Submission: Commission intervener
Legal
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'
聟 . 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. 聟
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]聟
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]
"聟
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 聟".
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 聟 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聟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. 聟 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聟 "
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 -
聟 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]
"聟
[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 聟 who is the wife of 聟 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:
"聟
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. 聟 [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聟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. 801; The Zollverein (1856) Swab.
96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian
Coal Miners' Association (1908) 6 CLR 309; 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, 118; 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 208; 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 129; 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: "聟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: "聟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 2; 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 185-186;
G Triggs, "Australia's Indigenous Peoples and International Law"
(1999) 23 Melbourne University Law Review 372 at 379-381; 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 236; reproduced in Harris at p.190A-C.
46.
[2001] EWCA Civ 1140, par 160; 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 - 90; 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 L盲nsman 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
71.
(1995-96) 186 CLR 389 at 395-396.
73.
See CDJ v VAJ (1999) 197 CLR 172, par 111; 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 536; 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 24; Births, Deaths
and Marriages Registration Act 1996 (NT), s 28B(1); Sexual Reassignment
Act 1988 (SA), s 7; 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 29;
Births, Deaths and Marriages Registration Act 1996 (NT), s 28H;
Sexual Reassignment Act 1988 (SA), s 8; 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 7; Anti-Discrimination Act 1998 (NT), s 19;
Anti-Discrimination Act (SA), s 29; Equal Opportunity Act 1995
(Vic) s 6; Anti-Discrimination Act 1998 (Tas), s 16; 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
35; Criminal Code 1995 (Qld), Sch 5; 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.