Australia: Government Bulletin - 16 April 2014

Last Updated: 22 April 2014
Most Read Contributor in Australia, September 2016

On 2 April 2014, the High Court handed down the landmark decision of NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11. This decision recognised that not all human beings can be classified by sex as female or male.

The Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act) allows applications for registration for change of sex when certain conditions are met, including that the person is over 18 years of age, has undergone a sex affirmation procedure and is not married.

The respondent, Norrie was born with male reproductive organs and subsequently underwent a sex affirmation procedure. Norrie did not consider that the surgery resolved her sexual ambiguity. Norrie lodged an application to change her sex to "non-specified". At first the Registrar registered this change, but then registered Norrie's sex as "not stated".

The High Court held that the BDMR Act does not require people who have undergone a sex affirmation procedure to be inaccurately registered as male or female, where they remain of indeterminate sex. The Court's reasoning was based on the BDMR Act itself recognising that there may be ambiguities in sex, thus a non-specific entry of sex can be made.

The decision is expected to have significant ramifications for similarly worded legislation across Australia.

Breaking news

Barry O'Farrell will be resigning from his position of Premier of NSW.

This news follows Mr O'Farrell's evidence at the Independent Commission Against Corruption (ICAC) on 15 April 2014, where Mr O'Farrell denied receiving a $3,000 bottle of 1959 Grange from Nick Di Girolamo, the head of Australian Water Holdings. Australian Water Holdings is a company allegedly linked to the Obeid family.

Mr O'Farrell released a media statement following his evidence at ICAC stating that the "1959 Grange was not received by me or my wife".

At around 10am on 16 April 2014, Counsel Assisting ICAC Geoffrey Watson SC tendered a note from Barry and Rosemary O'Farrell to Nick and Jodie Di Girolamo, thanking the Di Girolamos for their gift of the 1959 Grange.

Shortly afterwards, Mr O'Farrell stated in a press conference that "In no way did I seek to mislead, wilfully or otherwise, the Independent Commission Against Corruption. But this has clearly been a significant memory fail on my part, albeit within weeks of coming to office, but I accept the consequences of my actions. And that is that as soon as I can organise a meeting of the parliamentary Liberal party for next week I will be resigning the position and enabling a new Liberal leader to be elected, someone who will then become the Premier of NSW."

In the media

NSW Premier Barry O'Farrell to resign over 'massive memory fail' at ICAC
New South Wales Premier Barry O'Farrell says he will resign owing to a "massive memory fail" when giving evidence to the Independent Commission Against Corruption (ICAC) yesterday (15 April 2014) More...

Port Macquarie company refers tender complaints to ICAC
A road construction company has accused some staff at the Port Macquarie Hastings Council of gross misconduct, corruption and financial mismanagement (11 April 2014) More...

Rio Tinto's bid to expand Warkworth open-cut coal mine near Bulga rejected by Supreme Court
Rio Tinto and the NSW Planning Minister filed a joint appeal last year after the Land and Environment Court overturned the development approval for the mine, with both parties trying to establish errors at law in the court's decision to revoke approval for the expansion. The Supreme Court dismissed the appeal and ordered the State Government and Rio Tinto to pay legal costs (07 April 2014) More...

Statutory review of the Personal Property Securities Act
The Government will undertake a review into the Personal Property Securities Act 2009 (the Act). The review will consider the operation and effects of the Act and will pay particular attention to the experience of small businesses (04 April 2014) More...

In practice and courts

New Regulation - Justices of the Peace Amendment (Code of Conduct)

The Justices of the Peace Amendment (Code of Conduct) Regulation 2014 No. 175 (NSW) amends the Justices of the Peace Regulation 2009 No. 315 (NSW). The objective of the amending Regulation is to amend the prescribed code of conduct for justices of the peace appointed under the Justices of the Peace Act 2002 No. 27 (NSW) with respect to: the circumstances in which justices of the peace are required to decline to provide their services, and the notifications that justices of the peace are required to make to the Department of Attorney General and Justice. The amending Regulation will commence on 1 May 2014.

Consultation reminder: 21 May 2014
Closing date for comments to the Productivity Commission on its Draft Report - Access to Justice Arrangements and the accompanying overview.

Published – articles, papers, reports

Access to justice arrangements: draft report
Author: Productivity Commission
A number of barriers that prevent people from resolving civil disputes in a timely and affordable way should be removed, according to this draft report, which invites submissions from the public (08 April 2014) More...


New South Wales

Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11
STATUTORY INTERPRETATION – Registrar's power to register a "change of sex" under Births, Deaths and Marriages Registration Act 1995 (NSW) – Respondent underwent sex affirmation procedure – Respondent applied for registration of change of sex under Act – Whether Registrar has power to register change of sex to "non-specific".
WORDS AND PHRASES – "change of sex". More...

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116
STATUTORY INTERPRETATION - principles - validity; interpretation to ensure - in order that the thing may have effect rather than be destroyed - Interpretation Act 1987 (NSW), s 32 - contrary intention - construction of validity contrary to legislative intention
WORDS AND PHRASES - "Policies regarding the management of excess public sector employees" - Industrial Relations (Public Sector Conditions of Employment) Regulations 2011 (NSW), s6(1)(f)
STATUTORY INTERPRETATION - regulation - within power of enabling act - inconsistent with obligations of enabling act - Henry VIII clauses - regulatory not prohibitory - regulation removing jurisdiction to deal with matter not a policy on the matter WORDS AND PHRASES - "policy on conditions of employment" - Industrial Relations Act 1996 (NSW), s 146C
APPEAL - Jurisdiction of Industrial Court to hear appeal - regulation removing jurisdiction of Industrial Court invalid
ADMINISTRATIVE LAW - jurisdictional error - mistaken denial of existence of jurisdiction More...

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112
ADMINISTRATIVE LAW - jurisdictional error - precondition for the existence of jurisdiction - whether appellate jurisdiction of the Full Bench of the Industrial Relations Commission depended on its satisfaction that a relevant error affected decision under appeal or upon demonstration of error to the reviewing court - Industrial Relations Act 1996 (NSW), s 191
ADMINISTRATIVE LAW - jurisdictional error - whether Full Bench of the Industrial Relations Commission erred in its redetermination of the matter - whether the Full Bench, having accepted
misconduct, asked itself whether the proposed dismissal was harsh, unreasonable or unjust - Industrial Relations Act 1996 (NSW), s 89(7)
ADMINISTRATIVE LAW - implied duty to give reasons - whether inadequacy of reasons constitutes jurisdictional error - obligation of the Full Bench of the Industrial Relations Commission to give reasons when not sitting as a court - statutory scheme under the Industrial Relations Act 1996 (NSW) considered INDUSTRIAL LAW - disciplinary proceedings - whether threatened dismissal harsh, unreasonable or unjust - public sector employment - application to restrain threatened unfair dismissal - review of employer's decision - jurisdiction of Industrial Relations Commission More...

El Boustani v The Minister administering the Environmental Planning and Assessment Act 1979 (No 2) [2014] NSWCA 114
CONSEQUENTIAL ORDERS -correction of orders under slip rule - correction of clerical mistake of incorrect year in order extending time to appeal - correction of an order so as to set aside only one rather than all of lower court's orders not within slip rule - alternative power to vary order - application made within 14 days of entry of order - not appropriate to vary order setting aside lower court's orders that were outside power - appropriate with consent to vary order so as not to set aside lowercourt's order as to costs More...

RailCorp NSW v Registrar of the Workers Compensation Commission of NSW [2014] NSWCA 108
ADMINISTRATIVE LAW - judicial review - grounds of review - whether the determination of the Registrar of Workers Compensation Commission was affected by jurisdictional error - whether Registrar acted outside statutory powers - whether Registrar was functus officio – dismissed More...

Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30

JUDICIAL REVIEW - challenge to renewal of exploration prospecting licence - application as required by Mining Act in existence at relevant time - applicant has not proved that Minister's delegate was not satisfied of existence of special circumstances - breach of s112 based on breach of s 111 of EPA Act not legally available as matter of statutory construction - renewal of exploration prospecting licence not obtained by fraudulent misrepresentation- applicants Class 8 summons dismissed More...

Wecker v The Delegate (the decision maker) to the President (Mr S Kerkyashrian) of the NSW Anti-Discrimination Board [2014] NSWSC 386
ADMINISTRATIVE LAW - orders sought under s 69 of the Supreme Court Act 1970 that complaints made under the Anti-Discrimination Act 1977 be listed for leave to appeal to the Administrative Decisions Tribunal or be referred to a judicial member of the Tribunal - complaints of unlawful discrimination on the basis of disability declined under s 89B of the Anti-Discrimination Act - statutory construction - cause of action - limitation of actions - whether Limitation Act 969 applies to complaints made under the Anti-Discrimination Act 1977 - whether s 52 of the Limitation Act 1969 limits the discretion to decline complaints of disability discrimination under s 89B of the Anti-Discrimination Act - whether plaintiff had a legitimate expectation that his complaints would be referred to the Tribunal - whether there is a duty requiring complaints declined under s 89B of the Anti-Discrimination Act 1977 to be referred to the Tribunal More...


New South Wales

Proclamations commencing Acts

Police Amendment (Police Promotions) Act 2014 No 4 (2014-158) — published LW 4 April 2014
This proclamation appoints 4 April 2014 as the date in which the Police Amendment (Police Promotions) Act 2014 No 4 commences.
Regulations and other miscellaneous instruments

District Court Amendment (Probate and Administration) Rule 2014 (2014-159) — published LW 4 April 2014
The objects of this Rule are to apply Part 78 (Probate and Administration) of the Supreme Court Rules 1970 to proceedings before the District Court under Chapter 3 of the Succession Act 2006 and to make provision with respect to proceedings before the District Court under the Testator's Family Maintenance and Guardianship of Infants Act 1916.
Justices of the Peace Amendment (Code of Conduct) Regulation 2014 (2014-175) — published LW 4 April 2014
The objects of this Regulation are: (a) to amend the prescribed code of conduct for justices of the peace appointed under the Justices of the Peace Act 2002 with respect to: (i) the circumstances in which justices of the peace are required to decline to provide their services, and (ii) the circumstances in which justices of the peace may use the title of a justice of the peace after their names, and (iii) the notifications that justices of the peace are required to make to the Department of Attorney General and Justice
Surveillance Devices Regulation 2014 (2014-165) — published LW 4 April 2014
The object of this Regulation is to declare certain laws of other jurisdictions to be corresponding laws under the Surveillance Devices Act 2007. This Regulation comprises or relates to matters arising under legislation that is substantially uniform or complementary with legislation of the Commonwealth or another State or Territory.

Bills assented to

Child Protection Legislation Amendment Act 2014 No 8 — Assented to 01 April 2014

This Act makes miscellaneous amendments to the Children and Young Persons (Care and Protection) Act 1998; consequential and related amendments to the Adoption Act 2000 and the Child Protection (Working with Children) Act 2012 and other legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.