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Marriage (Gender Clarification) Amendment Bill — First Reading

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Marriage (Gender Clarification) Amendment Bill

First Reading

GORDON COPELAND (United Future) : I move, That the Marriage (Gender Clarification) Amendment Bill be now read a first time. At the appropriate time, I will move that the bill be referred to the Social Services Committee for consideration.

I hope every member of Parliament will support this bill on its first reading. I say that because the bill simply clarifies and codifies in New Zealand law marriage as it has always been traditionally understood, not only in New Zealand but throughout the world, not only in our culture but in every culture, not only in the Christian religion but in every religion. In 2005 some people express surprise that the definition of marriage proposed in the bill—namely, that “For the avoidance of doubt, marriage may only occur between one man and one woman.”—is not already in the Marriage Act 1955. However, for someone of my generation, that really is no surprise at all. On the contrary, I am quite certain that in 1955 it would never have occurred to any member of the then New Zealand Parliament that it was necessary to define the word “marriage.” Those members were simply putting into legislative form what people had understood for millennia—namely, that marriage is between one man and one woman. That reality would have been patently obvious to everyone, as our society had never contemplated any other arrangement or interpretation. That, of course, is because marriage is the oldest institution known to the human race. It goes back to the beginning, because, at the beginning, there was one man and one woman.

However, for the record, let us look at the dictionary definition of the word “marriage”. That definition reads: “state or relationship of being husband and wife. … the legal union or contract made by a man and woman to live as husband and wife.” All this bill does is to codify that definition in New Zealand law. As I have already said, it was simply unnecessary to do so in 1955, but it is now necessary for a number of reasons. The first reason is the well-known 1996 court case Quilter v . The applicants in that case went to the High Court, by way of a test case, seeking a decision as to whether same-sex couples could lawfully obtain a marriage licence. The Court of Appeal eventually, in 1998, ruled that marriage is exclusively between a man and a woman.

However, as the Ministry of Justice has made clear in its advice to the Attorney-General, although the Court of Appeal ruling upholds the common law understanding of marriage as between a man and a woman, this could be overturned because of overseas decisions. That is the critical issue that Parliament needs to determine today. The traditional, common law position could be overturned, because that has happened in Canada, in the state of Massachusetts in the USA, and now in South Africa, where marriage has been reinterpreted by the courts to include two people of the same gender—in other words, a man and a man, or a woman and a woman. Canada, the state of Massachusetts, and South Africa all have common law traditions; accordingly, if a couple of the same sex were to approach the New Zealand courts again for the right to marry, then, of course, decisions in those jurisdictions could be cited as creating a precedent. I am asking Parliament tonight to pre-empt that possibility, to put the matter beyond doubt—members should note the words of the bill: “For the avoidance of doubt,”.

Interestingly, the Court of Appeal, in delivering the court’s decision, expressed the view that the question of whether the law should be changed to authorise marriage between gays and between lesbians should be decided by Parliament. So this bill is actually, if you like, a reaction to the Court of Appeal’s comment in that regard, exactly in the way that, in different circumstances, Parliament reacted when the same Court of Appeal ruled that Māori might have access to private ownership of the foreshore and seabed. This bill actually tries to reverse that progress by ensuring that Parliament speaks first.

That is actually the principal issue that is involved in my bill. In addition, however, it specifies that same-sex marriages registered in foreign countries such as Canada and, now, South Africa are not recognised as marriages in New Zealand. Such a provision, of course, is necessary now only because, as I mentioned, the word “marriage” in those countries has been extended to include same-sex couples.

Also, the New Zealand Bill of Rights Act should be amended to ensure that measures intended to promote or advance marriage—for example, pre-marriage counselling—are not considered discriminatory. Obviously, only those who intended to marry would wish to go to a pre-marriage course. It would be quite ridiculous to say that such measures somehow discriminated against people who did not wish to marry. Such logic is deeply flawed. I think, in fact, it is patently obvious that such courses should be open just to married couples; that requires little further argument from me. It would be ridiculous, for example, to argue that a marriage enrichment course is discriminatory because it excludes single people or de facto couples. It would be a bit like saying that Victoria University, by having an entrance standard, thereby discriminated against people who did not meet the entrance standard. In order to be married under our present law, one has to find a partner whom one wishes to marry, has to decide to marry that person, has to be accepted, etc. When we think about it, it is actually a conditional situation that is very much akin to an entrance qualification to university.

I will mention in conclusion another couple of matters. A DigiPoll on this issue was conducted earlier this year, and it indicated that 57 percent of New Zealanders believe that our law should state clearly that marriage can only be between a man and a woman. I speak here tonight for those 57 percent of people. Secondly, I draw to the attention of the House the fact that the Australian Parliament passed last year, with the support of all the parties in the Australian Parliament, legislation that covers the same ground as this bill. Accordingly, this bill’s passage tonight would serve to harmonise the law concerning marriage in both Australia and New Zealand—something we like to do.

I very much hope that this first reading of my bill will, following the Australian example, attract the support of all parties. No fewer than 19 states in the United States of America have also passed similar legislation to safeguard the institution of marriage. Some may argue—and I am sure they will in this debate, from what I have so far heard informally from other parties—that the chances of our courts overturning the Quilter decision are remote. Well, maybe, but the question for Parliament is whether we should take that risk. Should we take a risk like that with the most basic, the oldest, and the most important institution in our society? It is an institution that is, indeed, the cornerstone and foundation of our society, and the fundamental rock upon which the strongest families in our society are built now, and have been built for many, many generations.

Some may argue—I have heard already from the Minister of Justice in question time yesterday—that it is a waste of Parliament’s time to debate this matter. I, in contrast, say that there is nothing more vital to our society and its future than for Parliament to take the time to send a clear signal to the people of this country that the Parliament of New Zealand confirms and affirms the traditional meaning of the word “marriage”—namely, that it is between a man and a woman. But for those who want to make this an argument about parliamentary time, I would not object to a motion that asked that the House extend its time tonight so that we could pass the bill through its first, second, and third readings this evening. I would be absolutely happy about that. If that would save Parliament’s time, then if it were moved I certainly would not object. That would deal with that issue.

I will note with interest tonight, as will the people of New Zealand, the way that parties vote on this legislation. We have just had an election. It is well known—it has actually been referred to indirectly by the Prime Minister herself—that it was the social engineering agenda of the last Government that produced the election results we saw just a little while ago. Labour had its worst result in 11 provincial seats in that party’s history. I think some people from the National Party will vote tonight with the Labour Party on this issue, and if they do that, they will deeply disappoint the hundreds of thousands of people who cast their votes for National at the last election.

KATHERINE RICH (National) : Every single New Zealander who was polled in the DigiPoll referred to by Mr Copeland will be pleased to know that the present law in New Zealand as it stands is that marriage is between a man and a woman. I repeat: the present law states that marriage is between a man and woman. This bill adds nothing to the law—the law is already settled on this matter. If people do not believe me, then I ask them to read Quilter v 1998, and I ask them to read various papers put out by the Ministry of Justice, by Crown Law, by Chapman Tripp, and by members of the legal fraternity like my learned colleague and friend here, Chris Finlayson. The law is very clear.

Let us see the Marriage (Gender Clarification) Amendment Bill for what it is. It is a cheap political stunt put up by a party that wants to pretend it has a monopoly on having an interest in long-term relationships, and that it has a monopoly on concern for New Zealand families. I look around the House tonight. Most members here, if not all of them, believe that long-term relationships are the glue that keeps this community together. But this bill would add nothing to the present legal position—nothing at all. We hear rhetoric in this House about members not taking up Parliament’s time, and about our not wanting to create bills that add nothing to the law and do not make a difference, but this bill is one of those that would do nothing but restate the status quo. The purpose of this bill is so that United Future can stand up and say that it has a monopoly on believing that marriage is important and that long-term relationships are important—but United Future simply does not.

This bill is a cheap political stunt, and will be used as a platform for every banjo-playing, redneck homophobe who wants to stand up and make comments about the way other people lead their lives. I have referred to the impression that United Future wants to create, but this bill will add nothing to the body of law we now have. United Future wants to create the impression that we have hordes of gay and lesbian couples around the world focusing on New Zealand as their destination of choice. Again, the law is quite clear on that point. If New Zealand gay couples travel and marry somewhere else, their relationship will still be dealt with under the civil union legislation and regulations. If foreign people in some other kind of relationship want to come to New Zealand, the law is pretty clear about their status, as well. So if we look at this bill, we see that it will do absolutely nothing to change the present situation.

We often stand in the House and say we want to create bills that will make a difference and will stand for something, so why are we standing here debating something that is already extremely clear in the law? My great-grandmother used to have a pub years ago called The Live and Let Live, and I think that that is a very good saying. United Future members should take a look at themselves, introduce some common sense to their own views, and see that the legal situation, as it is, is quite clear.

Marriage in this country is between a man and a woman, and many in this House believe in that and support that. Many people who voted for the Civil Union Bill supported that, which is why we had that bill in this country. Once again, we see that party stand up and pretend it is the only party in this Parliament that is concerned about long-term relationships. We all know that long-term relationships remain the glue that keeps our community together, but when I look at this legislation I am concerned about the sort of debate it will unleash on our communities. It will be used by many as a platform to say all sorts of things that will offend, and to make statements about other people’s lives.

In my view, this bill does nothing more than state a situation we already have. Those DigiPoll respondents will be pleased to know that the law is extremely clear. We have not had a single lawyer stand in this House and say that the law is not clear. Every law we pass in this Parliament is potentially open to challenge, but I tell members that if we put this law in place it will be challenged by those within the community, and, in particular, it will be challenged under the Human Rights Act.

Dr RICHARD WORTH (National) : It is seldom I disagree with Katherine Rich but on issues like these, where effectively we are confronting a conscience vote, I simply cannot agree. The proposition being advanced to members of this House is an assumption that the law is unchanging. In fact, nothing could be further from the truth. The law is constantly changing, sometimes incrementally and sometimes in dramatic advances. It is changing both as a result of decisions made by judges, and also of course by decisions made in this House.

It is right to say that judge-made law is settled by the Quilter decision, but in principle there is nothing to say that the Supreme Court, now our highest court, could not review that decision in an appropriate factual matrix. It is also absolutely clear that this Parliament could make substantial change, as Parliaments around the world have done—in some cases, in short order. So the position that I adopt in speaking to members of the House tonight is that this bill should be supported. I do not for a moment buy into an argument that just because it reflects codification of the common law, then somehow it is a waste of time to have it referred to a select committee.

I plan to vote in favour of this bill for a number of reasons, and I encourage colleagues in the House who are listening to these arguments to reflect on whether their arguments are right, if it is their plan to vote against this legislation. I would say these things. First of all, I say that passing this bill will provide a significant hurdle to the introduction of same-sex marriage in this country. It will be more difficult for Parliament to introduce same-sex marriage if it first has to repeal the Marriage Act—or sections of it—and then pass further legislation. Second, I say that without this bill the Civil Union Act paves the way for same-sex marriage. That is because it would be much easier for a Parliament to introduce same-sex marriage by passing a minor amendment to the existing Civil Union Act and leaving the Marriage Act untouched. The Civil Union Act currently provides that a civil union couple can convert their civil union to a marriage, as long as they are able to marry anyway. I think we have also seen—and this is the third point—how easy it is, in the context of what has been going on in a number of countries, to change the law to sanction same-sex marriage, in short order. The latest illustration of that would be in South Africa, where there is not a definition of marriage in the legislation.

It is not the role of Parliament to dictate moral habit or moral custom, but as a legislator I believe it is important that we send signals to the community as to what is or what is not acceptable behaviour. I think it is appropriate that this Parliament does send a message to New Zealand families that marriage is important. We have suffered 6 years in this Parliament of quite dramatic social engineering. It is appropriate to send signals that reverse that trend.

I am not sure how relevant it is that we follow patterns of conduct advanced by those across the Tasman, but the reality is that this issue has been looked at very determinedly in the context of the Australian Federal Parliament and that this bill is virtually identical to legislation that was passed by the Australian Liberal, National, and Labor parties.

Finally, I conclude by noting what the Attorney General of Australia, Philip Ruddock, said during the second reading of the Australian bill: “The bill is necessary because there is a significant community concern about the possible erosion of the institution of marriage. The Government has consistently reiterated the fundamental importance of the place of marriage in our society. It is a central and fundamental institution. It is vital to the stability of our society, and provides the best environment for the raising of children.”

Hon LIANNE DALZIEL (Minister of Commerce) : This bill purports, first, to clarify that the parties to a marriage must be one man and one woman, and as has been said by at least one of the contributors to the debate tonight, the bill is completely unnecessary as it merely seeks to confirm the law as it already stands. To vote in favour of the bill would constitute a poor process and be a waste of Parliament’s time. Second, the bill also seeks to prevent overseas civil unions or gay marriages from being recognised as marriages in New Zealand. Again, that is completely unnecessary as our existing legislation is clear that such relationships cannot be recognised as marriages in New Zealand. The third aim of the bill is to ensure that active promotion of marriage is not discriminatory. That part of the bill is inconsistent with the New Zealand Bill of Rights Act, which is another reason to vote the bill down.

I turn first to clauses 4 and 6. I am not aware of any confusion over the existing law in relation to what constitutes a marriage. The Court of Appeal, in the case of Quilter v , has very clearly ruled that the Marriage Act 1955 applies to marriage between a man and a woman only. It is interesting that the Opposition member says that the Supreme Court may overturn that. I think he will find that the make-up of the Court of Appeal and of the present Supreme Court are somewhat similar. Under the Marriage Act as it stands, people of the same gender are unable to obtain a marriage licence, and any such purported marriage would not be recognised, or would be declared void. There is no confusion about the law. In light of that, clauses 4 and 6 are unnecessary, and consideration of them would not be a productive use of this House’s time or of that of a select committee.

Equally unnecessary is clause 5 of the bill, which seeks to prevent overseas civil unions or gay marriages from being recognised in New Zealand as marriages. Again, our existing law is very clear. No overseas marriage or civil union between two people of the same gender can be recognised in New Zealand as a marriage. The Civil Union Act 2004 passed by this House makes provision for regulations to be made to prescribe the types of overseas relationships that are recognised in New Zealand as civil unions but not as marriages. Consideration of clause 5 would again be a waste of Parliament’s time.

Clause 7 proposes that measures taken in good faith for the purpose of assisting or advancing marriage do not constitute discrimination. In his letter to MPs, Mr Gordon Copeland states that his intention is simply to allow faith communities and others to run marriage preparation and marriage enrichment courses. Unfortunately, the amendment he proposes has far wider consequences than that. I note that the Attorney-General’s report on clause 7 concludes that it unjustifiably limits the rights affirmed in section 19 of the New Zealand Bill of Rights Act: the right to freedom from discrimination.

Clause 7 would actually allow private individuals to impose arbitrary and exclusionary policies in the field of employment and in the area of goods and services. Such provision would discriminate not just against people in civil unions and de facto relationships but also against single people and people who are widowed or divorced. Such discrimination would flow down to affect the children of such relationships. It is unacceptable that children could be treated differently because of the nature of their parents’ relationships. The previous Parliament passed legislation that removed unjustifiable discrimination on the basis of relationship status. I believe that it would reflect badly on us if we were to turn back the clock by voting in favour of this bill. To do so would run contrary to a range of international and domestic human rights obligations.

My opposition to the bill is not a criticism of marriage. I am married myself. Marriage has an important place in our society. However, our laws need to be appropriately framed to recognise all the relationships that provide a supportive environment for the raising of children and the building blocks of strong families. Although marriage may be my preferred form of relationship, marriage does not have a monopoly on providing that. The strength of the relationship between the parents and the strength of their relationship with their children are absolutely fundamental. There is ample research to show that it is the way individuals in relationships and families interact, not the status of the relationship, that leads to successful outcomes for those families and for society at large. A man who beats his wife inflicts as much damage on her and their children as a man who beats his de facto partner. A loving, committed relationship between adults is what matters to children. As in all matters, it is the substance, not the form, that counts. The Government has committed to supporting families regardless of the legal status of the parents in the family, and they are entitled to the widest possible protection and assistance from any Parliament.

PETER BROWN (Deputy Leader—NZ First) : If I had any doubts about supporting this bill, the honourable member who has just resumed her seat certainly has squashed them all. I think it is absolute arrogance to stand in this House and say that clause 5, or clause 6, or whatever, is a waste of Parliament’s time. We are here, elected by the people of New Zealand, to listen from time to time to the people of New Zealand, and if they want this sort of legislation debated, then it is our task to address it. I can tell members that from the feedback I have had personally, there are many, many New Zealanders who want this bill at least sent to a select committee, and I would say that the vast majority of them want it passed. We need, in my view, to strengthen marriage in this country and to strengthen it by ensuring that it is confined to being a union between a man and a woman, a husband and wife. If the family unit is the backbone of this country, marriage is the backbone of the family unit. It has served this country well, and it will serve this country well for a lot longer.

I want to make it quite clear that New Zealand First has made this issue a conscience vote, and we are not all of the same mind. Some of my colleagues would agree that the current legislation is strong enough and adequate enough, but that is not to say that we all agree with that view. The majority of New Zealand First MPs want this bill referred to a select committee.

I heard Katherine Rich describe a supporter of this bill as—and I thought it was quite funny—a redneck, banjo-playing homophobic, or something along those lines. I thought that was good. I do not play the banjo but I do not know whether I might qualify on the other score. When Katherine Rich sat down she said she wanted to hear a lawyer’s opinion, and, of course, the No. 1 redneck, banjo-playing homophobic in the National Party, lawyer Mr Richard Worth, stood up and actually said exactly the opposite of what Katherine Rich said.

Dr Richard Worth: I raise a point of order, Mr Speaker. I have been misrepresented by the use of those epithets. Banjo playing has never been a strength of mine.

Mr DEPUTY SPEAKER: Thank you, Mr Worth.

PETER BROWN: I actually thought that that would be the case, because I know that the member is a sailor, exactly the same as myself—well, not exactly the same; in my day at sea I was a real sailor; he just played at the game.

The majority of New Zealanders, I suggest, want to see this legislation at least get to the select committee stage. That is the view that the majority of New Zealand First MPs share. I can tell members that a number of Christian people, church people, believe absolutely that this bill is essential to the family unit in the long-term future. I know that the Brethren financed—somewhat unwittingly, if we believe the National Party—many pamphlets to support National members and get them here. They want, to a man and a woman, this bill to go before a select committee. They financed pamphlets in support of the National Party getting here. Many of those members would not be here but for the actions of the Brethren. [Interruption]

They would not be here but for what the Brethren did, and they should in fact listen to them. They wanted those members here. Those members were prepared to listen to them when they came out with pamphlets. If the National Party MPs vote against this bill going to the select committee, they are letting down some of their core supporters. [Interruption] It does not take much to rile these guys, does it? Why can they not behave like that when Winston Peters is here, and show a bit of strength? Why are they all like little mice when Winston Peters is here?

In my view, and in the view of many New Zealanders, it is possible to see the state of marriage between a man and a woman challenged. The Civil Union Act is an Act for civil unionists, but it is possible that in the not too distant future—

Hon Maurice Williamson: I thought you were a “simple sailor”.

PETER BROWN: I am just a “simple sailor” and I see things in black and white. It is possible that two people of the same gender, married in some foreign place, may come here and challenge our system. I would not like them to succeed. I am totally supportive of this bill going to a select committee.

METIRIA TUREI (Green) : The Green Party is opposed to this bill, and we will vote against it as a party. Our party policy requires us to support the extension of all legal partnership arrangements and rights to same-sex couples as are afforded heterosexual couples. That includes not just eligibility in relation to parenting, for example, but also to marriage. We are very proud to stand here as a party and say that we support the elimination of discrimination in this country, and we will not support legislation to impose even more discrimination than we already have.

This legislation is entirely unnecessary, as my colleagues have expressed so far, and I certainly hope that at some point a man will stand up and defend same-sex couples in some form, because at this point only women have made any sense whatsoever in this House. Most important, this legislation is utterly discriminatory, whether or not we consider it unnecessary, and even the Attorney-General has said that the bill is inconsistent with the New Zealand Bill of Rights Act and is an unjustified breach of the freedom from discrimination afforded to all New Zealand citizens.

Sadly, but probably not surprisingly, I received today a piece of paper entitled: “Urgent Appeal to all MPs”, distributed by members of the Brethren. In fact, it is a flyer that sets out a whole lot of religious reasons why we should be legislating for discrimination in this country. I know that many Christians in New Zealand would be appalled to see this information being distributed to MPs. It is worthwhile noting that four members of the Brethren who are listed on this pamphlet—Andrew Simmons, Phil Win, Tim Lough, and Doug Watt—were members of the “secret seven”, who produced a pamphlet attacking the Green Party before the election. They were four members of the “secret seven”, who sent out a pamphlet containing lies and half-truths about Green Party policy. They distributed it around the country and hid their culpability and responsibility until they were finally exposed to the country by the Green Party. How disgraceful that United Future is promoting legislation to discriminate against New Zealanders on the back of this kind of support! It is very, very shameful indeed.

This bill is obviously a clear example of an expression of malice and prejudice against gay, lesbian, transgender, and transsexual people. Without a doubt, it is malice and prejudice. The bill extends beyond just asking that there be no valid legal recognition of marriage. By using the word “recognition” in the legislation it undermines all forms of recognition of the validity of same-sex relationships in the nature of marriage in all sorts of areas other than legal marriage. For example, in respect of income support and in respect of wills it would mean that same-sex couples would not be entitled to the same recognition that other couples have. That means, for example, that if someone’s will described his or her partner using the terms of marriage, say “husband” or “wife”, that person would not be able to obtain the benefits of that will because this bill would stop that person from doing so. So this bill goes way beyond just legal recognition of marriage in lawful terms, but right into other areas where this country, by its legislation and policy, has indicated it will not support that discrimination.

The bill legally broadens the discrimination against same-sex couples. The Greens will have no part of a bill that legislates for discrimination and hate in this country against a vulnerable and valuable sector of our community that deserves this Parliament’s protection, not its prejudice.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : My name is Hone Harawira and I am married to Hilda Halkyard-Harawira. Although I did not know it at the time, I now know that our marriage was conducted under the Marriage Act of 1955, which was reinforced by the Quilter v Court of Appeal decision that confirmed that the Act and status of marriage is between a man and a woman. So that is my own personal situation.

To clarify us as a party, the Māori Party parliamentary caucus is 100 percent married under the terms of the Marriage Act of 1955. In fact, one of our members so much believes in marriage that he has done it more than once. So I am hardly about to question the Act and the status of marriage within our own caucus. We are a man married to a woman, a man married to a woman, a man married to a woman, and a woman married to a man. That is our position as party.

From a Māori point of view I am obviously here because my tūpuna pretty much have the same points of view. Ever since coming here from Hawaiki those relationships, thankfully, have continued right down to where we are today. The Civil Union Bill, which caused a lot of angst when it was going through the House, and out there in the boonies, is what provides the framework and the mechanism for other relationships to be confirmed and given formal value. As Katherine Rich said, overseas people may make the decisions that are appropriate for them, as we have with the Marriage Act and the Civil Union Act. They are structures that validate the relationships that people wish to enjoy here, but under the terms of the Marriage Act 1955 marriage is to be consummated only between a man and a woman.

I am also a father. I am the father of seven children, and the grandfather, I am embarrassed to say, of only two. I do not ask my children what their sexual orientation is going to be, but whatever it is going to be it is not going to change in any way, shape, or form the love I have for them or for my grandchildren. The party does not think that bringing in another bill will make any difference whatsoever to the status I already have or to the status my children may wish to enjoy should they choose another lifestyle. That is important.

We discussed this issue in caucus and we were not all of the same point of view. I said to my caucus that as a father I want my sons and my daughters to grow up to realise what a marriage is, which is the relationship that I have with their mother. I want my grandchildren to grow up and have that same understanding. We have discussed it at depth. I am happy to say that I was considering tonight split-voting with my party on exactly what the position would be with us, and I cleared it with my co-leader, but I am more than happy to say that after discussing it with him and others, I stand in support of the Māori Party position in opposition to this bill. We are who we are. We have an Act that confirms that validity of our relationships, and we have a Civil Union Act that recognises those others.

CHRISTOPHER FINLAYSON (National) : Like Mr Copeland, I believe that marriage is a union between a man and a woman, and I could not support any attempt to amend the Marriage Act to accommodate marriages between persons of the same sex. Unlike Mr Copeland, however, I cannot support the Marriage (Gender Clarification) Amendment Bill. The reason is that it is misconceived. First, there is nothing to clarify—as the title states—because the law is clear. Same-sex marriages are not permitted under the Marriage Act. This has been clear since the decision of the Court of Appeal in Quilter v , not of the High Court as the explanatory note to the bill mistakenly states. That case held that the wording and the scheme of the Act could not accommodate marriages between persons of the same sex. The passage of the Civil Union Act has further clarified the position. That Act was a response to the decision of the Court of Appeal in the Quilter case. In those circumstances the law is clear, not uncertain. As the Greeks would say, why pile Pelion on Ossa?

Clause 5 is flawed. I think it draws on section 88EA of the Australian Marriage Act. The section states that a union solemnised in a foreign country must not be recognised as a marriage in Australia. Clause 5 of this bill impacts on conflict of laws rules on recognition of overseas marriages. The reason that we and other countries have such rules is to respect comity between nations. Under the Marriage Act certain formalised foreign marriages are deemed to have been as valid in New Zealand as marriages that are solemnised in New Zealand in accordance with the Act. In common law, other foreign unions will also be accepted as valid in New Zealand, subject to any public policy against such acceptance. Given the decision in the Quilter case, and the application of conflict of laws principles to validation of foreign marriages, a formal foreign same-sex union is most unlikely to be accepted as a valid marriage in New Zealand.

Clause 5 does not deal with issues of validity, but it denies recognition to foreign same-sex unions. Mr Copeland has not explained to the House what “recognition” means. There are examples in the common law where a relationship may be recognised as conferring some incident of marital status without validating the underlying relationship itself as a marriage. So the clause has a longer reach than is necessary merely to avoid validation of foreign same-sex unions, and it may undo other recognition of such unions. For those reasons, the Australian precedent should not be followed in this country. This is a difficult area of law—one that I think, in due course, will need to be dealt with at the international level. I think the Hague Conference on Private International Law, where New Zealand is represented, will need to address this issue. It is not an area where countries should move unilaterally for domestic political reasons.

Mr Copeland contends that the Quilter decision could be overturned as a result of foreign decisions that permit same-sex marriage. I do not think he is right, for the reasons I have given. He fails to understand that any challenge would have to be commenced in the High Court, then go to the Court of Appeal, and thence to the Supreme Court. To get a case through the system could take anything up to 2½ years. That would provide Parliament with plenty of time to legislate, if it was felt necessary. Some people, like my friend Mr Worth, say that the bill sends an important message to New Zealand families that marriage is important. With respect, I would have thought New Zealanders would know that without the need for Parliament to start sending legislative messages. In any event, I have an innate distaste for feel-good legislation. Messages of that kind should be left to priests and pastors. Some people contend that there is no harm in codification of the law. I have always thought it would be desirable to have a marriage and relationships code that brings together all statutes that deal with families and relationships, but I do not think piecemeal codification works—a point illustrated by this bill.

Finally, I want to say to Mr Copeland that we have all received correspondence in recent days from people who genuinely believe that same-sex marriage is just around the corner. In promoting this bill, Mr Copeland has mistaken the true legal position. As a consequence, he has caused many New Zealanders unnecessary distress. Same-sex marriage is not around the corner, for the reasons I have given, and relitigating issues that the House dealt with last year is not in the public interest. I oppose the bill.

JUDY TURNER (Deputy Leader—United Future) : I rise to speak in support of the first reading of the Marriage (Gender Clarification) Amendment Bill. When I was preparing for this speech I was reminded, strangely enough, of a conversation I had with Dianne Yates about the Animal Welfare (Restriction on Docking of Dogs’ Tails) Bill that she had sponsored. She explained to me that when researching the practice of docking dogs’ tails she discovered that an old attempt at tax evasion was the reason that dogs’ tails were docked—dogs were taxed and they were counted by their tails. Over time that practice has become a preference for those who breed dogs for showing. I mention that because it is the historical context of marriage that motivates me to support the codification of the Marriage Act.

When one strips away the modern constructs of Hollywood, the baubles associated with wedding days, and even the addition of religious involvement in the valuing of marriage by religious organisations, one comes up with the way societies originally managed and protected the human breeding pool, and protected the natural family environment for the nurture and raising of offspring. The current legal constraints around marriage still reflect this, which is why, currently, marriage firstly, is between two people; secondly, is heterosexual; and, thirdly, is not allowed to be incestuous.

Prior to the advances in birth control, getting married was all about having children. It was not just about consenting adults but about the beginning of a family. Marriage and parenthood, traditionally, were inseparable concepts. Both my mother’s and grandmother’s generation referred to “honeymoon babies” who were born 9 months after the wedding. So marriage was an arrangement between breeding-capable couples. Even as recently as 50 years ago the need to codify the Marriage Act would have been considered nonsense, because the link between breeding and marriage was an automatic assumption.

Today, with the advances of medical science—with contraception and new birth technology developments—the traditional boundaries of marriage have been challenged, and, in some jurisdictions, have been redefined. Single-sex couples are now able to employ these more recent technologies to construct new types of social parenting arrangements. Sperm and egg donors are now no longer just helping heterosexual couples with fertility challenges but are providing the means by which both un-partnered women and gay and lesbian couples can have children.

Social parenting arrangements were traditionally resorted to when natural parenting arrangements had fallen over for some reason, and they took the form of kinship care and adoption. Today, social parenting arrangements are many and varied, and it is not my intention in the time I have left to make comments on the desirability of those new trends. But I want to suggest that the medical and scientific climate around the provisions of marriage have changed considerably, and other jurisdictions are responding in a variety of ways to those changes. Members of this House, as elected representatives, need to decide tonight whether the voters who put them here want marriage preserved, as tradition makes clear, as a social convention for a man and a woman with the natural breeding potential that they represent, or whether their voters want them to leave open the options so that marriage can be applied to non-breeding arrangements.

The chance to publicly declare and celebrate commitment, and to afford legal protection, is now available through civil unions. Marriage no longer enjoys any form of elitist status, but it does still represent a distinctiveness that the voters who sent me to this House want to see preserved. So I will support the first reading and any consecutive readings of this bill.

ERIC ROY (National—Invercargill) : I take a call to state a few concerns I have and why I will be supporting the Marriage (Gender Clarification) Amendment Bill.

As a first principle, I say that this is members’ day. It is members’ opportunity to seek to enshrine in legislation things for which they are representing a constituency—or, certainly, that they have the impression they are representing. So I think this House has a responsibility to consider very seriously whether a bill such as this should at least pass its first reading, to give members of the public an opportunity to state their preference. We have heard from the member in charge of the bill, Mr Copeland, that 57 percent of New Zealanders would support this bill. I have no doubt that the figure is somewhere near that, whatever the exact nature of it. So I believe we do have a responsibility to give the public an opportunity to comment, by passing this bill in its first reading.

I make no claims to have any great knowledge of the law, and I listened with interest to both Katherine Rich and Chris Finlayson. They may well be right. So why would the public wish to see the Quilterdecision codified? I will summarise some of the comments that have been made in this debate. The Hon Lianne Dalziel stated that she would not be supporting the bill. One of the reasons she gave was that it could be discriminatory against the children of parents in a variety of relationships outside the norm. If, in fact, the Quilter decision stands, there will be no married same-sex couples upon which that discrimination will fall, so there is some confusion about that particular item. The Quilter decision is enshrined in a law report and it will not be changed. We had some contradictory, or at least ambiguous, comments from Lianne Dalziel. Then the Green Party member Metiria Turei got up and said she would not be supporting the bill, because she has a definite programme to ensure no discrimination in relationships. So it is exactly her plan to see marriage for same-sex couples. Is there any reason why, then, the public at large wants to see this matter codified?

I say that this bill is not wasting time, despite the claims of members. This is members’ day, and we are not wasting the Government’s or Parliament’s time. I have to say that, having being in this House for more than three terms, I have noted on the odd occasion behaviour that could be termed as wasting Parliament’s time. When we have a significant proportion of the public saying that we need actually to codify this matter in legislation, and that it needs an opportunity to speak to it in a submission process at a select committee, then this bill is certainly not wasting time.

Mr Copeland, the promoter of the bill, also mentioned situations where law reports in various countries had been overturned. I repeat that certainly the situations in Canada, South Africa, and the state of Massachusetts saw the expected outcome of law reports turned over. In times gone by, this Parliament has codified law reports to take all possible ambiguity out of a situation. I say that this is an opportunity for members to listen to what the public are saying, and if we are wrong, if the submissions overwhelmingly condemn this legislation, then what harm is done? We will have listened to what I believe a majority of New Zealanders are saying. I support the bill.

MARTIN GALLAGHER (Labour—Hamilton West) : I rise as a member of Parliament who has a very conservative voting record on these kinds of issues, as evidenced by my opposition to the Prostitution Reform Bill, to the Death with Dignity Bill, and to attempts to bring in Easter Friday and Easter Sunday trading, and by my recently taking over sponsorship of a bill to raise the drinking age. It is fair to say that, like a fellow conservative MP such as your good self, Mr Deputy Speaker, I supported the Civil Union Bill on the basis of compassion and fairness.

I also acknowledge and compliment the very fine contributions made by the senior National Party front-bencher Katherine Rich and her colleague Chris Finlayson, who I believe made very considered and worthy contributions to the debate tonight. I particularly reflect on the very wise words of the front-bencher Katherine Rich in terms of some of the debate around the Civil Union Bill and the effects of that debate, which certainly caused much pain and anguish to many New Zealanders and their families.

As a conservative I am opposing this bill for the simple reason that there is an old saying “If it’s not broken, don’t fix it”. Since the formation of a nation State in New Zealand, all legal forms of marriage have been between a man and a woman. I certainly agree that marriage is a bedrock relationship in our society, but I do not intend to support the Marriage (Gender Clarification) Amendment Bill, because I do not consider it to be a good use of Parliament’s time to restate what actually is, when so much new legislation needs to be dealt with.

This bill proposes to amend the Marriage Act 1955 by stating that parties to a marriage must be one man and one woman, and by forbidding marriage between persons of the same gender. The legal position, the facts, and the reality—what is—were clearly stated by the Court of Appeal in Quilter v in 1998. The Court of Appeal held that the Marriage Act 1955 applies to marriage between a man and a woman only, and that that restriction does not constitute discrimination. Therefore, I repeat that under the current law, two people of the same gender cannot obtain a marriage licence, and any such purported marriage would not be recognised in law and would be declared void.

The bill proposes to amend the Marriage Act to state that a union solemnised in a foreign country between two people of the same gender is not recognised as a marriage in New Zealand. No overseas marriage or civil union between two people of the same gender can be recognised as a marriage under New Zealand law. However, some of those overseas relationships may be recognised as civil unions under the civil union legislation.

As a conservative member of Parliament, I will also make a personal statement to this House—and I think my sentiment is shared by many others who are opposing this bill—that in the highly unlikely event that there was ever a successful legal challenge to the current law, then I certainly would support an appropriate amendment to the Marriage Act to reinforce the fact that the Act is solely intended for a male and a female in a committed relationship. I think it is highly unlikely that we will ever see that day, and I cannot see the point of changing or interfering with what is.

I simply restate: it is what is. Under the current law and, dare I say it, since time immemorial—since the formation of legal systems in this country—the Marriage Act has been intended for a man and a woman. That is the current state. I see no reason whatsoever to change it. I compliment, as I said before, some very considered and worthwhile contributions to this debate.

GORDON COPELAND (United Future) : I begin my wrap-up in terms of the debate on this bill by paying tribute to my former colleague Larry Baldock. It was Larry Baldock who drafted this bill and submitted it to the ballot. It was drawn from the ballot in his name and, but for the want of what turned out to be about another 50 minutes, it would have been voted on in the last Parliament. I want to say that as far as the people of New Zealand are concerned—and Larry Baldock listened very carefully to their voices, as I and others have—the reality is that tonight they are interested in only one thing, which is whether members of this House are prepared to affirm and confirm traditional marriage as being between a man and a woman. People will make their judgment in terms of that reality, depending on the way members of this Parliament vote tonight.

The fine legal arguments that were voiced here tonight, which sometimes were quite sophisticated or which sometimes had a degree of sophistry, are not necessary on a first reading; that is why we have a select committee process. Yes, there are issues in the wording of some of the subsidiary clauses of the bill that might need to be revisited in the select committee deliberation. But the big picture—the true intent and heart of this bill—is a very simple proposition: do people believe that marriage in New Zealand should continue for future generations to be strictly and only between one man and one woman? Once all the rhetoric that has been spoken here tonight has faded, and once all the bluff and bluster has finished, the people of New Zealand will remember one thing, and one thing only, from tonight: how members of this Parliament voted on this bill. Were they for marriage or were they against marriage? That factor will form the judgment the electors of this country will come to.

I believe firmly that marriage should, for all future generations of this country, remain a relationship between a man and a woman. Why do I say that? The reason is that marriage is a solid rock. It is a tradition that, as I mentioned earlier, has endured for generations. It is in the interests of creating stable, beautiful, adult relationships between a man and a woman. It safeguards the interests of children, particularly the right of the child—the right of every child—to have both a mum and a dad. Of course, there are many situations in life where that is not so. For example, solo mothers tell me to keep saying what I am saying, because their circumstances are not ideal and not the circumstances they wanted. They say that it is not great being poor or bringing up kids on their own. It is difficult and tough, and they only wish that their lives could have been different.

We need to continue to put that reality before this nation—that marriage is the best model. It is the best model for spouses, for children, and for society. If members in this House were serious about our appalling social statistics in terms of child violence, imprisonment rates, and fatherless families, then we—like people in Australia—would have no hesitation in saying that marriage was important. I believe that it is important that Parliament, this House, speaks with a clear voice. To those who say that Parliament should not have any say in this matter, I would ask them what on earth leadership is about. Is Parliament to give a lead on this matter or not?

Tomorrow, once the people of this nation know the names of members of this Parliament who voted for and against this bill, they will make their own judgment. They will express that judgment, as we all know, in the reality of the 2008 election. To those members who tonight decide to second-guess the many, many hundreds of thousands of people who specifically voted for their parties on the basis that those members would bring social engineering to an end—and I am particularly speaking now of the National Party, which has even appointed an eradicator of political correctness—I say that those people will find that disappointing in the extreme, and I believe that as a consequence we will see a great change.

We have not heard the last of this matter by any means. This issue will not go away, because the people of New Zealand want members to speak clearly. I appeal to Parliament once again tonight to speak with a clear voice and support this legislation.

ANNE TOLLEY (Junior Whip—National) : I raise a point of order, Mr Speaker. National will be voting on this bill by way of a split party vote.

Mr DEPUTY SPEAKER: I thank the member for informing me of that. That is a way we can proceed, and those parties that are voting by means of a split party vote will recall Standing Order 144(2) and deliver the names to the Table immediately after.

A party vote was called for on the question, That the Marriage (Gender Clarification) Amendment Bill be now read a first time.

Ayes 47 New Zealand Labour 1 (Field); New Zealand National 36 (Ardern, Auchinvole, Bennett D, Bennett P, Blue, Borrows, Brash, Brownlee, Carter D, Carter J, Clarkson, Coleman, Collins, Dean, English, Foss, Goodhew, Goudie, Guy, Hayes, Heatley, Hutchison, KingC, Mapp, McCully, Peachey, Roy E, Ryall, Smith L, Smith N, Tisch, Tolley, Tremain, Wagner, Wilkinson, Worth); New Zealand First 5 (Brown, Paraone, Peters, Stewart, Woolerton); United Future 3; ACT New Zealand 2
Noes 73 New Zealand Labour 49 (Barker, Barnett, Benson-Pope, Beyer, Burton, Carter C, Chadwick, Choudhary, Clark, Cosgrove, Cullen, Cunliffe, Dalziel, Duynhoven, Dyson, Fairbrother, Fenton, Gallagher, Goff, Gosche, Hartley, Hawkins, Hereora, Hobbs, Hodgson, Horomia, Hughes, Jones, King A, Laban, Mackey, Maharey, Mahuta, Mallard, Moroney, O’Connor, Okeroa, Parker, Pettis, Pillay, Ririnui, Robertson, Samuels, Street, Sutton, Swain, Tizard, Wilson, Yates); New Zealand National 12 (Blumsky, Connell, Finlayson, Groser, Henare, Key, Power, Rich, Simich, te Heuheu, Williamson, Wong); New Zealand First 2 (Donnelly, Mark); Green Party 6; Māori Party 3; Progressive 1
Motion not agreed to.