Births, Deaths and Marriages Registration (Change of Name) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 July 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:19): I rise to speak on the Births, Deaths and Marriages Registration (Change of Name) Amendment Bill 2015 introduced by the Attorney-General on 1 July 2015, and I indicate that I am the lead speaker on behalf of the opposition. I indicate that we will be supporting this bill and thank members of the Attorney's office who provided briefings on the same to Mr Wallbridge of my office.

The hatch, match and dispatch act always brings lots of attention because it is a very important method by which we record major public events of our citizens. Obviously their birth, marriage and death are significant events and we have a registration procedure for each.

For births we have a provision which requires in our law that a child must be registered when they are born in our jurisdiction and certain particulars must be provided. There is a time limit to do that and there are rules around who can register the birth and who can be recorded on the birth certificate and it is an important public record.

There are two things I would say about that. One is that it is important that we have this for the purpose of people using it to confirm their existence, apply for certain records and as evidentiary proof of a person's existence, and flowing from that usually some entitlements. It might be to apply for a passport, secure employment, prove age above a requisite age for the purposes of consuming alcohol, or applying for a job in a licensed premises, etc. There are lots of reasons which have some sort of legal base for which we record births. The other thing, of course, is that it is a happy occasion and it is recorded for the benefit of family and the child who is registered.

Marriages, suffice to say, are also recorded. Once a lawful ceremony has been undertaken, they attract certain rights and responsibilities and so, again, we record marriages by a registration process. There are obligations on marriage celebrants, whether they are religious or civil, and on parties who are married to undertake a registration procedure. Access to pension entitlements and to tax relief are just a few of the reasons why it is important that this process is registered. Historically, when religious marriages were conducted, as distinct from a civil service or ceremony, the churches themselves would often act as the registration agency, and similarly in respect of births.

Divorces do not have a similar attachment. They do not have a registration obligation, but the dissolution document is registered in the court of the federal jurisdiction that grants it or of nullity, depending on whether that is another means by which there has been a dissolution of the marriage. That process is not registered, but the production of the marriage certificate and sometimes the birth certificate to show the original name of the party and/or the decree nisi or the decree absolute of the dissolution of the marriage is produced to demonstrate a progression in relation to various events, when one might apply to resume the use of a maiden name for a woman, for example, or to prove that they are eligible for remarriage at a later date. There are lots of reasons why this documentary record is very important.

Death, suffice to say, is also important to register. It provides for the documentary evidence of the cessation of access to entitlements and the obligation to pay once someone is deceased. Whilst there might be charges on the estate, it is important that we document the death.

There are different reasons why people change their name. Sometimes it is because of the act of marriage. Sometimes it is because the parentage changes in its disclosure, or one parent might remarry. Commonly, what occurred in historical times was that children would adopt the identity of their mother's husband, and, if that changed, they would adopt the surname of the new or latest husband, and so on. It is very important that we have rules that sit around the registration of these important events. They have significant legal consequence and it is important that we have this process.

We have a Registrar of Births, Deaths and Marriages who is responsible for the implementation of these obligations in respect of the registration process. Under South Australian law we currently have provision for any adult who is domiciled or ordinarily resident, or whose birth is registered in this state to change their name by applying to the Registrar of Births, Deaths and Marriages. It is a relatively simple application. For example, if my name is Vickie Ann Chapman and I want to change my name to Vickie Ann Smith, I lodge an application with a copy of the details of my birth and the requisite fee. I can use this process if I am over 18 years of age and I am domiciled in South Australia, or have been born here, or am ordinarily a resident.

The registrar can request evidence from me, as the applicant in those circumstances, to help establish my identity and age, and to also identify to their satisfaction that the change of name is not for an improper or fraudulent purpose. The most common occasion that I am aware of in circumstances where there has been an improper purpose is where the applicant is wishing to avoid creditors and they decide that the best way to do that is to have a change of name to attempt to conceal their whereabouts.

Another example of an improper change of name is for someone to move from one jurisdiction to another, have in their possession a child whom they are not supposed to have (one they may have taken out of another domestic household, for example), purporting to come to South Australia and remain incognito. There are also provisions that enable the registrar to reject an application for a change of name if the name that is proposed on the application is offensive or obscene, for obvious reasons.

If someone were to attempt to call themselves, and I do not think I need to illustrate it, a name which is clearly obscene or offensive, the registrar can refuse to accept the application and to register that. It has to be contrary to public interest and that is a matter for determination by the registrar. The registrar, he or she, has certain obligations and powers to register or reject an application in certain circumstances.

From time to time, the state and commonwealth attorneys-general meet around Australia, obviously, to discuss issues of mutual interest about which there could be some national consideration, usually for reform; or, at least, to discuss what each of the jurisdictions is doing in response to a certain issue or pressure. Recently, in South Australia, the Attorney hosted a meeting with other state attorneys so, from time to time, just the state and territory attorneys get together and discuss issues of mutual interest. Unsurprisingly, there is some overlap in the jurisdictions and I am sure that these meetings are helpful to identify where one jurisdiction has been successful in either identifying a new issue or acting in a manner which has been effective.

This bill comes before us as a result of recommendations that have come from a state and commonwealth attorneys-general meeting and was first flagged after a convicted paedophile, Brian Jones, attempted to change his name in the state of Victoria to mock his victims. Obviously, that was seen as unconscionable if it was allowed to occur and the issue was considered and, as a consequence, this bill is presented for our consideration.

This bill makes two main changes to the act. One, under an amended section 24, provides that a person may only apply for a change of name in South Australia if the person is born in South Australia or, if born overseas, has been residing in South Australia for the previous 12 months. The registrar will have a discretion regarding a residency requirement. So there is a tightening up of the basis on which you can apply. You cannot just hop across the state and use another jurisdiction to successfully change your name.

The second part of this bill is to provide for a new division which requires certain categories of offenders to obtain the permission of their supervising officer, that is, the chief executive of the Department for Correctional Services, unless otherwise specified by the regulation, before they can apply for a change of name. As indicated, currently, the only category of offenders that require permission to change their name are offenders under the Child Sex Offenders Registration Act 2006, and this new division will make it an offence for a restricted person to apply to the registrar for a change of name without the approval of their supervising officer. A very robust penalty is to apply, that is, a $10,000 fine or up to two years' imprisonment. A restricted person for the purposes of this division is defined as a prisoner, a parolee, a person released on licence or a class of persons declared by the regulations to be a restricted person.

The Child Sex Offenders Registration Act 2006 sets out a separate set of registration obligations where someone has been convicted of a child sex offence within certain categories. As members would be aware, these offenders not only, of course, face their penalty as per the determination of sentence on a conviction but also they attract an obligation as a result of conviction in certain categories to remain in contact, usually with the police. They are to report at certain intervals. They are not allowed to change their name or address during the period they are under the registration. They have a number of obligations in respect of restrictions of where they can live, travel, be in association with minors, etc., so this really does extend the obligation to get permission before you change your name in other categories.

The government takes the view that this is necessary to deal with violent and sex criminals, other than child sex offenders, and setting a very significant penalty will mean they will face gaol if they attempt to change their name without the knowledge and/or consent of the corrections officer. The premise here is that it is necessary because it is difficult to monitor these people in the community if their new name is unknown.

I have to say that, whilst on the face of it no-one would want a situation where they are untraceable, in the course of discussing this matter there did not appear to be any data produced to suggest that this is already a major problem. We have to accept on face value that it has been raised at the attorneys-general meeting and therefore is something that is a problem, that is, that there are people changing their name and moving about the community without having had that permission.

The second thing is that I would have thought with today's registration processes it would not be difficult for a search to be done of a person's name and former names. Certainly, a search can be done to identify if someone is on the register, and usually that can throw up the former names of that person. I would not have thought it is actually all that difficult but, in any event, from our side we accept that it is important to monitor offenders in this category, and this is one way of being able to do it and avoid the concealment of their whereabouts by changing their name.

As I said, the only case is the Victorian case, quite a notorious case which I have referred to, where the Victorian paedophile Brian Jones attempted to change his name to Shaun Paddick while on parole. It was considered an attempt to insult his victims, because it was a case where the victims had had their heads shaved when he abused them. That case alone justifies some action; whether it requires this type of approach we are yet to see, but we will support the government in the bill's passage.

Can I say one other thing in respect of the registration procedure? I recently had a member of my community contact me—in fact, neighbouring my electorate I should say. She wanted to bring to my attention how difficult it is for a normal civilian to change their name. Here is what happened to her, and she wrote to me to say this:

When attempting to change my name at Service SA for my drivers license I have encountered many difficulties, apparently I can keep my maiden name or take my husband's name but I cannot add his name to my name without registering a change of name through births, deaths and marriages. I find this ludicrous, and fear it's a money-making scheme by the government. I have a passport with my new name, and registered with the ATO with no difficulties. Service SA staff were unable to provide rationale for their requirements.

She wrote on to tell me that she had to pay $300 to have the documentation process go through, but here is the absurdity: Service SA say that it is not enough for them to be presented with birth certificates and the like, her date of marriage, the marriage certificate and so on. They have even issued a passport, which I would have thought had the highest level of scrutiny with respect to the obligation.

To retain her name and her husband's name she needed to change her name via Births, Deaths and Marriages and pay the $300 to enable her to use the hyphenated name. It is utterly ridiculous, but that is the way it is. So, for civilians the law will not change with the passage of this bill, unfortunately for the constituent in the electorate neighbouring my electorate. It will not resolve her problem, but there will be a very high threshold to be achieved for people who commit sex and violent crimes and they are going to have to satisfy their captor as such (the head of Corrections) for doing so.

In concluding on this bill, there are quite legitimate reasons why a person who may have been convicted of a serious offence—say, for example, a female who has committed a serious violent offence against another person, she is serving time for it, the person who was the victim of the assault which she committed on this person remains a threat to her and she feels that she may be at risk if the victim in that case were to find that she had left gaol and that she might be tracked down and harm caused to her—it would be quite appropriate and legitimate for her to approach the head of Corrections, indicate the concerns she has, express her desire to change her name accordingly and to be able to seek some refuge under the cover of a new name.

So, there are certainly quite legitimate circumstances one can think of where it would be reasonable for corrections officers to grant the consent to change the name. If it turns out, in the implementation of any aspect of this act, that there has been an unreasonable denial of consent to progress or unreasonable conduct on behalf of the Registrar to act appropriately in the registration of a change of name, then that becomes an administrative appeal matter of which the applicant can seek some redress.

All of these things cost money so I urge the Attorney-General, in us supporting the passage of the bill, to ensure that it is responsibly administered and that we do not have to come back here to deal with what have been arbitrary and inappropriate decisions. I am not suggesting it will happen, but we are presenting a very significant penalty under an offence procedure under this bill and I would expect that the Attorney makes sure that it is exercised responsibly. With that, I commend the bill to the house and its passage.