5. Other relevant frameworks

It covers:

• New Zealand Bill of Rights Act and the Human Rights Act
• Te Tiriti o Waitangi
• Disability Convention
• New Zealand Sign Language Strategy
• New Zealand Disability Strategy and Action Plan

New Zealand Bill of Rights Act and the Human Rights Act

The New Zealand Bill of Rights Act 1990 (“the BORA”) affirms, protects, and promotes human rights and fundamental freedoms in New Zealand. All branches of the Government are subject to the BORA.[1]

The rights in the BORA are subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[2]

One of the rights in the BORA is the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.[3] The realisation of this right for Deaf people requires the ability to seek, receive and impart information in NZSL.

Another is the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993 (“HRA”).[4] This includes discrimination on the grounds of physical disability or impairment.[5] Generally, if a Department or agency acts inconsistently with that right, it is a breach of the HRA,[6] and can be the subject of a complaint to the Human Rights Commission, [7] or to the courts.

The two Acts – the BORA and the HRA – therefore work together to define and protect people from discrimination.[8]

Indirect discrimination

Discrimination does not need to be direct, but may be indirect.[9] Indirect discrimination can arise “when a criterion in a law or policy, which is not on its face discriminatory, corresponds to a feature (or lack thereof) of all or part of a group and results in that group being treated differently on a prohibited ground”.[10]

In Ngaronoa v Attorney-General our Court of Appeal gave a Canadian case – Eldridge v British Columbia (Attorney-General) – as an example of indirect discrimination.[11]

The Canadian Supreme Court considered whether the fact that the British Columbia public health system did not fund the provision of translation services to Deaf patients was discriminatory.[12] The Supreme Court held that the object of the system was to secure access to core medical services. The failure to provide translation services to Deaf patients effectively denied them equal access to core benefits otherwise accorded to everyone within the province, and was therefore discriminatory

Te Tiriti o Waitangi

Te Tiriti o Waitangi (“Te Tiriti”) is a founding document of the government in New Zealand,[13] and it is one of the roles of the public service to support the Crown in its relationships with Māori under Te Tiriti.[14]

Te Tiriti forms part of the relevant context or backdrop against which the obligations under the NZSL Act, and to Māori members of the Deaf community, should be interpreted.

The principles of Te Tiriti, relevant under the Treaty of Waitangi Act 1975, are:[15]

• Partnership: Māori and the Crown have a relationship of good faith, mutual respect and understanding, and shared decision-making.
• Participation: the Crown and Māori will work together to ensure Māori (including whānau, hapū, iwi and communities) participate at all levels of decision-making. This includes the right to seek opportunities for self-determination and self-management.
• Protection: the Crown actively contributes to improving the wellbeing of Māori, including support for independent living and the protection of Māori property and identity, in accordance with Māori values. Māori have the same rights and privileges as other citizens.

Disability Convention

The Disability Convention is an international human rights treaty with specific obligations in relation to Deaf people, the Deaf community and NZSL. It was ratified by New Zealand in September 2008.

The Government is required to implement its obligations under the Disability Convention. The Government is also required to report to the United Nations every four years on progress with implementing the Disability Convention.

Departments should have regard to New Zealand’s obligations under the Disability Convention when considering what is required to comply with the NZSL Act. Laws (like the NZSL Act) should, where possible, be interpreted consistently with international obligations.[16]

Departments and government agencies should be guided by the Convention when engaging with Deaf people or the Deaf community, and when making decisions that impact on access to services and information.

Relevant parts of the Disability Convention are set out below.

In New Zealand, an Independent Monitoring Mechanism (IMM) monitors the Government to make sure it is implementing the Disability Convention. The IMM is made up of the Human Rights Commission (HRC), the Ombudsman and the Disabled People’s Organisations’ Coalition, a body that represents the voice of disabled people in New Zealand.

The Ombudsman is able to consider complaints from disabled people that they have been treated unfairly or unreasonably by a Department or agency.[17] This can include consideration of whether a Department or agency has followed the principles of the Disability Convention.

New Zealand is also a signatory to the Optional Protocol to the Disability Convention, which establishes an international complaints mechanism for disabled people who believe their rights under the Disability Convention have been denied. See the Ombudsman’s guide on Making complaints to the UN Disability Committee for more information about this.

New Zealand Sign Language Strategy

The NZSL Strategy has been approved by Cabinet to guide the work of the NZSL Board from 2018 to 2023. It is also intended to guide the NZSL work of government agencies and Crown entities.

The NZSL Strategy has five planning priorities – one of which relates to use / access of NZSL. The purpose is to promote the use of NZSL and social equality for Deaf NZSL users by ensuring they have access to information and services in NZSL.

For each planning priority, the NZSL Strategy outlines aspirational descriptions of what the future will look like in 2023, after five years of implementing the Strategy. In relation to use / access of NZSL, the description states (emphasis added):

Core government services and information, which are the responsibility of key central government agencies … as well as local government agencies are accessible to Deaf NZSL users because they:

­    provide professional NZSL interpreters

­    translate written information into NZSL

­    use up-to-date information and communication technology that provides Deaf NZSL users access to services and information

­    provide services and information directly in NZSL, for example via NZSL fluent staff

­    make decisions that are informed by the [NZSL Strategy] and the use of robust data and evidence.

New Zealand Disability Strategy and Action Plan

The New Zealand Disability Strategy (“Disability Strategy”) is the primary vehicle for progressive realisation of the Disability Convention.[18] Some of the outcomes and actions under the Disability Strategy relate directly to accessibility of services and information in NZSL.  

The Disability Strategy guides the work of government agencies on disability issues from 2016 to 2026. The vision of the Disability Strategy is that New Zealand is a non-disabling society – a place where disabled people have an equal opportunity to achieve their goals and aspirations, and all of New Zealand works together to make this happen.

The Disability Strategy has eight outcome areas that contribute to achieving this vision. Outcome 5 (Accessibility) covers accessibility of services and information, including information in NZSL.

A Disability Action Plan sits under the Disability Strategy and contains specific actions to implement the outcomes in the Disability Strategy.[19]

Disability Action Plan 2014-2018

Actions delivered under the Disability Action Plan 2014-2018 include the development of an Accessibility Charter and Accessibility Guide . 

All Departments and government agencies are expected to sign the Accessibility Charter , which commits them to “...working progressively over the next five years towards ensuring that all information intended for the public is accessible to everyone”. All Chief Executives have signed up to the Charter.

The Accessibility Charter is implemented through a seven-point process, which includes the appointment of sponsors and champions, and the development of an agency action plan. The Accessibility Charter means (among other things):

• meeting the New Zealand Government Web Accessibility Standard and the Web Usability Standard (which includes provision of information through alternate formats, like NZSL videos);
• ensuring that forms, correspondence, pamphlets, brochures and other means of interacting with the public are available in a range of accessible formats including NZSL;
• responding positively when customers draw attention to instances of inaccessible information and processes and working to resolve the situation; and
• adopting a flexible approach to interacting with the public where an individual may not otherwise be able to carry out their business with full independence and dignity.

The Accessibility Guide provides guidelines for the creation of accessible material, including provision of information in alternate formats for Deaf people, like translating the information into NZSL on video, and adding closed (can be turned on) or open (permanently on) captions to videos.

Disability Action Plan 2019-2023

Actions in progress under the Disability Action Plan 2019–2023 to improve accessibility include projects (led by the Ministry of Social Development) to develop a new legislative framework to accelerate progress towards accessibility in Aotearoa New Zealand,[20]  and to improve accessibility of public information. Read more about the Accelerating Accessibility work programme here .