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

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (18:10): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted into Hansard without my reading them.

Leave granted.

At the 2014 State Election the Government committed to stopping serious sex offenders and serious violent offenders from changing their name without permission. The Births, Deaths and Marriages Registration (Change of Name) Amendment Bill 2015 implements this election commitment by strengthening change of name provisions in the Births, Deaths and Marriages Registration Act 1996.

At present in South Australia, an adult person who is domiciled or ordinarily resident in this State or whose birth is registered in this State can apply to the Registrar of Births, Deaths and Marriages for the registration of a change of name. Before registering a change of name the Registrar may require the applicant to provide evidence to establish to the Registrar's satisfaction the identity and age of the person whose name is to be changed and that the change of name is not sought for an improper or fraudulent purpose. The Registrar may also refuse to register a change of name if, as a result of the change, the name would become a prohibited name. Prohibited names include names that are offensive or obscene or that are contrary to the public interest for some other reason.

Unfortunately, the system is open to abuse and a change of name may be sought by criminals in order to further an unlawful activity or purpose, such as evading supervision whilst on parole or obtaining a firearms licence in another jurisdiction. Although the Registrar has the ability to refuse an application for a change of name if it is sought for an improper or fraudulent purpose, in practice, without knowledge of the criminal history of the applicant and the circumstances of the offending, it will be difficult for the Registrar to determine whether the name change is being sought for an improper purpose or for a legitimate reason.

To minimise abuse of the change of name system and potential fraud, the Bill makes two major changes to the Births, Deaths and Marriages Registration Act. Firstly, the Bill amends section 24 of the Births, Deaths and Marriages Registration Act so that a person may only apply for a change of name in South Australia if the person is born in South Australia or if the person was born overseas and has been residing in South Australia for the past 12 months. This will ensure that an applicant has a connection to the jurisdiction in which they wish to change their name. Of course there may be situations where it is appropriate for the Registrar to waive the residency requirement for a person who was born outside of Australia, for example, in the case of a domestic violence victim. The amendment therefore gives the Registrar discretion to waive the residency requirements and approve a change of name if it is sought for the protection of the applicant or a child of the applicant or is related to a marriage or divorce of the applicant.

Secondly, the Bill inserts a new division into the Births, Deaths and Marriages Registration Act to require certain categories of offenders to obtain the permission of their supervising authority before they can apply for a change of name.

The only category of offender that currently requires permission to change their name is registrable offenders under the Child Sex Offenders Registration Act 2006. Changes of name by this category of offenders can give rise to serious concerns that would not arise in the case of a change of name by other members of the community, particularly regarding matters of safety and security when attempting to monitor such offenders in the community. A registrable offender must therefore obtain the written approval of the Commissioner of Police before changing, or applying to change, his or her name under the Births, Deaths and Marriages Registration Act. Similar concerns arise in relation to other categories of offenders, particularly those who have been imprisoned for a serious offence, such as a serious violent offence or a serious sex offence. To provide greater oversight of changes of name by these offenders, the Bill amends the Births, Deaths and Marriages Registration Act to make it an offence for a restricted person to apply to the Registrar to register a change of name without the approval of their supervising authority with a maximum penalty of $10,000 or 2 years imprisonment. The supervising authority is in the best position to determine whether a change of name is appropriate as it will be fully aware of the applicant's criminal history and the circumstances of the offending.

A restricted person is defined in the Bill as a prisoner, a parolee, a person released on licence under section 24 of the Criminal Law Sentencing Act 1988 or a person or a class of persons declared by the regulations to be a restricted person. Unless otherwise provided for by regulation, the supervising authority is the Chief Executive of the Department of Correctional Services. A supervising authority must not approve a change of name application unless satisfied that the change of name is necessary or reasonable. For example, a change of name may be sought for religious reasons or because the offender is also a victim of crime and is seeking to escape a perpetrator. In determining whether to give approval a supervising authority will also be required to consider certain factors, including the safety of the offender and other persons, the rehabilitation, care or treatment of the offender and whether the change of name is being sought to further an unlawful activity or purpose, such as attempting to avoid supervision whilst on parole, causing offense to a victim, or circumventing security checks in order to obtain a firearms licence.

It is already an offence to knowingly make a false or misleading representation in an application or document under the Births, Deaths and Marriages Registration Act with a maximum penalty of $1,250. To assist the Registrar to identify a restricted person, the Bill amends the Births, Deaths and Marriages Registration Act to require an applicant for a change of name to declare on his or her application form whether he or she is a restricted person or a registrable offender within the meaning of the Child Sex Offender Registration Act. In addition, new section 29G provides for the provision or exchange of information between the Registrar and the supervising authority.

To ensure that the change of name requirements for restricted persons and registrable offenders are consistent, the Bill makes consequential amendments to the Child Sex Offenders Registration Act to provide that the Registrar must not register a change of name of a registrable offender unless she or she has received a copy of the Commissioner's written permission and must notify the Commissioner of a change of name of a registrable offender.

The new requirements for the change of name of restricted persons will be supported by administrative arrangements. An alert list of serious offenders will be sent to Births, Deaths and Marriages by the Department of Correctional Services. If one of these offenders applies for a change of name whilst in prison, on parole or released on licence under section 24 of the Criminal Law Sentencing Act, an alert will be raised and the Department of Correctional Services notified. The application can then be put on hold until the Registrar has received confirmation from the Department of Correctional Services that the applicant has the requisite approval.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Births, Deaths and Marriages Registration Act 1996

4—Insertion of heading

This clause inserts a division heading into Part 4 of the Act.

5—Substitution of section 24

This clause substitutes section 24 of the Act as follows:

24—Application to register change of adult's name

Subsection (1) provides that an adult person may apply to the Registrar, in a form approved by the Registrar, for a change of a person's name if—

the person's birth is registered in the State; or

the person was born outside Australia, the person's birth is not registered in another State or Territory and the person has been resident in the State for at least 12 consecutive months immediately before the date of the application.

Subsection (2) provides that the Registrar may waive the requirement for the person to have resided in the State for at least 12 consecutive months, if satisfied that the change of name is sought for the purpose of the protection of the applicant, a child of the applicant, or is related to a marriage or divorce of the applicant.

Subsection (3) provides that an application for a change of name of an adult person must contain a declaration indicating whether the person is, at the time of making the application, a restricted person as defined in proposed section 29B, or a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006.

6—Amendment of section 25—Application to register change of child's name

The clause substitutes current subsection (1) to provide that the parents of a child may apply, in a form approved by the Registrar, to the Registrar for a change of a child's name if—

the child's birth is registered in the State; or

the child was born outside Australia, the child's birth is not registered in another State or Territory and the child has been resident in the State for at least 12 consecutive months immediately before the date of the application.

Proposed subsection (1a) provides that the Registrar may waive the requirement for the child to have resided in the State for at least 12 consecutive months, if satisfied that the change of name is sought for the purpose of the protection of the child or the applicants, or if the applicants have legally married and wish the child to change to the married name of both applicants.

Proposed subsection (1b) provides that the requirement for the child to have been resident in the State for at least 12 consecutive months immediately before the date of the application does not apply if the Court has approved the proposed change of a child's name under existing section 25(2)(c).

7—Insertion of Division 2

This clause inserts a new Division:

Division 2—Requirements for change of name of restricted persons

29B—Interpretation

This section defines key terms used in the Division, including:

a definition of restricted person meaning a prisoner, a prisoner released on parole or home detention under the Correctional Services Act 1982, a person subject to an extended supervision order under the Criminal Law (High Risk Offenders) Act 2015, a person released on licence under section 24 of the Criminal Law (Sentencing) Act 1988, or a person or a class of persons declared by the regulations to be a restricted person;

a definition of supervising authority meaning the person holding or acting in the position of Chief Executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Correctional Services Act 1982, or a person declared by the regulations to be a supervising authority in respect of a restricted person or a class of restricted person.

29C—Application of Division

Subsection (1) provides that the provisions in proposed Division 2 are in addition to the requirements and restrictions contained in Part 4 Division 1. Subsection (2) states that the provisions of the proposed Division do not apply to the change of name of a restricted person who is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006.

29D—Application for change of name by or on behalf of restricted person

The section makes it an offence for a restricted person, or a person on behalf of a restricted person, to apply to the Registrar or a registering authority to register a change of name of a restricted person without the written approval of the supervising authority, with a maximum penalty of $10,000 or imprisonment for 2 years. If the court convicts a person of an offence, subsection (3) gives the court power to declare void, on application by the prosecution, a change of name registered in relation to the person, and the Registrar must, on being notified of that declaration, correct the Register.

29E—Approval by supervising authority for change of name of restricted person

The section provides that a supervising authority may approve the making of an application to the Registrar or a registering authority for registration for a change of name of a restricted person. In determining whether to grant the approval, the supervising authority must have regard to the following:

the safety of the restricted person and other persons;

the rehabilitation, care or treatment of the restricted person;

whether the proposed change of name could be used to further an unlawful activity or purpose, to evade or hinder the supervision of the restricted person, or could be considered offensive to a victim of crime or the immediate family of a deceased victim of crime.

The supervising authority must not approve the making of an application unless satisfied that the change of name is necessary or reasonable. If approval is given, the supervising authority must, as soon as practicable, give written notice of the approval to the applicant and the Registrar or registering authority. The section also provides that the supervising authority may delegate any of his or her powers under the proposed section.

29F—Additional requirements for registration of change of name of restricted person

The section provides that the Registrar—

must not register a change of name of a restricted person unless the Registrar has received a copy of the notice of approval of the supervising authority to the application for registration of a change of name;

must notify the supervising authority once the change of name has been made;

may correct the Register if a change of name has been registered in contravention of the Division.

29G—Information exchange between Registrar and supervising authority

The section provides for an arrangement to be entered into between the Registrar and the supervising authority for the exchange of information for the purposes of the proposed Division.

Schedule 1—Related amendment

Part 1—Amendment of Child Sex Offenders Registration Act 2006

1—Amendment of section 66K—Change of name of registrable offender

The clause inserts a new subsection (2a) which provides that the Registrar must not register a change of name of a registrable offender unless he or she has received a copy of the Commissioner of Police's written permission for the change of name, and that the Registrar must notify the Commissioner of a change of name of a registrable offender.

Debate adjourned on motion of Hon. D.W. Ridgway.