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Policy and Legal Framework 4.4

Part 4 - THE POLICY AND LEGAL FRAMEWORK FOR USING THE CODE OF PRACTICE

4.4 Legal Framework for Using this Code of Practice

1. The Human Rights Act, 1993 [27], [28], [29], [30]
The Human Rights Act covers people who have physical, sensory, intellectual or other impairments or mental health illness, those with disease or illness from organisms in the body (e.g. HIV, Hepatitis), reliance on remedial means (e.g. guide dogs) and loss or abnormality of structure or function.

All organisations that provide goods, services, public facilities, transport, employment, education, training and accommodation must provide reasonable accommodations for people who are defined as having impairments under the Act. This includes all aspects relating to providing an inclusive environment such as teaching practices, support services, the provision of enrolment information or course material.

Currently New Zealand has very few formal cases of discrimination recorded in tertiary education. The following are some examples of possible scenarios.[31]

People may complain to the Human Rights Commission if they believe that they have been discriminated against on the grounds of their impairments. Discrimination occurs if someone is treated unfairly or less favourably than someone else in the same situation.

EXAMPLES:

  • A person with a learning disability applies to do a degree in English. The university tells her it has a policy not to accept people with learning disability on English degrees.
  • A student with a facial disfigurement is taking an evening class in Tai Chi. The tutor spends time with all the students individually, helping them with their technique. The tutor does not spend any time individually with the student with impairment because he feels uncomfortable with her. No other student has been treated in this way.

 

Discrimination may also occur when a tertiary institution fails to provide reasonable accommodations for a person with impairments:

EXAMPLES:

  • A student who is partially deaf and lip-reads is attending a Business Studies course. A lecturer continues to lecture while simultaneously writing on the whiteboard. The student asks him to stop speaking when he turns his back to use the whiteboard so that she can follow what he is saying and he refuses.
  • A campus has a policy of not allowing dogs onto its premises. A person who is blind and needs his guide dog to navigate around the premises is refused entry.
  • A tutor delivers one of his modules through a computer-based learning environment and awards marks for students' participation in online discussion. The system does not work with the software of a student with a vision impairment. The student would be disadvantaged if accommodations were not made.

Indirect discrimination may also occur when a rule or practice exists which, on the face of it appears neutral but in fact, has a detrimental effect on a person (e.g. a website with information for students is designed using a PDF format, making information access impossible to some students who use impairment related software).

Reasonable accommodations in a tertiary education setting may include:

  1. Making adjustments to the facilities or how a task is completed.
  2. Supplying additional training or support.
  3. Acquiring or modifying equipment.
  4. Modifying instructions, communication processes or information manuals.
  5. Modifying procedures for testing or assessment.
  6. Providing a note taker, reader/writer, sign language interpreter or other support staff to improve reading and communication.
  7. Regular contact to discuss support needs.
  8. Arranging an assessment to make appropriate course adjustments.
  9. Returning comments about an essay to a student with vision impairments electronically.
  10. Altering work placements or making specific field trip arrangements for students with mobility impairments.
  11. Allowing a Deaf student to present her work using New Zealand Sign Language.
  12. Physical access provisions.


Tertiary institutions should not wait until a student with impairment applies for a course or uses a service before thinking about reasonable accommodations. They need to be continually anticipating the requirements of people with impairments and making adjustments.

There may be exceptions to providing reasonable accommodations if an institution can prove:

  1. Unreasonable disruption.
  2. Undue hardship, or
  3. A risk to health and safety.


What is reasonable for a particular tertiary institution will depend on the circumstances of the case. In the United Kingdom various factors are taken into account when considering what is reasonable:

  1. The need to maintain academic and other prescribed standards.
  2. Whether the elements are central or core to the course.
  3. The size and financial resources of the tertiary institution.
  4. The type of services provided.
  5. The effect of the impairment on the individual person.
  6. The extent to which it is practicable to take a particular step and other available support.
  7. Health and safety requirements.
  8. The relevant interests of other people including other students.

All tertiary education providers are expected to comply with the Human Rights Act. Where possible, complaints are dealt with using mediation. However, legal proceeding may occur for cases of a serious nature that cannot be resolved through mediation. It is important that all staff are given guidance and training on the use of non-discriminatory practices, so that they are aware of their legal obligations in relation to the development of policies, teaching practices and the provision of support services.

The Ministry of Justice has released The Non-discrimination Standards for Government and the Public Sector. These provide guidance for assessing whether staff are at risk of discriminatory practices and whether the discrimination is justifiable under the Act. It includes useful discussion on the development of inclusive policies, practices and services.

The Human Rights Commission newsletter, 'Tirohia', contains information about cases. These can be useful to illustrate how human rights principles apply to factual situations. In the years ended June 1999, 2000, 2001 and 2002, the largest category of Human Rights complaints were on the grounds of impairment. In recent years there have been a few high profile tertiary education cases where the Commission found in favour of the complainant with impairments.

2. Bill of Rights Act, 1990 [32]
Tertiary institutions should also be aware that they may be subject to the New Zealand Bill of Rights Act, 1990. Section 19(1) of the Bill of Rights Act provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act, 1993. The right to be free from discrimination is subject to limits that are considered reasonable (see section 5 of the Act). This is a different test from that found in Part II of the Human Rights Act and is more amenable to actions performed by public authorities because of its flexibility. Section 2 states; "Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part II of the Human Rights Act 1993 do not constitute discrimination".[33] Recent amendments to the Human Rights Act have meant that individuals can now have access to a publicly funded complaints system under Part 1A of the Human Rights Act if they consider that their right not to be discriminated against has been infringed.

The emphasis in section 3 of the Bill of Rights Act is on the activities performed by the agency and not the status of the agency itself. It is possible therefore that only certain activities carried out by tertiary institutions are subject to the Bill of Rights Act. The education sector is a field in which the application of public law values through the Bill of Rights Act is likely to be complex because of the mixed education delivery systems in place, and the diverse range of facilities offered by various educational institutions. The Ministry of Justice, Non-discrimination Standards for Government and the Public Sector, also provide assistance on when and how to comply with the Bill of Rights Act non-discrimination standard.

3. The Privacy Act, 1993 [34]
The Privacy Commissioner has developed some Health Information Privacy Code Fact Sheets, which include information about impairments. These provide guidelines for collecting, storage, access and disclosure of this information.

Health information should be collected directly from the individual, only be used for the purpose it is collected and the person disclosing the information should be aware of the purpose for collecting this information. As a general rule, health information should not be disclosed to other people unless the individual who disclosed has authorised the disclosure to colleagues or other people. People should be able to view the information collected and have the opportunity to correct mistakes.

There are exceptions to the Rules above (see Rule 2,10,and 11 of the Act). The key exception to this rule on disclosure is when disclosure will prevent a serious or imminent threat to public health or safety or to the life or health of the individual concerned or another individual. In these circumstances staff need to be able to justify their actions. To receive fact sheets, contact the Privacy Commissioner, 0800 803 909, or visit the online Office of the Privacy Commissioner

4. Health and Disability Commissioner Act, 1994 [35]
The Health and Disability Commissioner Act, the associated Code of Rights and the complaint process, cover all health and disability services, including those in tertiary education environments such as Student Health and Counseling Services. The aim of this Act is to "promote and protect the rights of health and disability service consumers", including those with impairments.

Under the Code of Rights service providers must provide services that comply with these rights, inform consumers of these rights and inform consumers how to make complaints.

Under the Code of Rights all people, including those with impairments, when they use a health and disability service have the right to:

  • Respect, dignity and independence
  • Fair treatment, not discrimination
  • Service of a proper standard
  • Effective communication
  • Be fully informed and give informed consent
  • The support they choose
  • Complain.


These rights also apply to teaching or research that involves Health and Disability services. The Health and Disability Commissioner's Office has developed a brochure that provides an overview of obligations that relate to specific rights outlined in the Code of Rights, including the complaints procedures that all health and disability services must follow when a complaint is received.

The mechanism used to resolve complaints or issues is generally informal discussion and mediation, using an independent advocate from the Health and Disability Advocacy Services. There are also legal processes for cases of a serious nature.