Relationships (Statutory References) Bill

Part 2 includes debate on schedules 13A, 14, and 15.

In talking to Part 2, I note that there are some comprehensive schedules in terms of amendments to regulations that demonstrate the sort of thing I was saying in my principal speech about the difficulty and confusion that will arise in regard to not defining what a de facto relationship is. It starts with the definition in the provision that the Justice and Electoral Committee has added in clause 40, which inserts a new section 29A into the Interpretation Act. The new section 29A states that: “(5) In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union, the court or person required to determine the question must have regard to—(a) the context, or the purpose of the law, in which the question is to be determined; and (b) all the circumstances of the relationship.” In my view, the comment on the “context, or the purpose of the law, in which the question is to be determined;” will create huge uncertainty and a lot of confusion, particularly because it is not just the way that the courts will interpret the clause, but it is also which “court or person” will be required to determine it.

As we look at some of the regulations in schedule 15, we can see exactly what the consequences of the provision will be. How do we define the “context, or the purpose of the law,”? In the Alcoholism and Drug Addiction (Forms) Regulations there is provision for a de facto partner to sign a form that enables treatment of people who are afflicted with alcoholism or drug addiction. How can we say whether a relationship is a de facto relationship in the context of that legislation? Would we ask whether it is the alcoholic partner’s intention that his or her spouse may sign such a form? That is problematic in itself, because it may well be that the alcoholic partner is not happy about such a form being signed. So how do we determine whether, in the context of that legislation, it was part of the purpose of that couple’s de facto relationship that that right should be given to the de facto partner? That is the problem that we find ourselves with.

To take another example, in the Cremation Regulations, a de facto partner can sign a certificate to enable his or her partner’s body to be cremated. How do we determine whether, in the context of the Cremation Regulations, the parties were in a de facto relationship? What does that mean? In order to sign the certificate, the partner has to prove somehow that for the purposes of that legislation, the parties were in a de facto relationship. One of the problems we have for a start is that obviously the de facto partner has died and, therefore, is not able to make a comment as to whether he or she would have been happy for the other partner to sign a consent form for his or her body to be cremated. But what does it mean in that context? How does the court determine that the relationship was the sort of de facto relationship that would have enabled the certificate to be signed? What does it mean to state that one is a de facto partner for the purposes of the Cremation Regulations, but that one is not a de facto partner for the purpose of other things? For some things one is a de facto partner and for some things one is not.

When we look at the Government Superannuation Fund Regulations, there is the situation where the partner of a deceased contributor may receive a financial benefit if that person was in a de facto relationship. Under the new section 29A(5), that means that the person was openly in a de facto relationship in the context of the Government Superannuation Fund legislation. So how do we determine whether someone was in a de facto relationship? In this instance, the Government Superannuation Fund Authority has to determine whether a de facto relationship existed in that context. How will that happen? The new regulation 3(c) of the Government Superannuation Fund Regulations, inserted by schedule 15, states that the determination will be based on “… such evidence as the Government Superannuation Fund Authority may in its discretion require …”, but there are no guidelines.

What sort of guidelines will there be? The authority cannot even state that where the person has been declared to have been a de facto partner for the purpose of some other legislation, or where the social welfare authorities recognise the person as being in a de facto relationship, the authority can take that on board, because the legislation, as changed by the Justice and Electoral Committee, states that that consideration is irrelevant. It is the context of the Government Superannuation fund legislation that will apply in determining whether a de facto relationship exists.

The Health (Immunisation) Regulations require, among other things, a de facto partner to advise the school about the immunisation of a child. If a so-called de facto partner does not do that, and somebody comes along and says that the partner has contradicted the requirement to advise the school, will the partner then say that he or she is not in a de facto relationship for the purpose of those regulations? This legislation is a farce, and it will cause a huge waste of time and money for the courts.

I was struggling while flicking through a lot of these schedules. I took a call in the debate on Part 1 to say that the fact that de facto relationships were also introduced into the Property (Relationships) Act a few years back has quite complicated the present legislation. I was looking at the amendments to the Social Security Act in the schedules. We have started to introduce terms like “single” instead of using “unmarried”. I invite the Minister in the chair, Marian Hobbs, to take a call about the subtlety of using words like “single” rather than “unmarried”. Why does it need to be defined in that context? In an earlier schedule we have the term “woman alone”.

In order to ease my mind, since I am supporting this legislation, I feel responsible for ensuring that the technical amendments in the schedules are useful, and necessary for making sure that the legislation will work in the way it is intended. I want to make sure that no Government department will be confused because of the various terminology in use in these schedules.

I think it would be helpful for the Minister to take a call to explain to the public the difference between “woman alone”, “unmarried”, and “single”, why it matters, and how all those different terms that have been replaced in various legislation, like the Social Security Act, would need to be interpreted. I think that Parliament has a responsibility to make sure that numerous schedules of this type have the assurance of the Minister that all the i’s have been dotted and all the t’s have been crossed. After all, on previous occasions during the flurry of schedules, when everyone thought that there was nothing but technical amendments, invariably we have found that omissions happened by sleight of hand and suddenly Parliament was called back to put through amendments.

On a personal level, I am sure the public will share with me my feeling that it is interesting that we are looking at this legislation, which is quite controversial, because large sections of the community have misgivings about same-gender union and about the fact that we complicate the issue by having the State impose rights and obligations on de facto relationships. So I ask whether terminology like “single” replacing “unmarried” and “woman alone” causes added complications. I think the Minister in the debate on Part 2, which the Committee has just finished, demonstrated a willingness to give an explanation to the public. She said that she does not want to engage in debate on the pros and cons of relationships, but she is happy to explain, where the public is entitled to be reassured, that, in effect, all these schedules are amended appropriately and correctly. Once again, I voice my objection to the State interfering in de facto relationships as well as in marriage and civil unions.

In speaking to Part 2 of the Relationships (Statutory References) Bill, I say to the Committee that the Labour Government, which is passing this legislation tonight, should be upfront. It should be upfront not only with this Committee but also with the people of New Zealand, and I make that challenge to it. Labour members should be honest with the people of New Zealand and tell them that this is not the final objective in the Government’s long list of social engineering objectives, but is just the beginning. This is just the start. A Labour member over there is screwing up her face, but she knows that is true. The Government should be honest with the people of New Zealand and this Committee, and should say what its real agenda is. The Government, whatever its plan is, should at least be honest with the people of New Zealand. It should say that last year it passed a gay marriages bill—basically “civil union” is the same thing—and the Prostitution Reform Bill, and now it is passing the Relationships (Statutory References) Bill.

That has all happened at the same time as the Government is being kept afloat by United Future, which campaigned on the basis of family values, as one of my respected colleagues always says. He says that United Future is not just the family party but is the Clayton’s family party. The United Future members say they stand for families, but, when it comes down to actually standing for policies that support traditional family values, they are not there. They tell this Parliament that they will continue to vote for this Government and keep it afloat right up to the next election. That is what they say, and that is what they are doing. United Future puts advertisements in the newspapers week in, week out, month in, month out, stating that it stands for family values, when the leader and the deputy leader, who are pictured in those advertisements—

💬 Murray Smith: I raise a point of order, Mr Chairperson. We can take a little bit of criticism of United Future, but for the member to devote his whole speech to such criticism is way beyond the scope of this bill.

The CHAIRPERSON (Hon Clem Simich): Yes.

I am speaking to this part, and in particular I am speaking to clause 93, as far as the interpretation of the bill is concerned. I just want to say, before I specifically get on to another clause of the bill, that before I was interrupted I was saying that one has the leader and the deputy leader of United Future shown on those advertisements as standing for family values, but both of them voted for the first reading of this bill.

I say that when we are debating a bill such as this and speaking to parts such as Part 2, we should be upfront and honest with the people of New Zealand and say that they are implementing clauses 92A, 93, 94, 95, and 96, but that we have other intentions as well. The point I am making is that the parties that support this Government should be upfront and honest with the people of New Zealand.

I rise to debate Part 2. This bill changes around 100 other Acts to give meaning to the Civil Union Bill that was passed before Christmas. Part 2 is a very small part that amends regulations. Part 1 was the amendments to other Acts, and the regulations that are amended in this Part 2—it is only about one page long—are the Family Courts Rules and the Property (Relationships) Forms Regulations. Members will remember that the Property (Relationships) Act was the Act that replaced the Matrimonial Property Act. It was the Hon Margaret Wilson’s gift to New Zealand in 2002 when the status of de factos was made, in her claim, clear, when she extended the rights of matrimonial property to de factos. The regulations we are looking at here are the regulations that implement part of the Property (Relationships) Act that came into force in 2002.

What the bill does is remind us of what has not been changed in the property relationships law. These changes are essentially mechanical. They insert “civil union partner” wherever one sees “partner” or “spouse”. Previously, of course, in that bill alongside “spouse” we had added in “de facto”. So it means that the Property (Relationships) Forms Regulations now include “spouse”, “civil union partner”, and “de facto partner”.

This bill should have been removing—if the Justice and Electoral Committee had had the courage to carry through the scheme of what it did when it got this bill—the references to “de facto” in much of the Property (Relationships) Act and regulations. We should have been acknowledging that there was a big mistake made in 2001. The term “civil union partner” should have stood alongside “marriage partner” once the decision was made by Parliament in December. But “de facto” should have been treated as quite different for the purpose of the Property (Relationships) Act. The Property (Relationships) Act should have gone back to being something that people could freely opt into if they wished, but not something that people were opted into without consent or without even knowing it, by the Government.

Alternatively, this part of the bill could have tried to have a better definition of “de facto”. If de facto couples were going to be compulsorily married so that they had to share their property, the bill could have tried to sort out the kinds of de facto or the types of de facto relationships where sharing might be what the parties would reasonably expect. For example, this might have related to couples who lived together for 3 years, and where the party with the assets had either not expressly said they did not want it to happen, or the party without the assets was the one who was responsible for the children. At the moment it can probably cost up to $2,000—the Law Society told us $600 per person, but somewhere between $1,000 and $2000—to opt out of the automatic property sharing in the Property (Relationships) Act.

I think this part amends the forms that were supposed to represent a very simple standard form contract to allow people just to look up the regulations, sign that contract, and have the opt-out done. Well, that was sabotaged by the Minister and the officials in the Ministry of Justice. When that form of simple contract was drafted, it did not achieve the objective. In fact, it was drafted in a way to negate what the committee had intended. I think I ought to know what the committee intended, because it was my idea in the committee, and I have to say that I feel embarrassed by the way it was implemented. I should have realised how bloody-minded the Minister would be about that particular part of the Act.

It was a simple concept that competent adults can be deemed to know what they want, and if they want to share their property as married people, then we would take them to mean sharing when they got married, and now when they enter into a civil union, but that when they entered into a de facto relationship they were deliberately intending not to take on the property consequences of marriage. What the form in the regulations for opt-out should then have provided was a simple form to fill out to confirm that. If we had to have the automatic deeming, then we should have had very straightforward opting out. We do not.

The position should have been the same for married couples who wanted to retain their financial independence. Though there is nothing untoward in treating people getting married or entering into a civil union as if they are choosing to share their property and their assets from the date of their marriage, equally, as adults, it should not require them to have to go along to lawyers and get lawyers to certify that they know what they are doing if they sign a simple and straightforward form to the contrary set out in the regulations to the Act.Well, they cannot do that. They still have to get lawyers and the lawyers will tell them that the form is so rudimentary that it would not be worth using. The lawyers will tell them also that the Property (Relationships) Act allows the court to second-guess them. It allows the court to decide that things have changed and that all bets are off. It allows people to renege on their deals when they may even be the only thing that reassured a party enough to let them get married or to live together in the first place.

There was an odd assumption even in the way in which the select committee considered those matters. It kept talking about those regulations, rights, and obligations as if somehow they were protecting someone in a relationship. More likely, in many cases in property relationships they were actually burdening someone. Often it is the woman in a marriage, or a previous relationship, who has managed to protect the family house—particularly as women tend to take the children more often—saved her money, and ends up in a relationship looking at any new partner with deep suspicion. The new partner stepping into a relationship with children automatically gets the benefit of the property relationships, property sharing, and, in fact, can go gold-digging from day one.

Women should have been protected from that by being treated as if they knew their own minds. This part could have had a revocation of that deemed automatic sharing that would probably mean that the people least likely to form new long-term stable, committed, companion relationships are, in fact, the people who need them the most. They are the people who are trying to rear children on their own. They are the people who ought to be able to rear children and invite someone into their life without fearing that they are there to take the house. A woman should be able to enter into a relationship without needing $2,000 to get a lawyer to tell her that she is safe and that she will not lose her house second time around. They are the people who should not be told by lawyers that they cannot give them any guarantee, because they do not know what the judge will say when their partner wants to renege on the deal. They can sign it solemnly and they can certify that both of them understand it, yet the court can still renege.

If the select committee had the courage of its own analysis we would have included in this part a revocation of the offending parts of the Property (Relationships) Act and we would have had the gratitude of possibly 200,000 people in couple relationships across this country. We would not have needed to throw the entire scheme out. We could have made it plain that the courts, for example, must take into account the expectations parties have that when they do a deal as adults, it will be upheld. We could have had a compromise position on this. If the Labour members could not bring themselves—

I move, That the question be now put.

Motion agreed to.