Afchal v Registrar of Births, Deaths and Marriages

NCAT Administrative and Equal Opportunity|2020-12-14

Introduction

The applicants married in Lebanon in 2002. They have three children who, at the time of the hearing, were all under the age of 18.
In August 2020 both applicants legally changed their name. The father changed his surname from Ali to El Masri, and the mother reverted to her maiden surname of Afchal. Each of them has a 'Change of Name Certificate' confirming the name change.
Ms Afchal then applied for birth certificates for the children. The respondent Registrar issued the birth certificates, each of them showing the child now bears the surname El Masri, and each of them containing an 'endorsement' that the full name of the child was previously recorded as '[given name] ALI'.
But the birth certificates do not reflect the parents' current names in the sections labelled 'Mother' and 'Father'. Instead they show the names each of the parents had at the time the children were born.
This is what the applicants are unhappy about. They want their current surnames, not their former surnames, to be shown at the relevant sections of the birth certificates of their children.
The Registrar has refused to issue birth certificates reflecting the applicants' wishes. The Tribunal has to determine whether the Registrar's decision is correct, or whether the Tribunal should make an alternative decision.

The Tribunal's jurisdiction

The application for administrative review is brought under s 56 of the Births, Deaths and Marriages Registration Act 1995 (BDMR Act). The administrative review of the Registrar's decision is to be conducted under the Administrative Decisions Review Act 1997 (ADR Act): BDMR Act, s 56(1).
Section 63 of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it (subsection (1)); and for the purpose of conducting the review, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Registrar (subsection (2)).

Relevant legislation

The objects of the BDMR Act are to provide for, among other things, the registration of births, deaths and marriages in New South Wales; the keeping of registers for recording and preserving information about births, deaths and marriages; and the issue of certified information from the registers: s 3.
The Registrar's general functions include establishing and maintaining the various registers that are needed (which are collectively referred to as the 'Register'), and maintaining the integrity of the Register: s 6.
If a child is born in New South Wales, the birth must be registered: s 13(1). To have a birth registered, a person must give a notice of the birth to the Registrar (this notice is called the birth registration statement), specifying the particulars required by the regulations: s 14.
By s 17(1), the Registrar registers a birth by making an entry about the birth in the Register, including the particulars required by the regulations.
It will be seen that both s 14 and s 17(1) make reference to the 'particulars required by the regulations'. Those particulars are specified in clause 5(1) of the regulations (Births, Deaths and Marriages Registration Regulation 2017 - BDMR Regulations), as follows: 1. the sex and date, time and place of birth of the child, 2. the weight of the child at birth, 3. whether or not the birth was a multiple birth, 4. the full name (including, if applicable, the original surname), date of birth (or age), place of birth, occupation and usual place of residence (at the time of delivery) of each parent of the child, 5. the date and place of marriage of the parents of the child (if applicable), 6. the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child, 7. whether or not either of the parents of the child is of Aboriginal or Torres Strait Islander origin, 8. if either parent of the child was born outside Australia, the period of residence in Australia of that parent.
Section 21 of the BDMR Act also requires the birth registration statement (see [13] above) to state the name of the child.
Bearing in mind that one of the general functions of the Registrar is to maintain the integrity of the Registry, it is critical that the information provided to the Registrar, and recorded in the Register, is as accurate as possible.
Nevertheless, sometimes the information recorded will be incomplete, or incorrect, and there are mechanisms to deal with cases of that kind.
So, for example, s 20 of the BDMR Act allows for an application to be made to the Registrar for the addition of registrable information in a person's birth registration. (As defined in s 4(1), 'registrable information' is 'information that must or may be included in the Register'.)
Section 45 provides that the Registrar may correct the Register 'to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event'. (A birth is a 'registrable event': s 4(1).)
The Registrar is empowered by s 49 of the BDMR Act to issue a certificate certifying particulars contained in an entry in the Register. This is what is known as a birth certificate (or a marriage certificate, or a death certificate) - a document issued by the Registrar, and certifying that the information contained in it is precisely as it appears in the relevant entry in the Register.
And so, what is being reviewed by the Tribunal in this case is the Registrar's refusal to alter the particulars in the entries in the Register for the birth of each of the children. The question is whether the Registrar can, and if so whether she should, alter any of the particulars in the entries. Only if that question is answered in the applicants' favour will the Registrar be able to issue birth certificates that will satisfy the applicants' wishes.
(Whereas the application for administrative review also asks for the change in the parents' surnames to be 'noted in the Endorsement section [of the birth certificates] along with the children's details', I was informed by the Registrar's representative that there is no legislative provision dealing with endorsements.)

The applicants' submissions

The applicants' central submission is that name changes can be applied retrospectively to records held by the Registry.
They say the Registrar is effectively reading clause 5(1)(d) of the BDMR Regulations (see [15] of these reasons) as if the 'temporal qualifier' - that is, the words '(at the time of delivery)' - applies to the entirety of paragraph (d), rather than, as they submit is the case, only to the words 'occupation and usual place of residence … of each parent of the child'. They note that other items mentioned in the paragraph - date and place of birth of the parents - will not change over time, but, while conceding that the full name of a parent may change over time, it would be 'incoherent' to accept that the temporal qualifier, located at the end of the clause, refers also to the full name 'which is located at the beginning [of the clause] and separated [from it] by date of birth (or age), place of birth'.
The applicants also refer to s 31 of the BDMR Act, which deals with the registration of a change of name. It is helpful to set out s 31 in full: 31 Entries to be made in the Register (1) The Registrar registers a change of name by making an entry about the change of name in the Register including the particulars required by the regulations. (2) If the applicant for registration of the change of name asks the Registrar to arrange for noting the change of name in the particulars of the person's birth, and the person's birth is registered under this Act or a corresponding law, the Registrar must - (a) if the birth is registered under this Act - note the change of name in the entry relating to the birth, or (b) if the birth is registered under a corresponding law - give notice to the relevant registering authority of the change of name. (3) If the change of name is noted in the Register under subsection (2), a birth certificate issued by the Registrar for the person must show the person's name as changed under this Part.
The applicants' submission in relation to s 31 is as follows (Written Submissions in Chief; original emphasis, minor errors corrected): [21] As per section 31 BDMR Act, the Registry enters a change of name in the Register. This happened in the applicant's case. Then in accordance with section 31(3) BDMR Act, if the name is changed then a birth certificate must show the person's name as changed under that part. [22] It is clear that section 31(3) BDMR Act refers to the same person who changed their name seeking to be issued their own birth certificate with their new name. It is unclear if section 31(3) BDMR Act can be extrapolated out to consider additional names such as parents, but it does not indicate any prohibition on such an action and therefore could not support the Internal Review decision. [23] Indeed, one reading could suggest that once a name has been changed in accordance with section 31 BDMR Act, then all subsequent certificates issued by the Registry must show the person's name as changed under that part of the Act. The Act would support such an action when read in conjunction with sections 18, 19 and 20 BDMR Act.
The applicants' submissions continue: [26] The Registry has the power to change the applicant's name in the Register as per section 31 BDMR Act. The change of name is Registerable information. [27] The Registry has the power to amend and add Registerable information in a person's birth registration as per section 20 BDMR Act and correct the Register as per section 45 BDMR Act. [28] The Registry has the power to issue birth certificate[s] as per section 49 and with reference to section 31(3) BDMR Act, certifying the particulars in the entry including the updated and amended Registerable information as recorded in the Register.

The Registrar's submissions

On internal review the Registrar provided the following explanation for the refusal decision (section 58 documents, Tab 15): When a person changes their name, it cannot be applied to any record held by the Registry retrospectively. As the change of names for your and husband and you (sic) were registered in 2020, and your children were born in 2003, 2005 and 2014, I cannot approve the amendment of your names.
That broad reasoning has been carried over to the Registrar's submissions in the Tribunal.
In summary, the Registrar submits that there is no provision in the BDMR Act that authorises the action sought by the applicants.
So, it is submitted, while s 20 of the BDMR Act deals with applications for the addition of registrable information in a person's birth registration, what the applicants are seeking here is not the addition of information that may have been originally omitted, but the alteration of the information that was originally recorded. (The Tribunal notes that while the heading to s 20 is 'Alteration of details after birth registration', the text of the provision is confined to applications for the addition of registrable information.)
In addition, while s 45 permits the Registrar to correct the Register, it is submitted that there must first be an error before there can be a correction. As the information recorded in each of the entries correctly reflects the parents' names at the time of birth, there is no error and therefore nothing to correct.
The Registrar's written submissions also refer to s 31G of the BDMR Act but I consider that provision irrelevant to this case as it concerns only 'restricted persons' such as prison inmates, persons on remand and persons on parole.
On the question of the construction of clause 5(1)(d) of the BDMR Regulations, the Registrar submits that a provision in a statute should be interpreted in light of its context based on the 'purpose' approach to statutory interpretation. The applicants' interpretation, it is submitted, would destroy the integrity of the registrable event, being the birth. The Registrar says that to accept the applicants' interpretation would mean a parent who changes their name, at any point in the parent's life, could request a change to someone else's birth certificate decades after the birth.

The applicants' submissions in reply

In reply, the applicants submit that sections 14 and 17 of the BDMR Act ('How to have the birth of a child registered' and 'Registration' respectively) only refer to the notification of a birth and entry of the record of a birth, and provide no instruction on the Registrar's power to amend or correct a record after it has been entered.
They submit there is no limitation on the power to correct a record after a person legally changes their name; indeed, s 45(3) of the BDMR Act provides the power to correct the Register by adding, altering or deleting particulars contained in an entry.
As for the Registrar's submission on the 'purpose' approach to statutory interpretation, the applicants' submission is that the purpose of clause 5(1)(d) of the BDMR Regulations is only to inform ss 14 and 17 of the Act and therefore it does not apply to corrections of the records held by the Registrar. In any event, the clause 'still has to make grammatical and legal sense', and what the respondent's written submissions are asking us to accept is that the temporal qualifier applies to the names of the parent/s, skips the date and place of birth and then applies to occupation and the usual place of residence. The applicant submits that if these grammatical gymnastics were the intention of the Parliament, they would have made that clear in the language of the text.

Consideration

What the applicants are asking for is an alteration to specified particulars in their children's birth records to reflect the change in the applicants' names. If the request were granted, each of the children's records would show their father's surname as 'El Masri' rather than 'Ali', and their mother's surname as 'Afchal' rather than 'Ali (formerly Afchal)'.
Now, it is clear from the language of s 45 of the BDMR Act that the Registrar has the power to correct the Register. That power can be exercised, relevantly for this case, 'to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event'. If the entry is not in conformity with the most reliable information available, then the Registrar corrects the Register by 'adding, altering or deleting particulars contained in [the] entry'.
The use of the word 'correct', or 'corrects', in s 45 is significant. The ordinary meaning of the verb 'correct' is 'to set right, or remove the errors or faults of': Macquarie Dictionary, Federation Edition, 2001. It stands to reason that there must first be an error in the entry before the Registrar can do any correcting under s 45. Put another way, in the absence of an error there is no scope for an entry to be brought into conformity with the most reliable information because, being error-free, it will already be in conformity with the most reliable information.
It is implicit in the applicants' case that they view the information, in their children's birth records, about the applicants' current names as more reliable than the information that is currently held by the Registrar. Whether that is so depends on whether a birth entry is meant to contain information taken as a 'snapshot' of the circumstances that existed at the time of the event, or information that can change over time to reflect circumstances that may come into existence after the event.
In my view, and subject to an exception dealt with in [45] below, the 'snapshot' characterisation is the correct one. This is because s 45 talks of 'the most reliable information … of the registrable event'. It focuses squarely on the event itself, not on what may occur at some time in the future. Future events or changes in circumstances, such as the parents' subsequent change of name, are not part of the record of the birth event. As those circumstances were not then in existence, they could not be included in the birth registration statement, and there is no mechanism to have them included in the birth entry at a later time.
(I also note that the inclusion of the 'temporal qualifier' in clause 5(1)(d) of the BDMR Regulations - even though the location of the qualifier may perhaps be seen as clumsy - supports the 'snapshot' characterisation.)
The exception, foreshadowed in [43] above, is the permitted change of name of the children themselves in each of their birth records. This is a true exception to the general rule, specifically authorised by s 31 of the BDMR Act, but there is no corresponding provision authorising the Registrar to note the change of name of the parents in the birth records of the children. For completeness, and as far as the applicants' submissions in relation to s 31 are concerned (see [27]-[28] above), I do not accept that s 31(3) authorises the particulars of the change of name of the parents to be included in the Register entry for the children.
It follows that there is no error in the recording of the parents' names in the children's birth entries. Therefore, s 45 of the BDMR Act does not authorise the alteration requested by the applicants.

Endorsements

As I was informed by the Registrar's representative that there is no legislative provision dealing with 'endorsements', I am powerless to order the addition of any endorsements in the children's birth records.
Accordingly, I can only leave it to the Registrar to consider whether, in the circumstances of this case, it may be appropriate to make endorsements in the children's birth records to reflect the parents' change of name.

Decision

The decision under review is affirmed. 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 February 2021

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Judgment (10 paragraphs)

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