In a legal opinion issued to Family First NZ on 29 August 2012, Auckland Barrister Ian Bassett has confirmed his earlier legal opinion dated 27 August 2012 regarding the likely effect of Ms Louisa Wall’s Marriage (Definition of Marriage) Amendment Member’s Bill.
Following the release of his earlier opinion, he states on 29 August 2012
Re: Marriage Act Amendment Bill
I understand that questions have been raised as to whether a marriage celebrant solemnising a marriage is a person doing an act in the “performance of any public function, power or duty conferred or imposed on that person or body by or pursuant to law” within the meaning of s3(b) of the New Zealand Bill of Rights Act 1990 (“NZBORA”).
In consideration of that issue I refer to Ransfield v Radio Network Ltd  1 NZLR 233 at  (HC) where the Court identified a non-exhaustive list of indicators (copy extract attached). In the present context:
1. The marriage celebrant must be a person authorised by the State to be a marriage celebrant.
2. The marriage celebrant performs his or her function pursuant to statute (the Marriage Act 1955).
3. The solemnisation of marriage is preceded by a statutory declaration to the State by one of the persons intended to be married (refer s23 of the Marriage Act 1955).
4. A marriage licence is issued by the State (refer s24 of the Marriage Act 1955) authorising the marriage to be performed.
5. The marriage must be performed at the place specified in the licence (refer s31 of the Marriage Act 1955).
6. The words to be spoken by the couple to be married in the presence of the celebrant and witnesses are prescribed by statute (refer s31 of the Marriage Act 1955).
7. The form of documentation to be completed for the State by the celebrant, the couple and the witnesses are prescribed by law (Marriage (Forms) Regulations 1995). That documentation is to be returned to the State, duly executed and witnessed.
8. In the statutory context the celebrant can correctly be described as an agent of the State.
9. The resulting status of marriage upon solemnisation affects official status at law, including in relation to eligibility for state welfare and entitlements (i.e. such as superannuation etc), the status of children, parental responsibilities and inheritance laws.
It remains my view that a marriage celebrant solemnising a marriage is a person falling within s3(b) NZBORA.
Furthermore although no marriage celebrant can be forced to solemnise a marriage (in conflict with their beliefs or otherwise), nevertheless it will be unlawful for such a person (with a s3(b) NZBORA role) to refuse to solemnise a marriage on any prohibited grounds of discrimination (refer section 19 NZBORA, which refers in turn to the prohibited grounds set out in s21 of the Human Rights Act 1993).
Although section 29 of the Marriage Act 1955 provides that “A marriage licence shall authorise bu tnot oblige any marriage celebrant to solmnise the mariage to which it relates“, that is not an exemption in respect of the s19 NZBORA obligations.
I re-affirm my legal opinion dated 27 August 2012.
Ian C Bassett Barrister LL.B (Hons) (Auck), LL.M (Camb.), A.A.M.I.N.Z.
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