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Civil and Human Rights in New
Zealand Employment
Relations Bill Meetings
with Political parties Education
(Freedom of Association) Amend Bill The
Partial defence of provocation We update this page every now and again, but it is not
possible for us to keep it completely up-to-date all the time, especially when
a campaign may develop quite quickly. More recent information is included in
our newsletters, which are all archived at: http://www.rainbowwellington.org.nz/newslettershome.asp
. CIVIL AND HUMAN RIGHTS IN NEW
ZEALAND, 2010 As a rather
frustrating year for our campaigns came to an end, we felt it worthwhile
summing up our concerns in a press release in the form of an open letter to the
Prime Minster. We quote this in full without further comment: ----- I have been asked by our Board to
write to you and express our disappointment at the record of your government
regarding civil and human rights in this country. As you will be aware from previous
correspondence Rainbow Wellington is a Wellington based group comprising some
one hundred and fifty gay and lesbian citizens and those of related
orientations. We have in addition a
mailing list of about seven hundred and speak on national issues concerning the
civil and human rights for many other citizens of our persuasion throughout the
country about our laws and the ways in which these affect them. It is a measure of our concern and disappointment
that we draw your attention to the following issues: ·
The lack of any progress on the issue of the
extension of rights of adoption by same sex couples, or any indication that the
current government has an interest in pursuing this issue at all, let alone
giving it any priority. This is a
glaring instance of remaining discrimination against gay and lesbian couples in
which we are within a dwindling minority within developed countries. ·
The same applies to same sex marriage. Whereas only a few scant years ago we could
be said to be leading the world in the introduction of civil unions, we are now
being surpassed in this regard by many other developed countries who have taken
the further step in the direction of same sex marriage. International movements of people will force
the hand of any New Zealand government regarding this before too long and it is
appropriate to take steps now to avoid this later. ·
In January 2008 the Human Rights Commission
released the report To Be Who I Am
which was the outcome of a wide ranging enquiry into discrimination experienced
by transgender and unisex citizens. The
previous government pledged itself to the implementation of the report’s
recommendations, and with the change of government we sought similar commitments. To date the implementation of these
recommendations has been slow and patchy, to say the least. ·
There has been widespread and growing awareness
in recent years of the problem of bullying and harassment in schools of those
young people trying to establish their identities by ‘coming out’. A 2007 survey in our schools drew attention
to this and the associated problems of suicide and self harm. We were recently alarmed by reports that the
present Minister of Education seems to be unaware of this and more recent
research to the same effect. We have
written to her accordingly and we are not re-assured by her reply. During work done earlier in the term of your
government under the auspices of the Minister of Social Development into
violence in schools this dimension seems to have been conspicuously lacking in
terms both of awareness and effective practical action despite assurances to
the contrary when we took the matter up. ·
The recent law change to prohibit compulsory
membership of student associations will have a very negative effect on the
social services these associations have historically provided. In particular, from our perspective, they
will almost certainly be forced to curtail the support and advisory services
available to young people ‘coming out’ at a particularly vulnerable time when
they may be living away from home for the first time and in a strange city
where they need all the help and support they can get. ·
The recent change to industrial legislation
allowing for dismissal without reason in the first ninety days of employment
renders our members particularly vulnerable to sacking for reasons of
homophobia. Bullying and harassment in
the workplace because of this is a very real problem regularly brought to our
attention. Two recent cases before the
Employment Relations Tribunal prior to the law change which led to significant
compensation to those discriminated against would have been easily avoided by
the employers under the new dispensation. We also have wider concerns which we
are addressing to you because as a group which has only very recently and still
only partially achieved our legal human rights as full citizens, we are very
conscious of the fact that human rights are indivisible and may be withdrawn. It concerns us gravely to note that some
existing human rights in our society have recently moved negatively. We instance: ·
The Electoral (Disqualification of Sentenced
Prisoners) Amendment Bill (now passed by parliament) which effectively removes
the right of some prison inmates to exercise their vote. We note that the Attorney General has,
consistent with his duty, pointed out that a number of the provisions of this
Bill are inconsistent with the Bill of Rights Act of 1990. The legislation is, of course, inconsistent
with at least one United Nations resolution on the same subject which New
Zealand has ratified (the United Nations International Covenant on Civil and
Political Rights). We also note the
irony associated with this step backwards at the precise moment that the European
Court of Human Rights has instructed the British government to amend its own
laws in that regard to allow prisoners the right to vote within six months or
face at least two and a half thousand legal claims for damages by inmates. ·
New legislation proposes to introduce changes to
our traditional common law approach to assumptions of guiltlessness by greatly
extending the scope of demands which can be made for the production of material
or answering questions to a range of enforcement agencies and officers. Effectively what is being introduced here is
a new crime – the crime of silence. As
members of a group which has been notoriously harassed by the Police in the
past, and whose main defence was silence, we treat any such extensions with
suspicion, and note that a number of other bodies share our concerns including
the Public Issues Committee of the Auckland District Law Society. We feel it necessary to draw these
several concerns to your attention. The
National Party which you lead has, since its inception, presented as a party
which has taken freedom as one of its central watchwords, but the actions of
the government it leads have over the past two years apparently belied this
commitment. We would be glad to have your
comments so we can circulate them to our members and supporters as a response
to this letter, which we will also be circulating. Yours sincerely Tony Simpson Chair
of Rainbow Wellington
17th December 2010. Some of these issues are covered in more detail below. ---------------------------------------------------------------------------
This is the
exciting name of the Bill which includes the extension of the much debated “90
day rule” to all employers, In view of recent cases of workplace discrimination
on the grounds of sexual orientation, the board agreed to send a submission to
the select committee reviewing the Bill. Here is the relevant text of that
submission:
We
are also sensible in the context of this Bill of a recent case in Christchurch
with which members of the Committee may be familiar, in which a Christian based
and integrated school dismissed a recently appointed teacher on the grounds
solely that he was a homosexual, a clear breach of the employment law. Because
of the current law he was able to take a personal grievance and was awarded
substantial damages.
In
summary, therefore, we consider that this provision opens the door to covert
discrimination on the grounds of sexual orientation and will be so used by the
sorts of unscrupulous employers the current law is designed to discourage. We
would therefore urge upon the Committee the deletion of this provision from the
amendment and its replacement with another provision which restores the right
to take a case to personal grievance for those who are employed in smaller
enterprises.
TonySimpson
I appeared before the Industrial
Relations Select Committee on Thursday 16th September, accompanied
by Board member Steve Farrow, to present our submission on the proposed new legislation
repealing appeals against dismissals in the first three months of employment by
larger employers, and to spell out the negative implications for those affected
by homophobia in the workplace. Our written submission had outlined two recent
cases, and Steve was able to add a third. The Committee (at least on the
National side) seemed a bit taken aback by this because it was clearly an angle
they had never considered. We were given a reasonable hearing however, with the
exception of Tau Henare who seemed to me to be bumptious and aggressive
although he stopped short of outright homophobia. It was clear enough, however,
that the government has made up its mind and anything we say will not change
it. This almost certainly fulfils a promise made to employer groups prior to
the election in return for tangible support, and the tactic now must be to look
to the Opposition to repeal this pernicious legislation when they return to
office. Tony Simpson Chair of Rainbow Wellington Postscript: Our fears were dismissed by the
majority on the Select Committee, and the Bill went through. It is probably now
up to individuals to pursue their cases through the Courts, as employers will
presumably continue to use incorrect procedures at times. We will need to be particularly
vigilant where discrimination on the grounds of sexual orientation is suspected
to be behind the termination of employment under the 90-day law. January 2011
We
were recently asked about the current relationship between our communities and
the Salvation Army. As you know, the Army organised the infamous petition
against homosexual law reform in the 1980s, an act which damaged relations for
many years, so that many gay people still feel unable to contribute to the SA’s
fundraising efforts. So the board wrote to them.
“The
international SA did not support the actions of NZSA leaders in 1986 and correspondence
exists in which they recommend no opposition to the Bill and counselled the NZ
[branch] against becoming involved in opposition”. ‘The
SA senior leadership in 1986 were very divided on the actions of the
Territorial Commander that involved the SA in opposition to decriminalisation”. “The
SA in NZ would wish to be as reconciled to the gay community as the gay
community felt appropriate”. “We
would see the right of homosexual people to be protected by law without
discrimination as a very important tenet of New Zealand law”. “The
SA has gay people in its congregations and employment. It works with a
significant number of gay people in its social programmes. I am not aware of
any complaints from gay people who have felt discriminated, devalued or not accepted
by the organisation while participating within SA programmes or activities. The
SA acknowledges that its action in 1986 were unjustified and deeply hurt gay
people and the gay community.” “I
would be keen to learn further from the gay community on ways in which you feel
we can further build bridges of understanding and respect to gay people”. The
RW Board certainly intends to follow up on this detailed, frank and positive
response from the Salvation Army, and a further meeting has already taken place. Meetings
with Political parties Update
May 2010; Over the
last 2 years, we have had productive meetings with Attorney-General, Chris
Finlayson, and with representatives of the Progressive, Green, Labour, ACT,
Maori and United Future parties. These have been reported in our newsletters. In October
2009, we met with Heather Roy, then Deputy Leader of ACT, and reported on this
at the time. We have probably more concerns over ACT than with any other party,
specifically relating to their policies on the Human Rights Act. Their votes in
the House on issues relating to the Act as well as the statements of some ACT
MPs, leave us to strongly question their commitment to its principles,
especially within the context of discrimination on the grounds of sexual orientation.
In practice this currently related most strongly to their support of the
Partial Defence of Provocation, as outlined above. The current situation is
that the ACT MPs appear to be voting as 5 Independents on issues which are not
part of their confidence and supply agreement with the Government, so it may
well be that the party per se has no specific policies on human rights issues,
which in itself is revealing. EDUCATION
(FREEDOM OF ASSOCIATION) AMENDMENT BILL January
2011 We were approached
by the Queer Officer of the VUW Student Association, asking us to oppose this
Member’s Bill currently in select committee. It was introduced by ACT in the
name of Sir Roger Douglas. It basically allows students to opt out of
contributing to a students association, in the name of freedom of association.
The Board decided to send a submission opposing the Bill. As we had only about
three days to do this before the closing date, there was no time to consult
with the membership, but we hope the text below clearly shows our reasoning for
opposing this Bill, and why in particular we believe it would harm the interest
of LGBTI students: “This
submission is by Rainbow Wellington which is a regional group representing the
interests of gay and lesbian people and those of related sexual orientation.
One of our roles is to take an interest in legislation which affects our
members and potential members. We number several M P s across the spectrum of
parties among our vice patrons. We are
opposed to this Bill. This is
because its net effect will be the loss of some choices available to students
in the form of support services. Students are notoriously and perennially short
of money, and if given the opportunity to not pay for a service they will take
the option not to do so for obvious reasons. Previous experience has
demonstrated that if they do not have to pay for their student association
membership they will not do so to the extent that their student organisations
will be severely underfunded or will collapse altogether. This will have the
effect of preventing them from delivering a range of support services to
students. At most
tertiary institutions there is a focus organisation for gay and lesbian
students operating through the student association. Those of such orientations
most typically declare themselves publicly in late adolescence, often during a
period when they are attending an educational institution at a distance from
their family or other supportive friends. It is well known that ‘coming out’ in
what can be a hostile environment is sometimes fraught with problems and
difficulties, and one of the roles of various university student organisations
is underwriting support groups for such students. This is
a role which is best performed by the peers of those who need its services and
is not a role which can be readily played by other university services. If the
ability to service such support groups is lost by declining membership and
resources this role will be lost to the considerable detriment of the young
people involved. We would regard this as a serious retrograde step. We are
also concerned to see such service groups survive because they are one of our
own contact points with the next generation of gay and lesbian men and women
and by maintaining such a contact we can ensure that when their university/
tertiary education is over they continue to know of and have access to further
groups which can offer support and assistance as well as a social context
during their transition to their full adult life. We see
much of this positive work put at risk if this legislation is passed, when
there is no necessity or public demand for it and it appears to be driven
purely by ideological considerations which are largely alien to the New Zealand
way of life. We do
not request to appear before the Committee in support of our views but would be
happy to do so if the Committee should wish it.” A few
days later there was a good letter in the DomPost, which pointed out the
results of such legislation in Australia. Basically, the students unions all
closed down and the Universities were forced to take on many of their duties.
As they did not have the funds to do so, they had to cut courses as a result of
these new responsibilities. As a result, a Bill is now going through the
Commonwealth Parliament in Canberra allowing Universities to charge a levy on
students for these services. So the students will have progressed from
membership of a student body (which they can opt out of) in which they had a
democratic say, to a compulsory levy over which they have no control. That
really looks like democracy in action. However,
in spite of the fact that this is clearly a dogmatic ACT Bill, the National
Party also supports it, and the Bill is currently going through willy nilly. A
rearguard action by the National Union of students is not proving effective.
The Labour Party has promised to reverse the legislation. -------------------------------------------- January
2011 Another
extraordinary members’ bill, under the name of National back-bench List MP Paul
Quinn, appeared later in the year. This reversed the 1993 Act (passed by a
National Government) which allowed prisoners serving less than 3 years to vote.
This Act had been passed because New Zealand had produced its own Bill of
Rights and also signed up to the United Nations International Convention on
Civil and Political Rights. It was clear that a total ban on all prisoners
voting was in contravention of both these legal documents. The
Attorney-General’s report on this Bill duly made these points in no uncertain
terms. Like
many, we had not taken the Bill very seriously. As the issue in itself is not a
core concern of ours, we did not submit to the select committee (although one
of our Board members did so as an individual). Virtually all submissions were
strongly against the Bill, mostly for Bill of Rights constitutional reasons.
Imagine our surprise when the Government (National and of course ACT, led by
the former unlamented ACT MP David Garrett) happily supported it, and ensured
that it was quickly pushed through, with minimal debate. We wrote to the PM,
asking for it to be a free vote, but in vain. We have emphasised that our
opposition to the Bill is not based on any strong views about which prisoners
should or should not have the vote, but on the Government’s appalling actions
in totally over-riding the whole Bill of Rights process. They clearly do not
take either that or the select committee process remotely seriously, which
bodes ill for minority groups such as ourselves. In fact, this bill proved to
be a real textbook case of how NOT to proceed over such issues. A detailed
breakdown of the whole process appeared in our December 2010 newsletter: http://www.rainbowwellington.org.nz/newsletters.asp?year=2010&month=DecemberIssues.asp#godzone
. ------------------------------ January
2011 As a result
of an article by Chris Banks in Express, suggesting that the Government was
still not taking the issue of homophobic bullying in schools remotely
seriously, we wrote again to the Education Minister, Anne Tolley, expressing
our concern. We eventually received a lengthy reply, which can be read here. Although
the response goes into great detail, it appears to cover bullying in general,
and there is no evidence that the specific issue of homophobic bullying is
being covered in any detail. This is in spite of international campaigns which
clearly show it to be a major issue of concern in many Western countries. As
Tony Simpson, our Chair has commented (as quoted in Express) “As it is known
that this is a topic which many schools remain nervous about, it is interesting
that there appears to be little targeting of the issue as such”. ----------------------------------------- Transgender
Update
May 2010: In the
Transgender report commissioned by the HRC and published in 2007, there are
wide ranging and largely common sense recommendations which require action at
the administrative level and some small but significant amendments to
legislation. As there are several Ministers involved we wrote to the principal
ones in the last Government, asking what they are doing to implement the
report. Replies were largely along the lines of ‘we endorse the recommendations
and my officials are studying these’. But Lianne Dalziel, as Minister
responsible for the HRC, set up a process for agencies to report back to the Dept
of Justice on the actions required. This report-back was due for completion in
April 2009. Rainbow Wellington therefore wrote to the new Minister of Justice,
Simon Power, reminding him of the need to take action on the report. Mr Power
confirmed that the report-back process was continuing, and that he planned to
follow the process set out by his predecessor. We will continue to keep an eye
on any developments, and try to ensure that the necessary changes do not just
end up on the back-burner somewhere. The current state of play is summarised
at: http://www.hrc.co.nz/home/hrc/humanrightsenvironment/actiononthetransgenderinquiry/actiononthetransgenderinquiry.php This page appears to be regularly updated. A
reminder that the Human Rights Commission report is at: http://www.hrc.co.nz/home/hrc/humanrightsenvironment/actiononthetransgenderinquiry/resources/resources.php Whilst
there are some developments as a result of the report, progress is very slow,
and much remains to be done. We have continued and will continue to apply
pressure for all the report’s recommendations to be carried out, by whatever
means are appropriate, and to this end have mentioned it at our meetings with
the political parties, persuaded MPs to put down written questions in the
House, etc. Movement
on these issues continues to be very slow, and we have reminded the PM of this
in our open letter to him in December. Updated May 2010 and January 2011 Adoption by same-sex couples is not yet legal
in NZ, even though gay and lesbian single people are able to adopt. This was
the main area left untouched by the last Government, with only the Greens
pushing for reform in this area. Same-sex couples are allowed to adopt in much
of the Western world, even in some rather unlikely States of the USA. RW wrote to the Minister of Justice about
adoption law reform, to receive the response that it is not on his agenda.
There is a general feeling that the Adoption Act, dating as it does from the
1950s, is hopelessly out-of-date in many areas. But tackling this appears to
have made governments nervous. This nervousness was underlined by the
hysterical reactions of some to comments made by the acting principal Family Court judge, Paul von
Dadelszen, which managed to open up the debate again in ways which we could
never have done. His speech covered quite a lot of ground, but it was of course
the recommendation that the ban on de facto and same-sex couples adopting be
removed which got all the publicity. Unfortunately this speech is no longer on
the Ministry of Justice website. The Greens
have long had on their agenda proposals to change this situation by a bill
amending the Adoption Act. More recently, gay Green MP, our vice-Patron Kevin
Hague, has been responsible for introducing such a bill. The
Labour Party on the other hand now seems committed to a total rewrite of the
whole Adoption Act. See these press releases from their Justice spokeswoman,
Lianne Dalziel: http://www.labour.org.nz/news/law-commission-should-lead-rewrite-adoption-laws
http://blog.labour.org.nz/index.php/2009/08/20/dont-amend-adoption-act-1955-scrap-it-and-start-again/
. However,
as Kevin has pointed pointed out, this wider reform never happened, despite the
Law Commission’s report in 2000 (not to mention Labour’s clear commitment in
their 2002 manifesto). As we have reported above, there really is little
likelihood at present of this desired full-scale revision of the Act, with
Justice Minister Simon Power repeating only recently what he had previously
told us, that it is not on his programme of reform. So that really leaves the
Greens’ Bill as the only ball in play at present. After all, repeal of the
provocation defence was originally going to be part of a larger reform, until
wider public concern forced the Government to produce a separate bill. On 21st
October 2009 Rainbow Wellington organised a meeting with Kevin Hague to discuss
the current situation with his proposed Bill. Although only about 14 people
were present, they did represent a reasonable cross-section of our communities,
so that a number of views were expressed. Kevin
began by describing the system for introducing Members’ Bills, which is rather
complex (and really quite bizarre in a way). I shall just draw your attention
to these two features on the Parliament website, which sum it all up: http://www.parliament.nz/en-NZ/Features/d/4/a/49NZPHomeNews180620091-Members-bill-ballot.htm
http://www.parliament.nz/en-NZ/Features/d/a/c/00NZPHomeNews250320091-Members-days.htm
Kevin
described how he had submitted a brief amendment bill to the ballot, which he
had inherited from Metiria Turei. This simply allowed unmarried couples to
adopt. However, it was clear that broader reform was needed to the 1955 Act,
which now totally fails to reflect the reality on the ground. So at present he
is discussing a more broadly based Bill, in the hope that if such a Bill were
selected from the ballot, it could have some possibility of passing. He could
not give a timetable as to when this new bill would be ready, as he was still
discussing with the other parties in Parliament. There may also be a
possibility of “parking” a bill that has been selected in the ballot. This
involves delaying first reading if you think the time is not yet right and that
further discussions might lead to success. But of course, you have to have a
specific and agreed Bill in the ballot to do this. His main concern remains to
introduce a bill that has some chance of passing, and in particular not to do
anything now which might make future reform more difficult. Kevin
also emphasised that, whilst the human rights of gay couples are important,
there is no “right to adopt”. The rights of the child are the paramount
concern, and the argument has to be that this is what the current law
restricts, by limiting the options available for individual children. It was
noted at the meeting that many of the issues involved in adoption had been
modernised in the Care of Children Act, which deals with guardianship issues.
For example, more flexible Maori versions of child care, involving whanau
participation, as well as the possibility of having more than two carers or
guardians, which gets round the potential problem of “step-parent adoption”
having basically to exclude one of the birth parents. There had been intentions
of including adoption with that Act, but they had been abandoned. Indeed, it
seems as if adoption law, whilst admitted by all to be inadequate and in need
of basic reform, always ends up in the “too hard basket” (as also happened at
the time of the Civil Union legislation). The current government also does not
wish to bring this issue further up its agenda, in contrast with its recent
actions on the partial defence of provocation. But
whilst a broader reform is clearly needed, we must be aware that public
attention is bound to fixate upon adoption by gay couples. That is what
happened with Justice von Dadelsen’s speech, and is likely to happen with any
attempt at reform, however broadly conceived. However,
that speech led to a revival of interest in the topic, and people started to
contact Kevin, to give him their stories. This is what he wants, as these
stories are an essential part of the progress towards reform. Opposition is
bound to be more subtle than the former more blatantly discriminatory and
homophobic type. So we need a more sophisticated campaign. Kevin asked that
anybody wishing to help with the campaign contact him, so that a careful
strategy can be involved. For example, he does not want anybody to go rushing
off to individual MPs at the moment, as it is too early in the process. So please
contact: Kevin Hague, MP, Freepost Parliament, Private Bag 18 888, Parliament
Buildings, Wellington 6160. Tel: (04) 817 8253. Fax: (04) 817 6003. kevin.hague@parliament.govt.nz Anybody wanting
more information on the current situation can find quite a lot on GayNZ.com,
which has produced quite a bit on the issue. The Families Commission has also
produced relevant documents on the changing nature of families. And the Rainbow
Families Network will also have relevant resources: http://www.rainbowfamiliesnz.org/ Kevin has
more recently confirmed that this process is continuing, and that he will not
attempt to introduce any bill again, until he is fairly sure that the time is
right. In particular he does not want to produce any Bill which will simply
fall at 1st Reading, and simply make matters worse, by delaying
further any likelihood of reform. But when any Bill is ready, then, as Craig
Young has reported in GayNZ.com, our communities must also be ready: http://www.gaynz.com/articles/publish/31/article_7849.php
. I wonder
if we are? Postscript: In our
July 2010 newsletter, I wrote: And now
the adoption issue has raised its head again, in a recent High court decision.
An unmarried heterosexual couple were granted the right to adopt as a couple,
despite the archaic language of the Adoption Act 1955, which Parliament has been
so nervous about tackling in recent years: http://www.stuff.co.nz/national/politics/3856986/Adoption-ruling-a-beacon-of-hope The
judgment is available complete online: http://www.courtsofnz.govt.nz/from/decisions/judgments
(High Court judgment CIV 2010-485-328 of 24 June 2010). Dean
Knight, local law lecturer at VUW, gave a very good interview on Radio NZ,
which amply demonstrated the absurd position the law is now reduced to, over
who can and cannot adopt. http://podcast.radionz.co.nz/ntn/ntn-20100630-1130-Law-048.mp3 This
judgment is a cautious one, as any judgment in our NZ system of Parliamentary
Supremacy has to be, but is quite radical in the circumstances. It is clear
that Parliament’s constant avoidance of what is increasingly becoming an urgent
issue, involving the severe dislocation between the Adoption Act and our human
rights legislation, is getting under the Courts’ skin. So in a case so
demonstrably unjust, they felt they had little choice. But it is a limited
judgment, and its knock-on effect on adoption by same-sex couples problematic.
It may be that the court is inviting a gay couple to “have a go” too, but
several aspects of the judgment would tend to work against us, notably the 2005
vote in Parliament against including adoption rights in the civil union
legislation. But what really comes across strongly is a plea to Parliament,
that if our system does not like judges making the law, then in the current
mess, for goodness sake get it sorted! Otherwise, this will be the first case of
many, one hopes. It is now ten frustrating years since the Law Commission
recommended liberalisation of our adoption law. In
August, Claudia Geiringer, the Barrister representing the couple in the case,
came and spoke with us at a packed-out meeting. It is clear that the 1955 Act
is hopelessly out of date, depending as it does on such outmoded concepts as
“the stain of illegitimacy”. As a result the Courts, which have to deal with
real-life cases, grow ever more frustrated, as do we all, over the Government’s
continued refusal to update the law. As you see, this is one of the headline
issues in our open letter to the PM in December. ------------------------------------------------------- Gay Blood Donors
Update May 2010 As we have
reached a “natural break” in this campaign, our Chair, Tony Simpson, has
provided this detailed account of the campaign so far: RAINBOW WELLINGTON
& THE NEW ZEALAND BLOOD SERVICE Now that we have reached a plateau in respect of this campaign
it might be helpful for members to put it in some sort of context so that those
who have come to it only lately are fully aware of its origins and the manner
in which we have dealt with it. Some six years ago we began to receive approaches from some
of our members who had discovered in the context of attempting to give blood
for transfusion purposes that they were barred from doing so because they had
had sex with another man (MSM) within the last ten years. What struck most of
our informants most forcefully was that in contrast, this ban only applied to
women who had had sex with men who have sex with other men for one year, which
appeared inconsistent and absurd. On the basis of this and further research it
was clear that these criteria reflected an earlier era in which there were no
fully reliable tests available for the presence of HIV AIDS. This is, of
course, no longer the case. Current testing methods for HIV AIDS are some of
the most reliable known to medical science. In the course of the research we became aware that this was
an international problem, that the rules applied differed widely from
jurisdiction to jurisdiction, and that in Australia in particular (where the
prohibition is one year) this was being challenged. It should be also explained that in New Zealand, unlike most
other jurisdictions, the collection of blood for transfusion purposes is in the
hands of a public health body, the New Zealand Blood Service, overseen by a
monitoring body Medsafe which monitors all therapeutic services and procedures
of this sort. In many other countries the function is either performed by NGOs
such as the Red Cross (as in Australia), or is entirely in the hands of private
commercial ventures (as in the United States) although this is also usually
under the oversight of government monitoring bodies. One of the results of this is that giving blood is regarded
in this country as a citizen duty and it is not unusual for the mobile
collection unit to visit workplaces to collect blood at the invitation of the
management or union representatives.This can lead to considerable pressure and
embarrassment for those who are not ‘out’ in their workplace when they are
called on to explain why they are unwilling to give blood. Our first line of approach was to the Blood Service. It
should be noted in that context that the Service has taken our concerns
seriously from the outset and has listened to what we have to say and responded
at a professional level. Their position is and remains that if there is appropriate
scientific peer reviewed evidence which justifies a change to a more liberal
regime then this will be taken into account and any changes it underwrites will
be made to current criteria. It emerged in that context that they had had in mind for
some time an independent review. This was subsequently conducted under the
auspices of Otago University and as a result some changes were made about two
years ago to the then criteria. In essence these reduced the buffer period to
five years for men who have sex with men (which in practical terms makes little
or no material difference), and defined sexual activity in this context as anal
or oral sex with or without a condom (which does make a difference). We still
consider that these criteria are too stringent. We therefore lodged a formal application with the Human
Rights Commission (HRC) claiming that this was a breach of the legislation
because our members were being unnecessarily stigmatised by the current
criteria. This was done on the basis of a specific case created for the purpose
i.e. a member of our Board volunteered to offer blood to the Blood Service and
when his offer was declined this became the peg for our formal lodgement of
claim with the HRC. As this matter progressed we also became aware that there
was some opposition to our initiative within the gay community itself. Some of
the issues this entailed were canvassed at a forum organised in late 2009 under
the auspices of the Wellington group of the NZ AIDS Foundation. This forum made
it clear that there was a certain amount of misunderstanding about the nature
of our position so we need to clarify those matters once again. Firstly, we have throughout firmly and clearly reiterated
our basic position which is that the safety of the blood supply, insofar as
that can be guaranteed, has to be the paramount consideration in everyone’s
perception of the issues involved. The second point to be made is that all parties to the
issues raised by the current blood donation criteria must ultimately rely on
scientific research conducted in terms of the usual international protocols for
such research including that it is peer reviewed and published in acceptable
forums. We need to make this point because similarly in some quarters our
position on this has been misrepresented as anti science, which is most
certainly not the case. The science based material available is all anyone has
to go on. It is our case that that evidence has been misread or misunderstood Thirdly we do not hold the view that either the current
criteria or the review which led to their adoption are ‘homophobic’. This
expression does not appear in the legislation under which we have pursued the
issues involved and the use of such language is unhelpful in that it serves
only to obscure what those issues are. We certainly do not ‘ignore gay and
bi-sexual men’s HIV prevention needs’ as has been suggested in some quarters,
nor do we claim that there is a ‘right to donate’ which there clearly is not. Finally some of those who oppose change to the criteria in
New Zealand have made some play with the suggestion that this is not a matter
to do with sexual orientation but with sexual behaviour. We are sure that there
is an interesting debate to be had over the relationship between identity,
behaviour and orientation although it is unlikely that the questions it raises
can be resolved now or ever. We need to be clear that however interesting it
may be the relationship between those things is irrelevant to our claims to the
HRC. The question under the Human Rights Act is whether or not discrimination
on the grounds of sexual behaviour/ orientation is over-ridden by
considerations of, in this case the needs of the protection of public health,
and more particularly whether those criteria currently in place for accepting
or not accepting blood from men who have sex with men can be modified without
increasing any risk to the public health while at the same time minimising any
stigma associated with the application of the criteria. It is also apposite to be aware that there has been a test
case in Tasmania (which did not in the event lead to the reduction of the
buffer period). Ironically, these who opposed any change in that context
(largely the Australian Red Cross) justified the one year prohibition by the use
of the same arguments and largely the same scientific data as some of those who
justify no change here from ten and then five years. But notwithstanding that
the Tasmanian case did not succeed, although it clarified many of the issues
involved, some of the evidence presented, particularly that by Dr Scott Halpern
who is an associate professor of Epidemiology in the University of Pennsylvania
Department of Medicine with specific doctoral qualifications in epidemiology
and a qualified medical practitioner with further qualifications in bioethics,
psychology and economics, appears to sustain our own case. Firstly he comments on the existing policies and how they
came to be. He remarks (transcript of evidence p13): “There’s nothing particularly
privileged about the status quo that gives it acceptance in the face of no
data. So the burden of proof to change a policy need not be any stronger than
the burden of proof to maintain a policy, and in cases where a particular group
is being infringed upon in terms of the opportunities available to them, one
could credibly argue that the burden of proof to change the current policy is
actually substantially lower.” The point he makes concerning thresholds is a controversial
one but it should be noted that the Blood Service Review itself accepted this
point and made changes which narrowed the excluded group concerned. What it did
not do was address the question of the widely differing time spans in criteria
as between regimes, ranging from an absolute lifetime prohibition to no
imposition of a time criterion at all in some jurisdictions which rely on
interviews and testing. In Tasmania the default criterion was, we emphasise,
one year. We do not see how both the New Zealand and Tasmanian authorities can
be right. This suggests that what is determining the criteria is as much a
matter of history and culture in interpreting the meaning of the accepted
science that everyone is relying on as much as in the science itself. It is important to remind ourselves that science is not just
a technique but a culture and this culture resides within the context of a
broader society. Like any other culture science has signifiers, hierarchies and
powers, and medical science in particular is notorious for its inherent
conservatism (because of the need for caution in accepting new therapies or
practises in particular), and the role it plays in the political structures of
the broader community. This effect is magnified by the uncertainties inherent
in statistical projection and probability in the specific science dealing with
HIV/AIDS ( for the political context of statistical projection and measurement
see Alain Desrosieres La politique des
grands nombres: Histoire de la raison statistique Paris 1993 – there is an English
translation 1998 by Camille Naish published by the Harvard University Press). The other important point that Dr Halpern makes in evidence
concerns the relationship between the incidence of HIV/AIDS in a particular
population and the risk this poses to the blood supply. It was put to him that
given the incidence of the syndrome in the MSM population in Australia and the
basis this provided for transmission (very similar to that in New Zealand) the
risk was far too high to allow that population to donate blood. Dr Halpern
responded to the effect that although there might be a connection between those
two statements it was neither direct nor simple. His precise words were that
evidence of the source of newly acquired infections “is not nearly adequate evidence
to speak to the question of the relative risk of transmission among MSM versus
another risk group. That is a fundamentally different question that requires a
grasp of the entire population at risk. That’s a basic epidemiologic
principle.” (p20 of the transcript). His evidence goes on to point out that epidemiologists deal
in relative risk. “It is absolutely true,” he says, “that the relative risk of
transmitting HIV is higher among MSM and among many other risk groups, although
I would not say all. That is not a particularly relevant consideration however
when it comes to policy. Policy makers must be concerned with what
epidemiologists call the attributable risk. The attributable risk in this case
if we were to make a policy change is nowhere near 80 per cent. It’s in fact
substantially lower than 1 per cent. So if your rate right now is close to zero
and you suddenly allowed all the highest risk donors to donate blood your risk
would still be approximately zero.” It needs to be recalled in that context
that Dr Halpern is here speaking of Tasmania where the deferral period is one
year. There are some figures cited in the Tasmanian evidence for
South Africa from the American Centres for Disease Control where the deferral
period is six months for MSM for oral or anal sex with or without a condom.
When blood from both homosexual and heterosexual donors is screened in South
Africa using antibody screening it identifies 2.6 cases per hundred thousand,
and one per hundred thousand with NAT testing. This is an extraordinarily rare
incidence. In the United States for instance ‘rare’ is defined by the National
Institutes of Health as one case in five thousand. It is in fact a risk much
less likely, Dr Halpern remarks, than getting struck by lightning. The 2007
Review Committee itself comments on the fact that no RNA positive antibodies
have been detected since nucleic acid testing was introduced in this country in
2000. We suggest that the conclusions reached by the Review
Committee and other opponents of change in the current criteria are based
partly on a conflation of incidence in the MSM population and the degree of
assessable projectable risk that this represents, and partly on considerations
which are not scientific but cultural and political when our position is that
we should be relying wholly on the science. The case we presented to the Human Rights Commission went to
mediation in early 2010 and was inconclusive. This was not because our case
lacked merit. In fact we have been subsequently congratulated by the Blood
Service for the rational and responsible approach we have taken throughout. The
problem is that given the lack of conclusive research evidence both in New
Zealand and internationally which might justify further liberalisation the
Blood Service is not prepared to change its current stance. The only course
open to us would be to challenge that before the Human Rights Review Tribunal,
and we assess that they would take the same view as the Blood Service. We would
thus be entering into a process which would involve some expense to our
membership – we would probably have to brief legal counsel – when we would be
unlikely to obtain the result we want. On a more positive note there are indications that further
current research, particularly in the United Kingdom, will produce scientific
justification for the liberalisation we are seeking, and the Blood Service is
committed to a further review in the next three years. One of the problems is,
of course, that there is little incentive on the part of those able to do so to
conduct research in this area, although we continue to believe that the Blood
Service here is unnecessarily passing up an opportunity to enhance its sources
of supply. We have therefore adjourned our case to the HRC in the
meantime pending international developments which we are currently monitoring
closely. Tony Simpson Chair of Rainbow
Wellington The Partial
defence of provocation
Update December 2009.
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