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New Zealand Sign Language - Submission to the Justice and Electoral Select Committee [2004] NZHRCSub 2 (28 August 2004)

Last Updated: 26 March 2015

Submission of the

Human Rights Commission on:

New Zealand Sign Language Bill

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To the Justice and Electoral
Select Committee

28 August 2004

Contact person:

David Peirse

Policy Analyst

Direct Dial (09) 375 8649

CONTENTS PAGE

1. Introduction 3
2. Principles to guide government departments 6
3. Relationship between the Principles and the HRA 9
4. Human rights issues in the NZSL Bill 11
5. The right of Deaf people to use sign language in international law 14

1. Introduction:

1.1 The Human Rights Commission (“the Commission”) is an independent statutory body operating under the Human Rights Act 1993 (HRA). The Commission’s responsibilities include advocating and promoting respect for, and an understanding and appreciation of, human rights within New Zealand society.

1.2 The Commission is pleased to comment on the New Zealand Sign Language Bill (“the Bill”). We welcome the measures introduced by the Bill:

1.2.1 official recognition of New Zealand Sign Language (“NZSL”) as a unique New Zealand language;
1.2.2 provision for the use of NZSL in legal proceedings;
1.2.3 empowering the making of regulations setting competency standards for interpretation in legal proceedings;
1.2.4 stating Principles to guide government departments: that the Deaf community should be consulted on matters affecting their language, that NZSL should be used by departments in the promotion of their services to the public, and that government services and information should be accessible to the Deaf community;
1.2.5 setting out a reporting framework for the progress made by government departments in implementing the Principles

1.3 We consider that a number of human rights of the Deaf community underpin these measures, including:

• 1.3.1 rights of linguistic minorities
• 1.3.2 rights to freedom from discrimination on grounds of disability
• 1.3.3 rights to freedom of expression, including the freedom to seek, receive and impart information and opinions
• 1.3.4 rights of access to justice
• 1.3.5 right to health
• 1.3.6 right to education.

1.4 We consider that the Principles in the Bill are consistent with or support the New Zealand Disability Strategy (“NZDS”) with reference to:

• 1.4.1 the NZDS’ vision of a fully inclusive New Zealand society;
• 1.4.2 the discussion in the NZDS of the role of the government in making information accessible and removing barriers to participation for disabled people;
• 1.4.3 action 6.5 “Make all information and communication methods offered to the general public available in formats appropriate to the different needs of disabled people” in relation to objective 6 of the NZDS “foster an aware and responsive public service”.

1.5 Based on NZDS goals, actions and discussions on the role of government in making information accessible to disabled people, we consider there should be provision for a coordinated response across government to issues concerning the promotion of NZSL and making government services accessible through NZSL.

1.6 We agree with the statement in the Explanatory Note to the Bill that “provisions for the use of NZSL interpreters are inadequate”. This statement, directed at the incomplete patchwork of explicit and implicit authorisations for the use of NZSL, also applies to the inadequate supply of NZSL interpreters to meet current needs.

1.7 We consider that additional interpreters are needed across different government departments. Addressing this requires consideration of a number of issues including identifying gaps, resource and training needs for additional interpreters and competency standards for interpreters (beyond the courts).

1.8 The Bill provides a reporting mechanism for progress made in implementing Principles outlined in Clause 9 of the Bill. We consider this framework should also facilitate reporting on barriers preventing the Principles being implemented, actions necessary to implement the Principles, and identification and consideration of issues concerning promotion or accessibility of NZSL which require a coordinated response across government.

1.9 We consider that the Principles in the Bill are worded in a way that suggests voluntary observance whereas the HRA and the New Zealand Bill of Rights Act 1990 (“NZBORA”) have clear obligations which should not be affected by the Principles. We suggest that the Bill provides clarification of this.

2. Principles to guide government departments

2.1 Clause 9 (1) of the Bill provides that a government department “should, when exercising its functions and powers, be guided, so far as reasonably practicable, by the following principles”:

• 2.1.1 that the Deaf community should be consulted on matters affecting their language,
• 2.1.2 that NZSL should be used by departments in the promotion of their services to the public,
• 2.1.3 that government services and information should be accessible to the Deaf community.

2.2 We consider that these Principles provide useful guidance to government departments. They are underpinned by Deaf people’s human rights, and are consistent with or support the New Zealand Disability Strategy (“NZDS”) with reference to:

• 2.2.1 the NZDS’ vision of a fully inclusive New Zealand society;
• 2.2.2 the discussion in the NZDS of the role of the government in making information accessible and removing barriers to participation for disabled people;
• 2.2.3 action 6.5 “Make all information and communication methods offered to the general public available in formats appropriate to the different needs of disabled people” in relation to objective 6 of the NZDS “foster an aware and responsive public service”.

2.3 Based on NZDS goals, actions and discussions on the role of government in making information accessible to disabled people, we consider there should be provision for a coordinated response across government to issues concerning the promotion of NZSL and making government services accessible through NZSL.

2.4 With respect to the principle of making government services accessible through NZSL, we comment that the need for more interpreters has been raised with the Commission by deaf people. In connection with its recent consultations with disabled people on the status of human rights in New Zealand^[1], this need has been raised in the following areas^[2]:

• Education of Deaf and hearing impaired children
• Provision of health services^[3]
• Dealings with the Police
• Emergency situations

2.4 In relation to the needs of Deaf children in education, the Status Report on Rights of Disabled People states
“As nearly 80 percent of New Zealand’s Deaf children are in mainstream schools, the need for NZSL interpreters is growing... A mix of support is available, through advisors and resource teachers and special education resources, but the dispersal of children across many schools places considerable demands on teachers and schools to appropriately accommodate them.”

2.5 We agree with the statement in the Explanatory Note to the Bill that “provisions for the use of NZSL interpreters are inadequate”. This statement, directed at the incomplete patchwork of explicit and implicit authorisations for the use of NZSL, also applies to the inadequate supply of NZSL interpreters to meet current needs.

2.6 We consider that additional interpreters are needed in a number of areas of government activity. Addressing this requires consideration of a range of issues including

• 2.6.1 effective provision for resourcing and training interpreters;
• 2.6.2 competency standards for interpreters (beyond the courts);
• 2.6.3 assessment of current gaps
• 2.6.4 workplans addressing these issues

2.7 There is provision in clause 10 for reporting on progress being made to implement the principles. We observe that the reporting framework is critical to ensuring that adequate progress is made in implementing the Principles.

2.8 We recommend that the Reporting framework should also require identification and consideration of

• barriers to implementing the principles
• actions necessary to implement the principles
• issues concerning the promotion of NZSL and making government services accessible through NZSL for which a coordinated response across government is required

• 3. Relationship between the Principles and the HRA

3.1 We consider that Principles of consultation with the Deaf community on their language including the promotion of the use of NZSL (principles 9(1) (a) (b)) are consistent with the provisions of the New Zealand Disability Strategy and do not appear to raise discrimination issues under the HRA or NZBORA.

3.2 We note that Principle 9 (1) (c) that government services and information should be made accessible to the Deaf community through the use of appropriate means including the use of NZSL, appears to overlap with the anti-discrimination standard in Part 1A of the HRA.

3.3 The anti-discrimination standard for government in Part 1A of the HRA provides for the right of everyone to freedom from discrimination on the ground of disability under s19 of the New Zealand Bill of Rights Act 1990 (“NZBORA”), subject to the justifiable limitations provision in s. 5 of the NZBORA. Accordingly, under Part 1A HRA there would be jurisdiction for a complaint against government in respect of services which are not accessible to people with disabilities.

3.4 In short, a complaint that a government service is not accessible to a Deaf person raises questions about rights.

3.5 However the Principles are worded in a way that suggests voluntary observance (“a government department should, when exercising its functions and powers, be guided, so far as reasonably practicable, by the following principles including Principle 9 (1) (c) that government services should be accessible to the Deaf community).

3.6 We consider that Principle 9 (1) (c) could give rise to the misperception that there is no obligation to provide accessible government services, contrary to human rights obligations not to discriminate on the ground of disability in provision of government services.

3.7 We suggest there should be clarification that nothing in the principles affects any right any person has to accessible government services under the HRA.

4. Human Rights issues in the NZSL Bill

4.1 Human rights issues raised by the Bill include

• rights of linguistic minorities
• the right to freedom from discrimination on grounds of disability
• the right to freedom of expression, including the freedom to seek, receive and impart information and opinions
• rights of access to justice
• right to education
• right to health

4.2 Section 20 of the NZBORA provides that a person belonging to a linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to use the language of that minority.^[4]

4.3 In our view, recognition of the specific legal status of NZSL and provision of the right to use NZSL in legal proceedings are measures which prevent a breach of s20 of the NZBORA.

4.4. The Commission has jurisdiction, under Part 1A of the HRA, to consider complaints about legislation, public policy or practice which may be discriminatory. Section 19(1) of the NZBORA provides for the right to freedom from discrimination on the grounds listed in section 21 of the HRA – which include ‘disability’ and `ethnic or national origin’. Taking into account decisions of New Zealand and Canadian courts on the meaning of discrimination^[5], the identification of discrimination under section 19(1) of the NZBORA can require asking whether there is:

• a distinction being made on the basis of one or more of the prohibited grounds of discrimination; and, if so
• whether that distinction involves a disadvantage to an individual or group.

4.5 The Ministry of Justice advice on the Bill’s compliance with NZBORA[6] refers to a potential breach of the right to freedom from discrimination as “clause 7 gives rise to a distinction on the grounds of ethnic or national origin, and disability (defined in section 21 of the Human Rights Act 1993 as including physical disability or impairment)” [para 8].

4.6 The Ministry of Justice states that:

“no question of discrimination arises as the right of other linguistic communities or any other person in New Zealand to participate meaningfully in legal proceedings is not affected by the Bill, which does not appear to disadvantage other linguistic minorities or disabled groups.”
4.7 The Ministry of Justice concludes that “the provisions of the Bill do not appear to be inconsistent with the rights and freedoms contained in the Bill of Rights Act”.

4.8 We agree with the conclusion by the Ministry of Justice that the provisions of the Bill do not appear to be inconsistent with the rights and freedoms contained in the NZBORA.

4.9 We note that the relationship between s20 and s19 NZBORA raises additional considerations which provide further support to the conclusion that the Bill is not inconsistent with the NZBORA. Rishworth comments that:

“It is plain that state action required so as to prevent breach of s.20 [NZBORA] (and based on reasonable and objective criteria) should not amount, in relation to those who are excluded from its benefits, to unlawful discrimination under s. 19. This is because conduct required by one section of the Bill of Rights ought not to be rendered unlawful by another. The necessary reconciliation on the facts of any case would have to be found in s.5 or alternatively in the very definition of discrimination under s. 19; that it not extend to measures justified and required under s. 20”^[7]

4.10 Section 14 of the NZBORA sets out the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

4.11 In our view the various measures introduced in the Bill to recognise NZSL as an official language of New Zealand, providing for the use of NZSL in legal proceedings and stating principles to guide government departments in the use they should make of NZSL, facilitate the right to freedom of expression.

4.12 Sections 25 and s27 of the NZBORA set out minimum standards of criminal procedure and the right to justice. Access to justice issues are raised (together with issues about the right to freedom from discrimination on the ground of disability) where the right of Deaf New Zealanders to use their language in legal proceedings is denied.

4.13 We consider that measures providing for the use of NZSL in legal proceedings facilitate access to justice for Deaf New Zealanders.

5. The right of Deaf people to use sign language in international law

5.1 The right of Deaf people to use sign language is not specifically elaborated in any UN convention.

5.2 However, all people are entitled to the full range of civil, political, economic, social and cultural rights under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)

5.3 The ICCPR provides, inter alia, for the following rights:

• 5.3.1 Persons belonging to linguistic minorities shall not be denied the right to enjoy their culture and to use their own language (Art 27)
• 5.3.2 Everyone shall have the right to freedom of expression (Art 19 (2))
• 5.3.3 In the determination of any criminal charge against [him] everyone shall be entitled, in full equality, to (a) to be informed...in a language which he understands of the nature and cause of the charge against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in court (Art 14)
• 5.3.4 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law (Art 26); States parties undertake to ensure to all individuals... the rights in the (ICCPR) without distinction of nay kind (on a prohibited ground) (Art 2).

5.4 The ICESCR provides, inter alia, for the following rights:

• 5.4.1 The right of everyone to take part in cultural life (Art 15 (1))
• 5.4.2 States parties undertake to guarantee that the rights enunciated in the (ICESCR) will be exercised without discrimination of any kind as to (a prohibited ground) (Art 2 (2) )
• 5.4.3 The right of everyone to education (Art 13 (1))
• 5.4.4 The right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Art 12 (1)).

ICESCR rights are subject to limitations determined by law, solely for the purpose of promoting the general welfare in a democratic society (Art 4)

5.5 In addition, there is specific reference to the rights of disabled children in the UN Convention on the Rights of the Child (UNCROC).

• 5.5.1 Article 23 recognises that a mentally or physically disabled child ‘should enjoy a full and decent life’, in conditions that ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. The disabled child has the right to special care, which, where resources allow, should be without charge.
• 5.5.2 UNCROC also provides that disabled children should have access to education, training, health care and rehabilitation services, preparation for employment and recreation opportunities. Disabled children should be able to achieve social integration and individual development, including cultural and spiritual development.

5.6 The 1993 UN “Standard Rules for the Equalisation of Opportunities for Persons with Disabilities”. The Standard Rules cover a wide range of areas of everyday life such as access to employment and education as well as rehabilitation and international cooperation. Although they are non-binding, the Standard Rules require States to remove obstacles to equal participation and actively to involve non-governmental agencies (NGOs) dealing with disabilities as partners in this process. The Rules emphasise equal rights and equal obligations – not special rights, but the achievement of equality on the same terms as all persons.

5.7 The Standard Rules contain the following provisions explicitly referring to sign language interpretation and communication with people with are deaf, in the context of accessibility to information and communication, and in relation to access to education:

5.7.1 Rule 5: Accessibility: Access to information and communication. States should develop strategies to make information services and documentation accessible for different groups of persons with disabilities. Braille, tape services, large print and other appropriate technologies should be used to provide access to written information and documentation for persons with visual impairments. Similarly, appropriate technologies should be used to provide access to spoken information for persons with auditory impairments or comprehension difficulties. Consideration should be given to the use of sign language in the education of deaf children, in their families and communities. Sign language interpretation services should also be provided to facilitate the communication between deaf persons and others.
5.7.2 Rule 6, Education.... At the initial stage, in particular, special attention needs to be focused on culturally sensitive instruction that will result in effective communication skills and maximum independence for people who are deaf or deaf/blind.

5.8 The 1975 UN Declaration on the Rights of Disabled Persons declares disabled persons’ rights to freedom from discrimination and declares that disabled persons have the same civil and political rights as other human beings.

5.9 We note the New Zealand delegation’s comments^[8] on the application of UN instruments in the context of rights to sign language proposed in the new UN Disability Convention:

“Mr Chairman, in elaborating a convention, we need to avoid stretching its scope to fit territory wider than that which can comfortably be accommodated within the existing human rights framework. Rather, the convention should include detailed elaborations or specific interpretations of what is required for all disabled people to enjoy their existing human rights. For example:

Communication and linguistic rights for disabled people, the use of sign language for deaf people, or accessible formats of information for people with intellectual disabilities, could be derived from various entitlements such as the right to freedom of expression and the right to political participation and rights related to fair carriage of justice.”^[9]

5.10 Draft articles of the proposed International Disability Convention^[10] provide recognition and are declaratory of rights concerning the use of sign language in a range of areas, including the exercise of freedom of expression and access to information through sign language, the provision of sign language in the education of children with sensory disabilities, provision of sign language to facilitate access to public facilities, and specific support for the right of persons to recognition and support of their specific cultural and linguistic identity[.]

5.11 There is specific support in draft article 13 of the Convention for the use of sign language and other alternative modes of communication in “official interactions” and in relation to receiving and imparting public information to persons with disabilities.

5.12 There are references in draft article 24 of the Convention of the right of persons who are deaf to take part in cultural life, and for States Parties to take all appropriate measures to ensure that persons with disabilities enjoy access to cultural materials in accessible formats, including sign language; enjoy access to cultural activities in accessible formats including sign language; and to recognition and support of their cultural and linguistic identity.

5.13 In addition, there is support for linguistic rights and linguistic diversity in the following non-binding UN instruments:

5.13.1 the “UNESCO Universal Declaration on Cultural Diversity” UNESCO November 2001
5.13.2 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Commission on Human Rights resolution 1992/16, UN General Assembly resolution 47/135, December 1992).

5.14 There is also support for mother tongue education and for bilingual teachers from regional UN sources. See:

• 5.14.1 “The Hague Recommendations Regarding the Education Rights of National Minorities” (High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe (www.osce.org/hcnm/);
• 5.15 The UN Educational, Scientific and Cultural Organization’s Education in a Multilingual World, UNESCO Education Position Paper, 2003 Draft (www.unesco.org )

^[1] The Rights of Disabled People, Human Rights in New Zealand Today Summary Report, Human Rights Commission, August 2004
[2] In addition, we note there is existing provision for the use of NZSL interpreters in the Mental Health (Compulsory Assessment and Treatment) Act.
[3] In medical settings, risks of misdiagnosis and lack of informed consent are very high without the use of qualified NZSL interpreters (NZ Deaf association website: http://www.deaf.co.nz/news).

^[4] In the 2001 Census 28,000 New Zealanders indicated NZSL as one of their languages.

^[5] For example, Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523; Egan v Canada (1995) 124 DLR (4^th) 609; Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143; Law v Canada (Minister of Employment and Immigration) [1999] I SCR 497; M v H [1999] 2 SCR 577; Lovelace v Ontario [2000] SCC 37.
^[6] http://www.justice.govt.nz/bill-of-rights/bill-list-2003/n-bill/nz-sign-language.html
^[7] “Minority Rights”, p401, The New Zealand Bill of Rights, Paul Rishworth et al., Oxford University Press, 2003
^[8] To the Ad-Hoc Committee on the proposed UN Disability Convention, 2003
^[9]http://www.mfat.govt.nz/foreign/humanrights/newsletters/newslettersept03b.html#Convention%20on%20the%20Rights%20of%20People%20with%20Disabilities
^[10] Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities [http://www.rightsforall.org/docs/FinalText_Working_Group_Jan_2004.DOC]