(So-called) Gay adoption bill drawn from ballot

3 News 30 Aug 2012
A bill allowing same-sex couples to adopt has been drawn from the ballot, less than 24 hours after the first reading the gay marriage bill. The Care of Children Law Reform Bill, submitted by Labour MP Jacinda Ardern, would extend adoption rights to civil union and de facto couples. Labour MP Louisa Wall’s Marriage Amendment Bill, which passed its first reading 80-40 last night, would allow gay couples to adopt once married. “What Louisa’s bill does is enable gay couples to adopt because they would be considered spouses,” Ms Ardern told Fairfax. “What mine does is make it more fit for purpose for all families who are using it.” She says it will bring the current adoption laws, some of which date back to 1955, into the modern era. “At the moment our adoption laws are based on closed adoptions,” Ms Ardern told Fairfax. “The people on the adoption order are the only people who maintain a relationship with that child. So the basic idea is to change the way we make decisions so the child is at the centre of everything and so it allows us to make decisions in their best interests.” The bill would require the Law Commission to look at the Adoption Act 1955 and the Care of Children Act 2004, and report its recommendations to the Minister of Justice.
http://www.3news.co.nz/Gay-adoption-bill-drawn-from-ballot/tabid/1607/articleID/267411/Default.aspx

Why the Bill is flawed

From David Farrar (Kiwiblog)
http://www.kiwiblog.co.nz/2012/05/handing_over_law_making.html

The bill she has put forward is basically little more than a legislative request for the Government to do something. The bill, which is only slightly longer than a press release, essentially does the following:

  1. Requires the Minister for the Law Commission to ask the Law Commission to review the law relating to the care of children and update its September 2000 report on adoption
  2. Requires the Law Commission to report within 12 months a report, recommendations and draft legislation
  3. Requires the Minister of Justice to introduce the bill, as drafted by the Law Commission, without amendment within seven days

There are a significant number of semi-fatal flaws with this approach.

The first is timing. Under the Ardern bill, there would probably be no law change for four or more years until after it has been selected from the ballot. The likely timings are:

  • 1st reading – 3 months after introduction
  • select committee – 6 months
  • 2nd and 3rd reading – 3 months
  • Law Commission report – 12 months
  • Govt Bill has first reading scheduled – up to 12 months
  • select committee – 6 months
  • 2nd and 3rd reading – 3 months

So … any actual law change would take four or more years, so maybe the law would be changed by 2017. The problem is that Jacinda is trying to use a bill, to get the Law Commission to write a bill. But Ardern’s bill itself would have to go through the full legislative process which would take probably 12 months. …Ardern is trying to legislate to force the Minister to introduce a bill, even if they do not want to. But she has made a fatal error. She has legislated that such a bill must be introduced within 7 days of the Law Commission drafting it, but she has not said that the Government must schedule it for a first reading debate.  So if the Government did not want the bill to progress, it would simply place it at the bottom of the order paper – which they can do as it would be a Government bill. Even a minority Government would be able to prevent the bill from ever being voted on – something they can’t do with a private members’ bill that actually seeks a law change – rather than just ordering the Government to introduce a bill. So to be very clear, even if a majority in Parliament favoured law reform, the process outlined in this bill would give the Government an effective veto. It is not difficult to imagine a scenario where for example it is after the 2014 election and say Colin Craig or Winston Peters could demand that the price of their support is the bill not proceed, as their constituents do not like it. By making it a Government bill, you lose control of its timing.

The second flaw is that the Ardern bill doesn’t specify a single policy principle. Not one. It gives actually no direction to the Law Commission as to what should be in the bill, what its scope should be, or even that the bill should not discriminate against same sex relationships. Every single detail is left to the Law Commission. This is a blank piece of paper. …So there is no guarantee that what the Law Commission would deliver is what Ardern wants. It is the job of legislators to spell out the general policy principles they want a law to reflect.

The third flaw is that the Minister of Justice is required to introduce whatever the Law Commission drafts, without amendment. Putting aside the rather important constitutional issues of making the Law Commission able to bypass Cabinet, it means that if a first reading is scheduled the MPs have to vote on whatever the Law Commission drafted. It could not be amended unless it survives to select committee. Such a bill could include a provision that all babies named David have to be placed into the care of CYFS and the Minister of Justice would be forced to introduce it without amendment. Sure that is an unlikely example, but it is a horrific precedent to have draft laws bypass Ministerial and/or MP approval, and going straight to a vote. This gives huge powers to the unelected Law Commissioners.

The fourth flaw, I touched on earlier. Rather than introduce a private members’ bill that actually outlines the desired law changes, it just instructs the Government to introduce a bill in probably two years time. By then making it a Government bill, it means Parliament loses control of when it gets voted on, as Government bills are debated at the discretion of the Government. So by failing to specify that the bill must be scheduled for first (and subsequent) reading/s at the top of the Government order paper, the bill is basically entirely ineffective.

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