Released for Publication: Submission by Peter Saxton to the Board of the New Zealand AIDS Foundation on the Proposal (withdrawn) to require 50% Maori representation on the Board, and to require two reserved positions for people living with HIV. Introduction I would like to thank the Board for receiving this submission. It is however regrettable that the Board has not sought to engage with key stakeholders at an earlier stage in the development of this proposal. I also appreciate that the Board makes decisions collectively. Thus the comments herein are directed at the entire Board and not any individual members. I know some of the Board personally and appreciate the time they have spent considering these issues. That I am also a staff member makes it somewhat awkward for me to make certain comments. However, the Board will appreciate that they are made in what I see as the best interests of the organisation, and in the best interests of its main client group, to which I also belong. I do not believe the Board understands my main opposition to the proposal. I believe that the Board have largely constructed opposition to its proposal as Pakeha reaction to a Maori initiative. That is not why I am opposed. I am opposed because this is a homophobic proposal. What you are receiving is a gay male's reaction to a proposal that Constitutionally disenfranchises the influence of gay men in the organisation, an organisation that was created by gay men, and whose main client group continues to be gay men. In addition, I am opposed to the proposal because: - There is no epidemiological evidence to indicate Maori have unmet needs in relation to HIV that are disproportionate to other groups; - In contrast, gay and bisexual men are the group most affected by HIV in New Zealand; - NZAF already demonstrates biculturalism in a number of practical ways; - Contrary to the Board's assertion, there is no legal requirement for bicultural initiatives of the sort promoted by the Board; - The Board's proposal regarding HIV positive representation is based on a misunderstanding of the Constitution; - It exposes the organisation to unnecessary political and operational risk. Epidemiology of HIV in New Zealand and risk profile of Maori Analysis of the epidemiology of HIV and AIDS in New Zealand forms part of the NZAF Research, Analysis and Information (RAI) Unit's core work. I have also personally co-authored an international peer-reviewed journal article on Maori people living with HIV and AIDS (PLWHA) which included HIV epidemiology among Maori, have co-authored several briefing papers that have examined HIV epidemiology among Maori, co-presented New Zealandís formal briefing on local HIV epidemiology to the Director General of UNAIDS Dr Peter Piot, senior authored a report on HIV testing and HIV risk practices specifically among Maori MSM in Auckland, and co-authored a report on Maori MSM from a national study. At no point has the NZAF Board sought advice from the RAI Unit regarding either HIV epidemiology among Maori nor the HIV risk profile among Maori in relation to this proposal. HIV in New Zealand predominantly affects gay and bisexual men. Since the beginning of the epidemic to the end of 2004, just over half of all HIV cases reported have been among men who have sex with men (MSM) (54.3%), 10.7% have been male heterosexually-acquired, 11.7% have been female heterosexually-acquired, 2.8% were injecting drug users (IDU), 1.3% have been mother-to-child, and 1.5% were infected through blood transfusions either overseas or in NZ before blood was screened for HIV (AIDS Epidemiology Group, 2005). The impact on MSM is starker for diagnoses of HIV infections that were acquired in New Zealand. In 2004, 89% of all people diagnosed with HIV who acquired their infection in NZ were MSM. The average since 1996 has been around 76%. Recently, the number of HIV diagnoses among MSM has risen from 38 in 2001, to 52 in 2002, to 71 in 2003, to 69 in 2004 (excludes MSM who were also IDU). Epidemiological data do not indicate that Maori are over-represented in either HIV cases or AIDS diagnoses. Whereas Maori represented 14.1% of the total resident population in the 2001 New Zealand Census, and 11.4% of the resident population aged 15 and over (i.e. a better approximation of the sexually active population), Maori: - Represented 6.8% of all HIV cases from 1996 to the end of 2004; - Represented 10.8% of all AIDS diagnoses; - Constituted 8% of HIV-infected people under active follow-up nationwide; - Constituted 11% of participants in the nationwide HIV Futures NZ/Mate aaraikore a muri ake nei survey of PLWHA; - Constituted 7.9% of MSM diagnosed with HIV who participated in the 2002 Gay Auckland Periodic Sex Survey (GAPSS), and 11.3% of MSM diagnosed with HIV who participated in 2004; - Constituted 3.6% of MSM diagnosed with HIV who participated in the 1996 Male Call/Waea Mai, Tane Ma national survey (unpublished data). One possible scenario is that Maori are over-represented in HIV infections but have lower rates of testing, thus lowering the rate of diagnosis. This is not supported by HIV testing data. In the 1996 Male Call/Waea Mai, Tane Ma survey, 69.4% of Maori respondents had ever tested for HIV, compared to 70.4% of non-Maori. In the 2002 and 2004 GAPSS surveys, Maori respondents were proportionately less likely to have tested for HIV at least once in their lifetime than the total sample. However, Maori reported identical rates of recent testing for HIV (e.g. tested in the previous two years, in the previous six months), which is a more accurate indicator of likely levels of undiagnosed infections. Even if Maori were testing at lower rates than other populations and had a higher prevalence of HIV infection, within roughly ten years after infection this would be revealed in AIDS diagnoses when undiagnosed HIV-positive individuals became ill as a result of a compromised immune system and required hospitalisation. Twenty years into the epidemic in New Zealand this has not occurred. Furthermore, available behavioural data do not support the hypothesis that Maori MSM are at increased risk of HIV infection. In Male Call/Waea Mai, Tane Ma, Maori respondents reported no differences in condom use during anal sex with casual partners compared to non-Maori, and reported higher rates of condom use with regular partners compared to non-Maori. These findings were replicated in the GAPSS study in 2002 and 2004, with Maori respondents reporting rates of condom use that were either consistent with or higher than those reported by non-Maori. Affirmation of biculturalism at NZAF I raise the issue of epidemiological and behavioural evidence since, from the very beginning of this consultation, I have questioned whether this proposal is a solution to a problem that does not exist. NZAF is an organisation that already demonstrates a considerable commitment to biculturalism. As a Pakeha New Zealander I am proud of this commitment, which has often seen NZAF lead the field in relation to partnership and empowerment of Maori. Changes of any sort can take time to adjust to, but I believe NZAF staff have welcomed such changes wherever injustices towards Maori are perceived and/or the need is demonstrable. From the establishment of Te Roopu Tautoko in 1987, to the NZAF Maori Youth Project in the early 1990s to the current Hau Ora Takataapui Team, NZAF has supported a number of initiatives that were seen as effective responses to the threat of HIV among Maori. NZAF currently has a Hau Ora Takataapui Team that is internationally recognised among indigenous HIV health providers for the work it produces and the success it enjoys. The organisation currently includes Maori tikanga in various aspects of its operations where this is appropriate. The NZAF Board currently has four out of seven members who identify as Maori, achieved without any existing quota system. In sum, the proposal cannot be justified according to ‘unmet needs of at-risk Maori'. Indeed, an equally plausible alternative hypothesis is that New Zealand's HIV indicators do not reveal inequalities for Maori precisely because of the highly successful bicultural model already practised by NZAF. This position would instead regard the existing NZAF model as bicultural best practice. Proposal for 50:50 Maori representation on the Board in order to satisfy legal obligations The Board has explained that the proposal arises out of its legal obligations concerning biculturalism via the presence of clauses 3 - 5 in the NZAF Constitution that refer to the Maori version of the Treaty of Waitangi. The response to this is quite clear to me. If there is a legal obligation to discharge then the Board must demonstrate where the law is. The Board has failed to do this. Instead, other submitters have convinced me that there is no law placing such an obligation on the Board. Even supposing there was a legal duty, it is unclear to me why the Board believes that 50% quota representation on the Board would be required to discharge such a duty. The only explanation offered so far by the Board has been that the Treaty is to be interpreted as implying partnership, and that partnership is to be interpreted as 50:50. That is a lot of ‘interpretation'. Setting aside for a moment the ‘Treaty = partnership under law' assertion, I do not see how ‘partnership' inevitably implies ‘50:50 representation'. Surely partnership can imply other arrangements, either in terms of ìrepresentationî (e.g. why only 50:50? Why not 20:80?) or in terms of the ‘nature' of the partnership (e.g. collaboration or consultation rather than representation). In fact I am sure that legal interpretations of ‘partnership' can imply a multitude of arrangements in practice. NZAF itself has for some time, and before the incumbent Board appeared, been operating under a principle of partnership which it has interpreted in its own way to best fit the practical realities of the HIV epidemic. I am also reasonably confident that the Treaty describes a relationship between the Crown and iwi/hapu, not between non-government organisations such as NZAF and Maori collectively. One could argue that as NZAF receives some state funding that it also acquires the Crown's Treaty obligations. But where would this begin in practice? When an organisation receives $1 of state funding? This is clearly not reasonable. I do not believe NZAF can be treated as a Treaty partner in the same way the Crown is. The logic unravels even further with the Board announcement that ‘partnership' could in fact mean at least 50% Board representation for Maori ñ perhaps a ratio of 5 Maori Board members to 3 non-Maori. Yet why does this remain ìpartnershipî when it breaks the ì50:50 representationî interpretation? Surely if 5 : 3 satisfies the duty then so also would 3 : 5? Or even 1 : 7? But why, for that matter, stop with Board quotas? If the Board's interpretation of ‘legal obligation' = ‘partnership' = ‘50:50', why not apply the same formula to staff quotas? Or to funding for programmes? Although the Treaty clause appears in the Constitution there are also commitments to the Treaty in the NZAF Strategic Plan which in turn directs the Operations Plan. There is nothing that explicitly limits the organisation's bicultural commitment only to the Board. Surely this ‘legal obligation' ought to be applied to all parts of the organisation to be consistent? Why has the Board not been open about this? Is this actually what the Board believes is an appropriate outcome in terms of managing the HIV epidemic in New Zealand? To be precise, the Board has already indicated to me that the proposal has nothing to do with the HIV epidemic, but that it perceives this initiative to be the appropriate response to any Constitutional clause that makes a commitment to the Maori version of the Treaty. I find this hard to believe. Presumably, it would be considered absurd by all parties if the Chinese New Settlers Services Trust Constitution included a clause respecting the Maori version of the Treaty and was therefore legally compelled to install 50% Maori representation on its Board (and then staff, and so on...)? Surely the rational response would be to discharge its Treaty commitments in other ways? In ways that took account of the context of the organisationís client group and its mission? Logically, one of these responses would of course be to remove the Treaty clause altogether from the Chinese New Settlers Services Trust Constitution. This would still allow the organisation to demonstrate its commitment to biculturalism in various ways while escaping any ludicrous legal obligations that are not reasonable to apply in such a case. Returning to the initial point, I do not believe there is a legal obligation since there is no law that the Board can point to that requires it. Contrary too to the Board's claims that this clause is a recent addition to the Constitution, the Treaty clause has been in the NZAF Constitution for more than ten years. Has it not occurred to the present Board that if the clause did infer legal obligations, previous Boards would have sought to discharge this urgently? It is quite clear to me that previous Boards did not imbue the clause with such duties, and instead sought other ways of demonstrating biculturalism in practical terms in this organisation. Proposal for two reserved places for HIV positive people on the Board Having justified the Maori quota proposal on a supposed legal requirement it is not obvious to me why the Board also saw it necessary to propose a quota of two positions for PLWHA. As it is certainly not a legal requirement, this particular proposal can only relate to the Boardís desire to have the client communities reflected in the Boardís composition. This proposal itself is not new. It has been in place in various forms before, and previous Boards have rejected it because they believed it was practically (if not theoretically) unworkable, for example due to skill shortages among this population (given the population size), availability of suitable candidates at the right time, etc. In any event, the Board formally based this particular quota on a clause in the Constitution which reads: ‘In the appointment of new trustees the Board shall take into account its need for: - Clause 20 (h): knowledge and experience of the communities most affected by the HIV epidemic in New Zealand.' This is a misreading of the clause. The phrase ‘communities most affected by the HIV epidemic' has always been used by NZAF to refer to the groups at greatest risk of HIV, which is code for gay and bisexual men. Any experienced staff member could have told the Board this. If the intention was for the clause to apply to PLWHA, then it would have said so. There really is no reason to disguise that. Regardless of the Board's rationale for including PLWHA on the Board, once it had decided that HIV positive representation was necessary to discharge some function (and, as argued above, that function can only have been to relate the Board's composition to the client communities in some way), then why propose only two positions? Given that the Board had already decided to set aside at least four positions for Maori, why not at least four for PLWHA? Does the Board believe it is less important to have PLWHA on the Board of NZAF than it is to have Maori? The Board do not appear to be constrained in its allocation of quotas in this instance, so having decided that the law requires four Maori positions, why not match it with four PLWHA? The Board's proposal is homophobic This brings me to my main opposition to the proposal. From the outset, I have been opposed to this proposal because it is fundamentally homophobic. Gay and bisexual men are the group most affected by HIV in this country. They are the organisationís primary client group. This is not going to change in the foreseeable future. In fact it is quite likely that recent increases in HIV diagnoses among MSM will increase the workload directed at this group. When allocating quotas to the Board of the New Zealand AIDS Foundation, no matter what the justification, it is homophobic to then omit positions specifically for gay or bisexual men. This group has the most demonstrated need of any population group in relation to HIV. That the Board did not think this relevant to its determinations is beyond belief. It is homophobic because quotas ultimately occur at the expense of others. They relatively disenfranchise other groups. The Board's proposal relatively reduces the influence of gay and bisexual men via the Constitution. It is inadequate to highlight other clauses in the Constitution (such as clause 20 (h), which the Board has already redefined anyway) and insinuate that gay and bisexual men's interests will be considered in the appointment of new Board members. Simply put, a quota trumps a ‘take into account.' It is homophobic because while a Board member who fills a Maori quota position may also happen to be a gay or bisexual male, nowhere in the Constitution nor the proposal is this a requirement. Under the present Constitution and the Board's proposal, it occurs purely at the goodwill of the Board. Gay and bisexual men must not be told that they should be satisfied with other people's goodwill. It is homophobic to dismiss concerns from gay and bisexual men that their interests will not be taken into account in absence of their representation on the Board. The current Board cannot give guarantees on behalf of future Board members. It is homophobic to create an environment that discourages gay and bisexual men to voice these observations for fear of being labelled racist. Just for the sake of pursuing a bicultural agenda. It is homophobic not to acknowledge that the New Zealand AIDS Foundation is the only moderately-funded full-time organisation delivering a range of health promotion, policy advice, advocacy, research, and support services to gay and bisexual men in New Zealand, to reduce the influence of gay and bisexual men on its Board, and then to suggest that any opposition is merely resistance to change. As if the interests of gay and bisexual men are simply one consideration of many. Or in fact are less important than other interests. The Board may respond that six out of seven current Board members are gay men, and that it cannot therefore be homophobic. My response is that the Board's proposal is homophobic, and in fact the Board has demonstrated homophobia during the entire 12 months spent deliberating over biculturalism at a time when record numbers of HIV diagnoses are being reported among gay and bisexual men. The priorities should always have been clear to you. It is precisely for this reason that I am also against any counter-proposal to require at least four Board positions for gay or bisexual men. Patently, having six gay men on the Board has not prevented it from completely ignoring the interests of MSM. Quotas do not secure good decisions. Proposal has exposed NZAF to unnecessary political and operational risk NZAF's slowly and carefully built reputation as an organisation that bases its initiatives on evidence and health promotion principles has enabled it to enjoy substantial success in its interactions with the State and other contract providers. Board mismanaged public relations The public relations mistakes began with the Board having failed to understand its own Constitution before announcing its initiative. Once the Constitutional requirement to consult was brought to the Boardís attention by a staff member at the final hour, the Board then changed its initiative to a ‘proposal for consultation.' It was never the intention of the Board to consult. Statements made subsequently by the Board suggesting otherwise, both to staff directly and to the media, are simply dishonest. Knowing that staff must know this, it is difficult to see how the Board expected staff to have confidence in the integrity of any future Board pronunciations on the proposal. The list of subsequent contradictions and patronising statements by the Board leave me with little hope that the Board understands the position it has created for itself. It can easily be shown that each and every query or comment from staff or stakeholders regarding the proposal that I have witnessed is a direct response to an action by the Board itself. Requests for the Board's legal advice have come directly from the Board's own assertion that the proposal is a response to its legal obligations. Queries about the Board's intentions regarding operational issues have come directly from the Board's assertion that the proposed changes reflect a commitment to biculturalism that ìshould be manifested in the decision-making processes of the organisation at its highest levelî. In short, I believe that the questions posed to the Board by staff have been fair and reasonable. In contrast, the Board have reacted by taking comments personally, by labelling opposition as racist, by not providing information, by not seeking clarification about the points made, and, finally, by removing the opportunity for robust community debate at the last minute by cancelling hui and withdrawing the proposal before the timetable given for stakeholder feedback. In the very first press release, the Board declared that their proposal ‘shows that the commitment [to biculturalism] is real'. Does the Board believe NZAF was a racist organisation before it arrived? That prior and existing initiatives around biculturalism were tokenism? Does the Board not acknowledge the work towards biculturalism of many current and previous staff, Executive Directors and Board members? In the very latest media coverage, the Board ‘didn't feel there was sufficient understanding and sufficient support for what we were trying to do'. This is an insulting comment. Staff and stakeholders have been trying to extract explanations from the Board over the rationale for this proposal since the 25th May. The Board have refused to engender understanding. This statement also suggests that the Board still considers it was doing the correct thing, and had merely failed to convince others of it, for now. I do not know how to respond to this head-in-the-sand thinking. Concluding remarks It is difficult for me to adequately encapsulate how I feel about the proposal and the Board's handling of this process. In my nine years at NZAF there have been moments when I have disagreed with an initiative, thought that not enough was done, or that too much emphasis was placed on it. I have never however felt embarrassed about an NZAF initiative in the way I feel now. The proposal itself is ill-conceived. The public relations has been bungled. The threat to the organisation severe. The treatment of the main client group reprehensible. The time wasted by distracting and stressing staff enormous. All this at a time when New Zealand has experienced record numbers of HIV diagnoses, when the organisation is about to host the countryís first Pan Pacific HIV/AIDS Conference, and is therefore under considerable stress, and when the political environment is poisonous to this type of initiative. In sum, the actions of the Board indicate that it collectively lacks that most crucial of governorship qualities: judgement. One can excuse the Board not possessing expertise on HIV. That can be co-opted onto the board by seeking the advice of experienced staff and former board members. But, quite apart from the errors the board has made in relation to the proposal itself, to pass off staff concern as resistance to change at best and as irrelevant at worst, to have misjudged the affected community's feelings so considerably (and by affected communities I do not mean heterosexual Maori nor heterosexual Pakeha, for these are not our core constituencies), to have come to the brink of announcing an initiative without re-reading its own Constitution, to have exposed the organisation to serious and unnecessary political risk in election year, to slur the reputation of the organisation in an international forum using false data, to issue poorly-timed, contradictory and insulting press releases, to demonstrate reluctance to empower the membership to vote on the proposal at the SGM and thereby hold itself to account, to obsess over conspiracies and staff leakage instead of attending to people's substantive objections to the proposal, to have committed so much time to a proposal regarding the Treaty at a moment in the HIV epidemic when governorship priorities so obviously point elsewhere, and, finally, to cancel public hui at the last minute in what to everyone looks very much like an attempt at self-preservation (even if it isn't), do not in my opinion meet the standards required for stable and effective governance of this organisation. Recommendations I have deliberately not made specific recommendations as the proposal has now been withdrawn. However, there are obviously numerous Constitutional issues surrounding the criteria for Board membership, the power to enact Constitutional amendments, and the general re-enfranchisement of the membership that require attention. There is also and equally important the issue of Board accountability for its actions and the need to restore confidence in the organisation in all arenas. Thank you for the opportunity to participate in this process. Yours sincerely Peter Saxton NZAF Senior Researcher 22nd July 2005 Grierson, J., Pitts, M., Herewini, T., Ruaíine, G., Hughes, A., Saxton, P., Whyte, M., Hughes, A. Saxton, P., Dickson, N.