Foley and Registrar Of Births, Deaths and Marriages

[2007] WASAT 300

FOLEY and REGISTRAR OF BIRTHS, DEATHS & MARRIAGES [2007] WASAT 300

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 300
Act:	BIRTHS, DEATHS AND MARRIAGES REGISTRATION ACT 1998 (WA)
Case No:	CC:512/2007	Heard:	24 SEPTEMBER 2007
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	19/11/07
No of pages:	21	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	NEIL FOLEY REGISTRAR OF BIRTHS, DEATHS & MARRIAGES
Catchwords:	Births, Deaths and Marriages ­ Register ­ Application for access to historical portions ­ Relationship of Births, Deaths and Marriages Registration Act 1988 (WA) to State Records Act 2000 (WA) ­ Principles of open access to historical archives ­ Whether adequate reason for access shown
Legislation:	Adoption Act 1994 (WA), Part 4 Division 2 Births, Deaths and Marriages Registration Act 1998 (WA), s 3, s 5, s 6, s 46, s 54, s 55, s 60(a), s 56, s 57, s 58, s 63, Division 4 Freedom of Information Act 1992 (WA) State Records (Consequential Provisions) Act 2000 (WA), s 51 State Records Act 2000 (WA), s 9(1), s 27(2), s 32, s 35(a), s s 45, s 47, s 48, s 49, s 50(2), s 51, s 73, s
Case References:	Somad v District Court (NSW) 209 CLR 140
Orders	1. The respondent's decision dated 9 March 2007 to decline the application for access to certain portions of the Register of births, deaths and marriages is affirmed.,2. The application is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BIRTHS, DEATHS AND MARRIAGES REGISTRATION ACT 1998 (WA) CITATION : FOLEY and REGISTRAR OF BIRTHS, DEATHS & MARRIAGES [2007] WASAT 300 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 24 SEPTEMBER 2007 DELIVERED : 20 NOVEMBER 2007 FILE NO/S : CC 512 of 2007 BETWEEN : NEIL FOLEY

Applicant

AND

REGISTRAR OF BIRTHS, DEATHS & MARRIAGES
Respondent

Catchwords:

Births, Deaths and Marriages ­ Register ­ Application for access to historical portions ­ Relationship of Births, Deaths and Marriages Registration Act 1988 (WA) to State Records Act 2000 (WA) ­ Principles of open access to historical archives ­ Whether adequate reason for access shown

Legislation:

Adoption Act 1994 (WA), Part 4 Division 2

(Page 2)

Births, Deaths and Marriages Registration Act 1998 (WA), s 3, s 5, s 6, s 46, s 54, s 55, s 60(a), s 56, s 57, s 58, s 63, Division 4
Freedom of Information Act 1992 (WA)
State Records (Consequential Provisions) Act 2000 (WA), s 51
State Records Act 2000 (WA), s 9(1), s 27(2), s 32, s 35(a), s s 45, s 47, s 48, s 49, s 50(2), s 51, s 73, s

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Mr P Lochore

Solicitors:

Applicant : In person
Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Somad v District Court (NSW) 209 CLR 140


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr Neil Foley, who has extensive experience as an historian, sought access to certain historical portions of the Register of Births, Deaths and Marriages. He contended that, consistent with modern principles concerning access to archives, he should be entitled to access to those portions of the Register for the purpose of research, by arrangement with the offices of the registry, at any time he wished. He also sought a declaration that that access should be available to any person.

2 The Tribunal examined the provisions of the Births, Deaths and Marriages Registration Act 1998 (WA) and the State Records Act 2000 (WA). It concluded that the Births, Deaths and Marriages Registration Act 1998 (WA), under which access was sought, did not contemplate free and open access to any portion of the Register. Rather, the Act required that an adequate reason be provided on each occasion that access to the Register was sought. It followed that the breadth of Mr Foley's application went beyond that which could be properly granted under the Act, and accordingly his application was dismissed.

The application

3 Following a refusal by the respondent in March 2007 to permit the applicant, Mr Foley, to have access to certain parts of the Register maintained under the Births, Deaths and Marriages Registration Act 1998 (WA) (the BDMR Act), Mr Foley brought an application for review of that decision in this Tribunal. On 31 May 2007, the Tribunal gave leave to amend the application so that it claimed the following relief:

"That pursuant to section 54 of the Births, Deaths and Marriages Registration Act 1998, the Tribunal grants to the applicant access to the Births, Deaths and Marriage Registers that are State archives under the State Records Act 2000 (or in lieu of the original Registers, access to copies in a suitable format such as microfiche or microfilm) and which are in the custody of the Registrar of Births, Deaths and Marriages as part of the Register as defined under the Births, Deaths and Marriages Registration Act 1998, exclusive of access to:

- any birth registrations of persons adopted pursuant to the Adoption of Children Act 1896 , and

(Page 4)

- any birth registration less than 100 years old, any marriage registration less than 60 years old and any death registration less than 30 years old.

That also pursuant to section 54 of the Births, Deaths and Marriages Registration Act 1988, the Tribunal grants to the applicant access to all of the Registers of Births (1841-1899), Deaths (1841-1939) and Marriages (1841-1939) held in the State archives collection under the control of the Director of, State Records and listed and described in the State Records Office under archival references WAS 493 (Consignment Number 4020), WAS 494 (Consignment Number 4021) and WAS 495 (Consignment Number 4022), as well as any other Registers which may become part of the State archives collection from time to time, exclusive of access to:

- any birth registration of a person adopted pursuant to the Adoption of Children Act 1896, and

- any birth registration less than 100 years old, any marriage registration less than 60 years old and any death registration less than 30 years old.

That the applicant's access to the above Registers, or any copies thereof, is:

- free of any fee or cost to the applicant;

- for an indefinite duration;

- to be permitted at least during normal business hours, and

- to be general access to all of those Registers for the reason of research including family history and other historical research for a number of research projects that the applicant is now undertaking as well as other research projects that the applicant may wish to undertake in the future.

That pursuant to section 63(e) of the Births, Deaths and Marriages Registration Act 1998, the Tribunal grants to the applicant authorisation to disclose, cite, or reference information that the applicant extracts from the Register during

(Page 5)

the granted access, including in any book, article or other publication that is the end-product of the applicant's research."

4 In written submissions filed shortly before the hearing, the applicant also sought a declaration that "such access and authorisation will be granted generally to any other person."

5 The request for a declaration reveals much about Mr Foley's objective in bringing these proceedings. He is a man with a keen interest in historical research. The provisions of the Act are presently administered by the Registrar in a way which, for all practical purposes, prevents unrestricted access to the historical portions of the Register with occasional exceptions for specific research purposes. There are several reasons why that is so. The issue that arises in these proceedings is whether there should be, in effect, open access to the historical portions of the Register.

Statutory background

6 The Registrar of Births, Deaths and Marriages for the State of Western Australia (the Registrar) is appointed pursuant to s 5 of the BDMR Act. Section 6 of the BDMR Act provides that the Registrar's general functions are

7 to -

(a) establish and maintain the Registers necessary for the purposes of the Act;

(b) administer the registration system established by the Act and ensure that it operates efficiently, effectively and economically; and

(c) ensure that the Act is administered in a way best calculated to achieve its object.

8 The objects of the Act are set out in s 3. The objects are to provide for:

(a) the registration of births, deaths, marriages, changes of name and adoptions information in Western Australia;

(b) the keeping of Registers for recording and preserving information about births, deaths, marriages, changes of name and adoptions in perpetuity;

(Page 6)

(c) access to the information in the Registers in appropriate cases by government or private agencies and members of the public, from within and outside the State;

(d) the issue of certified and uncertified information from the Registers; and

(e) the collection and dissemination of statistical information.

9 Section 49 of the BDMR Act requires the respondent to "maintain a Register or Registers of registrable events" known as "the Register". A "registrable event" means "a birth, death, marriage, change of name or an adoption or discharge of an adoption" - s 4. Section 54 governs access to the Register. It provides:

"(1) The Registrar may, on conditions the Registrar considers appropriate -

(a) allow a person having an adequate reason for wanting access to the Register, access to the Register; or

(b) provide a person having an adequate reason for wanting information from the Register, with information extracted from the Register.


(2) In deciding whether an applicant has an adequate reason for wanting access to the Register, or information extracted from the Register, the Registrar must have regard to -

(a) the nature of the applicant's interest;

(b) the sensitivity of the information;

(c) the use to be made of the information; and

(d) other relevant factors.

(3) In deciding the conditions on which access to the Register, or information extracted from the Register, is to be given under this section, the Registrar must, as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy."

(Page 7)

10 Section 55 deals with searches of the Register. It provides that the Registrar may, on application, search the Register for an entry about a particular registrable event or other information contained in the Register. Section 55(2) requires the applicant to state the reason for its interest in the subject matter of the search, and if the applicant does now show an adequate reason for wanting the information, the Registrar may reject the application - s 55(3). Section 55(4) specifies that, in deciding if an applicant has an adequate reason for wanting information, the Registrar must have regard to -

(a) the relationship (if any) between the applicant and the person to whom the information relates;

(b) the age of the entry;

(c) the contents of the entry;

(d) other relevant factors.

11 Section 55(5) provides that:

"Nothing in this Act prevents the Registrar from providing a person, subject to such conditions as the Registrar thinks fit, with information contained in the Register for -

(a) the keeping of statistics;

(b) medical or epidemiological research;

(c) the identification of persons;

(d) the prevention of fraud; or

(e) any other purpose."

12 Section 56 requires the Registrar, when providing information, to, "as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy."

13 Section 57 of the BDMR Act authorises the Registrar to issue certified copies of particulars in the Register and authorises the Registrar to exclude words which, in his opinion, may be regarded as offensive, from any certificate issued.

(Page 8)

14 Section 58 requires the Registrar to maintain policies on which access to information contained in the Register is to be given or denied under that division of the BDMR Act.

15 Section 60(a) of the BDMR Act makes it an offence to obtain access to the Register or information contained in the Register "without the authority of the Registrar or other lawful authority".

16 Section 63 makes it an offence for a person who has access to the Register under s 54 to disclose any information in the Register unless the disclosure is in connection with the administration or execution of the BDMR Act, authorised or required by law, or authorised by the Registrar.

17 Section 58(2) provides that the BDMR Act is subject to the provisions of the Adoption Act 1994 (WA) (Adoption Act) relating to access to adoption information in the Register, and that the Adoption Actprevails to the extent of any inconsistency. Part 4, Division 2 of the Adoption Actrelates to access to adoptions information, and provides that subject to certain exceptions, no persons other than an adoptee, birth parent or an adoptive parent of an adoptee have the right to have access to the registration of the adoptee's birth.

State Records Act 2000

18 At the hearing, the applicant drew attention to the State Records Act 2000 (WA) (SR Act) and the general principles of open access to State archival records said to underlie the SR Act. That principle was said to underlie the statutory function of the Director of State Records found in s 73 of the SR Act to provide public access to those State archives to which there is unrestricted access.

19 The relationship between the Register maintained under the BDMR Act to the SR Act was helpfully explained by Mr Leigh Hayes, the Manager; Archives Control and Access, in the State Records Office. He explained that parts of the Register are stored at the SRO premises within the Alexander Library building. These include portions of the Register dating from 1841 to 1939 which have been transferred to the State Records Office and form part of the State Archives Collection as described in s 35(a) of the SR Act. The respondent also stores a part of the Register at the SRO which has not been transferred to the control of the SRO in accordance with s 32 of the SR Act. According to Mr Hayes, this arrangement provides a vital records storage service for records which have archival value but which have not been transferred to the SRO. In addition to paper-based records, the respondent stores microfilm,

(Page 9)

microfiche and computer tape at the SRO. These records are controlled by the respondent, and have not been transferred to the State Archives Collection.

20 Prior to the commencement of the SR Act in 2000, access to the portion of the Register held in the State Archives Collection was restricted in accordance with a direction from the respondent's predecessor. Section 15 of the State Records (Consequential Provisions) Act 2000 (WA) provides that restricted access archives in the State Archives Collection become open five years after commencement of the Act unless an application to restrict is made to the State Records Commission. There has been no application to restrict access to the Register under these provisions. The portion of the Register not transferred to the SRO is a government record, as defined under the SR Act. The SR Act requires that there be a "record keeping plan" approved by the State Records Commission, in relation to government records.

21 Section 9(1) of the SR Act provides that:

"(1) If a provision in another written law requires a government organisation to keep a record in respect of any matter and that provision is inconsistent with the provision of this Act, the provision in the other written law prevails."

22 According to Mr Hayes, on 8 March 2007, the State Records Commission considered the Registry of Births, Deaths and Marriages' retention and disposal schedule for its government records as required under the SR Act. The respondent claimed that, under s 9(1) of the SR Act, express provisions in the BDMR Act with regard to the Register take precedence over the provisions with regard to restrictions on access to archives in the SR Act. The Commission's attitude to that claim was apparently deferred pending advice as to the outcome of these proceedings.

23 Archives under the control of the Director of State Records are, unless the subject of restricted access, generally accessible free of costs save for charges for services such as photocopying or other reproduction. Part 6 of the SR Act deals with access to government records. Access to records which are not State Archives are determined in accordance with the Freedom of Information Act 1992 (WA) [(FOI Act)]. Under s 45 of the SR Act, a person has, subject to s 49 and any express provision in another written law, a right to access State Archives in the State Archives

(Page 10)

Collection, or if not in the collection, State Archives at least 25 years of age. Access to restricted access archives are governed by the FOI Act. When archives become 75 years old, a person has a right to be given access, subject to s 49 and any express provision in another written law, whether it was a restricted access archive, whether it is in the State Archives Collection or not, and the FOI Act does not apply in relation to it – s 47 of the SR Act. There is an exception to that rule where archives contain exceptionally sensitive information as determined by the State Records Commission – s 48. Section 49 precludes access to State Archives that contain information about another person's medical condition or another person's disability unless that other person has consented to access, or the information does not enable identification of the other person. Section 49 does not apply to State Archives that are at least 100 years old - s 49(2).

24 Pursuant to s 50(2) of the SR Act, access to a state archive may be given in any of the ways set out in s 27 of the FOI Act. Section 27 of the FOI Act permits access to be given in a number of ways, including by giving a reasonable opportunity to inspect the document, giving a copy of the document, or in some other way agreed between the agency and the applicant. Section 27(2) of the FOI Act provides that, if an applicant has requested access to a document in a particular way, the request must be complied with unless giving access would unreasonably interfere with the agency's other operations, would damage or harm the document or would be inappropriate because of the physical nature of the document, or would involve an infringement of copyright. If those conditions apply, then access may be given in some other way.

25 According to Mr Hayes, should the respondent's interpretation of the provisions of the BDMR Act not adequately fulfil the requirements of s 9(1) of the SR Act, the State Records Office will deal with access to the Register in the State Archives Collection in line with the requirements of the SR Act. That would include the State Records Commission considering any application to restrict access to State Archives older than 75 years in line with the principles outlined in the SR Act. It would need to deal with the question of whether the Register constituted an archive which is exceptionally sensitive.

History of Mr Foley's application

26 Mr Foley's initial attempt to gain access to the historical portions of the Register was directed to the Director of State Records, rather than the respondent. His initial email to the Director of State Records sought

(Page 11)

access to the Fremantle Birth Register covering the period 1861 to 1878 and the Fremantle Death Register for 1863. The Director of State Records responded by email dated 7 February 2007. Access was denied under s 51 of the SR Act because of concerns about the physical integrity and preservation of the records. The Director added that, even if the archives were in a suitable condition for access, access was governed by the exception in s 47(2) of the SR Act which made access subject to "any express provision in another written law." He indicated that s 54 of the BDMR Act governs access to the Register and that responsibility for determination of questions of access to the Register rested with the Register of Births, Deaths and Marriages. A number of email exchanges occurred thereafter, but the Director of State Records maintained the position indicated in his email of 7 February 2007.

27 Accordingly, Mr Foley made application to the respondent under s 54 of the BDMR Act. He did so by email dated 6 March 2007. He made reference to the respondent's policy made under s 58 of the BDMR Act. That policy outlines the conditions to which the respondent must have regard "when granting access to certificates under Division 4" of the BDMR Act. It makes reference to the factors outlined in s 55(4) of the BDMR Act to which the Registrar must have regard in determining whether an applicant under that section has an adequate reason for wanting information. The policy deals with older records in the following way:

"2.3 Age of Records

Recognising that the sensitivity of personal information and the chances of its fraudulent use diminishes with time. The Registry allows unrestricted access to certificates of:

• births which occurred over 75 years ago;

• deaths which occurred over 25 years ago; and

• marriages which occurred over 60 years ago."

28 The policy does not, in its terms, appear to deal with access to the Register under s 54(1)(a). Mr Foley's application under s 54 was "to have access to the births, deaths and marriage Registers (including any copies in any format) that are State Archives pursuant to the State Records Act 2000 and which are in your custody as part of the Registers". The email continued:
(Page 12)

"I am aware that I am unable to have access to any birth registrations of adopted persons pursuant to the Adoptions [sic] Act 1994 and I exclude them from this application. I also exclude from this application access to any birth registration less than 75 years old, any marriage registration less than 60 years old and any death registration less than 25 years old in accordance with the access policies that you have adopted pursuant to section 58 of [the BDMR Act]."

29 Access was also sought to specific Registers in the State Archives Collection. The reason given for wanting access was:

"… research, including family history and historical research for a number of research projects that I am now undertaking as well as others I may wish to undertake in the future.

I may wish to disclose, cite, or reference information from the Registers in any book, article or other publication that is the end-product of my research in the same way as I would from any birth, death or marriage certificate that I have purchased from you in the past or from any State archive, and I seek your authorisation pursuant to section 63 of the [BDMR Act] for myself to do so in the future.

This application is for approval to my life-time access to the Registers at mutually reasonable times."

30 By email dated 9 March 2007, the respondent declined the application on the basis that Registers held in the State Records Office are "subject to the limitations provided by" the BDMR Act, and that the Registers sent to the State Records Office were sent on the proviso that they were not for public access. The email continued:

"The government also requires the Registry to recover its costs and be cost neutral. By giving family historians and the general public access to the Registers, this would significantly limit the ability of the Registry to achieve these requirements.

Therefore access to the Registers is not given to the general public and this is similar to other jurisdictions in Australia."

31 It was as a result of that decision that the applicant sought review by the Tribunal. Following some initial procedures before the Tribunal, the
(Page 13)

applicant amended his application in the terms set out earlier in these reasons.

The applicant's evidence

32 In support of his application, Mr Foley outlined his own qualifications. He holds a graduate diploma in information management – archives administration completed at the University of NSW in 1985. He has various other tertiary qualifications principally related to urban and regional planning. Although he has not worked as an archivist, he has considerable experience in creating, using, maintaining and storing government records, including State Archives. Over many years he has regularly engaged in extensive archival research in Western Australia and elsewhere. It can be accepted that, if given access, Mr Foley would handle the records with appropriate care.

33 Statements of evidence were tendered without objection from David William Black, adjunct professor of history and politics at Curtin University and Geoffrey Curgenven Bolton, emeritus professor of history at Murdoch University. Professors Bolton and Black are eminent Western Australian historians. They both attested to the historical significance of the records retained by the respondent. They both expressed a strong view that unlimited access to the historical records should be available.

Operation of BDMR Act s 54

34 The ultimate issue in these proceedings is whether the Tribunal, standing in the shoes of the Registrar, should allow access to the specified portions of the Register under s 54(1)(a) of the BDMR Act.

35 Mr Foley's position is that, consistent with modern policy concerning archival access, there should be free and open access to the historical portions of the Register. He acknowledges that that access may need to be subject to some exceptions, such as the deletion of offensive words or expressions and the deletion of entries relating to adoptions. He acknowledges that there may be some practical difficulty in editing the Registers to cater for those exceptions, and expense in so doing, but considers those difficulties not insurmountable or unreasonable.

36 If granted in the terms sought, the relief claimed by Mr Foley would amount to the conferral of a right on him to access the Register for any "research project" he might undertake at any time in the future. The declaration sought by Mr Foley that "such access and authorisation will be

(Page 14)

granted generally to any other person" highlights the nature of the application.

37 There was no challenge to the evidence of Professors Bolton and Black concerning the desirability, from the perspective of historical research, for access to be Registered to be freely available. There is considerable force in those opinions. It can also be accepted, having regard to the provisions of Part 6 of the SR Act, that the principle underlying the access provisions of the SR Act is that historical archives should be publicly available. That is not, however, a principle which has been adopted by the BDMR Act, the provisions of which are driven by consideration of privacy and the avoidance of disclosure of sensitive information.

38 Part 8 Division 4 of the BDMR Act, which deals with access to, and certification of, Register entries is premised on the proposition that there is not free and open access to the Register or any part of it. Access to the Register, and obtaining information from the Register, both require that an applicant has "an adequate reason" for wanting access or information. It does not follow that, if adequate steps are taken to remove or obscure sensitive information, open access can be allowed to the Register. In my view, the proper construction of the Act requires an adequate reason to be demonstrated for each occasion of access. That requirement is, in my view, fatal to the applicant's application in the terms in which it is made.

39 Amongst the papers received at the proceedings was a table identifying requests for access to the Register since 1993, the reasons for those requests and the outcome of them. That table demonstrates that the Registrar has permitted general access to portions of the Register for specific research projects. In those cases, access was sought, and in many cases given, to particular records within the Register. Those cases where access was granted involved specific research projects, and appear to have been assessed having regard to the requirements of s 54 of the BDMR Act.

40 The fact that the SR Act was more recently enacted than the BDMR Act does not mean that the principle of open access underlying the SR Act must be imported into the exercise of discretion under s 54 of the BDMR Act.

41 There are no doubt ways in which these apparently competing principles of openness as against privacy protection might be accommodated. The development of digital recoding techniques will

(Page 15)

enhance the capacity of the respondent to edit publicly available versions of records so as to prevent the disclosure of sensitive information. While there is a digitisation program presently underway in respect to the Register, it is still in its early stages.

Relevance of the State Records Act

42 It is important to bear in mind that the subject matter of the review by this Tribunal is the exercise of the discretion under s 54 of the BDMR Act. No jurisdiction exists for this Tribunal to review a decision by the director of State Records concerning access to archives under the SR Act. The decision to be made under s 54 is a decision of the Registrar of Births, Deaths and Marriages, not a decision of the Director of State Records. If access to the Register is to be granted, the manner in which access is to be enjoyed is a matter for the Registrar to determine. Unlike the SR Act, the BDMR Act provides no guidance as to the manner in which access might be given. It might be that access could most conveniently be given through co-operation with the State Records Office. However, the question as to whether or not access should be given is to be determined in accordance with the requirements of s 54 and in particular by determining whether or not an adequate reason for access is given, and if so, whether the discretion should be exercised to grant the access.

43 In my view, the provisions of the SR Act which govern access to State Archives do not operate independently of the BDMR Act in relation to the records held by the Director of State Records. That is because of s 9(1) of the SR Act, which makes the SR Act subordinate to any inconsistent provision in another Act in relation to the keeping of records. Where, as here, the BDMR Act provides a particular regime in relation to access, governed by underlying principles of the preservation of privacy and the avoidance of disclosure of sensitive information, those access provisions take precedence. If the records held by the State Records Office were publicly available, effectively without restriction, the provisions of s 54 would be rendered nugatory.

The Registrar's reasons for refusing access

44 The breadth of the applicant's application is sufficient basis to dismiss the application. A number of other reasons for refusing access were given by the respondent. It is necessary to consider whether those reasons can be considered "relevant factors" for determining whether Mr Foley's reason for access is adequate (see s 54(2)(d)) or if his reason were adequate, whether the discretion to grant access should be exercised negatively.

(Page 16)

45 I accept the submission of the respondent that, even if an adequate reason for access is given, the respondent may nevertheless refuse an application in the exercise of his discretion. In Somadv District Court(NSW) 209 CLR 140, the High Court considered the circumstances in which the use of the word "may" imports a discretion, and those in which it imposes a duty once the conditions of the exercise of the power are fulfilled. At [32], Gleeson CJ and McHugh J said that such issues "are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation."

46 In my view, the use of the word "may" in s 54(1) of the BDMR Act imports a general discretion, rather than imposes a duty to be exercised on fulfilment of conditions. The Registrar's general functions are described in s 6 of the BDMR Act. The Registrar has an overall responsibility for maintenance and efficient, economic and effective operation of the Register. Factors relevant to that general overall responsibility are capable of having an impact upon the decision to grant access under s 54. The terms of s 54 itself involve general discretionary notions. For example, the decision as to whether or not an adequate reason is demonstrated involves the consideration of "other relevant factors", and the weight to be given to them in determining the adequacy of the reasons involves a discretion on the part of the Registrar.

47 Similarly, s 54(3) requires an assessment by the Registrar of what might be "unjustified intrusion" into the privacy of persons to whom entries in the Register relate. The capacity to impose conditions of access suggests that s 54 does not create a right of access, once an adequate reason for access is proffered. A conclusion to a similar effect was reached in the Administrative Disputes Tribunal of NSW in Saleam v Registrar of Births, Deaths and Marriages (2003) NSWADT 79 at [30]. The provisions there being considered were very similar to the provisions of the BDMR Act, and I agree with the conclusion reached by the learned Deputy President in that case.

48 One reason that the respondent gave for declining access was the concern for the physical integrity and preservation of the books comprising the parts of the Register sought by the applicant. Mr Brett Burns, the Acting Registrar for Births, Deaths and Marriages described the books which comprise the parts of the Register to which access is sought. The books are large bound volumes which vary considerably in size, weight and shape. The weight of the books ranges from 4 kilograms up to 30 kilograms. Those covering the period 1841 to

(Page 17)

1895 measure 60 centimetres by 47 centimetres by 10 centimetres. As Mr Hayes acknowledged, the original books comprising the Register are potentially vulnerable to damage from physical forces and chemical processes. He expressed the view, however, that a properly controlled access regime can minimise the damage to the records.

49 Mr Foley accepted that appropriate precautions need to be taken to prevent damage to the fragile original records. Providing access to microfiche copies alleviates that difficulty. That is particularly so if master copies on microfiche are preserved, and access provided through duplicate microfiche copies. The Registrar's capacity under s 54(3) to impose conditions on access clearly enables him to provide access, where it is appropriate, to copies of the records, rather than original books, so that the risk to the integrity of the Register is avoided.

50 If Mr Foley was seeking access to the original books, especially open access at any time as he seeks in this application, questions of preservation of the Register would provide a sound reason to decline the request. The concerns as to preservation do not, however, provide a basis for declining an application for access to duplicate microfiche copies of the records, if those duplicate copies exist and are available for inspection.

51 A second concern expressed by the respondent was the costs implications of the request. In his Statement of Issues, Facts and Contentions, the respondent asserted that he presently had no staff allocated the responsibility of supervising and assisting persons inspecting the Register. If access were generally available, as the applicant contends it should be, there may be a considerable imposition on the staff of the respondent.

52 Furthermore, the registry does not have reading or inspection facilities for use by members of the public accessing the Register and special arrangements would be required with the State Records Office or the public would need to be permitted to use staff facilities at the Perth Registry. That would impact upon the ability of the staff to fulfil their usual functions. If access on an indefinite basis were granted, there would be a need for special facilities and accommodation to facilitate, supervise and control access to the Register.

53 Mr Foley accepts those concerns and made the following proposal in his Statement of Issues, Facts and Contentions:

"The applicant contends, however, that if the respondent was willing to allow duplicate access copies to be made of the

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microfiche copies of the Registers in his custody for which the applicant has applied for access to, then these could be placed in the search room of the State Records Office (with the agreement of the State Director of Records). This would alleviate all demands on staff and space at the registry. The cost of producing the duplicate access copies need not be the responsibility of the respondent. These funds could be sourced elsewhere (such as other government sources or public donations to the State Records Office to fund the project). If access is also granted to the applicant to the set of Registers in the State Archives collection, then it is likely that they would be given priority for microfilming …"

54 The Tribunal, in reviewing the Registrar's decision, is not in a position to implement suggestions of the nature made by Mr Foley to overcome the difficulties which flow from the limited resources available to the Registrar. It may be that his suggestion has merit, but until such time as the Registrar could implement a viable solution to overcome the resource limitations, those limitations provide a reasonable basis for refusing access. Refusal is justified either because the cost and inconvenience is a relevant factor in weighing up the adequacy of the reason for access, or is a reasonable basis for exercising a discretion not to permit open access. It is then, ultimately, a question for government as to whether increased resources should be made available to the Registrar to avoid restrictions on access to the Register which may be unrelated to considerations of privacy and sensitivity, but simply arise because of an inadequacy of resources.

55 A different cost implication raised by the respondent was the potential that:

"The access sought by the applicant will reduce the revenue by the respondent. That is because the applicant, and others who might have similar access, would have less reason to purchase certificates showing the information extracted from the Register."

56 This proposition is related to a proposition that the applicant's interest could be reasonably met through the provision of information extracted from the Register in the usual way, namely the purchase of certified copies of certificates from the Register. The underlying basis for the Registrar's concern was explained in an email to the applicant of 9 March 2007 when he said:
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"The Government also requires the registry to recover its costs and be cost neutral. By giving family historians and the general public access to the Registers, this would significantly limit the ability of the Registry to achieve these requirements. Therefore access to the Registers is not given to the general public and this is similar to other jurisdictions in Australia. Certificates will be provided to any member of the public provided they meet the Registry access requirements and pay the relevant fee."

57 The ability to obtain a certificate pursuant to s 58 is quite a different thing from the ability to search the Register generally. Mr Foley has calculated that to obtain certified copies of the 190,000 registrations between 1841 and 1906 would cost some 5.7 million dollars. The applicant's contention is that access to State Archives by members of the public should not be the subject of a tax or charge in order to make a profit or subsidise an essential government service such as a registration system for births, deaths and marriages. He contends that, in any event, providing access to the Register for historical research will not necessarily diminish revenue, since researchers will still, on occasion, require certified copies of entries.

58 The respondent must, necessarily, work within the financial constraints, and the fiscal policies, imposed by Government. The discretion to be exercised in granting access is, however, a discretion to be exercised in accordance with the object and purpose of the Act. If an application for access to the Register otherwise meets the criteria identified by the Act, and is consistent with the objects and purposes of the Act, and the functions of the Registrar, it would be an error to refuse access because of the impact that decision might have on revenue from the sale of information from the Register. If the granting of access were to have the consequence feared by the Registrar, it would be a matter for him as to whether he reviewed the structure of fees charged to ensure that the fiscal requirements of government were met or sought additional funding to satisfy the public interest in the facilitation of historical research.

59 The third and fourth concerns expressed by the Registrar were "the significance of the precedent" and "breadth of the application". With respect to the precedent, the Registrar's concern was that, if this application were granted, many new applications would be encouraged with the result that the respondent's ability to fulfil his remaining statutory functions under the Act would be substantially impaired. The broad terms in which the application was brought, and in particular the declaration for

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access to historical records by any person which the applicant sought, would very likely have that effect.

60 To the extent that broad general access would impede the Registrar's ability to properly manage the Register in accordance with the provisions of the Act, the concern is one which could properly lead to a refusal of the application. The problem of the lack of resources available to the Registrar to permit open access to the Register, and the consequences of disruption to staff, provides an example of how the Registrar's capacity to fulfil his statutory obligations might be impeded. Given the breadth of the application, and the likelihood that, if granted, the application would lead to a significant number of similar applications, the question of "precedent" is a relevant matter for the Registrar to consider.

Conclusion

61 There is considerable force in the applicant's proposition that legal and practical restrictions on access to the historical portions of the Register are inconsistent with modern principles concerning archival access. Apart from consideration of the position under the SR Act, I have not, in these reasons, canvassed the detailed information produced by Mr Foley of the position concerning access to birth, death and marriage registrations in other jurisdictions. That is because, while it may well be that more open regimes exist in other jurisdictions, the discretionary factors which arise under s 54 are to be found within the BDMR Act itself, and not in principles applying in relation to other legislation or in other jurisdictions.

62 This application seeks to bring about a fundamental change in access to historical records of births, deaths and marriages. That change would not, in my view, be consistent with the object and purposes of the BDMR Act as it presently stands. It follows that the application should be dismissed.

Order

1. The respondent's decision dated 9 March 2007 to decline the application for access to certain portions of the Register of births, deaths and marriages is affirmed.

2. The application is dismissed.

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I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT