Section 6 NZBORA – In the Eye of the Beholder?
On 7 March 2016, the Human Rights Review Tribunal (HRRT) delivered its decision in Adoption Action Inc v Attorney-General  NZHRRT 9. Here, the HRRT issued six declarations of inconsistency between the Human Rights Act 1993 and the Adoption Act 1955 (it also issued a declaration of inconsistency between the Human Rights Act and s 4(1) of the Adult Adoption Information Act 1985).
One of the inconsistencies found relates to s 3(2) of the Adoption Act, which provides: “an adoption order may be made on the application of 2 spouses jointly in respect of a child.” To which, the HRRT held in Adoption Action Inc at , the term “spouses” could not be interpreted to include civil union partners or same-sex de facto couples.
The decision sits at odds with that of the Family Court in Re Pierney  NZFLR 53, which held precisely the opposite in respect of same-sex de facto couples (the case did not consider civil union couples). Adoption Action Inc was heard in November 2013 and January 2014, with the decision issued on 7 March 2016. In the intervening period between the hearing and final decision, an application to adopt was filed in Re Pierney. Final orders were granted on 30 October 2015. It is unclear from the decision whether the HRRT had the benefit of the decision in Re Pierney before making its decision.
It is argued that in making that judgment, the Family Court was correct to find it was reasonably possible under s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA) to interpret the term “spouses” in the Adoption Act to include same-sex de facto couples. Accordingly, it is suggested the HRRT erred in its analysis of s 6 NZBORA, and was, therefore, incorrect to issue a declaration of inconsistency between the Human Rights Act and s 3(2) of the Adoption Act, in respect of same-sex de facto couples. Rather, it could, and should, have held that its interpretative powers – which are in fact duties – allowed it to avoid a conclusion that breached rights.
Read the full article here: Section 6 NZBORA – In the Eye of the Beholder?
This article was published in the New Zealand Law Journal in August 2016