Gay Blood Donors
The Partial defence of provocation
Meetings with Political parties
Education (Freedom of
Association) Amend Bill
Transgender
Adoption
Foreign Policy & Human Rights
Insurance - positive outcomes
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
.
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
Update December 2009.
This Law Commission report from 2007 was of
particular interest to our communities.
http://www.lawcom.govt.nz/ProjectReport.aspx?ProjectID=138
.
Earlier
this year, we wrote to the new Minister of Justice, Simon Power, repeating the
exhortations we had made to the previous Minister, to repeal this partial
defence. Mr Power replied in quite a positive manner. Subsequent events were
quickly to prove his intention, but we like to think that our campaign on this
issue contributed in a small way to subsequent events.
Then
the defence came to public notice as rarely before, in the Weatherston trial.
Although it was not successful on this occasion (he was found guilty of murder)
its use in this heterosexual case produced the public outrage that the many
cases involving the killings of unfortunate gay men had failed to achieve. The
Minister publicly announced his intention to repeal the relevant section of the
Crimes Act. This was, however, still assumed to be part of larger piece of
legislation. But then a members’ bill under the name of Lianne Dalziel
(Labour’s Justice spokesperson) was drawn from the ballot in July, and the
Government immediately responded with a bill of their own. Both bills closely
reflected the model suggested by the Law Commission.
Ms
Dalziel withdrew her Bill, and the Government sponsored Crimes (Provocation repeal)
amendment Bill passed its first reading unopposed, and went to select
committee.
See
the Bill at: http://www.parliament.nz/en-NZ/PB/Legislation/Bills/0/d/3/00DBHOH_BILL9305_1-Crimes-Provocation-Repeal-Amendment-Bill.htm
This
page links to all the debates on the Bill as well.
Rainbow
Wellington made a submission to the Justice & Electoral Committee, as
below:
CRIMES
(PROVOCATION APPEAL) AMENDMENT BILL
1
This submission is on behalf of Rainbow Wellington, a
regional Wellington organization with some one hundred and fifty members and a
mailing list of about six hundred others.
Among other purposes we act as an advocacy group for lesbian and gay
people and those of similar alternative sexual orientation.
2
We support the proposed Amendment Bill.
3
The defence of provocation has been used over many
decades in this country in cases of murder involving homosexual men who have,
or are said to have, made unwanted sexual advances to heterosexual men,
enraging them to the extent that they have lost control and killed the person
who has approached them. It is in
essence a form of victim blaming. It is
known in these cases as the gay panic defence and if successful reduces the
offence to manslaughter. It was used most notoriously in 2003 in the case of
Aucklander David McNee, and more recently in a case upon which we should not
publicly comment because sentencing has yet to take place.
4
It has been used in earlier times as a basis for jury
decisions, in cases of ‘gay bashing’ (as it is known) such as that of Charles
Aberhart, who was kicked to death in Hagley Park in Christchurch in 1964 by six
young men who admitted their offence but claimed that they were retaliating for
a sexual advance. They were acquitted
by the jury, providing the perhaps best known New Zealand illustration of the
use of the provocation defence to mask community prejudice.
5
We believe that it has no place on our statute book
because it rewards violent loss of self control when the basis for claiming
provocation is quite unjustified and the victim cannot put the alternative
version of what happened. This view is,
we understand, endorsed by the Law Commission.
6
If there are concerns about the need to take
mitigating factors into account in cases involving e.g. retaliation by battered
women, these can be adequately canvassed by counsel at the point of sentencing
in the event of a guilty verdict. We
note in that connection that the law has recently been amended so that this
consideration is taken into account in sentencing for ‘hate crimes’ generally
and the philosophy behind the provocation defence is inconsistent with and runs
directly counter to that amendment.
7
We urge the Committee to given careful consideration
to this Bill and to recommend that it proceed by way of the repeal of the
appropriate section of the Crimes Act.
Tony Simpson
Chair
of Rainbow Wellington
-----
We also asked to present
a verbal submission, so, on September 10th, the inimitable team of
the two Tonys (i.e. your Chair and Secretary) duly appeared before the
Committee. Tony Simpson’s
presentation, in supporting the Bill, concentrated on the appalling history of
the clause in successfully defending a number of horrendous gay bashings, and
pointing out the irony that it was an unsuccessful attempt to use the defence
in the murder of a beautiful young woman which finally brought the reaction of
outrage which forced the pace of reform. Our submission got quite a good airing
in the news, especially Radio NZ and the Herald:
http://www.radionz.co.nz/news/stories/2009/09/10/1245c78f8790
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10596554
The membership of the
Committee can be viewed at http://www.parliament.nz/en-NZ/MPP/MPs/MPs/Default.htm?pf=CommitteeShortName&sf=Justice+and+Electoral&lgc=0
The membership has
changed a little since the date of our submission. One notable absentee was
Simon Bridge (who later gave a superb speech in support of the Bill at 3rd
Reading). The opposition side saw “extras” Charles Chauvel
and Kevin Hague. Amazingly ACT, the only party likely to oppose the Bill, did
not send any observers, showing their contempt one supposes for the whole
process.
The only negative
comment on the day was a rather mealy-mouthed contribution from local National
List MP Paul Quinn, that we were part of a general emotional reaction, which
over-emphasised the importance of the clause. We were unimpressed, and Tony
easily answered him, supported by Charles. I suppose Mr Quinn just wanted to
say something a bit negative, but it didn’t matter as we knew he would of course vote in favour of
what was a Government Bill. Of more interest was the role played by Labour
member David Parker, who chose to point out the main issues raised by the Law
Society, the most significant opponents of the Bill. Tony dealt with those too
with ease; the Society’s main role
is of course to represent those defence lawyers who wish to continue using what
is rather convenient clause for them. But Mr Parker’s role was a useful one,
in that it allowed the Bill’s supporters
to fully answer the Society’s points.
In general we felt that
this was a most successful appearance, which gave good publicity to what
Rainbow Wellington stands for. Although this issue was at last
all but done and dusted, there was still some support for retaining the partial
defence of provocation, so any contribution we could continue to make towards
its repeal, the better.
The select
committee reported back to the House, approving the Bill with no changes. It
then sailed through its 3rd Reading, with only 5 votes against. ACT
on this occasion decided not to support victims’ rights, thus making rather a
mockery of their general campaign in this area. Their homophobic justice
spokesman, David Garrett, even issued a press release denying that the clause
had been used to justify gay-bashing. Such is their feeble grasp on reality.
This vote by ACT clearly shocked many of Rodney Hide’s supporters in Auckland.
However,
117 members voted in favour, representing all the other Parliamentary parties,
one of the best results of any campaign we could have hoped for.
-----------------------------------------------------
Meetings with Political
parties
Update May 2010;
Over
the last 18 months, 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, we met with Heather Roy, the 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
May 2010
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. It seems to me
that student associations have a role more closely aligned to those of local
government than of a standard trade union, so ACT’s “closed shop” arguments do
not really hold water in this context.
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.
Adoption
Updated May 2010
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?
-------------------------------------------------------
Foreign Policy and Human Rights
We have been told that Foreign policy is bipartisan,
and so it is in a number of areas. However, there have been recent developments
in the United Nations which have been of concern. This item was included in the
April 2009 newsletter:
The anti-nuclear policy is said to lie at
the heart of this bipartisan approach, and it is certainly true that John Key’s
unambiguous statements that it would not change was helpful in improving
relations with the US, who decided there was no longer any point in waiting
till lunchtime (or even supper) for a change of policy. Just look at National’s
foreign policy statement from last year: http://www.national.org.nz/Article.aspx?ArticleId=28880
.
But the anti-nuclear policy surely does
not exist in a vacuum, but lies at the heart of an independent and principled
foreign policy, and there have been increasing signs that bipartisanship no
longer exists here. And LGBT groups across the world became more involved when
the issues turned to those of human rights.
First NZ dropped its long-standing
campaign to gain a seat on the Human Rights Council, to leave the field clear
for the US. Now it is certainly good that President Obama is abandoning many of
his predecessor’s phobias, and wanting to become involved in improving and
reforming multilateral institutions. And Murray McCully’s press release makes
some valid points: http://www.beehive.govt.nz/release/nz+withdraws+human+rights+council+bid
But the point being made by many is that
this action does not accord well with New Zealand’s long-standing commitment to
human rights, which has been quite independent of whatever the US (or any other
country) might be thinking at any one time. So this action has been criticized.
We were aware a while back that there were
issues developing over the Durban Review Conference on racism, and alerted the
Greens when we met them to the possibility of boycotts. However, it had seemed
that the strenuous efforts to amend the language of the draft outcome document
were paying off. But at the last moment the US, like several other countries
under enormous pressure from some Jewish groups, confirmed their boycott, and
after that the dominos began to fall rapidly. We were first alerted to this by
an e-mail from ILGA, but within hours Mr McCully had followed the US, Canada,
Australia and some European countries (9 in total) by announcing our boycott
too: http://www.beehive.govt.nz/release/nz+not+taking+part+durban+review+conference
.
His press release is puzzling, as the main
reason given is the draft document’s endorsement of the 2001 Durban Declaration
and Programme of Action (DDPA). However, NZ signed up to that at the time with
only one minor quibble, which was about colonialism, and I have found no
evidence that the National Party opposed this at the time. Other areas of concern
such as the “defamation of religion” were precisely those which had been
amended in the draft declaration. So the main reason for NZ joining the boycott
seems to be the government’s adoption of a new ANZUS-type foreign policy.
“Where the US goes, we go”, as Michael Joseph Savage did not say! Again, it is
good to see improvements in human rights policies in both the US and Australia
as compared with their previous unlamented administrations, but NZ has
traditionally been a leader not a follower in these matters, and we have
achieved this by being much more consistent in our human rights policy than
either of those two countries.
If we have to return to a form of colonial
cringe, it might have been better to follow the old colonial power in this
instance. Britain, along with France and most European countries stayed in the
conference. Of course they walked out of President Ahmadinejad’s anti-Semitic
speech, but crucially stayed in the conference, and the next day participated
in the ratification of the final outcome document. See the reasonings of the
British Foreign Office for their policies: http://www.fco.gov.uk/en/newsroom/latest-news/?view=News&id=16643925
.
For more details of the ratification see: http://www.google.com/hostednews/ap/article/ALeqM5jn5APpT2ZFAq0DxaRCOSnZNUfy-QD97N0VAG2
And all official documents, including the
final outcome document, can be accessed via: http://www.un.org/durbanreview2009/ .
But as far as UN policy against racism is
concerned, New Zealand is now outside the tent. Why does this matter for LGBT
groups in particular? For a number of reasons. We are aware that racism,
anti-Semitism, etc. are closely aligned with homophobia, and the associated
discrimination on the grounds of sexual orientation and gender identity. It is
true that UN documents tend not to address this directly, largely because of
opposition from Muslim and African countries. But there are a number of
elements in the document of relevance, notably the paragraph on discrimination
against those with HIV/AIDS. And it certainly does not help the cause if some
of those countries most likely to support anti-LGBT discrimination stay away,
instead of participating. So thank goodness for our old Mother Country, Great
Britain on this occasion, for being there for us, and being in a position to
directly challenge those countries which would seek to deny us any rights at
all. And again a reminder that those countries we now appear to be emulating
mostly have a worse track record on these issues than we have had.
So Rainbow Wellington has written to the
Foreign Minister Murray McCully, stating our disappointment at New Zealand’s
actions for the reasons given above. We can but echo the comments of the UN
Secretary after the final declaration was passed: “The fight against racism is a continuous
process. I therefore hope that those member states who did not participate will
rejoin the international community soon in the fight against the scourges of
racism and racial discrimination." We hope this will include New Zealand –
as soon as possible.
April 2009
Rainbow Wellington members will be
aware that we have been trying to negotiate with the international insurance
company ING for almost two years over the supplementary questionnaire they use
when offering health or life insurance to gay men.
To reiterate the issue: a number of
our members found that when they applied either for health or life insurance,
or to extend their coverage to a new partner, and they identified as gay,
somewhat to their surprise they received a supplementary questionnaire. This
surprise turned to anger in some cases when they were asked: “Have you ever
participated in male to male anal sexual activity” and “Are you currently
participating in male to male anal sexual activity?” Some of those
understandably affronted by this brought their concerns to us.
Our own investigations and analysis
quickly established that asking such questions was almost certainly a breach of
the Human Rights Act (although that has never been tested). That had to be a
matter of concern.
We first took those concerns up with
the Human Rights Commission in the context of a seminar they were fortuitously
conducting into the operations of the insurance provisions of the HRA a decade
on from the promulgation of a set of guidelines for this area. From this it
became apparent that only one major company seemed to be involved viz., ING. We
therefore took our concerns to them direct but with no result. We then formally
referred the matter to both the HRC and the Privacy Commission (this latter
because we considered the questions asked to also be in breach of the
principles of the Privacy Act). Regrettably, after an initially encouraging
response, the Privacy Commission declined jurisdiction.
Following further discussion with the
HRC we returned to ING who initially were adamant in sticking to their guns.
The break through seems to have come when we cited the form of words used in
such circumstances by the insurance industry in the United Kingdom. After
consulting their re-insurer ING have decided that they will remove the
offending questions from the point at which they reprint their standard
questionnaire form and replace these with two other questions: “Do you have
Acquired Immune Deficiency Syndrome (AIDS) or are you carrying the HIV virus or
antibodies to that virus” and “Within the last five years have you been exposed
to the risk of AIDS, or HIV virus or antibodies to that virus?”
This is within the law and avoids
the highly offensive personal nature of previous questions.
We have congratulated ING on their
ultimately positive approach to this problem. Our advice to members
contemplating taking out insurance with ING to take into account the offensive
nature of their questionnaire is consequently withdrawn.
But it also emphasises a further
point. Campaigns of this sort conducted by Rainbow Wellington can be effective
and have successful outcomes and are not just hot air as is sometimes
suggested. But it is also important to bear in mind that the more GLBTI people
we can claim to represent the more impact our campaigns will have and the more
clout we will carry at the corporate and political level. The message from that
seems clear enough: make sure you become a member of Rainbow Wellington
Tony Simpson
Chair
August 2008
