5. Other relevant frameworks

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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.

The New Zealand Bill of Right Act 1990 external

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 Human Rights Act 1993 external

The two Acts – the BORA and the HRA – 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.

Disability Convention external

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.

The Ombudsman - Fair Treatment for Disabled People external

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.

Making complaints to the UN Disability Committee: A guide for New Zealanders external

Relevant parts of the Disability Convention in this context
Accessibility Article 9, 9(2)(e)	To enable disabled people to live independently and participate fully in all aspects of life, the State must take appropriate measures to ensure equal access for disabled people to information and communications and to public facilities and services. States must also take appropriate measures to provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public. For Deaf people this means providing professional NZSL interpreters and resources translated into NZSL.
Freedom of expression and opinion, and access to information Article 21, 21(b) and 21(e)	States must take all appropriate measures to ensure that disabled people can exercise the right to freedom of expression, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice. This includes accepting and facilitating the use of sign languages in official communications, and recognising and promoting the use of sign languages.
Education Article 24(3)(b)	To enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community, States must facilitate the learning of sign language and the promotion of the linguistic identity of the Deaf community.
Participation in cultural life Article 30(4)	Disabled people are entitled to equal recognition and support of their specific cultural and linguistic identity, including sign languages and Deaf culture.

New Zealand Sign Language Strategy 2026-2036

Since this guidance was published the NZSL Strategy 2026-2036 has been approved. The strategy has 2 strategic approaches:

Energise is focused on Deaf people and NZSL users, particularly children. It involves priorities and actions aimed at ensuring the survival of NZSL and ensuring early acquisition and use of NZSL by Deaf people and NZSL users
Integration is focused on people who do not use NZSL. It involves priorities and actions aimed at ensuring NZSL thrives, and promoting the awareness, acceptance and everyday use of NZSL.

Five priority areas sit under the 2 approaches.

Acquisition and Learning: Enable deaf children / tamariki, and children who use NZSL to communicate, and families and whānau to acquire and use NZSL.
Evidence and Data: Build an evidence-based profile of Deaf people and NZSL users.
Deaf and NZSL workforce: Ensure there is a workforce to support the acquisition and use of NZSL.
Public sector: Improve attitude, acquisition, and use of NZSL across the public sector.
Celebrating NZSL: Enhance the status of NZSL in New Zealand and celebrate NZSL across society and cultures.

NZSL Strategy 2026-2036

New Zealand Disability Strategy 2026-2030

Since this guidance was published the New Zealand Disability Strategy 2026-2030 has been approved.

The strategy includes:

a vision and principles to set the direction for the strategy, and guide work across government for disabled people and tāngata whaikaha Māori
5 priority outcome areas of education, employment, health, housing and justice. Each has a goal and a set of actions to support the goal
a monitoring approach to measure the government’s progress towards delivering the strategy.

New Zealand Disability Strategy 2026-2036 external

Footnotes

[1] Section 3 BORA.

[2] Section 5 BORA.

[3] Section 14 BORA.

[4] Section 19 BORA.

[5] Section 21(1)(h) HRA.

[6] Part 1A ss 20I and 20L HRA.

[7] Part 3 HRA.

[8] Ngaronoa v Attorney-General [2017] 3 NZLR 643, [2017] NZCA 351 at [111].

[9] Section 65 HRA.

[10] Ngaronoa v Attorney-General note 28 at [119].

[11]Ngaronoa v Attorney-General note 28 at [135]. There are no comparable New Zealand court judgments relating to discrimination through non-provision of NZSL interpreting services.

[12]Eldridge v British Columbia (Attorney-General) [1997] 3 SCR 624.

[13] Cabinet Manual 2017 at 1.

[14] See s 14(1) Public Service Act 2020.

[15] New Zealand Disability Strategy at 18.

[16] “It is now accepted that, if possible, statutes should be interpreted consistently with international
obligations”: Helu v Immigration and Protection Tribunal [2016] 1 NZLR 298 (SC) at [207] and also [144], citing Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).

[17] Under the Ombudsmen Act 1975.