Attorney General for New South Wales v FJG

[2023] NSWCA 34

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 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”.

Catchwords:

STATUTORY INTERPRETATION – power to correct particulars of a marriage entered in NSW Register of Births, Deaths and Marriages – Birth, Deaths and Marriages Registration Act 1995 (NSW), s 45 – FJG and FJH married in NSW in 2009 – Register’s entry of their marriage included FJG’s personal details under the description “bridegroom” – Births, Deaths and Marriages Registration Act 1996 (Vic) – FJG born in Victoria and original birth certificate recorded sex as male – FJG subsequently effected a change of name under Pt 4 of Victorian Act in 2018 – FJG acknowledged her sex as “female” under Pt 4A of Victorian Act in 2020 – couple applied to have Registrar “correct” the entry for their marriage pursuant to s 45 to reflect FJG’s change of name and acknowledgement of sex – Registrar refused application – NCAT upheld application for review of Registrar’s decision – Registrar filed an internal appeal against NCAT’s decision – Appeal Panel referred questions of law to the Court – whether s 45 enables the Registrar to “correct” the Register’s entry for the marriage to reflect FJG’s change of name and acknowledgment of sex – held power to correct the Register does not extend beyond ensuring the particulars of the marriage that are recorded in the Register accord with the “official certificate of marriage” prescribed by the Marriage Act − whether s 45 permits a “correction” of the Register that would render an entry inconsistent with a certificate issued under s 50 of the Marriage Act 1961 (Cth) and, if so, to the extent it purports to so operate whether s 45 is rendered inoperative by s 109 of the Constitution – s 45 cannot require the correction of the Register in a way that is inconsistent with the “official certificate of marriage” produced under s 50 of the Marriage Act – no inconsistency under s 109 of the Constitution – whether s 45 authorises a “correction” that would amend the particulars of a marriage so that it records a marriage between persons of the same sex if, at the time of the marriage, same sex marriage was not lawful – issue does not arise

JURISDICTION – Constitutional law – judicial power – State tribunal – whether NCAT had the jurisdiction or power to refer questions of law involving a Commonwealth law or the Constitution to the Supreme Court − whether the proceedings before NCAT involved the exercise of federal jurisdiction – NCAT’s “incidental jurisdiction” does not extend to a final determination of any genuine question arising under a Commonwealth law or the Constitution – application to NCAT to review decision of Registrar did not involve a “matter” within the meaning of Ch III of the Constitution and thus did not involve the exercise of federal jurisdiction – in the exercise of its power to conduct merits review NCAT could refer to the Court such questions of law

RELIEF – declarations – should not be made so as to potentially apply to facts and circumstances that may be materially different to present case

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Decisions Review Act 1997 (NSW)

Anti-Discrimination Act 1977 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Births, Deaths and Marriage Registration Regulation 2006 (NSW)

Births, Deaths and Marriage Registration Regulation 2017 (NSW)

Births, Deaths and Marriages Registration Act 1996 (Vic)

Civil and Administrative Tribunal Act 2013 (NSW)

Interpretation Act 1987 (NSW)

Marriage Act 1961 (Cth)

Marriage Amendment (Celebrant Administration and Fees) Act 2014 (Cth)

Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

Marriage Regulations 2017 (Cth)

Marriage Regulations 1963 (Cth)

Miscellaneous Acts Amendment (Marriages) Act 2018 (NSW

Supreme Court Act 1970 (NSW)

Cases Cited:

Abdi v Release on Licence Board (1987) 10 NSWLR 294; [2002] NSWSC 1130

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14

Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42

Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254

Attorney-General (Cth) v “Kevin and Jennifer” (2003) 172 FLR 300; [2003] FamCA 94

Avery v Registrar of Births, Deaths and Marriages (2010) 79 NSWLR 354; [2010] NSWCA 72

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476

Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Committee of Direction of Fruit Marketing v Australian Postal Commission [1979] FCA 31; (1979) 25 ALR 221

Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40

Crawford v Davidson-Crawford [2019] NSWSC 728

De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335

De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335

FJG v Registrar of Births Deaths and Marriages [2022] NSWCATAD 116

Hore v Albury Radio Taxis Co-Op Society Ltd (2002) 56 NSWLR 210; [2002] NSWSC 1130

Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209

NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490; [2014] HCA 11

Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36

Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14

Sydney Sea Planes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Category:

Principal judgment

Parties:

Attorney General for New South Wales (Plaintiff)
FJG (First Defendant)
FJH (Second Defendant)
Registrar of Births, Deaths and Marriages (Third Defendant)

Representation:

Counsel:
Mr P Herzfeld SC; Mr S Murray (Plaintiff)
Ms E Bennett SC; Ms R McEwen; Mr J Wherrett (First and Second Defendants)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Allens (First and Second Defendants)

File Number(s):

2022/249986; 2022/259024

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the Respondents be referred to by the pseudonyms “FJG” and “FJH”. The publication of any information that may tend to reveal their identity is prohibited.

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Administrative and Equal Opportunity Division

Citation:

FJG v Registrar of Births Deaths and Marriages [2022] NSWCATAD 116

Date of Decision:

11 April 2022

Before:

J McAteer, Senior Member

File Number(s):

2021/120473

HEADNOTE

[This headnote is not to be read as part of the judgment]

The First and Second Defendants, FJG and FJH (the Defendants), married in New South Wales in 2009 and shortly afterwards registered their marriage in accordance with the Birth, Deaths and Marriages Registration Act 1995 (the NSW Act). This involved the entering of particulars of their marriage in the Register of Births, Deaths and Marriages (the Register) in accordance with the “official certificate of their marriage” produced under s 50 of the Marriage Act 1961 (Cth) (the Marriage Act). Consistent with the form of the official certificate of marriage then in use, FJG’s personal details were included in the Register under the description “bridegroom”.

FJG was born in Victoria in November 1975. FJG’s birth certificate was issued under the Registration of Births, Deaths and Marriages Act 1959 (Vic), which was repealed and replaced by the Births, Deaths and Marriages Registration Act 1996 (Vic) (the Victorian Act). The birth certificate recorded FJG’s sex as “male”. In 2018, FJG effected a change of name under Pt 4 of the Victorian Act. In 2020, FJG acknowledged her sex as “female” in accordance with Pt 4A of the Victorian Act. This has the same legal effect in New South Wales as a change of sex under the NSW Act. In 2009, FJG self-identified as female but satisfied the legal concept of “male” as used in the Marriage Act.

In 2021, the Defendants applied to have the Registrar of Births, Deaths and Marriages (the Registrar) exercise the power conferred by s 45 of the NSW Act to “correct” the entry in the Register for the marriage to reflect FJG’s change of name registered under the Victorian Act and her acknowledgement of sex under the Victorian Act. Following the Registrar’s refusal of their application, FJG applied for review of the decision by the New South Wales Civil and Administrative Tribunal (NCAT).

On 11 April 2022, NCAT upheld the application for review, set aside the Registrar’s decision and remitted the application for reconsideration. On 9 May 2022, the Registrar filed an internal appeal against NCAT’s decision. The Attorney General for NSW was made a party to the appeal.

On 19 August 2022, the Appeal Panel referred various questions of law to the Court concerning the power of NCAT to correct the Register and raising questions arising under Commonwealth legislation and the Constitution. To avoid any dispute about NCAT’s power to refer those questions arising from the decision in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 (“Sunol v Collier”), both the Attorney General and the Defendants sought declaratory relief that reflected each party's proposed answers to the referred questions.

The principal issues on appeal were:

1. whether s 45 of the NSW Act enables the Registrar to “correct” the Register’s entry of the Defendants’ marriage to reflect FJG’s change of name in 2018 and acknowledgement of sex in 2020 (the s 45 issue);

2. whether s 45 of the NSW Act permits a “correction” of the Register that would render an entry for a marriage inconsistent with a certificate issued under s 50 of the Marriage Act and where the correction had not been certified as necessary pursuant to s 51(1) of the Marriage Act, and, if so, to the extent it purports to so operate whether s 45 is rendered inoperative by s 109 of the Constitution (the inconsistency issue);

3. whether s 45 of the NSW Act authorises a “correction” to the Register’s entry for a marriage so that it records a marriage between two persons of the same sex if, at the time the marriage occurred, same sex marriage was not lawful under the Marriage Act (the prohibition issue); and

4. whether NCAT had the jurisdiction or power to refer the questions of law that it did to this Court, having regard to Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 (“Citta”) (the jurisdiction issue).

The Court held (Bell CJ, Ward P and Beech-Jones JA), making declarations largely in the form sought by the Attorney-General for NSW:

As to the s 45 issue

1. The Marriage Act and the NSW Act should be interpreted in a manner to facilitate solemnisation of marriages under Commonwealth law and the registration of marriages under State law. The NSW Act is a register of “registrable events” and, in the case of marriage, the registrable event is the marriage as defined and described by the Marriage Act as in force from time to time. The only method of effecting registration of that event is the provision of the “official certificate of marriage”, being the form of certificate prescribed under the Marriage Act. The Register captures a “snapshot” of information about the solemnisation of the marriage as recorded in the official certificate of marriage, including the designation of each of the parties to the marriage as either the “bridegroom” or “bride”. The power to correct the Register does not extend beyond ensuring that the particulars of the marriage that are recorded accord with the official certificate of marriage: [67]–[69].

Hore v Albury Radio Taxis Co-Op Society Ltd (2002) 56 NSWLR 2010; [2002] NSWC 1130; Abdi v Release on Licence Board (1987) NSWLR 294; [2002] NSWSC 1130, considered.

2. Both changes of name and sex, including acknowledgements of sex under the Victorian Act, are “registrable events” under the NSW Act. However, the NSW Act does not treat changes of name and sex as being changed for all purposes and at all times. Instead, FJG’s sex is recorded and recognised differently for different purposes. The provisions of the NSW Act dealing with change of name and change of sex do not affect the registration of marriages under the same Act. On the topic of the registration of particulars of a marriage, the NSW Act defers to the Marriage Act as in force from time to time and its official certificate of marriage: [71]–[74].

As to the inconsistency issue

1. Section 45 of the NSW Act and ss 50 and 51 of the Marriage Act should be construed to be consistent with each other and to give the scheme of registration of marriage a harmonious operation. To this effect, s 45 cannot require the correction of the Register in a way that is inconsistent with the “official certificate of marriage” produced under s 50 of the Marriage Act. On this construction of s 45, no issue under s 109 of the Constitution arises: [82]−[83].

De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335; Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40, applied.

As to the prohibition issue

1. On the proper construction of s 45 of the NSW Act, the issue does not arise: [84].

As to the jurisdiction issue

1. Citta confirms that NCAT possesses an “incidental jurisdiction” to determine whether matters before it involve the exercise of federal jurisdiction. However, that “incidental jurisdiction” does not extend to a final determination of any genuinely raised question arising under a law of the Commonwealth Parliament or the Constitution in a matter before it (Citta at [35]). To the extent that Sunol v Collier determined that the Appeal Panel in that case could not refer questions of law in matters involving the exercise of federal jurisdiction for final determination by this Court, then it has not been overruled by Citta: [87]–[92].

2. However in this case, the Defendants sought merits review by NCAT of an administrative decision. Their application to NCAT did not involve a “matter” within the meaning of Ch III of the Constitution and thus did not involve the exercise of federal jurisdiction. In the exercise of the power to conduct merits review, NCAT could refer to the Supreme Court questions of law concerning a law of the Commonwealth or arising under the Constitution: [93]–[95].

Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14, considered. Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476, applied. Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36; Committee of Direction of Fruit Marketing v Australian Postal Commission [1979] FCA 31; (1979) 25 ALR 221; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209, cited.

JUDGMENT

1. BELL CJ: Appellate courts generally do not and should never start with a result they consider to be desirable and work backwards from that particular, desired outcome. To do so is foreign to first principle. Rather, the task of statutory interpretation should begin and end with the text of the statute (or, as in the present case, statutes), considered in context: Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 at [116]; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [324]; Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 at [85]; see also Sydney Sea Planes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [28]. As illustrated by the judgment of Beech-Jones JA with which I agree, the process of statutory interpretation may sometimes result in an outcome that appears anomalous or even harsh to particular persons. The practical but unavoidable result of the process of statutory interpretation in the present, complex, case may be thought to be productive of such an outcome for FJG and FJH but, as his Honour points out, the only salve to this situation can be supplied by the legislature.

2. WARD P: I agree with Beech-Jones JA and with the additional observations of Bell CJ.

3. BEECH-JONES JA: In September 2009, the First and Second Defendants, FJG and FJH, were married in New South Wales. ^[1] Shortly afterwards their marriage was registered in accordance with the Birth, Deaths and Marriages Registration Act 1995 (NSW) (the “NSW Act”). This involved the inclusion of particulars of their marriage in the Register of Births, Deaths and Marriages (the “Register”) in accordance with the “official certificate of their marriage” produced under s 50 of the Marriage Act 1961 (Cth). The particulars included various details concerning FJG collated under the description “bridegroom”.

   1. At the commencement of the hearing orders were made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) requiring that the Respondents be referred to by the pseudonyms “FJG” and “FJH” and prohibiting the publication of information tending to reveal their identity: Tr 06/12/2022; p 2.

1. FJG was born in Victoria in November 1975. FJG’s birth certificate was issued in FJG’s birth name [2] under the Registration of Births, Deaths and Marriages Act 1959 (Vic), which was repealed and replaced by the Births, Deaths and Marriages Registration Act 1996 (Vic) (the “Victorian Act”). The birth certificate recorded FJG’s sex as “male”. In 2018, FJG effected a change of name under Pt 4 of the Victorian Act. In 2020, FJG acknowledged her sex as female in accordance with Pt 4A of the Victorian Act. This is given the same legal effect in this State as a change of sex under the NSW Act. [3]

   2. In this Court FJG’s submissions referred to her birth name as a “dead name”.

   3. NSW Act, s 32I: see [55].

2. In 2021 FJG and FJH applied to have the Registrar of Births, Deaths and Marriages (the “Registrar”) exercise the power conferred by s 45 of the NSW Act to “correct” or amend FJG’s name as recorded in the Register’s entry concerning their marriage. They also applied to correct or amend so much of the entry in the Register concerning their marriage that indicated FJG’s sex as male, specifically her description in the Register as the “bridegroom”.

3. By the procedural mechanisms described below, the plaintiff, the Attorney General for New South Wales, has brought before this Court the question of whether s 45 of the NSW Act enables the Registrar to make those changes. The Registrar is the third defendant to these proceedings but played no active part in the hearing.

4. For the reasons set out below, I conclude that the power conferred by s 45 of the NSW Act does not enable the Register to be amended in the manner sought by FJG and FJH or in any way that would result in the Register recording particulars of their marriage that are inconsistent with their “official certificate of marriage” produced under s 50 of the Marriage Act.

5. As these reasons seek to explain, this outcome is the result of the interaction of three statutes of three different legislatures that have adopted different approaches over time including different conceptions of sex (or gender). [4] However, that is simply an explanation and not a justification for the distress that this outcome will occasion to FJG and FJH. The result of the construction of the NSW Act that I prefer is that an official record of their marriage, which does not truly reflect their relationship as they perceive it and does not reflect FJG’s identify and sex as now recognised by both the NSW Act and the Victorian Act, cannot be altered. This outcome can be rectified by the legislatures without affecting the legitimate rights and interests of any other person or unravelling the compromises effected on the passage of legislative amendments that enabled same sex marriage.

   4. Sometimes a distinction is drawn between “sex” and “gender” on the basis that the former refers to the biological or physical attributes that comprise sex and the latter refers to socially constructed roles, behaviours and expressions, although that distinction is the subject of ongoing debate. This judgment uses the phrase “sex”, being the phrase used in both the NSW Act and the Victorian Act.

Background

9. Unless otherwise stated, the following is taken from a statement of agreed facts filed by the parties in the proceedings before the New South Wales Civil and Administrative Tribunal (“NCAT”) described below and tendered in this Court.

10. The relevant facts concerning FJG’s birth and her marriage to FJH are noted above. Their marriage was registered under the NSW Act within days of their marriage. As noted, the particulars of marriage entered on the Register record FJG’s birth (or “dead”) name (and other information concerning her) under the description “bridegroom”. FJH’s name and other information concerning her is recorded under the description “bride”.

11. The agreed facts record that “[p]rior to their marriage, in 2007, FJG told FJH that FJG was a woman living with trans experience.” At first instance, NCAT found that the “evidence does not indicate to me that … [FJG and FJH] 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”.

12. These facts need to be placed in context. From 2004 to 2017, s 5 of the Marriage Act defined “marriage” to mean the “union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. ^[5] Section 88EA provided that a union solemnised in a foreign country between either two men or two women “must not be recognised as a marriage in Australia”. Prior to 2004, “marriage” was not defined but various provisions of the Marriage Act contemplated that it was “the union of a man and woman to the exclusion of all others” (former ss 46(1) and 69(2)).

    5. Marriage Amendment Act (2004) (Cth).

13. In Attorney-General (Cth) v “Kevin and Jennifer” (2003) 172 FLR 300; [2003] FamCA 94 (“Kevin and Jennifer”), the Full Court of the Family Court held that where the phrases “man” and “woman” were used in the Marriage Act prior to 2003, then those words have their ordinary contemporary meaning according to Australian usage and included “post-operative transexuals” in accordance with their sexual reassignment (at [374]−[375]). It was not disputed that that approach was applicable to the definition of marriage in force from 2004 to 2017.

14. The effect of the agreed facts is that it is common ground in these proceedings that, at the time of the marriage between FJG and FJH in September 2009 and although FJG self‑identified as female, FJG satisfied the legal concept of “male” as used in the Marriage Act (although FJG and FJH do not accept the legitimacy of that concept). It follows that there is no basis for contending that FJG and FJH were not validly married.

15. Following a national plebiscite, and with effect from 8 December 2017, the Marriage Act was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) (the “Marriage Amendment Act”). Amongst other changes, the definition of marriage in s 5(1) was amended so that marriage now means “the union of 2 people to the exclusion of all others, voluntarily entered into for life”. Section 88EA was removed. Clause 70(1) of Pt 5 of Sch 1 to the Marriage Amendment Act specified that the amendments to, inter alia, the definition of marriage only applied “in relation to a marriage … that takes place after … commencement”. By contrast, cl 70(2) enabled the registration of foreign same sex marriages even if the marriage took place before the commencement of the Marriage Amendment Act.

16. As noted, in February 2018 FJG registered a change of name from her birth (or “dead”) name pursuant to Pt 4 of the Victorian Act. Subsection 29(1) of the Victorian Act provides that a change of name is registered “by making an entry about the change of name in the [Victorian] Register”. Subsection 29(2)(a) requires that the Registrar “note the change of name in the entry relating to the birth” and “notify the relevant registering authority of the change of name”. Subsection 29(3) provides that any birth certificate that is issued “must show the person’s name as changed”.

17. Part 4A of the Victorian Act is headed “Acknowledgment of sex”. FJG applied under s 30A(1) to have the record of her sex in her birth registration altered to “female”. This application was approved. In 2020, the record of her sex in her birth registration was altered to female pursuant to s 30C(1) of the Victorian Act. Section 30D provides that, after such an alteration is made, any birth certificate issued by the Registrar must state the person’s sex in accordance with the record as altered, must not state that the person’s sex has been altered and must not state the person’s former name (if any). Further, s 30G(1) declares that, once the application is approved and the record of the person’s sex in their birth registration is altered, “the person is a person of the sex as altered”.

18. One feature of Pt 4A of the Victorian Act is that it enables a person who is aged 18 years or over to apply to alter the record of their sex in their birth registration on the basis that the “person believes the person’s sex to be as nominated in the application” (Victorian Act, s 30A(1(b)). Unlike the NSW Act, it is not necessary for the person to have undergone a “sex affirmation procedure” (s 32B), being a “surgical procedure involving the alteration of a person’s reproductive organs” for the purpose of assisting a person to be considered a member of the opposite sex or to correct or eliminate ambiguities relating to the person’s sex (s 32A).

19. In accordance with these provisions of the Victorian Act, in late 2020, a birth certificate was issued for FJG that recorded her sex as “female” and included the name that was registered in February 2018. The agreed facts record that “[a]ll 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 [in late] 2020.”

20. On or about 20 January 2021, FJG applied to the Registrar under s 45 of the NSW Act to correct the entry in the Register concerning her marriage to FJH. The agreed facts record that FJG sought to change the information held in relation her marriage to FJH so that instead of referring to her birth or “dead” name and herself as “husband”, the Register would refer to her name that was registered under the Victorian Act in February 2018 and describe her as “wife”.

21. One difficulty with the application to the Registrar is that there is no evidence that the Register contains any entry for FJG and FJH’s marriage (or anyone else’s) as “husband” or “wife”. Instead, as explained below, the provisions of the Marriage Regulations 1963 (Cth) as in force in 2009 were to the effect that one party to the marriage would be recorded in the official certificate of marriage as “bridegroom” and the other party as “bride”. It is those particulars that are recorded in the Register. Consistent with this, a certificate produced under s 49 of the NSW Act certifying the “particulars” contained in the entry in the Registry concerning FJG and FJH’s marriage was tendered in this Court. [6] The certificate refers to FJG as the “bridegroom” and uses her original birth or “dead” name. It does not refer to FJG as “husband”. Nevertheless, I will proceed on the basis that it is FJG’s birth (or “dead”) name and the description “bridegroom” that are sought to be corrected in the Register.

    6. Exhibit 3.

22. To a limited extent, the use and recording of the descriptions “bridegroom” and “bride”, as opposed to “husband” and “wife”, support the Attorney General’s contention that the Register records a “snapshot” of events in time in that what is registered is the solemnisation of a marriage as opposed to, say, the status of a relationship. Generally, the words “bridegroom” and “bride” refer to the participants in the ceremony of marriage whereas “husband” and “wife” refer to the status that the participants attain as a result of such a ceremony.

Proceedings in this Court

23. On 4 February 2021, FJG’s application to amend the Register was refused by a delegate of the Registrar. On 11 February 2021 an application for internal review was filed. However, on 22 March 2021 the refusal was upheld.

24. On 18 April 2021, FJG applied for review of the Registrar’s decision by NCAT. On 11 April 2022, NCAT upheld the application for review, set aside the Registrar’s decision and remitted the application for reconsideration (FJG v Registrar of Births Deaths and Marriages [2022] NSWCATAD 116).

25. On 9 May 2022, the Registrar filed an “internal appeal” against NCAT’s decision. The Appeal Panel of NCAT was constituted by the President of NCAT, Armstrong J, and a principal member. The Attorney General for New South Wales was made a party to the appeal.

26. On the application of the Attorney General, on 19 August 2022 the Appeal Panel referred various questions of law to the Supreme Court for its opinion pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (the “NCAT Act”). Those questions are framed in general terms but concern the power of the Court to correct the Register in circumstances that include those pertaining to FJG and FJH.

27. Proceedings in respect of questions of law referred to this Court pursuant to the NCAT Act are assigned to the Court of Appeal (Supreme Court Act 1970 (NSW), s 48(2)(ha)). Due to a concern about the validity of a referral by NCAT of questions of law to this Court that potentially involve an issue arising under a law of the Commonwealth Parliament or under the Constitution (see Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14; “Sunol”), the Attorney General filed a summons in this Court seeking declaratory relief that reflected the Attorney General’s proposed answers to the referred questions. After the hearing, FJG and FJH sought leave to file a cross‑summons seeking relief that was the mirror image of that sought by the Attorney General. The questions posed, the declaratory relief sought and the orders I propose are set out below.

The Marriage Act 1961 (Cth)

28. At all relevant times, s 6 of the Marriage Act has provided that the Act “shall not be taken to exclude the operation of a law of a State or of a Territory, in so far as that law relates to the registration of marriages”.

29. As noted, FJG and FJH were married in September 2009. The definition of marriage as at that date is set out above (at [12]). As at September 2009, s 42(1)(a) of the Marriage Act provided that a marriage shall not be solemnised unless, inter alia, a notice in writing of the intended marriage had been received by the authorised celebrant no earlier than 18 months and no later than 1 month before the date of the marriage. This notice had to be in accordance with the prescribed form and included, inter alia, “such particulars in relation to the parties as are indicated in the prescribed form” (Marriage Act, s 42(2)(a)). Regulation 38 to the Marriage Regulations 1963, as in force in September 2009, provided that the notice had to be in accordance with Form 13. Form 13 required the provision of information such as name, usual occupation and usual place of residence of each of the “bridegroom” and “bride”.

30. As at September 2009, s 50(1) of the Marriage Act provided:

“Marriage certificates

(1)   Where an authorised celebrant solemnises a marriage, the authorised celebrant shall:

(a)   prepare a certificate of the marriage, in accordance with the prescribed form, for the purpose of issue to the parties to the marriage; and

(b)   prepare 2 official certificates of the marriage in accordance with the prescribed form.

(1A)   Notwithstanding paragraph (1)(b), the regulations may provide that the person for the time being holding or acting in a specified office of a specified State or Territory shall prepare only 1 official certificate under that paragraph.

(2)   Immediately after the solemnisation of the marriage, the authorised celebrant, each of the parties to the marriage and 2 witnesses of the marriage who are, or appear to the authorised celebrant to be, over the age of 18 years shall sign each of the certificates so prepared.

(3)   …

(4)   The authorised celebrant shall hand the certificate referred to in paragraph (1)(a) to one of the parties to the marriage on behalf of the parties, and:

(a)   where 2 official certificates have been prepared:

(i)   within 14 days after the solemnisation of the marriage, forward the official certificate to which subsection (3) applies, together with the notice under section 42, the order (if any) under section 12 and any statutory declarations, consents and dispensations with consents relating to the marriage that are in his or her possession, to the appropriate registering authority of a State or Territory ascertained in accordance with the regulations; and

(ii)   retain the other official certificate and deal with it in accordance with the regulations; or

(b)   where only 1 official certificate has been prepared─retain that certificate and deal with it in accordance with the regulations.” (emphasis added)

31. Two matters should be noted about these provisions. First, s 50(1)−(4) refer to the preparation and signing of “certificates of marriage” and “official certificates of marriage”. At its simplest, the certificate of marriage is retained by the parties to the marriage and the official certificate of marriage is provided by the celebrant to the relevant state authority to register the marriage.

32. Subregulation 40(1) of the Marriage Regulations 1963, as in force in September 2009, prescribed Form 15 as a “certificate of marriage”. Form 15 merely makes provision for the inclusion of details of the celebrant, the names of the parties, the dates of the marriage and the signatures of the parties and witnesses. Subregulation 40(6) of the Marriage Regulations 1963, as in force in September 2009, prescribed Form 16 as an “official certificate of marriage”. Form 16 required the inclusion of information concerning each of the parties to the marriage collated under the descriptions “bridegroom” and “bride”.

33. Second, s 50 and other provisions of the Marriage Act facilitate the registration of marriages under state legislation. Hence, s 50(4)(a)(i) refers to the “appropriate registering authority of a State”. Regulation 41 and Sch 2 to the Marriage Regulations 1963 specify that the appropriate registering authority for New South Wales is the Registrar (and the equivalent in the other States and Territories). The combined effect of s 50(1)(b) and (4) of the Marriage Act is such that, where the authorised celebrant prepares two official certificates of marriage, the celebrant is obliged to forward one of the certificates and other relevant documentation to the “appropriate registering authority”, which in this case was the Registrar.

34. Further, s 39(1) of the Marriage Act provided that a person who, under the law of a State or Territory, had the function of registering marriages solemnised in that State, Territory or part thereof may also solemnise marriages in that State, Territory or part thereof. In addition, other State officers could be authorised to solemnise marriages (s 39(2)). Subregulation 42A(1) to the Marriage Regulations 1963 specified that various State and Territory officers who were authorised celebrants were authorised to prepare only one official certificate of marriage under s 50(1)(b) of the Marriage Act. This included the Registrar (and certain other New South Wales officers with functions in relation to the Register: Marriage Regulations 1963, Sch 3). As contemplated by s 50(4)(b) of the Marriage Act, reg 42A to the Marriage Regulations 1963 made provision for celebrants authorised under s 39(1) or (2) to deal with the official certificate of marriage as required by State or Territory legislation.

35. The practical effect of these provisions is that under the Marriage Act, as in force in September 2009, the “official certificate of marriage” was required to be provided to the relevant state authorities. That certificate designated one of the parties to the marriage as the “bridegroom” and the other as the “bride”.

36. The principal amendments made by the Marriage Amendment Act with effect from December 2017 are described above. Neither s 42 nor s 50 was altered by the Marriage Amendment Act, although, with effect from 1 July 2014, s 42(2)(a) was amended so that instead of the notice of intention to marry including the “particulars … indicated in the prescribed form” it referred to the “particulars … as are prescribed” (Marriage Amendment (Celebrant Administration and Fees) Act 2014 (Cth)).

37. The Marriage Regulations 1963 were repealed with effect from 1 April 2018 and replaced by the Marriage Regulations 2017 (Cth). The Marriage Regulations 2017 make the same or similar provision for the forwarding of the official certificate of marriage to the Registrar and the equivalents in other States and Territories as did the Marriage Regulations 1963. The Marriage Regulations 2017 specify a form of “certificate of marriage” similar to the one noted above (reg 73 and Form 15). However, the form of an “official certificate of marriage” and a notice of intention to marry are not specified in the Marriage Regulations 2017. Instead, the Minister is obliged by s 119(3) of the Marriage Act to approve the form of those documents in writing. During the hearing of the proceedings, the Court was advised that the form currently in use enables a party to the marriage to choose the descriptor “bride”, “bridegroom”, “partner 1” or “partner 2”. [7] It is not necessary to consider this further as the Court is not dealing with an application to amend the Register that contains particulars derived from such a form. Otherwise, it suffices to state that nothing in the current form of the Marriage Act nor the Marriage Regulations 2017, including its Schedules, requires the specification of any reference to “bride” or “bridegroom” (or any other indicator of the sex of the parties to a marriage).

    7. Tr 06/12/2022 p 76.

31. At all relevant times, s 51 of the Marriage Act conferred on an “authorised officer” (being a person authorised by the Minister) the power to “correct” a certificate of marriage prepared and signed under s 50 in certain circumstances. The Registrar is an authorised officer for the purposes of s 51(4).

The Register of Births, Deaths and Marriages

39. Part 8 of the NSW Act deals with the maintenance and correction of, as well access to, the Register. Within Pt 8, s 43(1) obliges the Registrar to maintain a register or registers of “registrable events”. A registrable event is defined to mean “a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage” (s 4(1)). Subsection 43(2) provides that the Register (a) “must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register” (s 43(2)(a)) and (b) “may contain such further information as the Registrar considers appropriate for inclusion” (s 43(2)(b)). Sections 46−48 deal with access to and searching of the Register. Section 49 enables the Registrar to, inter alia, issue a certificate “certifying particulars contained in an entry” in the Register.

40. FJG’s application to the Registrar and then to NCAT sought to invoke the power conferred by s 45 of the NSW Act which 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.”

41. At this point it suffices to state that the Attorney General contended that the Register is in effect a “point in time” register in that it records information about the happening of particular “registrable events” such as births or deaths as opposed to being an up to date record of a person’s status from time to time.

The Registration of Marriages under the NSW Act

42. Part 6 of the NSW Act deals with the registration of marriages, being one form of “registrable event”. Within Pt 6, s 33 provides that, if the marriage is solemnised in New South Wales in accordance with law, the marriage must be registered under the Act. Sections 34 and 35 provide:

“34 How to have marriage registered

A person has a marriage registered by lodging with the Registrar a certificate of the marriage under the Marriage Act 1961 of the Commonwealth or, if the marriage was solemnised before the commencement of that Act, the evidence of the marriage required by the Registrar.¹

[Note: ¹Under section 50 (4) of the Marriage Act 1961 of the Commonwealth the authorised celebrant (within the meaning of that Act) is responsible for lodging the certificate of marriage with the Registrar.]

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.”

43. Although it does not form part of the NSW Act (Interpretation Act 1987 (NSW), s 35(2)), the note to s 34 is an express statement of what is implied from a consideration of these provisions in light of the Marriage Act, namely that the NSW Act and Marriage Act complement one another to facilitate the registration of marriages. For example, neither ss 33 nor 34 of the NSW Act identifies who is obliged to register a marriage. Instead, the imposition of an obligation that will lead to registration is left to s 50 of the Marriage Act (and the other provisions of the Marriage Act and the regulations thereto noted above).

44. Sections 34 and 35 appear to elide the distinction between the “certificate of marriage” and “official certificate of marriage” described above. However, the reference to “a certificate of the marriage” in s 34 and the reference to “marriage certificate” in s 35 must be a reference to the “official certificate of marriage” and the “official certificate” referred to in s 50(1)(b), (3) and (4) of the Marriage Act, not the “certificate of marriage” referred to in s 50(1)(a). The Marriage Act only imposes an obligation on celebrants to provide the official certificate to the relevant “registering authority of a State or Territory” (s 50(4)(a)(i)). There is no obligation cast upon anyone to forward the “certificate of marriage” referred to in s 50(1)(a) of the Marriage Act to the Registrar. If s 34 of the NSW Act was meant to refer to the “certificate of marriage” referred to in s 50(1)(a) of the Marriage Act, then the statutory scheme for registration of marriages would fail as ss 34 and 35 would operate on a form of certificate not required to be provided to the Registrar. Legislative schemes consisting of more than one statute should be interpreted in a manner that makes the scheme workable, and this extends to legislation enacted by different legislatures that are intended to work together (Hore v Albury Radio Taxis Co-Op Society Ltd (2002) 56 NSWLR 210; [2002] NSWSC 1130 at [39]; Abdi v Release on Licence Board (1987) 10 NSWLR 294).

45. Section 35 of the NSW Act enables the registration of marriages by either the inclusion of the marriage certificate in the Register or the inclusion of “particulars of the marriage in the Register”. Neither the NSW Act as in force in 2009, nor as currently in force, specifies the particulars of the marriage that must be included in the Register. Further, neither the Regulations to the NSW Act as in force in 2009 [8] nor as currently in force [9] specifies the “particulars” of the marriage that must be included in the Register, although they specify the particulars required for, inter alia, the registration of a birth, [10] adoption, [11] change of name [12] and death. [13]

    8. Births, Deaths and Marriage Registration Regulation 2006 (the “2006 Regulation”).

    9. Births, Deaths and Marriage Registration Regulation 2017 (the “2017 Regulation”).

    10. Regulation 5.

    11. Regulation 6.

    12. Regulation 8.

    13. 2006 Regulation, Regulation 15; 2017 Regulation, Regulation 16.

46. At the hearing of the appeal, it was submitted that, having regard to the interaction between the Marriage Act and the NSW Act, the “particulars” of the marriage that had to be recorded were all the matters specified in the official certificate of marriage. [14] It is not necessary to address that submission. However, at the very least, at the time of the registration of a marriage under s 35 of the NSW Act, the information available to the Registrar to be included was confined to that set out in the official certificate of marriage.

    14. Tr 06/12/2022 p 12.43.

47. In this case, it is not known whether the relevant entry in the Register for FJG and FJH’s marriage comprises the official certificate of marriage (NSW Act, s 35(a)) or the particulars recorded by the Registrar (NSW Act, s 35(b)). However, the certificate produced under s 49 of the NSW Act certifying “particulars” in the entry concerning their marriage which was tendered contains all the various particulars that were included in an official certificate of marriage as in force in September 2009. [15] The certificate refers to FJG as the “bridegroom” and uses her original birth or “dead” name.

    15. Exhibit 3.

Change and Name and Change of Sex under the NSW Act

48. Two other forms of “registrable events” are changes of name and changes of sex. Part 5 of the NSW Act concerns changes of name. Part 5A concerns change of sex.

49. An application for a change of name can be made under Pt 5 if the person’s birth is registered in New South Wales (or if the person was born outside Australia but has been resident in NSW for the immediately preceding three years) (NSW Act, s 27). A change of name is registered by the Registrar “making an entry about the change of name in the Register including the particulars required by the regulations” (NSW Act, s 31(1); Marriage Regulation 2017, reg 9(1)(d)). The applicant for the registration of a change of name may request that the change be noted on the applicant’s birth certificate if the birth is registered under the NSW Act. If so requested, the Registrar must “note the change of name in the entry relating to the birth” (s 31(2)(a)). In that event, the birth certificate “must show the person’s name as changed” under Pt 5 (s 31(3)). However, the “registrable event” being registered is still the “change of name” itself. Part 5 does not purport to require the removal of the applicant’s original name from the Register but only alters the form of the birth certificate that is produced from the Register.

50. In relation to an application for a change of sex, s 32B(1) of the NSW Act enables a person whose birth is registered in New South Wales and has, inter alia, “undergone a sex affirmation procedure” to apply to the Registrar for “alteration of the record of the person’s sex in the registration of the person’s birth”. Section 32D(1) empowers the Registrar to determine the application by making the alteration or by refusing to make the alteration. Sections 32DA−32DD confer similar powers in relation to recording a change of sex in respect of a person whose birth is not registered in NSW or under a corresponding law.

51. In NSWRegistrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490; [2014] HCA 11 (“Norrie”), the High Court held that, in an appropriate case, the Registrar may exercise the power conferred by s 32DC(1) to record a change in a person’s sex from male to “non-specific” (at [35]). For the purposes of this matter, s 32DC is not relevantly different to s 32D. In a passage relied on by FJG and FJH, the High Court referred to the function of the Registrar under the NSW Act in these terms (at [16]):

“…the function of the Registrar is principally that of recording in the Register information provided by members of the community. Section 32DB makes express provision for the verification of an aspect of the information to be provided. Further, s 32DC(1) confers a limited and specific decision-making power on the Registrar. While the Registrar may require such particulars ‘relating to the change of sex as may be prescribed by the regulations’, neither the Act nor the regulations suggest that the Registrar's function extends to the making of any moral or social judgments; it certainly does not extend to the resolution of medical questions or the formation of a view about the outcome of a sex affirmation procedure.”

52. At the time Norrie was decided, the power to record an alteration or change of sex in the Register could not be exercised if the applicant was married (former ss 32DA(1)(d) and 32DC(3)). This restriction was removed with effect from 15 June 2018 (by the Miscellaneous Acts Amendment (Marriages) Act 2018 (NSW)) presumably as a result of the passage of the Marriage Amendment Act.

53. An indication of the extent, and limits, of a decision to alter the record of the person’s sex in the registration of the person’s birth is evident from the following provisions of the NSW Act:

“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.

32F Issuing of old birth certificate

(1)   The child of a person the record of whose sex is altered under this Part, or a person prescribed by the regulations, may apply to the Registrar for a birth certificate for the person that shows the person’s sex before the record was so altered.

(2) Despite section 32E, the Registrar may issue such a birth certificate to the child or prescribed person.”

54. Unlike the provisions concerning a change of name, these provisions of the NSW Act effect an “alteration of the record of the person’s sex in the registration of the person’s birth”. However, like those provisions, the record of the person’s previous sex is not removed from the Register. It must remain as otherwise an “old birth certificate” could not be issued under s 32F on the application of a child of the person who successfully applies for a change of sex under Pt 5A.

55. The overall effect of a change in sex under the NSW Act is addressed by s 32I which provides:

“32I Effect of alteration of register and interstate recognition certificates

(1)   A person the record of whose sex is altered under this Part is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered.

(2)   A person to whom an interstate recognition certificate relates is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as stated in the certificate.

(3)   An ‘interstate recognition certificate’ is a certificate issued under the law of another State that is prescribed by the regulations for the purposes of this section.” (emphasis added)

56. As noted, FJG effected an acknowledgement of her sex as female in accordance with the Victoria Act, which is a law of another State prescribed for the purposes of s 32I(3). [16] It follows that s 32I(2) applies to her. Thus, for the purposes of “any law of New South Wales”, her sex is as stated in the certificate, namely, female. Although that does not affect any change to the Register in its own right, an example of the operation of s 32I(2) is that, if a person the subject of such a certificate recording the person’s sex as female were subsequently to die in New South Wales, then any death certificate issued under the NSW Act would also record that person’s sex as female.

    16. 2017 Regulations, reg 19(1)(f).

57. However, both s 32I(1) and (2) are also subject to any law of New South Wales, including provisions of the NSW Act such as s 32F. Otherwise, those provisions do not operate on any law of the Commonwealth.

58. At this point, four differences between the NSW Act and Victorian Act so far as change of sex and acknowledgement of sex should be noted. First, the former requires the applicant to have undertaken a sex affirmation procedure, whereas the latter only requires an applicant who is aged 18 years or over to believe that person’s sex is as nominated in the application. [17] Second, a change of sex is a “registrable event” in its own right under the NSW Act, [18] whereas the Victorian Act has no equivalent for an acknowledgement of sex. Third, as explained, the NSW Act does not expunge all records of the affected person’s sex before the change of sex was registered, whereas the Victorian Act does not expressly suggest that the person’s previous sex is recorded. [19] Thus, the NSW Act makes provision for the issue of a birth certificate listing the person’s sex before the change of sex application was registered whereas the Victorian Act has no equivalent provision. [20] Fourth, the NSW Act qualifies the declaration that the affected person’s sex has changed by making it subject to any law of New South Wales. [21] The equivalent provision of the Victorian Act is not so qualified. [22]

    17. NSW Act, s 32B; Victorian Act, s 30A(1)(b).

    18. NSW Act, s 3.

    19. See [54].

    20. NSW Act, s 32F; Victorian Act, s 30D.

    21. NSW Act, s 32I.

    22. Victorian Act, s 30G.

Issue 1: Power to “correct” the Register

59. In an endeavour to encapsulate the questions referred by NCAT and the issues raised by the summons and cross‑summons, the parties identified three issues for the Court to address.

60. The first issue was identified in the written submissions of FJG and FJH as whether “s 45 of the NSW Act permit[s] an amendment of the Register in the circumstances of the present case”. The Attorney General phrased this question as whether “s 45 permit[ted] amendment of the Register for subsequent changes of name and sex”. The Attorney General’s wording is directed to the Register generally and is not confined to entries in the Register that concern marriage. It is also unconfined in time so that on its face it extends to all the versions of the Marriage Act in force from to time. The Attorney General contended that the answer to the first issue did not raise any question of the interaction of the NSW Act and the Marriage Act.

61. The matter should be addressed largely in the manner identified by FJG and FJH. Although the substance of the Attorney General’s arguments will be addressed, the issue framed by the Attorney General travels well beyond the facts of this case including the nature of the correction sought by FJG. All the questions referred to the Court by NCAT and the declarations sought in the summons raise issues about the power to correct entries in the Register in respect of a marriage, whereas the Attorney General purports to address corrections to the Register generally in respect of changes to name and sex. The Attorney General’s formulation requires the Court in effect to provide an advisory opinion that runs the risk of eliding legal and factual differences between this case and other cases that may be material.

The Parties’ Submissions

62. As noted, the Attorney General contended that the Register maintained under the NSW Act records particulars of “registrable events” on a “point in time” basis in that “registrable events” are something that occur or happen at a particular time. Hence, it was submitted that s 45 is only a power to “correct” the Register’s entries about registrable events and is not a general power to amend the Register to accommodate developments since the time of the event. The Attorney General noted the observation of Ward CJ in Eq, as her Honour then was, in Crawford v Davidson-Crawford [2019] NSWSC 728 at [25] (“Crawford”) that “[t]he purpose of s 45 … is obviously to enable errors in the Register to be corrected.” To the extent that s 45 enables the Registrar to correct the Register “to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event” (s 45(1)(b)), it was submitted that this only refers to information that has become available about the registrable event based on facts that existed at the time of the registrable event. The Attorney General raised the facts of Crawford as example of this. In Crawford, an application was made to amend the Register to remove a record of the plaintiff’s name as the father of the child where DNA testing had proven the child was not his.

63. Leaving aside the interaction between the Marriage Act and the NSW Act, the Attorney General’s submissions contended that it was only if the changes of name and sex “truly had retroactive effect” could the power in s 45 be engaged to allow the correction of an entry about a (historical) registrable event such as a marriage. The Attorney General submitted that neither the Victorian Act nor the NSW Act had such an effect, either in relation to a change of name or change of sex. The Attorney General noted that, while both the Victorian Act and the NSW Act made provision for the issue of birth certificates in the changed name, neither Act erased the former name nor deemed the person’s name to have changed since birth. With changes of sex under the NSW Act and acknowledgments of sex under the Victorian Act, the Attorney General noted the provisions in both Acts relating to the issue of birth certificates reflecting a change in sex and the statutory prohibitions on the issue of birth certificates stating that the person’s sex has been altered. [23] The Attorney General submitted that these provisions effected “a limited retrospective operation” of a change of sex “but only in respect of the recording of that person’s birth as a registrable event”. It followed, according to the Attorney General, that no power to “correct” the Register arose in a case such as this, as there is no recent “reliable information” about the registrable event, being the marriage of FJG and FJH. Otherwise, I note the theme of the Attorney General’s submissions in relation to the second issue noted below, namely, the necessity for consistency between the operation of at least so much of the NSW Act that concerns the registration of marriages (including s 45) and the Marriage Act.

    23. NSW Act, s 32E(2); Victorian Act, s 30D(b).

62. FJG and FJH’s principal submission was that the birth certificate issued under the Victorian Act recording FJG’s sex as female represents the most reliable information available to the Registrar about FJG’s sex at the time of the “registrable event” (s 45(1)(b)), being her marriage to FJH in September 2009. Thus, they contended that the power under s 45(1)(b) to correct the Register in relation to that event had arisen. Their submissions contended that the Attorney General’s contention that the Register is a “snapshot” was derived from an analysis of the statutory provisions (and various NCAT cases) concerning changes of name. It was contended that there was an important distinction between changes of name and changes of sex in that the former was something given effect to by the NSW Act whereas the latter was an event, like a birth or death (or a marriage), that occurs independently of registration under the NSW Act (citing Avery v Registrar of Births, Deaths and Marriages (2010) 79 NSWLR 354; [2010] NSWCA 72 at [65]). FJG and FJH noted that s 3(c) of the NSW Act describes one of its objects as “the registration of changes of name and the recording of changes of sex” (emphasis added).

63. FJG and FJH submitted that the distinction between the registration of a change of name and other registrable events was important in this case as it was contended that “[t]here is now new, and more reliable, information concerning what occurred at the time of FJG’s birth”, namely that FJG “was born a female” and that “at the time of her wedding the fact FJG was a woman was a known reality.” It was contended that, consistent with the role of the Registrar as stated in Norrie (set out above at [51]), the Registrar must give effect to the birth certificate issued under the Victorian Act and not form any moral or social judgments about FJG’s sex. In support of this approach, the submissions pointed to the absence of any prescription in the NSW Act of what particulars must be recorded in the Register concerning a marriage. This appears to be a reference to s 35(b) of the NSW Act, which has been addressed above.

64. FJG and FJH’s submissions also referred to the “default position” under s 32E of the NSW Act that a birth certificate issued after a person’s sex is altered pursuant to Pt 5A of the NSW Act will reflect the record as altered, and must not include a statement that the person has changed sex. It was submitted that this was “a clear indicator that an alteration of sex under the NSW Act will (except upon the request of the person in question) have retrospective operation insofar as perpetual records concerning the person are concerned”. However, this is only the “default” position and the contention ignores s 32F, both of which must mean that, even after the power in s 32D(1) is exercised by making an alteration to the record of a person’s sex in the registration of that person’s birth, the Register nevertheless contains an entry or record of the fact of the change and the affected person’s previous sex as recorded.

No Power to Correct the Register under s 45

67. The statutory provisions concerning the registration of marriages under the NSW Act are outlined above (at [42]−[45]). The “registrable event” being registered is the marriage defined and described by the Marriage Act as in force from time to time (NSW Act, s 33).The only method of effecting registration of that event is that provided for by both the NSW Act and the Marriage Act, namely the provision of the “official certificate of marriage”, being the form of certificate prescribed from time to time (NSW Act, s 34). Leaving aside s 45 of the NSW Act, no other method of providing information to the Registrar about the marriage is specified. Only two means of recording information in the Register about the marriage are provided for in the NSW Act; one is the inclusion of the official certificate of marriage in the Register (s 35(a)), and the other is the inclusion of particulars by the Registrar taken from the official certificate of marriage (s 35(b)). At least so far as the Register is dealing with marriage as a form of “registrable event”, it is capturing a “snapshot” of information about the solemnisation of the marriage as recorded in the official certificate of marriage.

68. The operation of the provisions of the NSW Act concerning a change of name and change of sex have been surveyed above. I do not consider it useful to analyse whether those provisions should be characterised as retrospective or prospective, whether in whole or in part. Instead, the provisions should simply be considered on their own terms for what they do and do not give effect to. Both a change of name and change of sex are “registrable events” under the NSW Act in their own right. Further, they interact with so much of the Register that records births and deaths but do not result in the Register treating the change of name and sex as having been changed for all purposes at all times. Thus, while the NSW Act enables the issue of a birth certificate based on information recorded on the Register which conveys that a person’s changed name and altered sex is that person’s birth name and birth sex, information about the affected person’s previous name or sex is not wholly expunged from the Register itself. A birth certificate in the affected person’s previously recorded sex can still be issued on the application of one of the person’s children (NSW Act, 32F).

69. While there may be room for debate about the scope of the operation of the provisions of the NSW Act concerning changes of name and changes of sex, no express provision is made for how, if at all, those provisions affect the registration of marriages in Pt 6. There is no reason to conclude that the provisions implicitly have any such effect. If they did so operate, then they would undermine so much of the NSW Act which forms part of an integrated scheme for the registration of marriages. It would mean that the NSW Act would no longer be purporting to register the marriage as recognised and recorded (in the official certificate of marriage) under the Marriage Act. This is exemplified by the circumstance envisaged by s 35(a) of the NSW Act, namely, the inclusion of the official certificate of marriage in the Register. I cannot envisage how the official certificate of marriage can be “correct[ed]” by the Registrar under s 45. The position cannot be any different where, instead of including the certificate, the particulars are included in the Register under s 35(b) of the NSW Act as those particulars must in turn reflect the contents of the official certificate of marriage. It is difficult to envisage how the power to correct the Register extends beyond ensuring that the particulars accord with the official certificate of marriage.

70. FJG and FJH’s submissions do not engage with so much of their application which seeks to alter FJG’s name as recorded in the Register’s entry for their marriage. Leaving that side, FJG and FJH’s fundamental contention is that s 45 of the NSW Act is engaged because material concerning the sex of FJG at the time of her birth (and the time of her marriage to FJH in September 2009) has emerged that corrects the (mis)understanding reflected by the entries in the Register concerning her marriage that suggest she was, or is, male. The premise of the contention that FJG’s female sex is an objective state of affairs always pertaining is revealed by the following submission:

“… [the Attorney General’s] submission ignores or dismisses the fact that at the time of her wedding the fact FJG was a woman was a known reality. It must be, therefore, that the Attorney submits that it was a known but not an objective reality. That is, the submission must be that FJG was a man at the time of her wedding, and the Register is correct to say that was the case. If what the Attorney means is that at the time of her marriage, the sex marker on FJG’s birth certificate was “male”, that may be so, but it is not the fact to which the Register is directed. The objective reality is and was that FJG was a woman. The Attorney's assertion to the contrary ignores rather than supports the objective reality.” (emphasis added)

71. To the extent that this submission asserts that the test of who is a “man” under the Marriage Act is determined by the “sex marker” on a birth certificate, then it is inconsistent with the decision in Kevin and Jennifer. Putting that aside, the contention that the “objective reality” that FJG is, and was, at the time of her birth and at the time of her marriage a woman is at the core of the argument that the power conferred by s 45 is engaged. With respect, in the present context, that contention is wrong. In the present context, and post-modern as it may seem, a person’s sex is not an “objective reality” but a statutory concept which has different meanings in three different statutes which have changed over time.

72. As noted, for the purposes of the Marriage Act, it is common ground that in September 2009 FJG was a “man”. For the purposes of the Victorian Act, then, at least from 2020, FJG is female. To an extent, and possibly for all purposes under the Victorian Act, prior to that FJG is also to be considered female. However, a determination of the extent to which an acknowledgement of sex under Pt 4A of the Victorian Act is effective for all purposes under that Act or other legislation enacted in the State of Victoria is not truly an issue in these proceedings. Instead, the present significance of FJG’s acknowledgment of her sex under Pt 4A of the Victorian Act is that it results in FJG being the subject of an “interstate recognition certificate” for the purposes of s 32I of the NSW Act. The effect of s 32I(2) is that FJG’s acknowledgement of her sex as female under Pt 4A of the Victorian Act has no greater and no lesser force than the effect of a change of sex under Pt 5A of the NSW Act. Hence, for the purposes of, but (importantly) subject to, the law of New South Wales, the sex of FJG is female (and is referred to in this judgment as such). The extent of the NSW Act’s treatment of FJG as female is determined by reference to its provisions concerning a change of sex.

73. As explained, so far as records of births are concerned, the NSW Act provides that the Register records the affected person’s gender both before and after the change of sex. The NSW Act makes provision for the publishing of birth certificates that record either sex depending on who seeks the certificate. These provisions are inconsistent with any contention that a change of sex under the NSW Act (including its recognition of an acknowledgement of sex under the Victorian Act) reflects a single objective truth about a person’s sex or gender at all times and for all purposes.

74. As noted, under the Marriage Act, FJG is considered to have been male in September 2009. FJG is (most likely) considered female under the Victorian Act for all purposes and at all times, although it is not necessary to determine that. However, under the NSW Act, FJG’s sex is recorded and recognised differently for different purposes. Of present significance is that, on the topic of the registration of marriages, the NSW Act defers to the Marriage Act as in force from time to time and its official certificate of marriage. Otherwise, in the face of so many legislative choices and changes in relation to such a sensitive topic, there is no scope for the courts to act on their own views on the topic of sex and identity.

75. This analysis also addresses one of the arguments raised on behalf of FJG and FJH, namely that, if s 45 of the NSW Act cannot be invoked to alter the particulars of their marriage in the Register, then there will be discrepancies between the information recorded about FJG’s sex in the Register. This can be accepted; however, it reflects the point just noted, namely that the NSW Act records information about persons for different purposes. So far as marriage is concerned, the Register records particulars from the official certificate of marriage and, for marriages that took place prior to December 2017, that certificate reflects a different concept of sex to that effected by the current form of Pt 5A of the NSW Act (which in turn is very different to that given effect by the Victorian Act).

76. For the sake of completeness, I note that FJG and FJH’s submissions identified a number of purposive and textual considerations that they contended supported the conclusion that the power conferred by s 45 of the NSW Act could be exercised in these circumstances. First, it was contended that FJG and FJH’s proposed construction is consistent with the above passage (at [51]) from Norrie in that the purpose of the Register is to record accurate information about registrable events provided by members of the public, and that the Register currently records inaccurate information about FJG’s sex. It follows from the above that an “accurate” Register, so far as marriage is concerned, is one that accurately records the particulars of marriage as set out in the official certificate of marriage. To the extent one is considering the Register’s entry of FJG’s status as “bridegroom” within the meaning of the Marriage Act as in force from time to time, then the Register’s entry for FJG is, in this sense, “accurate”.

77. Second, FJG and FJH contended that their proposed construction was consistent with one of the objects of the NSW Act, being the “keeping of registers for recording and preserving information about … marriages … in perpetuity” (s 3(d)). As noted by the Attorney General’s submissions in reply, there is a difference between maintaining records in perpetuity and updating records perpetually. FJG and FJH’s proposed construction involves the latter.

78. Third, FJG and FJH’s submissions referred to the practical difficulties created for them and others in similar situations of having inconsistent identity documents produced from entries in the Register. The submissions instanced a medical emergency as a situation where the failure of a marriage certificate, or a record issued under s 49 of the NSW Act certifying the particulars of a marriage, to record FJG’s identity and sex as one that could cause significant inconvenience and distress. The submissions noted that “[a]t the very least, [this circumstance] requires FJG and FJH to disclose highly personal information, of a kind which may endanger the physical and psychological wellbeing of FJG, on every occasion when FJG and FJH seek to prove that they are married.” I accept that these concerns are well-founded. However, they do not overcome what follows from an analysis of the text and structure of the NSW Act and the Marriage Act as in force from time to time. These concerns are instances of the consequences that can follow from different legislatures approaching such sensitive issues in different ways over time.

79. Lastly, I note that the above analysis is largely directed to the provisions concerning change of sex as they were the focus of FJG and FJH’s submissions. It suffices to state it also applies to FJG’s change of name with even greater force as there is no equivalent to s 32I(2) of the NSW Act for changes of name under Pt 4 of the Victorian Act.

80. Accordingly, it follows that I do not accept that the power conferred by s 45 of the NSW Act is enlivened where a person applies to “correct” the particulars of a marriage solemnised in New South Wales in September 2009 to reflect a change of name effected under Pt 4 of the Victorian Act in 2018 and an acknowledgement of sex effected under Pt 4A of the Victorian Act in 2020. Properly analysed, the legal effect of those changes does not yield more reliable information about the “registrable event”, being the marriage, than those recorded in the official certificate of marriage provided to the Register under s 34 of the NSW Act. The form of relief that I propose to give effect to this conclusion is set out below.

Issue 2: Interaction between s 45 of the NSW ACT and ss 50 and 51 of the Marriage Act

81. The Attorney General’s submissions formulated the second issue as “whether s 45 of the NSW Act permits correction of the NSW Register where that would render it inconsistent with a certificate issued under s 50 of the Marriage Act and an authorised officer has not… [certified] that the correction is necessary pursuant to s 51(1) of the Marriage Act”. FJG and FJH’s submissions did not dispute that formulation of the second issue.

82. The Attorney General submitted that s 45 of the NSW Act and ss 50 and 51 of the Marriage Act should be construed in such a way as to give the scheme of registration of marriage an harmonious operation. To that effect it was submitted that s 45 could not require the correction of the Register in a way that is inconsistent with the official certificate of marriage. The Attorney General submitted that, if it were otherwise, then s 45 would be inconsistent with those provisions and rendered inoperative to the extent of the inconsistency by s 109 of the Constitution. FJG and FJH’s submissions contended that s 45 of the NSW Act was not so constrained and submitted that no inconsistency arises.

83. It follows from the above analysis that I accept the Attorney General’s submissions as to the limited scope of the power conferred by s 45 of the NSW Act to correct the Register in relation to the registration of marriages. On the construction I prefer, no issue of inconsistency of the kind contemplated by s 109 of the Constitution arises. To the contrary, the statutory provisions must be read in a manner that are consistent with each other (see De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335 at [49] to [54] per French J, as his Honour then was; Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 at [176]).

Issue 3: The Marriage Act’s Prior Prohibition on Same Sex Marriage

84. The third issue posed by the Attorney General is whether s 45 of the NSW Act authorises a “correction” where it would “amend the particulars of a marriage [so that it recorded a marriage] to be between two persons of the same sex if, at the time the marriage occurred, same sex marriage was not lawful under the Marriage Act”. In light of the construction of s 45 that I prefer, this issue does not arise.

Other Issues

85. During the course of argument, the Court queried whether it was open to the Registrar to publish a certificate under s 49(1)(a) of the NSW Act certifying particulars contained in an entry in the Register concerning a marriage that omitted the descriptions “bride” and “bridegroom”. One answer may be that, subject to other provisions of the NSW Act, s 49(1)(a) requires any certificate that is issued to contain all the particulars for that entry. In any event, it is neither appropriate nor necessary to consider this further as it could not address FJG’s change of name and such a certificate was not sought in this case.

86. Further, a query was raised as to whether the Registrar could exercise the power conferred by s 43(2)(a) of the NSW Act to include in the Register particulars of the marriage additional to those included in the official certificate of marriage. However, as there was no suggestion that step had been undertaken by the Registrar or that FJG and FJH sought the inclusion of any such particulars, it cannot be considered further.

NCAT’s power to refer questions to this Court

87. As noted, NCAT referred, or purported to refer, four questions of law to this Court pursuant to s 54 of the NCAT Act. As these questions raised, or at least potentially (and genuinely) raised, issues arising under a law of the Commonwealth or under s 109 of the Constitution, a concern arose that the proceedings before NCAT involved the exercise of federal jurisdiction (Constitution, s 76(i) and (ii); see Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 esp at [35]). As NCAT has been held not be a court of the State (Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254; “Gatsby”), the parties were uncertain as to whether this Court’s decision in Sunol meant that NCAT did not have jurisdiction or power to refer those questions to this Court or whether Sunol had been overruled by Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 (“Citta”).

87. In Sunol, an Appeal Panel of the Administrative Decisions Tribunal purported to refer various questions of law to this Court which raised questions about the effect of the constitutional implication of freedom of communication about government or political matters on certain provisions of the Anti-Discrimination Act 1977 (NSW). Former s 118(1) of the Administrative Decisions Tribunal Act 1997 (NSW) was not materially different to s 54(1) of NCAT Act in that it enabled the Appeal Panel to refer to this Court a “question of law arising” in the appeal before it. This Court held that, as NCAT did not have jurisdiction to decide issues arising under the Constitution, it had no power to refer those questions to this Court because they did not arise in the proceedings before the Appeal Panel (Sunol at [19]). To overcome this concern, the Court suggested the various questions be raised by way of a summons seeking declaratory relief (at [23]). As I understand it, this was the rationale for the course taken by the Attorney General in these proceedings.

88. In Citta, the plurality (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) held that a State tribunal that is not “a court of a State” within the meaning of s 77(iii) of the Constitution “must be taken to have an incidental jurisdiction to hear and determine whether the hearing and determination of a particular claim or complaint would be within the legislated limits of its State jurisdiction” (Citta at [25], emphasis added). In respect of that “incidental jurisdiction”, the plurality observed (at [26]−[27]):

“… Accordingly, the State tribunal exercises judicial power when it decides that a claim or complaint in respect of which its jurisdiction is sought to be invoked is or is not a matter of a description referred to in s 75 or s 76 of the Constitution. The Federal Court [24] has correctly so held. To the extent that the Court of Appeal of the Supreme Court of New South Wales might be understood to have held to the contrary in Sunol v Collier… that decision should not be followed.

The legal effect of the judicial exercise by a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution of its jurisdiction to decide its own jurisdiction is no different from the legal effect of the judicial exercise of jurisdiction to decide its own jurisdiction by an inferior court of the State that is a court within the meaning of s 77(ii) and s 77(iii) of the Constitution. The limits of jurisdiction are in each case the limits that are set by the legislated conferral of jurisdiction construed in light of the Constitution. The judicial determination of jurisdiction is in neither case conclusive. In either case, if jurisdiction is wrongly determined to exist, such order as is ultimately made in the purported exercise of jurisdiction is wholly lacking in legal force.” (citations omitted)

24. In Qantas Airways Limited v Lustig (2015) FCR 148; [2015] FCA 253 at [91].

90. In Citta it was held that, in a case before a State tribunal which is not a court, where it is suggested that a claim or defence relies on a Commonwealth law or the Constitution, the limit of this “incidental jurisdiction” is that the State tribunal may only determine whether the “claim or defence in reliance on a Commonwealth law or in reliance on the Constitution [said] to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution” is “genuinely raised and not incapable on its face of legal argument” (at [35]). The exercise of this “incidental jurisdiction” does not extend to an evaluation of what the “prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits” (at [37]).

91. This explains the qualified overruling of Sunol in the above passage from Citta. Citta confirmed that, if Sunol is to be taken as denying that there is any jurisdiction or authority on the part of a State tribunal to decide for itself whether the proceedings before it involve an exercise of federal jurisdiction, then it should not be followed. However, to the extent that Sunol determined that the Appeal Panel in that case, and other bodies in similar cases, could not refer questions of law in matters involving the exercise of federal jurisdiction for final determination by this Court, then it has not been overruled. This is so because, while it follows from Citta that the “incidental jurisdiction” of NCAT described above could support a referral of some questions of law to this Court under s 54(1) of the NCAT Act, those questions would still have to constitute a “question of law arising in the proceedings” before NCAT. Given the constraints on its “incidental jurisdiction”, any such questions could only be directed to whether the proceeding before NCAT involved the exercise of federal jurisdiction. They could not require a final determination of any genuinely raised question arising under a law of the Commonwealth Parliament or under the Constitution because Citta confirms that the exercise of “incidental jurisdiction” does not extend that far. Such questions of law do not arise in the proceedings before NCAT because the answers to them will not resolve any issue before NCAT.

92. This is illustrated by the conclusion of the plurality in Citta, namely, that the Full Court of the Supreme Court of Tasmania erred in purporting to address the merits of the defence raised in the proceedings before the Tasmanian Anti‑Discrimination Tribunal and that it was not necessary or appropriate for the High Court to do so either (Citta at [7]−[9]). Resolving the merits of that defence did not determine whether the proceedings before that State’s tribunal involved the exercise of federal jurisdiction.

93. Nevertheless, I do not consider that the concern about NCAT’s power in this case to refer questions that raise, or potentially raise, an issue under a law of the Commonwealth Parliament or the Constitution is justified. The proceedings initiated by FJG and FJH in NCAT seek merits review of the decision of the Registrar to refuse to correct the Register. This does not involve a “matter” within the meaning of Ch III of the Constitution and thus did not involve the exercise of federal jurisdiction (see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36 at 290). This is so because the subject matter of the proceedings in NCAT does not involve or constitute “a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated” (Citta at [31]). Leaving aside an order in the nature of mandamus which is not the relief granted by NCAT, FJG and FJH’s capacity to apply to NCAT and possibly obtain a correction of the Register under s 45 does not involve the enforcement of a legal right or duty, and that capacity does not exist independently of the machinery provided for making an application to NCAT (see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [164]−[168] per Gummow and Hayne JJ).

94. Further, the mere exercise of the power to refer questions of law to this Court does not mean that the Appeal Panel in this case was somehow purporting to exercise any jurisdiction in respect of a “matter” any more than the exercise of the power conferred on the Administrative Appeal Tribunal (the “AAT”) by s 45(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to refer a question of law to the Federal Court can be said to involve the exercise of such a jurisdiction. All proceedings before the AAT involve laws made by the Commonwealth Parliament but it is not vested with jurisdiction to determine any matters. Instead, the AAT undertakes merit reviews of administrative decisions. However, the exercise of the power to answer questions raising an issue under a law of the Commonwealth or the Constitution by this Court does involve the determination of a “matter” and, thus, involves the exercise of federal jurisdiction by this Court (see Committee of Direction of Fruit Marketing v Australian Postal Commission [1979] FCA 31; (1979) 25 ALR 221 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209).

95. The nature of the jurisdiction exercised by NCAT in this matter can be contrasted with the jurisdiction exercised by NCAT in Sunol and Gatsby as well as by the Tasmanian Anti‑Discrimination Tribunal that was considered in Citta. In those cases, the tribunals exercised State judicial power as they were deciding a dispute between subjects about the application of each State’s respective anti-discrimination legislation. The State tribunals in those cases were seized of a “matter” which at some point came to involve the exercise of federal jurisdiction.

The Declarations Sought

96. It follows that I consider it open to the Court to adopt either of the suggested courses, namely, making (or refusing to make) the declarations sought or answering the questions of law referred. In either case, there can be no doubt that NCAT will act in accordance with this Court’s determination. Despite concluding that the questions referred can be answered, I will adopt the parties’ preferred course and address the declarations sought. To that end, I propose the Court respond to the questions posed by stating “unnecessary to answer”.

97. Prayer 1A of the Attorney General’s summons sought declarations in the following terms:

“On its proper construction, s 45(1)(b) 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 about a marriage solemnised in New South Wales:

(a) 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);

(b)   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;

(c) 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;

(d) 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).”

98. The analysis set out above substantially accords with the effect of declarations 1A(a) and (b) sought by the Attorney General save that the reference to the “marriage certificates prepared and signed under s 50 of the Marriage Act 1961” should be a reference to the “official certificate of marriage”. Otherwise, I have misgivings about a grant of declaratory relief in wide terms that travel well beyond the facts of this case. Further, with proposed declaration 1A(c), at no point in time in these proceedings has either the official certificate of marriage or Register included particulars concerning the sex of a party to the marriage other than referring to them as “bridegroom” or “bride”. As explained above, since December 2017 there has been no requirement in the Marriage Act or the Marriage Regulations 2017 to include an entry which suggests the sex of a party to the marriage including use of the terms “bridegroom” or “bride”, although the Court was advised that the most recent form of “official certificate of marriage” allows the parties to elect to adopt those descriptions. Otherwise, given the conclusion at [84], no occasion arises to consider making any declaration in the form of 1A(d).

99. To address this, I propose that the Court make declarations that address subparagraphs (a), (b) and (c) but in terms which are more closely calibrated to the circumstances of this case. I also propose to grant the parties liberty to apply in respect of those declarations.

100. Prayer 1B of the Attorney General’s summons seeks various declarations in the alternative to 1A that reflect the contention that, if s 45 of the NSW Act enables the correction of the Register to include particulars that are inconsistent with the official certificate of marriage, then it is rendered inoperative by s 109 of the Constitution. Prayer 1C seeks similar declarations to the extent that s 45 of the NSW Act is said to authorise the amendment of the particulars in the entry for a marriage to record a marriage between two persons of the same sex when that was unlawful. It follows from the above that, because I consider s 45 does not extend that far, neither set of declarations should be made.

101. Prayer 2 of the Attorney General’s summons seeks orders in the nature of mandamus directing the Appeal Panel to allow the appeal before it, set aside the decision under review and affirm the decision of the Registrar refusing to correct the Register. While that result would appear to follow inevitably from the above, it is not appropriate at this stage to direct the Appeal Panel as to the manner in which it should exercise its powers. As stated, the Appeal Panel can be expected to act in accordance with the declarations made by this Court.

102. As noted, after the hearing FJG and FJH sought leave to file a cross‑summons seeking declarations and orders that are the mirror image of those sought by the Attorney General. I propose that they be granted leave to file the cross‑summons but that it be dismissed.

103. The approach of calibrating the Court’s declarations to the facts of this case requires a clarification of the effect a non-publication order that was made by the Court at the hearing of these proceedings. The order prohibits the publication of “any information tending to reveal the identity of FJG or FJH in connection with these proceedings, or in connection with the evidence given in these proceedings or in connection with information about evidence given in the proceedings”. Subsequent to the hearing, the parties filed a redacted version of the materials tendered before the Court that included a redaction of the date of FRG and FJG’s marriage, including the month. As I understand it, this was done because of the potential for the disclosure of the date of their marriage to lead to their being identified. However, I consider that any declaration that is made should at least refer to the month of their marriage as otherwise it could potentially operate beyond the legal and factual circumstances of this case. Therefore, it will be necessary to modify the non-publication order accordingly.

Proposed Orders:

104. The Attorney General has largely been successful. At the hearing of the appeal, Senior Counsel for the Attorney General, Mr Herzfeld SC, confirmed that, in the event his client was successful, no order for costs was sought. [25] Accordingly, I propose that there be no order as to costs.

     25. Tr 06/12/2022 p 38.

105. Lastly, I note my appreciation for the care and skill exercised by the legal practitioners who prepared and presented the cases for the respective parties.

106. I propose the following orders:

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.

1. Grant the parties liberty to apply for further orders or declarations in respect of the declarations the subject of order 2.

2. The summons filed 31 August 2022 be otherwise dismissed.

3. 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.

4. To the extent necessary, grant leave to the Defendants to file a cross‑summons in the form that was filed on 13 December 2022.

5. The cross-summons be dismissed.

6. There be no order as to the costs of the cross-summons.

7. 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”.

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Endnotes

Amendments

06 March 2023 - Typographical amendment to headnote.

Decision last updated: 06 March 2023