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Uh um it was quite weird, uh, being at the forum last night, it was who Who was there last night? And most, most people, But so we had, um, on the on the stage Fran Wild, Catherine O'Regan, Tim Barnett and and Louisa. And of course, I'm working [00:00:30] with with Lewis on on this campaign. But I, um I was involved in homosexual law reform, sort of being led by Fran Wild. And I was my particular group was, uh it was the anti bigger committee, and and, um ABC It was easy in in Auckland. And actually, one of one of the particular things that that that we worked on was a guy called Richard Flynn, who was a pastor in a reformed church who believed that, [00:01:00] uh, rather than, um being allowed to have sex legally, we should instead be put to death. Um, so So we're sort of that's that was kind of one of the spurs to action. But then what I'm gonna talk to you today about actually relates a lot to the work that I did with Catherine. Because at that time, uh, I was working for the New Zealand AIDS Foundation and Uh, and we We worked very closely with Catherine's office, [00:01:30] uh, to achieve that change to the human rights, uh, to the Human Rights Act. Um, and interestingly, one of the people who worked for me at that time was Tim Barnett, who, uh, who wrote a couple of reports was he just arrived from from Britain and was kind of saying, What can I do to help? And And we said, OK, well, there are There are two groups that we're worried about who might get exemptions from [00:02:00] the Human Rights Act. And they are the police and the armed forces. Uh, and so, uh, Tim, we commissioned to write reports, looking at all of the international evidence and precedents so that we could mount effective arguments to stop the police and armed forces getting those exemptions. So hearing about for those who were there last night, hearing about the situation in the military was also another thread through the cell phone. Um, [00:02:30] right, I'm very open to talking about whatever you want to hear about or or talk about. But what I have in mind to talk about in this session is, uh, a a few things. One is, uh, human rights or the the human rights framework and how that relates from the international sphere down to New Zealand. The second thing is the thing that that might seem like it's not really about human rights, and that's actually public [00:03:00] health. But I intend to demonstrate how these two things are related. And then I want to talk about their relationship to both marriage equality and to adoption. So that's my basic plan. Um, if there are particular things you want me to hit on the way, say so now or, you know, pipe up any time during the session. Yes. I, I quite been quite interested to look at, um, [00:03:30] where we are in the in the not so much the hierarchy of human rights systems, but that look at, um, strengthening human rights and making them much less subservient to, um, to and and less about discrimination, actually, as well. Um, it's not that discrimination isn't important, but it doesn't seem to be, um, the kind of transcendent, if you like human rights framework in New Zealand. [00:04:00] Um, and we don't include privacy in it either. Even, um, which I think is AAA. You know, a very important absence, Really. It seems so many other things seem to depend on privacy. Actually, the sort of the judgments about our freedoms really are our literally freedoms to do what we want in private frequently. I mean, if that's not the only damage in privacy, but, um, that's that's correct. Um, I know, I know. We can hit that on the way. So, [00:04:30] Joseph, um, it would be kind of interesting to hear your opinion on whether, um, whether the inclusion of gender gender entity into the, um, Human Rights Act as prohibited grounds of discrimination is actually like a really, really useful thing or whether you think that actually does do that in other ways. Yep. Oh, sorry. And also, if you think that, um, marriage celebrates who refuse to marry couples on the basis of their sexual orientation in important exercise, endeavour in [00:05:00] religion is unjustified. Discrimination against them on that government without giving a legal opinion, of course. Yeah. OK, well, that's good. If if there are other things that crop up as we go along, just say so. Um, the human Rights Commission, if they were giving the session, probably would start with uh, the Universal Declaration of Human Rights because actually, human rights [00:05:30] law in New Zealand comes from that. And that's, um, that was from 1948 was when the Universal Declaration was was, uh was passed, um, and started to become international law and that, um, if you think about that time 1948 is that's in the immediate aftermath of the Second World War. And so this this idea that every human being, um, is [00:06:00] born with some fundamental and inalienable rights and freedoms, regardless of what country in the world they're they're born into or any other aspect aspect of them was was an idea that that was kind of a very, very strong expression of of those times and in particular, what the drafters were were [00:06:30] concerned about was how how those would play out at at a a very personal kind of level. Uh, there's there's a very interesting dialogue around around collective rights versus individual rights to what extent is a person you know, a sovereign individual as opposed to being part of a wider, wider collective. But the the human rights law [00:07:00] is very much in that that mode of of an individual perspective. Um, Eleanor Roosevelt was, um, really instrumental character in in developing the UN declaration and one of the things that she said in kind of response to What are these? Human rights? Um, was, uh, I remember it. Right. Uh, where [00:07:30] after all, do universal human rights begin in small places close to home are so small and so close that they cannot be seen on any map of the world. Yet they are the world of the individual person, the neighbourhood he lives in the school or college. He attends the factory, farm or office where he works. These are the places where every man, woman and [00:08:00] child seeks equal justice, equal dignity and equal opportunity without discrimination. And that's that's kind of the basis. That's that's what the Universal Declaration set out to do since 1948. The, um, there's There was a lot of buy in to the Universal Declaration by states around the world, Um, but not necessarily translation [00:08:30] into into their own individual state laws, and that came later on. So if you if you have the, um, Universal Declaration of Human Rights, that's, um 1948. They It wasn't until I guess the late 19 sixties that that there was a lot more thought at an international level [00:09:00] about translating that into into more precise rights. And in 1976 I think it was We got two different instruments. Uh, one is the International Covenant on Civil and Political Rights, and that has within it. So things like, um, the the the the right to vote freedom of association. Um, right to privacy. [00:09:30] You know, the the the these are these are rights and the way in this international covenant. Crucially, for us, this contains uh, the, uh, anti discrimination. Um right. So the right to be free from discrimination, it actually doesn't mention sexual orientation. Um, but what it does is it gives AAA list of of specified grounds. But it says that discrimination [00:10:00] you have everyone has a right to freedom from discrimination on grounds such as and then just the list. And the courts have have ruled internationally that that such as, uh, includes sexual orientation. The other one is the, um, International Covenant on Economic, social and cultural Rights. [00:10:30] Um And so? So we put 1976. I think both of these were eventually ratified, um, and and that that, um, that covenant includes many of our workplace workplace rights. You know, the the right to work. Say, uh, uh, right to expression of culture. Freedom of expression. Um, [00:11:00] crucially, one of the rights that, uh, that this incorporates is the is some a collection of rights around families, including the right to found a family. Also the right not to be forced into a particular kind of marriage. Um, so So when there is an argument that there is a human right that exists to marriage, [00:11:30] for example, it is through it is through a legal argument based on these two covenants. Now, since since those since those, um, international covenants were were ratified, there have been actually a bunch of other documents. So, for example, there is, uh, see, which is the, uh, uh, convention [00:12:00] on the elimination of discrimination against women. Um, and, uh, another one is un croc. Basically, this is how you become a diplomat. You actually, you learn these acronyms and that gives you access to this world that is otherwise exclusive. Um A is the the the United Nations Convention on the Rights of the Child and [00:12:30] There's probably about another 10 10 of these that are on things like torture. Uh, the UN thinks it thinks it's a bad thing. Um and, uh and so that's the That's the the canon of international human rights law. Um, the the, um I mean, one of the the probably the most recent addition to those, at least from the from New [00:13:00] Zealand. Signing up to it is, is, um, the drip is the, uh, the UN Declaration on the rights of indigenous people. And as I say, there's there's lots of others and in general, the you know there are there are UN mechanisms. I mean, the the problem with these international instruments is that enforcement is kind of weak. Um, but there are mechanisms that are that are based more on embarrassment. [00:13:30] So individual states have to report to to various bodies within the UN family on their implementation of these international instruments. And so and at the same time, those bodies will also get a report from, say, NGO S, uh, sort of community organisations concerned with those issues about a about that [00:14:00] So, um on the Commission on the Rights of the Child, for example, that mechanism whereby community organisations also report to the UN on how well New Zealand is doing. And implementing the convention has been a very effective pressure. Um, on our government No OK, wow! In New Zealand, um, these three [00:14:30] things are supposed to be reflected in our domestic law by the Human Rights Act. Um, originally the Human Rights Commission Act from the 19 seventies. But the became the Human Rights Act in 1993 when those changes that Catherine was talking about last night came into law. So the actors is supposed to be explicitly about implementing [00:15:00] this lot. But in fact, what it tends to do is to actually be an act about, um, discrimination, which picking up on on your point, John, Um, essentially, what? The Human Rights Act does it. I mean, it's it. It looks in a variety of areas, uh, and says in in this area, there won't be discrimination. Uh, and the ones that we know that we're most familiar with are probably, um, employment, accommodation [00:15:30] and the provision of goods and services. There are There are others, too. Education is another one. Um, and what it says is it will be unlawful to just to discriminate on these grounds listed in the act in that area, apart from the specified situations and so the so the bulk of the act actually is around around exemptions. Um, so So that's that's [00:16:00] it's really only the right to freedom from discrimination that tends to be well recognised in in our Human Rights Act. The addition is, um, what we call the Bora, which was a Jeffrey Palmer Innovation Bill of Rights Act. Um, and the Bill of Rights Act actually does take more of the of the specified rights from these different things, um, [00:16:30] and and says that these will be rights in New Zealand. Um, the problem with with the Bora Bill of Rights Act is that actually, it's not. It's not superior legislation to anything else. So when you come to a situation where, um, another act says something different, well, the the specific overalls, the general uh uh, Where it comes in handy is that if other [00:17:00] legislation is not clear, then courts will use the Bill of Rights Act to determine what the correct interpretation should be. And the other thing that's useful, although maybe not as useful as we might have expected it would be, is that when a new bill is brought to Parliament, it is, um, it has to be kind of audited against the Bill of Rights Act so that there's a kind of a human rights audit on on a bill [00:17:30] before it goes through Parliament. You would think that if the If, um if the opinion came back that said Bill of Rights Act says that says that this bill would infringe human rights and in this way and this way and this way that governments would tend to then change the bill. But actually, it hasn't really worked out that way. So So the way that we can probably I mean picking up on your question jam, though the way we [00:18:00] can probably get more entrenched human rights is to actually look at entrenching the Bill of Rights Act to make it superior legislation against which other legislation must comply. Now, I mentioned the the the the such as and what's what's What's happened is, in the recent recent decades, um, [00:18:30] the international courts have, uh, have inferred, um, a lot about sexual orientation and gender identity. Uh, from these various from these, um, various instruments, even though it tends not to be written in specifically. And of course, they're not the the probably Originally, they were not written in specific, specifically for the same reasons that our marriage [00:19:00] and adoption acts from 1955 don't don't reflect our community's needs. But actually, that isn't what people were thinking about. We were entirely off the radar. Um, in more recent years, I went to in 2000 and one, I think I went to the UN General Assembly with Anne King for the the special session on HIV and A I DS. And I really struggled [00:19:30] to, uh, understand the the the language of the declarations because it tends to be so obtuse. Um, So, for example, this is a declaration on HIV. And rather than talking about men who have sex with men, the the draught declaration that that we had in front of us referred to population groups. Well, [00:20:00] population groups were supposed to be code that everyone would understand meant men who had sex with men, sex workers and injecting drug users. Um, it wasn't written down anywhere but by writing population groups, countries like Sudan for example, uh would be not, would not voting against it. So there's this dance that happens at the international level in very recent years. That's [00:20:30] that's improving. Um, and so we're starting to get much more specificity. But what's what's been incredibly important is, and it's kind of at the interface of this international stuff, and the national stuff is, uh, the the Yo Yaka principles. And what that is [00:21:00] is a whole bunch of human rights experts from around the world basically got together to draught some principles that would assist states in translating these international instruments into into their domestic law. Um, and there specifically around the issues of sexual orientation, sexual behaviour and gender identity. [00:21:30] So when we as activists or legislators, in my case, I just have to keep reminding myself, um, want guidance on on how to use this all of this stuff to actually get changed domestically. It's right there in the yoga principles, and the Human Rights Commission has a bunch of useful resources for for translating for, for doing that translation around those principles. And those [00:22:00] include, for example, the right to marriage equality. So where where a state, um, has a statutory provision for marriage that must be applied irrespective of sexual orientation, gender and gender identity. Um, and the right to found a family that's that's, uh, in in that one, is [00:22:30] combined with the with the right to non-discrimination. That's in that one to amount to the fact that that our differently shaped family arrangements are all recognised and given equal legal status, um, or should be in national laws, Um, including the right to right to adoption. Now, um, [00:23:00] it's a just a just while we're at at this particular place, the this thing about, um, gender identity, the the the human rights, Um, the Human Rights Act does not include gender identity. And there's some discussion of this last night. It is one of the recommendations in the Human Rights Commission's, um to be who I am report, and I believe that it should be added [00:23:30] the the argument, Um, the econ rites to the 22 basic ideas about the importance of grounds in the Human Rights Act. One of one of the reasons for having grounds in the act is to provide a legal mechanism for protection from discrimination and for redress should should discrimination occur now. [00:24:00] The the argument for not including gender identity is that the human Human Rights Commission itself had developed the legal reasoning that established, actually, to my mind, beyond any doubt that the the kind of sex and gender provisions that are there in fact do provide a legal basis for protection from discrimination. So, um, a transgender [00:24:30] person who experiences discrimination and say employment has a legal redress un under the act. Now, however, the other point of having the grounds in the legislation is around signalling or semiotics. What signal do we send both to those who are marginalised and who experience discrimination and to the discriminators and actually to have [00:25:00] the act silent on gender identity gives, uh, a a message that is permissive of discrimination. I don't think that is acceptable. Um, those who've heard me speak about about marriage equality, um, will know that, actually, it's the semiotic thing, the the the signalling effect of the law that I think is the most important [00:25:30] thing about about changing the marriage act. Um, for exactly the same reasons. I come to that in in a in a second. So the next thing I want to talk about is, um, public health, which is as I sort of hinted before. Probably seems a bit weird. Uh, so I got recruited by the AIDS Foundation I recruited to go and do a job. [00:26:00] I mean, not to not recruited in some other way. Um, as as a gay man who had some political skills, Um, in 1988 um, to go and work for for the foundation on in the human Rights programme. The reason for that was this. So some will remember. And, um, for some, this will be an ancient history lesson in, uh, in the sort of mid 19 eighties [00:26:30] we had, uh, this devastating epidemic ripping through our community. We had got past the point of not knowing what caused it. So we knew that HIV was a virus, that it was the cause of AIDS. It was being spread through unprotected sexual contact. So conventional theories about health said, Well, uh, [00:27:00] preventing transmission ought to be a fairly straightforward thing because we know how it spread. We know how you could stop it being spread. Just use condoms every time. Um, So what we need to do is put that information into posters and leaflets and just have them available, you know, give them to the guys kind of thing. Um, well, [00:27:30] this, uh, this theory didn't work out so well for a variety of reasons. One of them, uh, you will appreciate is that, uh, many men who have sex with men, um, were not in predictable places, uh, or who were or were hiding if they were in those places. So giving them leaflets kind of really wasn't such an easy thing to do. But [00:28:00] more importantly, there was a piece of research done by some friends of mine, Um, a horn chitin and for the for the for the the academic geeks. And what they did was, uh, interviewed a whole lot of men who had sex with other men and divided them into two groups on the basis of the interviews, the group that that always seemed to be able to manage to have safe [00:28:30] sex and the group that didn't always manage to do so and the sort of basic research technique WW What? What else is different about these groups and what's common within those groups? Well, interestingly, the group that didn't always have safe sex. Uh, often would say I'm not gay, So they had a poorly developed sense of gay identity. So they might say, um, it was just that one time [00:29:00] or, um, I was really drunk. Or you I mean, you're probably familiar with the with the rationalisations, um so poorly developed our identity. Low self esteem, um, was another typical characteristic of that group. Uh, alcohol and drug problems was quite common within that group. Uh, poor communication skills again common in that group. [00:29:30] And there are a variety of other things, but those are the main ones. And these were differentiating characteristics from the from the other group. So those who always managed safe sex felt good about themselves, felt good about being gay, typically were on top of alcohol and drug issues and had good communication skills. So we we're looking for the research that said OK, so what's what's what's behind all of those [00:30:00] things and with a historical perspective, it's kind of obvious. Um, the the these men were either the victims of discrimination or they were hiding their sexual orientation in order to avoid discrimination. And actually the those those attributes that they had [00:30:30] are well described in the academic literature as the consequences of either of those. It's kind of an ironic thing that so if I decide I'm not gonna come out because I don't want to experience discrimination. Actually, the psychological consequences for me of making that choice of burying my identity are more or less the same consequences that I would experience as if I came out and then experienced discrimination. And what that means is [00:31:00] that that there's a whole bunch of people who are in hiding because of this of their sexual identity, and therefore we can't reach with our health behaviour stuff, but also even if we can reach them. And actually, the interesting thing is that I didn't mention this between these two groups. There is no difference in the level of understanding of what's safe and what isn't safe. They know the same things about HIV, so giving them [00:31:30] more information doesn't help because actually, their ability to manage the behaviour change is also, um, damaged by their by by the, uh, negative social environment. So in um, in the AIDS Foundation, what we realised is, if we want to change actual behaviour, that is transmitting HIV. We [00:32:00] have to change this negative social environment, and that's why we we were very heavily involved. Indeed, in driving that human rights campaign, that's that's what I worked on from 1988 to 1993 at the AIDS Foundation. Now weirdly well, weirdly at the same time in international health circles. So we were [00:32:30] developing this theory kind of on the basis of our empirical observations and experience at the same time internationally, uh, health experts were kind of observing this interesting thing not necessarily about HIV, but about, um, pretty well, any disease you can think of. And you can apply the same thought experiment in this country. And so start with [00:33:00] any disease. Uh, who has the disease who doesn't have it? Let's map the concentrations of the prevalence of this disease through a map of New Zealand. Once we've done one disease, let's take the next disease. We'll do exactly the same thing, and then we'll do the next disease and do the same thing. And you can probably think about [00:33:30] what that map is going to look like, because it's not a map that has disease evenly spread through the country. that with, for more or less any disease you can think of. Ill health is clustered in marginalised populations both, um, populations who are marginalised and confined to a particular geographic area but also, uh, populations [00:34:00] that are spread through the whole population. Uh, and we're one of those. So we have higher higher rates of quite a number of of ill health conditions. And so the problem for, uh, people whose theory of health is that well, it's just a germ, um, as well. Actually, that doesn't explain what you see, but it's [00:34:30] also a problem for the for the people whose model of health is. It's just about having the right information and making the right choices. That actually that doesn't explain what you see either. Unless, you know PE people from marginalised communities are particularly bad at making choices, you know, or or or have very poor information about about smoking. Could it be that Maori just don't understand that smoking is bad for their health? [00:35:00] Actually, no, that's not what it is. It's about racism. It's about the Treaty of Waitangi. It's about marginalisation, about economic deprivation. It's about those things so internationally in the health field. This theory called health promotion, was being developed. And, uh, what health promotion says that one should do in terms of action guidelines, uh, [00:35:30] promote healthy public policy. So have have law that facilitates good health outcomes. Um, creates supportive environments, and obviously everyone jumps to physical environments. Um, because, actually, if you're living next to a toxic waste dump, that's not good for your health. It's a bad environmental factor, but equally social environments matter too. [00:36:00] Strengthen community action. Uh, because communities are the ones who actually do know what will make a difference, develop personal skills, which, uh, which, uh, again needs to be embedded in the community response and reorient health services. So health services are not so much about, uh, not so much about [00:36:30] treating people when they're sick, but actually preventing them becoming sick in the first place. So those are the five action guidelines from the Ottawa Charter, which was signed in 1986. And if you think about those things, and if you think about the things that we realised we needed to do around HIV in New Zealand to actually make a difference, um, what that says is a whole lot of what you need to do is about political [00:37:00] engagement and and political change. And the the classic Ottawa Charter intervention is, um, a a marginalised community who is likely to have lots of different, um, adverse health outcomes, Um, but is also, interestingly likely to have adverse outcomes in education and social welfare and crime. [00:37:30] But they're all likely to be clustered in those communities. What the Ottawa Charter says is you can make a difference if you're a government. You can make a difference to all of those outcomes by getting us alongside that community, empowering it so resourcing its own initiatives and creating around the outside an environment in legislation and in attitudes that is [00:38:00] supportive of that community. So that's why human rights matter so much to our community. So in the debate so far on marriage equality we have we have had some discussion around youth suicide. Naturally, rates of attempts of five or six times [00:38:30] the heterosexual peers are at the conservative end of the range of of research projects. Internationally, there are there are studies from the states that have nine or 14 times, Um, but that is just one indicator the the what? I mean, what? This theory that I've just been expand expounding to you also says is that [00:39:00] by creating a more supportive social environment by actually having New Zealand legislation that pro that provides full legal equality actually will not only address youth suicide will also address HIV infection rates will address, um, mental health conditions will address alcohol and other drug problems in our community will address educational outcomes in our community and many others. Besides, [00:39:30] so so this stuff honouring our human rights is not just some abstract thing. It has very real, uh, impacts not only on those who want to get married, Um, but but on everyone else. Besides, so let me just, um I just tend to start writing when I do. I could do this stuff. Sorry. Applying to marriage. So [00:40:00] the right to marry? I've I've talked, um, talked about that. So here. I mean, there are some disputes around, um, human rights, and I'm drawing this from the from the submissions of already read and heard a very large number of submissions from from both sides. One of the one of the specific points that opponents dispute is whether there is a right to marry. [00:40:30] Um, legally, there is clearly no, actually, no no dispute around that there is a right to marry, um, and and in particular that right to freedom from discrimination. There's a There's a curious line in some of the submissions against marriage Equality that kind of says, Well, um, actually, Kev, you already can marry, and therefore you are not being discriminated against. Um, [00:41:00] but But I have chosen through some perversity on my part, uh, to identify, um, as gay. And therefore, I am choosing not to be able to have my right to marry on it. Um, and therefore, I'm not being discriminated against. It's just my poor choices. Uh, there is There are There are two particular points that I think are outstanding [00:41:30] issues that that are ones around conflict, conflict of, of rights. Because there is a there is a right to freedom of religion. And, um, that's recognised in the International Covenant on Social, Economic and Economic, Social and Cultural rights. Uh, and there is also the right to freedom of expression. So there. So here are two things [00:42:00] that also combine in interesting ways. And while everybody's submission that I've seen so far. With the exception of the Victoria University of Wellington Students Association, um is arguing that, uh, churches ought not to be required to marry couples against their will. The that is very clearly a fear [00:42:30] of, uh, more conservative churches and and many, many, I would say, in excess of 90% of the submissions made against the bill That that is, that will be one of the effects of it. Um, there is a There is a a related concern that's come through, which is around freedom of expression. There is a There's a provision in the marriage act that, um, makes it an offence [00:43:00] to a claim that, uh, someone's marriage is not a real one. I I'm paraphrasing, but, um, the so so and it has a particular historical. Um, but some churches are concerned about that that they will not be able to say that, um, that that same sex marriages are wrong [00:43:30] if this bill goes through. So those are the two rights based concerns. Now, the the one about, um who can get married is a really interesting one, because, well, I mean II I mean, I think I think it is wrong to try and bind a church. Um, to say you have to marry Ian and Kev if they if they come to you. Um, [00:44:00] it's kind of interesting, though, isn't it? Because what if a church still had, um a, uh a doctrinal belief that said, uh, couples with different races of different races ought not to be able to marry, you know, or the state's law to to allow that? Um, actually, I mean, [00:44:30] as as some of you will have seen, Andrew Geddis article that's been published around a bit. But I mean, he's saying, actually, this kind, this issue, current current, does exist already in the law. Um, in practise, of course, people tend not to go to churches who have a doctrinal belief that that are that that is opposed to their marriage and ask for marriage. Um, but it's an interesting point as to as to where that line [00:45:00] should lie between freedom of religion and religious expression, I guess. And, um uh, and the and freedom from discrimination in marriage Is there a definition of religion that's satisfactory? Because, I mean, if you define religion at its heart about not discriminating against people, then you could say, Well, you haven't got a Really You haven't got a real religion. So you can't one from Margaret? Yeah. [00:45:30] Um, yeah, it it it's it's interesting, but But of course. I mean, as said in the last session, you know, there there are many religions over over the years who have not sort of lived up to that ideal. Um, so the you'll have seen that there's that there, actually is that this is a debated point. Um, so that, um, the Human Rights Commission and Andrew Geddis [00:46:00] both argue, as as those of us who are supporters of the bill say that in fact, the law is clear that that, um, the churches are not would not be forced to to to marry they would be enabled, but not required. However, I have to tell you that, uh, the New Zealand Law Society, um, has put in a submission that believes something else to be the case and that the Crown [00:46:30] Law Office has also given the select committee an opinion to the opposite effect. Um, so what we are left with is those of us who are promoting the bill and saying you know, it's We don't want there to be any doubt that our intention is very clear that churches should not be required. If that is indeed our position, then we probably have to include in the bill a a clause [00:47:00] that says, for the avoidance of doubt, nothing in this act shall require et cetera. So that's what they mean when they had to rectify. Yeah, yeah, so? So that so. The select committee will, I would say, certainly recommend the inclusion of such a clause. Um, I want to come to adoption because that's that's the That's the other big issue. It's interesting. I mean, [00:47:30] um, some of you will have heard me talk about this, that that in fact, some of you probably meet with me and, um, And in the past years and a year ago, I I was saying, full legal equality is very important and we we will need to make changes in marriage and adoption. Uh, I don't believe there's any prospect of achieving marriage equality under this current government, [00:48:00] and therefore I'm putting no energy at all into it. Um, adoption does have some prospect of of success. You know, we'll put some time into that. But my big thing is around a supportive social environment for young people. And I'm doing this project with Murray and and that's you know, that's so that's my priority. So in the in the intervening year, however, uh, Mr Obama has has very helpfully made some comments. And John Key, who in so many respects is very like [00:48:30] Barack Obama, um, has has echoed those comments and in the domestic situation. So I sometimes need to explain my sense of humour. Maybe the, uh um so So marriage Equality is now not only possible, but very, very likely. Yeah, yeah, yeah, that's right. Um, but in the meantime, adoption has been bubbling away. [00:49:00] And and the the the the history here is that, uh, before 2005, my colleague had a bill in the ballot which did a very simple thing. It was simply change the definition of spouse in the adoption act, um, to include, uh, unmarried heterosexual couples, um, and same sex couples. Because [00:49:30] the the adoption act in 1955 as many of you, I'm sure will know provides for adoption by married couples and by single people. Um with the kind of bizarre consequence that single lesbian or gay people can adopt. But, uh, gay or lesbian couples cannot. And until 2010, uh, unmarried [00:50:00] heterosexual couples as well as same sex couples could not adopt. Um what what I did when when I came to parliament was immediate was pick up that bill that had had in the ballot, and I had it in the ballot in my name for a while. And then what happened is, uh, various NGO S concerned around adoption issues, came to me and said, Actually, the issues with the act are much, much [00:50:30] bigger than that. And despite having been, uh, I guess concerned about as as the father of of a son who, um who was, um uh, the also the son of a lesbian mother. Um, and, uh, and our our family, if you try and sort of plot it on a, I don't [00:51:00] know, a traditional family family tree look looks like a wire. The wiring diagram is very odd, and we have these very interesting situations where I say, OK, this So, um, here is Phoebe, who was the the, um, daughter of the partner of the mother of my son. Um and so our family looks kind of a bit strange. Uh, I [00:51:30] hadn't given a lot of thought to adoption issues prior to 2008, but what What people said to me is, actually, if you're going to try and change the adoption act, change the whole thing because the whole thing is is terrible. And Adoption Act 1955 essentially works like a property transaction. It it it, uh, it deals with Children as if they were chattels of of [00:52:00] their parents. And so the process of adoption is reduced to a process of the chattel of one set of parents being passed to another set of parents. And so, just as with an ownership writer And if I sell a bike to someone else, I don't have some residual relationship with that bike. It's all gone. That's what adoption does, too. It [00:52:30] completely terminates the relationship between the child and their biological parents. And, um, what what has happened more recently in in New Zealand is that the norm in adoption has become what we call open adoption and and open adoption. Uh, Children maintain relationships with their biological family [00:53:00] and and and family, as well as with their new adoptive parenting arrangements and family, and that is widely recognised to be, in most cases, not all cases in the best interests of that child. So that's what normally happens now in New Zealand, however, that happens entirely outside of the framework of the law, because the law doesn't [00:53:30] provide for it at all. The law is so obsolete that that that the the usual current practise by state agencies is not provided for in the law. It's that bad. Um so it has been apparent for many years, in fact, that the Adoption act needs to be fundamentally changed. And you're probably aware that in 2001 there was a law commission report on [00:54:00] the care of Children that that recommended essentially the repeal of the Guardianship Act and the Adoption Act and their amalgamation into a new modern piece of legislation that would be called Care of Children Act that was implemented in part by the Labour government in 2004. And they they did the part that was about guardianship. Um, but they left alone. But there was about [00:54:30] a option And probably it was to do with nervousness around adoption by same sex couples. That probably is the reason they left it alone. Um, but the consequence of that is is that this really archaic and and dysfunctional piece of law has remained in place. So in the the care of Children Act that is entirely nondiscriminatory [00:55:00] in its provisions around guardianship. Um, but we're still left with this dreadful piece of piece of legislation around adoption. So, um, one of the things that, um one of the things that I that I I quickly concluded was when I looked at the history, the reason it hadn't been moved on, actually, actually, by successive governments. I didn't want to touch it because it was a big, big reform, but also [00:55:30] because they feared that their opponents across the house would in some way use it as a weapon against them. And so what I did was convene a cross party group. Um, I. I sort of figured out that actually pretty well, everyone in Parliament recognised that this piece of legislation needed to be overhauled and that there was good support for a cross party group. So that's what we did in the last parliamentary term. And [00:56:00] the bill that I've currently got in the ballot is a reflection of that work that we did as a cross party group that Nicky Kay and I continued to work on in this parliamentary term. And it implements the law commission's recommendations around adoption and also does some other things around. Um non-commercial surrogacy. It's called altruistic surrogacy. [00:56:30] Um, because another law commission report that also was ignored by the by the government of the day was a report into the the legal implications of new forms of parenting. Because, as you might imagine, the the the kinds of family structures that I just talked about in terms of my own family, um, are creating all sorts of of challenges for legal systems [00:57:00] and the law around surrogacy is kind of really struggling. And, um, so one of the other things that my bill does is to provide a legal framework for adoption by the commissioning parents, um, of the child that that is, that is born to an altruistic surrogacy arrangement. Um, so [00:57:30] So that's that's where we are there. Interestingly, I tend to talk about I don't talk about a right to adoption. Um, it is possible to argue that there is a right to adopt, Um, and in particular, if you to take those those international agreements and say the right to found a family coupled with the right to freedom from discrimination, um, together con constitute that adoption. Right? But what I frame [00:58:00] the issue, as instead is to say, what has to be absolutely prime in decisions about adoption, Uh, is that is what is in the best interests of this particular child. And it's that child's right to have, um, the best possible upbringing. Um, the best, best possible decisions made for them. Um, that [00:58:30] ought to be at the at the heart of the law. And where that comes in and intersects with our issues is that currently the law does not put all of the options for adoption and parenting arrangements on the table. And what that must mean in some cases is that the best decision for that child will not be made because the option wasn't available. [00:59:00] So if we want the the best interest for Children to be consistently made, all of the options have got to be on the table. including same sex couples. Um, in terms of a campaign, I think I think adoption is gonna play out very differently from from, um, marriage, equality. In the case of marriage equality, we we are needing to campaign for this. [00:59:30] We are campaigning from a position of strength. Um, and our issue is the central issue in the case of the overhaul of adoption reform. Actually, our issue kind of gets addressed along the way, but it is not the prime the prime issue that is at stake in adoption reform. Um, what is it? What is it? What is the prime issue Is overhauling something that's simply an archaic piece of legislation [01:00:00] that is not working for anyone. Um, now, that doesn't mean that we won't need to organise around it. Um, there is an interaction between marriage equality and adoption reform. So when um, when Lewis's bill is passed and when [01:00:30] courts come to interpret what spouse means in the adoption act, then they will very clearly, in my view, interpret that to include married same sex couples. There's no question, regardless of there's no, um the sorry that I give you a question, regardless of regardless of boys or girls? Yeah. So because currently men can't adopt [01:01:00] girls. Yes, they can. Mr. King, the, um in in? Yeah, the It's a wrinkle that, uh that that is more slightly more complicated than what the law says. But the law says they can, um the so so the so married same sex couples will be able to adopt. What that will leave is [01:01:30] some categories of same sex couples. So same sex couples who are in a civil union and choose not to marry same sex couples who are in a de facto relationship who choose not to formalise their relationship either in a civil union or a marriage. What will the law say about them? Does that necessarily follow that? Because in that recent high court, full court judgement that found that same, uh, sorry, the opposite the fact to couples at the time. And if [01:02:00] you think that it follows that spouse would include because parliament clear in 10 minutes, he spouse to include marrying same sex couples because that's six years don't know. If they don't make that leap, why wouldn't they make the leap to? I believe that they will, um, so if there was no reform of the adoption act at all. I. I think there will be a two stage process. First stage will follow I immediately and will allow married same sex couples to adopt [01:02:30] down the road. Um, courts will interpret, um, the act using an exactly parallel argument to the one that Claudia used to win the de facto heterosexual couples case, um, to extend, uh, adoption to same sex de facto couples. Um, so I So I think that that those [01:03:00] issues would be would be addressed in in that way, regardless and to and to some extent, that's kind of useful, you know, there there is some argument in some of the submissions that there should be an explicit provision in Lewis's bill to to actually make it, um, kind of statutory law to extend to those categories regardless. Right now, that's up to Lesa [01:03:30] whether she wants to put that put that in or not. But, um, the the essential problem from the point of view of an adoption advocate is that, uh, kind of piece meal amendment of the existing Adoption Act. This is the central point about the Adoption Act, which is it's entirely not for for purpose. So on that point, what's the status of [01:04:00] on the same ad? Because that's been drawn right? That just addresses the same. No, no, it doesn't what Jacinda Bill does. Um, but I know what Jacinda Bill does is Does it says, um, that if it's passed, the Minister of Justice must instruct the law commission [01:04:30] to review and update its previous report, um, on adoption and to draught a bill that would implement its recommendations. Um and and I and I think requires the minister to then table the bill in Parliament. Um, it's not specific to to the [01:05:00] same sex couples issue at all. And many audience members probably aware that there's been some tension between Jacinda and I about this bill, partly because Labour withdrew from the cross party group in order to to promote the idea of of Jacinda bill. But more importantly, because the the the end product of Jacinda Bill would be, [01:05:30] um, would be a bill a bill very similar to the one that we already have that's on the ballot now, um, and and also wouldn't deal with the surrogacy issues and actually would be no more likely to go through parliament at at that time, so I think it's a It was an interesting idea, but unnecessary. So, yeah, I mean, the and what What Jacinda has done with her Bill because, uh, because [01:06:00] she was anxious, I think that that may confuse matters with Lewis's is is to defer consideration of the bill. So, Jacinda, Bill is currently not before parliament. Um, if when Lewis's bill is either passed or defeated, Jacinda Bill, uh, could then come back onto the order paper. I'm about [01:06:30] done for my rent. Um, so, you know, questions or discussion. Can you clarify what you meant about the surrogacy thing? Like just OK, so blame. So if a if a couple, regardless of whether they are a same sex couple or or a different sex couple, um, cannot I think probably in every case have have Children themselves biologically. [01:07:00] They can. They they cannot legally enter into a commercial arrangement with, um, a woman to to be the surrogate, a mother of a child for them. But they can enter under New Zealand law into an altruistic surrogacy. Um, with with that woman where whereby there is, uh, if she [01:07:30] If she agrees to bear a child. Um, for them for that couple currently under New Zealand law, the parents of that child will be, um, not them so and actually it's unclear in New Zealand law who the parents will be. So the courts have really struggled with figuring out who has parenting rights and responsibilities [01:08:00] and surrogacy arrangements. So what my bill does in respect of surrogacy is is to say it introduces some some provisions to, uh to assist, saying, Here are some Here are some costs that can be that that can be met without the relationship becoming a commercial service. Here are some steps that can be taken by all parties involved in this to, uh, facilitate [01:08:30] the legal parenting after the child is born. And then here is the law that will apply. So, um, the the that commissioning couple will become the parents. And there's various loophole kind of clauses to provide for exemptions for changes of mind and that that that kind of thing. But the law provides provides a basis for that couple to become the legal parents of the child. [01:09:00] I think it's a really complicated area, just sort of sticking another hat on as a biologist. Now, um, what's the situation with regard to the implantation of a fertilised donor egg? Who were the legal parents at that point? Um, sort of down the track from it, but it again, it's it's It's not entirely clear under New Zealand law, but [01:09:30] the starting point would be the biological parents. So the man that the sperm has come from, and the and the woman that the egg has come from so they would be the biological parents. As far as the law is concerned, probably. And that's exactly why the Law Commission did its report on the legal implications of new forms of parenting. Because it's not clear that that makes it a question of whether the egg is sort of a person, isn't it really, [01:10:00] if it can be parented in the in the sense that we have generally, which is that how pops the baby and then it has parents, Um, and and I guess it's it's as a as a piece of tissue. Um, it probably isn't, um well, well, just go for it and go through the the the the the state, anyway. As a piece of tissue, then it's little more than the egg egg on [01:10:30] its own or sperm on its own, which get flushed down the toilet. Um, quite quite a lot. Um, some people might find that challenging, but But it will be difficult to sort of say that there are parents to an egg, which which is on fertilised or a sperm that's all fertilised either, so that there is a certain really, quite a a. It is complicated and and my bill on only addresses one tiny little bit of of that broad spectrum of issues. There absolutely [01:11:00] needs to be a legislative response to to deal with the lots of other issues there. Um and, um again, I think it's it's very sad that the that actually the Labour government in 2000 six, I think, did not actually pick up on that. Uh, I think we should be very grateful to you, Kevin, for the the very, very lucid rundown you've given starting from the analysis [01:11:30] of of Human rights instruments as the person who's been the UN as nations human rights person until recently for four years, I think that there are alarmingly few of our 121 members of pound alarmingly few who've got anything like your grasp of human rights, international human rights law, human rights conventions. And, uh, we we we're greatly indebted to you for the very lucid talk that you've given, And I think we can be optimistic. But out of your reference and [01:12:00] Jacinda and Louisa and other MP S efforts, we're going to get some pretty substantial progress in the very near future. Thank you. I appreciate it. Sorry. So Jacinda justified her approach to to her, though, as being that because of the pressures of being our position. Um, as far as resources go, no opposition members could draught a bill that would be ring us as one drafted by the law commission. And I just wonder what you [01:12:30] say to that. She's wrong. Um, so So the the bill. The bill that we have drafted has involved, you know, a very, very substantial amount of work. Um, not only from us, but from, uh, a team of legal academics with a specialist interest in the area. [01:13:00] So So we know that the bill that we have drafted is robust has involved, uh, a very considerable amount of input from from people whose specialist area it is. So it would be inconceivable, in fact, to me that the Law Commission could produce a better bill. And clearly the the point the the point that she makes that it wouldn't be possible to do is wrong, because we've done it. [01:13:30] Yeah, I think, um, I really like your child approach to adoption. And, um, I was wondering then, so you can say that Yeah. Intersect with marriage equality. And so if we have all the options on the table, like all people's expressions, um, then it comes down to who the best parents or the child is [01:14:00] going to, which I agree with. But then, like, this is my dad's big philosophy. Should we have a test for parenting? Should we have a test of parenting? Well, um, let me tell you how open adoption works at the moment. So the, uh, specialist social workers from [01:14:30] MS D. I can't. I can't. I've sort of lost track of those acronyms. They just changed so fast. Um, I think it's NSD. Um, actually works with people who express an interest in adopting Children to develop what they call profiles and That's, uh, it's quite an exhaustive process. It's it's lots of information about them, but also working with them to [01:15:00] go through the realities of of parenting a child, um, to to determine their suitability. And so they have a kind of a threshold test now as to whether these people would be suitable parents and then they they essentially put those, uh, have a sort of bank of those profiles of individuals and and of couples. And so when [01:15:30] um, biological parents wish to make their child have their child adopted, um, they get to choose and they can see as many or as few of those profiles as as they want. So they could say, Just put me one at random if that that's what they chose to do on the the current setup. This is how it would work. Um, or they can say, [01:16:00] I want to see absolutely all of them or I want to see 10 like this. And, um, and what my bill proposes is is that you still have kind of that mix. But actually, the court will then also ensure that the arrangement, because the biological, um, family and the adoptive family must also have a parenting arrangement which is written down, which is [01:16:30] This is how we are going to ensure that this child has connections across those those across this interface. And then the court then must must put its seal on on the basis that it's the best origin for a child. So it's not quite the, you know, you've passed the test you're in, but it's kind of similar. Margaret, I think on a question that I asked this morning about I'm not sure [01:17:00] if you were here, but I wonder about the right to religious freedom of you know, these terms for people who are civil but might have a religious belief that, um, make them in. Yeah, there's there's a there's a really interesting debate going on. So if we and it's around the extent of the amendment that the select committee put puts up, um, should it extend [01:17:30] to celebrants more generally or just to those who are acting on behalf of the church? Um, the argument, the argument for extending it to to celebrants more more generally is it would be a way of reflecting what the law currently is, or at least what the law is currently understood to be that actually, the law provides, you know, provides [01:18:00] for empowers but does not require both two churches and and other celebrants. So the argument for extending the the amendment to be clear that that celebrants also are not required it comes from from preserving the status quo the argument against is a kind of principles based argument that says, um, marriage celebrants, [01:18:30] actually, regardless of whether their religious belief or not, um, have effectively hung up their shingle and are entering into essentially a provision of goods and services contract the provision of service literally, I guess, um, and therefore it ought to be subject to all of the non discrimination provisions that that that apply to other services. Um, [01:19:00] I don't know what the answer to that is. It's an interesting debate. So, um, this is, um, my, uh and I got married in Canada three years ago. Um, understand that the legislation is moves forward, not back. So, um, are we in the position of having to a Canadian divorce that we were married in New Zealand? Uh, [01:19:30] no, I don't. Well, well, it's I don't know what their marriage be recognised? Well, yes, or their marriage will be recognised. But the thing is, if they want a New Zealand marriage, then probably yes, you would have to get a Dior. And you know the law Law will provide [01:20:00] for the recognition of marriages that that occur elsewhere, that that that meet our requirements. So that would include your marriage, your marital. I'm I'm 90% sure. My kind of thought that it might need a high court declaration. But then my lawyer is interested in, I mean, interestingly in relation to surrogacy, for example, there are some interesting [01:20:30] problems in law at the moment. So, um, I was dealing recently with a A heaven to be a same sex couple from New Zealand who were living in another country, entered into a an altruistic surrogacy arrangement overseas in in that other country. They are recognised as the legal parents of the child, resulting child. They have [01:21:00] since come back to New Zealand with their child where a and then under New Zealand law, the biological mother of the child in the source country is recognised as the child and as the parent. And they are not, um since and given that, um, they are not legally the parents in New Zealand. The child's status in relation to immigration status [01:21:30] is also subject to legal uncertainty. So, I mean, my bill deals with that problem too. You've been fabulous. I'm done. Thank you. Mhm.
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