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...
Cases
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...
Legislation
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.
