Attorney General for New South Wales v FJG

The Supreme Court of New South Wales, constituted by Bell CJ, Ward P, and Beech-Jones JA, considered a dispute between the Attorney General for New South Wales and FJG concerning the power of the Registrar of Births, Deaths and Marriages to correct an entry in the Register of Marriages. FJG and FJH were married in New South Wales in 2009, with the Register entry reflecting FJG's details as "bridegroom." FJG, who was born in Victoria with her sex recorded as male, subsequently changed her name and acknowledged her sex as female under Victorian legislation. The couple sought to have the marriage entry corrected to reflect these changes, but the Registrar refused, leading to an appeal to the Civil and Administrative Tribunal (NCAT), which upheld the application. The Registrar appealed this decision, and NCAT subsequently referred questions of law to the Supreme Court.

The primary legal issues before the Court were whether section 45 of the *Births, Deaths and Marriages Registration Act 1995* (NSW) empowered the Registrar to correct the marriage entry to reflect FJG's subsequent change of name and acknowledgement of sex. This involved determining whether the power to "correct" extended beyond ensuring the Register entry matched the official certificate of marriage issued under the *Marriage Act 1961* (Cth). The Court also considered whether such a correction, if permitted, would render section 45 inoperative due to inconsistency with Commonwealth law under section 109 of the Constitution, and whether section 45 authorised a correction that would record a same-sex marriage when such marriages were unlawful at the time of the ceremony. Additionally, the Court examined whether NCAT had the jurisdiction to refer questions of law involving Commonwealth law or the Constitution, and whether the proceedings before NCAT involved the exercise of federal jurisdiction.

The Court reasoned that the power to correct the Register under section 45 of the NSW Act did not extend to making an entry inconsistent with the official certificate of marriage prepared under section 50 of the *Marriage Act 1961* (Cth), unless specifically certified as necessary under section 51(1) of the Commonwealth Act. It held that section 45 did not permit corrections that would amend particulars of a marriage to reflect subsequent changes in a party's name or sex if those particulars accorded with the official certificate of marriage and the legal status at the time of the marriage. The Court found no inconsistency with Commonwealth law under section 109 of the Constitution. Regarding NCAT's jurisdiction, the Court determined that the application to review the Registrar's decision did not involve a "matter" under Chapter III of the Constitution, and therefore did not involve the exercise of federal jurisdiction, although NCAT could refer questions of law in its merits review capacity.

The Court declared that section 45(1) of the *Births, Deaths and Marriages Registration Act 1995* (NSW) does not empower the Registrar to correct a marriage entry in a manner that would cause it to be inconsistent with the official certificate of marriage, or to amend particulars of a party's name or sex if those particulars accorded with the official certificate and the legal status at the time of the marriage, despite subsequent changes. The Court deemed it unnecessary to answer the questions referred by NCAT and dismissed the summons, while granting liberty to apply for further orders.