Record of TELCON 11 September 2006 1000(approx)-1010
It was contended by the APO that the reply to the letter of July 26th, dated 6th September and sent on the 7th September was an adequate response to the Section 13 query.
This was denied by me because it did not state whether an appealable decision had been made, nor what evidence had been considered. The letter was not a reply to the Section 13 query and made no mention of it.
An apology was tendered by the APO for the delay.
It was brought to the APO's attention that the APO was in breach of the Administrative Appeals (Judicial Review Act) due to no reply having been received within the time limit.
This was not accepted by the APO. They considered the absence of key personnel to be an adequate excuse.
It was stated to the APO that the 28-day limit was a maximum, intended to take into account such matters, and that a reply should have been received within about 7 days in the normal course of events.
It was brought to the attention of the APO that legal action was not desired by me, that I was trying to be as reasonable as I could. I accepted that the situation was unusual and difficult. I stated that I had already given them a great deal of benefit of the doubt, and had taken steps to avoid legal action. I stated that I had no wish to have a hearing before the AAT or Federal Magistrates Court, but was being forced into that.
The requirement to divorce was discussed. I requested details of which Australian legislation I would have to comply with in order to get a full passport with the requested gender.
It was affirmed by the APO that in order to gain a passport of therequested gender, I would have to be unmarried.
A statement was made by the APO (Exact words)
"Under the Marriage Act we can't possibly have people who are still married changing their gender".
This was denied by me, and the letter to the contrary from the Hon Phillip Ruddock in the APO's possession was used as justification.
I stated that as a person born overseas, there was no legal requirement that I be unmarried, and to say that there was was false.
This was denied by the APO, who restated their position that I would have to be unmarried to get a passport in the requested gender. They stated that the letter contained no false statements.
It was brought to the APO's attention that a gender reassignment (as apposed to gender affirmation) to female was impossible for a person already medically female, and that they had evidence to the fact that I was medically female.
The APO's position was that their hands were tied by the Australian Passport Act 2005 and the Australian Passport Determination 2005 regardless of the individual circumstances. To get an Australian passport of the requested Gender, I would have to have gender reassignment.
I reiterated the biological impossibility of the requirement. That the only gender reassignment I could have would be to male.
The APO re-stated that they were the requirements of the Act and Determination, regardless of circumstances. I would have to have a Gender reassignment.
I advised the APO that they better get a lawyer involved, as they appeared to be under a misapprehension as to what the law stated. I stated that if the internal regulations said that I had to divorce, they were in error. I pointed out the absurdity of a ministerial determination of identity being dependent on someone's marital status.
The APO made it clear that in order to get a DOI I would have to make formal application and do so stating that I had a male gender.
It was pointed out that given the medical evidence this would be making a materially false statement.
At this point I had to terminate the conversation as I had a medical appointment at 1030.
Zoe Brain - 12:34 September 11 2006
I will be making no important decisions regarding this for at least 24 hours. I'll need that to calm down. I have a raging headache, God alone knows what my Blood Pressure and Heart Rate are. The stress is overwhelming. There's outrage, and disbelief, and sympathy too - I mean, how could anyone be so heartless? Their lives must be Hell.
I feel like splashing this across the front page, going ballistic, a full Thermonuclear attack with no holds barred, papers, parliament, TV, everything.
So I know I'm not thinking straight. The idea is to be able to get back to Australia, and in the slightly longer term, allow travel to complete my PhD. That's all. Not to have some grand expose that will probably be forgotten in a week anyway. Not to blight careers. Not to have a cause celebre exposing heartlessness, incompetence, and even illegality in a small part of the Australian Public Service.
If I can keep my son out of the public eye, I will. He comes first.
From the Australian Passport Determination 2005 Explanatory Notes :
A document of identity is normally issued to Australian citizens in relation to whom the Minister (or a delegate of the Minister) considers it is either unnecessary or undesirable to issue a passport (paragraph 6.3(1)(a)).
An important example of when a document of identity may be issued when it is unnecessary or undesirable to issue a passport is when a person has lost or had stolen two or more passports and the Minister (or a delegate of the Minister) has decided to refuse to issue another passport. The person may be issued with a document of identity for international travel for a particular purpose. This enables the Government to balance the competing policy priorities in the International Covenant on Civil and Political Rights (1980 ATS 23, Article12) ensuring freedom of movement for a person while enabling the Minister (or a delegate) to act where there are reasonable grounds to believe that the person is allowing others to use the passports for identity fraud or other criminal activity, or that the applicant is simply not adequately protecting his or her passport.
88. Such a power is an important part of a key policy objective for the revision of the Australian passports legislation – to minimise the problems caused by lost or stolen travel documents. Lost or stolen travel documents can provide criminals with the potential to assume another identity, to carry out criminal activity in another name, and to travel illegally. These provisions are part of a range of measures in this Determination, which include:
· limitation of the period of validity (paragraph 5.1(2)(d));
· notification of lost, stolen and otherwise invalid travel documents (section 7.4); and
· additional fees for replacement of lost or stolen travel documents (subsection 8.1 (3)).
In addition, an Australian travel document which has been reported lost or stolen will be permanently and immediately cancelled (Australian Passports Act, paragraph 22(2)(b)).
89. Other examples include:
· Australian citizens travelling to or from Norfolk Island; and
· Australian citizens who request a document of identity instead of a passport; and
· Australian citizens who are transgender, that is are living in the identity of a member of the opposite sex; and
· Australian citizens being repatriated or deported to Australia or extradited; and
· Australian citizens in circumstances when an identity document is required to permit travel to a country in which there is an Australian embassy, high commission or consulate to obtain a passport; and
· Australian citizens to travel until the Minister (or a delegate of the Minister) is satisfied the person meets all the requirements (such as citizenship, no refusal requests, or full consent of all persons with parental responsibility for a child); and
· Australian citizens whose travel the Minister believes should be restricted.
92. Validity periods are expressed as maximums and may be reduced depending on the circumstances of the applicant. In most cases, a document of identity is issued for a short-term or single journey.