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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Draconian measures

I do wish there were fewer idiots. Without them life would be so much easier. And no more so than during the current pandemic. I can understand why authorities bring in draconian regulations that seem “over the top”. It’s to minimise the harm caused by idiots.

Take the Australian state of Victoria for example. Their lockdown was no where near as severe as the one we faced here in Aotearoa New Zealand, and may have worked. The idiots have not only delayed the state’s recovery, but have moved it into rapid reverse. There, persons tested positive are required to self isolate for 14 days.

Seems reasonable to me, but following evidence that some people were not self-isolating, the authorities checked on every person who should have been self-isolating. They found one in four people weren’t home! Yep, 25% of all those known to be infected were running around loose in the community!

The state government is now contemplating a lockdown similar to that which Aotearoa New Zealand was subject to for five weeks. Although in Victoria it might be for a longer period due to how widespread the virus is in the community.

I’m not sure whether we Kiwis are more sensible or more compliant. Possibly a bit of both. During all the stages of lockdown there were a few thousand breaches recorded in total, which have resulted a few hundred prosecutions. But on the whole, it was social disapproval of rule breakers that seemed to have had the strongest effect. The concept of a “team of 5 million” whether a myth or not, kept this country united and indeed is keeping this country (mostly) united in the fight against the pandemic.

Our attitude towards rule breakers can be clearly seen in our attitude to the borders remaining closed. Back in March when this country was first closed to non-residents, the government introduced mandatory self-isolation rules. Those arriving in the country were required to stay at home in isolation for 14 days. But it soon became apparent that a small minority (less than 5%) were not following the rules.

As the Prime Minister said at the time, the authorities placed a high level of trust in those in isolation. Had everyone followed the simple rules of self isolation, that’s where we’d still be. But no. A few idiots spoil it for everyone. The outcome has been that inbound residents are now required to undergo managed isolation in luxury hotels.

Originally security was minimal. Again the authorities placed a high level of trust in those staying in managed isolation. However it’s become very evident that a small handful of those returning to the country have little regard for the safety of others, and over time, security has tightened to the point now where every facility has a permanent police and military presence and perimeters have become more secure as the weeks pass by.

Over thirty thousand people have passed through managed isolation since March and there have been somewhere around ten incidents where an individual or family group have left isolation without permission. Originally the term “absconded” was usually used when the media reported these breakouts. More recently I hear the term “escaped” used instead. I think this reflects the community attitude to those who flout the isolation rules.

The public attitude towards those who now arrive in this country is unfortunately becoming antagonistic. While there’s always been a small minority of the population antagonistic towards immigration, there is now a widespread attitude that returning Kiwis should have stayed where they were. The wife has this attitude (and she’s an immigrant herself) and as far as she’s concerned every returning Kiwi is being selfish. As far as she is concerned, there’s no set of personal circumstances that can justify travelling to this country. In other words, she wants a blanket ban, even though our Bill of Rights guarantees the right of every citizen to enter and leave the country. Her attitude borders on draconian in my view.

The wife’s attitude is becoming more prevalent, and we can now see examples of graffiti sprayed on security fences around isolation facilities demanding the residents return to where they came from. Apparently some returnees have faced hostilities even after completing managed isolation. I find such an attitude understandable but totally unacceptable.

The negative attitude to returnees has culminated in a call from many, including some political parties, for all returnees to be billed for their stay in isolation. This is something the government has resisted simply because it’s likely to place an unreasonable burden on many families. Let’s face it, many of those returning are not doing so willingly. Many are returning because there is no support structures accessible to them in their country of residence. Others are returning to escape ill managed pandemic environments.

To placate the hostile attitude where returnees are seen as “living in luxury at the taxpayers’ expense”, the government has finally introduced legislation that will allow some returnees to be billed for staying in isolation. For this to occur, the government had to seek the cooperation of the opposition National Party as the Greens were totally opposed to any billing of those in managed isolation.

Eventually a compromise has been reached where those who return from overseas having been away for less than 90 days, and those who return to the country with the intention of staying less than 90 days will be billed for part of the cost of their managed isolation. The legislation also specifies grounds under which exemptions can be granted. So how many will be charged? Perhaps five or ten percent of those arriving in the country. I think a reasonable compromise.

Already we’re seeing comments in overseas media that such moves are another step in the erosion of our freedom and rights, usually accompanied by associating such moves with recent legislation that tightens some aspects of gun ownership. I’ve previously posted about ignorance some foreign media have about our handling of the pandemic, and no doubt the ignorance will continue unabated. I would like to remind such critics that the nation still has the highest level of freedom, ranking at number one or number two on every freedom index, but I suspect I’d be wasting my effort. Those people seem so willing to ignore the facts whenever it’s inconsistent with their prejudice.

So my question is: do most jurisdictions impose restrictions with the aim of gaining greater long term control of the population – in other words tyranny, or are restrictions reluctantly imposed because some idiots give the authorities little choice if they are to prevent widespread harm?


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The right to speak versus the right to survive

Some of my readers are insistent that the right to free speech is absolute – that there must be no limits imposed by governments on what we, the public are allowed to say. But do those readers believe that absolutely? They might say any limit to free speech, even if it’s hate speech, is a start of a slippery slope to oppression and the curtailing of most or all freedoms. Yet if I point out that absolute freedom of speech would give me the freedom to yell “Fire!” in the confined space of a theatre or nightclub, or to encourage others to exclude or eliminate a minority from society, some will acknowledge that absolute freedom of speech would indeed be harmful.

Speech itself can be oppressive, perhaps not to alpha males who happen to be of the same ethnic/cultural background as the dominant ethnicity/culture in their society, but to almost everyone else, language is used, either consciously or unconsciously, to oppress minorities and those without power. If male, less so than female. If abled, less so than disabled. If a dominant ethnicity, less so than a less influential ethnicity. The same applies to skin colour, religion, neurodiversity – in fact just about any aspect of being human can, through the use of language, be used to oppress others who express that aspect differently.

Evelyn Hall paraphrases Voltaire’s ideology as “I disapprove of what you say, but I will defend to the death your right to say it.” But what happens when what is said is rooted in the oppression and denial of the humanity and right to exist of another human being? At what point does the right to survive trump the right to speak?

In Canary in a Coal Mine: How Tech Provides Platforms for Hate, an article on A list Apart, Tatiana Mac discusses the responsibility of technology providers to perhaps practice “We can disagree and still love each other unless your disagreement is rooted in my oppression and denial of my humanity and right to exist”. She is critical of the hypocrisy of some social media platforms for banning support for ISIS ideologies while permitting other ideologies, such as a belief in a necessity to fight back against a (non-existent) white genocide conspiracy.

While Tatiana’s article is specifically related to how the tech industry should respond to the conflict of the right to speak versus the right to survive, should that be where final authority should rest? What role should the state take in this very issue? In fact should legislation and the courts be the final arbiter on this dilemma, or is it better left in the hands of competing private enterprise tech platforms?


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125 years

This month, Aotearoa New Zealand is celebrating 125 years of women’s suffrage. After the celebrations die down, we should consider and evaluate what progress has really been made in the last century and a quarter.

20180911_230411

The New Zealand $10 note, depicting Kate Shepard (1847 – 1934), a leading light in the Women’s suffrage movement in Aotearoa New Zealand.


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Trans woman denied Gym membership

A new Births, Deaths and Marriages Registration bill to replace the 1995 act is currently making its way through Parliament. One of the new provisions will be to allow the self-declaration of gender identity. But I wonder, if the bill was already law, it would have helped Penelopy Mansel, a transgender woman, gain membership to a women’s gym.

As the law currently stands, a person can have their gender recorded on their birth certificate changed provided they can satisfy the Family Court that they identify as their nominated gender and have, or are undergoing appropriate medical treatment to make their appearance more in keeping with that gender. Surgery is not required. In fact in Aotearoa New Zealand, gender reassignment surgery is not an option. Funding for reassignment surgery is so minuscule, that one is likely to be on the waiting list for more than forty years before one can go under the knife. Few are likely to be able to afford to have it done privately in NZ, or overseas for that matter.

According to Penelopy’s birth certificate she is now female, but she has not had gender reassignment surgery. And this was enough for the gym to deny her membership. Our human rights legislation does not specifically ban discrimination against transgendered people or others who are not gender conforming. According the the Crown Law Office, and its advice to government, it’s unnecessary as the comprehensive coverage against sex discrimination effectively covers transgender rights as well. However, this has yet to be tested in court.

Court cases over discrimination are relatively rare in NZ as complaints regarding discrimination are referred to the Human Rights Commission. The Commission prefers education over prosecution, and so the testing of whether or not discrimination against transgendered or other gender nonconforming people is illegal may never reach the courts. The new Births, Deaths and Marriages Registration bill does nothing to clarify the matter.

In the video clip linked to below, Renee Gerlich argues that “The legislation undermines a lot of the work that suffragettes did, they fought for the women’s vote, they wanted to give women a way of making political demands that pertain to our sex when, we can’t do that once the definition of what a woman is has fundamentally changed”. It does appear that she is confusing sex and gender. The legislation will allow for self-identification of gender (a socially defined atribute) not sex (biologically defined).

The argument that the new legislation will distort statistics is, I believe, a red herring. As only 1.2% of the NZ population self identify as trans, and about the same number identify as gender nonconforming, their numbers are relatively small. Where it is important that statistics refer to sex and not gender, such as for funding of breast and cervical screening, then I’m sure appropriate adjustments can be made. In fact, it seems that our five yearly census will cover this well, as in future it will ask about both sex and gender.

Some speakers in the following clip refer to WINZ. This term is familiar to all Kiwis, but others may not know that it is an acronym for Work and Income New Zealand – the government department that oversees social welfare benefits and pensions, and supports the unemployed and those on a low income into work and to find housing.

Wellington transgender woman denied membership at female gym