Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79 (26 May 2003)

Last Updated: 13 June 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Saleam v Registrar of Births, Deaths & Marriages [2003] NSWADT 79

PARTIES: APPLICANT

James Saleam

RESPONDENT

Registrar of Births, Deaths & Marriages

FILE NUMBERS: 023290

HEARING DATES: 21st March 2003

SUBMISSIONS CLOSED: 20/05/2003

DECISION DATE: 26/05/2003

BEFORE: Hennessy N - Magistrate (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Births Deaths and Marriages Registration Act 1995

Crimes Act 1900

Privacy & Personal Information Protection Act 1998

State Records Act 1998

CASES CITED: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Attorney General (NSW) v Quin (1990) 170 CLR

Khan v Minister for Immigration and Ethnic Affairs

Carroll v Sydney City Council (1989) 15 NSWLR 541

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375

The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327

Department of Defence v Jodette Margaret Fox (1997) 3 FCA

McPhee v Minister for Immigration and Ethnic Affairs (1998) 16 ALD

Samad v District Court of New South Wales (2002) 189 ALR

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405

Beckwith v R (1976) 12 ALR

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR

APPLICATION: Births, Deaths & Marriages Act - grant of application to search Register

MATTER FOR DECISION: Principal Matter

APPLICANT REPRESENTATIVE: APPLICANT

In Person

RESPONDENT REPRESENTATIVE: RESPONDENT

S Free, Solicitor

ORDERS: 1. The decision of the Registrar of Births, Deaths and Marriages not to search the Register for the registrable event requested by the applicant is affirmed.

Reasons for Decision:

Introduction

1 This is an application by Mr Saleam, under s 56 of the Births, Deaths and Marriages Registration Act 1995 (the BDMR Act) for a review of a decision of the Registrar of Births Deaths and Marriages (the Registrar). The decision was to refuse Mr Saleam's application to search the Register for an entry about the marriage of a woman who I shall refer to as Ms S.

2 Mr Saleam seeks an order that the Registrar search the Register, pursuant to s 47 of the BDMR Act, for details of the marriage of Ms S and provide a certificate certifying the particulars in the Register.

Background

3 The background to these proceedings is that Mr Saleam was convicted of two related offences in February 1987. Those offences apparently related to an insurance claim. He served a period of imprisonment. In 2002 he applied to the Supreme Court for an inquiry to be undertaken into the two convictions under s 474D and 474E of the Crimes Act 1900. Those provisions state that:

s 474D

(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

s 474E

(1) After considering an application under section 474D or on its own motion:

(a) the Supreme Court may direct that an inquiry be conducted by a prescribed person 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 repealed provisions, 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 474D 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).

4 Mr Saleam says that a woman, who I shall refer to as Ms T, gave evidence which the court relied on to convict him of the offences. According to Mr Saleam, Ms S was friends with Ms T. Ms T gave evidence at the trial that on the date the offence was allegedly committed she had been at a party at Ms S's house. Based on a conversation Mr Saleam had with Ms S in 1988, Mr Saleam says that Ms S could provide evidence which would be highly relevant to Ms T's credibility. In particular Mr Saleam says that Ms S could give evidence as to how Ms T exhibited symptoms of mental illness especially in her alleged transformation from an Australian born person to a person who claimed she had Spanish ancestry. According to Mr Saleam, Ms S also had knowledge of the paternity of Ms T's children. This was another matter which Mr Saleam alleged was relevant to Ms T's credibility. Finally Mr Saleam says that Ms S told him in 1988 that Ms T ". . . was always one for making up stories" and that "she was good at it."

5 In his application to the Supreme Court under the Crimes Act, Mr Saleam set out the kind of evidence he anticipates Ms S would be able to give and the fact that he has been unable to locate her. According to Mr Saleam, the reason for being unable to locate her and ask her if she would provide a statement to the Supreme Court, is that she has remarried and changed her name. This situation prompted his application to the Registrar for information about Ms S's new married name.

Application

6 By letter of 28 May 2002, Mr Saleam wrote to the Registrar requesting Ms S's new married name and the name of her husband. By letter dated 4 June 2002, the Registrar wrote to Mr Saleam advising that his request had been denied. The reason given for the decision was that, under the Certificate Access Policy (the policy) Mr Saleam was not entitled to the information sought without the consent of Ms S.

7 Mr Saleam requested an internal review of this decision. The Director General of the Attorney General's Department undertook that review and affirmed the decision. On 16 December 2002, Mr Saleam applied to the Tribunal for a review of the decision.

Relevant provisions of the BDMR Act

8 Section 47 sets up a scheme whereby a person may apply to the Registrar to search the Register for a particular registrable event. That application must state the reason for the person's interest in the subject matter of the search. The Registrar may reject the application to search the Register if the applicant does not show an adequate reason for wanting the information. If the Registrar is satisfied that there is an adequate reason, he may search the Register and issue a certificate under s 49 containing details of any entry that was located. Section 48 relates to the role of privacy interests when providing the information extracted from the Register.

47. Search of 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.

48. 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.

49. Issue of certificate

(1) On completing a search of the Register, the Registrar may issue a certificate:

(a) certifying particulars contained in an entry, or

(b) certifying that no entry was located in the Register about the relevant registrable event.

(2) A certificate under subsection (1) (a) is admissible in legal proceedings as evidence of:

(a) the entry to which the certificate relates, and

(b) the facts recorded in the entry.

Relationship of BDMR Act with Privacy and Personal Information Protection Act 1998

9 The BDMR Act was enacted prior to the Privacy and Personal Information Protection Act 1998 (PPIP Act). Section 18 of the PPIP Act states that:

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.

10 However, s 25(b) of the PPIP Act provides an exemption from compliance with that Act where non-compliance is lawfully authorised or required. That provision states that:

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).

11 Section 25(b) of the PPIP Act means that the Registrar is not required to comply with s 18 of that Act. The respondent submitted that despite the exemption in s 25(b), the Registrar must always bear in mind that any release of information from the Register without the consent of the person concerned will constitute an infringement of privacy. In the respondent's submission, "the structure of the Act demonstrates that the applicant's interest must be closely scrutinised and involve a very strong countervailing reason to override the privacy implications." This submission is dealt with below.

Policy under the BDMR Act

12 Under s 53(1) of the BDMR Act, "The Registrar must maintain a written statement of the policies on which access to information contained in the Register is to be given or denied under this Division." Under s 53(2), "The Registrar must give a copy of the statement, on request, to any person."

13 The relevant statement applicable to these proceedings is the Certificate Access Policy which provides, so far as is relevant, as follows:

Part 1: Scope

1.1 This policy defines the exercise of discretion by the Registrar of Births, Deaths and Marriages when issuing certificates under Part 8 of the Births, Deaths & Marriages Registration Act 1995 (NSW).

It relates to the provision of certificates of birth (including stillbirths and adoptions), deaths, marriages and change of name.

1.2 The relevant sections in the Act are:

section 47 which provides for applications being accepted on the basis of an adequate reason and related matters;

section 48 which entrenches the protection of privacy as a duty on the Registrar "as far as practicable" when providing certificates to applicants; and

section 49 which provides for the Registrar to issue certificates and related matters.

1.3 This policy serves to ensure that consistent and accountable decisions are made by staff of the Registry of Births, Deaths and Marriages when applications for certificates are assessed for an adequate reason.

1.4 The Registrar's discretion in deciding entitlement to certificates is not exhausted by this policy. Decisions may be made by the Registrar on any unusual case that may fall outside the ambit of this policy, taking into account the merits of the individual case.

Part 2: General Principles

2.1 Section 47 of the Act provides for access to a certificate subject to an adequate reason being provided and requires the following factors to be taken into account when determining applications for certificates:

the applicant's relationship to the subject;

the age of the records,

the content of the records, and

any other relevant factors.

In taking the above factors into account the prime concern is that adequate care needs to be discharged in the interests of the privacy of the subject in accordance with section 48 of the Act.

2.2 Applicant's relationship with the subject

The applicant's relationship to the subject is the primary criterion in determining what constitutes an adequate reason. Recognising that the subject has an unfettered right of access to their own certificate, the right of access in all other cases diminishes by the degree the applicant is removed from the subject.

Thus this policy is generally laid out as a listing in terms of relationship rather than being a list of adequate reasons and, as a corollary, all official application forms require applicants to state their relationship to the subject.

Relationship is to be understood to include both the meaning in the familial sense (eg mother, father, spouse) and in the broader sense including principal/agent relationship (eg solicitor, person having Power of Attorney).

2.3 Age of the Records

However, recognising that the sensitivity of personal information and the chances of its fraudulent use diminishes with time, the Registry allows unrestricted access to certificates of

births which occurred before 1905 inclusive;

deaths which occurred over 30 years ago; and

marriages which occurred over 50 years ago.

2.4 Content of the Records

Content of the records dictates to what degree the primary criterion of applicant's relationship to the subject will apply. The more sensitive the information on the records the greater stricture on access.

Thus unqualified unrestricted access to birth certificates is only allowed to a narrower range of persons than is the case with death certificates where there is a greater range of persons who qualify for access.

Limits on access to marriage certificates is even stricter. The content of a marriage record includes personal information on both parties. Allowing access even on the basis of close familial relationship of the applicant to one of the parties may raise privacy concerns for the other party.

2.5 Other Relevant Factors

Where an applicant for a certificate does not adequately meet any of the above criteria, other relevant factors (if any) shall be taken into account in determining whether a certificate should be provided.

A relevant factor for such an application is one which involves the public interest because it relates to:

Criminal law enforcement

Any other public policy consideration which outweighs, or does not conflict with, consideration of the privacy interests of the subject of the certificate.

Decisions on such cases shall only be made by the Registrar or a Manager in the Sydney Office reporting directly to the Registrar.

(Emphasis added.)

14 The policy goes on to set out in table form, that the people who are entitled to a marriage certificate include:

The registered person;

The child or other descendant of the registered person as long as the registered persons are deceased or a reason showing that certificate is needed to establish some legal right or entitlement is given; and

Any person, as long as the marriage occurred over 50 years ago.

Significance of the policy

15 Section 64 of the Administrative Decisions Tribunal Act 1997 (ADT Act) sets out the extent to which the Tribunal must take into account government policy when reviewing reviewable decisions. That provision states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5) In this section:

"Government policy" means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.

16 The agency conceded that the policy does not fall within the definition of a "government policy" for the purposes of s 64(1) of the ADT Act as it has not been adopted by the Minister. Under s 64(4) the Tribunal may have regard to any other policy applied by the administrator except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

17 The agency submitted that it is appropriate that the Tribunal should be guided by the terms of the policy, unless it can be shown to work an injustice in the particular case, or to be outside the terms of the enabling statute. (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.) Under s 63 of the ADT Act, the Tribunal must determine what the "correct and preferable" decision is based on any relevant factual material and any applicable written or unwritten law. The Tribunal may have regard to the policy in reaching a conclusion on the merits of the decision.

18 In the federal arena the Administrative Appeals Tribunal and the Federal Court have often expressed their reluctance to act inconsistently with government policy. (See Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 37 per Brennan J.) In accordance with this approach, I intend to apply the policy to the extent that it is not contrary to law and as long as it does not produce an unjust decision in the circumstances of this case.

Is the policy contrary to law?

19 In this case, the legality of the policy can be tested by asking the following questions:

Does the Registrar retain a discretion not to apply a general rule to a case where the facts fall outside the usual kinds of matters under consideration?

Does the policy omit consideration of factors which are relevant to a decision?

Does the policy include consideration of factors which are irrelevant to a decision?

20 Retention of discretion. An administrator must not fetter his or her discretion, but must ultimately exercise it in accordance with the merits of the particular case. In Khan v Minister for Immigration and Ethnic Affairs (unreported Federal Court, December 1987) Gummow J stated that:

. . . what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.

21 The policy in relation to "other relevant factors" in s 47(4) states that "Where an applicant for a certificate does not adequately meet any of the above criteria, other relevant factors (if any) shall be taken into account in determining whether a certificate should be provided." The policy goes on to say that "A relevant factor for such an application is one which involves the public interest because it relates to criminal law enforcement or any other public policy considerations which outweighs, or does not conflict with, consideration of the privacy interests of the subject of the certificate."

22 Although it is not perfectly clear, I interpret this part of the policy as not confining or fettering the Registrar's consideration of "other relevant factors" to the matters specified. On the basis of this interpretation, the Registrar will have regard to the individual reasons in each case before rejecting an application. Consequently, the policy does not fetter or confine the exercise of the Registrar's discretion and is not contrary to law on that count. (See Carroll v Sydney City Council (1989) 15 NSWLR 541)

23 Omission of relevant considerations. In deciding whether an applicant has an adequate reason, the Register must have regard to the factors listed in s 47(4). The Certificate Access Policy states that "the applicant's relationship to the subject is the primary criterion in determining what constitutes an adequate reason."

24 The use of the word "must" in s 47(4), suggests that the Registrar is bound to take those factors into account. (See Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.) This means that the Registrar must give weight to each of the factors listed as a "fundamental element" in exercising his discretion. (See The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 per Gibbs CJ at 333.) This principle has been developed in subsequent cases, including Department of Defence v Jodette Margaret Fox [1997] 3 FCA (14 January 1997). In that case O'Loughlin J agreed with the comment made by Gibbs CJ set out above in The Queen v Toohey; Ex parte Meneling Station Pty Ltd and went on to find that a body charged with "having regard to" certain factors would not comply with its statutory obligations if the "regard" was not "adequate" or "sufficient". His Honour said that:

. . . whether the listed subject matters are or are not exhaustive, they are matters to which regard must be had by the rehabilitation authority and it is essential, to adapt the words of Gibbs CJ in The Queen v Toohey: Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333, "to give weight to them as a fundamental element" in making a determination. In my opinion it follows that there would be a failure to "have regard" to nominated matters if the regard was not "adequate" or not "sufficient". The rehabilitation authority would not comply with its statutory obligation if it merely had "token" regard or "nominal" regard to those matters.

25 While O'Loughlin J's specific findings are not binding on this Tribunal, they are consistent with the principle enunciated by Gibbs CJ and I consider His Honour's comments to be applicable to the circumstances of this case.

26 Despite the emphasis on the relationship between the parties, it is my view that the policy, read as a whole, does give adequate weight to each of the factors listed. In general, assessment of the appropriate weight to be given to a particular consideration is a matter for the administrator. (See McPhee v Minister for Immigration and Ethnic Affairs (1988) 16 ALD 77 at 79 per Lee J.)

27 Inclusion of irrelevant considerations. An administrator must not take into account irrelevant considerations when reaching a decision. Privacy considerations are not specifically mentioned in s 47(4), yet under 2.1, the policy states that:

In taking the above factors into account the prime concern is that adequate care needs to be discharged in the interests of the privacy of the subject in accordance with section 48 of the Act. (Emphasis added.)

28 In addition, under 2.5, only public interest considerations (other than criminal law enforcement) which outweigh or do not conflict with privacy considerations, are specified.

29 Section 48 states that "In providing the 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." That section reads as only applying at the point where the Registrar is providing the information, not when he or she is determining whether to search the Register.

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 a 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] HCA 24; (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] HCA 11; (1905) 2 CLR 405 at 414 per Griffith CJ; Beckwith v R [1976] HCA 55; (1976) 12 ALR 333 at 337 per Gibbs J; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (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 consideration 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. In my view, for the reasons outlined above, the policy is contrary to law to the extent that it incorporates privacy considerations under the headings in 2.1 and 2.5.

Correct and preferable decision

36 Having determined that the policy is contrary to law in one respect, I intend to apply the legislation, and the policy as I have interpreted it, without reference to privacy considerations except at the point where the information is provided, to determine whether the Registrar has made the correct and preferable decision under s 63 of the ADT Act.

37 The Registrar's reasoning process is not clear from the correspondence. The Registrar told Mr Saleam that he was not entitled to the information without the consent of Ms S. He was not told why his reason for wanting the information was considered inadequate, although he was provided with a copy of the policy. Presumably, the Registrar determined that the public policy considerations in Mr Saleam obtaining access to the information did not outweigh the privacy interests of the subject of the certificate.

38 In this case the applicant's reason for wanting the information is so that he can strengthen his application before the Supreme Court by providing a statement from Ms S which would impugn Ms T' credibility.

39 Firstly, weight needs to be given to each of the factors listed in s 47(4) as a "fundamental element" in determining whether the applicant has an adequate reason for wanting the information. Each of those factors is considered below.

40 The policy does not allow consideration to be given to relationships other than familial or legal relationships such as solicitor/client and a person having a power of attorney. According to Mr Saleam, Ms S would have been married in about 1989, consequently the age of any relevant entry would be approximately 14 years. In my view, this factor is of no particular significance in this case because if the marriage took place, it occurred less than 50 years ago.

41 The content of the entry, if it exists, would be Ms S's married name and the name of her husband. If the record exists, the information it contains is obviously personal information relating to Ms S and her husband. The policy regards such information as more sensitive than the information in a birth or death certificate. However, as I mentioned above, it is difficult to see how that factor is relevant to the reason the applicant wants the information, as distinct from privacy considerations.

42 Other relevant factors include the actual reason for requesting the search. Although the policy mentions criminal law enforcement and other public policy considerations which outweigh privacy interests, the policy also allows for each case to be considered on its merits.

43 Mr Saleam's reason for requesting the information is a genuine one. He believes that Ms S's evidence may assist him to prove that he is innocent of offences for which he has been convicted. He has provided some evidence to support that belief. The respondent submitted that this reason is not adequate because all the Supreme Court needs to be satisfied of under s 474D is that "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." The respondent says that a doubt or question would not have to be based on legally admissible evidence, but could arise as a result of Mr Saleam's hearsay statements of his conversations with Ms S in 1988.

44 Proceedings under s 474D and s 474E of the Crimes Act 1900 are not judicial proceedings. It must appear 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. There is no requirement for legally admissible evidence to be the basis for an application. The applicant has no onus of proof, and all the Supreme Court must do is consider the application and take the action it considers appropriate.

45 If the Supreme Court determines, on the basis of all the information in Mr Saleam's application and submissions from the Crown, that further action should be taken, Mr Saleam may be in a position to summons documents from the respondent if those documents would serve a legitimate forensic purpose.

46 For these reasons, I do not consider Mr Saleam's reason for wanting the information to be adequate. Having come to that view, the correct and preferable decision is to refuse Mr Saleam's application. Consequently the respondent's decision, which has not produced an unjust result, is affirmed.