Accessibility and the New Zealand legal environment

Overview

There are several strong legal and policy requirements on agencies to make their websites accessible. Departments need to respond to a mix of legislation and Cabinet directives, as well as international obligations on the government as a whole.

Effective communication and use of public money

Government websites are vehicles for providing information and services to the public. Because of this, if a department wants effective communications to the widest possible audience, it needs to ensure websites are accessible and useful to everyone, including disabled people.

United Nations Convention on the Rights of Persons with Disabilities

New Zealand ratified the United Nations Convention on the Rights of Persons with Disabilities in September 2008. The convention may help guide the decisions of New Zealand Courts.

The convention could be considered in any discrimination case taken on the grounds that an agency had not made reasonable efforts to make its website accessible. Any new legislation or policy must now be consistent with the convention. This puts an obligation for accessibility on government departments. Under the convention, New Zealand will need to show that it is improving its website accessibility.

The requirement for accessible government websites is explicit. For example:

Article 4: General obligations

1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities ...

Article 9: Accessibility

1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

(b) Information, communications and other services, including electronic services and emergency services ...

2. States Parties shall also take appropriate measures to:

(g) Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet ...

Article 21: Freedom of expression and opinion, and access to information

States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, 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, as defined in article 2 of the present Convention, including by:

(a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;

(b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;

(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;

(d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;

(e) Recognizing and promoting the use of sign languages.

Reasonable accommodation

The legal concept of "reasonable accommodation" is clearly applicable, and means that adequate allowance must be made in designing and planning websites for disabled access.

Failure to provide web accessibility constitutes discrimination under the UN convention. For this reason, the anti-discrimination provisions of the Human Rights Act and Bill of Rights Act would apply.

“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. ...

New Zealand Bill of Rights Act 1990 and Human Rights Act 1993

It is generally accepted that government is obligated under the New Zealand Bill of Rights Act and the Human Rights Act to reasonably accommodate disabled people.

Part 1A of the Human Rights Act applies in particular to the public service. It requires generally that government does not discriminate on the prohibited grounds of that Act:

20I Purpose of this Part The purpose of this Part is to provide that, in general, an act or omission that is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990 is in breach of this Part if the act or omission is that of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990.

The references to the Bill of Rights Act are:

3. Application

This Bill of Rights applies only to acts done—

(a) By the legislative, executive, or judicial branches of the government of New Zealand; or

(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. ...

19. Freedom from discrimination

(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

Part 2 of the Human Rights Act 1993 includes:

21. Prohibited grounds of discrimination

(1) For the purposes of this Act, the prohibited grounds of discrimination are— Disability, which means—

(i) Physical disability or impairment:

(ii) Physical illness:

(iii) Psychiatric illness:

(iv) Intellectual or psychological disability or impairment:

(v) Any other loss or abnormality of psychological, physiological, or anatomical structure or function:

(vi) Reliance on a guide dog, wheelchair, or other remedial means:

(vii) The presence in the body of organisms capable of causing illness

Development Goals for the State Sector: Transforming the State Services

Web standards serve all the development goals.

  • Accessible State Services
  • Trusted State Services No egovt without trust in services and therefore agencies
  • Employer of choice:  accessibility/usability growing areas; develop for Web excellence and quality
  • Networked State Services: agile, modular, flexible processes and systems  through good code
  • Value-for-money State Services: Scalable, future-proof, modular, fast

State Sector Act 1988

This arguably puts responsibility on the public service to ensure its systems are accessible to disabled employees, including intranets and computer applications.

56 (2) For the purposes of this section, a good employer is an employer who operates a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring —

(h) Recognition of the employment requirements of persons with disabilities.

New Zealand Disability Strategy

Departments are required to implement the New Zealand Disability Strategy, as directed by Cabinet. See:

Objective 6: Foster an aware and responsive public service 6.5 - Make all information and communication methods offered to the general public available in formats appropriate to the different needs of disabled people