HIV Australia | Vol. 8 No. 4 | January 2011

This article only available online

Michael Kirby's remarks at the launch of Enabling Legal Environments for Effective HIV Responses: A Leadership challenge for the Commonwealth of Nations at the Police and Justice Museum, Sydney on 30 November 2010.

Returning to this room, which was once a courtroom, reminds me of the unpredictabilities of life. It was in this room, as a young lawyer, that I first rose at the bar table(which was just here) to address the magistrate - he was sitting there. Mostly the cases concerned fare evasion by students of the University of Sydney.

If I have been told then that, in 2010, I would be standing here in this very room talking about homosexuality, sex work, drug use, and a new disease I would not have believed it. So, we are few here today - I counted you and you are twenty. Most of you are not members of the media. But the issue which John Godwin has addressed in this book, which we are launching here in Australia, is an issue that affects millions of people. It is therefore to our credit that we are here. It's a misfortune that, in the current age, so few members of the media have turned up. It shows the disproportion of issues in the media in this country and in the world.

I am here, as has been said, because I presently have two offices, which are relevant to the issues that are being dealt with in John Godwin's work. The first is as the member of the Eminent Persons Group of the Commonwealth of Nations. This body is looking at the future of Commonwealth and how we can ensure its survival. The second is as a member of the UNDP Global Commission on the HIV and the Law. I do not speak for either of those bodies today. I just speak for myself. However, in both of the bodies the issues that are addressed in John Godwin's book are issues on the table. Certainly, they are very important. They are matters of which I speak and will continue to speak because they are important to the Commonwealth of Nations and to the world. And to people everywhere.

HIV - a special Commonwealth problem

As John Godwin has pointed out in his oral remarks, and in his book, the issue of HIV and AIDS is a very specific Commonwealth problem. HIV and AIDS are disproportionately prevalent in Commonwealth countries when compared to the rest of the world. There is a particular reason for that. It's a reason that lies deep in the laws which Commonwealth countries have. In 1803 the Emperor Napoleon instructed codifiers to recodify the laws of France. This, he said, would be his lasting legacy to the world when all the glories of his battles were forgotten. So it is proved. Napoleon's codes addressed a number of issues, including the sodomy offences which had existed in royal France. They cast them out of the French legal system. His armies brought the codes to many countries of Europe: the Netherlands, Germany, Spain, Portugal. All those countries, which had empires around the world, got rid of those laws. Therefore, in most of the countries of the empires of Europe they did not have criminal laws against same sex conduct. Only in Britain the old sodomy laws remained. They were exported to their Empire.

The consequence of that is, as John Godwin has pointed out, that in the 41 of the 53 of the countries of the Commonwealth of Nations the criminal laws continue to criminalise same sex activity. They do so even where in private, even where between consenting adults, and even where the consenting adults are fully cognisant of their relationship and wish to pursue it. So, this is the state of the law in our world on same sex relationships. But it is also the state of the law in many other areas of sexuality, such as consenting adult sex work and activities of sex workers. Therefore, the central issue which is addressed in John Godwin's book, is an issue of how we can secure the type of changes that have been achieved in Australia and some other countries in order to remove the barriers that presently exist between getting essential information about HIV into the minds of people, and thereby getting them to affect their behaviour and protect themselves, and so to protect society. How lucky we were in Australia when HIV came along. The politicians at the time took very strong steps. Neil Blewett for the Labor party, Peter Baume for the Coalition. They put the AIDS issue beyond party politics. That is where it has basically remained ever since. I pay tribute to the successive governments and the politicians in Australia for basically sticking to that principle. It has affected profoundly the pattern of HIV in Australia and similarly in New Zealand. Similarly in some other countries of the Commonwealth. One would like to say that similar achievements were made in other Commonwealth countries. However, unfortunately, recent events demonstrate that achievements of the same kind that we have achieved in Australia have not yet been achieved in most Commonwealth countries. So this is the problem and the challenge.

There are two recent events that are relevant to our repose to this challenge. The first was a meeting of the officials of the Law Ministers of the Commonwealth countries, held in London at the end of October 2010. That meeting was designed to prepare the way for the meeting of the Commonwealth Law Ministers which is to take place in Sydney early in July 2011. It is, in turn preparatory to the meeting to the Commonwealth Heads of Government, which will take place in Australia in Perth in October 2011. Australia is the host to the CHOGM meeting. We therefore have a particular interest in, and responsibilities for, the preparation for that meeting and for securing an agreement in the CHOGM meeting that will affect Commonwealth citizens and, specifically, the course of the epidemic which is so profoundly serious in Commonwealth countries.

 At the meeting in London, as I have been informed, there was on the table a proposal, supported by Australia, that issues of HIV law reform should be on the agenda for the Law Ministers of the Commonwealth when they meet in Sydney in July 2011. However, my understanding is that the officials could not agree to that item being placed on the agenda. It wasn't actually forbidden. But it was postponed to allow home consultations to take place. One hopes that a copy of John Godwin's book, which is being launched here in Sydney today and in London tomorrow, will be sent to every health minister to Commonwealth of Nations. Then, perhaps, the home consultations would be fruitful. Then, perhaps, the issue of HIV and AIDS would be fairly, squarely and prominently placed on the agenda of the Commonwealth Law Ministers in July 2011, to be fed up to the Heads of Government at the Perth meeting in October 2011. I say this because, on this issue, action is required by the countries of the Commonwealth of Nations as John Godwin has clearly demonstrated in his book.

A General Assembly vote

The second development occurred on the 17th of November 2010. It wasn't specifically a development of the Commonwealth of Nations. It occurred in the Third Committee of the General Assembly of the United Nations. This is the Committee in the United Nations that deals with human rights issues of the United Nations. The Third Committee is a Committee of the whole. Therefore, all the countries of the Commonwealth were there. The Committee had before it a motion for the renewal of the resolution of the General Assembly condemning summary and extra-judicial executions of people throughout the world. The resolution was a successor to a resolution which has been regularly adopted by the United Nations over the past ten years. In it, the United Nations General Assembly has regularly condemned, over that time, summary and extra-judicial executions on the grounds of various causes such as gender, race, religion and so on. In the list of the grounds of summary and extra-judicial execution in our world was the grounds of sexual orientation and gender identity. However, a motion was put to the Third Committee of the General Assembly this year, for the first time in ten years, to delete those two grounds of condemnation.

The motion was disputed by many countries of the world. It therefore went to a vote. The vote was narrowly carried by 79 votes to 70. There were 17 abstentions and 26 counties were absent. When the votes were counted, 25 of the 54 countries of the Commonwealth of Nations voted to remove 'sexual orientation and gender identity' from the list of grounds of summary and extra-judicial execution. They thereby presumably indicated that they were not concerned about summary and extra-judicial violence and executions on the grounds of sexual orientation and gender identity.

The Commonwealth countries which voted for this removal were the Bahamas, Bangladesh, Belize, Botswana, Brunei, Cameroon, Ghana, Guyana, Jamaica, Kenya, Lesotho, Malawi, Malaysia, Maldives, Mozambique, Namibia, Nigeria, Rwanda, St. Kits, St. Lucia, St. Vincent, Sierra Leone, South Africa, and Uganda, Tanzania and Zambia. Zimbabwe, a former member of the Commonwealth, also voted for removal. In so doing these Commonwealth countries voted in the company of countries such as North Korea, Iran, and other nations which joined common issue with them to remove 'sexual orientation and gender identity' as the ground of impermissible extra-judicial violence and execution.

South Africa's vote was particularly surprising given the constitutional provisions in that country that protect people against discrimination on the grounds of 'sexual orientation'. Those provisions were inserted in the freedom constitution of South Africa, following the removal of the apartheid regime. This happened because, prominent in the struggle against apartheid, were members of the gay community in South Africa. A number of countries of the Commonwealth abstained including Barbados, Mauritius, Papua New Guinea, Singapore, Sri Lanka, Trinidad and Tobago, Tuvalu, Vanuatu. Fiji also abstained. Commonwealth countries that were absent included Kiribati, Nauru, Seychelles, Solomon Islands and Tonga.

The only Commonwealth countries which voted against of the removal of these grounds were Australia, Canada, Cyprus, India, Malta, New Zealand, Samoa and the United Kingdom. Eight countries only of the Commonwealth voted against. 25 voted for, 8 abstained, and a number were missing. It's just as well that we in Australia should be aware of these contemporary developments in the Commonwealth of Nations and in the United Nations. Botswana, a Commonwealth country, will be a co-chair of the United Nations General Assembly Special Session Review in 2011 on the global response to HIV and AIDS. Its vote in favour of the deletion of condemnation of extra-judicial, summary or arbitrary executions on the ground of sexual orientation and gender identity is therefore especially concerning. ¹

Progress has been made in national attitudes on these subjects when compared to the past. But the progress remains very slow. It appears to need a well-crafted stimulus at this time. Tantrums and the banging of tables will not secure changes of attitudes. It will fall to Australia, as the host nation of the 2011 CHOGM meeting in Perth, to give real leadership. HIV and AIDS is a specific Commonwealth problem. 2.7 million people become infected every year and most of them are in Commonwealth countries. Fortunately, this is a subject on which Australia has always acted with a clear and consistent voice. Developed countries of the world cannot be expected to provide ever expanding funds to countries that will not help themselves by taking the essential steps to reduce the stigma and increase knowledge and awareness, so as to protect their people. This is not a threat. It is simply a statement of fact. It is a statement of fact which shows some evidence of being fulfilled in the recent replenishment conference of the Global Fund. At that conference, there was a much lower amount provided to renewal of the Global Fund then had been sought and then was needed.

Dangers for HIV of overreaching criminal law

So, this is the context in which the book by John Godwin is being considered by us today. It is the same content as will be considered later by the audience in London. It does not only deal with MSM (men who have sex with men) and their issues, as John Godwin has pointed out. It deals with all of the legal considerations of the epidemic which are relevant, including the fact that instead of removing criminal law from being a factor in the equation there is an increase in the use of the criminal law ineffectively, inefficiently and counterproductively in criminalising HIV transmission. If you overuse the criminal law you put people out of contact with protective information. You also discourage the taking of the HIV test, because the first principle of protecting yourself then is not to know your status, and that is one of the consequences that we can expect if the criminalisation of HIV transmission becomes common.

Discovering the right dialogue

So, I congratulate John Godwin. I follow him around everywhere because he produces masterpieces which are used to promote dialogue. Still, the events of the past two weeks demonstrate that we are not getting through. We are not getting through. And, somehow, we have to find the language and the means and the dialogue and the persuasion and the empathy for fellow human beings in the governments of the Commonwealth and the governments of the world to address the issues that are explained so clearly in this book.

We in Australia were fortunate. We now have a special responsibility, as the host for CHOGM 2011, to bring our good fortune and our experience and its outcomes to the notice of our Commonwealth partners and friends. I hope that John Godwin's book will be widely disseminated, widely read and, in particular, by those who have an influence throughout the Commonwealth. This book is needed to shift the kind of vote that we saw at the United Nations and the kind of timid steps that we saw in the Commonwealth Secretariat so that we can all say, at the end of 2011, that we turned the corner. And that this book was one of the factors that led to the change. With those hopes I have much pleasure in this little courtroom, where I was so many years ago, in launching Enabling Legal Environments for Effective HIV Responses: A Leadership challenge for the Commonwealth of Nations by John Godwin. It is, literally, a life changer - a life saver.

Reference

1 This discriminatory amendment was subsequently overridden following lobbying from international lesbian, gay, bisexual and transgender (LGBTI) organisations, human rights organisations and the US government. On the 21st December 2010 the General Assembly of the UN endorsed, by 93 votes to 55, restoration of the reference to 'sexual orientation' in the resolution condemning extrajudicial, summary and arbitrary executions.

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