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Introduction
On 26 July 2012, Labour Party MP Louisa Wall’s Marriage (Definition of Marriage) Amendment Bill (“the Bill”) was pulled from the Member’s Bill ballot. On the same day it was introduced to Parliament. 7 Months later, on 26 April 2013, her Bill received the Governor General’s Royal Assent and passed into law.
In those 7 months, the public went through a lengthy, high profile and emotionally charged debate. The Bill inserted a definition of marriage into the Marriage Act 1955, defining marriage as “a union between 2 people, regardless of their sex, sexual orientation or gender identity” allowing same-sex couples the ability to apply for a marriage licence. Following the landmark Quilter decision the ability to marry had been denied to New Zealand’s LGBTI communities. The Court of Appeal held that the Marriage Act did not allow for same-sex marriages and that it was Parliament, not the Courts, who should make that change.[1]
The introduction of same-sex marriage in New Zealand poses an interesting example of successful law reform. It is also a unique example. The Bill’s controversial content meant that it was treated as a conscience issue and that it generated strong public debate. MPs successfully steering Member’s Bills through Parliament is rare. But successfully passing legislation subject to conscience votes is even rarer. Since 2005, 13 Member’s Bills have passed. None of them were subject to conscience votes.
The Bill
The Bill was introduced to the House on 26 July 2012 after being pulled from the member’s ballot that morning. It had its first reading on 29 August 2012. The Bill was not voted on along party lines and each MP was given a personal (conscience) vote. It passed its first reading vote handsomely, with 80 votes in favour and 40 opposed. One MP, Raymond Huo, did not cast a vote.
Select Committee
The Bill was sent to the Government Administration Select Committee, chaired by Labour MP Hon Ruth Dyson. The Select Committee received 21,533 submissions, demonstrating the intensity of feeling on both sides of the public debate. Of these submissions, 10,487 were in support of the Bill and 8,148 were opposed.
The Select Committee process was controversial. Given the very high number of submissions, only 220 submitters were asked to appear in person. However, the Select Committee attempted to hear as many submissions as it could before its reporting back date of 27 February 2013.
The number of submitters given the opportunity to orally present was criticised by opponents to the Bill who claimed that the Select Committee was “rushing the process” and had “ignored thousands of submitters”.[2] However the length of time available to the Select Committee was set by Parliament in accordance with its standing orders.
The Select Committee report made four recommendations:
- The insertion of a second clause in Section 29 of the Marriage Act to clarify that marriage celebrants acting on behalf of an organisation (such as a church) would not be compelled to solemnise marriages against the beliefs of that organisation;
- The delay of the commencement of the bill from the day after Royal Assent to four months after Royal Assent, to allow the Department of Internal Affairs time to implement necessary administrative changes before issuing the first marriage licences. This also allowed for sufficient time for civil union celebrants who are not already marriage-certified to become so before the first marriages take place;
- The repeal of section 56 of the Marriage Act which made it an offence to impugn or deny the validity of an unlawful marriage; and
- Consequential amendments to fourteen other Acts and one Regulation. The majority of these amendments modified context-critical gendered expression (e.g. "husband and wife") to be inclusive of same-sex couples.
Clarification of religious objection
The clarification of religious celebrants ability to refuse to solemnise marriages that they objected to on religious grounds was the highest profile change that the Select Committee proposed. In their submission to the Select Committee the Human Rights Commission argued that this amendment was unnecessary as the religious freedoms of celebrants would trump the right to freedom from discrimination:[3]
We cannot see how a refusal by a church or other religious organisation to conduct a same-sex marriage in order to comply with the tenets of its religion or the strongly held views of its adherents would not be justified. While it may be more difficult to justify a decision not to marry a same-sex couple simply because of a celebrant’s strongly held moral convictions about same-sex relationships, it would not be impossible given the almost sacrosanct nature of the right to freedom of thought, conscience and religious belief in s.13 NZBORA, a right which has been described as “absolute”.
However, opponents of the Bill were concerned that religious freedom would be trammelled, despite an assurance from the Human Rights Commission that they would not uphold complaints.[4] As a result, the Select Committee made the decision to amend the Bill to:[5]
Clarify beyond doubt that no celebrant who is a minister of religion recognised by a religious body enumerated in Schedule 1, and no celebrant who is a person nominated to solemnise a marriage by an approved organisation, is obliged to solemnise if solemnising that marriage would contravene the religious beliefs of the religious body or the religious beliefs or philosophical or humanitarian convictions of the approved organisation.
A unique feature of the Select Committee process was the high level of engagement it generated from the general public. 21,533 submissions is very high (for example the controversial Foreshore and Seabed Bill attracted only 3,946 submissions) and MPs praised the emotional, reasoned and genuine way that submitters conducted themselves. In particular, MPs were impressed with the engagement of young people during the Select Committee process, many of whom appeared before the Committee and gave moving personal stories. During her second reading speech Hon Ruth Dyson said: “I want to pay particular tribute to all the submitters, but particularly the young gay and lesbian submitters, for whom it must have been a very big and courageous step to talk about their own lives in front of people whom they did not know.”[6]
Second Reading
The Bill had its second reading on 13 March 2013. It passed with 77 votes to 44, a reduction in support of only 3 votes from first reading. However, the vote holding so strongly in the face of intense public debate was not the only success at second reading — more surprising was that the vote was taken at all.
That day the Bill was ranked third on the Members Order paper behind Chris Auchinvole’s Habeas Corpus Amendment Bill and Dr David Clark’s Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill. Pushing the Bill further back was Hon Chester Burrows’ South Taranaki District Council (Cold Creek Rural Water Supply) Bill. As a Local Bill this took priority over Members Orders of the day, effectively ranking the Bill fourth on the Order Paper. Taking into account time for Questions for Oral Answer and General Debate, this would have meant that a vote on the Bill would likely have been delayed until the next member’s day two weeks away.
To make matters worse, on Monday 11 March the Finance and Expenditure Committee reported back on the Budget Policy Statement (“BPS”). According to Standing Order 327(4) this replaced the 1 hour General Debate with a 2 hour debate of the BPS, putting further pressure on the amount of time the House had to debate and vote on the Bill.
What transpired was a salutary reminder that Parliament is the master of its own pace. The Campaign for Marriage Equality, working with MPs in Parliament from across the House, negotiated with Party Whips and MPs that the Bill would be debated that evening. By taking short calls on Bills MPs were able to find an hour of extra parliamentary time, resulting in the shortest BPS debate in recent memory, votes on all three Bills before it on the Order Paper, and an eventual second reading vote with seconds to spare before the House rose at 10 pm.
Interestingly, at Second Reading Rt Hon Winston Peters proposed a rare amendment to the motion that the Bill would be read a second time. He moved:[7]
That the motion be amended by replacing all the words following “That” with the following words: “a referendum be held at the time of the next general election to decide whether the Marriage Act 1955 should be amended to recognise marriage between 2 people, regardless of their sex, sexual orientation, or gender identity.
This amendment failed, by 83 votes to 33, but was to have important procedural consequences at the Bill’s Committee of the Whole House.
Committee of the Whole House
The Bill appeared before the Committee of the Whole House on 27 March 2013, and again passed with a vote of 77 to 44. Six Supplementary Order Papers were lodged. Two of them, lodged by Brendan Horan and Rt Hon Winston Peters, called for the Bill to only come into force if approved by a majority of electors at a referendum. The other four attempted to further clarify religious protections for celebrants and also extend the ability to discriminate on religious grounds to lay people providing ancillary marriage services.
Roy’s Ruling
These four SOPs were voted down and the Chairperson Eric Roy ruled the two referendum SOPs out of order. This was surprising as they had been accepted by the Clerk of the House. Roy’s ruling appears to extend the rules around what is a “relevant” amendment during the Committee of the Whole House. Roy based his decision on Standing Order 298(1), which reads:
A committee of the whole House considers a bill to determine whether the bill properly incorporates the principles or objects of the bill as read a second time by the House.
Roy interpreted this to mean that amendments at Committee should not be contrary to the intention of Parliament at second reading. As Winston Peter’s motion to include a referendum was defeated at second reading his and Horan’s SOPs calling for a referendum were out of order.
This rationale for this ruling can be queried. Standing Order 298 allows the committee to make amendments that are relevant to the subject-matter of the bill and are consistent with the principles and objectives of the Bill. The key question is the interpretation of what is “relevant”. Roy’s ruling appears to preclude any amendment that is contrary to the Bill as voted on at Second Reading. This is a very broad interpretation of “relevant” that could potentially be used by MPs to push out legitimate amendments to future Bills. It also begs the question, if amendments cannot be contrary to the intention of Parliament at second reading, then what is the Committee of the Whole House for?
However, the Chairperson’s rulings are their prerogative and are a reminder that as well as setting its own pace, Parliament’s Standing Orders are not static. Politics is just as important as procedure. Parliament’s rules and their application can, and often do, change.
The Bill had its third and final reading on 17 April 2013. Its vote was 77 in favour to 44 opposed, however the makeup of votes changed. David Bennett MP switched from being opposed to being in favour, and Rino Tirikatene switched from being in favour to being opposed. The Bill received its Royal Assent on 19 April 2013, becoming the Marriage (Definition of Marriage) Amendment Act 2013. The Act has a four month commencement period, and on 22 April the Department of Internal Affairs announced that applications for same-sex marriages will be received from 19 August 2013.[8]
Conclusion
The legal impact of the Act is relatively minor. Two people of the same sex will now be able to get married and arguably, following the reasoning of Re AMM & KJO,[9] same-sex couples will be able to adopt. However, the social impact of the change is significant.
By passing the Bill New Zealand became the 13th country in the world to legislate for same-sex marriage. This is part of a growing global trend, with France passing its own legislation on 24 April 2013. The public debate that accompanied the Bill demonstrated that while New Zealanders are generally in favour of the law change,[10] there is still a vocal segment of contemporary New Zealand society that is not accepting of homosexuals, homosexuality or homosexual relationships. However, supporters of the Bill have argued that the passage of the legislation not only repeals an embedded discrimination in New Zealand law but that it also sends an important symbolic message about the inherent value and dignity of LGBTI New Zealanders.
Irrespective of the public debate that accompanied the Bill its passage on 17 April marked an historic moment for New Zealand’s Parliament and an important victory for the equal treatment of LGBTI New Zealanders. For scholars of successful law reform, the Marriage (Definition of Marriage) Amendment Bill should provide useful material for years to come.
Conrad Reyners is an Associate at Chen Palmer, New Zealand Public and Employment Law Specialists and was the Convenor of the New Zealand Campaign for Marriage Equality.
[1] Quilter v Attorney-General [1998] 1 NZLR 5 (CA).
[2] Family First Media Release “Evidence that marriage select committee rushed process”, 5 March 2013
[3] Sylvia Bell, Human Rights Commission, Marriage Definition of Marriage Amendment Bill Submission, 26 October 2012.
[4] See Human Rights Commission, “Religious ministers’ choice who they marry”, August 24 2012 and Human Rights Commission, “Balancing rights: Freedom of Religion and Freedom from Discrimination”.
[5] Government Administration Select Committee, Marriage (Definition of Marriage) Amendment Bill Select Committee report.
[6] Hon Ruth Dyson, Second Reading Speech on the Marriage (Definition of Marriage) Amendment Bill, 13 March 2013.
[7] Hon Winston Peters, Second reading speech on the Marriage (Definition of Marriage) Amendment Bill, 13 March 2013.
[8] Department of Internal Affairs, “Marriage Amendment Act in effect by 19 August”, 22 April 2013.
[9] Re AMM & KJO HC Wellington CIV 2010-485-328, 17 May 2010.
[10] As demonstrated by a Colmar Brunton Poll taken between 26 – 30 May 2012 (63% in favour, 31% opposed), and a Curia Research Poll taken between 14-24 February 2013 (47% in favour, 43% opposed).