Finlayson Christopher: Marriage (Gender Clarification) Amendment Bill — First Reading 
Finlayson Christopher: Marriage (Gender Clarification) Amendment Bill — First Reading 
[Volume:628;Page:672] 
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  
Attorney-General 
 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.