Tonite and Australian Electoral Officer for Queensland - [2002] AATA 514

DECISION AND REASONS FOR DECISION [2002] AATA 514

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/906

GENERAL ADMINISTRATIVE DIVISION          )
           Re      TAMARA TONITE
  Applicant
           And    AUSTRALIAN ELECTORAL OFFICER FOR QUEENSLAND
  Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date27 June 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) K L Beddoe
SENIOR MEMBER
Decision No: 514/2002
CATCHWORDS
ELECTORAL - STATUTORY INTERPRETATION – name change - whether name on electoral roll fictitious - whether name on electoral roll not in the public interest
Commonwealth Electoral Act 1918 s 93, 98
Electoral and Referendum Amendment Act (No 1) 2001 Item 81, Part 2 of Schedule 1
Sinclair v Mining Warden (1975) 132 CLR 458 at 480
Freemarijuana & Australian Electoral Officer for Queensland [2001] AATA 917
Botany Bay City Council v Minister for Transport and Regional Development and Others (1996) 137 ALR 281 at 307

REASONS FOR DECISION

27 June 2002 Senior Member KL Beddoe

The applicant seeks review of a decision by the Australian Electoral Officer for Queensland to remove the applicant's name from the Electoral Roll and substitute the name of "Roderick Peter Paterson".
Sub-sections 98A(2) and 98A(3) of the Commonwealth Electoral Act 1918 read as follows:
"(2)A Divisional Returning Officer or Australian Electoral Officer may refuse to include in a Roll, or transfer to a Roll, a person's name if the Divisional Returning Officer or Australian Electoral Officer considers that the name:
(a)       is fictitious, frivolous, offensive or obscene; or
          (b)       is not the name by which the person is usually known; or
          (c)       is not written in the alphabet used for the English language.
(3)A Divisional Returning Officer or Australian Electoral Officer may refuse to include in a Roll, or transfer to a Roll, a person's name if including the name in the Roll, or transferring it to the Roll, would be contrary to the public interest."
The Electoral and Referendum Amendment Act (No 1) 2001 being Act No 34/2001 contains transitional provisions including item 81 in Part 2 of Schedule 1 of the Act which, so far as is relevant, reads as follows:
"81(1) This item applies if:
(a)before sections 93A and 98A of the Commonwealth Electoral Act 1918 (the CEA) commence, a person's name (the current name) is included in a Roll, or transferred to a Roll, under a provision of the CEA; and
(b)a Divisional Returning Officer (the DRO) or Australian Electoral Officer (the AEO) is of the view that if he or she were considering, after sections 93A and 98A of the CEA commence, whether to cause the current name to be included in, or transferred to, the Roll under the same provision, the DRO or AEO would refuse, under either of those sections, to cause the name to be included or transferred.
(2) If:
(a)there is another name under which the person has been included in a Roll; and
(b)the DRO or AEO is of the view that if he or she were considering, after sections 93A and 98A of the CEA commence, whether to cause the other name to be included in the Roll or transferred to the Roll, the DRO or AEO would not refuse, under either of those sections, to cause it to be included or transferred;
the DRO or AEO must cause the person's current name to be removed from the Roll and replaced with the other name. If there is more than one other name to which paragraphs (a) and (b) apply, the current name must be replaced with the other name that was most recently included in the Roll."
There is no dispute that the applicant is qualified for enrolment and for voting. The issue is only as to his enrolment on the electoral roll.
At the hearing Mr Watts represented the applicant and Mr Swan represented the respondent. The documents lodged in the Tribunal pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" Documents and further documents were tendered during the hearing. Oral evidence was given by the applicant and by Mr Longland, who was the Australian Electoral Officer and who made the decision under review.
The applicant is an entertainer. He was born 7 October 1959 and was given out for adoption by his parents for reasons which are unclear. His parents were married at the time, their surnames being "Webb". His biological parents did not name him. The birth certificate is not in evidence but it is reasonable to infer from Exhibit A that it showed surname as "Webb" and "Unnamed" for other names.
Adoption was initially on an informal basis by a Mr and Mrs Paterson but that was formalised by an Order for Adoption made on 5 January 1962. In the meantime, the applicant had been baptised with the name "Roderick Peter Paterson" on or about 20 December 1959.
On the material before me I am satisfied that the applicant used the name "Roderick Peter Paterson" for all purposes until 1993. I am satisfied that the name on the Memorandum for Registration of Order of Adoption of "Unnamed (to be Roderick Peter)" does not mean that the applicant was at anytime after the time proximate to birth known as "Unnamed Webb". Further, I am satisfied that from a time prior to the baptism the applicant was known formally as "Roderick Peter Paterson", and informally as "Rod Paterson".
In August 1993 the applicant became a member of a "drag show" known as "Joanies Follies". At the time he was given the name "Miss No-Name" because he did not have what is commonly referred to as a drag queen name i.e. an assumed female name.
Eventually, and for reasons which are irrelevant, the applicant adopted the name "Tamara" to which was subsequently added "Pon" – a name selected for him.
In April 1996 the applicant joined the cast of a television program called the "Lucy Lockjaw Show". The show was hosted by Lucy Lockjaw, formerly known as Michael Gill. In January 1997 the applicant took over hosting that show which was then known as "Not the Lucy Lockjaw Show" because Lucy Lockjaw was no longer the host. The credits for the show included "Tamara dressed by Lifeline".
The applicant renamed the television show as "Tamara Tonite" in March 1997. The evidence establishes that "Tonite" referred to the fact that the show was telecast at night and not to the name of the applicant who was merely known as "Tamara" or "Tam" or "Tammy".
Apparently the show has continuing popularity with a claimed audience in South East Queensland in excess of 100,000 viewers.
The applicant says, and I accept, that he became widely known as "Tamara Tonite" rather than "Tamara Pon". The applicant began adopting the name "Tamara Tonite" between March 1997 and February 1998. He says in Exhibit A that he adopted "Tamara Tonite" as his legal name and is known almost universally by that name.
Oral evidence before the Tribunal, given by the applicant, establishes to my satisfaction that the applicant has lodged one or more income tax returns in the name "Tamara Tonite" but the following continue to be in the name "Roderick Peter Paterson":-
(a)      Lease on home
(b)      Motor car
(c)       Electricity account
(d)      Driver's Licence
(e)      Passport
(f)       Registered trade name "Tamara Tonite".

I make no finding in relation to the applicant's Medicare Card.
The applicant was unsure about the Post Office box but in view of the general practice of Australia Post to require identification of box holders it is more likely than not that the box is held in the name of "Paterson".
There is no evidence but I note that the telephone number appearing on the application for review is shown by the Brisbane telephone directory to be in the name R.P. Paterson at the applicant's home address. In relation to the television show "Tamara Tonite" the applicant is shown in the credits as follows:
(a)      Executive in charge of production – Tamara Tonite
(b)      Camera operator – Rod Paterson
(c)       Editor – Rod Paterson
At the hearing the applicant was dressed as Tamara Tonite but he said that he only dresses that way for shows. Mostly he dresses "out of costume". He was not asked, and did not explain, why he was so dressed for the hearing but nothing turns on the point.
The applicant formalised his use of the name "Tamara Tonite" on 19 January 2000 by deed poll, changing his name from "Roderick Peter Paterson" to "Tamara Tonite". That was caused by the applicant's decision to be a candidate in the Brisbane City Council elections in 2000 and his desire to be known as "Tamara Tonite" for that purpose. Whether the applicant was required to so formalise his adoption of the name "Tamara Tonite" before he could be entered on an electoral roll is something I do not need to decide.
On 28 January 2000 the applicant completed an application to change his name on the electoral roll from "Roderick Peter Paterson" to "Tamara Tonite". The enrolled address remained the same. That application was given effect on 28 January 2000 so that the applicant was enrolled by the name "Tamara Tonite" from 28 January 2000 until 10 September 2001 when the respondent deleted the name and substituted "Robert Peter Paterson".
The Tribunal subsequently made an Order under Section 41 of the Administrative Appeals Tribunal Act 1975 staying the implementation and operation of the decision under review.
The Applicant's case
The applicant had assumed and used the name "Tamara Tonite" well before the formal deed poll change in January 2000. That change was not politically motivated. Roderick Peter Paterson is not the applicant's usual or lawful name and he is not known by that name.
The name "Tamara Tonite" is not fictitious, frivolous, offensive or obscene.
"Roderick Peter Paterson" may never have been the applicant's legal name because his birth name was "Unnamed Webb" and there was no formal change to "Paterson", the surname of the applicant's adoptive parents.
Insofar as the applicant's submissions refer to examples of name change by royalty and others, I have not found any assistance from those submissions and need not repeat them here.
Excluding the name "Tamara Tonite" on the electoral roll is not contrary to the public interest. "Contrary to the public interest" has the same meaning as given by Barwick CJ in Sinclair v Mining Warden (1975) 132 CLR 458 at 480 where the Chief Justice said:
"The interest, of course, must be the interest of the public and not mere individual interest which does not involve a public interest."
There is no evidence of any commercial gain from the use of the name "Tamara Tonite".
Section 98(3) should be confined to the most extraordinary and exceptional circumstances and exercised with extreme caution so as to protect the universal franchise, freedom of speech and political communication. Matters that may be considered contrary to the public interest are matters of the same kind or nature as those set out in Section 98(2).
The provisions are unambiguous. Extrinsic materials should not be referred to so as to give a meaning contrary to the plain words of the Section. The applicant should not be forced to use a name which he has renounced and which is not in fact his real name. The name "Tamara Tonite" is a neutral name which does not offend Section 98A. The Tribunal should follow its decision in Re Freemarijuana and Australian Electoral Officer for Queensland [2001] AATA 917.
The Respondent's case
The only issue under Section 98A(2) is whether the name "Tamara Tonite" is fictitious. Also, whether including the name on the electoral roll is contrary to the public interest [Section 98(3)].
The Shorter Oxford English Dictionary gives several meanings for "fictitious". In this context the relevant meaning is "feigned, assumed, not real". The Macquarie Dictionary (Revised) gives the relevant meaning as "pertaining to or consisting of fiction; imaginatively produced or set forth; created by the imagination".
The name "Tamara Tonite" is the name of the television show and the name was subsequently conferred on the applicant by others and adopted by him because it identified him with the show. The fact of being usually known by a particular name does not prevent Section 98A having operation.
If Section 98A is inconsistent with laws of Queensland that give the applicant the right to use the name "Tamara Tonite", then to the extent of the inconsistency, Section 98A must prevail.
The Explanatory Memorandum relating to Act No 34 of 2001 includes the following indication of Parliament's intent:
"The placement of enrolled electors on the electoral roll, or candidates names on ballot papers, was never intended to give electors or candidates free publicity for the particular cause they espouse or business that they run."
The only formal documents adopting the name "Tamara Tonite" are the deed poll and income tax returns. All other documents are in the name of "Roderick Peter Paterson" even though the applicant has had ample opportunity to change the name. The lease of the applicant's name has been renewed in the name of "Paterson" after the date of the deed poll. The name has not been adopted for everyday purposes.
Consideration
The issue here has not been the subject of any previous decision that I am aware of. The present case differs from the Re Freemarijuana case because here there is an ambivalence about the use of two names in stark contrast to each other. In everyday living, including formal matters (excluding income tax returns), the applicant uses the name "Roderick Peter Paterson". I gained the distinct impression that the use of "Paterson" is consistent with the applicant being "out of costume". He told me that when he travels by air he does so under the name of "Paterson". It is clear enough that the reason is that his documents which identify him are in the name of "Roderick Peter Paterson" and he therefore uses that name in everyday life.
The name "Tamara Tonite" is identified with the television show of the same name and of which the applicant is now the presenter and executive in charge of production. However, there is even an ambivalence about the television show because the applicant also uses the name "Rod Paterson" in the credits for his work as editor and camera operator. I accept the applicant's explanation as to why there should be an appearance of independence between producer and editor but that does not alter the fact that the applicant uses the name "Paterson" when it suits his purpose.
Because the applicant identifies with the television show and members of the public also identify him with the television show, he has adopted the name "Tamara Tonite" both informally and formally for purposes which are connected with the show, in particular, and when he is "in costume", generally.
I am satisfied that the name "Tamara Tonite" is the applicant's recognised name as an entertainer.
I am not satisfied that the name "Tamara Tonite" is recognised as the applicant's name in his capacity as a citizen. He uses "Paterson" in his day-to-day dealings with others albeit that those who recognise him when he is not "in costume" refer to him as "Tamara Tonite".
Given that "Tamara Tonite" is the name of the television show, it might be argued, as the respondent does, that the name adopted by the applicant is a fiction. The fact of the applicant adopting the name of the show does support the contention but it does not follow, in my view, that it must be accepted that such an adoption of name thereby creates a fiction.
A stage name can become a real name if formalised. The applicant has done so in this case.
The problem here is the use of "Roderick Peter Paterson" in everyday life. I am far from satisfied that it can be accepted that the name "Tamara Tonite" is the name he uses from day-to-day. Further, because of the evidence about his everyday affairs and his maintenance of "Roderick Peter Paterson" in relation to his everyday personal affairs, I cannot be satisfied that "Tamara Tonite" is the name by which the applicant is generally known in the community in which he resides and in relation to which he is enrolled on the roll for the division in which he resides.
"Tamara Tonite" is, in my view, a stage name only applicable to the applicant when he is "in costume". That he changed his name by deed poll can clearly be attributed, on the evidence, by his desire to contest the Brisbane City Council election under his stage name. That was the name he was known by as presenter of the television show and he wanted to take advantage of those circumstances for the purposes of the election.
In day-to-day life away from the entertainment industry the applicant does not use "Tamara Tonite". I am satisfied that it cannot be said to be in the public interest that a stage name be entered on the roll if the person does not use that name in everyday life.
The test is whether it is contrary to the public interest that the stage name (also the legal name) be on the roll. The name by which a person is known in the community should, prima facie, be the name enrolled. The exceptions to this prima facie position are in Section 98A. While I do not accept that "Tamara Tonite" is a fictitious name. I am satisfied that it is contrary to the public interest that a stage name be included on the electoral roll.
In Botany Bay City Council v Minister for Transport and Regional Development and Others (1996) 137 ALR 281 at 307 Lehane J discussed the authorities in relation to public interest and private interests as follows:-
"Counsel for the applicants referred to authorities in which distinctions are drawn between the public interest on the one hand and individual interests on the other, or between the public interest and matters of public interest in the sense of those which attract the attention or concern of members of the public. Thus, counsel referred to Director of Public Prosecutions v Smith [1991] 1 VR 63, particularly the following passage at 75:
The Public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals…. There are….several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest.
Similarly, counsel referred to passages in the judgment of the Full Court of the Supreme Court of Queensland in R v Mining Warden at Maryborough; Ex parte Sinclair (1975) Qd R 235 and the judgments of the members of the High Court on appeal, reversing the decision of the Full Court: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; 5 ALR 513. In relation to the phrase 'the public interest' Barwick CJ (with whom Murphy J agreed) said at CLR 480; ALR 519:
The interest, of course, must be in the interest of the public and not mere individual interest which does not involve a public interest.
I was referred to the following passage in the judgment of Jacobs J at CLR 487; ALR 525:
The warden appears not to have given weight to the fact that the evidence produced by the objectors should be regarded as evidence on the public interest generally and needed to be weighed in all the circumstances of the public interest whether or not the evidence and the views therein were put forward by a large or a small section of the public.
Counsel referred also to a passage in the judgment of Morling J in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1981) 39 ALR 281 at 357, 358.
A number of comments may be made about this. First, to insist upon differentiating between the public interest and the interests of a section of the public may be to draw what is, at least in some contexts, a false distinction: see, for example, passages in the judgments of Barwick CJ and Jacob J in Sinclair immediately following and preceding, respectively, the brief passages which I have already quoted. Secondly, there is the principle described by Mason CJ, Brennan, Dawson and Gaudron JJ in O'Sullivan v Farrer (1989) 168 CLR 210 at 216; 89 ALR 71 at 75:
Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable…given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'" Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR at 505 per Dixon J."

So instructed, I am satisfied, on the facts of this case, that it would be contrary to the public interest that the applicant's name when he is "in costume" is the proper name to be included on the electoral roll. He should be enrolled under the name "Roderick Peter Paterson", the name he uses from day-to-day as a citizen living in the relevant electoral division.
For these reasons the decision under review will be affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed:
  Associate
Date/s of Hearing  5 June 2002
Date of Decision  27 June 2002
Solicitor for the Applicant         Mr P Watts, Watts & Company, Solicitors
Counsel for the Respondent    Mr M Swan
Solicitor for the Respondent    Australian Government Solicitor