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HLR30: Praise, humour and exhortations

Tue 9 Aug 2016 In: Politics and Religion View at Wayback View at NDHA

The following is an entertaining, informative and powerful speech made last night by NZ's first openly gay High Court judge to a gathering organised by Rainbow Law in Auckland to mark the 30th anniversary of Homosexual Law Reform. Justice Matthew Muir Tena koutou katoa, kua tae mai nei i runga, i te karanga o te raa.   It is my great privilege to be able to address you tonight on the 30th Anniversary of the coming into force of the Homosexual Law Reform Act 1986. For the many fresh faces in the room, 30 years probably seems like an eternity. For me the pain of the public debate which endured for almost 18 months and, the sweet smell of victory when the Bill finally passed on 9 July 1986 still seem very immediate. In my lifetime, only the Springbok Tour has proved so divisive a social issue. It pitted public figure against public figure, family member against family member, the evangelical right against more moderate voices of Christianity and even friend against friend as I found to my own disappointment.   When on 8 March 1985 the MP for Wellington Central, Fran Wilde introduced her Homosexual Law Reform Bill to Parliament seeking decriminalisation of sexual activity between consenting males 16 years of age and over and outlawing discrimination based on sexual orientation, nothing could have prepared her for the outpourings of bile and ignorance which characterised the public debate. It is said that ignorance breeds fear and fear breeds prejudice. Never was that better demonstrated than by the debate which raged for much of 1985 and 1986. David Lange once remarked that stewardship of the Bill through the House was one of the greatest challenges of his political career.   Equally memorably he also remarked, while attending a fundraiser at the Regent Hotel surrounded by lithe young men for whom the delayed arrival of the main course was not quite the issue it was for him – “do you gays eat?” However I digress… Within a week of the Bill’s introduction a full page advertisement had appeared in the New Zealand Herald under the banner of “God defend New Zealand from the spread of homosexual practices” and promoted by the Church of Christ. It was as if licence had been given to every bigot, zealot and fanatic to indulge uncensored, their ill-informed views. Ideas that I thought were the exclusive domain of my own rather extreme evangelical Christian upbringing – that, for example, homosexuals were devil possessed and needed to undergo exorcism – became, remarkably, the currency of accepted public debate. Many of the Bill’s opponents, ignoring the wise counsel of early American federalist Fisher Ames that “of all flattery the grossest (gross indeed to blasphemy) is that the voice of the people is the voice of God”, claimed, they were in fact acting under direct instruction from the Divine. Bibles were a frequent prop at public meetings, held aloft as if in the sign of the cross against we wicked homosexuals. In one well-publicised article the Reverend Richard Flinn went so far as to say: “Let adultery and homosexuality become capital crimes punishable by death and the public market for pornography would dry up within months”.   Among his other pearls were: “Morally, there can be no such thing as rape in marriage as the wife does not have authority over her own body, her husband does.” The consequences of this inflammatory rhetoric were inevitable. The “Out” bookshop in Anzac Avenue was the frequent target of graffiti attacks including on one occasion a call to “Kill the gays”. Anecdotally, the incidence of bullying in schools and in the work place greatly increased. For many, grappling with their own sexuality, it added hugely to their burden, driving them even further underground. Surprisingly, there were those within the gay community itself who questioned the wisdom of the Bill believing that if we just kept our heads down we could get on with our lives. They were fearful of public backlash should the Bill fail – believing the issue one “left well alone” and seemingly oblivious to the fact that their quiet complacency meant no homosexual men could ever, while openly acknowledging his own identity, take his rightful place in the community, free to pursue his own loves, ambitions and dreams.   Within the ranks of gay lawyers there was also, regrettably, fear and timidity in some quarters. Out from a fairly early age, I had met others in the profession of similar “persuasion” (to use a popular euphemism at the time) but some were not there to be counted because of concerns about client relationships or career advancement. I recall, for example, a very defensive response when asking one such lawyer for financial support to counter the religious right’s well-organised and well funded campaign. That can be contrasted I am pleased to say with the unqualified support from some very fine and principled liberal voices within the profession at large – our current Chief Justice among them. Remarkably, even some of the more flamboyant figures in the entertainment industry at the time wanted nothing to do with the campaign, believing it adverse to their public perception and ratings. As if their audience had not long ago put two and two together.   The inflammatory rhetoric of the Bill’s opponents also created significant tensions within the various groups supportive of the legislation. Early in the debate a Task Force was formed, comprising the Bill’s authors, Professor Don McMorland and Auckland barrister Alan Ivory, together with spokesman Peter Wall and members Bruce Kilmister, Warren Lindberg, John Hughes, my partner James Peters and Wellingtonian Bill Logan. With the first public opinion polls showing only limited (33%) support for reform, their strategy was to play the long game employing cool heads and calm logic. But there were other more radicalised elements within our community who promoted an agenda of active civil disobedience and disruption.   Ultimately, with Fran Wilde’s steely authority and unerring political instincts, these more radical elements were held in check and significant discipline imposed on the campaign. Always dressed in an immaculate charcoal black suit, the measured tones of Peter Wall on radio and television and at meetings the length and breadth of the country did much to reassure average New Zealanders that the predatory image portrayed by our opponents was simply wrong.   And so, slowly but surely the polls started to turn in our favour and with them the conscience votes that were necessary to pass it, although many [were] hard won through Fran’s dogged persistence and strong influence over her male Labour colleagues.   April 1985 saw the launch of a national petition against the Bill. The tactics were unscrupulous. Petition organisers would arrive at places of work and entrances to schools where young men in particular would feel compelled to sign for fear of being identified as gay. On his first day of work my partner James’ 17-year old nephew found himself signing the petition for those very reasons. Embarrassed that he had betrayed his much-loved uncle he tearfully told his mother that evening resulting in immediate letters to have his name removed (none of James’ seven sisters were to be meddled with on the subject!). Friday nights were for many of us an exercise in running interference against the petitioners who regularly set up tables in Queen Street. The tactic was to engage organisers for as long as possible, sometimes even feigning interest in what they were saying, to prevent them inveigling other passersby. It was great sport to watch their increasing discomfort as we would earnestly pose yet another question while they struggled to extricate themselves.   In October 1985 the petition was presented on the steps of Parliament. In a performance of which Cecil B. DeMille would have been proud, dozens of innocent-looking young acolytes carried boxes up the steps (many found the next day to be only a quarter full or less) with New Zealand flags waving to the self-righteous chorus of the politicians and church leaders who were manipulating them.   Nominally, there were some 835,000 signatures. However, within days vast duplications and other irregularities were identified and much of its moral force lost.   Still no-one could deny the level of public engagement on the issue, and much of it negative. In one memorable photograph the Committee Clerk of the Statutes Revision Committee Gerald Rudd was photographed with a stack of submissions dwarfing his 5’ 10” frame which was said only to be a quarter of those received, many of them statements of pro forma ignorance penned by others.   Every weapon in the dark art of politics was exploited. As a private member’s Bill it only came to be debated on Wednesday evenings and then often well down the order paper. All the early months of 1986 were dominated by filibusters – a prophylactic for insomniacs perhaps but beyond that of limited effect. On 6 March 1986 Labour MP Mr Geoff Braybrooke (celebrated for what now seems a breathtakingly naive observation that if the Bill was passed it would lead, shock and horror, to gay dance clubs – we had been attending them for years!), attempted to delay the Bill from coming into force until after a Royal Commission and a referendum. Then later that month various MPs moved a series of amendments aimed at raising the age of consent to 18 or 20. For the advocates of reform that was regarded as a litmus issue. To have had divergent ages of consent between heterosexual and homosexual consensual activity would have consigned us to years of inequality and Fran Wilde correctly stood her ground despite a great deal of pressure to compromise.   On 9 April 1986 a procedural motion to defer progress of the Bill was lost by a mere four votes and on 16 April 1986, in a vote which now seems extraordinary, Part 2 of the Bill, outlawing discrimination against homosexuals, was defeated 49 votes to 31. It is a remarkable reflection of how quickly things changed that such legislation would be passed within seven years with support from a then centre-right government.   June and early July saw a succession of very precarious votes. On 11 June 1986 the Government took urgency on totally unrelated business in order to prevent a vote which opponents of the Bill were confident would have seen it lost. On 2 July the same opponents, sensing possible victory because of the absence from the House of various cabinet ministers supportive of the legislation, moved that the debate be closed and the Bill voted on. That was defeated by 43 to 42, National’s George Gair proving the decisive vote.   Finally on 9 July 1986 the Bill passed its third reading by 49 votes to 44. The three National MPs who supported it, Kathrine O’Regan, George Gair and Ian McLean of Tarawera ultimately proving decisive to the outcome. Katherine O’Regan had been there from the beginning and it was very satisfying at a recent Mayoral function acknowledging the 30th anniversary, to see her recognised alongside Fran Wilde, Louisa Wall, Marilyn Waring, Nikki Kaye and others who have been so supportive of our community for so long. George Gair, then Deputy Leader of the Opposition, had been a long term supporter in principle although he anguished over the age of consent. Ian McLean’s support came from left field. He had voted against the Bill at every stage up until that point but in the days leading up to the third reading had flown to Melbourne to discuss with the Australian Aids Council how passage of the Bill might better help the fight against the disease. He came away convinced that the legislation was essential from a public health perspective. His intelligent assessment of the issues will always mark him out for special mention by those who fought for reform. I remember vividly listening on the radio to the final debate. Labour MP for Southern Maori Whetu Tirikatene Sullivan, in one of the more bizarre speeches to have been made in the House, claimed middle-aged predators were lining up at every International airport awaiting the outcome of the vote to come and prey on Maori youth. John Banks intoned that “a very black cloud hangs over Parliament tonight” and that if the legislation passed it would be remembered as “a sad and sickening day for New Zealand”. To his great credit he has subsequently renounced these views and expressed his regret to the gay community. National MP for Invercargill, Norman Jones, one of the leading opponents of the Bill and who in one debate memorably stated we should return to the sewers from which we came, attacked fellow National MP George Gair saying that only through his vote the previous week had the Bill survived. When the outcome of the vote was announced the chorus of shames and boos was almost deafening until the Speaker finally brought the House to order (at which point a former prime minister no less, Robert Muldoon, shouted “tell the poofs to quieten down too”). And so, one of the more distressing legacies of our British colonial past was finally laid to rest.   Thirty years has now passed – thirty years of social change which I am sure leaves many of the younger members of the audience almost shaking their heads in disbelief at the events I have recalled. For over 20 of these, the anti-discrimination provisions, so resoundingly defeated in 1986, have been part of our law. Then in 2004 came civil unions and, finally, marriage equality in 2014 both with a large measure of bipartisan support. My own appointment [as an openly gay man to the High Court bench], unthinkable 30 years ago, has raised scarcely an eyebrow – I don’t even get called Gay J! At the multitude of judicial events I attend James is warmly embraced – indeed even to the point where many of the partners inquire whether he is going to be there before confirming their own attendance. In a charming moment at our most recent dinner (marking the retirement of Stevens J from the Court of Appeal), James was introduced to an elderly retired High Court Judge who asked whether he was a recent appointment. James said, no, he was my partner, to which the response was, grabbing him affectionately by the arm, “my apologies, this is all rather new and modern to me”, but there was not so much as a hint of disapproval. At the time of my swearing in Alan Ivory, as I have said one of the architects of the Bill, was asked by a member of the press what my appointment meant in the context of gay politics at which point he simply said “It’s over”, graciously resisting as he could so easily have embraced Michael Cullen’s famous line, shortly after the election of the 5th Labour Government, “We won, you lost, eat that”. But we should, I suggest, be careful of complacency because I doubt whether the forces of religious fundamentalism – whether Christian, Muslim or otherwise will ever be silenced on these issues and they will continue to recruit among the uneducated and underprivileged. As middle class professionals we are largely insulated from such influences, but spare a thought for the young gay man or woman growing up in communities where religious intolerance still precludes them openly embracing their own sexuality.   Inevitably we are also going to have to address what the contemporary philosopher Will Kymlicka thoughtfully describes as “the limits of liberal tolerance”. A recent example of the sort of challenge we will face is Act MP David Seymour’s call for all new immigrants to pledge adherence to a value statement recognising the role and status of women and sexual minorities in our society – a proposition which at once challenges some of our liberal secular assumptions but at the same time reinforces others.   Of course, politically emasculated as I now am you will have to wait until my retirement to know what I personally think! I am also reminded of the touching story of a Cook Islands Fa’afafine who at the recent Mayoral function noted that many of the Pacific Island countries retain on their statute books the legislation we fought so hard to overturn 30 years ago. Is there now occasion for a respectful dialogue about these issues with the governments concerned in the same way that New Zealand has for many years recorded its concern over other human rights violations where they see them occurring?   And is there an even more compelling message to be sent to the numerous countries in Africa, the Caribbean and the Middle East whose openly hostile regimes condone widespread civil rights abuses in this area? Should sanctions even be considered in the same way as so successfully invoked against the apartheid regime of South Africa. Many would say the underlying issues really are no different.   In a 2014 interview Michael Kirby noted that little progress is being made in any of those countries and that “whatever can be done to get countries to face up to the reality that the laws have to change for the protection of their citizens should be done”. These are the political challenges of the future.   And thinking of the last pockets of resistance that exist closer to home, can we as a community and by an example which is perhaps not as self-indulgent as the popular press typically portrays our lifestyles, reassure families fearful of what the future may hold for their gay children, that our lives are as full, rich, complete, productive and valuable as any heterosexual? So yes it is time to take our place openly and visibly at the table – leading the professions, business, politics, arts, the school boards, the community and charitable organisations and our families in a way which honours the stand made 30 years ago and the fact that it always was about a great deal more than who you could lawfully have sex with. And yes, since they seem to be our latter day Gods, an openly-gay All Black just might help too! Thank you for sharing with me this celebration and for your warm welcome here tonight and my congratulations to Nick Wells and Chapman Tripp for your commitment to respecting all aspects of difference in your Diversity Programme. As we speak, you may be nurturing in your ranks some young man or woman who becomes New Zealand’s first gay Supreme Court Justice! - Matthew Muir. Justice Matthew Muir - 9th August 2016    

Credit: Justice Matthew Muir

First published: Tuesday, 9th August 2016 - 10:28pm

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