The functions served by the Registry are threefold. The Registry assists government in keeping accurate and current records of events affecting the population. This allows information to be compiled on birth and marriage rates and on the causes and ages of death by the Australian Bureau of Statistics and State and Commonwealth health bodies. More broadly it enables the compilation of data and statistics to assist in future planning and development. The Registry supplies private individuals with certificates to provide evidence of identity, to compile family histories and to establish family relationships (including the recording of legal changes in family relationships, such as adoption and legitimation). For most people the issue of a passport depends upon the Registry's information. The information held by the Registry can also be crucial in establishing relationships for the purposes of administering deceased estates.
More fundamental questions about the functions of the Registry are also raised by the terms of reference of this inquiry. To represent the Registry as merely a passive recipient of the information notified is misleading. Greater demands are made on the Registry. Increasingly its records are used to assist in legal processes and the public has come to rely on the register for up-to-date and accurate information. As a result the Principal Registrar has felt obliged to formalise procedures to safeguard the privacy of the register. He also exercises administrative discretion to ensure that unacceptable material is excluded from the register and that details which he regards as undesirable or embarrassing do not appear on certificates.
The case which gave rise to this reference provides a good example of the changing use of the register and the resulting difficulties being experienced by the Registry. If the register is regarded as serving only the limited purpose of a record of events, there is no reason why in that case the Principal Registrar should not have accepted notifications from both parents and made two entries on the register. Where they have no legal significance, the only harm done by the two entries would be administrative inconvenience and possibly, if the duplication were not made plain, some confusion in the statistics taken from the records.
It is clear, however, that these days entry of a surname on the register is popularly regarded as having some legal significance. Although technically not essential to achieve the purpose intended, the production of a certificate issued by the Registry simplifies many legal procedures. An Australian passport is difficult to obtain without a birth certificate and its production is the easiest way to satisfy a marriage celebrant that a person is of marriageable age. The production of a marriage certificate is also the most efficient means of proving a marriage in proceedings in the Family Court and schools and sporting groups often demand a birth certificate as proof of age for their purposes. If entries on the register are to be allowed to have legal significance, decisions must be taken as to the duties of the Registry to ensure the currency, accuracy and authenticity of the records. In particular, a decision has to be taken on who should bear these responsibilities, the Principal Registrar or some other, independent, person or tribunal.
The Commission is of the view, tentatively, that so far as possible the Principal Register should be protected from the exercise of any wide discretion. So far as is possible, questions of what information should be entered on the register should be spelt out in the legislation which regulates the Registry and, where a need for the exercise of discretion exists, this should be exercised by a court.
The Principal Registrar should be able to refer to clear guidelines to determine which surname should be entered on the register and any dispute over his decision should be referred to a court.
The Commission seeks an expression of views on the proper function of the Registry and the powers which the Principal Registrar should be asked to exercise.
