the provisions give effect to the Convention" (meaning CEDAW). An amendment to s 9(10) in 2011 removed the reference to discrimination against women and included reference to a number of additional international instruments (as noted above at [70]): Sex and Age Discrimination Legislation Amendment Act 2011 (Cth) Sch Pt 1, items 10 and 24. This was done with the specific intention of broadening the reach of the constitutional support of the SDA so that it might effectively prohibit forms of discrimination affecting men, avoiding the limitation observed in AB v Registrar of BDM: Explanatory Memorandum, Sex Discrimination Amendment Bill 2010 [41] citing Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in eliminating discriminating and promoting gender equality (Report, December 2008), recommendation 7, see also [11.19]–[11.23]. While this renders the specific construction of s 9(10) adopted by the majority of the Full Court in AB v Registrar of BDM non-binding, or at least no longer relevant, it does not affect the authority of its statements on the proper construction of CEDAW, which remain binding, or at least, in light of the amendment, highly influential and capable of being applied.
175 Alternatively, the Commissioner submits that Kenny J's construction of CEDAW is not binding due to the contradictory, and (the suggestion is) more authoritative commentaries subsequently published by the CEDAW Committee. In these commentaries, the CEDAW Committee expresses support for "intersectionality" as a framework to understanding the scope of the obligations under Art 2, and encourages States Parties to take steps to address intersecting forms of discrimination experienced by women: see CEDAW Committee, General Recommendation 28 on the core obligations of States Parties under article 2 of the CEDAW, UN Doc CEDAW/C/GC/28 (16 December 2010) at [18]; CEDAW Committee, General Recommendation No. 33 on women's access to justice, UN Doc CEDAW/C/GC/33 (3 August 2015) at [8]; CEDAW Committee, General Recommendation No 35 on gender-based violence against women, updating general recommendation No. 19, UN Doc CEDAW/C/GC/35 (26 July 2017) at [12]; CEDAW Committee, General recommendation No. 39 on the rights of Indigenous women and girls, UN Doc CEDAW/C/GC/39 (31 October 2022) at [22].
176 Even if I were to regard any such commentaries as permitting a departure from the reasoning of the Full Court in AB v Registrar of BDM that remains on point, I am not convinced that any of these commentaries go so far as to suggest, let alone support, a departure from the meaning of discrimination against women in CEDAW identified in that case. In General Recommendation 28 (at [18]), for example, the CEDAW Committee notes that "discrimination of women based on sex and gender is inextricably linked with other factors that affect women"
