Hill v Registrar of Births, Deaths and Marriages

Applicable legislation

1. Section 3 of the BDM Act sets out the objects of the legislation: 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.
2. The general functions of the registrar are set out in s 6: Registrar's general functions 6 The Registrar's general functions are - (a) to establish and maintain the registers1 necessary for the purposes of this Act and the Relationships Register Act 2010, and (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, and (b) to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and (c) to ensure that this Act is administered in the way best calculated to achieve its objects. Note - 1The registers are collectively referred to as the "Register". See section 43.
3. Sections 14 and 17 outline the process for registering the birth of a child: 14 How to have the birth of a child registered A person has the birth of a child registered under this Act by giving notice of the birth to the Registrar (the birth registration statement) in a form and manner required by the Registrar, specifying the particulars required by the regulations. 17 Registration (1) The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations. (2) However, if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.
4. The regulation dealing with birth registration is cl 5, which relevantly provides: 5 Registration of birth (1) For the purposes of sections 14 and 17 (1) of the Act, the following particulars are required - (a) the sex and date, time and place of birth of the child, (b) the weight of the child at birth, (c) whether or not the birth was a multiple birth, (d) 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, (e) the date and place of marriage of the parents of the child (if applicable), (f) the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child, (g) whether or not either of the parents of the child is of Aboriginal or Torres Strait Islander origin, (h) if either parent of the child was born outside Australia, the period of residence in Australia of that parent. Note - A birth registration statement given to the Registrar under section 14 of the Act must also state the name of the child (see section 21 of the Act). (2) For avoidance of doubt, the Registrar is authorised to include in the Register the registrable information about the identity of the child's parents that is required to be provided under this clause.
5. The respondent's role in preserving the integrity of the register is explained in s 43: 3 The Register (1) The Registrar must maintain a register or registers of registrable events. (2) The Register - (a) must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register, and (b) may contain such further information as the Registrar considers appropriate for inclusion. (3) The Register may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate. (4) The Registrar must maintain the indexes to the Register that are necessary to make the information contained in the Register reasonably accessible. (5) A reference in this Act to the Register is a reference to all the registers kept under subsection (1). (6) The Register may be referred to as the Births, Deaths and Marriages Register and a reference in any Act or any instrument made under any Act to the Births, Deaths and Marriages Register is taken to be a reference to the Register.
6. Section 45 of the Act relates to the circumstances in which the respondent may correct the register: 5 Correction of Register (1) The Registrar may correct the Register - (a) to reflect a finding made on inquiry under Division 2, or (b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event. (2) The Registrar must, if required by a court, correct the Register. (3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
7. Section 49(1)(a) of the BDM Act provides that the respondent, on completing a search of the register, may issue a birth certificate certifying particulars contained in any entry.

The evidence

1. The respondent called no oral evidence but relied on written material, including the s 58 documents (exhibit R2).

Mr Isa Hill --applicant

1. At the hearing the applicant gave oral evidence, by telephone, in which he adopted his statement dated 24 September 2020 (part exhibit A1). The following is a précis of it which adheres as far as possible to the applicant's personal style of expression. The statement begins by stating that he changed his name according to his faith and culture. He applied for a birth certificate amendment to reflect his name and for his son's lineage documents as he grows, as well as for his grandchildren as they grow. His name would be how their lineage would be identified.
2. After some passages by way of comment and submission, the statement declares that the applicant has a nephew who was born as his niece, and who has amended his name and gender on his birth certificate. He has passports and work records to reflect his changes.
3. The applicant has studied genetics and held a senior position in a state-wide Australian genetics department for over a decade and has over 30 years in medical science and qualifications. He therefore knows that scientifically epigenetic status is not changed by a thought change, but he fully supports and respects those individuals' rights to identify, as they wish, within the laws of the country they reside in or belong to.
4. This request in relation to his name reflected his name change which had been held up for legal reasons outside his control and due to Islamophobic resentment by another party. He hoped BDM's resistance to his request was not from an Islamophobic bias. "The BDM material is starkly vacuous in showing the resistance was NOT Islamophobic in basis for their decision".
5. His name was one name as reflected in another faith. Having his name held as a previous name and his son's birth certificate was the BDM coercing him to have him justify repeatedly and provide evidence of his religious and cultural change, not just today but every day forward, both in his life and the lives of his children and also his grandchildren. For him that unjustly discriminates against himself today and every day forward in the lives of his family and descendants.
6. Where his wife is pregnant, that has a further implication that from a lineage point of view a slur would be against his wife from passport, school, university, work records that the parentage of her children and grandchildren were from conception with multiple males that was outrageous and wholly unacceptable. He changed his name when he had clearance to do so and he could financially afford to do so. He was and still is known for years prior in the community with his current name of Isa. That is irrelevant to everyone but himself. His children do not need to know about the hardship and discrimination he has suffered.
7. After further material by way of comment and submission, the applicant states that he has letters of support from the Imam Council of Australia, the utmost level of religious guidance for Moslems nationally. He has political support from his local minister. But he cannot enforce logic and the BDM system. He wishes that NCAT does so for his family and himself, to ensure that they enjoy our multicultural Australia free from religious and cultural discrimination.
8. In cross-examination by Ms Kington the applicant was asked about the reasons he gave for changing his name in his application to register the name change, where he had explained that his late mother had been a born-again Christian, and how that fitted with his conversion to Islam. He replied that he had wanted her approval for the name change because under Islam, a person is required to consider his or her parents' wishes. His mother had wanted him to adopt the first name "Jesus". He thought that might be problematic for a Moslem, but suggested the name "Isa", which is the Arabic rendition of Jesus. She had been satisfied with that.
9. He said he had suffered discrimination in Australia for being a Moslem, as the faith received bad publicity every time a Moslem did something bad. His mother had passed away last month. Asked how long he had been a Moslem, he replied that he considered himself to have been a Moslem since birth, although he had been brought up in a strongly Christian household and religion had always been an important part of his life all along. But his Islamic journey had started in 2012.
10. He acknowledged that the names of a number of other children appeared on his Medicare card (exhibit R2, p 21) and explained that they were with a different mother. She had been a drug user and had cheated on him. They had been in the process of getting divorced, but she had died in November 2017. Her children have been hostile towards him ever since the Christchurch mosque tragedy and he had been castigated for his beliefs.

Mrs Mayada Hill

1. The applicant also called his wife, Mrs Mayada Sabri Said Azzouni (GH's birth certificate gives her surname as Hill). At the hearing by telephone Mrs Hill adopted her statement dated 24 September 2020 (part exhibit A1), in which she said that she is a Moslem woman from Jordan and the biological mother of GH.
2. As would be noticed from her name, Sabri Said are lineage names (father's name and grandfather's name respectively). She still carries her lineage from since she was born. Her lineage was reflected and is still reflected in all official Jordanian documents, from school and university certificates, to the national identity card and birth certificate, and many more. Even in Australia, her lineage names are also reflected in many Australian official documents, such as driver's licence and Medicare card.
3. Last week, she wanted to obtain a police clearance certificate from the Ministry of Justice of Jordan online. In order to submit her online application, one of the requirements was to enter her full name (first name, father's name, grandfather's name and family name). In Islam, maintaining the lineage is a necessity for the purity of offspring from any potential distortion or corruption by mixing so that one would not even know who their parents are or who their own children are. Arabs and Moslems have long known of the importance of genealogical science, because the tribe is the social fabric of community and life.
4. Australia is a multicultural country. Therefore, we all have to respect the different religions, cultures and backgrounds as they all form a strong unity of this beautiful Australia. A song broadcast by the ABC children's channel emphasizes that fact. She therefore requests BDM "to walk the talk and not discriminate against [her] faith". BDM had denied their basic right as Moslems. She earnestly demands justice for her son. She hopes that NCAT will uphold her rights under Australian and international law. Additionally, where [as?] she is currently pregnant, her future children, if logic and common sense are not applied, will show a different lineage line. That would be wrong.
5. The witness was not cross-examined.
6. The applicant also tendered an undated reference from Sheikh Abdullah Chaabou, Head of religious affairs of United Muslims of Australia (part exhibit A1) expressing support for the applicant in seeking to have his child's birth certificate amended retrospectively so that his name would be reflected in the certificate.
7. That was for personal, cultural and religious reasons. Isa's children were required culturally and religiously to reflect the lineage of their father. Not changing his name on the birth certificate is not recognizing and giving value to the Hill family's cultural and religious values.
8. If he were to travel overseas with his child, that would be misleading as to who the child was travelling with, as his child's passport would have another man's name. Not changing the name was taking away Mr Hill's right to identify as a Moslem and the father of his child, especially as the passport is taken from his birth certificate names.
9. The name issue was also relevant for preschool, school, clubs and other areas of GH's life as he grows. It is not just a one-off issue if the name is not met, and not just for cultural reasons, but for legal identification records ongoing and all descendants and those of his children, as GH and his children grow. Further, as the child's mother is of Middle Eastern origin, all the Australian documents show the lineage of her fathers in her identification documents.
10. As the Commonwealth and its bodies are known always to respect the religious values of its citizens, they hoped that could be taken into consideration for other fathers from different religious and cultural backgrounds who are seeking the same right for their changed name to be present in all the records of their children.
11. The applicant also tendered a letter dated 22 September 2020 (part exhibit A1) from Mr Ray Williams MLA to the Hon. Victor Dominello MLA, Minister for Customer Service, stating that the applicant had informed him that he had changed his name, and for cultural, practical and lineage-based reasons he wished to change his name as it appears on his son's birth certificate.
12. Mr Hill was particularly concerned about what would happen when he goes overseas, being anxious of potential costs involved with transliteration of the name change documents, as well as questions over his son's lineage, Mr Williams wrote.

Applicant's submissions

1. The applicant lodged some written submissions, which formed part of his statement of 24 September 2020. In them he contended that BDM failed its own litmus test in that a name could not be changed on a birth certificate retrospectively. For other Australian citizens, they have been afforded the right to change their name and/or their gender on their birth certificates. Those changes occur unobjected and a new birth certificate is issued with those amendments for those individuals. He did not wish to be discriminated against because of his faith and religion by BDM. He wished the tribunal to uphold equality and justice and direct BDM to change his son's birth certificate to show his name Isa as his father and to take further steps to ensure others are not affected, both in New South Wales and also in Australia by this un-Australian stance.
2. His freedom of the right to religion and cultural choices was upheld under Australian and international law (United Nations articles to which Australia had acceded). He saw no reason why BDM was above those laws.
3. His name is one name as reflected in other faiths. Having his name held as a previous name on his son's birth certificate was BDM coercing him to have to justify repeatedly and provide evidence of his religious and cultural change, not just today but every day forward, both in his life and those of his children and also his grandchildren. That discriminated against him and his family and descendants.
4. His children did not need to know his hardship and the discrimination he has suffered. BDM has a record of his name change and has accepted that name change. The process of going through his official systems recognition of the name of Isa was based on the very same name change document that BDM now chooses to ignore. The driver's licence, bank and passport, etc., all use the BDM document as evidence to retrospectively change their records. There was no question of his hiding his original name or for future record searches to link name changes and history. Where that was legally and logically approached by him, BDM should afford him his legal and logical request.
5. It should be his right to disclose, if indeed he chooses to, to whom and when he discloses his action of changing his name. His disclosure and the reason for his name change should not be forced upon him, numerous times now and in the future because BDM did not want to accept and effect his name change on his son's birth certificate.
6. He wishes the tribunal to abide by the laws of Australia and internationally and afford common sense to enforcing his name change to be reflected on his son's birth certificate. "I further request if BDM cannot show beyond reasonable doubt that the resistance was not of an Islamophobic basis that they be fined and prosecuted accordingly", he submitted.
7. At the hearing the applicant adopted those submissions, adding that he sought under s 45 to make the register correct. His name change was a registrable event and should be on the record, and it would not be retrospective. At present the register misrepresented the true position. The respondent had a discretion to make the necessary correction.
8. He was seeking to uphold the integrity of the register under s 6, by making it reflect current reality. At present it was disrespecting his right to change his name. The record should show that change.

Consideration

1. This tribunal has jurisdiction to hear and determine this application by reason of s 56(1) of the BDM Act and s 9(1) of the Administrative Decisions Review Act 1997 (ADR Act). Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one.
2. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The tribunal is to make its own decision and there is no presumption that the registrar's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
3. These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. Nevertheless, the civil standard of proof on the balance (preponderance) of probabilities as set out in s 140 is considered to be an acceptable guide to fact-finding.

Chronology

1. In such cases it is useful to set out a brief chronology of the relevant events:

• 28 December 1970: Timothy Paul Hill (applicant) is born at Watford, England.
• 17 June 2019: GH (applicant's son) is born at Auburn Hospital, New South Wales. Electronic notice of birth received by BDM from Auburn Hospital.
• 26 June 2019: Electronic birth registration statement created on LifeLink.
• 1 June 2019: Birth registration created. A check of the history shows that the only changes made by the registry were moving the mother's details to Informant 1 and the father's details to Informant 2.
• 31 October 2019: Change of name request received from Timothy Paul Hill.
• 19 December 2019: Change of name registered from Timothy Paul Hill to Isa Hill.
• 23 March 2020: Amendment request received via Service New South Wales.
• 9 April 2020: Amendment data entered on birth registration [this appears to have been done in error, but nothing turns on the point].
• 22 April 2020: Email to the applicant states that the amendment could not be made; no internal review was offered.
• 29 May 2020: Email from applicant disagreeing with the decision; referred to Initial Amendments Officer.
• 1 June 2020: Initial Amendments Officer contacted Compliance for advice.
• 15 June 2020: Internal review request forwarded to Compliance.
• 8 July 2020: BDM Registrar Amanda Ianna by letter informs the applicant that the refusal decision has been affirmed following an internal review.
• 11 July 2020: Applicant applies to this tribunal for review of the respondent's decision.

Principles to be applied

1. The power to correct the register gives the registrar, or by derivation this tribunal, a discretion "to bring an entry about a particular registrable event into conformity with the most reliable information available….": s 45(1)(b). As the tribunal explained in Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86, [10], "The power to correct the register is discretionary. It is predicated on the decision maker being satisfied the proposed change is in conformity with the most reliable information about the registrable event": Jack v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200, [113].
2. Section 14(1) of the BDM Act explains how a birth is registered: "The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations". The particulars required by cl 5(1) of the regulation include "(d) 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".
3. The registration of a name change cannot take effect retrospectively. In Pope v Registrar of Births Deaths and Marriages [2020] NSWCATAD 206, the registrar had cancelled a name change certificate relating to the applicant's deceased mother who had applied for a name change to revert to her maiden name but died hours before the change was registered. Consequently the death certificate, which had been inadvertently amended to show the maiden name of the deceased, reverted to her married name. The tribunal affirmed the cancellation decision on the ground that the name change could not operate retrospectively: Under s 31(1) and s 26, the registration of a person's name change takes place upon the registrar's making an entry in the register. That is the date of the event that is recorded in the register, and the date from which a formal name change takes place. Thus the registration of a name change cannot apply retrospectively, as it is fixed to the date of registration, in this case, 22 February 2018. Correction of the register under s 45 is for the purpose of "bring[ing] an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event". In this case, on discovering that the applicant's registration of the name change occurred after the death of the deceased, the respondent proceeded to cancel the registration of the applicant's late mother's change of name. By so doing, the registrar brought the entry relating to the death of the deceased into conformity with the most reliable information available in relation to the registrable event, namely that at the time of her death her name had not been changed to Dritsa. In those circumstances the review application cannot succeed and the decision under review must be affirmed (at [43] - [45]).
4. In Charlwood v New South Wales Registrar of Births, Deaths and Marriages [2019] NSWCATAD 69, parents sought review of a refusal by the registrar to change their original surnames as shown on their son's birth certificate from their names at birth to the family names shown on their birth certificates, as a result of changes of name of both applicants registered before their son's birth. In affirming the decision, the tribunal said: The historical factors that led to legislation for BDM registration show that a need for an accessible and accurate historical record of major life events was a crucial consideration. That need favours a literal interpretation that requires a chronological recording of event particulars as they have occurred, not only as altered by later changes. Nothing in the legislative history of BDM registration law suggests any reason for not adopting the ordinary meaning of the phrase "original surname"…. The applicants advanced a number of other contentions about the effects of their name changes. They submitted that changing their legal names pursuant to s 27 of the Act means that their birth names became the legally changed names for all purposes. Section 31(1), however, provides that registering a change of name requires an entry in the register that includes the particulars required by the regulations. Those particulars include (in cl 9 of the regulation) the person's full name immediately before the change, the full name first given to the person after birth and any other name shown on the person's birth registration, as well as any other former names and the new full name. A complete history of the person's name is thus preserved for all time, and not erased by the change. A birth certificate issued following a name change must show the changed name (s 31(3) because a birth certificate is an important piece of identification recording the individual's current legal name, among other identifying information. It does not, however, affect what a person's legal name was as at any time before the change. Nothing in the Act supports the submission that a change to a legal name alters the individual's name as it was at the time he or she was born. Such an impact would conflict with the statutory object in s 3(d) (at [44] - [47]).
5. Pope, Jack and Charlwood are decisions of mine, but as far as I know they have not been overruled or criticized.

Application to this case

1. Clause 5(1)(d) of the regulation requires the full names (including, if applicable, the original surname), and certain other particulars, of each parent at the time of delivery. Cl 5(2) authorizes the registrar to include the registrable information about the identity of the parents that is required to be provided under that clause.
2. The applicant was an informant to the registration of GH's birth, and the documentary evidence provided in support of his own identity stated his legal name at the time, "Timothy Paul Hill". As the respondent submits, if the applicant had attempted to register GH's birth using the new name "Isa Hill", it would have been refused, as there were no legal documents at that time to prove that to be the applicant's identity. There could not be, as the applicant did not apply to change his name until approximately four months after the registration of GH's birth. Consequently, the applicant's legal name was Timothy Paul Hill until December 2019.
3. The register thus reflects "the most reliable information" (see s 45(1)(b) available in respect of the registrable event, which in the case of birth registration is the birth of the child and not, as the applicant submitted, his father's change of name. The applicant is seeking a new birth certificate for GH, not a new name change certificate for himself. To that end he seeks effectively to give retrospective effect to his name change and, as Pope and Charlwood explain, that would be inconsistent with the respondent's duty to maintain the integrity of the register and to seek to prevent identity fraud.
4. As the history of BDM registration attests, experience has shown the need for an accurate historical record of life events as they occur, and not as information is altered by later records. The history is thus preserved as it took place, not as erased by subsequent changes. The most reliable information that has been provided in relation to the identity of GH's father at the time of GH's birth shows that his father's legal name was "Timothy Paul Hill". None of the information that the applicant has provided alters that fact.
5. The applicant submitted at length that the reviewable decision resulted from a pattern of victimization and discrimination against him by reason of his Moslem affiliation. He contended that the respondent should be required to prove beyond a reasonable doubt that the decision did not result from religious discrimination, and if it did not do so, the registrar should be prosecuted.
6. There is no such burden of proof on the respondent. There is no evidence to support those unfocused allegations and the respondent categorically denies them. Nothing suggests that the respondent's decision would have been any different if the applicant had been an adherent of a different religion, or of no religion.

Endorsements

1. The applicant submitted that if his son's birth certificate gave the father's name as Timothy Paul Hill, when travelling with GH the applicant would need to take with him a copy of his name change certificate. That could give rise to problems such as differing transliterations. It is not hard to imagine that inconvenient queries and delays could result in such circumstances.
2. For that reason, at the hearing I raised with the respondent the possibility of inserting a reference to the applicant's name change as an endorsement on GH's birth certificate, in the space marked "8. Endorsements", which currently bears the entry "Not any". The respondent's position was that such an endorsement would not be permissible because it would be inconsistent with the registrar's duty under s 6(a1) to "maintain the integrity of the Register and seek to prevent identity fraud". Further, a reference to the name change, although relevant information, is not a "particular" that is required by cl 16 for death registration. As under s 49(1) the registrar may only issue a certificate "(a) certifying particulars contained in an entry" (my emphasis), the later name change could not be the subject of an endorsement. The applicant made no submissions on the point.
3. In my view the respondent's submission goes too far. The insertion of such an endorsement would not compromise the integrity of the register. It would be a reference to a registrable event (the name change), particulars of which would be located when the registrar searched the register before issuing a certificate, as required by s 49(1). It would not be information of a purely extraneous nature. Such an endorsement might in fact help to prevent future confusion and identity fraud, thereby strengthening the integrity of the register.
4. Thus, in Pope (at [47]), the respondent included in a death certificate an endorsement that the maiden name of the deceased was Dritsa. But the maiden name (or other previous name) of a deceased is not a "particular" that is required for death certification - the original surname of a deceased's spouse is required (cl 16(i), but not that of the deceased. But the endorsement on the death certificate was made nevertheless. It would therefore appear consistent with the action taken in Pope to make a suitable endorsement on GH's birth certificate.

Conclusion

1. For the reasons given above, GH's birth certificate must record the applicant's name as it was at the time of delivery, and not as subsequently changed. A name change cannot be given retrospective effect. At the same time, it would be appropriate for the birth certificate to contain an endorsement to the effect that the father's name was changed on 19 December 2019 to Isa Hill.

Orders 1. The decision under review is varied as follows: an endorsement to the effect that the father's name was changed to Isa Hill on 19 December 2019 is to be added to GH's birth certificate. 2. In all other respects 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: 23 October 2020