Perry Herzfeld, Interpretation (Thomson Reuters, 2nd ed, 2020) at 296 [11.60] and [11.70]. That is, the amended Act must be treated as a whole, with the text and provisions added and the text and provisions removed being able to have an effect on the meaning of the provisions that have not changed.
59 This accords with principle, noted by all five High Court justices in Commissioner of Stamps as being the modern approach almost 30 years ago. At the federal level this principle was also legislatively expressed in a declaratory way by s 15 of the Acts Interpretation Act 1901 (Cth), noting s 15 was repealed in 2011, and is now s 11B(1). These changes made by the 2013 SDA Amendment do not require the Court to resort to inference or difficult points of construction. The changes were overt and deliberate. They included not just the introduction of the gender identity discrimination provisions, but also the change of all references to "the opposite sex" to "a different sex" and the repeal of the definitions of "man" and "woman" (which had referred to members of the male and female sex, respectively). Those amendments all point forcefully to an understanding of sex, as it is deployed in the SDA, that is changeable and not necessarily binary, contrary to the respondents' submissions.
60 That conclusion is fortified by the 2013 SDA Amendment's Explanatory Memorandum, which emphasises:
These definitions are repealed in order to ensure that 'man' and 'woman' are not interpreted so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA.
61 Those observations were not merely aspirational, but accurately reflect the changes to the SDA that were made and therefore supports the interpretation that the Commissioner contends for: cf R v JS [2007] NSWCCA 272; 230 FLR 276 at [143]–[144].
62 I also accept the Commissioner's submission in substance to the effect that I do not need to determine the metes and bounds of the meaning of sex in these reasons. I need go no further than accept, as I do, that it is legally sufficient that Ms Tickle is recorded as female on her updated Queensland birth certificate for her to be, at law, of the female sex. This is in accordance with the Queensland provisions that were in place at the time of the alleged discrimination, being in substance the same in all the other States and the two Territories, with certain differences that do not presently need to be considered (such as New South Wales being the only jurisdiction that still requires sexual reassignment surgery as a requirement to change a person's registered sex): see s 24(4) of the Qld BDM Registration Act. This legislation in
