Victorian Civil and Administrative Tribunal Act 1998 - review jurisdiction - application for review - preliminary hearing to determine jurisdiction of Tribunal - whether reviewable decision - application dismissed for want of jurisdiction

REPSONDENT: Registrar of Births, Deaths and Marriages

MEDIUM NEUTRAL CITATION: Springfield v. Registrar of Births, Deaths and Marriages (General) [2011] VCAT 130

ORDER: The application for review is dismissed.

For Applicant: Mr. P. Hanks QC with Ms. S. Aufgang of counsel, instructed by Corrs Chambers Westgarth

For Respondent: Ms. R. Ellyard of counsel, instructed by the Victorian Government Solicitor

Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279

Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230

Hutchins v Commissioner of Taxation (1996) 65 FCR 269

JS and LS v Patient Review Panel (Health and Privacy) [2010] VCAT 1813

Kelly Jaye Property Management Pty. Ltd. v Business Licensing Authority (Occupational and Business Regulation) [2010] VCAT 1218

Thiele v. The Appeal Committee (unreported, Administrative Appeals Tribunal of Victoria, 31 July 2010)

Tom & Bill Waterhouse Pty. Ltd. v Racing New South Wales [2008] NSWSC 1013

Wizardry Kennels v Semtech Animal Breeding Services (Civil Claims) [2006] VCAT 2368

Kimberley Springfield has applied to VCAT for review of a decision made by the Registrar of Births, Deaths and Marriages ("the Registrar"). Ms. Springfield was born in 1984. Her birth was the result of her mother receiving infertility treatment in the preceding year at a clinic in Melbourne. The donation of gametes used in the treatment was made at the clinic in 1979. At that time the law allowed donors to remain anonymous. The clinic is said to have retained the personal details of donors. Ms. Springfield seeks to have her biological father made aware of means by which he can make information about him available to her and information about her available to him. Through her lawyers she states that information about a donor, especially personal medical information, whether identifying the donor or not, "may have significant relevance for the for the health and wellbeing of their biological children" and help realise the children's "basic human right 'to preserve his or her identity, including nationality, name and family relations'."[1]

The decision that I have to make is whether VCAT has been given jurisdiction by the Parliament of Victoria to review a particular decision made by the Registrar. I am not deciding how any rights of a person conceived by the use of donated gametes to information about the donor ought to be balanced against any rights a donor may have to anonymity. I am not deciding the scope of the Registrar's powers in this context. If VCAT has jurisdiction then a hearing can be held in due course at which hearing the Registrar's decision can be reviewed. Otherwise the proceeding must now be dismissed for want of jurisdiction.

The Registrar maintains a number of registers under various pieces of legislation. One register, established under the Assisted Reproductive Technology Act 2008 ("the ART Act"), is called the Voluntary Register. The Voluntary Register enables the receipt and exchange of information - for instance between donors and their biological children. This is voluntary but also confidential. Under the ART Act the Registrar has power "to publicise the establishment and purpose of the Voluntary Register": section 71(2).

In May 2010 Ms. Springfield's solicitors wrote to the Registrar requesting that she write to the donor to inform him of the existence and purpose of the Voluntary Register. The solicitors asked the Registrar in the first instance to contact the clinic seeking the donor's contact details, then to use that information to ascertain the donor's current address. Alternatively, the solicitors requested that, in the event that the clinic would not cooperate, the Registrar ask the clinic to forward the letter to the donor after it used the information it held to ascertain his current address.

In June 2010 the Registrar responded refusing the request. The Registrar provided some general information about what had already been done and what was to be done later in the year to publicise the Voluntary Register but she expressed the view, in essence, that the law did not require or permit her to obtain information about the donor and contact him directly.

The following month Ms. Springfield's solicitors wrote to the Registrar again asserting that under the Births, Deaths and Marriages Registration Act 1996 ("the BDMR Act") a decision by her was subject to review by VCAT. (The BDMR Act provides for registration of births, deaths, marriages and other matters). Pursuant to section 45 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") the solicitors requested a written statement of reasons explaining the Registrar's decision. On 6 August 2010 the Registrar reiterated what she wrote in June about her view of the scope of her powers under the ART Act.

Ms. Springfield applied to VCAT for review of the Registrar's decision in early September 2010. The Registrar lodged some material required by the VCAT Act and, in accordance with directions given by the Tribunal, the parties filed and exchanged written submissions. There was a preliminary hearing on 24 January 2011 at which counsel for Ms. Springfield and counsel for the Registrar made oral submissions.

• The ART Act gives power to review only decisions of the Patient Review Panel established under that Act. The ART Act however amended the BDMR Act by inserting provisions into the BDMR Act. One provision expanded the objects of the BDMR Act to include the keeping of information relating to donors under the ART Act. Another expanded the Registrar's general functions to include performing functions given to the Registrar by the ART Act.

• The Explanatory Memorandum for the Bill (that when enacted as the ART Act added to the Registrar's general functions) stated that the relevant clause "amends section 6 of [the BDMR Act] to expand the Registrar's functions to include functions given to the Registrar under the [ART Act]." (emphasis added).

• The general functions described in the BDMR Act are administrative functions. In this case the Registrar was performing a function conferred (at least impliedly), endorsed or recognised by the BDMR Act and making a decision under the BDMR Act (as well as the ART Act).

• Section 52 of the BDMR Act gives a right to apply for review of a decision of the Registrar "under this Act" (that is, under the BDMR Act). In refusing Ms. Springfield's request the Registrar was refusing to carry out a function prescribed as one of the Registrar's functions. That was sufficient to allow the Registrar's refusal to be characterised as a decision under the BDMR Act.

• Section 52 of the BDMR Act is a remedial or beneficial provision. It is unlikely that Parliament would have intended that it be interpreted in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review. Section 52 should be construed as beneficially and generously as the language of the section allows.

• The issue to be decided must be considered in the context of the voluntary registration scheme under which a person may ask to be included but otherwise (in the case of someone who made a donation at the time the donor in this case did) would have an absolute expectation of anonymity.

• The relevant correspondence between the parties made it clear that what was being discussed was the Registrar's power under the ART Act.

• To the extent that the Registrar may have exercised any power given by any Act that was a power under the ART Act. The ART Act confers review jurisdiction on VCAT but that review jurisdiction is confined to certain decisions made by the Patient Review Panel established under the ART Act, not any decision by the Registrar. The ART Act makes no provision for review of any decision by the Registrar. Powers given to the Registrar under the ART Act are not amenable to review by VCAT.

• VCAT's review jurisdiction is conferred by or under an "enabling enactment" (defined in section 3 of the VCAT Act as an enactment under by or under which jurisdiction is conferred on the Tribunal). It is jurisdiction to review decisions made by a decision-maker: VCAT Act section 42. The jurisdiction is invoked by a person so entitled by or under an enabling enactment applying for the review of a decision under that enactment: section 48. "Decision-maker" is defined in section 3 of the VCAT Act as a person who makes or is deemed to make a decision under an enabling enactment. A "decision" includes a refusal to do any act or thing: section 4(1)(h). A decision will be made "under an enactment" where it is made in the exercise or purported exercise of a function conferred or imposed by or under the enactment: section 4(2)(a). A refusal to make a decision because the decision-maker believes that it cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision: section 49(2)(c).

• The Registrar's decision in this case was a refusal to exercise a power said to be conferred by the ART Act and was not made in the exercise or purported exercise of any function under the BDMR Act.

• Section 52 of the BDMR Act confers power on VCAT to review decisions of the Registrar but that is confined to the review of decisions made by the Registrar under the BDMR Act. The jurisdiction is not a general jurisdiction to review any action of the Registrar. The Registrar's powers with respect to the Voluntary Register do not arise under the BDMR Act but arise under and are conferred by the ART Act. The decision complained of was therefore not made under the BDMR Act and cannot be the subject of an application for review under section 52 of the BDMR Act.

• The provisions in the BDMR Act that include objects and functions relevant to the ART Act do not contain the source of power in the Registrar to take any steps with regard to the Voluntary Register. Those powers find their source in the ART Act. The relevant amendment made by the ART Act to the BDMR Act expands the list of the Registrar's functions but it does not create those functions. Section 6 of the BDMR Act does not confer powers or functions on the Registrar. It merely lists functions conferred by other sections of the BDMR Act or other Acts. One of those functions is to maintain the Relationships Register under the Relationships Act 2008.

• The analysis put forward on behalf of Ms. Springfield would mean that the Registrar's decisions under the Relationships Act would be reviewable under section 52 of the BDMR Act, but the Relationships Act contains a specific power of review of decisions of the Registrar.

• In the alternative, if there can be merits review in this case under the BDMR Act, it has to be shown that the Registrar's decision was a refusal to carry out a function under the ART Act. The function that the Registrar was asked to exercise was actually not the function under the ART Act to publicise the establishment and purpose of the Voluntary Register. The request involved investigation and the collection of information. The Registrar has no power to do that in relation to the Voluntary Register.

1. I deal first with some incidental matters. The first is that the correspondence between the parties indicates that at least initially they were considering the Registrar's power under the ART Act. That is no obstacle to the submission now being made by Mr. Hanks that the Registrar refused to exercise a function under (or also under) the BDMR Act. However, for reasons to be explained, I think that the correspondence reflects the reality - that the Registrar was being asked to exercise a function said to exist under the ART Act and that she was considering whether or not she could or should exercise a function under the ART Act.

2. The second matter is that the Registrar gave reasons for her decision after there was a request made pursuant to section 45 of the VCAT Act. (That section permits "a person who is entitled to apply to the Tribunal for review of a decision" to request a written statement of reasons). The fact that the Registrar gave reasons does not mean that she is now unable to submit that the Tribunal lacks jurisdiction. This is because, as Macnamara DP said in Thiele v. The Appeal Committee, the Tribunal "only has the jurisdiction which Parliament has bestowed upon it, it cannot acquire further jurisdiction by agreement of parties, much less by estoppel".[2]

3. The third matter is that, on the face of it, the request made to the Registrar may have involved the exercise of functions that went beyond publicising the Voluntary Register. In its ordinary meaning the word "publish" means "communicate to the world at large"[3]. The meaning of "publish" or "publicise" will of course depend on the context. Those contexts include the present one and others, such as where defamation or breach of copyright are alleged. The Registrar informed Ms. Springfield's solicitors that she had in fact already publicised the Voluntary Register via the Births, Deaths and Marriages website. Whether the power to publicise impliedly includes power to inform a specific individual about the Voluntary Register and to take some incidental steps prior to doing so would be something to be considered. However that may be resolved, Mr. Hanks submitted that there was an alternative request made on Ms. Springfield's behalf. That was that the Registrar ask the clinic itself to pass some information to the donor. He submitted that at least that would fall within the scope of publicising the Voluntary Register. There would still be questions as to whether the power to publicise impliedly includes power to inform a specific individual and whether it includes power to do that through an intermediary. There appears to me to be some force in Mr. Hanks' submission that at least this would be within the Registrar's power but I do not need to decide the scope of the Registrar's powers in order to decide whether VCAT has jurisdiction.

4. The exercise that I have to undertake involves discerning the intention of Parliament. In Wizardry Kennels v Semtech Animal Breeding Services (Civil Claims) [2006] VCAT 2368 Judge Bowman VP said this:

"[T]his Tribunal is a creature of statute and, whilst it has broad powers, its jurisdiction is limited to that conferred by the VCAT Act and by the enabling enactments ... VCAT may be a decision-making body not bound by the rules of evidence, and with a statutory obligation to conduct proceedings with as little formality and technicality as a proper consideration of matters permits. However, its essential jurisdiction must be established, and, however tempting it might be to determine ... a ... matter in a prompt, economical and hopefully fair way, that cannot be done if the jurisdiction so to do does not exist."[4]

1. VCAT's review jurisdiction is jurisdiction that is conferred on VCAT, by or under an enabling enactment, to review a decision made by a decision-maker: VCAT Act section 42. An enabling enactment includes an Act of Parliament by or under which that jurisdiction is conferred: section 3. A person who makes, or is deemed to have made, a decision under such an Act is a "decision-maker": section 3. The review jurisdiction can be invoked by a person who is entitled to do so under the Act that gives VCAT jurisdiction applying for review of a decision made under that Act: section 48. For the purpose of the VCAT Act or an enabling enactment a person makes a decision if, for instance, the person makes or refuses to make a decision or does or refuses to do any other act or thing (section 4(1)), and a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment: section 4(2)(a). A refusal to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision: section 4(2)(c).

2. There is no doubt that both the ART Act and the BDMR Act are enabling enactments. They confer jurisdiction on VCAT. The issue is what jurisdiction they confer. The ART Act confers jurisdiction only to review decisions of the Patient Review Panel: section 96. The BDMR Act confers jurisdiction to review decisions of the Registrar under the BDMR Act: section 52. So the question is whether the Registrar has made a decision under the BDMR Act (even if she has also made a decision under the ART Act). That is, if the Registrar has refused to perform a function referred to in section 6(bb) of the BDMR Act - that is, one of the "... functions given to the Registrar by [the ART Act]" - does this mean that she has refused to make a decision under the BDMR Act or refused to do something under the BDMR Act?

3. Mr. Hanks referred me to dicta in a number of cases - three decisions of the Federal Court of Australia and one VCAT decision. In Australian Postal Corporation v Forgie[5] the Federal Court was concerned with a provision under Commonwealth legislation. The Court said:

"[T]he beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review".[6]

1. The Court referred to Hutchins v Commissioner of Taxation[7] where Black CJ said:

"It is clear that there may be a decision "under an enactment" within the meaning of that expression in [the relevant Act] notwithstanding that the enactment concerned does not expressly require or authorise the decision in question but does so impliedly."

1. The Court further referred to Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission[8] where Finn J had also referred to Hutchins and said in essence that for a decision to be reviewable - being, among other things, a decision made under an enactment - there had to be a "'sufficient connection' between the text of the statute in question and the decision sought to be reviewed". He continued:

"This 'sufficient connection' requirement itself effects a balance between the policy, on the one hand, of allowing effective redress to persons aggrieved by administrative decisions making processes (so enhancing those processes), and that, on the other hand, of protecting the efficient administration of government from impairment by an extended conception of a reviewable decision ..."[9]

1. Mr. Hanks also referred me to a decision relating to the ART Act made by His Honour Ross J, President, in JS and LS v Patient Review Panel (Health and Privacy)[10]. In that case there was an application for review of a decision by the Patient Review Panel. Section 96 of the ART Act permits review by VCAT of a decision of the Panel with regard to certain matters. The Panel challenged VCAT's jurisdiction arguing that the wording of section 96 did not cover the kind of decision made by the Panel in that case - a decision not to approve the use of gametes or embryos for the purpose or a purpose of producing or attempting to produce a child of a particular sex: see section 28(2)(b) of the ART Act. His Honour found that VCAT did have jurisdiction. He considered the language of the ART Act and referred to cases including Australian Postal Corporation v Forgie before saying:

"A provision such as s 96 should be construed beneficially, and as generously as the language of the section allows. It should not be construed in a narrow or pedantic manner. A beneficial construction of s 96(a) supports a conclusion that the Panel decision relevant to this proceeding is amenable to review".[11]

His Honour found support for his conclusion in the relevant second reading speech on the Bill. The then Attorney-General said there that "[a]ll decisions of the panel are reviewable by VCAT"[12].

The decision in JS and LS does not provide particular assistance to Ms. Springfield's case because it relates to a different point. That case and the three Federal Court cases cited earlier all contain important general statements of principle but it is necessary to look at what was being considered in those cases.

Hutchins v Commissioner of Taxation and Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission involved judicial review under the Commonwealth Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act"). The nature of review and the overall legislative scheme are different to what is under consideration here. The AD(JR) Act provides a general right of (judicial) review of decisions made under a wide range of other statutes. The point is that it was clear in those cases that Parliament intended that there be review of decisions under those enactments. At issue was whether there was a decision within the meaning of the legislation.

In Australian Postal Corporation v Forgie and in JS and LS the statutes gave power to the respective decision-makers to make decisions and gave power to the respective tribunals to review those decisions on the merits - just as the BDMR Act and ART Act give power to decision-makers to make decisions and give power to VCAT to review them. In Australian Postal Corporation v Forgie the question was whether there was actually a decision that could be reviewed. In JS and LS the question was whether the decision was among the categories of decision that could be reviewed. Because the legislation in these cases was properly seen as beneficial legislation, the statutes were not to be interpreted in a narrow or technical way.

There is an important distinction between those cases and the present case. In this case I must determine Parliament's intention as to whether any decision is reviewable. If there were a decision made by the Registrar under the BDMR Act (for example, in administering the registration system established by the BDMR Act) it is clear that Parliament intends merits review of that. And if there were a decision made by the Patient Review Panel under the ART Act it is clear that Parliament intends merits review of that. However if Parliament did not intend a right of review by VCAT of decisions by the Registrar made under the ART Act, the BDMR Act should not be interpreted in such a way as would create one.

If the Registrar made a decision that really was a decision under both the ART Act and the BDMR Act then review under the BDMR Act might be permissible, but in my view that is not what the Registrar did. The Registrar did not actually refuse to perform a function, make a decision or do something under the BDMR Act. At most the Registrar refused to perform a function that section 6 (bb) of the BDMR Act sets out as being among her general functions, being a function "given to" the Registrar "by" the [ART Act].

In JS and LS Parliament's intention was made clear by the second reading speech. I have considered the whole of that second reading speech. It is of less assistance in the present case, although the then Attorney-General did say that amendments were made by the ART Act to the BDMR Act "to reflect changes to the ART and status of children legislation"[13]. I think that an amendment to the BDMR Act to reflect changes in other legislation is something different to an amendment to the BDMR Act that would have the significance contended for by Mr. Hanks.

I have also considered the Explanatory Memorandum[14]. At first glance the Explanatory Memorandum indicates that the intention behind the relevant provision was to expand the Registrar's functions. But the Explanatory Memorandum does not say that the amendment expands the Registrar's functions under the BDMR Act. And section 6 of the BDMR Act does not say "The Registrar's functions under this Act are ..." It says "The registrar's general functions are ..." I do not think that is surprising. The word "general" may have been unnecessary if the functions set out in the section had all been functions under the BDMR Act. The Registrar's functions were expanded by the enactment of the ART Act itself. Without the ART Act there could not be the additional functions under the ART Act to which the BDMR Act refers. It appears to me to have been for convenience that Parliament listed or recited in the BDMR Act the general powers and functions of the Registrar. In that sense the functions may, as Mr. Hanks put it, have been recognised or perhaps even endorsed by the BDMR Act (whatever endorsement might be in the context of making legislation). But none of that is to say that the ART Act functions were conferred (even impliedly) by the BDMR Act. Putting it another way, even if the ART Act inserted paragraphs in the BDMR Act which provisions added to or expanded the Registrar's general functions set out there, those functions were already added to or expanded because the ART Act itself gave the Registrar those new functions. A similar process of reasoning would apply to the insertion of paragraph (caa) in section 3 of the BDMR Act (the section setting out the objects of the Act), but there is a difference, for paragraph (caa) says "the keeping of information relating to donors ... under [the ART Act]". Paragraph (caa) is silent about the precise function to publicise the Voluntary Register that Ms. Springfield has requested be exercised in this case.

As pointed out by Ms. Ellyard, the Registrar's general functions set out in the BDMR Act also include to establish, maintain and administer the register and registration system established by the Relationships Act. The Relationships Act provides for the keeping of what is called the Relationships Register, among other functions. Section 28 of the Relationships Act provides for review by VCAT on the application of a person whose interests are affected by a decision of the Registrar "under this Act". Mr. Hanks submitted that it was perhaps a "belt and braces" approach for Parliament to provide a power to review both in the Relationships Act and (in his submission) the BDMR Act, but he said that the provisions were "entirely compatible". I do not agree. The usual place to find a provision in Victorian legislation that gives a right of merits review by VCAT is in the statute that gives the power to make the decision that may be subject to review. It would require clear words for Parliament to say in one Act that decisions that are in reality decisions made under another Act are reviewable. In the case of the ART Act Parliament has clearly given a right of review of decisions of the Patient Review Panel. Just as Parliament did for the Relationships Act, Parliament could easily have provided in the ART Act for review of decisions by the Registrar under that Act but did not do so.

1. Whether there may any other legal remedy available to Ms. Springfield is not for me to say. My conclusion in relation to VCAT's jurisdiction is that VCAT does not have jurisdiction in this case.

[1] Applicant's solicitors' letter to respondent dated 24 May 2010.

[2] unreported, Administrative Appeals Tribunal of Victoria, 31 July 2010, cited at paragraph [2154] of Pizer's Annotated VCAT Act, 3rd edition, JNL Nominees Pty. Ltd., Melbourne, 2007). See also Kelly Jaye Property Management Pty. Ltd. v Business Licensing Authority (Occupational and Business Regulation) [2010] VCAT 1218

[3] Tom & Bill Waterhouse Pty. Ltd. v Racing New South Wales [2008] NSWSC 1013

[5] [2003] FCAFC 223; (2003) 130 FCR 279

[7] (1996) 65 FCR 269 at 271

[8] [2001] FCA 1296; (2001) 113 FCR 230

[10] [2010] VCAT 1813

[13] Hansard, Legislative Assembly, 10 September 2008, at page 3457 (emphasis added)

[14] See Interpretation of Legislation Act 1984 section 35(b)