Saleam v Registrar, Births, Deaths and Marriages

[2010] NSWADT 261

CITATION:	Saleam v Registrar, Births, Deaths and Marriages [2010] NSWADT 261
DIVISION:	General Division
PARTIES:	APPLICANT James Saleam RESPONDENT Registrar, Births, Deaths and Marriages
FILE NUMBER:	103117
HEARING DATES:	8 August 2010
DATE OF DECISION:	4 November 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Births, Deaths & Marriages Act – refusal of application to search the Register
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Births, Deaths and Marriages Registration Act 1995 Crimes (Appeal and Review) Act 2001 Privacy and Personal Information Protection Act 1998
CASES CITED:	Commonwealth v Baume (1905) 2 CLR 405 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 R v Berchet (1688) 89 ER 480 R v Saleam (1989) 41 A CrimR 108 Saleam v The Registry Of Births Deaths And Marriages (2003) NSWADT 79
REPRESENTATION:	APPLICANT In person RESPONDENT G Shirm, solicitor
ORDERS:	The decision of the Registrar is confirmed.

REASONS FOR DECISION

Background

1 On 5 October 2008 applied to the Registry of Births, Deaths and Marriages (the Registry) for access to a death certificate of a deceased person (the deceased). He wrote –

I have read the Registry's policy on the release of such information and I tailor this application accordingly.
I wish to learn how [the deceased] died: whether it was suicide, unknown causes or a natural cause; and where she died: whether it was in a psychiatric institution or under normal hospitalisation or other circumstances.
My purpose is one of an on-going effort to overturn a criminal conviction in which [the deceased] was the central and decisive, prosecution witness. In 2005, an application for a judicial investigation of the case was dismissed. However, the death of [the deceased] has opened up new avenues to resolve this matter in my favour.
My name is known to your Registry, both when I was granted information regarding a person (marriage and change of name information) and refused me information (marriage information). The latter led to a case — unsuccessful on my part - in the Administrative Decisions Tribunal: Saleam v The Registry Of Births Deaths And Marriages (2003) NSWADT 79 .
Both my previous matters with the Registry involved the administration of justice. The latter case also concerned a person who may have been able to assist me with exposing the perjury of [the deceased].
My cause is a proper cause. I have no interest other than the administration of justice in seeking this information. I would only use this information in an appropriate manner.

2 On 17 October 2008 the Registrar advised that Mr Saleam was not entitled to the information contained in the Register relating to the death. On 10 November 2008 he sought an internal review of that request. On 13 January 2009 the Registrar confirmed the original decision to refuse Mr Saleam access to the information on the Register. That decision advised –

We advise that the records of the Registry are private and confidential as they contain sensitive and personal information. To protect the privacy of our clients, we may only release information to the persons named on the certificate or next of kin, if deceased.
Accordingly, we require a written letter of consent and identification from the person named on the certificate or next of kin, if deceased. If you are unable to supply this written permission, you may serve the Registry with a subpoena requesting information of [the deceased].

3 Mr Saleam subsequently sought to review that decision in this Tribunal, but did so out of time. His application was dismissed on 25 January 2010.

4 Mr Saleam restated his application to the Registrar on 28 January 2010. It was refused by a letter dated 12 March 2010 on the same grounds. He did not seek an internal review.

5 On 7 May 2010 Mr Saleam made an application to review the decision of 12 March 2010. He paid the application fee with respect to this application on 12 May 2010.

6 The matter was listed for hearing before me on 6 August 2010. There was no dispute that there had been no internal review of the decision of 12 March 2010, as required by s 55(1)(b) of the Administrative Decisions Tribunal Act 1997 or that Mr Saleam has made his application for review of the decision of the Registrar outside the time set by s 55(2).

7 Both parties submitted that, despite these defects, I should exercise the Tribunal’s discretion granted by s 55(3)(b) to deal with review application. It was agreed by the parties that the review application was made in order to protect the applicant’s interests, that the application to the Tribunal was made within a reasonable time following the decision of 12 March 2010, and that time should be extended to enable the review application to proceed.

8 In the light of that agreement I determined to deal with the application for review under s 55(3)(b), and extended the time for making a review application to the Tribunal under s 57(1) to 12 May 2010. As a consequence of those orders the review application was properly before the Tribunal.

The Legislation

9 Section 36 of the Births, Deaths and Marriages Registration Act 1995 (the BDMR Act) requires that deaths in NSW be registered under the Act. Sections 39, 40 and 41 require that the Registrar be given notice of deaths by doctors, the coroner, funeral directors and others. Section 42 requires that the Registrar “registers a death by making an entry about the death in the Register including the particulars required by the regulations.”

10 Section 43 provides for the Register to be maintained by the Registrar, in which particulars of each registrable event are to be entered. Section 4 provides that –

registrable event means a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage.

11 Section 46 is concerned with general access to the Register –

(1) The Registrar may, on conditions the Registrar considers appropriate:
(a) allow a person or organisation that has an adequate reason for wanting access to the Register, access to the Register, or
(b) provide a person or organisation that has 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, and
(b) the sensitivity of the information, and
(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.

12 Section 46A allows law enforcement agencies to access information in relation to changes of names, “but only in accordance with a memorandum of understanding entered into by the Registrar with the head of the agency”.

13 Section 47 is concerned with searches of the Register –

(1) The Registrar may, on application, search the Register for an entry about a particular registrable event.
(2) The applicant must state the reason for the applicant’s interest in the subject-matter of the search.
(3) The Registrar may reject the application if the applicant does not show an adequate reason for wanting the information to which the application relates.
(4) In deciding whether 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, and
(b) the age of the entry, and
(c) the contents of the entry, and
(d) other relevant factors.

14 Section 49 provides that on completing a search the Registrar may issue a certificate certifying the particulars contained in the entry, or that no entry was located about the registrable events.

15 Section 48 is concerned with the protection of privacy and instructs that –

In providing information extracted from the Register, the Registrar must, as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy.

16 Section 53 requires that maintain written statements of policies on which access to information in the register is to be given or denied.

17 The BDMR Act was enacted prior to the Privacy and Personal Information Protection Act 1998 (PPIP Act). Section 18 of the PPIP Act provides –

A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

18 Section s 25(b) of the PPIP Act provides an exemption from compliance with that Act, where non-compliance is lawfully authorised or required. It states –

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:
(a) the agency is lawfully authorised or required not to comply with the principle concerned, or
(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ).

19 Section 56 of the BDMR Act gives a person who is dissatisfied with a decision of the Registrar under the Act a right to apply to this Tribunal for review of the decision. Together with s 38 of the Administrative Decisions Tribunal Act 1997 it confers on the Tribunal jurisdiction to review the decision of the Registrar.

20 In an earlier matter involving the same parties, Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79, the Tribunal considered the operation of s 47 in the context of a search of the Register for a record of a marriage. Hennessey DP wrote –

30 As far as I can ascertain, the process envisaged by the legislation is as follows:

Firstly, the applicant lodges an application under s 47 for the Registrar to search the Register for an entry about a particular registrable event.

Secondly, the Registrar may reject the application if the applicant does not show an adequate reason for wanting the information. The matters set out in s 47(4) must be taken into account in deciding whether an applicant has an adequate reason.

Thirdly, even if the Registrar is satisfied that the applicant has an adequate reason, he or she may reject the application. This finding is based on an assumption that the word “may” in s 47(1) leaves the Registrar with discretion in every case, not to search the Register, even if the applicant has provided an adequate reason for wanting the information. (See Samad v District Court of New South Wales (2002) 189 ALR 1)

Fourthly, if the Registrar accepts the application and searches the Register, he or she must, as far as practicable, protect the person to whom the entries in the Register relate from unjustified intrusion on their privacy when providing the information extracted from the Register.

31 At what stage in the process is it relevant to take into account privacy considerations and what is the consequence of doing so? At the second stage, privacy considerations are not specifically mentioned, however s 47(4) appears to contemplate that privacy considerations are indirectly relevant to a determination of the adequacy of the reasons given. The age of the entry is relevant to privacy considerations because the older the entry the less likely it is that the subject person is still alive. Similarly the relationship between the applicant and the person to whom the information relates, suggests that the closer the relationship, the less likely it is that the person’s privacy will be infringed. However that may not always be the case. Close relationships may heighten the need for privacy, for example where a fiancé wishes to find out whether his or her intended spouse has previously been married. Neither the relationship of the people concerned, nor the age of the entry would appear to relate directly to the reason the person wants the information.
32 I am of the view that given the terms of the legislation, privacy concerns per se cannot be a relevant consideration when determining whether an applicant has an adequate reason for wanting the information. Nor can privacy considerations be regarded as relevant as a result of the PPIP Act. Section 25(b) of that Act specifically exempts agencies from compliance if non-compliance is permitted under another Act.
33 At the third stage, it is difficult to see how privacy concerns could legitimately be “taken into account.” The Registrar is unlikely to be aware of the individual circumstances of the people recorded on the marriage certificate. Without such information, an entry on a marriage certificate cannot be regarded as more private for some people than for others. Apart from taking a blanket view that privacy considerations prevail even if a person has an adequate reason for applying for the search, privacy considerations cannot realistically be “taken into account” at that point.
34 Similarly, at the fourth stage, it is difficult to envisage how the Registrar would take privacy considerations into account apart from taking a blanket view that the information extracted should not be provided to the applicant because privacy considerations prevail even if a person has an adequate reason for applying for the search. Nevertheless, courts have generally found that when interpreting legislation, they are not entitled to consider any word, sentence or provision superfluous or insignificant. ( Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ; Beckwith v R (1976) 12 ALR 333 at 337 per Gibbs J ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 510 per McHugh, Gummow, Kirby and Hayne JJ.) One situation where the provision could be given some meaning, is where the person the subject of the application has made representations to the Registrar in relation to their privacy concerns. The Registrar could convey those concerns to the applicant when providing the information extracted.
35 Consequently, apart from the matters listed in s 47(4), privacy considerations are not relevant until the Registrar decides to provide the information. The touchstone for the determination of an application to search the Register is whether the applicant has an adequate reason for wanting the information.

21 The Tribunal went on to find that the Policy then put in place by the Registrar was ultra vires of the Act.

22 The Registrar has since issued a new policy under s 53. Relevantly it provides –

2.2 Section 47 of the Act provides for access to information contained in the Register subject to an adequate reason being provided, and requires the following factors to be taken into account when determining applications for access to information:
- the applicant's relationship to the subject, and

- the age of the records, and

- the content of the records, and

- any other relevant factors.

2.3 Applicant's Relationship to the Subject
In deciding whether an applicant has an adequate reason for wanting information on the Register, the Registrar will have regard to all relevant factors including:
- the relationship (if any) between the applicant and the person to whom the information relates, and

- the age of the entry, and

- the contents of the entry, and

other relevant factors (eg Patriality applications)


"Relationship" here includes the family relationships of mother, father, and child, but can include principal/agent relationships (eg solicitor, person having Power of Attorney or a court order).
Also, when deciding what will be a relevant relationship to the subject, the Registrar should have regard to the relevant provisions of the Act, including the relevant objects of the Act:
- Access to the information in the registers in appropriate cases by government or private agencies, law enforcement agencies and members of the public, from within and outside the State, and

- The issue of certificated information from the registers, and

- The collection and dissemination of statistical information.
…

2.5 Age of the Records
The Registry recognises that the sensitivity of personal information and the chances of its fraudulent use diminishes with time. For this reason, the following records are available to the public:

- …

- deaths which occurred over 30 years prior to date of application; and …

2.6 Protection of Privacy
In providing information extracted from the Register, the Registrar must, as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy.
Pursuant to the Privacy and Personal Information Protection Act 1998 (PIPPA), the Registrar is required to comply with the Information Protection Principles (IPPS) found in Part 2 of the Act which governs such privacy issues as collection, retention, storage and disclosure of personal information.
2.7 Other Relevant Factors
In deciding whether an applicant has an adequate reason for wanting information on the Register, the Registrar will have regard to all relevant factors, including those specified in s47(4) (a) — (c) of the Act.
A relevant factor for such an application could be the public interest, because it relates to criminal law enforcement, eg the Australian Federal Police Service, or the State Police Service or any other public policy consideration that outweighs or does not conflict with, the privacy interests of the subject of the certificate.

Mr Saleam’s Position

23 In 1987 Mr Saleam was convicted of either stealing or receiving certain property belonging to the deceased, and of making a false statement with intent to obtain money. He was sentence to a term of imprisonment, which he served. The prosecution case depended on evidence given by the deceased. His appeal against the convictions was dismissed: R v Saleam (1989) 41 A CrimR 108.

24 Mr Saleam has consistently maintained that the deceased gave false evidence at his trial; that the deceased was mentally ill and falsely claimed she was of Spanish origin. He has, at various times, unsuccessfully applied for leave to institute proceeding against the deceased for perjury (1989), sought a pardon from the Attorney-General which was treated as a petition for an inquiry (1996), and applied to the Supreme Court under Part 13A of the Crimes Act for an inquiry into his convictions (2005). The deceased credibility and Mr Saleam’s insistence that she gave false evidence has been at the core of each of these applications. The marriage certificate he sought from the Registrar was sought for the purpose of providing evidence of the deceased lack of credibility for his 2005 application to the Supreme Court.

25 Similarly, Mr Saleam’s present application to search of the register relating to the death of the deceased is made in pursuit of material which may undermine the credibility of her evidence. He is building a case for a fresh application to the Supreme Court to inquire into his conviction: this time under Division 3 of Part 7 of the Crimes (Appeal and Review) Act 2001. Sections 78 and 79 of that Act provide –

78 Applications to Supreme Court
(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.
79 Consideration of applications
(1) After considering an application under section 78 or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 .
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
(3A) The Supreme Court may defer consideration of an application under section 78 if:
(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or
(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or
(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

26 He believes that the registered details relating to the deceased’s death may provide further material which would cause the Supreme Court to be left with a sense of unease with respect to his conviction, sufficient to merit an inquiry. Specifically he argues that if cause of death was suicide, then that would provide further support for the view that the deceased was mentally ill. So to, if the place of death was a mental health facility. Additionally, he has some reason to believe that the date of death was 18 July 2007. If that were the case, the date is the anniversary of General Franco’s rebellion against the Spanish Republic, a date of particular significance to the deceased, which the deceased had previously expressed a desire for major personal events (the birth of a child) to occur on. Mr Saleam asserts that if the date of death is 18 July, that would be consistent with other evidence as to the deceased falsely maintaining Spanish origins, and, if associated with a suicide, would provide further evidence of long standing mental illness.

27 He argued that the public interest in the proper administration of justice weighed in favour of the release of the information to him.

The Registrar’s Position

28 The Registrar submits that in accordance with the decision making process in Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79 the Tribunal should first determine whether Mr Saleam has “adequate reasons” for wanting the information under s 47(3) of the BDMR Act, having regard to the factors set out in s 47(4).

29 Turning to those factors the Registrar first submits that Mr Saleam has no familial or other formal relationship with the deceased, which it is submitted is required by s 47(4)(a). While the submissions suggest that Mr Saleam claims a legal relationship with the deceased that does not reflect my understanding of his position.

30 Next, the Registrar submits that the death in 2007 is relatively recent and that the deceased may have relatives who would be concerned about the release of the information. The death is well inside the 30 year period which the Policy sets for pubic access to death entries.

31 The next factor is the content of the Register: s 47(4)(c). The Registrar submitted that this is personal information to which the Privacy and Personal Information Protection Act 1998 applies, and that regard should be had to the provisions of that Act in making a decision under s 47.

32 The final factor in s 47(4)(d) is “other relevant factors.” The Registrar acknowledged that Mr Saleam seeks the information as part of his ongoing efforts to challenge the probity of his convictions.

It is not clear how the applicant says that the deceased's death certificate would assist in him obtaining an inquiry under the C(AR) Act. However, there is no evidence available to the Tribunal to support the conclusion that the death certificate would give rise to any "doubt" of the kind referred to in s. 77(2). Indeed, as identified by the Deputy President at paragraph [46] in Saleam, were a judicial inquiry to the applicant's conviction to be ordered, the applicant would be in a position to subpoena the Registrar for the information he seeks in the course of that inquiry.
The policy at cl. 2.7 acknowledges that another relevant factor for the purpose of this provision could be the "public interest". One such "public interest" identified by the policy relates to criminal law enforcement. It is submitted that the reason stated by the applicant for wanting the death certificate could not be correctly characterised as a "criminal law enforcement" purpose, because the applicant has already been convicted of the relevant offences. It is further submitted that because there is nothing to support the proposition that the provision of the death certificate would assist the applicant in obtaining an inquiry under the C(AR) Act, there is no identifiable public interest in providing the certificate (or searching the Register).

33 The Registrar submitted that its Policy, while not binding on the Tribunal, is a relevant factor or the purposes of s 47(4)(d).

34 Assuming that Mr Saleam could demonstrate an adequate reason for wanting the information, it was submitted that the correct and preferable decision is not to search the Register as the Registrar has no control over what is done with a certificate once it is issued, or to put conditions on its use. As a consequence the Registrar argued that the Tribunal should exercise the discretion to refuse to search the Register.

35 The final consideration pressed by the Registrar was the obligation under s 48 to, as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy. The Registrar argued that there is no basis for assuming that the deceased or the deceased’s family would want Mr Saleam to obtain the information in the Register. The release of the information would be an unjustified intrusion on the deceased’s privacy.

Consideration

36 During the course of the hearing I was troubled by the requirement in s 47(4)(c) that, in determining whether or not a search applicant has shown an adequate reason for wanting the information to which the application relates, the Registrar must have regard, among other things, to “the contents of the entry.” Ms Shirm, who appeared for the Registrar, submitted that this did not require the Registrar to consider the actual information which was being searched for, as the decision being made by the Registrar was whether to search the Register. Ms Shirm referred to decision making steps outlined by the Tribunal at paragraph [30] of Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79 (quoted at paragraph [20] above) to support this proposition.

37 I indicated to Ms Shirm that I would need to reflect on the question before determining whether to accept her submission. As the alternate view was that the Registrar (and the Tribunal on review) should have regard to the contents of the entry in determining whether the search applicant has an adequate reason for wanting the information, I asked the Registrar to provide the Tribunal, on a confidential basis, with a copy of the extract of death of the deceased. This was done after the hearing.

38 What then is meant by the requirement in s 47(4)(c) that the Registrar must have regard to “the contents of the entry”? In Commonwealth v Baume (1905) 2 CLR 405 at 414, Griffith CJ cited the 1688 case of R v Berchet (1688) 89 ER 480 to illustrate for how long it had been, “a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”: see more recently Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490. All the words of a provision to be given their plain and ordinary meaning.

39 The Macquarie Dictionary Online defines “contents” –

noun 1. ( usually plural ) that which is contained: the contents of a cask ; the contents of a room ; the contents of a library.
2. ( usually plural ) the chapters or chief topics of a book or document; a list of such chapters or topics.
3. substance or purport, as of a document.
4. the information which is in a communication, as opposed to the format, design, etc.: the content of a web page.
5. the sum of the attributes or notions composing a given conception; the substance or matter of cognition, etc.
6. power of containing; capacity; volume.
7. area; extent; size.
8. the amount contained. [Medieval Latin contentum that which is contained, properly past participle neuter]

40 It can be seen from these definitions that the meaning of the word “contents” varies in accordance with where the contents are found. Thus the contents of the book are different to the contents of a cask of wine. In this case the legislature has specified that the Registrar must have regards to the contents of “the entry”.

41 The entry referred to is set out in s 47(1): “an entry about a particular registrable event.” It is not the contents of the Register in terms of its format or data types to which the Registrar must have regard, but the contents of an entry about a particular registrable event. Registrable event, as already noted, is defined in s 4 to mean “a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage.” Thus, on an application to search the Register for a particular death, s 47(4)(c), on its face, requires that the Registrar must have regard the contents of the entry in the Register about that death.

42 This interpretation leads to a conclusion which Ms Shirm submitted is at odds with the steps identified by the Tribunal in Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79. This is so because there the Tribunal’s analysis of the steps to be taken regarded the search for the actual entry as only taking place after the consideration by the Registrar of the adequacy of reasons (the second step) and of discretionary refusal (the third step).

43 When one reads the decision closely it is apparent that the Tribunal’s attention was not focussed on s 47(4)(c). In my view that sub-section clearly requires that the Registrar must have regard to the contents of the entry in determining whether or not the search applicant has adequate reasons for wanting the information. To hold otherwise, disregards the clear meaning of s 47(4)(c). Insofar as my analysis differs from that in Saleam, then the wording of s 47(4)(c) requires that I adhere to that difference, as opposed to following Saleam out of comity.

44 As the Registrar is to have regard to the actual contents of the registrable event in issue when determining adequate reason, I am of the opinion that protection of individuals concerned from unjustified intrusions on their privacy, as required by s 48, is a factor the Registrar could take into account under s 47(4)(d): “other relevant factors.” How one does so in the absence of objections from person whose privacy might be affected is problematic, as was observed in Saleam.

45 I am inclined to the view that s 48 is likely to have a much greater impact of the Registrar’s consideration of general access applications under s 46 given the power to impose conditions on access. I note that s 46A(2) provides that agreements entered into by the Registrar with law enforcement agencies must include terms which protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy.

46 I agree with the Tribunal in Saleam that the release of personal information as a result of a search under s 47 cannot result in a breach of the Privacy and Personal Information Protection Act 1998 because, “Section 25(b) of that Act specifically exempts agencies from compliance if non-compliance is permitted under another Act.”

47 In the light of that understanding I turn to consider whether Mr Saleam has an adequate reason for wanting the information to which the application relates, having regard to the factors in s 47(4).

48 The first of these is the relationship between Mr Saleam and the deceased. The Registrar’s Policy suggests that this requires a familial or legal relationship. I note that the neither the BDMR Act nor the Regulation contain a definition of relationship. The definition in the Policy is an inclusory one, and so does not exclude many other relationships which might found a good reason for seeking information (e.g. a person responsible for a deceased person under s 40 of the Guardianship Act 1987 – who may have no familial or apparent legal relationship with the deceased – may have very good and obvious reasons for seeking a death certificate for a person they provided medical consents for).

49 In this case it is not necessary to explore that issue further as I am satisfied that Mr Saleam’s relationship with the deceased, which appears to be one of a past friendship or acquaintanceship turned sour by events, is not one which gives rise to any obvious reason for wanting the information by virtue of that relationship.

50 The second factor is the age of the entry. It is only three years old. The events it records are recent and may be fresh in the minds of those associated with the deceased.

51 The third factor is the contents of the entry of death to which I have had regard.

52 The fourth factor, set out in s 47(4)(d), is “other relevant factors.” In this case there are a number of relevant factors I have identified, some of which are identified in the Registrar’s Policy. These are:

- The public interest in the administration of justice.
- The need to protect the deceased from unjustified intrusions of privacy.

53 The primary thrust underlying Mr Saleam’s application is his effort to prove his innocence of the charges he was convicted of, based on the evidence of the deceased. He has long maintained that the deceased gave false evidence and that the deceased’s evidence was unreliable as a consequence of mental illness. He has been engaged in the process of gathering evidence to prove this for more than twenty years. The Registrar argues that, if the entry does contain the information Mr Saleam hopes for, there is no evidence that it would result in him making a successful application for an inquiry into his conviction. While I accept this, I also accept Mr Saleam’s contention that the information would provide another brick to his argument, which Hidden J acknowledged on his last application for an inquiry, did raise issues concerning bias by the deceased.

54 I accept that Mr Saleam’s motives are genuine and that the purpose he seeks to achieve by accessing the information is the advancement of the public interest in the administration of justice, by setting aside what he maintains is his wrongful conviction. His search application is, however, predicated on speculation about what the entry may contain.

55 There is no evidence before me as the impact of the release of the information on the deceased’s family. One might readily infer that they would object to the release of the information for Mr Saleam’s purposes: an attack on the deceased credibility and veracity, assuming, of course, that the entry contains the information Mr Saleam hopes for. Whether they would object to the release otherwise is also a matter of speculation. If the entry does contain that information which supports Mr Saleam’s contentions about the deceased, then I would consider that the public interest in the administration of justice would outweigh concerns as to the maintenance of privacy, and objections as to the planned use of the information.

56 Having considered all of the factors to which the Registrar is required to consider under s 47(4) I am not satisfied that Mr Saleam has shown an adequate reason for wanting the information to which the application relates.

57 As a consequence the correct and preferable decision is to confirm the decision of the Registrar.