Making Law A Bigger Ass
By Sandra Paterson
Sandra Paterson of Mt Maunganui, is a freelance journalist.
At first glance, Nigel Pearson's story would make any compassionate person call for civil unions.
It goes like this: An Aucklander in his 40s, Nigel was in a committed homosexual relationship with a man we shall call
Stephen. Tragically, Stephen drowned earlier this year while collecting shellfish.
When Nigel turned up at Auckland Hospital, he was not allowed to see his dead partner or to move the body to a more
suitable place because he was "not family".
According to David Benson-Pope and co, this story is the perfect example of why the Civil Union Bill and the
Relationships Bill should become law, so that this sort of injustice will not happen again.
But a closer look says otherwise. I have talked at length to mortuary police, legal specialists and Nigel Pearson, and
the conclusion I come to is this: what happened was sad and unfortunate but it had nothing to do with the law.
Sorry, Mr Benson-Pope, but even if Nigel and Stephen had been in a civil union, the same thing could still have
happened. Furthermore, there is nothing in the proposed Relationships Bill to stop it happening again.
So it is pure propaganda to use this kind of story to drum up support for civil union law.
Contrary to widespread belief, same-sex couples already have exactly the same next-of-kin and hospital or mortuary
visitation rights as heterosexuals, according to human rights legislation and in hospital codes of practice. Telling the
country that we need to pass this new legislation to give gays those rights is downright dishonest.
So, too, is the way in which it is being presented. Why separate the two bills when they are clearly two sides of the
same coin and should be considered together?
And why the rush? Why fewer than six months between the introduction of the Civil Union Bill and the final vote on it?
Members of Parliament have not had enough time to understand the legislation, let alone its widespread implications.
I know of one MP who realised only this week that the Relationships Bill does not even cover next-of-kin and hospital
rights. He was flabbergasted. And not surprisingly, because a lot of what we are being told about these bills is simply
not true.
There is no question that some statutes in our law are discriminatory. But not many. New Zealand has amended a swag of
legislation to include same-sex and de facto couples and is way ahead of many other countries in this area.
Examples of discrimination include the fact that if your same-sex partner dies you cannot use his or her fishing
licence. And if a gay MP dies in office, the same-sex partner does not receive the same payment as a married MP's
spouse.
Out of the 101 acts to be amended by the Relationships Bill, discrimination genuinely exists in only 25. And they should
be reviewed. New Zealanders have a strong sense of fairness and no one likes discrimination.
But surely each case should be considered carefully and individually. The omnibus,
let's-make-all-these-changes-at-the-same-time approach will lead to trouble.
Several of the proposed changes affect Maori land legislation, for example. Have Maori been fully consulted? Do iwi
organisations even know about the changes?
The responsible thing for politicians to do is to slow down the passage of this legislation because so much of it is
either unnecessary or unwise.
But back to the Pearson case. Why was Nigel not allowed to see his partner? Clearly, the normal process was not
followed. At Auckland Hospital there is even a purpose-built whanau room in the mortuary, where family and friends can
sit with their deceased loved one.
Police exercise "commonsense discretion" as to who can visit, but, according to existing law, they cannot turn someone
away because of sexual orientation or marital status.
As I see it, there are two main possibilities why he was not allowed in. First, there could have been some sort of
breakdown in communication. There were many complicating factors, including that the drowning happened out of town and
that Stephen's family, who travelled from China to see their deceased son, did not know he was gay.
The other possibility is that someone, somewhere, decided - wrongly - to deny Nigel access because he was gay. So Nigel
Pearson's story might mean a hospital or police communication procedure needs tweaking; or it might be a genuine example
of discrimination against a homosexual, in which case it is a human rights issue.
We cannot know for sure without some sort of official inquiry (and goodness knows we don't need any more of those right
now). But it is abundantly clear what this story is not: it is not an example of how the law discriminates against
same-sex couples - and it should not be used to railroad shoddy and irresponsible legislation.