Page:Tickle v Giggle for Girls Pty Ltd (No 2).pdf/69

(c) There is also no indirect inconsistency. Even if the SDA does somehow create its own unique meaning of "sex" and "woman" which is independent from the operation of State and Territory laws, there is no indication that it was intended to define those concepts for all purposes beyond discrimination law, including as to how those concepts are used for the purposes of birth registers. The respondents do not identify how the SDA can be read in that way, nor how the Commonwealth Parliament would have power to impose its meaning outside its own fields of legislative competence in any event. Rather, the relevant subject matter of the SDA is discrimination on the grounds expressly specified – here gender identity – and no more. The Qld BDM Registration Act only addresses the register and the making of entries upon it; it does not in terms address the matters with which the gender identity discrimination provisions of the SDA are concerned and address, even if it may have an incidental impact upon them.

(d) The SDA is plainly not intended to be an exhaustive statement of the law of discrimination on the grounds it deals with, because ss 10 and 11, dealing respectively with the operation of State and Territory laws generally and the those which further the objects of relevant international instruments, expressly preserve the operation of certain State and Territory discrimination laws and work health and safety laws, provided they are capable of operating concurrently with the SDA: see in particular s 10(3) and s 11(3). While such provisions cannot cure direct inconsistency, they are relevant to the question of whether the SDA was intended to be an exhaustive statement of law on its subject matter.

(e) The respondents' challenge to the operation of s 24 – in particular s 24(4) – of the Qld BDM Registration Act entails a contention that the Ms Tickle's status as female on the Queensland births register should have no effect on whether she is of the female sex or a woman for the purposes of the SDA. That contention must be rejected. Provided that there is no inconsistency, and I have found there is none, I see no reason why State or Territory legislation should not inform the ordinary meaning of language.

203 The respondents' further submission that, in allowing legal recognition of sexual reassignment, the Qld BDM Registration Act altered, impaired or detracted from the SDA's asserted general purpose of protecting women's "sex-based rights" was of no assistance. If there was any such impairment or detraction, which has not been demonstrated, that was occasioned by the expansion of the SDA by the Commonwealth parliament to encompass gender identity discrimination.

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