Blind Citizens’ Annual Conference 2016
Speech by Chief Ombudsman Judge Peter Boshier delivered to the Blind
Citizens’ Annual Conference
Brentwood Hotel, Kilbirnie, Wellington—8 October 2016
Introduction
I am extremely proud and privileged to be addressing the Annual Conference of Blind Citizens
New Zealand as Chief Ombudsman. My Office recognises Blind Citizens as one of our key
partners in the disability community. I want to acknowledge the mana of Blind Citizens as New
Zealand’s longest serving disability consumer organisation and to recognise the particular
status given to the role of disabled people’s organisations (DPOs) in the United Nations
Convention on the Rights of Persons with Disabilities (the Convention): Article 4(3) says that
disabled people through their representative organisations need to be closely consulted with
and actively involved in the development and implementation of laws and other decisionmaking processes on issues affecting disabled people.
Today I’m going to cover a range of issues including: my Office’s role in relation to disability
issues; say a bit on what we mean by monitor in relation to the Convention; and our work as a
partner organisation of New Zealand’s Independent Monitoring Mechanism (IMM). But firstly,
I’d like to talk about my experience of disabled people in the court system.
My interest in delivering the speech today comes not only as a result of being Chief
Ombudsman, but as a result of having been a Judge since 1988. I was appointed at the time
that the Protection of Personal and Property Rights Act was introduced. At the time, it was a
far-reaching and socially courageous piece of legislation. It did much to empower vulnerable
people. And yet during my time sitting in the Family Court, I felt that the Act never reached its
full potential. It could have been better resourced than it was.
I also felt that for disabled people appearing in court, we were often less than prepared and
often less helpful than we should have been. I can recall my court day, in which people with
disabilities appeared, often being organised so tightly that people were kept waiting when they
should not have been, and in my view, we were not as sensitive in responding to the individual
needs of people before us. For instance, I often found that we were not adequately prepared
for people coming into my court who had a hearing disability. At times, it was stressful for
everyone.
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And so, I am particularly sensitive to doing the right thing by people with disabilities, and
ensuring that justice is just as accessible as it is to everyone else. And now, can I talk about my
office and our role in this important work.
General overview of the OOTO disability role
The New Zealand Office of the Ombudsman is one of the three organisations which constitute
New Zealand’s IMM under Article 33 of the Convention. The Convention is the first UN
Convention adopted which advocates, and explicitly requires, full and direct participation of
those it seeks to assist—persons with disabilities. We support this approach, and consider that
too often in the past, persons with disabilities have had decisions made for them and about
them, with inadequate consultation and involvement.
As an Independent Monitoring Mechanism we are responsible for protecting and monitoring
the rights of disabled people pursuant to the Convention. We work collectively on a number of
projects with the New Zealand Human Rights Commission and the New Zealand Convention
Coalition Monitoring Group—the two other organisations which make up the IMM. We also
have an individual role which is carried out under the Ombudsmen Act 1975. This allows us to:

receive, and where appropriate, investigate complaints from affected individuals or
groups about the administrative conduct of state sector agencies which relate to the
implementation of the Convention; and

conduct wider investigations and other monitoring activities in relation to administrative
conduct of state sector agencies in implementing the Convention.
We regularly consider how state sector agencies interpret and enforce legislation, along with
policies and programmes that are relevant to disability issues. Monitoring these cases can
provide information to help understand the implementation of the Convention and how justice
or fairness is, or is not, accessible. For us, it is also important to explore whether decisions by
state sector agencies are appropriately executed. For example, a government agency might
have stated that it will allow persons with a disability to access amenities at that organisation.
Yet if this agency does not follow through with its assurance persons with disabilities are no
better off.
We are aware that at times, there can be a significant gap between disability policy provisions
on paper and the reality of people’s everyday lives. It is therefore necessary to compare
policies and reports with information received directly from persons with disabilities sharing
their experiences and views. This is why complaints to our Office are important, and ultimately
provide persons in the disability community with an avenue for their concerns to be
considered, and possibly investigated.
We understand that it is monitoring the rights of persons with disabilities that is important,
not disability itself. As a monitor under the Convention we must ask what society has or has
not done which is obstructing people with disabilities from the full enjoyment of their rights—
not how their physical or mental impairment has affected the enjoyment of their rights.
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In recent investigations and communications into state sector agencies, we have made explicit
reference to relevant articles in the Convention, and requested evidence to show that the
Convention is being taken into account and adhered to by particular agencies.
We have also been informing persons with disabilities that the Convention can act as a very
powerful tool for individual advocacy, as it sets clear benchmarks around the way that people
with disabilities should be treated, especially where there are no equivalents in existing
legislation. We have encouraged persons with disabilities to refer to their rights under the
Convention when communicating with agencies, and to ask such agencies how their processes
align with the Convention.
Examples of investigations/enquiries involving disability issues
Canterbury Earthquakes
The Office of the Ombudsman has frequently commented on the inadequacy of the current
limitation period of three months for making claims under the Earthquake Commission Act.
Since the first Canterbury Earthquake in 2010, we have received a number of complaints from
people who have been advised they are ‘out of time’. Many of these people have already
experienced a great deal of frustration and trauma, or have an existing disability.
For example, we received a complaint from a person with a visual impairment who did not
initially notice damage to her house caused by an earthquake. It was only when her parents
visited that she became aware of the extent of the damage, more than three months later. The
Ombudsman at the time formed the opinion that EQC’s decision to decline to accept the claim
was made in accordance with a law that is unreasonable and improperly discriminatory.
The Office of the Ombudsman, and the IMM, have recommended that the Government
expedite a review of the three month time limit set out for lodging claims, noting that Article
11 of the Convention deals with situations of risk and humanitarian emergencies. In September
2015 we reaffirmed our position in this regard, and made a submission to the Treasury
advocating for greater flexibility around the three month time limit.
Crimes of Torture Act
I want to talk a little about our Crimes of Torture Act (COTA) work and how that has played out
in the much-publicised case of Ashley Peacock.
Ashley is an inpatient at the Tawhirimatea Unit of Capital and Coast District Health Board,
where he has resided since 2006 pursuant to a Compulsory Treatment Order under Section 30
of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Ashley has a complex
neurodevelopmental disability and autism spectrum disorder. Ashley has, for a long period of
time, been housed in the seclusion/de-escalation area at the Tawhirimatea Unit. This space
consists of a Spartan row of cells designed as short-term accommodation for patients whose
behaviour has rendered them unsafe. The seclusion/de-escalation area is not suitable for
Ashley, or any other patient, on a long term basis. Ashley’s mental health and general
behaviour have deteriorated during his time at the Tawhirimatea Unit. His parents feel that his
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treatment has had an emphasis on control rather than rehabilitation, and that the conditions
in which he has lived, including the very extensive use of seclusion, have compromised his
general wellbeing. Their enduring focus has been to find more suitable and humane
accommodation for Ashley.
Our COTA Inspectors first picked up on Ashley’s situation during an inspection visit to the
Tawhirimatea Unit on 8 September 2011. Our ensuing report included a recommendation that:
‘a more appropriate facility needs to be sourced for [Ashley who is] being housed in
the seclusion unit on a semi-permanent basis.’
Our COTA Inspectors have continued to comment on Ashley’s unsatisfactory circumstances,
and as recently as February 2016 (in a report on an unannounced visit to Tawhirimatea Unit
under the Crimes of Torture Act 1989) I made a further recommendation stating:
‘The Client previously identified as living in a seclusion room on a semi-permanent
basis (COTA Reports dated September 2011 and June 2012) was still living in a
seclusion room. I consider this client’s living situation to be cruel, inhuman or
degrading treatment or punishment for the purpose of the Convention Against
Torture.’
Staff at my Office continue to deal with matters relating to Ashley’s wellbeing under the
Ombudsmen Act 1975. As recently as June 2016, an Ombudsman wrote to Capital and Coast
DHB noting that Ashley’s living arrangements are highly unsatisfactory and have persisted for
far too long. The Ombudsman again suggested that action be taken to transfer Ashley to an
appropriate placement in the community.
Wider administrative investigations and submissions on government
policy
As mentioned earlier, we have the ability to commence Wider Administrative investigations on
matters relevant to the Convention.
This has occurred in relation to mental health services being provided to prisoners by the
Department of Corrections and the Ministry of Health. As part of this ongoing monitoring
exercise we have requested that the Department of Corrections and the Ministry of Health
provide regular updates on joint initiatives underway to help improve the circumstances of
prisoners who experience mental illness. Both agencies know that we expect them to develop
an overall framework that outlines how the individualised/specialised projects underway, fit
into the larger picture of improved mental health services in prisons. Mental health in prisons
is an area of significant interest to my Office, and I am currently considering whether further
action is required in this area.
An Ombudsman also dealt with an enquiry from a disability service provider about the lack of
data available around the number of involuntary sterilisations performed on women and girls
with intellectual disabilities in New Zealand. The agency had attempted to obtain statistics
from both the Ministry of Health and the Ministry of Justice but was advised that the
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information is not held, and that reporting on sterilisation procedures explicitly prohibits
patient identification orders.
The Ombudsman made a number of enquiries to both the Ministry of Health and the Ministry
of Justice noting that the lack of data in this area makes it difficult to monitor important
disability rights for an already vulnerable population group. He agreed with the enquiring
agency that the involuntary sterilisation of women and girls with intellectual disabilities in New
Zealand is a ‘matter of significant public interest’, and noted that the United Nations
Committee on the Rights of Persons with Disabilities, in its Concluding Observations on New
Zealand in October 2014, had stated that New Zealand ought to:
‘enact legislation prohibiting the use of sterilisation on boys and girls with
disabilities, and on adults with disabilities, in the absence of their prior, fully
informed and free consent.’
The Ministry of Health and the Ministry of Justice undertook some research around the
number of such orders that have taken place in the past five years, and uncovered only a single
example of the involuntary sterilisation of a female with an intellectual disability. However, the
Ombudsman considered that the electronic information system for recording such information
was inadequate, and noted it was possible that other such orders have taken place but not
been recorded (a manual review of a large number of physical files would be required to
determine whether other such orders took place). The Ombudsman felt this was a ‘surprising
state of affairs in 2016 when electronic data can be easily collected and analysed’, and
suggested both agencies update their mechanisms for reviewing and recording sterilisation
orders.
The Ombudsman reminded the Ministry of Health and the Ministry of Justice that New
Zealand’s updated Disability Action Plan includes a new priority to protect against nontherapeutic sterilisation, and that there is internationally an expectation that New Zealand
passes legislation prohibiting such sterilisation altogether. The Ombudsman also reminded
both agencies of Article 31 in the Disability Convention which requires that:
‘State Parties undertake to collect appropriate information, including statistical
and research data, to enable them to formulate and implement policies to give
effect the [Disability] Convention.’
The Ombudsman asked the Ministry of Health and the Ministry of Justice to provide a written
update addressing his suggestions for improvement in the data collection around involuntary
sterilisation of women and girls with disabilities, and this update is due shortly.
Further, we also make submissions on consultations and proposed legislation. Recently they
have included detailed submissions on: NZ signing the Optional Protocol of the Convention—
we are delighted that Minister Wagner announced on Wednesday this week that NZ has
acceded to the Optional Protocol (acceding to the Optional Protocol allows individuals to take
complaints to the UN Disability Committee, once they have exhausted all national remedies);
NZ acceding to the Marrakesh Treaty (which would make more books available to people who
are blind or have low vision); and on the Small Passenger Services Sector Review (which
proposed far reaching de-regulation of taxis including removing the regulations for taxis to
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display braille signage and to operate 24-7, amongst further de-regulation that my Office
deemed would adversely impact disabled people).
IMM activities
As mentioned earlier, we are one of three agencies which constitute New Zealand’s IMM. We
must ensure such monitoring is undertaken in a manner which helps to provide guidance
about the rights of persons with disabilities that can assist relevant agencies to understand the
implications of the Convention on their roles. After all, a major objective of monitoring
compliance of the Convention is to increase inclusive practices throughout New Zealand.
We are an active part of the IMM, contributing to a number of projects, including both of the
Making Disability Rights Real Reports. These reports provided commentary around the
progress, or lack of it, that New Zealand is making under articles in the Convention. The reports
also make a number of recommendations, and it is clear the United Nations Committee on the
Rights of Persons with Disabilities took these into account when issuing its Concluding
Observations after New Zealand’s disability context was reviewed in Geneva in 2014.
Reasonable accommodation
We recently launched a guide on reasonable accommodation for persons with disabilities. The
guide aims to assist persons with disabilities to understand what reasonable accommodation
is, and provide guidance on how such requests might be made. It also aims to educate
employers or service providers on why reasonable accommodation is important, and how
requests for it can be considered.
There is still a lack of understanding around what reasonable accommodation means. In the
past year, my Office recorded 81 disability-focussed complaints, and many of these involved
cases where reasonable accommodation should have been provided, but wasn’t. The
complaints concerned a number of subject matters including education, healthcare, physical
access in the community, access to information, housing and prison services.
Reasonable accommodation is important to everyone, whether you are a disabled consumer,
or providing services to the community as an architect, an office manager, an IT developer or a
school teacher. I also hope the reasonable accommodation guide gets people thinking about
the benefits of being flexible when engaging with the disability community. This is particularly
true of those providing services. Agencies need to be aware that in most cases, providing
reasonable accommodation costs very little, or nothing at all, and can be as simple as changing
attitudes, means of communication or improving accessibility. It is disappointing that some
agencies continue to put requests for reasonable accommodation in the ‘too hard basket’.
For instance, staff from my Office have attended a meeting in a public forum where a fairly
senior official expressed frustration that accommodating a person using a wheelchair at a
polytechnic institution meant installing elevators in one of the buildings. He considered this
costly and burdensome. However, he had given little thought to other methods of
accommodating the individual on the campus, including simply ensuring that the relevant
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training and lectures were scheduled to take place in an accessible classroom on the ground
floor. Service providers must move away from a closed mindset and lead the way by
encouraging increased social responsibility and inclusivity.
It is important to acknowledge the diversity of the disability community, and the fact that
information should be accessible to everyone. We are proud that the reasonable
accommodation guide exists in a number of formats, including Easy-Read, a structured Word
document and a New Zealand Sign Language video. We would be delighted to receive feedback
from people who consult the document.
Conclusion
I hope that I have provided you with a reasonable overview of the work of my Office in the
area of disability and demonstrated how we are monitoring and intend to continue monitoring
implementation of the Convention. I want to assure you of my personal commitment to this
work and to state clearly that disability issues will remain a key focus for my Office on my
watch.
[Ends]
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