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IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY No VID 1475 of 2005

BETWEEN:

AB Applicant

and

REGISTRAR OF BIRTHS DEATHS AND MARRIAGES Respondent

SUBMISSIONS OF THE SEX DISCRIMINATION COMMISSIONER APPEARING AS AMICUS CURIAE

---

Introduction

1. The Sex Discrimination Commissioner was granted leave on 2 May 2006 to appear as amicus curiae at the hearing of these proceedings and make submissions on the following matters:

   1. the interpretation of the term 'services' within the Sex Discrimination Act 1984 (Cth) ('SD Act'); and

   2. issues in relation to the construction of the SD Act that may arise in the course of any submissions made as to the relationship between the Births, Deaths and Marriages Registration Act 1996 (Vic) ('BDMRA') and the SD Act.

2. In relation to the second matter, the Commissioner has addressed the issue which has arisen between the parties in relation to s9 of the SD Act. To the extent it is necessary to seek a further specific grant of leave to address that matter, the Commissioner seeks that leave.

3. The Commissioner does not seek to address the operation of s109 of the Constitution. Nor does the Commissioner seek to address the question of what relief (if any) should be granted in these proceedings.

4. In summary, the Commissioner makes the following submissions:

   1. the term 'service' or 'services' is a term of broad application;

   2. properly characterised, it is open to this Court to find that the applicant was refused such a service for the purposes of s22 of the SD Act;

   3. the service which was refused was the service of determining applications made under s30A(1) of the Births Deaths and Marriages Registration Act 1996 (Vic) (BDMRA); an

   4. section 22 of the SD Act has effect in relation to marital status discrimination in the current matter by reason of s9(10) of the SD Act.

Overview of the SD Act

5. The objects of the SD Act are set out in s3 and relevantly include:

   1. (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW");1

   2. to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

   3. to promote recognition and acceptance within the community of the principle of the equality of men and women.

6. In seeking to implement those objects, Parliament (in Part I of the SD Act) did not define discrimination compendiously but rather by reference to specific types of discrimination on the following grounds:

   1. sex;2

   2. marital status;3

   3. pregnancy or potential pregnancy;4 and

   4. family responsibilities.5

7. These grounds operate independently of each other. So, for example, to establish discrimination on the ground of marital status, it is not necessary to also establish discrimination on the ground of sex or pregnancy.

8. Part II, Divisions 1-3 of the SD Act then proscribe the circumstances or areas when discrimination on one or more of these various grounds will be unlawful.6 The provision of goods or services is one such area.7

9. Part II, Division 4 of the SD Act creates a series of exemptions to some or all of the unlawful discrimination provisions of the SD Act.

10. The Commissioner describes the operation of s9 of the SD Act in further detail below.

The characterisation of the relevant service in this matter

The inability for Victorians with transsexualism to have a birth certificate issued in their affirmed sex has a significant negative impact on many lives. In addition to denying them the same right as all other Australians to a birth certificate which accurately reflects their personal details, it often leads to an increased risk of discrimination and even violence. For example, consider the situation where a man of transsexual background is required to show his birth certificate in order to gain employment. That person will present as a male and have a male name on the birth certificate, but the birth certificate would record his sex as female. This not only leads to the necessity for embarrassing explanations, it also makes the person's transsexual history evident. This, in turn increases the chances of unlawful discrimination and perhaps even violence against the person.

The bill aims to make it easier for people with transsexualism who have completed the process of transition to lead a normal life and to minimise the day-to-day difficulties caused by not having access to a birth certificate which reflects their affirmed sex. It should be noted that the bill does not facilitate or encourage the choice that an individual makes to undergo surgical sex affirmation.28

11. Section 22(1) of the SD Act provides:

    It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy:

    1. by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

    2. in the terms or conditions on which the first - mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

    3. in the manner in which the first - mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

12. That provision binds the Crown in right of the State.8 The applicant in this case relies upon an alleged refusal of services: s22(1)(a).

13. 'Services' is defined in s4 of the SD Act. The applicant apparently relies upon the following part of that definition:

    services includes:
    
    .(e) services of the kind provided by a government, a government authority or a local government body

14. The term "service" or "services" is capable of broad application. It is a word of complete generality and should not be given a narrow construction unless that is clearly required by definition or context.9 In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body such as the respondent may also be engaged in the provision of services to particular individuals.10 That follows from the definition in s4(e) and from the naturally broad meaning of the word 'services'.11

15. The identification of the relevant service or services in a particular case is a question of fact.12 In approaching that factual inquiry, it is necessary to seek to identify the alleged service with precision.13

16. The manner in which the particular service is characterised will determine which (if any) of sub-paragraphs 22(1)(a) to (c) of the SD Act are available in a particular case.

17. For example, in IW v City of Perth,14 the appellant sought to characterise the service in question as the exercise by a council of a discretion to grant or withhold planning approval. The appellant complained that the Council's refusal of planning approval constituted a refusal to provide the relevant service. The High Court rejected that contention. Their Honours held that the respondent could only have refused to have provided the service, as characterised by the appellant, if the respondent refused to consider whether or not to grant an approval. The findings of the tribunal below indicated that the respondent had in fact considered that matter. As such the equivalent of s22(1)(a) was inapplicable. However, by majority, their Honours held that the appellant could instead rely upon the equivalent of s22(1)(c) on the basis that it could be argued that the services had been provided in a discriminatory manner.15
18. IW illustrates that considerable care is required in the characterisation of a service, necessitating close attention to the material in evidence before the Court and (in this case) the statutory context the respondent operates.
19. Turning to that context, section 30A of the BDMRA provides:
    

    (1) An unmarried person-

    1. who is 18 years or over; and
    2. whose birth is registered in Victoria; and
    3. who has undergone sex affirmation surgery-

    may apply to the Registrar for the record of the person's sex in the person's birth registration to be altered.

    (2) An application must be in the form approved by the Registrar and must be accompanied by the prescribed fee (if any).

20. Section 30C of the BDMRA provides:
    

    (1) The Registrar must determine an application under section 30A by altering the record of the applicant's sex in the applicant's birth registration or refusing to do so.

    (2) Before determining the application, the Registrar may require the applicant to provide such further information or documentation as the Registrar reasonably considers is necessary.

    (3) The Registrar cannot make the alteration to the birth registration if the applicant is married.

21. Section 30C(3) applies in a limited range of circumstances. The Registrar's power to determine an application is only enlivened if she or he has received an application under s30A. A married person cannot make an application under s30A: see subsection (1). Hence, s30C(3) will only operate in circumstances where the applicant marries after the time of the application.16

22. Despite making reference to s30C(3), it is apparent that the Registrar did not consider that she had before her an application within the meaning of s30A(1). She therefore informed the applicant that she could not 'proceed with [the applicant's] application'17 and did not accept the proffered application fee. The Registrar was thereby refusing to proceed to consider and determine the application.18

23. Although the applicant has on some occasions referred to a refusal of her application to alter her birth certificate,19 it appears that she puts her claim on the basis that the respondent refused to consider her application on its merits.20 Unlike IW, an allegation of that nature is open on the material before this Court. This points, with specificity, to the nature of the service which must be proved to exist in this case: it is the service of determining applications made under s30A(1).

24. Significantly for the applicant's contentions regarding s109 of the Constitution, the Registrar was bound by the BDMRA to refuse to consider the applicant's application. That follows from the combined operation of ss30A(1) and 30C. However, it does not follow from that fact that there was no relevant 'service'.21 It is erroneous, when considering whether a particular public body provides a service, to seek to draw a distinction between the provision of services pursuant to a statutory discretion and a situation in which no discretionary element exists.22

25. The respondent contends that the keeping of the registry is not a 'service', but rather an historical public record keeping function of the Victorian government.23

26. That argument is misconceived.

27. Australian Courts have not sought to create a category of 'government functions' which are immunised from the reach of anti-discrimination law. Rather, it has consistently been held that the performance of such functions can involve the provision of a service, even where issues of sensitivity to government arise - for example, the duties of a police officer24 or the functions of a regulatory official.25

28. Nor is there any special category of 'public record keeping'. As the applicant observes, the keeping of a similar register in New South Wales and the recording of particulars in it was held to be a service by the New South Wales Equal Opportunity Commission.26 However, the position is even stronger in the current matter when the service in question is properly characterised. It can be seen in that regard, that the respondent's argument proceeds from a level of generality, referring to its broader functions of keeping the register.27 However, what is in issue here is the more specific function of determining an application made under s30A of the BDMRA.

29. The Commissioner submits that the exercise of that function very obviously confers benefits or potential benefits upon those seeking its exercise. The nature of those benefits was described in the second reading speech to the bill that introduced Part 4A, where the Attorney-General stated:
30. The second reading speech confirms what is apparent on the face of the legislation: that is, while the discharge of the Registrar's functions involve in one sense serving the community, they also involve the provision of a benefit or potential benefit to the individual applicant.
31. Australian Courts have clearly indicated that the exercise of such a function can constitute a service.29 It is irrelevant that the benefits derived from the exercise of that function are 'contingent' in the sense that they will only flow if the function is exercised a certain way.30 Nor does it matter that to take full advantage of those benefits, the applicant will have to take further steps - be they acting on the building approval (in IW) or obtaining a fresh copy of a birth certificate in the present case.31

32. The European Court of Human Rights authority referred to by the respondent in paragraphs 7 and 3632 did not deal with the question of whether the keeping of the register was or was not a service. To the extent that decision has any bearing on the present matter it has, in any event, since been overruled.33

33. If further confirmation of the propositions outlined above is required, this Court may have regard to the rule of construction that statutes are to be interpreted and applied so as to be in conformity and not in conflict with established rules of international law, as far as their language permits.34 For the reasons outlined in further detail below, CEDAW imposes an obligation to ensure that public authorities and institutions do not engage in discrimination on the ground of marital status.35 The governmental function of record keeping is not immunised from that obligation. The respondent's suggested construction of services in this matter is therefore inconsistent with that obligation. That is of particular significance when the determination of an application under s30A of the BDMRA stood to give effect to a further relevant human rights obligation: to take such measures (including legislative measures) as may be necessary to give effect to the right not to be discriminated against on the ground of transgender status.36

Section 9

The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise.

34. Subsection 9(4) of the SD Act relevantly provides:

35. Subsection 9(3) and the provisions which follow subsection 9(4) (subsections 9(5) to (20)) each reflect relevant heads of Commonwealth legislative power. For example, subsections 9(11)-9(13) seek to invoke the corporations power (s51(xx)).

36. Subsection 9(10), which arises for consideration in these proceedings, provides:

    If [CEDAW] is in force in relation to Australia, the prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention.

37. As noted above, CEDAW is in force in Australia.

38. Section 9 is a legislative device intended to achieve a twofold purpose:

    1. to ensure that the unlawful discrimination provisions do not overreach the limits of the Commonwealth Parliament's legislative power;37 and

    2. within those constitutional limits, to ensure that those provisions are given as extensive an operation as is possible.38

39. Section 9(10), having been enacted prior to the unanimous statement by all members of the High Court of the limits of s51(xxix) of the Constitution in Victoria v Commonwealth,39 does not employ the phrase 'reasonably capable of being considered appropriate and adapted to implementing [CEDAW]'. Nevertheless, the words 'give effect to the Convention' should be understood as involving an inquiry of that nature. This follows from the fact that the subject matter of section 9 is the limit of legislative power under the Constitution and Parliament's intention to legislate up to that limit.40 That proposition is also consistent with the 'ambulatory' approach of this Court to similar provisions in other federal discrimination legislation.41

40. As such, the Commissioner submits that the questions which arise in this matter regarding s9(10) are as follows:

    1. is the application of section 22 of the SD Act to marital status discrimination reasonably capable of being considered appropriate and adapted to the implementation of CEDAW?
    2. what, if any, additional limitation arises from the phrase 'in relation to discrimination against women' in s9(10)?42

'Reasonably capable of being considered appropriate and adapted'

41. Turning to the first question, the words 'reasonably capable of being considered appropriate and adapted' indicate that the Court exercises restraint in this area. It is for the legislature to determine the means by which it gives effect to the treaty; and provided the choice is of a means reasonably capable of being considered appropriate and adapted to that end, the relevant provision will be within the limits of s51(xxix) (and thus have effect under s9(10) of the SD Act).43 The Court does not, for example, inquire whether or not the provisions can be seen as the best method of implementing the obligations in the Convention. Nor is it necessary that the law be a full and complete implementation of the treaty.44

42. In approving the 'reasonably capable of being considered appropriate and adapted' test, the High Court in Victoria v Commonwealth also rejected suggestions in some of the earlier authorities45 to the effect that the Court should ascertain whether there is 'reasonable proportionality' between the object of implementing the treaty and the means which the law adopts to do it.46 Some commentators have suggested that the current test involves a more 'deferential' approach to the legislature on the part of the Court than an inquiry based upon proportionality.47 Certainly, the current test makes clear that Parliament is given a measure of latitude in the means selected for implementation of a particular treaty.48

43. It is, however, not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of a mere 'ideal' or 'aspiration' expressed or embodied in a treaty.49 The law must prescribe a regime that the treaty itself has defined with sufficient specificity to direct the general course taken by the signatory states. Nevertheless, absence of precision in the treaty does not lead to a conclusion of lack of obligation.50

44. With those principles in mind, this Court must construe the relevant provisions of CEDAW and determine whether the application of s22 of the SD Act to marital status discrimination exceeds the limits of legislative power under s51(xxix).

The correct approach to the construction of a treaty

45. There is a well established approach to construing treaties in Australian law.51 As a general proposition, treaties are interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties 196952 (the VCLT). Article 31(1) of the VCLT requires that a treaty be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Article 31(3)(b) of the VCLT provides that there shall be taken into account, together with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.

46. Article 33 of the VCLT provides that regard may be had to supplementary means of interpretation, including the travaux pre ©paratoires (preparatory documents), for the purpose of confirming the meaning arising from the application of article 31 or determining the meaning where the interpretation arising from the application of article 31 results in ambiguity or a result which is manifestly absurd or unreasonable.53

47. However, in applying those rules, it is erroneous to adopt an overly rigid approach. Such an approach would overlook the fact that a treaty is negotiated by means of an essentially political process. Rather, the Court is required to apply a 'holistic but ordered approach', having regard to matters such as:
    

    [T]he form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject ... 54

48. Consistent with that approach, Australian courts have also accepted that guidance as to the meaning and effect of international conventions may be gathered from the writings and decisions of learned authors, foreign courts, and expert international bodies.55 As a Full Court of this Court recently observed, the effect of that approach is that:
    

    a wider range of extrinsic sources may be referred to than in the case of domestic statutes and they are not only legitimately considered after some ambiguity has been discovered. The point of the "holistic" approach is to enable a simultaneous consideration of the treaty text and useful and valid extrinsic materials elucidating it.56

Application of these construction principles to CEDAW

For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

49. Article 2 of CEDAW imposes upon Australia obligations to prohibit, including via appropriate legislative measures, discrimination against women.

50. The issue between the parties appears to revolve around the proper construction of 'discrimination against women' in article 1 of CEDAW, which is in the following terms:
51. Applying article 31(1) of the VCLT to article 1 of CEDAW, this Court should first consider the ordinary meaning of its terms, in light of the objects and purposes of CEDAW (which include the elimination of discrimination against women 'in all its forms').57
52. The Commissioner submits that this interpretive approach leads to the conclusion that article 1 encompasses discrimination against women on the basis of their marital status.58

53. It is notorious59 that marital status discrimination has resulted in distinctions, exclusions or restrictions being applied to women of a particular marital status in, inter alia, their employment,60 their education61 and their financial arrangements and welfare entitlements.62 Importantly for the purposes of the current matter, article 16(1)(g) of CEDAW specifically recognises that a woman's marital status has also been associated with constraints upon personal rights relating to identity, including the right to choose a family name. Such treatment is a form of discrimination against women 'made on the basis of sex' (as that phrase is used in article 1 of CEDAW). It involves the application of distinctions, exclusions or restrictions to women or to certain groups of women by reference to negative stereotypes associated with their sex, particularly stereotypical perceptions regarding a woman's position of relative dependency in a marital relationship.

54. Discriminatory treatment of women by reference to such sex based stereotypes rather than by reference to individual merit frustrates the broader objects of CEDAW, including the promotion of equality between men and women.63

55. Should there be doubt that article 1 of CEDAW applies to such discrimination, it is removed by the words 'irrespective of their marital status', making clear that the drafters of CEDAW were concerned to eliminate distinctions, restrictions or exclusions placed on women by reference to stereotypes associated with marriage. The manner in which those words came to be included in article 1 is discussed in further detail below.

56. The words 'made on the basis of sex' in article 1 are not to be narrowly construed.64 In the context of the European Council's Equal Treatment Directive,65 comparable words66 have been held to apply to discrimination arising from a person's gender reassignment.67 Similar authority exists in the United States and Canada.68 That issue has not been considered in the context of CEDAW and does not arise for consideration in this matter. However, it illustrates the potential breadth of the phrase which the respondent seeks to read down. The position is a fortiori in the case of an entrenched practice like marital status discrimination, which has disproportionately disadvantaged women.69

57. Nor does the reference to 'equality between men and women' in article 1 require that a woman alleging marital status discrimination be treated less favourably than an identifiable man or men.70 CEDAW is not simply concerned with distinctions made between men and women of differing marital statuses. It is also concerned with distinctions between classes of women of differing marital statuses.71 This can be seen, for example, in article 11(2)(a) which requires states parties:

    [T]o prohibit, subject to the imposition of sanctions discrimination in dismissals on the basis of marital status.

To adopt the respondent's terminology, this is a 'free standing'72 obligation to prohibit discrimination on the ground of marital status. Significantly, the chapeau to article 11(2) makes clear that the measures listed in the sub-paragraphs below (including article 11(2)(a)) are directed to the prevention of 'discrimination against women on the grounds of marriage or maternity'.73 It follows from the use of the defined term that article 1 encompasses distinctions between women of different marital statuses. It is unnecessary for the woman alleging such discrimination to prove in addition that she was treated less favourably than men or certain men.

58. Article 9(1), which relates to the right of women to retain their nationality if they marry an alien or their husband changes nationality, similarly deals with discrimination between women of differing marital statuses. One can also discern an intention to deal with comparative disadvantage between different groups of women in the articles of CEDAW which concern matters which relate solely to women. As the applicant observes, those include article 6 which deals with the trafficking and prostitution of women.74 Other examples include:

    1. (a) article 12(1) which concerns discrimination in the field of health care and access to health care services including those relating to family planning; and

    2. (b) article 12(2) which requires the provision of appropriate services to women in 'connexion with pregnancy, confinement and the post natal period'.

59. The broader context in which article 1 appears indicates that 'equality' in article 1 is a reference to what the High Court described in Purvis v State of New South Wales75as 'substantive equality'. At p154, Gummow, Hayne and Heydon JJ observed:
    

    "Substantive equality" directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that "in order to treat some persons equally, we must treat them differently"

Article 1, in its terms, seeks to achieve 'equality of outcome' by addressing distinctions, exclusions or restrictions which have the 'effect' of nullifying the recognition, enjoyment or exercise by women of their human rights and fundamental freedoms. The joint judgement in Purvis contrasted 'substantive equality' with equality of treatment, which requires that people not be treated differently on the basis of the relevant ground of discrimination. Importantly, their honours also recognised that:

if the purpose of legislation is to ensure equality of treatment, the focus of the inquiry will differ from the inquiry that must be made if the relevant purposes include ensuring equality in some other sense, for example economic, social or cultural equality.76

60. In dealing with marital status discrimination, the focus of the inquiry under article 1 is the elimination of a practice that has been and continues to be a barrier to the participation of women in many areas of public life. It is unnecessary in each case in which that practice arises to inquire whether a particular woman is being treated less favourably than men or particular men. The elimination of discriminatory practices amounting to substantive inequality requires an inquiry at a higher level. Indeed, as this Court has recognised, in some instances the elimination of substantive inequality may require that women be treated more favourably than men.77

States' practice

Article 1 stated that 'marital status' should not be a basis for discrimination.88

61. In addition to the text and objects of CEDAW, this Court should have regard to subsequent state practice in relation to CEDAW (which, as noted above, is required to be taken into account under article 31(3) of the VCLT). Consideration of those matters confirm that the States Parties accept that CEDAW extends to marital status discrimination.78 In 1986, the United Kingdom entered a reservation upon ratification that indicated that it was of the view that the inclusion of the words 'irrespective of marital status' might render discriminatory differences of treatment accorded to single women as against married women. That reservation was in the following terms:
    

    With reference to the provisions of the Sex Discrimination Act 1975 and other applicable legislation, the United Kingdom's acceptance of article 1 is subject to the reservation that the phrase 'irrespective of marital status' shall not be taken to render discriminatory any difference of treatment accorded to single persons as against married persons, so long as there is equality of treatment as between married men and married women and as between single men and single women79

62. It is further relevant to note the following comment made by Canada:
    

    It is understood that the term 'discrimination against women' means any act or practice which distinguishes women from other citizens because of their sex and/or marital status in such a way as to prevent them from fully realising their human rights and fundamental freedoms in all areas of national life.80

    Travaux pre ©paratoires

63. By reason of article 32 of the VCLT (see above), this Court may have regard to the travaux pre ©paratoires of CEDAW for the purposes of confirming the interpretation of the words of article 1 that the Commissioner submits follows from their ordinary meaning and a consideration of the objects and purposes of CEDAW.

64. The drafting of CEDAW commenced in 1974. The United Nations Commission on the Status of Women (CSW) set up a working group ('Working Group 1') to prepare a text of a single draft convention on the elimination of discrimination against women.81 Early drafts prepared by Working Group 1 did not include, in article 1, the words 'irrespective of marital status'. Rather, the words 'whether married or unmarried' appeared in early versions of articles 10 (dealing with education) and 11 (dealing with economic and social life).82 As is the case with the adopted version of CEDAW, the early version of article 16 also dealt with matters affecting the rights of women in relation to marriage and family relations.83

65. It is clear, from comments made during discussions of Working Group 1, that those articles were seen as requiring States Parties to proscribe marital status discrimination in the areas covered by those articles, including such discrimination as between married and unmarried women.84 The draft Convention was approved by the CSW and transmitted to the United Nations Economic and Social Council ('EcoSoc').

66. On 12 May 1977, EcoSoc passed a resolution, inter alia, inviting comments on the draft convention from member states. In response, Canada commented that it wished to see:
    

    the inclusion of an introductory article to the draft Convention, clearly proscribing discrimination on the basis of marital status.85

67. On 29 September 1978, the General Assembly established a further working group ('Working Group 2'). During the deliberations of Working Group 2, the United Kingdom proposed an amended version of article 16 that included the words 'whether married or unmarried'. However, in line with the comments of Canada referred to above, Working Group 2 decided to delete the words 'whether married or unmarried' from articles 10, 11 and the version of article 16 proposed by the United Kingdom, on the basis that the concept of marital status discrimination would be included in article 1.86 Working Group 2 subsequently amended article 1 by inserting the words 'irrespective of marital status'.87
68. In those circumstances, it is perhaps unsurprising that the leading commentator on the Travaux has observed that:

Jurisprudence of the CEDAW Committee

69. It was also noted above that the decisions or 'views' of the UN human rights treaty bodies are relevant to the construction of international human rights instruments. While that material is not binding on this Court, it is significant, being the views of a Committee composed of experts from a wide range of countries.89 The Committee on the Elimination of Discrimination Against Women (the 'CEDAW Committee') is the expert body with responsibility for considering the progress made in the implementation of CEDAW.90 It considers reports prepared by States Parties on the legislative, judicial, administrative or other measures adopted to give effect to CEDAW and the progress made by States Parties in that respect.91 It also has the power to make 'suggestions and general recommendations' based on that material.92 The exercise of those functions and powers necessarily involves the interpretation of the provisions of CEDAW.93 The General Recommendations and Concluding Comments on Country Reports thus constitute an expert interpretation of the provisions of CEDAW to which this Court should give weight.

70. The CEDAW Committee has, in those General Recommendations and Concluding Comments, interpreted the provisions of CEDAW as proscribing discrimination against women on the ground of marital status.94 Again, such an interpretation is consistent with the interpretation of articles 1 and 2 contended for by the Commissioner above.

The application of s9(10)

71. Returning to the question posed above, the Commissioner submits that the application of section 22 of the SD Act to marital status discrimination is reasonably capable of being considered as appropriate and adapted to the fulfilment of Australia's obligations under CEDAW (and thus within the limits imposed by s9(10)) for the following reasons:
    
    1. Properly construed, CEDAW is concerned with discrimination between women of differing marital statuses: article 1, article 9(1), article 11(2)(a) and article 16;
    2. CEDAW requires the taking of all appropriate measures to eliminate such discrimination: article 2(b). It also requires all necessary measures at the national level aimed at achieving the full realisation of the rights recognised in CEDAW: article 24.
    3. CEDAW contemplates the use of legislation to that end: articles 2(b), 2(c), 2(f), 3 and 11(2)(a). More specifically, it contemplates the adoption of legislative measures prohibiting all discrimination against women: article 2(b);
    4. Section 22 is concerned with services which, for the reasons outlined above, include the services offered by the respondent in this case. CEDAW is concerned with discrimination in all its forms: article 2. It also specifically deals with discrimination by public authorities: article 2(d);
    5. The service refused in this case was, as was recognised in the second reading speech to the Births, Deaths and Marriages Registration (Amendment) Act 2004 (Vic), of potential significance to the applicant's employment. CEDAW is concerned with discrimination in employment and requires states parties to ensure the right of women to work as 'an inalienable right of all human beings': article 11(1)(a).
    6. That service was also of significance to the applicant's sense of identity as a woman. CEDAW is concerned to ensure that 'personal rights' of that nature are protected, particularly in the context of marital relationships: article 16(1)(g).

72. Further, if the Court accepts the Commissioner's suggested construction of article 1 of CEDAW, then the words 'in relation to discrimination against women' in s9(10) will not impose any additional limitation.

Alternative argument

73. Even if it be assumed that marital status discrimination is not covered by article 1 of CEDAW, the application of section 22 of the SD Act to marital status discrimination is within the limits of s51(xxix) and thus s9(10).

74. Article 5 of CEDAW provides:
    

    States Parties shall take all appropriate measures [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women

75. It was previously observed (see para 53 above) that marital status discrimination against women may be seen to arise from prejudices or negative stereotypes, particularly those regarding a woman's position of relative dependency in a marital relationship. Australia is required by article 5 to take all appropriate measures to modify the conduct which embodies those prejudices. An obvious 'appropriate measure', which is contemplated with sufficient specificity by the treaty itself, 95 is the proscription of such conduct.

76. The elimination of such prejudices through proscription may also be characterised as a means of ensuring that the narrower definition of discrimination advocated by the respondent does not ultimately arise. Similar reasoning was applied by a Full Court of this Court in Toben v Jones96 in concluding that s18C of the Racial Discrimination Act 1975 (Cth) ('RDA')97 was valid. The convention said to enliven the power in s51(xxix) to enact s18C was the International Convention Against All Forms of Racial Discrimination ('CERD').98 Carr J (with whom Kiefel J agreed) said:
    

    In my opinion it is clearly consistent with the provisions of [CERD] and the ICCPR that a State Party should legislate to "nip in the bud" the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin [being acts which were proscribed by s18C of the RDA but which were not, in terms, addressed by the CERD or the ICCPR] before such acts can grow into incitement or promotion of racial hatred or discrimination [racial hatred and racial discrimination being acts which were required to be proscribed by CERD and the ICCPR]. The authorities show that, subject to the requisite connection referred to above, it is for the legislature to choose the means by which it carries into or gives effect to a treaty [citing Victoria v Commonwealth]99

77. In arriving at the conclusion that this approach was 'clearly consistent' with the provisions of CERD, his Honour had regard to, inter alia, article 7 of CERD which is in similar terms to article 5 of CEDAW.100 In his separate reasons (concurring that s18C was valid), Allsop J also drew attention to article 7 and other provisions of CERD which went beyond the obligation to proscribe racial hatred.101

78. CEDAW imposes wider obligations of an equivalent nature: see article 5. See also article 2(e) which obliges states parties to:
    

    take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise (emphasis added).

79. It is apparent, from the separate obligation to proscribe 'discrimination against women' which appears in article 2(b), that 'all appropriate measures' in article 2(e) means measures in addition to proscription. Those include the enactment of prophylactic legislation aimed at ensuring that 'discrimination against women' does not come to pass. Applying that to the current matter, the proscription of marital status discrimination against women will prevent the perpetuation of negative stereotypes about women and can therefore be seen as a means of 'nipping in the bud' conduct which may grow into or foster 'discrimination against women' in the narrow sense contended for by the respondent.

80. In light of the above, the application of section 22 of the SD Act to marital status discrimination is reasonably capable of being considered appropriate and adapted to the implementation of articles 5 and 2(e) of CEDAW, particularly when those provisions are read with the object of eliminating discrimination against women in 'all its forms'102 and regard is had to CEDAW's concern with marital status discrimination.103 It is also supportable as a measure which is incidental to the obligation (in article 2(b)) to proscribe 'discrimination against women' in the narrow sense contended for by the respondent. 104

81. Of course, it would then be necessary to determine whether the use of the words 'discrimination against women' in s9(10) must be taken to refer to the narrower definition of discrimination advocated by the respondent. Where a term is transposed from a treaty to an enactment, the legislature is prima facie taken to have intended that the terms of the enactment carry the same meaning as the words in the treaty.105 However, that presumption may be rebutted.106 If the Court rejects the suggested construction of article 1 outlined above, then the Commissioner submits that the following matters require a conclusion that the presumption has been rebutted here:

    1. the apparent intention of Parliament to legislate up to the limits of constitutional power;

    2. the manner in which Parliament has defined marital status discrimination and sex discrimination in ss5 and 6 of the SD Act. As noted above, those grounds operate independently of one another; and

    3. the objects in s3(b)-(c) of the SD Act.107

82. Alternatively, the words 'in relation to' in s9(10) indicate that s22 is to be given effect beyond instances of 'discrimination against women', if that term is narrowly construed.

Craig Lenehan

Counsel for the Sex Discrimination Commissioner

5 St James Hall

(02) 8257 2540

1 August 2006

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Footnotes

 

 

Last updated 28 August, 2006