Human rights are the basic rights and freedoms everyone should have.
All people have human rights.
Human rights are set out in law
All people are equally valued in law.
Disabled people experience marginalisation and discrimination in education and in many aspects of their daily lives.
This section notes the laws, agreements and policies that protect and promote the rights of disabled people.
Introduction
Beginning with the signing of the Declaration of Independence in 1835 and Te Tiriti O Waitangi – The Treaty of Waitangi in 1840, the British Crown, followed by New Zealand governments, entered into national and international agreements and enacted legislation upholding the human rights of its citizens. These laws and agreements form the basis of policies and strategies to uphold and protect the human and cultural rights of individuals and groups within Aotearoa New Zealand.
This resource outlines the rights, responsibilities and approaches laid out in key legislation, international agreements and policy documents by New Zealand governments and how they guide our understanding of what inclusive education and inclusion means within Aotearoa New Zealand.
This resource refers to key documents to explore the questions:
What are human rights?
What human rights respond to the lives of people with disability?
Why and how are human rights important?
What does thinking from a human rights perspective involve?
What are some of the barriers to people accessing their human rights?
How can a human rights perspective improve education and society for everyone?
This resource is divided into three sections:
Human Rights
Human rights are the basic conditions and inalienable freedoms that every person and social or cultural group is entitled to enjoy and experience. There are two main types of human rights – civil and political rights, and social, cultural and economic rights.
The Universal Declaration of Human Rights (UDHR) adopted by the General Assembly of the United Nations on 10 December 1948 sets out, for the first time, fundamental human rights to be universally protected (Ministry for Culture and Heritage, 2014). The UDHR makes no distinction between different categories of rights – civil, cultural, economic, political and social rights are of equal importance and none can be enjoyed without the others. It was drafted by representatives from around the world with different cultural and legal backgrounds. New Zealand, led by then-Prime Minister Peter Fraser, played a key role in the drafting of the Declaration.
A fully inclusive society recognises and values disabled people as equal participants (Human Rights Commission, 2018b). Their needs are understood as integral to the social and economic order and not identified as “special”.
Civil and Political Rights
These include:
- The right to life and liberty
- Freedom of expression
- Equality before the law
- The right to be free from discrimination (United Nations Human Rights)
Social, Cultural and Economic Rights
These include:
- The right to participate in culture
- The right to work
- The right to an adequate standard of living
- The right to education (Human Rights Commission, 2018a)
A focus on rights builds on a concern with equality. It is a way of expressing the equal worth of people since they hold rights equally. Everyone has an equal right to food, shelter, protection and care and to participate as citizens. Where actions lead to inequality, then they cannot involve a right.
Children's Rights
Children and young people in New Zealand have a legal and human right to free, public (that is state provided) education of high quality in their local community (New Zealand Government, 1989). This right is protected by domestic legislation and through New Zealand’s obligations as signatories to the United Nations Convention of the Rights of the Child (1989) and the United Nations Convention on the Rights of Persons with Disabilities (2007). Of particular relevance to this work is article 12 of the United Nations Convention of the Rights of the Child, which states that all children have the right to be heard and to be listened to. The promotion of human rights within education encourages equitable access to quality teaching and learning. Quality teaching and learning requires children’s active and authentic participation in the social activities and learning within the rich curriculum alongside their peers.
Human Rights at School
Access includes but is about more than physical accessibility. ‘Access’ is linked with ‘equity’, a principle of social justice. Every person and group needs and has a right to access communication, participation, learning, the curriculum, ideas, information and opportunities on an equal basis to others. What any individual or group needs to experience equal access to education is not the same. Individual students with disabilities may require individual accommodations made to enjoy equitable access to learning opportunities and experiences. Teaching and education settings that respond well to the learning and participation needs and rights of diverse groups and individuals find that the changes made for one person or group benefit everybody.
Equitable access involves multiple and diverse pathways to equal outcomes. Equity in the classroom means all students have access to what they need to access the curriculum alongside their peers. Equity means all students have a voice and their thinking is listened to (United Nations, 1989). Equity is described as reasonable accommodation within the United Nations Convention on the Rights of Persons with Disability (United Nations, 2007). Disabled students have a right to be provided with reasonable accommodations in the classroom. Discrimination on the basis of disability includes a denial of reasonable accommodation.
Advocacy and Human Rights
Advocacy is to do with rights. The main goal of advocacy is to ensure that a person’s ‘voice’ is heard and their rights are recognised and realised. Disability Advocacy ensures the human, cultural and legal rights of people with disabilities and their families are promoted and protected so that people with disabilities are valued and can enjoy satisfying lives as citizens in their community.
An Advocate
An advocate
- has knowledge of domestic laws and policies and New Zealand’s obligations as signatory to human rights conventions and covenants
- listens carefully – this means finding out what the individual or group is actually saying, not what you think they should be saying
- communicates clearly and often
- is creative and tries different approaches – don’t give up if your first idea doesn’t bring a solution
- is assertive – takes a firm stand and sticks to it without getting angry or going on the attack
- is persistent – some issues take a long time to resolve. A good advocate must be willing to ‘hang in there’ until the issue is resolved and not back off if it becomes difficult or time-consuming.
You can learn more about advocacy from the IHC Advocacy toolkit here.
Discrimination and Human Rights
Discrimination occurs when a person is treated unfairly or less favourably than another person in the same or similar circumstances, usually because of judgements made on the basis of a characteristic.
Discrimination is unlawful when it occurs on any of the grounds and within one of the areas listed in the Human Rights Act 1993 and where no exception applies. Discrimination is often on the basis of class, disability, ethnicity, religion, gender and sexual identity, among others.
People, systems and places like school can deliberately or unconsciously exclude or disadvantage certain groups, individuals and ways of being. The impacts of discrimination are the same for those who experience them, no matter whether the discrimination is conscious and intentional or not.
Our society tends to be set up in ways that are ‘normal’, accessible and comfortable for people from the dominant social and cultural groups. In New Zealand, non-disabled people generally don’t think of ‘disability’ and disablism in the same ways we might think about ‘ethnicity’ and racism (Macartney, 2011). Because of our history of medical-deficit thinking about disability, some people assume that any problems disabled people face are caused by their impairment/s, not by how society and other people view and treat them (Carrington et al., 2012; MacArthur, 2009). A lack of awareness about disability discrimination helps to reinforce ableism in education and society.
Discrimination can take a variety of forms and may include the following:
- Direct discrimination happens when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics (Human Rights Commission). For example, refusing to enrol students, because of their ethnicity, gender, disability or sexual orientation.
- Indirect discrimination occurs when any practices or requirements that appear non-discriminatory nevertheless have the effect of treating a person or group of people differently. For example; in school, a teacher may select two class members and ask them to choose in turn from the class, students for a basketball game. Students who may struggle with physical coordination or to understand the rules will be the last members chosen for the teams. This is a practice that is indirectly discriminatory.
Bias and Human Rights
A bias is an inclination or prejudice for or against one person or group, especially in a way considered to be unfair.
Negative biases against ‘others’ are mostly based on inaccurate stereotypes, false assumptions and unchecked generalisations. A lack of contact and personal experience with people from groups we feel unfamiliar with, can create and maintain barriers to understanding and engage with those deemed to be ‘other’.
Bias is a natural human characteristic, socialised into us by a complex interweaving of cultural messages. This is often unconscious and unrecognised. We have an affinity with people who are like us and more difficulty building relationships with people we don’t understand or relate to easily. Rather than understanding other cultures, the starting point for change then is to recognise and understand our own biases and consciously mitigate their impact on our decision making and interactions with others.
Bias influences most of the important decisions we make in our lives: where we want to live, who our friends are, the careers we choose and value, which political party we vote for and what social causes we support.
Bias distorts our attitudes, colours our judgement, and can prevent us from living a fully engaged life.
Stereotypes
Stereotypes are a widely held but fixed and oversimplified image or an idea of a particular type of person or thing… An implicit stereotype… is one that exists outside our conscious control and awareness (Houkamau & Blank, 2016).
Because we are often unaware of our biases, we accept them as the truth and do not realise that we are discriminating against people. Non-disabled people often have inaccurate and partial perspectives about ‘disability’ and ‘disabled people’. Some non-disabled people haven’t had opportunities to get to know and interact with any disabled people within their family, school, circle of friends or other relationships and groups they are part of. All of us have times where we feel afraid of or shy about some people who are different from us. If we don’t recognise and try to move past this fear, it can stop us from connecting with and understanding others.
Even though stereotypes are often partial and incorrect, they lead us to jump to conclusions about other people without really knowing much about them (Houkamau & Blank, 2016). You can explore more about bias here.
Bias and Labels
Sometimes labels can be useful and positive to a person or groups’ well-being and identity. It depends on who is using the label, why they are using it and what the outcomes of using that label are. The Disability Rights Movement saying: “labels are for jars, not people” means it’s OK to put a description (a label) on a jar so you know what’s inside, but it’s not okay to negatively judge people by attaching a label, or description to them, such as ‘retarded’, ‘slow’, ‘ugly’, ‘delayed’, ‘useless’ etc...
There are many disability and impairment labels. Labelling involves making generalisations and using stereotypes and categories to assign people to particular groups. Associations that often accompany labels are socially constructed and can marginalise and cause discrimination. All individuals are complicated and although two individuals can have the same label, in every other instance they can be opposites.
Disability/impairment labels often use deficit language and communicate deficit messages. For example: ADHD – Attention Deficit Hyperactivity Disorder, Global Developmental Delay, EBD – Emotional Behavioural Disorder, ODD – Oppositional Defiance Disorder. These ‘conditions’ are based on the creation of labels and descriptions for broad sets or clusters of behaviour that are perceived to be a problem. From a medical model perspective, differences and behaviours that are deemed problematic are viewed and approached as illnesses or medical conditions within the individual. Medical approaches are embedded and visible in the language and processes used within special education. For example: ‘testing’, ‘diagnosis’, ‘treatment’, ‘intervention’, ‘therapy’ and ‘remediation’. Although older medical labels – diagnoses such as ‘mental retardation’, ‘imbecile’ and ‘idiot’ – have been replaced by newer labels such as ‘intellectual’ and/or ‘learning disabilities’, the implications of being assigned the labels are much the same as those in the past (Fisher & Goodley, 2007; Shakespeare, 2006).
Bias, the media and ‘Popular’ Culture
One way that negative stereotypes about disability and other forms of ‘difference’ are communicated and reproduced is through the media and popular culture. When disabled people are referred to or included in the arts, television and other media, which is not often, they are frequently portrayed according to deficit, personal tragedy or disability stereotypes. These stereotypes include disabled people as vulnerable, needy, helpless, a drain, strange, more different than the same as me, an inspiration to others and/or deviant. A common stereotype involves disabled people being seen as overcoming or succeeding in spite of their disability. Some people refer to this as the ‘Super Crip’ stereotype.
Stella Young, a disabled woman from Australia coined the term ‘inspiration porn’ to describe images, text and messages about people with disabilities, ‘inspirational’ solely or in part on the basis of their disability. Listen to Stella’s message here.
New Zealand Laws and the Disability Strategy
The Treaty of Waitangi and two pieces of New Zealand legislation (laws) are of particular importance to New Zealander’s rights to education.
- The Treaty of Waitangi (Ministry of Culture and Heritage; New Zealand Government, 1975)
- The Education Act (New Zealand Government, 1989 (updated on Jan 2nd, 2018))
- The Human Rights Act 1993
The following three sections look at each document separately.
If you would like to read and learn more about laws that outline and protect human rights in Aotearoa New Zealand, follow this link to The New Zealand Human Rights Commission - Te Kahui Tika Tangata
The Treaty of Waitangi
As our founding document and agreement, the Treaty is relevant to all people and cultural groups in Aotearoa New Zealand, now and in the future.
The Treaty can provide a framework for all social-cultural groups living in Aotearoa New Zealand to:
- Develop relationships and conduct ourselves and society in ways that respect the tino rangatiratanga (can be interpreted as absolute sovereignty) of Māori including over their language, beliefs, culture, practices and status as tangata whenua (the people of the land)
- Enjoy the benefits and obligations of working in partnership with all social and cultural groups to ensure that diverse ways of being and identities are recognised, valued and included.
The Treaty of Waitangi recognises the centrality of presence, participation and partnership. When these principles are honoured within education; whanau, educators and children collaborate to grow respectful learning communities.
The Treaty of Waitangi Act 1975 established the Waitangi Tribunal and gave the Treaty of Waitangi recognition in New Zealand law for the first time. The Tribunal was empowered to investigate possible breaches of the Treaty by the New Zealand government or any state-controlled body, occurring after 1975. It was also empowered to recommend, but not enforce, remedies.
Visit this site to see a range of activities and information about the Treaty of Waitangi.
The Education Act
The Education Act 1989 for the first time provided that all children, including those with disabilities, have the same rights to attend and receive education at their local school. Prior to this, children with disabilities did not enjoy the same rights as their non-disabled peers to an education.
Section 3 of the Education Act 1989 mandates the right to free primary and secondary education in Aotearoa New Zealand. This means all students are entitled to enrolment and free education at any State school during the period beginning on the person’s fifth birthday and ending on 1 January after the person’s 19th birthday (The Education Act 1989 – Section 8).
Section 8 Equal rights to primary and secondary education states that:
… people who have special educational needs (whether because of disability or otherwise) have the same rights to enrol and receive education at State schools as people who do not.
Section 8 was welcomed by disabled people, families and advocates as a confirmation and protection of their rights to be fully included at school on an equal basis to others. In relation to section 8, the Ministry of Education (2017) website agrees that “All children and their parents should feel welcome when approaching any school to enrol.”
It is important that disabled children and young people are welcomed at their local schools, and that their culture is a valued aspect of their identity.
Prior to 1989, the passing of the Education Act 1877 established New Zealand's first secular, compulsory and free national system of primary education. Under the Act, it became compulsory for children from ages 7 to 13 to attend primary school. However, this did not apply to children with disabilities.
It is important that schools are confident and capable to teach all children, and that educators have initial education and ongoing timely and relevant professional development to develop the pedagogy to teach all students, including those from diverse backgrounds and/or with diverse learning needs.
Human Rights Legislation
There are two main New Zealand laws that specifically promote and protect human rights. One is the Bill of Rights Act 1990 (New Zealand Government, 1990), and the other is the Human Rights Act 1993 (New Zealand Government, 1993). When government agencies and private sector organisations provide a service or make any decision that affects people; they must apply these laws.
The Bill of Rights Act 1990
The Bill of Rights Act covers a range of civil and political rights which come from the United Nations International Covenant on Civil and Political Rights. These include freedom of expression, the right to life and freedom from discrimination. The government and anyone carrying out a public function must observe these rights and must justify any limits placed on them.
The Human Rights Act 1993
The Human Rights Act 1993 is aimed at giving all people equal opportunities and preventing unfair treatment on the basis of irrelevant personal characteristics. It protects people in New Zealand from discrimination by making it unlawful to treat someone unfairly or less favourably than someone else in a number of areas of life including education because of any of the thirteen prohibited grounds of discrimination. These grounds are:
- Sex
- Marital status
- Religious belief
- Ethnic belief
- Colour
- Race
- Ethnic/national origin
- Disability
- Age
- Political opinion
- Employment status
- Family status
- Sexual orientation
People who feel they have been discriminated against on one of these grounds can complain to the Human Rights Commission.
The New Zealand Human Rights Commission
The Human Rights Commission was established through the provisions of the Human Rights Act. The Commission provides information and, if needed, free mediation for human rights and discrimination cases in New Zealand that are covered by the Human Rights Act 1993.The responsibilities of the Human Rights Commission are set out in the Human Rights Act. These are:
- To advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society;
- Encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society;
- To promote racial equality and cultural diversity;
- To promote equal employment opportunities (including pay equity);
To promote and protect the full and equal enjoyment of human rights by persons with disabilities. You can learn more about the Human Rights Commission here.
New Zealand Disability Strategy
The New Zealand Disability Strategy (NZDS) (Ministry of Social Development, 2016) guides the work of government agencies on disability issues. The NZDS outcomes are designed to be included in the work plans developed by all government departments and reported on by each Ministry or Department annually.
The Strategy describes the rights of disabled people and supports the implementation of the United Nations Convention on the Rights of Persons with Disabilities in New Zealand (Ministry of Social Development, 2016, p. 9; United Nations, 2007). The vision of the Strategy is: “New Zealand as a non-disabling society – a place where disabled people have an equal opportunity to achieve” (Ministry of Social Development, 2016, p. 6).
Achieving this vision requires partnership based on respect and equality between disabled people and government, community and support agencies.
Along with other New Zealanders, disabled people aspire to a good life (Ministry of Health, 2001). However, disabled people face huge barriers to achieving the life that so many take for granted. The New Zealand Disability Strategy states “Disability is not something individuals have. What individuals have are impairments … Disability is the process which happens when one group of people create barriers by designing a world only for their way of living, taking no account of the impairments other people have … Our society is mostly built in a way that assumes we can all see signs, read directions, hear announcements, reach buttons, have the strength to open heavy doors and have stable moods and perceptions” (Ministry of Health, 2001, p. 1). The purpose of the NZDS is to create a fully inclusive society. This means “people with impairments can say they live in a society that highly values our lives and continually enhances our full participation”(Ministry of Health, 2001, p. 1).
The Disability Strategy is built around eight outcomes that are interconnected, include and contribute towards achieving the strategy vision. The outcome for education states “we get an excellent education and achieve a potential throughout our lives” (Ministry of Social Development, 2016, p. 24). While the outcome is explained, there are no actions identified to ensure the outcome is reached.
Links to both the 2001 and 2016 Disability Strategies are listed below.
Inclusive Principles, Values and Actions
The Ministry of Education states on its website that “The Education Act 1989, the New Zealand Disability Strategy and the United Nations (UN) Convention on the Rights of Persons with Disabilities all guide our Special Education policy” (Ministry of Education, 2018).
This section identifies some central values, principles and practices that guide and underpin ‘inclusion’ and ‘inclusive education’. These are presented and explored throughout the Voices Project films and resources.
According to the United Nations Committee of the Convention on the Rights of Persons with Disabilities, inclusive education is:
- A process that transforms culture, policy and practice in all educational environments to accommodate the differing needs of individual children, together with a commitment to remove the barriers that impede that possibility. An inclusive approach involves strengthening the capacity of an education system to reach out to all learners.
- It focuses on the attendance, participation and achievement of all children, especially those who, for different reasons, are excluded or at risk of being marginalized. Inclusion involves access, permanence and progress to high-quality education without discrimination of any kind, whether within or outside the school system. It seeks to enable communities, systems and structures to combat discrimination, celebrate diversity, promote participation and overcome barriers to learning and participation for all people (United Nations, 2007).
Below is a list of commonly agreed elements of inclusion and inclusive education.
Principles of Inclusive Education
Inclusive education is about:
- Transforming education and society
- Human rights
- Challenging and removing barriers that maintain inequity and injustice
- A dynamic and on-going process, not a fixed destination or endpoint
- Listening and responding to everyone, including people or groups who are at risk of being marginalised
- Te Tiriti o Waitangi and building bi-cultural relationships, practices and knowledge
- Being responsive to human and cultural diversity
(Ballard, 2003, 2012; Booth & Ainscow, 2011; MacArthur et al., 2005; Macfarlane, Macfarlane, Savage, & Glynn, 2012; Slee, 2011)
Inclusive Values and Beliefs
Inclusive values include equality, fairness, respect for and responsiveness to diversity and human rights.
Beliefs that underpin inclusive approaches include:
- Every person has the same rights and is of equal value
- Every person has a right to experience belonging
- Every person and culture makes a contribution
- Everybody is capable of learning
- Everybody is a learner and a teacher
- Human and cultural diversity is normal
- We are more the same than different
- Our differences are important, they are what make us unique. They should be recognised and valued.
Inclusive Practices
- Working collaboratively and consciously to challenge and replace thinking and practices that marginalise individuals and groups.
- Identifying and removing barriers to the presence, learning, participation and success of all children, young people and adults.
- ‘Attentive Listening’ and responding - to students, families, individuals and groups within the wider community (Lundy, 2007; Veck, 2009)
- Open and critical collaboration, listening, reflection and action as a guide to teaching and relationships
- Resisting actions based on the assumption that we can or do know what ‘is best’ for others
Inclusive education is a requirement.
Good quality education is inclusive.
A Visual Representation of Inclusion
Enabling Belonging and Success at School
For all students, ideas and information need to be communicated in language and formats that they are able to follow, understand and apply. Creating and ensuring equitable access requires different responses for different people. This means diversifying curriculum and teaching. For example, to access an inclusive education, people who communicate using sign language and/or Braille have particular requirements related to language, receiving information, the environment and technology. A less specific example are people with perceptual differences who may understand pictorial representations of knowledge and information alongside or instead of plain text.
Removing barriers
We enable learning when we remove barriers. Barriers can be present in an interaction with any aspect of a school: its buildings and physical arrangement; school organisation, cultures and policies; the relationship between and amongst children and adults; and approaches to teaching and learning. Barriers may be found, too, outside the boundaries of the school within families and communities, and within national and international events and policies.
We may have to resist the temptation to see barriers to learning and participation only in places that lie outside our responsibility, where we have little power to act. While we should be concerned about all barriers; our attempts to remove school barriers should focus on those that educators, children and their families can do something about, especially when they work together.
Identifying barriers to learning and participation is not about pointing at what is wrong with a school. Inclusion is a never-ending process which involves the progressive discovery and removal of limits to participation and learning. Uncovering barriers and devising plans to reduce them, in a spirit of open collaboration, are always positive moves (Booth & Ainscow, 2011, p. 25).
Questioning our assumptions
Our beliefs, feelings and assumptions can stop or hinder us from seeing and understanding things in different ways and from the points of view and experiences of others. In some situations, our values and beliefs will be in conflict with what we do. At times we assume that how we understand and approach people, issues or situations is the correct, entire, ‘best’ or only way of responding.
If we value and want to advocate for inclusion and respect for diversity we need ‘circuit breakers’ to help us recognize our biases, uncover our assumptions and step outside of our comfort zones. It is always important to recognize and consider diverse perspectives, possibilities and connections when making sense of a situation. We especially need to listen to the perspectives of the individuals or groups involved.
