Waikato Rainbow Midwinter Christmas Lunch
18 July 2010

Ladies and Gentlemen, thank you for inviting me to speak with you today. 

There must be something special about Hamilton.  This is the third speech I have given here over the past year touching on sexual politics.  The first was in September last year, and urged those present to take an interest in such politics, because of the work that remains to be done.  The second was last month to the Agender Conference, and argued for the implementation of the Human Rights Commission Report, "To Be Who I Am".  In this speech, I want to continue the theme, and give some personal views  about the other two major areas of law reform required in New Zealand to ensure equality on the ground of sexual orientation - relationships, and the care of children.

These were topics on my mind when I spoke at the University last September, because I had just come from attending the 2009 Labour Party Conference in Rotorua.  One of the fixtures of the Conference is a breakfast event on the Sunday of Conference hosted by the Rainbow Sector and featuring a keynote speaker.  Last year, our speaker was the Deputy Leader of the Labour Party, Annette King.  In her address to the Rainbow Breakfast, she set out her view that these two were areas in which Labour would sooner or later be required by its guiding principles to set out a commitment to bring about formal equality.  Events since then have proved her comments to be prescient.

The law relating to the care of children in New Zealand is the first area where developments call for significant reform.   Acting Chief Judge of the Family Court Paul von Dadelzsen said in August last year that it was time to ensure that the 1955 adoption legislation was modified to allow for same-sex couples to adopt.  Apart from Peter Dunne, whom I intend to defeat at the next general election, saying that 'did not represent a mainstream view', there was little adverse reaction to the Judge's comment.  Indeed, most people probably think that same-sex adoption is already permitted. 

Last month, the High Court reminded us just how archaic New Zealand law is on this subject.  Twojudges, sitting as a "full court",  determined that the use of the term 'spouse' in the 1955 Act meant that heterosexual de-facto couples could legally adopt.  They could not do so previously.  The Court's interpretation was derived in large part from the requirement in the New Zealand Bill of Rights Act against discrimination on the ground of marital status.   Although there is a corresponding ban on discrimination on the basis of sexual orientation, the Court specifically declined to rule on whether couples in a civil union (straight or gay) could access adoption.  Failed amendments proposed by the Green Party during the debate on the civil union legislation late in 2004 mean that Parliament has specifically addressed the issue in the negative.  Similarly, the issue of whether a same-sex couple who have not civilly-unioned can adopt is unclear.

Taken with the fact that adoption itself has fallen from favour as a preferred legal means of caring for a child, since it severs the child's formal legal relationship with its birth parents, the High Court decision points to the need for thorough reform of the legal regime applicable to the care of children in New Zealand.   Whatever we call it, first and foremost, of course, what needs to be put in place is a system that always gives primacy to the interests of the child in need of parenting, guardianship or other adult protection and care.   But surely Parliament should be clear that one of the essential components of this regime should be that it can draw on the widest possible pool of suitable adults who desire to give these things to a child.  The sexual orientation of the adult should never be a consideration in making that assessment. 

I'm saddened that the present minister of Justice, Simon Power, ruled out a review of the Adoption Act in the wake of the High Court decision last month.   I'm also sad that our first gay Attorney-General, Chris Finlayson, has maintained silence on the issue.  It seems clear to me that this is an area of the law where reform is required, and not only because of the anomalies revealed by the High Court.  I think it is timely to explore the reform options.

The other area of reform mentioned by Annette King in her Rainbow Breakfast speech last year was relationship recognition law.   You all know that Parliament passed the Civil Union Act and its companion measure - the Relationship Property legislation - over 6 years ago.  The debate was acrimonious and the Civil Union Act became law by a narrow margin.  But law it is and thousands of New Zealand couples have since made use of its provisions to lend legal recognition to their relationships.

At the time, New Zealand's move was significant.  Only two other countries - the Netherlands and Belgium, had by the end of 2004 legislated for same-sex marriage.  Only eight others - Denmark, Norway, Sweden, Iceland, France, Germany, Finland and the United Kingdom - had provided for some form of registered relationship for members of the same sex. 

But since then, 9 further countries - Luxembourg, Andorra, Switzerland, Slovenia, the Czech Republic, Uruguay, Ecuador, Hungary and Austria - have legislated for some form of civil partnership.  Even more significantly, 8 more - Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland and just the other day Argentina - have legislated to allow same-sex marriage.  Additionally, the Federal District in Mexico, and the American states and territories of Connecticut, the District of Columbia, Indiana, Massachussets, New Hampshire, and Vermont permit same sex marriage.  

As for registered civil partnerships, in Australia: the ACT, NSW, TAS, VIC; in Mexico the state of Coahuila; in the US the states of California, Colorado, Hawaii, Maine, New Jersey, Nevada, Oregon, Washington and Wisconsin and in Venezuela the state of Merida have now all legislated for recognition.  Same sex marriage laws are pending in Nepal, Luxembourg, and Slovenia; and a civil partnership law is pending in Ireland.  

This means that some 31 jurisdictions (and counting) now perform same-sex civil relationship recognition, and 17 (and counting) will now marry members of the same sex.

It seems clear that a global trend is emerging in the states, territories and countries with which we like to compare ourselves in favour of relationship recognition.   A sub-trend has been that many of the 17 permitting marriage started off with relationship recognition laws and then 'upgraded' to marriage. 

For many, civil unions provide a welcome means for legal relationship recognition.  For others, there is the lingering feeling that 'separate but equal' does not quite "cut it", and that only full equality - the right to marry - will do.