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Births, Deaths, Marriages, and Relationships Registration Bill (Consistent) (Sections 14, 19(1), 21) [2018] NZBORARp 84 (18 October 2018)
Last Updated: 5 January 2019
18 October 2018
LEGAL ADVICE
LPA 01 01 23
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Supplementary
advice on the Births, Deaths, Marriages, and Relationships
Registration
Bill
- We
have considered whether the Births, Deaths, Marriages, and Relationships
Registration Bill (‘the Bill’), as reported
back by the Government
and Administration Committee (‘the Committee’), is consistent with
the rights and freedoms affirmed
in the New Zealand Bill of Rights Act 1990
(‘the Bill of Rights Act’).
- The
Bill was introduced on 10 August 2017. Our advice of 26 July 2017 concluded that
the Bill appeared to be consistent with the rights
and freedoms affirmed in the
Bill of Rights Act.
- In
reaching that conclusion, we 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). The advice focussed principally on clauses 22
and 23 of the Bill, which established a
process whereby an eligible adult can
change the sex registered on their birth certificate through an application to
the Family Court.
- We
considered the apparent requirement for medical treatment in order for an
eligible person (or child) to change their birth certificate
to their nominated
sex could constitute intra-ground discrimination on the basis of
sex.1
- Specifically,
the requirement draws an intra-group distinction 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). However,
we concluded
the limit was justified under s 5 of the Bill of Rights Act.
- The
Bill was reported back by the Committee on 10 August 2018. The Committee
recommended a series of amendments to the Bill, including
to replace the Family
Court process in cls 22 and 23 with an administrative process based on
self-identification.
- The
Minister of Internal Affairs wrote to you requesting advice on the consistency
of these proposed changes with the Bill of Rights
Act.
- The
proposed amendments recommend removing all references to “medical
treatment”, “medical evidence”, “physical
conformation”, “sexual assignment”, and “sexual
reassignment” from the Bill. As such, the Bill no longer
appears to create
the potential for intra-ground discrimination outlined above.
- Furthermore,
the administrative process appears to make the process for individuals to
request a change to their registered sex simpler
than in the Bill as introduced.
In addition,
1 See, for discussion of intra-ground
discrimination, 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 at [HR 21.07].
the inclusion of “intersex” and “X (unspecified)” as
registrable options ensures recognition of non-binary
sexual and gender
identities.
- In
our view, these provisions do not appear to limit the right to be free from
discrimination on the grounds of sex. We therefore
conclude that the Bill
appears to be consistent the rights and freedoms affirmed in the Bill of Rights
Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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