Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Attorney General for New South Wales v FJG [2023] NSWCA 34 Hearing dates: 6 December 2022 Date of orders: 6 March 2023 Decision date: 06 March 2023 Before: Bell CJ at [1]
Ward P at [2]
Beech-Jones JA at [3]Decision: (1) In respect of the questions referred to the Court by the Civil and Administrative Tribunal on 19 August 2022 pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW), “unnecessary to answer”.
(2) Declare that, on its proper construction, s 45(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (“NSW Act”) does not empower the Registrar of Births, Deaths and Marriages of New South Wales (“Registrar”) to correct an entry in the Register maintained under s 43 of the NSW Act (the “Register”) about a marriage solemnised in New South Wales in September 2009 (the “marriage”):
(a) where the correction would cause the particulars contained in the entry for the marriage in the Register to be inconsistent with those set out in the official certificate of marriage prepared and signed under s 50 of the Marriage Act 1961 (Cth), and provided to the Registrar pursuant to s 34 of the NSW Act in circumstances where an authorised officer under the Marriage Act 1961 (Cth) has not certified to the Registrar that the correction is necessary pursuant to s 51(1) of the Marriage Act 1961 (Cth);
(b) to amend the particulars contained in the entry of the name of a party to the marriage where that name accords with the name registered under the law of the State where that person was born, as at the date of the marriage, and is recorded as such in the official certificate of marriage but where, subsequent to the marriage, the name of that person has been changed by registration of the change under the law of that State; and
(c) to amend so much of the particulars contained in the entry for the marriage that record one party to that marriage as the “bridegroom” which accords with the official certificate of marriage and the sex of that person, as at the date of the marriage, under the law of the State where the person was born but where, 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 under the law of the State where the person was born at the time of the marriage.
(3) Grant the parties liberty to apply for further orders or declarations in respect of the declarations the subject of order 2.
(4) The summons filed 31 August 2022 be otherwise dismissed.
(5) There be no order as to costs of the summons or the questions referred to the Court by the New South Wales Civil and Administrative Tribunal on 19…
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- AGLC
- Attorney General for New South Wales v FJG [2023] NSWCA 34
- Case
- [2023] NSWCA 34
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether section 45 of the *Births, Deaths and Marriages Registration Act 1995* (NSW) empowered the Registrar to correct the marriage entry to reflect FJG's subsequent change of name and acknowledgement of sex. This involved determining whether the power to "correct" extended beyond ensuring the Register entry matched the official certificate of marriage issued under the *Marriage Act 1961* (Cth). The Court also considered whether such a correction, if permitted, would render section 45 inoperative due to inconsistency with Commonwealth law under section 109 of the Constitution, and whether section 45 authorised a correction that would record a same-sex marriage when such marriages were unlawful at the time of the ceremony. Additionally, the Court examined whether NCAT had the jurisdiction to refer questions of law involving Commonwealth law or the Constitution, and whether the proceedings before NCAT involved the exercise of federal jurisdiction.
The Court reasoned that the power to correct the Register under section 45 of the NSW Act did not extend to making an entry inconsistent with the official certificate of marriage prepared under section 50 of the *Marriage Act 1961* (Cth), unless specifically certified as necessary under section 51(1) of the Commonwealth Act. It held that section 45 did not permit corrections that would amend particulars of a marriage to reflect subsequent changes in a party's name or sex if those particulars accorded with the official certificate of marriage and the legal status at the time of the marriage. The Court found no inconsistency with Commonwealth law under section 109 of the Constitution. Regarding NCAT's jurisdiction, the Court determined that the application to review the Registrar's decision did not involve a "matter" under Chapter III of the Constitution, and therefore did not involve the exercise of federal jurisdiction, although NCAT could refer questions of law in its merits review capacity.
The Court declared that section 45(1) of the *Births, Deaths and Marriages Registration Act 1995* (NSW) does not empower the Registrar to correct a marriage entry in a manner that would cause it to be inconsistent with the official certificate of marriage, or to amend particulars of a party's name or sex if those particulars accorded with the official certificate and the legal status at the time of the marriage, despite subsequent changes. The Court deemed it unnecessary to answer the questions referred by NCAT and dismissed the summons, while granting liberty to apply for further orders.
Orders
Orders of the court
(1) In respect of the questions referred to the Court by the Civil and Administrative Tribunal on 19 August 2022 pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW), “unnecessary to answer”.
(2) Declare that, on its proper construction, s 45(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (“NSW Act”) does not empower the Registrar of Births, Deaths and Marriages of New South Wales (“Registrar”) to correct an entry in the Register maintained under s 43 of the NSW Act (the “Register”) about a marriage solemnised in New South Wales in September 2009 (the “marriage”):
(a) where the correction would cause the particulars contained in the entry for the marriage in the Register to be inconsistent with those set out in the official certificate of marriage prepared and signed under s 50 of the Marriage Act 1961 (Cth), and provided to the Registrar pursuant to s 34 of the NSW Act in circumstances where an authorised officer under the Marriage Act 1961 (Cth) has not certified to the Registrar that the correction is necessary pursuant to s 51(1) of the Marriage Act 1961 (Cth);
(b) to amend the particulars contained in the entry of the name of a party to the marriage where that name accords with the name registered under the law of the State where that person was born, as at the date of the marriage, and is recorded as such in the official certificate of marriage but where, subsequent to the marriage, the name of that person has been changed by registration of the change under the law of that State; and
(c) to amend so much of the particulars contained in the entry for the marriage that record one party to that marriage as the “bridegroom” which accords with the official certificate of marriage and the sex of that person, as at the date of the marriage, under the law of the State where the person was born but where, 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 under the law of the State where the person was born at the time of the marriage.
(3) Grant the parties liberty to apply for further orders or declarations in respect of the declarations the subject of order 2.
(4) The summons filed 31 August 2022 be otherwise dismissed.
(5) There be no order as to costs of the summons or the questions referred to the Court by the New South Wales Civil and Administrative Tribunal on 19 August 2022.
(6) To the extent necessary, grant leave to the Defendants to file a cross-summons in the form that was filed on 13 December 2022.
(7) The cross-summons be dismissed.
(8) There be no order as to the costs of the cross-summons.
(9) Vary order 1(b) made on 6 December 2022 by adding the words “save that this order shall not prohibit the publication of the month of their marriage”.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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