Justice Centre | 19 Aitken Street
DX SX10088 | Wellington
T 04 918 8800 | F 04 918 8820
[email address] | www.justice.govt.nz

25 August 2021

Terry Thomas
[FYI request #15937 email]

Our ref: OIA 89127

Dear Mr Thomas
Official  Information  Act  request  –  Births,  Deaths,  Marriages  and  Relationships
Registration Bill
Thank you for your request dated 30 June 2021, for copies of advice related to the Births,
Deaths,  Marriages  and  Relationships  Registration  Bill  and  the  impact  on  the  justice
system. You asked for:
  … all advice provided to the Ministry of Internal Affairs or any other ministry,
agency or minister on the impact proposed changes to the Births Deaths
Marriages and Relationships Registrations Act regarding self identification on birth
certificates, and their impact on operations in prisons and the Corrections
Regulations 2005.

  … advice similarly provided regarding any impact on the justice system,
particularly any impact on the ability to track people's progress through the courts
and justice system, or the ability to carry out background checks on people who
might amend their birth certificates under the proposed changes.

On 28 July 2021 the Ministry extended the timeframe for the response, to allow additional
time for the consultations necessary to reach a decision. I am now in a position to respond
in full. Your request has been considered in accordance with the Official Information Act
1982 (the Act). Four items have been identified in scope of the request:

1.  Note to Ministers Faafoi and Sio: ‘Response to the report of the Working Group for
reducing barriers to changing registered sex’ dated 10 December 2020
2.  Letter from Minister Sio to Minister Tinetti 17 December 2020
3.  Letter from Minister Faafoi to Minister Tinetti 20 January 2021
4.  Officials’ emails dated 8 and 9 July 2021.

Items (1), (2) and (3) are released in full with no redactions.

With regard to item (4), an official’s contact details have been under section 9(2)(a) of the
Act, to protect privacy. No other information has been withheld. I am satisfied that there
are  no  public  interest  considerations  that  render  it  desirable  to  make  available  the
information being withheld under section 9 of the Act.

The email exchange followed earlier emails the Ministry was copied into, between other
agencies. I’m advised you have also made your request to the New Zealand Police and
the Department of Corrections, and that the Department of Corrections will respond with
respect to the earlier emails.

You have the right under section 28(3) of the Act to complain to the Ombudsman if you
are not satisfied with my response. The Ombudsman may be contacted by writing to
[email address].

Yours sincerely

Sam Kunowski
General Manager, Courts and Justice Services

Response to the report of the Working Group for
reducing barriers to changing registered sex
Hon Kris Faafoi, Minister of Justice
Hon Aupito William Sio, Minister for Courts
10 December 2020
Purpose
1. Minister Tinetti has asked you for feedback on the Ministry of Justice response to
relevant recommendations of the Working Group to improve the processes for changing
sex registered on birth certificates. This note provides some context and attaches a draft
response to Minister Tinetti.
Released
Context
2. In February 2019, the Births, Deaths, Marriages, and Relationships Registration Bil was
deferred because of significant changes made at Select Commit ee after submissions
had closed. These changes replaced the current Family Court-based process of
changing sex on a birth certificate with a statutory declaration based self-identification
under the Official Information Act (1982)
process.
3. The previous Minister of Internal Af airs acknowledged the barriers inherent in the Family
Court process and set up a Working Group to provide advice on operational
improvements that could be implemented under the current legislation, while the issues
with the Bill are worked on.
4. The Ministry supported this group by being part of the Secretariat with the Department of
Internal Af airs, facilitating technical input from the Ministry’s operational support team,
as well as organising a meeting with the Principal Family Court Judge.
5. The Working Group reported back in January 2020 and made 38 recommendations,
seven of which involve responsibilities within the Justice and Courts portfolios.
6. In addition, there were seven recommendations addressed to the Judiciary. However, as
the Judiciary is independent of the Executive these recommendations are not addressed
as part of this Government Response. The office of the Principal Family Court Judge has
been provided a copy of the Report and has acknowledged the recommendations
The recommendations
7. The Working Group found barriers in every step of the Family Court process and felt that
many of these barriers could be mitigated through clear, consistent and accessible
information about the requirements of each step. They found that other barriers require
more commitment to work with transgender and intersex communities to provide
consistent and transparent services.
8. The Ministry worked with the Department of Internal Affairs on the Government
Response and fully considered each of the relevant recommendations. The Ministry
specific recommendations and response are set out in Appendix A.
Approved by: Robyn Washbourne, Policy Manager, Access to Justice

9.  Of the seven recommendations, the Ministry considers that it can proceed with three:
•
Recommendation A: align website content with the Department of Internal Af airs.
•
Recommendation D: align call centre scripts with the Department of Internal
Affairs
•
Recommendation N: provide plain-English guides alongside forms or a letter
from the Court that explains what that document means for the applicant.
10. The Ministry teams responsible for these areas will place these on work programmes
Released
and progress as priorities allow.
11. One of the recommendations can be implemented through other means.
Recommendation L is about moving proceedings to another location, due to privacy or
safety concerns. Under the Family Court Rules 2002, applicants have the choice of the
hearing being held at the court nearest to where they live or Wellington (where the
under
Registrar-General is located). Applicants do not have the free choice that was
recommended, as this would require a change to the rules and is outside the scope of
the Working Group’s mandate.
the
12. Given the parameters of the Working Group’s mandate, three of the recommendations
cannot be implemented under current set ings.
Official
•
Recommendation E: sought free legal representation be made available to
people seeking to change the sex recorded on their birth certificate. Legal aid is
available to people of insufficient means in general and making an exception for
a particular group requires legislative change.
Information
•
Recommendation F: sought funding for lawyer for child, for those children going
through the process in the Family Court. Again, this requires legislative
amendment. We note that a judge can appoint a counsel to assist the court if
required.
•
Recommendation H: recommended the creation of a template for health
Act
professionals to provide expert medical evidence. The Ministry cannot suggest
to the Judiciary what sort of evidence is sufficient in any proceeding.
(1982)

Ministry of Justice specific recommendations as part of the Government Response to the report of the Working Group

Released

To make the process of changing the sex recorded on a birth certificate accessible to al  transgender and intersex people,
the Working Group recommends:
A  Government agencies develop guidance which
The Department of Internal Af airs has developed new guidance for their website
clearly lays out the process for changing the sex
which includes:
recorded on a birth certificate in easy to underst
under and
language and guides a person who wants to apply
•  new content showing how and why each agency is responsible for which part
through each step of the process. This should
of the process;
include:
•  clear information about who can change the sex recorded on their birth
certificate;
the
•  templates for medical evidence;
•  a description of the end-to-end process including timeframes
•  examples of the sort of information needed in
•  links to the Ministry of Health’s webpage ‘Transgender New Zealanders’
Official
the affidavit;
which provides information on gender affirming healthcare and links to
•  a booklet that explains the process end to
supporting organisations.
end; and
•  a link to the Ministry of Justice website; and
•  guidance about fil ing in all the documents the
•  contact information including a dedicated email address.
Family Court require.
To al ow equitable access for those unable to engage with the material digital y,
the Department of Internal Af airs wil
Information  work to develop printable material and
investigate how best to provide this to the community.
The Ministry of Justice wil  work to align their website content with the Department
of Internal Af airs and wil  develop plain English guidance as priorities al ow. This is
addressed under Recommendation N.
Medical guidance is addressed under Recommendation H.
D  The Ministry of Justice or the Department of
The Department of Internal Af airs has created a direct email channel for people
Act
Internal Affairs should provide a free face to face or  seeking help understanding the information and resources on their website.
call centre service to guide people through each
Contact centre scripts have been updated so that clear, consistent information can
(1982)
step of the process. This is needed in combination
be provided on the cal , cal s can be transferred to someone with expertise, or a
with written guidance to make the process
call back can be arranged if necessary.
accessible to more people including those who
The Ministry of Justice wil  align its cal  centre scripts with the Department of
don’t have English as a first language or those with  Internal Af airs and update their content as priorities al ow.
disabilities which impair access.
Approved by: Robyn Washbourne, Policy Manager, Access to Justice

To ensure al  transgender and intersex people seeking advice on how to submit an application to the Family Court are able to
access legal advice, the Working G
Released  roup recommends:
E  Free legal representation is made available for
The mechanism the government has for funding legal representation is legal aid,
people seeking to change the sex recorded on their  which is required to be repaid. The government also provides funding to
birth certificate.
Community Law Centres. These are already available for people seeking support
taking an application to the family court.
F
A lawyer for the child is funded for applications
Automatically appointing a lawyer for the child would require changes to
under
under Section 29, independent of the legal advice
legislation. For example, under the Oranga Tamariki - Children’s and Young
to a guardian or any counsel to assist the court.
People’s Well-being Act 1989 a lawyer for the child must be appointed for care
and protection cases. There is no equivalent requirement in the BDMRR Act
1995.
the A judge can choose to appoint a counsel to assist the court. A counsel to assist
can aid the judge in determining whether the application is in the best interests
Official
of the child.

To guide applicants, medical professionals and members of the judiciary towards a consistent understanding of the
evidentiary requirements which recognises the expertise of those delivering gender-affirming care in New Zealand, the
Working Group recommends:
Information
H  The Ministry of Justice creates a simple template
It is up to the Judiciary to determine the form and content of evidence required for
for health professionals to provide expert medical
any particular case or proceeding.
evidence that reflects the evidential requirements in  The FAQs on the Ministry of Justice website, described in the response to
recent successful applications, acknowledging that  recommendation A, can include a plain-English explanation of the medical
judges may request additional evidence as they
evidence requirements of Sections 28 and 29 of the BDMRR Act.
consider necessary.
If medical practitioners require guidance about how to present evidence requested
by patients applying under Sections 28 or 29
Act , such guidance would be best
provided by their colleagues or an organisation such as the Professional
Association for Transgender Health New Zealand (PATHA).
(1982)
If an organisation such as PATHA were to provide a template on their website, the
Department of Internal Affairs could include a link to this alongside the other
information and guidance about the process.

To improve the privacy and safety of transgender people and families with transgender children submitting an application to
a Family Court, the Working Grou
Released p recommends:
L
The Ministry of Justice develop a template cover
A letter would contravene the Family Court Rules 2002 which state that (unless
letter for people to submit with their application if
specified elsewhere in the Rules) an application must be made at the court:
they are not submitting to their closest Family Court
•  nearest to where the applicant lives; or
because they are concerned about privacy or
•  nearest to an interested party.
safety.
However, there are ways someone can apply to a different Family Court. The
under  Rules above allow an application to be made to the court nearest the applicant
or the applicant’s lawyer, or to the Family Court in Wel ington as the closest
court to the Registrar-General.

To make the Family Court a less intimidating place
the  and to help applicants understand correspondence from the court, the
Working Group recommends:
Official
N  The Ministry of Justice should provide a plain-
The Ministry of Justice wil  add this to their work programme. It wil  be subject to
English guide alongside a form or a letter that
the usual prioritisation and funding considerations. Common questions could be
explains what it means for the applicant.
addressed through the FAQs on the Ministry of Justice and Department of
Internal Affairs websites described in the response to recommendation A.

Information
Act (1982)

Released
under
the Official
Information
Act (1982)

Doc 2
From: Frost, Kerryn
Sent: Friday, 9 July 2021 2:30 pm
To: 'WOOD, Jesse (WELLHO)' <[email address]>; HOLDAWAY, Heather
<[email address]>
Cc: HORAN, Marian (WELLHO) <[email address]>; Wheeler, Sally
<Sal [email address]>
Subject: RE: Heads-up: LEG paper and SOP for your review tomorrow
Kia ora Jesse,
Thanks for your email. I’ve checked in with our relevant policy teams and with our Operations &
Released
Service Delivery Group about the issue you raise below.
Our OSD Group has advised that the Court is not directly involved in placement of people in court
cells (in terms of which cells they are placed in). This is determined by Corrections if they are people
on remand in custody or Police if arrested and detained in cells or going into the cells to await
signing of bail bonds. Based on that advice, it doesn’t look like it will have an impact from our end.
under the Official Information Act (1982)
Ngā mihi,
Kerryn
Kerryn Frost (she/her)
Senior Advisor | Access to Justice
Courts and Justice Services | Policy Group
Ministry of Justice | Tāhū o te Ture
9(2)(a)
www.justice.govt.nz
From: WOOD, Jesse (WELLHO) <[email address]>
Sent: Thursday, 8 July 2021 9:51 am
To: Frost, Kerryn <[email address]>; HOLDAWAY, Heather
<[email address]>
Cc: HORAN, Marian (WELLHO) <[email address]>
Subject: RE: Heads-up: LEG paper and SOP for your review tomorrow
Kia ora both
I was wondering if you had some initial thoughts on this below question.
Is it known if the self-identification proposals impact how police/justice determine sex/gender for
people being taken into custody / facing court cases? This is because any impacts here may
subsequently impact Corrections as we often rely on their determinations of gender/sex to inform
our initial prison placement.
Ngā mihi
Jesse Wood (he/him)
Policy Adviser | Corrections Policy
Ara Poutama Aotearoa, Department of Corrections
Wāhi mahi: National Office, Freyberg Building, 20 Aitken Street, Wellington 6011
Īmēra: [email address]

Document Outline