DLQ v Commissioner of Police, NSW Police Force
[2018] NSWCATAD 173
•05 July 2018
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: DLQ v Commissioner of Police, NSW Police Force [2018] NSWCATAD 173 Hearing dates: 5 July 2018 Date of orders: 05 July 2018 Decision date: 05 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: The application is dismissed.
Catchwords: ADMINISTRATIVE REVIEW – Where registrable person applied for respondent’s approval to change his name – Where such approval refused - Whether Tribunal has jurisdiction to review decision not to provide approval Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)Category: Principal judgment Parties: DLQ (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Solicitors:
No appearance for applicant
Crown Solicitor’s Office (Respondent)
File Number(s): 2018/00145081
REASONS FOR DECISION
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These proceedings concern the issue of whether the Tribunal has power to review the respondent’s decision not to approve a registrable person’s application to change his name. I have found that it does not.
Background
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The applicant is a “registrable person” within the meaning of s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW) (“Act”). A “registrable person” is, relevantly, a person whom a court has at any time sentenced in respect of a registrable offence (Act, s 3A(1)).
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The applicant applied to the respondent (“the Commissioner”) for written approval to change his name, for the purposes of s 19E(1) of the Act. Under s 19E(1), a registrable person must not, without reasonable excuse, apply to the NSW Registrar of Births, Deaths and Marriages to register a change of his or her name under the Births, Deaths and Marriages Registration Act 1995 (NSW), without having first obtained the written approval of the Commissioner.
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A delegate of the Commissioner decided not to provide approval, finding that a change of the applicant’s name was “not reasonable in the circumstances presented” (see Act, s 19F(1)).
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The applicant then applied to the Tribunal seeking administrative review of the decision of the Commissioner’s delegate.
Summary dismissal application
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The respondent applied for summary dismissal of the applicant’s application on the basis that the Tribunal lacked jurisdiction. Submissions in support of this position were filed and served.
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The applicant did not appear at the hearing of the respondent’s summary dismissal application. The Tribunal telephoned him but he did not answer. As the applicant had been given a reasonable opportunity to be heard, and had not offered any explanation for his absence, the Tribunal proceeded to determine the summary dismissal application in his absence.
Consideration of jurisdictional issue
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The Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator: see Civil and Administrative Tribunal Act 2013 (NSW), s 30(1)). The Tribunal has administrative review jurisdiction over a decision of an administrator if “enabling legislation” provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision (ADR Act, s 9(1)). “Enabling legislation” is legislation that “provides for applications to be made to the Tribunal with respect to a specified matter or class of matters,” or “otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters” (ADR Act, s 4(1)).
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The Act does not provide that applications may be made to the Tribunal for an administrative review under the ADR Act of a decision of the Commissioner to refuse an application for a name change, as contemplated by s 19F of the Act. There is no other legislation which so provides.
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It follows that the Tribunal does not have jurisdiction to hear or determine the applicant’s application. It is therefore without substance and should be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act.
Order
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The applicant’s application is dismissed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 07 August 2018
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