Norrie v NSW Registrar of Births, Deaths and Marriages

[2013] NSWCA 145

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145

Hearing dates:

12 November 2012

Decision date:

31 May 2013

Before:

Beazley ACJ at [1];
Sackville AJA at [208];
Preston CJ of LEC at [281]

Decision:

1. Appeal allowed;

 

2. Order 2 of the Appeal Panel be set aside;

 

3. In lieu thereof:

 

(a) Set aside the decision of the Tribunal dated 13 May 2011;

 

(b) Order the matter be remitted to the Tribunal for determination;

 (c) Order the respondent pay the appellant's costs of the appeal.

Catchwords:

INTERPRETATION - Births, Deaths and Marriages Registration Act 1995, s 32DC - whether the Registrar's power under s 32DC to register change of a person's "sex" is limited to registering a change from male to female or female to male.

 

ADMINISTRATIVE LAW - jurisdiction, Administrative Decisions Tribunal Act 1997, s 119(1) - whether question of law.

 

INTERPRETATION - extrinsic material - whether regard could be had to second reading speeches, dictionary definitions, academic material and other Acts.

  EVIDENCE - proof - judicial notice - whether regard could be had to extrinsic material in the interpretation of the statute.

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Births, Deaths and Marriages Registration Act 1995
Child Protection (Offenders Registration) Act 2000
Children's Services Regulation 2004
Combat Sports Regulation 2009
Conveyancing Act 1919
Court Security Act 2005
Courts and Crimes Legislation Amendment Act 2008
Crimes (Administration of Sentences) Regulation 2008
Crimes (Forensic Procedures) Act 2000
Crimes Act 1900
Crimes Act 1914 (Cth)
Defence Forces Retirement Benefits Act 1948 (Cth)
Evidence Act 1995
Fair Work Act 2009 (Cth)
Gender Reassignment Act 2000 (WA)
Higher Education Funding Act 1998 (Cth)
Industrial Relations Act 1996
International Criminal Court Act 2002 (Cth)
Interpretation Act 1987
Landlord and Tenant (Amendment) Act 1948
Law Enforcement (Powers and Responsibilities) Act 2002
Marriage Act 1961 (Cth)
Maternity Leave (Commonwealth Employees) Act 1973 (Cth)
Privacy and Personal Information Protection Act 1998
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Succession Act 2006
Superannuation Act 1922 (Cth)
Terrorism (Police Powers) Act 2002
Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996
Transport Employees Retirement Benefits Act 1967

Cases Cited:

AB v Western Australia [2011] HCA 42; 244 CLR 390
Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Attorney-General (Cth) v Kevin [2003] FamCA 94; 172 FLR 300
Australian Communist Party v Commonwealth [1951] HCA 5; 83 CLR 1
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; 86 ALJR 217
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Aytugrul v The Queen [2012] HCA 15; 86 ALJR 474
Baini v The Queen [2012] HCA 59; 87 ALJR 180
Brown v Repatriation Commission (1985) 7 FCR 302
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 87 ALJR 131
Cody v J H Nelson Pty Ltd [1947] HCA 17; 74 CLR 629
Coleman v DPP [2000] NSWSC 275; 49 NSWLR 371
Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280
Cooper Brooker (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297
Corbett v Corbett [1971] P 83
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113
Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394
Gerhardy v Brown [1985] HCA 11; 159 CLR 70
Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Holland v Jones [1917] HCA 26; 23 CLR 149
Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1
In the marriage of C and D (falsely called C) [1979] FLC 90-636; 35 FLR 340
Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564
IW v City of Perth [1997] HCA 30; 191 CLR 1
Kevin v Attorney-General (Cth) [2001] FamCA 1074; 165 FLR 404
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Maunsell v Olins [1975] AC 373
Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154; 145 FCR 523
Monis v The Queen [2013] HCA 4, 87 ALJR 340
Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929
Norrie v Registry of Births, Deaths and Marriages [2011] NSWADT 102
Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; 168 ALR 211
OV v Members of The Board of Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Gee [2003] HCA 12; 212 CLR 230
R v Harris & McGuiness (1988) 17 NSWLR 158
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Lavender [2005] HCA 37; 222 CLR 67
R v Peters (1886) 16 QBD 636
Re Secretary, Department of Social Security and "HH" [1991] AATA 94; 23 ALD 58
Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; 86 ALJR 494
Screen Australia v EME Productions No 1 [2012] FCAFC 19; 200 FCR 282
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29
Secretary, Department of Social Security v "SRA" [1993] FCA 573; 43 FCR 299
Thomas v Mowbray [2007] HCA 33; 233 CLR 307
Timbury v Coffee [1941] HCA 22; 66 CLR 277
Victims Compensation Fund v Brown [2003] HCA 54; 77 ALJR 1797
Victorian Women Lawyers' Association Inc v Federal Commissioner of Taxation [2008] FCA 983, 170 FCR 318
Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349
Western Australia v AH [2010] WASCA 172; 41 WAR 431
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460

Texts Cited:

Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985)
D C Pearce & R S Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths
D K Smith, "Transsexualism, Sex Reassignment Surgery, and the Law" (1971) 56 Cornell Law Review 963
J A Greenberg, Intersexuality and the Law: Why Sex Matters (2012) New York University Press
J D Heydon, "Developing the Common Law", in Gleeson, J T and Higgins, R C A (eds) Constituting Law, Legal Argument and Social Values (2011) Federation Press
J L Taitz, "Confronting Transsexualism, Sexual Identity and the Criminal Law" (1992) 60 Medico-Legal Journal 60
M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (2009) Lawbook Co
M D Kirby, "Medical Technology and New Frontiers of Family Law" (1986-87) 1 Australian Journal of Family Law 196
Macquarie Dictionary, 4th ed (2005)
R Wilson, "Life and Law: The Impact of Human Rights on Experimenting with Life", (1985) 17(3) Australian Journal of Forensic Sciences 61

Category:

Principal judgment

Parties:

Norrie (Appellant)
NSW Registrar of Births, Deaths and Marriages (Respondent)

Representation:

Counsel:
D M J Bennett QC; A J Abadee (Appellant)
K M Richardson (Respondent)

  Solicitors:
DLA Piper (Appellant)
Crown Solicitor's Office (Respondent)

File Number(s):

CA 2012/61881

 Decision under appeal 

Citation:

Norrie v Registrar of Births, Deaths and Marriages (GD) [2011] NSWADTAP 53

Date of Decision:

29 November 2011

Before:

Magistrate N Hennessy, Deputy President, K Fitzgerald, Judicial Member, J Schwager, Non-Judicial Member

File Number(s):

103077

HeadNOTE

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

On the review of a decision by the Registrar of Births, Death and Marriages not to register the appellant's (Norrie) sex as "non specific" under Pt 5A of the Births, Deaths and Marriages Registration Act 1995 (the Act), the Administrative Decisions Tribunal held that the Registrar's power under Pt 5A, s 32DC was confined to a registration of a person's sex as either "male" or "female". The Appeal Panel of the Administrative Decisions Tribunal affirmed the decision of the Tribunal.

On appeal to the Court of Appeal on a question of law pursuant to the Administrative Decisions Tribunal Act, s 119(1) Norrie contended that the Appeal Panel erred in law in its construction of s 32DC of the Act, in holding that:

(i)   the Registrar could only register a change of a person's "sex" from male to female or female to male;

(ii) the precondition in s 32DA that a person undergo sex affirmation surgery as defined in s 32A was only satisfied if the person underwent the surgical procedure for the purpose of being more definitively regarded as "male" or "female"; and

(iii)   as a matter of law, it was not open to the Registrar to register the appellant's sex as "non specific".

The grounds of appeal raised a number of ancillary questions relating to the proper approach to statutory construction.

Appeal allowed:

(1) By the Court: The Appeal Panel erred in law in construing s 32DC(1) of the Births, Deaths and Marriages Registration Act 1995 as limiting the Registrar's powers to registering a person's sex as only "male" or "female".

(2) By the Court: As a matter of construction of s 32DC, the word "sex" does not bear a binary meaning of "male" or "female": [200], [242], [287], [291].

Considered: In the marriage of C and D (falsely called C) [1979] FLC 90-636; 35 FLR 340; R v Harris & McGuiness (1988) 17 NSWLR 158; Secretary, Department of Social Security v "SRA" [1993] FCA 573; 43 FCR 299; Kevin v Attorney-General (Cth) [2001] FamCA 1074; 165 FLR 404; and AB v Western Australia [2011] HCA 42; 244 CLR 390: [129]-[164].

(3) Per Beazley ACJ (President of the Court of Appeal) and Preston CJ of LEC: The Registrar's power under s 32DC to register a change of a person's "sex" is not limited to registering a change from male to female or female to male [187]-[188], [200], [291], [291]-[303]. Per Sackville AJA: Section 32DC empowers the Registrar, at least in some circumstances, to register a change of sex of a person from male or female to a category that is neither male nor female: [257], [274].

(4) By the Court: The Appeal Panel erred in law in concluding that it was not open to the Registrar to register Norrie's sex as "non specific": [205]; [274], [281]-[282].

(5) By the Court: It will be a matter for the Tribunal, upon remittal, to determine if it is satisfied that a person's sex may be registered as "non specific": [205]; [275], [281]-[282], [306].

(6) By the Court: The proper construction of s 32DC, having regard to the meaning of "sex" as used in the statute, is a question of law: [62], [64], [210]; [304], [305]. Errors of law and errors of fact discussed at [52]-[63], [304].

Considered: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564; Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411. Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; 186 CLR 389; OV v Members of The Board of Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606 ; Screen Australia v EME Productions No 1 [2012] FCAFC 19; 200 FCR 282; Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1.

(7) Whether the precondition of sex affirmation surgery satisfied discussed: [195]-[199] per Beazley ACJ and [244] per Sackville AJA. The text and context of the word "sex" in the definition of "sex affirmation procedure" do not limit the sex affirmation procedure to only the male or female sexes: [298]-[302]: per Preston CJ of LEC.

(8) The extent to which the Court may have regard to extrinsic material, including second reading speeches, dictionary definitions and academic material, in the construction of a statute discussed: [69]-[70], [83], [84]-[85], [103]-[104] per Beazley ACJ, [227] per Sackville AJA, [281]-[282] per Preston CJ of LEC.

Considered: Interpretation Act 1987, s 34; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 87 ALJR 131; R v Peters (1886) 16 QBD 636; Dennis C Pearce & Robert S Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths. Coleman v DPP [2000] NSWSC 275; 49 NSWLR 371; Evidence Act 1995 (NSW) s 144; Gerhardy v Brown [1985] HCA 11; 159 CLR 70; Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394; Regina v Henry [1999] NSWCCA at 111; 46 NSWLR 346; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460; Thomas v Mowbray [2007] HCA 33; 233 CLR 307; Aytugrul v The Queen [2012] HCA 15; 86 ALJR 474 at [21]; Timbury v Coffee [1941] HCA 22; 66 CLR 277; Australian Communist Party v Commonwealth [1951] HCA 5; 83 CLR 1; Victorian Women Lawyers' Association Inc v Federal Commissioner of Taxation [2008] FCA 983; 170 FCR 318.

(9) The extent to which other legislation is relevant to the construction of a statutory provision discussed: [123], [195] per Beazley ACJ, [269]-[273] per Sackville AJA, [281]-[282] per Preston CJ of LEC.

Considered: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 87 ALJR 131; Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380

Judgment

INDEX
BEAZLEY ACJ
Introduction	1
Essential background matters	6
Legislative framework
Births, Deaths and Marriages Registration Act 1995	12
Part 5A	17
Anti-Discrimination Act 1977	29
Crimes (Forensic Procedures) Act 2000	31
History of the proceedings
Decision of the Tribunal	34
Decision of the Appeal Panel	41
The appeal to this Court	51
Meaning of question of law	52
Principles of statutory construction	65
Extrinsic material	76
The Second Reading Speech	77
Dictionary definitions	84
Academic material	91
Other legislation	115
The case law	129
In the marriage of C and D (falsely called C) [1979] FLC 90-636; 35 FLR 340	130
R v Harris & McGuiness (1988) 17 NSWLR 158	135
Secretary, Department of Social Security v "SRA" [1993] FCA 573; 43 FCR 299	138
Kevin v Attorney-General (Cth) [2001] FamCA 1074; 165 FLR 404	147
AB v Western Australia [2011] HCA 42; 244 CLR 390	153
The common law meaning of the word "sex"	165
Consideration	167
Conclusion	200
Orders	207
SACKVILLE AJA: (Further and concurring reasons)	208
Preliminary matters	210
The question of law	211
The legislation	216
Background
Information beyond the evidence	220
Intersexuality and transsexuality	228
Some case law	232
Construction of Part 5A of the Act
Textual analysis	237
AB v Western Australia	254
Additional considerations	257
Consequences of registration of a change of sex	268
Disposition of the appeal	274
Preston CJ of LEC (Further and concurring reasons)	281

1. BEAZLEY ACJ:

Introduction

2. This is an appeal brought by the appellant (Norrie) from the decision of the Appeal Panel of the Administrative Decisions Tribunal (the Tribunal): Norrie v Registrar of Births, Deaths and Marriages (GD) [2011] NSWADTAP 53.

3. The Appeal Panel affirmed the decision of the Tribunal, constituted by Judicial Member Montgomery, that the Registrar of Births, Deaths and Marriages (the Registrar) did not have power under the Births, Deaths and Marriages Registration Act 1995 (the Act), s 32DC to register a change of sex by a person from the sex recorded on the Register to 'non specific' or 'not specified': Norrie v Registry of Births, Deaths and Marriages [2011] NSWADT 102.

4. The present appeal is brought on a question of law pursuant to the Administrative Decisions Tribunal Act 1997, s 119(1). For the reasons which appear below, I consider that the appeal should be allowed and the matter remitted to the Tribunal for determination in accordance with law.

5. Finally, by way of introductory matters, I have adopted the name Norrie to identify the appellant and I have used the personal pronouns "she" and "her" when referring to Norrie.

Essential background matters

6. Norrie was born in Scotland as a male and in 1989 underwent sexual reassignment surgery involving castration and the creation of a semi-functioning vagina. In her evidence, Norrie said that she undertook the surgery to eliminate the ambiguity in relation to her sex. She identified that ambiguity to be that although she was born with male reproductive organs, she identified as having a non specific gender identity. Her application to the Registrar was for her sex to be registered as "non specific". Norrie contended that the surgery had not resolved her ambiguity in relation to her sex. In the Tribunal and the Appeal Panel, in addition to the term "non specific", various other terms were used, including "intersex", "androgynous", "neuter", "eunuch" and "third sex".

7. On 26 November 2009, Norrie made two applications to the Registrar: the first to register a change of name pursuant to s 27 of the Act; and the second to register a change of sex pursuant to s 32DA of the Act.

8. On 24 February 2010, the Registrar wrote to Norrie approving both applications. The letter attached new Change of Name and Recognised Details (Change of Sex) Certificates, which recorded Norrie's sex as "not specified". On 16 March 2010, the Registrar wrote to Norrie informing her that the Recognised Details (Change of Sex) Certificate was invalid and had been issued in error. The Registrar also informed her that the Change of Name Certificate remained valid. The reissued Certificate had, however, been altered so that the entry "not specified", in relation to "sex", had been replaced with the words "not stated".

9. On 26 March 2010, Norrie lodged an application for review of the Registrar's decision in the Tribunal. The application was dismissed and Norrie appealed to the Appeal Panel, which also dismissed the application.

10. The question of law raised by the appeal is whether, on the proper construction of the Act, the Registrar's power under s 32DC to alter the record of a person's sex on the Register is confined to an alteration from "male" to "female", or from "female" to "male", or whether there is power to change the sex recorded to some other specification.

11. Norrie submitted that the relevant statutory provisions do not confine registration to only "male" or "female" and in fact readily accommodate recognition of a sex which is neither male nor female. Norrie further submitted that the registration of "non specific" gender was compatible with the language and purpose of the legislation.

Legislative framework

Births, Deaths and Marriages Registration Act 1995

12. The Act is, relevantly, an Act to provide for the registration of births, deaths and marriages. The objects of the Act are provided for in s 3 and include:

"(c) the registration of changes of name and the recording of changes of sex"

13. Section 4 is the "Definition" provision of the Act. The term "sex" is not defined in the Act. The word "intersex" is not a term used in the Act, nor, for that matter, is there any provision for the identification of "sex" as "non specific" or "not specified".

14. The Registrar is required to maintain a register or registers of "registrable events": s 43(1). A "registrable event" is defined in s 4 to mean "a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage". Part 3 of the Act provides for the registration of births. Part 3 provides for the notification of births, both in respect of children born in New South Wales: s 12, and for children who are to become resident in the State: s 13. The Births, Deaths and Marriages Registration Regulation 2006 (repealed), cl 4 specified the information required to be given to the Registrar in respect of the birth of a child, including the sex of the child.

13. A birth is registered under the Act by the Registrar making an entry in the Register, including of the particulars required by the regulations: s 17(1). However, s 17(2) permits the Registrar to register a birth, notwithstanding that the particulars are incomplete. Counsel for the Registrar informed the Court that s 17(2) was sometimes used to register the birth of a child with a congenital intersex condition, with no sex being stated on the Register. This was to accommodate parents' wishes until some longer term decision was made in respect of the sex of the child.

14. Part 3, Div 4, s 20 of the Act is entitled "Alteration of details after birth registration" and provides for the addition of "registrable information" in a person's birth registration. "Registrable information" is defined to mean "information that must or may be included in the Register". However, s 20(3) provides that when used in the section, "registrable information does not include information relating to a person's change of sex".

Part 5A

17. An application for the registration of a change of sex is dealt with in Pt 5A of the Act. Part 5A, encompassing ss 32A-32J, entitled "Change of sex", applies where a person has undergone a "sex affirmation procedure". It is the relevant Part of the Act for the purposes of these proceedings.

18. Part 5A was inserted into the Act by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (repealed), which also amended the Anti-Discrimination Act 1977, to which reference is made below. At that time, it made provision for the registration of a change of sex for persons whose birth was registered in New South Wales. Persons not born in New South Wales did not come within these provisions. This was changed by amendments introduced into Pt 5A by the Courts and Crimes Legislation Amendment Act 2008. The purpose of the amendments was described by the Agreement in Principle Speech as providing a "means for transgender people who were born overseas to have their change of sex legally recognised in New South Wales".

19. The Courts and Crimes Legislation Amendment Act replaced the phrase "sexual reassignment surgery" in ss 32A, B and C with the phrase "sex affirmation procedure", which is defined in s 32A. Sections 32G and H were omitted by the amending Act whilst ss 32DA-32DD and s 32J were inserted into the Act.

20. The question in issue in these proceedings is the scope of the Registrar's powers under s 32DC to register a person's change of sex, in this case upon application made by a person under s 32DA. Section 32DC has to be read in the context of the other provisions of Pt 5A and in particular, the definition of "sex affirmation procedure" in s 32A. The relevant provisions of Pt 5A are as follows.

21. Section 32A defines "sex affirmation procedure" as follows:

"sex affirmation procedure means a surgical procedure involving the alteration of a person's reproductive organs carried out:

(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or

(b) to correct or eliminate ambiguities relating to the sex of the person."

22. Under the succeeding sections of Pt 5A, application can be made to alter or add the sex on the register of a person's birth. As Norrie was not born in New South Wales and her birth was not registered in this State, the relevant provision, which is the provision in issue in the proceedings, is s 32DA. Section 32DA provides:

"32DA Application to register change of sex

(1) A person who is 18 or above:

(a) who is an Australian citizen or permanent resident of Australia, and

(b) who lives, and has lived for at least one year, in New South Wales, and

(c) who has undergone a sex affirmation procedure, and

(d) who is not married, and

(e) whose birth is not registered under this Act or a corresponding law,

may apply to the Registrar, in a form approved by the Registrar, for the registration of the person's sex in the Register ..."

23. Norrie satisfies each of the provisions of s 32DA.

24. Section 32DB provides that the following supporting documentation is to accompany an application under s 32DA:

"32DB Documents to accompany application to register change of sex

An application under section 32DA must be accompanied by:

(a) statutory declarations by 2 doctors, or by 2 medical practitioners registered under the law of another State, verifying that the person the subject of the application has undergone a sex affirmation procedure, and

(b) such other documents and information as may be prescribed by the regulations."

25. The statutory declarations of Dr Kearley and Dr Schultheiss lodged in compliance with s 32DB both supported a change in the registration of Norrie's sex to "non specific".

26. The Registrar, in determining an application made under s 32DA, may make or refuse to make an alteration to the record of the person's sex pursuant to s 32DC. Section 32DC provides:

"32DC Decision to register change of sex

(1) The Registrar is to determine an application under section 32DA by registering the person's change of sex or refusing to register the person's change of sex.

(2) Before registering a person's change of sex, the Registrar may require the applicant to provide such particulars relating to the change of sex as may be prescribed by the regulations.

(3) A registration of a person's change of sex must not be made if the person is married."

27. The effect of the registration of a change of sex on the Register is provided for in ss 32I and 32J of the Act, which provide:

"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.

...

32J Effect of registration of change of sex and interstate recognised details certificates

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

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

(3) An interstate recognised details certificate is a certificate issued under the law of another State that is prescribed by the regulations for the purposes of this section."

28. Whilst Norrie's application for the alteration of the Register was made under the Act and it is the construction of that Act that is in issue, Norrie also referred to the provisions of the Anti-Discrimination Act and the Crimes (Forensic Procedures) Act 2000. The terms said to be relevant to the construction of s 32DA are set out below.

Anti-Discrimination Act 1977

29. As noted at [18] above, the Anti-Discrimination Act was also amended by the Transgender (Anti-Discrimination and Other Acts Amendment) Act. The Anti-Discrimination Act was amended so as to insert definitions of the terms "recognised transgender person" and "discrimination on transgender grounds". Relevantly, s 4 defines "recognised transgender person" to mean:

"... a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction."

30. Part 3A of the Anti-Discrimination Act deals with discrimination on transgender grounds. Section 38A provides the following definition of a transgender person:

"38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person." (emphasis added)

Crimes (Forensic Procedures) Act 2000

31. The Crimes (Forensic Procedures) Act, s 3(1) defines a "recognised transgender person" as:

"... a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction."

32. Section 3(6) also defines a transgender person for the purpose of the Crimes (Forensic Procedures) Act in the same terms as the Anti-Discrimination Act, s 38A.

33. It can be noted at this point that although the Anti-Discrimination Act, s 38A and the Crimes (Forensic Procedures) Act, s 36 refer to a person of "indeterminate sex", the term is not defined in either Act.

History of the proceedings

Decision of the Tribunal

34. On 26 March 2010, Norrie, pursuant to the Act, s 56, lodged an application for review of the Registrar's decision to the Tribunal. Pursuant to the Administrative Decisions Tribunal Act, s 63, the Tribunal's power on the review was to decide what the correct and preferable decision was, having regard to the material before it, including any factual material and any applicable written or unwritten law.

35. The Tribunal, at [1], stated that there were two related decisions of the Registrar before it for review:

"(a) the decision that a 'recognised details certificate', previously issued to the Applicant on 11 February 2010 and specifying the Applicant's sex as 'Not specified', was invalid and was issued in error; and

(b) the decision that a 'change of name certificate', previously issued to the Applicant on 11 February 2010 and specifying the Applicant's sex as 'Not specified', should be replaced by a new change of name certificate dated 16 March 2010 which specifies the Applicant's sex as 'Not Stated'."

36. The Tribunal stated, at [2], that in order to determine whether those decisions were the correct and preferable ones, it was necessary to consider the preliminary issue whether the Registrar had power under s 32DC of the Act to register a change of sex of a person to "non specific" or "not specified". This, in the Tribunal's consideration, turned upon the preliminary issue whether the word "sex" used in the legislation means "male" or "female" or had some more expansive meaning. The Tribunal concluded that the Registrar only had power to register a person's sex as "male" or "female": see the Tribunal's reasons at [99].

37. During the course of its reasons, the Tribunal made a number of observations as to the underlying factual matters relating to the application. These matters were summarised by the Appeal Panel, at [9], in its determination of Norrie's appeal from the Tribunal's decision and it is convenient to adopt the Appeal Panel's summary of those matters:

"(1) Norrie's application for a change of sex was accompanied by the necessary supporting documentation;

(2) on the 'Statutory Declaration to Register a Change of Sex' dated 26 November 2009, Norrie records her sex at birth as 'male' and applies to register a change of sex as 'Non Specific'. This statutory declaration is in the form approved by the Registrar under section 32DA of the Act;

(3) statutory declarations sworn by Drs Kearley and Schultheiss in support of Norrie's application to register a change of sex both support the registration of a change of sex showing the sex to be 'Non Specific' and declare that Norrie has undergone a sex affirmation procedure. These statutory declarations are in the form approved by the Registrar under section 32DB of the Act;

(4) the Respondent does not dispute that the Applicant has undergone a surgical procedure and there is medical evidence before the Tribunal that establishes that the Applicant would meet the legislative requirements to register a change of sex from male to female; and

(5) the Applicant does not identify as either male or female but as 'non specific'." (emphasis added)

38. The Tribunal made no finding as whether Norrie had undergone a sex affirmation procedure within the meaning of s 32A(a) or s 32A(b).

39. The Tribunal determined, at [100], that the decisions made by the Registrar "were the correct and preferable ones and they should be affirmed" and ordered that "[t]he decisions under review are affirmed". The Tribunal considered that the law in New South Wales was predicated upon the assumption that persons could be classified into two distinct and identifiable sexes, namely, that of male and female. The Tribunal concluded that the construction of the Act urged by Norrie was not consistent with the numerous legislative provisions that were premised upon the binary notion of sex as meaning "male" and "female": see at [87] and [94]. The Tribunal also considered that the construction for which Norrie contended was not consonant with the common law.

40. The Tribunal acknowledged, at [96], that this view may be out of step with current social, medical and scientific views. Nonetheless, at [97], the Tribunal considered that it was improbable that Parliament would have intended that the amendments to the Act effected by Pt 5A to have the outcome for which Norrie contended.

Decision of the Appeal Panel

41. Norrie appealed to the Appeal Panel on a question of law pursuant to the Administrative Decisions Tribunal Act, s 113(2)(a). The questions of law posed for the Appeal Panel's determination were:

"(1) Did the Tribunal err by following an incorrect procedure that is, by failing to determine as a question of fact the appellant's subjective purpose in undergoing the surgical procedure defined in the Act as a 'sex affirmation procedure'?

(2) Did the Tribunal misconstrue s 32DC when it found that the powers of the Registrar when registering a person's change of sex under that provision are limited to recording 'male' or 'female' in the sex field?" (at [18])

42. During the course of the appeal hearing, Norrie also applied for leave to appeal on the merits of the application: see the Administrative Decisions Tribunal Act, s 113(2)(b). This application was rejected because it was made without notice to the Registrar and because the Tribunal had only determined the preliminary question of the Registrar's powers and had not reached the stage of making a decision as to the merits of the application: see Appeal Panel's reasons at [38]. However, it should be noted that the effect of the Tribunal's decision on the preliminary question was to finally determine Norrie's application. That is to say, as the Tribunal determined that Pt 5A only permitted a person's sex to be registered as male or female, Norrie's application could not succeed even if considered on the merits.

43. In her argument on the questions of law, Norrie contended to the Appeal Panel that her circumstances came within the second limb of the definition of "sex affirmation procedure" in s 32A(b) and that although she had undergone surgery for the purpose specified in para (b), the surgery had not been successful in the sense that it had not resolved her ambiguity in relation to her sex. The Appeal Panel, at [20], rejected this argument on the basis that the Tribunal's failure to determine Norrie's subjective purpose in undertaking the sex affirmation procedure was not an error of law. The Appeal Panel stated:

"The Tribunal asked itself the right question, that is, assuming the pre-requisites to exercising the power under s 32DC had been met, whether the scope of that power included registering a person's sex as 'not specified'. The Tribunal was determining a preliminary issue, namely the scope of the power in s 32DC. Having decided that the scope of that power was limited to registering a change of sex from male to female or from female to male, it followed that the Registrar had made the correct, indeed the only available, decision." (emphasis added)

44. The Appeal Panel next considered the meaning of "sex affirmation procedure" in s 32A, noting that that provision was a definition section and that definitions were not to be treated as substantive provisions: see Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635. The Appeal Panel considered that that principle, and the fact that the Tribunal was considering a preliminary question of law, meant that Norrie's argument as to the meaning of "sex" in s 32A was superfluous. The Appeal Panel, nonetheless, addressed that question "for completeness". For the reasons I give below, I do not consider that the meaning of "sex" in s 32A is superfluous. However, at this point, I will do no more than refer to the Appeal Panel's findings.

45. The Appeal Panel rejected Norrie's submission that whilst "sex" in s 32A(a) meant "male" or "female", s 32A(b) was drafted so that the word "sex" extended to a sexual identity which could be neither. The Appeal Panel stated, at [22], that such an interpretation was:

"... contrary to a basic tenet of statutory construction - that where the legislature uses the word ('sex'), especially in a single provision, it should be given the same meaning: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J."

46. The Appeal Panel stated, at [23], that the use of the word "opposite" in s 32A(a) suggested that gender was binary, that is, either male or female. In the Appeal Panel's reasons, s 32A(b), read in the context of s 32A(a), meant that the surgery was carried out to alter the person's reproductive organs so that the person may be considered more definitively as either male or female.

47. The Appeal Panel next considered, at [24], the limits of the Registrar's powers under s 32DC. In doing so, it observed that the determination of the ordinary meaning of the word "sex" was a question of fact which was for the Tribunal to determine. However, the scope of the Registrar's power in s 32DC, which was to be determined by construing the words of the section context, was a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137; Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395; Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at 1935.

48. Norrie contended before the Appeal Panel that the Tribunal had misconstrued the meaning of the words in a number of ways. The central arguments were that once an applicant had satisfied the preconditions specified in s 32DA, the Registrar was obliged to register the change of sex requested, and that the Tribunal had erred by reading into s 32DA, after "change of sex", the words "from male to female" or "from female to male".

49. The Appeal Panel rejected both arguments. As to the first, the Appeal Panel, at [28]-[29], held that the question in issue was not whether the pre-conditions had been met but what was the scope of the Registrar's powers under s 32DC. As to the second of these arguments, the Appeal Panel held, at [35], that the Tribunal had not read words into s 32DC but had construed the words "change of sex" in accordance with their ordinary meaning, namely, a change from male to female or vice versa.

50. The other arguments upon which Norrie relied were also rejected by the Appeal Panel.

The appeal to this Court

51. Norrie submitted to this Court that on the findings of fact upon which the matter proceeded in the Tribunal and before the Appeal Panel she did not identify as either male or female. Norrie argued that that left her in the position where the best description of her sexual status was "non specific". Against that background, Norrie contended in her notice of appeal that the Appeal Panel erred:

(1) In its construction of s 32DC of the Act, by holding that the Registrar could only register a change of a person's "sex" from male to female or from female to male, but not from male or female to a designation that is neither specifically male nor female;

(2) In its construction of s 32DA of the Act, by holding the section could only be satisfied if an applicant had undergone a surgical procedure for the purpose of being more definitively regarded as either "male" or "female" but not for the purpose of correcting the ambiguity between the physical characteristics and the individual's sex identity; and

(3) In holding that as a matter of law, it was not open to the Registrar to register the appellant's sex as "non specific".

Meaning of question of law

52. As I have earlier stated, the jurisdiction of the Court on this appeal is limited to questions of law: Administrative Decisions Tribunal Act, s 119(1). As the Federal Court stated in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at 287:

"Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raises issues which may be or involve questions of fact or law or mixed fact and law."

53. The Court in Pozzolanic nonetheless suggested, at 287, that there are five general propositions as to whether a question of law or fact is at issue:

"1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

3. The meaning of a technical legal term is a question of law.

4. The effect or construction of a term whose meaning or interpretation is established is a question of law.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." (citations omitted)

54. The second and third propositions are supported by the statement of Jordan CJ in Australian Gas Light Co v Valuer-General at 137:

"The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law."

55. In Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; 186 CLR 389, the High Court observed, at 396, in relation to the Pozzolanic propositions:

"Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear."

56. In particular, the High Court questioned the distinction drawn in Pozzolanic between the second and fourth propositions:

"With respect this distinction seems artificial, if not illusory. The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown [1996] 1 AC 543 at 561 [1996] 1 AC 543 at 561, a recent House of Lords decision, Lord Hoffmann said:

"The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole."

If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law."

57. It was unnecessary for the High Court in Agfa-Gevaert to resolve that issue. It was sufficient, for the purposes of that case, in order for a reviewable question of law to arise for determination, "for a phrase to be identified as being used in a sense different from that which it has in ordinary speech": see at 397.

58. In Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564. Lindgren J (Branson and Mansfield JJ agreeing) stated, at [54]:

"In the present case, the facts have been found and what is left is a choice as to which of two suggested meanings of the words of the statute is to be applied to those facts. That choice is not a matter of discretion; the statute truly bears only one of the two suggested meanings; the choice made will be correct or incorrect in law ... These considerations show that a question of law is involved."

His Honour then referred to the obiter remarks of the High Court in Agfa-Gevaert set out above at [56].

59. In Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411, Gleeson CJ, Gaudron, Gummow and Hayne JJ, citing Agfa-Gevaert, stated, at [36], that "[t]he notions of meaning and construction are interdependent" and that the meaning of a particular word in the legislation "must be affected by the other words and syntax of the whole of [the provision]." See also Kirby J at [138].

60. In OV v Members of The Board of Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606, the New South Wales Court of Appeal applied Agfa-Gevaert: see [2]-[8] and [27]-[31]. Allsop P (as his Honour then was) commented that the High Court's decision in Agfa-Gevaert:

"... should not be taken as denying the conceptual distinction between the ascertainment of semantic meaning (interpretation) and determining legal effect or legal content (construction) of a legal text. The processes can be seen to be distinct in terms of legal theory and function. What the High Court stated was that their inter-relationship in the process of ascription of meaning to a legal text meant that for the purpose, at least, of distinguishing between questions of law and fact, the distinction was illusory."

61. In Screen Australia v EME Productions No 1 [2012] FCAFC 19; 200 FCR 282 the Full Federal Court also applied the High Court's statement in Agfa-Gevaert as to the interdependency of meaning and construction, observing at [41], that the "clearly considered dicta" of the High Court had been followed in OV v Members of The Board of Wesley Mission Council and cited with approval in Aktiebolaget Hassle v Alphapharm: see [39]-[42]. The Court concluded, at [42]:

"Where there is uncertainty as to the meaning of a statutory word or expression, as here, the process of construction raises a question of law.

62. The High Court's obiter remarks in Agfa-Gevaert and their approval in Aktiebolaget Hassle v Alphapharm indicates that it cannot be said that the ordinary meaning of a word or its non-technical meaning is a question of fact, at least as a stand alone proposition. Rather, when the Court is engaged in a task of statutory construction, it is required to have regard to the language used by Parliament and the context in which it is used. That task involves a question of law.

63. Further, as was explained, correctly in my opinion, by Mark Aronson, Bruce Dyer and Mathew Groves, Judicial Review of Administrative Action (2009) Lawbook Co at 213:

"Misunderstanding the governing law has always been an error of law in its own right, and that should include misunderstanding the legal meaning of a statutory term, ordinary or special. Misunderstanding is the error, and that can occur in relation to ordinary as well as technical terms. In other words, the proper meaning of any legal term should itself be a question of law ... If it is error of law to stray beyond the boundaries of an ordinary meaning, then fixing the ordinary meaning must surely itself be a question of law."

64. The central issue on the appeal relates to the scope of the power of the Registrar to make an entry as to a person's sex in the Register. That question raises the proper construction of s 32DC having regard to the meaning of "sex" as used in Pt 5A, and on the authorities and commentary discussed, is a question of law.

Principles of statutory construction

65. The primary task of the Court in determining the proper construction of a statute is to determine the meaning of the provision "by reference to the language of the instrument viewed as a whole": see Cooper Brooker (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 320; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]. In Project Blue Sky the plurality stated, at [78], "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have". The context and purpose of the legislation are involved in this task.

66. In Baini v The Queen [2012] HCA 59; 87 ALJR 180 Gageler J observed, at [42], that in the task of statutory construction, context is to be considered at the outset and not only at some later stage if it is considered that ambiguity might arise. His Honour added the "modern approach to statutory interpretation" used "context":

"... in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy."

See also Monis v The Queen [2013] HCA 4, 87 ALJR 340 at [309].

67. In determining the mischief to which the statute was directed the Court may have regard to other judicial decisions that may indicate the relevant mischief: see AB v Western Australia [2011] HCA 42; 244 CLR 390 at [10]. However, the authorities stress that the matter remains one of statutory construction.

68. The Interpretation Act 1987, s 33 provides that a statute is to be given a construction that promotes the purpose or object underlying the Act in preference to a construction that would not promote that purpose or object. The primary source for determining purpose, is again, to be discerned from the express terms of the legislation. As Kirby J observed in R v Lavender [2005] HCA 37; 222 CLR 67 at [94], the Court's duty is to ascertain and give effect to the legislative purpose as expressed in the language of the provision: see also Australian Education Union v Department of Education and Children's Services [2012] HCA 3; 86 ALJR 217 at [26]; Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; 86 ALJR 494 at [22]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47].

69. However, in determining the legislative purpose, the Court is not confined to the terms of the legislation only. Section 34(1) provides that consideration may be given to extrinsic material that may be capable of assisting in ascertaining the meaning of the provision but only for the following purposes:

"(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable."

70. Recourse to such material under s 34(1)(b)(ii) is, however, permitted only where the purpose cannot be determined from the words of the statute or inference from its text and structure: see Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 87 ALJR 131, where French CJ and Hayne J stated, at [25]:

"Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials [emphasis added]. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect ... to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' ..." (original emphasis; citations omitted)

71. In the same case, Keifel J, at [89], referred to the legitimacy of resorting to extrinsic materials. Her Honour noted, however, that it was important:

"... to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute."

72. Her Honour warned that:

"An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit."

73. The requirement that a statutory provision must be construed having regard to its context and legislative purpose, is reinforced by the canon of construction that remedial and beneficial legislation is to be given a liberal construction, rather than a "literal or technical" one that is "unreasonable or unnatural": IW v City of Perth at 12. See also AB v Western Australia at [24], where the Court stated:

"It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a 'fair, large and liberal' interpretation." (citations omitted)

74. In making those remarks, the Court in AB referred to the similar approach taken in respect of legislation involving human rights. See Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 where Mason CJ and Gaudron J stated, at 359:

"... the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose."

75. In the present case, as I indicate below, the Registrar accepted that Pt 5A is beneficial legislation and that the principles stated in IW v City of Perth apply.

Extrinsic material

76. Both parties relied extensively upon extrinsic material in aid of the respective constructions of the Registrar's power for which they contended. That material was: (i) the second reading speech to the amending legislation; (ii) dictionary definitions; (iii) academic material said to be authoritative on the question of gender identity; (iv) other State and Federal legislation; (v) and case law dealing with legislation where the word 'sex' was used and was the subject matter of the decision.

The Second Reading Speech

77. The Second Reading Speech is specifically designated as material to which regard may be had for the purposes of subs (1): see Interpretation Act, s 34(2)(f). However the Speech may only be used in the manner prescribed in s 34(1)(a) and s 34(1)(b) of that Act for the purpose stated by the High Court in the Certain Lloyd's Underwriters case.

78. On its express terms, Part 5A permits the Registrar to register a person's sex that corresponds with that person's sexual or gender identity at the time of seeking the registration. The registration is subject to the pre-condition of having undergone sex affirmation surgery. The Act prescribes the manner in which that precondition is to be established, namely, by a statutory declaration by two medical practitioners that the person has undergone the surgery. However, in empowering the Registrar to register a person's sex, Pt 5A does not specify that a person's "sex" may only be, or is to be, registered as "male" or "female". Nor does it state that there are other kinds of sexual identity that may be registered. Accordingly, it is legitimate in this case to have regard to the Second Reading Speech, as it is not apparent from the legislation itself whether the word "sex" is used in the traditional sense of "male" and "female" or whether it has a wider meaning.

79. In the Second Reading Speech, the Minister stated that the amendments to the Act were to provide for the legal recognition of post-operative transgender persons and, in particular, to:

"... enable a person who was born in this State and has undergone sexual reassignment surgery to apply for a new birth certificate showing their new sex."

80. To this extent, the Second Reading Speech stated no more than what was expressly provided for in the Act. However, the Registrar submitted that both the title of the amending Bill: viz, the Transgender (Anti-Discrimination and Other Acts Amendment) Bill and the second reading speech supported his submission that the word "sex" was used in a binary sense in the legislation. This was because a transgender person is a person who has the physiological characteristics of one sex and the psychological characteristics of the other sex.

81. This submission built upon the Registrar's primary submission that the word "sex" was a word of ordinary English usage and this was reflected in the following portion of the Second Reading Speech, to which regard could be had:

"... The Government believes it is appropriate to introduce this [bill because] transgender status is a question of gender identity, and not sexual preference ...

It is ... proposed that 'transgender' be the term used to identify the basis of a complaint under the [Anti-Discrimination] Act. This includes a person who is born as a member of one sex but who has lived, or lives, or seeks to live as a member of the other sex ...

The term 'transgender' in the [Anti-Discrimination] legislation has therefore been used to refer to all transgender persons, regardless of whether they have undergone surgical intervention. ... This definition is not intended to cover persons who cross-dress or who have adopted the characteristics of the other sex, say, for example, a male person who from time to time wears makeup, or high heels, who has not chosen to live as a member of the other sex." (emphases added)

82. There is an immediate difficulty with the Registrar's reliance on these passages in that that part of the Second Reading Speech was directed to the amendments to the Anti-Discrimination Act and not to the Act. The provisions of the former Act use different language from that used in Pt 5A. In addition, reliance on the emphasised portions of the Second Reading Speech would have the vice of using the language of the second reading speech: viz, "member of the one sex"; "and member of the other sex" in substitution for the language of the statutory provision under consideration. Those expressions are not used in Pt 5A. To use the Second Reading Speech in that way would offend the principles stated in the Certain Lloyd's Underwriters case.

83. However, the Second Reading Speech provides some assistance in understanding the underlying policy to the introduction of Pt 5A in that it demonstrates that the Parliament recognised that there were persons who may not fit within what I will describe as a traditional sex or gender identification of "male" or "female". Parliament thus had seen the need to provide, in two significant ways, for such persons, first by making provision for the registration of the person's sex and secondly by enacting anti-discrimination legislation dealing with discrimination in relation to those persons.

Dictionary definitions

84. Where a word is not defined in legislation, recourse to dictionary definitions is an accepted technique in the task of statutory construction. As Lord Coleridge observed in R v Peters (1886) 16 QBD 636 at 641:

"... dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in the ordinary sense, and we are therefore sent for instruction to these books."

See also Coleman v DPP [2000] NSWSC 275; 49 NSWLR 371 at 373-5.

85. However, as Dennis C Pearce & Robert S Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Butterworths noted, at [3.30], the use of a dictionary to enable the ordinary meaning of a word to be identified must not result in the words used in the statute being abandoned in favour of some other synonymous word or expression. Nor can the meaning of a word as a matter of ordinary English usage override the necessity to construe the statutory language in context.

86. In Secretary, Department of Social Security v "SRA" [1993] FCA 573; 43 FCR 299, Black CJ referred to the dictionary definitions of the words "female", "woman" and "sex" to ascertain their meaning as a matter of ordinary English usage. As at 1993, being the date of the Court's determination in SRA, the Oxford English Dictionary provided the following relevant meanings for the word "sex":

"1. a. Either of the two divisions of organic beings distinguished as male and female respectively; the males or the females (of a species, etc, esp of the human race) viewed collectively.

...

3. a. The distinction between male and female in general. In recent use often with more explicit notion: The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these; the class of phenomena with which these differences are concerned."

87. The Macquarie Dictionary definitions of "sex" included:

"1. The character of being either male or female: persons of different sexes.

2. The sum of the anatomical and physiological differences with reference to which the male and the female are distinguished, or the phenomena depending on these differences."

88. Whilst the definition of "sex" contained in the most recent edition of the Macquarie Online Dictionary has not changed, the following definition is to be found in the current version of the Oxford English Dictionary:

"1 a. Either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions; (hence) the members of these categories viewed as a group; the males or females of a particular species, esp. the human race, considered collectively.

b. In extended use, esp. as the third sex. A (notional) third division of humanity regarded as analogous to, or as falling between, the male and female sexes; spec. that consisting of: (a) eunuchs or transsexuals ..."

89. The extended usage in (b) is noted to date from 1821 in the works of Lord Byron: see Don Juan, Canto V xxvi, 148 and Canto IV lxxxvi, 114.

90. The difference in the current definition in the Oxford English Dictionary from that in the 1993 version referred to in SRA is twofold. First, the definition in 1(a) varies from that given in 1993, in that there is a reference to "the two main categories" as compared to the earlier reference to "the two divisions". Secondly, an entirely new definition has been inserted in 1(b), giving recognition to a usage of the word "sex" that encompasses sexual identity that is not confined to "male" or "female".

Academic material

91. Norrie also urged upon the Court a range of academic and other material which dealt with the question of sexual identity. In particular, the following publications were provided to the Court for its consideration: Julie A Greenberg, Intersexuality and the Law: Why Sex Matters (2012) New York University Press; Justice Michael Kirby CMG, "Medical Technology and New Frontiers of Family Law" (1986-87) 1 Australian Journal of Family Law 196; and an extract entitled "Intersex" from Wikipedia.

92. A question arose during the course of the argument as to the authoritative status of this material. Senior Counsel for Norrie indicated that any challenge to the status of the material was a matter for the Registrar to raise. I do not consider that the matter is so simple. The Court must be satisfied that there is a basis upon which it is entitled to receive and rely upon such material.

93. The circumstances in which the Court is entitled to use extraneous material was considered in Thomas v Mowbray [2007] HCA 33; 233 CLR 307. That case concerned the validity of anti-terrorism legislation whereby interim control orders could be made in relation to a person: see Criminal Code (Cth), s 104.4. In the course of considering that question, Heydon J identified five different groups of facts that may have to established in particular litigation: see at [614]. These groups were: (i) facts in issue or relevant to facts in issue; (ii) facts going to the constitutional validity of statutes; (iii) facts going to the construction of non-constitutional statutes; (iv) facts going to the construction of constitutional statutes; and (v) facts that relate to the content and development of the common law. For present purposes, it is only necessary to consider the first and third group of his Honour's classification.

94. Facts in the first group are required to be proved in accordance with the ordinary rules of evidence, including the rules relating to judicial notice. In so far as facts in the first group were to be established as a matter of judicial notice, his Honour observed, at [619], that the common law doctrine of judicial notice was narrow and itself involved two categories. The first was where judicial notice was taken of facts, without inquiry. Such facts had to be "open and notorious". As to the second, where judicial notice was taken of facts after inquiry, the inquiry was to be based on the "common knowledge of educated [persons]" as revealed in "accepted writings", "standard works" and "serious studies and inquiries": Australian Communist Party v Commonwealth [1951] HCA 5; 83 CLR 1 at 196. See also Holland v Jones [1917] HCA 26; 23 CLR 149 at 153, where judicial notice was described in similar terms. Reference to a medical text is an example of an inquiry that may be made for the purposes of the second type of judicial notice: see Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283-284. Heydon J concluded, at [619], that "matters judicially noticed at common law must be indisputable".

95. Heydon J observed, at [635], that there was authority for the proposition that facts within the third group could be relied on by the Court, although not proved under the rules for the admissibility of evidence: see Gerhardy v Brown [1985] HCA 11; 159 CLR 70 at 141-142 per Brennan J; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 at 479 per McHugh J. Heydon J noted that there was authority to the same effect in respect of facts within the fourth and fifth group.

96. The issue in Gerhardy v Brown was whether a State Land Rights Act was inconsistent with the Racial Discrimination Act 1975 (Cth). Brennan J, at 141, observed that ordinarily, questions of law did not involve factual considerations, or at least the consideration of facts that were not notorious and beyond dispute. His Honour observed, however, that the case before the Court was an exception. As his Honour explained, it was necessary for the Court to understand the circumstances in which the State Act was intended to operate. The facts with which his Honour was dealing were facts within Heydon J's third category.

97. In that context, Brennan J said, at 141-142:

"There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants."

98. Heydon J's five categories might also be characterised as adjudicative facts (the first category) and legislative facts (the other categories). In his extra curial writing, Heydon J has observed that legislative facts could relevantly be sourced from legislative facts accepted in other cases and from standard works of reference or other writings of experts on the physical, medical, social and other sciences: Justice John Dyson Heydon, "Developing the Common Law", in Gleeson, J T and Higgins, R C A (eds) Constituting Law, Legal Argument and Social Values (2011) Federation Press, at 96.

99. In Woods v Multi-Sport Holdings McHugh J identified legislative facts as facts that help the court to determine the content of law and policy. His Honour noted that such facts "generally relate to the law making function of the judicial process". His Honour then dealt with the circumstances in which the court could have recourse, including through the judges' own research, to extraneous material in determining the validity and scope of legal rules and principles. McHugh J said, at [65]:

"As Brennan J pointed out in Gerhardy v Brown, a court that in considering the validity or scope of a law 'is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties'. Whether the law is a Constitution, a legislative enactment or a principle or rule of the common law or equity, the 'validity and scope of a law cannot be made to depend on the course of private litigation' ...as the learned author of Cross on Evidence has pointed out, '[i]t is clear from the cases that judges have felt themselves relatively free to apply their own views and to make their own enquiries of social ethics, psychology, politics and history where relevant without requiring evidence or other proof'." (citations omitted)

100. In Woods v Multi-Sport Holdings, Callinan J, was more cautious, stating, at [162]-[163], that the Court should be cautious in informing itself of legislative facts and should only do so when necessary and only if satisfied that the material to which it was having regard was "reliable and necessary". Notwithstanding this caution, the law has long accepted that such facts could be determined by the Court after inquiry from sources other than facts proved in accordance with the rules of evidence. A question arises, however, whether proof of such facts is now governed solely by the Evidence Act 1995, s 144.

101. Section 144 provides:

"144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court ... is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."

102. In Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394, Gleeson CJ, McHugh, Hayne and Heydon JJ stated, at [17]:

"In New South Wales there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW), s 144."

This statement was approved by French CJ, Hayne, Crennan and Bell JJ in Aytugrul v The Queen [2012] HCA 15; 86 ALJR 474 at [21]; Justice John Dyson Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths at [3160]. See also R v Henry [1999] NSWCCA 111; 46 NSWLR 346 per Spigelman CJ at [66].

103. Both as a matter of construction of s 144 and having regard to the comments of the High Court, it is likely that the better view is that facts that are acted upon by the Court, other than those that are in issue between the parties, are governed by s 144. Even if this is not correct and proof of legislative facts fall outside s 144(1)(b), the requirements for proof at common law and under the section are essentially the same. In either case, the Court would be entitled to have regard to authoritative texts and legislative facts accepted in other cases.

104. There is one possible difference in the test stated in s 144 and the common law. Section 144 requires that the knowledge of which judicial notice may be taken, is "not reasonably open to question". This may not be as stringent as the common law test if, as Heydon J stated, facts judicially noticed at common law must be "indisputable". But on either test, the Court could, in a case like this, act upon knowledge or take notice of facts, that were the subject of authoritative texts, even in developing areas of science, medicine or technology. For example, it is unlikely that science has heard the last word in gene technology. That would not, in my opinion, prevent a court from having regard to material relating to that topic so as to understand the legislative purpose of enacting legislation relating to that subject matter, provided it was accepted that the material was the work of a respected expert in the field. It is likely that studies relating to gender or sexual identity fall into the same category, particularly, but not only, insofar as such studies examine the psychological aspects of sexual identification.

105. That brings me to the material to which the Court was referred and, in particular, to Professor Greenberg's material. The Court was not told who Professor Greenberg was, or her area of expertise. The extract of the publication "Intersexuality and the Law, Why Sex Matters" provided to the Court contained no information about her. Presumably, a Google search may have revealed what the Court needed to know to determine whether it was an authoritative work.

106. As it turns out, my concern as to this matter was allayed by the extensive reference to Professor Greenberg's work by Chisholm J in Kevin v Attorney-General (Cth) [2001] FamCA 1074; 165 FLR 404 where it was accepted as authoritative. There was another problem with Norrie's reliance on Professor Greenberg's work in that the Court was provided with various pages from different chapters which it was said should be read. Below is a reference to what would seem to be relevant from the material provided.

107. Professor Greenberg observed in her introduction that the topic of intersexuality has moved from being a relatively obscure medical topic to being the focus of examination across a range of academic disciplines, including psychology, history, anthropology and medical ethics. She also observed that the meaning or ambit of the term "intersex" is not necessarily settled. She also points out that an intersex condition is not necessarily apparent at birth. She suggests, however, that "most experts agree" that 1 to 2 per cent of the population are born with sexual features that vary from the medically defined normal for "male" and "female".

108. Professor Greenberg also pointed out that the term "transgender" and "transsexual" are not the subject of a uniform or settled usage. As she explained, the word "transgender" is often used as an umbrella term to mean persons who transgress gender boundaries. When used in that sense, it would include transsexuals, transvestites or others whose behaviour fails to conform to gender norms. She also made reference to studies of intersex children which indicated that gender identity does not necessarily develop in concert with sexual anatomy.

109. For the purposes of her work, Professor Greenberg defined "intersex", at 1:

"... in its broadest sense to include anyone with a congenital condition whose sex chromosomes, gonads, or internal or external sexual anatomy do not fit clearly into the binary male/female norm."

110. Professor Greenberg added that "[s]ome intersex conditions involve an inconsistency between a person's internal and external sexual features". She also noted, at 11, that medical experts now recognise "at least eight attributes contribute to a person's sex", including chromosomal sex, physiological attributes, assigned sex and gender of rearing, as well as gender identity.

111. As previously mentioned, Norrie also referred to an article by Justice Michael Kirby, "Medical Technology and New Frontiers of Family Law". In that article, his Honour drew upon case law and other sources, some of which are discussed in these reasons and all of which cover the same ground. I have not found it necessary, therefore, to separately consider his Honour's writing on this topic.

112. Norrie also referred to the following entry in Wikipedia, which states:

"Intersex, in humans and other animals, is the presence of intermediate or atypical combinations of physical features that usually distinguish female from male. This is usually understood to be congenital, involving chromosomal, morphological, genital and/or gonadal anomalies ..."

113. The strengths and weaknesses of a collaborative encyclopaedia such as Wikipedia are well-known by those in the community who frequently access the Internet. It is not necessary in these reasons to determine the circumstances in which, or the principles governing when, the Court may have regard to entries in it. It is sufficient to note that the information in Wikipedia was to the same effect as the other material to which the Court was referred.

114. It is apparent from this material that questions of sexual identity are more complex than the characterisation of persons being "male" or "female".

Other legislation

115. Both parties relied upon the provisions of the Anti-Discrimination Act, which were introduced at the same time as Pt 5A of the Act. The Registrar also relied upon other New South Wales and Commonwealth legislation with which, he contended, Pt 5A was intended to be read harmoniously.

116. The provisions of the Anti-Discrimination Act introduced at the same time as Pt 5A are set out above at [29]-[30]. Norrie submitted that the reference in the interpretation provision s 38A(c) to a person being of "indeterminate sex" indicated that the New South Wales Legislature had recognised that a person's sex need not be either male or female but that a person may be neither. The Registrar submitted, however, that it was apparent from s 38A that the Legislature had used the binary meaning of sex in the Act, as was evident from the use of expressions "opposite sex" in paras (a) and (b) and "particular sex" in para (c). The Registrar submitted that it was to be presumed that legislation amending both the Births, Deaths and Marriages Registration Act and the Anti-Discrimination Act used the words "transgender" and "sex" consistently in each.

117. There are circumstances in which a court will construe legislation in the same way as, or so as to be consistent with, other legislation. Such cases involve an application of the pari materia rule. In Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 Mason P, at [131], stated the operation of the rule in the following terms:

"There is a principle of statutory interpretation supporting a presumption that a legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection (Lennon v Gibson & Howes Ltd [1919] AC 709 at 711-712; Ramaciotti v Federal Commissioner of Taxation (1920) 29 CLR 49 at 53; Pearce & Geddes, Statutory Interpretation in Australia 6th ed, Butterworths, Sydney, 2006 at §3.36)."

118. The extent to which a word, or words, used in one statute can be construed as having the same meaning as a word or words used in another statute was the subject of comment by Kiefel J in the Certain Lloyd Underwriters case. The Court of Appeal in that case had considered that the two statutes in that case formed part of a statutory scheme. Kiefel J accepted that both statutes were directed to the same common purpose and used the same terminology. However, her Honour stated that unless the operation of each statute depended upon the other, there was no basis to construe them together: see at [94]-[104].

257. As I have sought to explain, both medical and legal authorities accepted long before the 1996 Act that not all people fit within the binary model of sexual classification. If the language of Part 5A of the Act can readily be interpreted as proceeding on the basis of that acceptance - as in my view it can - that interpretation should be adopted.

258. The second reason is that construing Part 5A of the Act as adopting a binary classification of sex gives insufficient weight to the injunction in s 33 of the Interpretation Act 1987 or to the approach to construction taken by the High Court in AB v Western Australia. Section 33 of the Interpretation Act provides that:

"In the interpretation of a provision of an Act ..., a construction that would promote the purpose or object underlying the Act ... (whether or not that purpose or object is stated in the Act ...) shall be preferred to a construction that would not promote that purpose or object".

263. In AB v Western Australia, the High Court said (at [24]) that the Western Australian provision equivalent to s 33 of the Interpretation Act was relevant to the task of construing the GR Act. The Court continued:

"Moreover, the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation 'the courts have a special responsibility to take account of and give effect to the statutory purpose'. It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a 'fair, large and liberal' interpretation." [Citations omitted.]

264. Care must be taken not to overstate the proposition stated in this extract. As was said by Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; 191 CLR 1, at 12, the object of legislation must be understood by reference to the language of the statute. A liberal interpretation is not a passport to an "unreasonable or unnatural" construction of the statutory language. The essential question is the meaning of the relevant words used by Parliament: Victims Compensation Fund v Brown [2003] HCA 54; 201 ALR 260, at [33], per Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed).

265. The objects of the Act include providing for "the recording of changes of sex" (s 3(c)). This statement of purpose does not make it clear what kinds of changes of sex will be permissible under the legislation. Nonetheless, as I have said, the Act explicitly acknowledges that some people experience ambiguities in relation to their sexual identity and are prepared to undertake drastic surgical procedures to correct or eliminate the ambiguities or to assist them to be considered members of the opposite sex. The legislation sets up procedures to enable a person to apply to alter the record of that person's sex. The legislation is remedial in the sense that it enables those who do not comply, or who do not see themselves as complying with the traditional binary classification to alter the record to accord with the reality of their sexual classification or to their perception of that reality.

266. The High Court in AB v Western Australia was dealing with legislation that addresses similar issues, but is drafted differently from the Act. Even so, the language used by the High Court (at [25]) can readily be adapted to describe the purpose of Part 5A of the Act. Part 5A acknowledges the difficulties facing people whose sexual identity is ambiguous and seeks to alleviate their suffering. It does so by providing for the official recognition of a sexual identity despite the disconformity between that identity and the social-historical record of their sex.

267. The language of Part 5A of the Act and s 32DC in particular is consistent with permitting people who are distressed because they do not wish to be recorded as either male or female to be registered as neither, provided that they fulfil the statutory preconditions. In my view, it advances the purpose of the legislation to construe s 32DC in this way.

Consequences of Registration of a Change of Sex

268. The registration of a change of sex to a category that is neither male nor female has legal consequences under the law of New South Wales for the person concerned. Section 32I of the Act provides that a person whose record of sex is altered under Part 5A

"is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered".

269. As Beazley ACJ has explained (at [126] above) much legislation in New South Wales is clearly drafted on the basis that sex is a binary concept and that, accordingly, for the purposes of that legislation there are only two sexes. I agree with Beazley P that the possible consequences of the registration of a person as neither male nor female cannot dictate the construction of s 32DC of the Act. There are three reasons why this is so.

270. First, the process for registration of a change of sex is initiated by the person concerned lodging an application for the change to be registered. No one is compelled to seek registration of a change of sex. It is a matter for the applicant to consider whether the benefits of registration as neither male nor female outweigh the possible drawbacks of not being able to take advantage of benefits or protections available under statute only to males or females.

271. Secondly, beneficial State legislation that is based on a binary classification of sex will not necessarily be interpreted in a way that excludes a person whose sex is registered as neither male nor female. It is possible, for example, that legislation drafted on that basis would be interpreted as applicable to everyone, even those whose sex is registered as neither male nor female. This may give rise to other issues of classification, but each enactment must be construed by reference to its own language and purpose. It cannot be assumed that all the legal consequences of registration of a change of sex to neither male nor female will be unfavourable to the person registering the change.

272. Thirdly, proper construction of Part 5A of the Act also depends on its own language. No doubt if the consequences of a particular construction were clearly absurd, a court would examine the language to determine whether it is so intractable that the absurdity is unavoidable. There is, however, nothing absurd in leaving the judgment as to the merits of registering a change of sex to the person concerned.

273. Section 32I of the Act cannot and does not purport to have consequences for Commonwealth laws. The construction of Commonwealth legislation will be determined independently of s 32I: see Secretary v "SRA", at 306, per Black CJ.

Disposition of the Appeal

274. For the reasons I have given, the Appeal Panel erred in construing s 32DC of the Act so as to preclude the Registrar from registering a change of sex from male or female to a category that is neither male nor female. In my view, the Registrar has power under s 32DC to register a change of sex of this kind.

275. This conclusion does not necessarily establish that Norrie is entitled, as a matter of law, to require the Registrar to accept her application to change her sex from male to "non specific" (or any other term designating her sex as neither male nor female). Both the Tribunal and the Appeal Panel based their decision on an erroneous construction of s 32DC of the Act. Neither considered the merits of Norrie's application to register the change of sex as "non specific". As the Appeal Panel said when rejecting Norrie's application for it to deal with the merits of the Tribunal's decision, the latter decided a preliminary legal question and did not address the merits of the application.

276. The appeal to this Court is on a question of law under s 119(1) of the ADT Act. As the plurality in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390, made clear (at [90]) the nature of an appeal is determined by the language of the statute providing for the appeal. Where the legislation provides for an appeal on a question of law, the existence of a question of law is not merely a qualifying condition to the right of appeal. The question of law alone is the subject matter of the appeal: Brown v Repatriation Commission (1985) 7 FCR 302, at 304, per curiam; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29, at [69], per Flick J.

277. The Tribunal in the present case did not make the findings of fact that are (or may be) needed to determine whether Norrie's application for a change of sex should have been accepted by the Registrar. No finding has been made, for example, that medical opinion recognises that the sex of a person who was born a male in all physiological respects, has undergone a sex affirmation procedure and now identifies as neither male nor female should or can be regarded as neither male nor female. The Tribunal merely found (at [11]) that two doctors swore statutory declarations that supported registration of a change of sex by Norrie to "non specific". The statutory declarations do not disclose the doctors' reasoning processes or whether their opinions (which are not clearly stated) are soundly based.

278. Nor has the Tribunal made any findings of fact as to the appropriate classification of Norrie's sex, assuming that she can be regarded as neither male nor female. Such findings might be important on the question of whether Norrie's application for her sex to be registered as "non specific" should have been accepted by the Registrar.

279. Since the Appeal Panel erred in law and the error was decisive to the outcome of the appeal to it, the matter should be remitted for determination according to law. That will require the Appeal Panel to reconsider the appeal on the basis that s 32DC of the Act, as a matter of construction, permits the Registrar, in an appropriate case, to register a change of sex from male or female to a sex that is neither male nor female. The Appeal Panel may be disposed, if there are no insuperable procedural obstacles to doing so, to accord Norrie an opportunity to adduce further evidence bearing on the factual issues that now arise. This may be the appropriate course since both the Tribunal and Appeal Panel considered that they were resolving a preliminary legal issue and not the merits of the application. But the question of whether further evidence should be permitted is a matter for the Appeal Panel or the Tribunal, depending on what course the proceedings now take.

280. I agree with the orders proposed by Beazley ACJ.

281. PRESTON CJ of LEC: I have had the advantage of reading in draft the judgments of Beazley ACJ (the President of the Court of Appeal) and Sackville AJA. I agree with the conclusion that the statutory power to register a person's change of sex is not limited to registering a person's sex as only male or female and that the Appeal Panel and Tribunal erred in law in concluding otherwise. I also agree that the matter should be remitted to the Tribunal for determination and with the other orders proposed by Beazley P.

282. Whilst I agree with the reasons given by Beazley P and the additional reasons given by Sackville AJA for these conclusions, I wish to add some observations about the construction of s 32DA and s 32DC of the Births, Deaths and Marriages Registration Act 1995 ('the Registration Act').

283. The power of the Registrar under s 32DC(1) is "to determine an application under section 32DA". This power to determine the application may be exercised in one of two ways, either by "registering the person's change of sex" or by "refusing to register the person's change of sex". The reference to a "change of sex" in either case is a reference to the sex which the person has applied to be registered in the person's application under s 32DA.

284. An application under s 32DA may be made by a person who satisfies each of the criteria in s 32DA(1)(a) to (e). One of the criteria is that the person "has undergone a sex affirmation procedure" (para (c)). A "sex affirmation procedure" is defined in s 32A to mean:

a surgical procedure involving the alteration of a person's reproductive organs carried out:

1. for the purpose of assisting a person to be considered to be a member of the opposite sex, or

2. to correct or eliminate ambiguities relating to the sex of the person.

285. A person who has undergone a sex affirmation procedure and satisfies the other criteria in s 32DA(1) may apply to the Registrar for "the registration of the person's sex in the Register". The reason for this language is that the person's sex would not have previously been recorded in the Register. The person, in order to be eligible to make an application under s 32DA(1), would not have had the person's birth registered under the Registration Act or a corresponding law (s 32DA(1)(e)) or been married (s 32DA(1)(d)) and hence had the person's sex recorded as a particular of those registrable events. The person's application under s 32DA(1) enlivens the power of the Registrar under s 32DC(1) to register the person's sex in the Register. The sex that can be registered as the person's sex is the sex the person applies to have registered under s 32DA(1).

286. The question of critical importance in this case is whether the sex a person can apply under s 32DA(1) to have registered as the person's sex is limited to only male or female. The answer depends on the meaning of the word "sex" in the phrase "person's sex" in s 32DA(1).

287. In my view, the sex which a person can apply under s 32DA(1) to have registered as the person's sex in the Register is not limited to only male or female. The words "the person's sex" are general words. Where a statute uses general words, they are to be given their ordinary meaning, unless the statute indicates an intention to depart from its ordinary meaning: Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at 647; Maunsell v Olins [1975] AC 373 at 382. The Registration Act, and Part 5A in particular, do not indicate an intention to depart from the ordinary meaning of the word "sex". There is no statutory definition of "sex", "a person's sex" or "the person's sex", or "a person's change of sex" or "the person's change of sex". The context in which the words are used also do not indicate a legislative intention to use the words in a specialised sense.

288. Where a statute uses words in their ordinary sense, absent a contrary intention, the statute is to be construed as 'always speaking', so that the words are to be interpreted in accordance with their current meaning. The language of the statute is regarded as ambulatory, embracing changes that occur in the subject matter: R v Gee [2003] HCA 12; (2003) 212 CLR 230 at 241 [7]. In this way, although the connotation of the language stays the same, its denotation may differ over time: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at 145 [139].

289. Here, Parliament has chosen to use language, regarding a person's sex, of such generality that a court should interpret the statutory provisions regulating the making and approving of applications for the registration of a person's sex in the Register on the basis that the intention of the statute is that the denotation of the words and the application of the provisions may vary over time. Indeed, the amendment of the Registration Act to include Part 5A which allows persons who undergo a sex affirmation procedure to have their change of sex recorded in the Register, reveals a legislative intention to accommodate changes in the ordinary meaning of the concept of a person's sex.

290. The necessary enquiry is, therefore, of the current, ordinary meaning of the concept of a person's sex. As Beazley P has carefully narrated, the current meaning of the concept of a person's sex has extended beyond only the two traditional categories of male and female and now includes, at least, a further category regarded as falling between the male and female sexes, increasingly referred to as intersex. An intersex individual, according to Professor Greenberg (referred to by Beazley P at [109]), includes a person "with a congenital condition whose sex chromosomes, gonads, or internal or external sexual anatomy do not fit clearly into the binary male/female norm".

291. The consequence of this change in the ordinary meaning of the concept of a person's sex is that a person who satisfies the criteria in s 32DA(1)(a) to (e) can apply to the Registrar for the registration of the person's sex in the Register not only as male or female, but also any other category of sex that falls within the current meaning, such as intersex, and the Registrar would have power under s 32DC to determine the person's application under s 32DA by registering the person's change of sex in the Register to be the sex applied for.

292. The Registrar's submission, that the current, ordinary meaning of the concept of a person's sex is limited to only male or female, is therefore not accepted.

293. The Registrar also submitted, however, that Part 5A of the Registration Act evinces an intention to limit the sex which a person can apply to have registered, and the Registrar can register as the person's sex, to only male or female. I do not agree.

294. First, s 32DA(1) of the Registration Act does not so limit the sex which a person may apply to have registered as the person's sex in the Register. The language used is general - the person may apply "for the registration of the person's sex in the Register". This contains no limitation. Nor is this general language limited by the language of the criteria in s 32DA(1)(a) to (e) which must be satisfied in order for the person to be eligible to make the application. It is true that the person must have undergone a sex affirmation procedure (s 32DA(1)(c)). However, there is no express requirement that the sex which the person applies under s 32DA(1) to have registered as the person's sex in the Register be the purpose or the result of the sex affirmation procedure. Indeed, the definition of "sex affirmation procedure" in s 32A does not mandate that any particular result occur, let alone a successful result occur, only that a particular surgical procedure be undertaken. For example, a person who undergoes a surgical procedure within the definition in s 32A of "sex affirmation procedure" that would enable the person's sex to be registered as female is not precluded by either the definition of "sex affirmation procedure" or the terms of s 32DA from applying under s 32DA(1) for the registration of the person's sex as a category of sex other than female.

295. Secondly, the definition of "sex affirmation procedure" in s 32A does not lead to a limitation on the sex which a person can apply under s 32DA to have registered as the person's sex in the Register. As I have noted, it demands a procedure, not a result. The procedure is "a surgical procedure involving the alteration of a person's reproductive organs". That procedure is required to be carried out for a purpose: either for the purpose of assisting a person to be considered to be a member of the opposite sex (para (a)) or to correct or eliminate ambiguities relating to the sex of the person (para (b)).

296. There is no requirement, however, that the surgical procedure be successful in the sense that either of these purposes be achieved. For example, a surgical procedure, although carried out for the purpose of assisting a person to be considered a member of the opposite sex, may not result in that person being considered (by others or by themselves) as a member of the opposite sex. This does not mean, however, that the person has not undergone a sex affirmation procedure. The person could still apply under s 32DA(1) for registration of the person's sex in the Register. The sex to be registered as the person's sex could be the sex which the purpose of the surgical procedure was to assist the person to be considered to be a member of, or the sex which the purpose of the surgical procedure was to assist the person to be considered no longer a member of, notwithstanding it was unsuccessful in achieving either of these purposes.

285. Similarly, a surgical procedure, although carried out to correct or eliminate ambiguities relating to the sex of the person, may not achieve that result. Ambiguities relating to the sex of the person may remain after the surgical procedure has been carried out. This does not mean that the person has not undergone a sex affirmation procedure within the definition in s 32A; on the contrary, the person has undergone such a procedure. The person can still apply under s 32DA(1) for the registration of the person's sex in the Register, notwithstanding the failure of the surgical procedure to correct or eliminate the ambiguities relating to the sex of the person. Again, the sex which the person can apply under s 32DA(1) to have registered as the person's sex in the Register is not dependent on the success of the surgical procedure.

286. Thirdly, the text and context of the word "sex" in the definition of "sex affirmation procedure" do not limit the sex affirmation procedure to only the male or female sexes. It is true that the language in para (a) of "assisting a person to be considered to be a member of the opposite sex" suggests a binary classification of male and female. The language of "opposite sex" is only meaningful if the sexes referred to are male or female.

287. However, the language in para (b) is not so restricted, referring to "ambiguities relating to the sex of the person". The words "sex of the person" do not presuppose any pre-existing category of sex or that the sex can only be male or female. Further, the word "sex" is not limited by any adjective, including one such as "opposite", which implies a binary classification of sex. The word "ambiguities" is of wide meaning. The concept of "ambiguous" involves "2. of doubtful or uncertain nature; difficult to comprehend, distinguish, or classify" and "3. lacking clearness or definiteness; obscure; indistinct", Macquarie Dictionary, 4th ed (2005). The ambiguities relating to the sex of the person may mean it is not possible to classify the person as male or female. Finally, the connecting phrase "relating to" is of wide operation: Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 168 ALR 211 at [56]. It does not specify or confine the nature of the relationship between "ambiguities" and "the sex of the person".

288. Together, these words and the connecting phrase in para (b) create an expression of wide meaning. Individually or together, they do not limit the sex of the person to only being male or female, either before or after the surgical procedure is carried out.

289. The example given by the Appeal Panel in its judgment, and adopted by the Registrar in submissions, of surgery on a person who is not unambiguously male or female (sometimes referred to as androgynous or intersex) and who wishes to correct or eliminate that ambiguity by being considered to be either male or female, may be one example that falls within para (b) of the definition of "sex affirmation procedure". However, it does not exhaust the field of surgical procedures that could fall within para (b).

290. The difference in language, both text and context, between para (b) and para (a) of the definition of "sex affirmation procedure" makes inapplicable the tenet of statutory construction relied upon by the Registrar, that where the legislature uses the same word "sex" in the statutory provision, it should be given the same meaning.

291. Part 5A of the Registration Act, therefore, does not limit the concept of a person's sex that can be registered to only male or female.

292. The consequence is that the Appeal Panel (and the Tribunal and the Registrar) were in error in construing the power in s 32DC(1) as limiting the Registrar to registering a person's change of sex as only male or female. An error in the construction of the statutory provision granting the power to register a person's change of sex is an error on a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 at 287. This is so notwithstanding that the determination of the common understanding of a general word used in the statutory provision is a question of fact. The Appeal Panel (and the Tribunal and the Registrar) erred in determining that the current ordinary meaning of the word "sex" is limited to the character of being either male or female. That involved an error on a question of fact. But the Appeal Panel's error in arriving at the common understanding of the word "sex" was associated with its error in construction of the effect of the statutory provision of s 32DC (and also of s 32DA), and accordingly is of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 10.

293. The error is, therefore, one which founds appellate intervention in an appeal on questions of law.

294. I agree the matter should be remitted to the Tribunal for determination of Norrie's application. This will involve making factual findings on the appropriate classification of Norrie's sex to be registered under s 32DC of the Registration Act.

**********

Amendments

09 October 2015 - Beazley P amended to Beazley ACJ

Amended paragraphs: [210(1)], [216], [269], [280]

14 June 2013 - Correction of date in order 3(a)

Amended paragraphs: Coversheet and [207]

04 June 2013 - Typographical error

Amended paragraphs: 282

Decision last updated: 09 October 2015