Changing Times, Changing Minds, Changing Laws – Sexual Orientation and New Zealand Law, 1960 to 2005

Abstract

This paper explores the interactions between laws and attitudinal shifts in New Zealand in the arena of equality for gay men and lesbians. Decriminalisation of consensual sexual activity between males occurred in 1986, but the significant event was the enactment of the Human Rights Act 1993 which, for the first time, prohibited sexual orientation discrimination. Moreover, that Act had a form of quasi-constitutional status in that it required all other legislation to be reviewed (by the executive branch rather than the judiciary) for consistency with its provisions. The process thereby begun led ultimately to the enactment of a civil union regime and a general, albeit not yet complete, recognition of same-sex relationships. This paper looks also at the issue of speech restrictions in pursuit of equality, and at the impact of the prohibition of sexual orientation discrimination on religious institutions.

Notes

1. Balfour's ability to request copies of information on a personal file came about as a result of passage of the Official Information Act 1981. This important legislation heralded a new era governed by the principle that information held by governmental agencies was to be made available to those who requested it, unless a statutory exception applied.

2. Qualified privilege operates as a defence to an action in defamation on occasions where the allegedly defamatory statement was made by a person who had an interest or a duty – whether legal, social or moral – to make that statement to the person to whom it is made, and the person to whom it was made had a corresponding interest or duty to receive it (Adam v. Ward [1917] AC 309, 344 per Lord Atkinson). The defence differs from absolute privilege insofar as it can be defeated on proof of malice.

3. Balfour v. Attorney-General (22 May 1989), unreported, High Court of New Zealand, Wellington, Grieg J, CP 266–86.

4. Balfour v. Attorney-General [1991] 1 NZLR 519 (CA). The Attorney-General instead of the Department of Education was the named defendant because the latter had no formal legal capacity to sue or be sued.

5. Sutherland Shire Council v. Heyman (1985) 60 ALR 1.

6. Anns v. Merton London Borough Council [1978] AC 728.

7. Balfour v. Attorney-General (CA) (note 4) p.522.

8. Ibid. p.529.

9. Ibid. p.524.

10. While the Homosexual Law Reform Act 1986 became law on 11 July 1986, it was expressed to take effect 28 days later. So the true date of the reform was 8 August 1986.

11. The provisions that criminalised homosexual acts between consenting males were contained in sections 140 to 142 of the Crimes Act 1961.

12. Special Committee on Moral Delinquency in Children and Adolescents (Mazengarb Report) (Wellington: Government Printer 1954).

13. R. Yska, All Shook Up: The Flash Bodgie and the Rise of the New Zealand Teenager in the Fifties (Auckland: Penguin 1993), p.82, cited in L. Guy, Worlds in Collision: The Gay Debate in New Zealand, 1960–1986 (Wellington: Victoria University Press 2002), p.31. I record here my general indebtedness to the latter work throughout the brief account of the history of decriminalisation in New Zealand given in this section.

14. A. Kinsey, Sexual Behavior in the Human Male (Philadelphia: W. B. Saunders & Co 1948).

15. Sir John Wolfenden, Report of the Committee on Homosexual Offences and Prostitution (London: Her Majesty's Stationery Office 1957).

16. The Wolfenden Report sparked a famous jurisprudential debate between Patrick Devlin and Herbert Hart, which became a staple in New Zealand legal education as elsewhere in the world. Generations of law students were influenced. See P. Devlin, The Enforcement of Morals (London: Oxford University Press 1959), and H. Hart, Law Liberty and Morality (Stanford, CA: Stanford University Press 1963).

17. A prominent lawyer and committee member of NZHRLS, D. L. Mathieson, wrote in the New Zealand Listener magazine in 1969, urging decriminalisation (‘Homosexuals and the Law’, Listener, Vol.61, 1 August 1969, p.1555), and again in the New Zealand Law Journal in 1972 that homosexual acts harmed no-one, while criminalisation of them wrought substantial harm (‘Homosexual Acts – Why the Law Must be Changed’, New Zealand Law Journal (1972), pp.1–2). This prompted a reply (J. S. O'Neill, ‘Homosexual Acts – Why the Law Must Not be Changed’, New Zealand Law Journal (1972), pp.241–2) and response (D. L. Mathieson, ‘Homosexual Law Reform: A Reply to Mr O'Neill’, New Zealand Law Journal (1972), pp.322–3).

18. Guy (note 13) p.82.

19. Ibid.

20. Ibid. pp.83–4.

21. See Crimes (Amendment) Act 1984, which inserted section 78K into the Crimes Act 1900 (NSW).

22. The New Zealand Human Rights Commission, established by statute in 1977 to promote human rights and receive complaints of discrimination on grounds of sex, marital status, race, colour, national origin, and religious and ethical belief, contributed to the debate by the release of a discussion paper prepared by University of Auckland legal academic William C. Hodge, ‘Homosexual Law Reform: Questions and Answers concerning the Legality of Homosexual Male conduct in New Zealand’ (Auckland: Human Rights Commission 1985) and a public statement: ‘Public Statement on the Homosexual Law Reform Bill’ (Auckland: Human Rights Commission 1985).

23. See text on pp.101–2 of this paper (under ‘Sexual Orientation and Religion’).

24. A representative sample is C. James Bacon (ed.), The Social Effects of Homosexuality in New Zealand (Christchurch: Coalition of Concerned Citizens 1985).

25. The Act repealed section 140 of the Crimes Act 1961 replacing it with new sections 140 and 140A. Sections 141 and 142 were repealed and replaced and s.146 was repealed. Section 147(2) was amended, with the term ‘woman’ replaced by ‘person’.

26. Re Drummond Wren [1945] OR 778 (Ont SC).

27. Shelley v. Kraemer 334 US 1 (1948).

28. International Convention for the Elimination of All Forms of Racial Discrimination, GA res 2106 (XX), Annex 20 UN GAOR Supp (No 14) at 47, UN Doc A/6014 (1966), 660 UNTS 195, entry into force 4 January 1969 in accordance with article 19, ratified in New Zealand 22 December 1972.

29. Sections 3 to 8 of the Race Relations Act 1971, now repealed and replaced by the Human Rights Act 1993.

30. Race Relations Act 1971, section 25, repealed and replaced by Human Rights Act 1993, section 131.

31. Originally section 9A of the Race Relations Act 1971, now section 61 of the Human Rights Act 1993. This, as noted in the text, is a ‘civil’ matter, for which the publisher of impugned statements may be held liable by proceedings taken before the Human Rights Review Tribunal, which has the power to impose an award of damages: see section 92I of the Human Rights Act 1993. It is not a criminal offence.

32. International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966) 999 UNTS 171, entry into force 23 March 1976, ratified in New Zealand 28 December 1978.

33. Human Rights Commission Act 1977, sections 15, 22–4, repealed and replaced by the Human Rights Act 1993.

34. The grounds of discrimination are found in section 21(1) paragraphs (a) to (m); the grounds added in 1993 for the first time are in paragraphs (i) to (m).

35. New Zealand Human Rights Commission, Discrimination on the Ground of Sexual Orientation: A Discussion Paper (Auckland: Human Rights Commission 1992).

36. Human Rights Act 1993, s.28(1)(h)(vii).

37. See R. Paterson, ‘“Softly, Softly”: New Zealand Law Responds to AIDS’, in P. Davis (ed.), Intimate Details and Vital Statistics: AIDS, Sexuality and the Social Order in New Zealand (Auckland: Auckland University Press 1994).

38. The ‘complaints jurisdiction’ denotes the Commission's function of receiving and dealing with individual complaints of discrimination in employment, accommodation goods and services, and so on.

39. Human Rights Act 1993, section 5(1), paras (a) to (h).

40. Human Rights Act 1993, s.5(1) paras.(i), (j), and (k).

41. Winnipeg School Division No. 1 v. Craton [1985] 2 SCR 150.

42. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982; Schedule B to Canada Act 1982 (UK).

43. For an account and discussion of the Consistency 2000 project, see P. Rishworth, ‘Human Rights’, New Zealand Law Review (2001), pp.217–38.

44. Human Rights Commission, Report to the Minister of Justice pursuant to section 5(1)(k) of the Human Rights Act 1993 (‘Consistency 2000’), 31 December 1998, p.70.

45. Constitution of the United States of America, Amendments I to X.

46. New Zealand Bill of Rights Act 1990, s.5.

47. For a summary of the history of the enactment of the New Zealand Bill of Rights Act 1990, see P. Rishworth, ‘The Birth and Rebirth of the Bill of Rights’, in G. Huscroft and P. Rishworth, Rights and Freedom (Wellington: Brookers 1995), pp.1–35.

48. See, for a general discussion of section 7 of the Bill of Rights and its impact, P. Rishworth, G. Huscroft, S. Optican and R. Mahoney, The New Zealand Bill of Rights (Oxford: Oxford University Press 2003) ch. 6.

49. Quilter v. Attorney-General [1998] 1 NZLR 523 (NZCA).

50. The Quilter case and its implications for the idea of declaring a statute's incompatibility with the Bill of Rights are explored in P. Rishworth, ‘Reflections on the Bill of Rights after Quilter v Attorney-General’, New Zealand Law Review, Vol.1 (1998), pp.683–99.

51. Moonen v. Film and Literature Board of Review [2000] 2 NZLR 9.

52. The effect of this reform is that the Human Rights Act now relates almost entirely to private sector discrimination. For public sector discrimination, only that arising out of employment practices remains covered by the substantive provisions of the Human Rights Act. However, procedural provisions apply (as to mediation, with reference of unmediated complaints to the Office of Human Rights Proceedings for possible litigation before the Human Rights Review Tribunal).

53. The key provisions in the Human Rights Act 1993, introduced by the 2001 amendment, are sections 92J and 92K, empowering declarations of inconsistency and setting out the consequences of such a declaration.

54. In 2001 there had been a series of ‘section 7 reports’ by the Attorney-General advising that in her view proposed legislation dealing with social security benefits was inconsistent with the anti-discrimination right in the New Zealand Bill of Rights because it treated same-sex couples, in certain cases, less favourably than opposite-sex couples. In some instances there was financial advantage for lesbian and gay couples, since they were treated as two individuals rather than as a married or de facto couple. But the stigmatising effect of exclusion was pointed to by the Attorney-General. For discussion see Rishworth et al. (note 48) p.213. See also Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the War Pensions Amendment Bill (No 2) 2001 (Wellington: House of Representatives 2001), E.63. The relevant legislation in each case was enacted by Parliament despite the noted inconsistency. In each case the Attorney-General reported also that the whole subject of same sex couples was under review and that a comprehensive reform was in the offing, albeit that this did not excuse the inconsistency in the bill on which she was reporting.

55. Cabinet Policy Committee Minutes, September 2001, CABMin(01)27/14.

56. Cabinet Policy Committee Minutes, 10 November 2003, CABMin(03)29/10.

57. See, e.g., M. & H. v. Attorney-General of Ontario [1999] 2 SCR 3, which held that the Ontario Family Law Act was constitutionally under-inclusive in that it did not permit access by same-sex couples to the legislative regime for dealing with the breakdown of relationships. In New Zealand that situation was resolved by a 2001 amendment to the Matrimonial Property Act 1976, which renamed the legislation as the Property (Relationships) Act 1976 and extended it to cover same-sex relationships as well as de facto relationships (irrespective of the genders of the partners).

58. The case could have been brought as far back as 1977, when the Human Rights Commission Act 1977 first prohibited sex discrimination. After all, if two persons of the same sex cannot marry each other it is the sex of one of them, and not their sexual orientation, that is the operative factor. That said, it was beyond argument that courts in New Zealand would never have entertained such a claim, and the sex discrimination complaint would have been easily, if superficially, answered: both sexes are treated the same because same-sex marriage is precluded for both men and women.

59. In Australia and Canada, the different-sex ‘requirement’, as in New Zealand, was imposed not by legislation but by common law.

60. (1866) 1 L R P & D 130.

61. Quilter v. Attorney-General [1996] NZFLR 481.

62. Quilter v. Attorney-General [1998] 1 NZLR 523.

63. Ibid. p.527.

64. See the general discussion on the approach of the Supreme Court of Canada to equality cases by Justice Binnie, ‘Equality Rights in Canada’, in G. Huscroft and P. Rishworth, Litigating Rights: Perspectives from International and Domestic Law (Oxford: Hart Publishing 2002), p.101.

65. This refers to the principle that, to comply with the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution, distinctions drawn in legislation need only have a rational basis unless they involve distinctions of race or sex, in which case the distinctions are subjected to heightened or strict scrutiny. See generally J. Nowak and R. Rotunda, Constitutional Law (St Paul: West Publishing 1995), 14.3.

66. Halpern v. Attorney-General (Ontario) (2003) 65 OR (3d) 161 (Ont CA).

67. Goodridge v. Department of Public Health 440 Mass 309 (2003).

68. This can be debated. At one point in his judgment Justice Thomas appeared to concede that the discrimination he found would be cured by the enactment of a civil union regime. If that were so, then the Marriage Act 1955 was not itself inconsistent with the Bill of Rights for excluding same-sex couples. The passage is at page 548.

69. Comm 902/1999, 30 July 2002.

70. Section 4(1).

71. Sections 14 and 15.

72. Section 44, providing for amendments to the Family Proceedings Act 1980, so as to permit dissolutions of civil unions as well as marriages.

73. Section 18.

74. Adoption Act 1955, s.3.

75. See the Supreme Court Act 2003, s.5 (establishing the Supreme Court of New Zealand) and s.42 (ending appeals to the Judicial Committee of the Privy Council).

76. Further, the three judges elevated to the Supreme Court included two (Justices Gault and Keith) who held in Quilter that the orthodox definition of marriage was not discriminatory. The third judge to be elevated, Justice Tipping, did not examine the question and his views were thus unknown. Justice Thomas had retired by 2004.

77. Section 3.

78. Section 3(1).

79. Sections 3(2) to (4) and Section 4.

80. 517 US 620 (1996).

81. Re. Gay Rights/Special Rights: Inside the Homosexual Agenda (1997) 4 HRNZ 422.

82. See the seminal article by Mari Matsuda, ‘Public Response to Racist Speech: Considering the Victim's Story’, Michigan Law Review, Vol.87 (1989), pp.2320–81 was cited. Critical race theory is a school of legal and social philosophy that points to, and proposes the displacement of, dominant narratives in society by alternative visions that reflect the reality of individual or minority group perspectives. So, for example, the value of ‘free speech’ may be critiqued for its implicit protection of established social hierarchies, and its capacity for subordinating racial (and other) minorities who may not in practice have equal access to the benefits of free speech.

83. Living Word Distributors Ltd v. Human Rights Action Group [2000] 3 NZLR 570. The author discloses that he was counsel for Living Word.

84. ‘Court Okays Anti-Gay Videos’, The New Zealand Herald, 1 September 2000, p.1.

85. Government Administration Committee Report on Its Inquiry into the Operation of the Films, Videos and Publications Classification Act 1993 and Related Issues, March 2003, p.23.

86. Government Response to Government Administration Committee Report on Its Inquiry into the Operation of the Films, Videos and Publications Classification Act 1993 and Related Issues, para.[8].

87. See new section 3 (1A) and (1B) of the Films Videos and Publications Act introduced by amendment in 2005.

88. Media Release, Government Administration Committee, 5 August 2004.

89. This viewpoint was vigorously pressed by Professor Nadine Strossen of the American Civil Liberties Union when she addressed a New Zealand audience. Her remarks may be found in her ‘Liberty and Equality: Complementary, Not Competing, Constitutional Commitments’ in Litigating Rights (note 64) pp.149–85.

90. Free-to-air Television Code of Broadcasting Practice, reg. 6 g.

91. Broadcasting Standards Authority, Decision No 2004-001, 26 February 2004.

92. Broadcasting Standards Authority, Decision No 2004-128, 21 December 2004.

93. An unexplored question in respect of New Zealand is whether a strident disposition against the legitimacy of homosexual acts would be a disqualifying factor, for an individual or a teacher training institution. No question such as that involved in British Columbia College of Teachers v. Trinity Western University [2001] 1 SCR 772 has arisen in New Zealand (whether the College of Teachers could withhold certification of teacher training programme by the University on the grounds that students at that University were asked to promise to abstain from same-sex sexual activity).

94. Human Rights Act 1993, s.38.

95. Ibid. s.39.

96. Human Rights Act 1993, Section 39.

97. While a number of complaints to the Human Rights Commission have been made in the context of church employment and ordination, no formal ruling has yet been called for. A related debate is whether church ministers are ‘employed’ for the purposes of the part of the Act that deals with employment discrimination. Although there is an extended definition of ‘employment’ in section 2 of the Human Rights Act, the better view is that it does not extend to clergy where their position is held by a court to constitute a ‘calling’ or an appointment to an office. A Methodist minister's appointment was so classified by the Court of Appeal in Mabon v. Methodist Church of New Zealand [1998] 3 NZLR 513 (following United Kingdom cases including Davies v. Presbyterian Church of Wales [1986] 1 All ER 705).

98. Decision of the Judicial Commission, Presbyterian Church of Aotearoa New Zealand, October 2003.

99. Minutes of the 2004 General Assembly of the Presbyterian Church of Aotearoa New Zealand, Session 10, decision 69, Thursday 23 September 2004. That decision was of immediate interim effect but under the Barrier Act 1697 of the Church of Scotland, cannot be enacted as legislation within the Church without the approval of a majority of Presbyteries. In 2005 a majority of Presbyteries approved the rule ‘that those involved in a sexual relationship outside of faithful marriage cannot be trained, licensed, ordained or inducted for leadership within the Presbyterian Church of Aotearoa New Zealand’. This rule was affirmed at the General Assembly on 29 September 2006 by a vote of 230 votes to 124.

100. See, for example, F. Klug, ‘A Bill of Rights as Secular Ethics’, in R. Gordon and R. Wilmot-Smith (eds), Human Rights in the United Kingdom (Oxford: Oxford University Press 1996), pp.37–57.

101. The expression ‘horizontal application of human rights’ is used to denote the phenomenon whereby, in addition to regulating state-citizen interaction (‘vertical’), human rights imperatives influence relations between citizens. See M. Hunt, ‘Human Rights Review and the Public-Private Distinction’, in Huscroft and Rishworth (note 64) pp.73–88.

102. Section 57 of the Human Rights Act 1993 makes it unlawful to treat students differently in a school by reason of a prohibited ground of discrimination, and it has been accepted that, in principle, the failure of a school to adequately deal with student bullying will be a breach of this section. See D. v. J., G. and H., Human Rights Commission Complaints Division C250/97, reported in Human Rights Law and Practice, Vol.3 (1998), p.298.

103. It bears repeating here that Mr Balfour's case was that he was not a gay man and that everything said about him to that effect was untrue. One obvious change since the time of the events in Balfour's case is that now there would be no need to disavow homosexuality in order to have a case before the courts or before the Human Rights Commission. This is not meant to suggest that Mr Balfour's disavowal was untrue, only that the Human Rights Act now makes it irrelevant whether or not the ascription of a prohibited ground of discrimination is untrue. Section 21(2) provides that ‘[e]ach of the grounds specified in subsection (1) of this section is a prohibited ground of discrimination, for the purposes of this Act, if (a) it pertains to a person or to a relative or associate of a person; and (b) it either (i) currently exists or has in the past existed; or is suspected or assumed or believed to exist or to have existed by the person alleged to have discriminated.’