This article was produced by the Commission and appeared in the August 2012 issue of the Law Institute Journal.
Victorian law reform: Birth registration and birth certificates
A new community law reform project on birth registration and birth certificates will focus on Victoria’s vulnerable communities.
The Victorian Law Reform Commission (VLRC) has launched a new community law reform project reviewing the processes for birth registration and obtaining a birth certificate. The VLRC will examine whether the current Victorian law meets community expectations, and will look in particular at the experiences of people from disadvantaged, Indigenous and CALD backgrounds.
It will undertake the review as part of its community law reform program, which allows it to make recommendations on minor legal issues of general community concern often based on a suggestion from the community.
How easy is it to obtain a birth certificate?
Birth registration is a significant life event as it creates a relationship between the individual and the state. A child becomes legally visible when their birth is registered.
Once a birth is registered, parents can apply for a birth certificate, which is usually required when the time comes for signing up for school, Medicare, government benefits, a passport and eventually, a driver’s licence. Without a birth certificate a person can feel legally invisible and unable to invoke their full rights as a citizen.
The VLRC has heard from sections of the community about their experiences of obtaining a birth certificate, including some adults whose birth was never registered. It will look at whether the current process makes getting a certificate difficult, particularly for already marginalised groups.
The current law
The Births, Deaths and Marriages Registration Act 1996 (Vic) (BDMR Act) accompanied by the Births, Deaths and Marriages Registration Regulations 2008 (Vic) provides the statutory basis for the registration of births in Victoria.
The current system for getting a birth certificate is a three-step process that includes notification, registration and an application.
It is a legal requirement to both notify and register the birth of a child born in Victoria. Parents (or other persons as prescribed in the Act) are required to register the birth within 60 days. There is no fee to register a birth. The Act also allows for the issue of a birth certificate subject to the payment of a prescribed fee. This birth certificate can be applied for at the same time as registration or at a later date.
The VLRC proposes to examine whether this process creates barriers to obtaining a certificate.
The Charter of Human Rights and Responsibilities Act 2006 (Vic) contains a number of provisions that may be relevant to a review of birth registration. There is, however, no express right to birth registration incorporated in the Charter.
International human rights instruments are also important. The UN Committee on the Rights of the Child (CRC) has raised concerns regarding birth registration practices in their recent report on Australia’s compliance with the Charter. The Committee requests that government identify procedural barriers, including raising awareness among the Indigenous population. It also urges government to issue a birth certificate at registration free of charge.1
The VLRC has developed its own terms of reference for this project and will consider and review aspects of the BDMR Act, with the purpose of this review being 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, including those from vulnerable, Indigenous and CALD backgrounds
- identify practical solutions to problems that may still be outstanding in Victorian law and practice with regard to birth registration and obtaining a birth certificate.
In undertaking this review the VLRC will have particular regard to:
- whether the BDMR Act should provide for the automatic issue of a birth certificate when a person has fulfilled their obligations under ss13 and 14 of the Act
- whether the criteria applied for the waiver of fees for obtaining a birth certificate as prescribed in s46(1) of the BDMR Act should be explicitly stated in legislation, or in a policy document made public by the Registrar of Births, Deaths and Marriages
In undertaking this reference, the VLRC will have regard to the Castan Centre for Human Rights research work on Indigenous Birth Registration and work where possible to align consultations with target community groups.
The VLRC will consider legislative developments in Victoria, other Australian jurisdictions and internationally where relevant.
The VLRC will ask the community about their experiences in using the system and will accept submissions from interested parties later this year.
Anyone interested in making a submission can register their interest by emailing contact details to firstname.lastname@example.org. The VLRC will then alert them when it calls for submissions.
More details regarding this project are available on the VLRC website.
Contributed by the VICTORIAN LAW REFORM COMMISSION. For further information phone (03) 8608 7800.
1. Consideration of reports submitted by States parties under article 44 of the Convention, CRC/C/AUS/CO/4, 60th session (19 June 2012) para 35-36.