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Lecture 14

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Donna Buckingham

18/04 Legislation 14: Marry Go Round- NZBOR Act in Practice NZBOR Act maintains Parliament as the supreme power- while it gives these rights, it reserves the right to limit them according to other legislature and what is “reasonable” in a democratic society. Issue: marriage is not defined anywhere in the marriage act.  In 1994, 3 lesbian couples were refused marriage license by the Registrar of Births Deaths and Marriages.  These couples registered a grievance at the court due to this refusal, believing that there was a conflict in their decision and the law. Marriage Act 1995: 23. Notice of Marriage- (1) Where 2 persons intend to marry in NZ, one of them shall give notice in the prescribed form to a registrar. (2) The person giving notice shall appear personally before the registrar and shall make a statutory declaration in the prescribed form that the several particulars set forth in the notice are true, that he believes that the marriage is not prohibited by section 15 of this Act, and that there is no other lawful impediment to the intended marriage.  Formal marriage gives set of rights and responsibilities different to those of unmarried couples: no rights to inherit property, adopt, receive pension on the others death, could not resist the obligation to give evidence against their partner in court.  Traditionally families are made up of a heterosexual couple and their descendants. There was no recognised need to define this in law.  Until recently, there has never been a suggestion that homosexual couples should be allowed the same rights as heterosexual married couples, though there has been a progression in rights of unmarried couples living together (since the 1970s).  Only in 1992 was it recognised that same sex relationships, for some limited purposes, should have similar rights to married couples. Attorney–General v Family Court at Otahuhu [1995]  A person who had had a sexual reassignment from male to female, and then had contracted a marriage with a male.  Issue: was that a valid marriage?  “Marriage was the union of a man and a woman, evidenced by a ceremony countenanced by the state.”- entirely uncontroversial.  Gender is not an issue of birth- different approach to precedent in UK. English court ruled that the sex you are born with is that which you will remain for life. Ellis J upheld a marriage between a male, and another male who had had sexual reassignment surgery- an extremely forward looking way of thinking. Though, it still provides that at the time when you marry, there are still two opposite genders. Can two people of the same gender/sex contract a marriage?  Basic argument of the applicants here- what the judge has to decide. NEW ZEALAND BILL OF RIGHTS ACT 1990: 6. Interpretation consistent with the Bill of Rights to be preferred- Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning. 19. Freedom from discrimination- Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993 HUMAN RIGHTS ACT 1993 21. Prohibited grounds of discrimination- For the purposes of this Act, the prohibited grounds of discrimination are-… (m) Sexual orientation, which means heterosexual, homosexual, lesbian or bi-sexual orientation. Plaintiffs arguing that when you are interpreting marriage in the marriage act, you must do it with regard to the Human Rights Act, as well as s 6- “wherever an enactment can be given a meaning consistent… that meaning should be preferred”- therefore to avoid discrimination should rule that same sex marriages should be permissible. Decision: Nothing in the review of other jurisdictions helped the judge. Though there had been some progress in the writing of certain acts in New Zealand that showed social progress on the matter. E.g. recognition in the domestic violence act- starting development in the modern view, but is that enough to stretch it into the context of marriage. 1. Judge looks at context of Act itself: a. Rules of consanguinity and affinity- there is a list at the back of the marriage act telling you who you cannot marry- people you are either connected to by blood or marriage. List for both men and women, which seems to suggest that Parliament is thinking about marriage as being between opposite sexes. Gender non- specificity- by using the Interpretation Act that where the masculine is used, the feminine is equally implied and vice versa. This Judge says “he” meaning “she” only applies where only one gender is used. When Parliament has given the two in juxtaposition, they intended to refer to both sexes. b. The Vow: Formal r
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