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From: Kathy Noble
Sent: Monday, May 07, 2007 6:45 PM
To: Karen Gurney; HREOC (paffairs@humanrights.gov.au); Neroli Holmes; Linda paton (linda.paton@ministerial.qld.gov.au)
Cc: 'assessment@qpilch.org.au'; 'Kevin.Rudd.mp@aph.gov.au'
Subject:
Passports Australia

Far too many questions from the Transsexual Community go unanswered, because there are no laws on the statute books to cover them. There are many precedents and Court cases that are cited, but none of them have found their way into law!

Kathy Anne Noble


Sat 5/05/2007 3:11 PM

Wayne Smith

Department of Foreign Affairs and Trade

Passports Australia

 

Dear Wayne,

We have some queries regarding the Passport Office in regards to issuing of passports to Transsexual people.

We fully understand that one must be an Australian Citizen either via being born here, or a Citizenship Certificate!

In the light of a letter that has come to hand from the Passport Office in Brisbane to a Transsexual person, we are now really worried as to our legal status. This is not only for the sake of those born abroad, but also those born in Australia.

The letter

We also understand from the Federal Attorney-General that it is up to each State and Territory to legislate their own laws in regard to Transsexual people. There is currently no legislation at Federal level concerning us!

Our question is, are we fully recognised at law, and can this be stated in writing as to the Act concerning this matter where the Federal Government is concerned? Are we only given a Passport to save us embarrassment as stated in the above letter, or has this been superseded via new unknown legislation?

If we are not fully recognised, then it means at Federal level we are still considered to be of our prior gender/sex, and not after Sexual Affirmation Surgery! Far from saving us from embarrassment, this is throwing us open to ridicule!

Kathy Anne Noble

05/05/2007


Laws - Legislation

Laws are enacted or amended to cover specific needs and are then applicable to all who wish to operate under them. Each State and Territory has a Births Deaths and Marriages Act (BDMA), plus amendments such as recognition of Sex Affirmation Surgery (SAS), or in the case of South Australia and Victoria also a Gender Recognition Certificate (GRC).

The Federal Government has the Marriage Act 1961 and the passport Act 2005, but no Act covering SAS or GRC in any of their Acts which are now on the Statute books!

To add to an existing law/statute an amendment has to be put in place, and this is enacted via the Government concerned, as happened in Queensland’s BDMA in April 2003, recognising people born in Queensland being now allowed to amend their BC after SAS!

This would also apply in the case of Victoria, which in January 2005 amended their BDMA to include people born in Victoria now being allowed to amend their BC after SAS, but also allowed for a GRC (or equivalent) for those residing in that jurisdiction, but born abroad after they too had, had SAS.

The above are open to those able to apply for an amended BC or a GRC on application, who can supply the relevant paperwork required, or undergo inspections, in order to meet the requirements now stipulated in the BDMA, for a fee, of course.

A Court Order, is where each case is taken on its merits with costs for lodgement, legal fees and Court costs. There is no immediate response, as each case is taken on merit and can vary according to the Court in which, it is heard, or the Judge who is in charge of the hearing!

Re Kevin and Re Alex are decisions made by a Court, but there has been no Act enacted at law so that all people can access without the long drawn out problems of costs involved by going to law.

I would like to see legislation from the Federal, States and Territories that can be viewed on their web sites that state “Transsexual (TS) people are fully recognised under the Federal, State and Territory Act concerned….After SAS for those born in those jurisdictions an amended BC is offered and for those residing in those jurisdictions, but born abroad would be able to access a GRC in recognition of their preferred sex/gender, (also Passports, Citizenship Certificate and Health Insurance Commission central records providing they are now Citizens!) Also this would then fully recognise their amended BC, from where ever it was issued by their Country of birth.

Lawyers think within the confines of the law, precedents and court cases when talking about legal matters. As a lay person I understand that a law is enacted and then governs the whole of society in that jurisdiction. We do not understand precedents, as they are not enacted into law, but are the outcome of a Courts decision and can be appealed, over turned or used in a Court case of similar bent!

Most lay people would sooner operate within clearly defined laws as to how to achieve an outcome! Such as being able to apply via an amendment, which can be done as an application and a fee via the BDM in their jurisdiction. True, it is up to the jurisdiction in which they reside to vet each application to ensure that it meets all requirements of the Act or Amendment. A fee is of course required, but is infinitely lower than going through a Court!

There are no such avenues if one decides to go via a Court. The factors of time and cost are very much involved, which includes personal time and costs for engaging legal counsel, unless allowed legal aid. The prospect of this is to most a deterrent and this is why many times there is no challenge made in order to define one’s rights!

Kathy Anne Noble  

06/05/2007  


Federal Queries

It would appear that we are recognised by three Federal Government Departments, Passport, Citizenship and Health Insurance Commission, that is until you read the letter from the Passport Office stating that we are only issued with the Passport as Female or Male after SRS to stop us from “suffering any embarrassment”

If this is so, does it mean that the other Federal Departments are acting in the same manner?

As there is no Federal legislation to confirm or deny this situation, I would ask, where does this leave us? Are we fully recognised in our new gender/sex, or are we, an embarrassment to the Federal Government?

I think that in this context, the same could be asked of the States and Territories that do not offer a Gender Recognition Certificate, and thereby do they fully recognise us in said amended gender/sex!

Who will have the courage to sort this mess out?

Kathy Anne Noble

President, Changeling Aspects

07/05/2007


Tues 22/05/2007 8:31 AM

From: Jane.Luckhurst@dfat.gov.au [mailto:Jane.Luckhurst@dfat.gov.au] On Behalf Of passports_policy@dfat.gov.au
Sent: Tuesday, May 22, 2007 8:31 AM
To: knoble@iinet.net.au
Subject: Correspondence [SEC=UNCLASSIFIED]

Dear Ms Noble.

Please find attached a letter from the Assistant Secretary, Passport Client Services Branch, Dept. of Foreign Affairs and Trade in response to your email to Wayne Smith of 6 May 2007.

NOTE:  Any decisions articulated in this email do not constitute new policy and are not to be taken as a precedent for any future decisions.


 

 

 

 

 

 

 


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