I. PROBLEMS

1.1 This reference on registration of births and deaths calls for consideration of the purposes of registration and the role of the Registry as wen as Registry practice and the legislation itself. The reference grew out of specific difficulties within the Registry, occurring in many cases because registration law and practice were unresponsive to contemporary attitudes and legislative policy.

1.2 The Registration of Births, Deaths and Marriages Act 1973 (the Registration Act) sets out the powers and functions of the Registry, but in many ways the law and practice of registration have changed little since the Registration Act of 1855 which established civil registration in New South Wales. Without denying its importance and, while making increasing demands of its information, the Registry has been largely overlooked by successive governments. Its role is taken for granted. For example, only now in 1988 does the Registry have the extensive computer capacity for which Its operations are so well suited. There is little legislative guidance for the performance of the diverse and often vaguely defined functions expected of the Principal Registrar. His statutory powers are expressed in very wide terms. Some functions of the Registry have developed outside the legislative framework, relying on regulations and administrative processes to fulfil the demands of government. This has occurred without an independent review of the role of the Registry.

1.3 The administrative and social contexts in which the Registry operates have altered in recent years. Developments in administrative law, including the creation of the Office of Ombudsman, the Privacy Committee and the proposed freedom of information legislation¹, reflect community expectations about the role of government officers and concern about the security of Information held by governments. The Anti- Discrimination Act 1977, the Children (Equality of Status) Act 1976, and the De Facto Relationships Act 1984 all recognise individuals and their relationships. In a way quite different from the assumptions on which Registry law and practice were established. The practices followed may not always accommodate the cultural diversity which now exists within society, nor contemporary thinking on issues such as adoption and stillbirths.

1.4 The matters which gave rise to the reference and issues which have emerged in the course of the Commission's work, reflect areas in which the Registry is not always able to fulfil public expectations of the registration system. Dissatisfaction with the registration system was recorded in a number of representations and complaints received by the Registry itself, The Anti-Discrimination Board, The Attorney General's Department and the Law Reform Commission. A sample of the issues which caused concern is given below.

1.5 The most publicised issue relating to Registry practice emerged in a complaint made to the Anti-Discrimination Board which resulted in a hearing before the Equal Opportunity Tribunal. The decision in L v Registrar of Births Deaths and Marriages concerned the practice and procedures of the Registry in relation to registration of a child's surname.² The mother sought to register the child's birth with her maiden surname L, without the consent of her husband, the child's father, from whom she was separated. This was done, but subsequently the birth was re-registered to conform with usual Registry practice. The registration of the child's birth was based only on the information supplied later by the child's father, in the father's surname, S. The mother complained that the Principal Registrar discriminated against her because of her sex and marital status. The Tribunal decided, by a majority, that Ms L’s complaints were substantiated on both counts. The Tribunal found that the Principal Registrar had acted unlawfully and, if faced with such a dilemma in the future, should register particulars according to the form received first by him, whether submitted by the father or the mother. Current Registry practice conforms to the practice suggested by the Tribunal. The decision was widely reported in the media and the new practice has attracted some criticism.³

1.6 Other representations and complaints about the law and practice of registration follow. Some of the issues are specified in the Commission's terms of reference. Others have emerged in the course of consultation on the reference.

• Procedures for registration of the birth of an ex-nuptial child. Where a child's parents are not married, a different Form of information of Birth must be completed. The father of an ex-nuptial child generally may not register the birth nor acknowledge paternity on the register without the mother's consent.
• Registration of a surname of a child. Different practices apply to children of married and unmarried parents. The surname chosen must conform to those acceptable in Registry practice. Registration without a surname is not usually permitted.
• The details required to register a birth or death. Apparent discrimination exists against women in the registration of details about a birth. Criticisms that the particulars are too intrusive are offset by suggestions for recording even more details.
• Embarrassment caused by the form and contents of birth and death certificates. Inclusion of details of the marriage of a child's parents on the birth certificate of the specific place and cause of death and blank sections on a certificate where marriage or paternity details are not registered have all drawn criticism.⁴
• The evidentiary requirements which must be met to register a change of name.
• The special rules concerning alteration of the register following sexual reassignment surgery, and the issue of certified copies of such registrations.
• Registration of the birth of a stillborn child. The Registry issues neither a birth nor a death certificate, and does not maintain a permanent stillbirth register.
• Access to registered information. Copies of registered information are available only to those people considered by the Principal Registrar to have sufficient reason to require them. Those who have been adopted may not have access to their original birth records. Extensive transfer of registered information to various government and other bodies occurs, either with statutory authority or by arrangement with the Principal Registrar.

II. THE REFERENCE

1.7 On 11 November 1985, the then Attorney General of New South Wales, the Hon T W Sheahan BA LLB, MP, referred the following matters to the Commission for inquiry and report:

1. Criteria for registration of the surname of a child of married and unmarried parents, registration procedures and acknowledgment of paternity. In relation to an ex-nuptial child; details to be recorded in relation to births and deaths, provision of certificates omitting potentially embarrassing details appearing in a registration;
2. any related matter.

1.8 The then Chairman of the Commission, Mr Keith Mason QC took charge of the reference and a Division was constituted in April 1986. Mr V M Bennett (Principal Registrar. Registry of Births Deaths and Marriages) and Mr A W Imrie (former Deputy Registrar) accepted appointments as Honorary Consultants to the Division. The Commission has drawn heavily on the advice and expertise of the Principal Registrar. Mr V M Bennett, and particularly wishes to record its appreciation for his assistance. In the course of this reference. Mr Mark Robinson, a Legal Officer of the Commission undertook background research on the law of names and the law and practice of the registration and certification of births and deaths. and prepared a draft discussion paper based on this information.

1.9 In recognition of the particular needs of this reference, an extensive program of consultation occurred prior to the issue of a Discussion Paper. Inquiries were made of government agencies, and private associations concerned with the family and children, women, ethnic and aboriginal communities, and genealogical research, and also religious bodies [see Appendix A]. Submissions were sought on the issues identified by the Commission, including particulars to be supplied at registration and appearing on certificates issued by the Registry, registration of a surname at birth, and ex-nuptial birth registration.

1.10 Extensive inquiries were made of government departments and agencies which receive details of information contained in the registers [see Appendix B]. The Commission asked what and how information is communicated, how it is used and stored, and the authority on which it is received.

1.11 The Principal Registrar of Births, Deaths and Marriages and Registry staff provided assistance and information about the internal operation and practices of the Registry. This information formed the basis for the Division's preparation of a Discussion Paper which was issued in early 1988. The Discussion Paper drew submissions from a wide range of people and community groups. The submissions and further contact with a range of authorities were used extensively in the preparation of this Report [see Appendix C].

III. APPROACH OF REPORT

1.12 The registration system has a fundamental concern with peoples' names and relationships. In Chapter 2 we consider the traditions of naming and discuss the common law related to the acquisition and change of names. We refer also to certain legislation which provides a context for the treatment at law of children and families which is relevant to some legal rights and responsibilities associated with the registration system.

1.13 Chapter 3 examines the system of registration of births and deaths. We examine the origin of compulsory civil registration and present Registry organisation. We analyse the statutory sources of the authority for the powers exercised by the Principal Registrar, and the extent of the discretionary powers which may be exercised.

1.14 Our recommendations appear in Chapter 4. For each aspect of the registration system considered, we present the current law and Registry practice, the issues about which concern has been expressed and our conclusions.

FOOTNOTES

1. At the time of writing the Freedom of Information Bill 1988 (NSW) was still under discussion.
2. (1985) EOC 92-142 Equal Opportunity Law and Practice (Aust & NZ) CCH.
3. Women Lawyers' Association. "Get me to the Registry on Time", (February 1986) 24(1) Law Society Journal at 51-52; "Overstepping Equality", editorial Australian 23 October 1985, which stated that the decision "gives rise to the ludicrous prospect of some parents engaging in a race to the registry office to get in the first bid on the name of their offspring".
4. Concerns about these problems led the Attorney General in 1984 (the late Honourable D P Landa) to propose that, in future, birth certificates should not carry details of a person's parents. See "Change to birth certificates" Sydney Morning Herald, 22 November 1984.