- It is well settled that, as a
general proposition, legislative provisions that are ambiguous are to be
interpreted by reference to the presumption that Parliament did not intend to
violate Australia’s international
obligations. The requirement of
ambiguity has been interpreted broadly; as Mason CJ and Deane J observed in Teoh:
there are strong reasons for rejecting a narrow
conception of ambiguity. If the language of the legislation is susceptible of a
construction which is consistent with the terms of the international instrument
and the obligations which it imposes on Australia, then that construction should
- The Commission contends that this
principle applies to State legislation as much as to federal legislation. As
Gummow and Hayne JJ observed in Kartinyeri v
has been accepted that a statute of the Commonwealth or of a State is to
be interpreted and applied, as far as its language permits, so that it is in
conformity and not in conflict with the established rules of international law.
On the other hand, the provisions of such a law must be applied and enforced
even if they be in contravention of accepted principles of international
The judgment of Gleeson CJ in Coleman v
Power should not be understood
as casting doubt on the proposition that State legislation is to be construed
with appropriate regard for Australia’s international obligations.
The principle that legislation is to be
construed so as to give effect to, and not to breach, Australia’s
international obligations assists in minimising the risk of legislation
inadvertently causing Australia to breach international law; rather, any breach
of international law occasioned by an Act of Parliament ought to be the result
of a deliberate decision of the Parliament in question. To this end, where a
construction that is consistent with international law is open, that
construction is to be preferred over a construction that is inconsistent with
international law. This
principle, although developed in the context of Australia’s federal
parliament, is equally apposite at the State level. It is possible for State
legislation to cause Australia to be in breach of Australia’s
international obligations. Thus
application of the principle to State legislation assists in ensuring that
States do not inadvertently place Australia in breach of Australia’s
international obligations. As with the Commonwealth Parliament, it ought to be
presumed that States do not intend to violate international law, whilst
recognizing that they remain capable of doing
principle has been regarded as limited to statutes enacted after
Australia’s entry into the treaty in
question; in this case, the Act
was enacted in 2000, well after Australia’s ratification of the ICCPR in
- Australia has relevant international legal
obligations under the ICCPR, being obligations to respect, protect and promote
the following rights:
- (1) the right to recognition everywhere as a person
before the law (Art 16);
- (2) the right not to be
subjected to arbitrary or unlawful interference with privacy and the right to
the protection of the law against such interference (Art 17);
- (3) the right to equality and non-discrimination
(Arts 2 and 26).
- The Commission contends that these obligations are
to be interpreted in accordance with international legal principles governing
the interpretation of treaties. This Court has, in a series of cases, taken the
view that where a statute implements a treaty, the treaty (and hence the
statute) is to be interpreted in light of international norms of interpretation,
and further that treaties ought to be interpreted uniformly by contracting
states. The Commission contends
that the same approach to treaty interpretation applies where a treaty is being
used as an aid to the interpretation of a statute that was not enacted for the
purpose of implementing a treaty
- Articles 31 and 32 of the Vienna
Convention on the Law of
Treaties (VCLT) set out
the following relevant principles applicable to the interpretation of treaties:
Article 31: General rule of
1. A treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and
shall be taken into account, together with the context:
(b) any subsequent practice in the application
of the treaty which establishes the agreement of the parties
regarding its interpretation; ...
Supplementary means of interpretation
may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article
(a) leaves the meaning ambiguous or obscure;
It is accepted that “technical
principles of common law construction are to be disregarded in construing the
text” of a
rights provided for in the ICCPR, expressed as they are at a high level of
generality, are ambiguous in their application to transgender persons; hence
recourse may be had to supplementary means of
interpretation, including the
Principles of the Application of International Human Rights Law in Relation to
Sexual Orientation and Gender Identity (the Yogyakarta
The Yogyakarta Principles were developed by a
group of academic and UN human rights
experts in 2006. The experts
“agree that the Yogyakarta Principles reflect the existing state of
international human rights law in relation to issues of sexual orientation and
“affirm binding international legal standards with which all states must
comply”. The Yogyakarta
Principles have since been referred to and utilized by a variety of
international and state bodies, evidencing the general acceptance of them as
reflecting existing international human rights
of the ICCPR is not confined to a consideration of the intentions of the
drafters or signatories as at 1966 (being the year it opened for signature). In
relation to the Convention Relating to the Status of Refugees, this Court has
held that categories of persons who fear persecution may be recognised as
refugees even though the drafters or signatories to that convention would not
have envisaged such recognition, the principal example being lesbians and gay
men. As was observed in A v
Minister for Immigration & Ethnic
It would be an error to construe the definition [of
‘refugee’] so as to ignore the changing circumstances of the world
in which the Convention now operates. Thus, it was agreed for the Minister that,
appearing as it does in a treaty of general application, the phrase "a
particular social group" could not be confined to those groups which were in the
minds of the drafters of the Convention in 1951. For example, at that time
persons having a well-founded fear of persecution for reasons of their sexual
orientation would in many, perhaps most, countries (including Australia)
have been identified as criminals. ... Nowadays, a different content and
application of the phrase affords the protection of the Convention deriving from
a larger understanding of the "persecution" and the identity of the "particular
social group" in question. The concept is not a static one. Nor is it one fixed
by historical appreciation.
On the same basis,
the Yogyakarta Principles can assist in ascertaining the contemporary meaning of
the text of the ICCPR and the application of that text to transgender persons.
Finally, decisions of the European Court of
Human Rights in relation to the European Convention on Human Rights, which
convention contains broadly the same rights as the ICCPR, may also assist in
understanding the contemporary meaning and application of the rights protected
to recognition as a person before the
- The right to recognition as a person
before the law is protected by Article 16 of the ICCPR as follows:
Everyone shall have the right to recognition
everywhere as a person before the law.
recognition of an individual encompasses recognition of their true gender as an
element of their personhood. This is particularly pertinent in the present
context, which involves the interaction of an individual’s personal status
with the legal and bureaucratic systems of the State. So much is recognised by
Article 3 of the Yogyakarta Principles which provides, inter alia that:
Each person’s self-defined sexual orientation
and gender identity is integral to their personality and is one of the most
basic aspects of self-determination, dignity and freedom.
Consideration of the right to recognition
before the law, understood by reference to the Yogyakarta Principles, in the
construction of s 15 of the Act leads to an interpretation that maximizes scope
for an individual to have their true gender identity recognised. The Court
should eschew any interpretation that would narrow the availability of
certificates under the Act by making it too onerous for an individual to have
their gender identity properly recognised.
This is particularly so because one of the
fundamental purposes of the Act is to provide for recognition before the law as
a person through the issue of a recognition certificate. In that sense,
Parliament intended to provide
for legal recognition of a person’s self-identified gender; and in that
sense, Parliament intended a result that is consistent with Australia’s
legal obligations under article 16 of the
An approach that is consistent with
article 16 and the Yogyakarta Principles is likewise consistent with a broad
reading of the Act that emphasises the remedial or beneficial purposes of the
legislation, discussed at -, below.
B3. Right to protection against interference
- The right to the protection
against interference with privacy is recognised and protected by article 17 as
No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor
unlawful attacks on his honour and reputation.
The right to privacy does not merely compel the
State to abstain from such interference: in addition, there are positive
obligations inherent in an effective respect for private or family life which
may require the adoption of measures designed to secure respect for private
right to private life has been considered by the European Court of Human Rights
to be broad, covering among
other things, development of one’s own personal identity and physical
Personal identity and
- In this case, the right to
privacy arises first because of the fact that there are circumstances where a
person’s officially registered gender is at odds with their generally
observable gender characteristics. As the European Court of Human Rights said in Goodwin v United Kingdom: 
also be recognised that serious interference with private life can arise where
the state of domestic law conflicts with an important aspect of personal
identity (see, mutatis mutandis, Dudgeon v. the United Kingdom judgment
of 22 October 1981, Series A no. 45, § 41). The stress and alienation
arising from a discordance between the position in society assumed by a
post-operative transsexual and the status imposed by law which refuses to
recognise the change of gender cannot, in the Court's view, be regarded as a
minor inconvenience arising from a formality. A conflict between social reality
and law arises which places the transsexual in an anomalous position, in which
he or she may experience feelings of vulnerability, humiliation and
- Consistently with this, principle 6(f)
of the Yogyakarta Principles states:
... (f) ensure the right of all persons ordinarily to choose when, to whom and
how to disclose information pertaining to their sexual orientation or gender
identity, and protect all persons from arbitrary or unwanted disclosure, or
threat of disclosure of such information by others.
- In the context of the present case similar
considerations apply. Without the Act, a person who has had relevant medical or
surgical treatment and who presents as his or her self-identified gender, will,
on a regular basis, be required to produce identification that shows them to be
of a different gender (such as a birth certificate, driver’s licence or
passport). This interferes with their privacy. A certificate granted under the
Act permits the individual to operate within society without drawing attention
to their gender history (i.e. the gender of birth) or medical condition (i.e.
that the person is undergoing, or has undergone treatment for gender identity
disorder). The Act thus operates to remove or ameliorate the interference with
privacy that would otherwise occur. The Court ought to prefer an interpretation
that operates to protect, to the maximum extent possible, the individual’s
privacy in respect of their gender and medical history.
- The right to privacy also arises
in this case in relation to the issue of physical integrity. In international
human rights law the right to privacy is recognised as protecting a
- Principle 3 of the Yogyakarta Principles deals
specifically with the physical integrity of transgender persons in relation to
surgical intervention as follows:
No one shall be
forced to undergo medical procedures, including sex reassignment surgery,
sterilization or hormonal therapy, as a requirement for legal recognition of
their gender identity.
- The decision about which
hormonal, surgical or other medical procedures to undertake to treat gender
identity disorder is a highly personal decision based on medical advice and an
assessment of the possible but not guaranteed benefits, costs and risks of
treatment. The Commission contends that this sphere of autonomy should not be
lightly interfered with. Requiring, as a precondition to the issue of a
recognition certificate, unnecessary and invasive surgery that is unrelated to
the person’s self-identified gender identity or the perception of their
gender by others involves a violation of the right to
- The Court ought to adopt an
interpretation of s 15 of the Act that minimizes the impact of gender
reassignment upon the person’s privacy by adopting an interpretation that:
- The right to equality and
non-discrimination is protected by Article 26 of the ICCPR, which provides:
persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status.
- It is generally accepted in
international human rights law that the right to equality and non-discrimination
includes both direct and indirect
... discrimination may be constituted by acts or
decisions having a discriminatory effect or disparate impact (indirect
discrimination) as well as by acts or decisions based on discriminatory
considerations (direct discrimination).
construction of s 15 proposed by the Court of Appeal operates in a manner that
discriminates directly and indirectly against individuals born as women who seek
to transition to the male gender. Such a construction ought to be rejected in
favour of one that provides substantive equality irrespective of the gender of
- The construction adopted by the Court of Appeal
directly discriminates against female to male transsexuals on the basis of
gender because it effectively imports, for them, a requirement for surgery that
is unconnected with that person’s genitals and is beyond the specific
requirements of the Act (i.e. by requiring a hysterectomy). In contrast, male to
female transsexuals are not required to undertake any surgical procedures other
than upon their genitals, nor
any surgery that is entirely unconnected with their external
- For the reasons set out in paragraph
above, the question of whether an applicant has had a hysterectomy is not
relevant to the scheme of the Act. Consideration of whether a person has had a
hysterectomy constitutes an additional requirement imposed upon female to male
transsexuals by reason of their original (female) gender. It is a construction
that ought to be rejected, in keeping with the right to equality and
non-discrimination enshrined in the ICCPR.
construction adopted by the Court of Appeal also indirectly discriminates
against female to male transsexuals on the basis of gender because, although
facially neutral, a requirement of surgery to construct external genitalia
consistent with their self-identified gender impacts detrimentally on female to
male transsexuals. This is because, in the case of a female to male transsexual,
- (1) Is attended with substantial risks;
- (2) has limited prospects of success; and, as a
- (3) is not performed in
- The imposition of a requirement to have a
phalloplasty appears to involve a neutral requirement, that the applicant
construct genitals consistent with their reassigned gender. In fact, when
considered in light of the matters outlined above, it is clear that it has the
effect of imposing a requirement that is discriminatory in its
- The discriminatory nature of the
majority’s interpretation of the Act was recognised as such by Martin
I accept that this approach to the construction
and application of the Act might, in the current state of medical science, make
it more difficult for female to male gender reassignees to obtain a recognition
certificate than male to female reassignees. However, if that is so, it is the
consequence of the legislature’s use of norms expressed in general terms,
and which may have different impacts in the extent of the procedures necessarily
undertaken by each gender to meet the conditions required for the grant of a
- The use of ‘general terms’ by the
legislature invites adoption of a construction consistent with international and
domestic human rights norms, including the right to non-discrimination. By
failing to adopt such a construction, the Court of Appeal fell into error.
- The principle of purposive construction and
the construction of the Act
- Section 18 of the Interpretation Act 1984 (WA) provides as follows:
In the interpretation
of a provision of a written law, a construction that would promote the purpose
or object underlying the written law (whether that purpose or object is
expressly stated in the written law or not) shall be preferred to a construction
that would not promote that purpose or
- The purposes of the Act can be garnered
from a range of sources, including the Long Title, which
An Act to allow the reassignment of gender
and establish a Gender Reassignment Board with power to issue recognition
certificates; to make consequential amendments to the Constitution Acts
Amendment Act 1899 and the Births, Deaths and Marriages Registration Act 1998; to amend the Equal Opportunity Act 1984 to promote equality of
opportunity and provide remedies in respect of discrimination, on gender history
grounds in certain cases; and for connected purposes.
First and foremost, the Long Title of the Act
discloses that it is intended to operate as broadly as possible insofar as it is
established to ‘allow the reassignment of gender’,
rather than to prevent it.
contends that Long Title discloses the purposes of the Act as being to assist
those who suffer from gender identity disorder to receive effective treatment,
to protect those individuals from being forced to disclose the gender of their
birth in the course of their interaction with the outside world, and to protect
them from discrimination. These purposes are remedial or beneficial in nature;
contrary to the majority’s approach in the court below, this understanding
of the Act’s purposes is of assistance in the construction of the
its text and structure, the Act is concerned with ensuring that transsexual
people are able to engage with the outside world (such as employers and
Government departments) in a manner that is consistent with their true gender,
thereby avoiding the traumatic dissonance that arises when official
documentation undermines that individual’s self-understanding. This is
apparent from the intended scope and operation of the recognition certificate,
including to permit the issuing of a new birth certificate (s 18 of the
A birth certificate is the gateway to most
other official documents that are required for a person to interact with society
at large. It permits the issuing of a driver’s licence and passport
displaying the person’s true gender. A person’s gender is reflected
in official documentation required to engage in a broad range of every-day
circumstances, including, for example:
- (1) opening a bank account;
- (2) providing a driver’s licence at the
request of a police officer in the course of routine operations;
- (3) checking in at a hotel or the airport.
- These are routine acts of everyday life that would,
on the majority’s construction, require disclosure of a person’s
birth gender and medical status because they have failed to undertake a
phalloplasty or hysterectomy.
the purpose of the Act is to eliminate discrimination, both in terms of enabling
a transgendered applicant to obtain a certificate recognizing his or her correct
gender and in terms of preventing others from discriminating against a person on
the basis of their gender history. This purpose is not advanced by adopting a
construction of s 15 that is itself discriminatory (in the two senses
explained in part B4, above). Furthermore, the majority’s construction
violates the general principle of non-discrimination on the basis of gender,
recognised in the Sex Discrimination Act 1975 (Cth) and in state
a purpose of the Act is to ameliorate the effect on a person of gender identity
disorder, which can be
ameliorated by a grant of a recognition certificate. This purpose is not
advanced by making it all but impossible for a female-to-male applicant to
obtain a certificate.
- Coherent and rights consistent construction of ss
3, 14 and 15 of the Act
- In light of Australia’s international
obligations in respect of the human rights set out in Part B, above, and the
content of those rights, and in light of the purposive construction for which
the Commission contends, insofar as it is possible to do so, ss 14 and 15 should
be given a meaning and operation which maximizes access to recognition
certificates for people suffering gender identity disorder, which recognizes the
long term, invasive and difficult steps necessary for gender reassignment and
does not impose any more onerous requirements on people in this situation than
- Sections 14 and 15 should also be
given a construction and operation that allows each provision to perform a
meaningful role without overlap or duplication. The Commission submits the Court
should recognize that the functions of ss 14 and 15 are quite different.
- Part 3 of the Act begins with a requirement
that a person has undergone a ‘reassignment procedure’. That term is
defined in s 3 in the following terms:
medical or surgical procedure (or a combination of such procedures) to alter the
genitals and other gender characteristics of a person, identified by a birth
certificate as male or female, so that the person will be identified as a person
of the opposite sex and includes, in relation to a child, any such procedure (or
combination or procedures) to correct or eliminate ambiguities in the
child’s gender characteristics.
The focus of s 14
is therefore on medical or surgical procedures that have certain purposes. That
is because underlying the scheme as a whole is a legislative policy that a
reassignment from one gender to another must involve tangible and significant
physical changes, and not only acknowledgment of a choice. Section 14(1) is
expressed as a jurisdictional fact. There has never been a challenge to the
satisfaction of s 14 by each of the appellants.
After the jurisdictional fact in s 14 is met, s
15 deals with matters about which the Board must be satisfied. The Commission
submits these matters are quite separate and have a different focus from
s 14, specifically an applicant’s subjective belief (s 15(1)(b)(i));
adoption of lifestyle and gender characteristics (s 15(1)(b)(ii)); and
sufficient counseling requirement (s 15(1)(b)(iii)). The standard imposed by s
15 is satisfaction of the Board, rather than any approach based on
‘accepted community standards and expectations’.
of s 15 adopted by the majority of the Court of Appeal effectively
duplicates the s 14 requirement that there has been a medical or surgical
procedure to alter the ‘genitals and other gender characteristics of a
person’. Moreover, the s 15 requirement adopted by the majority in
the Court of Appeal is effectively more onerous than the s 14 threshold
requirement (which has been satisfied in this case).
The legislature has evinced a clear intention
to specify the extent of surgical intervention required to enliven the
Board’s jurisdiction to consider whether to grant a certificate under the
Act. The interpretation adopted by the Court of Appeal would effectively involve
‘reading in’ a second surgical requirement, contrary to the
intention of the Act and the words of the statute. Such an approach should be
resisted in accordance with the well-known principle enunciated in Thompson v
is a strong thing to read into an Act of Parliament words which are not there,
and in the absence of clear necessity it is a wrong thing to
procedures ought to be considered in the factual matrix specific to each
individual case, but an approach that adopts a surgical pre-condition as an
element of s 15 of the Act ought to be rejected as inconsistent with the
structure and operation of the Act.
16 June 2011
 ‘Human rights’ is
defined in s 3 of the AHRC Act to mean the rights and freedoms recognised in the
International Covenant on Civil and Political Rights  ATS 23
(ICCPR). Australia ratified the ICCPR on 13 August 1980 and the ICCPR
entered into force for Australia on 13 November 1980, except for Article 41
which entered into force on 28 January 1993.
 The Commission recognises that
terminology in relation to gender identity is strongly contested and that there
is no clear consensus on what is appropriate terminology in this area. Different
persons use different terminology in relation to their identity. In this
submission the Commission has adopted terminology suitable for use in these
particular legal proceedings.
 See discussion in Levy v
Victoria (1997) 189 CLR 579 at 603-4 (Brennan J).
 This is reflected in the
conclusions expressed by Martin CJ at paragraph  in the court below: Western Australia v AH  WASCA  (AB 430).
 Bellinger v Bellinger  UKHL 21;  2 All ER 593 at 41.
 This principle was first
stated in the Commonwealth context in Jumbunna Coal Mine No Liability v
Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363. It has
since been reaffirmed by this Court on many occasions: see, eg, Polites v
Commonwealth (1945) 70 CLR 60 at 68-69, 77, 80-81; Chu Kheng Lim v
Minister for Immigration (1992) 176 CLR 1 at 38 (Brennan, Deane and Dawson
JJ); Minister for Immigration & Ethnic Affairs v Teoh (1995) 183
CLR 273 at 287; Re Minister for Immigration and Multicultural and
Indigenous Affairs ex parte Lam (2003) 214 CLR 1 at 33 (McHugh and Gummow
JJ); Coleman v Power (2004) 220 CLR 1 at 27 (Gleeson CJ), 91-4 (Kirby J).
Despite his stringent criticism of the rule, in Al-Kateb v Godwin (2004)
219 CLR 562 at - McHugh J acknowledged that “it is too well
established to be repealed now by judicial decision”.
 (1995) 183
CLR 273 at 287-8.
 (1998) 195 CLR 337 at 384
(footnotes omitted, emphasis added). See also Cornwell v R (2007) 231 CLR
260 at 320-322, where Kirby J applied the principle in relation to the
construction of a State Act.
 (2004) 220 CLR 1 at 27-29.
 Teoh (1995) 183 CLR
273 at 287 (Mason CJ and Deane J); Chu Kheng Lim (1992) 176 CLR 1 at 38
(Brennan, Deane and Dawson JJ).
 For an example of where
this occurred, see Toonen v Australia CCPR/C/50/D/488/1992
(Jurisprudence), where Australia was found by the UN Human Rights Committee to
be in breach of the ICCPR by reason of Tasmanian legislation criminalising sex
 The presumption that
legislation is construed so as not to violate international law has always
recognised that a legislature may choose to legislate inconsistently with
Australia’s international obligations and that it retains the power to do
so; in other words, international law is not a limitation on legislative power.
See, eg, Polites (1945) 70 CLR 60 at 68-69, 77, 80-81; Zhang v Zemin  NSWCA 255 at  (Spigelman CJ).
 See, eg, Teoh (1995)
183 CLR 273 at 287 (Mason CJ & Deane J); Kruger v Commonwealth (1997)
190 CLR 1 at 71 (Dawson J); Coleman v Power (2004) 220 CLR 1 at 27-8
(Gleeson CJ), contra 94-6 (Kirby J).
 See, eg, Povey v Qantas
Airways Ltd (2005) 223 CLR 189 at 202 - (Gleeson CJ, Gummow, Hayne
and Heydon JJ); Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia
Pty Ltd (1980) 147 CLR 142, 158-60; A v Minister for Immigration &
Ethnic Affairs (1997) 190 CLR 225 at 239-240 (Dawson J); Thiel v Federal
Commissioner of Taxation (1990) 171 CLR 338 at 349-350 (Dawson J).
  ATS 2; entered into
force for Australia and generally on 27 January 1980. The principles contained
in the VCLT may properly be utilised even though the VCLT entered into force
after the ICCPR because the VCLT is a codification of the customary law rules of
the interpretation of treaties: Thiel v Federal Commissioner of Taxation (1990)
171 CLR 338 at 356 (McHugh J).
 A v Minister for
Immigration & Ethnic Affairs (1997) 190 CLR 225 at 240 (Dawson J).
 Such means not being
limited to “the preparatory work of the treaty and the circumstances
of its conclusion”, but extending to materials that “provide a guide
to the current usage of terms by the parties”: Thiel v Federal
Commissioner of Taxation (1990) 171 CLR 338 at 349-350 (Dawson J). As Kirby
J observed in De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 676, “[e]xcept in cases of unarguably clear
treaty language, courts today regularly have resort to the opinions of scholars,
reports on the operation of the treaty and decisions of municipal courts
addressing analogous problems”.
 The Yogyakarta Principles
are principles on the application of international human rights law in relation
to sexual orientation and gender. They were adopted in 2007 by a group of 29
human rights experts from 25 countries representative of all geographic regions.
The experts included one former UN High Commissioner for Human Rights, 13
current or former UN human rights special mechanism office holders or treaty
body members, two serving judges of domestic courts and a number of
 The experts came from 25
countries representing all geographic regions. They included Philip Alston, UN
Special Rapporteur on extrajudicial, summary and arbitrary executions and
Professor of Law at New York University; Edwin Cameron, Justice of the South
African Supreme Court of Appeal; Elizabeth Evatt, former member and Chair of the
Committee on the Elimination of All Forms of Discrimination Against Women; and
Mary Robinson, former UN Commissioner for Human Rights. The full list of
signatories is annexed to the Yogyakarta Principles. The process for the
development of the Yogyakarta Principles is described in O’Flaherty &
Fisher, “Sexual Orientation, Gender Identity and International Human
Rights Law: Contextualising the Yogyakarta Principles” (2008) 8 Human
Rights Law Review 207 at 232-237.
 Yogyakarta Principles at
 Yogyakarta Principles,
 See Ettelbrick & Zeran, The Impact of the Yogyakarta Principles on International Human Rights Law
Development: A Study of November 2007–June 2010 — Final Report http://www.ypinaction.org/files/02/57/Yogyakarta_Principles_Impact_Tracking_Report.pdf;
O’Flaherty & Fisher, “Sexual Orientation, Gender Identity and
International Human Rights Law: Contextualising the Yogyakarta Principles”
(2008) 8 Human Rights Law Review 207 at 237-247.
 S395/2002 v Minister for
Immigration and Multicultural Affairs (2007) 216 CLR 473; A v
Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 300-301.
 (1997) 190 CLR 225 at
293-294 (Kirby J) (footnote omitted).
 As Louise Arbour, UN High Commissioner for Human Rights, observed in “Opening of the Judicial Year 2008 of the European Court of Human Rights” (25 January 2008) http://www.echr.coe.int/NR/rdonlyres/2A9BAFB0-181F-4484-A525-561EFFE08B32/0/Ouverture_Annee_Judiciaire_Louise_Arbour.pdf:
[C]ontrasting conclusions of law between the Court and, for example, the Human Rights Committee on essentially the same questions of law would be rare and exceptional. ...
[I]n circumstances where a substantive legal issue comes before an international body that has already been carefully resolved by another, in my view special attention should be paid to the reasoning and adequate reasons should be expressed in support of any contrary views of the other body before an contrary conclusion of law is reached. Ultimately, the systems of law are complementary rather than in competition with each other.
 Here, intention is not a
reference to the subjective intentions or motivations of the members of
Parliament; rather, the term “intended” is used in the sense
discussed by this Court in Dickson v The Queen (2010) 270 ALR 1 at
- and Zheng v Cai (2009)
239 CLR 446 at 455-456 .
 See, eg, X and Y v. the
Netherlands, 26 March 1985, § 22, Series A no. 91.
 Refer for example
to Pretty v United Kingdom (2346/02) (2002) 35 EHRR 1 at .
 Goodwin v UK (2002)
35 EHRR 18 at .
 See, eg, X and Y v. the
Netherlands, 26 March 1985, § 22, Series A no. 91; Y.F. v.
Turkey, no. 24209/94, § 33, ECHR 2003IX; Glass v. the United
Kingdom, no. 61827/00, § 70, ECHR 2004II.
 See, eg, Derksen v.
Netherlands, Communication No. 976/2001, U.N. Doc. CCPR/C/80/D/976/2001
(2004), Althammer v Austria, Communication No. 998/2001, U.N. Doc.
CCPR/C/78/D/998/2001 (2003); DH v Czech Republic (ECtHR App 57325/00)
(Judgment of 13 November 2007).
 Street v Queensland Bar
Association (1989) 168 CLR 461 at 566 (Gaudron J).
 The Commission notes that
less intrusive surgery may satisfy the requirements of the Act for the purposes
of male to female transsexuals, although that issue is beyond the scope of this
 See paragraph 13 of the
Applicant’s submissions; Western Australia v AH  WASCA 
per Martin CJ (AB 402),  (Buss J)(AB 447).
 It has not been suggested
in the evidence or the judgment of the majority that similar hurdles apply to
the construction of female genitals in male to female transsexuals.
 Western Australia v AH  WASCA  per Martin CJ (AB 430).
 Western Australia v AH  WASCA  per Martin CJ (AB 427).
 Gender identity disorder,
in this regard, is a physical disability that would be protected under the Disability Discrimination Act 1992 (Cth).
  AC 409 at 420.
 This principle has been
expanded upon and clarified in a number of cases, including by McHugh JA in Bermingham v Corrective Services Comm of New South Wales (1988) 15 NSWLR
292 at 302; see also James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 at 82 per Kirby J.