Another Spectrum

Personal ramblings and rants of a somewhat twisted mind


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#MeToo – NZ style

Sexual harassment is all too common, and yes, it also happens in Aotearoa New Zealand too. And just as in the rest of the world, women are by far more likely to be harassed than men. Regardless of gender, it requires a lot of courage for a victim to seek redress for any form of harassment, but particularly when it is of a sexual nature.

In this country it is slightly easier than in many other jurisdictions to seek redress as the Human rights Commission will often represent a plaintive in court through the office of the Director for Human Rights Proceedings.

In a recent case, the Director for Human Rights Proceedings represented a woman in a sexual harassment hearing before the Human Rights Review Tribunal where the woman was awarded a six-figure sum for sexual harassment that occurred in the course of her employment. Unfortunately, most of the details of the case have been hidden behind a confidentiality agreement so it’s unlikely that we’ll ever know the full details.

What makes this case unusual is that the value of the payout is large by New Zealand standards, but it does show an increasing intolerance by the courts towards sexual harassment. Perhaps more unique is the nature of the woman’s employment, and although similar cases have been successful in this country, her job would preclude such a case being brought before the courts at all in most other jurisdictions.

According to an article in the New Zealand Herald:

A sex worker awarded a six-figure payout after being sexually harassed at work is feeling vindicated, say those who lobbied for her.

Despite much of the case being subject to a confidentiality agreement, the Office of Human Rights Proceedings has revealed a substantial settlement has been reached between a business owner and a sex worker.

The money is to compensate the woman for emotional harm and lost earnings.

Human rights proceedings director Michael Timmins said the settlement was “substantial” and hoped to serve as a benchmark for future cases.

New Zealand Herald, 14 December 2020

The finding of the tribunal are not yet available online but seem to be consistent with the finding of DML v Montgomery in March 2012 where DML was awarded $25,000. There the key finding was that Sex workers are protected by section 62 of the Human Rights Act 1993 (sexual harassment).

Sex workers work in an environment where there will be some sexual language/behaviour. However, there is a difference between sexual language/behaviour with a legitimate work purpose, and sexual language/behaviour that is unwelcome or offensive to the individual.

Some key findings in that case were:

[106] But context is everything. Even in a brothel language with a sexual dimension can be used inappropriately in suggestive, oppressive, or abusive circumstances.

[110] In addition to establishing that the spoken language complained of was of a sexual nature, the plaintiff must also show that the language was either unwelcome or offensive to her. Whereas the test for the first element is objective, the test for the second is subjective. That is, it is the complainant’s perception that is relevant. It is immaterial whether the person complained about (or any other person) considered the language to be unwelcome or offensive. See Proceedings Commissioner v Woodward [1998] NZCRT 8 at 6 (CRT, 22 May 1998) and EN v KIC [Sexual harassment] at [49]. There is no “reasonable person” test. The harasser must take the consequences of the victim’s sensibilities. See Lenart v Massey University at 267.

[111] It follows that it is not possible to ask whether a “reasonable sex worker” would find the behaviour unwelcome or offensive. If the Tribunal accepts the plaintiff’s evidence that she did indeed find Mr Montgomery’s language unwelcome or offensive, that is sufficient. If in a brothel language or behaviour of a sexual nature could never be considered unwelcome or offensive sex workers would be denied the protection of the Human Rights Act.

[146]… Sex workers are as much entitled to protection from sexual harassment as those working in other occupations. The fact that a person is a sex worker is not a licence for sexual harassment, especially by the manager or employer at the brothel. Sex workers have the same human rights as other workers. The special vulnerability of sex workers to exploitation and abuse was specifically recognised by the Prostitution Reform Act 2003 which not only decriminalised prostitution but also had the purpose of creating a framework to safeguard the human rights of sex workers and to promote their welfare and occupational health and safety:

3 Purpose
The purpose of this Act is to decriminalise prostitution (while not endorsing or morally
sanctioning prostitution or its use) and to create a framework that—
(a) safeguards the human rights of sex workers and protects them from exploitation:
(b) promotes the welfare and occupational health and safety of sex workers:
(c) is conducive to public health:
(d) prohibits the use in prostitution of persons under 18 years of age:
(e) implements certain other related reforms.

Irrespective of my own personal views on prostitution, it is cases such as these that persuade me that out of all options for dealing with it, I am pleased that what has become known as the New Zealand model was adopted here in 2003. Do any of my readers have an opinion on this?


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Election fraud in NZ!

While the world watches in amusement (or alarm) at Trump’s ridiculous claims of fraud in the US presidential elections, it is ignoring a real and confirmed case of vote rigging that has just been uncovered right here in Aotearoa New Zealand. It has absolutely stunned the nation. What has happened to our notion of fair play and honesty?

How can we as a nation ever hold our heads up high and claim in all sincerity that we are the least corrupt nation on Earth?

The following video gives all the sordid details. Watch and be shocked!


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Pay equity versus pay equality

Are “market forces” capable of ensuring a “fair day’s pay for a fair day’s work”? The fact that almost every nation has legislation requiring women to be paid the same as men for the same job would indicate that this is not so.

Pay equity vs equal pay
Pay equity is about women and men receiving the same pay for doing jobs that are different, but of equal value (that is, jobs that require similar degrees of skills, responsibility and effort).
Equal pay is about men and women getting the same pay for doing the same job.

Historically, there has been pay disparity between the sexes, but since the early 1970s, equal pay laws in Aotearoa New Zealand require that men and women should be paid equally for the same for jobs of equal value, even if those jobs are different. In theory that should result in everyone being paid equally for work of equal value – pay equity. That never happened.

The problem with the legislation is that pay equity could only be claimed through the courts– there was no provision for pay equity to be negotiated through the existing “good faith” bargaining framework. Litigation can be a costly and lengthy process and this has resulted in jobs that have historically been female dominated continuing to be paid less than similar jobs where the workforce is predominantly male.

Kiwis are not a litigious lot by nature and workers are usually reluctant to take their employers to court. Following a landmark court decision in 2014 that resulted in significant pay increases to those working in the aged care sector, the unions, employers and government agreed there had to be a better way to ensure pay equity. The outcome was the Equal Pay Amendment Bill that passed through it’s final stage in Parliament at one minute to midnight yesterday.

The amendment should benefit those who have been underpaid due to systemic sex-based discrimination. According to the Minister for Workplace Relations, Andrew Little, the Bill makes it easier to raise a pay equity claim, and encourages collaboration and evidence-based decision making to address pay inequity, rather than relying on an adversarial court process. Employers already have a duty not to pay people differently on the basis of sex – this Bill helps parties to come to an agreement about what equitable remuneration would be, and makes court action a last resort rather than a first step.

A modern and more effective system for dealing with pay equity claims is long overdue. It is just one step in a long journey towards gender equality, the work does not end here

Andrew Little, Minister for Workplace Relations

As Andrew Little has stated, this piece of legislation does not resolve all gender inequality – it’s just another step in that direction. What’s next?


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Eleven out of twenty years

Over the last two decades, a woman has held the top political role in Aotearoa New Zealand for eleven of those 20 years. It would be nice to think that we have gender equality, but although it’s getting closer, we are by no means there yet.

Earlier this year, the UN Women National Committee Aotearoa brought together Prime Minister Jacinda Ardern and former Prime Minister Helen Clark for a recorded discussion on a number of feminist issues. This is part of their #Trailblazing125 series of advice from prominent Kiwi women in recognition of 125 years of women’s suffrage in Aotearoa New Zealand.

Helen (yes, we refer to our leaders by their first name) has had a big influence on the mindset of many people irrespective of whether or not you agreed with her politics. It was because of her, that people like Jacinda grew up not considering that gender might be a barrier to the top political job in this country.

It seems to me that what is holding women back (in the NZ context) is not the barriers imposed on them by others, but a lack of confidence in their own ability. There is still something in the way women are conditioned by society whereby they are less likely to put themselves forward for a role than is the case for men. Hopefully that attitude is no longer encouraged.

New Zealand Prime Minister Jacinda Ardern and former Prime Minister Helen Clark talk gender equality


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Sexism in politics

Having grown up in a family with very liberal ideas on gender roles, I sometimes forget that not everyone holds similar values.

This week a TV interviewer put his foot into it by asking a question he really should have known not to ask.

This is Aotearoa New Zealand and the twenty first century. If he has been an employer, he would have been in deep doo doo for asking the question to an employee or prospective employee.

Thankfully his question raised the ire of the interviewee and a significant proportion of the community.

The question was to the new leader of the Labour party, who has a remote chance of becoming the PM (Prime Minister) after the general elections in September.

So what was the question?

“Is it OK for a PM to take maternity leave while in office?”

The question and the anger it has raised seems to have been reported around the globe. See CNN and The Guardian as examples.

I’m disappointed that there are still men around who hold nineteenth century views of gender roles, but I am pleased that most Kiwi males have moved on.


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Equality on the decline?

In 20o5 Aotearoa New Zealand became the first nation in the world where all top positions were held by women: the Monarch, the Governor General, the Prime Minister, the Speaker of the Parliament, and the Chief Justice.

There have been other firsts that at first glance give the appearance that women are more equal here than elsewhere, including being the first country to grant women the vote. The 1976 relationship act and its amendments grant equal rights to both members of a relationship irrespective of marital status or gender is another.

Just as America prides itself on its liberty and freedom, NZ has always prided itself on its egalitarianism – both between the sexes and the population as a whole. In fact, back in the 1940s a visiting academic suggested we should build a statue proclaiming our egalitarianism in the much the same manner as the Statue of Liberty proclaims freedom in America.

The myth persists in both countries. Sadly America has slid well down the freedom and liberty ladder, even though over half the population believe it is the most free nation on earth. Our claim to egalitarianism has take a huge tumble since the mid 1980s. Fewer Kiwis believe in our own myth. Approximately 75% of the population no longer believe that everyone in NZ receives a “fair go”. But that leaves a quarter of the population still believing that we are a nation of equals.

Why the sudden change in equality since the 1980s? In what was a sort of political revolution, the leftist Labour party adopted radical economic reforms much like “Thatchernomics” in the UK and “Reaganomics” in the US, only more extreme. Known here as “Rogernomics” (named after the Minister of Finance, Roger Douglas) it saw the halving of the top tax rate, the slashing of social welfare, the privatisation of much of the public sector (sold mostly to foreign investors) and a reduction in the bargaining power of workers. Tariffs and other trade protections were eliminated resulting in a massive transfer of unskilled jobs overseas.

The initial result was high levels of unemployment and the social conditions that typically accompany it. Today unemployment is more “acceptable” but we now have a class of “working poor” that struggle and frequently fail at keeping their family out of poverty. Today, about one in five children live in households where the income is below the poverty line. I believe this is totally unacceptable.

New Zealand has the unenviable reputation of now being the nation with the fastest growing disparity between rich and poor in the OECD. While we are far from reaching the level of disparity seen in the USA and some developing nations, we approaching the likes of the UK. While it’s true that displays of wealth are still frowned upon, there is a growing acceptance that poverty is a “natural” part of the social fabric. I don’t.

One outcome of the economic reforms has been an increase in the disparity of income between men and women. Prior to the reforms, and into the first few years afterwards, the difference in income between men and women had been declining and was well on the way to being eliminated. There were dreams of Aotearoa New Zealand being the first country to achieve true pay equality. This has been shattered over the last two decades as the gender pay gap has increased markedly to around 12% (based on hourly income, more so if based on actual income).

One of the measures of freedom I take seriously is socio-economic mobility. This is the ability for someone to move out of the socio-economic group of their parents. In America, the “Land of Opportunity” around half or slightly less move to a different group. By contrast, in NZ it was around 75%. This has declined and is now hovering around the 70% mark.

It has barely been a generation since the economic reforms, and as they become a permanent feature of of our society, I suspect that socio-economic mobility will decline further. That, along with the growing disparity between rich and poor is a recipe for social disharmony – perhaps on the levels we see in Britain, the USA, and elsewhere. The mind shudders.

Equally unnerving is that it brings the prospect of us growing our own Trump –  someone gaining enormous wealth through a largely unregulated economy, and at the cost of a low skilled workforce, and then gaining political influence by telling those worse affected by those very practices that he will make things right for them. Yeah, right.