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

  • enacted

Explanatory note

General policy statement

The purpose of this Bill is to—

  • amend legislative provisions that are inconsistent with the United Nations Convention on the Rights of Persons with Disabilities (the Convention); and

  • amend the Human Rights Act 1993 to clarify the scope of its provisions enabling a person to refuse to accommodate a person’s disability in certain areas of activity.

These amendments will enable New Zealand to ratify the Convention.

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.

Historically, New Zealand has set a high standard for ratification of international human rights treaties and will ratify only when the Government is satisfied that our laws, policies, and practices are not inconsistent with the treaty at issue. Government agencies have assessed that their policies and practice do not present any inconsistency issues but that a number of domestic enactments required amendment before ratification could proceed.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill is to come into force on the day after the date on which it receives the Royal assent.

Part 1
Amendments to Human Rights Act

Overview

The purpose of these amendments is to ensure that Part 2 of the Human Rights Act 1993 (the HRA) is consistent with the reasonable accommodation requirements of the Convention.

Under Article 2 of the Convention, reasonable accommodation means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

Clause 3 provides that clauses 4 to 9 amend the HRA.

Clause 4 amends section 36 of the HRA to clarify that partnerships are required to reasonably accommodate persons with disabilities (both in relation to the provision of special services and facilities to enable persons with a disability to take advantage of the rights conferred by section 36 and in relation to the mitigation of risks posed by any person with a disability that would otherwise prevent that person from being able to take advantage of those rights).

Clause 5 amends section 37 of the HRA in a similar way.

Clause 6 amends section 39 of the HRA to clarify that for the purposes of deciding whether different treatment of a person with a disability is permissible an authority or body must,—

  • if relevant, 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; and

  • if relevant, take account of whether a risk of harm posed by a disabled person could be reduced to a normal level, without unreasonable disruption to an employer or to any other relevant person.

Clause 7 amends section 41 of the HRA to ensure that vocational training bodies are obliged, in their provision of training, facilities for training, or opportunities for training, to provide special services or facilities for persons with disabilities, unless those special services or facilities cannot reasonably be provided in the circumstances.

Clause 8 amends section 56 of the HRA to require that persons dealing in health, housing, and accommodation are required to provide special services or facilities for people with disabilities, unless these special services or facilities cannot reasonably be provided in the circumstances.

Clause 9 amends section 60 of the HRA to ensure that educational establishments are required to provide reasonable accommodation in relation to all the actions prohibited by section 53 of the HRA.

Part 2
Amendments to other Statutes

Overview

The amendments to other statutes are principally concerned with disqualification from certain public or fiduciary offices. Many statutes provide for automatic disqualification on grounds such as bankruptcy or criminal conviction. Another common ground is where a person is mentally disordered within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1993 (the MHCATA), ie, where the person has an abnormal state of mind ... of such a degree that it poses a serious danger to the health or safety of that person or of others, or seriously diminishes the capacity of that person to take care of himself or herself. These provisions are concerned with automatic disqualification (some statutes also create a power to remove people on other grounds). The amendments in Part 2 of the Bill amend certain statutes either 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 (the PPPRA). Those powers are exercisable where a person lacks the mental capacity to decide a matter (or the ability to communicate decisions). In relation to certain statutes, the amendments also ensure that the exercise of powers under section 30 of the PPPRA (which relates to urgent property orders) does not of itself lead to automatic exclusion from public or fiduciary office.

Clause 10 amends section 7 of the Community Trusts Act 1999. Section 7 prohibits certain people from being appointed or holding office as a trustee of a community trust. The amendment removes the prohibition for people who are mentally disordered within the meaning of the MHCATA.

Clause 11 amends sections 103, 104, 171, and 174 of the Education Act 1989—

  • Section 103 prohibits certain people from being appointed, elected, or co-opted as a trustee of a school board. The amendment removes the prohibition for people who are mentally disordered within the meaning of the MHCATA.

  • Section 104 specifies the circumstances in which the office of a trustee of a school board automatically becomes vacant. One circumstance is where a property order is made in respect of a trustee under the PPPRA. The amendment relaxes this rule so that, where an urgent order is made under section 30 of the PPPRA, the person is merely suspended from office. An urgent order only lasts for a maximum of 3 months. If the trustee subsequently becomes subject to a final order under section 31 of the PPPRA, the office would become vacant at that point. Otherwise, the suspension would cease when the urgent order lapsed.

  • Section 171(6) prohibits certain people from being appointed, elected, or co-opted as a member of the council of a tertiary institution. The amendment removes the prohibition for people who are subject to an inpatient order or who are special patients under the MHCATA (ie, people who are detained under the MHCATA) and replaces it with a prohibition for people who are subject to a property order under the PPPRA, or subject to a personal order under that Act that reflects adversely on their competence to manage their own affairs. The new prohibitions are intended to make section 171 more consistent with section 103.

  • Section 174(3) sets out the grounds on which the council of a tertiary institution may dismiss one of its members. The amendment removes the ground based on a member becoming mentally disordered within the meaning of the MHCATA and replaces it with a test based on a person becoming subject to a property order under the PPPRA, or to a personal order under that Act that reflects adversely on the member's competence to manage their own affairs. In the case of an urgent property order under section 30 of the PPPRA, the council is entitled to suspend the member while the order continues.

Clause 12 amends sections 2, 8, 15, 16AA, 22, and 25 of the Juries Act 1981—

  • Section 8 prohibits certain people from serving on a jury. The amendment removes the prohibition for people with a mental disorder (but retains the prohibition for people with an intellectual disability).

  • Section 15 sets out the grounds on which the Registrar may excuse a person from jury service. One of the grounds is physical disability. The amendment extends this ground to cover any disability (physical or mental). The definition of physical disability in section 2 is revised accordingly.

  • Section 16AA allows a Judge to discharge the jury summons of a person with a physical disability. The amendment extends this power to cover a person with any disability.

  • Section 22 allows a Judge to discharge a juror after the jury is constituted. One of the grounds is that the juror is not capable of acting effectively as a juror because of physical disability. The amendment extends this ground to cover any disability.

  • Section 25 sets out the grounds on which a party to proceedings may challenge the selection of a juror. One of the grounds is physical disability. The amendment again extends this to cover any disability.

Clause 13 amends Schedule 7 of the Local Government Act 2002. Clause 5 of Schedule 7 provides that the office of a member of a local authority becomes vacant automatically on the occurrence of certain events. One of those events is where a member becomes mentally disordered within the meaning of the MHCATA. The amendment replaces that test with one where a member becomes subject to a property order under section 31 of the PPPRA. New clause 4A of Schedule 7 provides that a member is suspended while the member is subject to an urgent property order under section 30 of the PPPRA.

Clause 14 amends section 14 of the Maori Trust Boards Act 1955. Section 14(3) prohibits certain people from being appointed as a member of a Maori Trust Board. The amendment removes the prohibition for people who are mentally disordered within the meaning of the MHCATA and replaces it with a prohibition for people who are subject to a personal order or a property order under the PPPRA or for whom a trustee corporation is acting as manager under section 32 or 33 of that Act.

Clause 15 amends clause 4 of Schedule 2 of the Maritime Transport Act 1994. Clause 4 of Schedule 2 provides that the person appointed as the Maritime Appeal Authority must cease to hold office on the occurrence of certain events. One of those events is where the person becomes mentally disordered within the meaning of the MHCATA. The amendment removes that test. Clause 4 of Schedule 2 also allows the Minister to remove the person from office if they become incapable of performing their functions due to disability. New clause 4A of Schedule 2 inserts a definition of disability mirroring the one in the Human Rights Act 1993.

Clause 16 amends sections 24 and 42 of the Motor Vehicle Sales Act 2003. Section 24 lists the cases where an individual is automatically disqualified from registration as a trader. The amendment removes the case where a person is subject to a compulsory treatment order under Part 2 of the MHCATA. Section 42 requires the Registrar to cancel a person's registration in certain circumstances. The amendment of section 42 removes the requirement to cancel a person's registration where the person is made subject to an urgent property order under the PPPRA.

Clause 17 amends section 30 of the Mutual Insurance Act 1955. Section 30(10) provides for the office of director of the Board of Directors to be vacated automatically in certain cases. The amendment of section 30(10) removes the case where a person becomes mentally disordered within the meaning of the MHCATA and the case where a person becomes subject to an urgent property order under section 30 of the PPPRA. New subsection (10A) provides for a director to be suspended if an urgent property order is made in respect of the director.

Clause 18 amends sections 5 and 7 of the New Zealand Council for Educational Research Act 1972. Section 5 prohibits certain people from being appointed as members of the Council. The prohibitions include one for people who are mentally disordered within the meaning of the MHCATA. The amendment replaces that with a test based on the making of a property order under section 30 or 31 of the PPPRA. Section 7 provides for the office of a member to be vacated automatically in certain circumstances. The amendment of section 7 ensures that the office of a member who becomes subject to an urgent property order under section 30 of the PPPRA is not vacated automatically. Instead, the member is suspended while the order remains in force.

Clause 19 amends section 19 of the New Zealand Superannuation and Retirement Income Act 2001. Section 19(6)(b) gives the chief executive a discretion to pay a lower rate of superannuation to hospital patients having regard to their capacity to appreciate the payments. The amendment removes that discretion.

Clause 20 amends sections 59 and 61 of the Public Trust Act 2001. Section 59(3) provides that, where Public Trust is acting as co-trustee, decisions about the separate investment of estate money may only be taken with the consent of the co-trustees—but ignoring any co-trustee who is a special patient or subject to an inpatient order under the MHCATA, ie, any co-trustee who is detained under the MHCATA. The amendment removes that proviso, and replaces it with a proviso for any co-trustee whose property is managed under the PPPRA. Section 61 makes similar provision in relation to decisions about investments in group investment funds, and is amended similarly.

Clause 21 amends sections 46 and 58 of the Reserve Bank of New Zealand Act 1989. Section 46 prohibits a person from being appointed or continuing to hold office as Governor or Deputy Governor of the Reserve Bank on certain grounds. Those grounds include where the person is mentally disordered within the meaning of the MHCATA. The amendment removes that ground. Section 58 makes similar provision about non-executive directors of the Reserve Bank, and is amended similarly.

Clause 22 amends section 29 of the River Boards Act 1908. Section 29 prohibits certain people from being elected to or remaining in office as a member of a River Board. The amendment removes the prohibition for those who are detained under the MHCATA.

Clause 23 amends sections 200, 201, 219V and 219W of the Sale of Liquor Act 1989. Section 200 prohibits certain people from being elected or appointed or from remaining as members of a licensing trust. The amendment removes the prohibition for those who are mentally disordered within the meaning of the MHCATA and replaces it with a prohibition for those who are subject to a property order under section 30 or 31 of the PPPRA. However, the amendment does not stop a person remaining a member merely because an urgent property order is made in respect of them under section 30 of the PPPRA. Instead, the member is suspended while the order remains in force (see the amendment to section 201). Section 219W prohibits certain people from being elected or holding office as trustees of a community trust established under the 1989 Act. The amendment removes the prohibition for those who are subject to a compulsory treatment order or who are a special patient under the MHCATA. Section 219V(4) treats a trustee who becomes incapable of holding office by virtue of section 219W as having resigned. The amendment to section 219V ensures that a person who becomes subject to an urgent property order is not treated as having resigned but, instead, his office is suspended while the order remains in force.

Clause 24 amends section 75 of the Social Security Act 1964. Section 75(4) gives the chief executive a discretion to pay a lower rate of benefit to a hospital patient having regard to the patient's capacity to appreciate the payments. The amendment removes that discretion.

Clause 25 amends sections 54 and 55 of the Soil Conservation and Rivers Control Act 1941. Section 54 prohibits certain people from being elected or appointed as a member of a Catchment Board. The amendment removes the prohibition for people who are detained under the MHCATA and replaces it with a prohibition for people who are subject to a property order under section 30 or 31 of the PPPRA. Section 55 provides for the office of a Catchment Board member to become vacant automatically if the member is detained under the MHCATA. The amendment replaces that test with a test based on the member's inability to perform their duties due to disability. Disability is defined by reference to the Human Rights Act 1993. Those who become subject to a property order under section 31 of the PPPRA are automatically disqualified.

Clause 26 amends section 5 of the Taranaki Scholarships Trust Board Act 1957. Section 5 provides for the office of an elected or appointed member of the Taranaki Scholarships Trust Board to be vacated automatically on various grounds. The grounds include where the member becomes mentally disordered within the meaning of the MHCATA. The amendment replaces that ground with one where the member becomes subject to a property order under section 31 of the PPPRA or has a manager appointed in respect of all or part of their property under section 32 or 33 of that Act.

Clause 27 amends sections 210 and 272 of Te Ture Whenua Maori Act 1993. Section 210 defines a person under disability for the purposes of Part 12 of the Act (which deals with trusts). The amendment removes from the definition a person who is mentally disordered within the meaning of the MHCATA. However, this amendment does not apply to a kai tiaki trust constituted before the Bill comes into force. Section 272 prohibits certain people from being appointed or elected or from holding office as a member of a committee of management of a Maori incorporation. The amendment removes the prohibition for those who are subject to a compulsory treatment order under the MHCATA and replaces it with a prohibition for those who are subject to a personal order or a property order under the PPPRA or for whom a trustee corporation is acting as manager under section 32 or 33 of that Act. However, if an urgent property order is made in respect of a member, the member does not automatically cease to hold office. Instead, the member's office is suspended while the order remains in force.

Clause 28 amends section 15 of the Trustee Act 1956. Section 15(1)(j) requires a notice to be given to all interested persons of full age and full mental capacity if a trustee wishes to appropriate any part of property vested in him or her in or towards satisfaction of a legacy. The amendment extends the notice requirement to include all interested persons, whether or not of full age or full mental capacity.

Clause 29 amends section 4 of the Waitangi National Trust Board Act 1932. The effect of the amendment is to remove the provision by which a representative member of the Board vacates office automatically if he or she becomes mentally defective and detained under mental health legislation. Instead, the office is vacated if he or she becomes subject to a property order under section 31 of the PPPRA.

Part 3
Amendments to regulations

Clause 30 amends rule 37 of the Child Support Rules 1992. Rule 37 allows for service on the carer of a person who is mentally disordered (within the meaning of the MHCATA) or on any person with whom the mentally disordered person resides. The amendment removes this rule and allows instead for service on the carer of a person who poses a serious danger to the health or safety of others or on any person with whom the dangerous person resides.

Clause 31 amends regulations 12 and 13 of the Freshwater Fish Farming Regulations 1983. These regulations allow the manager of a licensee's estate appointed under the Mental Health Act 1969 or the Aged and Infirm Persons Protection Act 1912 to transfer and operate a licence in certain circumstances. The amendment replaces the reference to a manager under those Acts with a reference to a manager appointed under the PPPRA.

Clause 32 amends regulation 17 of the Weights and Measures Regulations 1999. Regulation 17 disqualifies a person from accreditation if he or she is, among other things, mentally disordered within the meaning of the MHCATA. The amendment removes that ground of disqualification.

Minister of Finance’s statement on consultation on the proposed amendment to the New Zealand Superannuation and Retirement Income Act 2001 in the Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill

Introduction

Section 73 of the New Zealand Superannuation and Retirement Income Act 2001 (the Act) provides that the Minister must, on the introduction into the House of Representatives of a government Bill that proposes an amendment to the Act, bring to the attention of the House the consultation process that was followed in the formulation of the proposed amendment. The term Minister, for the purposes of section 73, is defined in section 5 of the Act as the Minister of Finance.

That statement must include (without limitation)—

  • (a) whether consultation has taken place with the parties that are in agreement with the Part proposed to be amended (as listed in Schedule 4 of the Act):

  • (b) whether consultation has taken place with the Guardians (to the extent that the amendment relates to Part 2 of the Act):

  • (c) the results of the consultation.

The Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill (the Bill) proposes one minor amendment to Part 1 of the Act. It does not propose to amend Part 2, Part 3, Part 4 or any of the schedules of the Act.

The Bill will repeal section 19(6)(b) of the Act. Under section 19, the rate of New Zealand superannuation payable to a patient in a public hospital who has been hospitalised for more than 13 weeks is reduced to the hospital rate. Section 19(6)(b) provides the Ministry of Social Development’s Chief Executive with a discretion to pay a lower rate than the hospital rate having regard to the patient’s capacity to appreciate the payments. This provision is considered to be inconsistent with the rights set out in the Convention. It is also rarely, if ever, used and therefore may be repealed without consequence.

Consultation

On 17 April 2008, the Minister for Disability Issues consulted with either the Leader, or the Disability Issues Spokespersons, of ACT New Zealand, the Green Party, the Maori Party, the National Party, New Zealand First, the Progressive Party, and United Future New Zealand, advising them of the government’s intention to table a National Interest Analysis, which proposes New Zealand ratify the United Nations Convention on the Rights of Persons with Disabilities (the Convention) and to possibly introduce a Bill to remove minor legislative inconsistencies with the Convention. This consultation did not include specific consideration of the proposed minor amendment to Part 1 of the Act as the relevant inconsistency had not been identified at this time.

Further consultation with parties is unnecessary at this stage as the amendment is technical and has no practical consequence. Neither is consultation with the Guardians of New Zealand Superannuation required as the Bill does not amend Part 2 of the Act.

The Ministry of Social Development (responsible for administration of Part 1 of the Act), the Ministry of Justice, and the Treasury support the proposed amendment to the Act.