Disability Legislation Understanding our Obligations and Rights

What we need to consider in decision making and provision of services International Conventions (that NZ have ratified) (Indirectly) • UN Convention on the Rights of Persons with Disabilities NZ legislation (Directly) • Human Rights Act & NZ Bill of Rights Act • OSH • NZ Sign Language Bill NZ Legislation (Indirectly) • Public Health and Disability Act • ACC NZ Codes of Practice and Guidelines (Directly) • Achieve • NZ Disability Strategy EIT Policy (Directly)

What does the Human Rights Act and OSH have to do with me? Let’s start at the end, not the beginning … • • Human Rights and OSH complaints used to be against organisations ONLY Human Rights and OSH complaints can now be made against individuals and organisations This means YOU need to know your obligations and your rights.

What is the Human Rights Act about? The Human Rights Act is about protection from discrimination. It’s intention is to ensure that people receive fair treatment. Discrimination is about unfairness, and can be: Direct Lawful Indirect Unlawful

Unlawful DIRECT Discrimination Direct Discrimination happens when someone is treated less favourably than others in the same or similar circumstances. • A man is refused entry to a massage course • A person on a benefit is refused a bank account Direct Discrimination can also occur if a condition is imposed which, although the same for everyone, unfairly disadvantages some people. • A student with schizophrenia is denied entry into a course • Setting a compulsory meeting time outside of normal work hours when some employees have school aged children

Unlawful INDIRECT Discrimination Indirect discrimination occurs when an action or policy appears to treat everyone in the same way, but actually has a discriminatory effect on a person or group on one of the grounds in the Act – unless there is good reason for the action or policy. (Human Rights Act, from the Human Rights Commission website www. hrc. govt. nz) Examples: • • Allowing a man entry into the massage course but not providing private changing rooms for female clinic clients A rule that a bank account can only be opened with a $100 deposit

Grounds of Unlawful Discrimination 1. Sex (gender) This includes pregnancy and childbirth. 2. Marital status This means being single; married; in a civil union or in a de facto relationship; the surviving spouse of a marriage or the surviving partner of a civil union or de facto relationship; separated from a spouse or civil union partner; a party to a marriage or civil union that is now dissolved, or to a de facto relationship that is now ended. 3. Religious belief This ground is not limited to traditional or mainstream religions as religious belief is given a broad meaning in New Zealand law. 4. Ethical belief This means not having a religious belief. 5. Colour, race, or ethnic or national origins This includes nationality or citizenship.

Grounds of Unlawful Discrimination 6. Disability This means: • physical disability or impairment • physical or 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 • the presence in the body of organisms capable of causing illness (like HIV or hepatitis). 7. Age People are protected from discrimination based on their age if they are 16 or over. Although children and young people (those 15 yrs and under) are protected from discrimination on other grounds such as disability, they are not protected from discrimination on the grounds of age. 8. Political opinion This means any political opinion and includes not having a political opinion.

Grounds of Unlawful Discrimination 9. Employment status This means being unemployed, being on a benefit or being on accident compensation (ACC). It does not include being employed or being on national superannuation. 10. Family status This means being responsible for children or other dependants (part-time or full-time); not being responsible for children or other dependants; being married to, or in a civil union, or in a de facto relationship with a particular person; or being a relative of a particular person. 11. Sexual orientation This means being heterosexual, homosexual, lesbian or bisexual. These grounds apply to a person’s past, present or assumed circumstances. For example: It is unlawful to discriminate against someone because they have a mental illness, had a mental illness in the past, or are incorrectly assumed to have a mental illness.

Areas in Public Life Employment The hiring and firing of employees and contractors, treatment while employed, and contracts Education Student applications, treatment received while a student Access to public places, vehicles and facilities Shopping centres, cinemas, etc Provision of goods and services For example: health services, commercial services Housing and accommodation Business and residential Advertising Special measures (also known as affirmative action) are not considered to be discrimination if they are undertaken: • In good faith • For the purpose of assisting disadvantaged groups to achieve equality.

57 Educational establishments (1) It shall be unlawful for an educational establishment, or the authority responsible for the control of an educational establishment, or any person concerned in the management of an educational establishment or in teaching at an educational establishment, — (a) to refuse or fail to admit a person as a pupil or student; or (b) to admit a person as a pupil or a student on less favourable terms and conditions than would otherwise be made available; or (c) to deny or restrict access to any benefits or services provided by the establishment; or (d) to exclude a person as a pupil or a student or subject him or her to any other detriment, — by reason of any of the prohibited grounds of discrimination. (2) In this section educational establishment includes an establishment offering any form of training or instruction and an educational establishment under the control of an organisation or association referred to in section 40. Compare: 1977 No 49 s 26(1), (3)

60 Further exceptions in relation to disability (1) Nothing in section 57 applies to a person whose disability is such that person requires special services or facilities that in the circumstances cannot reasonably be made available (being services or facilities that are required to enable the person to participate in the educational programme of an establishment referred to in that section or to enable the person to derive substantial benefits from that programme). (2) Subject to subsection (3), nothing in section 57 shall apply where the person's disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to be admitted to an educational establishment and it is not reasonable to take that risk. (3) Nothing in subsection (2) shall apply if the person in charge of the educational establishment could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level. Compare: Equal Opportunity Act 1984 s 28(5) (Vic) Section 60(1): amended, on 10 September 2008, by section 9(a) of the Human Rights Amendment Act 2008 (2008 No 65). Section 60(1): amended, on 10 September 2008, by section 9(b) of the Human Rights Amendment Act 2008 (2008 No 65).

“Equal Educational Opportunity” EIT has a policy of equal opportunity both in providing education and in employment. The aim is for people to be able to develop their studies and their careers without being affected by matters that are not relevant. Matters which are not relevant are sex, marital status, religion, age, disability, colour, race, ethnic or national origin, political opinion, employment status, family status or sexual orientation. EIT recognises that some special needs of disadvantaged groups have to be addressed before there can be true equality. EIT is working towards this. EIT accepts the need to develop and follow policies and goals that fit with the Treaty of Waitangi, in consultation with Tangata Whenua. (from the EIT Student Handbook 2012)

What is Lawful Discrimination? Disability exemptions generally involve the concepts “reasonable accommodation” and “risk of harm”. Reasonable accommodation If a person requires special services or facilities by reason of disability and it is not reasonable to provide these, then the provider or employer need not provide them. Risk of Harm If there is risk of harm, by reason of disability, to a person or others which is not reasonable to take, then the provider or employer need not take the risk or reduce the risk to an acceptable level. BUT the risk of harm exemption does NOT apply if, without unreasonable disruption, measures could be taken to reduce the risk to a normal level.

“Reasonable Accommodation” Equity of access for students who have a medical condition or impairment. This places students with a disability on an equal footing with nondisabled students, without giving them an unfair advantage. Reasonable accommodation is meeting the needs of a person with a disability without causing: Unreasonable disruption Undue hardship or cost Risk to health and safety

Group Discussion Lawful direct Lawful indirect Unlawful indirect

Examples of Reasonable Accommodation Relocation of classes Alternative assessment arrangements Provision of individual learning support Adaptive technologies Provision of accessible parking

OSH • • • Under the 2004 amendment to the Health and Safety Act a person can be identified as being a hazard on grounds of what they do or say. (Behaviour, verbal and non-verbal communication and actions, etc). They must be treated in the same way as any other hazard. – Eliminate, Isolate or Minimise – Recorded and Reported As with the Human Rights complaint process, OSH now includes individuals in their investigations and prosecutions. When something goes wrong everyone who knew about the issue is involved in the subsequent investigation. This means YOU need to know your obligations and your rights.