Auchinvole Chris: Marriage (Definition of Marriage) Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Auchinvole Chris: Marriage (Definition of Marriage) Amendment Bill — In Committee 
[Sitting date: 27 March 2013. Volume:688;Page:9041. Text is incorporated into the Bound Volume.] 
CHRIS AUCHINVOLE (National) 
: 
 I had not intended to speak particularly about the referendum but I will in fact start with that. I am opposed to referenda as a system of decision making in this type of Government but the proposal to have a referendum is in keeping with New Zealand First’s tradition with its practices. That is what it does I respect it for that and I think it is very sincere in promoting a referendum in this case. New Zealand First has always liked referenda even though it does not always benefit from them. I think of the Rt Hon Winston Peters and I think it was compulsory superannuation when there was a ghastly result to the referendum. You know it takes courage. One can hardly complain about New Zealand First putting forward that proposal and I am sure those members will all vote for it. I will not. The reason I will not is that I am very conscious in my mind that the law should not be used to exclude people nor should referenda be used to exclude people and I think that could be the result of using a referendum in this case. We have heard that it is recommended because it will involve people. What it will not do is inform people and this is a case where you really do I think need a lot of information in order to come to any sort of sensible decision. So a referendum in this case would of itself be divisive and opinion-driven no matter which way the result might go. 
The purpose of our being here is to legislate based on the information we have considered. I was deeply grateful to Moana Mackey my colleague at many a select committee meeting for her presentation of facts this evening. It did I feel set things in context very clearly. But in this respect I completely understand the Supplementary Order Papers to the Marriage (Definition of Marriage) Amendment Bill that are coming forward because they are reflecting exactly the same sequence of thought processes that the Government Administration Committee went through as a select committee. The difference is that they have come in at this stage without the benefit that we had of a number of weeks to carefully consider which parts of the bill the amendments should be directed to. In regard to the Supplementary Order Papers may I compliment the work done by Su’a William Sio and the way his Supplementary Order Paper 202 was presented. Again I would like to say to that member that I have no doubt about the sincerity with which he approached the task. However if I may I have a few arguments against the provisions that have been put forward. 
The first one is about the celebrants religious and independent. This was not something that we treated lightly at all. The select committee fully investigated this section section 29 of the Marriage Act. Its amendment in clause 5A I consider best reflects the advice that we received on this issue. The current amendment to section 29 as recommended by the select committee already provides stronger protection than has been there before. A triple protection is really not going to achieve anything other than increase the chances of litigation. If you look at section 29 of the Act it is pretty sort of general in that you may but are not obliged to conduct the wedding. And we made it a little bit more specific for religious people but if you then go further again you are becoming more and more specific and specificity introduces new opportunities for litigation. Honestly do you really think that people want to lawyer up reach for their lawyers—“What are you doing reaching for your lawyers?” “Well I am intending to get married so I must sue someone.” I do not honestly think it will be like that but we made provision for it. 
Basically the Act needs to be read consistently with the New Zealand Bill of Rights Act and the Human Rights Act. I am surprised that we have Supplementary Order Papers suggesting that those Acts should be negated. What is it you want to do that avoids those? The Ministry of Justice expressly stated in its advice to the select committee—and we were very impressed with the quality of service we got from the ministry officials—“We recommend that the exemption extend to religious bodies and approved organisations but not to independent marriage celebrants or registrars. A key purpose of religious bodies”—and I think this is very important—“and most approved organisations is to promote religious beliefs.” There is something that lawyers will understand much better than I do and that is a hierarchy of purpose. The advice continues: “Section 5 of the NZBORA allows rights affirmed under the NZBORA to be justifiably limited. Accordingly an exemption could be justified where it would be contrary to the recognised purpose of religious bodies and approved organisations to require their celebrants to solemnise certain marriages. In contrast independent marriage celebrants and registrars are appointed by the Registrar-General to perform a public function not to promote their own religious or personal beliefs. It appears unlikely that they could lawfully refuse to solemnise a marriage on religious grounds under s 5 of the NZBORA.” The select committee extended the exemption for religious bodies and approved organisations in section 29. 
When we look at the call in Supplementary Order Paper 202 for freedom of expression it says: “no challenge may be made under any Act to the lawfulness of the following conduct by a person or organisation provided that the conduct is based on the belief or conviction that marriage should be the union of a man and a woman:”. I have a few problems with this one because the select committee has in clause 5B removed section 56 of the Marriage Act which made it an offence to question another’s marriage. The removal ensures that no person can be convicted of expressing such a view. Incidentally there never was a prosecution under that section. I have some problem with the drafting of this particular recommendation because what it does say is that “marriage should be the union of a man and a woman:”. It does not add “exclusively”. You could easily add after that “or two people of the same gender”. So I think the proposals are from a drafting point of view riddled with difficulties especially when we start talking about the need to identify the genders and just who is going to do that sort of thing— 
Hon Ruth Dyson 
: Oh enough. 
CHRIS AUCHINVOLE 
: Yes exactly: enough. We do not need to start thinking in that direction. But that is one of the difficulties about introducing specific requirements against the bill as it is. 
The use of premises for marriage: what we understand from the Supplementary Order Paper is that “no challenge may be made under any Act to the lawfulness of a refusal by a religious body or approved organisation to allow premises (being premises that are occupied and used by the body or organisation for or in association with its religious purposes) to be used for or in connection with a marriage that is not a marriage between a man and a woman.” There is a fundamental difference between private and public spaces. We do not leave it to churches and organisations to determine whether they sell their services or not. We should leave the bill as it is. It protects religious freedom and the Human Rights Commission has been clear that there is a distinction between private and public places. 
I really understand where these submissions are coming from. I understand the impulses that have brought them forward. It is not strange to members of the select committee. We have been through the same processes. I think given time people will come as Moana Mackey said pretty much fairly close to where we have been. I think we can move forward and trust the bill. We should pass this bill. Thank you.