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Submission to NZAF Board: M Stevens

Tue 15 Nov 2005 In: HIV

Released for publication: Submission by M W Stevens to the NZAF Board of Trustees Regarding their Proposed Constitutional Changes [slightly edited by]. Personal Background · I am currently a member of the NZAF and have served as a trustee, (1998 – 99) Deputy Chair (1999 – 2000) and Chair of the Trust Board(2001 – 2004). During this time I was intimately concerned with the revision of the NZAF Constitution · I have twice been on the Board of Body Positive Inc. · I am a member of the Treatments Action Group (TAG) which has worked for better access to medication for those living with HIV. · I have helped facilitate four peer support groups for those living with HIV for Body Positive. · I am currently a PhD candidate at the University of Auckland. The research I am carrying out for this looks at the social and cultural context of recent HIV infection. · I am the inaugural recipient of the NZAF Matt Whyte Post-Graduate research Grant. · I have often written and spoken about HIV/AIDS in this country in the press, the radio and on TV. · I was the recipient of the 1999 Vodafone AIDS Media Award for print media. · I have lived with HIV since my diagnosis in 1988. Submission 1. I dispute the accuracy of the statement “For the last twelve months the Board has been investigating how the constitutional clauses to the treaty should manifest in the structure and activities of the Board.” I was still Chair during much of this time and can recall no instance where issues pertaining to the Treaty of Waitangi were discussed with a view to changing the Constitution. That the Board would state this is so seems to be in breach of the Constitution which states that Board members must act “with honesty and integrity”. To make such a misleading public statement indicates a serious and disturbing deficiency on the Board in both these qualities. 2. The fact the NZAF is a Non-Governmental Organisation and not in any sense a signatory to the Treaty of Waitangi means that any undertakings it makes regarding the Treaty are of a weak and voluntary nature. The treaty is between Maori and the Crown, not between Maori and everyone else in the country. The Treaty has no legal force over the NZAF. If the Board wishes to state that these changes are a legal requirement it is duty-bound to provide the independent legal advice it received on this subject to its members on request. Otherwise it is acting in breach of its constitutional obligation to consult its members and the requirement that it act with reasonable care, diligence, skill, honesty and integrity. 3. I dispute that the constitutional clauses regarding the Treaty of Waitangi and especially clause 4.0 stating that the NZAF will “respect and affirm te tino rangatiratanga” mean that the Board must reserve seats for Maori. It can be argued that tino rangatiratanga can only be exercised within rohe by those with mana whenua. Holding four seats for Maori will not meet this need unless they are changed every time the Board meets within a different rohe. Tino rangatiratanga cannot be transferred or exercised by for example, Ngapuhi on behalf of Ngati Whatua., or by Ngati Maru where they hold no mana whenua. 4. The idea of a fifty percent quota on the Board seems to owe its intellectual origins to the President of the Maori Party, Professor Whatarangi Winiata, who in a paper in 1984 paper suggested a bicameral house for the nation with an upper house made up of ‘tangata tiriti'- tangata whenua and Pakeha equally. In this model the upper house is able to block any legislation from the lower house, and thus be able to “ ensure that no laws inimical to Maori or Pakeha interests will be passed” (R.Walker, 1996). Whether or not this is an appropriate model to govern the country is another debate. To simply lift one aspect of this model, designed for another purpose and dependent on a more complex and multi-layered decision making process, and attempt to graft it wholesale onto an organisation that is not the government is unjustified and intellectually lazy. 5. This model is also inappropriate for this organisation for another key reason. The New Zealand AIDS Foundation is a health promotion organisation first and foremost. Its roots and most of its work lie in the group that founded it, the community of gay men in this country. This attempt to disenfranchise the group at most risk through this epidemic – gay men – and to privilege Maori at their expense is inimical to any sense of natural justice. 6. Given the current widespread atmosphere of virulent homophobia in the official discourse of te ao Maori at the moment (e.g. Bishop Vercoe's ‘World without Gays ; the Maori Party's opposition to Civil Unions expressed in hui and in parliament; John Tamihere's anti-gay statements in his recent interview in Investigate magazine ; “Bishop” Brian Tamaki's violent and ignorant anti-gay position) to insist that half the seats on the Board of NZAF be reserved for Maori greatly threatens the cultural safety of the very people who have founded and run this organisation and who access its services the most. 7. The Board had previously set aside seats on the basis of race and HIV serostatus and this was found not to work. When the constitution was changed simply allocating places on the Board to Maori was rejected as mechanistic, tokenistic and inappropriate for a skills-based Board. Instead the expectation was that the entire Board would have a commitment to the Treaty clauses and working with Maori. By shifting the emphasis onto the skills needed to effectively govern the organisation, including the need for the entire Board to have an understanding of the Treaty , the need for any race-based places was obviated. This was the deliberate intention of the Board at the time. 8. Given that the NZAF's Constitution states that its Statement of Purpose is to “prevent the transmission of HIV and maximise the health of people living with HIV” if any quota is required it would seem that it should be for the group most affected by the epidemic in this country – Pakeha gay men. To ignore them in this process runs entirely counter to the Constitution's Statement of Purpose. If quotas are to be reintroduced then the Board needs to do so in accordance with its stated aims in its constitution and ensure that gay men's position is entrenched. If the Board does not do this then it is acting, I believe, illegally and in breach of the constitution. 9. The NZAF Constitution states that trust board members must act “with reasonable care, diligence and skill” – I submit the Board has failed to act in this manner when dealing with this issue. The clumsy manner in which this issue has been addressed by the Board shows a distinct lack of the aforementioned qualities. 10. While the technical and legal ownership of the Foundation currently rests with the Board I argue that the moral ownership of the Foundation lies with its members. The Board needs to bear this in mind, and to remember that the NZAF is a health promotion organisation, not a vehicle for political agendas. 11. Likewise while the Board has the legal ability to change the constitution this power should be viewed in the same light as the reserve powers of the Monarch or Governor General in this country to dissolve Parliament or to sack a Prime Minister. While these powers exist, to employ them except in the gravest of situations would provoke a constitutional crisis in the state, and such has been the effect of the NZAF Board's inept and heavy-handed attempt to exercise its powers in this case. 12. I propose that no changes to the Constitution be enacted until a full review of the entire Constitution has taken place. 13. I propose that the Board numbers be kept at seven. An odd number is desirable to avoid deadlock. 14. I propose that the Constitution be amended to ensure that the Constitution cannot be changed unless membership has been consulted and at least 75% as well as 75% of the members and Board are in agreement with any proposed changes. 15. I suggest that this current Board has brought the Foundation into such disrepute and shown its lack of ability in managing this issue that it should appoint a temporary oversight committee and resign so new appointments that have the confidence of the membership can occur. Editor's note: That submission was made to the Board in July of this year. Michael Stevens has asked that the following statement be added to acknowledge developments since that time: In the interests of openness I am happy to release my submission made to the NZAF in July this year regarding the (then) proposed changes to the constitution. NZAF is a community-based organisation and as such I believe that the submissions made regarding this matter should have been made public earlier. Having said that, I also wish tonote the effortsthe Board has made since this time to imporove the situation. There have been real and serious attempts on its part to address these issues. How successful they have been in the eyes of the members of NZAF will be decicded at the AGM. I personally no longer believe the entire Board needs to resign so long as they can demonstrate their committment to working with the community that established the NZAF and remains most at risk of HIV/AIDS - that of gay men. M.W.Stevens Michael Stevens - 15th November 2005    

Credit: Michael Stevens

First published: Tuesday, 15th November 2005 - 12:00pm

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