. 

Article 3 outlines principles that guide the rights presented in the Convention. These are:
(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons
(b) non-discrimination
(c) full and effective participation and inclusion in society
(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
(e) equality of opportunity
(f) accessibility
(g) equality between men and women
(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Accessibility has an article in its own right (article 9), as well as being an overarching principle. This article requires States to ensure that disabled people can access their built environment, transportations, public facilities, supports, services and communication technologies (websites, print publications). Accessibility is made explicit in other articles too, as it can be necessary before a right can be exercised, such as voting.

Reasonable accommodation is a key concept in the Convention. It is explicitly mentioned in articles 14 (liberty and security of the person), 24 (education), and 27 (employment). Reasonable accommodation is described (in article 2) as "necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms". 

The Convention includes in its description of discrimination the denial of reasonable accommodation (in article 2), and says that "State parties shall take all appropriate steps to ensure that reasonable accommodation is provided" (article 5). This sets up a means for States to take more proactive or positive action to promote the participation and inclusion of disabled people. 

Reasonable accommodation, by its nature, is tailored to individual circumstances and should not create new or additional disadvantage (or burden) to those being asked to provide the accommodation. 

Access to transport and personal mobility are described in article 9 (accessibility) and article 20 (personal mobility), and are required to fulfil other rights such as article 19 (living independently and being included in the community). 

The provision of disability supports is described in several articles (9, 19, 20, 21, 24, 30, 31). Access to appropriate supports is sometimes required for the enjoyment of other rights, such as in articles 25 (health), or 27 (work and employment).

Participation in cultural life, recreation, leisure and sport (article 30) describes equal access for disabled people, as a necessary part of having an ordinary life and being included in society on an equal basis with others. 

The right to education is described in article 24 as the right to access an inclusive education system at all levels and life long learning. This includes compulsory education, tertiary education and vocational training opportunities.

Article 25, on health, requires States to ensure access for disabled people to the same quality and range of health services as others, but also to those services needed specifically because of their impairments.

A range of comprehensive measures (such as health, employment, education, and other social services) are promoted in article 26 (habilitation and rehabilitation) to support disabled people to attain and maintain their maximum independence and participation in all aspects of life. 

Ensuring that disabled people are guaranteed an adequate standard of living, including things like income, food, clothing and housing, and other basic necessities of life (such as clean water) is described in article 28.

Work and employment is described in article 27 as a right to earn a living in the open labour market without experiencing discrimination on the basis of disability. Critical to making this happen are the provision of reasonable accommodations, being responsive to accessibility needs, and access to appropriate supports.

The collection of data will inform monitoring of progress in realising the rights of the Convention. Collecting and publishing data on disabled people is covered in article 31, and is an important part of promoting the visibility of disabled people in society. 

Other articles address discrimination experienced by disabled people on the basis of their impairment (articles 5, 6, 7, 8, 23). Negative social attitudes can prevent disabled people from participating in society as much as any physical barrier. 

The Convention acknowledges that women (article 6) and children (article 7) can experience discrimination on other grounds in addition to that of disability, and require extra attention to ensure they enjoy rights on the same basis with others.

What the Convention will do

Despite the significant progress achieved through the New Zealand Disability Strategy, there remain many barriers experienced by disabled people in New Zealand that prevent their full participation in society.

The Convention will provide a new impetus and practical focus to removing these barriers. It will reinvigorate activity to implement the New Zealand Disability Strategy and the commitment to ensuring full rights of citizenship for disabled people. 

All new legislation and policy will need to be consistent with the Convention, or New Zealand will be in breach of its obligations and subject to criticism by the United Nations Committee on the Rights of Persons with Disabilities.

Government agencies will find the specific measures of the Convention useful to analyse and improve, where necessary, the current mechanisms for implementing policy that impacts on disabled people. It will also help to ensure that mainstream services are inclusive of disabled people and delivered in non-discriminatory ways.

Like the New Zealand Disability Strategy, the Convention covers all areas of life, all ages and life stages. In doing so, it has obligations on government and the private sector. However, it is the government that is accountable to the United Nations, and government agencies need to take leadership in encouraging action by the private sector.

As an international legal framework, the Convention is able to be referred to by Courts in their decision making, where appropriate.

Current status

After ratifying the Convention on 26 September 2008, we are now required to implement the Conventions obligations. While we are largely consistent with it, there is work needing to be done so that New Zealand progressively meets commitments for those economic, cultural and social rights that can be realised over time.

Our first report on implementation is due in 2010, and thereafter every 4 years. The report is considered by the United Nations Committee on the Rights of Persons with Disabilities. This Committee was elected at the first Conference of State Parties on 3 November 2008. It is made up of people with knowledge and expertise in disability issues and the Convention. 

New Zealand has been elected to the Conference of State Parties President's bureau. This is a committee that supports the running of the Conferences and will enable New Zealand to continue its leadership role.

National monitoring framework

Article 33 requires a focal point in government with responsibility for implementation of the Convention and facilitating action. It further says that States should maintain, strengthen, designate or establish a framework, including one or more independent mechanisms to promote, protect and monitor implementation of the Convention. It requires civil society (principally disabled people's organisations) to participate in the monitoring process.

Article 35 requires reporting by State parties to the United Nations committee set up under the Convention. The first report is due two years after the Convention enters into force for New Zealand (that is 2010), and then at least every four years thereafter. 

The Office for Disability Issues has been the government focal point on disability since its establishment in 2002. The Office currently acts as the national focal point on the Convention to implement article 33.

The Office is developing options for the framework. There has been some consultation with disabled people's organisation already. We will report to the Minister for Disability Issues in March 2009 on this matter.

We anticipate that reporting on New Zealand's implementation will follow a similar process to that used for other United Nations' human rights treaties that New Zealand has ratified.