Complex technical issues in drafting of same-sex Marriage Bill

The Law Society says there is a need to consider some technical drafting matters in the bill which would legalise same-sex marriage.

The head of the Law Society’s Law Reform Committee, Professor Paul Rishworth has presented the Law Society’s submission on the Marriage (Definition of Marriage) Amendment Bill to Parliament’s Government Administration Committee.

If enacted, the Bill would introduce same-sex marriage. Professor Rishworth has told the select committee that members of the Law Society hold a range of views on that matter and the Law Society neither opposes nor supports the changes to the definition of marriage.

Instead, the Law Society submission is directed to a technical point of legislative drafting that Parliament needs to consider.

The proposer of the Bill said that the Bill was not intended to compel marriage celebrants to perform marriages contrary to their religious beliefs. However, in the Law Society’s view, Professor Rishworth says it is arguable that marriage celebrants who refuse to perform same-sex marriages will be acting unlawfully under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, or both.

“We want to highlight arguable conclusions which seem to be at odds with the settled intentions of the Bill’s drafters. Whatever the position, the Law Society believes it makes sense to put the matter beyond doubt,” Professor Rishworth says.

The question which must then be considered is how wide any exemption would need to be. Professor Rishworth says the Marriage Act currently distinguishes between a “minister of religion” and other marriage celebrants. The select committee will have to consider whether any exemption applies to all marriage celebrants or just to ministers of religion.