Mackey Moana: Marriage (Definition of Marriage) Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Mackey Moana: Marriage (Definition of Marriage) Amendment Bill — In Committee 
[Sitting date: 27 March 2013. Volume:688;Page:9028. Text is incorporated into the Bound Volume.] 
MOANA MACKEY (Labour) 
: 
 I am happy to be filling in for my colleague Louisa Wall who cannot be here tonight. I was also happy to be a member who sat in on the Government Administration Committee for the passage of this piece of legislation the Marriage (Definition of Marriage) Amendment Bill. Can I first of all thank members for their interest in this debate and the tenor in which the debate is being carried out and for the Supplementary Order Papers that people have drafted. I appreciate that they have been done in the full sincerity of trying to get the best possible law that we can and I am hoping that my contribution may actually be able to provide some clarification because I think we are actually a lot closer than members might believe in terms of being in agreement on a lot of these issues. 
The Government Administration Committee worked very very hard on the issues that have been raised both in speeches and in Supplementary Order Papers because we knew that when dealing with the area of the New Zealand Bill of Rights Act and the Human Rights Act we had to be very careful about the wording. We had to be very careful about unintended consequences that might come from drafting that has not had that kind of consideration given to it and that is how we came up with the wording that we did. 
So if I can move first to the main issue that people have been raising which is the protection of religious freedom and the concerns that Churches and religious organisations might be forced against their own beliefs to marry gay couples. Well members may or may not know that section 29 of the Marriage Act which has been in place since 1955 actually states that “A marriage licence shall authorize but not oblige any marriage celebrant to solemnize the marriage to which it relates.” That has been in place since 1955. There has not been an issue with that at all—not even since the civil unions legislation was passed in 2004 has this ended up going into some kind of legal stoush. 
But concerns were raised that the refusal to solemnise on the grounds of sexual orientation might breach the Human Rights Act. The Human Rights Commission which is the body that would investigate any such claim has said that it would not uphold a complaint of discrimination against a celebrant who declined to solemnise a marriage. So that is in place there as well. So there is that protection of section 29. But to put it beyond doubt because we recognised the genuine concerns that were being raised by submitters the select committee actually proposed an amendment to make it clear—because we appreciate that the Marriage Act pre-dates the Human Rights Act and the New Zealand Bill of Rights Act—that in this day and age we do not believe that freedom of religious expression should be overruled by this piece of legislation and that any celebrant acting on behalf of or appointed by a Church can refuse to marry any couple if to do so would contravene their religious beliefs. We deliberately included celebrants in that so this applies not just to religious ministers but to celebrants who are associated with those religious organisations as well. 
So the issue has now come down to what we call independent celebrants who are not acting on the authority of any Church. I want to remind members of the very important distinction between the role of the Church and the role of the State here. Religious celebrants are acting on behalf of the religious organisation to which they belong and the State. Independent celebrants are acting solely on behalf of the State. I want to direct members to section 5 of the New Zealand Bill of Rights Act. This is the official information that we got from officials which says that indeed it does allow rights affirmed under the New Zealand Bill of Rights Act to be justifiably limited. Accordingly: “An exemption could be justified where it would be contrary to their 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.” 
That separation between Church and State is very important because if we now say that these public servants effectively who are carrying out a public function are not subject to the Human Rights Act then what does that say for the civil servants who work in the Department of Internal Affairs for example issuing the marriage certificates? What the select committee did was we left the door open to those celebrants who do have firm religious beliefs to go to their Church and have their Church appoint them as acting under its authority. That way they are given the full protection of this new clause that the select committee has put in. So I believe we have covered off that issue very very carefully and I would be concerned if we were to vote up amendments that might muddy that because it was a very deliberate decision to not only make a separation between Church and State but to provide an avenue for those celebrants who are currently independent and who want to be able to exercise their own religious beliefs and their own religious freedoms. 
And can I just point out an issue of reality which is that this is unlikely to be a problem. On one of the most important days of your life I do not think that any couple is going to want to have someone presiding over their ceremony who does not want to be there and who is there only under the threat of legal action. That is why this has never been an issue since 1955. It has not been an issue since the Civil Union Act came in in 2004. I do not believe it is going to be an issue going on into the future. I accept the principle of the matter but in reality I do not believe that anyone is going to be under the genuine threat of prosecution. 
So we come to the issue of the use of church buildings and the ability to refuse to supply facilities or services. Can we be clear that churches will not across the board be required to provide their facilities for same-sex marriages if this bill passes. I want to read to members from the Human Rights Commission opinion on this. It said: “In part this reflects the fact that religious ceremonies and services are not an area of public life covered by the [Human Rights Act]. Similarly ceremonial or consecrated spaces or any other religious premises that are not made available for the public to hire are not covered by the [Human Rights Act]. However when religious organisations provide goods or services or accommodation to the public they are held to the same non-discrimination standards as others.” This was actually backed up in the legal opinion of Family First. 
So the idea that this is going to be carte blanche and that everyone has to provide their facilities is not true. Can I say to members that it has been the law for 20 years that if you provide a commercial service you must do so in an anti-discriminatory way. You may not discriminate on the grounds of sexual orientation. If members want to do that then they should put forward a bill to amend the Human Rights Act which is actually where this sits not the Marriage Act. It is a major winding back of our human rights legislation if we now say that the law that has been in place for 20 years where we have not had any issues is now going to try to be wound back by an amendment to the Marriage Act. 
Can I then come to the issue of freedom of speech and the concerns that the passage of this bill may mean that some people cannot express their views on gay marriage. One thing that came up was that there is section 56 of the Marriage Act—which none of us I believe knew existed—which makes it an offence to deny the validity of someone’s marriage. There were fears that this could be used against those who now recognise the validity of same-sex marriages. Well it has never been used. This penalty has never been exercised. It is a “100 pound” fine and the select committee basically said: “Let’s get rid of it. It’s no longer appropriate.” so members do not need to worry that section 56 may be used against people who speak out against same-sex marriages. 
If I could move on to the issue of the referendum and the Supplementary Order Papers that are in place the Rt Hon Winston Peters said that we are saying you can have a referendum on asset sales but not on this issue and I want to say absolutely that that is not the case. Yes you can have a referendum on this issue but there is a process that we go through in this country to initiate referenda. That is absolutely open to members who oppose this bill just as it was to members who oppose asset sales. What the Supplementary Order Papers are actually asking we do is to bypass that process to override that process that is currently in place. From my own personal view I do strongly believe there are some issues that should not be determined by a referendum and I do not believe that the rights of any minority group should be subjected and upheld only on the will of the majority. 
 Members mentioned Switzerland where they do these issues by referenda all the time and as a result women did not get the vote until 1971—1971. I want to tell members the reasons that were given at the time were that men and women are fundamentally different—men and women are fundamentally different! On the Federal Department of Foreign Affairs website they point out saying— 
The CHAIRPERSON (H V Ross Robertson) 
: Order! I am sorry to interrupt the member. Can I just remind members that you can interject on the speaker who has the floor but you cannot interject on each other when you do not have the floor. If you want to do that then it is not done in this place. 
MOANA MACKEY 
: What the department said at the time—one of the reasons given as to why women should not be given the vote—was that “... it wouldn’t promote equality because their natural modesty would stop them going out to vote when pregnant and since rural women have more babies than those in towns this would give an unfair advantage to the latter.” So I think there are some intrinsic dangers in putting an issue like this to the vote at a referendum. 
More generally I want to address the issue that a number of people who have emailed us have talked about and that is children and what this might mean for children. I think we all agree in this Chamber that marriage does afford benefits both legal and social. It provides stability. My question to members would be: why should every child in this country not have access to those benefits? Why are we saying to children who are currently living with parents in same-sex relationships—they are there now and if this bill does not pass that is not going to change—that they do not get the full protections and benefits of marriage because some adults disagree with the relationship that their parents are in? I think if we are looking at the rights of children in this country then this bill actually does afford more legal rights and protections as well as social protections and stability to those children who are being raised in those families. 
In terms of other matters—very quickly—this bill will address an issue for transgender people who when they go through that process have to annul their marriage or choose to remain listed with their original sex on their birth certificate which puts a number of them in a horrible situation. This bill will address this. Some members say that some gay people do not want to marry; that is true. They do not have to do it. But if they do not do it it will be because they choose not to do it not because the State knowingly and deliberately excludes them from the institution.