NSW Registrar of Births, Deaths and Marriages v Norrie

[2013] HCATrans 283

[2013] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S126 of 2013

B e t w e e n -

NSW REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES

Applicant

and

NORRIE

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 12.19 PM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MS K.M. RICHARDSON, for the applicant.  (instructed by Crown Solicitor (NSW))

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear with my learned friend, MR A.J. ABADEE, for the respondent.  (instructed by DLA Piper Australia)

FRENCH CJ:   Mr Bennett, we might be assisted first by hearing from you.

MR BENNETT:   Your Honours, my learned friends in their outline put four matters and, in my respectful submission, none of them have any force.  If your Honours go to the applicant’s summary of argument, your Honours will see the argument commences on page 166 of the application book.  The first argument is the reference to “opposite sex” in the definition of “sex affirmation procedure” and, your Honours, as we have pointed out in our submissions, that is a totally neutral matter.  East is the opposite of west, but that does not mean that there are only two directions.  A side of a square may have an opposite side, but there are two other sides.  Adjectives like “good” and “bad”, “big” and “small” have opposites, but there is a large range in between.  It is simply no indication at all and of whether the term is binary or not.

The second matter relied on by our learned friends is that ordinary use of language supports the Registrar’s proposition.  They refer to the Oxford English Dictionary, which is clearly our way on that.  It refers to the two main categories as being male and female, suggesting that there is another category.  But more importantly, there are three authorities in Australia – one in this Court, one in the Federal Court, and one in the Family Court – which recognise the existence of intersexual people who, of course, used to be called hermaphrodites. 

Those cases are in the joint list of authorities.  I will not spend a lot of time on them, but just very briefly, the one in this Court is at tab 7.  It is AB v Western Australia (2011) 244 CLR 390. That case concerned Western Australian legislation that was quite different and we are not concerned with that aspect. But there is a useful paragraph, which is paragraph 23 in the judgment of the Court, where it is said – paragraph 23, page 402:

The general approach of Buss JA is to be preferred.  It gives effect to the evident purpose of the legislation and is consistent with its terms.  It is an approach that gives proper weight to the central issue with which the legislation grapples:  that the sex of a person is not, and a person’s gender characteristics are not, in every case unequivocally male or female.  As the definition of “reassignment procedure” makes plain, a person’s gender characteristics may be ambiguous.

Your Honours, that is a simple, correct, factual statement.  It appears also in the judgment of Justice Lockhart in Secretary, Department of Social Security v SRA (1993) 43 FCR 299 which is at tab 6. At page 315, his Honour says at about point 7 of the page:

An intersexual is a person with gonads or genitalia of both sexes, whereas transsexuals have the biological bodies and functions of a normal member of their initial sex.  Transsexuals are not hermaphrodites –

There is also a use for discussion of transsexualism on page 313, which I will not take your Honours to.  The third case is the decision of Justice Bell in the Family Court at tab 4, In the Marriage of C and D, where, at page 342 in the middle of the page at the end of the long paragraph, it says:

I do not consider that I need to go into any further details concerning the tragic life of the husband in this case but that to say he has been diagnosed as an hermaphroditus verus –

which seems to be an interesting combination of Latin and Greek –

in other words a true hermaphrodite.

So we have authority in all three courts, including a decision of the whole of the Court that sat in a case in this Court, acknowledging the existence of people who are not wholly male or female.  What is being done in this case then is that the Registrar is arguing that he is prohibited from entering the truth in the register, and that is what this case is about.  It is about whether there is some implication in the Act requiring the Registrar to make a false entry.  Now, I do not criticise the Registrar personally – I should say that in fact the Registrar was prepared to grant our application, but the evidence is he sought advice from the Crown Solicitor and, taking that advice, apparently decided not to.

FRENCH CJ:   Well, it is not a question of “truth” or “not truth”.  It is a question of what the term “change of sex” and “sex” means in the Act, is it not?

MR BENNETT:   With respect, not, your Honour.

FRENCH CJ:   I thought this was a question – you are dismissing this as a question of statutory construction and that on that basis special leave should be refused.

MR BENNETT:   Yes, your Honour.  It is largely not a question of statutory construction.  Once it is accepted that the fact is that there are people who are neither male nor female, one simply would not construe an Act which says that you record the sex or record a change of sex as being limited to male and female, yet that is what has been done.  It is simply contrary to facts which have been known since the time of the ancient Greeks and it is simply denying that and saying there is some implication from general usage or something else which says everyone has to be put into one of the two boxes of male and female.

Your Honours, the third argument that is put by the applicant is the reference to “eliminating ambiguities” and what is said is that we are talking about creating ambiguities.  There are two answers to that.  The first, which is referred to by all three judges in the Court of Appeal – I will not take your Honours to the passages, but I will just give your Honours the references, paragraph 244 of Justice Sackville, paragraph 198 of President Beazley and paragraph 296 of Justice Preston.  In those paragraphs, they point out that there can be, as there was in this case, a failed sex change operation which results in a person becoming intersexual and the definition talks about purpose rather than effect.  That is the first answer.

The second answer is that there is no reason why one should not construe the words of the definition as including a person who seeks to change to being intersexual.  Suppose one has a person who is, let us say, a third or two‑thirds of the way between the two extremes, and that person identifies as intersexual and with the intersexual community and wants to become a hermaphroditus verus, as this Court said, wants to be exactly halfway.  Why should not, in a free country, such a person have such an operation and say “I have become intersexual”?  There is nothing in the definition which prevents – and that is eliminating an ambiguity in one sense, so far as that person is concerned.

The final argument is that if the legislature were going to take so radical a view, it would have said so expressly.  Your Honours, there is nothing radical about our position, and it is a novel proposition that it is radical to require a registrar to record the true position in a public register.  If that is a radical proposition, it is hard to imagine what is not.  So your Honours, we submit this is simply a case where the decision below is so clearly correct that the contrary is hardly arguable.

There are two other matters I should mention.  One is that the Acts throughout Australia are not uniform, and this decision applies to the New South Wales Act.  The Victorian Act does not have the reference to the elimination of ambiguities in the definition so the argument would be different on that Act.  The Tasmanian Act uses the phrase elsewhere, “the other sex”, which does suggest a binary interpretation, so the argument would be different in Tasmania. 

South Australia and Western Australia have different statutory schemes involving gender characterisation boards.  The only other State to which this would apply is Queensland.  The Australian Capital Territory has recently announced that legislation is proposed in relation to intersexuals, which will no doubt make the position clear there.  So we are talking only about New South Wales, Queensland and the Northern Territory and it is a question of statutory interpretation which any of those polities could amend at any time.

The other matter is this, that in June – and I have given notice of this to my learned friend.  It is not put in our argument.  I gave him oral notice this morning.  The federal Sex Discrimination Act was amended in June to include discrimination against intersexuals and the relevant provisions apply to public officials and apply to services given by government which would include registration or amendment of registration of a birth.  So if my learned friend’s construction were ultimately upheld, it would put the Registrar in breach of the Sex Discrimination Act as it now appears.  It, of course, was not in that form at the time the matter was dealt with below.  We would no doubt file a notice of contention in relation to that, and the case would thus be complicated by a further issue which could not be argued below.

So, your Honours, we would submit it is a case which concerns, as I say, a statute.  It is a decision which is clearly correct and clearly in accordance with modern thinking on this subject and, in my respectful submission, special leave should be refused.

FRENCH CJ:   You are seeking in the event that leave is granted, it be granted on condition that the Registrar pay the respondent’s costs of the appeal in any event and does not seek to disturb the orders below?

MR BENNETT:   Yes, your Honour.  I do seek that order, your Honour, yes.  It is a government which is appealing against an individual in a case which is said to be of general importance and, in my respectful submission, that is the appropriate order.

GAGELER J:   We would be concerned in an appeal with whether the Court of Appeal was correct on the law as it stood on 29 November 2011, would we not?

MR BENNETT:   Yes, your Honour.

GAGELER J:   So what is the relevance of the recent Commonwealth legislation?

MR BENNETT:   It would make the decision irrelevant as to the future, and therefore it would be a closed issue, if one likes, an issue that cannot arise again if it has the effect which we would submit for in the notice of contention.

GAGELER J:   That effect is what?

MR BENNETT:   That effect is one would not construe an Act in that manner if the effect would be that the Registrar, by obeying the decision, would be committing a criminal offence.  I use the words “criminal offence”.  I am not quite certain if that is the correct term, but certainly acting contrary to the Sex Discrimination Act.

FRENCH CJ:   Yes, all right, thank you.

MR BENNETT:   If the Court pleases.

FRENCH CJ:   Mr Kirk.

MR KIRK:   Your Honours, may I deal with ‑ ‑ ‑

FRENCH CJ:   What do you have to say about that last point, Mr Kirk?

MR KIRK:   Yes, can I deal with that?  First, my learned friend, as I understand it, seeks to oppose the grant of special leave on the basis that there is a constitutional question arising as to the interaction of the Sex Discrimination Act and the Birth, Deaths and Marriages Registration Act.  If anything, that is not a ground against a grant of special leave, but for it, but that leads to your Honour Justice Gageler’s point, which I have not thought about deeply, but, with respect, seems correct and so the issue falls away. 

But in any event, and your Honours unfortunately do not have the provisions before you, but I have a copy of the relevant provisions and section 5C of the Sex Discrimination Act appears to be the operative one where – my friend has given me some copies, if I can hand those up.

FRENCH CJ:   Thank you.

MR KIRK:   If I could take your Honours to 5C, which is about four or five pages in.  That is the operative provision where the restrictions against discrimination apply, as we understand it.  It speaks to a person described as the discriminator discriminating against another person by reason of inter alia the aggrieved person’s intersex status.

First, I should note, without getting bogged in this definition, it does not appear to us and it did not appear to the Court of Appeal that the respondent in this case is an intersex person, at least as that definition is understood in the literature referred to in the Court of Appeal.  But secondly, insofar as my client, the Registrar, was applying a statutory construction of the New South Wales Act, which provided for recognition of only two sexes, he would just be giving effect to the terms of the New South Wales Act.  The word “person” here would not readily be construed as picking up the New South Wales Parliament, and indeed, were it to do so, one would run into the Wenn sort of problems about the Commonwealth exceeding what it can do under 109, but by prohibiting what a State Parliament does.

When my client gives effect to the proper construction of a New South Wales Act he is simply following New South Wales law.  It is certainly at the least a very, very large issue that my learned friend raises and is not a simple or knockout answer to my client applying what has previously been accepted as a valid New South Wales law.

FRENCH CJ:   Yes.  Now, the other thing I wanted to ask you, Mr Kirk, was the question whether if leave is granted it should be granted on condition that the Registrar pay the respondent’s costs of the appeal in any event and does not seek to disturb the orders below?

MR KIRK:   Can I deal with that in two levels, if I may.  First, our primary position is that, as is implicit in our draft notice of appeal, orders we propose are that there be no order for costs in the Court of Appeal if we succeed and no order for costs in the High Court, the reason being that, with no disrespect to the respondent, this application was brought by her to the Tribunal in her own interest.  That said, we obviously recognise, I here assert, that there are much broader issues of principle at stake.  But our primary submission is that the appropriate order would be no order for costs, reflecting indeed what happened in the Tribunal.  My secondary position would be as your Honours would expect.

MR BENNETT:   Your Honours, may I be heard in reply?

FRENCH CJ:   Yes.

MR BENNETT:   Just to say this, your Honour, that the relevant operative section of the Sex Discrimination Act is not section 5C, but section 22, which your Honours have. Your Honours will see that says:

It is unlawful for a person who . . . provides goods or services . . . to discriminate against another person on the ground of . . . gender identity –

Then subsection (2):

This section binds the Crown in right of a State -

and “services” are defined on the second of the pages your Honour has as including:

services of the kind provided by a government –

and section 5C again refers to “intersex status”. It is not a constitutional point, your Honour. We are not arguing that the section would be invalid. We are simply saying one would not construe it in such a way that would require the Registrar to act in a manner which, under federal legislation, would be unlawful.

FRENCH CJ:   Well, you are saying it has to be read down to avoid inconsistency?

MR BENNETT:   Inconsistency in one sense, yes, your Honour.

FRENCH CJ:   Surely that raises a constitutional question, does it not, if it is viable at all?  The notion of entry in a register as a service seems a bit elusive.

MR BENNETT:   Certainly, your Honour, if we were to file, as we anticipate we would, a notice of contention, we would, for more abundant caution in any event, file a notice under section 78B.

FRENCH CJ:   But what would the notice of contention say, that the decision of the Court of Appeal should be upheld on this ground?

MR BENNETT: Yes, on the ground that since June of this year, the effect of a contrary decision would be to put the Registrar in breach of section 22 of the Sex Discrimination Act.

GAGELER J:   You might have to think very hard about that point before you send out section 78B notices.

FRENCH CJ:   Yes, and you might just have to look at the rules relating to notices of contention, I suppose.

MR BENNETT:   Yes.

FRENCH CJ:   All right.  There will be a grant of special leave, but subject to an undertaking from the applicant that it will pay the respondent’s costs of the appeal in any event and will not seek to disturb the costs order made by the Court of Appeal.

MR KIRK:   On behalf of my client, I give that undertaking.

FRENCH CJ:   Yes, all right.  Now is this likely to go, depending on the way things turn out, more than a day?  I think it would be a day, would it not?

MR KIRK:   It went a day in the Court of Appeal.  Can I add two things about that?  First, it is the sort of case which might possibly attract applications for leave to intervene from other parties.  Secondly, there is the issue my friend raised.  It should be capable of being knocked off in a day, but with the slight possibility of going over, I think.

MR BENNETT:   I agree with that.

FRENCH CJ:   All right, thank you.  The Court will now adjourn to reconstitute.

AT 12.42 PM THE MATTER WAS CONCLUDED