Session 6, Accountability Mechanisms
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[00:00:00] This recording was made up a second, the Asia Pacific Outgames human rights conference, held in Wellington, New Zealand in March 2011. [00:00:09] Hi, everyone, I think it's my pleasure to be here at this conference today and my name is then I'm from the game has been right slow be in Australia. And coming here to New Zealand and seeing such diversity of people, and particularly having the privilege of hearing the indigenous peoples of this country, speak around these issues has been a real privilege for myself, where in Australia, we're still struggling for even those basic kinds of recognition naughty, not just for sexual minorities and gender minorities, before indigenous peoples. And with that, it gives me great pleasure to introduce the session today, which is on accountability mechanisms. And, you know, it's fabulous to have Laura forms and policy that, you know, theoretically, are designed to benefit communities, people, families, and so forth. But it's essential that these policies and practices be made accountable to those people. And so today, I shall be we have two very special speakers. Our first speaker is Charles Chevelle, who is a member of parliament, and Charles is the Labour Party spokesperson for justice. He has had five years in Parliament and he has been actively involved as a lawyer prior to his involvement in Parliament in all the major same sex law reforms since 1985. Was that right? [00:01:37] Not at all. [00:01:38] And second speaker is Sam McLean, who joins us from the New Zealand Human Rights Commission and who has been a mediated there for four years so has extensive experience in creating and mediating complaints around a range of different issues. So, I would like to welcome Charles to get our topic started for today. [00:02:09] Tena Koto, Koto, Tina, cattle cattle, I'm glad that we got a big venue for this presentation. When the organizers talked to me last year about coming and speaking on the issue of accountability, I thought, maybe I should just try and put a bit of accountability and practice. Because last year, I was appointed to the United Nations global Commission on HIV and the law. And one of the things I've been very keen to do was to talk a bit about our work to report back on it, and to hear any questions. So I'm going to do a short 20 minute presentation on the work of the commission today. But also, I'm very happy to take questions on the present international on the issue of the accountability of elected officials, generally, particularly the queer community is something that I've thought a lot about. And I think it's something that we all need to work very hard on. Anyway, to the particular presentation and hand. Last year, the United Nations Development Program whose administrator is now of course Helen Clark, our former prime minister, in the United Nations joint program on AIDS, which is a partial initiative of the UN dp and and the other UN agencies decided that there was a gap in the and the evidence around the best way to stop the law, from oppressing people at risk of HIV [00:03:56] and [00:03:58] manners in which to you the law, to [00:04:04] facilitate means to stop the spread of HIV and to empower communities at risk communities as far as the human rights are concerned. So if you can imagine kind of moving from the old British colonial model of the sodomy statutes, through to the sort of models that we're trying to operate in places like New Zealand, Australia, most of Western Europe and Canada, at the moment. The the issue here is, what is the evidence that making that move actually makes a difference on health and human rights grounds. And there's a surprising paucity of the evidence around it. And what the UN agencies decided to do, is try to bring together judges, lawyers, politicians, public servants, ha homered had some experience in working on law reform initiatives. And to try to tap into the experience of those people with a view to getting them to hear further evidence from affected groups and communities and put together a definitive report, which could then be used to demonstrate that this type of Law Reform continuum was the way to go. If we wanted to make a difference globally on HIV. The Commission had its first meeting and Sao Paulo, last October. That was the first opportunity we all had as commissioners to meet one another, to map out our work program. And to have a look at the particular issues that we thought we needed to study in order to make the sort of difference that we hope we can make. And so what I wanted to do today was just take you through what we discussed, what our forward with programmers, and hopefully encourage you to tell your friends and colleagues about this initiative and to participate in us and indeed, we have people in the room who've already taken up that challenge. So that's the membership of the commission 14 people. I started with the ex presidents up at the top because they kind of brave their own oxygen. But they are fantastic individuals. Cardozo when he was president of Brazil, made made a major difference, particularly in respect of drug law, reform, and, and respect, have safe sex education. And you can imagine the challenges and a big Catholic country that he faced, but he just said, Look, if we're going to be serious about the issues, this is what we have to do. Face to smile. Similarly, in his time in Botswana, it was interesting talking to him. He said, Look, you know, it is very hard to talk about these issues openly in Africa. And it wasn't possible for me even though I wanted to to ask the legislature to to put a repeal bill through because they still have that dreadful old British colonial sodomy statute on the books. But he said what I was able to do is he'd have the executive branch of government was essentially stop prosecutions from occurring in Botswana. And so he affected a kind of defect ID criminalization. Which, you know, was, was, I think, a real example. And I just like to acknowledge Maryland wearing hose come to the room, my former a former member of the New Zealand parliament, who who knows these issues very well. Then we've got representative Barbara Lee from California. She has done enormous amounts of work particularly on the afro American and Latino American communities on how to get effective prevention measures ass and to the communities. Diamond Carol kiddo, the only woman in the PNG parliament, again, somebody who's been a real pioneer in terms of how you how you challenge traditional turbos and how you try to use the law and legal opportunities in order to make a difference. And then we've got the former MPs senator Anka corn from Thailand. Representative Chicago Rivera from Costa Rica, and former MP, provincial MP from Ontario Stephen Lewis. Posada Rao, who's a former head of the health ministry, the federal health ministry in India. [00:08:43] The two judges Michael Kumi now retired from the High Court of Australia, Edwin Cameron on the Constitutional Court of South Africa to African academics, Miriam witty, and Sylvia tamale. And I think important for this exercise, Shereen alpha kit Vicky, who was a former journalist on Al Jazeera, and for the economist who brings a very important Islamic perspective to the work of the Commission. [00:09:16] So when we meet with we thought, Well, what are the [00:09:20] what are the areas in which we can try to gather evidence either making a difference, as far as using the laws concerned, we looked at the profile of the epidemic, at least as far as the latest statistics were concerned, can be seen that women are somewhat over represented. At least as far as the developing world is concerned, that's not shine precisely on that chart. But we'll come to that later. And we've got, we've still got an ongoing major mortality problem and too many new and fictions. This is a graph that shows is the profile of the epidemic over time. And, and obviously, the number of deaths has come down thanks to the availability of retro virals. That's the the yellow dots joined together. And also, the absolute number of new infections has been coming down, hopefully, thanks to prevention programs and safe six messages. But of course, the absolute numbers of people living with HIV is still increasing. Un dp and un aids have done some work on the various scenarios under which we might be operating going forward, complex matrices, including the availability of treatments, and changes to societal attitudes and laws. And I've come up with a number of scenarios, many of which I think, are actually quite depressing. What we want to do is come right down to that structural change scenario and be unashamed advocates for that. And obviously, structural change includes dismantling oppressive laws and putting in place those laws that do actually safeguard people's human rights and allow them to participate in society, without fear, and without, without discrimination so that they can access the full range of services that they're entitled to, including prevention services and treatment services. So the first were extremely decided on was one around gender. And although As I was saying, in the previous graph, the absolute distribution between men and women of HIV and fiction is roughly half and half in the developing world, and in particular, in Sub Saharan Africa, you see a very different picture emerging. So obviously, any work that we're going to do, that tries to tackle but problem, particularly in the developing world has to look very seriously at the way in which women, particularly young women, are impacted. [00:12:11] And this is a [00:12:15] diagram that shows the two ways that you get from given theory from gender gender inequality issues through to people being forced to despite man and unprotected sex, and depends on which analysis you want to use, whether it's kind of because men tend to be physically and socially dominant, and societies, particularly where this is an issue. Therefore, they can get away with violence against women, therefore, women can't negotiate safe six, therefore, they end up having unprotected sex or whether you go for the economic analysis, you know, men control economic resources, women are economically dependent on them, therefore, they can't negotiate save 60 if we get the empty conceit on a specially care, which is more valid, I think, it just shows that there's a problem needs a solution. [00:13:06] So basically, women and HIV is our first week strain. The second week stream that we felt the evidence lead us to require to consider was marginalized and criminalized populations. I hate that terminology. But it was easier than saying, Mr. f6, with me and people who use injecting drugs, people in prisons and and you know, other basically, people really with HIV who are prosecuted for having HIV, which, you know, still still cries galore in some places. So that's the shorthand that the Secretariat has decided on. And again, if you have a look, one of the major issues here is the availability of evidence, again, because there's no standardized requirements around reporting by particular nation states. But look, here's a step by it, the distribution view and fictions by sources of risk, and some selected African countries, both in southern and eastern Africa, and in West Africa, and live, the basically locked ups. The there's obviously the hip sexual and fictions, that's the bottom line, then, multiple partner, and fictions, meter f6, with me, and people using ID, intravenous drugs, [00:14:28] sex workers, and then in another category. Now, [00:14:32] these aren't reliable stats, they are self selected. [00:14:36] Only one jurisdiction, Kenya actually measured, present based and fictions. But even if they're not entirely accurate by show that if you're not dealing with six workers, mean f6, with me and IV drug users, then you're really failing, and your duty to try to do something about this problem. [00:15:03] And in terms of [00:15:06] the [00:15:09] and guess, the UN General Assembly, country progress reports and 2008. Here's the difference. And again, it's a bit rough, as far as six workers, IV drug users, and he may seem a consumed the train. And the solid rate graph. As far as countries where there are non discrimination laws, the pink one is really around his his how much easier people say others to reach prevention services, we've got some protection from the law as against those, we're, it's not, for any of us in this room, this is going to be a surprise, you would be amazed at how surprising it is to people who've never had to think about these issues. And finally, again, an area where stunningly there is not great evidence, it's because of the lack of standardized country reporting, and the fact that some countries just don't do it. Here's prevalence of HIV reported HIV amongst adults, that's the small purple bar versus adult men who have sex with men. And it's, you know, it's different jurisdictions again, but it just shows that as as it what in New Zealand, if you don't tackle the problem at maximum of six of me, and you're not actually taking the problem seriously, and that isn't just in developed countries. [00:16:45] But another survey that essentially [00:16:50] shows that and countries we're in Africa, men have come for me know, six men have come forward to participate and devise the, [00:17:04] you know, the [00:17:06] smaller steps are awful, actually, and again, shy that, you know, you've got people who just are being prevented from coming forward to access services, because of the fear of discrimination. And I thought this one was an interesting one, again, it's a little bit rough and really, but you've got the old British colonies and the Caribbean, Jamaica, Ghana, and Trinidad and Tobago that still have the old, seven or 14 year hard labor penalty for consensual homosexual acts and private versus some of the form of European colonies and the Caribbean, the Dominican Republic, the Bahamas is different, because they've they switched early on from the old British model to a more European model, Syria name and Cuba. And there's the difference and HIV prevalence, the same region between countries that have decriminalized and those that haven't pretty compelling, even if there's a side as a little bit [00:18:09] rough and really, as far as the states are concerned. [00:18:15] And then as far as National AIDS responses are concerned, and I should say, if anybody wants this presentation and the graphs on, I'm very happy to make it available, or if there's a conference website or something, you know, it can go up on the material is publicly available. And basically, this is a graph showing the percentage of countries by region that report programs designed to actually try to change the attitudes. And then there are those that don't. And you can see, again, there's a big difference. [00:18:49] region by region. Finally, [00:18:54] and I want to make sure I leave time for questions. So I'll [00:18:59] have a conclude shortly after this. [00:19:02] treatments are a real issue. Now. We've been waiting for the vaccine for 20 years. We've had good availability of retro virals, we've we've learned about the cocktail. We've managed through generics to make effective treatments, more widely available, particularly in developing countries. So those are all good things. And you can see that the mighty thanks to the Global Fund, the the increase and the availability of entry retroviral treatments, has been significant now whether that will continue, given the failure of the replenishment last year, or the substantial failure of it to reach its targets, either, I couldn't say. But you know, obviously, there's a real illustration of how far we've come and how far we need to continue to go. But the concerning development, I think has been around what appears to be the effect of intellectual property treatment, treaties, and laws brought into being as a result. And again, I'll just summarize this in this way, we have been more effective at driving the price down. As far as existing retroviral treatments are consumed, then we have been bringing new treatments and innovative treatments on to market so we can get the price down of the things that we already use. But there's been a major down tech, and people being willing to come up with with kind of the next, the next level or the next step of treatments. And I think that's what we've got to have a look at whether or not IP law is causing the reverse. And if it is whether or we can maintain push downwards, pressure on price, upwards pressure on availability, but also continue to incentivize innovation, because that would appear that we're falling down in that area. So just in summary, where to from here for the commission, we're going to hold a series of regional hearings, we've had one really, for Asia Pacific, it really irritates me how the UN thinks of Asia Pacific is one vast kind of homogenous region that they protect Asia Pacific off of the hearing and Bangkok and 1617. February, I think we need to do something that's specific, that is specific to the Pacific. And I'm trying to have a little side negotiation for you in the P about using its regional office, sub regional office and Fiji for that purpose. At some point, there's a Caribbean regional hearing which Michael kV is going to preside it on the 12th and 13th of and we're going to run one in the middle at all, actually probably three across the Middle East and North Africa, one and Eastern Europe, one in Latin America, one in Sub Saharan Africa, but it might have to be more than one, one for the high income countries to deal with the particular issues probably in the US. And then we're going to have a, a kind of call for expert submissions on on the three weeks Ray machines across the board in a way that's not limited to regions, but talks generally about about interventions that are proven to work and laws that are proven to demons to to not contribute to the solving the issues. The full commission is going to make twice again once in August, to review the results of the regional hearings. And then to kind of work out what needs to be done to distill the evidence that comes from those hearings, in order to produce its final report, which we're trying to get done by December, and then the hard work actually begins and that we're all going to have to start trying to work out how we lobby to get evidence based recommendations adopted, particularly developing countries, we're [00:23:18] entering Eastern Europe and other countries where [00:23:23] at the moment, a penis of rather than a, an empowering response is still seen as the appropriate one to the epidemic. So finally, there's the website of the Commission. And that's got a good level of information about what we're doing. I hope this isn't just going to be another one of those you in projects that produces a lofty sounding report, and it doesn't go anywhere. But of course, that's always the risk. And the only way we'll we'll have any hype of going some item actually doesn't happen is to get wide participation in broad participation. So that we can actually demonstrate that we have looked at the evidence about what makes a difference. So my plea to you today. And and hopefully offering you my accountability for being on this commission as please participate. Thanks. [00:24:21] I'm obviously happy to take questions. [00:24:29] And as I said, I don't mind if they're on the work of the Commission on or on, you know, what the hell day in peace think we're doing in Parliament. And you know, how we should be relating to our communities or whatever? [00:24:46] Does the commission have any relationship with the guys on with who [00:24:51] the World Health Organization [00:24:55] was yet another agency that Yeah, connection with our firm next door? I was wondering whether to give me the official or the honest response. [00:25:05] Yeah, this is the first involvement I've had with the UN and I am a little bit astounded at how little the various UN agencies seem to cooperate. But obviously, who is one of the kind of parent organizations of you, and I'd see you and I is a big sponsor of bus. So they're aware of our work [00:25:29] in in support of all that, and there's already been mentioned, and [00:25:37] I think and the [00:25:40] and the lightest, World Health, I'm just trying to remember the name of the gathering smart, very, not the Congress, assembly fix Maryland, already been mentioned in the latest assembly of the work. And similarly, for example, the you in human rights bodies are active involved in supportive of, of this week, at a participating and sending material to us and suggestions about how we might go forward. So I'm told that that's not Not bad. Not a bad level of cooperation as far as the unions consume. [00:26:20] Well, thank you very much for your time. [00:26:24] And [00:26:26] if you would like to get in touch with me offline, I'm easily available through email, the parliament website and New Zealand, or on Facebook. [00:26:44] Now used to dash off to this important ministry or business. Oh, excellent, great. [00:26:52] We're more than happy to have you stick around. Now, it's my pleasure to present Sam, who's joining us from the New Zealand Human Rights Commission, where she's going to just talk a little bit about the work that she does as a mediator in relation to sexual orientation and gender identity complaints. Thank you, sir. [00:27:17] Right. Okay, so I'm going to talk to you today about the Commission's complaints mechanism, and relate some case studies on sexual orientation and gender identity discrimination. Okay, so our mandate for progressing complaints comes from the Human Rights Act 1993, and also the New Zealand Bill of Rights, it is referred to in the Human Rights Act, in terms of complaints against the government or government activity or bodies carrying out a public function. The unlawful discrimination provision, sorry, unlawful discrimination provisions. Discrimination itself isn't defined. However, as a guideline, we use a complaint if it has a ground of unlawful discrimination, an area of public life covered by the act, and someone's disadvantaged or treated differently. And there is an absence of exempt an exemption or justification contained in the act, then that comprises unlawful discrimination, and we can [00:28:41] progress the complaint. [00:28:47] There the grounds of discrimination, sexual orientation was added was one of the last ones to be added in 1993. And gender identity is covered by six. Georgina bear tried to introduce a Human Rights Amendment Bill that was specifically would have included gender identity as a ground of unlawful discrimination. That didn't happen. However, the government lawyers at the time produced a an opinion a legal opinion that said that gender identity was covered by the ground of six. Up until that time, there had been some sort of confusion or lack of clarity, and the Commission had approached the government on a number of occasions to clarify that matter. So the areas of public life in which discrimination needs to occur for us to be able to progress a complaint, those listed there and governmental power public sector activities were added in 2002, following a 2001 amendment. Prior to that, the Commission had been able to get him involved in complaints to do with employment with the government was concerned, but otherwise, we weren't able to progress complaints about government activity. So the the other areas are employment, access to education, access to public places, provision of goods and services, provision of housing, land and accommodation, industrial and professional associations, qualifying bodies, and partnerships. other provisions relating that the Human Rights Act covers outside of discrimination and terms of progress in complaints, racial disharmony, sexual harassment, racial harassment and victimization. Victim ization covers situations where someone has claimed their human rights or hasn't expressed an intention to claim their human rights. And so if someone has done that, and they are victimized because of that, they can make a complaint to us and we can progress that. So the dispute resolution process, the objects of edge are covered in Section 75 of the human rights set. And under that section, there are various provisions that are there in order to the commission is sorry, mandated to facilitate information provision, recognized successful resolution is more likely if it is resolved promptly by the parties themselves. Obviously, recognizing in some situations, that's not appropriate. Support flexibility. So we do this by accommodation, the needs of the parties, we can use email, teli, conferences, video conferences, our preferences, face to face mediations where that where that can happen. However, we can use various methods for resolving complaints. And obviously, the Act was designed to ensure that we used efficient and formal and cost effective processes. The the introduction of mediation also occurred in 2002, after the 2001 amendment. [00:32:48] Previously, complaints had been handled through investigation, and they had been backlog. And those could involve huge processes of interviews, witnesses and taking statements, and they could take months and months to resolve. And the idea was to speed up the process to make it more efficient, more effective, and have more ownership by the parties involved. So that's when mediation came in. And it's a free confidential environment, Tree Service, walnut tree in the, obviously in the framework of a statutory setting. So when we approach a respondent and you know, they're not terribly happy about coming along to a mediation, we inform them that, you know, they always ask, obviously, what happens if we don't attend? We always have done for them that the other party has the right to go to the human rights review tribunal. So when we say voluntary, there is an incentive to come along to a meeting. [00:34:05] Okay, so when we get a complaint, which we can get in any form, someone can phone in with a complaint, or we have an online form or there's email, or people write letters, fine up. Yep. So we have a frontline staff info line who take the calls, and they, they sort of screen them to see whether it falls within our mandate and whether it should be passed on to a mediator. And so if it is we look at it, and if you know, people will say I've been discriminated against will look at it in terms of the Act. And if on the face of it, it looks like discrimination, we take it and we progress it. So we don't make any finding at any stage of this process about has there been a breach of the Act or not. If in the complainants view, there has been and they have been discriminated against, we take that at face value. So then we once with had the complaint and decided it's within our scope, we seek the complainants view about what they would like to do about it. And we contact when they want us to we contact the other party, and we go back to the complainant to talk about the other party's willingness to participate. And then we decide on an action with the complainant. Sometimes with complaints, people don't want to go through the whole process of a mediation, sometimes they want us to phone up and talk to it might be an employer and their child might have paid for a job or the person themselves may have applied for a job and been told we don't employ a woman or whatever. And rather than have a mediation meeting, they just want the commission to inform that person that we've had a complaint and to inform that those actions are liable to our process. If the if the complainant doesn't wish us to take it any further, that's as far as we can take it. And we can't enforce anything on that person. So so very much depends on what the complainant wants. So as I said, we decide on the action and then go from there. [00:36:31] So just looking at the dispute resolution spectrum, you've got sort of negotiation between the parties, facilitation, mediation, conciliation, arbitration, and then litigation. So we're sort of in the middle of mediation. And if our process, so if I go back to when we get complaint and the parties, if they agree to come to mediation, we a face to face meeting. And usually there's a settlement and an agreement drafted or a letter or whatever is appropriate for the level of the complaint, the parties wishes. So if it's mediated successfully, and there's a resolution and a settlement, that's the end of the measure, that commission closes the file. And that's the end of the complaint. If there's no resolution, or if the respondent refuses to come to a meeting, the complaint is closed at the commission level. And then we advise the parties have the rights to go to the human rights review tribunal. So that's where there is a completely separate and independent agency dealing with matters that go to litigation. You'll see there another title, the Director of Human Rights proceedings, a party to a complaint can apply to the Director of Human Rights proceedings for free legal representation. So it's sort of like the legal age. However, the director will take into account a number of factors when deciding whether to represent somebody such as likelihood of success as a strong case, is it going to affect a number of people? costs, obviously, he's you know, he's accountable for those costs. So there are a number of factors before he actually agrees to take on a case. [00:38:45] So just just looking at some of the [00:38:49] components of, of mediation, [00:38:52] it can be an empowering process with it, the parties own their [00:38:59] own the way that gets resolved. [00:39:03] And they're very much a part of the discussions, they're given the opportunity to speak there, they have the opportunity to hear the other party's views. It's a place where reality testing and creation can happen, the mediation can help the parties assess how realistic is it for them to take this any further. And what's likely, if they don't settle at that stage, it can be educative to the parties to hear the other person's viewpoints. And can enable ongoing relationships or assist with ongoing relationships, especially in the employment arena. And their subjective outcomes. So it's what the parties agree to what suits them. So it's not something that's imposed. [00:40:03] These are some of the benefits of mediation, shift perceptions, create greater understanding, to help people make wise decisions. better ability to respond to cultural differences, we can accommodate different needs of people, rather than the formal sort of court processes. And there are more options available for resolution. What what one person considers a resolution, another person may think that's just not going to cut it back. You know, I've had a mediation where where it was, you know, a cup of tea and a walk around a campus was was the outcome that the person wanted? And it was agreed to so it's a very broad scope of what of what can resolve a measure. [00:40:59] Of course, there are alternative views about mediation. One of it is one question, and Is it right to mediation, right? Does the confidentiality of mediation impede the potential for educative reform? Well, the confidentiality obviously governs the process and means that the parties can have fallen frank discussions, however, it means that the information exchange cannot be used in any alternative arena or at a later date or different forum. So there's protection there. However, you know, there isn't the publicity around a court decision or whatever. So you have to weigh up those pros and cons really. [00:41:55] Okay, so now, I'm just going to move on to some case studies. [00:42:02] And, you know, [00:42:04] it may be that for a party, just being heard, does have some effect or helpfulness in their lives. And, you know, a resolution may not happen, but they, they get the chance to let the other party know, how their actions have affected them, and hopefully, that may Institute some change in that particular person. So, mediation, meetings can take various forms, often people will have either support person or an advocate, or solicitors often attend. When solicitors become involved in mediation, it can be really helpful, and it can be really a hindrance, so very much depends on the approach of the there, solicitors to the process of mediation. Yes, so I mean, you know, it's, it's just variable according to that particular person on the day. So, sometimes a mediation won't be resolved at one missing and there will be ongoing discussions, and that may happen through the mediation, or there may be shuttle mediations, or possibly video conference or whatever, at a later date. So, sometimes one missing is all that can be had. And the discussion goes on. Other times, it's all resolved on the day, and the settlement is drafted on the day. So I'm just going to talk about three or four case studies of sexual orientation and gender identity complaints. And in the Commission's latest report, human rights and New Zealand 2001. The chapter on the rights of sexual and gender minorities identified that uncertainties and gaps remain around the rights to found and form of family. This case study present provides an example of discrimination in this area of life, a lesbian couple who were awaiting the arrival of a foster child that informed the agency they were working through that they were a lesbian couple, they had filled out the application form they had gone through training, they were informed, and were led to believe that everything was going along smoothly, and they would get their child on the appointed day. They were then informed that the board of the agency had decided that no, they couldn't foster the child to to their sexual orientation. It was a Christian family services agency, partly funded by child youth and family. Their own in house legal opinion was that they did not come within the Human Rights Act jurisdiction, as they were not providing a service and a contractual relationship to the foster parents. The couple were totally bereft and understandably upset and came to the commission. [00:45:36] The Commission's own legal opinion was that there were arguments in favor of the agency coming within our jurisdiction because it appeared that they were carrying out a public function under Part One or a of the Act which covers public functions. The mediator progress the complaint, the couple wrote to the agency asking it to change its policy to meet anti discriminate standards in the Human Rights Act and to compensate them for their financial and emotional investments and preparing to foster the child. The agency was willing to attend mediation to acknowledge that it's stress caused, but indicated there was no possibility it could change its policy to not discriminate on the ground of sexual orientation. It explained its religious basis and offered compensation at a some listen that requested at mediation, the agency didn't change its position, but offered sincere apologies for the hurt caused and agreed to pay a higher sum of compensation. The couple decided not to take this matter further to the human rights review tribunal to test the agency's claim that policy did not fall within human rights sec jurisdiction, they agreed to settle and indicated they would in future offer to foster directly through child youth and family. And another case study. Lucy was a transgender woman who applied for life insurance with her partner when they got a mortgage. Her partner's application was approved and six weeks later, she still hadn't heard back from them. She anticipated it was taking longer to process because she had disclosed she had gender reassignment surgery. She approached the commission about her concern that this related to her gender identity and was discrimination. She received a letter from the company telling her application had been deferred for a year, because it fell outside the level of risk covered under the company's usual underwriting guidelines. Her doctor and her insured insurance agent requested the insurance company reconsider its decision. The company approved of her application, she was happy with the outcome and being able to discuss it with a mediator had helped support her through the process. So often mediators are there in a supportive role rather than directly contacting the respondent. They assist the complainant to do that and may make suggestions about who else to get involved to support them. [00:48:23] And this measure, a gay men had tried to donate blood but discovered he could not because he is he is a sexually active gay man. He complained to the commission of sexual orientation discrimination. The Commission put his complaint on hold pending the outcome of an independent expert review into blood donation criteria. The review group recommended the deferral period for men who have had male to male six and be reduced from 10 to five years before they can give blood. The complainant had questions so the commission arranged a mediation Mr. between him and the inside Blood Service. He said the meeting was productive and could see that they were doing everything they could. New Zealand Blood Service accepted the review recommendations, the standard period has been reduced to five years in relation to specific sexual practices. New Zealand Blood Service then went on to work with the New Zealand AIDS Foundation to improve its communication and understanding in the gay community about the different criteria. Since then, the Commission has received another complaint in which it was believed the post review changes did not go far enough. That complaint is ongoing. And another measure. This exemplifies the low level resolution process that the Commission engages in, either as transgender male to female and was employed as a driver. She had been using the female toilets every place of employment, and was told she couldn't do that anymore, and would have to use the accessible toilet. She believed her employers view changed since they found out she had not yet had surgery. She contacted the commission about her rights, the mediator discussed with her how she could approach this. She was provided with the link to the transgender employment fact sheet on the Department of Labor's website. And it was just she passed that on to the employer. Also, she was to give the employer the mediators contact details. She provided the health and safety supervisor with the information and also a supporting letter from her doctor. And the situation was returned to how it was originally, she in particular hadn't wanted any fast. So the low level resolution so shutter [00:50:56] frontline staff deal with many complaints, empires which do not come they come to mediators as they are dealt with by the information advisors on the front line. And every year we receive complaints about the school board schools not allowing students to take this same six banner along to school boards. As a result of having a number of complaints on that measure, we have produced a frequently asked question sheet which is available on our website. And we suggest to students and schools that they use this and guiding their decisions. We receive a lot of complaints from people about homophobic comments made by colleagues and employers. [00:51:49] I'm just looking at our view. [00:51:54] We also receive a number of complaints about how to change 62 sufficiently, what are the marriage rights for trans and intersex people, harassment by manager for being transgender people refused access to a District Health Board transgender therapist, prisoner taken off medication for transitioning. So that's an example of some of the questions [00:52:21] we get through our queries. [00:52:29] And this is just a [00:52:31] graph illustrating the number of complaints with grants that we received the percentage of our total complaints. So you can see that the the total percentage is pretty low in terms of all of the grounds of discrimination. I don't know why that is. I'm not sure if it's to do with the process or, or whether people just managed to resolve issues themselves or what that is. So I guess that's a question as to what that could be about. So that's, that's my presentation. Thank you. [00:53:22] Thanks. [00:53:23] Um, how many? Do you know how many cases each year the Director of Human Rights proceedings is actually progressing for last two or three years? [00:53:34] That's a very good question. I can't give you exact figures. [00:53:39] Did I have in House Counsel enough? Sorry, how many? [00:53:42] There are three lawyers that work for that office, and is the director and two other solicitors they would be taking cases but as well giving you guys advice from the front line, or if you got actual didn't know, we've got lawyers that work in commission. So the two agencies are independent and separate from each other. Obviously, we communicate and they ask us for our information on the complaints that we received, and we provide that, but we don't provide any information that happened within the mediation process. So I don't think it's a huge I mean, I think he gets a lot a lot of the applications, but I'm not sure if the number of cases that actually proceed with that actually segues quite well into my next question, which was if it doesn't resolve at the mediation stage, and it is go up to the, to the next stage to the at the director looking at given the confidentiality sections that are in the UK, what is it that you guys actually pass on? Because I'm aware that a lot of people come to your office, and they have to spend a full bring up and there's a verbal complaint? And I'm aware that mediators will take written statement from people are those, which I'm not sure is that is that taken by you guys in the context of mediation? Or in half in? Is it being passed on or not passed on? Okay? Those are really good questions, because they act, the way it is framed is fairly ambiguous talks about dispute resolution process, that information disclosed within the dispute resolution process, and then it talks about mediation. So there are ongoing discussions between the Commission and the Office of Human Rights proceedings about confidentiality and where the lines are drawn. We tend to anything that's provided by a party on the understanding that it's confidential, and it's not to be disclosed to the other party, we obviously don't hand over that information. we hand over information about the actual complaint. Once a measure, once we enter into mediation, which can take place on the phone prior to a mediation meeting. We don't hand session information on but the the lines of pretty blurry. [00:56:12] Okay, so what I'm hearing from you is that [00:56:14] the if someone comes in with just having made available compliant or compliant with the phone referred to you take a statement from them. Yeah. In dates before you've contacted the other side, obviously, in in, in seeing without agreed to mediation, that's all fair game to them. [00:56:33] Go on [00:56:35] estimation doesn't see who is just that initial complaint would be part of what would be handed over. [00:56:41] Right. And also anything from the from the [00:56:45] person who was the subject of the complaint, because another often statements are being taken by those people as well. Well, it depends when, again, it depends, there's no sort of stripped down. So when you can sort of mediation or the dispute resolution process, step. [00:57:00] appreciate this nice, stripped down. So but so what's the current print [00:57:03] versus like? [00:57:05] This? Yeah, I mean, it's fairly arbitrary. [00:57:11] Deciding when mediation starts, and as part of my role I, I'm that I receive requests for information from national office. So I look very carefully at watch. You know, looks like it's confidential. And often the media will mark something in, in mediation, so that certainly helps. But it is yeah. I'm afraid there's no definitive answer to that. [00:57:45] Hi, I'm sorry, if I missed this point at the beginning of the lecture, but I know that Bill of Rights Act has to be taken into account when parliament is drafting new legislation, and also has to be taken into account when courts are interpreting legislation that already exists in if there's an consistencies. I'm just wondering what the Human Rights Act is, what kind of influence if, if it does have much influence on other legislation, either already on the books or being drafted? The Human Rights set? Yeah. Is there is I mean, does it have any in the way that the Bill of Rights Act does? [00:58:20] No, there's no sort of check for in consistencies in terms of new legislation. And it's just the Bill of Rights. And I think that the Bill of Rights Act does refer to the sorry, the Human Rights Act, first of the Bill of Rights Act. So in terms of a specific process, checking out legislation, I think there was some, there was a review done in about 2000, or 2001 review of in consistencies of laws with the Human Rights Act. And when the last human rights [00:59:00] status report was done in 2004, a lot of work was done about [00:59:06] working in future with ministries around ensuring that their legislation is in line with the Human Rights set. So I think policy, they do a lot of work around that. And obviously, in submissions on bills, they always put forward human rights legislation to be considered. So it does take place in different ways. Yeah. [00:59:40] I'm going to use not appropriate to share [00:59:45] the foster care scenario that they will this is [00:59:48] pretty much exactly the same situation that we had in New South Wales. [00:59:54] Two years ago, now, same sex now capital, was seeking to foster child from Western Michigan, which is a favorite organization [01:00:04] to provide that, as you articulated. Thank you. And so my question is, it's interesting, you said that that case seemed to hinge around the fact that that agency believed that they weren't providing a contractual service, whereas in the case, I'm referring to it hinged on the exemption and the availability of an exemption. So I guess my question is, how, how broad are the exemptions to anti discrimination laws, and particularly concerned with faith based exemptions and where organizations are in receipt of public money? [01:00:46] In terms of organizations being in receipt of public money? [01:00:53] I'm not sure about the exemptions there. [01:01:01] vs. Sitecore [01:01:01] example, in New South Wales, faith based organizations are entitled to an automatic exemption, even if they are in receipt of public funds, and they are contracting government service. That's effectively that the case from [01:01:16] that that doesn't exist here, then yeah, automatic exemption. I mean, I think that would have been an interesting case to have gone to the tribunal in terms of whether the tribunal would have found that they were providing a public function, therefore, were covered by the act. So that I mean, there are exemptions is a religion, there's an exemption to discrimination and employment on religious grounds. It's a specific exemption in the Act and the Human Rights Act. So there are a number of specific exemptions relating to the different areas of public life within the act. And I could provide more information about that there, you know, this exemptions on I think, on the grounds of age, there's an exemption relation to genuine occupational qualification, those kind of things. [01:02:11] But just in your opinion, are they quite broad? or other fairly narrowly defined [01:02:17] their fear? Or they're, they're defined? So that there's an ambiguous and there's room for interpretation? Yeah. So they are quite bored, I guess. [01:02:29] Great. Yeah. Thank you. Yeah. [01:02:38] So go ahead and do that, Caroline. [01:02:42] And just thinking about [01:02:44] the position crisis, and I never been in [01:02:46] the program to try to [01:02:48] resolve disputes about people that you that you speak [01:02:55] with speakers, additional staff, [01:03:07] I guess it's [01:03:10] in terms of dispute resolution, it's sort of [01:03:16] creating some sort of safe space. [01:03:21] And some sort of trust in the process, I guess. [01:03:26] And, [01:03:28] yeah, and just ensuring that both parties really get the opportunity to, to speak [01:03:34] and to, [01:03:37] to say how it's really impacted on them, you know, like, [01:03:42] on a personal being, how what has been done has had an impact, so that the other person get gets to hear that rather than just the sort of angry reaction, they get to hear the hurt. So, yeah, I don't know how helpful they that creating a safe space, and allowing the parties to really, to really express themselves is really important. And I think that probably culturally, there are those kinds of mechanisms in a lot of places Anyway, you know, mediation, I think, as a Western kind of concept that has roots from a long time ago, and various cultures. So it's not really anything new in some ways. [01:04:36] Any more questions? Yes. [01:04:46] The opportunity to use a cultural forms of mediation. I think it's also just a point to note that, in what the Pacific for example, it's not all inclusive. And if you have to have mediation, it has to be inclusive, inclusive, in sense, that agenda, you know, sexual orientation is, is taken into account. The the forms of mediation that currently exists in a lot of the Pacific Islander culture is not really that all inclusive. So just my word of caution, really. [01:05:17] Are there any other comments from audience members relating to the presentation as well? Yep, at the back. [01:05:31] Hi, I'm a trans activist from India. [01:05:34] So in my country, I have a friend who's a trance, and she [01:05:39] added to the child, [01:05:40] but her ID shows that she's a female, that is a reason she was able to add up the child, if her identity was like a trance, or something else she couldn't be able to. So my question is, what is the situation is in New Zealand, if any chance woman can adopt a child, or if she can add up the child was at the consequences she has to face? How did you see any case? I mean, reported to your commission so far. [01:06:08] I think request trans adoption. So [01:06:12] are there any exemptions or, or that kind of thing? Right? [01:06:16] The adoption issue in New Zealand is the adoption act as 1955. So the the laws around adoption are pretty old. In terms of adoption. I know that, up until recently, there was a court case recently, and watch, it was decided that it affect Oh, heterosexual couples could adopt. But it still remains that same sex couples cannot adopt single people I think can adopt now whether a single trans woman could adopt? [01:06:55] I don't know the answer to that. But I can find out. [01:07:00] I don't, I don't see why. In terms of single people being able to adopt I don't see why not on the face of it. But I don't know. So I'll find out. [01:07:12] If I can add as well, just to provide the Australian context as well. So in four states in Australia, same sex couples are eligible to adopt. Singles have already always been allowed to adopt in heterosexual defector couples have always been able to adopt as well. And there is no specific discrimination against trans people as singles adopting and now is a same sex couple. If you were both identifying the same way, there would be no issue around adoption. The only time it arises is faith based exemptions. So where you went to adoption provider and you sought to adopt a child or foster child and they said sorry, we don't, you know, cater for same sex couples or trans couples, gender diverse couples, and so on. That's the only time there would be an allowance of discrimination because of the exemption. [01:08:07] I think it's probably the same here that a trans woman can adopt. But I'll check it out. Yep. [01:08:18] There has been a successful gay adoption. In New Zealand, Nigel's, for example, just reflecting on one of the things you said before, about how low the figures were, I know when I was just doing some reading for yesterday morning, I was again really shocked by the figures from Mark Hinrichs and lavender Island survey, which demonstrated that only 42% of all gay couples in New Zealand were out to everyone they knew and the figure of sync of single people was about 29% who were out to everyone they you and I think that possibly even taking a complaint is a scary place for the majority of of govt people in New Zealand. You know, at the end, I'm just thinking max figures are only about five years old, I think. And I don't think we've had a, you know, extraordinary transformation in that period. And that may be some kind of explanatory factor behind these. Thanks, Marilyn. [01:09:52] Thank you all for coming. We've finished on time actually we finished early so I not sure if the afternoon tea has arrived but it should be outside so feel free to go and enjoy your long extended afternoon tea.
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