From:
ARMSTRONG, Juliet
To:
HOLDAWAY, Heather
Subject:
FW: Police response on Cabinet paper on BDMRR Bill
Date:
Thursday, 29 April 2021 9:35:56 PM
Attachments:
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Hi Heather,
Response from DIA below on the BDMRR Bill Cabinet paper. Looks like there are a couple of
things worth following up on at Police’s end, happy to chat next week if you like
Juliet
From: Frances Muir
Sent: Thursday, April 29, 2021 8:22 AM
To: ARMSTRONG, Juliet
Cc: Kate Raggett ; Michael Kane
Subject: RE: Police response on Cabinet paper on BDMRR Bill
Kia ora Juliet
Thanks for your feedback and sorry for this late response. Our Cabinet paper is now with our
Minister for ministerial consultation.
I have responded to your comments below in blue but more than happy to talk these through if
needed.
Ngā mihi
Frances
From: ARMSTRONG, Juliet <[email address]>
Sent: Thursday, 15 April 2021 1:30 PM
To: Frances Muir <[email address]>
Cc: CROSS, Jennifer (Jenny) <[email address]>; FERGUSON, Gillian
<[email address]>; HANDCOCK, Alice <[email address]>; Scott
Spackman <[email address]>; Christine MacKenzie
<[email address]>; JOHNSON, Mark <[email address]>;
FITZGERALD, Thomas <[email address]>; DEWHURST, Rachel
<[email address]>; FLAHIVE, Michael (Mike) <[email address]>;
HOLDAWAY, Heather <[email address]>
Subject: Police response on Cabinet paper on BDMRR Bill
Kia ora Frances,
Thank you for the opportunity to comment on the attached draft Cabinet paper relating to a
proposed self-identification process to recognise gender on birth certificates.
The Cabinet paper refers to the current process whereby a person can change their registered
sex on their birth certificate, by means of provision of evidence to the Family Court that the
person has undergone medical treatment to conform with their desired sex. We note that the
proposed change introduces a less medicalising process whereby a person can simply self-
declare their registered sex to reflect their gender and have that sex recorded on their birth
certificate.
In general, Police supports the proposed changes. However, we have some specific comments
regarding the impacts from a Police operational perspective:
Accuracy of identity information
1. s.9(2)(g) OIA
Noted:
· s.9(2)(f)(iv) OIA
We now note in the paper that changing registered
sex raises risks similar to where a person changes their name and this information is
not carried across agencies working in the justice sector. s.9(2)(f)(ii) OIA
· The Bill has two provisions that I think also mitigate your concern, which we intend to
retain:
- clause 110 – 110(4) would allow us to share with police information on a change of
registered sex where Police need to confirm people do not have more than one
identity (this clause is now referenced in the Cab paper); and
- clause 116 – allows us to disclose restricted information for law enforcement
purposes with Police.
2. At present, Police receives name change information from the BDM Registry under our
existing AISA with the Registrar-General. This includes information relating to the
individual’s name change,
their current birth information and all previous name changes
(if any) that is maintained by the Registrar-General under the BDMRRA for a New Zealand-
born individual who is the subject of a registered name change or a non-disclosure
direction - with identifying information including, but not limited to names at birth, former
names, new names, date and place of birth, and
sex. s.9(2)(g) OIA
Having access to this information will enable Police to keep more
accurate records about people from an identity and operational aspect. Our current ASIA
with you does not allow us to share information where a person has changed their
registered sex under the existing Family Court. s.9(2)(f)(iv) OIA
3. We also note that, at paras 37 to 42 – there are likely to be implications for police records
(e.g. NIA – Police’s system for recording information on individuals who come into contact
with Police) if a range of sex markers are adopted, as Police will need to change our
systems to reflect the range of sex markers permitted. It is likely that there will be a
significant cost involved in updating our systems, which may be a continuing cost if sex
markers continue to evolve through regulation setting. Our policy intent is that birth
certificates should not be conclusive evidence of a person’s sex or gender so query if you
need to update your systems to align with options available for birth certificates?
Especially as you note that birth certificates are not how you determine a person’s sex or
gender for offences? Happy to discuss this matter further.
s.9(2)(g) OIA
See our response to 1 above.
Impact on offences
5. We note that the offence of male assaults female under s 194(b) of the Crimes Act 1961
has a gender/sex as an element (e.g. the prosecutor is required to prove that the
offender, who is male, assaulted a female). Although the use of this offence has largely
been superseded by that under s 194B of the Crimes Act 1961 (e.g. assault on a family
member) and its availability may already be affected in cases where the offender or victim
has changed their registered sex through the Family Court process, further consideration
of this charge might be appropriate in light of the proposed changes (we understand that
the rationale behind this charge was to recognise the strength differential when males
offend (through assault) against victims –s.9(2)(g) OIA
. See our response to point 3 above.s.9(2)(g) OIA
6. Further to your question about how Police determines a person’s sex or gender for
offences under s 194(b) of the Crimes Act 1961, we note that the Crimes Act 1961 does
not define “male” or “female” as referring to gender or sex (s 194(b) came into force in
1962 as a part of the original Act), and we are not aware of any case law on this point. The
case of
Chandler v R HC Napier AP4/93 requires the prosecutor to prove that the offender
knew that the victim was female (although it can usually be assumed that this is the case).
In short, s 194(b) raises difficult questions for Police re victims with gender diversity.
Thanks!
7. s.9(2)(g) OIA
s.9(2)(g) OIA
You may be aware that
StatsNZ will soon release revised statistical standards for sex and gender, which may be a
helpful guide in the first instance.
8. We have not identified any other offences at this time that might be affected by the
proposed changes (our initial thought is that offences relating to female genital mutilation
(e.g. ss 204A and 204B of the Crimes Act 1961) are unlikely to be affected as these
offences rely on the victim (who is referred to by the legislation as “a person” – not a
female) having female genitalia – this issue may require further consideration, however).
We do not think our changes will have implications for other offences or that we need to
give further consideration to this issue – as above, birth certificates should not be
considered as conclusive evidence of a person’s sex. We consider that it is up to individual
agencies and organisations to determine their policies for determining sex, if this
information is necessary.
Finally, we note that Para 26 refers to (and briefly details) advice received from Crown Law,
which would ordinarily be privileged. I assume that privilege has been waived in respect of this
advice (and note that Daniel Perkins from Crown Law is included in the email correspondence
below). Yes, legal privilege was waived so the advice could be publicly released back in 2019 it is
available here: https://www.beehive.govt.nz/sites/default/files/2019-
02/Crown%20Law%20advice%20BDMRR%20Bill%20_0.pdf
It would be good if you can also please confirm the date for SWC considering this paper? 12 May
2021, sorry I didn’t provide this earlier
I hope this feedback is helpful. Please feel free to come back to me if you have any further
questions.
Ngā mihi
Juliet
Juliet Armstrong
Senior Policy Advisor II
Criminal Justice Policy Team
Policy & Partnerships
s.9(2)(a) OIA
E [email address]
s.9(2)(a) OIA
From: Frances Muir <[email address]>
Sent: Friday, 9 April 2021 2:31 PM
To s.
9
(
2
s.9(2)(a) OIA
Subject: [EXTERNAL] For your review - Cabinet paper on BDMRR Bill CAUTION: This email
originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Kia ora koutou
Please find attached for your agency’s review a Cabinet paper introducing a self-identification
process to have gender recognised on birth certificates. We will need your agency’s comments
by
COP Thursday 15 April. Sorry for the short timeframe, which is to allow us to get a draft of
the paper to our Minister for ministerial consultation before 20th April.
Thank you to those of you who provided feedback on an earlier version of the Cabinet paper.
Note we are unfortunately not able to include our Regulatory Impact Statement in this round of
feedback as it is still being revised to reflect our policy proposals.
Sorry, we also realise the paper is too long and we are working on shortening it. Feel free to
provide suggestions on reducing its length if you have time.
Please get in touch if you have any questions.
Ngā mihi
Frances
Frances Muir (she/her) | Senior Policy Analyst | Kaitātari Kaupapahere Matua
Policy Group | Rōpū Kaupapahere
The Department of Internal Affairs |
Te Tari Taiwhenua
Mobile: s.9(2)(a)
OIA
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