FJG v Registrar of Births Deaths and Marriages

NCAT Administrative and Equal Opportunity|2021-11-19

REASONS FOR DECISION

The applicants referred to as FJG and FJH pursuant to a confidentiality order made in the proceedings seek review of a decision of the respondent, The Registrar of Births Deaths and Marriages (BDM) dated 22 March 2021. In these reasons for decision the term 'sex' is used where it is used in the context of the statutory language or a quotation, at other times the term 'gender' is used.
The decision relates to a request to change certain particulars on the Marriage Certificate issued by BDM arising from a change in the registration particulars of FJG since the time of her marriage to FJH. Specifically FJG requested that the Registrar of BDM amend the Marriage Certificate to reflect FJG's change of sex registration and name since her marriage to FJH in 2009. The Registrar of BDM's delegate refused this request and on internal review on 22 March 2021 the Registrar affirmed the original decision not to amend FJG's details on the Marriage Certificate.
FJG applied to the Tribunal for an administrative review of the decision on 15 April 2021. In making her review application FJG submitted that her identity name and gender need to be confirmed for her well-being and to be accurate ID documents for herself and her wife FJH.
FJG also submitted on her application to the Tribunal that the identity described on the Marriage Certificate no longer exists and that 'there needs to be a way for my Marriage Certificate to be accurate for my identity and for my wife (FJH) also'.

Background to the hearing

Following the matters outlined above at [5] because her Marriage Certificate was the only identity document which reflected her recorded sex as at the time of her Birth, FJG applied on 20 January 2021 to correct the Register. The corrections sought to record that she was a 'wife' rather than a 'husband' and to consequently correct the name recorded for her in that Register.
On 4 February 2021 BDM informed FJG that: '…the Registry cannot record an event retrospectively, therefore cannot record your new name and sex on the Marriage Certificate.'
On 11 February 2021 FJH requested an internal review of the decision notified on 4 February 2021. The Registrar BDM affirmed the original decision, stating in their reasons that: '[FJG] changed her name and sex after marriage. When a person changes their name, it cannot be applied to an event retrospectively.'
On 18 April 2021 FJG and FJH applied to the Tribunal for Administrative Review.

Jurisdiction

The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Births Deaths and Marriages Registration Act 1995. (The BDMR Act) Section 56 provides: 56 Administrative review by the Civil and Administrative Tribunal (1) A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
As noted from the section above, an application under s 56 of the Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
There is no dispute between the parties that the application for administrative review has been received within time.
On 1 June 2021, at a directions hearing, the Tribunal made an order joining FJH as an applicant to the proceedings. Whilst the reviewable decision concerns the recording of FJG's particulars the Tribunal notes that the record in question is a joint identity document (Marriage Certificate) and that FJH was the applicant for Internal Review.
Even though FJH did not seek the initial review of the record, by BDM accepting the Internal Review from her, she has standing to be a party to these administrative review proceedings. No objection or appeal has been made in respect of that order.

The hearing

The matter was heard on 19 August 2021. The applicants were represented by Senior and Junior Counsel with instructing Solicitors. BDM was represented by in house Legal Representatives. As the facts were not in dispute no person was called or required to give oral evidence at the hearing. However a number of documents were tendered and admitted into evidence without objection.

Applicant's written evidence 1. Signed Statement of FJG dated 17 August 2021 (exhibit 'A-1'). 2. Signed Statement of FJH dated 17 August 2021(exhibit 'A-2').

Respondent's written evidence

The respondent filed and served the documents required under s 58 of the ADR Act being the documents that the administrator believes are relevant to the decision under review. (Exhibit 'R-1')
Both parties filed and served written submissions and further submissions were filed by the parties following directions made at the conclusion of the hearing. Due to the COVID-19 pandemic provisions the hearing was conducted entirely by telephone. The hearing consisted of the legal representatives for both sides making detailed oral submissions and responding to inquiries of the Tribunal consistent with the provisions of s 38 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
The background to this matter concerns the application in 2018 of FJG to have her Birth Certificate corrected in the Victorian Registry. Birth Certificates record amongst other particulars, the sex of the individual. That application to record change of sex was successful with both the name and the sex being amended on the Birth Certificate to reflect accurately her name and sex. As a result of that process FJG had her identity documents amended to reflect the correct position. Material attached to Exhibit's 'A-1' and 'A-2' shows that Centrelink and Pensioner ID record the name [FJG]. Similarly records of NSW Driver Licence and Commonwealth Medicare Card attached to Exhibit 'R-1' show the name [FJG].
At hearing Counsel for the Applicants submitted that FJG was 'born a woman in 1975 and when married in 2009 she was a woman, and was and is at all times a woman'. Because of the inaccurate registrations of her birth and marriage it was not until 2017 that she publically 'came out' as a woman. The application to have the Birth Certificate corrected occurred the following year. I observe that the word woman is defined and commonly used to mean an adult female person. No one is born a woman. A female person may be described as being born female or born a girl. I infer that the argument put for FGJ is that she was born female and remained female all her life. The dictionary definition of the term 'woman' arises in the context of an adult person. In practice the submission is therefore interpreted that FJG was born female and when an adult female person, they are distinguished as a woman. Whilst Counsel submits to the contrary, the Tribunal prefers the language that the submission is that FJG was born female.
Counsel submitted that the High Court Case of NSW Registrar of Births Deaths and Marriages v Norrie [2014] HCA 11 (Norrie) places a requirement on BDM central to the argument before the Tribunal. That is that the details recorded in the Register must be accurate based on the best available information. At paragraph 32 of Norrie the High Court observed: 32. The Registrar's submission that the Act recognises only male or female as registrable classes of sex must be accepted. But to accept that submission does not mean that the Act requires that this classification can apply, or is to be applied, to everyone. And there is nothing in the Act which suggests that the Registrar is entitled, much less duty-bound, to register the classification of a person's sex inaccurately as male or female having regard to the information which the Act requires to be provided by the applicant.
Counsel submitted that to rely on gender markers at the time of registrable event (e.g.: birth) is problematic because such markers are often unreliable and inaccurate.
Counsel also submitted that s 45 of the BDMR Act provides that registration must be based on the most reliable information available and that when better information is available an entry can be corrected on the basis of the availability and content of that information. The section provides: 45 Correction of Register (1) The Registrar may correct the Register - (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
It was submitted that in respect of marriages (which occur under Commonwealth provisions), all that the NSW Registrar is required to do is record the particulars of the event, in this case the Marriage. On this basis Counsel submitted that the Register should show and provide particulars as to fact, not law. The Commonwealth Legislation is concerned with the legal matters arising from the event, the NSW law only provides that for marriages the record of the event is accurate having regard to the various particulars based on the most accurate information available.
Counsel also submitted that s 51 of the Marriage Act 1961 (Cth) provided for correction of an inaccurate Marriage Certificate. The section provides: MARRIAGE ACT 1961 - SECT 51 Incorrect marriage certificates (1) Where an authorised officer is satisfied, by statutory declaration or otherwise, that any particular in a certificate of marriage prepared and signed under section 50 is incorrect, the authorised officer may: (a) in the case of a certificate that has been handed to a party to the marriage or retained by the authorised celebrant--correct the certificate; and (b) in the case of a certificate that has been forwarded to a registering authority--certify to that authority that a specified correction is necessary. (2) For the purposes of exercising his or her powers under paragraph (1) (a) in relation to a certificate, an authorised officer may, by notice in writing served on a party to the marriage, or the authorised celebrant, as the case requires, require the party or the authorised celebrant to produce or forward the certificate to the authorised officer within a period (not being less than 7 days from the date of service of the notice) specified in the notice. (2A) Where a marriage has been solemnised, or purports to have been solemnised, under this Part, and the marriage is void, an authorised officer may, by notice in writing served on a party to the marriage, require the party to deliver or forward to the authorised officer, within a period (not being less than 7 days from the date of service of the notice) specified in the notice, the certificate required, by subsection 50(4), to be handed to a party to the marriage. (3) A notice referred to in subsection (2) or (2A) may be served by post. (4) In this section, authorised officer means a person authorised by the Minister to perform the functions of an authorised officer under this section.
Central to the argument that the actions concerning the Birth Certificate were 'corrections' rather than alterations or changes to the information, was the submission that when a change of gender was accepted following recent legislative amendments in all States and Territories, the import of that change was a recognition in fact that at all times the person was and is of the gender as recorded by the change. When questioned by the Tribunal about this point Counsel submitted that the policy rationale, legislation and subordinate legislation operated to accept that in effect the past particulars recorded were inaccurate and that by the change the record had been corrected.
In this regard the person was considered to be (from birth) of the gender assigned by the subsequent affirmation process, not the assignment made at birth. It was on this submission that the position that the record made of the marriage in 2009 contained particulars which were inaccurate at that time in 2009 was put. It is predominantly for this reason that FJG and FJH submitted that BDM has the power to correct the record under s 45 (1) (b) of the BDMR Act.
On behalf of BDM submissions were made at hearing that there is no power under the BDMR Act to amend the particulars of the point in time event. For the Registrar to make the changes as sought would be inconsistent with their functions under that Act.

Submissions of FGJ and FJH

It was submitted that the Tribunal must consider whether s 45 of the BDM Act empowers the Registrar to alter the particulars in the Marriage Register in circumstances where the change of name was registered in Victoria after the date of marriage.
The applicant's submitted that making the change would have a positive impact on them in that it would ensure that the particulars of the marriage are consistent with the other identity documents, would alleviate the current depression, grief, feelings of hopelessness and anxiety experience by the Applicants during the change of registration process. The change would also avoid administrative and financial difficulties arising from the fact that FJG's identity documents (with the exception of the Marriage Certificate) reflect her affirmed name.
The applicant's Counsel in written submissions contrasted the consequences of adopting one statutory construction approach over another. The objects of the BDMR Act also referred to the Registrar's functions, including to 'ensure that this Act is administered in the way best calculated to achieve its objects' and to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register' as stated as s 6 of the BDMR Act.
Counsel submitted that the BDMR Act has been amended to enable the Register to properly reflect a person's sex. Part 5A of the BDMR Act concerns a 'change of sex'. The relevant Part provides: 32B Application to alter register to record change of sex (1) A person who is 18 or above - (a) whose birth is registered in New South Wales, and (b) who has undergone a sex affirmation procedure, (c) (Repealed) may apply to the Registrar, in a form approved by the Registrar, for alteration of the record of the person's sex in the registration of the person's birth. (2) The parents of a child (or a parent if the applicant is the sole parent), or the guardian of a child - (a) whose birth is registered in New South Wales, and (b) who has undergone a sex affirmation procedure, (c) (Repealed) may apply to the Registrar, in a form approved by the Registrar, for alteration of the record of the child's sex in the registration of the child's birth. …. 32DA Application to register change of sex (1) A person who is 18 or above - (a) who is an Australian citizen or permanent resident of Australia, and (b) who lives, and has lived for at least one year, in New South Wales, and (c) who has undergone a sex affirmation procedure, and (d) (Repealed) (e) whose birth is not registered under this Act or a corresponding law, may apply to the Registrar, in a form approved by the Registrar, for the registration of the person's sex in the Register. (2) The parents of a child (or a parent if the applicant is the sole parent), or the guardian of a child - (a) who is an Australian citizen or permanent resident of Australia, and (b) who lives, and has lived for at least one year, in New South Wales, and (c) who has undergone a sex affirmation procedure, and (d) (Repealed) (e) whose birth is not registered under this Act or a corresponding law, may apply to the Registrar, in a form approved by the Registrar, for the registration of the child's sex in the Register. … 32E Issuing of new birth certificate (1) After the record of a person's sex is altered under this Part, a birth certificate issued by the Registrar for the person must, unless otherwise requested by the person, show the person's sex in accordance with the record as altered. (2) Any such birth certificate must not include a statement that the person has changed sex.
Counsel submitted that the amendments of Part 5A of the BDMR Act followed the amendment of the Marriage Act 1961 (Cth) to recognise same sex marriage. In addition the Miscellaneous Acts Amendment (Marriages) Act 2018 (NSW) removed restrictions on a married person registering a change of sex registration.
Section 45 of the BDMR Act is set out above at [23]. Counsel submitted that two points of significance arise from the amendments and the High Court decision in 'Norrie' as referred to at [21] above. First that the function of the Registrar is principally that of recording in the Register information provided by members of the community, the Registrar's function does not extend to making any moral or social judgments, nor to the resolution of any medical questions. Second Counsel submitted that there is nothing in the BDMR Act which suggests that the Registrar is entitled to register the classification of a person's sex inaccurately.
Counsel submitted the following in respect of the statutory construction and how the Tribunal should apply the principles to the present facts. 'The key question of statutory construction which emerges from the present case is whether the power to "bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event" in s 45 (1) (b) of the BMDR Act permits the alteration of the Register insofar as it concerns the marriage of the First and Second Applicants to reflect the First Applicant's sex and consequently, the change of her name.' Counsel submitted if the section permitted changes to the registrable event (being the marriage in 2009) then the Tribunal should exercise its power under s 63 of the ADR Act and set aside the decision of BDM.
A significant submission of Counsel for the applicants relates to the submission summarised at [20] above. That being that FJG was and is at all times from birth a woman. The submission is interpreted as FGJ was born female and remained female all her life. Counsel submitted that this position was supported both by the facts and the construction of the BDMR Act. The Registrar's general functions in respect of the registrable event are set out in s 6 in broad terms. In respect of the marriage the Registrar is to either register it by including the Marriage Certificate as referred to in s 35 or by the Registrar themselves recording the particulars of the marriage. 35 Registration of marriage A marriage may be registered by - (a) including the marriage certificate as part of the Register, or (b) including particulars of the marriage in the Register.
Counsel submitted that neither the BDMR Act or the Births Deaths and Marriages Registration Regulation 2017 (the Regulation) require the Registrar to include any specific information in the Register concerning a marriage, however s 3 identifies that an object of the BDMR Act refers to 'keeping of registers for recording and preserving information about …. Marriages … in perpetuity'. It was therefore submitted that there was no requirement that the original name recorded at the time that the entry was first made in the register be the name recorded in perpetuity. The appropriate place for historical information including records of matters relating to information in the various registers was the Birth Certificate entries as specified by the Regulation. (Part 2 of the Regulation).
Counsel noted that the default position in respect of Birth Certificates is that a Birth Certificate issued after a person's sex is altered pursuant to Pt 5A of the BDMR Act, will reflect the record as altered. In addition the Act provides that the reissued Birth Certificate must not include a statement that the person has changed sex. 32E Issuing of new birth certificate (1) After the record of a person's sex is altered under this Part, a birth certificate issued by the Registrar for the person must, unless otherwise requested by the person, show the person's sex in accordance with the record as altered. (2) Any such birth certificate must not include a statement that the person has changed sex.
Counsel submitted that the provisions of s 32E (2) above, provide a clear indication that change of sex registration is to be considered retrospective unless the individual requests otherwise.
Section 32E was introduced by the Transgender (Anti Discrimination and Other Acts Amendment) Bill 1996 (NSW) in a range of legislative measures addressing discrimination and vilification of transgender persons. The applicants submitted that the purpose of those amendments would be undermined if s 45 of the BDMR Act cannot be used to correct the Marriage Register in instances such as this.
Submissions were made that if the amendment was not made the applicants would be forced to disclose the alteration of FJG's sex due to the conflicts in the recording of the registrations whenever they are required to use their Marriage Certificate for identification purposes.
Further submissions were made concerning s 32E of the BDMR Act indicating that the reference to a 'registrable event' did not mean that such matters (an event) was static. In this regard reference was made to the case of Avery v Registrar of Births Deaths and Marriages [2010] 59 NSWLR 354 (Avery). Counsel submitted that FJG 'was a woman on the day she was born and a woman on the day that she married her wife'. As a result it was submitted that there should be no difficulty in correcting the Register to reflect her true gender at the time she was born, nor was there any difficulty in recording her true gender on the day that she was married.
Counsel submitted that the BDMR Act as amended by the Miscellaneous Acts Amendment (Marriages) Act 2018 (NSW) contemplates that a person whose marriage was solemnised in NSW might alter their sex and have that alteration registered pursuant to Pt 5A of the BDMR Act. Counsel submitted that 'the logical corollary of that alteration is that other entries in the Register would likewise be altered to preserve the accuracy and consistency of the Register'. The Tribunal notes that Part 5A deals with the term 'change of sex' not 'change of gender'.
Further submissions were made in support of the BDMR Act being the appropriate vehicle to alter the entry and that such an approach was supported by the case law. In Norrie the High Court had observed that the purpose of the Register is to record accurate information concerning members of the public. In the current matter the information in the Resister concerning FJG is inaccurate in respect of the details of her marriage. Counsel also submitted that the legislature should not be taken to have intended that an inconsistency of the present kind could not be rectified.
Counsel also submitted that correcting the Register is not inconsistent with the Marriage Act (Cth). Section 84 of the Marriage Act allows for the recognition of same sex marriages lawfully conducted overseas irrespective of whether those marriages took place before or after same sex marriage became lawful in Australia. This was submitted as establishing that marriages that could not have been lawfully performed in Australia at the relevant time could still (retrospectively) be registered accurately in Australia.
Counsel submitted that the existence of s 84 of the Marriage Act and its application to historical same sex unions makes it apparent that altering the particulars of the current marriage in the Register is not inconsistent with the Marriage Act. MARRIAGE ACT 1961 - SECT 84 Registration of overseas marriages attended by an authorised celebrant (1) Where: (a) an authorised celebrant has attended a marriage in an overseas country between parties of whom at least one was an Australian citizen or a member of the Defence Force; and (b) the authorised celebrant is satisfied that the marriage has taken place in accordance with the law of that country; and (c) a party to the marriage informs the authorised celebrant, in writing, that he or she desires the marriage to be registered under this section; the authorised celebrant shall forward to the Registrar a certificate in respect of the marriage. (2) Upon receipt by the Registrar of a certificate under subsection (1) in respect of a marriage, the Registrar shall, subject to the regulations, register the marriage.
Reference was also made to the decision in Hill v Registrar of Births, Deaths and Marriages [2020] NSWCATAD 259 where the Tribunal observed at [49 ] 49. The power to correct the register gives the registrar, or by derivation this tribunal, a discretion "to bring an entry about a particular registrable event into conformity with the most reliable information available....": s 45(1)(b). As the tribunal explained in Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86, [10], "The power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed change is in conformity with the most reliable information about the registrable event": Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200, [113].
Submissions also referred to the distinction between the current case and change of name cases involving a prior Marriage Certificate as addressed in the case of Rodrigues v Registrar Births, Deaths and Marriages [2020] NSWCATAD 267. That case focuses on preserving the integrity of the records as to the person's name. Counsel submitted that in the present case the issue was about the person's sex and that s 32E of the BDMR Act affirms the person's sex as existing from the time of birth, and on that basis submissions to that effect had been consistently made by the Applicants.
Further, the distinction between change of name and other registrable events was recognised in Avery where Campbell JA observed at [45]: 45. Many of the events that are registrable events, within the meaning of the BDMR Act, have occurred quite independently of registration under that Act. Thus, a birth, or a death, has occurred, even if it has not been registered. The provisions of the Act concerning change of name are different in this respect. Under section 26, it is registration that causes or constitutes the change of the name - the person's name is "changed by registration of the change". That Part 5 is concerned with registrations that themselves effect a change of name is also shown by section 30(1)(a) and (c), which refer to an applicant under that part as "the person whose name is to be changed".
Counsel made the following submission on the point from Avery and compared it to the current circumstances. In written submissions Counsel stated: 35. In contradistinction to other registrable events, a change of name occurs through the machinery of the BDMR Act itself, it does not exist independently of the BDMR Act. Although there is a requirement that a marriage solemnised in NSW be registered under the BDMR Act (s 33), that registration is separate to and distinct from the marriage itself as well as being separate from the sex of the people who are married. 36. A marriage between persons in another State or overseas need not be registered pursuant to the BDMR Act (although it might be). Similarly, there is no requirement that a person who has undergone a sex affirmation procedure apply to alter the record of the person's sex pursuant to Pt 5A. This distinction is picked up in the objects section of the Act, which refers to the registration of changes of name but the recording of changes of sex. 37. To the extent this Tribunal has adopted a different approach in Rodriguez v Registrar Births Deaths and Marriages that reasoning can be distinguished and should not be followed. It applied only to a change of name. In this instance, the change of name is only an incident of the corrections otherwise made by to the Register by reasons of the change in sex.
Counsel submitted that in addition to FJG being a woman at the time of her birth, (FGJ being born female as per [20] and having remained so), it follows that she was a woman at the time of her marriage. Counsel submitted that contrary to the submissions of BDM, information recorded by the celebrant on a Marriage Certificate could be corrected, for example if a typographical error was made to the spelling of the name, it could not sensibly be suggested that being the case that the error could not be corrected.
Counsel also submitted that BDM's submissions concerning the retrospective nature of the proposed amendments and therefore the limitations on this were all derived from cases relating to change of name. Counsel submitted that the difference between those change of name cases relied upon by BDM and this case was that the current case the change of name flows form the affirmation of FJG's gender. It was submitted that BDM's construction of the BDMR Act as put at hearing and in written submissions, if accepted, would undermine the protection afforded by s 32E of the BDMR Act.

BDM's Submissions

BDM in written submissions stated that the change of name of FJG does not occur retrospectively. In addition BDM submitted that there is no facility within the BDMR Act under Part 5A or law for the change of sex to be recorded on an individual's marriage certificate in the same way as a change can be recorded on a birth certificate.
Reference was made to the case of Afchal v Registrar of Births Deaths and Marriages [2021] NSWCATAD 24. 40. .. it is clear from the language of s 45 of the BDMR Act that the Registrar has the power to correct the Register. That power can be exercised, relevantly for this case, 'to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event'. If the entry is not in conformity with the most reliable information available, then the Registrar corrects the Register by 'adding, altering or deleting particulars contained in [the] entry'. 41. The use of the word 'correct', or 'corrects', in s 45 is significant. The ordinary meaning of the verb 'correct' is 'to set right, or remove the errors or faults of': Macquarie Dictionary, Federation Edition, 2001. It stands to reason that there must first be an error in the entry before the Registrar can do any correcting under s 45. Put another way, in the absence of an error there is no scope for an entry to be brought into conformity with the most reliable information because, being error-free, it will already be in conformity with the most reliable information. 42. It is implicit in the applicants' case that they view the information, in their children's birth records, about the applicants' current names as more reliable than the information that is currently held by the Registrar. Whether that is so depends on whether a birth entry is meant to contain information taken as a 'snapshot' of the circumstances that existed at the time of the event, or information that can change over time to reflect circumstances that may come into existence after the event. 43. In my view, and subject to an exception dealt with in [45] below, the 'snapshot' characterisation is the correct one. This is because s 45 talks of 'the most reliable information … of the registrable event'. It focuses squarely on the event itself, not on what may occur at some time in the future. Future events or changes in circumstances, such as the parents' subsequent change of name, are not part of the record of the birth event. As those circumstances were not then in existence, they could not be included in the birth registration statement, and there is no mechanism to have them included in the birth entry at a later time. … 46. It follows that there is no error in the recording of the parents' names in the children's birth entries. Therefore, s 45 of the BDMR Act does not authorise the alteration requested by the applicants.
BDM submitted that consistent with the position in Afchal, 19. .. Following the application of the legislation in Afchal, the circumstances of (FJG's) birth were not yet in existence and hence could not be included on the marriage certificate as there is no mechanism to have them included on the Register at a later date. The only way that this could occur under the current Act is if there was an error at that point in time but as these particular circumstances were no yet in fruition, there was no error. Applying the same interpretation as Afchal, being error-free, the event recorded on the Register is already in conformity with the most reliable information and further, focuses squarely on the event itself not on what may occur in the future.
BDM submitted that the Registrar did not have the power to amend the marriage certificate to reflect the first applicant's change of sex registration. Any order to that effect under s 63 of the ADR Act would not be consistent with the Registrar's functions under s 6 of the BDMR Act. BDM submitted that such an action would be inconsistent with the Registrar's specific function to maintain the integrity of the Register.
In further submissions after hearing BDM submitted that the issues in dispute identified at hearing were as follows: a. if the primary identity documents being the birth certificate has been re-issued reflecting the new name and the sex as female, then at the date of the marriage in 2009, two females were marrying. It is argued by the Applicant that this would constitute an error and should allow the Respondent to amend and reissue the marriage certificate under section 45 of the Births Deaths and Marriages Registration Act 1995 (BDMR Act) as there was an 'error' at the time the marriage occurred, and b. The interplay between the State (BDMR Act) and the Commonwealth law (Marriage Act) specifically the inconsistency if BDM were to change the marriage certificate given same sex marriage was only introduced in 2017, 9 years after the date of the marriage.
BDM set out the circumstances of the change of name and sex registration by FJG in Victoria. However BDM maintained their submission that the process does not occur retrospectively and as a result the integrity of the Register is maintained.
BDM submitted that whilst Part 5A of the BDMR Act allowed for a change of sex to be recorded on a Birth Certificate, they submitted that the Act was silent in respect of recognising change of sex on a Marriage Certificate.
In addressing the import of the change of sex registration on FJG's Birth Certificate and the argument that such a situation in practice was always present (i.e. the submission that FJG is and was at all times female), BDM submitted that whilst this may have been true in a practical sense, .. in a legal sense she identified as male until 2018, irrespective of the new birth certificate reflecting the name and sex at the time of birth in 1975 as [FJG] and female. Although applied retrospectively on the birth certificate the same application cannot extend to amending the marriage certificate as from a legal standpoint there was no error at the time of the marriage because at that date in 2009 the birth certificate provided to the celebrant stated (FJG's former first and second name) and male. Amending the Register and certificate to be in accordance with the new name and sex, would change the circumstances of the marriage and would compromise the integrity and historical recording of the event itself in the Register.
BDM submitted that in changing the Marriage Certificate, there would be an inconsistency between a State and Federal law in that same sex marriage was not yet legal in Australia in 2009 when the Applicants were married. On this point BDM made the following submission: In December 2017 the Marriage Act was amended to recognise same sex marriages however the Act does not provide for said marriages to be recognised retrospectively. Essentially to entertain the notion that from the date of [FJG's] birth and from every day onwards, [FJG] was and always has been a female, then at the time of the marriage, two females were marrying. This would not be in accordance with the Marriage Act and would mean that the Applicant's marriage in 2009 would not be recognised legally in Australia.
BDM submitted that in addition FJG had signed in 2009 a legal document confirming details as (FJG's former first and second name) and male.
In supplementary submissions in reply Counsel for the applicant's submitted the following on the position on s 32E advanced by BDM: 9. The construction advanced by the Respondent would undermine the protection afforded by s 32E. It is a well recognised canon of construction that where an inconsistence arises between provisions in an enactment, he construction which best gives effect to the purpose and language of those provisions while maintaining the unity of the statutory provisions is to be preferred. In this instanced that principle militates in favour of the construction proffered by the Applicants.
In addressing the submission referred to at [55] above, Counsel submitted that the 'circumstances of [FJG's] birth were in existence at the time of the marriage', and for that reason BDM's reliance on Afchal is misplaced. Counsel submitted that the most reliable information was that FJG was born a woman. I have already addressed this language at [20] above. The submission is interpreted as being that FGJ was born female and remained female all her life 11. .. The circumstances of [FJG's] birth were in existence at the time of her marriage. The most reliable evidence of those circumstances before the Tribunal is that the first applicant was born a female. The Applicant's birth, as a woman, is not a "future event" or a "change in circumstances", it is a matter where the evidence provided to the Registrar, and to the Tribunal is that the first Applicant has been a woman since she was born in 1975.
Counsel submitted that BDM's reliance on a position that there was a change after birth and after marriage actually seeks to create a disconformity in the perpetual records concerning FJG.
Counsel responded to BDM's submission that a person would be able to repeatedly change their details and as a consequence change the Register, as a basis for refusing to grant the application as this situation would result in a loss of any integrity in the Register by repeated amendment. Counter to this the applicants submitted that: 14. …the BDMR Act already permits a person to change their name more than once through the mechanisms of that Act. However the Register does not record sexual identity (a synonym for sexual orientation). In respect to affirmation of gender the BDMR Act requires persons to take various steps in order to achieve legal affirmation of a gender other than that they were assigned at birth. In the absence of a statutory limitation to record an affirmed gender there is no basis to rely on the possibility of multiple applications to resist the current application.
Counsel submitted that the Tribunal should focus on the circumstances of the current case, rather than the matters put forth by BDM concerning the possible actions of other parties in effect misusing the provisions. The current matter, it was submitted, provided a compelling case for the invocation of the power available in s 45 of the BDMR Act.
Counsel made submissions on the meaning of the word 'integrity' as this had been ventilated in BDM's submissions in reply. The following submission was made: 16. 'Integrity' means '[t]he condition of having no part or element taken away or wanting undivided or unbroken state, material wholeness, completeness, entirety' (Oxford English Dictionary) . The purpose of the BDMR Act is to record, in perpetuity, a person's birth, the event of a person's marriage (if it occurs), and in due course their death. The concept of integrity of the Register is informed by the context and purpose of the BDMR Act, including the existence of the power to correct the Register. It is clear from the very existence of the power to correct the Register, including by altering particulars, that the wholeness and completeness of the Register is not achieved by each entry or 'snapshot', remaining static. Except in the circumstances contemplated at [39] of Norrie (which do not arise in this case), it is for the Registrar to record the information provided by members of the community, not to be concerned with or pass judgement upon, the circumstances surrounding the events of birth, death and marriage. 17. In this case, the integrity of the Register both permit and requires the record of the Applicant's marriage to correctly reflect the gender of the participants.
The applicants submitted that the material wholeness and completeness of the Register is promoted by the accurate recording of FJG's particulars of marriage reflecting the particulars of her birth. In this regard an enquiry about the marriage at present, would not verify that the marriage was between the same two persons as currently verified by their individual Birth Certificates.

Consideration

I note that the Interpretation Act 1987 provides that when considering the meaning and purpose of a function under an Act, (by way of interpretation) regard should be had to the objects and purpose of that Act. Section 33 provides: Interpretation Act 1987 No 15 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
The objects section of the BDMR Act is set out at s 3 which provides: 3 Objects of Act The objects of this Act are to provide for - (a) the registration of births, deaths and marriages in New South Wales, and (b) the registration of adoption information, and (c) the registration of changes of name and the recording of changes of sex, and (d) the keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex in perpetuity, and (e) access to the information in the registers in appropriate cases by government or private agencies and members of the public, from within and outside the State, and (f) the issue of certified information from the registers, and (g) the collection and dissemination of statistical information.
As the Tribunal is conducting an administrative review, of an administratively reviewable decision, the Tribunal is required in its decision to give effect to Government policy. Section 64 of the Administrative Decisions Review Act (the ADR Act) provides: 64 Application of Government policy (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators.
A central prong of the applicant's argument is that Government policy supports the contention that a change of sex registration and name registration as occurred in the circumstances of this case, creates a presumption of correction of a factual error concerning sex registration. The submission being that FJG was at all times of her life and continues to be female. The acceptance by the Victorian Registrar of the application creates a situation whereby the details of the event of FJG's birth are corrected to replace the assignment of 'male' with the assignment of 'female'. This provision is intended by the legislature to operate both retrospectively and in perpetuity.
I note that BDM refers to marriage throughout their submissions as being an 'event', with authority that a marriage certificate merely records the occurrence of an event. It is on this basis that BDM submit that the record cannot be altered and must maintain a 'snapshot' of what transpired on the day. However the purpose of a Marriage Certificate is to establish that two people are married. In doing so it has a residual legal purpose (seldom relied upon) to eliminate questions relating to bigamy. It is also a powerful identity verification document.
Legal requirements for adults to be married to raise legitimate offspring, inherit property in any manner or be considered dependent have all been abolished by a combination of legal and social developments over the last century. Marriage or the absence of marriage (in a formal legal sense) now only create different pathways for assessment of some of the matters above, such as Administration of the estate of a deceased person, entitlements under family law or de-facto relationship family provision legislation and similar.
In this setting it is difficult to envisage a legal need for marriage putting religious law, cultural traditions and related matters to one side for the purpose of a purely state based legal analysis. Some conventions have persisted in legal terms such as reference to spouses under the rules of various superannuation funds, and a person's eligibility to obtain an entitlement on the death of the member of the fund or the insured under a life insurance policy. However most of the schemes have been brought up to speed with current social views and these views have to the extent necessary been subsequently enshrined in legislation. Social security and immigration law in Australia continues to consider a person's standing to another in certain circumstances and the legislature has amended the law over the years to reflect the changing societal views and meet where necessary Australia's International treaty obligations. Other than a brief step to amend the Marriage Act (Cth) in 2004, in the last 25 years the changes have otherwise been designed to open up the law and eliminate the need for formal legal standing arising from a term such as spouse. 'Dependency' has been adopted as the assessable criteria for a benefit arising from standing in a relationship. Terms such as spouse, partner, de-facto, child, dependant have all to an extent entered the mix in assessing rights and entitlements at law. Obviously the pre-existing terms and rights applying to married persons remain.
The 2017 amendments to the Marriage Act in essence changed the definition of marriage from between a man and a woman to between any two adults. I consider this to be further evidence of the fluidity of the changes referred to above as it broadened the definition by making it less proscriptive. It did not specify same sex or heterosexual marriage but rather referred to marriage as being between two adults.
Section 5 of the Marriage Act 1961 (Cth) defines marriage as follows: "marriage" means the union of 2 people to the exclusion of all others, voluntarily entered into for life.
It would therefore appear for the reasons outlined above that there would be significant legal and practical importance in the particulars of a marriage, being accurately entered and reflected in the entry available in the Register.
I have carefully considered the parties' submissions as set out in some detail above. In this matter it appears that the central issue is one of statutory interpretation. Whilst BDM points to an absence of stated power to make the amendments as sought by the applicants, much of their submissions entered into the illogical consequences of acceding to the request. The strongest argument in that regard concerns conflict and inconsistency between State and Commonwealth law. I address this issue further below. Submissions concerning the applicant's divorcing and then remarrying are in my view misplaced. Irrespective of the need to have a period of separation I do not believe that the Parliaments of the States and Territories and the Commonwealth intended such an extreme and disingenuous remedy for those in the situation of the applicants.
However the strongest argument of the applicant's in my view relates to the submission that the Registrar is required to ensure that the entry in the Register should reflect the most accurate information available.
If one is to consider the 'snapshot' approach, where it was submitted that a Marriage Certificate is to record the events that transpired on the day of the wedding, then I agree that in a historical sense the Certificate refers to a 'bridegroom' with a common male first and second name. A witness to the ceremony might attest that a man married a woman on that date. Whilst only persons of opposite sex could marry legally in Australia in 2009, no evidence has been adduced to establish what actually occurred other than that birth certificates were tendered to the Celebrant prior to the ceremony in respect of the Notice of Intention to Marry, and subsequent to the ceremony the Celebrant completed details to have the marriage registered.
The evidence that has been adduced comes from FJG who states in Exhibit 'A-2' that: 5. On (XX) September 2009 I married [FJH] . … I told [FJH] that I was a woman living with trans experience in 2007 before we were married.
This evidence was received without objection and tends to indicate that whilst the legal particulars were recorded in the manner at that time consistent with various Birth Death and Marriage registers in NSW and Victoria, for all intents and purposes the parties to the union believed that both parties to the union were women.
Having now been provided with more accurate information, the evidence from exhibit 'A-2' and the reissued Birth Certificate as contained in the s 58 Documents (Exhibit 'R-1') it would appear that subject to any legislative prohibition, there is sufficient evidence as to more accurate and reliable information available now than what was available in 2009.
I note the reliance by the applicants on matters from the High Court case of Norrie. Reference is made to situations where the Registrar might cause an amendment to be made because they are concerned that an entry as not made in good faith: 38. There is nothing in the text of the Act which gives support to the view that the Registrar must initiate, much less resolve, a dispute concerning matters of fact and expert opinions presented to the Registrar under ss 32DA and 32DB. Such a role would not be consistent with the provisions of the Act which charge the Registrar with the role of establishing and maintaining the registers by recording information provided by members of the community. 39. There may be occasions when the Registrar is prompted by the circumstances of an application to address a concern as to whether an application to record a state of affairs in the Register is made in good faith. But this is not such an occasion. There is no suggestion that Norrie's application was not made in good faith. Norrie had undergone a sex affirmation procedure and verified that fact as required by s 32DB of the Act. Norrie's application was not deficient in terms of the information required by the Act. The opinions of the medical practitioners required by s 32DB were to the same effect as Norrie's own statement. The material before the Registrar (and the Tribunal) was to the effect that the sex affirmation procedure had not eliminated the ambiguities relating to Norrie's sex. In these circumstances no question was raised by Norrie's application which required the Registrar to pursue or resolve any further issue.
Like the position in Norrie, the evidence does not indicate to me that the applicants did not act in good faith in respect of the marriage, only that they knew the real circumstances of their attraction and union and sought to legitimise it in the only manner open to them at the time. In my view there can be no other conclusion drawn from the evidence at 'A-2'.
Consequent upon law reform and overwhelming social acceptance of same sex marriages, having followed the steps set out in the Victorian legislation equivalent to Part 5A of the BDMR Act, the applicants sought to have the Marriage Certificate details corrected to show the most accurate available information.
My preliminary view is that I cannot glean any legal prohibition on the Registrar amending the Marriage Certificate in the terms sought. The uncontested evidence and submission being that having registered a change of sex within the provisions provided for in 2018 amendments, all consequential changes consistent with that registration should follow.
To the extent necessary I agree with the submissions of the Applicants. Unless the changes are shown to be contrary to the intention of the legislature and the BDMR Act as a whole, or would result in a situation where the changes would have the opposite impact to giving effect to Government policy, I would grant the application for all of the reasons set out above.

Further consideration

Schedule 3 of the Miscellaneous Acts Amendment (Marriages) Bill 2018 provides the following in the explanatory note. Miscellaneous Acts Amendment (Marriages) Bill 2018 [NSW] Explanatory note Schedule 3 Amendment of Births, Deaths and Marriages Registration Act 1995 No 62 Schedule 3 removes restrictions from the Births, Deaths and Marriages Registration Act 1995 so that persons who change their sex and are married may have that change of sex recorded on the Births, Deaths and Marriages Register.
In the second reading speech on 23 May 2018 the Attorney General made the following observations about background and purpose of the amendments in sch 3 of the Bill. Schedule 3 sets out amendments to part 5A of the New South Wales Births, Deaths and Marriages Registration Act 1995 [BDMR Act] with respect to change of sex. The BDMR Act currently provides for a person who has undergone a sex affirmation procedure to have their registered sex altered on the Register of Births, Deaths and Marriages [BDM Register]. However, the relevant provisions are restricted to persons who are not married. The reason for this restriction is that amending the sex of a married person would have resulted in the marriage becoming a same sex marriage. Up until 9 December 2017, this would have conflicted with the previous definition of marriage in section 5 of the Commonwealth Marriage Act that is between a man and a woman. This would have given rise to an inconsistency between State and Commonwealth law.
I observe the reference in Hansard to the fact that schedule 3 creates amendments to the current situation (as at that time). Reference is made to what the BDMR Act currently (as at 23 May 2018) provides for and refers to those matters being restricted to persons who are not currently married. In my view the evidence and material establish that the amendments in NSW and the other States and Territories were brought about to allow those restrictions to be lifted, consequential on the passing of the Commonwealth amendments in late 2017. To the extent that this issue was ventilated at hearing between the parties I infer that it is uncontroversial.
However I note the Hansard reference that earlier amendments provide 'for a person who has undergone a sex affirmation procedure to have their registered sex altered on the Register of Births, Deaths and Marriages [BDM Register]'. The Attorney then addresses that up until the current amendments the earlier amendments did not apply to married persons. The Attorney then addresses the inconsistency in the State v Commonwealth Law issue. The reason for this restriction is that amending the sex of a married person would have resulted in the marriage becoming a same sex marriage. Up until 9 December 2017, this would have conflicted with the previous definition of marriage in section 5 of the Commonwealth Marriage Act that is between a man and a woman. This would have given rise to an inconsistency between State and Commonwealth law
In my view the basis of the amendment is to recognise that persons who have undergone a sex affirmation procedure could have their details amended in the Births Deaths and Marriages Register. However until 2018 those new provisions could not be taken up by persons married prior to 9 December 2017. That is because there would have been an inconsistency between State and Commonwealth law. Section 109 of the Commonwealth of Australia Constitution Act 1901 would have applied to make the Federal law prevail. From an examination of Hansard it would appear that this was the intention of the legislature in making the amendments, that is to amongst other things allow the earlier changes to now apply to persons married prior to the change in the Marriage Act 1961 (Cth).
If this was not the purpose of that aspect of the amendments, then I cannot see what additional purpose the amendments were designed to achieve. Married persons who subsequently underwent a sex affirmation procedure were prohibited from having that procedure legally recognised in the NSW Register because to do so would offend the Marriage Act. Now that the Marriage Act has been amended the NSW Legislature makes the amendments to allow married persons who have undergone a sex affirmation procedure to have that legally recognised. Whilst amendments to the Birth Certificate appear obvious and necessary, it seems unfathomable having regard to the purpose of the amendments, that they should not result in some change in the marriage entry in the BDM Register in circumstances such as those discussed in these proceedings.
To reference the often quoted case of Project Blue Sky, (Project Blue Sky v Australian Broadcasting Authority (1997) 194 CLR 355), where an inconsistency arises between provisions in an enactment, the construction which best gives effect to the purpose and language of those provisions while maintaining the unity of the statutory provisions is to be preferred.
In that regard to the extent that it is relevant, the Tribunal notes that Government Policy would appear to support a construction which was interpreted as inclusive of allowing all necessary and valid amendments.
These amendments would be consequential on a successful change of sex registration application under Part 5A of the BDMR Act following acceptance by the Registrar of a sex affirmation procedure.
These amendments would also seek to limit discrimination, one of the basis for the legislative change and borne out by the uncontested evidence of the applicant's at 'A-1' and 'A-2'.
Finally I believe that it is necessary and in the interest of justice to make a confidentiality order restricting the disclosure of the names of the applicants. Section 64 of the NCAT Act provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),
I determine of my own motion that it is desirable to make this order. The Divisional Registrar has alerted the parties to the order, and if by consent or otherwise they wish to have the order lifted they may apply to do so.

What action to take on review

In granting the application, the ADR Act provides the following powers to the Tribunal under s 63 (3): 63 Determination of administrative review by Tribunal … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In my view, because of the titles and language use to describe persons as recorded in Marriage Certificates issued by the Registrar from information held in the NSW Register, rather than prescribe a form of words it seems appropriate to remit the matter. This is to allow the Registrar to be able to apply the findings of the Tribunal to make the relevant amendments in language consistent with language currently used for relevant entries made after the Marriage Act was amended in 2017.

Conclusion

Having regard to the evidence and material before me, I find that the Registrar of Births Deaths and Marriages does have the ability to exercise the discretion to amend the BDM Register in the circumstances of FJG, to bring the entry into conformity with the most reliable information available.
I therefore make the following orders.

Orders 1. Pursuant to s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicants. 2. Pursuant to s 63 (3) (d) of the Administrative Decisions Review Act 1997, the correct and preferable decision is to set aside the decision of BDM dated 22 March 2021, and remit the matter for reconsideration by the administrator in accordance with the findings of the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022

Australia Constitution Act 1901(Cth)

Miscellaneous Acts Amendment (Marriages) Act 2018(NSW)

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