Sex - the new definition

Is ‘sex’ limited to male or female, or can it include individuals who identify as neither?  For the first time, an Australian court has legally recognised people who do not identify as male or female.

This case doesn’t have any immediate consequences for the interpretation of Victorian laws.  However, it provides food for thought for Victorian legislative drafters, policy developers and certain public servants, such as those working in criminal law or other laws premised on a binary understanding of sex.  It could also be raised in Victorian matters involving recognition of the non-specific gender of a person.

In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145, the NSW Court of Appeal considered the meaning of ‘sex’ in the context of the NSW Births, Deaths and Marriages Registration Act 1995 (NSW BDMR Act).  The decision was handed down on 31 May 2013.

The appellant, Norrie, was born male and had a sex change operation that left Norrie not identifying with either gender.  In March 2010, the NSW Registrar of Births, Deaths and Marriages issued Norrie with a Recognised Details Certificate, which recorded Norrie's sex as 'not specified'.  This type of certificate is issued to immigrants to Australia, such as Norrie who was born in Scotland, who have changed sex and want it formally recorded.  However, shortly afterwards, Norrie was advised by the Registrar that the Certificate had been issued in error and was invalid.  The Registrar claimed that her power to register a sex change was limited to a change from male to female or vice versa.

Norrie first applied for review of the Registrar's decision to the NSW Administrative Decisions Tribunal (ADT), which dismissed the application.  Norrie was also unsuccessful before the Appeal Panel of the ADT.  Accordingly, Norrie appealed the Appeal Panel's decision on a question of law in the NSW Court of Appeal. 

The issue was whether the Registrar's power under s 32DC to register a person's change of ‘sex’ after a ‘sex affirmation procedure’:

• is limited to registering a change of a person's sex from male to female (or vice versa); or
• extends to changing the sex to some other specification.

‘Sex’ is not defined by the NSW BDMR Act.  Section 32A defines ‘sex affirmation procedure’ as:

a surgical procedure involving the alteration of a person's reproductive organs carried out:
(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or
(b) to correct or eliminate ambiguities relating to the sex of the person.

Section 32A(b) was relevant to Norrie.

The Registrar contended that:

• ‘Sex’ should be given its ordinary meaning – that is, male or female – given there was no contrary intention in the Act. 
• The use of the phrase ‘opposite sex’ in s 32A confirmed this interpretation, as the meaning of sex should remain constant throughout the Act. 
• As other NSW legislation was premised on a binary construction of ‘sex’, it would be contrary to the purpose of the Act, which was to clarify a person’s legal status, to enable registration of a sex not recognised in any other NSW law.

This last point may be of interest to Victorian legislative drafters and certain public servants, particularly those working in criminal law.  The decision identifies several NSW legislative provisions based on a binary understanding of sex that may no longer protect a person like Norrie.  Such examples also exist in Victoria, including: 

• Criminal offences committed against females such as compelling sexual penetration of a vagina and offences relating to unlawfully detaining a female for immoral purposes.
• Protections in the criminal process, including:
• bodily searches under the Crimes Act 1958, the Control of Weapons Act 1990 or the Terrorism (Community Protection) Act 2003
• the taking of photographs under the Sex Offenders Registration Act 2004
• the composition of meetings of the Youth Parole Board and Youth Residential Board.
• Pension entitlements under the Coal Mines (Pensions) Act 1958.
• Construction of implied covenants under the Property Law Act 1958.
• Nomination to be a community visitor under s 28 of the Disability Act 2006, or to be a member of the Forensic Leave Panel or the Mental Health Review Board.
• Arguably, adoption leave under the Payroll Tax Act 2007.

The Court disagreed with the Registrar, finding it was open to the Registrar to register Norrie’s sex as ‘non-specific’.  It reasoned as follows:

• The word ‘sex’ no longer bears a binary meaning of male or female, according to extrinsic material including the most recent Oxford Dictionary, academic material, a very broad interpretation of the Second Reading Speech and the rule that beneficial legislation should be interpreted liberally.
• The use of the word ‘sex’ in the definition of ‘sex affirmation procedure’ did not limit its meaning in s 32DC (where it is unqualified).  Rather, the recognition in s 32A(b) of sexual ambiguities is an indication that Parliament intended ‘sex’ in s 32DC to be interpreted liberally.
• The possible legislative consequences of the registration of a person as neither male nor female should not dictate the construction of s 32DC.  This is because no one is compelled to seek a change of sex, and because courts may be able to interpret legislation in individual cases to avoid any absurdity.

The Registrar has applied to the High Court for special leave to appeal the decision. 

The only people for whom this decision has direct consequences are those in NSW who meet the requirements of Part 5A of the NSW BDMR Act (ie persons who have undergone a 'sex affirmation procedure').

The Victorian Act is likely distinguishable as its definition of 'sex affirmation surgery' excludes the second limb of the NSW definition.

However, the decision may have indirect consequences in Victorian case law and legislative and policy development.

Firstly, the decision may be persuasive to a Victorian judge, regardless of the differences between the two Acts.

Secondly, the decision is consistent with new federal laws and the policy of the previous federal Government to define ‘sex’ more broadly than as male or female and to change public service practices in this regard.

The federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed by the previous Parliament on 25 June 2013 and will commence before the end of the year.  It amends the Sex Discrimination Act 1984 to cover discrimination on a range of new grounds, including intersex status.

Assuming the amendments are valid, if the Victorian Act is not proscribed under the new s 40(2B) of the federal Act, any sections of the Act that are inconsistent with the Commonwealth law will be invalid to the extent of the inconsistency.  The Explanatory Memorandum noted that the previous federal Government had not yet decided which Victorian laws that might be proscribed under this provision.

Also, the previous federal Government developed guidelines on sex and gender recognition for federal departments and agencies.  The Australian Government guidelines on the recognition of sex and gender, which came into force on 1 July 2013, standardise sex and gender classification in federal government records and evidence required to establish or change sex.  All departments and agencies have until 1 July 2016 to comply with the guidelines.

If you are in the Victorian Government and would like more information about this decision and its possible consequences, please contact:

Joanne Kummrow
Managing Principal Solicitor
t 8684  0462
joanne.kummrow@vgso.vic.gov.au

How to sue the government

As government lawyers, you may receive originating processes served on your department or agency.  One of the first questions you should ask is whether it identifies the correct State party.

This is not always as easy as it seems.  Here’s an overview of the basic rules.

Of course, if you are served with documents and you intend to engage our office, you should do so as soon as possible to ensure you meet the deadlines for filing response documents.

Civil and constitutional cases

Federal courts

In federal courts, the State must bring any suit in the name of the Attorney-General of Victoria or his appointee.  But in the rare situation that the State responds to an action in a federal court, the correct party would generally be the State of Victoria (as here).

To serve the State in a Federal or High Court proceeding, you should serve the Attorney-General or the VGSO (on his behalf).  Our service details are here.

State courts

To sue the Victorian government in a State court, the correct party is generally the State of Victoria.

This includes where the State of Victoria is vicariously liable for the torts of its servants or agents.  However, if the grievance is with a statutory corporation about a contract it has entered into or a tort of any of its servants or agents, the correct party is the relevant statutory corporation.

In all State courts, service of documents on the State of Victoria is via the VGSO.
We are also authorised to accept service on behalf of Ministers.

Judicial review (in the Supreme Court)

In judicial review proceedings (whether brought under Order 56 or the Administrative Law Act), the application for review or originating motion must be directed to:

• the relevant decision-maker (or its members); and
• any party interested in maintaining the decision.

For example, in this case, the Municipal Building Surveyor had issued notices asking a property owner to demonstrate why he was permitted under the Building Act to use some flats at Docklands as serviced apartments.  The property owner appealed the notices to the Building Appeals Board, who dismissed the Appeal.  The parties to the Supreme Court judicial review proceeding were:

• as plaintiff – the property owner;
• as first defendant – the Building Appeals Board (who took a Hardiman position, that is, took no active role in the proceeding);
• as second defendant – the person fulfilling the role of Municipal Building Surveyor who issued the notices; and
• as third defendant – the Council who appointed the Surveyor.

If the decision-maker is a judicial or public authority or the holder of public office, he or she should be described by the name of the authority or office.  For example, in this case, the defendant was correctly identified as the “Health Services Commissioner” (an office created by statute), rather than the name of the person who held the office at the time. 

What if the body that made the decision is not a legal entity?  For example, in this case, the respondent was the Appeals Costs Board – a statutory body comprised of a number of people appointed by the Attorney-General that was not a body corporate.  The Supreme Court said the proper respondents were the particular members of the Board who made the decisions sought to be reviewed.

Finally, it is important to identify the person or body who actually made the decision being challenged.  In this case, a prisoner sought (amongst other things) an injunction allowing him to send a letter to one of his victims.  He applied for an injunction against the Commissioner for Corrections.  But under the Corrections Act, it is the Governor of a prison that has the power to stop letters from prisoners, not the Commissioner.  The Court asked for the application to be brought against the correct defendant.

Merits review (in VCAT)

In a merits review proceeding, the parties are:

• the applicant;
• the decision-maker who made the decision;
• any person joined as a party to the proceeding by the Tribunal; and
• any other person specified by legislation as a party (for example, co-owners of land in an application to sell co-owned land).

As with judicial review, a decision-maker who is the holder of a public office or holds a position in the public service is to be described by their position.

Unlike judicial review, a person whose interests are affected by the decision does not have a right to party status.  The tribunal may decide not to join a party if their joinder would cause expense or delay.

Also unlike judicial review, the appropriate respondent may be an unincorporated body. For example, in freedom of information cases, unincorporated bodies can be considered the ‘agency’ that made the decision.

And finally, unlike judicial review, the decision-maker who made the decision may not take a Hardiman approach and must play an active role in the proceeding, helping the Tribunal understand the decision.

If you are in the Victorian government and have been served with court documents, please contact:

Stephen Lee
Assistant Victorian Government Solicitor
t 8684 0410
stephen.lee@vgso.vic.gov.au

James Hird and the future of procedural fairness by private bodies

Though footy may rule Melbourne, the AFL is not part of government.*  So why did James Hird allege that the AFL should have accorded him procedural fairness – an administrative law doctrine – in determining whether he breached the AFL Rules?

Procedural fairness (also known as natural justice) forms part of administrative law, being the body of law that describes how governments must behave.  It is one of the grounds for which an aggrieved party can ask the Supreme Court to review a government decision.  There is a common law presumption that procedural fairness applies to decisions made under statute that affect rights and interests.  But procedural fairness can also apply to private bodies that make decisions affecting rights and interests, such as disciplinary decisions, where such decisions are of a ‘public’ character.

Government lawyers regularly contract with such bodies or provide them with policy guidance, so we thought we'd recap the various ways in which private bodies can be required to accord procedural fairness in their decision making.

The precise steps a private body must take to fulfill its procedural fairness obligations depend, of course, on the relevant facts and circumstances, a topic beyond the scope of this post. Give one of our lawyers a call if you need specific advice on what is required for a particular decision.

Decisions of clubs and societies

The Court may step in to protect due process in decisions made under the rules of trade unions, political parties, racing stewards, sporting associations and professional bodies where financial interests or reputation are at stake, even where the decision-maker is not given powers under statute.  However, this is usually not a judicial review action, but an action for breach of contract, or for unreasonable restraint of trade.

The requirements of procedural fairness can differ for these non-statutory bodies. It depends on their rules and may depend on the decision at hand.  Where a Court determines that procedural fairness would apply to a decision of a club or society, the minimum procedural fairness obligation would include that:

• A person accused should know the nature of any accusation made against him or her;
• The person should be given an opportunity to state his or her case;
• The tribunal should act in good faith.
• The person must have a proper hearing, with access to all evidence against him or her.

When parliament has created a separate requirement that the body must provide procedural fairness

Parliament can create a requirement that a private body must provide procedural fairness if it is to be registered with government, such as s 4.3.1 of the Education and Training Reform Act 2006 for private schools or s 88 of the Cooperatives Act 1996 for co-operatives. This does not provide a basis for judicial review.  However, for example, a parent of a private school student could ask the VRQA to withdraw a private school's registration if it failed to afford procedural fairness to a student.

When a contract between a private body and an individual requires procedural fairness

This will provide the individual with a contractual remedy if procedural fairness is not accorded.  However, it will probably not provide a judicial review remedy, even if the private body was empowered to enter into a contract by a statute. 

What about when governments transfer decision-making responsibilities to outside bodies?

The million dollar question. In Australia the law is unsettled but it looks ripe for growth.

The High Court's 2003 decision of NEAT Domestic Trading found that judicial review will not cover private bodies making decisions simply because the decisions are given force by an enactment.  It will depend on the particular legislation. 

NEAT was a wheat grower who sought permission to export wheat. Under the Wheat Marketing Act 1989, bulk export of wheat was unlawful without the consent of the Wheat Export Authority. The WEA could not give its consent without the approval of a corporation owned by wheat growers, AWB International Ltd.  A 3:2 majority of the High Court found that AWBI's decision to withhold its approval was not a judicially reviewable decision because its capacity to provide an approval was not conferred by the Act but from the companies legislation under which it was incorporated.  This was so even though AWBI's approval was a condition precedent to the WEA consenting under the Act. 

But the case had strong dissents from Gleeson CJ and Kirby J.  And since then, the High Court and the Victorian courts have made noises suggesting judicial review remedies (and thus procedural fairness obligations) follow when governments outsource decision-making…

In the unanimous 2011 decision M61, the High Court found that external contractors making decisions under the Migration Act 1958 were obliged to afford procedural fairness.  This was because the contractors were taking steps under the Act, and because their inquiries had a direct impact on the rights and interests of the plaintiffs, being asylum seekers whose detention was prolonged as a result of the contractors’ inquiries.

In Victoria, there is a growing body of judicial support for the Datafin principle – the idea (from a 1987 English Court of Appeal case) that a decision of a private body may be amenable to judicial review if the decision is made in the performance of a ‘public duty’ or in the exercise of a power which has a ‘public element’. This principle extends judicial review to government decision-makers who act under non-statutory powers and to private regulatory bodies whose functions have a sufficiently public effect.

The two minority judges in NEAT appeared receptive to the logic of the principle, and thus its position in Australia remains unsettled until tackled by the High Court.

But it has some fans in Victoria, Justice Kyrou observing in 2010 that:

the Datafin principle represents a natural development in the evolution of the principles of judicial review. Indeed, it is a necessary development to ensure that the principles can adapt to modern government practices. 

And last year, the Court of Appeal described the principle as ‘appealing’ and ‘logical’ in light of the ‘increasing privatisation of governmental functions in Australia.

Masu Financial Management v Financial Industry Complaints Service No 2 is an example of the types of bodies and decisions that could be caught by the Datafin logic.  In that decision, Shaw J held that a decision of the FICS was amenable to judicial review because it exercised powers of a public nature.  FICS was a private incorporated body responsible for administering a complaints resolution scheme.  It was established by the financial services industry and was not based in statute.

So we think the expansion of procedural fairness obligations to private bodies will be a hot issue in the near future. And not just because plaintiffs want to hang out with the likes of Hirdy in the Supreme Court foyer.

* it may have some quasi-religious status, but that’s another post for another day…

If you are in the Victorian government and need guidance on procedural fairness obligations, please contact:

Penina Berkovic
Principal Solicitor
t 8684 0226
penina.berkovic@vgso.vic.gov.au