AB v Registrar of Births, Deaths and Marriages - [2007] FCAFC 140 - FCAFC 1979 case summary — Zoe

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AB v Registrar of Births, Deaths and Marriages

[2007] FCAFC 140

Federal Court of Australia (Full Court)|1979-12-18|Before: Kenny J, Black CJ, Gyles JJ

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Court

Federal Court of Australia (Full Court)

Decision date

1979-12-18

Before

Kenny J, Black CJ, Gyles JJ

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

Introduction 1 This is an appeal from a decision of a judge of this Court dismissing an application by the appellant under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for a declaration that the first respondent had unlawfully discriminated against her on the ground of her marital status, contrary to s 22 of the Sex Discrimination Act 1984 (Cth) ("the Act"), by refusing to alter the record of her sex in her birth registration. 2 The circumstances of the case and the trial judge's reasons are set out and discussed in the reasons for judgment of Kenny J which I have had the advantage of reading. For the reasons that follow, however, I have come to a different conclusion to that reached by her Honour and I would allow the appeal. 3 AB's sex is recorded as male in the Victorian Register of Births, Deaths and Marriages. On 7 January 1967, AB was married to a woman and at the time of the hearing before the trial judge remained married to her although living separately and apart. The applicant subsequently underwent a surgical procedure involving the alteration of the reproductive organs carried out for the purpose of assisting her to be considered a member of the female sex. In April 2002, the applicant completed the surgical phase of that sex affirmation surgery. 4 There being no contrary intention, the applicant is a woman within the meaning of the Sex Discrimination Act 1984 (Cth): Secretary, Department of Social Security v "SRA" (1993) 43 FCR 299 at 301-306 per Black CJ, at 325-328 per Lockhart J, Heerey J agreeing; R v Harris and McGuiness (1988) 17 NSWLR 158 at 159-162 per Street CJ, at 188-193 per Mathews J; Kevin v Attorney-General (Cth) (2001) 165 FLR 404 at 472-476 per Chisholm J. AB sought to have the record of her sex on her birth registration on the Register altered to reflect her female identity. The relevant provisions of the Victorian Act are as follows: 30A. Application to alter Register (1) An unmarriedperson - (a) who is 18 years or over; and (b) whose birth is registered in Victoria; and (c) who has undergone sex affirmation surgery - may apply to the Registrar for the record of the person's sex in the person's birth registration to be altered. (2) An application must be in the form approved by the Registrar and must be accompanied by the prescribed fee (if any). 30C. Alteration of Register (1) The Registrar must determine an application under section 30A by altering the record of the applicant's sex in the applicant's birth registration or refusing to do so. (2) Before determining the application, the Registrar may require the applicant to provide such further information or documentation as the Registrar reasonably considers is necessary. (3) The Registrar cannot make the alteration to the birth registration if the applicant is married. 5 The Registrar of Births, Deaths and Marriages refused AB's application to alter the record of her sex in her birth registration because AB was then married. AB argues that the Registrar's refusal to alter the record was discrimination on the ground of marital status, and prohibited by s 22 of the Sex Discrimination Act. That section provides: 22 Goods, services and facilities (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; (b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person. (2) This section binds the Crown in right of a State. 6 The Act only applies in the circumstances set out in s 9, the relevant provisions of which read: 9 Application of Act … (4) The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise. … (10) If the Convention is in force in relation to Australia, the prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention. The "Convention" means the Convention on the Elimination of All Forms of Discrimination Against Women: s 4 of the Act. It is in force in relation to Australia. The prescribed provisions of Part II include s 22 of the Act. 7 Subsections 9(3), (6)-(9) and (11)-(20) each set out other circumstances in which the Act applies. Section 9 was drawn with a view to the extent of, and the limitations upon, Commonwealth legislative power including, but by no means limited to, the power to make laws with respect to external affairs granted by s 51(xxix) of the Constitution: see South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 at 405-407 per Black CJ and Tamberlin J, with whom Kiefel J agreed. Where any of those other subsections apply, s 22 has a gender-neutral operation and the sex of the complainant is irrelevant to whether discrimination on the ground of marital status has occurred, but the parties do not contend that any of ss 9(3), (6)-(9) and (11)-(20) apply in this case. 8 To determine whether s 9(10), and consequently s 22, applies to the circumstances of this case, it is necessary to consider whether s 22 gives effect to the Convention and whether the facts show "discrimination against women".

[2]

Interpreting the Sex Discrimination Act 9 The principle that requires the provisions of an Act to be read in the light of the objects of the Act is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: see Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 22 per Dawson and Gaudron JJ. The objects of the Sex Discrimination Act, set out in s 3, are as follows: 3 Objects The objects of this Act are: (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and (b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and (ba) to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and (c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and (d) to promote recognition and acceptance within the community of the principle of the equality of men and women. 10 One consequence of the principle that a statute should be interpreted in a way that promotes its objects (whether those are expressly stated or not) is that beneficial or remedial legislation should generally be given a liberal or generous construction in preference to a technical one: IW v City of Perth at 12 per Brennan CJ and McHugh J, at 27 per Toohey J; Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 per Brennan J, at 394 per Dawson and Toohey JJ, at 407 per McHugh J.

[3]

Does s 22 give effect to the Convention? 11 While in international law it is common to speak of 'implementing' a Convention by the enactment of domestic legislation and other means, the concept of 'giving effect to' a Convention is an important one in Australian constitutional law. If a law of the Parliament gives effect to Australia's obligations under a treaty, it will most likely be a law with respect to external affairs, within the meaning of s 51(xxix) of the Constitution: Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam Case). In that case Mason J said (at 131): The extent of the Parliament's power to legislate so as to carry into effect a treaty will, of course, depend on the nature of the particular treaty, whether its provisions are declaratory of international law, whether they impose obligations or provide benefits and, if so, what the nature of those obligations or benefits are, and whether they are specific or general or involve significant elements of discretion and value judgment on the part of the contracting parties. 12 The first three articles of the Convention read as follows: Article 1 For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women. Article 3 States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. 13 Other articles impose more specific obligations upon the States Parties. In addition to the reference to marital status in Art 1, the expression appears in two other articles. Article 11(2)(a) requires States Parties "[t]o prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status". Article 16(1)(d) requires States Parties to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular to ensure, on a basis of equality of men and women… [t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children". 14 The travaux préparatoires reveal that some countries argued for a Convention aimed at the elimination of any discrimination on the basis of sex, applying equally to men and women, but the views of those preferring a Convention focussing on discrimination against women prevailed: Lars Adam Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Martinus Nijhoff, 1993) at 44-47. Canada argued for the inclusion of an introductory article clearly proscribing discrimination on the ground of marital status: Draft Convention on the Elimination of Discrimination against Women: Report of the Secretary-General, Addendum 1, 12 October 1977, A/32/218/Add.1. 15 In prohibiting discrimination in the provision of services on the grounds of pregnancy and potential pregnancy, s 22 plainly gives effect to the Convention, because discrimination on those bases must involve discrimination against women. Prohibition of discrimination on the grounds of sex and marital status is different, because both men and women can be discriminated against on the grounds of their sex or marital status. The Convention does not require that States Parties prohibit discrimination against men on the basis of their sex or marital status but in the Sex Discrimination Act the Parliament chose to prohibit these forms of discrimination, using gender-neutral language to do so. 16 The Convention imposes some very specific obligations as well as others expressed in broad terms. Article 3, in particular, gives the Parties a broad discretion as to how to implement the Convention. In enacting the Sex Discrimination Act the Parliament chose to define sex discrimination and discrimination on the grounds of marital status in gender-neutral terms, with the result that both women and men gained the benefit of the protection of the Act. It cannot be doubted that the policy choice to seek to eliminate discrimination against women by making discrimination on the grounds of sex and marital status unlawful generally was open to the Parliament as a means of giving effect to the Convention. It is an approach that protects the rights of women on an equal basis with the rights of men, as contemplated by Art 2(c). Moreover, an approach founded upon the equality of men and women can be seen as more likely to achieve its objectives in relation to women than if women were singled out. Such an approach also avoids stereotypical assumptions about women as victims and as the only sex in need of protection from discrimination. In this connection the approach taken in the 1994 report of the Australian Law Reform Commission on women's equality may be noted. It recommended the introduction of an Equality Act, implementing the Convention and certain articles of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The point here is that the Commission considered whether the proposed Act should guarantee only women's rights of equality with men, or should apply for the benefit of both men and women, and most of the Commissioners took the view that the Equality Act should apply for the benefit of both men and women: Australian Law Reform Commission Report 69 Part II, Equality Before the Law: Women's Equality, 1994 at 66-68, see also at 329.

[4]

Does this case fall within the description "in relation to discrimination against women"? 17 The parties argued for different interpretations of the words "in relation to discrimination against women". AB argued that those words simply mean that s 9(10) applies where the complaint of discrimination is made by a woman. The consequence of that interpretation would be that women would enjoy the benefit of the prescribed provisions in more circumstances than men. The prescribed provisions would protect both men and women so long as any of ss 9(3), (6)-(9) and (11)-(20) applied, but women would have the additional protection of s 9(10) if none of the other subsections applied. The Registrar agreed that only women could rely on s 9(10), but argued for a narrower interpretation of the words "discrimination against women". The Registrar submitted that those words should have the same definition that they are given in Art 1 of the Convention, so that s 9(10) should only apply where there is a "distinction, exclusion or restriction made on the basis of sex" which impairs women's ability to exercise their rights "on a basis of equality of men and women". The consequence of this interpretation would be that s 9(10) would only apply when a woman was treated differently to a man in the equivalent position, which is not the case here. 18 Where one of the objects of an Act is to give effect to a Convention, there is much to be said for defining terms in the Act in the way that they are defined in the Convention. Here, however, the broader interpretation of the words "in relation to discrimination against women" propounded by counsel for AB better promotes the objects of the Act and should therefore be preferred. While either of the interpretations of "discrimination against women" in s 9(10) is consistent with the object of giving effect to the Convention (s 3(a)), the broader interpretation better achieves the purpose of "eliminat[ing], so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy" (s 3(b), emphasis added): compare IW v City of Perth at 11-12 per Brennan CJ and McHugh J. 19 In the furtherance of its objects, including the object of promoting "recognition and acceptance within the community of the principle of the equality of men and women" (s 3(d)), the Act proceeds on an entirely gender-neutral basis. With the obvious exceptions of pregnancy or potential pregnancy (see ss 4B and 7) the direct beneficiaries of the Act's policy of making various forms of discrimination unlawful are always "persons", that is to say, the beneficiaries are both men and women. Indeed, whilst ss 4B and 7 necessarily refer to women for definitional reasons, since only women can become pregnant, the substantive provisions of the Act making discriminatory conduct unlawful are all expressed in gender-neutral language. The care taken to use gender-neutral language, and thereby to advance a gender-neutral object, is well illustrated by s 7D(1)(c) which speaks of measures for the purpose of achieving substantial equality between "women who are pregnant and people who are not pregnant", and likewise s 7D(1)(d) refers to "women who are potentially pregnant and people who are not potentially pregnant". The section relied upon by the applicant/appellant, s 22, follows the consistent gender-neutral form of the Act's provisions. In these circumstances, I conclude that the narrower view of the expression "discrimination against women" in s 9(10) should not be adopted. 20 The State provision is overtly discriminatory on the ground of marital status against both men and women. The State provision does not cease to discriminate against women on the ground of marital status because it also discriminates against men on that ground, so that both are discriminated against. To give effect to the object of eliminating, so far as is possible, discrimination on the ground of marital status in the provision of services, the comparator called for by the Act is not a man but, speaking broadly, a person who is not married. To state the obvious, a woman in the position of the appellant who was not married would be entitled to have her affirmed sex registered under the Victorian Act but the provision, if valid, prohibited an alteration of birth registration in the appellant's case because she was then married. A man in the same position would be treated in the same way it is true; but both man and woman would thus be discriminated against on the ground of their marital status. 21 Had the Act expressed a different policy and provided, as it might have, that 'it is unlawful to discriminate against a woman on the ground of her sex, marital status, pregnancy or potential pregnancy' it would have been no answer in a case such as the present that the Victorian Act would have applied equally to a man. 22 There is a further point. If the interpretation contended for by the Registrar were correct, effectively "discrimination against women" in s 9(10) would be defined as 'sex discrimination against women'. This would produce a very odd result: where s 9(10) applied, the prohibition of discrimination on the grounds of marital status in each of the prescribed provisions would be given no work to do additional to the prohibition of sex discrimination that also appears in each of those provisions. The result would be the same as if the words "marital status" were not in the prescribed provisions at all. If that were the intended operation of s 9(10) the Parliament may have been expected to have made that intention much clearer. 23 It is by no means clear to me what purpose the expression "in relation to discrimination against women" was intended to serve in s 9(10), for if it had been omitted, so that s 9(10) provided simply that the prescribed provisions were to have effect "to the extent that the provisions give effect to the Convention", the intended confinement within the boundaries of Commonwealth legislative power under s 51(xxix) of the Constitution would have been achieved anyway. 24 It may be that the expression was intended as simply descriptive of the essential purpose of the Convention and that it really adds nothing to, and detracts nothing from, the expression "to the extent that the provisions give effect to the Convention". That view has the attraction of allowing the prescribed provisions to have a consistent operation, irrespective of which of the many sources of legislative power might be relevant in a particular instance, and in conformity with the overall policy of gender-neutrality that the Act embraces. It is not, however, necessary to go that far in the present case and counsel for the applicant did not seek to do so.

[5]

Service 25 The learned trial judge concluded that in refusing to alter the record of AB's sex in her birth registration, the Registrar had refused her a "service" for the purpose of the Act. The Registrar did not challenge that finding on appeal but, as Kenny J has pointed out, the Court should not make a finding that provisions of the Victorian Act are invalid by reason of the operation of s 109 of the Constitution without satisfying itself that what is provided under s 30A of the Victorian Act is a "service". As the consequence of my conclusion must be that there is a clear inconsistency here - there being a direct and inescapable conflict between the two Acts - I now turn to the question of service 26 The definition of "services" in the Act includes "services of the kind provided by a government, a government authority or a local government body." The main purpose of the provisions is evident from the second reading speech for the Births Deaths and Marriages Registration (Amendment) Act 2004 (Vic), which inserted s 30A and s 30C into the Victorian Act. In his speech the Attorney-General said: The inability for Victorians with transsexualism to have a birth certificate issued in their affirmed sex has a significant negative impact on many lives. In addition to denying them the same right as all other Australians to a birth certificate which accurately reflects their personal details, it often leads to an increased risk of discrimination and even violence. For example, consider the situation where a man of transsexual background is required to show his birth certificate in order to gain employment. That person will present as a male and have a male name on the birth certificate, but the birth certificate would record his sex as female. This not only leads to the necessity for embarrassing explanations, it also makes the person's transsexual history evident. This, in turn increases the chances of unlawful discrimination and perhaps even violence against the person. The bill aims to make it easier for people with transsexualism who have completed the process of transition to lead a normal life and to minimise the day-to-day difficulties caused by not having access to a birth certificate which reflects their affirmed sex.: Victoria, Parliamentary Debates, Legislative Assembly, 22 April 2004, 789 (Robert Hulls, Attorney-General). 27 In IW v City of Perth the High Court considered the meaning of the word "service" in the Equal Opportunity Act 1984 (WA). In that case a local council had refused planning permission for a drop-in centre for people with HIV. Applying the principle that terms in anti-discrimination legislation should be given a purposive and therefore a liberal or generous construction, the judges agreed that the word "service" had a wide and ordinary meaning: IW v City of Perth at 11 per Brennan CJ and McHugh J, at 23 per Dawson and Gaudron JJ, at 27 per Toohey J, at 41 per Gummow J, at 70 per Kirby J. The members of the High Court disagreed, however, about whether there had been a refusal of a service, and if there had, how the service should be characterised. Brennan CJ and McHugh J concluded that in exercising its discretion to determine whether or not to grant planning permission, the council was acting as a deliberative body and did not perform a service: IW v City of Perth at 12-17. Dawson, Gaudron and Gummow JJ concluded that the service was the act of considering the application: IW v City of Perth at 24 per Dawson and Gaudron JJ, at 44-45 per Gummow J. Kirby J found that the service was not the consideration, but the decision in relation to the application: IW v City of Perth at 72. Toohey J found that both the consideration of the application and the disposition of the application were parts of the service: IW v City of Perth at 27-29. 28 In argument before the trial judge the parties made submissions as to whether the relevant service here was the Registrar's consideration of an application, or the actual changing of the sex recorded on the birth registration. I agree with the trial judge that those arguments introduced "an unnecessary degree of subtlety into a simple process" (see [2006] FCA 1071 at [64]) because this case is much simpler, in this respect, than IW v City of Perth. The Registrar was not here exercising a deliberative function as the Council was in IW v City of Perth; the Registrar does not exercise any discretion, he or she simply assesses the application against the factual criteria in s 30A of the Victorian Act. In this respect the present case is much more like the cases discussed with approval by Brennan CJ and McHugh J in the following passage from their joint judgment in IW v City of Perth (at 13): [I]n Attorney-General (Canada) v Cumming, Thurlow A-CJ accepted that in assessing taxes under the Income Tax Act the Department of National Revenue was engaged in the provision of services within the meaning of s 5 of the Canadian Human Rights Act. Similarly, in Savjani v Inland Revenue Commissioners, the English Court of Appeal decided that the Inland Revenue was providing "services" to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim that tax relief. (footnotes omitted) The same cases are discussed by Gummow J at 42-43. 29 Applying a purposive interpretation of the word "service", I conclude that the alteration of a person's sex on their birth registration comes within the meaning of that term.

[10]

THE CIRCUMSTANCES OF THE APPEAL 32 AB was born in Victoria. Her birth registration in this State recorded her as male. AB, who has undergone sex affirmation surgery, wants to have her birth registration altered to record her as female. She completed the surgical phase of her sex affirmation surgery on 20 April 2002. This surgery involved the alteration of AB's reproductive organs for the purpose of assisting AB to be considered female. 33 The respondent is the Registrar of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1996 (Vic) ('the Registration Act'). In the following discussion, the respondent is called 'the Registrar'. 34 On 20 June 2005, about two years ago now, she applied to the Registrar for the record of her sex in her birth registration to be altered. At the time of this application, AB was over 18 years of age and married, although she was living separately from her marriage partner. Over five years before this application, on 31 March 2000, the Registrar had issued a birth certificate that accorded her a female given name, instead of the male name she had been given at birth. The Registrar issued this certificate under Pt 4 of the Registration Act, in order to reflect AB's female identity: see s 29(3). Sadly from AB's perspective, this birth certificate continued to show her sex as male. 35 In Victoria, it is possible for a person to have the sex recorded in their birth registration altered. Section 30C(1) of the Registration Act provides that the Registrar may determine an application under s 30A to alter a person's birth registration "by altering the record of the applicant's sex in the applicant's birth registration or refusing to do so". The Registrar has refused to alter the record in AB's case. By letter dated 12 July 2005, the Registrar informed AB that, because she was "currently married", she did not meet the "criteria of the legislation" permitting the Registrar to alter the record of AB's sex in her birth registration. 36 On 20 July 2005, AB lodged a complaint with the Human Rights and Equal Opportunity Commission ('HREOC'). AB affirmed that the Registrar's refusal to alter her birth registration constituted discrimination in the provision of goods or services on the ground of marital status contrary to the Sex Discrimination Act 1984 (Cth) ('the SDA'). On 19 October 2005, HREOC issued a Notice of Termination under s 46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act'). 37 On 16 November 2005, AB made an application to this Court under s 46PO of the HREOC Act, as she was entitled to do following HREOC's Notice of Termination. In this application, AB sought a declaration that the Registrar had unlawfully discriminated against her on the ground of her marital status, and an order that the Registrar alter the record of her sex in her birth registration. AB also sought compensation. AB and the Registrar agreed that, if the case for compensation were made out, the amount of compensation would be $1,000. 38 At the hearing before the primary judge, the parties also agreed that the question for the Court's determination should be as follows: …was the refusal of the Registrar to consider on its merits the application to alter the record or to alter the record of the applicant's sex in the applicant's birth registration an act which constituted unlawful discrimination on the ground of marital status within the meaning of s 22 of the Sex Discrimination Act 1984 (Cth)?

[19]

THE DECISION OF THE PRIMARY JUDGE 50 The primary judge said that there were two issues in the case, namely: (1) whether, having regard to s 9(4) and (10) of the SDA, s 22 applied to the Registrar's conduct; and (2) if it did, whether the Registrar's conduct constituted refusing to provide a service. His Honour accepted that s 9(4) and (10) required the Court to ask whether s 22(1), in so far as it prohibited discrimination on the ground of marital status, would be discharging one or other of the legislative obligations undertaken by Australia as a party to the Convention. 51 The primary judge reasoned that: · The Convention addressed "a particular species of the genus discrimination, namely discrimination against women". · The definition of the term "discrimination against women" in the Convention made it clear that the Convention was concerned with discrimination against all women, including discrimination against women because they were married or unmarried women. The definition did not, however, extend to discrimination against all persons, male and female, simply on the ground of marital status. The "Commentary on UK Reservations and Declarations, Statement entered by the United Kingdom on 7 April 1986", which was an annexure to the report of the UN Committee on the Elimination of Discrimination against Women of 31 July 1995, confirmed this proposition. · The obligations under the Convention were confined to acting and refraining from acting in relation to disadvantage suffered by women as compared with men. · The Convention did not deal with marital status discrimination per se but with discrimination against women because of their marital status. · Section 22 of the SDA was "not … a step along the way to some greater goal concerned with discrimination against women only": AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071 at [57] per Heerey J. In so far as s 22 concerned stereotypes, it was a stereotype that might arise from a person being married, or unmarried, irrespective of sex. At [59]-[60] of his reasons, his Honour said: Section 9(10) speaks of 'giv[ing] effect to the Convention'. A major element, albeit not the only one, of the Convention is the obligation undertaken by States Parties to legislate in a number of areas to proscribe discrimination against women. Section 22 being legislation, and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia's discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women - treating them less favourably than men - because they are married. The action of the Registrar in the present case had nothing to do with the applicant's being a woman. Had the applicant been a man, the result of the application would have been the same. 52 Accordingly, his Honour decided that s 22 of the SDA did not apply to the Registrar's refusal under s 30C(1) of the Registration Act. AB appeals from this judgment. 53 Although it could not affect his conclusion, the primary judge also held that the Registrar's refusal constituted "refusing to provide a service" for the purposes of s 22 of the SDA. On appeal, the Registrar did not challenge his Honour's finding in this regard.

[20]

THE PARTIES' SUBMISSIONS 54 The appellant cannot succeed on this appeal unless the effect of s 9(4) and (10) is to apply s 22 of the SDA to the decision made by the Registrar, under s 30C(1) of the Registration Act, to refuse to alter the record of AB's sex in her birth registration, on the ground that she was married. 55 AB submitted, and the Registrar denied, that s 22, to the extent that it prohibited discrimination on the basis of marital status in the provision of services, gave effect to the Convention. AB and the Registrar agreed that the issue was to be resolved by reference to the obligations created by the Convention. 56 AB contended that the prohibition against discrimination on the ground of marital status in s 22 of the SDA gave effect to the Convention because: (1) the Convention was not solely concerned with discrimination against women on the basis of sex or with inequality between men and women; and (2) the Convention required parties to take appropriate measures to advance the status of women, and to reduce discrimination against them by eliminating practices reflecting stereotypical views. AB submitted that, if the Convention were only concerned with discrimination on the basis of sex, then there would be no need for arts 7 and 8 to specify that rights granted to women should be on equal terms with men. AB further submitted that arts 1, 2, 7 and 16 of the Convention imposed a secondary obligation, which was "to prohibit all forms of discrimination against women, which include[d] discrimination on the basis of marital status". That is, according to AB, the Convention imposed an obligation to eliminate discrimination on the ground of marital status per se in so far as the act of discrimination affected a woman. 57 AB argued that, by virtue of s 22 of the SDA, the Commonwealth Parliament had made a legislative judgment that there was an obligation under art 5 of the Convention to prohibit discrimination against women on the basis of marital status. This was because s 22 gave effect to art 5 by proscribing discrimination on the ground of marital status to "nip in the bud" prejudices against women. Further, so AB submitted, if the Registrar's arguments were accepted, then many provisions of the SDA would protect only against "discrimination, or unequal treatment, of women on the grounds of sex". 58 The Registrar joined with AB in submitting that altering a birth registration could properly be regarded as a helpful activity and, therefore, a service for the purpose of s 22. Essentially, the Registrar's submission was that a prohibition against married persons securing an alteration of their birth registration after gender reassignment surgery had nothing to do with remedying disadvantage against women. The prohibition reflected a decision taken by the Victorian Parliament concerning the institution of marriage. The criterion of marital status operated as a neutral criterion. 59 The Registrar's case was that s 22, when read with s 9(4) and (10), prohibited discrimination on the ground of marital status "if, and only if, the imposition of such a prohibition … (a) operated on the facts 'in relation to discrimination against women' as that phrase is defined in art 1 of … [the Convention]; and (b) would 'give effect to', in the sense of implementing Australia's obligations under, [the Convention]". According to this analysis, there were two critical questions: first, did the Registrar's conduct in refusing to alter the record of AB's sex involve discrimination against women? Secondly, would prohibiting the Registrar's conduct give effect to the obligations that Australia assumed under the Convention? The Registrar argued that the first question should be answered in the negative because the applications of a married man and a married woman would both be refused. Further, the Registrar said that the second question should be answered in the negative also because the obligations that Australia assumed under the Convention were concerned only with discrimination against women as compared to men. The Registrar submitted that, aside from art 2, s 22 was incapable of giving effect to arts 1, 5, 6, 7, 8 or 16 because their subjects were "quite distinct from the provision of services of the kind under consideration in this appeal". The appeal could only succeed, so the Registrar argued, if the Court held that s 22, when read with s 9(10), extended to "discrimination by the State of Victoria on the ground of any person's marital status". The Registrar submitted that there were no textual or contextual indicators that the Convention sought to prohibit discrimination on the ground of marital status per se. Thus, so the Registrar submitted, the Convention imposed obligations to eliminate discrimination between women on the basis of marital status only for the purpose of ensuring equality of women with men. 60 The Registrar contended that s 22 imposed a legitimate and effective prohibition on the conduct of the Crown in right of the State where that conduct directly (on the basis of sex and pregnancy) or indirectly (on the basis of marital status or family responsibilities) treated a woman less favourably than a man would be treated in the same or similar circumstances. The Registrar further argued that the Commonwealth Parliament had made "express choices about what fields of activity it will regulate, which actors it will regulate and to what extent it will regulate those actors in the chosen fields of activity". 61 The Registrar submitted that the Commonwealth Parliament had not sought to implement the Convention's obligations by enacting gender-neutral anti-discrimination legislation. This possibility was denied by s 9(4) and (10), which made it clear that s 22 operated only in relation to discrimination against women, as defined in art 1 of the Convention. The Registrar invited the Court to compare these application provisions with those in s 12 of the Disability Discrimination Act 1992 (Cth). The Registrar submitted that the expression "in relation to discrimination against women" in s 9(10) of the SDA was either a limitation or "a declaration by the Parliament of the subject matter and the scope of the Convention".

[22]

63 The question is whether a State law operating to prevent the Registrar from altering a post-operative transsexual person's birth registration if that person is in an existing marriage is inconsistent with s 22 of the SDA, as applied by s 9(4) and (10). Section 109 of the Constitution will invalidate a law of a State in so far as the State law would require what the law of the Commonwealth would forbid, or in so far as the State law would vary, detract from, or impair the operation of the law of the Commonwealth: see Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at 76-77 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; University of Wollongong v Metwally (1984) 158 CLR 447 at 455-456 per Gibbs CJ; Victoria v The Commonwealth (1937) 58 CLR 618 at 630 per Dixon J; and Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136-137 per Dixon J. If AB's submissions are accepted, then the impugned State law is inconsistent with s 22 of the SDA, as applied by s 9(4) and (10), because the State law requires the Registrar to do what the Commonwealth law forbids. If so, the State law is invalid to the extent of the inconsistency. 64 Part 4A of the Registration Act, which was introduced by the Births, Deaths and Marriages Registration (Amendment) Act 2004 (Vic), provides for the recognition of the sex of someone who has undergone sex affirmation surgery. The amending legislation was introduced following the preparation of a confidential discussion paper, in September 2003, on "Changes to Birth Certificates for Transsexual People" by the Victorian Attorney-General's Advisory Committee on Gay, Lesbian, Transgender and Intersex issues. 65 Sex affirmation surgery, as defined in s 4(1) of the Registration Act, is a surgical procedure that involves the alteration of a person's reproductive organs carried out for the purpose of assisting the person to be considered a member of the opposite sex. That is, the definition contemplates not only a complex surgical procedure but also that the procedure be done for a specific purpose. If a person born in Victoria undergoes this procedure and subsequently makes an application in accordance with Pt 4A, then the Registrar may alter the person's birth registration and issue a new birth certificate stating the person's sex as surgically affirmed: see s 30C(1) and 30D(1). For a person resident in Victoria for at least 12 months, though born outside the State, the Registrar may issue a document that acknowledges that person's name and sex: see s 30E(1). The Registration Act further provides, in s 30G, that where the record of a person's sex has been altered under Pt 4A, the person is a person of the sex as altered for the purposes of, but subject to, the law of Victoria: compare also Secretary, Department of Social Security v SRA (1993) 43 FCR 299 ('SRA') at 304-305 per Black CJ and 325-326 per Lockhart J (with both of whom Heerey J agreed). 66 Similarly, s 30G provides that, where a person has been issued with an interstate recognition certificate, as defined in s 4(1), the person is a person of the sex stated in the certificate. An interstate recognition certificate is a current certificate identifying a person as being of a particular sex issued under the Gender Reassignment Act 2000 (WA), the Sexual Reassignment Act 1988 (SA), or any other law prescribed by the regulations for the purposes of Pt 4A. This definition reflects the fact that other Australian States and Territories have made similar legislative provision for persons who have undergone sex affirmation surgery: see Sexual Reassignment Act 1988 (SA), s 7; Gender Reassignment Act 2000 (WA), ss 15, 16; Births, Deaths and Marriages Registration Act 1995 (NSW), ss 32B, 32D; Births, Deaths and Marriages Registration Act 2003 (Qld), ss 22, 23; Births, Deaths and Marriages Registration Act 1999 (Tas), ss 28A, 28C; Births, Deaths and Marriages Registration Act 1997 (ACT), ss 24, 26; Births, Deaths and Marriages Registration Act (NT), ss 28B, 28E. This mirrors a growing international consensus about the need to accord legal recognition following a gender re-assignment: compare, e.g., Christine Goodwin v The United Kingdom no. 28957/95, [2002] ECHR 588 ('Goodwin') at [84]-[88] and [100]-[104]; I v The United Kingdom no. 25680/94, [2002] ECHR 592; and SRA at 316-317 per Lockhart J. 67 The importance for persons like AB of recognizing their identity through the issue of a birth certificate cannot be underestimated. It is also important for the communities to which they belong. This is inherent in the statements by the European Court of Human Rights in Goodwin at [77] and [100] that: The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which placed the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety. … There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found … that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors - the acceptance of the condition of gender identity disorder by the medical professions and health authorities …, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender.

[23]

68 This last-mentioned reference to the institution of marriage is apposite in the present context. The history of the Births, Deaths and Marriages Registration (Amendment) Bill 2004 ('the Bill') in Victoria shows that the State did not extend the benefit of the new legislation to married persons, because it was concerned to avoid conflict with the Commonwealth over the issue of "same sex" marriages, since at the Commonwealth level, the Government had opposed this possibility. The perceived difficulty would arise where, after a valid marriage, a party to the marriage sought recognition of a transsexual identity. Under Australian law, the question whether a person is a man or a woman for the purpose of marriage validity is determined as at the date of the marriage: see Kevin v Attorney-General (Commonwealth) (2001) 165 FLR 404 ('Kevin') at 475 per Chisholm J; affirmed on appeal, (2003) 172 FLR 300 at 364 per Nicholson CJ, Ellis and Brown JJ. The common law conception of marriage has entailed, amongst other things, the union of a man and a woman: see Kevin 165 FLR 404 at 406 and 172 FLR 300 at 313. 69 There is no doubt that, in introducing Pt 4A, the Victorian legislature gave consideration to the matter of marital status. Apparently, for this pragmatic reason, it limited the benefit of the new legislation to unmarried persons. In the second reading of the Bill on 11 May 2004, the Attorney-General, Mr Robert Hulls, responded to some specific questions about this limitation. Amongst other things, he noted that the limitation was "consistent with the model in other states and territories". He also said: The requirement for an applicant to be unmarried avoids the question of whether the person is in a same-sex marriage. … Given that marriage is a matter for the commonwealth government - which … has made its views on same-sex marriages very clear … . If this legislation in Victoria did allow a person to be married before transitioning and changing their birth certificate it may be open to a legal challenge on the basis of inconsistency with the commonwealth Marriage Act. While in Victoria we are committed as a government to ensuring that people in domestic partnerships are treated in the same way as married people, the inability of a married person to apply for a changed birth certificate under this legislation is based on commonwealth law, over which we in Victoria have no control. (Hansard, Legislative Assembly, 11 May 2004, p 1107) As Mr Hulls noted, under the Constitution, the Commonwealth has power to make laws with respect to marriage: see s 51(xxi). 70 The terms of ss 30A and 30C(3), as well as statements in the course of the second reading of the Bill, show that Pt 4A was deliberately limited to unmarried persons, in order to avoid conflict with the Commonwealth Government, which was then perceived as subscribing to a conception of the institution of marriage that would not allow for a married person to have a record of their sexual identity altered. Thus, Pt 4A enables the Registrar, upon application, to alter the sex in an unmarried post-operative transsexual person's birth registration and issue a new birth certificate reflecting this alteration. The Registrar has no comparable power in the case of a married person, irrespective of whether the identity recognition sought is from a male-to-female or a female-to-male person. The adoption of marital status in Pt 4A as a criterion for eligibility is thus designed to serve a different purpose from the use of marital status as an indirect form of sex discrimination. In Pt 4A, the marital status criterion is intended to avoid colliding with a particular view of the institution of marriage. 71 The SDA has been variously amended since its coming into force on 1 August 1984. Although attempts have been made to simplify some of its provisions, its structure remains complex. The Australian Law Reform Commission ('ALRC') has commented that, in dealing with discrimination on the basis of sex, the SDA "is based upon the formal equality approach and to a lesser extent the differences approach": ALRC, Equality before the Law: Women's Equality, Report 69, Pt II ('Report 69 Pt II') at [3.28]. Further, broadly speaking, and subject to what follows, the SDA itself uses gender-neutral language that would extend protection to all persons suffering sex discrimination, whether female or male. 72 The objects of the SDA are stated in s 3 to be: (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and (b) to eliminate, so far as possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and (ba) to eliminate, as far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and (c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and (d) to promote recognition and acceptance within the community of the principle of the equality of men and women.

[24]

73 As s 3 presages, the SDA prohibits direct and indirect discrimination on the grounds of sex (s 5), marital status (s 6), pregnancy or potential pregnancy (s 7) and family responsibilities (e.g., s 7A), but only in specified areas such as employment (ss 14-20), education (s 21), the provision of goods, services and facilities (s 22), accommodation (s 23), disposition of land (s 24), admission to membership of clubs (s 25), administration of Commonwealth laws and programs (s 26) and application form requirements (s 27). There are also provisions prohibiting sexual harassment: see s 28A-28L. As we have already seen, the SDA provides for a right of complaint to HREOC by persons who consider they have been the subject of discrimination on specific grounds in certain circumstances, subject to numerous exceptions and exemptions. A complainant may file an application in this Court if HREOC is unable to resolve the complaint. 74 The prohibition in s 22 with which this appeal is concerned is against discrimination on the ground of marital status by refusing to provide services. Marital status is defined in s 4(1) as the status or condition of being single, married, married but living separately and apart from one's spouse, divorced, widowed, or the de facto spouse of another person. Direct discrimination on the ground of marital status will occur if, because of the aggrieved person's marital status, or a characteristic pertaining to or generally imputed to persons of that marital status, the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of a different marital status in circumstances that are the same or not materially different: see s 6(1). Indirect discrimination on the ground of marital status will occur if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital status as the aggrieved person: see s 6(2). If s 22 is applicable, the present is a case of direct discrimination and therefore s 7B, which provides a defence of reasonableness, is inapplicable: see, for example, McBain v State of Victoria (2000) 99 FCR 116 ('McBain') at 123 per Sundberg J and the authorities there cited. 75 But for s 9 this appeal might readily be resolved. If s 22 of the SDA applies, it makes it unlawful for a person to refuse to provide a service to another on the ground of the latter's marital status. This is, however, what the Registrar is required to do by s 30C(3) of the Registration Act. Under the Registration Act, the Registrar can alter the birth registration of post-operative transsexual person only if that person is unmarried. Section 30C(3) requires the Registrar to treat AB less favourably than an unmarried person. It would not be possible for the Registrar to obey s 30C(3) and s 22 of the SDA. These provisions would be directly inconsistent. But for s 9, s 30C(3) of the Registration Act (and any provision that proceeds on the basis that the Registrar can only alter the birth register of an unmarried person) would, to the extent of the inconsistency, be invalid. The operation of Pt 4A of the Registration Act would be otherwise unaffected: see Interpretation of Legislation Act 1984 (Vic), s 6(1). 76 Section 9 of the SDA, which is the real occasion of difficulty in this appeal, stands in the way of this ready resolution. The purpose of s 9(4) and the following subsections is to ensure that the provisions in Divisions 1, 2 and 3 of Pt II have effect in relation to matters falling within the scope of the legislative powers of the Commonwealth: see South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 ('Trainor') at 405-407 per Black CJ and Tamberlin J, with whom Kiefel J agreed. That is, by virtue of s 9(4), the prescribed provisions of Pt II, which includes s 22, are to be given effect throughout Australia to the extent that they fall within Commonwealth legislative power. As their Honours noted in Trainor at 406, the second reading speech for the Sex Discrimination Bill 1983 (Cth) ('the SD Bill') confirms this understanding of s 9(4). Relying on the external affairs power in s 51(xxix) of the Constitution, which had recently been the subject of the High Court's consideration in Commonwealth v Tasmania (1983) 158 CLR 1 ('Tasmanian Dam Case'), the SD Bill provided, amongst other things, that certain provisions were to have effect in relation to discrimination against women to the extent that they give effect to the Convention. This became s 9(10) of the SDA. 77 Curiously, considering that twenty years has passed since the SDA was enacted, there is little discussion in the authorities on the interaction of s 9(4) and (10) and s 22. The issue was not considered in Pearce v South Australian Health Commission (1996) 66 SASR 486: see 490 per Williams J, with whom Bollen and Millhouse JJ agreed. In McBain, Sundberg J held that s 8 of the Infertility Treatment Act 1995 (Vic), which prevented a single woman from receiving IVF treatment, was inoperative because it was inconsistent with s 22 of the SDA. His Honour did not have any occasion to consider the effect of s 9(4) and (10). The issue was subsequently mentioned by the unsuccessful applicants for prerogative writs in argument before the High Court: see Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 380. It was not otherwise discussed. 78 Section 9(10) gives rise to the question whether, in relation to discrimination against women, the prohibition against discrimination on the ground of marital status in s 22 is a prohibition that "gives effect to the Convention". This is the question of construction upon which the question of inconsistency partly depends. The words "in relation to discrimination against women" in s 9(10) are also relevant to this question. Put another way, s 22 of the SDA does not operate in terms unless the question that arises under s 9(10) receives an affirmative answer. This question is whether the prohibition against discrimination on the ground of marital status in s 22 operates in relation to discrimination against women, to give effect to the Convention. 79 The Convention, which was opened for signature on 1 March 1980, entered into force on 3 September 1981. On 28 July 1983, Australia ratified the Convention and, pursuant to art 27(2), the Convention came into force for Australia on 27 August 1983. 80 In identifying the nature of the obligations to which the Convention gives rise, it is necessary to have regard to the Vienna Convention on the Law of Treaties ('the Vienna Convention'): compare Povey v Qantas Airways Ltd (2005) 216 ALR 427 at 433 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ('Applicant A') at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Pursuant to art 31(1) of the Vienna Convention, the Convention must be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". For this purpose, the context includes the text, and the preamble. Article 31(3)(b) of the Vienna Convention refers to the relevance of State practice. Pursuant to art 32 of the Vienna Convention, recourse may also be had to the preparatory work of the Convention and the circumstances of its conclusion. I refer particularly to the text, the preamble and the preparatory work below. I also refer to statements of the United Kingdom concerning the Convention. 81 As its title indicates, the Convention is specifically concerned with discrimination against women. Article 1 of the Convention defines "discrimination against women" as: any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. (Emphasis added)

[25]

The definition is concerned with discrimination against women, not sex discrimination per se. Other articles show that the Convention is concerned to vindicate the principle of equality of rights for men and women ('the equality principle'), by giving women equal rights with men in public and private life. For scholarly discussions of the Convention, see, e.g., Rebecca J Cook, "Reservations to the Convention on the Elimination of All Forms of Discrimination against Women", (1990) 30 Virginia Journal of International Law 643; Sally Engle Merry, "Gender Violence and the CEDAW Process" in Human Rights & Gender Violence: Translating International Law into Local Justice (2006, Chicago Series in Law and Society) at 72; Myres S McDougal, Harold D Lasswell and Lung-chu Chen, "Human Rights for Women and World Public Order: the Outlawing of Sex-Based Discrimination", (1975) 69 American Journal of International Law 497; Andrew Byrnes, "Human Rights Instruments Relating Specifically to Women, with particular emphasis on the Convention on the Elimination of All Forms of Discrimination against Women" in Andrew Jane Byrnes, Jane Connors and Lum Bik (eds), Advancing the Human Rights of Women: Using International Human Rights Standards in Domestic Litigation (1997, Commonwealth Secretariat). 82 Article 2 is central to the Convention. Pursuant to art 2, State Parties undertake to implement the equality principle and eliminate discrimination against women, in so far as their rights and freedoms are less than those of men. Article 2 provides: State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women. (Emphasis added)

[27]

84 Various articles require State Parties to take measures, "including legislation", to remove discrimination in particular fields of activity, including education (art 10), employment (art 11), health (art 12 and 14), and rights relating to marriage and family (art 16), in each case, "on the basis of equality of men and women". These articles also support the proposition that the Convention gives rise to obligations for the State Parties to implement the equality principle and, in so doing, place the rights of women on an equal footing with the rights of men. Article 24 reinforces these obligations by requiring the State Parties "to adopt all necessary measures … aimed at achieving the full realization of the rights recognized in the present Convention". 85 The text also supports the proposition that the Convention gives rise to obligations regarding the elimination of discrimination on the basis of marital status only in so far as such discrimination entails discrimination against women. There are only three express references to marital status in the Convention. One in art 1 (see above at [50]); others are in art 11(2)(a) and 16(d). Article 11(2)(a) provides that "[i]n order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, State Parties shall take appropriate measures, … [t]o prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status". Article 16(1)(d) requires State Parties to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women … [t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children". Articles 1, 11(2)(a) and 16(a) show that, in so far as the Convention imposed obligations referable to marital status, they are directed to eliminating discrimination on the basis of marital status in order to secure the same rights for women as men. 86 An "ordered yet holistic" approach is properly adopted in construing the Convention: see Applicant A at 254 per McHugh J. While primacy is given to the text, the context, object and purpose of the Convention are to be borne in mind. Accordingly, it is relevant to consider the preamble to the Convention, the preparatory work and any relevant State practice. 87 The 15 preambular paragraphs of the Convention cover numerous issues, at least some of which appear to be outside the scope of the Convention (such as racism, and international peace and security). Indeed, Jacobson noted that: In some respects the preamble 'diverges further from the central issues … than does the preamble to any other human rights treaty'.

[28]

See Roberta Jacobson, "The Committee on the Elimination of Discrimination against Women" in Philip Alston (ed), The United Nations and Human Rights (1992 Clarendon Press) at 446, citing Noreen Burrows, "The 1979 Convention on the Elimination of all Forms of Discrimination against Women", (1985) 32 Netherlands International Law Review 420. Relevantly for present purposes, however, the preamble notes the inadmissibility of discrimination, including "distinction based on sex", and records an awareness of a need for a change in the traditional roles of men and women. These references would support a broad reading of the Convention compatible with a wider vindication of the principle of equality than otherwise indicated in the text. 88 The preparatory work confirms, however, that the text of the Convention is not to be drawn beyond its natural scope. Rehof shows that the definition in art 1 went through various drafts. An original text proposed by the Philippines ('Draft 1') "mentioned 'preference on the basis of sex' in the enumeration of discriminatory acts": see Lars Adam Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (1993, Martinus Nijhoff) at 43. Alternative texts ('Draft 4') "tended to combine the wording and ideas of the proposed articles in the different drafts" (Rehof 43) and, like Draft 1, to contemplate discrimination on the ground of sex. Canada and Sweden would have preferred a definition that covered discrimination against either sex rather than discrimination against women: see Rehof 46; and UN General Assembly, Draft Convention on the Elimination of Discrimination Against Women, Report of the Secretary General, Addendum A/32/218/Add. 1, 12 October 1977, p 2 para 6. The United Kingdom took the opposite view, objecting to both versions of Draft 4, on the ground that both might cover discrimination against men and this result should be avoided: see Rehof at 46; and UN Economic and Social Council, Draft Convention on the Elimination of Discrimination Against Women, Working paper prepared by the Secretary General, E/CN.6/591 (21 June 1976), pp 11, 14, 16, 51-54. The approach of the United Kingdom was ultimately accepted: see Rehof at 47. 89 There was a similar debate in relation to marital status. Canada argued for the inclusion of an introductory article proscribing discrimination on the basis of marital status: A/32/218/Add. 1, 12 October 1977, p 4 para 17. This was not accepted by the majority of States. Whilst art 1 refers to marital status, the preparatory work indicates that this was intended to do no more than cover instances where discrimination on the ground of marital status also involved discrimination against women. 90 In summary, the preparatory work supports the proposition that, notwithstanding the contrary views expressed in the course of its drafting, the Convention sought to vindicate the principle of equality by creating obligations for State Parties to eliminate discrimination against women - by placing the rights of women on an equal footing with the rights of men and removing discrimination on the ground of marital status where it entailed the less favourable treatment of women as compared to men. Neither the text nor the preparatory work supports the proposition that the Convention gives rise to an obligation to eliminate discrimination on the ground of marital status per se, or even as regards women where such discrimination does not involve less favourable treatment than men. 91 As the primary judge noted, the proposition that the Convention did not cover discrimination on the basis of marital status per se is also supported by a reservation adopted by the United Kingdom, even though later withdrawn. As at 7 April 1986, the United Kingdom's statements on the Convention included the statement that: With reference to the provisions of the Sex Discrimination Act 1975 and other applicable legislation, the United Kingdom's acceptance of Article 1 is subject to the reservation that the phrase 'irrespective of their marital status' shall not be taken to render discriminatory any difference of treatment accorded to single persons as against married persons, so long as there is equality of treatment as between married men and married women and as between single men and single women.

[30]

See UN Committee on the Elimination of Discrimination Against Women, Third Periodic Report of State Parties - United Kingdom of Great Britain and Northern Ireland, CEDAW/C/UK/3 (31 July 1995) at 5, 125-6. 92 There is little support in the text of the Convention or the preparatory work for the proposition that the Convention was concerned with distinctions between classes of women of differing marital status, as AB sought to maintain. This is not to say that the Convention is blind to discrimination against women on the basis of their marital status. Articles 9(1), 11(2) and 16(1) recognize that the marital status of women has been used as a criterion for according women lesser rights than men in, for example, employment, nationality and choice of identity. Whilst the Convention recognizes, in arts 6 and 12, that some women are in circumstances of greater disadvantage than other women, this disadvantage arises from their status as women. Recognition is an aspect of the means by which the Convention vindicates the principle of equality of women and men. It does not follow that the Convention was concerned to eradicate all forms of discrimination based on marital status as distinct from all forms of discrimination against women, with which it is plainly concerned. 93 The question that s 9(10) requires this Court to resolve is whether, having regard to the Convention, in relation to discrimination against women, the prohibition in s 22 of the SDA against discrimination on the ground of marital status in the supply of services is a prohibition that can be said to "give effect to the Convention". In formulating s 9(10) as it did, the Parliament sought to give effect to s 22 in so far as it could be supported as an exercise of legislative power under s 51(xxix) of the Constitution. At the time s 9(10) was enacted, it was generally accepted that, as described by Stephen J in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 212, "… the highest common factor to be deduced from the judgments in this Court concerning the meaning of … paragraph [xxix]" was that it included "a power to implement by legislation within Australia such treaties, on matters international in character and hence legitimately the subject of agreement between nations, as Australia may become party to". See also Tasmanian Dam Case at 129-130 per Mason J, 231 per Brennan J and 259 per Deane J. To adapt the language of the joint judgment in Queensland v Commonwealth (1989) 167 CLR 232 ('Queensland v Commonwealth') at 238 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, the words 'give effect to' "hark back to the foundations of Commonwealth legislative power under s 51(xxix) of the Constitution". 94 In the constitutional field, the extent of the legislative power depends on the terms of the Convention, and upon the rights and duties to which the Convention gives rise: see R v Burgess; ex parte Henry (1936) 55 CLR 608 at 688 per Evatt and McTiernan JJ; and Tasmanian Dam Case at 130 per Mason J, 170-171 per Murphy J, 231 per Brennan J and 259 per Deane J. In the latter case, Deane J said at 259, "a law would not properly be characterized as a law with respect to external affairs if it failed to carry into effect or to comply with the particular provisions of a treaty which it was said to execute". This is not to say that the fit between treaty obligation and its legislative implementation must be precise. It is enough that the law bear the character of a measure implementing the treaty. This will be so if the legislation is capable of being reasonably considered appropriate and adapted to this end. Again, to quote Deane J at 259: while the question of what is the appropriate method of achieving a desired result is a matter for the Parliament and not for the Court … the law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs ... .

[31]

95 The criterion of "appropriate and adapted" has continued to be used in determining whether or not legislation can properly be characterized as legislation that gives effect to treaty or convention obligations: see Richardson v Forestry Commission (1988) 164 CLR 261 at 288-289, 291 per Mason CJ and Brennan J, 303 per Wilson J, 309-312, 314 per Deane J, 336 per Toohey J and 342 per Gaudron J; Victoria v Commonwealth (1996) 187 CLR 416 at 546-547 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; and Toben v Jones (2003) 129 FCR 515 ('Toben v Jones') at 524 per Carr J, at 528 per Kiefel J and 550 per Allsop J. 96 The question on this appeal is not whether s 22 of the SDA, read with s 9(4) and (10), is constitutionally valid. It plainly is a law capable of being reasonably considered appropriate and adapted to give effect to the Convention. This is because the operation of s 22, read with s 9(4) and (10), depends on whether, in relation to discrimination against women, the prohibition against discrimination on the basis of sex, pregnancy or potential pregnancy, and marital status in the supply of goods and services, gives effect to the Convention: see Queensland v Commonwealth at 239. 97 This appeal is concerned with the question whether, as a matter of statutory construction, s 22, when read with s 9(4) and (10), gives effect to obligations arising from the Convention. Again, an affirmative answer must be given. Under art 2(b), (c) and (e), the State Parties undertook, amongst other things, to adopt appropriate legislation prohibiting discrimination against women; to establish legal protection of the rights of women on an equal basis with men; and to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. Further, the State Parties agreed, by art 5, to take all appropriate measures to modify the social and cultural patterns of men and women, with a view to eliminating prejudices and practices based on the idea of inferiority or superiority of the sexes or stereotyped roles for men and women. Whilst these provisions leave a large measure of discretion to the State Parties, they nonetheless give rise to obligations: compare Tasmanian Dam Case at 132-133 per Mason J, 178 per Murphy J, 231 per Brennan J and 261-262 per Deane J; and Toben v Jones at 550 per Allsop J and the authorities there cited. 98 Section 22, when read with s 9(4) and (10), gives effect to the obligations in these articles. The words in s 9(10) "… in relation to discrimination against women" confine the operation of s 22 to discrimination against women: see below at [70]. There can be little doubt that the legislative prohibition in s 22, given effect by s 9(10), gives effect to the obligations in art 2(b), (c) and (e), in so far as it prohibits discrimination against women on the basis of sex and pregnancy or potential pregnancy by persons engaged in the supply of goods and services. The legislative prohibition could also be viewed as a means of giving effect to art 5 of the Convention. 99 Is the legislative prohibition in s 22 against discrimination on the ground of marital status relevantly different? A short examination of Australian history shows that discrimination against women on the ground of marital status has been commonplace. For example, until relatively recently, there were discriminatory laws throughout Australia against the employment of married women: see "Discrimination in Employment or Occupation on the Basis of Marital Status-I" (1962) 85 International Labour Review 262. Until 1968, only married and unmarried men and unmarried women could be employed under s 49 of the Public Service Act 1922 (Cth). Married women could not be employed unless there were special circumstances justifying their employment. Section 104 of the Commonwealth Banks Act 1959 (Cth) and s 53 of the Broadcasting and Television Act 1942 (Cth) were to similar effect. They were both repealed in 1968. 100 Discrimination against women also took the form of discrimination against women on the basis of their marital status in other countries: see 85 International Labour Review 262. As already noted, the Convention recognises the prevalence of this form of discrimination against women with respect to employment, nationality and choice of identity. 101 In view of this history, in relation to discrimination against women, it is plain enough that the legislative prohibition in s 22, given effect by s 9(10), against discrimination on the ground of marital status by persons engaged in the supply of goods and services also gives effect to the obligations in art 2(b), (c) and (e). Further, the prohibition can also seen as giving effect to the obligation in art 5 - which looks to the modification of social and cultural patterns of conduct to eliminate prejudices based on stereotyped roles for men and women. To the extent that the Registrar argued to the contrary, I would reject those submissions. 102 This does not, however, conclude this case. The final question concerns the meaning and effect of the expression "… in relation to discrimination against women" in s 9(10) of the SDA. As already stated, the words in s 9(10) "… in relation to discrimination against women" confine the operation of s 22 to discrimination against women. Thus, s 22, when effective under s 9(4) and (10), is concerned with discrimination against women in the supply of goods and services and not with discrimination against men in these activities: compare Aldridge v Booth (1988) 80 ALR 1 at 17-18 per Spender J. AB concedes that, by virtue of these words, s 22 cannot protect a man against discrimination on the basis of marital status in the supply of services. The prohibition in s 30C of the State Registration Act is a prohibition directed to all married persons. Does this prohibition nevertheless collide with the prohibition in s 22, as having effect by s 9(4) and (10)? The answer depends on the operation of the words "in relation to discrimination against women" in s 9(10). 103 The application of the limitation in s 9(10) is straight-forward in the case of sex, pregnancy and potential pregnancy discrimination where the victim is a woman. In these cases, the discrimination will necessarily be "in relation to discrimination against women" because the discrimination will flow from the fact that the victim is a woman. As we have seen, this result gives effect to the Convention. As the present case shows, marital status discrimination is different in this sense. Discrimination on the basis of marital status may involve discrimination against women, where, for example, married women are not treated in the same way as married men. Discrimination on the basis of marital status may, however, be gender-neutral, where, for example, all unmarried persons are subject to one regime and all married persons subject to another. In such a case, marriage may be a legitimate criterion for differential treatment. 104 AB argues that s 22, read with s 9(4) and (10), will apply wherever a married woman is the victim of discrimination in the supply of services on account of being a married person. Equally, on AB's argument, s 22, read with s 9(4) and (10), will apply wherever an unmarried woman is the victim of discrimination in the supply of services on account of being an unmarried person. On AB's approach, where the victim of discrimination in the supply of services is a woman, s 22, read with s 9(4) and (10), prohibits discrimination on the ground of marital status per se. The Registrar contends that the effect of these words in s 9(10) is to limit the operation of s 22 to discrimination on the ground of marital status when such discrimination also involves discrimination against women in comparison with men. For the reasons stated below, I accept the Registrar's submissions in this regard. 105 The words "in relation to" in the expression "in relation to discrimination against women" are equivalent to "relating to" and "with respect to". Like them, they have an expansive operation, although one that is necessarily limited by statutory context and purpose: see O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 367 per Dawson J and 374 per Toohey and Gaudron JJ; Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45 at 47 per Brennan, Deane and Gaudron JJ; Workers' Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653-654 per Deane, Dawson and Toohey JJ; and Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491 per Davies J. In the context of s 9(10), the words "in relation to" require a connection between "discrimination against women" and the prescribed provisions of Pt II, or, relevantly in this case, s 22. 106 The SDA does not define the expression "discrimination against women", but, as we have seen, art 1 of the Convention does. Since s 9(10) makes the operation of provisions such as s 22 depend on the Convention, the definition in the Convention is a relevant guide. In this context, the legislature can be presumed to use the expression in s 9(10) in the same way as it is used in the Convention. 107 Whilst the definition of "discrimination against women" in art 1 is premised on the principle of equality of rights for men and women, the definition also reflects the fact that the means chosen to vindicate the principle depend on placing women's rights on an equal footing with men's: compare arts 1 and 10. This is not the same as securing equality of treatment for unmarried and married persons, where marriage, not sex, is the criterion for discrimination. The definition in art 1 makes adverse discrimination on the basis of being female the touchstone for "discrimination against women". 108 Naturally, the provisions of remedial legislation such as this are to be given a liberal construction that would promote its objects: see Acts Interpretation Act 1901 (Cth), s 15AA. The task of the court is therefore to identify the underlying objects and determine how it may best comply with the injunction in s 15AA. Even so, remedial provisions of this kind cannot be given a meaning they cannot reasonably support. The objects of the SDA are set out above at [15]. Three are presently relevant - as stated in s 3(a), (b) and (d). The first, as stated in s 3(a), has special importance, since, by virtue of s 9(10), s 22 is to have effect to the extent that s 22 gives effect to the Convention. As we have seen, the Convention is not concerned with marital status discrimination per se. The Convention is concerned with discrimination on the basis of marital status that also involves discrimination against women. That is, the Convention is not concerned with circumstances in which all married persons are treated in the same way as one another although differently from unmarried persons. 109 The Registrar's submissions are to be accepted because they take account of the scope of the Convention. The words "in relation to discrimination against women" in s 9(10) limit the operation of s 22 to discrimination on the ground of marital status when such discrimination also involves discrimination against women, where men's rights and freedoms are the standards for comparison. This is the discrimination with which the Convention is concerned. So construed, s 22 gives effect to the obligations created by the Convention. If, as AB maintained, s 22 was construed so as to prohibit discrimination on the ground of marital status per se, wherever the victim was a woman, then the prohibition would travel outside the obligations created by the Convention. This is precisely the result s 9(10) seeks to avoid. 110 If s 22, when read with s 9(4) and (10), is construed to prohibit discrimination on the ground of marital status in so far as such discrimination involves discrimination against women (as a class), the prohibition in s 30C(3) of the State Registration Act, which is directed to all married persons, does not collide with s 22 of the SDA. Section 30C(3) requires the Registrar to discriminate against all married persons on the basis of their marital status. The provision does not require women to be treated less favourably than men on account of being women. Accordingly, there is no discrimination against women, for the purposes of s 9(10), and there is no relationship between discrimination against women and s 22, of the kind required by s 9(4) and (10), in order to give effect to s 22. It follows that s 22 is not given effect by s 9(4) and (10) in the circumstances under consideration. 111 The fact that the prohibition in the State Act may, as in this case, prevent a married person, who has undergone sex affirmation surgery, from having her birth registration altered from male to female, does not affect this conclusion. The State Act would operate in precisely the same way in the case of a married person who has undergone the surgery and seeks to have their birth registration altered from female to male. In this case, the criterion for discrimination is not sex, but marriage. 112 When the other application provisions of s 9 of the SDA are considered, it is obvious that s 9(10) is different from them. This is because, save for s 9(10), the other application provisions give s 22 (and the other prescribed provisions of Pt II) effect on a gender-neutral basis. Section 9(10), however, directs attention to the fact that, if the Convention is in force, then s 22 will have effect "in relation to discrimination against women", to the extent that it gives effect to the Convention. Where s 22 has effect by virtue of other application provisions, it will have a gender-neutral operation. 113 For these reasons, I reject the proposition that, in so far as the State Registration Act operates to prevent the Registrar from altering a post-operative transsexual person's birth registration where that person is in an existing marriage, it is inconsistent with s 22 of the SDA, as applied by s 9(4) and (10). Accordingly, s 109 of the Constitution does not operate to render any part of the State Act invalid. I would dismiss the appeal. 114 I acknowledge that there are some unsatisfactory features of this conclusion. In particular, this conclusion means that, when read with s 9(4) and (10), s 22 ceases to be gender-neutral. This may seem a curious result in view of the gender-neutral language of s 22 itself and the predominantly gender-neutral approach of the SDA. Generally speaking, the SDA is aimed at eliminating sex discrimination in various forms, whether against women or men. The legislature no doubt considered that this was the preferred means of vindicating the principle of equality of men and women: ALRC, Report 59 Pt II at [3.28]. 115 The occasion for this difficulty, if this is what it is, lies outside this proceeding - in the Constitution, the SDA and the Convention. In this context, it may be recalled that the SDA does not contain any general prohibition of discrimination on the ground of sex. This has led some legal scholars to criticise the SDA for its limited operation, as well as its undue focus on formal equality: see, e.g., Krysti Guest The Elusive Promise of Equality: Analysing the Limits of the Sex Discrimination Act 1984 (30 March 1999, Research Paper 16, 1998-99, Law and Bills Digest Group). In this regard, it is helpful to recall that the SDA was introduced over twenty years ago. It was a watershed in the legal landscape, in so far as it reflected legislative appreciation of the invidious nature of sex discrimination. Some of its limitations flow from the understanding of the limits on Commonwealth power that then prevailed. Perceived constitutional limits may explain the lack of any general prohibition on sex discrimination and the fact that the application provisions in s 9 are not particularly suited to giving well-ordered effect to the legislation to which they relate. The application provisions are a kind of grab-bag of constitutional legislative powers designed to give as broad a reach as possible to the legislation. In relying on the external affairs power for validity in s 9(10), the legislature was limited by the Convention itself, which as others have said, embodies only a limited concept of equality: see, e.g., Hilary Charlesworth, "Concepts of Equality in International Law" in Grant Huscroft and Paul Rushworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002, Hart Publishing); and Sally Engle Merry, "Gender Violence and the CEDAW Process" in Human Rights & Gender Violence: Translating International Law into Local Justice (2006, Chicago Series in Law and Society) at 78 and the scholarly works there cited. These considerations may explain what some might regard as the unsatisfactory features of the operation of the SDA, as revealed on this appeal.

AB v Registrar of Births, Deaths and Marriages

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