Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MacMahon v Registrar of Births, Deaths and Marriages [2020] NSWCATAD 290 Hearing dates: 3 November 2020 Date of orders: 30 November 2020 Decision date: 30 November 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The decision of the Registrar is set aside and in substitution for that decision, the application for registration of change of name to Paul Rawlings Mann is to be granted. Catchwords: ADMINISTRATIVE LAW – registration of change of name – power to refuse STATUTORY INTERPRETATION – linguistic maxims - context Legislation Cited: Births Deaths and Marriages Registration Act 1995 (NSW) Criminal Records Act 1991(NSW) Interpretation Act 1987 (NSW) Cases Cited: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Macmahon v R [2011] NSWCCA 147 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia, (8th ed., Lexis Nexis Butterworths, 2014). Category: Principal judgment Parties: Paul MacMahon (Applicant) Registrar of Births, Deaths and Marriages (Respondent) Representation: Solicitors: Applicant (Self Represented) S Pintamalli, (Legal Government and Corporate Services, Department of Customer Service) (Respondent) File Number(s): 2020/00233742 Publication restriction: Nil REASONS FOR DECISION Background 1. On 22 May 2019, Mr MacMahon sought to register a change of his name under the Births Deaths and Marriages Registration Act 1995 (BDMR Act) from Paul MacMahon to Paul Rawlings Mann. The Registrar refused to register the change of name on the basis that it was a prohibited name within the meaning of s 4 of the BDMR Act because it was contrary to the public interest. 2. Mr MacMahon seeks a review of that decision in the Tribunal. Relevant legislation 1. The relevant provisions of the BDMR Act are set out below. "4 Definitions … "prohibited name means a name that— (a) is obscene or offensive, or (b) could not practicably be established by repute or usage— (i) because it is too long, or (ii) because it consists of or includes symbols without phonetic significance, or (iii) for some other reason, or (c) includes or resembles an official title or rank, or (d) is contrary to the public interest for some other reason. 26 Change of name by registration A person's name may be changed by registration of the change under this Part. 27 Application to register change of adult's name An adult person may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the person's name if— (a) the person's birth is registered in the State, or (b) the person was born outside Australia, the person's birth is not registered in Australia and the person has been resident in the State for at least 3 consecutive years immediately preceding the date of the application. 29A Requirement to disclose criminal record (1) The form approved by the Registrar for an application for registration of a change of an adult's name is to include a requirement to the effect that the applicant disclose whether he or she has been convicted of a relevant offence. (2) The form approved by the Registrar for an application for registration of a change of a child's name is to include a requirement to the effect that the applicant disclose whether the child has been convicted of a relevant offence. (3) An offence against section 57 in relation to a false or misleading disclosure referred to in this section in an application for registration of a change of name is in addition to an offence against that section for any other false or misleading representation made in the same application. (4) In this section— conviction for an offence— (a) includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999, and (b) does not include a spent conviction within the meaning of Part 2 of the Criminal Records Act 1991 or a conviction that is taken to be quashed within the meaning of Part 4 of that Act. relevant offence means— (a) an offence in New South Wales that is punishable by imprisonment for 12 months or more, or (b) an offence in a jurisdiction other than New South Wales that, if committed in New South Wales, would be an offence so punishable. Note— The provision of false or misleading information in an application for registration of a change of name in relation to disclosure of convictions for relevant offences constitutes an offence against section 57 with a maximum penalty of 100 penalty units or 2 years imprisonment or both. 29B Restrictions on number of changes of name that may be registered The Registrar is not to register a change of name of a person on application made under this Act if the Registrar is aware that— (a) a change of the person's name has been registered (whether in this State or in another State) within the period of 12 months immediately preceding the date of the application, or (b) 3 or more changes of the person's name have been registered (whether in this State or in another State). 30 Registration of change of name (1) Before registering a change of name under this Part, the Registrar may require the applicant to provide evidence to establish to the Registrar's satisfaction— (a) the identity and age of the person whose name is to be changed, and (b) that the change of name is not sought for a fraudulent or other improper purpose, and (c) if the person whose name is to be changed is a child—that the child consents to the change of name or is unable to understand the meaning and implications of the change of name, and (d) the reasons for making the application for registration of the change of name if the registration of the change would require the Registrar to exercise his or her discretion under section 29C. (2) If the Registrar is satisfied that the name of a person whose birth is registered in the State has been changed under another law (including a law of another State or the Commonwealth) or by order of a court (including any court of another State or the Commonwealth) the change of name may be registered under this Act. (3) The Registrar may refuse to register a change of name if, as a result of the change, the name would become a prohibited name." 1. Section 56(1) provides: "(1) A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision." 1. Section 63 of the Administrative Decisions Review Act 1997 provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." The Registrar's evidence and submissions 1. The Registrar's representative adduced evidence of Mr MacMahon's previous name change application. On 13 December 2006 a change of name was registered for the applicant from Paul Joseph McMahon to Paul MacMahon. 2. When making his application in 2019, Mr MacMahon consented to a criminal records check and disclosed two criminal convictions for which he had received a prison sentence, described as follows: 1. Tax fraud 24 September 2009; and 2. Bankruptcy Act 24 September 2009. 1. In his application Mr MacMahon stated that his wife's family name is Rawling and that he often referred to as "Mr Rawling". He stated: "My ex-wife (divorced 1999) continues to harass my new wife and our three children and was the informant to police which led to my conviction 10 years ago for tax fraud. At that time and since, she has been responsible for several newspaper articles and internet blogs about me which contain much information which is false. These actions are affecting my health and wellbeing and that of my younger children … Internet searches and updates continue to make reference to my past and cause me distress and depression and this affects my children, my wife and me." 1. Section 29A(4) of the BDMR Act provides that spent convictions need not be disclosed when applying for a change of name. Section 7(1)(a) of the Criminal Records Act 1991 provides that conviction for which a prison sentence of 6 months or more is imposed cannot be spent. Section 9 provides that a conviction of the District Court will be spent after any period of not less than 10 consecutive years after the date of the person's conviction during which— 1. the person has not been convicted of an offence punishable by imprisonment, and 2. the person has not been in prison because of a conviction for any offence and has not been unlawfully at large. 1. The Registrar obtained a criminal record check for Mr MacMahon. This document which was in evidence, shows that Mr MacMahon was convicted for a number of offences on 24 September 2009 for which sentences of more than 6 months were imposed. The nature and number of those offences is dealt with below. He has not been convicted for any other offence since 2009. 2. The Registrar declined the application under s 30(3) of the BDMR Act on the basis that the name was a prohibited name. On internal review this decision was confirmed but the decision was said to be because the Registrar was not satisfied that the applicant would not use the new name for fraudulent and improper purposes. 3. There is no reference in s 30(3) or elsewhere to an express power in the BDMR Act to decline an application on the ground that the Registrar is not satisfied that the applicant would not use the name for fraudulent and improper purposes. The Registrar did not rely on this ground before the Tribunal. 4. The Registrar submitted that Mr MacMahon had not been open and honest in his application as he had only disclosed two convictions. The Registrar noted that his convictions involved fraud and dishonesty and submitted that his application to change his name was intended to conceal his convictions from others. The Registrar submitted that the new name was a "prohibited name" because it would be contrary to the public interest. This was because: 1. It is in the public interest for people to be able to gain knowledge of a person's criminal history for business and employment purposes. 2. It was contrary to the principles of open justice for him to be permitted to change his name, as it would discourage the making of fair and accurate reports of judicial proceedings. 3. A change of name could facilitate identity fraud associated with the Register. It is one of the Registrar's functions under s 6(a1) (a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register. The applicant's evidence and submissions 1. Mr Macmahon submitted: 1. His previous name change was not relevant as the offences relied upon occurred after that name change. This did not support an inference that he had changed his name to avoid being associated with those convictions. 2. The offences all occurred within a short period between 2000 and 2003. He was convicted much later, in 2009 and the offences were not as recent as the conviction date suggested. 3. He did not disclose all of the offences on his application as he assumed that the Registrar would conduct a criminal record check (to which he agreed on his application). He spoke to staff at Services NSW and understood that what he had disclosed would be sufficient as space did not permit listing all the offences. 4. He disagreed that he had an extensive criminal history. The convictions all derived from the same set of circumstances over an 18 month period between 2001 and 2003 shortly after his divorce and were related to financial stress and his bankruptcy. They were connected with his use of false identity documents to open bank accounts and travel outside Australia without the consent of a trustee, as well as tax fraud. It was not an extensive criminal history over a long period of time. 5. His convictions had been a source of embarrassment and discrimination. He stated that his wife had been discriminated against by her employer and his former spouse continued to provide information to journalists in order to cause trouble for him. 6. He wanted to change his name so that his wife and children would not have problems as a result in the future. His children had faced taunts at school. 1. He relied upon a number of newspaper articles to demonstrate that his criminal record was often brought up in the media. 2. As the criminal record check did not contain information relating to the period in which the offences had occurred or the circumstances, I asked Mr MacMahon if he had evidence to support his claim that the offences occurred during a short period and were related to financial pressures. 3. He stated that he did not have a transcript of the trial or any evidence relating to the factual circumstances of his offences. He agreed to the Tribunal examining the appeal decision Macmahon v R [2011] NSWCCA 147 (his appeal from his sentence) for the purpose of determining those matters. 4. In the judgment, Hoeben J with whom Grove AJ and Hodgson JA agreed, stated that the appellant pleaded guilty in the District Court in 2008 to the following identity fraud offences: 1. Five counts of making a false statement in an application for an Australian passport contrary to s10(1)(a) of the Passport Act 1938 (Cth). 2. Seven counts of departing Australia whilst an undischarged bankrupt without the consent of his trustee contrary to s272(1) of the Bankruptcy Act 1966 (Cth). 3. Two counts of making a statement capable of misleading an identifying cash dealer contrary to s 94(4)(aa) of the Financial Transactions Reports Act 1988 (Cth) (the FTRA). 4. Twenty seven counts of operating an account with a cash dealer in false names, contrary to s24(1) of the FTRA. 5. One count of attempting to open an account with a cash dealer in a false name contrary to s24(1) of the FTRA and s11.1 Criminal Code 1995 (Cth). 1. He also pleaded guilty in the District Court to the following tax offences: 1. Fifteen counts of dishonestly obtaining a financial advantage from a Commonwealth entity by deception, contrary to s134.2 of the Criminal Code 1995 (Cth). 2. Twenty four counts of attempting to dishonestly obtain a financial advantage from a Commonwealth entity by deception, contrary to s11.1 and 134.2 of the Criminal Code 1995 (Cth). 1. In addition, there were thirty five summary offences relating to the making of false statements to the Australian Electoral Commission in applications for registration on the Electoral Roll 2. According to his Honour the appellant was sentenced by Tupman DCJ to an aggregate head sentence of 6 years commencing 25 September 2009 and expiring 24 September 2015. Her Honour fixed a single non-parole period of 4 years commencing 25 September 2009 and expiring 24 September 2013. 3. The following portion of the judgement is relevant: "16 The appellant was an undischarged bankrupt from 23 June 1999 until 6 December 2005. Between October 1995 and 6 December 2005 he embarked on a course of accumulating false identity documents, some of which were in the names of people who existed but were at the time deceased and some of which were in the names of deceased's children. This was done to avoid the likelihood of conflicting identity documents. The first of such documents came into existence in October 1999 with the issue of a "camouflage passport" in the name of "Ian John Lord" bearing a photograph of the appellant and purporting to have issued from a non-existent country "British West Indies". 17 By June 2004 the appellant had obtained four false named passports, opened 29 false named bank accounts and registered false names with the Australian Electoral Commission on 35 occasions. 18 Twenty nine of the names he assumed were the names of, or derivatives of the names of deceased persons, including names he had obtained from obituary pages and from tombstones. The appellant then applied to obtain birth certificates in the names of the deceased. Two of the names he assumed were the names of former associates. 19 In addition, he rented premises in false names, leased post office boxes in false names, travelled overseas using false names and opened bank accounts using false names. 20 By October 2001 the appellant had commenced using the false names and/or the names of unsuspecting associates to gain control of companies, registered those companies for GST purposes and lodged false BAS forms on behalf of those companies. … 21 In order to carry out the tax fraud offences the appellant obtained control of 32 companies by registering with ASIC the appointment of directors or secretaries, using assumed names, including the names of deceased children and the names of associates and in many cases providing false or non-existent addresses. 22 Lodgment of the fraudulent BAS commenced on about 4 October 2001 and ceased on about 26 July 2002, a period of approximately 10 months. It was necessary for the appellant to maintain extensive records in order to keep track of companies he controlled, the BAS forms he had lodged and the names, addresses and telephone numbers he had assumed." 1. It is apparent from this that the entirety of the criminal conduct did not, as Mr MacMahon claimed, occur over a confined three year period. It occurred between 1995 and 2004. What is more, a substantial proportion of the offences related to procuring false identification documents and false names. Some of the conduct preceded his bankruptcy. 2. Mr MacMahon disputed some of this account and said that he did not return to Australia until 1998 and the relevant legislation requiring BAS forms did not come into effect until 2000. There was no evidence of when he returned to Australia but in any event I accept the facts as stated in the Court of Criminal Appeal's judgment as it had access to the District Court trial records. In his submissions to this Tribunal, Mr MacMahon focused on the tax offences and that he had repaid most of the money defrauded. The other offences are also relevant, however, as they were punishable by imprisonment for 12 months or more. Consideration 1. It is the task of this Tribunal to determine what is the correct and preferable decision in this case. The Respondent says that the correct and preferable decision is that the application should be refused under s 30(3). 2. That section provides: "The Registrar may refuse to register a change of name if, as a result of the change, the name would become a prohibited name." 1. A "prohibited name" includes a name which is contrary to the public interest. The "public interest" is an inherently broad concept (Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. Intrinsically there is nothing contrary to the public interest in the name itself. But as a result of the change, the name would be registered for use by Mr MacMahon. It is that which the Respondent says would make the name contrary to the public interest, for the reasons stated. 2. The legal representative for the respondent stated that he was unable to find any case law on what was meant by a name being contrary to the public interest in a similar context. I have not been able to locate any relevant cases in this or other Australian jurisdictions. 3. On a reading of the definition of "prohibited name" it is apparent that the other reasons under s 4 relate to the name itself. The Registrar's interpretation requires that when interpreting "contrary to the public interest" the Tribunal departs from that approach to examine how the name is used or to whom it is applied. 4. This interpretation does not flow from the words of the section. It is also contrary to the approach which requires that a provision be interpreted in light of its context (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 405; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11].) It may also be seen as contrary to the ejusdem generis rule of statutory interpretation which implies that the general words in s 4(d) will relate to names not to other matters (D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed., Lexis Nexis Butterworths, 2014), 4.25).. 5. Section 33 of the Interpretation Act 1987 requires that In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether or not expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. The objects of the Act do not include any express object relating to ensuring that people who have committed criminal offences continue to use the name under which they were convicted. 6. In my view the correct interpretation of the s. 4 definition of "prohibited name" must focus on whether the name itself is contrary to the public interest. There is no evidence to establish any feature of the name Paul Rawlings Mann which is contrary to the public interest. 7. Having considered these matters, I have reached the conclusion that a name does not become a prohibited name under the BDMR Act on the basis that it is contrary to the public interest unless there is some feature of the name itself which is contrary to the public interest. From the Registrar's perspective, any change of name the applicant requested would be contrary to the public interest and could be refused on the ground that it was a prohibited name. That is not the correct interpretation of the provisions, in my view. It follows that the matters relating to the applicant's criminal record are therefore not relevant to whether the name itself is a prohibited name in this case. 8. The correct and preferable decision based on a proper interpretation of the powers under the legislation would be to grant the change of name. Orders 1. The decision of the Registrar is set aside and in substitution for that decision, the application for registration of change of name to Paul Rawlings Mann is to be granted. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 15 December 2020 - Typographical error corrected in [1] and [32] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2020