Attorney General for New South Wales v FJG [2023] NSWCA 34

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney General for New South Wales v FJG [2023] NSWCA 34 Hearing dates: 6 December 2022 Date of orders: 6 March 2023 Decision date: 06 March 2023 Before: Bell CJ at [1] Ward P at [2] Beech-Jones JA at [3] Decision: (1) In respect of the questions referred to the Court by the Civil and Administrative Tribunal on 19 August 2022 pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW), "unnecessary to answer". (2) Declare that, on its proper construction, s 45(1) of the Births, Deaths and Marriages Registration Act 1995 (NSW) ("NSW Act") does not empower the Registrar of Births, Deaths and Marriages of New South Wales ("Registrar") to correct an entry in the Register maintained under s 43 of the NSW Act (the "Register") about a marriage solemnised in New South Wales in September 2009 (the "marriage"): (a) where the correction would cause the particulars contained in the entry for the marriage in the Register to be inconsistent with those set out in the official certificate of marriage prepared and signed under s 50 of the Marriage Act 1961 (Cth), and provided to the Registrar pursuant to s 34 of the NSW Act in circumstances where an authorised officer under the Marriage Act 1961 (Cth) has not certified to the Registrar that the correction is necessary pursuant to s 51(1) of the Marriage Act 1961 (Cth); (b) to amend the particulars contained in the entry of the name of a party to the marriage where that name accords with the name registered under the law of the State where that person was born, as at the date of the marriage, and is recorded as such in the official certificate of marriage but where, subsequent to the marriage, the name of that person has been changed by registration of the change under the law of that State; and (c) to amend so much of the particulars contained in the entry for the marriage that record one party to that marriage as the "bridegroom" which accords with the official certificate of marriage and the sex of that person, as at the date of the marriage, under the law of the State where the person was born but where, subsequent to the marriage, an interstate recognition certificate for the purposes of s 32I of the NSW Act has been issued stating that the person is of a different sex to that which was recorded under the law of the State where the person was born at the time of the marriage. (3) Grant the parties liberty to apply for further orders or declarations in respect of the declarations the subject of order 2. (4) The summons filed 31 August 2022 be otherwise dismissed. (5) There be no order as to costs of the summons or the questions referred to the Court by the New South Wales Civil and Administrative Tribunal on 19 August 2022. (6) To the extent necessary, grant leave to the Defendants to file a cross-summons in the form that was filed on 13 December 2022. (7) The cross-summons be dismissed. (8) There be no order as to the costs of the cross-summons. (9) Vary order 1(b) made on 6 December 2022 by adding the words "save that this order shall not prohibit the publication of the month of their marriage". Catchwords: STATUTORY INTERPRETATION – power to correct particulars of a marriage entered in NSW Register of Births, Deaths and Marriages – Birth, Deaths and Marriages Registration Act 1995 (NSW), s 45 – FJG and FJH married in NSW in 2009 – Register's entry of their marriage included FJG's personal details under the description "bridegroom" – Births, Deaths and Marriages Registration Act 1996 (Vic) – FJG born in Victoria and original birth certificate recorded sex as male – FJG subsequently effected a change of name under Pt 4 of Victorian Act in 2018 – FJG acknowledged her sex as "female" under Pt 4A of Victorian Act in 2020 – couple applied to have Registrar "correct" the entry for their marriage pursuant to s 45 to reflect FJG's change of name and acknowledgement of sex – Registrar refused application – NCAT upheld application for review of Registrar's decision – Registrar filed an internal appeal against NCAT's decision – Appeal Panel referred questions of law to the Court – whether s 45 enables the Registrar to "correct" the Register's entry for the marriage to reflect FJG's change of name and acknowledgment of sex – held power to correct the Register does not extend beyond ensuring the particulars of the marriage that are recorded in the Register accord with the "official certificate of marriage" prescribed by the Marriage Act − whether s 45 permits a "correction" of the Register that would render an entry inconsistent with a certificate issued under s 50 of the Marriage Act 1961 (Cth) and, if so, to the extent it purports to so operate whether s 45 is rendered inoperative by s 109 of the Constitution – s 45 cannot require the correction of the Register in a way that is inconsistent with the "official certificate of marriage" produced under s 50 of the Marriage Act – no inconsistency under s 109 of the Constitution – whether s 45 authorises a "correction" that would amend the particulars of a marriage so that it records a marriage between persons of the same sex if, at the time of the marriage, same sex marriage was not lawful – issue does not arise JURISDICTION – Constitutional law – judicial power – State tribunal – whether NCAT had the jurisdiction or power to refer questions of law involving a Commonwealth law or the Constitution to the Supreme Court − whether the proceedings before NCAT involved the exercise of federal jurisdiction – NCAT's "incidental jurisdiction" does not extend to a final determination of any genuine question arising under a Commonwealth law or the Constitution – application to NCAT to review decision of Registrar did not involve a "matter" within the meaning of Ch III of the Constitution and thus did not involve the exercise of federal jurisdiction – in the exercise of its power to conduct merits review NCAT could refer to the Court such questions of law RELIEF – declarations – should not be made so as to potentially apply to facts and circumstances that may be materially different to present case Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Review Act 1997 (NSW) Anti-Discrimination Act 1977 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Births, Deaths and Marriage Registration Regulation 2006 (NSW) Births, Deaths and Marriage Registration Regulation 2017 (NSW) Births, Deaths and Marriages Registration Act 1996 (Vic) Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Marriage Act 1961 (Cth) Marriage Amendment (Celebrant Administration and Fees) Act 2014 (Cth) Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) Marriage Regulations 2017 (Cth) Marriage Regulations 1963 (Cth) Miscellaneous Acts Amendment (Marriages) Act 2018 (NSW Supreme Court Act 1970 (NSW) Cases Cited: Abdi v Release on Licence Board (1987) 10 NSWLR 294; [2002] NSWSC 1130 Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Attorney-General (Cth) v "Kevin and Jennifer" (2003) 172 FLR 300; [2003] FamCA 94 Avery v Registrar of Births, Deaths and Marriages (2010) 79 NSWLR 354; [2010] NSWCA 72 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Committee of Direction of Fruit Marketing v Australian Postal Commission [1979] FCA 31; (1979) 25 ALR 221 Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 Crawford v Davidson-Crawford [2019] NSWSC 728 De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335 De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335 FJG v Registrar of Births Deaths and Marriages [2022] NSWCATAD 116 Hore v Albury Radio Taxis Co-Op Society Ltd (2002) 56 NSWLR 210; [2002] NSWSC 1130 Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490; [2014] HCA 11 Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36 Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 Sydney Sea Planes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Category: Principal judgment Parties: Attorney General for New South Wales (Plaintiff) FJG (First Defendant) FJH (Second Defendant) Registrar of Births, Deaths and Marriages (Third Defendant) Representation: Counsel: Mr P Herzfeld SC; Mr S Murray (Plaintiff) Ms E Bennett SC; Ms R McEwen; Mr J Wherrett (First and Second Defendants)