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DEFINITION OF DISABILITY IN THE HUMAN RIGHTS ACT 1993

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DEFINITION OF DISABILITY IN THE HUMAN RIGHTS ACT 1993

    DEFINITION OF DISABILITY IN THE HUMAN RIGHTS ACT 1993

i. History of the definition

    In 1987, in a review of the Human Rights Commission Act 1977, the Human Rights Commission noted that it had received numerous requests to increase the prohibited areas of discrimination but that

    If any order of priority is required, it is the Commission‟s view that failure to include

    discrimination on the ground of disability is the most important deficiency in the

    present anti-discrimination provisions of the Act … legislation in many other

    countries now includes physical and mental impairment and it has become clear that

    discrimination in that regard is very significant.

    The Human Rights Commission Amendment Bill 1990 would have made it unlawful to discriminate on the ground of “health status” but the Bill did not proceed. Instead the

    incoming National Government introduced a Bill that became the Human Rights Act 1993 and which included a wide definition of “disability” specifically designed to avoid the pitfalls

    that had become evident in New South Wales where the definition of disability was confined to physical and intellectual impairment and there had been difficulties in applying it consistently with the purpose of the legislation (see for example, Kitt v Tourism Commission

    & Ors (1987) EOC?92-196).

The Select Committee further amended the Bill to include “the presence in the body of

    organisms capable of causing disease” in the definition noting that it was wrong in principle

    to exclude the protections of this bill from those suffering from illness and the costs to society

    in lost productivity and state welfare benefits would be reduced. The Committee also added

    “reliance on guide dogs, wheelchairs or other remedial devices”. The definition has been described by academic commentators as “exhaustive” A & P Butler The New Zealand Bill of

    Rights Act: a Commentary Wellington (2005) Lexis Nexis at 487 but still allowing

    considerable scope for argument about what is meant by terms such as “disability”, “impairment”, “illness” and “abnormality”: Rishworth at al. The New Zealand Bill of Rights

    (2003) OUP at 370

ii. Current wording

    The definition covers more than just the manifestation of a disability. Section 21(h)(vii) refers to the presence in the body of organisms capable of causing illness and can apply even if the illness does not eventuate. Section 21(h)(v) refers to an abnormality of anatomical structure and could cover genetic abnormality such as a predisposition to diabetes that, again, may not develop because of other factors.

    The definition is not limited to physical or pathological conditions. It also refers to the effect of a condition such as ss.(vi) reliance on a guide dog, wheel chair or other remedial means. When taken with the overall structure of the Act this suggests that the definition can be interpreted as including the functional effect of the disability and its effect on a person’s ability to relate to the environment rather than limiting it just to a pathological condition.

    Interpreting the definition in this way is consistent with the comments of Justices McHugh and Kirby in Purvis v. New South Wales (Department of Education and Training) [2003]

    HCA 62 in which they state [at para 80] that

    To construe “disability” as including functional difficulties gives effect to the

    purposes of the Act. Such a construction accords with the Act‟s beneficial and

    remedial nature …to interpret the definition of „disability‟ as referring only to the

    underlying disorder undermines the utility of the discrimination prohibition in the

    case of hidden impairment.

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    Although the Act in question was the Disability Discrimination Act 1992 (Cth) and the wording of the definition differed to some extent, as with the local definition it was based on the World Health Organisation’s International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease which

    recognised that a disability could include functional difficulties and for many people with disabilities their ability to participate equally in normal life was not a consequence of medical impairment but their interaction with the environment in which they lived. The fact that the discrimination can be based on past, present, future or assumed disabilities as well as association with a person with a disability also suggests an interpretation that views disability as a social construct rather than limiting it to a pathological condition.

iii. Paradigm shift in the interpretation of disability

    Over the past few years there has been an increasing recognition that disabled people are entitled to the same benefits as other members of society, rather than the recipients of charity. This has resulted in significant changes in how disability is interpreted. The medical or welfare model of disability assumed that people with impairments themselves were the problem and what was needed was care or a cure. As a result of deinstitutionalisation, the promotion of human rights through various United Nations initiatives and activism by disabled people, an alternative approach has emerged which emphasises the rights of people with disabilities. This is known as the social model of disability and focuses less on the impairments of an individual and more on the limitations of a society that categorises who is normal and who is not. It is the disabling environment, the attitudes of others and institutional structures that need to be changed. The social model recognises the inherent quality of all people regardless of disabilities or differences. It also recognises society’s obligation to support freedom and equality for all individuals, including those who need appropriate social support:Interights, Non-discrimination in International Law: A handbook for Practitioners

    Kitching ed. (2005) at 214.

    As the purpose of discrimination law is to prevent people being treated unfairly because of stereotypic assumptions, the social model is seen as more appropriate than the medical model in interpreting the meaning of disability in the context of discrimination Degener, T,

    Definition of Disability (E.U Network of Experts of Disability Discrimination: Dir Prof G, Quinn, National University of Ireland), 5 available at

    www.ec.europa.eu/employment_social/fundamental_rights/pdf

iii. Domestic legislation which refers to disability

    In New Zealand disability is defined in a variety of laws. The Building Act 1991 defines a person with a disability as any person who suffers from physical or mental disability to such a degree that he or she is seriously limited in the extent to which he or she can engage in the activities, pursuits and processes of everyday life. Earlier legislation such as the Maori Affairs

    Act 1953 and the Judicature Act 1908 refers to people as disabled if they are of unsound mind

    or physically or mentally infirm and unable to manage their own affairs - effectively illustrating the patronising approach typical of a medical model of disability.

    As a general principle the purpose of the legislation tends to dictate how disability is defined. Thus the definition of disability in legislation designed to protect peoples’ rights will be interpreted broadly and inclusively while in legislation such as the Injury Prevention,

    Rehabilitation and Compensation Act 2001 (which governs service provision or needs

    assessment) the term will be interpreted more narrowly: Cooper J & Vernon S Disability and

    the Law, London, Jessica Kingsley Publishers (1996) at 16.

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iv. International guidance

    The meaning attributed to disability in the international instruments influences the way that the definition is interpreted domestically. Until the General Assembly adopted the United

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

    earlier this year, there were no specific international instruments which addressed the rights of disabled people. There was simply an assumption that they would benefit equally from the rights in the existing international treaties. The Disability Convention therefore does not create any new rights but rather provides a prototype for State action in an endeavour to ensure that people with disabilities are able to enjoy the same rights as people without disabilities.

    The preamble of the Convention reinforces the social concept of disability recognising that Disability is an evolving concept that results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others as does the purpose statement set out in

    Article 1 which describes persons with disabilities as including…those who have long term

    physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others and the definition of “discrimination on the basis of disability” which defines

    discrimination as any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. For further comment on the development

    of the Convention see Compilation of Proposals for Elements of a Convention: General

    Comments (New Zealand) (5/1/04) available at www un.org/esa/socdev/enable/rights/comp-element2.htm

    The UN has also adopted a large number of resolutions which, although not legally binding in the same way as the treaties, nevertheless have significant persuasive value and establish standards of behaviour to which States are expected to conform. The first to mention disability is the UN Declaration on the Rights of Mentally Retarded Persons (1971). In 1975

    the United Nations Declaration on the Rights of Disabled Persons affirmed for the first time

    under international law, the right of people with disabilities to the same civil and political rights as others including the right not to be discriminated against. There are also other non-binding instruments relating to disability that provide guidance on the interpretation of more general international instruments, identify best practice and indicate how international law is evolving. They include aspects of the World Programme for Action Concerning Disabled

    Persons; the Principles for the Protection of Persons with Mental Illness and the

    Improvement of Mental Health Care; and the Standard Rules on the Equalisation of

    Opportunities for People with Disabilities.

    The most widely accepted classification of disabilities is the World Health Organisation’s (WHO) International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease. In 1993 when the definition in the

    HRA was drafted the WHO definition consisted of three parts: impairment, disability and handicap. An “impairment” was defined as any loss or abnormality of psychological,

    physiological or anatomical structure or function; a “disability” as any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being; and a “handicap” as a disadvantage for a given individual, resulting from an impairment or a disability, that prevents the fulfilment of a role that is considered normal (depending on age, sex and social and cultural factors) for that individual: World Health Organisation, Document A29/INFDOCi/1, Geneva, 1976. The

    definition was criticised by disability advocates as too closely aligned to a medical mode, confusing and not providing adequate guidance for policy makers as it did not fully reflect contemporary understanding of disability issues particularly the need to address both

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    individual needs (such as rehabilitation and technical aids) and the shortcomings of society (which puts obstacles in the way of disabled people participating fully).

In light of this criticism the WHO developed the International Classification of Functioning

    (ICF) in 2002 in an attempt to integrate both the social and medical models of disability. The ICF does not override the original concepts but rather reworks the definition so that it no longer implies that disability involves a lack of something and shifts the emphasis from a system concerned with the consequences of disease to one concerned with human functionality and health.

v. Relevant jurisprudence

    Disability is a comparatively recent addition to the grounds of unlawful discrimination in many countries and remains untested in the courts. However, in some countries such as the UK and Ireland the limitations of a restrictive definition have been a primary concern in implementing rights based protection and has resulted in moves to change the legislation.

    There is no case law specifically on the interpretation of disability for the purposes of the Human Rights Act 1993 locally. The possible exception is NZ Amalgamated Engineering

    Printing and Manufacturing Union Inc. v Air New Zealand Ltd (2004) 1ERNZ 614; (2004)

    7NRNZ539; (2004) 7NZELC97, 367 in which the defendant argued that ANZ’s random drug

    testing policy breached employees’ rights under the HRA and the Bill of Rights as

    discrimination on the grounds of (inter alia) disability. The argument did not assist the plaintiffs the court noting that although alcoholism and drug dependency may be construed as disabilities, for some people this will only be a temporary condition.

In Australia the meaning of disability was extensively canvassed in Purvis v New South Wales

    (Department of Education and Training) [2003] HCA 6.which involved the suspension and

    exclusion of a pupil with brain injury who repeatedly assaulted teachers and other pupils. All the judges agreed that the definition of disability included the functional aspects of a disability.

    The Supreme Court of Canada has adopted a broad, purposive interpretation of disability. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City)Justice L’Heureux-Dube held that in the context of human rights law “handicap” - and

    other similar terms - must be analysed in terms of the collective impact of the limitation or complaint and its social construct. She noted that such terms cannot be defined solely on the basis of biomedical criteria. A Court must also determine whether the individual experiences “the loss or limitation of opportunities to take part in the life of the community on an equal

    level with others” [2000] 1 S.C.R 665, online

    http://canlii.org/ca/cas/scc/2000/2000scc27.html

vi. Further comment

    Much of the comment on the definition of disability has focused on the implications of the shift from a medical model to one which reflects the social model of disability. There are, however, some publications that specifically address the definition of disability including the work of Theresia Degener, who has written on the definition as a member of the E.U Network of Experts on Disability Discrimination in the context of the EU Directive (which does not define disability) and the Disability Convention. Degener notes that while the distribution of social benefits should be needs based, equal treatment is a right that should be offered to all those potentially affected by discrimination and that “from a theoretical perspective disability definitions are challenged by the debate on what causes disability: medical conditions, environmental factors, social structures and/or individual or collective behaviours and attitudes”. She concludes that while definitions vary according to their legal purpose, laws which outlaw discrimination on the ground of disability need to define it not by describing the

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    group protected but rather the act which is declared to be unlawful. A definition should describe what is meant by “disability-based” discrimination rather than using the term

    disabled: T Deneger, Definition of Discrimination (E.U Network of Experts of Disability

    Discrimination) available at www.ec.europa.eu.employment_social/fundamental_rights/pdf.

    In the UK, the Secretary of State has issued guidance for adjudicating bodies such as courts and tribunals on matters to be taken into account in determining what is meant by disability in the Disability Discrimination Act. While the UK definition differs from that in New Zealand and is acknowledged to be problematic, some of the guidance is relevant to the effect of the cause of a disability. Department for Work and Pensions Disability Discrimination Act:

    Guidance on matters to be taken into account in determining questions relating to the definition of disability, London (2005).

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