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Registration Bill 1995
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
(a) The Bill simplifies the procedure for notification of registrable events.
For instance, there will no longer be an obligation on relatives of a
deceased person to notify the Registrar of Births, Deaths and
Marriages of the death. Instead, the obligation will fall on a doctor
and funeral director.
(b) The Bill provides a simplified procedure for change of name.
A concept of prohibited name is introduced. This will prevent the
registration of a name that is, for example, obscene or offensive.
The definition of "stillbirth" is changed, so that the weight at birth is
relevant only if it cannot be established that the child is of at least 20
weeks gestation (rather than weight being the determining factor as at
present).
The procedure for registering information relating to the parentage of
a child is simplified.
The procedure for correcting the Register is simplified.
The Bill specifies the factors that are to be taken into account in
determining whether a person should be granted access to the Register
(such as privacy concerns and restrictions on access to adoption
information contained in the Adoption Information Act 1990).
Penalties for offences relating to fraud and unauthorised access to, or
interference with, the Register are increased.
Provisions in the current Act relating to the reporting of certain deaths
to the coroner and the disposal of human remains without proper
authority are transferred to the Coroners Act 1980.
The Bill is based on model provisions developed in consultation with the
States and Territories.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides that the proposed Act will commence on a day or days
to be proclaimed.
Clause 3 sets out the objects of the proposed Act. The objects of the Act
are to provide for the following:
(a)
the registration of births, deaths and marriages in New South Wales,
(b)
the registration of adoption information,
(c)
the registration of changes of name,
(d)
the keeping of registers for recording and preserving information
about births, adoptions, deaths, marriages and changes of name in
perpetuity,
Explanatory note page 2
(e)
access to the information in the registers in appropriate cases by
government or private agencies and members of the public, from
within and outside the State,
(f)
the issue of certified information from the registers,
(g)
the collection and dissemination of statistical information.
Clause 4 defines certain words and expressions used in the proposed Act.
Important definitions include prohibited name, registrable event and
stillborn child.
Part 2
Administration
Division 1
The Registrar
Clause 5 provides that the Registrar of Births, Deaths and Marriages is, in
the exercise of functions under the Act, subject to the control and direction
of the Minister.
Clause 6 sets out the general functions of the Registrar. These include
establishing and maintaining the Register and administering the registration
system established by the proposed Act.
Clause 7 provides for the staff of the Registrar.
Clause 8 allows the Registrar to delegate functions under the Act.
Division 2
Execution of documents
Clause 9 provides that the Registrar is to have a seal.
Clause 10 allows the Registrar to issue documents under seal and provides
for judicial recognition of the execution of documents by the Registrar.
Division 3
Reciprocal administrative arrangements
Clause 11 allows the Minister to enter into an arrangement with any
Minister administering a corresponding law (a law of another State or a
Territory providing for the registration of births, deaths and marriages)
providing for reciprocal powers of the registering authorities under the
corresponding laws.
Explanatory note page 3
Part 3 Registration of births
Division 1 Notification of births
Clause 12 requires the birth of a child in the State to be notified to the
Registrar. The person responsible for giving notice of the birth of a child is
the chief executive offcer of the hospital in which the child is born or to
which the child is brought following birth or, in other circumstances, the
doctor or midwife responsible for the professional care of the mother of the
child at birth. If the child concerned was stillborn, the responsible person
must also give the Registrar a doctor's certificate or notice with respect to
the cause of foetal death.
Division 2 Registration of births
Clause 13 requires the birth of a child in the State to be registered under
the proposed Act. It also provides for other circumstances in which the birth
of a child may be registered under the proposed Act.
Clause 14 provides for the method of registration of the birth of a child.
Clause 15 makes the parents of a child jointly responsible for birth
registration. If the child is a foundling, the person who has custody of the
child is responsible for registration of birth.
Clause 16 requires the person responsible for registration of a child's birth
to ensure that a birth registration statement is given to the Registrar within
60 days after the birth.
Clause 17 provides for the entry of the particulars regarding the birth of a
child in the Register.
Clause 18 restricts the Circumstances in which the Registrar can register the
identity of the parent of a child. The Registrar may only register parentage
information in the following cases:
(a)
if both parents apply for the inclusion of the information,
(b)
if only one parent applies for the inclusion of the information because
the other parent cannot join in the application,
(c)
if only one parent applies for the inclusion of the information but the
Registrar is satisfied the other parent does not dispute the correctness
of the claim,
Explanatory note page 4
(d)
if a court makes a finding or order as to the parentage of a child,
(e)
if the Registrar is entitled by law to make a presumption as to the
parentage of the child,
(f)
if the regulations authorise the inclusion of parentage information.
Division 3
Court powers
Clause 19 allows an application to be made to the District Court for an
order directing the registration of a birth or the inclusion of certain
information concerning a child in the Register. It also allows other courts to
make such orders.
Division 4 Alteration of details of birth registration
Clause 20 allows the Registrar on application, to enter further details in the
9
Register after the initial registration of a child's birth.
Division 5 Child's name
Clause 21 requires a birth registration statement to state a name for the
child. If the name is a prohibited name (such as a name that is offensive or
obscene or contrary to the public interest), the Registrar may assign a name
to the child.
Clause 22 allows either parent of a child to apply to the District Court for
the resolution of a dispute concerning the name of the child.
Part 4 Registration of adoptions
Clause 23 requires adoption orders and orders for the discharge of an
adoption to be registered.
Clause 24 sets out how the Registrar registers adoptions and discharges of
adoption.
Clause 25 requires the Registrar to make an appropriate entry in or on a
person's birth registration regarding an adoption or discharge of adoption. If
the child's birth is not registered in the State, the Registrar is to cause the
information to be sent to the relevant registering authority.
Explanatory note page 5
Part 5 Change of name
Clause 26 provides that a person's name may be changed by registration of
the change under the proposed Part.
Clause 27 allows a person domiciled or ordinarily resident in the State or
whose birth is registered in the State to apply to the Registrar for registration
of a change of the person's name.
Clause 28 allows a parent or guardian to apply for registration of a change
in the name of a child. Application may be made by one parent only if the
applicant is the sole parent named in the child's birth registration, there is no
other surviving parent of the child or a court approves the change of name.
Any parent may apply to the District Court for approval of a change of name
of a child.
Clause 29 provides that a change in the name of a child cannot be
registered unless the child consents to the change of name or is unable to
understand the meaning and implications of the change of name.
Clause 30 allows the Registrar to require additional information before
registering a change of name and provides for circumstances in which a
change of name cannot be registered (for example, where the change is
being sought for a fraudulent purpose).
Clause 31 provides for the registration of a change of name by the making
of an appropriate entry about the change in the Register including, if the
applicant requests it, by appropriate notation on the person's birth
registration.
Clause 32 makes it clear that the Part does not prevent a person changing
his or her name by repute or usage.
Part 6 Registration of marriages
Clause 33 requires a marriage that is solemnised in the State to be
registered under the proposed Act.
Clause 34 provides for the registration of a marriage by lodgement of the
marriage certificate with the Registrar.
Clause 35 provides that a marriage is registered by inclusion of the
marriage certificate or the particulars of the marriage in the Register.
Explanatory note page 6
Explanatory note
Part 7
Registration of deaths
Division 1 Cases where registration of death is required or
authorised
Clause 36 provides for the circumstances in which a death may be
registered under the Act. These include where a person dies in the State,
where a person ordinarily resident in the State dies outside the State or dies
in a ship or aircraft which is proceeding to a place in the State. Stillbirths are
not considered to be deaths and are not to be registered as deaths.
Clause 37 allows any court (including a court of the Commonwealth,
another State or a Territory) to order the registration of the death of a person
who died in the State.
Clause 38 prevents the Registrar from registering a death unless the
Registrar has been given notice of the death by a doctor (see clause 39), a
coroner has authorised disposal of the remains of the person, a coroner has
given notice of the death to the Registrar for the purpose of effecting
registration or a similar notice or order has been given under another
Australian law. This does not prevent a court ordering registration of the
death or the Registrar registering the death if the Registrar considers that in
the circumstances it is appropriate.
Division 2 Notification of deaths
Clause 39 requires a doctor who was responsible for the care of a person
immediately before the person's death, or who examines the body of the
deceased person after death, to give notice to the Registrar of the death and
the cause of death, unless another doctor has already given the required
notice or a coroner has been notified of the death. The notice must not be
given if the doctor is prevented from certifying the cause of death of a
person by reason of the fact that the death is reportable to a coroner. The
circumstances in which a death is reportable to a coroner are contained in
the amendments to the Coroners Act 1980 (see Schedule 1 [2]). If a death is
reported to a coroner, the coroner must notify the Registrar of the death.
Clause 40 requires a coroner to give the Registrar copies of any order
authorising the disposal of human remains or any finding about the cause of
a person's death. A death certificate issued before completion of a coroner's
inquest must be endorsed to indicate that fact.
Explanatory note page 7
Clause 41 requires a funeral director or other person who arranges for the
disposal of human remains to give notice to the Registrar of certain
information relating to the deceased person. Similar requirements apply if a
funeral director or other person arranges for the removal of human remains
from the State or if the remains have not been disposed of within 30 days
after the person's death.
Division 3
Registration of death
Clause 42 provides for the registration of a person's death by the making of
an appropriate entry in the Register.
Part 8 The Register
Division 1
Keeping the Register
Clause 43 requires the Registrar to keep a register or registers containing
particulars of events that are registrable under the proposed Act. The
Register may be maintained as a computer database or in documentary form.
An index must be maintained to make the information contained in the
Register accessible.
Division 2 Registrar's powers of inquiry
Clause 44 allows the Registrar to conduct an inquiry into a registrable
event and, for the purposes of that inquiry, to require any person to provide
relevant information.
Division 3 Correction of Register
Clause 45 provides for correction of the Register.
Division 4 Access to, and certification of, Register entries
Clause 46 allows the Registrar to give access to or provide information
from the Register to a person or organisation that has an adequate reason for
wanting access or information. Access or information may be given subject
to conditions. The Registrar is required to take certain factors into account in
determining whether to give such access or information.
Clause 47 allows the Registrar, on application, to search the Register for an
entry about a particular event. The Registrar may reject an application if it
does not show an adequate reason for wanting the information.
Explanatory note page 8
Clause 48 requires the Registrar, in providing information from the
Register, to protect persons from unjustified intrusions on their privacy in so
far as it is practicable to do so.
Clause 49 provides for the certification of entries in the Register.
Clause 50 gives the executor, administrator or trustee of an estate the right
to apply for a certificate from the Registrar certifying, in respect of a
deceased person, whether the person is recorded in the Register as being the
parent of any children.
Clause 51 allows the Registrar to issue a certificate to enable the disposal
of human remains. (The Coroners Act 1980 is amended to make it an
offence to dispose of human remains without appropriate authorisation. See
Schedule 1 [6].)
Clause 52 makes it clear that access to information in the Register is
subject to the provisions of the Adoption Information Act 1990.
Clause 53 requires the Registrar to maintain a written statement of the
policies on which access to information contained in the Register is to be
given or denied.
Clause 54 allows fees for the Registrar's services to be fixed by the
regulations or by negotiation between the Registrar and the person who asks
for the relevant services.
Clause 55 allows the Registrar to remit the whole or part of a fee under the
proposed Act.
Part 9 General power of review
Clause 56 provides that a person who is dissatisfied with a decision of the
Registrar may apply to the District Court for a review of the decision.
Part 10 Miscellaneous
Clause 57 makes it an offence to knowingly make a false or misleading
representation in an application, notice or document under the proposed Act
or in response to an inquiry by the Registrar.
Clause 58 makes it an offence to obtain access to the Register or interfere
with the Register without the authority of the Registrar or other lawful
authority.
Explanatory note page 9
Clause 59 makes it an offence to forge the Registrar's certificate or seal or
to forge or falsify a certificate or other document under the Act. The
Registrar may impound or require the return of a forged or falsified
document or certificate or a document that was issued as a result of fraud or
error.
Clause 60 makes it an offence to improperly disclose information obtained
in connection with the administration of the proposed Act.
Clause 61 protects the Registrar from liability in respect of his or her
exercise of functions under the Act.
Clause 62 contains a general regulation making power.
Clause 63 provides for proceedings for offences to be dealt with by a Local
court.
Clause 64 repeals the Registration of Births, Deaths and Marriages Act
1973.
Clause 65 gives effect to the amendments to the Coroners Act 1980
contained in Schedule 1.
Clause 66 gives effect to the consequential amendments to other Acts
contained in Schedule 2.
Clause 67 gives effect to the savings, transitional and other provisions
contained in Schedule 3.
Clause 68 provides for review of the proposed Act by the Minister as soon
as possible after the period of 5 years from the date of assent.
Schedules
Schedule 1 transfers to the Coroners Act 1980 certain provisions that are
currently contained in the Registration of Births, Deaths and Marriages Act
1973. These provisions can be summarised as follows:
*
Proposed section 12A sets out the circumstances in which a doctor
must not certify the cause of death of a person. These circumstances
are circumstances in which a coroner has jurisdiction to hold an
inquest into the death. If a doctor is of the opinion that a person has
died in such circumstances, the doctor is required to notify a member
of the police force, who is in turn required to notify a coroner of the
death. (See Schedule 1 [l] and [2])
Explanatory note page 10
*
Proposed section 16A requires a coroner, in certain circumstances, to
give the Registrar of Births, Deaths and Marriages particulars relating
to the death of a person to enable registration of the death of the
person to be effected or completed. (See Schedule 1 [3])
*
Proposed Part 6A makes it an offence to dispose of human remains
without proper authorisation. It also allows a coroner to make an order
authorising the disposal of human remains (including the remains of a
stillborn child) and to direct a doctor to examine human remains to
determine whether they are the remains of a stillborn child. (See
Schedule 1 [4], [5] and [6])
Schedule 2 makes consequential amendments to other Acts.
Schedule 3 contains savings, transitional and other provisions.
Explanatory note page 11