Birth Registration and Birth Certificates: Report

1. Introduction

Background

1.1 Birth registration is a significant life event. The registration of a birth is the first step in the process of formal recognition of an individual by the state.

1.2 Obtaining a birth certificate is a further step in creating an individual’s civil law identity. A certificate can only be issued once a birth is registered. A birth certificate has been described as the ‘instrument universally recognised as the fundamental evidentiary document establishing personal identification’.^[1] Birth certificates are fundamental to our effective functioning as citizens in a developed society. Without a birth certificate, a person may not be able to take full advantage of their rights as a citizen. These rights include:

• enrolling at school^[2] or to vote

• obtaining a passport, a Medicare card (as an adult), driver licence or tax file number

• accessing various government benefits.

1.3 In short, birth registration establishes the legal identity of a child by recording their details on the state’s Register of Births, Deaths and Marriages (the Register). Documentation of this record is provided by the state in the form of a birth certificate.

1.4 Statistical evidence provided to the Commission suggests that timely birth registration occurs for the majority of members of the Victorian community.^[3] However, this is not the case across all sectors of society and barriers to registration may disproportionately affect our most vulnerable community members.

1.5 During consultations, the Commission heard accounts of the difficulties people have faced later in life when their birth was not registered or an application for a birth certificate was not made when they were a child.^[4] Reasons for the failure to register a birth, or apply for a certificate, were also discussed. The Commission was informed that some of the reasons for non-registration were:

• lack of awareness of the requirement to register

• poor understanding of the importance of registration^[5]

• cost of a birth certificate, hence delaying the birth registration itself

• mental illness, disability or birth trauma^[6]

• family violence concerns.

1.6 Disadvantaged background was a common theme for late registration or non-registration of a birth. The Commission also met with some young parents who expressed mixed views on the importance of registration. The issues raised during consultation will be discussed in this report.

History of the registration of births in Victoria

1.7 The civil registration of births has been required by statute in Victoria since 1853,^[7] and in all Australian states and territories since 1856.^[8] Prior to this date, churches were responsible for recording details of significant life events such as baptisms, marriages

and burials within their jurisdiction.^[9] Churches kept this information in church records

or parish registers.

1.8 The 1853 Act^[10] created the office of the Registrar of Births, Deaths and Marriages, and required the father or mother of any child born to notify,^[11] and further, register the birth,^[12] within 60 days or incur a penalty not exceeding £10.^[13]

1.9 The purposes of the Registry at the time were stated by the then Acting Registrar-General, W. H. Archer as:

• the prevention of future litigation and the protection of individual rights of property, through having a complete system of registration of births and deaths

• to develop an understanding of social questions relating to the duration of the life of the child and adult populations and to improve statistical records for the ‘general advantage of the inhabitants of Victoria’.^[14]

1.10 While the 1853 Act referred to the registration of all children,^[15] Indigenous children

were often not registered. In rural areas, the birth of an Indigenous child was more likely to be recorded in mission or station records.^[16] There may have been many factors influencing the non-registration of Indigenous births, including fear of child removal policies of the time.^[17]

Fees

1.11 Once registration was complete, a deputy registrar granted an original birth certificate free of charge to those persons registering a birth.^[18] Fees imposed for searches and birth certificates were first set out in 1887.^[19] Fees for late registration were introduced

in 1892.^[20]

1.12 Fee waivers were introduced in 1952, when the Government Statist was given the power to remit the whole or any part of any fee where it would result in serious hardship.^[21]

Origins of this community law reform project

1.13 In 2009, the Castan Centre for Human Rights Law at Monash University (the Castan Centre) held a symposium on Indigenous birth registration and barriers to obtaining a birth certificate, bringing together academics and community legal centres.^[22] The Castan Centre was concerned about the number of unregistered births within Victoria, particularly in rural and remote areas where there are large Indigenous populations.

1.14 The Castan Centre speculated that the under representation of Indigenous people in birth registration figures may be due to factors such as:

• lack of confidence in dealing with authorities

• marginalisation or remoteness from mainstream services

• poor literacy levels

• affording low priority to birth registration.^[23]

1.15 To obtain further empirical evidence, the Castan Centre has embarked on a three-year research project examining Indigenous birth registration across four states and territories (Victoria, Queensland, Western Australia and the Northern Territory). This work is funded by an Australian Research Council linkage grant and is being conducted in partnership with eight organisations from a variety of sectors.^[24]

1.16 The Commission has examined birth registration in a broader context and has looked at whether the current laws and practices are efficient, effective and accessible to all members of the community, with particular reference to Indigenous people, culturally and linguistically diverse (CALD) communities, the disadvantaged, and vulnerable people.

1.17 The Commission is also aware of significant and valuable work over the last few years by the Victorian Registry of Births, Deaths and Marriages (the Registry) and the Department of Justice to improve the level of registration of Indigenous births and to help Indigenous people obtain birth certificates. The Commission has met with the Registry and the Department of Justice during this review to ensure this work is taken into account when developing recommendations. The work done by the Registry and the Department of Justice is to be commended.

Our process

Consultation paper

1.18 The Commission conducted preliminary research to identify issues in the law. This included an examination of the current law and practice in other Australian and international jurisdictions. The Commission then published a consultation paper in September 2012.

1.19 The consultation paper set out the Commission’s findings about the current law concerning birth registration and birth certificates in Victoria. It sought submissions on the law and on the questions posed in the paper.

1.20 The deadline for submissions was 1 November 2012. However, the Commission accepted a number of submissions after this date.

1.21 The Commission then undertook a number of consultations across Victoria and within metropolitan Melbourne. The Commission also spoke with agencies in other Australian jurisdictions, and met with individuals and groups who had been identified as having particular knowledge or experience in the area of birth registration and birth certificates. The Commission was also approached by individuals and groups who wished to be consulted.

Community responses╤submissions and consultations

1.22 The Commission received 13 submissions, all of which are available on its website and listed in Appendix A.

1.23 The Commission undertook 33 consultations across Victoria. A list of consultations and locations is provided in Appendix B.

1.24 The Commission travelled to the following regional and rural locations for consultation: the Hume region (Mooroopna, Shepparton and Wangaratta); the Mallee (Mildura and Robinvale); East Gippsland (Warragul, Traralgon and Bairnsdale) and the Wimmera (Horsham). In addition, the Commission visited a number of metropolitan locations including Flemington, Preston, Dandenong and Springvale.

1.25 The terms of reference for this project and the scope of the issues raised in the consultation paper required the Commission to consult with a wide range of stakeholder groups, including those from Indigenous and CALD backgrounds, as well as organisations representing vulnerable and/or disadvantaged groups. This included seeking the views of midwives and maternal and child health nurses, justice service centre staff and representatives of Indigenous and CALD organisations.

1.26 In addition, the Commission conducted a number of consultations with groups who may encounter difficulties with birth registration practices, including:

• teenage parents

• young people known to child protection and/or living in informal or kinship care

• newly arrived migrants

• members of the Indigenous community

• members of new parent groups run by local municipal maternal and child health services.

1.27 Finally, the Commission spoke on an informal basis with agencies that have specific knowledge and skills working with particular groups of people such as former wards of state and members of the Stolen Generations. They included: Open Place; MacKillop Family Services’ Heritage and Information Services; and Connecting Home Limited.

Structure of the report

1.28 Chapter 2 examines the law and practice relating to birth notification.

1.29 Chapter 3 examines the law and practice relating to birth registration in Victoria. This chapter also looks at selected law and practice in other jurisdictions. It draws on the consultations and submissions received and proposes legislative reform relating to the registration of births.

1.30 Chapter 4 examines the law and practice relating to obtaining a birth certificate. Again, this chapter draws on submissions and consultations to make recommendations for changes to the law in this area.

1.31 Chapter 5 discusses the cost of obtaining a birth certificate. This chapter examines the ability of the Registrar to remit a fee for a birth certificate, examines fees for birth certificates in other jurisdictions and makes recommendations for legislative and policy reform in this area.

1.32 Chapter 6 explores barriers to registering births and obtaining birth certificates for vulnerable groups. This includes those from CALD backgrounds and Indigenous people as well as more generally.

1.33 Chapter 7 examines the issue of awareness of, and access to, Registry services and makes recommendations for how these could be improved.

1.34 Chapter 8 is the conclusion of the report.

1. Melissa Castan, Paula Gerber and Andy Gargett, ‘Indigenous Australians’ Access to Birth Registration Systems: A Breach of International Human Rights Law?’ (2011) 17(1) Australian Journal of Human Rights 55, 56.

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2. In Victoria, it is common school practice to require a birth certificate to enrol a child at school. The Commission understands, however, that the requirement for a birth certificate is not mandated in Department of Education and Early Childhood Development (DEECD) policy or legislation. The DEECD public schools admission policy allows other documents to be submitted as proof of age and identity: Department of Education and Early Childhood Development (Victoria) Admission (3 April 2013) <http://www.education.vic.gov.au>.

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3. The Registry provided data to the Commission showing that from 75,417 birth notifications in 2011, some 2683 had not been registered (data as at 2 July 2012). This is discussed in detail in Chapter 3.

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4. This is discussed in detail in Chapters 3–6.

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5. Consultation 26 (Gippsland East Aboriginal Driver Education Program).

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6. Consultations 29 (Horsham Justice Service Centre); 30 (New Mothers Group, Connect Ed, Horsham College).

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7. Registration (Births, Deaths and Marriages) Act 1853 (Imp).

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8. Australian Institute of Aboriginal and Torres Strait Islander Studies, Birth, Death and Marriage certificates: Fact Sheet 5 (February 2001) 1 (AIATSIS).

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9. Ibid.

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10. Registration (Births, Deaths and Marriages) Act 1853 (Imp).

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11. Ibid s 8.

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12. Ibid s 9.

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13. Ibid.

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14. Victoria, Victoria Government Gazette, No 38, 6 July 1853, 943.

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15. The Act required only that the ‘father or mother of every child born in the said Colony’ provide particulars known of the birth to the Deputy Registrar within 60 days: Registration (Births, Deaths and Marriages) Act 1853 (Imp) s 9.

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16. AIATSIS, above n 8.

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17. John Chesterman and Brian Galligan, Citizens without Rights: Aborigines and Australian Citizenship (Cambridge University Press, 1997) 26.

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18. Victoria, Victoria Government Gazette, No 38, 6 July 1853, 943.

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19. Victoria, Victoria Government Gazette, No 122, 23 December 1887, 3848.

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20. Victoria, Victoria Government Gazette, No 105, 12 August 1892, 3263.

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21. Registration of Births, Deaths and Marriages Act 1928 (Vic) s 42, as amended by Registration of Births, Deaths and Marriages Act
    
    1952 (Vic) s 6.

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22. Castan Centre for Human Rights Law, Castan Centre Symposium on Birth Registration and Birth Certificates (2 August 2011)
    
    <http://www.law.monash.edu.au>.

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23. Castan, Gerber and Gargett, above n 1, 63.

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24. Partners include: Victorian Aboriginal Legal Service; Equal Opportunity Commission Western Australia; Department of the Attorney-General Western Australia; Plan Australia; Clayton Utz; Hills Community Support Group; Tangentyere Council, Alice Springs, Northern Territory.

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