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Communtity Law Manual | Disability rights | Enforcing your rights under the Disability Convention

Rights that are recognised internationally: The UN Disability Convention

Enforcing your rights under the Disability Convention

What can I do if my rights under the UN Disability Convention have been breached?

You can complain to the United Nations. Because New Zealand has joined the Optional Protocol to the UN Disability Convention, individuals or groups in this country whose rights under the Convention have been breached can complain to a special United Nations Committee.

The Committee can’t order the New Zealand government to do particular things, it can only make recommendations. But the Committee’s decisions and recommendations are important and the UN monitors whether a particular government has actually done what the Committee has recommended.

The UN Committee on the Rights of Persons with Disabilities is made up of 18 independent human rights experts.

The Office of the Ombudsmen has created a guide that explains how to make a complaint to the UN Disability Committee. You can access the guide as a written document, or you can watch the video of how to make a complaint in New Zealand Sign Language or listen to the audio guide: www.ombudsman.parliament.nz/resources-and-publications/guides/disability-rights-guides

Restrictions on complaining to the UN under the Disability Convention

You can’t complain to the UN if you still have some options that you can pursue in New Zealand – for example, by using the New Zealand court system and bringing the issue to the attention of all the relevant national authorities (like our Human Rights Commission). But the Convention says you don’t have to try to pursue these domestic options if the process would be “unreasonably prolonged or unlikely to bring effective relief”. You also don’t have to pursue these options if they don’t have a reasonable chance of success.

For example, in the Australian case discussed below, the Australian government argued to the Committee that the people who had complained (called “the complainants”) could have taken a case under Australia’s federal anti-discrimination laws up through Australia’s federal court system. But the complainants’ lawyers had told the complainants that those discrimination laws wouldn’t protect them, because of some specific exceptions. The UN Committee agreed with them that they shouldn’t have been expected to take this case through the Australian courts with no reasonable hope of success. So the Committee went on to consider the complaint, with a good outcome for the complainants (see below).

How long will it take to go to the UN Committee, and what might happen?

It’s a slow process, taking several years. Also, if you succeed in your complaint, you don’t get a legally binding court order out of it – the UN Committee can only make recommendations to the government.

However, the government will be expected to follow the recommendations. The New Zealand government’s Office for Disability Issues (part of the Ministry of Social Development) says that “the Committee’s decisions represent an authoritative interpretation of the Convention” and that by signing up to the Optional Protocol national governments have accepted that they should “respect the Committee’s findings”.

There’s also a monitoring process so that the UN can check up on whether a government has followed the recommendations.

Example: Complaining to the United Nations under the Disability Convention

Cases: Beasley v Australia CRPD/C/15/D/11/2013 – Lockrey v Australia CRPD/C/15/D/13/2013

Although this case was Australian, it’s useful for us to know about it in New Zealand, as it shows what kinds of cases the UN Committee will consider.

Two members of the Australian Deaf community, Gemma Beasley and Michael Lockrey, were rejected for jury service in Australia because of their impairment. They complained about it to the UN Committee on the Rights of Persons with Disabilities. The two people, both represented by the Australian Centre for Disability Law, brought separate but very similar complaints, and the UN Committee upheld both of them.

This took three years, from bringing the complaints in April 2013, to the Committee’s decision in April 2016.

Gemma Beasley requires Australian Sign Language (Auslan) interpreting, while Michael Lockrey requires real-time steno-captioning. In Australia, both were told that the court and jury systems couldn’t accommodate them. They complained to the UN that this was a breach of their right to equal recognition before the law, as guaranteed under article 12 of the Disability Convention.

The first hurdle: Had they exhausted all their options under Australian law?

The UN Committee can’t consider a complaint if the person complaining still has options they can pursue using the courts and official authorities in their particular country.

In Beasley’s and Lockrey’s case, the Australian government argued that that rule prevented the UN Committee hearing their complaint, because the two could still take a case under Australia’s own discrimination laws through to the top Australian courts. But the two complainants said they’d been told by lawyers they didn’t have any reasonable chance of succeeding, because of the exceptions in Australia’s discrimination laws that cover a “public duty or obligation” like jury duty.

The UN Committee agreed with the Deaf complainants, who had essentially objected that they shouldn’t have to waste a lot of time and money taking cases through the Australian court system that had little chance of success.

Had the Australian government made “reasonable accommodations”?

The Australian government claimed they had made reasonable accommodations for Deaf people doing jury duty. The UN Committee wasn’t impressed by this claim, and said the government hadn’t provided any details or evidence to back it up.

The Committee said the adjustments made so far did not enable the complainants to participate equally on juries. The Committee noted that Auslan interpreting is a common accommodation, often used by Australian deaf people in their daily lives, and that steno-captioning is not a novelty either. The government had refused to provide Auslan interpreting or steno-captioning without thoroughly assessing whether that would mean a “disproportionate or undue burden” (in other words, an unreasonable accommodation). This amounted to disability-based discrimination, and so it breached the Disability Convention.

So what did the UN Committee’s decision mean in practice?

The UN Committee can only make recommendations about what should happen. It recommended that the Australian government enable the complainants to participate in jury duty, providing them with reasonable accommodation in the form of Auslan interpreting and steno-captioning at all stages of jury selection and the court process. It also recommended it reimburse the complainants for their legal costs, and pay them some compensation.

Other ways of enforcing your rights under the Disability Convention

As well as going to the UN Committee on the Rights of Persons with Disabilities, there are some other bodies in New Zealand that play a kind of watchdog role over the New Zealand Government and the Disability Convention – namely the Ombudsmen and the Human Rights Commission. Like the UN Committee, they can’t order the New Zealand Government to do things, but they can put some significant pressure on it.

You can find out more about the Ombudsmen in the chapter “Dealing with government agencies”, under “The Ombudsmen: Watchdogs over government”. As we explain there, the Ombudsmen’s recommendations carry a lot of weight, and government agencies almost always follow them.

Note: In New Zealand, the court system provides support to Deaf people to enable them to serve on juries. The court staff can arrange a sign language interpreter for you, or give you a seat near the witness or judge, or arrange sound reinforcement. You will need to contact the courts in advance to arrange this. You can call them using the “NZ Relay” system, which provides various ways for Deaf or hearing-impaired people (as well as Deafblind and speech-impaired people) to communicate with others. The court system also provides support for other disabilities – for example, providing documents in other formats (like Braille or bigger type) if you’re vision-impaired, or using an accessible court room if you’re mobility-impaired.

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