Adoption laws and the case for a written constitution

The discriminatory nature of New Zealand’s adoption laws shows the importance of constitutional protection for human rights, says Wellington lawyer Joss Opie

I support a supreme law, written constitution for Aotearoa New Zealand. The main reason for this is my view that human rights need significantly more legal protection in our country.

In their book, A Constitution for Aotearoa New Zealand, Sir Geoffrey and Dr Butler refer to the vulnerability of New Zealand’s human rights law, which may be overridden by a bare Parliamentary majority.1 They also refer to the power of New Zealand’s Human Rights Review Tribunal to declare that a law is inconsistent with the human right to be free from discrimination. As they say, however, even when the Human Rights Review Tribunal makes this type of declaration, Parliament can decide not to change the offending law.2

One of the Human Rights Review Tribunal cases they refer to is Adoption Action Incorporated v Attorney-General.3 I think this case exemplifies why our current legal protections for human rights are insufficient, and why truly constitutional guarantees are necessary.

Adoption Action Incorporated advocates for adoption law reform.4 After “years of unsuccessfully lobbying various ministers and government administrations”,5 on 22 July 2011 Adoption Action brought its case in the Tribunal. This was “a last resort to bring about change to the adoption law of New Zealand.”6

Adoption Action claimed that sections of the Adoption Act 1955 and the Adult Adoption Information Act 1985 breached the right to freedom from discrimination on the grounds of sex, marital status, sexual orientation, disability, age, and race. The Tribunal heard the case over a total of 10 days, in late 2013 and in early 2014. Over 2 years later, on 7 March 2016, the Tribunal issued its decision.7

It upheld almost all of Adoption Action’s claims, and declared that six sections of the Adoption Act, and one section of the Adult Adoption Information Act, were inconsistent with the right to freedom from discrimination.

The Government could have appealed the Tribunal’s decision, but it did not. Accordingly, the Government had to bring the Tribunal’s declarations to the attention of the House of Representatives, and advise the House of its response to the declarations.8

As set out in the Human Rights Act, the Tribunal’s declarations did not affect the legal validity of the sections of the Adoption Act and Adult Adoption Information Act found to be in breach of the right to freedom from discrimination.9 Any change would have to be made by Parliament.

In August 2016, the Minister of Justice Amy Adams tabled the Government’s response to the declarations in the House.10 The Minister advised that the Government did not agree with two of the Tribunal’s declarations, for reasons which had been considered and rejected by the Tribunal in its decision. There was no reference in the response to the five other declarations made by the Tribunal, other than recording that they had been made.

The response stated that reforming the Adoption Act would require “significant resource reallocation”11 and referred to Government’s other legislative priorities. Nothing was said about the Adult Adoption Information Act.

The response also stated the Government’s view that the Adoption Act is, in practice, interpreted in a rights-consistent manner. This was despite the Government having conceded before the Tribunal that any such practice does not make discriminatory law non-discriminatory.12

The response further advised that the Government will not, “at the present time”,13 rectify the ongoing breaches of fundamental human rights identified by Adoption Action and upheld by the Tribunal.

This outcome shows how fragile New Zealand’s domestic human rights framework is. Under it, the Government may ignore declarations made by the statutory body Parliament has empowered to determine whether legislation breaches the human right to freedom from discrimination. The Government may do this after years of hard-fought litigation, which it has lost, in reliance on arguments which failed in that litigation.

Despite a fundamental human right being at stake, there is no requirement for the House of Representatives to vote on what should be done, or even to debate it.

And where to now for Adoption Action, or people affected by the discrimination? There is no point in going back to a New Zealand court, as Adoption Action won in the Tribunal. A petition could be taken to the United Nations Human Rights Committee, but the Government could ignore any outcome from that process too.

That leaves a return to lobbying, which Adoption Action had tried for decades previously, without success. In the meantime, and potentially for years more, the sections found to breach human rights will remain as law. Change will only come if a Government decides to make it a priority.

If we believe that human rights are fundamental, this outcome is unacceptable. Under the supreme law Constitution of Aotearoa New Zealand proposed by Sir Geoffrey and Dr Butler, tribunals such as the Human Rights Review Tribunal and the courts would have the power to declare that a law is inconsistent with the human rights affirmed in the Constitution.

Such a declaration would be binding if it were confirmed by New Zealand’s Supreme Court. In that scenario, Parliament could enact legislation providing that the inconsistent law should continue. However, a 75% majority in the House of Representatives would be required to pass this legislation.14

This approach would provide much stronger protection for human rights than the present system, while retaining Parliament’s ability to have the last word.

Unlike in the Adoption Action case, a Government faced with a declaration of inconsistency by a tribunal or court would not have the option of deciding not to appeal the decision, and otherwise to do nothing.

Rather, the matter would have to be put before the Supreme Court. If the Supreme Court agreed with the lower tribunal or court, the law would be invalid unless the Government achieved substantial cross-party support to keep it on the books. Otherwise, Government would have to put in place new, human rights-consistent legislation. The invalid legislation would not remain law.

Human rights need to be given priority in New Zealand. A written, supreme law constitution such as the Constitution of Aotearoa New Zealand would be a significant and positive step towards achieving this.

1. Sir Geoffrey Palmer and Dr Andrew Butler A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016) at 162-163 [A Constitution for Aotearoa New Zealand].
2. Ibid, at 163
3. Adoption Action Incorporated v Attorney-General [2016] NZHRRT 9 [Adoption Action].
4. See  Adoption Action is not alone in its view that reform is required.  As set out in the Adoption Action, above n iii, at [1]-[4], there is widespread agreement that the Adoption Act is very out of date.  Recommendations for reform have been made by the New Zealand Law Commission and many others, but not been implemented.
5. Adoption Action, above n iii, at [13].
6. Ibid, at [13].
7. The Human Rights Review Tribunal apologised for this in its decision, and stated that the reasons for it were delays related to mediation between Adoption Action and the Government, and in filing an amended statement of claim, as well as the “large volume of evidence and submissions” the part-time members of the HRRT had to consider after the lengthy hearing: see Adoption Action, above n iii, at [18]-[19].
8. Section 92K(2) of the Human Rights Act 1993. 
9. Section 92K(1) of the Human Rights Act 1993.
10. “Government Response to declarations of inconsistency by the Human Rights Review Tribunal in Adoption Action Incorporated v Attorney-General” (3 August 2016) [“Government Response to HRRT”].
11. Ibid, at [8].
12. See Adoption Action, above n iii, at [270], where the HRRT stated “As to the Crown’s reliance on ‘good practice’ followed by the MSD, the short point is that, as was properly conceded, good practice cannot make otherwise discriminatory legislation non-discriminatory.  Such practice is palliative only”.
13. Government Response to HRRT, above n x,, at [10].
14. A Constitution for Aotearoa New Zealand, above n i, at 59-60.


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