13 November 2013

VLRC report on birth registration

The Victorian Law Reform Commission's report [PDF] on the Births, Deaths and Marriages Act 1996 (Vic) has been released.

The terms of reference for the review required the Commission to
consider and review aspects of the Births, Deaths and Marriages Act 1996 (Vic). The purpose of this review is to:
• examine the processes for birth registration and obtaining a birth certificate to consider whether they are efficient, effective and accessible to all members of the community, particularly culturally and linguistically diverse (CALD) and Indigenous communities, and the disadvantaged and vulnerable.
• identify practical solutions to problems that may exist in Victorian law and practice with regard to birth registration and obtaining a birth certificate.
The Commission was to have particular regard to:
• whether the need to apply separately for a birth certificate (in addition to registering a birth) creates a barrier to obtaining a birth certificate, and if so, what can be done to remove or minimise this barrier.
• whether specific criteria should apply to section 491 of the Act (which provides for the remission of fees), and if so, what these criteria should be and whether they should be contained in legislation, regulations or a publicly available policy document.
The report states that
Birth registration is a significant life event. The registration of a birth is the first step in the process of formal recognition of an individual by the state. Obtaining a birth certificate is a further step in creating an individual’s civil law identity. A certificate can only be issued once a birth is registered. Without a birth certificate, a person may not be able to take full advantage of their rights as a citizen. These rights include enrolling at school or to vote, obtaining a passport, a Medicare card (as an adult), driver’s licence or tax file number, and accessing various government benefits.
The Births, Deaths and Marriages Registration Act 1996 (Vic) (the Act) and the Births, Deaths and Marriages Registration Regulations 2008 (Vic) (the Regulations) provide the statutory basis for the registration of births in Victoria.
The Act requires that the Registrar be notified of all births occurring in the State of Victoria. In addition to this requirement, other legislation, such as the Child Wellbeing and Safety Act 2005 (Vic), requires notification of a birth for other purposes. The number of births that are not notified to the Registry is not known, but is likely to be very small. In 2009, 99.4 per cent of births occurred in a hospital, birth centre or at home with a midwife in attendance. The CEOs of hospitals and midwives have a legislative obligation to provide notice of the birth to the Registry within 24 hours. There are formal processes in place to ensure they comply with this obligation.
In addition to notification, it is a legal requirement to register the birth of a child born in Victoria. There is no fee to register a birth. When a child is born in a hospital or birth centre, or the birth is attended by a qualified medical practitioner or midwife, parents are provided with a birth registration statement form.
The parents (or other persons as set out in the Act) must register the birth within 60 days. The birth registration statement is in two parts and if the parents wish to obtain a birth certificate they must also complete the relevant section and pay the prescribed fee. At present the fee for a standard birth certificate is $28.60.
The Registrar has the power to remit the whole, or part, of the fee in appropriate cases;  however, there are no publicly available guidelines or criteria that describe what attributes an ‘appropriate’ case should have. The Commission has been informed in consultations and submissions that the fee can cause considerable hardship for some vulnerable groups. Other barriers may also prevent an individual from registering the birth of their child or applying for a birth certificate at the time of registration.
Timely birth registration occurs for the majority of babies born in the Victorian community. However, this is not the case across all sectors of society and barriers to registration appear to disproportionately affect our most vulnerable community members.
The majority of parents apply for a birth certificate for their child at the time of registration. An application for a birth certificate may also be made because a birth certificate has been lost, stolen or damaged, or because a person only has an extract of birth entry.
Individuals may face difficulties later in life if their birth was not registered, or an application for a birth certificate was not made when they were a child. Reasons for the failure to register a birth or apply for a certificate are varied but include a lack of awareness of the requirement to register, a poor understanding of the importance of registration, the cost of obtaining a birth certificate and other issues such as mental illness or family violence concerns.
Disadvantaged background is a common theme for late registration or non-registration of a birth.
Structure of the report
Chapter 1 provides an introduction, background and overview of some of the history of the project as well as birth registration practices in Victoria.
Chapters 2 and 3 examine the law and practice relating to birth notification and birth registration in Victoria. These chapters also look at selected law and practice in other jurisdictions.
Chapter 4 examines the law and practice relating to obtaining a birth certificate. This chapter draws on submissions and consultations to make recommendations for changes to the law in this area.
Chapter 5 discusses the cost of obtaining a birth certificate. This chapter examines the ability of the Registrar to remit a fee for a birth certificate, examines fees for birth certificates in other jurisdictions and makes recommendations for legislative and policy reform in this area.
Chapter 6 explores barriers to registering births and obtaining birth certificates for vulnerable groups. This includes those from Indigenous communities and CALD backgrounds as well as more generally.
Chapter 7 examines the issue of awareness of, and access to, Registry services and recommends how these could be improved.
Chapter 8 is the conclusion of the Report.
The Commission makes the following recommendations
Birth notification
1 The Registrar should request the following information in the birth notification: • details of the father • the Indigenous status of the mother and father • details of the next of kin (if known) • a contact telephone number (mobile or landline). Provision of this information should be optional.
Birth registration
2 The birth registration statement should include a statement that if a person other than the mother wishes to register a birth in a situation where they believe the mother will not, or cannot register the birth, they should contact the Registrar to find out how this can be done, and what information they will need to provide.
3 The Registrar should develop a policy for processing birth registration statements where the applicant is at risk of family violence. This policy should require the Registry to contact the applicant before contacting the alleged perpetrator if there is any indication on a birth registration statement of a risk of family violence.
4 Step 4 of the birth registration statement should be amended to: • include a question about whether the applicant fears that family violence may be an issue if the Registry contacts the alleged perpetrator • clearly outline what information may be sought from the alleged perpetrator and whether it will appear on the birth certificate • note that if potential violence is identified as an issue, the Registry will not include the address of the applicant on the birth certificate, and contact the applicant before contacting the alleged perpetrator.
5 The birth registration statement should clearly outline: • what information will and will not appear on the birth certificate through the demarcation of mandatory and non-mandatory fields • what information is being requested for statistical purposes only.
6 The Registry should consider how the work of the Indigenous Access Project could be expanded, to better facilitate birth registration and access to birth certificates for cross-border communities.
7 The Registrar should have further discussions with the Commonwealth Department of Human Services on data-matching of birth registration information to promote greater compliance with both state and federal legislation.
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.
Birth certificates
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.
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).
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.
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.
13 The Births, Deaths and Marriages Registration Act 1996 (Vic) should provide that an eligible beneficiary: • is exempt from paying a fee imposed for a standard birth certificate • may not be entitled to the fee exemption if the birth certificate has previously been issued to the applicant. ‘Eligible beneficiary’ should have the same meaning as it has in section 3 of the State Concessions Act 1994 (Vic).
14 The Registrar’s power to grant a fee waiver in ‘appropriate cases’ should be retained, to deal with applicants who do not come within the definition of eligible beneficiary but who have an appropriate reason for seeking a fee waiver. Guidelines should be developed setting out how the Registrar’s discretion to waive fees will be exercised.
15 The guidelines outlining the criteria for the waiver of fees should: • be publicly available • be contained in Registry publications and on the Registry’s website • include information about how an individual can apply to the Registrar for a fee waiver.
16 The Births, Deaths and Marriages Registration Act 1996 (Vic) should be amended to allow for the fee for a birth certificate to be waived in full for a class of people.
17 Information about the Indigenous Access Fund should be readily available to service providers and members of the public.
18 The Registrar should explore the introduction of other payment methods for fees for birth certificates.
Vulnerable groups
19 The Registrar should develop memoranda of understanding with relevant organisations assisting members of the Stolen Generations and other Indigenous people to access their records, which cover both birth certificate applications and registry searches.
20 The Registrar should consider: • moving the information about the translation and interpreter service at the back of the birth registration statement to the front of the form • making information about the requirement to register a birth and how to fill in the birth registration statement available in a range of community languages in brochures and on its website.
Awareness and access
21 The Registrar should make available appropriate and accessible information outlining the birth registration process, the importance of birth registration and how to apply for a birth certificate. The birth registration statement should include a prominent statement about the obligation of a parent to register a child and the benefits of obtaining a birth certificate, including listing the important identity documents which can only be obtained on production of a birth certificate.
22 The Registrar should: • continue to expand its range of forms and education material available online • explore the possibility of offering online registration of births.
23 The Registrar should: • promote greater awareness of the Indigenous Access Team in the Indigenous community • consider providing a phone contact point for service providers assisting members of the public with birth registration documents.
24 The birth registration statement should contain a note indicating that assistance in filling in the form can be provided at a justice service centre, and that the applicant should go to www.bdm.vic.gov.au to find the nearest centre.
25 The Registrar should consider expanding the range of venues where registry applications may be lodged.
26 The Registrar’s general functions, as set out in section 6 of the Births, Deaths and Marriages Registration Act 1996 (Vic), should be amended to include the promotion of public awareness of the importance of birth registration through the conduct of education and information programs.