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Births, Deaths, Marriages, and Relationships Registration Bill (Consistent) (Sections 14, 19(1), 21) [2017] NZBORARp 43 (26 July 2017)
Last Updated: 8 January 2019
26 July 2017
Hon Christopher Finlayson QC, Attorney-General
LEGAL ADVICE
LPA 01 01 22
Consistency with the New Zealand Bill of Rights Act 1990: Births, Deaths,
Marriages, and Relationships Registration Bill
Purpose
- We
have considered whether the Births, Deaths, Marriages, and Relationships
Registration Bill (‘the Bill’) 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 14 (freedom of expression), s
19(1) (freedom from discrimination),
and s 21 (unreasonable search and seizure).
Our analysis is set out below.
Summary
- This
Bill amends and re-enacts the Births, Deaths, Marriages, and Relationships
Registration Act 1995 (‘the 1995 Act’).
- The
Bill limits the freedom from discrimination affirmed in s 19(1) of the Bill of
Rights Act, for apparent discrimination on the
basis of sex. We have also
considered possible limitations on s 14, s 19(1) (on the basis of age), and s 21
of the Bill of Rights
Act.
- We
conclude that the Bill is consistent with the rights and freedoms affirmed in
the Bill of Rights Act. In reaching that conclusion,
we have considered the
importance of a person’s birth certificate as a cornerstone of their
official identity, as well as the
Family Court’s interpretation of s 28 of
the 1995 Act.
The Bill
- The
Bill proposes a number of amendments to improve the operation of the Births,
Deaths, and Marriages registers. These amendments
support the development of new
digital and online access channels, including amendments which allow historical
register images to
be viewed online.
- The
Bill also includes a number of amendments designed to tidy up and improve the
operation of the legislative framework. This includes
re-enacting the 1995 Act
to ensure all provisions are presented in an up to-date and accessible form.
Accordingly, we have also considered
the consistency of those existing
provisions in the 1995 Act that are re- enacted by the
Bill.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including the freedom to seek,
receive, and impart information and
opinions of any kind in any form. The right has been interpreted as including
the right not to
be compelled to say certain things or to provide certain
information.1
- The
Bill includes two types of provisions that engage the freedom of
expression:
- compelled
expression – requiring an individual to provide information, and
- censorship
– preventing an individual from expressing
themselves.
- 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:2
- 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?
Naming children and changing names
- The
Bill provides limits on what a person’s name can be when their birth is
registered or when they are applying to change their
name. Clause 17 provides
that a person’s name must not be “undesirable in the public
interest”, which means that
it:
- might
cause offence to a reasonable person
- is
unreasonably long, or
- is,
includes, or resembles an official title or rank (without adequate
justification).
- By
granting the Registrar-General a right to decline to register a name in certain
circumstances, the Bill constitutes a prima facie limit on freedom of
expression.
- The
three limits on what a person’s name can be have three separate purposes.
The first limit aims to protect the public (including
the individual) from harm;
the second aims to mitigate any administrative burden that an overly long name
may pose; and the third
aims to avoid any misrepresentation or confusion caused
by a name that resembles an official title or rank. We consider that these
purposes are sufficiently important to justify the limits on freedom of
expression.
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705 (1977).
2 Hansen v R [2007] NZSC 7 [123].
- We
consider that the limits are rationally connected with the objective, impair
freedom of expression no more than is reasonably necessary,
and are in due
proportion to the importance of the objective. The limits are small and tightly
constrained, and an individual can,
under cl 30, appeal a decision to not
register a name to the Family Court within 28 working days after the decision
was made and
the affected party notified.
- We
therefore conclude that the limits on what a person’s name can be are
justified for the purposes of s 5 of the Bill of Rights
Act.
Compelling expression
- There
are a number of provisions in the Bill which limit freedom of expression by
compelling individuals to provide information to
a Registrar. For example, cl 12
requires both parents of a child to jointly notify a Registrar of the birth as
soon as is reasonably
practicable after the birth. Similarly, a Registrar must
be notified of any death that occurs in New Zealand under cl 38, and a marriage
solemnised in New Zealand must be notified to a Registrar under cl 50.
- The
overarching purpose of the provisions that require individuals to inform the
Registrar about certain events is to ensure the register
is accurate and
up-to-date. This is a sufficiently important purpose to justify a limitation on
freedom of expression. To the extent
that these provisions limit this right, we
consider they are justified. We consider that the limits are rationally
connected with
the objective, impair a person’s freedom of expression no
more than is reasonably necessary, and are in due proportion to
the importance
of the objective.
Limits on the publication of information
obtained by searching the register
- The
Bill allows the Registrar-General to make some registered information about
births, deaths and marriages and civil unions available
on a searchable
register. Clause 87 however limits persons from publishing certain information
that has been obtained by searching
this register. That clause provides that a
person cannot publish such information unless:
- the
information is in a form that could not reasonably be expected to identify any
particular person
- the
person who makes the information available is the subject of the information,
or
- the
information is historical.
- We
consider that restricting the publication of information obtained by searching
the register is justified. The provision appropriately
balances an
individual’s privacy interests with another individual’s desire to
search the register and comment on the
same. Such an individual is only
prohibited from publishing information about another person that may reasonably
allow that person
to be identified (unless they have written authority or power
of attorney from the other person).
Conclusion on freedom of
expression
- We
consider that the Bill appears to be consistent with the right to freedom of
expression affirmed in s 14 of 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:3
- 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.4
Discrimination on the
grounds of sex
- Clauses
22 and 23 of the Bill establish a process whereby an eligible adult can change
the sex registered on their birth certificate
through an application to the
Family Court. In order to use this process, the Family Court must be
satisfied:
- that
the applicant is not a person of the nominated sex, but
- has
assumed and intends to maintain, or has always had and intends to maintain, the
gender identity of a person of the nominated
sex
- wishes
the nominated sex to appear on birth certificates issued in respect of the
applicant, and
- on
the basis of expert medical evidence, that the applicant:
- has
assumed (or has always had) the gender identity of the person of the nominated
sex
- has
undergone such medical treatment as is usually regarded by medical experts as
desirable to enable persons of the genetic and physical
conformation of the
applicant at birth to acquire a physical conformation that accords with the
gender identity of a person of the
nominated sex, and
- will,
as a result of the medical treatment undertaken, maintain a gender identity of a
person of the nominated sex.
- An
equivalent process exists in cls 24 and 25 for eligible children, with some
modifications. An eligible child is still required
to undergo (or have
undergone) medical treatment reasonably necessary to enable the child to assume
and maintain the gender identity
of a person of the nominated sex.
3 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.
4 See, for example, Child Poverty Action Group v
Attorney-General above n 2 at [179]; and McAlister v Air New
Zealand
above n 2 at [40] per Elias CJ, Blanchard and Wilson JJ.
- If
a person has had their nominated sex recorded on their birth certificate, but
has not undergone the necessary medical treatment,
cl 27 allows the
Registrar-General to delete a person’s nominated sex registered on their
birth certificate. If this occurs,
that person’s birth certificate would
revert to their birth sex. The Registrar-General is required to receive expert
medical
evidence to the effect that the person has not undergone medical
treatment that the Family Court considered necessary when it made
its
order.
Does this process draw a distinction on one of the
prohibited grounds of discrimination under the Human Rights Act?
- Section
21(1)(a) prohibits discrimination on the basis of sex. We have interpreted this
ground to include gender identity (or the
social and cultural aspects of
identification with a particular sex).
- We
consider that the process established in the Bill constitutes intra-ground
discrimination on the ground of sex. Intra-ground discrimination
refers to a
situation where a distinction is made between different subgroups of people who
are protected from discrimination. Although
no New Zealand case has directly
considered this interpretation, we have followed the Canadian Supreme
Court’s reasoning in
Granovsky v Canada (Minister of Employment and
Immigration) in finding that intra- ground discrimination can be a breach of
the Canadian Charter of Human Rights.5
- On
a plain-text reading of the provisions in the Bill, it appears that medical
treatment is a requirement for an eligible person (or
child) to change their
birth certificate to their nominated sex. We consider that this requirement
draws an intra-group distinction
on the grounds of sex between those who are
willing and/or able to undergo the necessary medical treatment (the first
subgroup) and
those who are unwilling or unable to do so (the second subgroup).
People in the second subgroup may be unwilling or unable to undergo
the
necessary medical treatment for a variety of reasons, including cost, medical,
cultural, or other reasons such as not identifying
with the other sex to the
degree that medical treatment is desirable.
- Accordingly,
people in the second subgroup are unable to utilise the process established in
the Bill and are therefore, as a consequence,
materially disadvantaged. As a
result, the provisions are a prima facie limit on the right to freedom
from discrimination affirmed in s 19(1) of the Bill of Rights
Act.
Is the objective sufficiently important?
- The
provisions in question carry over from the 1995 Act. One of the purposes of the
1995 Act is to ensure certainty and the integrity
of a cornerstone of official
identity: a birth certificate, and the corresponding entry on the register. For
most people born in
New Zealand, their registered birth record is a source that
confirms their citizenship and the right to access a wide range of entitlements,
including health services, welfare entitlements and education. As core identity
information, a birth certificate is often required
for other official documents,
including passports and drivers licenses.
- The
provisions in the Bill that establish the process for changing the sex recorded
on a person’s birth certificate therefore
aim to strike a balance between
the official recording
5 Granovsky v Canada (Minister of
Employment and Immigration [2000] 1 SCR 703. See further Trevethick v
Minister of Health [2008] NZHC 415; [2008] NZAR 454 (HC), Brookers Human Rights Law,
above n 4, at [HR 21.07].
of a person’s assigned sex at birth and the individual’s desire
to later register their self- identified sex. We consider
that this purpose is
sufficiently important to justify a limitation on the right to freedom from
discrimination.
Is there a rational connection between the limit and the
objective?
- We
consider that the process established in the Bill is rationally connected with
its objective. The Family Court is established as
decision-maker in the process,
and is best placed to consider the evidence tendered in support of the
application, as well as interpreting
the requirements of the process in a
rights-consistent manner. The Family Court is also able to balance the need for
integrity and
certainty in the births register with an individual’s desire
for self-identification.
Is the impairment of the right greater
than reasonably necessary?
- This
question turns on the extent of the medical treatment required to satisfy the
Family Court, i.e. the interpretation of “such
medical treatment as is
usually regarded by medical experts as desirable to enable persons of the
genetic and physical conformation
of the applicant at birth to acquire a
physical conformation that accords with the gender identity of a person of the
nominated sex.”
- On
its face, it would appear that this requirement does not minimally impair the
right to freedom from discrimination. A plain analysis
of the issue could
reasonably conclude that a lesser process would impair the right less than the
process established in the Bill.
For example, an alternative process might
entail an eligible person being assessed by a registered medical professional
and that
medical professional then providing an affidavit in support of the
eligible person’s application, without a requirement for
medical
treatment.
- The
Family Court’s judgment in Re Michael provided a degree of
certainty over the extent of medical treatment required to satisfy the
requirements in s 28 of the 1995 Act.6 Fitzgerald J
concluded that Parliament did not intend that all available surgical procedures,
including genital surgery, were required
to satisfy the test. He
found:7
Although the framing of [s 28] is
complex, I have found that, after analysis, it is intended to be applied in a
manner that is capable
of addressing the primary concerns raised. ... [T]here
can be no standard threshold test because each case must be dealt with on
its
own merits by reference to the evidence of the particular applicant, and of the
medical experts familiar with that person’s
situation.
- Although
Re Michael is not a binding decision, it has been highly persuasive on
subsequent decisions of the Family Court. Several decisions have found
that an
eligible person has satisfied the requirements of s 28 in the 1995 Act without
having undergone surgery.8
- In
the Family Court, applications are therefore currently considered on a
case-by-case basis, and there is no minimum threshold for
the medical treatment
required to satisfy
6 “Michael” v
Registrar-General of Births, Deaths and Marriages (2008) 27 FRNZ 58 [Re
Michael]
7 Re Michael at [113]
8 Re DAC [2013] NZFC 1998, Re H FC
Waitakere FAM-2009-090-002000, 21 September 2010; B v
Registrar-General
[2013] NZFC 3562; Re Rose [2014] NZFC 7034; R v Registrar-General
[2015] NZFC 10609.
the requirements of s 28. Given that the Bill seeks to re-enact s 28 of the
1995 Act in full with no modifications, we consider that
this approach would
continue.
- Accordingly,
given the Family Court has established there is no minimum threshold for the
medical treatment required, and given that
each application is considered on a
case-by-case basis, we conclude that the process impairs the right to freedom
from discrimination
no more than is reasonably necessary.
Is the
limit in due proportion to the importance of the objective?
- We
consider that the process established in the Bill and recent case-law result in
the limit being in due proportion to the importance
of the
objective.
Conclusion on discrimination on the grounds of
sex
- We
conclude that the discrimination on the basis of sex provided by the process for
a person to change their birth record to their
nominated sex is justified for
the purposes of s 5 of the Bill of Rights Act.
Discrimination on
the grounds of age
- Section
21(1)(i) of the Human Rights Act prohibits discrimination on the basis of age
for persons over the age of 16. A number of
provisions in the Bill vary certain
processes for those under the age of 18 by requiring that person’s parent
or guardian to
undertake the process on that person’s behalf. The relevant
processes are:
- changing
birth information relating to sex (the guardian of an eligible child may apply
on the child’s behalf)
- applying
to include additional information on the birth certificate of an adopted
child’s birth certificate (the adopted person’s
parent(s) may apply
on the adopted person’s behalf), and
- name
changes (the guardian of an eligible child may apply on the child’s
behalf).
- These
provisions constitute prima facie discrimination on the basis of age in
respect of those aged 16 or 17.
- Age
restrictions necessarily involve a degree of generalisation using age as a proxy
measure of maturity and capacity to act responsibly.
This avoids the
administrative burden inherent in assessing each individual’s maturity and
responsibility on a case-by- case
basis.
- The
limits in the Bill are consistent with other legislation which uses age a
threshold for holding a position of responsibility.
The age of 18 is often used
as the age of competence. The age of 18 is also the default age of majority
under the UN Convention on
the Rights of the Child.
- We
also consider that the process variations for those aged under the age of 18
minimally impair the right and are in due proportion
to the importance of the
objective. The processes are not withheld from a person under the age of 18, but
are simply handled differently
until a person turns 18.
- We
therefore conclude that the discrimination on the basis of age is justified for
the purpose of s 5 of the Bill of Rights Act.
Conclusion on
freedom from discrimination
- For
the reasons above, we consider that the Bill appears to be consistent with the
right to freedom from discrimination affirmed in
s 19(1) of the Bill of Rights
Act.
Section 21 – Unreasonable search and seizure
- Section
21 of the Bill of Rights Act affirms that everyone has the right to be secure
against unreasonable search or seizure, whether
of the person, property, or
correspondence or otherwise. The right protects a number of values including
personal privacy, dignity,
and property.9
- Ordinarily
a provision found to limit a particular right or freedom may nevertheless be
consistent with the Bill of Rights Act if
it can be considered reasonably
justified in terms of s 5 of that Act. However, the Supreme Court has held an
unreasonable search
logically cannot be demonstrably justified and therefore the
s 5 inquiry does not need to be undertaken.10 In
assessing whether the search and seizure powers in the Bill are reasonable, we
have considered the importance of the objective
sought to be achieved and
whether the provisions are rationally connected and proportionate to that
objective.
- This
Bill provides a search power to public sector agencies, who can request the
Registrar-General to search for, or provide, information
recorded under the
Bill.
- We
consider that this power of search is not unreasonable for the purposes of s 21.
The information contained in the register is basic
identification information,
and a request made under this power must specify the reasons for the request
(including why it is necessary
or desirable in the public interest), and the
provision of the information is required for a purposes consistent with the
Bill’s
purposes.
- Furthermore,
depending on the type of search being undertaken, the information may be subject
to a non-disclosure direction. A non-disclosure
direction is when a person
requests that the Registrar-General direct that their birth, marriage, civil
union, or name change information
not be disclosed to the public.
- However,
a non-disclosure direction will not apply where the search is necessary to avoid
prejudice to the maintenance of the law;
the disclosure to that agency is
authorised by another enactment; the agency is an intelligence or security
agency and needs the
information for the performance of its functions; or the
search is by Police in order to notify next of kin about a death.
- We
therefore consider that the Bill appears to be consistent with the right to be
secure against unreasonable search or seizure as
affirmed in s 21 of the Bill of
Rights Act.
9 See, for example, Hamed v R
[2011] NZSC 101, [2012] 2 NZLR 305 at [161] per Blanchard J; see also
Williams v Attorney-General [2007] NZCA 52.
10 Ibid at [33]; Hamed v R, above n 4 at
[162].
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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