a reassignment of sex: s 24(1)–(3). A person who has had such a reassignment under the Qld BDM Registration Act is, expressly, a person of the sex as reassigned: s 24(4).
200 For completeness, it should be noted that the Qld BDMR Registration Act was repealed after the hearing of this proceeding, though the substance of s 24(4) is preserved by the replacement Act: see Births, Deaths and Marriages Registration Act 2023 (Qld) s 142. Though not relevant to the present case, the replacement Act has removed the requirement that a person undergo sexual reassignment surgery in order to have their sex changed on the births register: see ss 39–41, 47.
201 The contention of direct inconsistency has been found ordinarily to require a conclusion that the impugned provision – here, s 24(4) of the Qld BDM Registration Act – "alters, impairs or detracts" from the operation of a Commonwealth statute or part of such a statute, here the gender identity discrimination provisions of the SDA, by reason of there being a real conflict between the two: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; 266 CLR 428 at [32] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); albeit subject to a different view that the distinct classification between direct and indirect is inherent or always possible, at [67], [70] (Gageler J), see also [105] (Edelman J). What ultimately matters is whether there is a real conflict between the Commonwealth law and the State law, with the latter being inoperative rather than invalid to the extent of the inconsistency.
202 The Commissioner advances the following contrary submissions and consequent propositions, which are adopted by Ms Tickle. I agree with and accept, and to an extent embellish, those submissions:
- (a) The Qld BDM Registration Act and relevantly similar State and Territory legislation, which permit a person to change the record of their registered sex in this way, informs the ordinary meaning of the word sex as it appears in the SDA. Section 24 of the Qld BDM Registration Act does not detract from the operation of the SDA but rather informs the ordinary meaning of the words "sex", "man" and "woman".
- (b) There is no direct inconsistency, because the SDA does not define the word sex, and also the prior definitions of "man" and "woman" in the SDA were repealed so that they could carry their ordinary meaning. I see no reason why State and Territory statute should not form part of the understanding of ordinary meaning. This does not render the SDA impotent in any way.
