Birth Registration and Birth Certificates: Report

4. Birth certificates

Current law

4.1 A birth certificate is an official document that outlines the particulars of a person’s legal identity. It is a document of the birth record and cannot be issued without the birth first being registered. Two of the objectives of the Registry are to provide for:

• access to information in the registers in appropriate cases by government, private agencies and members of the public, from within and outside the State;^[1] and

• the issue of certified and uncertified information from the registers.^[2]

4.2 The Birth, Deaths and Marriages Registration Act 1996 (Vic) (the Act) provides for the issue of a certificate confirming particulars contained in an entry, subject to the payment of a prescribed fee. The prescribed fee is set out in Births, Deaths and Marriages Registration Regulations 2008 (Vic) (the Regulations).^[3] At present the fee for a standard birth certificate in Schedule 2 of the Regulations is $28.60.^[4]

4.3 Victoria is not unique in charging a fee. All Australian jurisdictions charge a fee for a birth certificate, ranging from $26 to $50.

4.4 The Registrar has the power to remit the whole, or part, of the fee in appropriate cases.^[5] There are no publicly available guidelines or criteria that describe the attributes of an ‘appropriate’ case. Further discussion on fees in Victoria and other jurisdictions is contained in Chapter 5.

4.5 A birth certificate is admissible in legal proceedings as evidence of the facts recorded on it.^[6] Section 47 of the Act requires the Registrar to maintain a written statement of the policies on which information contained in the Register is to be given or denied to a person or agency requesting information. The Registrar must provide a copy of the statement to any person on request.^[7]

4.6 The Registry’s access policy is available on its website and contains advice on who may access restricted records,^[8] as well as the Registry’s requirements for access to be granted.^[9] It also notes that the Registrar may reject an application for access to a record if the applicant does not meet the requirements of the access policy.^[10]

4.7 The Act allows for a person whose interests are affected by a decision of the Registrar to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision.^[11] An application for review must be made to VCAT within 28 days of:

• the day on which the decision is made; or

• the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) that a statement of reasons will not be given.^[12]

Current practice

4.8 The majority of parents apply for a birth certificate for their child at the time of registration.^[13] An application for a birth certificate may also be made because a birth certificate has been lost, stolen or damaged, or a person may have only an extract of birth entry (if born prior to 1996) and require a standard birth certificate as proof of identity.

4.9 Birth certificates can be issued at any stage after the birth of a child is registered. The process for obtaining a certificate will differ depending on whether the application is made:

• at the same time as the birth registration statement is processed

• after the birth has been registered, but before the child turns 18

• when the applicant is an adult (over 18 years of age).

4.10 Registry identification requirements will vary depending on the stage at which the application is made. Essentially two types of birth certificate application are discussed in this chapter:

• the Part 2 application at the time the birth registration statement is submitted (Appendix C), and

• the birth certificate application form used in any other circumstance

(Appendix D).

4.11 The Registry provides a range of options for birth certificates. The types of certificate available at the time of registration include:

• a standard birth certificate (to be used as proof of identity)

• an abridged certificate

• a commemorative certificate.

4.12 A standard or abridged certificate can also be applied for at any time after registration by filling in the birth certificate application form (either hard copy or online). An application for a commemorative birth certificate can be made at the time of the birth registration and a standard certificate is issued at no cost. If a commemorative certificate is applied for at a later time, the same fee applies but no standard certificate is issued.^[14] (See Appendix D). Other types of birth certificate are also available but are not within the scope of this review.^[15]

4.13 While an extract of birth entry was previously sufficient for some identification purposes, this is no longer the case in Victoria or any other Australian jurisdiction.

4.14 All other state and territory registries issue standard certified birth certificates and commemorative uncertified certificates. The standard certificate is available separately and is the only version that is certified and therefore useful for identification purposes. The standard and commemorative certificates are available as a package for a prescribed fee (Appendix E).

4.15 Until August 2008 the NSW Registry issued a birth card.^[16] Birth cards were introduced as an alternative to a birth extract. However, they are no longer issued, as they are not considered an acceptable form of identification by other authorities. Those cards already issued remain valid until their expiry date. The cards carried the same information as a birth extract, along with a photograph and signature of the holder. The Department of Foreign Affairs and Trade (Commonwealth) notes that birth cards still in circulation should not be accepted after 1 August 2013.^[17]

Privacy and fraud prevention

4.16 When an application for a birth certificate is made at a time other than the registration of a birth, question 9 of the birth certificate application form asks the applicant to provide reasons for seeking the birth certificate (Appendix D).

4.17 The Registry has informed the Commission that for the purposes of audit, document verification and identity fraud prevention, an audit database is maintained by the Registry, which captures information relating to:

• the number of certificates issued from a record

• the type of certificate/s issued

• the date of issue

• the names and contact details of all people to whom a certificate/s has been issued.^[18]

4.18 The audit database also captures the reasons provided for the issue of a certificate, such as a lost or stolen certificate. The Registry has informed the Commission that where the Registry:

detects a pattern of frequently requested certificates or an external agency (Passport office, police or other enforcement agency) advises that the certificate is lost or stolen, the Registry places an alert on the record and refers the matter to its Identity Security Unit for further investigation.^[19]

4.19 If the nominated reason for the application is listed as a stolen certificate, the Registry may request confirmation by police report. No figures are available for how often confirmation requests are made. The application form further notes that:

If you do not provide all of the information requested, particularly that relating to the reason the document is required and your relationship to the registered person, then you may not be provided with a certified copy of the certificate.

4.20 The Commission understands that when deciding whether to issue a birth certificate, the Registry considers who the applicant is (in line with the access policy), their connection to the record and their reason for wanting the certificate.^[20]

Determining if the birth is registered

Personal searches of the Register

4.21 If a person is unsure whether their birth is registered, they are required to make an application for a birth certificate and attach certified copies of identity documents, as well as payment of the prescribed fee. At present individuals are unable to search the Register online.^[21]

4.22 There is currently no information on the Registry website advising how a person can go about finding out whether their birth has been registered. This is in contrast to the Tasmanian Registry which explains on its website how a parent can check whether their child’s birth has been registered.^[22]

4.23 On receipt of a birth certificate application, the Registry will conduct a search of the Register on the basis of the details provided.^[23] The scheduled fee for a search of the Register is $14.30.^[24] If no record is found matching the details provided, the Registry will inform the applicant accordingly.

4.24 In its submission to the Commission the International Commission of Jurists—Victoria noted that:

many people were finding negotiating the bureaucratic requirements for obtaining a birth certificate, conducting registry searches to find out whether their birth was actually registered (and under what name) and coming up with the prescribed fee, to be obstacles that were too difficult to overcome.^[25]

4.25 The Commission discusses the availability of an exemption from fees for birth certificate applications in Chapter 5. This discussion would also be relevant to a person seeking to establish whether they were registered, as this is essentially the first stage of an application for a birth certificate.

4.26 This issue is also discussed in more detail in Chapter 6, in relation to members of the Stolen Generations, former state wards and vulnerable groups.

Verifying registration to a third party

4.27 The Registry does not provide any documentation of the receipt of an application for registration, or of the registration itself, apart from the issue of a birth certificate.

4.28 If a person does not apply for a certificate at the time of registration, there is nothing provided to them that they can use to prove that the application has been made or that the birth has subsequently been registered.

4.29 The Registry will provide a letter of confirmation of the facts of a register entry on request.^[26] However, no information is provided publicly about this option. The Commission is unaware of whether a fee is charged for this service. The Commission has been advised that the Registry receives several requests each week for this type of confirmation, generally from agencies such as Centrelink, rather than from individuals.^[27]

4.30 The issue of a confirmation of registration was also raised during consultations,^[28] usually in the context of a requirement to supply proof of registration when applying for newborn payments from Centrelink.^[29]

4.31 Some consultation participants noted that the paper receipt given for the fee paid for the birth certificate application when lodged at the Registry or a justice service centre is often used for such purposes.^[30] However, in these cases, because a fee was paid, the person would have also intended to apply for a birth certificate. Where a child is registered without an application being made for a birth certificate, there is no fee payable and hence no fee receipt.

4.32 There would also be instances where a birth certificate was obtained at the time of registration but is not subsequently available to prove that the birth was registered. A person may wish to have a confirmation of registration without paying a fee to obtain a new birth certificate if the certificate has been lost or stolen. Similarly, where the birth certificate is temporarily unavailable, for example, in a domestic violence situation where one parent may be forced to flee without taking personal documents.

Commission’s view

4.33 The Commission notes that very few births are registered without an application for a birth certificate being made at the same time. Given that this is a rare event, the Commission considers that there would be minimal resourcing implications for the Registry to provide the applicant with automatic confirmation of receipt of the registration application at the time of registration.

4.34 In the vast majority of registrations, the birth certificate provides proof of registration and no further documentation is necessary.

4.35 For cases where a person or agency subsequently requires proof of registration, the current system of providing a letter on request appears to be a sufficient response.

4.36 However, the Commission is of the view that information about how to obtain such a letter should be more readily available.

4.37 The Commission is aware that the Registry intends to provide greater access to Registry services online in the future. It may be possible, for instance, for an individual to go online, and confirm their birth registration.

4.38 However, until this time, the Commission recommends that the Registrar, in circumstances where the applicant is not an eligible beneficiary (see Recommendation 13), should confirm the registration of the birth of a child where a birth registration statement is received without an application for the issue of a birth certificate.

Recommendation

8 Where the applicant is not an eligible beneficiary, the Registrar should issue an automatic confirmation of registration to the applicant, upon processing a birth registration statement, if no accompanying application for a birth certificate is received. This should occur until such time that it is possible to

go online and confirm birth registration.

The confirmation should be an uncertified document for the purpose

of acknowledging the registration of birth only.

There should be no fee payable for a confirmation of registration.

Obtaining a birth certificate at the time of registration

4.39 Parents do not automatically receive a birth certificate by submitting a birth registration statement.

4.40 In practice the birth registration application and birth certificate application can be undertaken at the same time. Birth registration statement application forms, which include the Part 2 application for a birth certificate, are given to new mothers prior to discharge from hospital. If a birth occurs outside a hospital, the forms are provided by the attendant midwife or medical practitioner.

4.41 Birth certificate applications made at the same time as the birth is registered do not require accompanying identification to be produced. However, a fee is payable with the application.

Obtaining a birth certificate for a child after the birth has been registered

4.42 If a child (or parent/legal guardian of a child) wishes to apply for a birth certificate after the birth has been registered, then three forms of identification must be provided with the application:

• list 1: evidence of link between photo and signature ^[31]

• list 2: evidence of operating in the community ^[32]

• list 3: evidence of current residential address.^[33]

4.43 If a person is under 18 years of age, and is unable to submit all three identity documents, a list 2 document can be a:

• Medicare card showing the child’s name

• current school report card or exam certificate.^[34]

4.44 The Registry has additional requirements for a person applying for a birth certificate on behalf of a child for whom they are not the parent or legal guardian, including providing reasons why that person seeks access to the restricted records.^[35] Further discussion of issues relating to access by third parties is provided later in this chapter.

Obtaining a birth certificate as an adult

4.45 If a birth certificate is required when a person is an adult, the requirements for identification are more stringent.

4.46 An application form must be submitted with certified copies of identity documents. Alternatively, original identity documents may be produced if the applicant attends a Registry customer service centre or a justice service centre in person. The form lists the identity documents required and sets out how to certify the identity documents. The Registry’s website provides further information about proof of identity documents.^[36]

4.47 Some people find obtaining identity documents to be a circular process. Some of the documents required to obtain a birth certificate (for example, a driver’s licence or passport) often cannot be acquired without first producing a birth certificate. In addition, having to provide proof of a current residential address on at least one piece of identification may pose problems for people who are homeless or have no fixed abode. The specific issues faced by vulnerable people are discussed further in Chapter 6.

4.48 The Registry notes on the application form for a birth certificate that a person unable to meet the proof of identity requirements may contact the Registry direct.^[37]

Community responses

The importance of a birth certificate

4.49 In previous chapters the Commission outlined that while birth registration is of primary benefit to the state, it is the birth certificate that is important to the individual. A number of submissions focused specifically on this issue. In its submission Legal Aid NSW noted that:

Lack of access to birth documents can have a significant impact on a person’s life, limiting their capacity to participate in family, cultural, social and economic activities, their access to employment opportunities and the likelihood that they will come into contact with the criminal justice system.^[38]

4.50 The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) argued that birth certificates are essential to the individual in order to exercise their legal rights, be recognised as a person before the law, and participate in vital activities in daily life.^[39] The Law Institute of Victoria (LIV) also highlighted this issue, stating that:

Birth registration and access to a birth certificate evidencing registration are fundamental to engaging with all aspects of our society and underpins a person’s ability, for example, to access government services and benefits, to obtain employment and pay taxes, to obtain a driver licence, to open a bank account, to marry and to apply for a passport. They can also impact native title rights.^[40]

4.51 Finally, the Castan Centre contended:

Modern life increasingly brings to the fore demands for the proof of personal identity. Life without a birth certificate is much harder today than it was in the past, and is a necessary adjunct to participation in many important aspects of life – education, participation in the financial system, personal mobility, participation in the work force, and access to a wide range of government services. Without a birth certificate a person’s life and horizons today are severely limited.^[41]

4.52 During consultation the Commission heard personal accounts of the practical and symbolic importance of a birth certificate. One such story is highlighted below.

Case study

A participant, a member of the Stolen Generations, explained that as a result of removal from his birth mother, and subsequent adoption and multiple name changes, he did not have his birth certificate (either original or amended). Obtaining a copy had been both difficult and traumatic for him.

The participant felt that his lack of a birth certificate presented both a practical and a symbolic barrier to his involvement in the community. The participant felt that a birth certificate was a way to feel a part of the community.^[42]

4.53 The Commission also heard of the experiences of disadvantaged young people without a birth certificate.

Case study

Students from the ConnectEd program in Horsham^[43] discussed the difficulties they faced in attempting to obtain a tax file number (TFN) from the Australian Taxation Office (ATO). The ATO’s proof of identity requirements state that a person must show a passport, certificate of citizenship or birth certificate as a primary document.^[44] Many vulnerable young people in the program had none of these. Often ConnectEd students did not possess a birth certificate due to parental disengagement or estrangement.^[45]

One student said they had been taxed at the highest, default rate, because they did not have a TFN.^[46] The consequences of not having a birth certificate went beyond the students’ inability to obtain a TFN. Some students also discussed their desire to apply for their learner driver permit. They were aware that lack of a birth certificate could prevent them from obtaining the permit.^[47]

4.54 The points raised in submissions and the case studies above illustrate the importance that a birth certificate plays in allowing a person to participate fully in the community. The following sections outline some of the barriers members of the community may face in attempting to obtain a birth certificate.

Barriers to obtaining a birth certificate╤proof of identity

4.55 During consultation a number of general barriers to obtaining a birth certificate were raised. Specific points such as the cost of a birth certificate and the methods of payment are discussed in Chapter 5.

4.56 The Registry’s stringent proof of identity requirements are founded in concern about identity fraud. However, proof of identity issues were one of the main barriers raised in consultations for people trying to obtain a birth certificate as a teenager or adult. The Castan Centre noted that applicants often struggled to satisfy the Registry’s requirements:

If people do not obtain a birth certificate at birth, or it requires later replacement, more onerous requirements for proof of identity of the person concerned arise.^[48]

4.57 As outlined in paragraph [4.42], the birth certificate application form (Appendix D) contains three lists from which an applicant must provide evidence. List 1 requires provision of an Australian passport, an Australian driver’s licence (or learner permit), an Australian firearm licence or an overseas passport. To obtain any of these documents in the first instance a birth certificate must usually be provided.^[49]

4.58 The form notes that the applicant can provide two documents from list 2 if unable to provide a document from list 1.^[50]

4.59 The Castan Centre noted that:

Items included in the first list all ultimately require that the person concerned has previously possessed a birth certificate. Items in the second list generally, though not always, also require that the person concerned has previously been issued with a birth certificate. Items in the third list require that the person concerned possess a fixed place of abode.^[51]

4.60 The Castan Centre submitted that there are some inconsistencies on the form that make it confusing. They note that the large print on the form states that an applicant must provide three identity documents, one from each of the three lists. This instruction is contradicted by information under the three defined lists that states that two items from list 2, and one from list 3 may be acceptable if no item from list 1 is available.^[52]

4.61 The Castan Centre suggests that people may be deterred well before reaching the information about alternative options. The Castan Centre suggests redesigning the form, to show at the start of the relevant section that there are other options.^[53]

4.62 During consultations, the Commission heard that difficulties with proving identity often affect vulnerable and/or disadvantaged groups disproportionately. The Mildura justice service centre, for example, noted that disadvantaged people often have less documentary identification and so struggle to meet requirements for 100 points of identification.^[54] Consultation participants noted that this often becomes a circular problem when the person is also attempting to obtain a copy of their birth certificate.^[55]

4.63 Participants involved with the Gippsland East Aboriginal Driver Education Program suggested that more could be done to impress on people the importance of registering a birth and obtaining a birth certificate at the time of birth.^[56] Likewise, the convenor of a young parenting group commented that young people can become discouraged about applying for a birth certificate due to the ‘hurdles that need to be jumped’.^[57] Often the young parent(s) themselves do not have a birth certificate.^[58]

4.64 The Castan Centre suggests that onerous proof of identity requirements may do more harm than good, impeding more important public aims:

Proof of identity is demanded increasingly frequently in contemporary Australian society. While birth certificates obviously provide one generally effective means of satisfying such needs, in many bureaucratic situations other forms of documentation may be equally appropriate. Government administrative policies and practices should require no greater “proof” than the situation demands, and, where possible, a wide range of alternatives should be accepted, particularly where Indigenous or other CALD groups are concerned.^[59]

Commission’s view

4.65 The Commission considered an alternative approach that the Registry could employ to address the barriers faced by some people in meeting the proof of identity requirements.

4.66 The Commission notes the Medicare Australia’s No ID—No Worries program for Indigenous people provides a flexible approach to proving identity. The Aboriginal and Torres Strait Islander Medicare enrolment and amendment form provides for an approved referee to certify identification documents (if mailing the form). If a person is unable to produce the required proof of identity documents, the approved referee can fill in the proof of identity section on behalf of the applicant.^[60] The approved referee provides a statutory declaration to verify the person’s identity.

4.67 While the Commission acknowledges the steps taken by the Registry to ensure the privacy of the data held on its Register, it feels that the Registry could consider alternative methods for vulnerable or disadvantaged groups to satisfy the proof of identity requirements.

4.68 The Commission recognises that the issue of identity fraud is of greater significance to the Registry than it possibly is for Medicare, given that a birth certificate is a primary identification document. For this reason, while acknowledging the difficulties some people face, the Commission considers that on balance the need for protection against identity fraud requires the Registry to continue to require a high standard of proof of identity before it will issue a certificate.

4.69 The Commission does, however, consider that some minor amendments to the birth certificate application form (including the online birth application facility) could make the requirements clearer, particularly the alternative requirements that apply if no identity document from list 1 is available.

Recommendation

9 The Registrar should consider improving the presentation of the proof of identity section of its application for a birth certificate. In particular, the application should make it clear to applicants that other options are available if they do not possess a list 1 identity document.

Barriers to obtaining a birth certificate╤certification of identity documents

4.70 Copies of identity documents must be certified before they are submitted to the Registry by post along with the application for a birth certificate. The documents must be certified by a sworn police officer or a justice of the peace (JP) located in a police station.^[61] The requirement to certify copies of identity documents was raised in consultations and in submissions as a barrier to obtaining a birth certificate.

4.71 Some members of the Indigenous community and other vulnerable people who may have had involvement with the criminal justice system find this requirement confronting.

4.72 During consultation, several participants noted that vulnerable groups are often fearful of attending a police station. In the case of the Indigenous community, it was noted that some may be hesitant to enter a police station due to previous experiences with police, current outstanding police matters or anxiety about past government practices. ^[62] In their submission, VANISH explained that former wards of state and Forgotten Australians also found this requirement to be an obstacle to obtaining a birth certificate for similar reasons.^[63]

4.73 The LIV also expressed concern that the requirement for police to certify copies of documents may pose a barrier for other vulnerable groups, noting:

that the vast majority of Victorians continue to be required to attend a police station to have copies of identity documents certified by police officers prior to applying for a certificate. The requirement to attend a police station is problematic, because often disadvantaged communities mistrust authorities based on their past experiences and interactions. In our view the Registry’s certification requirements are overly narrow and unnecessary and create a barrier for access to some vulnerable groups in Victoria, including Aboriginal and Torres Strait Islander people.^[64]

4.74 Other submissions also supported this view.^[65] It was further noted that the requirement that a JP be located in a police station was unnecessarily restrictive.^[66] The Castan Centre argued that the Registry places more stringent constraints on the certification of copies of identity documents for the purpose of obtaining a birth certificate than other Australian jurisdictions, discussed further below.^[67]

4.75 In the last couple of years the Registry has broadened the category of people who can certify copies of identity documents to include justice service officers located in selected justice service centres.^[68] The application form notes that if submitting in person:

You must bring your original identity documents or certified photocopies with your application and submit them at our Melbourne Customer Service Centre or at selected Justice Services Centres. To find your nearest JSC, visit www.bdm.vic.gov.au/jsc.

4.76 This enables an applicant to bring in their application form and original identity documents in person, and avoids the applicant having to provide pre-certified copies by a sworn police officer.

4.77 While the roll-out of Registry functions in selected justice service centres across Victoria will go some way to addressing the barriers identified above, the requirement to have photocopies certified may still pose difficulties for people living in regional and remote areas who do not have access to a justice service centre.

4.78 The birth certificate application form (Appendix D) does not list the locations of current justice service centres but refers people to the Registry’s website. This is not helpful for those without internet access and also requires a further step to be taken by the applicant.

4.79 The Commission was also informed that the presence of community correctional services and sheriff’s operations in justice service centres may pose a barrier for some people attending the centres.^[69]

4.80 The Commission notes that most other state and territory registries permit notaries public and legal practitioners to certify proof of identity documents, in addition to sworn police officers and JPs.^[70] The South Australian and Tasmanian Registries of Births, Deaths and Marriages do not require copies of proof of identity documents to be certified in order to apply for a birth certificate. It was suggested in consultations that the differences in registry requirements cause confusion for some people who are transient or live in cross-border communities.^[71]

4.81 It was also noted in one submission that the Commonwealth Department of Immigration and Citizenship has less restrictive certification requirements than the Registry, and lists a broader group of people who may certify documents in support of an application for Australian citizenship.^[72]

4.82 There was considerable support for broadening the category of people who can certify copies of documents for birth certificate applications. The LIV submitted that:

while we acknowledge the Registry’s concern to prevent identity fraud, and the need for stringent measures to confirm the identity of persons seeking access to certificates, we submit that risks can be adequately mitigated by broadening the class of persons authorised to certify documents to appropriately qualified persons. The class of persons might include those authorised to certify documents by other state and territory Registries, including legal practitioners.^[73]

4.83 The Castan Centre expressed similar sentiments, particularly in relation to the barrier this issue presents to the Indigenous community in that it:

is problematic given the widely recognised dysfunctional relationship between some Indigenous people and the police. There seems to be no reasonable explanation why lawyers and others who are recognised as being fit and proper persons to witness affidavits and other legal instruments could not also be authorised to certify copies of identification documents for the BDM Registrar’s purposes.^[74]

4.84 Members of the East Gippsland Shire Council, Mission Australia and others involved in the Gippsland East Aboriginal Driver Education Program suggested that in order to further assist people, particularly local Indigenous people, the Registry could re-examine its criteria for certifying documents. They felt that this could be broadened to include, for example, school principals, heads of organisations, chief executive officers of co-ops, medical practitioners and lawyers.^[75]

4.85 Link-Up Victoria suggested that having a justice of the peace available at an Aboriginal Trust office to certify documents would be a good alternative to requiring that a person attend a police station.^[76]

4.86 The Castan Centre recommended that the list of approved person should be brought into line with those who can witness statutory declarations, which is the approach taken in other jurisdictions.^[77] If this list was considered too broad, the Castan Centre recommended that the list be extended to include those able to witness affidavits pursuant to section 186 of the Evidence Act 1995 (Cth).^[78]

4.87 During consultation the Commission heard examples of innovative practice in the Lake Tyers area, where on occasion the local police would certify copies of documents on their regular visits to the Lake Tyers Aboriginal Trust for people who were unable, or unwilling, to attend a police station.^[79] This had the added benefit of helping people who were unable to drive or did not have a driver’s licence.^[80]

Commission’s view

4.88 The Commission considers that broadening the category of people who can certify copies of proof of identify documents for the purpose of obtaining a birth certificate is warranted. The Commission is of the view that this measure would address some of the most significant barriers faced in obtaining a birth certificate.

4.89 The Commission supports the suggestion put forward by the LIV, the Castan Centre and Liberty Victoria that the category of people empowered to certify proof of identity be extended. The Commission is of the view after consideration of the options proposed, that the category of persons should be extended to include those authorised to witness affidavits pursuant to section 123C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). This would include legal practitioners able to certify copies of identity documents,

a recommendation of both the LIV and Liberty Victoria.

4.90 The Commission recommends this approach as opposed to, for example, the list of people who can witness statutory declarations pursuant to section 107A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), as it is more limited.^[81] This position may provide a compromise between extending the list more broadly and addressing the very real concerns of the Registry in terms of identity fraud.

4.91 The Commission considers that this is a practical solution and a first step in making the process more accessible to vulnerable groups within the Victorian community.

Recommendation

10 The Registrar should broaden the category of people authorised to certify copies of proof of identity documents for the purposes of obtaining a birth certificate to include those authorised to witness affidavits pursuant to section 123C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).

Access to birth certificates for children in, or who have recently left,
out-of-home care

4.92 A birth certificate may be required for a child who is currently subject to a protection order,^[82] a child who is currently subject to a protection order in out-of-home care, or who has been placed in an informal care or voluntary care arrangement, such as a childcare agreement, by the Department of Human Services.^[83] A birth certificate may also be required for a child on a permanent care order, ^[84] or a young person who has recently left care (up to the age of 21).^[85] A birth certificate may also be required on behalf of a child in care by:

• the Secretary of the Department of Human Services

• a community service (for example an out-of-home care service) as the delegate of the Secretary, or^[86]

• a suitable person^[87] (such as a kinship carer).

4.93 The reasons a custodian or carer may have for requiring a birth certificate on behalf of a child in their care include immunisation, enrolment at child care or school, overseas or interstate travel (for example, a passport application), an application for a learner driver permit, or an application for a tax file number.

4.94 A custodian or carer may face difficulties in obtaining the consent of one or both parents to apply for a birth certificate for a child subject to a child protection order.^[88] While for most purposes the department or agency may rely on the court order or other supporting documents to demonstrate custody arrangements, in some situations a birth certificate may still be required (for example, a passport application). The type of protection order the child is subject to will determine who can apply for the birth certificate on the child’s behalf.

4.95 A birth certificate is a ‘crucial document for young people to prove their identity’^[89] especially when a young person is leaving care. While the Secretary of the Department of Human Services has responsibilities under the Children, Youth and Families Act 2005 (Vic) to provide or arrange for the provision of services to assist a young person up to the age of 21,^[90] this is dependent on an assessment of need and is not automatic.^[91]

4.96 In preparation for a young person’s departure from care, the care-provider will usually try to obtain a range of identity documents on behalf of the child. The idea of portable personal records, or a ‘backpack’ of identity, collated for children in care was the subject of a recent multi-agency research project examining archiving and record-keeping for children in out-of-home care in Victoria.^[92]

4.97 A birth certificate can also play an important role in contributing to a child in care’s feelings of belonging and identity. It can be an integral component of the development of a cultural support plan for an Indigenous child.^[93]

4.98 Where an application for a birth certificate is made by a government department, welfare agency or carer, the Registry will consider the application on a case-by-case basis, in accordance with the Act and Registry access policy.^[94] The Registry has informed the Commission that in exercising this case-by-case discretion the Registrar considers the best interests of the child.^[95]

4.99 The Commission understands that when a child who has previously been in out-of-home care applies for a birth certificate they will be subject to the same statutory fees as any other applicant.^[96] Where the department or agency is the applicant, the Commission understands that it will meet the cost of the birth certificate on behalf of the child. For example, the Commission was advised that MacKillop Family Services will pay the fee for a birth certificate on behalf of its clients.^[97]

Commission’s view

4.100 The Commission notes the critical role a birth certificate plays in helping form a child’s personal identity as well as providing proof of identity for a range of purposes.

4.101 The Commission notes that young people leaving care arrangements will often be economically disadvantaged and likely to be experiencing other forms of disadvantage as well. In Chapter 5 the Commission considers the issue of the development of fee waiver criteria, including what categories of individuals may be considered ‘appropriate cases’ for the purpose of a fee waiver. This chapter also discusses the introduction of an exemption from the payment of fees for people who hold a health care card or pensioner concession card. As research has demonstrated, young adults who have left out-of-home care will often encounter greater levels of financial difficulty including higher levels of unemployment and other disadvantaged outcomes.^[98] Therefore, young people who have left out-of-home care may be entitled to a fee exemption if they possess one or other of the Commonwealth concession cards.

Access to birth certificates for former wards of state and persons in institutional care

4.102 Former wards of state are people who grew up in state care prior to 1986.^[99] These people were the legal responsibility of the state and lived in orphanages, children’s homes or foster care arrangements.^[100] They are often referred to as Forgotten Australians.^[101] Some wards were adopted out to families while others remained in state care until they came of age.^[102] Child migrants (known as Lost Innocents) and Indigenous children removed from their parents (known as members of the Stolen Generations) were often also made wards of state or were placed in institutional care.^[103]

4.103 Two issues were raised during consultations which related specifically to this group of people and access to birth records, but which the Commission has not considered in the report. The first issue was access to information on the Register about a former ward of state’s mother and/or siblings.^[104] The second was access by adoptees to their original birth certificates held by the Department of Human Services.^[105]

4.104 The terms of reference for this review aimed to address the legal and practical barriers faced by individuals who do not have a birth certificate. While the Commission notes the importance of the issue of access to original birth certificates for past adoptees and access to birth certificates of family members for former wards, both are outside our terms of reference and therefore not discussed further in this section. The Commission thanks the community for the submissions received on these issues.^[106]

4.105 Many former wards of state have limited access to information about their history and family background, and consequently often face difficulties in applying for a birth certificate. Without the knowledge of their past (former wards may have had their names changed), they cannot always fill in an application for a birth certificate without first undertaking research and/or using the services of support agencies such as Open Place and Link-Up or through contacting the Family Information Networks and Discovery (FIND) service located within the Department of Human Services. The Commission was advised by the Department of Human Services that:

FIND do not directly assist former wards of state to access their birth certificate from the Registry. However, some information contained in records accessed through FIND may assist some former wards of state to confirm their birth details or birth surname.^[107]

4.106 FIND assists people to access personal and family information, records and support about past adoption and wardship.^[108] Open Place or Link-Up may act as an intermediary for a former ward of state in contacting FIND, or they may contact FIND directly.^[109] Approximately 1200 requests are received each year from former wards of state and adopted people wishing to access their past records.^[110]

4.107 Access to birth information and information about family history for former wards of state generally falls under the Freedom of Information Act 1982 (Vic) (FOI Act). There is no specific legislation governing access to information for former wards, unlike for adoptees, for whom the Adoption Act 1984 (Vic) provides specific rights to information.^[111]

4.108 Specific issues raised by consultation participants included:

• obtaining sufficient information to fill in a birth certificate application form for themselves, if they have no details of their parents ^[112]

• difficulty satisfying Registry proof-of-identity requirements.^[113]

Commission’s view

4.109 The Commission deals in Chapter 6 with issues related to the need for multiple registry searches for people who do not know their family background, and the registry requirements around proof of identity.

4.110 Further, the Commission notes that, as previously discussed, young people leaving care arrangements and former wards of state will often be economically disadvantaged and likely to be experiencing other forms of disadvantage as well. In Chapter 5 the Commission considers the issue of establishing criteria for exemption from the payment of fees for birth certificate applications. Chapter 5 also considers the application of the fee waiver power and suggests that members of the Stolen Generations, young people who have recently left out-of-home care, former wards of state and people raised in institutional care may be individuals considered to be ‘appropriate cases’ for the purpose of a fee waiver.

Commemorative certificates

4.111 A commemorative certificate is not a legal document and cannot be used for official purposes or as a recognised proof-of-identity document. Rather, commemorative certificates are documents that:

celebrate a child’s birth and help preserve family history in a unique and lasting way.^[114]

4.112 A commemorative certificate is currently available as a special offer to parents registering the birth of their child.^[115] The offer includes a commemorative certificate and a standard birth certificate for the cost of $46.00 (instead of the standard $28.60). The birth registration statement form states that when ordering a commemorative certificate the applicant will receive a standard certificate at no extra cost and that:

If you are not satisfied with your commemorative certificate, return it to the Registry and the purchase price will be refunded within 14 days of receipt.

4.113 If an applicant wishes to keep the standard birth certificate then a refund is granted minus the cost of the standard certificate ($17.40 refund). Standard postage is included with a commemorative certificate. Postage is not included if ordering a standard or abridged certificate only.

4.114 During consultations it was noted that commemorative certificates are a popular option that are felt to celebrate the birth of a child.^[116] However, there was some confusion about whether a commemorative certificate could be used as proof of identity.^[117]

4.115 The Commission was informed that some people, particularly from CALD backgrounds, may choose the commemorative certificate as they see it as having a higher personal value than the standard certificate. It was reported that often these groups do not appreciate that the commemorative certificate cannot be used for official purposes.^[118] In recognition of this problem, one justice service centre advised that when receiving a birth registration statement over the counter, they routinely point out to applicants that a commemorative certificate is not a legal document.^[119]

4.116 While acknowledging that the birth registration statement does say the commemorative certificate cannot be used for official purposes, some participants felt that the way the birth registration statement portrays the commemorative certificate is problematic.^[120] Some argued that the certificate was displayed more prominently than the standard certificate and did not specify clearly enough what purpose, if any, it served.^[121] The Castan Centre indicated that the statement:

provides little information about the critical importance of possession of a standard birth certificate in a child’s future life. It appears to prioritise the marketing of various forms of commemorative ‘certificates’ (of no practical use) over the only certificate that really matters in practical terms – the standard birth certificate.

4.117 Further, the North Melbourne Legal Service noted that:

Commemorative birth certificates are listed prior to the standard birth certificate. Commemorative birth certificates are more expensive than standard birth certificates. Standard birth certificates are considered official documents. We submit that the standard birth certificate should be listed first and the form should make it clear that this is the official document required for the purposes of applying for a passport, etc. For example, the list could state “standard birth certificate (required as an official document/proof of identity document)”. ^[122]

4.118 The Castan Centre agreed with this approach noting:

The birth registration and certification form should clearly differentiate between the sale of commemorative ‘certificates’ and the provision of the most fundamental document of identification for Victorians, i.e. the standard birth certificate.^[123]

Commission’s view

4.119 The Commission recognises the popular nature of commemorative certificates and considers that in offering them, the Registry is providing a product which the community has embraced.

4.120 However, given the views expressed in consultations and submissions, the Commission believes that more could be done to inform applicants of the uses of the commemorative and standard birth certificates. For example, the birth registration statement should clearly state that the standard birth certificate is the only document that can be used for official purposes, and this certificate should be the first one referred to in the birth registration statement.

Recommendation

11 The birth registration statement should more clearly state that the standard birth certificate is the only document that can be used for official purposes, and this certificate should be the first one referred to in the birth registration statement.

Abridged certificates

4.121 An abridged certificate is similar to a standard birth certificate, but it does not include the age, occupation or relationship status of the parents. The Registry notes on the birth registration statement that:

You [the applicant] should check with the authority requesting the birth certificate to confirm whether an abridged birth certificate is acceptable. This certificate is not accepted as a proof of identity document when applying for an Australian passport.^[124]

4.122 During consultation, participants questioned the purpose of an abridged birth certificate option on both the birth registration statement and the birth certificate application. Participants did not understand what an abridged certificate was, and what it could be used for.^[125]

4.123 The Registry offers an abridged certificate on payment of the prescribed fee. The fee for an abridged certificate is the same as for a standard birth certificate. In its submission the Castan Centre noted that:

It is not made sufficiently clear that these days this ‘abridged’ certificate is likely to be of little, or no, use in official situations, despite the fact that its price is identical to that of a full certificate. In such circumstances it is unclear why the ‘abridged’ option is still provided.^[126]

4.124 During consultation, while some participants queried the price of the abridged version and its usefulness, one participant noted that it may be a preferred option for people who did not want all the particulars of a standard birth certificate to be shown, such as relationship details.^[127]

4.125 Another participant stated that if the Registry continues to offer an abridged certificate, then a clearer explanation of its uses should be provided on both the birth registration statement and the birth certificate application.^[128]

Commission’s view

4.126 The Commission agrees that further information should be provided outlining the uses of each type of birth certificate. Having the same fee for both the standard and the abridged version may send an incorrect message to the community as to the utility of the certificates. The Commission considers that the Registry should review the wording on its forms, website and information material to ensure that applicants understand the uses of each type of certificate.

4.127 The Registry may also wish to consider whether there is any purpose served in continuing to offer abridged certificates, given that they have become increasingly inadequate for most of the purposes for which they were previously used.

Recommendation

12 The Registrar should:

• include more information on the uses of each type of birth certificate on both the birth registration statement and the birth certificate application

• consider whether abridged certificates should be discontinued.

Automatic issue of a birth certificate

4.128 At present the registration of a birth and the application for a birth certificate in Victoria are two separate processes. In the consultation paper the Commission asked whether legislation should provide for the automatic issue of a birth certificate once a birth has been registered.^[129] While closely related, the question of whether it is appropriate to charge a fee for a birth certificate is discussed in Chapter 5.

4.129 There was support in submissions and during consultations for this proposal.^[130] The reasons provided include:

• it would reduce the need for people to satisfy more rigorous proof-of-identity requirements later on ^[131]

• a birth certificate is so fundamental that parents should not have to submit a separate application to obtain one.^[132]

4.130 Liberty Victoria expressly recommended eliminating the current two-stage process so that a birth certificate is automatically issued upon registration.^[133]

4.131 Some submissions highlighted the obligation of the State under the United Nations Convention on the Rights of a Child and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) as reason for the automatic issue of a birth certificate upon registration.^[134]

4.132 The Castan Centre referred in its submission^[135] to General Comment 10 of the United Nations Committee on the Rights of the Child [see also para 3.47] which noted that:

the Committee wishes to emphasize the fact that it is crucial for the full implementation of article 7 […] that every child shall be registered immediately after birth to set age-limits one way or another, which is the case for all States parties. A child without a provable date of birth is extremely vulnerable to all kinds of abuse and injustice regarding the family, work, education and labour, particularly within the juvenile justice system. Every child must be provided with a birth certificate free of charge whenever he/she needs it to prove his/her age.^[136]

4.133 In its submission VEOHRC suggested how the Victorian Charter may be engaged in this context:

The Charter provides in section 17 that we are entitled to the protection of families and children, including that: (2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. Children have access to numerous specialist services including education and health services, for example, enrolment in school or forms of healthcare. Children have special protection within the jurisdiction of the Children’s Court. Without proof of identity, children may not be able to access such services.^[137] This may potentially breach s.17(2) of the Charter.^[138]

4.134 VEOHRC further noted that:

The capacity to register a birth lacks meaning unless it is automatically accompanied by certification integral to securing the capacity to exercise our rights as citizens and access the benefits of citizenship. Commentators argue that the right to birth registration implicitly includes the right to a birth certificate. A birth certificate provides substance to the right to birth registration. Birth registration alone does not fully protect a person’s human rights without a birth certificate. A certificate is tangible evidence of a government’s legal recognition of a child’s existence.^[139]

4.135 Supporters of the automatic issue of a birth certificate also generally favoured that the first issue of a birth certificate should be free of charge at the time of registration.^[140]

Commission’s view

4.136 The Commission supports the principle of readiness of access to birth certificates for all community members. The Commission acknowledges and respects the high principles enunciated by the United Nations cited above. The Commission acknowledges that the current two-stage process may create a barrier to some vulnerable or disadvantaged groups who are either unaware of the requirement to complete Part 2 of the birth registration statement, or who are unable to meet the cost of a birth certificate at the time of registering the birth.

4.137 Issues concerning vulnerable and disadvantaged groups are considered in Chapter 6, and issues concerning the cost of birth certificates are considered in Chapter 5.

1. Births, Deaths and Marriages Registration Act 1996 (Vic) s 3(d).

   ↑

2. Ibid 3(e).

   ↑

3. Ibid s 46.

   ↑

4. Births, Deaths and Marriages Registration Regulations 2008 (Vic) sch 2.

   ↑

5. Births, Deaths and Marriages Registration Act 1996 (Vic) s 49.

   ↑

6. Ibid s 46(2).

   ↑

7. Ibid s 47.

   ↑

8. Birth records are restricted from public access for 100 years or until the person has passed away, whichever is the later: Victorian Registry of Births, Deaths and Marriages, Access Policy (30 October 2012) <http://www.bdm.vic.gov.au> (‘Access Policy’).

   ↑

9. Ibid. The policy has 7 sections and 23 sub-sections of categories of individual/organisation that may access the registers and on what basis access may be provided.

   ↑

10. Ibid.

    ↑

11. Births, Deaths and Marriages Registration Act 1996 (Vic) s 52(1).

    ↑

12. Ibid s 52(2).

    ↑

13. Current data available from the Registry does not separate new birth registrations from applications for birth certificates. The Commission is therefore unable to provide accurate data on the numbers of registrations which are accompanied by an application for a birth certificate, and those which are not. The Registry has informed the Commission that despite aggregate figures, the vast majority of applicants who submit a birth registration statement apply for a birth certificate at the same time: Letter from Erin Keleher, Victorian Registrar Births, Deaths and Marriages to David Jones AM, Acting Chair, Victorian Law Reform Commission, 20 August 2012.

    ↑

14. Victorian Registry of Births, Deaths and Marriages, (15 November 2012) Commemorative Birth Certificate Application Form <http://www.bdm.vic.gov.au>.

    ↑

15. These additional certificate options include: a historical certificate; an historical uncertified image; a replaced change of name certificate; and a deed poll certificate. See Appendix D.

    ↑

16. NSW Registry of Births, Deaths and Marriages, Frequently Asked Questions <http://www.bdm.nsw.gov.au>.

    ↑

17. Department of Foreign Affairs and Trade (Commonwealth), Born in Australia <http://www.dfat.gov.au>.

    ↑

18. Letter from Erin Keleher, Victorian Registrar of Births, Deaths and Marriages to the Hon P.D. Cummins, Chair, Victorian Law Reform Commission, 21 February 2013.

    ↑

19. Ibid.

    ↑

20. Ibid. The Registry makes available online a ‘Third party authority form’ (AF201202) which enables persons who are not entitled under the Registry’s Access Policy, to submit a form which authorises access, provided that it is signed by a person entitled to apply for a certificate: Victorian Registry of Births, Deaths and Marriages, Third Party Authority Form (15 November 2012) <http://www.bdm.vic.gov.au>.

    ↑

21. At present only historical search information is available through VicHeritage, and requires payment of the required fee. Birth information is not available to the public for 100 years, or after the death of the person, whichever comes first.

    ↑

22. Tasmanian Registry of Births, Deaths and Marriages, Late registrations (29 November 2012) <http://www.justice.tas.gov.au>.

    ↑

23. In one consultation the Commission was told that it helps to know what jurisdiction the applicant thinks they were born in because if they are unsure, a birth certificate application will need to be sent to each jurisdiction the applicant thinks they may have been born in.

    ↑

24. Births, Deaths and Marriages Registration Regulations 2008 (Vic) sch 2.

    ↑

25. Submission 5 (The International Commission of Jurists—Victoria).

    ↑

26. Letter from Erin Keleher, above n 18.

    ↑

27. Ibid. The Registrar informed the Commission that the Registry issued approximately 300 such letters in 2012.

    ↑

28. Consultations 28 (Connect Ed, Horsham); 32 (Mercy Hospital for Women).

    ↑

29. Consultations 13 (New Parents Group, Mildura South); 15 (Mildura Justice Service Centre).

    ↑

30. Consultation 15 (Mildura Justice Service Centre).

    ↑

31. See Application for a Victorian Birth Certificate (November 2012), Appendix C. For example, an Australian driver’s licence (or learner permit), Australian Passport, Australian firearm licence or overseas passport. If you cannot provide a document from list 1, you must provide two from list 2 and one from list 3.

    ↑

32. Ibid. For example, Medicare card, credit card or ATM card, Australian Security guard or crowd controller licence, marriage certificate issued by the Victorian Registry, student or tertiary education identity card, Australian Citizenship Certificate, Standard Birth Certificate issued in Australia, Department of Veterans’ Affairs card or Working with Children Check Card.

    ↑

33. Ibid. For example, utility account, rates notice, bank statement, current lease or tenancy agreement, superannuation fund statement. A Centrelink concession card is now accepted as a list 2 document on the November 2012 birth certificate application. A list 3 document must show the applicant’s current residential address, and a list 1 document may also be used as a list 3 document if it shows current residential address.

    ↑

34. Ibid. The updated Birth Certificate Application Form (November 2012) has removed ‘current mobile phone bill’ as a substitute identity document for people under 18 who are unable to submit all three identity documents for the purpose of obtaining a birth certificate.

    ↑

35. Access Policy, above n 8, 7.23.0: Primary Carers of a Person under Care.

    ↑

36. Victorian Registry of Births, Deaths and Marriages, Proof of Identity (15 November 2012) http://www.bdm.vic.gov.au (‘Proof of Identity’).

    ↑

37. The application form is available online at Victorian Registry of Births, Marriages and Deaths <www.bdm.vic.gov.au>.

    ↑

38. Submission 9 (Legal Aid NSW).

    ↑

39. Submission 7 (VEOHRC).

    ↑

40. Submission 6 (Law Institute of Victoria).

    ↑

41. Submission 10 (Castan Centre for Human Rights Law—Monash University).

    ↑

42. Consultation 6 (Ovens and King health and community workers & co, Wangaratta).

    ↑

43. The Commission met with students and teachers at the ConnectEd Off Campus Program in Horsham. The ConnectEd Program caters for around 55 students at one time. The students who attend the campus are teenagers aged between 11 and 21, who have disengaged from mainstream education. The Commission met with students and a young mothers group.

    ↑

44. Australian Taxation Office, Tax File Number—Application or Enquiry for Individuals, (19 April 2013) <http://www.ato.gov.au>.

    ↑

45. Consultation 28 (ConnectEd, Horsham College).

    ↑

46. Ibid.

    ↑

47. Ibid.

    ↑

48. Submission 10 (Castan Centre for Human Rights Law—Monash University).

    ↑

49. See Department of Foreign Affairs and Trade (Commonwealth), Application for an Australian Passport (August 2012); Vic Roads, Evidence
    of Identity Documents (12 February 2013) <http://www.vicroads.vic.gov.au>; Victoria Police, Victorian Firearm Licence Application Form
    
    (8 August 2012). Overseas passport identification requirements are not relevant to this review.

    ↑

50. Application for a Victorian Birth Certificate (November 2012), Appendix D.

    ↑

51. Submission 10 (Castan Centre for Human Rights Law—Monash University).

    ↑

52. Ibid.

    ↑

53. Ibid.

    ↑

54. Consultation 15 (Mildura Justice Service Centre).

    ↑

55. Ibid.

    ↑

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

    ↑

57. Consultation 25 (Young, Pregnant and Parenting Group, Lakes Entrance).

    ↑

58. Ibid.

    ↑

59. Submission 10 (Castan Centre for Human Rights Law—Monash University).

    ↑

60. An approved referee can be a community elder, medical/health manager/nurse, school principal, permanent Commonwealth employee
    
    with five or more years of continuous service, council chairperson, minister of religion, welfare organisation worker. The referee must
    
    have known the applicant for six months or confirm who they are by using medical, school or church records: Medicare Australia,
    
    Aboriginal and Torres Strait Islander Medicare enrolment and amendment form (905.02.08.10).

    ↑

61. Proof of Identity, above n 36.

    ↑

62. Consultation 33 (Link-Up Victoria).

    ↑

63. Submission 11 (VANISH).

    ↑

64. Submission 6 (Law Institute of Victoria). Liberty Victoria expressed support for the Law Institute of Victoria submission on the point of identity document certification.

    ↑

65. See, eg, Submissions 6 (Law Institute of Victoria); 11 (VANISH); 12 (Liberty Victoria). Consultation 26 (Gippsland East Aboriginal Driver Education Program).

    ↑

66. Submissions 5 (The International Commission of Jurists—Victoria); 6 (Law Institute of Victoria). Consultations 24 (Bairnsdale and Morwell Justice Service Centres); 27 (Dandenong Justice Service Centre).

    ↑

67. Submission 10 (Castan Centre for Human Rights Law—Monash University).

    ↑

68. The roll-out of Registry services in justice service centres is discussed further in Chapter 7.

    ↑

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

    ↑

70. NSW Registry of Births, Deaths and Marriages, Application for a Birth Certificate (March 2012) <www.bdm.nsw.gov.au>; Registry of Births, Deaths and Marriages (Queensland), Birth certificates (3 September 2012) <http://www.justice.qld.gov.au>; Registry of Births, Deaths and Marriages (Australian Capital Territory), Application for Certificate (17 December 2012) <http://www.ors.act.gov.au>; Registry of Births, Deaths and Marriages (Northern Territory), Application Forms (4 October 2012) <http://www.nt.gov.au>; Registry of Births, Deaths and Marriages (Western Australia), Birth Certificate Application Form (30 August 2012) <http://www.bdm.dotag.wa.gov.au>.

    ↑

71. Consultation 6 (Ovens and King health and community workers & co, Wangaratta). Cross-border community issues were also discussed in Chapter 3.

    ↑

72. Submission 10 (Castan Centre for Human Rights Law—Monash University). Australian Government, Department of Immigration and Citizenship (Commonwealth), Application for evidence of Australian Citizenship: Form 119 (April 2013) 9.

    ↑

73. Submission 6 (Law Institute of Victoria).

    ↑

74. Submission 10 (Castan Centre for Human Rights Law—Monash University). See also Andrew Gargett, Paula Gerber, and Melissa Castan, ‘A Right to Birth Registration in the Victorian Charter? Seek and You Shall Not Find.’ (2011) 36(3) Monash University Law Review 1.

    ↑

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

    ↑

76. Consultation 33 (Link-Up Victoria).

    ↑

77. Submission 10 (Castan Centre for Human Rights Law—Monash University).

    ↑

78. Ibid. Section 186 of the Evidence Act 1995 (Cth) provides for swearing of affidavits before any justice of the peace, notary public or Australian lawyer without the issue of any commission for taking affidavits.

    ↑

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

    ↑

80. Ibid.

    ↑

81. People who can receive affidavits in Victoria include any judge or the associate to any judge; an Associate Judge of the Supreme Court or Country Court, the Associate to such Associate Judge; a justice of the peace or bail justice; the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a deputy registrar of the County Court, the principal registrar or a registrar or deputy registrar of the Magistrates’ Court; the registrar or an assistant registrar of probates; a senior or ordinary member of VCAT, who, immediately before the commencement of s 8.2.1 of the Legal Profession Act 2004 (Vic), was the registrar or a deputy registrar of the Legal Profession Tribunal; a member or former member of either the House of Parliament of Victoria or the Commonwealth; a public notary; a legal practitioner; a member of the police force of or above the rank of sergeant or for the time being in charge of a police station; a person employed under Part 3 of the Public Administration Act 2004 (Vic) with a classification that is prescribed as a classification to which 123C applies; a senior officer of a Council as defined in the Local Government Act 1989 (Vic); a person registered as a patent attorney under Chapter 20 of the Patents Act 1990 (Cth); a fellow of the Institute of Legal Executives (Vic); any officer or person empowered, authorised or permitted by or under any Act of Parliament to take affidavits in relation to the matter in question or in the particular part of Victoria in which the affidavit is sworn and taken: Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 123C.

    ↑

82. The eight protection orders available to the court are contained in the Children, Youth and Families Act 2005 (Vic) s 275. Orders which grant parental responsibility to the Secretary or a third party include: a guardianship to the Secretary order; a long-term guardianship to the Secretary; and a permanent care order. All other orders concern custody or supervision arrangements only.

    ↑

83. Children, Youth and Families Act 2005 (Vic) pt 3.5.

    ↑

84. Ibid pt 4.10.

    ↑

85. Ibid ss 16(1)(g), 16(4).

    ↑

86. Ibid s 17.

    ↑

87. See ibid s 148 for the definition of a suitable person for the purpose of Div 3 (long-term child care agreements).

    ↑

88. Margaret Kertesz, 100+ points of identity—Gathering Young People’s History for the Future: Final Report (March 2011) 12.

    ↑

89. Ibid 11.

    ↑

90. Children, Youth and Families Act 2005 (Vic) ss 16(1)(g), 16(4).

    ↑

91. Department of Human Services (Victoria), Protecting Victoria’s Children—Child Protection Practice Manual ‘Planning for leaving care’, Advice No 1418 (22 February 2013) (‘Planning for leaving care’).

    ↑

92. Margaret Kertesz, A Backpack of Identity—What Happens to Records when Young People Change Placement? (January 2012).

    ↑

93. Child Protection, Placement and Family Services are legally required to prepare a cultural support plan (CSP) for Aboriginal children subject to a guardianship to Secretary order or a long-term guardianship to Secretary order who are placed in out-of-home care. A CSP must set out how the Aboriginal child is to remain connected to their Aboriginal community and culture: Children, Youth and Families Act 2005 (Vic) s 176; Department of Human Services (Victoria) Protecting Victoria’s Children—Child Protection Practice Manual ‘Cultural support plans’, Advice No 1060 (5 November 2012) 2.

    ↑

94. Letter from Erin Keleher, above n 18.

    ↑

95. Ibid.

    ↑

96. Ibid.

    ↑

97. Email from Jenny Glare, Manager, Heritage & Information Services, MacKillop Family Services to Tess McCarthy, Project Officer, Victorian Law Reform Commission, 27 March 2013.

    ↑

98. ‘Planning for leaving care’, above n 91.

    ↑

99. The term ‘ward of state’ is no longer used for children who are in the care of the state or who have left the care of the state aged 18 years and over. This term was introduced in 1864 via the Neglected and Criminal Children’s Act 1864 (Vic). Changes to the child protection system in the mid-1980s saw the term fall out of general use. Since 2004, a new, non-legal, term ‘Forgotten Australian’ has been used to refer to children who were in state care during this time: see Senate Community Affairs References Committee, Parliament of Australia, Forgotten Australians: A Report on Australians who Experienced Institutional or Out-of-home Care as Children (2004). The change in terminology from the mid-1980s onwards reflects changing attitudes towards having children permanently in state care and the role of the state as a reluctant guardian.

    ↑

100. Department of Human Services (Victoria), Former Victorian State Wards: Forgotten Australians (11 April 2012) <http://www.dhs.vic.gov.au>.

     ↑

101. Senate Community Affairs References Committee, Parliament of Australia, Forgotten Australians: A Report on Australians who Experienced Institutional or Out-of-home Care as Children (2004) (‘Forgotten Australians Report’).

     ↑

102. Under the Children’s Welfare Act 1928 (Vic) the Secretary of the Children’s Welfare Department was the guardian of any child admitted to the care of the state until the child reached 18 years of age, or 20 years of age as directed by the Governor in Council at s 25. See also Forgotten Australians Report, above n 101. Other resources state that children were released at the age of 15, such as Alliance for Forgotten Australians, Forgotten Australians: Supporting the Survivors of Childhood Institutional Care in Australia (2008) 8.

     ↑

103. Some children placed in care were neither made a ward of state nor adopted. The legal status of these children is unclear and they also may have difficulties accessing their birth certificates.

     ↑

104. Submission 11 (VANISH).

     ↑

105. Submissions 3 (Dr Carolyn Woodley); 11 (VANISH).

     ↑

106. Ibid.

     ↑

107. Letter from Gill Callister, Secretary, Department of Human Services (Victoria) to the Hon P.D. Cummins, Chair, Victorian Law Reform Commission, 15 April 2013.

     ↑

108. FIND also provides counselling services to people seeking information from the donor treatment registers managed by the Registry: Letter from Gill Callister, above n 107. See also Department of Human Services (Victoria), Family Information Networks and Discovery (FIND) (11 April 2012) <http://www.dhs.vic.gov.au>.

     ↑

109. FIND was established under the Adoption Act, which states that there shall be an adoption information service established within the Department of Human Services: Adoption Act 1984 (Vic) s 102. The Commission was informed by the Department of Human Services (Victoria) that in the last 12 months (as at 15 April 2013) FIND have outposted two FIND case managers to Open Place. This is a joint venture between both programs, recognising the need for supported release as a significant part of receiving information. FIND do not have MoUs in place with Aboriginal Services in Victoria, but the program maintains a Koori agency liaison and practice portfolio and liaises with Aboriginal Services as required on a case-by-case basis: Letter from Gill Callister, above n 107.

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110. Ombudsman Victoria, Investigation into the Storage and Management of Ward Records by the Department of Human Services (2012) 4. The Commission was informed by the Department of Human Services (Victoria) that FIND also makes referrals to other agencies who provide additional support services to Forgotten Australians: Letter from Gill Callister, above n 107.

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111. Adoption Act 1984 (Vic) pt VI.

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112. Submission 3 (Dr Carolyn Woodley).

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113. Submission 11 (VANISH).

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114. See Appendix C.

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115. A commemorative certificate can also be applied for after the time of registration by filling in a Commemorative Birth Certificate Application Form available on the Registry’s website. A different fee scale applies when applying for a commemorative certificate at a time other than registration.

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116. Consultations 10 (MCH Team Meeting, Flemington); 18 (New Parents Group, Dandenong North); 19 (Vietnamese New Parents Group, Springvale); 21 (MCH Team Meeting, Warragul).

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117. Consultation 3 (New Parents Group, Mooroopna).

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118. Consultations 1 (Spectrum Migrant Resource Centre); 10 (MCH Team Meeting, Flemington); 16 (MCH Team Meeting, Robinvale); 19 (Vietnamese New Parents Group, Springvale).

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119. Consultation 27 (Dandenong Justice Service Centre).

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120. Consultations 2 (Boorai Group, Victorian Aboriginal Health Service); 27 (Dandenong Justice Service Centre).

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121. Consultations 9 (MCH Team Meeting, Wangaratta); 22 (MCH Team Meeting, Traralgon); 23 (MCH Team Meeting, Bairnsdale).

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122. Submission 4 (North Melbourne Legal Service).

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123. Submission 10 (Castan Centre for Human Rights Law—Monash University).

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124. See ‘Birth Registration Statement’ Appendix C.

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125. Consultation 32 (Mercy Hospital for Women).

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126. Submission 10 (Castan Centre for Human Rights Law—Monash University).

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127. Consultation 32 (Mercy Hospital for Women).

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128. Ibid.

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129. Victorian Law Reform Commission, Birth Registration and Birth Certificates: Consultation Paper (2012) 22.

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130. Submissions 4 (North Melbourne Legal Service); 7 (VEOHRC); 12 (Liberty Victoria). Consultations 3 (New Parents Group, Mooroopna); 4 (Shepparton Justice Service Centre); 13 (New Parents Group, Mildura South); 14 (Mildura Base Hospital); 22 (MCH Team Meeting Traralgon).

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131. Consultation 4 (Shepparton Justice Service Centre).

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132. Consultation 23 (MCH Team Meeting, Bairnsdale).

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133. Submission 12 (Liberty Victoria).

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134. Submissions 7 (VEOHRC); 10 (Castan Centre for Human Rights Law—Monash University); 12 (Liberty Victoria).

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135. Submission 10 (Castan Centre for Human Rights Law—Monash University).

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136. Committee on the Rights of the Child, United Nations, General Comment No 10: Children’s Rights in Juvenile Justice, CRC/C/GC/10, 44th session (25 April 2007) para [39].

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137. Andrew Gargett, Paula Gerber and Melissa Castan, ‘A Right to Birth Registration in the Victorian Charter? Seek and You Shall Not Find.’ (2011) 36(3) Monash University Law Review 1, 14–15.

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138. Submission 7 (VEOHRC).

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139. Ibid.

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140. Consultations 3 (New Parents Group, Mooroopna); 5 (MCH Team Meeting, Shepparton); 12 (DEECD); 14 (Mildura Base Hospital); 22
     
     (MCH Team Meeting, Traralgon); 27 (Dandenong Justice Service Centre).

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