Understanding our
Obligations and Rights
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International Conventions (that NZ have ratified) (Indirectly)
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UN Convention on the Rights of Persons with Disabilities
NZ legislation (Directly)
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Human Rights Act & NZ Bill of Rights Act
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OSH
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NZ Sign Language Bill
NZ Legislation (Indirectly)
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Public Health and Disability Act
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ACC
NZ Codes of Practice and Guidelines (Directly)
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Achieve
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NZ Disability Strategy
EIT Policy (Directly)
Let’s start at the end, not the
beginning …
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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:
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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 15yrs 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:
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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 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:
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Unreasonable disruption
Undue hardship or cost
Risk to health and safety
Group Discussion
Lawful direct
Lawful indirect
Unlawful direct
Unlawful indirect
Examples of Reasonable Accommodation
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Relocation of classes
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Alternative assessment arrangements
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Provision of individual learning support
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Adaptive technologies
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Provision of accessible parking
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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.