Abolish Child Support and Family Court and Minister for Foreign Affairs and Trade - [2001] AATA 159

DECISION AND REASONS FOR DECISION [2001] AATA 159

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/748

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JUSTICE NEVIL ABOLISH CHILD SUPPORT AND FAMILY COURT
  Applicant
           And    MINISTER FOR FOREIGN AFFAIRS AND TRADE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer Senior Member
Mr D Elsum, AM Member Adjunct Professor L Rodopoulos Member

Date2 March 2001
PlaceMelbourne

Decision      The Tribunal (by majority) affirms the decision under review.
  (Sgd) Joan Dwyer
  Senior Member
PASSPORT – refusal to issue passport in name used by applicant – whether applicant had changed his name to Justice Nevil Abolish Child Support and Family Court – change of surname registered in New South Wales – change of first names registered in Victoria – whether discretion not to accept a name for inclusion in a passport if on reasonable grounds it may be considered offensive available in case of a registered change of name - whether name acquired by reputation – whether name may on reasonable grounds be considered offensive – discretion exercised not to accept name for inclusion in a passport – decision affirmed
Passports Act ss 7(1), 8(1), 8(1A), 8(1B), 11A(1) and 11(5)
Manual of Australian Passports Issue paragraphs 323 and 325

Re Prime Minister John Piss the Family Court and Legal Aid v Department of Foreign Affairs and Trade [2000] AATA 1028

Re T (An Infant) [1962] 3 WLR 1477

Department of Industrial Relations v Burchill (1991) 33 FCR 122

Attorney-General's Department and Australian Iron and Steel Pty. Ltd. v Cockcroft (1986) 10 FCR 180

Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2VR 391

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (1998) 85 FCR 526

Re Little and Others and Australian Securities Commission and Others (1996) 24 AAR 62

2 March 2001 Mrs Joan Dwyer, Senior Member

This is an application for review of a reviewable decision under the Passports Act 1938 ("the Act") made 29 June 1999 (T15) affirming a decision of 22 April 1999 (T8) not to issue a passport to the applicant in the name "Justice Nevil Abolish Child Support and Family Court" and deciding not to vary the original decision by issuing a passport in the name of "Justice J Abolish Child Support and Family Court". The reference to the alternative name with a "J" in the surname is an error as was pointed out by the applicant in a letter of 4 May 1999 to "Mr Downer MP" (see A1). The applicant wrote:
I have never had the intention, nor do I have any intention, of requesting a passport to be issued in the name 'Justice J. Abolish Child Support And Family Court', as I do not have a second given name beginning with 'J'.

I will not consider further the issue of a passport in the alternative and erroneous name.

The Tribunal has jurisdiction under s 11(5) of the Passports Act 1938 ("the Act") to review decisions defined in s 11A(1) of the Act as a "Ministerial decision". The definition includes decisions under s 7(1) of the Act refusing to issue a passport.
The applicant appeared at the hearing. Mr B Gillies of Counsel, appeared for the Department of Foreign Affairs and Trade ("the Department"). The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing. The applicant gave evidence. The respondent called Dr L Tollfree, a forensic linguist.
background history
The applicant's name at birth was registered as Nevil Joseph Brewer. An application to register a change of surname to "Abolish Child Support and Family Court" was refused by the Victorian Registrar of Births, Deaths and Marriages (T11 p348) on 31 January 1996. The applicant applied to the New South Wales Registrar of Births, Marriages and Deaths to register a change of name from "Nevil Joseph Brewer" to "Nevil Joseph Abolish Child Support and Family Court". That name change was registered under the Births, Deaths and Marriages Registration Act 1995 (NSW) and a Change of Name Certificate was issued on 11 June 1996 (T10 p238). On 19 February 1998 the Victorian Registrar did register a change of Christian or Given names from "Nevil Joseph" to "Justice Nevil", but no surname was recorded (T11 p348). The Victorian Change of Name Certificate states at the bottom that the application to change the surname was refused in Victoria on 31 January 1996 but registered in New South Wales on 11 June 1996 (T11 p348).
On 30 March 1999 the applicant applied to the Department of Foreign Affairs and Trade for an Australian passport in the name of "Justice Nevil Abolish Child Support and Family Court". By letter dated 22 April 1999 he received notification that a decision had been made by the Director of Passports Australia not to issue a passport in the name of "Justice Nevil Abolish Child Support and Family Court". The decision set out a number of reasons for rejecting the application (T8):
In my view the "name" is a string of words that would not commonly be recognised as a name, the "name" assumes a title i.e. "Justice" or at the very least the use of this word could mislead people to believe the applicant has this title and the "name" includes reference to an institution i.e. the Family Court. I also understand that the Victorian Registrar of Births, Deaths and Marriages has rejected the registration of the surname and that the NSW R of BD&M has rejected the registration of the given names. This in itself suggests that there is some confusion as to what is the correct "name" and that name has not been given wide acceptance particularly from the main sources of breeder documents we mostly rely upon.
On 26 April 1999 the applicant requested a review of the decision dated 22 April 1999 (T9). On 29 June 1999 he was advised that the original decision not to issue a passport in the name "Justice Abolish Child Support and Family Court" had been affirmed (T15).
On 8 July 1999 the applicant applied to this Tribunal for review of the reviewable decision made on 29 June 1999. The issue for determination before the Tribunal is whether the delegate of the Minister for Foreign Affairs and Trade made the correct or preferable decision in affirming the decision not to issue a passport to the applicant in the name "Justice Nevil Abolish Child Support and Family Court".
Section 7 of the Act provides as follows:
7. (1) Subject to the regulations, the Minister or an officer authorized in that behalf by the Minister may issue Australian passports to Australian citizens.
(2) Australian passports shall be issued in the name of the Governor-General and shall be in such forms as are approved by the Minister.
(3) The exercise by an authorized officer of a power under this section is subject to any directions of the Minister and to sections 7A, 7B, 7C, 7D and 7E.
(4) The Minister is not entitled to refuse, or to direct an authorized officer to refuse, to issue an Australian passport except:
(a) in circumstances in which, under section 7A, 7B, 7C, or 7D, an authorized officer is prohibited from issuing a passport unless directed otherwise by the Minister or by a person specified for the purpose in the relevant section; or
(b) in circumstances where the Minister may notify an authorized officer under sub-section 7E (1) that an Australian passport is not to be issued.
(5) Where the Minister or an authorized officer makes a decision under sub-section (1) refusing to issue a passport, the Minister or an authorized officer shall cause to be served, either personally or by post, on the applicant for the passport a notice in writing setting out that decision and the reasons for that decision.
As to the refusal to issue a passport to the applicant, the respondent does not contend that ss 7A, 7B, 7C, 7D or 7E are relevant to this matter. The respondent relies on Regulation 4 of the Passports Regulations 1939 and paragraph 325 of the Manual of Australian Passports Issue ("the Manual"). Regulation 4 provides:
4.The exercise of any power or function of an authorised officer under these Regulations shall in all cases be subject to any directions of the Minister.

Paragraph 325 of the Manual provides:

An Authorised Officer has discretion not to accept for inclusion in a passport any name, whether acquired by Deed Poll or by reputation, which, on reasonable grounds, may be considered offensive. This discretion may be applied to names which are considered offensive because they contain expletives or racial and/or ethnic slurs or implications, and to cases in which applicants purport to use Royal Titles or Titles of Nobility which have not been legitimately acquired.

The reasons for the reviewable decision were set out in section C of the letter of 29 June 1999 (T15) as follows:
That the "name" is a string of words.
5.        In a recent decision of the Melbourne Magistrates Court in Prime Minister John Piss the Family Court and Legal Aid v Electoral Registrar for the State District of Carrum (decision of Magistrate B Cotterell on 18 December 1998), the Court held that the words used by the applicant did not constitute a name within the conventions of the State of Victoria at that time. The decision was based in part on the fact that the "name" was a grammatical string, which, although acceptable in many other cultures, was not acceptable in Victoria at that time.
That the "name" assumes a title not legitimately acquired
6.        Paragraph 325 of the Manual of Australian Passports Issue provides that:
An Authorised Officer has discretion not to accept for inclusion in a passport any name, whether acquired by Deed Poll or by reputation, which, on reasonable grounds, may be considered offensive. This discretion may be applied to names which are considered offensive because they contain expletives or racial and/or ethnic slurs or implications, and to cases in which applicants purport to use Royal Titles or Titles of Nobility which have not been legitimately acquired.
7.        Paragraph 9 of Appendix 1 to MAPI (titled "Applications from Minors") also contains some guidance on the discretion to refuse the issue of a passport in a certain name. That paragraph provides that:
… Royal Titles or Titles of Nobility which have not been legitimately granted by the Crown as head of the Commonwealth of Australia or by the Australian Government are not acceptable. However a first name such as King (King O'Malley former Prime Minister) would be acceptable.
8.        In this case, the question is not simply whether "Justice" is an acceptable first name for the purposes of the issue of a passport, but rather whether a Passport should be issued in this instance in the "name" "Justice Nevil Abolish Child Support and Family Court" (or "Justice J Abolish Child Support and Family Court"). However, I am of the opinion that the use of the term "Justice" in the context of the other words in the "name" could reasonably be mistaken for a title rather than a proper noun.
That the supporting documents do not indicate a consistent pattern of usage of the "name"
9.        Paragraph 322 of MAPI provides that:
An applicant seeking a passport in a name other than that shown on documentary evidence of citizenship must give the applicant's name at birth or on acquisition of Australian citizenship and submit evidence of the change or changes of name so that the current name can be traced back to that shown on the original evidence of citizenship. Evidence of the use of the name in which the application is made must also be provided.
10.      The documents you have provided indicate that your name at birth was 'Neville Joseph Brewer"; that on 11 June 1996 you sought to register the "name" "Nevil Joseph Abolish Child Support and Family Court" with the New South Wales Registry of Births, Deaths and Marriages; and that on 19 February 1998 you sought to register the "name" "Justice Nevil Abolish Child Support and Family Court" with the Victorian Registry Of Births, Deaths and Marriages.
11.      The documents you have provided in support of your application do not show an entirely consistent use of a single "name" : references are made in these documents to the "names" Justice Abolish Child Support and Family Court", "N Abolish Child Support and Family Court", "J Abolish Child Support", "Justice N Abolish Child Support And", and "Justice Abolish Child Support & Family Court". I note that your initial passport application was for the issue of a passport in the "name" "Justice Nevil Abolish Child Support and Family Court", and that your subsequent application for review was in the "name" "Justice J Abolish Child Support and Family Court". On the basis of the above, there is little evidence of the acceptance of any formulation of your "name".
12.      I also note that the copy of the Change of Name Certificate from the Victorian Registry of Births, Deaths and Marriages that you have provided states that the application to change your surname was refused in Victoria in 1996, although it provides that your former surname (via registration in New South Wales) was "ABOLISH CHILD SUPPORT AND FAMILY COURT".   You state in paragraph 140 of your application of 26 April 1999 that "I have no surname registered in Victoria … the only surname I possess and use in Australia is "J. Abolish Child Support and Family Court".   Again, this indicates a wide variety of formulations of the "name" having been used, with no consistent practice clearly evidencing a change of name by reputation.
13.      For the above reasons, I have decided to affirm the decision not to issue you a passport in the "name" "Justice Nevil Abolish Child Support and Family Court", and have decided not to vary the original decision so as to issue in the "name" "Justice J Abolish Child Support and Family Court".

the issues

There are two substantive issues requiring consideration. The first is whether the name in which the applicant seeks to have a passport issued is in fact his name. The second is whether, if that is his name, the discretion in paragraph 325 of the Manual should be exercised, not to accept a name for inclusion in a passport.
(a) Has the applicant changed his name to Justice Nevil Abolish Child Support and Family Court?
The applicant has registered two changes of name. As set out in paragraph 4 of these reasons the name in which he seeks to have the passport issued is the name comprised of the two registered changes. The change of surname to Abolish Child Support and Family Court was registered in New South Wales on 11 June 1996 (T11 p349). The change of Christian or Given names to Justice Nevil was registered in Victoria on 19 February 1998 (T11 p348). As the applicant wrote in paragraph 140 of his letter seeking review of the original decision of 22 April 1999 (T9 p234):
[M]y surname was registered in June 1996 with the NSW Registry of Births, Deaths and Marriages, and as I have no surname registered in Victoria, refer annexure 1, the only surname I possess and use in Australia is 'J. Abolish Child Support And Family Court'. There is no legislative requirement to have one's surname registered in more than one State of Australia. The rejection of the Victorian Registry of Births, Deaths and Marriages is inconsequential to my current passport application.
The registration of the changes of name is prima facie evidence that the name in which the applicant seeks to have the passport issued is in fact his name. He does not need to rely on a name established by repute and recognised under s 30 of the Births Deaths and Marriages Registration Act 1996 (Vic), as was done in Re Prime Minister John Piss the Family Court and Legal Aid v Department of Foreign Affairs and Trade [2000] AATA 1028.
The respondent's Statement of Facts and Contentions in paragraphs 20–22 contends that the name relied on by the applicant has not "been given wide acceptance". In paragraph 21 the respondent sets out what it claims are inconsistent uses of the name as follows:
Moreover the Respondent contends that the documents furnished by the Applicant fail to exhibit a consistent use of either of the alleged names. Those documents included references at various times to respectively: "J Abolish Child Support and Family Court", "N Abolish Child Support and Family Court", "justice Abolish Child Support and Family Court", "Justice N Abolish Child Support and Family Court", "Mr Justice Nevil Abolish Child Support and Family Court", "Neville Abolish Child Support and Family Court" and "Abolish Child Support and Family Court". This lack of consistency negates evidence of a change of name by reputation or acceptance of a particular formulation of the "name".
In fact that paragraph shows consistent use of the applicant's name. It is quite common for any combination of initials and full names to be used for given names together with a surname (see paragraph 11 of applicant's submission of 8 August 2000). Neither variations of that nature, nor one incorrect spelling of the first name as "Neville", have any significance. Sometimes the title Mr or Ms or Mrs is used in documents, sometimes it is not. Occasionally a surname may be used without a first name.
The applicant in paragraph 10 of his submission of 8 August 2000 summarised the evidence he had produced as to use of his changed and registered names. He wrote:
I have submitted my Driving Licence showing the endorsement on rear as J. Abolish Child Support And Family Court [refer T docs 11 (xiv) p. 343], National Bank Credit Card statements from 11 August 1999 to 10 July 2000 [refer tabled documents A3] which provide evidence of useage [sic] and wide community acceptance. As stated in the Tribunal hearing, I sign my credit card transactions in my name Justice Abolish Child Support And Family Court.
In addition, there are numerous documents within the T-documents showing the useage and varied community acceptance of my name since the beginning of 1996 through to the current time.
The Tribunal has before it documentation relating to;
·Commonwealth Administrative Appeals Tribunal application no. V96/586 – Mr Abolish Child Support And Family Court v. Australian Electoral Commission
·Anti-Discrimination Tribunal (Melbourne) no.124 of 1997 – Nevil Abolish Child Support And Family Court v. Telstra Corporation Limited [T-doc 19, p368]
·Supreme Court of Victoria appearances [refer T-docs 10(ii), p.239 and 11(xliv), p342].
There was a vast amount of evidence before us showing that institutions and organisations such as the Supreme Court, Office of the Deputy Sheriff, banks, local government departments, RACV, CES, Catholic Superannuation Fund, Equal Opportunity Commission, NRMA and the Swinburne University of Technology, amongst others, have recognised the applicant's name. The name has been used in correspondence and for the issue of credit cards, membership cards and a driver's licence, as well as in newspaper articles (T11 pp240-327 and exhibits A3 and A4).
Deputy President Forrest in Re Nevil Joseph Brewer called "Abolish Child Support and Family Court" and Australian Electoral Commission (AAT 9 February 1996) affirmed a decision refusing to change the applicant's surname on the Commonwealth Electoral Roll from "Brewer" to "Abolish Child Support and Family Court". However that decision was made before the applicant had registered either of the changes of name referred to in paragraph 12 of these reasons and before he had developed the body of evidence as to use of the new name referred to in paragraphs 14–17 of these reasons. I find that the name in which he seeks the issue of a passport is now the name which the applicant uses and by which he is known.
The respondent's written final submission of 15 November 2000 relied on the evidence of Dr Tollfree to the effect that a string of words such as the applicant uses as his name would cause confusion to listeners. The respondent acknowledged that Dr Tollfree did not say that a string of words cannot be a personal name. She said rather that it would not be recognised as a name by language users. In her evidence Dr Tollfree said (trans. p108):
[The name] falls outside the practices of naming in Australia and that's relevant because hearers need to use names and recognise names and so it isn't a case of one person's opinion over another. It's a case of what people are accustomed to using linguistically. So that's why I say …you'd need to look at that culture to see if that kind of string was acceptable at that time.

In his submission the applicant at para 29 referred to a concession from Dr Tollfree's evidence. He wrote:

… faced with the mass of documentation where my name is and has been used, Dr Tollfree conceded that Justice Abolish Child Support And Family Court does function as a name.

Unfortunately, the applicant did not include a transcript page reference for that concession and I have not been able to find it.

I accept that the name used by the applicant tends to cause a processing problem for speakers and hearers. But the fact that the name used by the applicant is difficult for hearers and speakers to process, does not in my view stop it being a name. The names of some people in our community are difficult to spell or pronounce but that does not stop them being a person's name.
I find on the evidence before the Tribunal that the culture in Australia, including institutions and official bodies and individuals has accepted and used the applicant's name in spite of its unusual nature.
The respondent in its final written submission referred to authorities on change of name as follows:
The common law is of some help in considering the problem and there seems to be a requirement for a new name to be genuinely accepted. In Sullivan v Sullivan 2 Hag. Con. 237 at 254 the Court said:
"In general, it may be said that where there is a name of a baptism and a native surname those are the true names, unless they have been overridden by the use of other names assumed and generally accredited."
Mr Justice Buckley in Re T (an infant) (1962) 3 WR 1477 at 480 said:
"It is, of course, well known that a person's surname is their conventional name and forms no part of his true legal name. An adult can change his or her surname at any time by assuming a new name by any means as a result of which he or she becomes customarily addressed by the new name. There is no magic in a deed poll. The effect of a deed poll when changing a name is merely to record the change in solemn form which will tend to perpetuate the evidence of the change of name. The change of name on the part of an adult must, in my judgment, involve a conscious decision on the part of the adult that he wishes to change his name and be generally known by his new name."
Mr Justice Slicer of the Supreme Court of Tasmania in the unreported case of Informal v Chief Electoral Officer, unreported, Supreme Court of Tasmania 18 February 1992 (page 5) said that
"It may be easier (or take less time) for the Applicant to be known as "Dean" (or some other forename) "informal" than as simply "informal". Indeed, he may be unable to establish general acceptance or knowledge of a new single and non-customary name. Yet such a process could easily be accepted in the case of an Aboriginal reverting to a tribal name. The test is a pragmatic one."
The evidence of the Applicant in this case, establishes that the applicant intends only to keep his name as long as he is politically active. He would not rule out the possibility of further changes of name and thought that a name such as Justice Build More Retirement Villages (transcript page 28) would be appropriate in the future.
The respondent referred to the four steps set out by Slicer J of the Supreme Court of Tasmania in Informal v The Chief Electoral Officer (unreported, 18 February 1992) namely:
(i)the conscious decision to change,
(ii)the abandoning of all or part of an existing name;
(iii)the adoption of a new name or names;
(iv)becoming generally known by the new name.

I find that the applicant has satisfied all those steps.

I find, using the words of Buckley J in Re T (An Infant) [1962] 3 WLR 1477 at 1480, that the applicant has made "a conscious decision . . . that he wishes to change his name and be generally known by his new name." He has abandoned the use of his former name except for the name Nevil which is retained in the changed name. He has adopted new names and has become generally known by the new name. He has not done so for any fraudulent purpose. He has taken the name in which he seeks the passport and he may "work his way in the world with his new name as well as he can". It may cause difficulties to hearers, speakers and others who deal with the applicant, but he is free to use the name "as well as he can". I recognise a person's right to use his name to make a political statement. I do not accept that the fact that the name has been adopted as a political statement prevents it being a name. The fact that the applicant may one day change his name again does not in my opinion stop it being recognised now as his name.
I find that the applicant's name is Justice Nevil Abolish Child Support and Family Court.

(b)Should the discretion in paragraph 325 of the manual be exercised not to accept a name for inclusion in a passport?

The applicant in his submission of 8 August 2000 submitted that the discretion in paragraph 325 was not able to be exercised unless a name had been acquired by Deed Poll or reputation, and that as his changed names were acquired by registration the discretion could not be exercised. The respondent did not address that argument. It simply said "Without going into enormous detail, there is no reason why the Tribunal should not follow the publicly declared Ministerial policy."
Paragraph 325 of the Manual, as already set out in paragraph 9, reads as follows:
An Authorised Officer has discretion not to accept for inclusion in a passport any name, whether acquired by Deed Poll or by reputation, which, on reasonable grounds, may be considered offensive. This discretion may be applied to names which are considered offensive because they contain expletives or racial and/or ethnic slurs or implications, and to cases in which applicants purport to use Royal Titles or Titles of Nobility which have not been legitimately acquired.
There is no reference there to a discretion not to accept a registered name for inclusion in a passport. The omission of a discretion not to accept a registered name is understandable. Registration involves some official acceptance of the name. That is clear from the refusal of the Victorian Registrar, on 31 January 1996, to register the changed surname. Change of name by Deed Poll or repute does not involve any discretion by an officer or office holder as to whether or not to accept a change of name.
The respondent did not expressly challenge the applicant's submission that the discretion in paragraph 325 did not apply to a changed name which had been registered. The respondent acknowledged in paragraph 14 of its Statement of Facts and Contentions that the guidelines in the Manual do not have legislative force, but it submitted that they do reflect Ministerial policy. The respondent submitted:
As the Tribunal has consistently stated, it will follow publicly declared Ministerial Policy or Departmental Guidelines unless there is good reason not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634; Minister for Immigration v Gray (1994) 33 ALD 13. It is submitted that there are no cogent reasons why the guidelines should not be applied.
The question the respondent has not addressed is whether the Minister intends the discretion in paragraph 325 to apply even to registered changes of name? There is nothing to say so in the Manual. It is clear from the Manual that the discretion not to accept for inclusion in a passport a name which, on reasonable grounds, may be considered offensive does not apply to a person's name registered at birth. It appears under the heading "Evidence of Change of Name" and applies to "any name whether acquired by Deed Poll or by reputation". It is instructive to ask why the discretion only applies to changed names. Parents could conceivably give a child at birth an unusual name which, on reasonable grounds, may be considered offensive. While that may be uncommon it could not be considered impossible. Yet if the name is an original name rather than a changed name paragraph 325 has no application.
Names acquired by registration are not referred to in paragraph 325 whether they are original names or changed names. I do not consider that the paragraph 325 discretion applies to a changed name where the change has been registered. Nor do I consider that the Manual shows any Ministerial policy that registered names should be rejected for inclusion in a passport if they, "on reasonable grounds, may be considered offensive". It is my view that the reason for that omission is because of an expectation that names, which on reasonable grounds may be considered offensive, will not be accepted for registration. Once a name has passed the registration hurdle, it will be accepted for inclusion in a passport.
I note that it is not simply a matter of the Manual being out of date and omitting reference to registration of name changes. At paragraph 323 it refers to registration of changes of name in Victoria replacing the Deed Poll procedure. If such registered changes of name were intended to be subject to the paragraph 325 discretion, it would have been a simple matter to add the words "or whether registered" after the word "reputation" in paragraph 325. As that has not been done I conclude that, as the applicant submitted, the paragraph 325 discretion is not available in this matter.
That conclusion means that it is not necessary for me to consider whether the inclusion in a passport of the applicant's name "on reasonable grounds may be considered offensive". However as the other Members of the Tribunal have a different view as to the applicability of the paragraph 325 discretion to a name which has been registered I will consider whether, if the discretion were available, I would have exercised it so as not to accept the applicant's name for inclusion in a passport.
In paragraph 15 of the respondent's Statement of Facts and Contentions, the respondent submitted that the word "offensive" should be given its ordinary meaning and not that ascribed in the context of offensive behaviour in criminal law. The respondent referred to the Macquarie Dictionary definition of the word "offensive" which includes, so far as relevant:
1.        causing offence or displeasure; irritating; highly annoying
2.        disagreeable to the sense …
3.        repugnant to the moral sense, good taste, or the like; insulting

The respondent also referred to the Shorter Oxford English Dictionary definition:

… 2. Hurtful, injurious … 3. Giving …offense; displeasing;… insulting …

The respondent submitted further:
The discretion not to accept a name does not require a finding that a name is offensive. The discretion may be exercised in circumstances where a name "may be considered offensive". That is, where on reasonable grounds it is considered that there is a possibility that a name sought to be used in a passport is offensive. That is, that it may cause "displeasure" or be "irritating" or be "repugnant to the moral sense or good taste" or be "insulting".
The respondent referred to Department of Industrial Relations v Burchill (1991) 33 FCR 122 where Davies J, at pp125-6, considered the meaning of the words "reasonable grounds" in s 58(5) of the Freedom of Information Act 1982:
To be "reasonable", it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous … It follows that it is a heavy thing for the Tribunal to reject a certified claim.
The respondent also referred to Attorney-General's Department and Australian Iron and Steel Pty. Ltd. v Cockcroft (1986) 10 FCR 180 where Bowen CJ and Beaumont J considered s 43 of the Freedom of Information Act 1982 which provides for exemption from disclosure of a document if disclosure could reasonably be expected to prejudice the future supply of information to the Commonwealth. Their Honours said at p190:
In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" (in s43(1)(c)(ii)) were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act.
The respondent claimed that the applicant's name may on reasonable grounds be considered offensive because it is "derogatory of an Australian public institution, the Family Court of Australia". The respondent explained:
[I]t is of relevance to consider the context in which the name is to be used. A passport is a document which is issued in the name of the Governor-General of Australia (s7(2)) and at all times remains the property of the Commonwealth of Australia (s6A). It is submitted that it may further reasonably be considered offensive to use the alleged names on a document which is Commonwealth property and which makes offensive reference to a Federal Court and which is issued in the name of the representative in Australia of Her Majesty Queen Elizabeth and is to be presented to foreign states.
The applicant responded on that issue:
The respondent's assertion that my name is offensive is unfounded. My name advocates legislative change in the areas of Family Law and Child Support [refer T-doc 19, p368]. We live in a democratic society where we are freely able to express our political opinions and have anti-discrimination legislation to protect a person's political rights. I am the federal secretary of the federally registered political party Abolish Child Support/Family Court Party and the registered officer of the state registered political party Abolish Child Support And Family Court. I have been a candidate in local government elections [refer T-document no. 11(xxvii), p318], state government elections [refer T-document no. 11(xxix), p320, T-document no. 11(ix), p287 and refer transcript where counsel for respondent indicated my votes received in the last Victorian elections] and federal government elections. My advocation of abolishing the Family Court and the current Child Support system is no more offensive or derogatory than calling for the abolition of the Goods and Services Tax (GST), the abolition of Tariffs or any other government legislation. Throughout the course of the hearing it was revealed that there had been calls for the abolition of the Tribunal itself. This is not offensive, although those working within the Institution may disagree with such a call as their lives may be affected.
. . .
In the matter of Prime Minister John Piss the Family Court and Legal Aid, which was a case of change of name by reputation, the Tribunal affirmed a decision not to issue a passport in the applicant's name. The Tribunal exercised the paragraph 325 discretion. The Tribunal in its reasons for decision said at paragraphs 33 and 34:
33. . . . The applicant said he chose the name to make a political statement asking the Prime Minister to abolish the Family Court. Mr Crennan [Counsel for the respondent] put to him that the word "Piss" does suggest more than "simply abolish" (trans. p39). Mr Perkins [Counsel for the applicant] objected and the applicant's cross-examination was substantially interrupted. When the applicant was asked again whether he thought the meaning of the word "piss" is "abolish", he replied (trans. p40):
Well, it has a number of meanings. Yes, this is the meaning I have taken it to be and it is commonly used – it has been commonly used. It is a commonly used term. It is not something that is restricted to this name, as you - - -
Is it your belief – I am not asking you to be a dictionary, but is it your belief and experience that the word "piss" is commonly used to mean abolish?---It's used in different forms and this is – that is my view, that in this instance I have used it to mean that – to have that meaning.
Is there any reason you did not use the word abolish?---I didn't think of it at the time.
34. We do not accept that the applicant used the word "Piss" to mean "abolish". That is not a recognised meaning of the word. It is a word used to indicate contempt in a "vulgar" and "not … polite" manner. We do not accept that the applicant did not use the word "abolish" because he did not think of it at the time. He denied that the word was used to offer an insult to the Family Court (trans. p42) and said the word has "a humorous side to it" (trans. p41). We do not accept that evidence. We are satisfied that the words "Piss the Family Court" were intended by the applicant to be and are in fact insulting to and contemptuous of the Family Court.
In this matter the applicant has in fact used the word "abolish" as part of his name. He has not chosen any insulting or contemptuous alternative. There is no issue about the fact that he uses his name to make a political statement calling for the abolition of the Family Court and the current child support system but, in my opinion, and with respect to my fellow Members who hold a different view, he does not do that in a way "which on reasonable grounds may be considered offensive". As Harper J said in PellvThe Council of the Trustees of the National Gallery of Victoria [1998] 2VR 391 at p395, in Australia we live in a "largely tolerant if not permissive society". I accept the applicant's contention that "we live in a democratic society where we are freely able to express our political opinions".
The respondent also submitted that the applicant's name contained "an official title not legitimately acquired ("Justice") which when juxtaposed with "Family Court" suggests that the applicant is a Justice appointed to the Family Court of Australia". I do not accept that contention. Anyone who understands the words in the applicant's name would understand that he is not a judge of the Family Court.
The applicant in paragraph 21 of his written submission responded:
"Justice" is a legitimate name and has been registered by the Victorian Registrar of Births, Deaths and Marriages. It is also listed in books of names [refer T-document no. 7(V), pp215-216, T-document no. 7(vi), pp217-218] and listed in the Melbourne White Pages [refer T-document no. 7(iv), p213].
The applicant, with his passport application, included an extract from A Dictionary of Surnames, by Patrick Hanks and Flavia Hodges, Oxford, (T7 pp217–218). The entry for the name "Justice" reads:
Justice English: nickname for a fair-minded man, from ME, OF justice justice, equity (L iustitia, a deriv. of iustus; see Just I). It may well also have been an occupational name for a judge, for this metonymic use of the word is attested from as early as the 12th cent. ? Var.: Jestice. [

Dr Tollfree, at trans 101, agreed with the applicant that the name "Justice" has been used since the 12th century. It has been recognised as both a first name and a surname (T71 p216 and 213).

The applicant explained to the Tribunal his reasons for choosing the name "Justice". He said (trans p12):
Now, my reasons for changing my name was not to be judge. If I wanted to be a Judge I would have said Judge Abolish Child Support and Family Court and as we know judiciary are given the term Judge or Justice. Now, it was not my intention to be a Judge. I have nothing against judges but it's not a job I think I prefer to do. However, when I saw that what my issues are about are social issues, social justice and I believe that the current system of child support instead of equally shared parenting for divorced parents is unjust and it is unjust, hence I chose the name Justice for justice sake, for righteousness. Justice to abolish child support and Family Court and that's how I made the decision to change my name to Justice and not Judge.

The applicant's chosen name of "Justice" is a recognised first name and a recognised surname and also a title of a Judge of a Superior Court. It is similar to titles like "King" or "Queen" or derivatives of those names, which are already accepted as given names and surnames, rather than to a title like "Prime Minister", which has no recognised usage as a name. The use of "Justice" as a first name indicating a desirable quality or characteristic is not dissimilar to names such as "Grace", "Faith", "Hope", "Charity" or "Mercy", which are all used as first names.
I do not find that the inclusion of the applicant's name in a passport, on reasonable grounds, may be considered offensive.
I would set aside the decision under review and in substitution decide that a passport be issued to the applicant in his name "Justice Nevil Abolish the Family Court and Child Support".
I certify that the 48 preceding paragraphs are a true copy of the reasons of Mrs Joan Dwyer, Senior Member
Signed: Anne O'Rourke
Associate

REASONS FOR DECISION

2 March 2001 Adjunct Professor L Rodopoulos, Member Mr D Elsum, AM, Member

We respectfully adopt the background matters and legislative summary set out in paragraphs 1-11 of Senior Member Dwyer's decision but we do not agree with the reasons for her decision and affirm the decision under review for the following reasons.
As stated at paragraph 3 of the Senior Member's decision the Tribunal has jurisdiction to review a decision under s7 (1) of the Passports Act 1938 ("the Act") refusing to issue a passport under s7 (5). We are in agreement with the presentation of the background history at paragraphs 5-9 and that the refusal to issue the passport to the applicant relies on Regulation 4 of the Passports Regulations 1939. Regulation 4 provides that the exercise of any power or function of an authorized officer under the Regulation shall in all cases be subject to any directions of the Minister. Regulation 4 of the Passports Regulations 1939 provides that: "The exercise of any power or function of an authorised officer under these Regulations shall in all cases be subject to any directions of the Minister".
We have considered this matter in two stages. First, has the applicant, previously known as Nevil Joseph Brewer changed his name by registration, Deed Poll and/or by reputation. Secondly, if the applicant has changed his name should a passport be issued in that name?
change of name
We find that the applicant, who was previously known as Nevil Joseph Brewer, has registered two changes of name. The first, registered in New South Wales on 11 June, 1996, changed his surname from "Brewer" to "Abolish Child Support and Family Court". The second, registered in Victoria on 19 February, 1998, changed his given name from "Nevil" to "Justice Nevil".
These changes are by registration not by Deed Poll. Paragraph 325 of the Manual of Australian Passports Issue ("Manual") refers to acquisition of a name by Deed Poll. Paragraph 323 of the Manual states, registration of changes of name has replaced the Deed Poll procedures in Victoria. In view of paragraph 323 it seems reasonable to assume that a change of name by registration satisfies the Deed Poll requirement of paragraph 325. However in light of the following discussion, regarding acquisition of a name by reputation, it is not necessary, in our view, to make a finding on this aspect of the matter.
In 1996, Re Nevil Joseph Brewer called "Abolish Child Support and Family Court" and Australian Electoral Commission No V96/149 the applicant sought to have the political statement "Abolish Child Support and Family Court" registered on the Electoral Roll. In his oral decision the then Deputy President Forrest, rejected the application commenting that "What he is seeking to have registered as his family name is no more than a slogan for political purposes". He anticipated that with the passage of time the applicant would establish that he was "generally known by the name he now seeks to have enrolled". The applicant has now submitted to this Tribunal voluminous documentation alleging that he is personally identified/named by this political statement, by various government organizations, agencies and utilities and in the media.
Section 324 of the Manual states that "Authorised Officers should exercise discretion as to what documentation to accept from a person who has changed his or her name." No evidence was sought as to the circumstances under which agreement was gained by the applicant for these organizations, agencies and utilities to generate documents using this statement as his name. Nevertheless, the documentation does affirm that the applicant has made a conscious decision to change his name by reputation and to be known by it in the future. He does not wish to be referred to by his previous name. That is apparent from his statements at the hearing and also clear from the steps he has taken to register his name in what has effectively been a two-step process (surname changed then given name changed) in New South Wales and Victoria. He has persisted in his change of surname since 1996 and with his change of given names since 1998.
We are satisfied that the applicant has been issued with various documents, including bank statements, a credit card and a driver's license in his chosen name. These documents, together with his adoption of the name, support our finding that there is public recognition that he is known by his chosen name of Justice Nevil Abolish Child Support and Family Court. As Slicer J said, in essence, in Informal v Chief Electoral Officer (unreported, Supreme Court of Tasmania, 18 February, 1992 at page 5), whether there has been public recognition of a name change is a pragmatic test. In our view such a test of public recognition has been satisfied.
The questions can now be asked, "Is public recognition of a name" the same as acquiring a name by reputation? Has the applicant acquired the name Justice Nevil Abolish Child Support and Family Court by reputation?"
The word "reputation" is not defined in the Manual. It is defined in the Macquarie Dictionary (2nd edition, 1991) to mean:
… 1. the estimation in which a person or thing is held, esp. by the community or the public generally; repute; … 2. favourable repute; good name; … 3. a favourable and publicly recognised name or standing for merit, achievement, etc …. 4. the estimation or name of being, having, done, etc., something specified.
The word is defined in similar terms in The New Shorter Oxford English Dictionary (1993). In the context of the Manual and the Act and having regard to its ordinary meanings as set out in the Macquarie Dictionary, it seems to us that the word "reputation" means recognition by the public even though it may not entail necessarily a generalized favourable interpretation by the public.
We find that there is public recognition of the name "Justice Nevil Abolish Child Support and Family Court". Consequently, we find that the applicant, previously known as Nevil Joseph Brewer, has acquired the name "Justice Nevil Abolish Child Support and Family Court" by reputation thus satisfying the name requirement of Paragraph 325 of the Manual.
should a passport be issued?
Having acquired the name Justice Nevil Abolish Child Support and Family Court by reputation, it is now necessary to consider whether a passport should be issued in that name. This requires consideration of whether that name is, on reasonable grounds, offensive.
"Offensive" is defined in the Macquarie Dictionary to mean:
… 1. causing offence or displeasure; irritating; highly annoying. 2. disagreeable to the sense: an offensive odour. 3. repugnant to the moral sense, good taste, or the like; insulting.

The New Shorter Oxford English Dictionary defines the word in similar terms and adds … Hurtful, harmful, injurious …
The word "offence" is also defined in similar terms in both dictionaries. Of relevance in this case are:

… 5. something that offends. 6. the act of offending or displeasing. 7. the feeling of resentful displeasure caused: to give offence. ….

The New Shorter Oxford English Dictionary also refers to:

… 4 Hurt, harm, injury, damage, pain, (inflicted or felt). …

The word "offensive" has been considered in a number of cases over the years. Some of those cases have considered it in the context of criminal proceedings and others in the context of, for example, the registration of a company name (e.g. Re Little and Others and Australian Securities Commission and Others (1996) 24 AAR 62, and workplace relations (e.g. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (1998) 85 FCR 526, Wilcox J). What is clear from these cases is that the word must be considered in its context. As Wilcox J said in considering whether a union's notice on a notice board was offensive:
I do not think the criminal cases directly provide the answer to the question now under consideration. There may be a significant difference between the degree of objectionableness that warrants the application of criminal sanctions to particular behaviour and that which warrants removal of a notice from a notice board. Nevertheless, I think that the criminal cases provide some insight into the general concept of offensiveness. In particular, they emphasise two points that were accepted also by Gobbo J in the civil case of Patrick v Cobain: first, whatever its dictionary meaning, in this type of context the word 'offensive' means more than merely hurtful; secondly, not all criticisms can properly be described as being offensive. (pages 534-535)
The context in this case is that in which passports are issued i.e. that of the Act and of the Manual. It follows that we must take into account the purpose for which passports are issued. This purpose is summarised in RePrime Minister John Piss the Family Court and Legal Aid (unreported, [2000] AATA 1028, 23 November, 2000) ("PMJ"):
… the purpose of a passport is that it is a travel document which is:
(i)endorsed by the Australian government and issued in the name of the Governor-General;
(ii) at all times the property of the Australian government;
(iii)used for travel not in Australia but in other countries which may not be 'largely tolerant' or 'permissive'. (paragraph 32)
In the case PMJ, the Tribunal found the name was offensive because it contained at least one word that was offensive. In context, the three words considered offensive, in that decision were "piss"; and "Prime Minister" (paragraph 41).
We consider that in the matter before us the name by which the applicant is known and in which he wishes to have a passport issued, must be considered as a whole. In this case, it is not appropriate to look only at the name word by word and to consider whether each is offensive or not. The name has been intentionally created by the applicant as a composite whole and is intended, and best described in our view, as a political statement. At the hearing the applicant said he is a political activist. Refer to pages 26 and 27 of the transcript where this interchange occurred:-
MR GILLIES: Now, when you use the name Justice Abolish Child Support and Family Court what do you intend to convey to the world? What do you intend to convey to the people you come in contact with by using the name?
MR ABOLISH CHILD SUPPORT AND FAMILY COURT: I would have imagined that's quite evident by the name itself.
MRS DWYER: What do you think is evident to people from the name?
MR ABOLISH CHILD SUPPORT AND FAMILY COURT: Exactly what it states.
. . .
MRS DWYER: And what do you wish to convey by the use of that name?
MR ABOLISH CHILD SUPPORT AND FAMILY COURT: To abolish , to bring it to the –to let people know that it is my political belief and my political activity and if they wish to raise if that's an issues in their lives and they associate that name with myself and therefore they then raise those issues .
. . .
MR GILLIES: You say that that political statement reflects your name which is your occupation, would that be fair to say?
MR ABOLISH CHILD SUPPORT AND FAMILY COURT: It's one of my occupations. I am a political activist, that is correct.
The creation of his name is designed to have meaning within his chosen role of political activism. In our view the complete name does have meaning and should be considered in its entirety. Therefore it is necessary to consider whether such meaning is offensive or not and whether a passport should be issued in that name.
We understand the name "Justice Nevil Abolish Child Support and Family Court" to mean, and to be a call for, the abolition of child support and of the Family Court. We believe the worldwide community at large, would reasonably come to the same understanding of the meaning. Child support is part of the law of the Commonwealth of Australia. The Family Court, as a federal court established under the Commonwealth Constitution, is one of the three arms of government (legislative, judicial and executive). Criticism of the arms of government, of the laws of the Commonwealth, their implementation and interpretation is not offensive.
However, in our view, and put mildly, it would be unusual for a sovereign government to issue a routine operating official document that calls for the abolition of one of its own laws and part of its judicial system. A passport is an official document, owned by the Commonwealth of Australia. The statement "Justice Nevil Abolish Child Support and Family Court" in a passport, which is an official document of the Commonwealth of Australia, is, in our view, offensive. Inclusion in a passport gives to the world at large the Commonwealth's imprimatur to the call to action described in the name. Such an imprimatur could subject the Commonwealth of Australia and its citizens to ridicule in overseas countries and in Australia. It is repugnant to good sense and is offensive.
We note that in 1997, when the applicant lodged an anti-discrimination claim against Telstra for refusing to list him in the telephone directory as Nevil Abolish child Support and Family Court, the Anti-Discrimination Tribunal (Melbourne) rejected a bid by the respondent to strike out the claim stating inter alia that:
In our view, the belief or activity represented by this surname is capable of being characterised as a political belief or activity. The statement "abolish child support and family court" advocates the abolition of a major arm of the judiciary and the judiciary together with the legislative and executive arms of the Government, are part of our system of government. It also advocates the abolition of a major initiative of government policy. Both suggestions of abolition involve major legislative change or, if this abolition is not to be achieved by legislative change some more violent action for change. In our opinion, the views represented by this statement bear on government and go beyond mere suggestions for administrative reform that fall within its framework. They are political beliefs or activities. We also note the suggestions for legislative change must in their implementation involve a political process. (4.Submissions).

We endorse this view.

We do not consider that the purpose of issuing passports is to disseminate political statements, as described by the Anti-Discrimination Tribunal, nor do we consider that it is appropriate to issue a passport that is misleading with regards to title, authority and status. In referring to Royal Titles or Titles of Nobility clearly the Manual exemplifies potential examples as to how the use of titles can mislead. "Justice" may be used in a conventional naming sense (paragraphs 44, 45 and 47), but in these circumstances it has the potential to mislead in terms of authority and status.
We see no distinction between the current matter and the matter of PMJ. That Tribunal, at paragraph 37 states that "Paragraph 325 of The Manual seems to give a wide definition to the word "offensive", by providing that it applies to cases where applicants purport to use titles which are not legitimately applied." We consider that this is also the case in the matter before us. The applicant has not legitimately applied the word "Justice" as it is used.
Accordingly we find that the inclusion of the name "Justice Nevil Abolish Child Support and Family Court" in a passport, may on reasonable grounds be considered offensive.
For the reasons given, we affirm the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Adjunct Professor L Rodopoulos, Member and Mr D Elsum, AM, Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  3 August 2000
Date of Decision  2 March 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Self Represented
Counsel for the Respondent    Mr B Gillies
Solicitor for the Respondent    Australian Government Solicitor