Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Registrar of Births, Deaths and Marriages v MacMahon [2021] NSWCATAP 303 Hearing dates: 6 August 2021 Date of orders: 05 October 2021 Decision date: 05 October 2021 Jurisdiction: Appeal Panel Before: J S Currie, Senior Member Dr J Lucy, Senior Member Decision: 1.Appeal allowed. 2. Decision of the Administrative and Equal Opportunity Division dated 30 November 2020 set aside and the following decision substituted for it: The decision of the Registrar to refuse to register the change of name is affirmed. Catchwords: APPEAL- Question of law- statutory interpretation- power of Registrar of Births, Deaths and Marriages to refuse to register change of name- where use of name contrary to public interest- whether Registrar may have regard to purpose of name change, public record of applicant. STATUTORY INTERPRETATION- Definition- Rule in Kelly v R- Mischief rule- Context- Purpose and object of legislation- use of extrinsic materials- ejusdem generis rule. Legislation Cited: Administrative Decisions Review Act 1997 (NSW), section 63 Births, Deaths and Marriages Registration Act 1995 (NSW) sections 4, 6, 30 Civil and Administrative Tribunal Act 2013 (NSW), section 80 Interpretation Act 1987 (NSW) sections 33, 34. Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Limited (2005) 221 CLR 568 Capello v Roads and Maritime Services [2019] NSWSC 439 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 IW v City of Perth [1997] HCA 30,146 ALR 696 Kelly v R [2004] HCA 12; (2004) 218 CLR 216 MacMahon v R [2011] NSWCCA Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SAS Trustee Corporation v Miles (2018) 265 CLR 137 Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Texts Cited: D. Pearce "Statutory Interpretation in Australia"; Ninth edition, 2019, Lexis Nexis Butterworths; paragraphs 2.21- 2.24, 3.5, 4.63- 4.64, 6.3. Second Reading Speech: Births, Deaths and Marriages Registration Amendment (Change of Name) Bill 2009; Hansard, NSW Legislative Assembly, 23 September 2009. Category: Principal judgment Parties: Registrar of Births, Deaths and Marriages (Appellant) Paul MacMahon (Respondent) Representation: Counsel: H. El Hage (Appellant) Solicitors: Crown Solicitor (Appellant) No appearance by Respondent File Number(s): 2020/00371257 (AP 20/53293) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCTAD 290 Date of Decision: 30 November 2020 Before: C Ludlow, Senior Member File Number(s): 2020/00233742 reasons for decision What is this appeal about? 1. This appeal raises issues concerning the power of the Registrar of Births, Deaths and Marriages ("the Registrar") to refuse to register a change of name in circumstances where the Registrar forms the view that the name proposed for registration is a prohibited name because it is contrary to the public interest. 2. In this case, the applicant for the change of name, Mr Paul MacMahon ("Mr MacMahon") had sought to change his name to "Paul Rawling Mann" and as part of his application he had disclosed two prior criminal convictions. 3. The Registrar, as is her usual practice in such a situation, arranged a National Police Check. The National Police Certificate which issued as a result showed that in fact Mr MacMahon had committed more than 100 offences, had pleaded guilty in 2008 District Court proceedings to 35 counts of what the Court of Criminal Appeal (in MacMahon v R [2011] NSWCCA 147) categorised as "identity fraud offences", 39 counts of what the Court categorised as "tax fraud offences" and 35 summary offences relating to making false statements to the Australian Electoral Commission. The Court of Criminal Appeal upheld the sentence of imprisonment imposed by the District Court, being a head sentence of 6 years with a single non-parole period of 4 years 4. On 9 June 2020 the Registrar advised Mr MacMahon that his application to register the change of name had been declined under sub-section 30(3) of the Births, Deaths and Marriages Registration Act 1995 (NSW) ("the Registration Act") because his proposed new name would be a prohibited name. The Registrar pointed out that under section 4 of the Registration Act a prohibited name included "a name that is contrary to the public interest". On 10 August 2020. the decision to decline registration of the name was affirmed following completion of an internal review requested by Mr MacMahon. 5. The following day Mr MacMahon commenced proceedings in the Administrative and Equal Opportunity Division of this Tribunal, by which he sought administrative review of the Registrar's decision to refuse to register his proposed new name. Those proceedings were heard on 3 November 2020 and on 30 November 2020 the Tribunal ordered that the Registrar's decision be set aside and in substitution ordered that Mr MacMahon's application for registration of change of name be granted. 6. The Registrar appealed against the Tribunal's decision. The Registrar asserted that the Tribunal had erred at law in its construction of section 30 of the Registration Act by concluding that a name does not become a prohibited name 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. She also asserted an error of law by reason of the failure by the Tribunal to address mandatory considerations and asked us to grant leave to appeal. 7. It therefore fell to us to decide: 1. whether the Registrar could bring her appeal as of right, because the Tribunal had made an error of law; 2. whether we should grant the Registrar leave to appeal on grounds which do not identify an error of law; and 3. what orders we should make. 1. We decided that: 1. the Tribunal had made an error of law in its construction of section 30 and of the definition of "prohibited name" in section 4 of the Registration Act and in particular by deciding that: "..the correct interpretation of the s4 definition of "prohibited name" must focus on whether the name itself is contrary to the public interest"; 1. as a result of that decision we did not need to consider whether to grant leave to appeal on grounds which did not identify an error of law and 2. we should order that the appeal be allowed, that the Tribunal's decision be set aside and that in substitution for that decision the Registrar's decision to refuse to register the change of name was affirmed. 1. These are our reasons for those decisions. The approach adopted by the Tribunal 1. It was clear from the Tribunal's reasons for decision ("the Reasons"), especially at [25] to [33], that it had based its decision on the proposition that the Registrar's decision stands or falls by the application of one sub-section of the Registration Act namely sub-section 30(3). Section 30 is in the following terms: "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. The meaning of the term "prohibited name" under the Act was therefore critical to the Tribunal's proposition and its conclusion. 2. "Prohibited name" is defined in section 4 of the Registration Act as: " 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." 1. The Registrar had relied on the "public interest" ground in paragraph (d) of the definition to refuse registration of Mr MacMahon's proposed change of name. 2. The Tribunal expressed succinctly its view that that approach was incorrect. At [29] of the Reasons it concluded that it was apparent from a reading of the definition of "prohibited name" that the other reasons for prohibition stated in section 4 relate to the name itself. The Tribunal described the Registrar's interpretation as requiring a departure from that approach. It concluded that that was not justified and accordingly that the Registrar's interpretation was wrong. 3. In short, the Tribunal's view was that the subject of the prohibition in paragraph (d) of the definition of "prohibited name" in section 4 is limited to the name which has been applied for, of itself, being contrary to the public interest. 4. The effect of the Tribunal's approach is that 1. the Registrar cannot refuse to register a change of name on the basis that the proposed name is a "prohibited name", unless the name itself falls within one or more of paragraphs (a) to (d) of the section 4 definition; and 2. in the Registrar's consideration of the public interest for the purposes of paragraph (d), she should not take into account such matters as the current or potential use of the proposed name or the intentions or character or criminal record of the applicant. 1. In reaching that conclusion, the Tribunal found, at [32], that: "(t)here is no evidence to establish any feature of the name Paul Rawlings (sic) Mann which is contrary to the public interest." 1. On that basis the Tribunal set aside the Registrar's decision and ordered that the application for change of name to Paul Rawling Mann be granted. The parties' cases 1. In summary, the case for Registrar as Appellant was that we should find that the Tribunal had erred on a question of law: 1. by misconstruing section 30 of the Registration Act; 2. by identifying the wrong issue or asking the wrong question and thereby concluding at paragraph [33] of its reasons that: "a name does not become a prohibited name under the (Registration) 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"; 1. by failing to consider the following mandatory matters: 1. how the proposed name would be used by Mr MacMahon and whether that use or potential use would be contrary to the public interest; 2. whether Mr MacMahon had sought the new name for a fraudulent or improper purpose, thereby rendering the name contrary to the public interest; and/or 3. whether Mr MacMahon's criminal record showed that the change of name would be contrary to the public interest. 1. The Registrar also sought leave under section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") to appeal on grounds which did not identify a question of law (or, in the language of the Registrar's submissions, "to appeal from the merits of the Tribunal's decision"). 2. Mr MacMahon's case, as expressed in his Reply, was in essence that the Tribunal's construction of the relevant legislative provisions had been correct and that it had properly considered each of the 3 mandatory considerations referred to above. 3. The Registrar, through Mr El-Hage of Counsel, provided substantial written submissions. Mr El-Hage appeared for the Registrar at the appeal hearing. Mr MacMahon provided no written submissions and did not appear at the appeal hearing. After filing the Reply, Mr MacMahon indicated, in correspondence to the Tribunal, that he no longer wished to press his application for a change of name. CONSIDERATION Construction of definitions: McHugh J's approach in Kelly v R 1. We commence by noting that the Tribunal's approach to statutory interpretation, evident in particular at [27] to [32] of the Reasons, was based on its initial consideration of the defined term "prohibited name". The Tribunal did not adopt the alternate course of reading the definition into the operative part of the Act, (section 30 and in particular sub-section 30(3)) and then construing those substantive provisions with the definition added. 2. In doing so, the Tribunal took a course which was contrary to the one endorsed by McHugh J of the High Court in Kelly v R (2004) 218 CLR 216, 205 ALR 274 ("Kelly") at [103] when he said: "..(T)he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. … once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment." (Emphasis added). 1. McHugh J repeated his warning in Allianz Australia Insurance Ltd v GSF Australia Pty Limited (2005) 221 CLR 568, 215 ALR 385 at [12]. As is noted by Emeritus Professor Dennis Pearce in his authoritative work "Statutory Interpretation in Australia" (9th edition 2019) ("Pearce") at 6.3, the warning corresponds with good drafting practice, which requires the reading of the words of a proposed definition into the text containing the defined term to test its viability and value. If the definition does not fit comfortably into the text, it is clearly inadequate. Although Emeritus Professor Pearce concedes that a degree of flexibility of approach is required in understanding the meaning of a definition, citing Basten JA in Tovir Investments Pty Limited v Waverley Council [2014] NSWCA 379 at [18] (Pearce at pp 262-3), it seems to be accepted that the approach of opening with a detailed analysis of the definition which produces a narrow or literal meaning may invite error, as McHugh J noted in Kelly. More than one construction is open 1. In SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20], ("SAS Trustee"), Kiefel CJ, Bell and Nettle JJ confirmed that: "(t)he starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies." 1. The Tribunal's finding as summarised at [14] and [15] above reflects one possible construction of the provision. But there is another. It arises from consideration of the context in which the definition is to be applied in the Registration Act and of the purpose of that Act and in particular for the purposes of sub-section 30(3). The alternative construction put forward by the Registrar is that a name may be a "prohibited name" under paragraph (d) of the definition as being contrary to the public interest for reasons which do not relate to the name itself. The Registrar's submission was that the language of sub-section 30(3) plainly contemplates a "situational assessment" of a change of name application, including how the nominated name may come to be used by the person seeking the change. 2. The Registrar's position was that the above construction is consistent with the definition of "prohibited name". The term is defined to mean, among other things, "a name that …is contrary to the public interest for some other reason"; that is, a reason other than those given in (a) to (c) of the definition (Registration Act, sub-section 4(1)). The text of the definition is capable of capturing a name that is contrary to the public interest for a broad range of reasons, including (for example) because the name could facilitate fraudulent activities, having regard to the individual's history and circumstances. The words used in the definition do not contain any express limitation of what constitutes the public interest, such that it may relate only to the name of itself. 3. It is difficult to envisage circumstances in which a name of itself would be inherently contrary to the public interest, except in one of the ways anticipated by paragraphs (a), (b) and (c) of the definition. So, although a particular name may be considered to be contrary to the public interest as being obscene, offensive or because it includes an official rank or title, there would be few, if any, circumstances in which a name would, of itself, be contrary to the public interest "for some other reason." 4. That supports the view that the Registrar's power under sub-section 30(3) to refuse to register a name because the new name would be a prohibited name as contrary to the public interest is not limited to consideration of the proposed name in isolation. 5. For that reason and the reasons which follow, we concluded that the exercise of that power may be enlivened by consideration of such matters as the intended or potential use of the name, the motives of the applicant and in particular cases by taking into account such matters as the applicant's public standing and record, including the applicant's criminal record. The real issue 1. As there were two available constructions of the provisions, the real issue was whether the construction relied upon by the Tribunal was the correct one. 2. We examined that issue in accordance with the basis recommended in SAS Trustee; that is by considering separately: 1. the relative coherence of each of the two available constructions with the statutory context in which the provision appears; and 2. the scheme of the statute and its identified objects or policies. Section 33 of the Interpretation Act 1987 (NSW) has relevance to our consideration of the scheme and identified objects of the Registration Act. Section 33 is in the following terms: "33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." 1. The purposive approach to construction required by section 33 of the Interpretation Act is consistent with the approach taken at common law (Kelly v R [2004] HCA 12; (2004) 218 CLR 216 at [98]). Context 1. The relevant principle of statutory construction is that the meaning of a provision (including a definition) will depend on the context in which it appears in the Act and, in the case of a definition, the context of the provisions to which it applies: Pearce at 2.11- 2.13 and 3.5- 3.7. 2. As has been discussed in detail by Pearce at 3.5, the common law "modern approach" to statutory interpretation is as explained by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 in the following terms: "The modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage, when ambiguity might be thought to arise and (b) uses 'context' in the widest sense, to include such things as the existing state of the law and the mischief which…one may discern the statute was intended to remedy…Instances of general words in a statute being so construed by their context are numerous." 1. The term "prohibited name" is used twice in the Registration Act (other than in the definitions section). The first time it is used is in paragraph (a) of sub-section21(2), concerning the registration of the name of a child. That paragraph provides that the Registrar may assign a name to the child if the name stated in the birth registration statement is a prohibited name. In other words, it authorises the Registrar to give a different name to the child from the name nominated by the child's parents. 2. The other provision in which the term "prohibited name" is used is sub-section 30(3). 3. Section 30, which is entitled: "Registration of a change of name", sets limits on the situations in which a change of name may be registered. In particular, apart from allowing the Registrar to require additional information, it sets out the requirements for registration of a change of name as well as the circumstances in which a change of name cannot be registered. For convenience of reference, the text of section 30 is set out in the Appendix to these reasons. Registration Act: the function of paragraph (b) of sub-section 30 (1) 1. As the appellant submitted, the Tribunal's construction of sub-section 30(3) does not sit comfortably with paragraph (b) of sub-section 30(1). If the Tribunal's construction is accepted, it may be asked: what was the legislative purpose of enacting paragraph (b) in the following terms?: "(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- ..(b) that the change of name is not sought for a fraudulent or other improper purpose.." 1. To put the issue another way, what "work" does paragraph (1) (b) of the section do, on the Tribunal's construction of the section? Why would there be any need to consider the purpose of an applicant if the sole test of registrability is the nature of the proposed new name itself? It may be inferred that the purpose of paragraph (b) of sub-section 30 (1) is to allow the Registrar to make an informed decision about whether to refuse to register a name. The only basis on which the Registrar may refuse to registrar a name is if it is a prohibited name, unless Division 3 of Part 5 applies (Registration Act, sub-section 30(3)). This points to a construction of the definition of "prohibited name" as including names which are contrary to the public interest because the name is sought for a fraudulent or other improper purpose. 2. There is already protection against names which are obscene, offensive or contrary to the public interest in the definition of "prohibited name" in section 4 and if (as was the Tribunal's view) the Registrar is to look only at the name itself, the applicant's purpose must be irrelevant. 3. The construction advanced by the Registrar is consistent with the principle that the provisions of an Act are to be construed on the prima facie basis that they are intended to give effect to harmonious goals (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]). Registration Act sub-section 6 (a1): Registrar's function of preventing identity fraud 1. Another aspect of "context" (which could equally be seen to illustrate the importance of the scheme of the legislation and its identified policies as discussed below) arises from section 6 of the Registration Act. That sets out the Registrar's general functions. They include, by operation of sub-section 6 (a1) "… to seek to prevent identity fraud associated with the Register and the information extracted from the Register…" 1. As the Registrar submitted, sub-section 6(a1) is relevant to construing legislative purpose and supports the conclusion that the Tribunal adopted an unduly narrow approach to construing that purpose. It is difficult to see how the Registrar could fulfil her function in relation to name changes effectively if her powers to refuse registration of a name change are constrained in the way which the Tribunal has suggested. On the Tribunal's construction, the Registrar would be required to register a name change even where that change would be likely to facilitate identity fraud. The only situation in which the Registrar could refuse registration is where there was some feature of the name itself which was contrary to the public interest. 2. A construction of "prohibited name" as including names which are contrary to the public interest by reason of the purpose for which or the context in which they are proposed to be used promotes the legislative purpose of preventing identity fraud. That purpose is evinced in sub-section 6(a1). Registration Act sub-section 30(3): adverse consequences must arise from registration 1. As noted above, sub-section 30(3) enables the Registrar to: "refuse to register a change of name if, as a result of the change, the name would become a prohibited name." The operation of the sub-section is triggered by Registrar forming a view about a situation which might emerge "as a result of the change (of name)". The foreshadowed situation is that the proposed new name would become a prohibited name if changed by an entry in the Register. The ground for prohibition (which in this case is the detriment to the public interest) must arise from the act of registration. The existence of the name itself is not the trigger for its "prohibited" status. 2. The sub-section requires a forward-looking exercise and that is consistent with the Registrar having regard to how the proposed name will be used in deciding whether to register it. 3. The Tribunal's construction leaves the phrase "as a result of this change" in the sub-section with no work to do. That construction requires the name per se (taken alone) to bear the characteristic of being contrary to the public interest, before registration can validly be refused. Purpose and object of the Act 1. The Tribunal's reasons at [31] referred to section 33 of the Interpretation Act, but went on to observe that: "The objects of the (Registration) 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" (Emphasis added). 1. The Tribunal used that observation to ground its conclusion at [32] of the reasons that the correct interpretation of the term "prohibited name" in section 4 required that the proposed name of itself be contrary to the public interest. 2. In our view, the Tribunal was in error: 1. in its apparent assumption that an express object of the Act to the effect of the underlined words quoted at [50] was required in order to support the appellant's construction of the definition of "prohibited name"; and, 2. in apparently relying on the matters stated in the "objects" section of the Registration Act, being section 3, as the sole source of the object or purpose of the Act: Reasons at [31]. 1. As to the first of those errors, the wording of section 33 of the Interpretation Act and specifically the words of the section in parentheses cited above at [33] make it clear that a construction which promotes the purpose or object of the Act must be preferred whether or not that purpose or object is expressly stated in the Act. 2. As to the second error, the Tribunal's view is at odds with authorities and commentary as to the nature and construction of objects clauses. A number of important principles on this subject are explained and discussed by Pearce at 2.21- 2.24 and at 4.63- 4.64. Relevantly, they include the following: 1. general statements in legislation as to its purpose or object need to be understood by reference to other specific provisions of that legislation: Pearce 2.21 citing IW v City of Perth [1997] HCA 30,146 ALR 696 per Brennan CJ and McHugh J at 702; 2. like any other legislative provision, 'object or purpose' statements must be interpreted in their context: Pearce at 2.21; 3. an objects clause alone will not represent the object of the legislation. Intention is to be gleaned from the whole of the Act and regard must be had to other sections: Pearce at 4.63; Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129 at 153. This will be the case where the objects are expressed generally or at a level of abstraction: Capello v Roads and Maritime Services [2019] NSWSC 439 at [41]- [43]. 1. We have already referred to the purpose evinced in sub-section 6(a1) preventing identity fraud. Paragraph (b) of sub-section 30(1) also evinces a purpose of prohibiting (or at least permitting the Registrar to prohibit) a change of name which is sought for a fraudulent or other improper purpose. The Registrar's construction of sub-section 30(3) and the definition of "prohibited name" in section 4 of the Registration Act promotes those legislative purposes, whilst the Tribunal's construction of those provisions does not. Use of extrinsic material: Interpretation Act s 34 1. Section 34 of the Interpretation Act (to which the Tribunal did not refer) allows consideration to be given to any material not forming part of the Act or statutory rule, if it is "capable of assisting the ascertainment of the meaning of the provision" and that expressly includes the meaning of the provision if it is ambiguous or obscure. 2. Sub-section 34(2) specifies the material which may be consulted in order to determine the meaning of a particular provision and that includes, by operation of paragraph (e) of the subsection, any explanatory note or memorandum for the legislation and, by operation of paragraph (f), the speech made to a House of Parliament by a Minister. 3. This is consistent with the common law, which requires the statutory text to be considered in its context, including the context of the relevant legislative history and extrinsic materials (Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 at [28]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408). 4. The Explanatory Notes to the Births, Deaths and Marriages Registration Bill 1995 explains clause 30 (which became section 30 of the Registration Act) in the following terms: "Clause 30 allows the Registrar to require additional information before registering a change of name and provides for circumstances in which a change of name cannot be registered (for example where the change is being sought for a fraudulent purpose). (Emphasis added) 1. Sub-section 30(3), which so far as we can ascertain was enacted in the form in which it appeared as Clause 30 of the Bill, is central to the exercise of the Registrar's powers under consideration here. It allows the Registrar to refuse to register a name if, as a result of the change, the name would become a prohibited name. 2. On the Tribunal's construction, that power would be limited to consideration of the name itself. The purpose for which the name change was being sought (whether fraudulent or not) could have no bearing on the outcome of the change of name application. That is irreconcilable with the words of the Explanatory Notes underlined above as to the object or purpose of the provision. 3. In the Second Reading Speech of the Births, Deaths and Marriages Registration Amendment (Change of Name) Bill 2009 as recorded in Hansard for the Legislative Assembly on 23 September 2009, the Minister emphasised certain features of the statutory scheme of the Registration Act as follows: "… to ensure that people with a criminal record do not abuse the change of name system, it is proposed to amend the Act specifically to require a person applying for a change of name to disclose whether or not he or she has a criminal record.… It is not only through legislative amendments that the New South Wales Government is stopping criminals from abusing the change of name system. New South Wales recently implemented a memorandum of understanding between New South Wales Police Force and the New South Wales Registrar of Births, Deaths and Marriages ensuring that information is exchanged between the two agencies regarding people with criminal histories who change their names. Change of name information held by the Registrar is of interest to a range of law enforcement and security agencies." 1. The Minister's observations were directed principally to the perceived improvements to the legislation by virtue of the introduction of section 29A (which added the requirement for applicants for a name change to disclose their criminal record). Nevertheless, when read with the Explanatory Note to Clause 30 set out in [57] above, it is clear that the purposes or objects of the legislation or, to adopt the High Court's terminology in SAS Trustee, "the scheme of the statute and its identified objects or policies", included the avoidance of abuse of the change of name by regime by people with a criminal record. 2. The Tribunal's construction of the relevant provisions is not supported by this significant extrinsic material. "Ejusdem generis" 1. The Tribunal relied on the ejusdem generis rule of construction, in its reasons at [30], for the implication that the general words in paragraph (d) of the definition of "prohibited name" relate to names not to other matters. In our view, that reliance was misplaced. 2. The ejusdem generis rule has no application to the section 4 definition of "prohibited name". As Pearce emphasises at 4.34- 4.35, the very name of the rule indicates the necessity of establishing a genus before the rule can be applied. 3. There is no identifiable genus common to paragraphs (a) to (d) of the definition. If the legislature had intended to create "public detriment" (that is, the characteristic of being contrary to the public interest) as the genus of the whole definition, it would have used that or a similar term in the opening words of the definition. In its absence, for example, where a name cannot practicably be established by repute or usage because it consists of symbols without phonetic significance, it can be refused registration on that ground alone, without it being necessary also to establish that its registration would be contrary to the public interest. Conclusion 1. For those reasons, we concluded that the Tribunal erred at law in its construction of the Registration Act, specifically sub-section 30(3) and the definition of "prohibited name" in section 4, in its application to the established facts of the case. 2. It followed that the appeal must be allowed. 3. In those circumstances it was not necessary to consider the Registrar's further contentions summarised at [19] above, namely that the Tribunal had considered the wrong issue or asked the wrong question or that it failed to consider the mandatory matters specified at [19](2) above. Consideration of those matters would not have altered the result or our proposed orders. Nor was it necessary to consider whether to grant leave to appeal under paragraph (b) of sub-section 80(2) of the NCAT Act on a ground which does not identify an error of law. What orders should be made? 1. The appellant sought orders under paragraph (d) of sub-section 81(1) of the NCAT Act substituting another decision for the decision under appeal. The Registrar asked the Appeal Panel to substitute a decision that Mr MacMahon's application for a change of name be refused. 2. The Registrar suggested that the Appeal Panel should exercise the power in paragraph (d) of sub-section 80(2) of the NCAT Act "to extend the appeal to the merits" and then form the view that the registration of the name Paul Rawlings Mann was "contrary to the public interest." In our view, having found that the decision was vitiated by an error of law, and having decided to set that decision aside, no useful purpose is served by granting leave to appeal on a ground which does not raise an error of law, under paragraph (d) of sub-section 80(2). 3. Another possible basis for reconsidering the "merits" of the decision below is to deal with the appeal by way of a new hearing under paragraph (a) of s 80(3) of the NCAT Act. We could see no proper basis to deal with the appeal in this way, because: 1. the appeal was to be allowed on the basis of an error of law, 2. the obvious effect of our allowing the appeal is that the Tribunal's finding that the Registrar's decision was wrong must itself be set aside and, in effect, reversed; 3. there was no remaining dispute or issue concerning the facts of the matter; and 4. to hold a new hearing in these circumstances would not be "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (NCAT Act, sub-section 36(1)). 1. We considered, on the other hand, that paragraph (d) of sub-section 81(1) of the NCAT Act, read with sub-section (2) of that section, gives us power to substitute another decision for the decision under appeal and, for that purpose, to consider the merits of the matter. Subsection 81(2) provides that: "The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance." 1. If we are wrong about this, and paragraph (d) of sub-section 81(1) does not, of itself, give us power to consider the merits of the issues which were before the Tribunal at first instance, we would deal with the appeal by way of a new hearing under paragraph (a) of sub-section 80(3) of the NCAT Act. 2. We do not consider there to be any denial of procedural fairness to the respondent in proceeding in this way. The Appeal Panel made orders on 11 February 2021 at a callover which Mr MacMahon attended. A notation to those orders, which were sent to him, stated: "At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence or evidence in addition to evidence received by the Tribunal at first instance and make any submissions in relation to the original application that they want to make." 1. On the day of the hearing, Mr MacMahon did not dial into the virtual hearing room. The Appeal Panel made enquiries of the Deputy Registrar shortly after the opening of the hearing and the Deputy Registrar informed us that Mr MacMahon indicated he did not intend to appear. At the hearing, the Registrar made submissions about the factual aspects of the matter and invited the Appeal Panel to make a decision in her favour "on the merits." 2. The Tribunal's function, at first instance, was to decide what was the correct and preferable decision, having regard to the material before it (Administrative Decisions Review Act 1997 (NSW), sub-section 63(1)). We have considered that question when deciding whether to make a decision in substitution for the decision under appeal and, if so, what decision to make. 3. The Registrar has put forward a number of reasons why the decision made by her was the correct and preferable decision. 4. In our view, the Registrar's decision to refuse Mr MacMahon's application for a change of name was the correct and preferable decision, because the proposed name was a "prohibited name" being "a name that is… contrary to the public interest for some other reason" within paragraph (d) of the definition. 5. Mr MacMahon's proposed name is contrary to the public interest for the reason that there is a risk that he will use it for a fraudulent purpose. That is so, having regard to his criminal history which involves convictions for multiple offences involving identity theft and fraud. There is also a risk that the change in name would allow Mr MacMahon to conceal his past. There was no evidence before us to establish that he has reformed. 6. For these reasons, we consider that, as a result of the proposed change of name, the proposed name (Paul Rawling Mann) would become a prohibited name, within s 30(3) of the Registration Act. Another reason for refusing to register the change of name is that Mr MacMahon has indicated, in correspondence to the Tribunal, that he no longer wishes to press his application for a change of name. 7. The correct and preferable decision in the circumstances involves our exercise of the discretion in sub-section 30(3) of the Registration Act to refuse to register Mr MacMahon's proposed change of name. That is the decision which he sought to have reviewed in his application to us. 8. It followed that we should order that the Tribunal's orders be set aside and that, in substitution for them there be an order that the decision of the Registrar to refuse to register the change of name is affirmed. We ordered accordingly. ORDERS 1. Appeal allowed. 2. Decision under appeal of the Administrative and Equal Opportunity Division dated 30 November 2020 set aside and the following decision substituted for it: The decision of the Registrar to refuse to register the change of name is affirmed. ********** APPENDIX RELEVANT STATUTORY PROVISIONS Interpretation Act 1987 (NSW) 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material— (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision— (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes— … (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House… Births, Deaths and Marriages Registration Act 1995 (NSW) 3 Objects of Act The objects of this Act are to provide for-- (a) the registration of births, deaths and marriages in New South Wales, and (b) the registration of adoption information, and (c) the registration of changes of name and the recording of changes of sex, and (d) the keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex in perpetuity, and (e) access to the information in the registers in appropriate cases by government or private agencies and members of the public, from within and outside the State, and (f) the issue of certified information from the registers, and (g) the collection and dissemination of statistical information. 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. 6 Registrar's general functions The Registrar's general functions are … (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… 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. 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 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: 05 October 2021