- Section 22(1) of the SD Act provides:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy:
by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
in the terms or conditions on which the first - mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
in the manner in which the first - mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
That provision binds the Crown in right of the State.8 The applicant in this case relies upon an alleged refusal of services: s22(1)(a).
'Services' is defined in s4 of the SD Act. The applicant apparently relies upon the following part of that definition:
.(e) services of the kind provided by a government, a government authority or a local government body
The term "service" or "services" is capable of broad application. It is a word of complete generality and should not be given a narrow construction unless that is clearly required by definition or context.9 In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body such as the respondent may also be engaged in the provision of services to particular individuals.10 That follows from the definition in s4(e) and from the naturally broad meaning of the word 'services'.11
The identification of the relevant service or services in a particular case is a question of fact.12 In approaching that factual inquiry, it is necessary to seek to identify the alleged service with precision.13
The manner in which the particular service is characterised will determine which (if any) of sub-paragraphs 22(1)(a) to (c) of the SD Act are available in a particular case.
- For example, in IW v City of Perth,14 the appellant sought to characterise the service in question as the exercise by a council of a discretion to grant or withhold planning approval. The appellant complained that the Council's refusal of planning approval constituted a refusal to provide the relevant service. The High Court rejected that contention. Their Honours held that the respondent could only have refused to have provided the service, as characterised by the appellant, if the respondent refused to consider whether or not to grant an approval. The findings of the tribunal below indicated that the respondent had in fact considered that matter. As such the equivalent of s22(1)(a) was inapplicable. However, by majority, their Honours held that the appellant could instead rely upon the equivalent of s22(1)(c) on the basis that it could be argued that the services had been provided in a discriminatory manner.15
- IW illustrates that considerable care is required in the characterisation of a service, necessitating close attention to the material in evidence before the Court and (in this case) the statutory context the respondent operates.
- Turning to that context, section 30A of the BDMRA provides:
(1) An unmarried person-
- who is 18 years or over; and
- whose birth is registered in Victoria; and
- who has undergone sex affirmation surgery-
may apply to the Registrar for the record of the person's sex in the person's birth registration to be altered.
(2) An application must be in the form approved by the Registrar and must be accompanied by the prescribed fee (if any).
- Section 30C of the BDMRA provides:
(1) The Registrar must determine an application under section 30A by altering the record of the applicant's sex in the applicant's birth registration or refusing to do so.
(2) Before determining the application, the Registrar may require the applicant to provide such further information or documentation as the Registrar reasonably considers is necessary.
(3) The Registrar cannot make the alteration to the birth registration if the applicant is married.
Section 30C(3) applies in a limited range of circumstances. The Registrar's power to determine an application is only enlivened if she or he has received an application under s30A. A married person cannot make an application under s30A: see subsection (1). Hence, s30C(3) will only operate in circumstances where the applicant marries after the time of the application.16
Despite making reference to s30C(3), it is apparent that the Registrar did not consider that she had before her an application within the meaning of s30A(1). She therefore informed the applicant that she could not 'proceed with [the applicant's] application'17 and did not accept the proffered application fee. The Registrar was thereby refusing to proceed to consider and determine the application.18
Although the applicant has on some occasions referred to a refusal of her application to alter her birth certificate,19 it appears that she puts her claim on the basis that the respondent refused to consider her application on its merits.20 Unlike IW, an allegation of that nature is open on the material before this Court. This points, with specificity, to the nature of the service which must be proved to exist in this case: it is the service of determining applications made under s30A(1).
Significantly for the applicant's contentions regarding s109 of the Constitution, the Registrar was bound by the BDMRA to refuse to consider the applicant's application. That follows from the combined operation of ss30A(1) and 30C. However, it does not follow from that fact that there was no relevant 'service'.21 It is erroneous, when considering whether a particular public body provides a service, to seek to draw a distinction between the provision of services pursuant to a statutory discretion and a situation in which no discretionary element exists.22
The respondent contends that the keeping of the registry is not a 'service', but rather an historical public record keeping function of the Victorian government.23
That argument is misconceived.
Australian Courts have not sought to create a category of 'government functions' which are immunised from the reach of anti-discrimination law. Rather, it has consistently been held that the performance of such functions can involve the provision of a service, even where issues of sensitivity to government arise - for example, the duties of a police officer24 or the functions of a regulatory official.25
Nor is there any special category of 'public record keeping'. As the applicant observes, the keeping of a similar register in New South Wales and the recording of particulars in it was held to be a service by the New South Wales Equal Opportunity Commission.26 However, the position is even stronger in the current matter when the service in question is properly characterised. It can be seen in that regard, that the respondent's argument proceeds from a level of generality, referring to its broader functions of keeping the register.27 However, what is in issue here is the more specific function of determining an application made under s30A of the BDMRA.
- The Commissioner submits that the exercise of that function very obviously confers benefits or potential benefits upon those seeking its exercise. The nature of those benefits was described in the second reading speech to the bill that introduced Part 4A, where the Attorney-General stated:
- The second reading speech confirms what is apparent on the face of the legislation: that is, while the discharge of the Registrar's functions involve in one sense serving the community, they also involve the provision of a benefit or potential benefit to the individual applicant.
- Australian Courts have clearly indicated that the exercise of such a function can constitute a service.29 It is irrelevant that the benefits derived from the exercise of that function are 'contingent' in the sense that they will only flow if the function is exercised a certain way.30 Nor does it matter that to take full advantage of those benefits, the applicant will have to take further steps - be they acting on the building approval (in IW) or obtaining a fresh copy of a birth certificate in the present case.31
The European Court of Human Rights authority referred to by the respondent in paragraphs 7 and 3632 did not deal with the question of whether the keeping of the register was or was not a service. To the extent that decision has any bearing on the present matter it has, in any event, since been overruled.33
If further confirmation of the propositions outlined above is required, this Court may have regard to the rule of construction that statutes are to be interpreted and applied so as to be in conformity and not in conflict with established rules of international law, as far as their language permits.34 For the reasons outlined in further detail below, CEDAW imposes an obligation to ensure that public authorities and institutions do not engage in discrimination on the ground of marital status.35 The governmental function of record keeping is not immunised from that obligation. The respondent's suggested construction of services in this matter is therefore inconsistent with that obligation. That is of particular significance when the determination of an application under s30A of the BDMRA stood to give effect to a further relevant human rights obligation: to take such measures (including legislative measures) as may be necessary to give effect to the right not to be discriminated against on the ground of transgender status.36
 Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). The Convention is set out in the Schedule to the SD Act.
 Section 5 of the SD Act.
 Section 6 of the SD Act.
 Section 7 of the SD Act.
 Section 7A of the SD Act.
 Employment (sections 14 - 20), Education (section 21), Goods, services and facilities (section 22), Accommodation (section 23), Land (section 24), Clubs (section 25) and the Administration of Commonwealth Laws and Programs (section 26).
 See s22 of the SD Act.
 See s22(2) of the SD Act.
 IW v City of Perth (1996) 191 CLR 1 at 23 per Dawson and Gaudron JJ; at 41 per Gummow J; at 72-3 per Kirby J.
 Ibid at 44 per Gummow J; also at 12-13 per Brennan CJ and McHugh J; at 24 per Dawson and Gaudron JJ; at 29 per Toohey J; and at 72 per Kirby J.
 It is also relevant to note that the SD Act, when first enacted, included (in s.40(1)) an exemption in the following terms: Nothing in Division 1 or 2 affects anything done by a person in direct compliance with (a) any other Act, any State Act, or any law of a Territory, in force at the commencement of this Act. That provision was subject to the following sunset clause in former s40(2) of the SD Act: Except in relation to the operation of [certain legislation not relevant for present purposes] paragraphs (1) (a) and (b) shall, except to the extent that regulations made for the purposes of this sub-section otherwise provide, cease to be in force at the expiration of 2 years after the commencement of this Act. Upon operation of the sunset clause, paragraph 1(a) was deemed to have been repealed: see former s40(4). Those provisions indicate that, while Parliament intended that state government officials should have a period of grace in relation to the SD Act (to allow State Parliaments and executive governments to make the necessary adjustments to comply with the SD Act), their actions after the grace period were to be subject to the SD Act, including s22.
 Waters v Public Transport Corporation (1992) 173 CLR 349 at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); at 394 per Dawson and Toohey JJ; and at 404-405 per McHugh J.
 See particularly McHugh J in Waters at 404-5. See also Mason CJ and Gaudron J at 361.
 Ibid at 24 per Dawson and Gaudron JJ; at 29 per Toohey and at 45 per Gummow J
 See regarding the right of transsexual people to marry: Attorney-General for the Commonwealth v Kevin and Jennifer (2003) 172 FLR 300.
 Letter from the Registrar to the applicant dated 12 July 2005, annex E to Agreed Statement of Facts dated 10 July 2006.
 Compare with the respondent's submissions at paragraph . Note that even if the respondent is correct in asserting that the application was considered, the issue would then be whether the respondent had determined the application in a discriminatory manner (s20(1)(c) SD Act) - compare with para  of the respondent's written submissions.
 See paragraph 4 of the applicant's affidavit of 20 December 2005 and paragraph 2 of the applicant's submissions. Note also para  of the Agreed Statement of Fact and Question for Decision dated 10 July 2006 and the 'Question for Decision'.
 See paragraph 32 of the applicant's submissions.
 Compare respondent's submissions at paragraph .
 Rainsford v Victoria (2005) 144 FCR 279 at 296. See also the obiter comments of Wilcox J in Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306 at 318.
 Respondent's submissions paragraph .
 Commissioner Police, NSW Police Service v Estate Edward John Russell  NSWSC 745 at -. See also Gummow J in IW at , approving the English Court of Appeal's decision in Farrah v Commissioner or Police of the Metropolis  QB 65.
 Mahmut v The NSW Department of Health (1994) EOC 92-646 - a case involving food inspectors.
 L v Registrar of Births Deaths and Marriages  EOC 92-131. That decision was referred to without apparent disapproval by a member of the High Court in IW: Kirby J at 70.
 See respondent's submissions at para .
 Second Reading Speech to the Births Deaths and Marriages Registration (Amendment) Act 2004 (Vic), Legislative Assembly Hansard, 22 April 2004, p789, Mr Hulls (Attorney-General).
 See IW v City of Perth (1996) 191 CLR 1 at 24 per Dawson and Gaudron JJ; at 27 per Toohey J; at 41 per Gummow J; at 74-5 per Kirby J; Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306 at 318 and Director-General, Department of Community Services v MM and Another  NSWSC 1241 at  and Rainsford v Victoria (2005) 144 FCR 279 at 296.
 See IW v City of Perth (1996) 191 CLR 1 at 44-45 per Gummow J.
 Rees v United Kingdom (1987) 9 EHRR 56.
 See Goodwin v United Kingdom (2002) 35 EHRR 447, where the Court stated that it had on several occasions since 1986 (and Rees) 'signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review.' The Court noted the importance of taking a 'dynamic and evolutive approach' to the interpretation of the Convention, and said that it was not convinced 'that the need to uphold rigidly the integrity of the historic basis of the birth registration system takes on the same importance in the current climate as it did in 1986.' (at ).
Jumbunna Coal Mine NL v Victorian Coalminers' Association (1908) 6 CLR 309, 363 (O'Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 384  (Gummow and Hayne JJ).
 See articles 1 and 2(d) and the Commissioner's further submissions below.
 See articles 2(2) and 26 of the International Covenant on Civil and Political Rights (ICCPR). Article 26 requires that people shall be provided with effective protection against discrimination on the ground of, inter alia, 'other status'.
 South Pacific Hotels v Trainor (2005) 144 FCR 402 at 406  per Black CJ and Tamberlin J (with whom Kiefel J agreed).
 Ibid at 406-7  per Black CJ and Tamberlin J (with whom Kiefel J agreed) 'An object of s9(4) is to extend the operation of the prescribed provisions of the [SD Act] thoughout Australia to the extent that the legislative powers of the Commonwealth Parliament may allow'.
 See the objects in s3(b)-(c) of the SD Act. See also the Second Reading Speech to the SD Act where it was said: 'The Bill is to apply throughout Australia and in this regard relies upon all available and appropriate heads of Commonwealth constitutional power' (Senate Hansard 2 June 1983, p1186, Senator Ryan). Compare paragraph  of the respondent's submissions.
 See Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584 at 592 in relation to s13 of the Disability Discrimination Act 1992 (Cth). See also s10 of the Age Discrimination Act 2004 (Cth). Note that Gummow J appeared to endorse such an approach in the context of the SD Act in argument in Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 (transcript of proceedings, 5 September 2001, p 174). See more generally R v Gee (2003) 212 CLR 230 at 241,  per Gleeson CJ.
 Compare with the applicant's suggested characterisation of those questions at paragraph 10 of her submissions and the respondent's suggested characterisation at paragraphs 11-12.
 Victoria v Commonwealth (1996) 187 CLR 416 at 486-487; Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 136 per Menzies J; Commonwealth v Tasmania (1983) 158 CLR 1 at 130-131 per Mason J, at 172 per Murphy J, at 232 per Brennan J, at 259 per Deane J and Richardson v Forestry Commission (1988) 164 CLR 261 at 288-289 per Mason CJ and Brennan J, at 303 per Wilson J, at 311-312 per Deane J, at 336 per Toohey J and at 342 per Gaudron J.
 See Commonwealth v Tasmania (1983) 158 CLR 1 at 260-1 per Deane J and Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312 per Deane J and at 346 per Gaudron J.
 Hanks, P J Keyzer, P Clarke, J Australian Constitutional Law: Materials and Commentary 7th Edition (2004) p190. The Court in Victoria v Commonwealth simply observed that the proportionality test 'appears to restate the basic question' (at 488). See generally J Kirk 'Constitutional Guarantees, Characterisation and the Concept of Proportionality' (1997) 21 MULR 1 at 3-9 for a discussion of the manner in which the degree of scrutiny involved in a 'proportionality' analysis varies with the nature of the test applied.
 Compare also the more stringent judicial scrutiny involved in the test enunciated by Barwick CJ in Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 86: ' it is for this Court to determine whether particular provisions, when challenged, are appropriate and adapted to that end'.
 Ibid. See also Deane J in Commonwealth v Tasmania (1983) 158 CLR 1 at 261-2.
 Compare with the applicant's submission at paragraph 12 of her written submissions.
 Opened for signature on 23 May 1969, 1155 UNTS 331 (ratified by Australia on 13 June 1974, entered into force 27 January 1980). See Povey v Qantas Airways Limited (2005) 79 ALJR 1215 at ; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ, at 240 per Dawson J, at 251-256 per McHugh J and at 277 per Gummow J. The respondent appears to accept that the VCLT applies (see para 26 of the respondent's submission). The respondent has, however, only made reference to Art 31(1) of the VCLT (referred to as 'para 1' in footnote 13). Arts 31(3)(b) and 33 are also relevant as are the principles of construction referred to in the body of the Commissioner's submissions.
 See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 305 per Gummow J; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ and at 251-256 per McHugh J and Commonwealth v Tasmania (1983) 158 CLR 1 at 94 per Gibbs CJ.
 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ. See similarly Dawson J at 240. See also Morrison v Peacock (2002) 212 CLR 274 at 279, .
 Povey v Qantas Airways Limited (2005) 79 ALJR 1215 at ; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ, at 396-7 and at 399-400 per Dawson J, at 405 per Toohey J, at 416 per Gaudron J, at 430 per McHugh J; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 117 per Gummow J; Commonwealth v Hamilton (2000) 108 FCR 378 at 388 per Katz J; Commonwealth v Bradley (1999) 95 FCR 218 at 237 per Black CJ. Note also Fothergill v Monarch Airlines Ltd  AC 251 at 294-5 per Lord Scarman.
 QAAH v Minister for Immigration and Multicultural and Indidgenous Affairs (2005) 145 FCR 363 at 388,  per Madgwick J, with whom Wilcox J agreed at 386, .
 See the Preamble to CEDAW and article 2 of CEDAW (emphasis added).
 See N Burrows 'The 1979 Convention on the Elimination of All Forms of Discrimination Against Women' (1985) XXXII (3) Netherlands International Law Review 419 at 426 and R Cook, 'Reservations to the Convention on the Elimination of All forms of Discrimination Against Women' (1990) 30 Virginia Journal of International Law 643 at 670.
 The Court can take judicial notice of such matters: See Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460, per McHugh J at  -  and per Callinan J at  -  ands 144(1)(a) of the Evidence Act 1995 (Cth). Alternatively, the Court can have regard to those matters on the basis outlined in Gerhardy v Brown (1985) 159 CLR 70 at 141 per Brennan J.
 International Labour Review, Vol LXXXV, January - June 1962, p262, 'Discrimination in Employment or Occupation on the Basis of Marital Status- I'.
 See L Rehof 'Guide to the travaux pre ©paratoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' Martinus Nijhoff Publishers 1993 p113.
 See eg the decision of the Supreme Court of Canada in Miron v Trudel  2 SCR 418 at  and J Mertus 'State Discriminatory Family Law and Customary Abuses' in 'Women's Rights Human Rights' J Peters and A Wolper (eds) (1995) Routledge p135 at p142.
See the Preamble to CEDAW.
 Compare respondent's submissions at paragraph .
 'discrimination on the grounds of sex' (see article 2(1)).
 See the decision of the House of Lords in Yorkshire Police v A  WLR 1209, discussing the decision of the European Court of Justice in P v S  ICR 795.
 See regarding Title VII of the Civil Rights Act (1964): Barnes v Cincinnati 401 F 3D 729 (6th Cir 2005); Smith v Salem 378 F 3d 566 (6th Cir 2004) and Maffei v Kolaeton Industry Inc (1995) 626 NYS 2d 391. In Canada, see Kavanagh v Canada (Attorney-General) (31 August 2001),Canadian Human Rights Tribunal, .
 See Aer Lingus Teoranta v The Labour Court and Others  CMLR 857 at -,  and -. Indeed, the terms of the Equal Treatment Directive expressly recognise that fact, in that they proscribe 'discrimination on the ground of sex either directly or indirectly by reference in particular to marital or family status' (emphasis added).
 Compare respondent's submissions at paragraph  and .
 Compare respondent's submissions at paragraph .
 See respondent's submissions at para .
 Applicant's submissions, para 19.
 (2003) 217 CLR 92 at 154-5.
 Jacomb v Australian Municipal Administrative Clerical and Services Union (2004) 140 FCR 149 at  and  per Crennan J. See also art 4(1) of CEDAW and s7D of the SD Act.
 The subsequent practice of States Parties can in part be derived from relevant reservations and declarations of interpretation, as well as from comments submitted by States Parties (M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1993), NP Engel pp XXIII-XXIV).
 See L Rehof, 'Guide to the travaux pre ©paratoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' (Martinus Nijhoff Publishers 1993 p271). That reservation was subsequently withdrawn (see 'Multilateral treaties deposited with the Secretary General. Status as at 31 December 2000. Vol 1, Part 1' ST/LEG/SER.E/19 pp249-250). In announcing the withdrawal of the reservation, the United Kingdom stated that, while it continued to believe that that reservation was an accurate statement of the meaning of article 1, there was no need for an explicit statement to that effect (see 'Consideration of Reports Submitted by States Parties Under Article 18 of the Convention. Third Periodic Reports of States Parties. United Kingdom of Great Britain and Northern Ireland' UN Doc CEDAW /C/UK/3 of 31 July 1995, page 126).
 See 'Status of Convention on the Elimination of All Forms of Discrimination Against Women, Report of the Secretary General' UN Doc A/41/608 at p5. That comment was made following an invitation to States Parties to consider whether the reservations made to CEDAW were consistent with the object and purpose of CEDAW (within the meaning of article 28(2) of CEDAW) (ibid p4).
 See L Rehof 'Guide to the travaux pre ©paratoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' Martinus Nijhoff Publishers 1993, p9.
 See Consideration of Proposals Concerning a New Instrument or Instruments of International Law to Eliminate Discrimination Against Women - Report of the Working Group to the Commission on the Status of Women United Nations Economic and Social Council, Commission on the Status of Women, UN Doc E/CN.6/574 18 January 1974 at pp 7 and 11.
 During the deliberations of Working Group 1, the United States representative proposed an amendment to the draft version of article 10 to delete the words 'married or unmarried'. That amendment was withdrawn after the representative from Indonesia pointed out that, in her country, young unmarried women were unable to attend secondary school (see L Rehof 'Guide to the travaux pre ©paratoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' Martinus Nijhoff Publishers 1993 p113). Note also that, during the deliberations of Working Group 2 (discussed further below), the Cuban representative expressed concern that the deletion of the words 'whether married or unmarried' from a version of article 16 proposed by the United Kingdom, would result in unmarried women ceasing to be protected and being deprived of their rights (see 'Report of the Working Group of the Whole on the Drafting of the Convention on the Elimination of Discrimination Against Women' United Nations General Assembly, UN Doc A/34/60 2 March 1979, paragraph 195).
 See 'Draft Convention on the Elimination of Discrimination Against Women - Report of the Secretary General' United Nations General Assembly, UN Doc A/32/218/Add.1 12 October 1977, paragraph 17.
 See 'Report of the Working Group of the Whole on the Drafting of the Convention on the Elimination of Discrimination Against Women' United Nations General Assembly, UN Doc A/34/60 2 March 1979, paragraphs 12, 13, 59, 60, 61 and 193.
 Ibid, paragraphs 261 - 262.
 L Rehof 'Guide to the travaux pre ©paratoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' Martinus Nijhoff Publishers 1993, p 47.
 H Burmester, 'Impact of Treaties and International Standards' (1995) 17 Sydney Law Review 127 at 145.
 A Byrnes 'The "Other" Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women' 14 The Yale Journal of International Law (1989) p1.
 As the applicant has noted (see paragraphs 24 to 26 of its submissions), the CEDAW Committee has, in General Recommendations 21 and 24 addressed specific areas of marital status discrimination. Moreover, in its comments on the second Country Report submitted by New Zealand, the CEDAW Committee noted, amongst the positive developments giving effect to the provisions of CEDAW, the enactment of the Human Rights Act 1993 (NZ), which was said to have: 'extended the area of prohibited discrimination to cover sex, including sexual harassment, marital and family status' (see CEDAW Committee, 'Concluding Observations, New Zealand', UN Doc A/49/38, paras 608-665 (1994) at para 658 and Human Rights Act 1993 (NZ), sections 21 and 44). See similarly Report of the Committee on the Elimination of Discrimination Against Women', A/56/38 (Sessional/Annual Report of Committee) 31 October 2001, p 60 (Guayana), 'Report of the Committee on the Elimination of Discrimination Against Women', A/58/38 (Sessional/Annual Report of Committee) 18 August 2003, p 34 (Kenya) and p 96 (Brazil) and 'Report of the Committee on the Elimination of Discrimination Against Women', A/60/38 (Sessional/Annual Report of Committee) 2005, pp 58 (Turkey). It seems clear from those comments that the CEDAW Committee regarded 'discrimination on the basis of sex', as that term is defined in article 1 of CEDAW, as having a broad content, incorporating, inter alia, marital status discrimination against women.
 See eg article 11(2)(a) of CEDAW and Victoria v Commonwealth (1996) 187 CLR 416 at 486.
 18C Offensive behaviour because of race, colour or national or ethnic origin
- It is unlawful for a person to do an act, otherwise than in private, if:
- the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
- the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
- For the purposes of subsection (1), an act is taken not to be done in private if it:
- causes words, sounds, images or writing to be communicated to the public; or
- is done in a public place; or
- is done in the sight or hearing of people who are in a public place.
 Opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969 except Article 14 which came into force 4 December 1982); ratified by Australia 30 September 1975, except Article 14, which was ratified 4 December 1982.
 Toben v Jones (2003) 129 FCR 515 at 525 .
 Article 7 of CERD provides: 'States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnic groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention'.
 Preamble and article 2.
 Arts 1, 9(1), 11(2)(a) and 16.
 See, in addition to Carr J in Toben v Jones, Richardson v Forestry Commission (1988) 164 CLR 261 at 290 per Mason CJ and Brennan J; at 303-304 per Wilson J; at 315-6 and 318-9 per Deane J; at 327-8 per Dawson J and at 342-3 per Gaudron J.
 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-1 per Brennan CJ and 239-240 per Dawson J.
 Ibid. See also, by way of example, Greentree v Minister for Environment and Heritage (2005) FCR 288 at 395-397.
 Compare paragraph  of the respondent's submissions