LEGAL FRAMEWORK

THE GOVERNANCE FRAMEWORK

  • Public libraries in Aotearoa New Zealand are funded and governed by local government services rather than elected boards. Communities don’t directly vote on library policies and services. Library managers generally decide on collection policies. Sometimes the collection policy is endorsed by local government councils.
  • School libraries are funded by schools that have elected boards. Individual board members may try to influence library decisions. School librarians write collection policies, but these may need to be approved by senior management and the School's Board of Trustees. Librarians may report to an assigned teacher, or the principal, or directly to the board. 
  • Librarians and library managers are therefore responsible for writing, updating, sharing and applying collection policies - subject to legislation, and influenced by their organisations’ strategies.

Read more about the policy process here. Policies are influenced by legal frameworks, such as those below. This section of the tool kit provides the legal framework for the emerging challenges libraries are experiencing.

LEGAL FRAMEWORK

TE MANA WHAKAATU CLASSIFICATION OFFICE

In Aotearoa New Zealand Te Mana Whakaata Classification Office has a role in the accessibility of some content.

Anyone can submit an item to the Classification Office and request a classification or restriction. If the Classification Office applies a classification or restriction then this must be adhered to across the country and all  libraries (and bookstores, individuals etc) must conform to that classification.

Some items are censored or banned and the judgements of Te Mana Whakaatu Classification Office (dictated by the Films Videos and Publications Act 1993) are used to determine whether controversial material should be banned. 

Libraries can have items in their collection that have been given a classification, and sometimes they need to be managed differently.  Read through this guide for librarians on What to do about restricted and banned items. It is a legal requirement that library staff adhere to the classifications placed on certain books and films. 

  • View the classification process here: the classification process.
  • Anyone is free to seek the leave of the Chief Censor to submit a book for classification via Te Mana Whakaatu Classification Office. This could be another useful step in the process for dealing with a book challenge. Inform the complainant they can make a submission to Te Mana Whakaatu Classification Office through filling out a form on their website. Here is the link to the form: Make a classification request.

In September 2023 the book Welcome to Sex was submitted to be reviewed by Te Mana Whakaatu Classification Office for consideration of age restrictions. LIANZA made a counter-submission in favour of no restrictions being applied. A decision was made by Te Mana Whakaatu not to restrict the publication.

SAFER ONLINE SERVICES 

There is currently (in 2023) a review taking place on regulating online services and media platforms, which also impacts physical content. Te Tari Taiwhenua The Department of Internal Affairs has consulted on a discussion paper proposing changes to the frameworks restricting content that harms New Zealanders: safer online services media platforms consultation.

This would bring the Classification Office under a new broader framework and may see classifications become voluntary.

OTHER LEGISLATION IMPACTING ON COLLECTIONS

Libraries must understand, apply and educate their users about the Copyright Act, and collection policies should include this responsibility.  Librarians should also be aware of New Zealand’s rights framework which includes the New Zealand Bill of Rights Act 1990, Human Rights Act 1993, and Te Tiriti o Waitangi. 

THE NEW ZEALAND BILL OF RIGHTS ACT

The New Zealand Bill of Rights Act 1990 protects the civil and political rights of all New Zealanders. The Act covers defined categories of rights and freedoms, including freedom of expression, non-discrimination and protecting minority rights. You can find a full list of rights and freedoms the Act encompasses at: The New Zealand Bill of Rights Act | New Zealand Ministry of Justice. 

The rights set out in the Bill of Rights Act can be subject to limitations, provided these limitations are lawful, necessary and proportionate. For example, an individual’s right to freely express themselves can be limited to protect people from unsafe content, particularly children and young people. This balance between freedom of expression and consumer safety is central to this work.

 The Bill of Rights Act applies to acts done by the Government or someone exercising a public function. This means that an individual cannot use it to bring an action directly against another private individual or body who may have harmed them, as might occur in an online environment. However, these instances are covered by the Human Rights Act 1993, discussed below. 

THE HUMAN RIGHTS ACT

The Human Rights Act 1993 aims to give all people equal opportunities and prevent unfair treatment based on irrelevant personal characteristics. This includes characteristics such as sex, religious belief, colour, race, disability, age, and sexual orientation. 

You can find a full list at: The Human Rights Act | New Zealand Ministry of Justice. Under the Human Rights Act, it is unlawful to discriminate against someone on these grounds in public life, including employment, education, access to public places, providing goods and services, and housing and accommodation. 

The Human Rights Act also has provisions aimed at promoting racial harmony and preventing discrimination in the form of racist speech. These provisions must be interpreted in light of the right to freedom of expression and so they have a high threshold. Unlike the Bill of Rights Act, the Human Rights Act can also apply to private individuals and entities.

TE TIRITI O WAITANGI

Te Tiriti o Waitangi / the Treaty of Waitangi, signed in 1840 between Māori and the British Crown, is not itself law, but since 1975 many New Zealand laws have referred to the principles of the treaty. The first to do so was the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal. There is no final list of principles, which are referred to in legislation, court cases, Waitangi Tribunal findings and government statements. 

Principles include:

  • Māori retain rangatiratanga over their resources and taonga. 
  • The management of resources and other taonga according to Māori culture as part of tino rangatiratanga.
  • Taonga include all valued resources and intangible cultural assets.

Waitangi Report 262 (WAI262) and the government response to it released in 2019 should result in clearer guidance around the management of mātauranga Māori. Te Pae Tawhiti is a programme of mahi setting the foundational architecture needed for Māori and the government to partner effectively to protect, promote and preserve mātauranga Māori and other taonga in an authentic way that is congruent with a tikanga approach. 

INTERNATIONAL AND OTHER STATEMENTS

Libraries endorse freedom of access to information and in general oppose censorship. They are guided by the following:

  • Universal Declaration of Human Rights (1948) Article 19
    “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
  • UNESCO/IFLA Public Library Manifesto 2022
    “Collections and services should not be subject to any form of ideological, political or religious censorship, nor commercial pressures,” and “Providing access to a broad range of information and ideas free from censorship”.
  • LIANZA Statement on Freedom of Information
    Read the full statement here:     LIANZA Statement on Freedom of Information 2020
  • A commitment to intellectual freedom is a core responsibility for the library and information profession.
  • Libraries should be a vital force for intellectual freedom in their communities.
  • Libraries should be a dynamic part of community life, throwing a spotlight on topical issues to stimulate learning and the exchange of information.
  • Libraries and library staff should adhere to the principles of intellectual freedom, uninhibited access to information, freedom of expression, and the protection of their users’ privacy.
  • Thus, libraries and librarians should:
    • Avoid censorship and promote non-discrimination
    • Acquire, preserve, and make available the widest variety of materials, reflecting the plurality and diversity of their communities.
    • Ensure that the selection and availability of library materials and services is governed by professional considerations and not by political, moral, or religious views.
    • Where relevant in their library service, make space available for and arrange displays and talks to stimulate learning and the exchange of information, while ensuring all in the community feel welcomed and safe. 
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