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Coonan v Registrar of Births, Deaths and Marriages[2020] QCAT 434

Coonan v Registrar of Births, Deaths and Marriages[2020] QCAT 434

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Coonan v Registrar of Births, Deaths and Marriages [2020] QCAT 434

PARTIES:

leigh anthony coonan

(applicant)

v

registrar of births, deaths and marriages

(respondent)

APPLICATION NO/S:

GAR238-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 November 2020

HEARING DATE:

20 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

The decision of the Registrar to record the applicant as his child’s mother in the Register of Births is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – registration of births, deaths and marriages - whether jurisdiction to review a decision made to record the applicant as his child’s mother – whether decision of Registrar self-executing – whether it was open on a proper construction of the Births, Deaths and Marriages Registration Act 2003 (Qld) to record the applicant as ‘father’ or ‘parent’ – where Human Rights Act 2019 (Qld) does not apply

Acts Interpretation Act 1954 (Qld), s 32B

Births, Deaths and Marriages Registration Act 2003 (Qld), s 5, s 6, s 10, s 10A, s 14, s 33, s 34, s 40, s 41, s 42, s 43, s 49, Schedule 2

Births, Deaths and Marriages Registration Regulation 2015 (Qld), Schedule 1

Human Rights Act 2019 (Qld), s 9, s 108

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

AB v State of Western Australia (2011) 244 CLR 390

Kracke v Mental Health Review Board [2009] VCAT 646

Lyons v State of Queensland (2016) 259 CLR 518

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Registrar of Births, Deaths and Marriages (NSW) v Norrie (2014) 250 CLR 490

The Queen (on the application of McConnell and YY) v The Registrar-General for England and Wales [2020] EWCA Civ 559.

The Queen (on the application of TT) v Registrar-General for England and Wales [2019] EWHC 2384.

Applicant:

P Morreau, counsel instructed by LGBTI Legal Service

Respondent:

C Murdoch QC, counsel instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    This application is an application to review a ‘decision’ of the Registrar to register the applicant as his child’s ‘mother’ rather than his ‘father’ in circumstances where the applicant gave birth to his child and identifies as male.
  2. [2]
    Under s 49 of the Births, Deaths and Marriages Registration Act 2003 (Qld) (BDMR Act or the Act) a person who is dissatisfied with a decision of the Registrar may apply to QCAT for a review of the decision.
  3. [3]
    There is dispute between the parties as to whether there is, in this instance, a reviewable decision, or whether the Registrar had no power but to record the applicant as the ‘mother’, being the person who gave birth to the child in accordance with the definition of ‘mother’ in Schedule 2 to the BDMR Act. I have determined, for reasons below, that there is a reviewable decision and, accordingly, that the Tribunal has jurisdiction to hear and determine the application. I proceed, therefore, to determine the review.

The applicant’s submissions

  1. [4]
    Entries on the register are decisions, which are subject to review either through a statutory review mechanism or by traditional judicial review.[1] Accordingly, the Tribunal has jurisdiction to hear and determine the application for review.
  2. [5]
    The applicant submits that although the Act defines a ‘mother’ as the person that gives birth, no such assumptions are expressed in relation to a ‘father’, and there is nothing in the Act which prohibits the Registrar from registering the applicant as the child’s father in the circumstances where the applicant gave birth but is recognised as of the male sex.[2] On a proper reading of ss 10 and 10A of the BDMR Act together with the particulars required for a birth certificate as set out in schedule 2, the Registrar need only be satisfied that the applicant is a parent of the child for the purposes of the Register but he must be recorded as either the child’s mother or father. To record the applicant as ‘father’ would not, therefore, require the Registrar to act outside the boundaries of their role.
  3. [6]
    Further, the Act permits non-biological parents to be registered as parents, for example, under s 14 which permits the Registrar to re-register a birth following adoption or where there is a change to parentage by a parentage order under the Surrogacy Act 2010 (Qld). Further, the Status of Children Act 1978 (Qld) creates presumptions regarding who is a child’s mother or father which are not based on that person’s biological connection. These presumptions do not apply to decisions of the Registrar under the BDMR Act.
  4. [7]
    The Act acknowledges that a person’s sex can be re-assigned and their entry in the Register can be changed to reflect this under ss 22 to 24 of the BDMR Act.
  5. [8]
    The Register is not a register of genetic material but of statistical and evidential information mainly for the purposes of succession law.[3] In the absence of a definition of ‘mother’ or ‘father’ in the BDMR Act, the common law meaning should apply which no longer applies a purely biological approach.
  6. [9]
    The applicant has had the reassignment of his sex entered into a register maintained under a corresponding law and, therefore, under s 24(1) ‘is a person of the sex as re-assigned’.
  7. [10]
    The Tribunal must comply with s 58 of the Human Rights Act 2019 (Qld) (HRA), given that when making its decision it is a public entity ‘acting in an administrative capacity’[4] and its decision on review is one made after the commencement of the HRA.[5] The Tribunal is, therefore, required to make a decision that is compatible with human rights and to give proper consideration to a relevant human right. The applicant submits that the following human rights are relevant to the review: the right to equal protection of the law without discrimination (s 15 HRA), the right not to have privacy or family unlawfully interfered with (s 25 HRA) and the right to protection of family (s 26 HRA).
  8. [11]
    The UK case of The Queen (on the application of TT) v Registrar-General for England and Wales[6] is distinguishable. There the relevant legislation clearly defined the terms ‘mother’ and ‘father’ and the court concluded based on the statute and common law, that the rights of the child to know the truth about his biological parents took precedence to the parent’s right to be recognised as the appropriate gender.

The respondent’s submissions

  1. [12]
    The respondent submits that, by recording the applicant as the child’s mother, the Registrar did not make a decision in the requisite sense, but merely recorded the biological role of the applicant in the birth of the child as required under the BDMR Act. There was no reviewable ‘decision’, it is submitted, because it is not a matter the Registrar is capable of deciding or otherwise has control over. The terms ‘mother’ and ‘father’ are objective and ‘self-executing’ definitions and the provisions in which those definitions appear merely direct what information must be recorded on the birth register. If the Tribunal determines that there is no decision, then the respondent seeks an order dismissing the application on the basis it is misconceived, pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  2. [13]
    Alternatively, if the Tribunal concludes there is a decision, the respondent seeks an order confirming the decision on the basis the Registrar made the correct and preferable decision.[7] The respondent submits that the applicant’s role in the birth of the child precluded the Registrar from forming a reasonable belief that he was the ‘father’ of the child for the purposes of the Register.The respondent submits that the Act uses ‘mother’ to refer to the person who gave birth to the child and that the term in the Act is not concerned with the legal status of the person’s registered sex, but with the ordinary biological status attributed to a sex. The biological classification of terms is also why: the child’s parent or one of the child’s parents must be registered as the ‘mother’ or ‘father’; not more than one person may be registered as the child’s ‘mother’ or ‘father’; not more than two people in total may be registered as the child’s parents and there is provision for a change of parentage pursuant to a parentage order in order to ensure the most accurate details are reflected in the Register.
  3. [14]
    The reliance on s 32B of the Acts Interpretation Act 1954 (Qld) (AI Act) by the applicant is, accordingly, the respondent submits, misplaced, s 32B having been displaced by a contrary intention in the Act.[8]
  4. [15]
    The respondent submits that the HRA has no application to these provisions, given the proceedings were commenced before the commencement of the HRA.[9]
  5. [16]
    Notwithstanding the different statutory context, the reasoning of the President in the UK case of The Queen (on the application of TT) v Registrar-General for England and Wales is directly relevant to the disposition of these proceedings, supportive of the respondent’s decision and ought not be distinguished for the reasons suggested by the applicant.

Background

  1. [17]
    The applicant was born female, identifies as a man but has retained the physical capacity to conceive and give birth to a child. In October 2012, the applicant’s NSW birth certificate and Australian passport were amended to reflect his male gender and name.
  2. [18]
    The applicant conceived a child by in vitro fertilisation using a known sperm donor[10] and the applicant gave birth at the Mater Mothers’ Hospital on 12 February 2019. The hospital gave notice of the birth to the Registrar that same day, in accordance with its obligations under s 5 of the Act.
  3. [19]
    On 18 March 2019, the applicant applied to register the birth of his child pursuant to s 9 of the Act using the approved form. The applicant listed himself as the ‘father’ and left the mother’s details blank. An attachment to the application provided that:
    1. (a)
      The applicant was a transgender man;
    2. (b)
      The child was conceived by IVF;
    3. (c)
      The applicant gave birth to the child; and
    4. (d)
      The applicant was the child’s father and sole parent.
  4. [20]
    The following further information was provided by the applicant on 25 March 2019 in response to a request from the registry:
    1. (a)
      His Australian Passport;
    2. (b)
      His Queensland Driver’s Licence;
    3. (c)
      A letter from a psychiatrist confirming the applicant had been accepted into a gender reassignment program dated 24 November 2008;
    4. (d)
      A change of name certificate issued pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW) (the NSW BDMR Act) dated 30 October 2012; and
    5. (e)
      A birth certificate recording his sex as male, issued pursuant to the NSW BDMR Act dated 30 October 2012.
  5. [21]
    On 11 April 2019 the Registrar sent a letter to the applicant advising, relevantly, as follows:

As you were the person who gave birth to …., you have accordingly been recorded as the mother on the birth registration, which has now been finalised.

  1. [22]
    On 19 June 2019 the applicant filed an application to review the decision of the Registrar to record the applicant as the child’s mother on the basis that s 32B of the Acts Interpretation Act 1954 (Qld) rendered the Registrar’s construction of the BDMR Act wrong at law.

Relevant statutory provisions

  1. [23]
    The objects of the BDMR Act are set out in s 3. There it is provided:

The objects of this Act are to provide for—

  1. (a)
    the collection and maintenance, in registers kept by the registrar, of information about—
  1. (i)
    births, deaths, marriages, adoptions, changes of name and reassignments of sex; and
  1. (ii)
    changes of parentage under the Surrogacy Act 2010; and
  1. (iii)
    another matter that the registrar is required to keep under another Act; and
  1. (b)
    access, in appropriate cases, to information in a register maintained for those purposes; and
  1. (c)
    the issue of certified and uncertified information from a register; and
  1. (d)
    the collection and dissemination of statistical information.

The role of the registrar

  1. [24]
    The Registrar’s functions are:
    1. (a)
      to establish the registers for this Act; and
    2. (b)
      to administer this Act in an efficient, effective and economical way; and
    3. (c)
      the functions given under this or another Act.[11]
  2. [25]
    The Registrar has the powers reasonably necessary to perform the Registrar’s functions.[12] The Registrar is required to maintain a register for each type of registrable event.[13] A “registrable event” is defined to include a birth.[14]
  3. [26]
    The nature and extent of the obligation to register a registrable event is dealt with in
    s 41. Section 41 provides:

Registering events other than adoptions or changes of parentage in register

  1. (1)
    The registrar must register a registrable event other than an adoption or a change of parentage under a parentage order or discharge order if—
  1. (a)
    the registrable event is an event that must be registered under this Act; and
  1. (b)
    the registrar receives—
  1. (i)
    an application for registration of the event that contains all the information prescribed under a regulation for the event (the application information); and
  1. (ii)
    the documents prescribed under a regulation; and
  1. (iii)
    for the registration of a marriage—the certificate or evidence mentioned in section 25(2); and
  1. (c)
    the registrar reasonably believes the application information, and information in the prescribed documents, is correct.
  1. (2)
    The registrar may require a person who is applying for registration to give the registrar—
  1. (a)
    evidence to support the application; or
  1. (b)
    information prescribed under a regulation; or
  1. (c)
    documents prescribed under a regulation.

Example—

The registrar may require the person to provide a statutory declaration attesting to the particulars contained in the application.

  1. (3)
    The registrar may register a registrable event even though—
  1. (a)
    the application for registration does not contain all the application information; or
  1. (b)
    the application was not accompanied by the prescribed information or documents; or
  1. (c)
    for a death—the death is still being investigated by a coroner under the Coroners Act 1958 or the Coroners Act 2003.
  1. (4)
    The registrar registers an event by—
  1. (a)
    for any type of registrable event—entering the application information that is necessary for the register, and any other information prescribed under a regulation, for the event in the register for that type of event; or
  1. (b)
    for a marriage—incorporating the marriage certificate into the register.

… (emphasis added)

Registering a birth

  1. [27]
    Section 6 of the BDMR Act provides that the birth of a child born in Queensland must be registered. The parents of the child are responsible for applying to register the birth.[15]
  2. [28]
    A notice of the birth must also be given to the Registrar within two days of the birth by a “responsible person”.[16] Where, as was the case here, the child is born in a hospital, the responsible person is either the doctor or midwife present at the birth or, if neither a doctor or midwife were present at the birth, a person, other than the mother, who was present at the birth.[17] If the mother was alone at the birth, then the mother is the responsible person for notifying the birth.[18]
  3. [29]
    An application to register the birth must be in the approved form (a birth registration application)[19] and given to the Registrar within 60 days after the birth.[20]
  4. [30]
    Section 10A of the BDMR Act provides:

10A Limitation on registration of parentage details

  1. (1)
    In relation to the registration of a relevant event for a child—
  1. (a)
    the child’s parent, or 1 of the child’s parents, must be registered as the child’s mother or as the child’s father; and
  1. (b)
    not more than 1 person may be registered as the child’s mother or as the child’s father; and
  1. (c)
    not more than 2 people in total may be registered as the child’s parents (however described).
  1. (2)
    In this section—

relevant event, for a child, means—

  1. (a)
    the child’s birth; or
  1. (b)
    the child’s adoption; or
  1. (c)
    the child’s change of parentage under a parentage order or discharge order.
  1. [31]
    “Birth” is defined in schedule 2 to the BDMR Act to mean:

the expulsion or extraction of a child from its mother.

  1. [32]
    The chief executive may approve forms for use under the BDMR Act. Section 55(2) provides:
  1. (2)
    An approved form is not properly completed unless—
  1. (a)
    the form is completed in English; and
  1. (b)
    if a regulation prescribes particulars to be application information for the form—the form contains the prescribed particulars.
  1. [33]
    Section 56 empowers the Governor in Council to make regulations under the Act, including to prescribe information to be contained in the particular approved form, certificate, extract or register.[21]

Consideration

  1. [34]
    I will deal first with the issue of the Tribunal’s jurisdiction.

Was the registrar’s conduct in registering the applicant as the child’s ‘mother’ a decision?

  1. [35]
    An important preliminary issue is whether, when the Registrar recorded the applicant as the child’s mother rather than his father, the Registrar was making a decision for the purposes of s 49 of the BDMR Act.
  2. [36]
    Section 49 provides:

49 Reviewing registrar’s decisions

  1. (1)
    A person who is dissatisfied with a decision of the registrar may, as provided under the QCAT Act, apply to QCAT for a review of the decision.
  1. (2)
    Despite the QCAT Act, section 157, the registrar is required to give a person a written notice complying with that section for a decision only if the decision—
  1. (a)
    is made on the application of the person; and
  1. (b)
    is not the decision sought by the person.

Note—

The QCAT Act, sections 158 and 159 provide for a person dissatisfied with a decision of the registrar obtaining a written statement of reasons for the decision.

  1. [37]
    In Lyons v State of Queensland[22] the High Court dismissed an appeal of a decision that the Deputy Registrar of the District Court had not unlawfully discriminated against a deaf person by excluding them from a jury panel because the person required the services of an Auslan interpreter. Section 4(3)(l) of the Jury Act 1995 (Qld) provides that a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror is not eligible for jury service. Ms Lyons submitted that the application of s 4(3)(l) of the Jury Act required the making of a functional assessment and that s 101 of the Anti-Discrimination Act 1991 (Qld) required that assessment to be made in a non-discriminatory way.
  2. [38]
    The High Court held, by majority, that the Deputy Registrar was correct to conclude that Queensland law did not permit an Auslan interpreter to assist Ms Lyons while the jury was kept together. It followed that Ms Lyons was incapable of effectively performing the functions of a juror which made her ineligible for jury service. As a person who is not eligible for jury service is not qualified to serve as a juror, it followed that the Deputy Registrar was required to exclude Ms Lyons from the jury panel. The exercise of the Deputy Registrar’s powers in conformity with the command of the Jury Act did not infringe the Anti-Discrimination Act’s prohibition on unlawful discrimination.
  3. [39]
    Gageler J, who agreed with the majority but for different reasons, held:

Ms Lyons’ answer depends on reading s 4(3)(1) of the Jury Act as allowing for administrative choice in its application. That reading is not open. Functional though it is, s 4(3)(l) enacts no more than a definition. The definition is objective and self-executing. The definition is either met or not met independently of any action, inaction, knowledge or opinion of a person administering the Jury Act.[23]

  1. [40]
    I do not accept the respondent’s submission, based on Lyons, that the Registrar’s refusal to record the applicant as the ‘father’ on the child’s birth registration was not a ‘decision’ in the relevant sense because it was not a matter the Registrar was capable of deciding or otherwise had control over. The submission relies on the theory in the area of administrative review that some laws are self-executing.
  2. [41]
    According to this theory if an Act provides that certain consequences flow automatically upon the occurrence of stipulated facts, then no bureaucratic decision is needed, or is even relevant, to trigger those consequences.[24]
  3. [42]
    In my view, this is not such a case. Although it may be true to say, on one reading of the BDMR Act, that the Registrar has no discretion as to whom to register as the child’s mother, that does not mean there is no ‘decision’ for the purposes of s 49.
  4. [43]
    The Registrar, upon receiving an application to register a birth, is not compelled to register the information contained within it. The Registrar is only required to register a registrable event if the Registrar has received an application containing all the information and documents prescribed under a regulation for the event and the Registrar reasonably believes the application information and information in the prescribed documents is correct.[25] Further, the Registrar is empowered to conduct an inquiry to find out particulars of a registrable event[26] and to correct a register to ensure particulars about a registrable event conform with the most reliable information about the registrable event that is available to the Registrar.[27]
  5. [44]
    It follows, in my view, that the Registrar, from receipt of the application, is engaged in a process of fact-finding to determine whether the information provided is correct and whether, relevantly, for the purposes of the BDMR Act,[28] a person has been properly identified in the application as the child’s mother or father. This process leads, in my view, to a decision whether to accept the application for registration of the child’s birth in the terms proposed in the application or not.
  6. [45]
    Section 49(2) provides that reviewable decisions under the BDMR Act are those made on the application of a person where that decision was not the decision sought by that person. In my view, the decision of the Registrar in this instance to register the applicant as his child’s mother rather than father, was a decision made on application by the applicant and was not the decision sought by the applicant. It follows, in my view, for the reasons above, that the ‘decision’ to register the applicant as the child’s mother was a decision capable of review under s 49.
  7. [46]
    I note that this approach is consistent with other sections of the BDMR Act that anticipate a right of review for events that are registrable on the provision of certain stipulated information, for example, registration of a death. I note also that a notice of the decision was given to the applicant in accordance with s 157 of the QCAT Act. Section 157 requires a decision-maker for a reviewable decision to give written notice of the decision to each person who may apply for review of that decision.
  8. [47]
    I will proceed on the basis the decision is reviewable.
  9. [48]
    I turn now to consider whether the correct and preferable decision is to register the applicant as the child’s father, mother or parent.

The correct and preferable decision

  1. [49]
    The issue is whether the correct and preferable decision is to register the applicant as the child’s mother, father or parent. The correct and preferable decision for the purposes of s 20 of the QCAT Act must be determined in accordance with the relevant provisions of the BDMR Act.[29]
  2. [50]
    The respondent submits that the essential issue in dispute is whether the Registrar has the power to record the applicant as the child’s father in circumstances where the child was extracted or expelled from him in the sense described by schedule 2 of the BDMR Act.
  3. [51]
    The approach to statutory construction was described as follows by French CJ in Momcilovic v The Queen[30] in the context of construing s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic):

Section 32(1) takes its place in a milieu of principles and rules, statutory and non-statutory, relating to the interpretation of statutes. It also takes its place in a constitutional tradition inherited from the United Kingdom in which :

"it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it'."

The interpretation of a law of the State of Victoria by the Supreme Court of Victoria is "an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws." In that context "[a]scertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts." In that way, the duty of the Court defined in Project Blue Sky Inc v Australian Broadcasting Authority is discharged:

"to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have."

There are different ways of undertaking the interpretive task and, in a particular case, they may yield different answers to the same questions. But if the words of a statute are clear, so too is the task of the Court in interpreting the statute with fidelity to the Court's constitutional function. The meaning given to the words must be a meaning which they can bear. As Lord Reid said in Jones v Director of Public Prosecutions:

"It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you must not go."

In an exceptional case the common law allows a court to depart from grammatical rules and to give an unusual or strained meaning to statutory words where their ordinary meaning and grammatical construction would contradict the apparent purpose of the enactment. The court is not thereby authorised to legislate .

…

The common law in its application to the interpretation of statutes helps to define the boundaries between the judicial and legislative functions. That is a reflection of its character as "the ultimate constitutional foundation in Australia". It also underpins the attribution of legislative intention on the basis that legislative power in Australia, as in the United Kingdom, is exercised in the setting of a "liberal democracy founded on the principles and traditions of the common law." [31]

  1. [52]
    The fundamental object of statutory construction is to ascertain the legislative intention by reference to the language and purpose of the statute when viewed as a whole.[32] A contextual approach to construction is adopted, the general purpose and policy of a provision and its consistency and fairness being considered a surer guide to its meaning than the logic with which it is constructed.[33] Thus, it has been held that “the process of construction must always begin by examining the context of the provision being construed.”[34] It is also important to construe a statute on the prima facie basis that its provisions are intended to give effect to harmonious goals[35] and to be read in a way that maintains the unity of the statutory scheme.
  2. [53]
    The BDMR Act provides for the registration of births, deaths and marriages. The obligation of the Registrar is to maintain a register for each type of ‘registrable event’ which includes a register of births.[36] The Registrar has a statutory obligation to register a birth if the Registrar receives an application for registration which contains all prescribed information and documents (the application information)[37] and the Registrar ‘reasonably believes’ the application information is correct.[38] The Registrar registers an event by entering the application information that is necessary for the register and any other information prescribed under a regulation for that type of event.[39]
  3. [54]
    I agree with the observations of the High Court in Registrar of Births, Deaths and Marriages (NSW) v Norrie[40] which considered the objects of the equivalent statute in NSW in the context of deciding whether it was open under that Act for the Registrar to register a person’s sex as “non-specific”:

… the function of the Registrar is principally that of recording in the Register information provided by members of the community. Section 32DB makes express provision for the verification of an aspect of the information to be provided. Further, s 32DC(1) confers a limited and specific decision-making power on the Registrar. While the Registrar may require such particulars "relating to the change of sex as may be prescribed by the regulations", neither the Act nor the regulations suggest that the Registrar's function extends to the making of any moral or social judgments; it certainly does not extend to the resolution of medical questions or the formation of a view about the outcome of a sex affirmation procedure.[41]

  1. [55]
    Having said that, the question in Norrie was different to the question here and concerned different statutory provisions. In Norrie the contention that the Registrar could only register a person’s sex as male or female was rejected, largely because the context of the relevant Act was such that there was express legislative recognition of the existence of persons of “indeterminate sex”.[42] Whether it was open for the Registrar in this case to register the applicant as the father in circumstances where he gave birth, depends on the construction of relevant provisions of the BDMR Act, in the context of the Act as a whole.
  2. [56]
    Section 10A of the BDMR Act provides some statutory limitations in determining this issue. Section 10A was inserted in the BDMR Act by the Surrogacy Act 2010 (Qld) which had, as one of its objectives, to amend the Status of Children Act 1978 (Qld) to extend the parentage presumption to the female de facto partner of a birth mother when the birth mother has undergone a fertilisation procedure to conceive the child with the consent of her female de facto partner and to make related amendments to the BDMR Act following amendments to the Status of Children Act 1978 for parentage presumptions.[43]
  3. [57]
    To summarise s 10A:
    1. (a)
      If the child has one parent, then that parent must be registered as the child’s mother or father.
    2. (b)
      If the child has two parents, then one of the child’s parents must be registered as the child’s mother or father.
    3. (c)
      There can be only one registered mother.
    4. (d)
      There can be only one registered father.
    5. (e)
      Not more than two people in total may be registered as the child’s parents however described.
  4. [58]
    There is no definition of ‘parent’, ‘mother’ or ‘father’ in the “dictionary” to the BDMR Act.[44] However, ‘birth’ is defined to be:

The expulsion or extraction of a child from its mother.[45]

  1. [59]
    In my view, it is clear from the definition of ‘birth’ that a mother, under the Act, is the person who gave birth.
  2. [60]
    This meaning of ‘mother’, defined by reference to the role the person plays in the child’s birth, is also reflected in the key provision, s 5, which requires that the ‘responsible person’ notify the Registrar of the birth. The responsible persons do not include the ‘father’ but are described in a hierarchical way as follows:
    1. (a)
      a doctor present at the birth;
    2. (b)
      if none, then a midwife present at the birth;
    3. (c)
      if neither doctor nor midwife present, then a person, other than the mother, present at the birth;
    4. (d)
      if the mother was alone at the birth, the mother; or
    5. (e)
      if the mother dies or abandons the child – the person who takes physical custody of the child, for example, a person who discovers the child with the body of the mother.
  3. [61]
    In my view, this list also makes clear that the mother is the person who gives birth, otherwise she could not be the person ‘alone at the birth’. Further, it is clear from the list that a father is not someone the Act envisages can also give birth within the meaning of the BDMR Act, otherwise the section would not presume that only the mother can give birth. The section also makes clear that if a father is a ‘responsible person’ it is only because he was a person ‘present at the birth’ not the person giving birth.[46] Further, the mother is assumed, but the father is not, by s 5(b)(iii), (iv) and (v) to be at the birth.
  4. [62]
    The applicant accepts that ss 5 and 33 of the BDMR Act[47] operate on the assumption that the mother gives birth and that ‘birth’ is defined as the expulsion or extraction from the ‘mother’ and that there is therefore no scope for the operation of s 32B of the Acts Interpretation Act 1954 (Qld) in this respect. However, the applicant submits that there is no such assumption in respect of ‘father’ and that there is nothing in the BDMR Act to suggest that the person who gave birth, who might ordinarily be the mother, but is recognised as of the male sex, could not be named as the father.[48] The applicant submits that the Registrar, under ss 10 and 10A, need only be satisfied that the applicant is a parent of the child to identify him as such in the register, but he must be recorded as either the child’s mother or father. The birth certificate, according to the particulars required by Schedule 2, does not require that each of the mother’s and father’s details be on the certificate, also recognising that a person may be registered as a parent only.
  5. [63]
    In my view, this is a strained interpretation of the BDMR Act when viewed as a whole. It is not an interpretation which means the provisions are construed together to achieve a harmonious goal.[49]
  6. [64]
    The BDMR Act, as properly construed, does not, in my view, provide for a person being, at the same time, a child’s mother and father. As the applicant gave birth to the child, the applicant must be the child’s mother for the purposes of the registration of that child’s birth. No-one else gave birth to the child. Because the applicant is the mother and must be registered as the mother, the applicant cannot be registered as the father.
  7. [65]
    There is, in s 22 of the BDMR Act, express recognition that a person may undergo sexual reassignment surgery and that it may be noted in the person’s entry in the register of births. “Sexual reassignment surgery” is defined to mean:

a surgical procedure involving the alteration of a person’s reproductive organs carried out –

  1. (a)
    to help the person to be considered to be a member of the opposite sex; or
  1. (b)
    to correct or eliminate ambiguities about the sex of the person.[50]
  1. [66]
    Under s 24, a person is a person of the sex as reassigned, in effect, if they have undergone sexual reassignment surgery and the reassignment has been registered or the subject of a recognition certificate. Given that sexual reassignment surgery involves “the alteration of a person’s reproductive organs”, in my view, it was not envisaged by the BDMR Act that a person who was male due to the application of
    s 24, could also be a ‘mother’.[51]
  2. [67]
    However, having said that, the definition does not require the removal of the person’s reproductive organs, only their “alteration” to help them to be considered a member of the opposite sex. In my view, given the beneficial nature of the provision and its purpose, a broad interpretation of the definition should be applied so that a person can be registered as having the reassigned sex of male despite having retained the ability to give birth. This is consistent with the approach adopted by the High Court in AB v State of Western Australia[52] where it was held that an equivalent definition (though with different wording) did not require a particular level of success in achieving the gender of the opposite sex. Accordingly, under the BDMR Act, while perhaps not foreseen by the legislature when drafting the Act,[53] it is possible under its provisions to be registered as male and at the same time, as a mother.
  3. [68]
    This may be seen to give rise to a less than harmonious interpretation of the Act when read as a whole. Under the Act a person can be male under s 24 and yet, be registered as a ‘mother’ for the purposes of his child’s birth. That this can occur may, on one view, undermine the purpose of s 24. Having said that, it may be that the purpose of the sexual reassignment provisions is to recognise that a person’s sex may be re-assigned and that this can be reflected in the person’s entry in the register of births or adopted children register. In other words, that the reassignment of sex provisions only apply to the person’s registered birth details and were not intended to affect whether that person is registered as a mother or father of their child. In other words, that the importance of recording who gave birth to a child takes precedence over a person’s right to identify as male.
  4. [69]
    It appears possible, at first glance, under the Births, Deaths and Marriages Registration Regulation 2015, Schedule 1, Part 5 to register as a “parent”, but not as the father or mother. However, s 10A provides that the child’s parent, or one of the child’s parents, must be registered as the child’s mother or father. In this case, it appears that the applicant could be registered as a ‘parent’ but only if the other parent registered as either ‘mother’ or ‘father’. The other parent could not be the ‘mother’ which would mean that the other parent could only register as the ‘father’.[54] As not more than one person may be registered as the child’s father,[55] it must follow that, while the applicant may conceivably register as ‘parent’ in the circumstances described, he could not register as ‘father’.
  5. [70]
    The Act does make provision for a person to apply to change a child’s parentage but only in the case of adoption or surrogacy. Section 14(1) permits the Registrar to ‘re-register’ a birth following an adoption, or where the person’s parentage is changed by a parentage order under the Surrogacy Act 2010.
  6. [71]
    For all the above reasons, I have concluded that the BDMR Act does not concern itself with the role a parent wishes to take in raising the child. It uses as its reference point, the biological aspects of childbirth and the role a person takes in that process. It is not concerned with the role a person wishes to play in the upbringing of that child. I note that being registered as the ‘mother’ or, as the person who gave birth to a child, does not prevent that person from being the father figure in that child’s life.
  7. [72]
    The applicant submits, in effect, that as the applicant has had his reassignment of sex entered into a register maintained under a corresponding law, he is therefore, by
    s 24(1) “a person of the sex as reassigned”. That may be so. However, while his sex may now be male, that does not alter the fact that he gave birth to the child and, under the provisions of the BDMR Act, is required to be registered as the child’s mother.
  8. [73]
    The use of the word ‘mother’ is therefore a word used to delineate who carried the child for nine months and delivered it. The applicant, though male, is that person. The BDMR Act reflects, in my view, that a child is entitled to know who that person is.

Does the Human Rights Act 2019 (Qld) apply?

  1. [74]
    Section 108 of the Human Rights Act 2019 (Qld) (HRA) provides:
  1. (1)
    This Act applies to all Acts and statutory instruments, whether passed or made before or after the commencement.
  1. (2)
    However, this Act—
  1. (a)
    does not affect proceedings commenced or concluded before the commencement; and
  1. (b)
    does not apply to an act, or decision made, by a public entity before the commencement.
  1. (3)
    Subsection (1) is subject to sections 106 and 107.
  1. [75]
    The HRA commenced on 1 January 2020. In my view, as these proceedings were commenced in June 2019, prior to the commencement of the HRA, the HRA does not apply. I accept the submissions of the respondent in this regard.
  2. [76]
    I do not accept the submissions of the applicant that the ordinary meaning of ‘proceeding’ as it appears in s 108(2) does not extend to a cause commenced in the Tribunal’s review jurisdiction prior to the commencement of the HRA. ‘Proceedings’ is not defined by the HRA and therefore takes on its ordinary meaning, as informed by the text, context and purpose of the Act.[56] It is permissible to have regard to a dictionary in order to ascertain the ordinary meaning of a word.[57] ‘Proceeding’ is defined by the Macquarie Dictionary in relation to law to mean ‘the instituting or carrying on of an action at law.’[58] There is no contextual support for reading ‘proceeding’ down so as not to apply to review proceedings. Further, the broader meaning of ‘proceeding’ is consistent with the meaning applied to ‘proceeding’ in the QCAT Act.and with the meaning applied to ‘proceeding’ in the Victorian Charter. In Kracke v Mental Health Review Board[59] Bell J, in discussing the meaning of ‘civil proceeding’ in the context of the right to a fair trial in s 24 of the Charter, held:

The right in s 24(1) reflects the international human right to a fair hearing…That right encompasses proceedings which are determinative of private rights and interests in the broad sense. The issue is addressed as a matter of substance, not form. In international law, not only judicial proceedings are so determinative. Administrative proceedings can also be, and very many are. The international jurisprudence supports an interpretation of “civil proceeding” in s 24(1) which includes both judicial and administrative proceedings...

The language of s 24 contemplates civil proceedings being heard by a court or tribunal. …In Victoria courts and tribunals can and do exercise judicial and administrative jurisdiction. The general expression “civil proceeding”, when used in reference to courts and tribunals, is very apt to include both of these jurisdictions, not just the first. In Victoria, courts usually exercise judicial power and tribunals usually exercise administrative power. The general expression “civil proceeding”, in conjunction with ‘tribunal’, is very apt to include the administrative jurisdiction of tribunals.[60]

  1. [77]
    Given my finding that the HRA does not apply, it is not necessary to consider the applicant’s submissions as to the application of ss 48 and 58 in this context.
  2. [78]
    I have however considered above whether it would be possible for the Registrar to have registered the applicant as ‘parent’. Although such an outcome may have been more compatible with the applicant’s right not to have his privacy unlawfully interfered with, for the reasons I have outlined, this option was not available on the proper construction of the BDMR Act.[61]
  3. [79]
    In any event, the rights of children generally should also be taken into account, and, that may be what the BDMR Act is intending to achieve by balancing the rights of persons who have undergone sexual reassignment with the right of a child to know its biological mother. In this context I refer to the Court of Appeal decision in R (McConnell and YY) v The Registrar-General for England and Wales.[62] In that case Mr McConnell obtained a gender recognition certificate under the Gender Recognition Act 2004 (GRA) confirming he was male. Under s 9(1) of the GRA, the legal effect of a certificate is that a person becomes for all purposes the acquired gender. Section 12 of the GRA provides:

12 Parenthood

The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child.

  1. [80]
    Mr McConnell gave birth to a son, YY, and applied to register his son’s birth. The Registry informed Mr McConnell that he would have to be registered as the child’s mother, although the registration could be in his current (male) name. Mr McConnell brought an application for judicial review, seeking a declaration that he was entitled to be registered as YY’s father, or otherwise ‘parent’ or ‘gestational parent’. In the alternative, if he was required to be registered as the ‘mother’, that a declaration of incompatibility be made under s 4 of the Human Rights Act 1998 on the ground that the domestic regime is incompatible with his and/or YY’s Convention rights under Articles 8 and 14 of the European Convention on Human Rights.
  2. [81]
    As a matter of statutory construction Mr McConnell was, the court held, properly registered as the ‘mother’. Similarly to this case, the relevant legislation defined the concept of ‘mother’ to mean the person who gives birth to a child rather than a gender-specific word like ‘woman’. This concept could not be construed to mean ‘father’ or to be replaced by a new term such as ‘parent’ or ‘gestational parent’ as this, the court reasoned, would not be an exercise in interpretation but would amount to judicial legislation.[63]
  3. [82]
    The Court did, however, recognise that forcing a person in Mr McConnell’s position to declare in a formal document that their gender is not their current gender but the gender assigned at birth, represented a ‘significant interference with a person’s sense of their own identity, which is an integral aspect of the right to respect for private life in Article 8’. It was also, the court held, an interference with the right to respect for family life of both Mr McConnell and his son because the state describes their relationship on the birth certificate as being that of mother and son; whereas, as a matter of social life, their relationship is that of father and son.[64]
  4. [83]
    Having accepted there was interference with human rights, the issue then became whether the interference was, in principle, capable of being justified. The court, in concluding the interference was justified, described the aim of the legislation as follows:

…the protection of the rights of others, including any children who are born to a transgender person, and the maintenance of a clear and coherent scheme of registration of births. …The question is not whether it would be in the best interests of YY to have the person who gave birth to him described as his mother on the long-form birth certificate. The question is whether the rights of children generally include the right to know who gave birth to them and what that person’s status was.[65]

  1. [84]
    Similarly, when considering the BDMR Act and its application more broadly, the Act ensures that certain information relating to a child’s birth is recorded. That includes information about the identity of the person who gave birth to a child. That person is referred to as the ‘mother’ in the BDMR Act.
  2. [85]
    The proper construction of the BDMR Act leads to the conclusion that the correct and preferable decision is to register the applicant as the child’s ‘mother’.
  3. [86]
    The decision of the Registrar is therefore confirmed.

Footnotes

[1] CLS v Queensland Registry of Births, Deaths and Marriages [2012] QCAT 420; Avery v New South Wales (Attorney-General’s Department) [2009] NSWSC 353.

[2] Applicant’s submissions, [14]-[15].

[3] A & B v C [2014] QSC 111 at [48].

[4] HRA, s 9.

[5] HRA, s 108(2).

[6] [2019] EWHC 2384.

[7] QCAT Act, s 24(1)(a).

[8] AI Act, s 4.

[9] HRA, s 108(2)(a).

[10] Handwritten note by Leigh Anthony Coonan dated 19 March 2019, Index to bundle of material in the possession or control of the respondent filed 12 September 2019, p 4.

[11] BDMR Act, s 34.

[12] BDMR Act, s 34(4).

[13] BDMR Act, s 40.

[14] BDMR Act, s 4, schedule 2.

[15] BDMR Act, s 8.

[16] BDMR Act, s 5.

[17] BDMR Act, s 5(2)(b)(iii).

[18] BDMR Act, s 5(2)(b)(iv).

[19] BDMR Act, s 9(1).

[20] BDMR Act, s 9(2).

[21] BDMR Act, s 56(2)(b).

[22] (2016) 259 CLR 518.

[23] Ibid at [50].

[24] Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 3rd ed, 2004) [2.430].

[25] BDMR Act, s 41(1)(c).

[26] BDMR Act, s 43(1)(b).

[27] BDMR Act, s 42(2)(d).

[28] BDMR Act, s 10A.

[29] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140]-[142].

[30] (2011) 245 CLR 1.

[31] Ibid at [37]-[42].

[32] Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 per Barwick CJ.

[33] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], citing Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397.

[34] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], citing Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J.

[35] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [70], citing Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J.

[36] BDMR Act, s 40.

[37] BDMR Act, s 41(1)(b)

[38] BDMR Act, s 41(1)(c).

[39] BDMR Act, s 41(4)(a).

[40] (2014) 250 CLR 490.

[41] Ibid at [16].

[42] Ibid at [18]; Births, Deaths and Marriages Registration Act 1995 (NSW), s 32A (definition of ‘sex affirmation procedure’ para (b)).

[43] Explanatory Notes, Surrogacy Act 2010 (Qld).

[44] BDMR Act, schedule 2; s 4.

[45] BDMR Act, schedule 2.

[46] BDMR Act, s 5(2)(b)(iii).

[47] Section 33 provides that a stillborn child is taken to have died when the child left the mother’s body and at the place where the mother was when the child left the mother’s body.

[48] Applicant’s submissions filed 16 March 2020, [15].

[49] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [70],

[50] BDMR Act, schedule 2.

[51] Unlike equivalent legislation in other States which requires, for example, only a “medical or surgical procedure…to alter the genitals and other gender characteristics of a person”: Gender Reassignment Act 2000 (WA), s 3 (definition of ‘reassignment procedure’).

[52] (2011) 244 CLR 390 at [31] per French CJ, Gummow, Hayne, Kiefel and Bell JJ.

[53] I note in this respect the Births, Deaths and Marriages Registration Regulation 2015 (Qld), Schedule 1, which lists the application information required to register a birth, that the details required of either of the father or mother do not require their sex be provided whereas sex is required for the child. This must be because the mother is presumed to be of the female sex and father, of the male sex.

[54] BDMR Act, s 10A(1)(a): one parent must be registered as the child’s mother or as the child’s father.

[55] BDMR Act, s 10A(1)(b).

[56] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382; Acts Interpretation Act 1954 (Qld), s 14B.

[57] State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 348.

[58] Macquarie Dictionary (online at 19 March 2020) ‘proceeding’.

[59] [2009] VCAT 646.

[60] Ibid at [409]-[410].

[61] See above at [69].

[62] [2020] EWCA Civ 559.

[63] Ibid at [35].

[64] Ibid at [55].

[65] Ibid at [58].

Close

Editorial Notes

  • Published Case Name:

    Coonan v Registrar of Births, Deaths and Marriages

  • Shortened Case Name:

    Coonan v Registrar of Births, Deaths and Marriages

  • MNC:

    [2020] QCAT 434

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    11 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
A v C[2015] 2 Qd R 44; [2014] QSC 111
1 citation
Jump To
Cite 1 - [2014] QSC 111
AB v State of Western Australia (2011) 244 CLR 390
2 citations
Jump To
Cite 1 - (2011) 244 CLR 390
Cite 2 - (2011) 244 CLR 390
Avery v New South Wales (Attorney-General's Department) [2009] NSWSC 353
1 citation
Jump To
Cite 1 - [2009] NSWSC 353
CLS v Registrar of Births Deaths and Marriages [2012] QCAT 420
1 citation
Jump To
Cite 1 - [2012] QCAT 420
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
1 citation
Jump To
Cite 1 - (1955) 92 CLR 390
Deaths and Marriages v Norrie (2014) 250 CLR 490
4 citations
Jump To
Cite 1 - (2014) 250 CLR 490
Cite 2 - (2014) 250 CLR 490
Cite 3 - (2014) 250 CLR 490
Cite 4 - (2014) 250 CLR 490
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
1 citation
Jump To
Cite 1 - (1985) 157 CLR 309
Kracke v Mental Health Review Board & Ors [2009] VCAT 646
3 citations
Jump To
Cite 1 - [2009] VCAT 646
Cite 2 - [2009] VCAT 646
Cite 3 - [2009] VCAT 646
Lyons v Queensland (2016) 259 CLR 518
2 citations
Jump To
Cite 1 - (2016) 259 CLR 518
Cite 2 - (2016) 259 CLR 518
Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322
1 citation
Jump To
Cite 1 - (1917) 23 CLR 322
Momcilovic v The Queen (2011) 245 CLR 1
2 citations
Jump To
Cite 1 - (2011) 245 CLR 1
Cite 2 - (2011) 245 CLR 1
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
6 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Cite 3 - (1998) 194 C.L.R 355
Cite 4 - (1998) 194 C.L.R 355
Cite 5 - (1998) 194 C.L.R 355
Cite 6 - (1998) 194 C.L.R 355
Ross v The Queen (1979) 141 CLR 432
1 citation
Jump To
Cite 1 - (1979) 141 CLR 432
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
1 citation
Jump To
Cite 1 - (2008) 235 CLR 286
State Chamber of Commerce and Industry v The Commonwealth (1987) 163 CLR 329
1 citation
Jump To
Cite 1 - (1987) 163 CLR 329
Taylor v Public Service Board (N.S.W.) (1976) 137 C.L.R 208
1 citation
Jump To
Cite 1 - (1976) 137 C.L.R 208
The Queen (on the application of McConnell and YY) v The Registrar-General for England and Wales [2020] EWCA Civ 559
5 citations
Jump To
Cite 1 - [2020] EWCA Civ 559
Cite 2 - [2020] EWCA Civ 559
Cite 3 - [2020] EWCA Civ 559
Cite 4 - [2020] EWCA Civ 559
Cite 5 - [2020] EWCA Civ 559
The Queen (on the application of TT) v Registrar-General for England and Wales [2019] EWHC 2384
2 citations
Jump To
Cite 1 - [2019] EWHC 2384
Cite 2 - [2019] EWHC 2384
Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590
1 citation
Jump To
Cite 1 - [1915] AC 590

Cases Citing

Case NameFull CitationFrequency
TAJ (costs) [2023] QCAT 1331 citation
1

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