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Better justice for people with disabilities

10 May 2019 - By Lynda Hagen

Throughout its existence, the Law Foundation has supported projects that have demonstrably improved access to justice for disadvantaged social groups.

We have recently approved grants for two further projects that I am confident will improve the lives of people with disabilities, a group especially deserving of support.

A new accessibility system

New Zealand must provide access rights for people with disabilities – for example, some buildings must have suitable access, parking and sanitary facilities.

But there are gaps in our law, and questions: to what extent should buildings be retro-fitted for disabled access? What design standards should be applied for new building projects? Where should we draw the line between individual requirements and accessibility for all?

Warren Forster and Michael White are leading a team of researchers reviewing New Zealand’s accessibility law and practice, with the aim of proposing a new framework. Warren says no one has ever taken a full system-wide look at how accessibility should be enabled for all purposes.

“The Government wants an accessibility law, and the Accessibility Alliance also wants it. Everyone can agree that New Zealand should be accessible, but no one has a plan for how the law should work to bring it from an idea into peoples’ lives,” he says.

The project builds on work done by the Blind Foundation over the past two years. It will take a first-principles look at where the system works now, where the gaps are, and how the interested parties can best collaborate.

“I don’t think anyone has well-developed answers about what accessibility means, nor a plan about how human rights and property rights interact, nor how human issues and system issues could interact,” Warren says.

The output will be a toolkit of mechanisms for making New Zealand accessible, possibly including draft legislation or regulation.

“We have no predetermined view, but we need to be effective and efficient. A massive new bureaucracy is probably not the right answer,” Michael says.

“This is a once in a lifetime opportunity to develop an enduring framework specific to New Zealand’s needs, which will benefit all New Zealanders and improve the realisation of their rights.”

Arbitrary detention

Wellington human rights lawyer Tony Ellis is on a six-month Harvard University fellowship studying the arbitrary detention of people with intellectual disabilities. He says that the intellectually disabled are among the most deserving classes of people needing competent human rights advocacy.

“My work to date has shown that such detention is frequently imposed on a discriminatory basis – detaining those who are disabled primarily because of their disability if perceived to be dangerous, in contrast to other groups who are similarly dangerous, but who are not detained as they have no disabilities,” he says.

Tony has worked on several leading cases in this field, including one involving a man with severe autism and intellectual disability who has been detained in compulsory care for more than 12 years despite having committed relatively minor offences. He is currently pursuing the case through appeals, arguing that it involves discrimination, unfair trial and arbitrary detention.

Tony’s research will improve understanding of the detention of the intellectually disabled in numerous countries, along with the views of the UN Human Rights Committee, the Committee on the Rights of Persons with Disabilities, and the European Court of Human Rights. In addition to his research report, he intends to pass this knowledge on to students, practitioners and judges through a seminar and, possibly, a short university course.

Lynda Hagen lynda@lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation.

Last updated on the 10th May 2019