11 November 2005

Marriage (Gender Clarification) Bill: its sponsor speaks (preaches?)

For a fascinating and typically incisive (thanks to CB's probing questions, not GC's responses!) interview, see GayNZ.com's interview with MP Gordon Copeland: “God’s seal of approval”.

A little taster to wet your appetite:

GayNZ.com: So that moral perspective wouldn’t have informed the drafting of this bill, and the push to have this bill put through?

Copeland: [pause] Well, I mean, none of this can, ah, separate, our morality from our actions as MPs. My own personal situation is that, um... is that, ah, marriage is the only sexual activity which is sanctioned by God, which has God’s seal of approval. All other forms of sexual activity, therefore, fall short of that very very high standard, whether they be homosexual or heterosexual. They all fall short of that. So I have a moral distinction between the two, and for me of course, that simply reinforces the fact that all of humanity to a greater or lesser extent is sinful. So, homosexual, heterosexual, we’re all in that category, including myself (laughs). Especially me. So its not a question of, of, being judgmental, we’re just simply saying, look, here this is what marriage has always meant, and we want to continue for it to mean that.

GayNZ.com: So that perspective you’ve just outlined, that’s the perspective that’s behind this bill?

Copeland: The, um, no I’ve said what I’ve said. I’ve said what I’ve said. You’re now trying to put words in my mouth. I couldn’t have been any clearer with you, could I?

UPDATE: For an interview with The Eradicator on the Bill, see GayNZ.com, "More Mapp: But gays CAN marry! (...the opposite gender)".

For more on the Bill, see: Marriage (Gender Clarification) Bill (Knowledge-Basket) Bills Digest Attorney-General's report (noting the inconsistency with the Bill of Rights) (via NoRightTurn)


Swimming said...

I believe the auditor General is wrong. See Big News for details

Anonymous said...

So do I Dave, but it's the attorney-general who's wrong. There are many bills that shouldn't escape the clutches of the NZBORA but the discrimination inherent on Maggie Wilson means the do.

Graeme Edgeler said...

Is that seriously what passes for a section 7 report these days? Two-and-a-half pages? Of that? But I suppose, at least, it is an excellent exercise in legal and logical gymnastics.

The bill may be a blight on free society, and may cause New Zealand to breach all sorts of international obligations, but one thing it will not do is breach BORA - almost by definition.

The report seems to assert that if clause 7 of the bill passed into law then s 19 of BORA would breach s 19 of BORA. Huh? Come on, how could Crown Law even consider this a sensible conclusion? Unless there is an actual logical consistency (for example if cl 7 inserted a subs (3) "there is no s 19 in BORA") this has to be a nonsense. The proposed amendment of s 19 of BORA might breach common standards of taste and decency (I've not really made my mind up one way or the other on this one) and may be objectionable or morally bankrupt, or even the "WORST. BILL. EVER." but it cannot be in breach of itself!

Section 19 affirms the right of New Zealanders to live free from discrimination. Under s 5 this right is subject to reasonable limits, as prescribed by law (I realise you know all this Dean, I just want a logically complete vent). Simply put, the government/public are permitted to discriminate (including passing laws that discriminate, or may permit discrimination) only in circumstances where that discrimination is reasonable.

To determine whether some action (for example that might be taken in good faith for the purpose of assisting or advancing marriage) breaches s 19 of BORA we can ask a couple of questions:

1) Is the action discriminatory?
2) If so, can that discrimination be reasonably justified in a free and democratic society?

If an action we are subject to, no matter how annoying or hurtful or morally wrong it may be, is not discrimination then it cannot breach s 19.

Clause 7 adds a third subsection to s 19, namely "(3) Measures taken in good faith for the purpose of assisting or advancing marriage do not constitute discrimination."

Crown Law have said that cl 7 will be interpretted to permit unjustified discrimination. This cannot be so - though, if the clause becomes law it may allow the government (or others) to do all manner or unjustified things, these things will not be discrimination because the Bill of Rights Act (with which, under s 6 of BORA, every statute must be interpretted consistently) would state that "Measures taken in good faith for the purpose of assisting or advancing marriage do not constitute discrimination." Something that is not discrimination cannot be unjustified discrimination, no matter how unjustified it may be.

Larry Baldock wants the Government/public to (or at least be able to) take measures *in good faith* to assist or advance marriage, he has recognised that were they to do this they might breach the Bill of Rights by discrimating based on marital status, so he has proposed amending the Bill or Rights to allow what might otherwise be unlawful. Whatever your opinion on this proposal, it has to be recognised that this is an eminently sensible (and defensible) legislative approach to achieve this goal.

And do you think maybe, even just once, the Crown Law report could have mentioned Moonen, or at least tried to apply it? And do you think that maybe Dr Cullen could have considered whether the other clauses of the Bill (taken seperately from cl 7) might breach BORA - it may be the common law, but is he/they don't even appear to consider whether limiting marriage to heterosexual unions might breach BORA.

David Farrar said...

Dean - your blog doesn't seem to have an RSS feed. Are you able to activate it so I can subscribe to your blog?

Dean Knight said...

I agree with Graeme’s comment about the robustness of section 7 reports. They do seem to be patchy. I’ve seen some really good ones (off hand, Andrew Butler’s spring to mind – one I saw ran to some 12 or 14 pages, I think on the amendment to the FVP Classification Act). Others are notably only for their brevity. One (the Foreshore and Seabed Bill) is notable for the fact it was signed by the Attorney-General herself – take from that what you will! Sometimes I think it depends on the body completing the reports (Justice normally, although Crown Law for this one I guess because civil unions/marriage falls under Justice's purview). Why don't we have a truly independent reporting body like the Legislation Advisory Committee?!!?

I also recall something about a policy that section 7 reports weren’t necessary prepared if the legislation was justified under section 5 – I haven’t quite yet got to the bottom of the propriety of that.

In any event, in relation to this Bill, I think the most remarkable aspect of the report is the (implicit) conclusion that the clause restricting marriage to opposite-sex couples is either not discriminatory and/or justified under section 5. I know the former is arguably justified on the basis of the Court of Appeal’s decision in Quilter but I firmly believe that then Court of Appeal majority must now be thoroughly embarrassed by that decision, particularly in the light of the basically overwhelming case-law throughout the rest of the world. In simply terms, I think they failed to appreciate the principle of “indirect” discrimination. In terms of the latter, I think there is an interesting argument about whether exclusion of same-sex couples from marriage is justified. The advent of civil unions is significant although my won critiquing of the various argument against (during the civil union debates) suggest to me that any objectives for exclusion are, at best, weak. However, I wouldn’t necessary put money on a New Zealand appellate court ruling that way.

But, it terms of Graeme’s point about the other clause, I’m not so troubled. It seems to me that the report is designed to assess all legislation for its consistency with the Bill of Rights as it currently stands. It’s really the quid pro quo for the no implied repeal protections in section 4 – if Parliament wants to abridge rights it should do explicitly in the light of reasoned analysis of its effect. It doesn’t really seem to be material to me whether the amendment happens internal to the Bill of Rights or external in other legislation.

Yes – substantive merits aside, it seems preferable that any such amendments be made to the Bill of Rights itself (after all, section 19 presently specifically preserves (a limited form of) positive discrimination: “Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.”) Unsurprisingly though, I think the clause is utterly egregious and unlikely to survive any robust proportionality scrutiny; any differentiation between (opposite-sex) marriage and (same- or opposite-sex) civil unions has no credible foundation. However, I leave open the question of whether it may be a justifiable measure if it sought to distinguish between registered relationships (marriage and civil unions) and unregistered ones (de facto relationship).


Graeme Edgeler said...

Dean: “I also recall something about a policy that section 7 reports weren’t necessary prepared if the legislation was justified under section 5 – I haven’t quite yet got to the bottom of the propriety of that.”

I’m pretty sure that when I was studying Public Law Caroline addressed this (our final piece of assessment was to prepare a pre-Section 7 report). Simply put, if a restriction on liberty is demonstrably justified then it isn’t inconsistent with BoRA so s 7 doesn’t require anything to be brought to the attention of the house.

In a human rights update in the New Zealand Law Review Rishworth (Rishworth, Paul T “Human Rights” [2003] NZ Law Rev 283) briefly looked at some of the concerns that could arise when s 7 reports were made too frequently – essentially that Parliament ought not get into the habit of ignoring s 7 reports (which they will if they’re made when there are demonstrable justifications). And vetting reports are now routinely made publicly available here http://www.justice.govt.nz/bill-of-rights/bill-list.html. Select Committees take note of them, but because there is no breach, no formal notice is given under s 7.

A large number of them do appear to be nearly identical four paragraph form letters: “We have considered Bill X; Bill X does Y; Bill is not inconsistent with BoRA; here is the letter saying so, which we also to Z.” This is probably appropriate, but even bills such as the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill 2005 have zero discussion on their impact (even if reasonable) on the free exercise of religion, or the rights of minorities.

My major concern with this particular section 7 report (other than the abject lack of discussion of the other clauses – though perhaps that’s because the analysis has been done elsewhere and the opinion of the CoA adopted that it is not discrimination because well, two heterosexual males can’t marry each other, either so no s 7 report was necessary) was that I didn’t think a s 7 report was the correct place for this analysis (amending as it does BORA itself). Section 7 reports consider consistency with the Bill of Rights, and by extension the Human Rights Act – the concern here is more of one that if the BORA amendment passes then rights affirmed in the ICCPR or other international instruments will be curtailed unreasonably – and these rights aren’t up for discussion in a s 7 report. Consideration of the consistency of bills with our international obligations occurs elsewhere, and can raise these points without such leaps of logic.

Graeme Edgeler said...

The analogy I had intended to use (and forgot when drafting the above comment) was with proposed flag-burning amendments to the US Constitution.

Lawrence Tribe (I think) was asked on some panel show whether a proposed amendment would be constitutional - wouldn't it breach the first amendment? He was rather taken aback and gave the obvious answer - if it's in the constitution it is the constitution.

Dean Knight said...

Graeme - that seems to line up with what I thought was the current practice.

However, I think I recall there was some debate a few years ago about that.
Section 7 provides:

[T]he Attorney-General shall ... bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

As you can see, the relevant inconsistency is with the "rights and freedoms" contained in the Bill of Rights; not expressly the Bill of Rights as a whole (ie, rights and freedoms subject to reasonable limits).

That said, I can see how logistically difficult it would be to report on every prima facie breach. For example, any legislative requirement to complete a form prima facie breaches someone's freedom of expression (compelled speech!) but, of course, that is justifiable as a reasonable limit.

I guess my concern is that I think the Attorney's section 7 report is, at best, their judgement and plays (should play?) an important role in the public and policital debate on legislation. Therefore, isn't it desireable that the Attorney also reports on those Bills which, although strictly justified under section 5, are at the margins? This allows the public to critique the proportionality assessment.

That is the my concern here particularly as it relates to the exclusion of gays from marriage. In the light of recent developments, that is not a straight-forward question that the omission from the report suggests.

As an aside, do I take it that the Bill of Rights advice on the Justice website is probably undertaking this very function? See

Presumably, the equivalent advice is not available because Crown Law does not have the same practice of releasing its advice?

Graeme Edgeler said...

"Presumably, the equivalent advice is not available because Crown Law does not have the same practice of releasing its advice?"

No - though I'd guess the site isn't completely up-to-date, if you look through some of the individual vetting reports you'll note that some are drafted by Justice officials, and others by Crown Law (and even some essentially by both).

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Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

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