Submission: Commission intervener
Review our interventions in legal cases where we've submitted evidence and arguments to support human rights outcomes in court proceedings and case law.
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA SYDNEY REGISTRY
ON APPEAL from a Judge of the Family Court of Australia
No. EA 97/01
BETWEEN
THE ATTORNEY-GENERAL FOR THE COMMONWEALTH Applicant
and
"KEVIN AND JENNIFER" Respondents
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Intervener
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (INTERVENING)
1. ISSUES
1.1 On 8 February 2002, the Full Court granted leave to the Human Rights and Equal Opportunity Commission ("the Commission") to intervene in this appeal, pursuant to s.92 of the Family Law Act 1975 (Cth) ("Family Law Act").
1.2 These proceedings commenced as an application by the Respondents seeking a declaration of the validity of their marriage, which took place on 21 August 1999. [1] The Appellant intervened in those proceedings to oppose the making of the declaration. The issue in dispute between the parties was whether Kevin was (and is) a 'man' for the purposes of the Marriage Act 1961 (Cth).
1.3 It appears to have been common ground, at least at a superficial level, that the term 'man', as used in the Act, did not have a technical meaning, but rather should be accorded the meaning which it has in everyday parlance. If that analysis is correct, it has certain consequences for the manner in which this Court should approach the question before it, because it has been said that the ordinary meaning of a word is a question of fact.
1.4 Nevertheless, the Appellant complains that the trial judge erred in failing to accept that there were "special considerations applicable to marriage" which were relevant to the construction of the term 'man' and 'woman' in the Marriage Act and that the construction was in some way affected by the assertion that the Marriage Act "operates as a code." [2] Whether those assertions are intended to support the proposition that the term 'man' in the Marriage Act has a technical legal meaning, the establishment of which is a question of law, is unclear. However, it is also suggested that the trial judge departed from the ordinary meaning of the man, and hence fell into error. [3] It will also be necessary to consider the following statement from the same paragraph, namely:
"The law relating to marriage cannot depend on judicial evaluation of individual cases based on extent of surgery, and psychological and social acceptance of a particular gender role."
This statement elides two separate exercises which must be undertaken. The first is to determine, in accordance with the proper construction of the Act, the criteria or characteristics which must be addressed in an individual case; the second is to make factual findings in the circumstances of the case.
1.5 Because the vast majority of people can readily be assigned to one or other sex without giving the matter a second thought, there is a tendency to assume that the ordinary meaning of the term is clear and that it is a non-technical meaning. Consideration of difficult cases, however, suggests that that is not so. Indeed, the definition proposed by the Appellant, following the judgment of Ormrod J in Corbett v Corbett[4], suggests the contrary. In effect, the definition proposed by the Appellant is as follows:
X is a man if and only if X was born with -
(a) male genitalia; (b) male gonads; and (c) male chromosomes.
The definition of 'woman' would presumably be the obverse.
1.6 This proposition gives rise to three separate questions, which illuminate the nature of the approach adopted by the Appellant:
(1) Does it follow that a person who fails at birth to satisfy each of the criteria (commonly referred to as an inter-sex person) is neither man nor woman?
(2) If surgical or other medical intervention is possible, can a person become a man or woman after birth?
(3) Why is each of the three characteristics necessary and why are no others included?
1.7 The answers to these questions are by no means obvious, but the choice can have significant consequences for the human rights of individuals affected. For example, on one view, someone identified as an inter-sex person at birth can never marry.
1.8 For these reasons, it is appropriate to consider the consistency of the approach taken by the trial judge, and that contended for by the Appellant, against the principles of statutory interpretation informed by international human rights law. The Commission submits that these principles support the approach adopted by the trial judge in this case.
2. STATUTORY INTERPRETATION INFORMED BY INTERNATIONAL HUMAN RIGHTS LAW
2.1 It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, so as not to be inconsistent with the comity of nations and established rules of international law. [5] In the USA it has been said that if the legislature intends to effect inconsistency "it must express its intention with irresistible clearness to induce a Court to believe that it entertained it." [6] The High Court has expressed the presumption as operating in cases of ambiguity. Where there is ambiguity, the Court has held, courts should favour a construction of a statute which accords with the obligations of Australia under an international treaty. [7] This is because common sense indicates that Parliament intended to legislate in accordance with Australia's international obligations. [8]
2.2 The concept of 'ambiguity', in this context, is not intended to impose a severe constraint upon reference to international obligations. In principle, it is merely the obverse of the coin of Parliamentary supremacy: if Parliament expresses a clear intention to legislate in consistency with Australia's international obligations, that intention must be given effect by the courts. As noted by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh[9]
"In this context, 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 prevail."
Other members of the Court have confirmed that a narrow conception of ambiguity is to be rejected.[10]
2.3 The law of marriage requires that every person be classified as a man or woman. The fact that the vast majority of people are readily classifiable says nothing about the difficult case. It is the existence of the difficult case that renders ambiguous words which are prima facie clear.
2.4 Section 43 of the Family Law Act incorporates the wording of text found in Article 23 of the International Covenant on Civil and Political Rights ("ICCPR") [11] and Article 10.1 of the International Covenant on Economic, Social and Cultural Rights ("ICESCR"), treaties to which Australia is a signatory. [12] Where a provision of an international human rights instrument is transposed into a statute, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty. [13] The same presumption applies where Parliament has transposed only part of an international instrument, or where the relevant domestic statute follows quite closely the language of the international treaty. [14] In Australia, treaties are interpreted in accordance with articles 31 and 32 of the Vienna Convention on the Law of Treaties. [15] Reliance may be placed on articles 31 and 32 in order to come to an interpretation that is likely to be the same or similar to that which would be construed by an international court or tribunal. [16]
2.5 Further, in construing the provisions of an international human rights instrument, Australian courts should and do give weight to the views of specialist international courts and bodies such as the International Court of Justice, the European Court of Human Rights [17] and the human rights treaty bodies established to supervise implementation by States parties of their obligations under the provisions of particular human rights treaties. [18] Of particular resonance to the present case is the similarity in the wording of Articles 2.1 and/or 26 of the ICCPR, upon which reliance is placed, and Article 14 of the European Convention on Human Rights ("ECHR").[19]
2.6 The Marriage Act did not purport to define the concept of marriage, or man or woman. Accordingly, those terms must be given their ordinary meaning, in accordance with common law principles which will be discussed below. The operation of common law principles is also susceptible to the influence of international customary law and treaty obligations.
2.7 In more recent times, the function of the courts in developing the common law has been freely acknowledged. [20] It is now beyond dispute that in appropriate cases, judges carry out their function by developing and refining the common law. [21] In Mabo [No. 2], Brennan J stated: [22]
"The common law does not necessarily conform with international law, but international is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration."
It has also been said that where the common law is uncertain, the Court should prefer an answer in conformity with international norms. [23] It would be incongruous that Australia should adhere to international human rights treaties such as the ICCPR if Australian courts did not, in some fashion, recognise the entitlements contained therein. [24] In particular, Australia's accession in 1991 to the First Optional Protocol to the ICCPR has brought to bear upon the development of the common law the powerful influence of the Covenant and the international standards it imports. [25]
2.8 To adopt such an approach is merely to recognise that values of justice and human rights (especially equality before the law) are just as much aspirations of the contemporary Australian legal system as they are of the international legal regime. [26] In Mabo [No 2], in holding that an unjust and discriminatory doctrine which refused to recognise the rights and interests in land of the indigenous inhabitants could have no place in the contemporary law of this country, Brennan J confirmed that the expectations of the international community in this regard accord with the contemporary values of the Australian people. His Honour held that it would be contrary both to international standards and to fundamental values of the common law to entrench a discriminatory rule, which because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denied them a right to occupy their traditional lands. [27]
2.9 An important feature of the common law lies in the ability of the courts to mould the law to correspond with the contemporary values of society. As stated by Brennan J in Dietrich: [28]
"Changes in the common law are made whenever a judge thinks a change desirable. There must be constraints on the exercise of the power, else the courts would cross 'the Rubicon that divides the judicial and legislative powers' . The law must be kept in logical order and form, for an aspect of justice is consistency in decisions affecting like cases and discrimination between unlike cases on bases that can be logically explained."
The development of the common law of marriage in conformity with Australia's international human rights obligations would both achieve the objective of keeping the law in logical order and form, and accord with the contemporary values of the Australian people.
3. APPLICATION OF PRINCIPLES OF INTERNATIONAL HUMAN RIGHTS LAW
3.1 The international human rights principles which bear upon the issues before the Court and to which the Court ought have regard in the application of the principles of statutory interpretation are the following:
(a) guarantees of equality before the law and non-discrimination in Articles 2(1) and 26 of the ICCPR; [29]
(b) the right of men and women to marry and found a family in Article 23 of the ICCPR ; [30] and
(c) the right not to be subject to arbitrary or unlawful interference with a person's privacy and family in Article 17(1) of the ICCPR. [31]
3.2 Particular emphasis may be given to the recognition of the inherent dignity and worth of the human person which underpins each of these rights. [32]
Equality before the law and non-discrimination
3.3 Non-discrimination, together with equality before the law and the equal protection of the law without any discrimination, constitutes a basic and general principle relating to the protection of human rights. [33] In addition to the ICCPR, these fundamental principles are recognised in a number of treaties which Australia has ratified. [34] The international legal approach to equality is one of substantive rather than formal equality. [35]
3.4 While Article 2 of the ICCPR limits the scope of the rights to be protected against discrimination to those provided for in the ICCPR (such as Articles 17(1) and 23), Article 26 does not specify such limitations. It does not merely duplicate the guarantee already provided for in Article 2 but provides in itself an autonomous right and prohibits discrimination in law or in fact in any field regulated and protected by public authorities. [36]
3.5 Decisions of the United Nations Human Rights Committee ("UNHRC") indicate that the obligation embodied in the first sentence of Article 26 to respect and ensure the "equal protection of the law" constitutes an obligation to prevent discrimination in the law, in the application of the law or in any action under the authority of the law. [37] It therefore applies to any laws enacted to give effect to any rights regardless of whether those rights are specifically provided for in the ICCPR. [38]
3.6 These principles, whilst not necessarily expressly referred to, are clearly taken into account by case-law both in Australia and internationally which supports a broad definition of the words "man" and "woman". Both the Australian decisions of R v Harris and McGuinness[39] and Secretary, Department of Social Security v SRA[40] support the views that a "sex change" operation can indeed change sex; and that considerations other than biology can be taken into account when determining sex. Each contains passages adverting to the principles of self-determination and respect for dignity. In Harris, Mathews J quoted with approval the following comments of an academic reviewer: [41]
"Refusal to reclassify the sex of a postoperative transsexual seems inconsistent with the principles of a society which expresses concern for the privacy and dignity of its citizens. Failure to redefine sex in the case of the transsexual will create undue hardship for an otherwise troubled person. Society will lose nothing and transsexuals will gain the opportunity to lead "normal" lives if legal sex is determined not by chromosomes or anatomy at birth alone, but by present psychology and anatomy.
Today the transsexual is faced with the choice between two equally undesirable alternatives. If he chooses to live within the sex to which he was born he has, in effect, condemned himself to a perpetual masquerade. If he decides to seek medical reassignment, he subjects himself to the scorn and curiosity of a society and the limbo of no legal sex identity. Both situations are appalling and are inconsistent with the professed enlightenment of our times."
3.7 In SRA, Black CJ concluded: [42]
"Whatever may once have been the case, the English language does not now condemn post-operative male-to-female transsexuals to being described as being of the sex they profoundly believe they do not belong to and the external genitalia of which, as a result of irreversible surgery they no longer have."
3.8 In the same case, Lochkart J noted: [43]
"Most societies have order their laws and affairs on the assumption that people can be classified into two distinct and plainly identifiable sexes. Until fairly recently, transsexualism had not become a problem that concerned the law. Medical advances and other technical developments in the fields of physiology and psychology have seriously challenged the traditional assumptions that men and women are two rigidly distinct sexes. The fundamental questioning of the basic assumptions of human beings relating to their sexual identity is not readily comprehended by people."
His Honour continued: [44]
"Post-operative transsexuals should not be denied by society the inner peace of life which is their right. As R Green said in "Transsexualism and Marriage" (1970) 120 NewLJ 210: 'What does it comfort any of us to insist that an individual shall be a man, when for all the purposes of ordinary life that individual can only be, and be recognised, as a woman? What pride can there be for a law which vetos the attitudes dictated by ordinary humanity?'" ; [45]
Negative attitudes towards transsexuals are based fundamentally on religious and moral views and assumptions which are slowly changing in modern society. There is an increasing awareness today of the importance of the right to privacy, and growing tolerance of a person's identity."
3.9 In Bellinger, Thorpe LJ (in dissent) emphasised the necessity for the legal system to recognize the right to: [46]
" human dignity and to freedom of choice in the individual's private life.".
3.10 The most recent statement of United States' law, by the Kansas Court of Appeals in Gardiner, [47] adverts to an earlier authority, MT v JT. [48] This latter case, in adopting a definition of the words "man" and "woman" which rejected the pure biological test in favour of an approach which recognised post-operative transsexual people, stated: [49]
"Such recognition [of a change of sex] will promote the individual's quest for inner peace and personal happiness, while in no way disserving any societal interest, principle of public order or precept of morality.".
Right to marry and found a family and non-interference with a person's privacy and family
3.11 Article 23 of the ICCPR recognises that the family is the natural and fundamental group unit of society and is entitled to protection by the family and the State. Protection of the family and its members is also guaranteed, directly or indirectly, by other provisions of the ICCPR, such as Article 17 which establishes a prohibition on arbitrary or unlawful interference with the family. [50] The UNHRC does not attempt to give the concept of family a standard definition, as they recognize that that it may differ from State to State. However, the Committee expressly emphasises that when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in Article 23. [51] In addition, the Committee recognises the "existence of various forms of family, such as unmarried couples and their children or single parents and their children" [52] and that State Parties should give protection in domestic law and practice to these various forms.
3.12 Coupled with the right to marry and found a family is the right recognised in Article 17 of the ICCPR of every person to be protected against arbitrary or unlawful interference with his privacy and family, as well as unlawful attacks on his or her honour and reputation. The UNHRC is of the view that the expression "arbitrary interference" can also extend to interference provided for under the law. It has stated that "the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the [ICCPR] and should be, in any event, reasonable in the particular circumstances." [53]
3.13 The Committee has again confirmed that the objectives of the ICCPR require that for the purposes of Article 17, the term "family" be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned. [54]
3.14 These principles have been specifically considered in a number of decisions of the ECHR [55] which relate to analogous provisions in the European Convention. These are specifically Article 8, which respects a person's right to "respect for his family life", and Article 12 which provides that men and women "have the right to marry and found a family, according to the national laws governing the exercise of this right". [56]
3.15 The clearest statement of such principles is found in the well-known dissent of Judge Martens in Cossey v United Kingdom:[57]
"If a transsexual is to achieve any degree of well-being, two conditions must be fulfilled:
1. By means of hormone treatment and gender reassignment surgery his (outward) physical sex must be brought into harmony with his psychological sex;
2. The new sexual identity which he has thus acquired must be recognized not only socially but also legally ".
3.16 Following a criticism of Corbett, Judge Martens grounded his conclusions on a view of human rights: [58]
"The principle which is basic in human rights and which underlies the various specific rights spelled out in the Convention is respect for human dignity and human freedom. Human dignity and human freedom imply that a man should be free to shape himself and his fate in the way that he deems best fits his personality. A transsexual does use those very fundamental rights. He is prepared to shape himself and his fate. In doing so he goes through long, dangerous and painful medical treatment to have his sexual organs, as far as is humanly feasible, adapted to the sex he is convinced he belongs to. After these ordeals, as a post-operative transsexual, he turns to the law and asks it to recognized the fait accompli he has created. He demands to be recognized and to be treated by the law as a member of the sex he has won; he demands to be treated without discrimination, on the same footing as all other females, or, as the case may be, males. This is a request which the law should refuse to grant only if it truly has compelling reasons, for in the light of what has been said above such a refusal can only be qualified as cruel. There are no such reasons."
3.17 Chisholm J also quoted Judge Martens' comments concerning the situation of transsexual people under United Kingdom law: [59]
"Sexual identity is not only a fundamental aspect of everyone's personality but, through the ubiquity of the sexual dichotomy, also an important societal fact. For post-operative transsexuals sexual identity has, understandably, a very special and sensitive importance because they acquired theirs deliberately, at a high cost in mental and bodily suffering. To be condemned to live, as far as that identity is concerned, in opposition to and thus "outlawed" by their country's legal system must therefore cause permanent and acute personal distress to post-operative transsexuals in the United Kingdom."
3.18 The majority in Cossey[60] essentially followed the earlier case of Rees v United Kingdom[61] in which the ECHR dismissed the claim made by a female to male transsexual person that the failure of the State to alter his birth certificate was in breach of Articles 8 [62] and 12, [63] and relied again on the margin of appreciation accorded to the State to conclude that a departure from Rees was not warranted. However the majority also stated that:
"The Court would, however, reiterate the observations it made in the Rees judgment (p 19, para 47). It is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review".
3.19 In the later case of Sheffield and Horsham v United Kingdom, [64] the Court held, this time by a majority of two, that the UK was not in breach of its positive obligations under Article 8 of the European Convention to respect the applicant's private and family life for failing to give legal recognition as a member of that person's reassigned sex. The case also failed under Article 12. [65] The majority again relied on the margin of appreciation argument as well as the decision in Rees.
3.20 Judge Van Dijk, one of the dissenting judges, stated in relation to Article 8:
"... most importantly, what is at stake here is the fundamental right to self-determination: if a person feels that he belongs to a sex other than the one originally registered and has undergone treatment to obtain the features of that other sex to the extent medically possible, he is entitled to legal recognition of the sex that in his conviction best responds to his identity. The right to self-determination has not been separately and expressly included in the Convention, but is at the basis of several of the rights laid down therein, especially the right to liberty under Article 5 and the right to respect for private life under Article 8. Moreover, it is a vital element of the "inherent dignity" which, according to the Preamble of the Universal Declaration of Human Rights, constitutes the foundation of freedom, justice and peace in the world." [66]
In relation to Article 12, he stated:
"Since, in my opinion, Article 8 requires legal recognition of gender reassignment following a surgical operation, this implies that the applicants have to be considered as persons of the new sex for legal purposes, including the application of Article 12.Therefore, even if one starts from the presumption that Article 12 has to be considered to refer to marriages between persons of the opposite sex - a presumption which still seems to be justified in view of the clear wording of the provision the applicants should be treated as women under Article 12, and should be allowed to marry men. Only in that way is their choice of a new sexual identity socially respected and legally recognised." [67]
3.21 These issues will be reconsidered by the ECHR in the near future in the matters of Goodwin v UK and I v UK. [68][69]
4. PRINCIPLES OF STATUTORY CONSTRUCTION UNDER DOMESTIC LAW
4.1 Contrary to the suggestion of the Appellant, [70] it is rarely helpful to speak of "general rules" of statutory construction. Rather, there are a range of principles, one or a number of which may be given primacy in a particular situation. The use of international human rights as a basis for resolving statutory ambiguity, or developing the common law, should not, of course, be advanced in isolation from other relevant principles of construction. Indeed, it might seriously limit the weight which could properly be placed on such international obligations, if they tended in a contrary direction to other relevant principles of construction. In fact they do not. Just as in Mabo [No. 2] the High Court placed weight upon contemporary acceptance of the principle of equality before the law, so in the present case, a similar approach is in conformity with the principle that ordinary words should be given their current meaning, rather than a meaning which is now seen as anachronistic. To make good this proposition, it is necessary to address other principles which have been raised as potentially applicable in the present circumstances.
4.2 As was noted by the Full High Court in Collector of Customs v Agfa-Gevaert Ltd[71] there is a tension between the proposition that "the ordinary or non-legal technical meaning of a word is a question of fact" and the proposition that "the effect or construction of a term whose meaning or interpretation is established is a question of law." [72] However, given the nature of the appeal to this Court, the significance of this possible distinction does not arise. [73] However, what may be significant is the question whether a word used in the statute with its ordinary meaning must be taken to have a meaning which is frozen at the date of commencement of the statute, or whether it should be given its current meaning, at the time of judgment.
4.3 The trial judge held that "ordinary words are generally to be given their ordinary contemporary meaning." [74] That approach is identified as a presumption as to legislative intention, described by Francis Bennion as an "updating construction to be applied" presumption. [75] Pearce and Geddes identify a "contemporaneous exposition" as having "a restraining effect on the courts". [76] The authors identify this principle in the following terms:
"This can arise in two contexts. First, an appeal court will be reluctant to overturn a long-standing decision of a lower court - not only because people will have come to rely on it but also because such a decision represents the views of the judges who by proximity and time were more aware of the reasons underlying the passage of the Act. It is clear, however, that this approach will only prevail where the court is in doubt as to the meaning of an Act and, in such cases, it would seem the wiser course anyway to follow the accepted interpretation. Secondly, codes state all the law at the time when they are made. Accordingly, the words used should be interpreted in accordance with contemporaneous expositions of the law "
4.4 The first principle has no relevant application in the present case. The second principle, relied on by the present Appellant before Chisholm J, cites as authority Corporate Affairs Commission of NSW v Yuill. [77] In that case, it was necessary to decide whether the statutory power conferred on a police officer executing a search warrant overrode any existing right based on legal professional privilege to resist disclosure of the document. According to the law, as declared by the High Court, at the date of commencement of the statute, no such right existed. Thereafter, the High Court reconsidered the extent and scope of professional privilege, providing the potential existence of professional privilege in circumstances where a non-judicial statutory power was being exercised.
4.5 The trial judge identified Yuill as being the strongest authority in support of the present Appellant's argument. [78] The Appellant now contends that the trial judge fell into error "in finding that there was no general rule of construction that ordinary words should be given the meaning they had at the time the legislation was passed." [79] It is clear that his Honour made no relevant error, once the discussion in his Honour judgement is read as a whole. On the other hand, the Appellant does not identify this complaint as a ground of appeal, no doubt because he also asserts that there has been no change or "adaptation" in the meaning of the word "man" since 1961.
4.6 Nevertheless, it is necessary to address this complaint because the submission of the Attorney relies upon the following proposition: [80]
"In an area of the law like marriage it is not appropriate for a court to give an interpretation to a word or concept that does not reflect the clear understanding of Parliament at the time of enactment of the original legislation."
It is also implicit in ground 7, which contends that only Parliament could provide, by legislation, a basis for a positive answer to the declaration sought.
4.7 First, Yuill is not authority for the "general rule" of construction for which the Appellant contends. The principle identified by Brennan J, one of the majority in Yuill, was stated in the following terms: [81]
"And so, the answer to our first question is that the code should be construed in the light of the law as it stood when the code came into force - unless there be something in the code which is inconsistent with the operation that would thus attributed to the code."
That proposition may be accepted: it reflects one of a number of maxims or presumptions, which may be of assistance in relevant circumstances as a principle of statutory construction. Before leaving Yuill, however, it is worth noting that no other member of the Court applied that principle in that case. Thus, Dawson J (with whom Toohey J agreed) noted that such an assumption of legislative intention "would not carry the argument of the Corporate Affairs Commission far enough." [82] His Honour continued:
"For it is one thing to say that the legislature accepted the law as it thought it to be; it is quite another thing to speculate upon whether the legislature would have sought to change the law had it realised that it went as far as [a later decision of the Court] held it did.
4.8 Furthermore, the question in Yuill concerned the scope of the phrase "reasonable excuse", as a basis for resisting seizure of documents. Dawson J held that that phrase "more aptly refers to any physical or practical difficulties in complying with a requirement" and did not embrace legal professional privilege. In dissent, Gaudron J said of that phrase that it was wide enough to cover privilege. [83] Her Honour continued:
"And, as a matter of ordinary grammar and by reason of the nature of proscriptive provisions, the expression has an ambulatory operation so that it refers to such answer, defence, justification or excuse acknowledge by the law as at the time of the refusal or failure in question."
McHugh J adopted a similar approach. [84] Accordingly, four of five members of the Court did not apply the "general rule" now relied upon even in the circumstances of Yuill where the question of law had been determined by the highest court in Australia prior to the commencement of the statutory provision. [85]
4.9 To say that a term has an ambulatory operation does not mean that its meaning necessarily changes over time. Thus, in Davis v The Commonwealth[86] a question arose as to whether the Bi-Centennial Authority could rely upon a power conferred pursuant to s.51(xviii) of the Constitution with respect to "copyright, designs and trademarks" to protect certain aspects of its activities. A majority of the Court in a joint judgment, Mason CJ, Deane and Gaudron JJ considered whether the scope of trademark protection had been expanded since the decision of the Court in the Union Label Case in 1980. [87] Their Honours made the following observation: [88]
" [T]he plaintiffs conceded that there may have been an increase in the denotation of the power since that case was decided. By way of illustration, the concept of a trademark now extends to a mark that distinguishes services as well as goods. If we bear this development in mind, it is possible to say, consistently with both the majority and minority judgments in the Union Label Case, that two essential characteristics of a trademark are (a) that it has the capacity to distinguish particular goods and services; and (b) that the proprietor of the mark has some connection with the goods and services."
4.10 This approach provides a second answer to the complaint about the reasoning of the trial judge in the present case. Thus, following the example of Corbett v Corbett[89] his Honour had reference to physical characteristics which provided a basis for distinguishing a man from a woman. There was no authority in this country (or in England) prior to the commencement of the Marriage Act, which determined, whether as a matter of fact or law, the criteria which should properly be applied. The three characteristics relied upon in Corbett as examples of dimorphism adopted an approach which discarded other characteristics as not having an appropriate biological element. Nevertheless, his Honour concluded, on the basis of the unchallenged medical evidence: [90]
"But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely 'psychological factors', and on this base distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biological and psychological)."
4.11 In particular, his Honour relied upon dimorphism in areas of the brain which provided a physiological basis upon which transsexual people experienced themselves of being of one sex rather than another. Accordingly, his Honour did not reject as irrelevant the physiological characteristics relied upon in Corbett, although he did reject the unreasoned restriction of those characteristics to the three criteria based on chromosomal, gonadal and genital tests. His Honour also rejected the proposition that these criteria must be identified once and for all at the date of birth (at the latest) of a baby. Further, having rejected an underlying premise upon which the selection appears to have been made in Corbett, his Honour also rejected the need to consider only physiological dimorphism.
4.12 Nor does his Honour appear to have considered that the concept of "marriage" had changed in its fundamental nature since the commencement of the Marriage Act.
5. APPLICATION OF PRINCIPLES TO ARGUMENTS FOR APPELLANT
5.1 On the basis of the principles set out above, it is possible to assess the validity of the arguments presented by the Appellant. In doing so, it is not intended to repeat the submissions made by the Respondent, nor the reasoning of the trial judge which the Respondent has carefully identified and supported. Rather, it is sufficient for present purposes to indicate how the principles identified above should apply in relation to the arguments raised by the Appellant in the present case.
5.2 At the heart of the Appellant's argument is the proposition that, whatever else may be a sufficient basis for differentiating sex in other social and legal circumstances, the institution of marriage requires attention to what are referred to as "special considerations" which require an approach that focuses entirely upon a congruence of three biological factors. The Appellant seeks support for this approach from the judgment of La Forest J in Egan v Canada.[91]
5.3 However, it is dangerous to cite a passage out of context, particularly when relying upon it for a different purpose to that which it originally served. Thus, the issue before the Supreme Court of Canada was whether the failure of the Canadian Parliament to provide a spousal allowance in circumstances where the other party to the relationship received an old age pension constituted discrimination contrary to s.15 of the Canadian Charter of Rights and Freedoms. In that case, the relevant criterion was based on an existing marital relationship, whereas the applicants were involved in a long-standing homosexual relationship. Eight members of the Court divided evenly on the question of whether there was discrimination, contrary to s.15(1) of the Charter. The result, in favour of the Government, depended on the judgment of Sopinka J who agreed that there was a contravention of s.15, but found that the Government was entitled to allocate pensions on the basis that it did because the infringement was saved under s.1. In other words, the right to equal protection under the law conferred by s.15 was subject to a limit prescribed by law and demonstrably justified in a free and democratic society. Accordingly, on the question of present relevance, La Forest J was in a minority. Further, the issue was not whether a transsexual person was a "man" for the purpose of marriage, but whether the government could distinguish between a relationship of co-habitation involving two men and a heterosexual marriage.
5.4 Furthermore, there is a danger in reliance on a concept of marriage which is said to be "a reflection of long-standing, philosophical and religious tradition." [92] Such terminology can readily disguise assumptions and stereotypical judgments. Thus, as the trial judge pointed out, in the present case, although a social or historical explanation can be given for the institution of marriage, it is nevertheless wrong to say that "the validity of [a] marriage depends on some physical capacity for procreation". [93] Even if, in times past, it could have been said the law made an assumption, based on technological inability to determine otherwise, that couples who wished to marry should be treated as willing and able to procreate, there is no basis for suggesting that the assumption defined the limits of the legal concept. In other words, once the ability to make factual determinations of such issues arose, the law did not require that such factual matters be identified and be applied in individual cases. Accordingly, the underlying rationale of procreation can be acknowledged, without it being identified as a requirement of or constraint upon the institution of marriage.
5.5 It is perhaps worth noting that even if the Appellant's argument were accepted on its face, it provides no logical support for the proposition that the capacity to marry must be determined at birth. Such a constraint would be irrelevant in relation to the acknowledged purpose of procreation. Furthermore, it is impossible to ignore the fact that many babies who, in days gone by, would have died shortly after birth or might have been permanently infertile, can survive, and in some cases have a chance of fertility restored, by appropriate medical intervention. An example of such a case may be found in In an application by the Director-General for the Department of Community Services (NSW); Re M. [94] The child in question had multiple genital abnormalities and required complex surgical intervention, simply to live. His Honour noted that:
"The child has normal XY chromosomes, but has ambiguous external genitalia and the degree of genital malformation is such that it is not possible to surgically create a functional penis, and major surgery will be required to reconstruct external female type genitalia."
The medical evidence was that "the only appropriate choice in this case is an assignment of female gender".
5.6 It is also an inherent part of human development that a major level of hormonal development does not take place until puberty. The logic of placing primary emphasis on the capacity to procreate is therefore entirely inconsistent with assigning gender at birth. On the other hand, it does not follow, of course, that the trial judge was wrong to reject an assignment of gender at birth as a precondition to being a man or a woman.
5.7 Ground 6 in the Notice of Appeal alleges that the trial judge erred "in rejecting that there were special considerations applicable to marriage" which determined the meaning of "man" and "woman" in the Marriage Act. In truth the trial judge did not reject the existence of such "special considerations" in the sense that his Honour accepted the historical significance of the matters identified by the Appellant. His Honour was not persuaded, however, that they had the effect relied upon by the Appellant, nor that they assisted in answering the specific question before him. However, the concept of "special consideration" has a further relevance, rather different to that relied upon by the Appellant in his written submissions.
5.8 The use of the term "special considerations" appears to have derived from an attempt to explain why different results could properly be reached for the purpose of defining who was a "male person" for the purposes of s.81A of the Crimes Act 1900 (NSW) [95] and for the purposes of determining entitlement to a social security benefit payable to "a woman who is the wife of an invalid pensioner" for the purposes of the Social Security Act 1947 (Cth). [96] Similarly, it was necessary to distinguish the principles underlying the Births, Deaths and Marriages Registration Act 1995 (NSW) which expressly provides for a birth certificate to be issued showing the present (altered) sex of a person who has undergone sexual reassignment surgery. [97]
5.9 It is also relevant to note that the trial judge discussed a number of Australian legal and administrative provisions relating to people with a transsexual history . [98] His Honour expressly stated that in considering these provisions, he was not attempting to be comprehensive and accepted the Appellant's submission that the legislation (presumably referring to birth registration legislation and anti-discrimination legislation making express provision for transsexual people) does not exist in all jurisdictions. Whilst that is a correct statement, it is important to note that in all but three Australian states (Queensland, Victoria and Tasmania), legislation is in place which provides for transsexual people to have their record of birth altered to reflect their reassigned sex. [99]
5.10 A person who has had their record of birth altered is, for the purposes of the law of the relevant state or territory "a person of the sex as so altered." [100] Each state and territory that provides for a person's change of sex to be recorded on the relevant register also allows that person to obtain an interstate recognition certificate. This means, for example, that where another jurisdiction legally recognises a change of sex on the register of that jurisdiction, NSW will also recognise that person's new legal status. [101]
5.11 Further, in all but one Australian state (Queensland), anti-discrimination legislation prohibits discrimination, [102] and in some cases, vilification, [103] on the basis that a person has a transsexual history. The Second Reading Speeches relating to the relevant New South Wales legislation indicate that the proposed amendments brought about to include the ground of "transgender" status as a separate ground of discrimination were necessary as there was:
" strong evidence to show that transgender persons are subject to high levels of discrimination in their daily lives, including discrimination in employment, and in their access to services. Transgender persons also experience exceptional levels of verbal and physical abuse and violence." [104]
5.12 Other examples of the recognition provided to people with a transsexual history include various state and territory legislation that has been amended to add certain definitions relating to sexual assault offences to make it clear that such offences can also be committed upon a transsexual person [105] and in New South Wales, beneficiaries under a will are not disinherited merely because they are a "transgender" person, unless the will expressly provides otherwise. [106]
5.13 His Honour also noted [107] that the Crimes Act 1914 (Cth) was amended by the Crimes Amendment (Forensic Procedures) Act 2001(Cth) in order, amongst other things, to recognise the rights of people with a transsexual history (referred to as "transgender persons") in relation to certain forensic procedures. [108] The extrinsic material recognises that the amendments were "important so that when carrying out a forensic procedure on a transgender person, particularly an intimate forensic procedure, that persons (sic) privacy can be respected by having the procedure performed by an appropriate person." [109] It is also relevant to note that in providing the definition of "recognised transgender person", the Crimes Act on the definition provided by the state and territory legislation [110] which enables a person to have their sex altered on the relevant record.
5.14 His Honour was of the view that legislative provisions other than those that were before him for consideration were of "limited relevance" for the purpose in hand. His Honour noted, however, that the provisions supported the view that "there is no insuperable objection to the law recognising the changed sex of a person who had undergone a sex reassignment procedure."
5.15 There are, in any event, two other developments in the law since 1961 which cast doubt upon the appropriateness of the approach sought to be adopted by the Appellant in identifying "special considerations" relating to marriage. First, the Sex Discrimination Act 1984 (Cth) ("the SDA") proscribes discrimination across wide areas of public life, including powers and functions exercised under a Commonwealth law or for the purposes of a Commonwealth program, [111] on the grounds of marital status. [112] That proscription has no direct relevance to the proper understanding of who is a man or a woman, for the purposes of the Marriage Act, [113] but it affects the legal significance of the institution of marriage in Australia. Thus, whatever the historical origins of the institution, the general principle is that marital status (being the state of being married or otherwise) is an irrelevant consideration for most public purposes . [114] That fact makes it unlikely that, as a matter of law, there are "special considerations" which require any restrictive definition to be given to the term "man" for the purposes of the Marriage Act.
5.16 Secondly, care must be taken in treating some particular physical characteristic as sufficient to deprive a man or woman of the status of having a particular sex. Thus, the Disability Discrimination Act 1992 (Cth) proscribes discrimination on the basis of disability in a similar range of public functions. Again, this Act may have no direct relevance to the question to be determined by the Court, but it does suggest that caution should be applied in identifying physical characteristics, capable of functioning in a particular way, as a critical element in the status of an individual.
5.17 In the end, it is necessary to return to the fact that there is no definition of 'marriage' in the Marriage Act, and thus no basis in the Act for imposing constraints on who may be identified as a 'man' or a 'woman' for the purposes of the Act. Although, as the Appellant notes, it was not the practice at the time of the passage of the Marriage Act to have an explanatory memorandum to a Bill, [115] the Hansard debates reveal the consideration given to the concept of "marriage" in the Bill.
5.18 In the Senate, an amendment to provide a legislative definition of "marriage" was proposed and rejected. It is apparent that the reasons for the rejection included the potential exclusivity of such a definition. For example, Senator O'Flaherty, having referred to marriage of Indigenous people and those according to the customs of a "number of religious denominations" said: [116]
"I cannot see why a definition such as is suggested by Senator Hannan should be inserted in this bill when, as the Minister has stated, such a definition would not cover everybody. If the suggested definition is included in the legislation, then the people to whom I have referred will be in trouble."
It is also apparent that it was intended to allow the common law to continue to govern the matter. For example, Senator O'Flaherty commented further: [117]
"It has been left to the courts to define marriage, so why should we attempt to insert a definition in this legislation?"
Senator Vincent said: [118]
"He [Senator Hannan] is attempting to restrict the meaning of marriage to the present meaning or marriage. That is why I do not like the definition. He is restricting the definition of marriage to the actual meaning of the word "marriage" as now defined by the courts. [T]here are other definitions of marriage which are recognised and if you attempted to put all of them into one definition you would virtually be writing the common law meanings of the expression "marriage" into the bill."
It is also relevant to note Senator Gorton's statement that what is now s.46 of the Marriage Act "does not have the force of law to define a marriage in the sense in which the insertion of a definition, such as Senator Hannan wishes to insert, would have I want all honourable senators to know that clause 46 is not a buttress for the argument for inserting this particular definition in the bill" . [119]
5.19 It was undoubtedly recognized, in 1961, that Australia was a society which incorporated many different cultures and religions, with different views about the institution of marriage. The recognition of cultural and ethnic diversity is no doubt far better and more widely appreciated today. References to what is "understood in Christendom" [120] in this context are not found in the last two decades and appear out of place. There is, accordingly, a need for caution in adopting imprecise 'historical' or 'philosophical' considerations in construing the current law, lest one inadvertently import constraints which conflict with modern recognition of human rights, based on principles of non-discrimination and equality before the law.
Dated: 13 February 2002 John Basten QC Frederick Jordan Chambers
1. Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074.
2. See submissions, pars 15 and 16.
5. Leroux v Brown (1852) 12 C.B. ̡ The Zollverein (1856) Swab. ` The Annapolis (1861) Lush. ħ Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR ĵ Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes (7th Ed, 1929) at 127.
6. Murray v Charming Betsy (1804) 2 Cranch 64, v also United States v Fisher (1805) 2 Cranch 390.
7. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.
8. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J.
9. (1994-95) 183 CLR 273 at 287.8.
10. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ. Generally A Simpson & G Williams, "International Law and Constitutional Interpretation" (2000) 11 Public Law Review 205 at Ð J Spigelman, "Access to Justice and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.
11. Article 23.1 ICCPR states: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State"; Article 23.2 of the ICCPR states: "The right of men and women of marriageable age to marry and to found a family shall be recognized"; Article 10.1 of the ICESCR provides: "The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.".
12. See Senator Murphy discussing the Family Law Bill, Senate Hansard, 3 April 1974, pp.640-642.
13. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-31 per Brennan CJ.
14. De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 675 per Kirby J.
15. Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 535-36 per Gummow J; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ and 251-256 per McHugh J.
16. Sir Anthony Mason, "International Law as a Source of Domestic Law" in B Opeskin & D Rothwell, International Law and Australian Federalism, Melbourne University Press 1997, 210 at 221.
17. For example Dietrich v The Queen (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; John Fairfax Publications v Doe (1995) 37 NSWLR 81 at 90 per Gleeson CJ; Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 253-255 per HcHugh J; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at 213-214 per Kirby J.
18. See as examples of references to the jurisprudence of human rights treaty bodies Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para [38] per Kirby J.
19. Article 14 of the ECHR provides that: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.". It should be noted, however, that Article 14 of the ECHR guarantees non-discrimination only in relation to other Convention rights whereas Article 26 of the ICCPR is a free-standing guarantee of non-discrimination in relation to all rights.
20. Dietrich v The Queen (1992) 177 CLR 292 at 319 per Brennan J.
21. The Hon Murray Gleeson AC, Boyer Lectures 2000: The Rule of Law and The Constitution (ABC Books 2000) at The Hon Michael McHugh, "The Law Making Function of the Judicial Process" (1988) 62 Australian Law Journal 15, 116.
22. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J, at 319-321 per Brennan J, at 360 per Toohey J; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 499 per Mason CJ and Toohey J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288-289 per Mason CJ and Deane J. Cf submissions of the Attorney-General of the Commonwealth, pars 3.8, 4.3.
23. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 687-88 per Gleeson CJ, at 699, 709-710 per Kirby P.
24. Dietrich v The Queen (1992) 177 CLR 292 at 321 per Brennan J.
25. Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J.
26. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).
28. Dietrich v The Queen (1992) 177 CLR 292 at 320 per Brennan J.
29. Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26: All 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.
(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (2) The right of men and women of marriageable age to marry and found a family shall be recognized.
31. Article 17(1): No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour or reputation.
32. See the Preamble to the Charter of the United Nations which states that the peoples of the United Nations have determined: " to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small"; the Preamble to the Universal Declaration of Human Rights ("UDHR") which provides that: "[w]hereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" and Article 1 of the UDHR which states that: "[a]ll human beings are born free and equal in dignity and rights."; and the Preambles to both the ICCPR and the International Covenant on Economic, Social and Cultural Rights ("ICESCR") which state that: " in accordance with the principles proclaimed in the Charter of the United Nations , recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".
33. Human Rights Committee, General Comment 18 (1989), par 1 in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 103. While the decisions or "views" of the UN human rights treaty bodies are not binding on States, they are significant being those of a Committee composed of experts from a wide range of countries: H Burmester, "Impact of Treaties and International Standards" (1995) 17 Sydney Law Review 127 at 145.
34. International Covenant on Economic, Social and Cultural Rights ("ICESCR"), Article Convention on the Rights of the Child, Article 2. See also Universal Declaration of Human Rights, Articles 2,6 and 7.
35. W McKean, "The Meaning of Discrimination in International and Municipal Law" (1970) 44 British Yearbook of International Law 178 at 185-º G Triggs, "Australia's Indigenous Peoples and International Law" (1999) 23 Melbourne University Law Review 372 at 379-Ž Zwaan-de Vries v Netherlands (182/84) 9 April 1987.
36. Human Rights Committee, General Comment 18 (1989), par 12.
37. See, for example, Broeks v Netherlands Communication No 172/1984, UN Doc A/42/40 (1987).
38. Broeks v Netherlands, 12.4 cited in S. Joseph, J. Schultz and M. Castan (2000) International Covenant on Civil and Political Rights: Cases, Material and Commentary, Oxford University Press, Oxford, p523.
41. From "Transsexuals in Limbo: The Search for a Legal Definition of Sex" (1971) 31 Maryland L Rev ì reproduced in Harris at p.190A-C.
46. [2001] EWCA Civ 1140, par and approving, at par 159, Lord Reed's views on the matter.
47. At p.17: "This court looks with favour on the reasoning and the language of MT v JT".
48. 140 NJ Super. 77, 355 a.2d 204, cert denied 71 NJ 345 (1976).
49. MT v JT at 89 - Z quoted in Gardiner at p.11.
50. Human Rights Committee, General Comment 19 (1990), par 1 in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 106.
53. Human Rights Committee, General Comment 16 (1988), par 4 in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 99.
55. Referred to by the trial judge at pars 194 to 204.
56. While the submissions of the appellant comment (at par 51 of the submissions) that the ECHR has consistently refused to say that the application of the Corbett test in the context of marriage offends the European Convention, they omit to note that the "margin of appreciation" which is accorded to contracting States under that Convention has been consistently relied on by the majority judges in those cases to conclude, ultimately, that there was no breach of the relevant articles. It is important to note that such "margin of appreciation" arguments are not relevant to the ICCPR: See Länsman v Finland Communication 511/92 UN Doc CCPR/C/52/D/511/1992 of 8 November 1994 and Joseph et al, The International Covenant on Civil and Political Rights (2000) OUP at pages 17 and 394 (par 18.21).
57. [1990] 13 EHRR 622. Referred to by Chisholm J at pars 198 to 202.
58. At par 2.7 of the judgement.
59. At par 201 of Chisholm J's judgement.
60. Which decided by a majority of ten votes to eight that there was no violation of Article 8 and by fourteen votes to four that there was no violation of Article 12.
66. At page 35 of the judgement.
67. At page 38 of the judgement.
68. Application numbers 28957/95 and 25680/94 respectively. The applicants in those cases allege that the UK is in breach of Articles 8, 12, 13 and 14 of the European Convention as a result of its failure to grant full legal recognition of their reassigned gender identity. It is also relevant to note that Liberty, a UK human rights organisation, was granted permissions to intervene in these cases by way of an amicus brief. Liberty has filed with the Court a survey of the legal rights of transsexual people in member states of the Council of Europe and other jurisdictions. The information submitted by Liberty indicates that of the member states of the Council of Europe gender reassignment is currently legally performed in 73% of member states and not legally performed in 7% of states. The position is unclear in relation to 20%. Transsexual people in 23 of the states can alter their birth certificates (Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Greece, Italy, Latvia, Luxembourg, Moldova, the Netherlands, Norway, Poland, Portugal, the Russian Federation, Slovakia, Spain, Sweden, Switzerland, Turkey and the Ukraine)(equating to 59% of member states which permit such a change and 17% which do not). Of these, 19 states (Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Greece, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden, Switzerland, Turkey and the Ukraine) permit transsexual people to marry following surgery (equating to 54% of member states which permit marriage following reassignment surgery and 14% which do not). In addition, Estonia and Iceland allow transsexual people to marry following surgery but not to alter their birth certificate. Only Albania, Andorra, Ireland and the United Kingdom, positively prohibit change to birth certificates. Of the member states where gender reassignment is legal and publicly funded, only the United Kingdom and Ireland will not give full legal recognition to the new gender identity.
69. It is also relevant to note that that the UK Government has recently announced that Ministers are working on a report to allow a change in the law to grant full legal recognition to transsexual people or, at the very least, a right to have a change of gender recognised by the grant of a new birth certificate. See https://humanrights.gov.au/our-work/commission-general/broken-link
71. (1995-96) 186 CLR 389 at 395-396.
73. See CDJ v VAJ (1999) 197 CLR 172, par o see also Allesch v Maunz (2000) 203 CLR 172.
74. Judgement, par 127 at AB 35, referring to NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509 at 514 (Kitto J).
75. F. Bennion, Statutory Interpretation (1984) pp.355 ff.
76. Statutory Interpretation in Australia (5th ed, 2001) par 4.8.
77. (1990-91) 172 CLR 319 at 321-322 (Brennan J).
78. Judgment, par 124 at AB 34.
85. Support for an ambulatory approach to issues of constructions of the Constitution, may be found in Re Refugee Review Tribunal; Ex Parte Aala (2001) 75 ALJR 52 at pars 25 (Gaudron and Gummow JJ, Gleeson CJ agreeing), 135-137 (Kirby J), 158-166 (Hayne J).
90. Judgment, par 270 at AB 70.
91. [1995] 2 SCR 513 at Ș 124 DLR (4th) 609 at par 21: see Submissions, par 26.
93. Judgment, par 285 at AB 73.
94. Judgment of Hodgson CJ in Eq, matter no. 4944 of 1998 (8 December 1998).
95. See R v Harris and McGuiness (1988) 17 NSWLR 158.
96. See Secretary, Department of Social Security v SRA (1993) 43 FCR 299.
97. See Judgment, pars 162 and 163 at AB 45.
98. See Judgment pars 161 to 174.
99. The following statutes enable a person with a transsexual history to make an application to alter the register to record a change of sex. Each requires that the person has undergone sex reassignment surgery: Births, Deaths and Marriages Registration Act 1995 (NSW), s 32B; Births, Deaths and Marriages Registration Act 1997 (ACT), s Births, Deaths and Marriages Registration Act 1996 (NT), s 28B(1); Sexual Reassignment Act 1988 (SA), s Gender Reassignment Act 2000 (WA), s 14 (note that the WA legislation has been passed by the WA Parliament but has not yet been proclaimed).
100. Births, Deaths and Marriages Registration Act 1995 (NSW), s 32I(1); Births, Deaths and Marriages Registration Act 1997(ACT), s Births, Deaths and Marriages Registration Act 1996 (NT), s 28H; Sexual Reassignment Act 1988 (SA), s Gender Reassignment Act 2000 (WA), s 16 (not yet proclaimed).
101. See Births, Deaths and Marriages Registration Act 1995 (NSW), ss 32I(2) and (3).
102. The following statutes provide coverage for people who have a transsexual history: Anti-Discrimination Act 1977 (NSW), ss 38A, 38B; Discrimination Act 1991 (ACT), s Anti-Discrimination Act 1998 (NT), s Anti-Discrimination Act (SA), s Equal Opportunity Act 1995 (Vic) s Anti-Discrimination Act 1998 (Tas), s Gender Reassignment Act 2000 (WA), Schedule 2 (not yet proclaimed).
103. Anti-Discrimination Act 1977 (NSW), ss 38S, 38T; Anti-Discrimination Act 1998 (Tas), s 19.
104. Mr Yeadon, Legislative Assembly Hansard, p643, 1 May 1996, in relation to the Transgender (Anti-Discrimination and Other Acts Amendment) Bill.
105. Crimes Act 1900 (NSW), ss 61H and 80A; Crimes Act 1958 (Vic), s # Criminal Code 1995 (Qld), Sch Criminal Code Act 1983 (NT), s 1.
106. Wills, Probate and Administration Act 1898, s 14.
108. Section 23WA of the Crimes Act.
109. Revised Explanatory Memorandum to the Crimes Amendment (Forensic Procedures) Bill, 30 August 2000.
112. Similar provisions appear in laws of all States and Territories.
113. In part because similar definitions of sex are required for the purposes of the phrase "de facto spouse" in the SDA.
114. For example, many of the rights that accrue to married persons are also available to persons in a de facto relationship: see for example, De Facto Relationships Act 1991 (NT); De Facto Relationships Act 1996 (SA); Social Security Act 1991 (Cth); Property (Relationships) Act 1984 (NSW); Wills, Probate and Administration Act 1898 (NSW); Property Law (Amendment) Act 1998 (Vic); Succession Act 1981 (Qld) Local Government Act 1995 (WA) and Maintenance Act 1967 (Tas)
115. Submissions of the Attorney-General for the Commonwealth, footnote 10.
116. Senator O'Flaherty, Senate Hansard 18 April 1961, p547.
118. Senator Vincent, Senate Hansard 18 April 1961, p.550-551.
119. Senator Gorton, Senate Hansard 18 April 1961, p.544.
120. See In the marriage of C and D (1979) 28 ALR 524, 528 (35).
Last updated 6 March 2002.