Second Reading
Comments and speeches from various members
HON ALISON XAMON (North Metropolitan) [8.44 pm]: I rise to indicate that the Greens will also support the Births, Deaths and Marriages Registration Amendment (Change of Name) Bill 2018 and I am the lead speaker. This bill will amend the section of the Births, Deaths and Marriages Registration Act that relates to name changes. It will tighten the audit trail for name changes, which seems like an important reform. It will also impose restrictions on how often and how many times a person can change their name. I note it will retain some discretion by the Registrar of Births, Deaths and Marriages to override those restrictions, particularly if the name change is to protect a person, is because of a marriage or a divorce, or is otherwise justified by exceptional circumstances. I will make some more comments about that in a moment.
It will require offenders under state supervision to get approval from their supervisory authority before they can change their name. I note that the process is similar to a regime that has been in place since 2012 for reportable offenders under the Community Protection (Offender Reporting) Act.
This idea has been floating around for a while. In 1992, the Standing Committee of Attorneys General investigated the possibility of increasing national cooperation in births, deaths and marriage registry services. A 1993 final report called “Project Link” recommended a strategy for gradually coordinating registry services across all the states and territories within Australia. The state and territory registrars of those services developed a model law, which was drafted by South Australia and which at the time was endorsed by SCAG. By 2003, that model had been adopted everywhere except in Queensland, albeit there was tweaking with local jurisdictions and that is why this is not uniform legislation. Queensland introduced its bill in 2003, containing a number of features that we see in this bill. In 2017, COAG signed an intergovernmental agreement endorsing the National Identity Security Strategy. The purpose of that was to combat identity theft and consequent fraud through better identification processes. We have seen since then that registrars have been considering ways to support the National Identity Security Strategy by looking at improving name change processes and information sharing and ways to participate in the document verification service that was rolled out in 2009.
By 2011, at a meeting of the former Standing Council on Law and Justice, the ministers noted that we needed some consistent name change processes across the country to support the National Identity Security Strategy outcomes. They agreed at that time to implement the 10 recommendations that were contained in the discussion paper, “Ten Recommendations for a Better Approach to Change of Name Processes in Australia”. Subsequently, the other states and territories have implemented the standing council’s recommendations on name changes at least partially, if not in full. Meanwhile, the commonwealth and New South Wales joint review of the 2014 Lindt Café siege considered identity issues in its 2015 report. This was because Mr Monis had formally changed his name twice but also successfully used up to 31 different identities on an informal basis. The report recommended that agencies should adopt name-based identity checks to ensure that they were using the national identity proofing guidelines and the document verification service. That was to ensure also that they were improving arrangements for sharing formal name change information between the commonwealth and state bodies. This is effectively how we have arrived at the situation we have now and why we are considering the Births, Deaths and Marriages Registration Amendment (Change of Name) Bill 2018. As has already been mentioned, it is about trying to strike a balance between ensuring that people have the civil liberty to determine the name by which they wish to be known, and ensuring that people are not able to use the name change regime as a way of effectively engaging in illegal behaviours.
Each year, about 42 000 Australians register a name change and of those, about 4 200 are registered in Western Australia, so there are a lot of people who seek to change their name every year. As I understand it, at common law parents can and are expected to choose their child’s forename. That name is valid for legal identification. A surname is actually not legally required, but it is a convention and is acquired by reputation rather than by being legally bestowed. Any adult can change or add to their name, provided there is no intent to defraud, deceive or to inflict pecuniary loss on someone else. That change is effected by repute or by usage. Notwithstanding that at common law a name can be changed by repute or usage, people customarily change their name by deed poll to get official evidence of the change and to help them prove their identity. We know that, in light of identity fraud risks, such official evidence is increasingly required by government and by private bodies.
As long as a person is not a restricted person, this bill ensures that an application can be made to change their name if their birth has been registered in Western Australia, if they are an adult born overseas but are Australian citizens or permanent residents, or if their birth is not registered interstate. They also need to have lived in WA for at least a year immediately preceding the application. This means that if a person’s birth is registered in an Australian registry, they have to do all the name changes via that registry. Effectively, they have to nominate a state, and that is where their record is going to be kept and where it will be changed from. I note that this bill still allows discretion by the registrar on a number of grounds, so that discretion is still being retained. The idea of this is to ensure that we prevent jurisdiction shopping to register different names. If their birth is not registered in an Australian registry because they were born overseas, they can still change their name subject to the jurisdictional conditions that I just stated.
If people are born in Australia but their birth was never registered—I never cease to be surprised that there are still a lot of people whose births are unregistered—they would not initially use the change-of-name process, but the birth registration process. Unregistered births are a particular issue in some regional and remote Aboriginal communities. Since 2011, the registry has been involved in the department’s open day program, which is about helping Aboriginal people register their births and obtain a birth certificate. Having a birth certificate to prove identity is a necessary step for getting a whole range of things, including education, a driver’s licence, employment, any type of government benefit and health services. In 2017–18, the registry registered 155 previously unregistered births, and it has registered more than 1 500 previously unregistered births since starting with the open day program in 2011. Of those, 268 related to births prior to 1980.
Following an application to have their name changed, the registrar must refuse to register if the person has registered a change of name either in this state or in another state within the last 12 months, or three more times previously since becoming an adult. However, despite the requirements I have listed, the registrar can still register the name change if they are satisfied that it is for the person’s protection; because the person’s marital status may have changed; or because it is justified by exceptional circumstances. I know that “exceptional circumstances” is not defined in the legislation, but the Attorney General has indicated that it would include such things as a person being in a witness protection program, or a person who might have taken out a violence restraining order and is in hiding from the perpetrator. I note that that is the sort of thing that is anticipated, but I would be interested to get some idea in the reply to the second reading debate of the range of exceptional circumstances that are intended to be contemplated, recognising that it would be highly undesirable to be too prescriptive about what that may be. The fact that discretion has been retained with the registrar is, I think, a positive thing, particularly given that there is an appeal process outlined in the legislation.
We also know that the registrar can refuse to register a name change if they are not satisfied about the person’s identity or age or that all the requirements have been met. They need to be assured that that person has no convictions or pending charges, either inside or outside Western Australia, for offences involving fraud or dishonesty. They also have to be satisfied that the change of name is not for the purposes of avoiding paying a debt; avoiding being located or identified by a government agency; or intended to be used for any sort of fraudulent or improper purpose. The registrar can also refuse to register a prohibited name. This has already been defined, and is unchanged under this legislation. We are talking about a name that is obscene or offensive, or potentially impractical due to its length, for example. It also covers the use of symbols; I note that if Prince had been a WA resident, he would not have been able to register the symbol that ended up becoming his name! That would have been prohibited. The registrar can also refuse if the name is considered to be contrary to the public interest.
With regard to the registration of a change of a child’s name, it is pretty much the same as it is for adults, except that parents or guardians are able to make the application. In that situation, there is no limit on how many times a name can be changed. A name can also be changed if it is within a year of birth or if the Family Court has approved a name change. Importantly, it is also noted that if a child is over 12 years of age, their consent is required, and I think that is completely appropriate, unless it can be demonstrated that the child does not understand that their name is going to be changed.
The bill also relates to change of name restrictions for restricted persons, apart from reportable offenders. In that, clause 13 is quite similar to the regime that has been in place since 2012 for reportable offenders under the Community Protection (Offender Reporting) Act. The Greens have had issues with the Community Protection (Offender Reporting) Act 2004 and the various amendments to it over the years, but concerns had not been expressed with regard to these particular provisions when the bill introducing them was debated. Unless the name change is of a child with Family Court approval, the registrar must not register a name change of restricted person unless it has the explicit written authority or written approval of the relevant supervisory authority; nor can that person make an application to have their name changed without the written approval of that supervisory authority. A number of penalties apply if that is undertaken.
It is likely that the supervisory authorities that we are talking about will include the director general of the Department of Justice or the Commissioner of Corrective Services. For people on early release orders, the supervisory authority is likely to be the Prisoners Review Board. For supervised young offenders, it will be the Supervised Release Review Board. Even then, a supervisory authority can give approval only if they are satisfied that the change of name, in all the circumstances, is necessary or reasonable. They cannot give approval if they think that it is reasonably likely that the person is going to be detained, if it will have an adverse effect on security or discipline and good order at that place or—I think this is an important provision—if they are concerned that it will be regarded as offensive by a victim of crime or a significant sector of the community, or if it will frustrate the administration of the relevant supervisory act. If the supervisory authority decides to give approval, they have to act on that as soon as practicable.
This is an important reform. I recognise that the balance is probably about right. We should allow people to change their names for a whole range of reasons, but it is appropriate that we also look at how we can balance that to make sure that we can cut down on issues of fraud. I particularly think that clamping down on jurisdiction hopping is a sensible and overdue reform. I do not believe this piece of legislation is particularly controversial. I am glad to see it finally come to this place and we will support it.
Comments and speeches from various members
Debate adjourned, on motion by Hon Pierre Yang.