Pidgon v Registrar of Births, Deaths and Marriages

[2020] NSWCATAD 170

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pidgon v Registrar of Births, Deaths and Marriages [2020] NSWCATAD 170

Hearing dates:

On the papers

Date of orders:

02 July 2020

Decision date:

02 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

(1)   The Tribunal dispenses with a hearing with respect to this administrative review application.

(2)   The decision of the Registrar of Births Deaths and Marriages to refuse to register the birth of the applicant’s second child in Wodonga, Victoria is affirmed.

Catchwords:

ADMINISTRATIVE LAW - Administrative review - Births, Deaths and Marriages Registration Act 1995 – registration of birth under corresponding law - arrangement under s 11 between the Attorneys General for NSW and Victoria made 14 July 1999 - refusal to register birth of child in Wodonga, Victoria when registrant not a resident of Albury, NSW – decision affirmed

Legislation Cited:

Administrative Decisions Review Act 1997

Births, Deaths and Marriages Registration Act 1995

Births, Deaths and Marriages Registration Act 1996 (Victoria)

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2013

Interpretation Act 1987

Interpretation of Legislation Act 1984 (Victoria)

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Category:

Principal judgment

Parties:

Janelle Pidgon – applicant
Registrar of Births, Deaths and Marriages – respondent

Representation:

Applicant – in person
Respondent – M Kingston, Principal Lawyer

File Number(s):

2020/00051250

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. The applicant lives in a small town in Greater Hume Shire, a local government area in southern New South Wales. The southern border of Greater Hume Shire abuts the Murray River and surrounds the City of Albury. The southern border of the City of Albury abuts the Murray River, at the border with Victoria at Wodonga.

2. The maternity hospital for the Albury-Wodonga area is in Wodonga and is part of Albury-Wodonga Health. It is the closest and most accessible maternity hospital for residents of the town where the applicant lives.

3. There is in place an arrangement between Victoria and NSW made under s 11 of their respective Birth, Deaths and Marriages Acts which enables the births of children born in Wodonga to be registered in NSW, where the person required to register the birth is ordinarily resident in Albury and vice versa.

Background

4. On 18 April 2019, the applicant had her second child at Wodonga Hospital in Victoria.

5. On 15 May 2019 she lodged an application with the Service NSW office in Albury to have that birth registered in NSW. The Service Consultant told her that she would have to check as the applicant lived outside Albury.

6. The applicant said she then received a voicemail from Service NSW which said:

Hello … it’s …Service NSW, now I have lodged your birth registration I’ve (been) speaking with … at BDM. He said it was ok to lodge, so fingers crossed that they put it through for you’s. See ya.

7. The application for a birth certificate is stamped as received by Births Deaths and Marriages (BDM) on 27 May 2019.

8. On 12 June 2019, the applicant spoke with an officer at BDM who confirmed that the paperwork had been received.

9. On either 13 or 17 June 2019 she received a call from a different officer at BDM who advised that because of the applicant’s place of residence, an NSW Birth certificate could not be issued for her baby. The officer suggested that she seek a review by the Registrar.

10. On 24 June 2019, the applicant emailed BDM setting out the history of the matter and requesting that an NSW birth certificate issue for the baby. She added that when her older child was born, in Wodonga in 2017, they lived at the same house and she was issued with an NSW birth certificate. There followed a series of emails in which the applicant became increasingly frustrated at the time being taken to reach a decision.

11. By an email dated 23 August 2018 BDM advised the applicant that her baby’s birth could not be registered in NSW under the reciprocal arrangements between the States, as she did not live in Albury. The email explained that:

The reciprocal arrangement specifies that the parents must be a resident of Albury Shire.

The email also advised that BDM was seeking legal advice as the “validity” of the registration of the birth of the applicant’s older child in NSW.

12. That afternoon the applicant replied by email asking for a review of the decision and expressing her dissatisfaction with BDM’s processes.

13. On 29 November 2019 BDM confirmed its decision not to register the birth of the baby in NSW. It advised that no action would be taken in respect of the registration of the birth of the applicant’s older child.

14. On 21 December 2019 the applicant, by email, sought an internal review.

15. On 8 January 2020, the Registrar of Births Deaths and Marriages (the respondent) wrote to the applicant affirming the decision. She explained:

…Under the Births Deaths and Marriages Act 1995 and the agreement set out in 1999 between the Attorney Generals of New South Wales and Victoria, I am unable to register [the] birth in NSW.

I apologise that the incorrect information has been provided to you and can confirm that training has been provided to staff and processes have been amended, in accordance with the current agreement and legislation.

16. On 17 February 2020, the applicant lodged an application with the Tribunal seeking administrative review of that decision. That application was outside the 28-day period for the making of applications for administrative review applications fixed by Rule 24(4)(a) of the Civil and Administrative Tribunal Rules 2013 (NSW) (the NCAT Rules).

17. However, when the application was first listed on 24 March 2020, the Tribunal made an order by consent extending the time in which the applicant could make the application. The Tribunal also made procedural directions for the for the filing of evidence and submissions and indicated that it proposed to determine the matter on the papers. These included a requirement that any submissions address the issue of whether the matter can be determined on the papers.

18. The application has now been referred to me for decision.

Material before the Tribunal

19. In considering this matter I have had regard to the following material:

1. The application for administrative review filed 17 February 2020 with attachments.

2. Section 58 documents filed by BDM on 16 April 2020.

3. Material and submissions filed by the applicant on 1 May 2020.

4. Submissions filed by BDM on 6 May 2020.

Should the application be determined without a hearing?

20. Section 50 (2) to (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provide:

(2)   The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)   The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a)   afforded the parties an opportunity to make submissions about the proposed order, and

(b)   taken any such submissions into account.

(4)   The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

21. In this case the respondent, in submissions, said that the application could be determined without a hearing. The applicant did not address the issue in her submissions, despite being asked to do so. Having reviewed all the materials I am satisfied that this is matter a than can be determined in the absence of the parties by considering the materials lodged by the parties. I therefore dispense with a hearing.

The Births, Deaths and Marriages Registration Acts – Victoria and NSW

22. Division 3 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (the NSW Act) is concerned with Registration of Births. Relevantly s 13 (1) provides that:

When a child is born in the State, the responsible person must give notice of the birth to the Registrar in a form and manner required by the Registrar, specifying the particulars required by the regulations.

“State” in the NSW Act means the State of New South Wales. This is so because s 12 of the Interpretation Act 1987 (NSW) provides that:

(1)   In any Act or instrument—

(a)   a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b)   a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

Section 48 of the Interpretation of Legislation Act 1984 (Victoria) contains a similar provision with respect to Victorian legislation.

23. Section 15(1) of the Act provides that, in a case such as the present one, the parents of a child are jointly responsible for having the birth registered. Section 15 provides:

(1)   The parents of a child are jointly responsible for having the child's birth registered under this Act and must both sign the birth registration statement but the Registrar may accept a birth registration statement from one of the parents if satisfied that it is not practicable to obtain the signatures of both parents on the birth registration statement.

(2)   If a child is a foundling, the person who has custody of the child is responsible for having the child's birth registered.

(3)   The Registrar may accept a birth registration statement from a person who is not responsible for having the child's birth registered if satisfied that—

(a)   the person lodging the statement has knowledge of the relevant facts; and

(b)   the child's parents are unable or unlikely to lodge a birth registration statement.

The persons obliged to register a birth are to do so within 60 days of the birth (s 16(1)). Registration is arranged by giving the Registrar notice of the birth (s 14(1) and 13(1)).

24. The provisions of s 13, 14, 15 and 16 of the Births, Deaths and Marriages Registration Act 1996 (Victoria) (the Victorian Act) are the same as those in the NSW Act.

25. Division 2, Part 3 of the NSW Act is headed, “Reciprocal administrative arrangements”. It contains s 11 which provides:

(1) The Minister may enter into an arrangement with the Minister responsible for the administration of a corresponding law providing for—

(a)   the exercise by the Registrar of functions of the registering authority under the corresponding law, and

(b)   the exercise by the registering authority under the corresponding law of functions of the Registrar under this Act.

(2)   When an arrangement is in force under this section—

(a)   the Registrar may exercise, to the extent authorised by the arrangement (but subject to the conditions of the arrangement), the functions of the registering authority under the corresponding law, and

(b)   the registering authority under the corresponding law may exercise, to the extent authorised by the arrangement (but subject to the conditions of the arrangement), the functions of the Registrar under this Act and anything done by the registering authority under this paragraph is taken to have been done by the Registrar under this Act.

(3)   An arrangement under this section may—

(a)   establish a database in which information is recorded for the benefit of all the participants in the arrangement, and

(b)   provide for access to information contained in the database, and

(c)   provide for payments by or to participants in the arrangement for services provided under the arrangement.

26. “Corresponding law” is defined in s 4 of the NSW Act:

corresponding law means a law of another State that provides for the registration of births, deaths and marriages.

27. Section 11 of the Victorian Act replicates s 11 of the NSW Act.

28. Section 56 of the NSW Act provides for this Tribunal to administratively review decisions made under the Act. Section 56(1) provides:

(1) A person who is dissatisfied with a decision of the Registrar made in the exercise or purported exercise of functions under this Act may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.

29. Read with Chapter 2 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the NCAT Act, these provisions operate to confer jurisdiction on the Tribunal to administratively review the Registrar’s decision in this case.

The arrangement between the Attorneys General for NSW and Victoria

30. On 14 July 1999, the then Attorneys General for NSW and Victoria entered an arrangement under s 11 of the both the Victorian and NSW Acts under which it was agreed that, relevantly:

1.   The NSW Registrar exercise the functions of the Victorian Registrar under the Victorian Act subject to the conditions set out hereunder.

2.   The Victorian Registrar exercise the functions of the NSW Registrar under the NSW Act subject to the conditions set out hereunder.

3. The NSW Registrar exercises the functions of the Victorian Registrar under Part 3 of the Victorian Act only in respect of births occurring on or after 1 July 1990 in Wodonga, Victoria where the person required to register the birth under s 15 of the Victorian Act is ordinarily resident in Albury, NSW and request that the NSW Registrar register such birth.

4. The Victorian Registrar exercises the functions of the NSW Registrar under Part 3 of the NSW Act only in respect of births occurring on or after 1 July 1990 in Albury, NSW where the person required to register the birth under s 15 of the NSW Act is ordinarily resident in Wodonga, Victoria and request that the Victorian Registrar register such birth.

Consideration

31. Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Registrar, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

32. In this case the respondent argues that because the applicant does not live in the City of Albury, but in a nearby town in Greater Hume Shire, it is not possible to register the birth (in Wodonga, Victoria) of her second child in NSW under the terms of the arrangement between the Attorneys General for NSW and Victoria.

33. The applicant on the other hand points to the advice she was given about being able to register the birth in NSW, and the lengthy delays and run around that occurred before the respondent reached a final decision, and the fact that her older child’s birth (in Wodonga while she and her partner lived in their current home) was registered in NSW . She asks for a thorough review of the situation.

34. I have reached the conclusion that, as a matter of law, the respondent has no power to register the birth of the applicant’s second child under clause 3 of the arrangement between the Attorneys General for NSW and Victoria. For the NSW Registrar to be able to register the birth of a child under that clause, four conditions must be met:

1. the birth must occur in Wodonga, Victoria;

2. the birth must occur after 1 July 1998;

3. the person required to register the birth under s 15 of the Victorian Act must be ordinarily resident in Albury, NSW; and,

4. that person must request the NSW Registrar to register the birth.

35. In this case conditions 1, 2 and 4 have been met: but condition 3 has not. No matter how one looks at it the applicant does not live in Albury.

36. It is evident from the materials that the respondent gives a wide meaning to what areas fall within “Albury”. The respondent adopts the boundaries of the City of Albury as defining Albury’s extent. This results in suburbs and county areas falling within the boundaries of “Albury”. However, the applicant’s place of residence is well outside those boundaries.

37. It is not possible to register the birth of the applicant’s child under clause 3 of the arrangement between the Attorneys General for NSW and Victoria. The fact that the birth of the applicant’s older child was registered by the respondent is not a precedent. Because the respondent made a mistake or error in registering the first applicant child’s birth does not oblige the respondent to repeat the mistake.

Conclusion

38. The Tribunal makes the following orders:

1. The Tribunal dispenses with a hearing with respect to this administrative review application.

2. The decision of the Registrar of Births Deaths and Marriages to refuse to register the birth of the applicant’s second child in Wodonga, Victoria is affirmed.

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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: 02 July 2020