Reynolds v Registrar of Births, Deaths and Marriages

[2024] NSWCATAD 255

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Reynolds v Registrar of Births, Deaths and Marriages [2024] NSWCATAD 255

Hearing dates:

On the papers

Date of orders:

29 August 2024

Decision date:

29 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Principal Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Births, Deaths and Marriages – request to correct the register – place of birth – no error at registration – power to correct not to be used solely for convenience of holder of birth certificate

Legislation Cited:

Administrative Decisions Review Act 1997

Birth Deaths and Marriages Registration Act 1995

Birth Deaths and Marriages Registration Regulation 2017

Civil and Administrative Tribunal Act 2013

Cases Cited:

Minister for Foreign Affairs v Lee [2014] FCA 927

Sklavos v NSW Registry of Births, Deaths and Marriages [2017] NSWCATAD 29

Texts Cited:

Oxford English Dictionary

Macquarie Dictionary

Category:

Principal judgment

Parties:

David Reynolds (Applicant)
Registrar of Births, Deaths and Marriages (Respondent)

Representation:

J Brennan (Agent for applicant)
Department of Customer Service (Respondent)

File Number(s):

2024/00107542

Publication restriction:

Nil

REASONS FOR DECISION

1. David Reynolds’ birth certificate records his place of birth as Royal Hospital for Women, Paddington. At the beginning of this year he applied to the Registry of Births, Deaths and Marriages to correct his birth place on the certificate. He asked that his place of birth be recorded as “Sydney”.

2. Mr Reynolds’ mother, Jannette Brennan, who acted on his behalf, explained that Mr Reynolds (who is now an adult) has a mild to moderate intellectual disability. At the time she made the application she stated that Mr Reynolds was about to apply for a new passport and that changing his birthplace from Paddington to Sydney would contribute to the ease of use during his travel. Mr Reynolds’ existing passport records his place of birth as Paddington.

3. The request to amend Mr Brennan’s place of birth was refused on the basis that the Birth Deaths and Marriages Registration Act 1995 and the Birth Deaths and Marriages Registration Regulation 2017 require the inclusion of a place of birth when a birth is registered. Section 13 of the Act states that this is the geographical location where a child was born. As the registration form completed at the time of Mr Reynolds birth confirmed that his place of birth was Royal Hospital for Women, Paddington, this was the information that was required to be recorded on his birth certificate.

4. Mr Reynolds has sought review of that decision by the Tribunal. Before the Tribunal, Ms Brennan acted on his behalf.

The law

5. Under the Births, Deaths and Marriages Registration Act the Registrar is required to establish and maintain registers of, among other things, births in New South Wales. The Registrar is required to maintain the integrity of the register and to ensure that the registration system operates efficiently, effectively and economically: s 6.

6. Part 3 of the Births, Deaths and Marriages Registration Act deals with registration of births. Sections 14 and 17 set out the process by which the birth of a child is registered:

14 How to have the birth of a child registered

A person has the birth of a child registered under this Act by giving notice of the birth to the Registrar (the birth registration statement) in a form and manner required by the Registrar, specifying the particulars required by the regulations.

17 Registration

(1) The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations.

(2) However, if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.

7. Clause 5 of the Birth Deaths and Marriages Registration Regulation sets out the particulars that are required in order to register the birth of child. These include the place of birth of the child.

8. The Registrar has power to correct the register in certain circumstances. These include to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event: s 45(2). Correction of the Register is undertaken by adding or cancelling an entry or adding, altering or deleting particulars contained in an entry.

9. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 56 of the Births, Deaths and Marriages Act confers jurisdiction on the Tribunal to review certain decisions of the Registrar including a decision to refuse to correct the register.

10. The Tribunal’s function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination. Under s 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The standard of proof that applies is the civil standard, that is, on the balance of probabilities. 

Consideration

11. At issue is whether the correct and preferable decision is for the Registrar to correct the register by deleting Royal Hospital for Women, Paddington as the place of birth of Mr Reynolds and replacing it with Sydney. The reasons put forward by Ms Brennan relate to Mr Reynolds’ intellectual disability and that it would be easier for him to travel if his passport records his place of birth as Sydney, rather than Paddington, as he would not be able to recall that his place of birth is Paddington. Ms Reynolds states that she was advised by the Department of Foreign Affairs and Trade (DFAT) that she would need to obtain a change to Mr Reynolds’ birth certificate in order for his passport to record his place of birth as Sydney.

12. In an email dated 18 April 2024 Ms Brennan states that, while her birth certificate states she was born in Darlinghurst, her passport records her place of birth as Sydney. She asks that Mr Reynolds’ details be updated so they are consistent with her own. The Registrar has provided a copy of Ms Brennan’s birth certificate which records her place of birth as St Margaret’s Hospital, Darlinghurst. No copy of her passport has been provided, but I accept that it nominates Sydney as her place of birth. The fact that Ms Brennan’s passport nominates Sydney as her place of birth and does not reflect the entry on her birth certificate, is not a matter for the Registrar or this Tribunal. As the Registrar notes, this a matter for DFAT.

13. The term “place of birth” is not defined in the Births, Deaths and Marriages Registration Act or Regulation. “Place” is defined in The Oxford English Dictionary to mean “A particular part or region of space; a physical locality, a locale; a spot, a location. Also: a region or part of the earth’s surface.” The Macquarie Dictionary defines place as “a particular portion of space, of definite or indefinite extent.” Neither definition is particularly helpful but both indicate that “place” has a geographical context and limit.

14. There is no suggestion that an error was made when Mr Reynolds’ birth was registered or that his birth certificate otherwise contains any incorrect information. There is no requirement that the Registrar’s powers to correct the register can only be utilised in circumstances where the Registry itself must have made an error: Sklavos v NSW Registry of Births, Deaths and Marriages [2017] NSWCATAD 29 at [13]. However, the sole reason for the request in this case is to simplify travel arrangements for Mr Reynolds who has an intellectual disability. No detail has been provided about any difficulties encountered in the past or what might be likely to be encountered in the future as a result of his birth certificate and passport recording his place of birth as Paddington. At this stage the claim that he may encounter difficulties is speculative at best.

15. In any event, I am not satisfied that the power to correct the Register should be exercised on this occasion. While it would not be inaccurate to refer to Mr Reynolds’ birthplace as Sydney as Sydney is the city in which Paddington is a suburb, that is not what occurred upon registration of his birth. As set out above, one of the functions of Registrar is to preserve the integrity of the register. There is no dispute that Mr Reynolds’ place of birth was the Royal Hospital for Women in Paddington and that his birth certificate correctly reflects that fact based on information supplied to the Registrar at the time by his mother.

16. While I am mindful that Mr Reynolds has an intellectual disability, I do not consider that the power to correct the register should be used simply for the convenience of a holder of a birth certificate. That would not be a purpose in keeping with the objects of the Births, Deaths and Marriages Registration Act set out in s 3 or with the functions of the Registrar set out in s 6: see Minister for Foreign Affairs v Lee [2014] FCA 927 in relation to similar considerations under the Australian Passports Act 2005 (C’wealth). Furthermore, the Registrar’s power to correct the register, while it is discretionary, is confined to the circumstances set out in s 45. In the circumstances of this case it cannot be said that changing the place of birth from Paddington to Sydney would bring the entry into conformity with the most reliable information available to the Registrar as required by s 45(1)(b).

17. The correct and preferrable decision is to affirm the decision of the Registrar.

Orders

1. The decision under review 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: 29 August 2024