The title of this recording is "Session 6, Accountability Mechanisms". It is described as: Audio from the Accountability Mechanisms session at the Human Rights Conference of the 2nd AsiaPacific Outgames. It was recorded in Ilott Theatre, Wellington Town Hall, 111 Wakefield Street, Wellington on the 17th March 2011. This is a recording of an event and features the voices of Charles Chauvel and Sam McLean. Their names are spelt correctly, but may appear incorrectly spelt later in the document. The duration of the recording is 1 hour and 10 minutes, but this may not reflect the actual length of the event. A list of correctly spelt content keywords and tags can be found at the end of this document. A brief description of the recording is: Audio from the Accountability Mechanisms session. The content in the recording covers the 2010s decade. A brief summary of the recording is: The summary covers an audio recording from a session on accountability mechanisms at the Asia Pacific Outgames in Wellington, New Zealand. The recording, featuring Charles Chauvel and Sam McLean, delves into issues surrounding human rights, particularly in regard to the LGBTQ+ community and the impact of laws on health outcomes, specifically HIV/AIDS. Chauvel starts the session by introducing their role on the United Nations Global Commission on HIV and the Law, tasked with examining the correlation between legal frameworks and the treatment of at-risk communities, such as sexual minorities and indigenous peoples. The commission aims to generate evidence-based reports advocating for the decriminalization of same-sex acts and the implementation of more inclusive laws to better HIV health and human rights. They touch upon the historical context of oppressive laws deriving from colonial times and how shifting towards more progressive models, like those in New Zealand, Western Europe, and Canada, can positively affect health outcomes and human rights. The commission has convened in diverse global regions to gather input for their final report, due in December, after which the challenge will be to implement recommendations, particularly in developing countries. Sam McLean discusses the New Zealand Human Rights Commission, focusing on the role of mediation in resolving discrimination complaints based on sexual orientation and gender identity, covered under the Human Rights Act 1993. They highlight the commission's process, the voluntary nature of mediation, and the potential progression to the Human Rights Review Tribunal if mediation is unsuccessful. McLean presents various case studies showcasing discrimination and disputes related to fostering children by same-sex couples, insurance applications from transgender individuals, blood donation regulations, and workplace discrimination towards transgender persons. They also address the considerations surrounding the confidentiality of mediation processes and the influence of the Human Rights Act on legislation and policy. The session concludes with a Q and A, touching on themes like adoption rights for transgender individuals, exemptions for faith-based organizations, and the cultural considerations in mediation practices. The full transcription of the recording begins: Hi, everyone. I think it's, um, my pleasure to to be here at this conference today. And, um uh, my name is I'm from the gay and lesbian rights lobby in Australia. Um, and coming here to New Zealand and seeing such, um, diversity of people and particularly having the privilege of hearing the indigenous peoples of this country, uh, speak around these issues has been a real privilege for myself, where in Australia we're still struggling for even those basic kinds of recognition, Not not just for sexual minorities and gender minorities, but for indigenous peoples. Um, and with that, it gives me great pleasure to introduce the session today, which is on accountability mechanisms. And, you know, it's fabulous to have law reforms and policy that, you know, theoretically, um, are designed to benefit communities, people, um, families and so forth. But it's essential that these policies and practises be made accountable to those people. And so today I shall be We have two very special speakers. Um, our first speaker is, um, Charles Shovel, who's a member of Parliament. Um, and Charles is the Labour Party spokesperson for Justice. Um, he has had five years, uh, in parliament, and he has been actively involved as a lawyer prior to his involvement in Parliament. In all the major, um, same sex law reforms, Uh, since 1985. What's that, right? No, not at all. And, um, our second speaker is, uh, Sam McLean, who joins us from the New Zealand Human Rights Commission and who has been a mediator there for four years. So has an extensive experience in conciliating and mediating complaints around a range of different issues. Um, so I would like to welcome Charles to get our topic started for today. I'm glad that we got a big venue for this presentation. Um, when the organisers talked to me last year about coming and, uh, speaking on the issue of accountability, I thought maybe I should just try and put a bit of accountability into practise. Uh, because, uh, last year I was appointed to the United Nations Global Commission on HIV and the Law, and one of the things I've been very keen to do was, uh, to talk a bit about our work, to report back on it and, uh, to hear any questions. So I'm going to do a short 20 minute presentation on the work of the commission, Uh, today. But also I'm very happy to take questions on the presentation or on the issue of the accountability of elected officials generally, particularly the Queer Communities. It's something that I've thought a lot about. And, um, I think it's something that we all need to to to work very hard on anyway to the, um, particular presentation in hand. Last year, the United Nations Development Programme, whose administrator is now, of course, Helen Clark, our former prime minister, and the United Nations Joint Programme on AIDS Uh, which is a partial initiative of the U NDP and, uh and and other UN agencies decided that there was a gap in the in the evidence around, uh, the best way to stop the law from oppressing people at risk of HIV uh, and uh, manners in which to use the law to, uh, facilitate, uh means to stop the spread of HIV and to empower communities at risk communities as far as the human rights are concerned. So if you can imagine kind of moving from the old British colonial model of the sodomy statutes through to the sort of models that we're trying to operate in places like New Zealand, Australia, uh, most of Western Europe and Canada. Uh, at the moment, the the issue here is what is the evidence that making that move actually makes a difference on health and human rights grounds? And there's a surprising paucity of evidence around that. And what the UN agencies decided to do is try to bring together judges, lawyers, politicians, public servants, each of whom had had some experience in working on law reform initiatives. Uh, and to try to tap into the experience of those people, uh, with a view to getting them to hear further evidence from affected groups and communities and put together a definitive report which could then be used, uh, to demonstrate that this type of, uh, law reform continuum was the way to go if we wanted to make a difference, uh, globally on HIV, the um commission had its first meeting in Sao Paulo last October. Uh, that was the first opportunity we all had as commissioners to meet one another to map out our work programme and to have a look at the particular issues that we thought we needed to study in order to make the sort of difference that we hope we can make. And so what I wanted to do today was just take you through, uh, what we discussed and what our forward work programme is And, uh, hopefully encourage you to, uh, tell your friends and colleagues about this initiative and to participate in it. And indeed, we have people in the room who've already, uh, taken up that challenge. So that's the membership of the commission. 14 people, Um, I started with the ex presidents up at the top because they kind of breathe their own oxygen. Um, but they are fantastic individuals. Cardozo, when he was president of Brazil, uh, made made a major difference, particularly in respect of drug law reform and in respect of safe sex education. And you can imagine the challenges in a big Catholic country that he faced. But he just said, Look, um, if we're going to be serious about the issues, this is what we have to do. Uh uh. Similarly, in his time in Botswana, it was interesting talking to him. He said, Look, you know, it is very hard to talk about these issues openly in Africa. Uh, and it wasn't possible for me, even though I wanted to to ask the Legislature to to put a repeal bill through because they still have, uh, that dreadful old British colonial sodomy statute on the books. But he said what I was able to do as head of the executive branch of government was essentially stop prosecutions from occurring in Botswana. Uh, and so he affected a a kind of de facto decriminalisation, um, which, uh, you know, was, uh was, I think a real example. And I'd just like to acknowledge Marilyn Waring, who's, uh, come to the room. My former, uh, a AAA, former member of the New Zealand Parliament Who, uh, who knows these issues Very well. Uh, then we've got representative Barbara Lee from California. Uh, she has done enormous amounts of work, particularly in the afro-american and Latino American communities on, uh, how to get effective prevention measures out into the communities. Uh, Dame Carol, the only woman in the PNG parliament, uh, again, somebody who's been a real pioneer in terms of how you how you challenge traditional taboos. Uh, and how you try to use the law and legal opportunities in order to make a difference. Uh, and then we've got the former MP S, uh, Senator a Pakorn from Thailand, uh, representative Shahira from Costa Rica and former MP, uh, provincial MP from Ontario. Steven Lewis Prasada, who's a former head of the, uh, health Ministry, the federal Health Ministry in India. Uh, the two judges, Michael Kirby, now retired from the High Court of Australia, Edwin Cameron on the Constitutional Court of South Africa. Uh, two African a academics Miriam and Sylvia Tamale. And, uh, I think importantly for this exercise, uh, she who was a former journalist on Al Jazeera and for the economist, uh, who brings a very important Islamic perspective to the work of the commission. So when we met, we we thought, Well, what are the what are the areas in which we can, uh, try to gather evidence over making a difference as far as using the laws concerned. And we looked at the profile of the epidemic, Uh, at least as far as the latest statistics were concerned, uh, it can be seen that, uh, women are somewhat overrepresented. Uh, at least, uh, as far as the, uh, developing world is concerned, that's not shown precisely on that chart. But we'll come to that later. Uh, and, uh, we've got we We've still got an ongoing, uh, major mortality problem and too many new infections. This is a graph that shows the profile of the epidemic over time, and and and obviously the number of deaths has come down, thanks to the availability of retrovirals. Um, that's the, uh, the yellow, uh, dots joined together. Uh, and also the absolute number of new infections has been coming down. Hopefully, thanks to prevention programmes and safe sex messages. But of course, the absolute numbers of people living with HIV is still increasing. U NDP and UN AIDS have done some work on the various scenarios under which, uh, we might be operating going forward complex matrices, including the availability of treatments, um, and, uh, changes to societal attitudes and laws. And they've come up with a number of scenarios, many of which I think are actually quite depressing. What we want to do is come right down to that structural change scenario and be, uh, unashamed advocates for that. And obviously, structural change includes dismantling oppressive laws and putting in place uh, those laws that do actually safeguard people's human rights and allow them to participate in in society, uh, without fear, uh, and without, uh, without discrimination so that they can access the full range of services that they're entitled to, uh, including, uh, prevention, services and treatment services. So the first work stream we decided on was one around gender. And, um although, as was seen in the previous graph, the absolute distribution between men and women of HIV infection is roughly half and half, um, in the developing world and in particular, uh, in sub-saharan Africa, you see a very different picture emerging. So obviously any work that we're gonna do uh, that tries to tackle the problem, particularly in the developing world, has to look very seriously at the way in which, um, women, particularly young women, are impacted. And I don't This is a AAA diagram that shows the two ways that you get from getting theory from gender inequality issues through to people being forced to participate in in unprotected sex. And it depends on which analysis you want to use, whether it's kind of because men tend to be physically and socially dominant in in societies uh, particularly where this is an issue. Therefore, they can get away with violence against women. Therefore, women can't negotiate safe sex. Therefore, they end up having unprotected sex or whether you go for the economic analysis. You know, men control the economic resources. Women are economically dependent on them. Therefore, they can't negotiate safe sex. Therefore, you get the unprotected sex. I don't especially care, which is more valid. I think it just shows that, uh, there's a problem that needs a solution. Um, so basically, women and HIV is our first work stream. The second work stream that we felt the evidence led us to require to consider was marginalised and criminalised populations. I hate that terminology. But it was easier than saying men who have sex with men, um, people who use, um, injecting drugs, um, people in prisons and, um and, you know, other, uh, basically people already with HIV who are prosecuted for having HIV, which you know, is still, uh, still crazily the law in some places. So that's the shorthand that the, uh, the Secretariat has decided on and again, if you have a look, one of the major issues here is is the unavailability of evidence again, Uh, because there's no standardised requirements around reporting by particular nation states. Um, but look, here's a stab at, um, the distribution of new infections by sources of risk in some selected African countries, both in southern and Eastern Africa and in West Africa. And they've they've basically looked at, um uh, the there's obviously the heterosexual infections. That's the bottom line, then, uh, multiple partner infections. Men who have sex with men, people using ID, uh, intravenous drugs, um, sex workers and then then another category. Now, these aren't reliable stats. They're self selected. Um, uh, only one jurisdiction. Kenya actually measured, uh, prison based infections. But even if they're they're not entirely accurate. They show that if you're not dealing, uh, with, uh, sex workers, men who have sex with men uh, IV drug users, then you're really failing, uh, in your duty to try to do something about this problem. Um, and in terms of the, um, un gas, the UN General Assembly country progress reports in 2008, here's the difference. And again, it's a bit rough. As far as sex workers, IV drug users and MS M are concerned between and and and and and the solid red graph is bar as as as countries where there are nondiscrimination laws. The the pink one is where there aren't. Here's here's how much easier people say it is to, um, reach prevention services where you've got some protection from the law. As against, uh, those where it's not, I don't think for any of us in this room, this is gonna be a surprise. You would be amazed at how surprising it is to people who never had to think about these issues. And finally, um, again, an area where stunningly there is not great evidence yet because of the lack of standardised country reporting and the fact that some countries just don't do it. Um, here's prevalence of HIV reported HIV amongst adults. Uh, that's the small, um, purple bar, uh, versus, uh, adult men who have sex with men. And it's, you know, it's different jurisdictions again, But it just shows that, uh, as as it would in New Zealand, Uh, if you don't tackle the problem amongst men who have sex with men, you're not actually taking the problem seriously. And that isn't just in developed countries. Um, another survey that essentially, um, shows that in in countries where in Africa, uh, men have come for men who have sex men have come forward to participate in surveys. The, um you know, the, uh this Well, the stats are awful, actually, and and again show that, uh, you know, you've got people who just are being prevented from coming forward to access services. Uh, because of the fear of discrimination. And I thought this one was an interesting one again. Um, it's a little bit rough and ready, but you've got the old British colonies in the Caribbean, Jamaica, guana, and Trinidad and Tobago that still have the old, um, seven or 14 year hard labour penalty for consensual homosexual acts in private versus um, some of the former European colonies in the Caribbean and the Dominican Republic. The Bahamas is is different because they they switched early on from the old British model to a more European models and Cuba. And there's the difference in HIV prevalence in the same region between countries that have decriminalised and those that haven't pretty compelling. Even if, as I say, it is a little bit rough and ready as far as the states are concerned, Um, And then as far as national AIDS responses are concerned, and I should say, if anybody wants this presentation in the graphs, I'm I'm very happy to make it available. Or if there's a conference website or something, you know, it can go up on it. The, um, the material is publicly available. Um, basically, this is AAA graph showing the percentage of countries by region that report programmes designed to actually try to change societal attitudes. And, um, then there are those that don't and you can see again. There's a big difference region by region. Finally, um, and I wanna make sure I leave time for questions, So I'll I'll I'll conclude shortly after this. Treatments are a real issue. We've been waiting for the vaccine for 20 years. Um, we've had good availability of retrovirals. We've we've learned about the cocktail. Um, we've managed through generics to make effective treatments more widely available, particularly in developing countries. So those are all good things. And you can see that, um, the mainly thanks to the global fund, uh, the the increase in in the availability of antiretroviral treatments has been significant now whether that will continue, given the failure of the replenishment last year or the substantial failure of it to reach its targets. I, I couldn't say, But you know, obviously there's a real, um, illustration of how far we've come and how far we need to continue to go. But the concerning development, I think, has been around what appears to be the effect of intellectual property treatment, uh, treaties and laws brought into being as a result, um, again, I'll just summarise this in this way, we have been more effective at driving the price down as far as existing retroviral treatments are concerned, then we have been at bringing new treatments and innovative treatments on to market so we can get the price down of the things that we already use. But there's been a major downtick in people being willing to, uh, come up with with kind of the next, the next level or the next step of treatment. And I think that's we've got to have a look at whether or not IP law is causative of this. And if it is whether or not we can maintain pre downwards pressure on price upwards pressure on availability, but also continue to incentivize innovation because it would appear that we're falling down in that area. So just in summary, Where to? From here for the commission, we're gonna hold a series of regional hearings. We've had one already for Asia Pacific. It really irritates me how the UN thinks of Asia Pacific as one vast kind of homogeneous region. But they, um they've ticked the Asia Pacific off with a hearing in Bangkok in 16. 17 February. I think we need to do something that's that is specific to the Pacific. Um, and I'm trying to, uh, have a little side negotiation with the U NDP about using its regional office subregional office in Fiji for that purpose. At some point. Uh, there's a Caribbean regional hearing which Michael Kirby is going to, um, preside at on the 12th and 13th of February. Then we're going to run one in the middle or actually probably three across the Middle East and North Africa, one in Eastern Europe, one in Latin America, um, one in sub Saharan Africa. But it might have to be more than one, uh, one for the high income countries to deal with their particular issues, probably in the US. And then we're gonna have a a kind of call for expert submissions on on the three work stream issues across the board in a way that's not limited to regions. But, uh, talks generally about, uh, about interventions that are proven to work, uh, and laws that are proven to demons to, uh, to not contribute to the to solving the issues. The full commission is gonna meet twice, uh, again once in August, to review the results of the regional hearings, uh, and then to kind of work out what needs to be done to distil the evidence that comes from those hearings, uh, in order to produce its final report, which, um, we're trying to get done by December, and then the hard work actually begins and that we're all gonna have to start trying to work out how we lobby to get our evidence based recommendations adopted, particularly in developing countries where, uh, and in Eastern Europe and and and other countries where, um, at the moment, uh, a punitive rather than a an empowering response is still seen as the appropriate one to the epidemic. Uh, so Finally, there's the side of the commission, and, um, it's got a a good level of information about what we're doing. I hope this isn't just going to be another one of those UN projects that produces a lofty sounding report and then doesn't go anywhere. Uh, but of course, that's always the risk. Um, and the the only way we'll we'll have any hope of of, of going some way to make sure that that doesn't happen is to get wide participation and broad participation so that we can actually demonstrate that we have looked at the evidence about what makes a difference. So, um, my plea to you today, uh, and and hopefully offering you my accountability, uh, for being on this commission is please participate. Thanks. And I'm obviously happy to take questions. The high. And as I said, I don't mind if they're on the work of the commission on or on. You know what the hell gay MP S think they're doing in Parliament? And you know how we should be relating to our communities or whatever? Yeah, not bad. Um, does the commission have any relationship or liaison with, um WHO the World Health organisation. There was yet another agency that connection with the firm next door. I was wondering whether to give you the official or the honest response. Um, you know, this is the first involvement I've had with the UN, and I am a little bit astounded at how little, um, the various UN agencies seem to cooperate. But obviously WHO is one of the kind of parent organisations of UN aids. UN AIDS is a big sponsor of this, so they're aware of our work, Um, and and supportive of it. And, uh, there's already been mention in, uh, I think in the, um in the latest, uh, world health. Um, I'm just trying to remember the name of the gathering. It's not the not the Congress assembly. Thanks. Marilyn already been mentioned in the latest assembly of the work, and similarly, um, for example, the UN human rights bodies are actively involved and supportive of, uh of this work, um, and have participated in, uh, in in in sending material to us and suggestions about how we might go forward. So I'm told that that's not not bad. Uh, not a bad level of cooperation as far as the UN is concerned. Well, thank you very much for, uh, your time. Uh, and, uh, if you would like to, uh, get in touch with me offline. I'm, uh, easily available through email at the parliament website in New Zealand or on Facebook. Thank you. And now he has to dash off to do some important ministerial business. Oh, excellent. Oh, great. No, we're more than happy to have you stick around. Um, now, er it's my pleasure to present, um, Sam, who's, uh, joining us from the, uh, New Zealand Human Rights Commission, where she's gonna just talk a little bit about, uh, the work that she does as a mediator in relation to sexual orientation and gender identity complaints. Thank you, Sam. Right. OK, so I'm going to talk to you today about the commission's, uh, complaints mechanism and relate some case studies on sexual orientation and gender identity discrimination. Ok, so, um, our mandate for, um, progressing complaints comes from the Human Rights Act 1993. And, uh, also the New Zealand Bill of Rights Act is referred to in the Human Rights Act in terms of complaints against the government or government activity or, um, bodies carrying out a public function the, um, unlawful discrimination provision. Uh, sorry. Unlawful discrimination provisions. Um, discrimination itself isn't defined. However, as a guideline, we use, um uh, a complaint if it has a ground of unlawful discrimination, an area of public life covered by the act and someone's disadvantaged or treated differently. And there is an absence of exempt, an exemption or a justification contained in the act. Then that, um, comprises unlawful discrimination. And we can, uh, progress the complaint. There are the grounds of, um, discrimination. Sexual orientation was added was one of the last ones to be added in 1993 and gender identity is covered by sex. Um, Georgina Beyer tried to introduce a, um, human rights amendment bill that was specifically, um would have included gender identity as a ground of unlawful discrimination. That didn't happen. However, the government, um, lawyers at the time produced a an opinion, a legal opinion that said that gender identity was covered by the ground of sex. Up until that time, there had been some sort of, uh, confusion or lack of clarity, and the commission had approached the government on a number of occasions to clarify that matter. So the areas of public life in which, uh, discrimination needs to occur for us to be able to progress a complaint, uh, those listed there and government or public sector activities were added in 2002 following a 2001 amendment. Um, prior to that, the commission had been able to get involved in complaints, um, to do with employment where the government was concerned, but otherwise we weren't able to progress complaints about government activity. Um, so the, uh, the other areas are employment, access to education, access to public places, provision of goods and services, provision of housing, land and accommodation, industrial and professional associations, qualifying bodies and partnerships. Other provisions are relating that the, um, Human Rights Act covers outside of discrimination in terms of progressing complaints, uh, racial disharmony, sexual harassment, racial harassment and victimisation. Victimisation covers situations where someone has, um, claimed, uh, their human rights or hasn't expressed an intention to claim their human rights. And so if someone has done that and they're victimised because of that, they can make a complaint to us, and we can progress that so the, um, dispute resolution process the objects of it are covered in section 75 of the Human Rights Act. And under that section, um, there are various provisions that are there in order to, um the commission is, uh, sorry. Mandated to facilitate information provision recognise, successful resolution is more likely if it is resolved promptly by the parties themselves. Obviously recognising in some situations, that's not appropriate. Um, support, flexibility. So we do this by, uh, accommodating the needs of the parties. We can, uh, use email, teleconferences, video conferences, our preferences face to face mediation where that where that can happen. However, we can use various methods for resolving complaints. And obviously, um, the act was designed to ensure that we used efficient and formal and cost effective processes. Uh, the the introduction of mediation also occurred in 2002 after the 2001 amendment. Uh, previously complaints had been handled through investigation and there had been a backlog, and those could involve huge processes of interviewing witnesses and taking statements, and they could take months and months to resolve. And the idea was to speed up the process to make it more efficient, more effective, and to have more, um, ownership by the parties involved. So that's when mediation came in. And it's a free, confidential and voluntary service voluntary in the and obviously in the framework of a statutory, um, setting. So when we approach a respondent and, um, you know, they're not terribly happy about coming along to a mediation, we inform them that, you know, they always ask, obviously, what happens if we don't attend? Um, we always have to inform them that the other party has the right to go to the Human Rights Review Tribunal. So when we say voluntary, there is an incentive to come along to a meeting. OK, so when we get a complaint, which we can get in any form, um, someone can phone in with a complaint or we have an online form or there's email or people write letters. Um, phone up? Yep. So we have a front line staff infoline who take the calls, and they they sort of screen them to see whether it falls within our mandate and whether it should be passed on to a mediator. And so, um, if it is, we look at it, and if it you know, people will say I've been discriminated against. We'll look at it in terms of the act and if on the face of it it looks like discrimination, we take it and we progress it. So we don't make any finding at any stage of this process about Has there been a breach of the act or not? If, in the complainants view there has been and they have been discriminated against, we take that at face value. So then we, um once we've had the complaint and decided it's within our scope, we seek the complainant's view about what they would like to do about it. Um, and we contact when they want us to. We contact the other party, and we go back to the complainant, uh, to talk about the other party's, uh, willingness to participate. And then we decide on an action with the complainant, sometimes with complaints. People don't want to go through the whole process of a mediation. Sometimes they want us to phone up and talk to it. Might be, uh, an employer and their child might have applied for a job, or the person themselves may have applied for a job and been told we don't employ women or whatever. Um, and rather than have a mediation meeting, they just want the commission to inform that person that we've had a complaint and to inform them that those, um, actions are liable to our process. Um, if the if the complainant doesn't wish us to take it any further, that's as far as we can take it. And we can't, um, enforce anything on that person. So So it very much depends on what the complainant wants. So, um, as I said, we decide on the action and then go from there. So just looking at, um, the dispute resolution spectrum, you've got sort of negotiation between the parties facilitation, mediation, conciliation, arbitration, and then litigation. So we are sort of in the middle mediation, Um, and if our process, um So if I go back to when we get a complaint and the parties, if they agree to come to mediation, we have a face to face meeting, and usually there's a settlement and an agreement drafted, or a letter or whatever is appropriate for the level of, um, the complaint, the the the party's wishes. Um, So if it's mediated successfully and there's a resolution and a settlement. That's the end of the matter. The commission closes their file, and that's the end of the complaint. If there's no resolution or if the, um, respondent refuses to come to a meeting, the complaint is closed at, um, the commission level. And then we advise the parties of their rights to go to the Human Rights Review Tribunal. So that's where um, there is a completely separate and independent agency dealing with matters that go to litigation. Um, you'll see there another, uh, title, the director of human rights proceedings. A party to a complaint can apply to the director of human rights proceedings for free legal representation. So it's sort of like Legal Aid. However, the director will take into account a number of factors when deciding whether to represent somebody such as likelihood of success. Is it a strong case? Is it going to affect a number of people? Um, costs. Obviously, he's, you know, he's accountable for those costs. So there are a number of factors before he, um, actually agrees to take on a case. So just just looking at some of the, um, components of of mediation, Um It can be an empowering process with the parties own their, um, in the way that it's resolved. Um, and they're very much a part of the discussions. They're given the opportunity to speak. They they have the opportunity to hear the other party's views. Um, it's a place where reality testing and dark creation can happen. The mediator can help the parties assess. How realistic is it? Is it for them to take this any further? Um, and what's likely if they don't settle at that stage? It can be educative to the parties to hear the other person's viewpoints. Um, and it can enable ongoing relationships or assist with ongoing relationships, especially in the employment arena. Um, and they're subjective outcomes. So it's what the parties agree to, what suits them. So it's not something that's imposed. These are some of the benefits of mediation. Shift perceptions create greater understanding to help people make wise decisions, um, better ability to to respond to cultural differences. We can accommodate different needs of people, um, rather than the formalistic sort of court processes. And there are more options available for resolution. What what one person considers a resolution. Another person may think that's just not going to cut it, but, um, you know, I've I've had a mediation where where it was, you know, a cup of tea and a walk around a campus was was the outcome that the person wanted and and it was agreed to. So it's a very broad scope. Of what? Of what can resolve a matter. Of course, there are alternative views about mediation. Um, one of it is, uh, one question is, is it right to mediate a right, um, does the confidentiality of mediation impede the potential for educative reform? Well, the confidentiality obviously governs the process and means that the parties can have full and frank discussions. However, it means that the information exchanged cannot be used in any alternative arena or at a at a later date or a different forum. So, um, there's protection there. However, you know, there isn't the publicity around a a court decision or whatever. Uh, so you have to weigh up those pros and cons. Really? OK, so, um, now, I'm just going to move on to some case studies. Um and, you know, it may be that for a party just being heard does have some affect or helpfulness in their lives. Um, and you know, a resolution may not happen, but they they get the chance to let the other party know how their actions have affected them, and hopefully that may institute some change in that particular person. So, um, mediation meetings can take various forms. Often people will have either a support person or an advocate or, um, solicitors often attend. When solicitors become involved in mediation, it can be really helpful. And it can be really a hindrance. So it very much depends on the approach of the the solicitors to the process of mediation. Um, yes. So I mean, you know, it's it's just variable according to that particular person on the day, Um, so sometimes the mediation won't be, um, resolved at one meeting, and there will be ongoing discussions. And that may happen through the mediator. Or there may be, uh, shuttle, um, mediations or, um, possibly video conference or whatever at a later date. So sometimes one meeting is all that can be, um, had, and the discussion goes on. Other times, it it's all resolved on the day and the settlement is drafted on the day. So I'm just going to talk about, um, three or four case studies of sexual orientation and gender identity, um, complaints. And, um, in the commission's latest report, Human Rights in New Zealand 2001, the chapter on the rights of sexual and gender minorities identified that uncertainties and gaps remain around the rights to found and form a family. This case study pre provides an example of discrimination in this area of life. A lesbian couple who were awaiting the arrival of a foster child. Um, they informed the agency they were working through that they were a lesbian couple. They had, um, filled out the application form they had gone through training. They were informed and were led to believe that everything was going along smoothly and they would get their child on the the, uh, the appointed day. They were then informed, um, that the board of the agency had decided that no, they couldn't foster the child due to their sexual orientation. It was a Christian family services agency partly funded by child youth and family. Their own in-house legal opinion was that they did not come within the Human Rights Act jurisdiction as they were not providing a service under contractual relationship to the foster parents. The couple were totally bereft and understandably upset and came to the commission. Let's see the commission's own legal opinion was that, um there were arguments in favour of the agency coming within our jurisdiction because it appeared that they were carrying out a public function under part one of a A of the act, which covers public functions. The mediator progressed the complaint the couple wrote to the agency, asking it to change its policy to meet anti discrimination standards in the Human Rights Act and to compensate them for their financial and emotional investments and preparing to foster the child. The agency was willing to attend mediation to acknowledge the distress caused, but indicated there was no possibility it could change its policy to not discriminate on the ground of sexual orientation. It explained its religious basis and offered compensation at a sum less than that requested at mediation. The agency didn't change its position, but offered sincere apologies for the hurt caused and agreed to pay a higher sum of compensation. The couple decided not to take this matter further to the Human Rights Review Tribunal to test the agency's claim that its policy did not fall within Human Rights Act jurisdiction. They agreed to settle and indicated they would in future offer to foster directly through child, youth and family. In another case study, Uh, Lucy was a transgender woman who applied for life insurance with her partner When they got a mortgage. Her partner's application was approved, and six weeks later she still hadn't heard back from them. She anticipated it was taking longer to proce process because she had disclosed she had gender reassignment surgery. She approached the commission about her concern that this related to her gender identity and was discrimination. She received a letter from the company telling her her application had been deferred for a year because it fell outside the level of risk covered under the company's usual underwriting guidelines. Her doctor and her insurer, insurance agent requested the insurance company reconsider its decision. The company approved of her application. She was happy with the outcome, and being able to discuss it with the mediator had helped support her through the process. So often, mediators are there in a supportive role rather than directly uh contacting the respondent. They assist the, um, complainant to do that and may make suggestions about who else to get involved to support them in this matter. Um, a gay man had tried to donate blood, but discovered he could not because he he is a sexually active gay man. He complained to the Commission of Sexual Orientation Discrimination. The commission put his complaint on hold pending the outcome of an independent expert review into blood donation criteria. The review group recommended the deferral period for men who have had male to male sex and it be reduced from 10 to 5 years before they can give blood. The complainant had questions, so the commission arranged a mediation meeting between him and the um NZ blood service. He said the meeting was productive and could see that they were doing everything they could. Uh, New Zealand Blood Service accepted the review recommendations. The standout period has been reduced to five years in relation to specific sexual practises. New Zealand blood service then went on to work with the New Zealand AIDS Foundation to improve its communication and understanding in the gay community about the deferral criteria. Since then, the commission has received another complaint in which it was believed the post review changes did not go far enough. That complaint is ongoing in another matter. This exemplifies the low level resolution process that the commission engages in. Eva is transgender, male to female and was employed as a driver. She had been using the female toilets at her place of employment and was told she couldn't do that anymore and would have to use the accessible toilet. She believed her employer's view changed since they found out she had not yet had surgery. She contacted the commission about her rights. The mediator discussed with her how she could approach this. She was provided with the link to the transgender employment fact sheet on the Department of Labour's website, and it was suggested she passed that on to the employer. Also, she was to give the employer the mediators, contact details. She provided the health and safety supervisor with the information and also a supporting letter from her doctor, and the situation was returned to how it was originally. She in particular, hadn't wanted any fuss, so the low level resolution suited her front line staff deal with many complaint inquiries which do not come, um, come to mediators as they are dealt with by the information advisors on the front line. And every year we receive complaints about school balls schools not allowing students to take the same sex partner along to school boards as a result of having a number of complaints on that matter. We have produced an, um, frequently asked question sheet, which is available on our website, and we suggest to students and schools that they, um, use this in guiding their decisions. Um, we receive a lot of complaints from people about homophobic comments made by colleagues and employers. I'm just looking over you. Um, we also receive a number of complaints about how to change, um, sex details. Officially, what are the marriage rights for trans and intersex people? Harassment by manager for being transgender? Uh, people refused access to a district health board transgender therapist prisoner taken off medication for transitioning. So though that's an example of some of the questions, Um, we get through our inquiries, and this is just a, um, a graph illustrating the number of complaints with grants that we receive the percentage out of our total complaints so um, you can see that the the total percentage is pretty low in terms of all of the grounds of discrimination. I don't know why that is. Um, I I'm not sure if if it's to do with the process or or whether people just manage to resolve issues themselves or what that is. Um, So I guess that's a question as to, um, what that could be about. Um, so that's that's my presentation. Thank you. Thanks. Sam. Um, how many do you know how many cases each year? The, uh, director of human rights proceedings is actually progressing through the last two or three years. That's a very good question. Um, I can't give you exact figures. Uh, do they have in house counsel and Sorry. How many? Um, there are three lawyers that work for that office. Uh, there's the director and two other solicitors, and they would be taking cases, but as well, giving you guys advice from the front line. Or if you got actual. We've got, um, lawyers that work in the commission. So the two, agencies are independent and separate from each other. Obviously, we, uh, communicate and they ask us for our information, Um, on the complaints that we received and we provide that. But we don't provide any information that happened within the mediation process. So, um, I don't think it's a huge. I mean, I think he gets a lot, a lot of the applications, but I I'm not sure of the number of cases that actually proceed, but that that actually segues quite well into my next question, which was, if it doesn't resolve at the mediation stage, and it and it is, go up to the to the sort of next step to the at the director looking at it, uh, given the confidentiality sections that are in the act, what is it that you guys actually pass on? Because I'm aware that a lot of people come to your office and they have just made a ring up and there's a verbal complaint, and I'm aware that mediators will take written statements from people Are those which are I'm not sure is that Is that taken by you guys in the context of mediation or or in, in, in in is it being passed on or not passed on? Ok, um, those are really good questions because the act, the way it is framed is fairly ambiguous. It talks about dispute resolution process that, um, information disclosed within the dispute resolution process, and then it talks about mediation. So there are ongoing discussions between the commission and the, um, Office of Human Rights proceedings about confidentiality and where the lines are drawn. Um, we tend to anything that's provided by a party on the understanding that it's confidential, and it's not to be disclosed to the other party. We obviously don't hand over that information. We hand over information about the actual complaint once a matter, once we enter into mediation, which can take place on the phone prior to a mediation meeting, we don't hand that information on, but the the lines are pretty blurry. OK, so what I'm hearing from you is that the if if someone comes in with a just having made a verbal complaint or a complaint over the phone referred to you if you take a statement from them, yeah, and that's before you've contacted the other side, obviously, and and seeing whether they'll agree to mediation, that's all fair game to then go on. If if if the matter doesn't settle. Yes, just that initial complaint would be part of what would be handed over right and also anything from the from the the person who was the subject of the complaint. Because I know that often statements are being taken by those people as well. Well, it it depends when again, it depends. There's no sort of strict answer when you consider mediation or the dispute resolution process starts. I. I appreciate there's no strict answer, but so what's the current practise, I guess, is the question I'm asking. I mean, it's fairly arbitrary, um, deciding when mediation starts and as part of my role, I I'm that I receive requests for information from that office. So, um, I look very carefully at what, um, you know, it looks like it's confidential, and often the mediator will mark something in in mediation. So that certainly helps. Um, but it is. Yeah, it's I'm afraid there's no definitive answer to that. Yeah. Uh, hi. I'm sorry if I missed this point at the beginning of the lecture, but, um, I know the Bill of Rights Act has to be taken into account when, uh, Parliament is drafting new legislation. and also has to be taken into account when courts are interpreting legislation that already exists, even if there's inconsistencies. Um, I'm just wondering, with the Human Rights Act is what kind of influence? If if it does have much influence on other legislation either already on the books or being drafted the Human Rights Act? Yeah, is there is. I mean, does it have any, um, in the way that the Bill of Rights Act does? Uh, no. There's no sort of check for inconsistencies in terms of new legislation. And it's just the Bill of Rights Act, I think. But the Bill of Rights Act does refer to the, um, sorry. The Human Rights Act refers to the Bill of Rights Act. Um, so, in terms of a specific process, checking out legislation, uh, I think there was some, um, there was a review done in about 2000 or 2001 review of inconsistencies of laws with the Human Rights Act. And when the last, um, human Rights uh, status report was done in 2004, a lot of work was done about, um, working in future with ministries around, ensuring that the legislation is in line with the Human Rights Act. Um, so I think policy, they do a lot of work around that, and obviously, in submissions on bills, they always, um, put forward human rights legislation to be considered. So it does take place in different ways. Um, yeah. I'm gonna use my prog if we share our Sure, um, uh, the foster care scenario that that we discussed is pretty much exactly the same situation that we had in New South Wales. Um, uh, two years ago, where a same seal couple were seeking to foster a child from Work Co. Commission, which is a faith based, um, organisation, which receives public funding, um, to provide that public function as you articulate it. Um, thank you. Um And, uh so my question is it's interesting. You said that that case seemed to hinge around the fact that, uh, that agency believed that they weren't providing a contractual service, whereas in the case I'm referring to it hinged on the exemption, um, and the availability of an exemption. So I guess my question is, how How broad are the exemptions to anti discrimination laws and particularly concerned with, uh, faith based exemptions and where organisations are in receipt of public money, right? In terms of organisations being in receipt of public money, Um, I'm not sure about the exemptions there. Um yes. So for example, in New South Wales, faith based organisations are entitled to an automatic exemption even if they are in receipt of public funds and they're contracting a government service that's effectively the case from that doesn't exist here that automatic exemption. I mean, I think that would have been an interesting case to have gone to the tribunal in terms of whether, uh the tribunal would have found that they were providing a public function, therefore were covered by the act. Um so the I mean, there are exemptions. There's a religion. There's an exemption, um, to discrimination and employment on religious grounds. Um, it's a specific exemption in the act and the Human Rights Act. Um So there are a number of specific exemptions relating to the different areas of public life within the act, and I could provide more information about that that, you know, this, um, exemptions on, I think, on the grounds of age, um, there's an exemption relating to genuine occupational qualification those kinds of things. Um, but just in your opinion, are they quite broad, or are they fairly narrowly defined? They feel, or they they're defined so that there's an ambiguous There's room for interpretation. Yeah, so they are quite bored, I guess. Yeah. Thank you. Yeah. Um, representative, our region. And just in that dispute process that I called in to try to resolve disputes without having. But it's not about the process that might be useful just from years of experience. Mhm. Um, I guess it's, uh, in terms of dispute resolution. It's sort of creating some sort of safe space, Um, and some sort of trust in the process, I guess. And yeah. And just ensuring that both parties really get the opportunity to to speak and to to say how it's really impacted on them, you know, like on their personal being, how what has been done has had an impact so that the other person get gets to hear that rather than, um, just the sort of angry reaction they get to hear the hurt. Um, so, yeah, I don't know how helpful that is, but creating a safe space and, um, allowing the parties to really to really express themselves is really important. And I think that probably culturally, there are, uh, those kinds of mechanisms in in a lot of places, anyway, you know, um, mediation, I think, uh, is a Western kind of concept that has roots from a long time ago in various cultures. So it's not really anything new in some ways. Any more questions? Yes. It's not the word, the opportunity to use the cultural forms of mediation. I think it's also just a point to note that in well, for the Pacific, for example, it's not all that inclusive. And if you are to have mediation, it has to be inclusive, inclusive in the sense that gender, you know, um, sexual orientation is is taken into account. The the the forms of mediation that currently exist in a lot of the Pacific island culture is not really that all inclusive. So just my word of caution. Really? Thank you. Are there any other comments? Um, from from audience members in relating to the presentations as well? Yeah, at the back. Hi. Uh, I'm a trans activist from India. So in my country, I have a friend who is a trans, and she adopted a child. But her, uh, ID shows that she's a female. That is the reason she was able to adopt a child. If her identity was like a trans or something else, she couldn't be able to. So my question is, what is the situation is is in New Zealand. If any chance a woman can adopt a child or if she can adopt a child, what are the consequences she has to face or had? Did you see any case? I mean, reported to your commission so far, I think the trans adoption. So are there any exemptions or the adoption issue in New Zealand is, uh, the adoption act is 1955. So the the laws around a adoption are pretty old in terms of, um, adoption. I know that, um, up until recently, there was a court case recently in which it was decided that a de facto heterosexual couple could adopt, but it still remains. Um, that same sex couples cannot adopt single people I think can adopt now whether a single trans woman could adopt. I don't know the answer to that, but I can find out I don't I. I don't see why in terms of single people being able to adopt, I don't see why not on the face of it, but I don't know. So I'll find out, Um, if I can add as well, um, just to provide the Australian context as well. So, um, in four states in Australia, same sex couples are eligible to adopt, um, singles have already always been allowed to adopt, and heterosexual de facto couples have always been able to adopt as well. And there is no specific discrimination against trans people as singles adopting and now as a same sex couple. If you were both identifying the same way, there would be no issue around adoption. The only time it arises is faith based exemptions. So where you went to a adoption provider and you sought to, um, to adopt a child or foster a child And they said, Sorry, we don't, um, you know, cater for same sex couples or trans couples, gender diverse couples and so on. Um, that's the only time there would be an allowance of discrimination because of the exemption. I. I think it's probably the same here that a trans woman can adopt, but I'll check it out. Yeah, There has been a successful. Yeah, there has been a successful gay adoption in New Zealand. Nigel's, for example. Um um, just reflecting on one of the things you said before, um, about how low the figures were. I know when I was, um, just doing some reading for yesterday morning. Um, I was again really shocked by the figures from Mark Hendrickson's Lavender Island survey, which demonstrated that only 42% of all gay couples in New Zealand were out to everyone they knew. And the figure of sin of single people was about 29% who were out to everyone they knew. And I think that possibly even taking a complaint is a scary place for the majority of, um uh, of of GL BT I people in New Zealand, you know, and and I'm just thinking Mark's figures are only about five years old, I think, and I don't think we've had a, you know, extraordinary transformation in that period. And that may be some kind of explanatory factor behind these. Thanks. Marilyn. Any further questions? Um, well, thank you said, can we thank you all for coming? Um, we've finished on time. Actually, we finished early, so I'm not sure if the afternoon tea has arrived, but it should be outside. So feel free to go and enjoy your long extended afternoon tea. The full transcription of the recording ends. A list of keywords/tags describing the recording follow. These tags contain the correct spellings of names and places which may have been incorrectly spelt earlier in the document. 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