What's in a name? Paul Joseph MacMahon remains Paul Joseph MacMahon

There was a very interesting decision handed down today, in which the NCAT Appeal Panel applied what initially looks like a fairly strained interpretation to a law, in order to make the law work better.

The decision in Registrar of Births, Deaths and Marriages v MacMahon [2021] NSWCATAP 303 (link) concerned the meaning of section 4 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (link), which defines "prohibited name" – something the Registrar of Births, Deaths and Marriages is permitted, by section 30(3) of the Act (link), to decline to register as a new name or a change of name.

A name is a "prohibited name", by virtue of section 4, if the name:

• "is obscene or offensive", or
• "could not practicably be established by repute or usage because it is too long, or because it consists of or includes symbols without phonetic significance, or for some other reason"; or
• "includes or resembles an official title or rank"; or
• "is contrary to the public interest for some other reason".

In this case, the Registrar wanted to refuse to register a proposed change of name by a man with a history of identity-related offending. Her only avenue to do so was to form a conclusion that his proposed new name, "Paul Rawlings Mann", was a "prohibited name", because "the name... is contrary to the public interest".

This seems an unusual conclusion about the (wholly unremarkable) name "Paul Rawlings Mann". Ordinarily, it's pretty easy to spot the reason for rejection of a name. Names previously rejected for registration around Australia have included:

• "Hitler Ice-T"
• "Scrotum"
• "G-Bang"
• "Bonghead"
• "Ranga"
• "Pieandsauce"
• "Snort"
• "Panties"
• "Spinach"
• "Thong"
• "#ROFL"
• "Dick Head"
• "Medicare"
• "Maryjuana"
• "Batman", and
• "LOL".

Against that background, "Paul Rawlings Mann" appears fairly innocuous. Could it fairly be said that the name "Paul Rawlings Mann" is "contrary to the public interest"? If we happened across someone of this name, and levelled that accusation at him, how would we explain what the problem was? It would certainly be easier to have the conversation with G-Bang and Panties.

Nonetheless, there was no doubt the Registrar's motivation and concerns stacked up, even if some intellectual gymnastics were required to allow her to reach the desired outcome. And, as any experienced litigator knows, when you have right on your side, a court will often work with you to find an interpretation of the law that works, even if it requires a bit of mental gymnastics.

In this case, the NCAT Appeal Panel bent over backwards (with considerable grace, it might be observed) to find the path to uphold the Registrar's conclusion that "Paul Rawlings Mann" was a "prohibited name" for the purposes of the Act. As a result, it is now apparent that, in assessing whether or not a name is a "prohibited name", regard may be had to all of the surrounding circumstances, and is not confined to the name itself.

Background

Paul Joseph MacMahon is a scumbag. He has over 100 convictions, including 39 tax fraud offences and 42 identity fraud offences.

You can read about Mr MacMahon's offences in paragraphs 15 to 24 of his Court of Criminal Appeal case, where he appealed (unsuccessfully) against his sentence – McMahon v R [2011] NSWCCA 147 (link). Long story short, he was an undischarged bankrupt who stole the identities of dead children from obituaries and tombstones, used them to gain control of 32 companies by falsely registering the deceased people as directors, and then used the companies to obtain fake GST refunds totalling $676,620.

Accordingly, not only is Paul MacMahon a scumbag, he is a person whose scumbaggery has been heavily reliant on his ability to assume other people's identities. His offending occurred over nine years, and he served four years in prison for it.

Against that ignomonious background, on 22 May 2019 he applied to the Registrar of Births, Deaths and Marriages to change his name to "Paul Rawlings Mann". In his application, he disclosed two of his convictions and, as to his motivation in changing his name, he explained that he was doing it for his children:

“My ex-wife (divorced 1999) continues to harass my new wife and our three children and was the informant to police which led to my conviction 10 years ago for tax fraud. At that time and since, she has been responsible for several newspaper articles and internet blogs about me which contain much information which is false. These actions are affecting my health and wellbeing and that of my younger children …?Internet searches and updates continue to make reference to my past and cause me distress and depression and this affects my children, my wife and me.”

Busted

Although Mr MacMahon only disclosed two prior convictions on his application form, he was already known to the Registry. Many of the identity offences he had committed occurred against a background of him tricking Registry staff into issuing him with copies of dead people's birth certificates.

As part of her "usual practice", the Registrar obtained a comprehensive National Police Check in respect of Mr MacMahon, confirming his far more extensive criminal history. Concerned not to facilitate further offending by allowing him to assume a yet another new identity, she refused his change of name application.

In doing so, she relied on section 6(a1) of the Act (link), which provides that one her functions is "...to seek to prevent identity fraud associated with the Register and the information extracted from the Register."

NCAT's decision

In response, and following an unsuccessful internal review of the decision, Mr MacMahon appealed to NCAT, arguing that a name is only a "prohibited name" if the name itself is contrary to the public interest – not merely if it would be contrary to the public interest to permit someone to change their name at all.

NCAT agreed:

On a reading of the definition of?“prohibited name”?it is apparent that the other reasons under s 4 relate to the name itself. The Registrar’s interpretation requires that when interpreting?“contrary to the public interest”?the Tribunal departs from that approach to examine how the name is used or to whom it is applied.

...

In my view the correct interpretation of the s. 4 definition of?“prohibited name”?must focus on whether the name itself is contrary to the public interest. There is no evidence to establish any feature of the name Paul Rawlings Mann which is contrary to the public interest.

NCAT found, in essence, that for a name to be a "prohibited name", the name itself must satisfy the relevant requirement (in this case, being contrary to the public interest). The decision was reported: MacMahon v Registrar of Births, Deaths and Marriages [2020] NSWCATAD 290 (link).

The Registrar was not impressed, and appealed NCAT's decision.

The Appeal Panel's decision

The NCAT Appeal Panel, in what is (with respect) a clever and well-reasoned decision, today sided with the Registar, overturned the original NCAT decision, and determined (emphasis added):

Mr?MacMahon’s?proposed name is contrary to the public interest for the reason that there is a risk that?he?will use it for a fraudulent purpose.?That is so, having regard to?his?criminal history which involves convictions for multiple offences involving identity theft and fraud. There is also a risk that the change in name would allow?Mr?MacMahon?to conceal his past. There?was?no evidence?before us to?establish that he has reformed.

In reaching this decision, the NCAT Appeal panel noted that only basis in the Act for the Registrar to refuse to register a name change was that the name was a "prohibited name". There was no broader basis for refusal anywhere in the Act.

However, despite this, she was obliged by section 6 to "seek to prevent identity fraud associated with the?Register and the information extracted from the Register", and section 30 specifically empowered her to require applicants to prove "that the change of name is not sought for a fraudulent or other improper purpose" (emphasis added).

This spoke of a broader approach to interpretation, where a name might be a "prohibited name" not because of any feature inherent in the name itself, but because of what it was apprehended a particular individual might do with it.

This was described in the Appeal Panel's decision as requiring a "situational assessment" of a change of name application, "including how the nominated name may come to be used by the person seeking the change".

The Appeal Panel noted that, construed broadly, the text of the definition is capable of capturing a name that is contrary to the public interest for a broad range of reasons, including (for example) "because the name could facilitate fraudulent activities, having regard to the individual’s history and circumstances" (emphasis added).

Saying that the name could facilitate fraud overlooks the fact that there is nothing wrong with "the name", rather, its the individual who's the problem. At first, the Appeal Panel's seems like a fairly clumsy way of addressing the language of section 4, but really, it is exactly the opposite.

It was perfect. Elegant, even. Because if the Appeal Panel had not adopted that approach, the decision would either have been flawed in that it failed to mesh with the specific language of section 4, or worse, the decision would have had to go against the Registrar. And that would have meant the scumbag won.

Ultimately, the Appeal Panel instead concluded that?the Registrar’s power to refuse to register a name as contrary to the public interest?"is not limited to consideration of the proposed?name?in isolation". The previous NCAT decision was overturned, the NCAT Appeal Panel ordered that the decision of the Registrar to refuse to register the change of name was affirmed, and Mr MacMahon is still Mr MacMahon.