Rachael Wright talks to Victoria University law lecturer Dean Knight about civil unions, the Marriage Act, adoption and where New Zealand’s laws leave gay couples.
After the Civil Union bill was passed, there was a lot of criticism that it did not go as far as it could have, especially when considering the notable exclusion of adoption rights.
The civil union regime is one the best civil partnership regimes around the world, and it tidied up the statutory discrimination, except for what was originally four key areas. Since then, the Wills Act and the Evidence Act have been all fixed up, leaving us with two key differences between marriages and civil unions: gays can’t marry, and civil union couples don’t have the same adoption rights.
The Law Commission told us adoption needs to be fixed; everyone knows it should be fixed. People realise—and the literature tells us—that gay parents are great parents. However, at the time of the Civil Union Bill there was the 2000 Law Commission report, the Care of Children Act was all fairly fresh at this point, and that was the formal reason; there are some other things going on, we don’t need to look at it in this bill. Adoption is better looked at in that holistic context, it can’t be a small provision.
As for marriage, a lot of people say ‘why bother with marriage?’ and I have sympathy with that. However, the fact that the Marriage Act still excludes gay couples is discriminatory, and it’s inequality, and we should fight against that. There are practical reasons, too. Civil unions aren’t as transportable around the world as marriage, and there are spatial restrictions—you can’t elope to Fiji to get a civil union. One of my colleagues described marriage as ‘the gold standard’, and I think that it either should be open to everyone or it shouldn’t be available. If you think about civil unions, they are probably a better way to recognise relationships.
How about the idea that there could be a real move towards abolishing the Marriage Act and recognising that it’s better taken care of by religious institutions?
Absolutely. If you think about starting again, you’d invent a civil registration system and you’d leave marriage to the societal institutions. The difficulty is that marriage has some meaning internationally in terms of transportability. If we did this in New Zealand we’d be doing it by ourselves, and marriage is ‘code’ for that kind of system, so that’s why gays and lesbians rightly are fighting in different ways around the world for access to marriage, because it’s become the de facto norm, and we should challenge that.
It’s no complication to people who still want a marriage to have it happen in a religious space… but they should then file the papers for a civil partnership in the same way that everyone else does. The main thing really is that you are perpetuating discrimination if you’re saying gay couples don’t have access to that.
There are still possibilities in New Zealand that it could happen through the courts, I’m not sure that Parliament is primed for it at the moment, but the Quilter case, which ruled that gay couples are excluded from marriage, created an anomaly. It’s patently wrong, was decided too early, and it could still be overturned if gay couples tried to challenge it again and take it to our Supreme Court. The other issue is when a married couple moves from a heterosexual relationship into a same-sex relationship due to one partner transitioning—where does that leave them? The way that the law responds to transgender issues is complicated in New Zealand, but might give an opportunity for the courts to confront the decision in Quilter.
In terms of adoption rights, there’s the recent High Court decision, which interpreted the meaning of ‘spouse’ to include de facto straight couples but also stated that they weren’t making any indication about queer or civil union rights.
The courts were reactive in deciding a case where it was a long-standing, opposite sex, de facto relationship, and they were able to extend the law to apply to their situation, which is reasonably radical. They definitely said this may give heart to queer couples and couples of any gender who’ve had a civil union, but basically indicated that Parliament’s the place to go. I think the chance of getting a similar ruling for a same-sex couple is very low.
I think you can say this is the most radical decision we’ve had under the Bill of Rights Act in 20 years for this sort of social legislation, and although I think Quilter was wrong in the way it was approached, I think the gay community got a better result through legislative response, which has more clearly embedded gay relationships in a holistic way into a legal framework.
In 2000, the Law Commission said it was a problem that needed to be fixed, and ten years later nothing has happened. It’s really rank that the Minister of Justice says that this is low priority; this is people’s lives and it’s really important to have these protections for queer couples in a world that can still be hostile. It needs to be changed, and it needs to be changed quickly.