Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor

NCAT proceedings at first instance

1. FJG and FJH applied to NCAT for administrative review of the Registrar's decision. The proceedings were determined by NCAT on 11 April 2022: FJG v Registrar of Births Deaths and Marriages [2022] NSWCATAD 116.
2. In its reasons for decision, NCAT recorded that the Registrar's central contention was that the power under s 45(1)(b) of the NSW Act could not be exercised in the circumstances, stating: "24. It was submitted [for the Registrar] 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. 25. 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. … 61. 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."
3. It was further stated, at [80], that: "… 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... "
4. NCAT determined that the Registrar's decision was not the correct and preferable one. The decision of the Registrar was set aside and remitted to be determined in accordance with NCAT's findings, which included, at [105], a finding that the Registrar does have the ability to "correct" the Register in FJG's circumstances.

The internal appeal

1. From that first instance decision, the Registrar lodged the substantive appeal to which this referral application relates. The Registrar's grounds of appeal are extensive and we will only refer to them as relevant. We record that the appeal grounds include an alleged failure by NCAT to exercise its jurisdiction because it failed to engage with and make findings in respect of the Registrar's arguments, including constitutional arguments about s 109 inconsistency.
2. Subsequently, the Attorney General elected to intervene in the appeal proceedings and, thereby, to become a party pursuant to the combined effect of s 44 of the NCAT Act and r 29(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). In substance, the Attorney General has assumed the role of appellant on behalf of the Registrar, in part to avoid the issues arising from R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, by the Registrar, who was the decision-maker, taking an active role in any proceedings before the Court.

The referral application and proposed "concurrent" approach

1. It is the Attorney General who seeks to have questions of law referred to the Supreme Court under s 54 of the NCAT Act. A hearing was held on 29 July 2022, at which time the parties clarified their respective positions on the referral application. All of the parties concur in respect of the orders sought in the referral application. The parties have had an opportunity to ventilate their reasons for seeking to have the identified questions referred to the Court.
2. The questions sought to be referred are set out in our order at [68] below as questions (1) (a) to (d). They are questions that involve statutory construction of the NSW Act.
3. In what he describes as part of a "concurrent approach", the Attorney General intends to file proceedings in the Court and ask the Court for declarations in similar terms to the questions sought to be referred.
4. In addition, the Attorney General intends to seek further declarations from the Court about the proper construction and effect of the Cth Act and s 109 inconsistency. He proposes to lodge a notice of a constitutional matter in those proceedings, once commenced, to ensure that all proper parties with an interest in the outcome of the proceedings may participate. A draft s 78B, Judiciary Act 1903 (Cth) notice in that regard is before us.
5. The declarations which the Attorney intends to seek, by lodgment of a summons, are as follows: "B. … [I]nsofar as s.45(1)(b) of the NSW Act properly construed empowers the Registrar to correct an entry in the Register about a marriage solemnised in New South Wales where: (a) the correction would cause the particulars contained in the entry to be inconsistent with those in the marriage certificates prepared and signed under s. 50 of the Marriage Act 1961 (Cth); and (b) an authorised officer has not certified to the Registrar that the correction is necessary pursuant to s. 51(1) of the Marriage Act 1961 (Cth), s. 45(1) of the NSW Act is, to that extent, inconsistent with ss. 50 and 51 of the Marriage Act 1961 (Cth) and inoperative by force of s. 109 of the Constitution. C. …[I]nsofar as s.45(1)(b) of the NSW Act properly construed empowers the Registrar to correct an entry in the Register about a marriage solemnised in New South Wales: (a) to amend the particulars contained in the entry of the sex of a party to the marriage so that the marriage, as recorded in the Register, is between two persons of the same sex; (b) if at the time the marriage occurred same sex marriage was not lawful under the Marriage Act 1961 (Cth), s. 45(1) of the NSW Act is, to that extent, inconsistent with the Marriage Act 1961 (Cth) and inoperative by force of s. 109 of the Constitution."
6. We observe that there is some correlation between questions (1) (a) and (d) sought to be referred and proposed declarations B and C reproduced above. It is uncontroversial that NCAT, which is not a court of a state, cannot determine the issues raised by proposed declarations B and C, as to do so would be an impermissible exercise of federal jurisdiction: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15.

NCAT's power to refer questions of law to the Supreme Court

1. There is case law at both tribunal and Court level which provides some guidance to the factors that are relevant to the exercise of the discretion conferred by s 54 of the NCAT Act, and by predecessor provisions drafted in similar terms.
2. The NSW Court of Appeal in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 ("Sunol") found that it was inappropriate for the Court to answer questions referred to it by the former Administrative Decisions Tribunal (ADT) Appeal Panel in Sunol v Collier [2009] NSWADTAP 34, under a similar provision to s 54(1) of the NCAT Act. This was because the ADT Appeal Panel did not have power to refer questions concerning constitutional limitations. The Court wrote, at [19], in relation to the former Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act): "Properly understood, s 118(1) empowers the Appeal Panel to refer to this Court "a question of law arising in the appeal", being a question of State law. That construction is consistent with the principle that a reference to any matter or thing in a New South Wales Act is a reference to such matter or thing "in and of New South Wales": Interpretation Act 1987 (NSW), s 12(1)(b); and the requirement that the Act be construed so as not to exceed the legislative power of the Parliament: s 31(1). Thus, although the Tribunal must take account of constitutional limitations, in accordance with covering cl 5 of the Constitution Act, it does not follow that such questions arise in an appeal before it, nor that it has power to refer such questions to the Supreme Court. The better view is that they do not arise in the appeal because they are not matters in respect of which it has jurisdiction under the Administrative Decisions Tribunal Act."
3. That position was restated in Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254, ("Gatsby") where, at [282], Leeming JA said: "The fact that a legally binding answer to one of the questions could only be given by NCAT if it were answered in one way, and not the other, suggests that a procedurally flawed course was taken. At the practical level, it was also on the cards that in the event that NCAT determined, contrary to the Attorney General's submission, that it was a court, the matter would go further (as had occurred when the Administrative Decisions Tribunal had, wrongly, determined that it was a court in Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185). That said, I am also conscious that, in accordance with what was held in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14, NCAT was unable to avail itself of the course of referring a question of law to the Supreme Court pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and that the course taken by NCAT gave this Court the benefit of its considered reasons on the question. But the most straightforward approach would have been, as the contradictor submitted in this Court, for an application for a declaration and an order in the nature of prohibition to have been made in this Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).
4. We note that, in Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361; [2020] VSCA 30, the Victorian Court of Appeal appeared to "accept", from the Victorian Civil and Administrative Tribunal (VCAT), referral of a question which, in essence, was whether VCAT was "a 'court of a State' within the meaning of Ch III of the Constitution". Neither the issue of VCAT's jurisdiction to refer that question, nor the NSW Court of Appeal's decision in Sunol in that regard, seem to have been raised for that Court's consideration.
5. On the NSW authority binding on us, NCAT, including its Appeal Panel, may refer to the Court only questions of State law, with the written consent of the President of NCAT.
6. Before determining whether to exercise our discretion to refer the questions, we need to be satisfied; firstly, that what is sought to be referred are questions of law, and second, that they "aris[e] in the proceedings".
7. Of course, if such a referral is made, the Court retains a discretion as to whether it answers the questions, even where the Court is satisfied that questions of law arising in the proceedings have been referred: NCAT Act, s 54(3).

Questions of Law?

1. A question of law is not synonymous with, and may be more narrowly construed than, "legal error" or "error involving a question of law": Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [59], [61] & [62] per Basten JA; B & L Linings Pty Limited v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 per Allsop P at [47]. We note the importance of what Bathurst CJ and Bell P said in in the Court of Criminal Appeal in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar Management) at [52]: "[a] question may, in its form, sufficiently identify a possible error of law, but may nevertheless not qualify as a "question of law" or be readily answered as a question of law".
2. The Queensland Court of Criminal Appeal in R v Lewis; ex parte Attorney General [1991] 2 Qd R 294 per Macrossan CJ (with whom Kelly SPJ agreed) equated "point of law" in s 669A of the Criminal Code (Qld) with "question of law" (at 300) and said the expression was: "…concerned with a point involving principle capable of some general application as opposed to rulings which are dependent upon the manner in which an assessment is made of particular factual situations which are not readily capable of wider application to other situations."
3. The Chief Justice of Queensland rejected a wide interpretation of the expression "point of law", stating (at 299) that such an interpretation "will only lead to difficulties, time-wasting effort and, at the worst, some mischievous consequences": cited with apparent approval in Cobar Management at [50].
4. Part of the difficulty in defining and understanding what is meant by a question of law is that it does not have a single meaning but takes its meaning from the text and context in which it is used in the statute conferring power on the referring body: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [89] (Kostas). As Spigelman CJ had earlier noted in Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [28]: "What is, or is not a question of law may even vary where the phrase is used consistently within a statute, depending on context."
5. Thus, Rothman J considered in Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 at [35] that there was "a distinction between a question of law that may be referred [to the court] and a question of law that may be appealed", when considering the relevant provisions of the former ADT Act. A similar distinction was drawn in Cobar Management at [47], where Bathurst CJ and Bell P noted: "Where a statute affords a right of appeal on a question of law, it will necessarily be the case that the court at first instance will have found facts and applied the law to those facts to result in final orders. Where, on the other hand, a question of law may be referred to another court "for determination", that language suggests that the question will not already have been "determined" by the Court seised of the matter and, as such a reference may occur during or in the course of a hearing, facts will not (or will not usually) have been found by the court referring the question of law for determination."
6. However, we accept the Attorney General's submission that the questions he seeks to have referred to the Court are solely focused on the construction of s 45 of the NSW Act and the extent to which that provision would authorise the "correction" to the Register sought by the respondents.
7. As Basten JA said (with Bergin CJ in Eq agreeing) in Health Care Complaints Commission v Karasingham [2007] NSWCA 267 at [46]: "Once it is accepted that construction of a statutory provision will usually involve consideration of words in the context and that this will involve a question of law it can readily be seen that most questions of construction will involve questions of law. That approach gains support from the obligation imposed by s 33 of the Interpretation Act 1987 (NSW) (which has its equivalents in most jurisdictions) to adopt a construction that will promote the purpose or object underlying an Act or statutory rule. The identification of that purpose or object is itself likely to involve a question of law."
8. We are satisfied that the questions raised for referral are questions of law.

Arising in the appeal proceedings?

1. We are satisfied that questions (1) (b) and (c) which we are asked to refer arise in the internal appeal because those questions relate directly to aspects of the appellant's grounds of appeal which an Appeal Panel of NCAT will need to determine, and refer solely to the interpretation of the NSW Act. (See, for example Notice of Appeal, grounds 7 and 9 and 14(a) which allege errors in NCAT's interpretation of s 45 of the NSW Act which are independent of any reference to Commonwealth legislation).
2. We mentioned earlier the correlation between questions (1) (a) and (d) which we are asked to refer to the Court, and the separate declarations B & C (in the draft summons) which the Attorney General proposes to seek from the Court. We accept that questions (1) (a) and (d) sought to be referred address matters in issue between the parties in the internal appeal. At the hearing of the referral application, we raised with the parties whether those proposed questions for referral (1. (a) and (d)) and proposed declarations B & C were in substance, if not in form, identical. Since we are not able to refer a federal constitutional question of law, simply removing any direct reference to the asserted inconsistency between s 45(1) of the NSW Act and ss 50 and 51 of the Cth Act and reference to the consequent operation of s 109 of the Constitution may not be sufficient to circumvent that impediment. In other words, if the issues raised by the questions are to be argued identically to those sought to be addressed by the declarations, the form of the question may not sufficiently empower NCAT to make a referral.
3. The Attorney General recognises that the constitutional issues as to the validity of s 45 of the NSW Act are closely related to the non-constitutional questions as to the construction of that section, in that: 1. the constitutional invalidity questions only arise if a particular construction of s 45 of the NSW Act is adopted; and 2. the constitutional invalidity questions inform the appropriate construction of s 45 of the NSW Act in accordance with the basic presumption that legislation should be construed in a matter which renders it valid rather than invalid.
4. The Attorney General's submission, however, is that there is a relevant difference between the constitutional issues posited in the proposed declarations and the questions which we are asked to refer to the Court under s 54 of the NCAT Act at questions (1) (a) and (d).
5. The difference is that questions (1) (a) and (d) are only directed to the construction of s 45 of the NSW Act. The argument may be advanced that questions (1) (a) and (d) avoid a constitutional inconsistency by construction, whereas the declarations begin with the premise of inconsistency which cannot be avoided as a matter of construction and that the inconsistency is resolved by force of s 109 of the Constitution, rendering the NSW Act, in part, inoperative. (As an example of how the former position arises in the appeal, we were referred to grounds 5A and 6 of the Notice of Appeal.)
6. The Attorney General also points to the potential for the Court to refuse to resolve the constitutional questions as framed by the proposed declarations, but to be satisfied that questions (1) (a) and (d) ought to be answered, or vice versa, and submits that it would be preferable that all of the issues be considered by the Court together, to avoid duplication and potential inconsistency.
7. We accept those submissions but, ultimately, it will be a matter for the Court to determine whether questions (1) (a) and (d) do in fact raise constitutional issues which cannot be referred by NCAT.

Should we exercise our discretion to refer the questions to the Court?

1. Both NCAT, and the former ADT, have provided non-exhaustive guidance as to factors which may be relevant to the exercise of NCAT's discretion to refer questions of law to the Court (in the case of NCAT, with Presidential approval). The provisions governing referrals to the Court from the ADT and its Appeal Panel (ADT Act, ss 79A & 118) were sufficiently similar for the reasoning applied in that Tribunal to remain apt.
2. Factors in favour of referral may include: 1. a situation where there is no existing authoritative statement from an appellate court on the question of law: CTS v NSW Trustee and Guardian [2017] NSWCATAD 119 (CTS) at [14] (although this cannot be determinative: Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 (Milner) at [14]; 2. that the decision may have an impact broader than on the immediate parties and where, regardless of the outcome, an appeal is likely: CTS at [15]; Milner at [14]; 3. that a determination by the Supreme Court may truncate the legal process by avoiding the possibility of an appeal after a decision is made by the Appeal Panel: Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 at [24].
3. Factors weighing against making a referral may include: 1. that NCAT and its Appeal Panel may resolve all the issues, including the questions of fact, justly, quickly and cheaply: CTS at [18]; also see NCAT Act, s 36; 2. where the issues to be determined "are matters which the Tribunal routinely determines" and "are not particularly novel nor do they raise matters of public interest which have not previously been dealt with by the Tribunal": ALZ v WorkCover NSW [2015] NSWCATAD 241 (ALZ) at [8]; 3. where there is a remedy available, such as to appeal against the Appeal Panel decision in the normal course: ALZ at [8]; 4. that NCAT has a clear view about its duty and role, and the proper process is generally for questions of law to be determined initially by this Tribunal. NCAT is as well-placed as anyone to determine matters of public importance: Milner at [16], citing Legal Services Commissioner v Bryden [2009] NSWADT 76. This is particularly so where it is clear from the enabling act that Parliament intended that disputes between the parties would preferably be determined by NCAT: Kincumber Nautical Village Pty Ltd v Morris [2020] NSWCATAP 263 at [16]; 5. that experience has shown that procedures that fragment the hearing and disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances in which procedures of that kind have produced unfortunate results, as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Supreme Court would be removing the matter into a costs jurisdiction: Milner at [21].
4. Ultimately, the exercise of NCAT's discretion must be guided by consideration of what the interests of justice, informed by the guiding principle in s 36 of the NCAT Act, require.
5. We are satisfied that it is appropriate to exercise our discretion to refer the questions of law as sought by the Attorney General, with the concurrence of the other parties. Of particular significance is the fact that NCAT at first instance, and the Appeal Panel constituted to determine the substantive appeal, cannot make a decision concerning the interpretation of the constitutional issues the Attorney General seeks to raise in a final or binding sense. (The extent to which NCAT makes a binding or final determination in interpreting any question of law is a larger issue which it is unnecessary to delve further into here).
6. The substantial correlation between questions (1) (a) and (d) and proposed declarations B and C also make it preferable that the construction issues, if appropriate, be determined in the same forum to avoid inconsistency. The unified position of the parties, and their agreement as to costs referred to below, together with the Attorney General's intervention, also support the exercise of our discretion as it indicates that the parties are determined to have the matter judicially determined and the referral may reduce the likelihood of appeal from the Appeal Panel determining the substantive appeal, and protracted proceedings between the parties.
7. We acknowledge that determination of the questions by the Court, should it elect to do so, will not necessarily quell the controversy between the parties. Even if the questions and declarations are determined in favour of the respondents' position, it may be argued that the Registrar retains a discretion not to change the Register, conveyed by the use of the word "may" in the chapeau to s 45(1)(b) of the NSW Act. However, the issues have broader application than solely to these parties, given the extent of recent legislation permitting the correction or amendment of details kept by government in respect of a person's sex: for example, NSW Act, s 32B.

Could the parties simply seek declarations from the Court to determine the constitutional and non-constitutional issues in the same proposed summons?

1. It is unfortunate that the course of action proposed involves the lodgment of separate, concurrent proceedings in the Court. At the directions hearing conducted in respect of this referral application, the Appeal Panel raised with the parties whether the potential need for concurrent proceeding might be avoided by the Attorney General asking the Appeal Panel to delay determination of the substantive appeal whilst a summons seeking to deal with all of the relevant questions of law, by way of declaration, was lodged and determined in the Court.
2. In response, the Attorney General raised three contentions about the appropriateness of that course: 1. given the facility to refer questions of law under s 54 of the NCAT Act, such a course would seem to be "somewhat roundabout"; 2. the Court may determine such a course to be an incorrect procedure, having regard to what was said in Sunol and Gatsby. The Attorney General noted that, at least, referral of the questions in the form proposed would allow the Court to clarify whether this remains so, following the High Court's decision in Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1; [2022] HCA 16. 3. the Court may require some greater procedural explanation in circumstances where there had not been a direct referral of questions from NCAT. In particular, this course may be more likely to lead the Court to refuse to entertain the non-constitutional questions under s 54(3) of the NCAT Act.
3. We accept the weight of the second and third of those submissions, although we note that brief reasons for delaying the determination of the substantive appeal may meet the third of those issues from the Court's perspective.

Can a constitutional question arise and be referred in proceedings involving the exercise of administrative, as opposed to judicial, power by NCAT?

1. In Sunol, the Court of Appeal indicated that there was no power for the ADT Appeal Panel to refer federal constitutional questions to the Court, by virtue of the combined effect of the principle that a reference to any matter or thing in a New South Wales Act is a reference to such matter or thing "in and of New South Wales": Interpretation Act 1987 (NSW), s 12(1)(b); and the requirement that the ADT Act, including s 118, be construed so as not to exceed the legislative power of the Parliament: (Interpretation Act, s 31(1)). As that aspect of what was said by the Court does not require recourse to the nature of the power being exercised by the relevant tribunal (i.e. whether judicial or administrative power), we proceed on the footing that whether the tribunal exercises administrative, or judicial, power is irrelevant.
2. On that basis, the course proposed by the Attorney General in respect of the referral of non-constitutional questions to the Court by an Appeal Panel of NCAT, and bringing separate proceedings seeking a declaration in respect of the federal constitutional questions from the Court, would appear in this context to be what was described by Leeming JA in Gatsby as the "most straightforward approach". To allow for the various contingencies, however, we understand that the Attorney General may include, in his summons, the questions we are asked to refer, re-drafted as additional proposed declarations to ensure the Court has all potentially available avenues before to it to facilitate determination of the real issues it may think it appropriate to determine.
3. Subject to the formal consent of the NCAT President as required by s 54(2) of the NCAT Act, we will make an order referring the questions as sought in the referral application to the Court for its opinion.

Costs of the application

1. None of the parties seek their costs in respect of the referral application. We note that the Attorney General also adopts the position that each party should bear their own costs in the Court.

Order

1. We make the following orders: 1 Pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW), the following questions of law are referred to the Supreme Court for its opinion: 1. On its proper construction, does s 45(1)(b) of the Births, Deaths and Marriages Registration Act 1995 (NSW) ("NSW Act") empower the Registrar of Births, Deaths and Marriages of New South Wales ("Registrar") to correct an entry in the Register about a marriage solemnised in New South Wales: 1. where the correction would cause the particulars contained in the entry to be inconsistent with those in the marriage certificates prepared and signed under s 50 of the Marriage Act 1961 (Cth) and an authorised officer has not certified to the Registrar that the correction is necessary pursuant to s 51(1) of the Marriage Act 1961 (Cth)? 2. to amend the particulars contained in the entry of the name of a party to the marriage where the name accords with that registered under the law of the State where the person was born as at the date of the marriage but, subsequent to the marriage, the name of that person has been changed by registration of the change under the law of that State? 3. to amend the particulars contained in the entry of the sex of a party to the marriage where the sex accords with that registered under the law of the State where the person was born as at the date of the marriage but, subsequent to the marriage, an interstate recognition certificate for the purposes of s 32I of the NSW Act has been issued stating that the person is of a different sex to that which was recorded at the time of the marriage? 4. to amend the particulars contained in the entry of the sex of a party to the marriage so that the marriage, as recorded in the Register, is between two persons of the same sex, if at the time the marriage occurred same sex marriage is not lawful under the Marriage Act 1961 (Cth)? 2 Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW): 1. the disclosure of the names of the respondents to the appeal, together with any information or material which could identify those persons, is prohibited, except that this order does not prevent disclosure to the parties; their legal advisors; any Court for the purpose of proceedings involving these parties; or any party intervening in such proceedings. 2. the names of the Respondents are to be anonymised, including in the listing of the appeal proceedings.

Background

1. The first respondent ("FJG") was born in Prahran, Victoria [i]n [...] 1975. At that time, the first respondent's birth certificate issued under the Registration of Births Deaths and Marriages Act 1959 (Vic) recorded FJG's name as "[...]" and FJG's sex as "male".
2. [I]n [...] 2009, FJG and the second respondent ("FJH") married in New South Wales. The marriage was registered with the New South Wales Registry of Births, Deaths and Marriages [i]n [...] 2009, in accordance with the Births, Deaths and Marriages Registration Act 1995 (NSW). The Marriage Certificate issued by the New South Wales Registry of Births, Deaths and Marriages [i]n [...] 2009 and the particulars of marriage entered on the Register recorded FJG's name as "[...]", FJG as being the "bridegroom" and FJH as being the "bride".
3. Prior to their marriage, in 2007, FJG told FJH that FJG was a woman living with trans experience.
4. The Tribunal found that "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' [a signed statement of FJG]".
5. In February 2018, FJG registered a change of name to "[...]" under the Births, Deaths and Marriages Registration Act 1996 (Vic).
6. In 2020, FJG registered a change of sex to "female" under the Births, Deaths and Marriages Registration Act 1996 (Vic).
7. FJG's birth certificate issued under the Births, Deaths and Marriages Registration Act 1996 (Vic) [i]n [...] 2020 recorded FJG's sex as "female" and FJG's name as "[...]".
8. All of FJG's identification documents, with the exception of FJG and FJH's Marriage Certificate, now reflect FJG's sex and name as in FJG's birth certificate issued [i]n [...] 2020.

The Application

1. On about 20 January 2021 FJG submitted an application to correct an entry in the New South Wales Register of Births, Deaths and Marriages to change the information in the Register from: "[...] Husband" to "[...] Wife"
2. On 4 February 2021, FJG was informed by an Amendments Officer of the Amendments Team of the New South Wales Registry of Births, Deaths and Marriages that "the Registry cannot record an event retrospectively, therefore cannot record your new name and sex on the Marriage [C]ertificate."
3. On 11 February 2021, FJH requested an internal review of the decision notified on 4 February 2021.
4. On 22 March 2021, in a letter to FJH, the New South Wales Registrar of Births, Deaths and Marriages affirmed the decision of 4 February 2021.

The Tribunal proceedings

1. On 18 April 2021, the respondents applied to the Tribunal for administrative review of the 22 March 2021 decision.
2. On 11 April 2022, the Tribunal concluded that "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": FJG v Registrar of Births Deaths and Marriages [2022] NSWCATAD 116.
3. On 9 May 2022, the New South Wales Registrar of Births, Deaths and Marriages lodged a notice of appeal to the Appeal Panel of the Tribunal.
4. On 24 June 2022, the Attorney General for New South Wales intervened in the Appeal Panel proceeding and applied for referral of questions of law to the Supreme Court.

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: 19 August 2022