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Marriage (Court Consent to Marriage of Minors) Amendment Bill (Consistent) (Section 19(1)) [2017] NZBORARp 22 (3 May 2017)
Last Updated: 6 January 2019
3 May 2017
Hon Christopher Finlayson QC, Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Marriage (Court
Consent to Marriage of Minors) Amendment Bill
Purpose
- We
have considered whether the Marriage (Court Consent to Marriage of Minors)
Amendment Bill (‘the Bill’), a member’s
Bill in the name of
Joanne Hayes MP, is consistent with the rights and freedoms affirmed in the New
Zealand Bill of Rights Act 1990
(‘the Bill of Rights Act’).
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 19(1) of the Bill of Rights
Act (freedom from discrimination).
Our analysis is set out
below.
The Bill
- The
Bill seeks to amend the provisions of the Marriage Act 1955 (‘the
principal Act’) relating to consent to marriage
of minors. Currently, that
Act provides that minors may not obtain a licence to marry without the consent
of a parent, parents or
a guardian. Where consent is refused, a minor can apply
for a Family Court Judge to consider giving consent to the marriage.
- The
Bill removes those provisions, and replaces them with a requirement that a minor
must obtain the consent of a Family Court Judge
to marry. The Bill sets out the
evidence that must be considered by the Judge in deciding whether to give
consent.
- The
Bill is intended to respond to concerns that some 16 and 17 year olds may be
forced to enter into marriage.
Consistency of the Bill with the Bill of Rights Act
Section 19(1) – Freedom from discrimination
- Section
19(1) of the Bill of Rights Act affirms the right to be free from discrimination
on the prohibited grounds set out in the
Human Rights Act 1993 (‘the Human
Rights Act’).
- The key questions determining whether legislation limits the freedom from
discrimination are:1
1 See, for example, Atkinson v Minister
of Health and others [2010] NZHRRT 1; McAlister v Air New Zealand
[2009] NZSC 78; and Child Poverty Action Group v Attorney-General
[2008] NZHRRT 31.
- does
the legislation draw a distinction on one of the prohibited grounds of
discrimination under the Human Rights Act?
- if
so, does the distinction involve disadvantage to one or more classes of
individuals?
- A
distinction will arise if the legislation treats two comparable groups of people
differently on one or more of the prohibited grounds
of discrimination. Whether
disadvantage arises is a factual determination.2
- Section
21(1)(i) of the Human Rights Act prohibits discrimination on the basis of age
for persons over the age of 16. The Bill places
the additional administrative
and cost burden of needing to apply to the Family Court for consent to marry for
16 and 17 year olds
only. There is no comparable requirement for those aged 18
or over. As a result, the Bill could be seen as unlawfully discriminating
against 16 and 17 year olds who genuinely consent to marriage.
- Where
a provision is found to limit 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 s 5 of that Act. The s 5 inquiry may be
approached as follows:3
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the
objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
- To
the extent that the Bill creates a material disadvantage for those aged 16 and
17, we consider it is justifiable. The principal
Act already contains a
safeguard in relation to the marriage of 16 and 17 year olds by requiring
consent of a parent or guardian.
This is because 16 and 17 year olds have the
legal status of children. The policy objective of the Bill, to protect 16 and 17
year
olds from forced marriage, is sufficiently important to justify an
additional safeguard being put in place for this group.
- We
also consider the limit is rationally connected to the objective and impairs the
right no more than reasonably necessary. The court
has the ability to consider
the range of available evidence to determine whether a 16 or 17 year old
genuinely consents to a proposed
marriage in a specific case, and may still
grant the ability for that 16 or 17 year old to marry where it considers this to
be appropriate.
- For
these reasons, we conclude that any limits to freedom from discrimination
imposed by the Bill are justified under s 5 of the Bill
of Rights Act.
2 See, for example, Child Poverty
Action Group v Attorney-General above n 1 at [179]; and McAlister v Air
New Zealand above n 1 at [40] per Elias CJ, Blanchard and Wilson JJ.
3 Hansen v R [2007] NZSC 7 [123].
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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