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Births, Deaths, Marriages, and Relationships Registration Amendment Bill (Consistent) (Sections 19, 21) [2006] NZBORARp 51 (17 November 2006)
Last Updated: 13 January 2019
Births, Deaths, Marriages, and Relationships Registration Amendment Bill -
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17 November 2006 Attorney-General LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
BIRTHS, DEATHS, MARRIAGES, AND RELATIONSHIPS REGISTRATION AMENDMENT BILL
- We
have assessed whether the Births, Deaths, Marriages, and Relationships
Registration Amendment Bill (PCO 5516/29) is consistent
with the New Zealand
Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand
that this Bill will be considered
by the Cabinet Legislation Committee on 23
November 2006.
- We
have concluded that the Bill appears to be consistent with the Bill of Rights
Act.
- In
reaching this conclusion, we have analysed potential issues of inconsistency
with sections 19 and 21 of the Bill of Rights Act.
Our analysis of these
potential issues is set out below.
PURPOSE OF THE BILL
- The
Bill proposes to amend the Births, Deaths, and Marriages Registration Act 1995
(the BDMR Act) to:
- Improve the
ability of the Registrar-General to collect and verify information for the
purposes of the Act;
- Regulate access
to that information (incorporating appropriate privacy safeguards and
recognising that there are a range of legitimate
reasons why people want to
access the information);
- Modernise the
Act to take account of technological and social developments; and
- Establish a new
register to record name changes for overseas born people living in New
Zealand.
ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT
Section 19: Freedom from Discrimination
- Section
19(1) of the Bill of Rights Act protects the right to freedom from
discrimination on the grounds of discrimination set out
in section 21 of the
Human Rights Act 1993. These grounds include age and marital
status.
- In
our view, taking into account the various domestic and overseas judicial
pronouncements as to the meaning of discrimination, the
key questions in
assessing whether discrimination under section 19(1) exists are:
- Does the
legislation draw a distinction based on one of the prohibited grounds of
discrimination?
- Does the
distinction involve disadvantage to one or more classes of individuals?
- If
these questions are answered in the affirmative, we consider that the
legislation gives rise to a prima facie issue under section 19(1) of the
Bill of Rights Act.
- Where
a provision is found to be prima facie inconsistent with a particular
right or freedom, it may nevertheless be consistent with the Bill of Rights Act
if it can be considered
a reasonable limit that is justifiable in terms of
section 5 of that Act. The section 5 inquiry is essentially two-fold: whether
the provision serves an important and significant objective; and whether there
is a rational and proportionate connection between
the provision and the
objective.[1]
Eligibility to make applications for changes to names, adoptive
information, and sex
- Clause
13 of the Bill provides that the following persons may apply for registration of
a name change:
- an entitled
person who is 18 years of age or older
- an entitled
person who is younger than 18 years of age but who is or has been married, in a
civil union, or in a de facto relationship
- the guardian of
an entitled person.
- Clause
14 provides that the Registrar-General of Births, Deaths and Marriages must
include additional information in the birth information
of an adopted person on
the application of:
- The adopted
person if he or she is 18 years of age or older; or
- The adopted
person if he or she is younger than 18 years of age, but is or has been married,
in a civil union or a de facto relationship;
or
- The adoptive
parent/s, if the adopted person is younger than 18 years of age and has not
earlier married, entered into a civil union,
or been in a de facto
relationship.
- The
additional information is notice of whether the words ‘adoptive
parent’ or
‘adoptive parents’ should appear on
birth certificates relating to the adopted person,
and other information relating to the birth.
- Clause
15 provides that only persons who are aged 18 years or over or who have earlier
been married, entered into a civil union, or
been in a de facto relationship may
apply for a declaration from the Family Court as to the sex to be shown on a
birth certificate.
- These
clauses draw a distinction between those aged 16 or 17 and those aged 18 years
and above for the purpose of eligibility to apply
for the registration of a name
change, the inclusion of additional information in an adopted person’s
birth information or
a Family Court declaration as to the sex to be shown a
birth certificate. These clauses also draw a distinction between those aged
16
or 17 who have earlier married, entered into a civil union, or have been in a de
facto relationship, and those that have not.
- These
clauses disadvantage 16 and 17 year olds who have not earlier married, entered
into a civil union, or been in a de facto relationship,
because they do not
allow these persons the autonomy to decide whether they wish to change their
name, record additional adoption
information, or apply for a declaration of the
Family Court as to the sex to be shown on their birth certificate. Accordingly,
we
consider these clauses to be prima facie inconsistent with section
19(1) of the Bill of Rights Act.
Are these justified limitations under section 5?
- In
a general sense, the provisions in the BDMR Act that will be amended by clauses
13, 14, and 15 of the Bill contribute to the overall
objectives of the BDMR Act.
Those objectives are to require the recording and verification of information
relating to births, deaths,
marriages, civil unions, name changes, adoptions and
sexual assignments and reassignments so as to provide a source of demographic
information and an official record of births, deaths, marriages, civil unions
and name changes that can be used as evidence of those
events and of a
person’s identity, among other personal details. We accept that these are
significant and important objectives.
- We
have concluded that the distinctions in clauses 13, 14 and 15 of the Bill are
justified in terms of section 5 of the Bill of Rights
Act for the reasons set
our below.
Age
- The
Department of Internal Affairs advises that the reason for the age limitations
in clauses 13, 14 and 15 is because guardianship
responsibilities under the Care
of Children Act 2004 end once the child reaches 18 years or marries, or enters
into civil union or
a de facto relationship. Guardianship responsibilities
include, inter alia:
- decisions about
the child's name (and any changes to it)
- decisions
affecting the child's culture and language
- determining the
gender identity of a child.
- However,
in recognition of the right of a person aged 16 or 17 to be involved in a
decision about their name, clause 13 requires a
guardian to obtain the written
consent of a child who is aged 16 years or older before making an application
for registration of
a name change.
- We
are also advised that an important reason for the age limitation in clause 14 is
that the decision about whether to add information
to a birth certificate (such
as
denoting parents as ‘adoptive’) requires a
significant level of emotional maturity and responsibility, because the decision
will affect the family identity of both the adopted person and others.
- Age
limits necessarily involve a degree of generalisation, without regard for the
particular abilities, maturity or other qualities
of individuals within that age
group. In these clauses, age is being used as a proxy measure of the maturity
and capacity of an individual
to act responsibly, which is necessary in this
situation.
- It
is reasonable for Parliament to set an age limit reflecting its assessment of
when most persons will have sufficient maturity to
ensure responsible decisions
are made in these particular contexts. The alternative would be for the
Registrar-General to assess
each individual aged 16 or 17 years to determine
whether they have sufficient capacity to make the decision and this does not
appear
to be a workable solution. Clause 14 of the Bill requires adoptive
parents to obtain the written consent of an adopted person aged
16 or 17 before
applying to add birth information. It therefore provides a statutory process by
which 16 and 17 year olds are consulted
with and participate in the decision
made on their behalf.
Marital status
- All
three clauses make a further distinction by permitting individuals aged 16 and
17 years, who have earlier been married, entered
into a civil union or been in a
de facto relationship, to make an application on the same basis as someone aged
18 or over. Our assessment
is that the difference in treatment between persons
aged 16 and 17 years who are single and those who have earlier been married,
entered into a civil union or been in a de facto relationship is rational and
proportionate.
- Individuals
aged 16 or 17 need the consent of a parent or guardian or a Family Court Judge
to marry, or enter into a civil union or
a de facto relationship. The consent
signals the parent, guardian or Judge believes the individual has the
appropriate level of maturity
and responsibility to undertake such an important
decision. In other words, by way of parental consent, the individual has been
given
authority to act in ways which may have a significant impact on their
marital and/or family status.
- Accordingly,
these provisions recognise that young persons who have married or entered into a
civil union or de facto relationship
have the maturity and capability to make
other decisions which may impact on their identity or that of their family.
Section 21: the right to be secure from unreasonable search and seizure
- Several
clauses in the Bill raise issues of consistency with section 21 of the Bill of
Rights Act (the right to be secure from unreasonable
search and seizure) where
they require the provision of certain information. The requirement to produce
documents and information
under statutory authority constitutes a search for the
purposes of section 21 of the Bill of Rights Act. [2]
- Clauses
9, 10, 12, 33 and schedule 3 require individuals to provide:
- doctor’s
certificates, statutory declarations or a coroner’s authorisation upon
the
death and the transfer and disposal of bodies;
- notification of
the birth of a child and the child’s names; and
- information
relating to a registrable event.
- We
consider that the powers to require the provision of certain information in the
Bill are reasonable as they are necessary for the
Registrar-General to carry out
his or her duties under the Act. Those duties relate to one of the main purposes
of the Act, which
is to require the recording and verification of information
relating to births, deaths, marriages, civil unions, name changes, adoptions
and
sexual assignments and reassignments so as to provide:
- a source of
demographic information, and information about health, mortality, and other
matters important for government; and
- an official
record of births, deaths, marriages, civil unions, and name changes that can be
used as evidence of those events and of
age, identity, descent, whakapapa, and
New Zealand citizenship.
- We
also note that the personal information that is collected is subject to the
jurisdiction of the Privacy Act 1993.
- We
therefore conclude that these provisions do not constitute unreasonable searches
in terms of section 21 of the Bill of Rights Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the Bill of Rights
Act.
Jeff Orr Chief Legal Counsel Office of Legal Counsel
|
Margaret Dugdale
Policy Manager, Bill of Rights/Human Rights Public Law Group
|
Footnotes
- In
applying section 5, we have had regard to the guidelines set out by the Court of
Appeal in Ministry of Transport (MOT) v Noort [1993] 3 NZLR 260 Moonen
v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9; and Moonen v Film
and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754 and Supreme Court of
Canada’s decision in R v Oakes (1986) 26 DLR (4th).
- New
Zealand Stock Exchange v Commissioner of Inland Revenue [1992] 3 NZLR 1
(PC).
In addition to the general disclaimer for all documents on this
website, please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Births,
Deaths, Marriages, and Relationships Registration Amendment Bill. It should not
be used or acted upon
for any other purpose. The advice does no more than assess
whether the Bill complies with the minimum guarantees contained in the
New
Zealand Bill of Rights Act. The release of this advice should not be taken to
indicate that the Attorney-General agrees with
all aspects of it, nor does its
release constitute a general waiver of legal professional privilege in respect
of this or any other
matter. Whilst care has been taken to ensure that this
document is an accurate reproduction of the advice provided to the
Attorney-General,
neither the Ministry of Justice nor the Crown Law Office
accepts any liability for any errors or omissions.
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