Mr Prime Minister John Piss The Family Court And Legal Aid and Minister for Foreign Affairs and Trade [2000] AATA 1028 (23 November 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 1028

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/1326

GENERAL ADMINISTRATIVE DIVISION )

Re MR PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID

Applicant

And MINISTER FOR FOREIGN AFFAIRS AND TRADE

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Mr C. Ermert, Member

Date 23 November 2000

Place Melbourne

Decision The Tribunal affirms the decisions under review.

(Sgd) Joan Dwyer

Senior Member

PASSPORT - refusal to issue passport in name used by applicant - cancellation of a passport issued in that name with minor amendment - whether applicant had changed his name to Prime Minister John Piss the Family Court and Legal Aid - exercise of discretion not to accept a name for inclusion in a passport if on reasonable grounds it may be considered offensive - whether names "Piss" and "Prime Minister" may on reasonable grounds be considered offensive - exercise of the discretion - decisions affirmed

Passports Act ss 7(1), 8(1), 8(1A), 8(1B), 11A(1) and 11(5)

Davies v Lowndes 1 Bingham NC 597[1835] EngR 643; , 131 ER 1247

Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2VR 391

Re T (An Infant) [1962] 3 WLR 1477

REASONS FOR DECISION

23 November 2000 Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Mr C. Ermert, Member

1. This is an application for review of two decisions made by a delegate of the Minister for Foreign Affairs and Trade relating to an application for a passport in the name "Prime Minister John Piss the Family Court and Legal Aid". The first decision made on 18 November 1998 affirmed a decision to cancel a passport issued in the name "Prime Minister John Piss Family Court and Legal Aid". The second decision made on 18 November 1998 affirmed a refusal to issue a passport in the name "Prime Minister John Piss the Family Court and Legal Aid".

2. We have decided to affirm the decisions under review.

3. The Tribunal has jurisdiction under s 11(5) of the Passports Act 1938 ("the Act") to review decisions defined in s 11A(1) of the Act as a "Ministerial decision". The definition includes decisions under s 7(1) of the Act refusing to issue a passport and decisions under s 8(1) to cancel a passport.

4. At the hearing Mr D. Perkins of Counsel appeared on behalf of the applicant and Mr M. Crennan of Counsel appeared on behalf of the respondent. The applicant gave evidence. The respondent called Dr Tollfree who is a linguist. The Tribunal, on the application of the applicant, decided not to hear evidence as to the substantive issues from Dr Silberbauer, a Social Anthropologist who had sworn two affidavits in this matter. The Tribunal heard evidence from Dr Silberbauer as to his expertise. The Tribunal concluded (trans. pp86-87):

We have decided that Dr Silberbauer's expertise is not such that it would be of assistance to the Tribunal in determining the issues before it. We in making that decision gave particular weight to his evidence that he had no expertise of naming in a modern post-industrial democratic society and his evidence ... that, as to what names are acceptable, what he had said was within the common knowledge of people in the street and he had no more knowledge of names in a multicultural tolerant diverse society than members of the Tribunal, so the Tribunal will not hear from Dr Silberbauer.

5. The Tribunal had before it the documents ("the T documents") numbered 1-19 and supplementary T documents number 1-5 lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.

background facts

6. The respondent in the s 37 statement in this matter provided a useful summary of the background facts. That summary is as follows:

...

2. The respondent, is responsible for the issue of Australian passports to Australian citizens.

3. On 19 March 1998 the applicant who claimed to have changed his name from John Zabaneh on 11 November 1997, applied at the Melbourne Office of Passports Australia for an Australian Passport in the name "Prime Minister John Piss the Family Court and Legal Aid".

4. On 16 April 1998, after discussions with the applicant in which he was advised that the word "The" would be dropped from the surname, a passport was issued in the name of "Prime Minister John Piss Family Court - Legal Aid (passport number L6310369).

5. On 28 August 1998 the applicant requested written advice as to why the passport has not been issued with the word "The" in the title.

6. By letter dated 29 August 1998 Robert Luton, advised the applicant that the word "The" completed a selection of words that taken together were considered offensive by Passports Australia.

7. By letter dated 28 September 1998 the applicant wrote to Mr Luton requesting a review of this decision.

8. On 15 October 1998 a decision was made pursuant to section 8(1) of the Passports Act 1938 to cancel the applicant's passport (passport number L6310369) on the basis that the name "could reasonably be considered offensive in that it contains an expletive and that it contains a title not legitimately acquired".

9. By letter dated 21 October 1998 the applicant was informed of the cancellation decision.

10. By letter dated 21 October 1998 the applicant was informed that as the passport had been cancelled this effectively removed any purpose in continuing the review of the decision not to issue him with a passport in the name "Prime Minister John Piss The Family Court and Legal Aid".

11. By letter dated 30 October 1998 the applicant advised that he had not been informed of the decision to cancel his passport (because the letter to him was addressed to John Zabaneh).

12. By letter dated 31 October 1998 the applicant reiterated his request for a review of the decision refusing him a passport in the name Prime Minister John Piss the Family Court and Legal Aid.

13. By letter dated 18 November 1998 the respondent advised the applicant that the decisions had been reviewed and that the decisions had been affirmed.

14. The Applicant then applied to the Administrative Appeals Tribunal for review of the decisions on 24 November 1998.

Legislative Scheme

7. Section 7 of the Act provides as follows:

7. (1) Subject to the regulations, the Minister or an officer authorized in that behalf by the Minister may issue Australian passports to Australian citizens.

(2) Australian passports shall be issued in the name of the Governor-General and shall be in such forms as are approved by the Minister.

(3) The exercise by an authorized officer of a power under this section is subject to any directions of the Minister and to sections 7A, 7B, 7C, 7D and 7E.

(4) The Minister is not entitled to refuse, or to direct an authorized officer to refuse, to issue an Australian passport except:

(a) in circumstances in which, under section 7A, 7B, 7C, or 7D, an authorized officer is prohibited from issuing a passport unless directed otherwise by the Minister or by a person specified for the purpose in the relevant section; or

(b) in circumstances where the Minister may notify an authorized officer under sub-section 7E (1) that an Australian passport is not to be issued.

(5) Where the Minister or an authorized officer makes a decision under sub-section (1) refusing to issue a passport, the Minister or an authorized officer shall cause to be served, either personally or by post, on the applicant for the passport a notice in writing setting out that decision and the reasons for that decision.

8. As to the refusal to issue a passport to the applicant, the respondent does not contend that ss 7A, 7B, 7C, 7D or 7E are relevant to this matter. The respondent relies on Regulation 4 of the Passports Regulations 1939 and paragraph 325 of the Manual of Australian Passports Issue ("the Manual"). Regulation 4 provides:

4. The exercise of any power or function of an authorised officer under these Regulations shall in all cases be subject to any directions of the Minister.

Paragraph 325 of the Manual provides:

An Authorised Officer has discretion not to accept for inclusion in a passport any name, whether acquired by Deed Poll or by reputation, which, on reasonable grounds, may be considered offensive. This discretion may be applied to names which are considered offensive because they contain expletives or racial and/or ethnic slurs or implications, and to cases in which applicants purport to use Royal Titles or Titles of Nobility which have not been legitimately acquired.

9. The Minister's power to cancel a passport is found in s 8(1) of the Act. It provides:

An Australian passport, whether in the possession or custody of the person to whom it was issued or otherwise, may be cancelled by the Minister, an approved representative or the approved senior officer, and a passport on being cancelled under this subsection becomes void.

Subsections 8(1A) and 8(1B) set out specific circumstances in which Australian passports may be cancelled. Neither of those sub-sections is applicable here, but they both commence with the words, "without limiting the generality of sub-section (1)". Thus there is a wide power to cancel.

10. The reasons for the Ministerial decision were set out in paragraph 14 of the delegate's letter of 18 November 1998 as follows:

In my opinion, the authorised officer was mistaken in issuing you a passport in the name "Prime Minister John Piss Family Court - Legal Aid", as the name: (i) contains an expletive ("Piss") and (ii) contains an official title not legitimately acquired ("Prime Minister"). On the latter point, I note particularly that a passport is a travel document endorsed by the Australian Government and remains at all times the property of the Australian Government. Issuing a passport in a name such as "Prime Minister John ..." could lead to confusion when presented overseas. These considerations are not resolved by whatever legitimacy could be granted to the use of such a name by the Australian Taxation Office and your use of it for other purposes (eg in relation to bank accounts). Although paragraph 325 of the Manual of Australian Passports Issue does not specifically mention official titles, it is clear that the examples given (concerning Royal or Noble titles) do not limit the general discretion granted in that paragraph. Furthermore, the misuse of official titles of the Australian Government in Australian passports is a matter as serious as the misuse of Royal or Noble titles.

The Issues

11. There are two substantive issues requiring consideration. The first is whether the name in which the applicant seeks to have a passport issued is in fact his name. The second is whether, if that is his name, the discretion in paragraph 325 of the Manual should be exercised, not to accept a name for inclusion in a passport.

(a) Has the applicant changed his name to Prime Minister John Piss the Family Court and Legal Aid?

12. The application of the legislation is somewhat unusual in that s 7(1) and s 7(4) combined give the impression that an Australian citizen is entitled to the issue of an Australian passport unless ss 7A, 7B, 7C, 7D or 7E apply. It was not contested by Mr Perkins that the right of an Australian citizen to a passport is subject to him or her establishing that the name in which the passport is sought is in fact his or her name. The respondent has at all times been prepared to issue the applicant with a passport in the name of John Zabaneh, which name he adopted by Deed Poll on 31 July 1972 (T8(b) p 26). Thus the first issue is whether the applicant has in fact changed his name to the name in which he applied to have the passport issued.

13. The applicant has not registered his most recent change of name. He claims that he has changed his name by repute or usage. Such a method of changing a name is recognised by s 30 of the Births, Deaths and Marriages Registration Act 1996 (Vic). The T documents contain a number of documents submitted by the applicant to the respondent as evidence that he now uses the name Prime Minister John Piss the Family Court and Legal Aid. They include a Statutory Declaration to that effect dated 11 November 1997 (T8(c) p27) and a Statutory Declaration dated 16 January 1998 made by the applicant authorising the abbreviation of his name to "John Piss Family Court - Legal Aid" due to character limitations in the Australian Taxation Office computer system, and to the fact that edits built into that computer system will not allow the name "Prime Minister" (T8(d) p29). There is a tax file number advice in the abbreviated form (Tdocs p33).

14. The T documents also contain photocopies of a National Bank Bankcard and a Library Card in the names "PMJ Piss the Family Court and Legal Aid", and "PMJ Piss Family Court and Legal Aid", respectively. There are also a Telstra account in the full name except for a typographical error whereby the word "Misiter" appears instead of Minister (Tdocs p 31).

15. During the hearing Mr Perkins tendered copies of the following additional cards of the applicant:

* Drivers licence: PISS FAMILY COURT-LEGAL AID

* Medicare: PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID

* RACV Extra Card: MR P M PISS THE FAMILYCOURTANDLA

* Commonwealth Bank Keycard: P M J PISS FAMILY COURT

* National Bank Visa Card: PISS FAMILY COURT

16. Mr Perkins also tendered (Ex. A1) an extract from the Electoral Pocket Book for the 1998 Federal Election showing that the applicant stood as a candidate for Bennelong using the name Prime Minister John Piss the Family Court and Legal Aid, and that he polled 183 votes out of a total enrolment of 83,725 or 0.24% of the vote. Mr Perkins also tendered copies of a number of newspaper articles referring to the applicant as one of a number of candidates standing in Bennelong. However there is also evidence before the Tribunal that the Electoral Officer for the State of Victoria has refused to enrol the applicant on the Victorian State Electoral Roll in the name Prime Minister John Piss the Family Court and Legal Aid (T docs pp 190-191).

17. The evidence does show that the applicant has used the name Prime Minister John Piss the Family Court and Legal Aid as a candidate in an election and in other ways such as on bank and identification cards. He said, and we accept, that all his financial affairs are now conducted using that name.

18. The applicant was cross examined about his use of the name Prime Minister John Piss the Family Court and Legal Aid for other purposes. He said his friends call him "PMJ, Prime Minister . . . different names, whatever." (Trans 36). He said some of his friends still call him John, which was his former name. He said most telephone callers do not use his full name. He said he does not open correspondence addressed under his former name, but simply returns it to sender.

19. Dr Tollfree said that in her opinion the structure of the name used by the applicant tends to cause a processing problem for speakers and hearers. She referred to the evidence which shows that the name is frequently abbreviated or changed by those processing it as confirming that tendency. She said in her affidavit of 15 May 2000 that in her opinion the attempt to use the grammatical string of words used by the applicant "falls outside the empirically defined bounds of acceptable linguistic behaviour".

20. We accept that the name used by the applicant tends to cause a processing problem for speakers and hearers. But the fact that the name used by the applicant is difficult for hearers and speakers to process, does not in our view stop it being a name. The names of some people in our community are difficult to spell or pronounce but that does not stop them being a person's name. Mr Perkins in his written submission relied on Davies v Lowndes 1 Bingham NC 597[1835] EngR 643; , 131 ER 1247 at 1255 where Tindal CJ said:

And there is no necessity for any application for a royal sign manual to change the name. It is a mode which persons often have recourse to, because it gives a greater sanction to it, and makes it more notorious; but a man may, if he pleases, and it is not for any fraudulent purpose, take a name and work his way in the world with his new name as well as he can.

21. Mr Crennan, in his written submission, referred to the four steps set out by Slicer J of the Supreme Court of Tasmania in Informal v The Chief Electoral Officer (unreported, 18 February 1992) namely:

(i) the conscious decision to change,

(ii) the abandoning of all or part of an existing name;

(iii) the adoption of a new name or names;

(iv) becoming generally known by the new name.

22. We find, using the words of Buckley J in Re T (An Infant) [1962] 3 WLR 1477 at 1480, that the applicant has made "a conscious decision . . . that he wishes to change his name and be generally known by his new name." We find that he has satisfied each of the four steps set out in Informal. We also find that he has not done so for any fraudulent purpose. He has taken the name in which he seeks the passport and he may "work his way in the world with his new name as well as he can". It may cause difficulties to hearers, speakers and others who deal with the applicant, but he is free to use the name "as well as he can". We recognise a person's right to use his name to make a political statement. We do not understand on what basis Dr Tollfree said in paragraph 10 of her affidavit of 15 May 2000 "that the fact that the construction is a possible political slogan disqualifies it from recognition and acceptance as a name, from an empirical point of view."

23. We accept that a person may change his or her name by repute or usage. We find that the applicant has done so. The evidence is that he uses his assumed name for all business purposes. The fact that his friends may sometimes use other names, or call him "John" which is now his third name, does not satisfy us that he has not changed his name.

(b) Should the discretion in paragraph 325 of the manual be exercised not to accept a name for inclusion in a passport?

(i) Is the name "Piss" offensive?

24. Mr Crennan submitted:

The word "offensive" should be given its ordinary meaning and not that ascribed to it in the context of offensive behaviour in the criminal law.

He then set out two dictionary definitions of that word as follows:

The Macquarie Dictionary defines "offensive" as including so far as relevant:

"1. causing offence or displeasure; irritating; highly annoying.

2. disagreeable to the sense: ...

3. repugnant to the moral sense, good taste, or the like: insulting ..."

And the Shorter Oxford English Dictionary:

"... 2. Hurtful, injurious ... 3. Giving ... offence; displeasing; ...

25. The discretion not to accept a name for inclusion in a passport does not require a finding that a name is offensive. The discretion may be exercised where a name "on reasonable grounds, may be considered offensive". That is, referring back to the Macquarie dictionary definitions, which may cause "offence or displeasure" or be "irritating" or "highly annoying" or "repugnant to the moral sense, good taste, or the like" or be "insulting". Referring to the Shorter Oxford definitions the questions are whether the name may be "repugnant to ... "good taste, or the like" or "insulting".

26. The applicant relied on the decision of Harper J in Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2VR 391 as establishing that the use of the word "Piss" is not offensive (T8 p38-42). Mr Perkins in his written submission wrote:

The word "piss"

The word "piss" is in common use in film, on television, and in print. The fact, it is a fact, that the word may refer to the act of micturition, is completely irrelevant here where the context shows plainly, if not unequivocally, that no reference to micturition can be discerned in the name "Prime Minister John Piss the Family Court and Legal Aid". At most, it can be said that the existence of a plurality of a potential meanings of "piss", may heighten the discursive tension in the name.

27. Mr Crennan submitted that the use of the word "Piss", in the context in which it appears and on the document in which it is proposed to be used, may be considered offensive. He set out dictionary definitions as follows:

The Macquarie Dictionary definition of "piss" relevantly includes "1. to urinate". The Oxford English Dictionary relevantly includes "Not now in polite use ... to discharge urine ... ". Webster's Third New International Dictionary relevantly includes "urinate - usu. considered vulgar ...".

28. As to the applicant's reliance on Pell, a reading of the decision reveals that Harper J did find the exhibit in question offensive. He said at p393:

There can be do doubt that Mr. Serrano's work is deeply offensive to many Christians, as well as to many non-Christians who are offended at the offence given to others. The question is whether the court should intervene.

29. Those comments relate not to the use of the word "Piss" in the title of the exhibit in question, but to its nature. They are thus not directly relevant but certainly that decision is not authority for the view that the use of the word "Piss" in a name may not on reasonable grounds be considered offensive.

30. The issues before the Court in Pell were whether the work intended to be exhibited was indecent or obscene, or whether its publication would constitute a blasphemous libel. Harper J held that the words "indecent" and "obscene" are "associated more with lewdness than with blasphemy". He also held that in the absence of evidence showing that unrest was likely to follow the showing of the exhibit in question, he should not issue an injunction restraining the showing as to do so could be "to use the force of the law to prevent that which by the same law, is lawful." He did not consider any issues directly relevant to this matter.

31. This is not a situation like Pell where it was submitted on behalf of the National Gallery that those who found the exhibit "offensive, scurrilous and insulting" could accommodate their outrage by refusing to attend the exhibition. The evidence shows that bank officers, Tax office employees, local government and library staff and all sorts of people in their daily work may be obliged to speak to the applicant using his name. Those people may or may not find the requirement to use the expletive "Piss" offensive. But as Harper J said in Pell at p395, in Australia we live in a "multicultural, partly secular and largely tolerant if not permissive society".

32. However the situation is somewhat different when it is borne in mind that the purpose of a passport is that it is a travel document which is:

(i) endorsed by the Australian government and issued in the name of the Governor-General;

(ii) at all times the property of the Australian government;

(iii) used for travel not in Australia but in other countries which may not be "largely tolerant" or "permissive".

33. The applicant was asked why he chose to use the word "Piss" in his name. Mr Perkins objected to those questions and said that the name must be considered as a whole. We do not accept that it was not appropriate for the applicant to be asked why he chose to use particular words as part of the name he assumed in late 1997. The applicant said he chose the name to make a political statement asking the Prime Minister to abolish the Family Court. Mr Crennan put to him that the word "Piss" does suggest more than "simply abolish" (trans. p39). Mr Perkins objected and the applicant's cross-examination was substantially interrupted. When the applicant was asked again whether he thought the meaning of the word "piss" is "abolish", he replied (trans. p40):

Well, it has a number of meanings. Yes, this is the meaning I have taken it to be and it is commonly used - it has been commonly used. It is a commonly used term. It is not something that is restricted to this name, as you - - -

Is it your belief - I am not asking you to be a dictionary, but is it your belief and experience that the word "piss" is commonly used to mean abolish?---It's used in different forms and this is - that is my view, that in this instance I have used it to mean that - to have that meaning.

Is there any reason you did not use the word abolish?---I didn't think of it at the time.

34. We do not accept that the applicant used the word "Piss" to mean "abolish". That is not a recognised meaning of the word. It is a word used to indicate contempt in a "vulgar" and "not ... polite" manner. We do not accept that the applicant did not use the word "abolish" because he did not think of it at the time. He denied that the word was used to offer an insult to the Family Court (trans. p42) and said the word has "a humorous side to it" (trans. p41). We do not accept that evidence. We are satisfied that the words "Piss the Family Court" were intended by the applicant to be and are in fact insulting to and contemptuous of the Family Court.

35. We find further that the word "Piss" may on reasonable grounds be offensive to people obliged to use the applicant's name in relation to the processing of his passport as a travel document. The obligation to use a "vulgar" term "not now in polite use" may cause "offence or displeasure" to such people and may be "highly annoying" to them.

36. We find that the word "Piss", bearing in mind the relevant definitions, as the first word of the applicant's surname may on reasonable grounds be considered offensive. The fact that it is followed by reference to the Family Court and Legal Aid indicates that the word "Piss" is used as an expletive in the construction used by the applicant as his name. We find it may on reasonable grounds be considered offensive.

(ii) Are the "names" "Prime Minister" offensive?

37. Paragraph 325 of the Manual seems to give a wide definition to the word "offensive", by providing that it applies to cases where applicants purport to use titles which are not legitimately applied. The use of the words "Prime Minister" as names in a passport must be considered alongside the dictionary definitions of the word "offensive" set out in paragraph 24 of these reasons, to decide whether the use of those words may reasonably be considered offensive. The use of the words "Prime Minister" preceding the rest of a name could be misleading and confusing to hearers. Thus it could be "irritating" and "highly annoying". It could also "cause offence" or "displeasure" to the holders of such titles which "have ... been legitimately aquired". Similarly the assumed use of such titles could on reasonable grounds be considered "repugnant to ... good taste", and "insulting" to the holders of legitimately acquired similar titles.

38. The use of titles which are not legitimately acquired could also "on reasonable grounds be considered offensive" when the meanings in the Shorter Oxford dictionary are considered. It could be considered "hurtful" to the holders of legitimately acquired titles, and "injurious" to the people of the Commonwealth of Australia if it misleads people to believe that the applicant is the Prime Minister. It could also give offence to current and former Prime Ministers of this and other countries and could be considered "displeasing" by current and former Prime Ministers, and also by the electorate which has responsibility for electing a government and a Prime Minister.

39. The applicant's chosen name assumes a title which can only be given by the Australian democratic process. Some titles like "King" or "Queen" or derivatives of those names, are already accepted as names as the applicant demonstrated (see T8 pp34-36). Thus the use of those names, particularly as surnames rather than names preceding a first name is not likely to be misleading or "irritating" or "highly annoying". However the applicant did not produce evidence that the words "Prime Minister" are used as part of a name by anyone other than him.

40. We consider the use of the words "Prime Minister" as the first two words of a name may on reasonable grounds be considered offensive.

the exercise of the discretion

41. We have found that the name chosen by the applicant contains three words used by him as names which may on reasonable grounds be considered offensive. They are the words "Prime Minister" and "Piss". Paragraph 325 of the Manual gives an Authorised Officer or this Tribunal a discretion to decide that the passport should be issued without inclusion of those three names.

42. Bearing in mind that the purpose of an Australian passport is that it be used as a travel document in countries other than Australia, and that it has the endorsement of the Australian government we consider that this is an appropriate matter in which to exercise the discretion in paragraph 325 of the Manual. We decide that the three words which on reasonable grounds may be considered offensive should not be included in a passport.

43. The only application which the applicant has made is to have his passport issued in his full assumed name. We have decided that it was an appropriate exercise of the paragraph 325 discretion to decide not to accept for inclusion in a passport three of the words chosen by the applicant as names. The three words which we have found may on reasonable grounds be considered offensive are included in the full assumed name and also in the abbreviated form in which a passport was issued on 16 April 1998.

44. Both the decisions under review will be affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr I.L.G. Campbell, Member and Mr C. Ermert, Member

Signed: Anne O'Rourke

Associate

Date/s of Hearing 27 April, 26 June and 21 July 2000

Date of Decision 23 November 2000

Counsel for the Applicant Mr D Perkins

Solicitor for the Applicant Kuek & Associates

Counsel for the Respondent Mr M Crennan

Solicitor for the Respondent Office of the Australian Government Solicitor