Smith Murray: Relationships (Statutory References) Bill — In Committee 
Smith Murray: Relationships (Statutory References) Bill — In Committee 
[Volume:624;Page:19081] 
MURRAY SMITH (United Future) 
: 
 The last comments from New Zealand First showed its desperation and its lack of potency in being able to do anything during this term of Government. That is a situation that is very likely to continue in the next term. 
I will support Stephen Franks’ amendment and some of my colleagues will support it also. Once again it has come from Stephen Franks unfortunately at late notice—only today—but because there will be a conscience vote we will fortunately have some flexibility in being able to do that. Sadly others are away from the Chamber and we will not be able to get their proxy votes in time. If Stephen Franks had given us a bit more notice we might have been able to provide a bit more support. 
Same-sex relationships are regarded by many New Zealanders as being wrong. The Human Rights Act provides instead that the people who believe that same-sex relationships are wrong are wrong. That turning-over of what is reality is what is wrong with the legislation. The Human Rights Act turns those people who believe one thing into the ones at fault because they believe that the other thing is wrong. 
Most New Zealanders accept that people’s personal choices are theirs to make so are very accepting of those choices including the choice to be homosexual. However when those choices impact on other people’s freedoms and in particular on the freedoms of others to be able to disagree with those points of view and to act accordingly that is where things really get turned upside down and go quite wrong. 
In terms of the specific provision where Stephen Franks is looking to remove marital status as a form of discrimination I concur with my colleague Paul Adams in relation to the Doha Declaration on the Family that the United Nations recently passed which specifically spells out that States should encourage and promote marriage. How can one encourage and promote marriage without at the same time suggesting that marriage is a preferable form to other forms of relationship—and in that respect to provide discrimination? 
The United Nations is really starting to turn around in terms of its attitude towards those issues of human rights and I think it is time our country did as well. It is really a tragedy and an indictment on this Government that we were one of the very few countries that was not prepared to support that Doha declaration. That shows how liberal we are in the face of most Western countries and indeed probably all Eastern countries. 
The key point I shall address at this time is the definition of de facto and the changes made by the Justice and Electoral Committee. I believe that the committee got this horribly wrong and that its rationale at the end of the day really does not make sense. It has tried to correct a different problem from the one that it thought it was correcting. 
It seems to me that once again this is something the Greens have been pushing for. The changes were at very late notice. Similarly with the Civil Union Bill the proposed clauses stating that the intention of civil unions was to provide for exclusive lifelong relationships were removed and that seemed to have been a requirement of the Greens for providing their support. Once again the late notice about that—the fact that those changes were made at the eleventh hour in the committee without much warning and after we had debated the alternative for a lengthy period of time—suggests to me that that there was a Green initiative. In particular the Green speech tonight seems to reinforce that. 
Clause 40(4) as it was in the bill was effectively a very good measure. It codified the way the common law had been going. Contrary to what Sue Bradford said the courts had never said that that was a check list; in fact they had said the opposite. They said that the criteria set out in what was clause 40(4) were not to be regarded as a check list but merely as a list of factors. The clause stated before it was struck out by the select committee: “In determining whether 2 persons live together as a couple all the circumstances of the relationship are to be taken into account including any of the following matters that are relevant in a particular case: (a) the duration of the relationship: (b) the nature and extent of common residence: (c) whether or not a sexual relationship exists: (d) the degree of financial independence or interdependence and any arrangements for financial support between the parties: (e) the ownership use and acquisition of property: (f) the degree of mutual commitment to a shared life: (g) the care and support of children:” and “(h) the performance of household duties:”. 
That is where Australian and New Zealand case law had got to. That is where courts were when looking for consistency when asking how they ensured that their decisions were consistent one with another in being asked to judge whether a relationship was a de facto relationship. When the courts ask how they can be consistent from one judgment to another they will inevitably develop their own factors to be taken into account as a guideline for future cases. So the fact that the select committee has not put that subclause in the bill will not stop the courts from using it. The pity though is that we then wasted an opportunity of taking the numerous cases there have been and of codifying the direction the courts had come to. 
The select committee said it wanted to take out that codification those guidelines and instead to say under clause 40(2) that a de facto relationship is a “relationship between two people … who—“(a) live together as a couple in a relationship in the nature of marriage or civil union; and (b) are not married to or in a civil union with each other; and (c) are both aged 16 years or older.” The committee wanted to insert a provision to say that in determining whether two people lived together as a couple then the court in determining the question must have regard to the context or the purpose of the law in which the question is to be determined in the circumstances of the relationship. 
The committee’s justification for doing that was because it felt that in different situations and under different legislation there would be de facto relationships in some instances and not in others. It said that in some instances the law casts a wide net for example to ensure that declarations of conflict of interest capture all parties and in other instances with regard to the changing of rights or vesting of property courts can require that those are enacted in ways that usually require a conscious decision to take up those rights or obligations. 
So the committee is saying that in the context of this specific legislation one needs to determine that in one context this is a de facto relationship but that it may or may not be a de facto relationship with regard to any other piece of legislation. Should the question arise for example of whether a partner should be able to sign a cremation certificate if he or she is in a de facto relationship the courts will say that they will have to look at the context of the bill and the context of the relationship before they can determine whether the relationship is a de facto relationship. To see whether a partner in a de facto relationship has a right to receive benefits like the Government Superannuation Fund we have to look at the Act and look at that particular relationship. 
What should be happening is that the courts should be allowed to determine that a de facto relationship exists but then to ask what terms of the relationship were agreed upon rather than making a decision and saying that for the purpose of this legislation it is a de facto relationship and for the purpose of that legislation it is not. That will leave a wholly confused situation. Not only will we be caught but people like Government Superannuation Fund trustees or whatever board that makes decisions as to whether grants should be had will also have to go through the process. They cannot rely for example on a court determination that a de facto relationship exists in a particular case because not only is that particular declaration not binding it is not relevant to whether it exists with regard to the Government Superannuation Fund. 
Instead of looking at whether there is a de facto relationship we should be considering the substance and extent of the relationship so that the courts can say: “Yes there is a de facto relationship but there was no agreement to share financial resources and therefore the social welfare provisions should not apply to it.”—that is what Ruka tried to do—or the courts can say: “Yes there’s a de facto relationship but there was no intention between the parties to allow Government superannuation benefits to be passed on in terms of all the circumstances and therefore the terms of the relationship should not allow for Government superannuation benefits to be passed on.”; or “Yes there’s a de facto relationship but it was not intended that the other party should make decisions in regard to cremation. Therefore the de facto relationship terms do not include that.” It is not a question of whether it is a de facto relationship— 
Sitting suspended from 6 p.m. to 7.30 p.m. 
MURRAY SMITH 
: In summary I say that the select committee has effectively removed the ability of courts or of any other persons to define whether a de facto relationship actually exists because whether it exists depends on the particular legislation that is being looked at. Depending on that legislation it will be deemed to be a de facto relationship for some purposes and it will not be a de facto relationship for others. 
The select committee by majority said in the commentary on the bill: “Although this leaves a degree of uncertainty most of us believe that the ability to tailor the definition to the purpose of the law is preferable to courts struggling to stretch a common definition across a variety of contexts.” So we will get into situations where we will not know whether a person is legally in a de facto relationship at all. People may be in de facto relationships for the purpose of one bill; they will not be in a de facto relationship for the purpose of another bill. 
What should have happened is that the original clause 40(5) should have stated that in determining whether a particular statute applied the intentions of the parties in the de facto relationship should have been given prominence.