Recent Cases

Attorney General for New South Wales v FJG [2023] NSWCA 34 (06 March 2023) (Bell CJ, Ward P and Beech-Jones JA)


Catchwords:


STATUTORY INTERPRETATION – power to correct particulars of a marriage entered in NSW Register of Births, Deaths and Marriages – Birth, Deaths and Marriages Registration Act 1995 (NSW), s 45 – FJG and FJH married in NSW in 2009 – Register’s entry of their marriage included FJG’s personal details under the description “bridegroom” – Births, Deaths and Marriages Registration Act 1996 (Vic) – FJG born in Victoria and original birth certificate recorded sex as male – FJG subsequently effected a change of name under Pt 4 of Victorian Act in 2018 – FJG acknowledged her sex as “female” under Pt 4A of Victorian Act in 2020 – couple applied to have Registrar “correct” the entry for their marriage pursuant to s 45 to reflect FJG’s change of name and acknowledgement of sex – Registrar refused application – NCAT upheld application for review of Registrar’s decision – Registrar filed an internal appeal against NCAT’s decision – Appeal Panel referred questions of law to the Court – whether s 45 enables the Registrar to “correct” the Register’s entry for the marriage to reflect FJG’s change of name and acknowledgment of sex – held power to correct the Register does not extend beyond ensuring the particulars of the marriage that are recorded in the Register accord with the “official certificate of marriage” prescribed by the Marriage Act − whether s 45 permits a “correction” of the Register that would render an entry inconsistent with a certificate issued under s 50 of the Marriage Act 1961 (Cth) and, if so, to the extent it purports to so operate whether s 45 is rendered inoperative by s 109 of the Constitution – s 45 cannot require the correction of the Register in a way that is inconsistent with the “official certificate of marriage” produced under s 50 of the Marriage Act – no inconsistency under s 109 of the Constitution – whether s 45 authorises a “correction” that would amend the particulars of a marriage so that it records a marriage between persons of the same sex if, at the time of the marriage, same sex marriage was not lawful – issue does not arise

JURISDICTION – Constitutional law – judicial power – State tribunal – whether NCAT had the jurisdiction or power to refer questions of law involving a Commonwealth law or the Constitution to the Supreme Court − whether the proceedings before NCAT involved the exercise of federal jurisdiction – NCAT’s “incidental jurisdiction” does not extend to a final determination of any genuine question arising under a Commonwealth law or the Constitution – application to NCAT to review decision of Registrar did not involve a “matter” within the meaning of Ch III of the Constitution and thus did not involve the exercise of federal jurisdiction – in the exercise of its power to conduct merits review NCAT could refer to the Court such questions of law

RELIEF – declarations – should not be made so as to potentially apply to facts and circumstances that may be materially different to present case