This is the report of the Commission’s community law reform review concerning the law of birth registration and birth certificates in Victoria.
Birth registration and birth certificates are fundamental to our effective functioning in society.
A birth certificate cannot be issued without the birth first having been registered.
The Commission is concerned that some of the most vulnerable members of our community are facing barriers to registering the birth of their child and accessing a birth certificate.
This report describes, and recommends reforms to, the Births, Deaths and Marriages Registration Act 1996 (Vic) as well as to some of the policy and practices of the Victorian Registry of Births, Deaths and Marriages.
In 2009, the Castan Centre for Human Rights Law at Monash University held a symposium on Indigenous birth registration and barriers to obtaining a birth certificate, bringing together academics and community legal centres. The Castan Centre was concerned about the number of unregistered births within Victoria, particularly in rural and remote areas where there are large Indigenous populations.
In 2012, the Commission met with the Castan Centre to discuss the possibility of a community law reform project examining issues of birth registration law and practice.
Following this discussion, the Commission developed terms of reference, conducted some preliminary research and at its meeting of 17 May 2012 resolved to conduct the review pursuant to section 5(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic). That section provides that a function of the Commission is ‘to examine, report and make recommendations to the Attorney-General on any matter that the Commission considers raises relatively minor legal issues that are of general community concern’.
The Commission’s review examines birth registration in a broad context, including looking at whether current Victorian laws and practices are efficient, effective and accessible to all members of the community, with particular reference to Indigenous communities, culturally and linguistically diverse (CALD) communities, and the disadvantaged and vulnerable.
The Commission issued a detailed consultation paper in September 2012 and received 13 written submissions in response.
The Commission undertook 33 consultations across Victoria, travelling to the following regional and rural locations: the Hume region (Mooroopna, Shepparton and Wangaratta); the Mallee (Mildura and Robinvale); East Gippsland (Warragul, Traralgon and Bairnsdale) and the Wimmera (Horsham). In addition the Commission visited a number of metropolitan locations including Flemington, Preston, Dandenong and Springvale.
Participants at these meetings included those from Indigenous communities, CALD backgrounds and organisations representing vulnerable and/or disadvantaged groups. Midwives, maternal and child health nurses, justice service centre staff and representatives of Indigenous and CALD organisations also participated.
Current law and practice
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.
Three-stage process—birth notification, birth registration and application for a birth certificate
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
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.
Summary of recommendations
The report makes 26 recommendations.
Three of these recommendations pertain to minor changes to the Act.
Twenty-three of these recommendations pertain to changes to Registry policy and/or practice. These recommendations are practical, straightforward suggestions to make the process of registering a birth and applying for a birth certificate accessible to all members of the Victorian community.
The Commission recommends changes to the way in which the particulars of birth notification are collected and how, and by whom, a birth can be registered. The report also makes a number of recommendations pertaining to situations where family violence may be a barrier to the registration of a birth.
The Commission makes a number of recommendations as to how the birth registration statement could be enhanced to make the process of registration more effective and accessible to all community members. The Commission also recommends the Registrar consider ways to better facilitate birth registration and access to birth certificates for cross-border Indigenous communities.
The Commission also recommends that the Registrar enter into discussions with the Commonwealth Department of Human Services to examine how services may be better streamlined for individuals, as well as how to better promote compliance with both state and federal legislation.
The Commission recommends a number of changes to reduce potential barriers to obtaining a birth certificate at a time other than registration. This includes recommending that the Registrar broaden the category of persons who may certify identity documents as well as the type of proof of identity documents the Registrar will accept to support an application.
The Commission recommends that a fee exemption apply for vulnerable and disadvantaged groups. In order to be entitled to this exemption an applicant would be required to show acceptable proof that they are an ‘eligible beneficiary’ as defined by section 3 of the State Concessions Act 2004 (Vic). The Commission further recommends that the power to remit fees be retained within the Act and that guidelines be developed which outline what an appropriate case may be.
Finally, the Commission makes a number of recommendations regarding access and awareness and the needs of vulnerable groups. These include recommending that the Act be amended to include a specific promotional and education function for the Registrar in meeting the objects of the Act.
While a number of these recommendations relate to specific issues of concern to Indigenous and culturally and linguistically diverse communities, improved awareness of the importance of birth registration and accessibility to a birth certificate should benefit all Victorians.
Victorian Law Reform Commission Act 2000 (Vic) s 5(1)(b).
These regulations came into effect on 28 September 2008 and replaced the previous 1997 regulations.
Births, Deaths and Marriages Registration Act 1996 (Vic) s 12(1).
Child Wellbeing and Safety Act 2005 (Vic) s 42(2).
Consultative Council on Obstetric and Paediatric Mortality and Morbidity, Annual Report for the Year 2009 (2012) 55.
Births, Deaths and Marriages Registration Act 1996 (Vic) s 12(6).
Ibid s 13.
Ibid ss 14, 18(1).
Births, Deaths and Marriages Registration Regulations 2008 (Vic) sch 2. The Commission notes that these prices will be subject to review in the 2013–14 financial year.
Births, Deaths and Marriages Registration Act 1996 (Vic) s 49.
This is discussed in detail in Chapter 5.
The Registry provided data to the Commission showing that of 75,417 birth notifications in 2011, some 2683 had not been registered (data as at 2 July 2012). This is discussed in detail in Chapter 3.
This is discussed in detail in Chapter 6.