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Digest No. 1623

Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill 2008

Date of Introduction: 01 July 2008
Portfolio: Disability Issues
Select Committee: As at 15 July, 1st Reading not held.
Published: 04 July 2008Prepared by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 471-9626 (Ext. 9626)F: (04) 471-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The aim of this bill is to make amendments to New Zealand enactments (including statutes and regulations) to enable New Zealand to ratify the Convention on the Rights of Persons with Disabilities (the Convention).

Background

"New Zealand signed the Convention on the opening day for signing in March 2007. The Convention came into force in May 2008, when the Convention received its 20th ratification by a State Party" [1]   .

Main Provisions

Amendments to the Human Rights Act 1993

Partnerships

Section 36(1) and (2) of the Act provide that it is unlawful for a firm, or for persons jointly promoting the formation of a firm to refuse or to omit to offer a person admission to the firm as a partner or to offer or afford a person less favourable terms and conditions as a partner than are made available to other members or prospective members of the firm by reason of any of the prohibited grounds of discrimination. Analogous provisions apply in respect of the denial of promotion, or expulsion from the firm. Section 36(3) provides that nothing in Section 36(1) and (2) prevents the fixing of reasonable terms and conditions in relation to a partner or prospective partner who, by reason of disability or age: has a restricted capacity to participate or to continue to participate in the partnership; or requires special conditions if he or she is to participate or to continue to participate in the partnership.

The Bill inserts a new provision (new subsection (2A)) into Section 36 providing that it is unlawful for a firm, or for persons jointly promoting the formation of a firm, to fail to provide special services or facilities that could reasonably by provided by the firm, or those persons, in the circumstances and that, if provided, would entitle a person with a disability ... to be accepted as a partner and remain in partnership ... or ...to be offered the same terms and conditions as a partner (including terms and conditions as to status in the firm or entitlements to shares in capital or profits) that are made available to other members or prospective members of the firm. The Bill also inserts a replacement subsection (3) which provides that nothing in Section 36 prevents the fixing of reasonable terms and conditions in relation to a partner or prospective partner, who by reason of disability or age ... has a restricted capacity to participate or continue to participate in the partnership, that cannot be restored to normal by the provision of any special services or facilities required to be provided under [new] subsection (2A)" or "requires special conditions if he or she is to participate or continue to participate in the partnership, even if any special services or facilities required to be provided under [new] subsection (2A) are provided".

The Bill further provides that nothing in Section 36 applies in respect of a person with a disability, if the disability of the person is such that "there would be a risk of harm to that person or others, including the risk of infecting others with illness if that person were to accept or remain in partnership or be given the same terms and conditions as a partner (including terms and conditions as to status in the firm or entitlements to shares in capital or profits) that were made available to other members or prospective members of the firm" and "it is not reasonable to take that risk" (Part 1, Clause 4 amending Section 36 of the Human Rights Act 1993 by inserting new subsection (2A), substituting subsection (3) and inserting new subsection (4)).

Organisations of employees or employers and professional and trade associations

  • Section 37(1) of the Act provides that it is unlawful for an organisation (i.e. an organisation of employees, an organisation of employers, or any other organisation that exists for the purposes of members who carry on a particular profession, trade, or calling) or for any person acting or purporting to act on behalf of any such organisation, by reason of any of the prohibited grounds of discrimination,

to:

  • refuse or omit to accept any person for membership; or
  • offer any person less favourable terms of membership and less favourable access to any benefits, facilities, or services, including the right to stand for election and hold office in the organisation, than would otherwise be made available; or
  • deprive a person of membership, or suspend him or her, in circumstances in which other persons would not be deprived of membership or suspended
  • The Bill makes two additions to this provision as follows:
  • it is unlawful for an organisation or a person acting on its behalf to fail to provide special services or facilities that could reasonably be provided by the organisation in the circumstances and that, if provided, would enable a person with a disability to " ... be accepted and remain in membership" or "be given equal access to benefits, facilities, or services provided by the organisation (including the right to stand for election and hold office)" (new subsection (1A);
  • nothing in Section 37 applies in respect of a person with a disability, if the disability of the person is such that "there would be a risk of harm to that person or others, including the risk of infecting others with an illness if that person were to accept or remain in membership or be given equal access to benefits, facilities, or services provided by the organisation (including the right to stand for election and hold office" and "it is not reasonable to take that risk" (new subsection (2A). However this subsection (2A) " ... does not apply if the organisation could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level" (Part 1, Clause 5, amending Section 37 of the Human Rights Act 1993 by inserting new subsections (1A), (2A) and (2B)).

Qualifying bodies

Section 38 (headed "Qualifying bodies") provides that it is unlawful for an authority or body empowered to confer an approval, authorisation, or qualification that is needed for, or facilitates, engagement in a profession, trade, or calling, or any person acting or purporting to act on behalf of any such authority or body to refuse or omit to confer, confer on less favourable conditions or withdraw, that approval, authorisation, or qualification on a person by reason of any of the prohibited grounds of discrimination.

Section 39 provides exceptions to this rule which are:

  • Section 38 does not apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion (subsection (1));
  • Section 38 does not apply where the authority or body imposes a reasonable and appropriate minimum age under which the approval, authorisation, or qualification will not be conferred or the authority or body imposes reasonable and appropriate terms and conditions on the grant or retention of the approval, authorisation, or qualification by reason of the age of the person seeking or holding it (subsection (3));
  • Different treatment based on disability is allowed where the person seeking or holding the approval, authorisation, or qualification is not, by reason of that person's disability, able to perform the duties required of a person who holds the approval, authorisation, or qualification (subsection (2)(a));
  • Different treatment based on disability is allowed where the environment in which the duties required of a person who holds the approval, authorisation, or qualification are to be performed or the nature of those duties, or of some of them, are such that, if that approval, authorisation, or qualification were granted to or retained by the person with a disability, there would be a risk of harm to that person or others, including the risk of infecting others with an illness, and it is not reasonable to take that risk (subsection (2)(b));
  • Different treatment based on disability is allowed where conditions placed on the granting of the approval, authorisation, or qualification to any person or on the retention of the approval, authorisation, or qualification by any person are reasonably related to the disability of that person (subsection (2)(c)).
  • The Bill provides that in the case of subsection (2)(a), a qualifying body (as defined in Section 38) must take account of whether a disabled person could perform the required duties if he or she was provided with special services or facilities that could reasonably be provided by an employer or by any other relevant person. In the case of subsection (2)(a), a qualifying body (as defined in Section 38) must take account of whether the risk of harm referred to in that paragraph could be reduced to a normal level, without unreasonable disruption to an employer or to any other relevant person (Part 1, Clause 6, amending Section 39 of the Human Rights Act 1993 by inserting new subsection (2A)).

Vocational training bodies

  • Analogous amendments are made to the Act in relation to vocational training bodies (Part 1, Clause 7, amending Section 41 of the Human Rights Act 1993 by inserting new subsections (7) and (8)).

Other statutes and regulations

The Bill amends certain statutes to do away with automatic disqualification for mental disorder, or to replace it with a test based on the exercise of certain powers under the Protection of Personal and Property Rights Act 1988. These powers are exercisable where a person lacks the mental capacity to decide a matter or the ability to communicate decisions. The following amendments are made:

  • Sections 103, 104, 171, and 174 of the Education Act 1989 are amended in relation to trustees of school boards and membership of councils of tertiary institutions (Part 2, Clause 11);
  • Sections 2, 8, 15, 16AA, 22, and 25 of the Juries Act 1981 are amended in relation to membership of juries (Part 2, Clause 12);
  • Schedule 7 of the Local Government Act 2002 is amended in relation to the membership of local authorities (Part 2, Clause 13);
  • Other statutes amended are: the Maori Trust Boards Act 1955 (Part 2, Clause 14); the Maritime Transport Act 1994 (Part 2, Clause 15); the Motor Vehicle Sales Act 2003 (Part 2, Clause 16); the Mutual Insurance Act 1955 (Part 2, Clause 17); the New Zealand Council for Educational Research Act 1972 (Part 2, Clause 18); the New Zealand Superannuation and Retirement Income Act 2001 (Part 2, Clause 19); the Public Trust Act 2001 (Part 2, Clause 20); the Reserve Bank of New Zealand Act 1989 (Part 2, Clause 21); the River Boards Act 1908 (Part 2, Clause 22); the Sale of Liquor Act 1989 (Part 2, Clause 23);' the Social Security Act 1964 (Part 2, Clause 24); the Soil Conservation and Rivers Control Act 1941 (Part 2, Clause 25); the Taranaki Scholarships Trust Board Act 1957 (Part 2, Clause 26); the Te Ture Whenua Maori Act 1993 (Part 2, Clause 27); the Trustee Act 1956 (Part 2, Clause 28); and the Waitangi National Trust Board Act 1932 (Part 2, Clause 29). The Bill also amends the Child Support Rules 1992 (Part 3, Clause 30); the Freshwater Fish Farming Regulations 1983 (Part 3, Clause 31); and the Weights and Measures Regulations 1999 (Part 3, Clause 32).

Copyright: © NZ Parliamentary Library, 2008
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  1. Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill, 2008 No 232-1, Explanatory note, General policy statement p. 1.   [back]