I. BACKGROUND

A. In England

3.1 Henry VIII is attributed with establishing the first registers of personal details. In 1539, his Vicar-General, Thomas Cromwell. Issued orders to the parish clergy that they were to record "every weddying christenying and burying".¹ His purpose was to record the demography of his people, although the contemporary fear was that the records would be used to impose a new form of taxation.²

3.2 The practice of recording baptisms and burials continued to be haphazard and unsatisfactory until 1837 when a system of compulsory civil registration was imposed.³ For the first time births and not baptisms were recorded. The Report of a House of Commons Select Committee which inquired into the law affecting registration indicates the purposes for which universal civil registration were to be used.⁴ Both national and individual interests were recognised. Accurate information about population numbers, health and mortality, and other matters important for government were to be supplied. Individuals were to be provided with legal proof of identity, descent and relationships especially for rights and claims to property. These are still the major purposes of registration.

B. In New South Wales

3.3 The registration system in England, adapted to colonial requirements, provided the model for civil registration in New South Wales. The first records of personal details were those of baptisms, burials and marriages, kept by ministers and chaplains of the Church of England. They date from the First Fleet in 1788.

3.4 In 1810 Governor Macquarie ordered exact registers to be kept by Church of England chaplains of all births and deaths in their parishes.⁵ These records were to be compiled for the Governor for the purpose of transmitting to England "the Exact State of the Population of the Colony". Reporting the state of the colony to the Colonial Office in England was an annual task for administrations until self-government in 1855. Vital statistics were one measure of the colony's progress and the best available source of these was from church records.

3.5 As the colony grew, several Acts were passed to regulate the keeping of church records and to make them available to the administration and the public. At first only Church of England ministers were required to keep records of births, baptisms, marriages and burials.⁶ Later, ministers of other denominations were also required to record details of baptisms, burials and marriages at which they officiated.⁷ Copies of Church of England records were sent to the Church Registrar. Those of other denominations were supplied to the Registrar of the Supreme Court until 1856, except for the period between 1843 and 1849 when the office of Registrar General existed.

II. CIVIL REGISTRATION IN NEW SOUTH WALES

3.6 Compulsory civil registration of births, deaths and marriages commenced in New South Wales on 1 March 1856. The basic principles contained in the Marriages Act 1855⁸ and the Registration of Births, Deaths and Marriages Act 1855,⁹ and the practice of registration established to implement them, have endured until the present with only minor, mostly administrative, changes. The Office of Registrar General was also re-established and the colony divided into registration districts in 1856.

3.7 The purposes of registration then, as now, were both public and private: providing statistical data to government and the public, and authentic legal records for proving descent and identity. It is difficult to determine which purpose was dominant. In his Second Annual Report, the Registrar General responsible for establishing the system commented on:

... the growing appreciation of the advantages, social, political, legal, statistical, and sanitary, which have been found to attend the collection of vital statistics in every civilised country.

As a necessary branch of vital statistics, the importance of a Civil Registry of Births, Deaths, and Marriages, is every day becoming more apparent, indeed, the pursuit of statistical inquiries into every subject affecting human interests, whether individually or in a state of society, seems almost to have become a necessity of the age in which we live: - errors as to facts are thus daily exploded, and more just data are supplied for the judgment of the legislator, and for the right comprehension of the principles which should guide the proceedings of governments and societies, to the promotion of the physical and moral improvement of the people; and, besides this, the importance of having legal records easily accessible, to give security to the principles of inheritance, and to the legal succession to property, is very generally felt and acknowledged.¹⁰

3.8 An immediate result of civil registration was the annual compilation of a comprehensive statistical analysis of data registered about births, deaths and marriages, in table form with commentary.¹¹ This continued to be a function of the Registrar General until a Government Statistician was appointed and a Bureau of Statistics created in 1887.

3.9 The Registration of Births, Deaths and Marriages Act 1899,¹² which repealed the Registration Act 1855, was only a consolidating Act and made no changes to the law and practice of registration. It remained in force until the commencement of the Registration of Births, Deaths and Marriages Act 1973. The Registration Act 1973 was intended to up-date registration law and practice in the following ways¹³:

• to modernise the language and procedure of the original 1855 Registration Act which remained in force as the 1899 Act:
• to enable the implementation of a new system of registration, with regional birth and death registration and central marriage registration:
• to improve the Registry's efficiency by providing for the use of modem technology in processing equipment and techniques;
• to revise the statute law to take account of Commonwealth entry into the law of marriage and legitimation; and
• to make a number of changes of minor significance in the substantive law.

Since 1974, the Registration Act has been amended in only minor ways.

III REGISTRY OF BIRTHS, DEATHS AND MARRIAGES

A. Structure

3.10 Until 1975 the Registry was part of the Registrar General's Department. It is now administered within the Attorney General's Department, having been briefly a part of the Department of Services. The office of Principal Registrar of Births, Deaths and Marriages was created in 1975 and was held by the respective departmental heads. In 1984 the current Principal Registrar was appointed, the first to have a separate position and be located within the Registry.

3.11 The Central Registry is located in Sydney, and consists of four divisions, namely:

• Registration Division which compiles the registers and indexes, and makes amendments and corrections to the registers where appropriate. This Division is responsible for external, (ie, local and regional) registries.
• Certificates Division which maintains all the registers and indexes, and produces the certified copies of registered particulars when requested or authorised. The Family History Advisory Service assists users of the genealogical resources of the Registry.
• Administrative Services Division which is responsible for the data entry of all registrations in the computerised registers, and for general administration of the Registry.
• Client Services Division which attends to all postal, telephone, and personal enquiries and requests for Registry services, and is responsible for performing civil marriages.

3.12 Until 1974 the State was divided into several districts, each with a registrar who maintained the district registers, with duplicates centralised in the Sydney office. Administration was altered by the Registration Act 1973 which abolished the districts and created local registrars at several country centres and regional registries at Newcastle and Wollongong.

3.13 Local registrars (who are usually the local clerks of the court) act as receiving agents for information lodged for registration, and maintain duplicate registers for local production of certified copies of registered particulars. They are authorised marriage celebrants. Regional offices process birth and death registrations from different parts of the State. All other registrations are effected, and central registers and indexes maintained, at the Sydney registry, which now employs computer technology for these purposes.

B. Functions of Principal Registrar

3.14 As head of the Registry, the Principal Registrar is responsible for a variety of functions. They are:

• Establishment and maintenance of the registers and indexes, including effecting amendments where necessary.
• Registration of all births, deaths, marriages, legitimations, stillbirths, memoranda of adoptions, and parentage information lodged with the Registry.
• Issue of certified copies and extracts of registered particulars to applicants entitled to receive them, on payment of the prescribed fee.
• Supply of information to government departments and agencies.
• Civil administration of marriages, including solemnisation and related services.
• Preservation of all original records relating to births, deaths and marriages in New South Wales.

C. Statutory Powers

3.15 The Principal Registrar's powers are to be found in many sources. In this section we describe the specific statutory sources of authority, then in Section D, the discretionary powers exercised by the Principal Registrar. The Registration of Births, Deaths and Marriages Act 1973 is the principal source of authority for the performance of the Registry's functions. It provides for the appointment of the Principal Registrar¹⁴, a Deputy Principal Registrar¹⁵, and local registrars.¹⁶ It is the sole authority and contains detailed provisions for the registration of births,¹⁷ stillbirths.¹⁸ and deaths.¹⁹ The Act specifies the circumstances and manner in which recordings may be altered or corrected,²⁰ or a registration cancelled.²¹ It gives the Principal Registrar power to issue, or refuse to issue, copies of recordings on the registers.²² He is empowered to provide information about births, stillbirths and perinatal deaths to the Health Commission and the Deputy Commonwealth Statistician.²³

3.16 Uniform provisions for the legitimation of children are contained in the Marriage Act 1961 (Cth) ss89-92 and the Marriage Regulations Part V 52-71. Legitimations effected under this Act are recorded by the Principal Registrar.²⁴

3.17 The Children (Equality of Status) Act 1976 requires the Principal Registrar to receive paternity acknowledgments, orders made under Part II of the Maintenance Act 1964 and declarations of paternity and maternity by the Supreme Court, and deal with them under the Registration Act.²⁵ This provides for information to be recorded on registers of births or parentage information.²⁶

3.18 The Adoption of Children Act 1965 provides for a memorandum of adoption or discharge of an adoption order to be sent to the Principal Registrar,²⁷ who then registers the orders in the adoption register kept under the Registration Act.²⁸

3.19 The Artificial Conception Act 1984 establishes an irrebuttable presumption of law that, if he consented to the procedure, the husband or de facto partner of a woman is presumed for all purposes to be the father of a child born as a result of the use of artificial insemination or in vitro fertilization.²⁹ To this extent the powers of the Principal Registrar to register particulars of parents for the birth of such a child are constrained.

3.20 The duty to register marriages derives from the Registration Act,³⁰ but the Principal Registrar and Registry officers also have powers and duties under the Commonwealth Marriage Act 1961 and Regulations. Administration relating to the solemnisation and registration of marriages is performed by the Registry on the Commonwealth's behalf. The Principal Registrar is the sole Registrar of Marriages, Registrar of Ministers of Religion pursuant to s27(1), and Registrar of Marriage Celebrants. Every local registrar is a Prescribed Authority under the Marriage Act, and they and staff members in Registry offices are authorised marriage celebrants pursuant to s39(2) of the Marriage Act.

3.21 The Life Insurance Act 1945 (Cth) makes provision for the Registrar of Deaths (in New South Wales the Principal Registrar) in specified circumstances to furnish a certified copy of a death certificate for a child under ten years of age, endorsed as specified, for the purposes of claiming payment from a life insurance company.³¹ Similar provisions in the Friendly Societies Act 1912³² were repealed in 1976.³³

3.22 Numerous statutes require or authorise the Principal Registrar to furnish or make available registered particulars or information lodged with the Registry.

• Supply of information to the Australian Bureau of Statistics is authorised by s14(1) of the Statistics (Arrangements with States) Act 1956 (Cth) which gives the Bureau access to statistics in all government departments and instrumentalities, and also s54 of the Registration Act.
• Details of deaths and marriages relevant to the compilation of state and federal electoral rolls are provided to the Australian Electoral Office. Section 41(1) of the Parliamentary Electorates and Elections Act 1912 authorises the transmission of specified information about deaths, and s31 requires all government officers with relevant information to furnish it to the Electoral Commissioner. The Commonwealth Electoral Act 1918 s 108, and other arrangements for the joint preparation of rolls, regulate the provision of this information to the Australian Electoral Office.
• The Commonwealth Department of Social Security is empowered by s135TF of the Social Security Act 1947 (Cth) to require anyone with information affecting the granting of benefits to furnish it to the Department. No statutory authority is required to request or receive information given voluntarily.
• The Department of Veterans' Affairs (Commonwealth) is similarly empowered by s128 of the Veterans' Entitlement Act 1986 (Cth).
• The Department of Health (New South Wales) receives information in addition to that authorised by s54 of the Registration Act relating to births, stillbirths and perinatal deaths. The Public Health Act s21 permits access to registered information about all deaths, and s30 requires notification of deaths caused by infectious diseases.
• Supply of information from death registrations to professional registration boards was formerly authorised by various statutes,³⁴ but all relevant provisions have been repealed.³⁵

3.23 In addition to these functions, the Principal Registrar exercises a discretion to provide regularly to other agencies information extracted from the registers. Pursuant to an agreement between the Principal Registrar and the Public Transport Commission in 1979,³⁶ the Department of Motor Transport receives certain information from death registrations. Certain consuls receive some details about the deaths of people born in their countries.³⁷ It is long established practice of the Registry to supply this information, although it has no evidence of the international reciprocal arrangement on which it relies for authority and there appears to be no such agreement, nor any obligation on Australia to supply such information.³⁸

D. Discretionary Powers

3.24 Performance of the Principal Registrar's duties involves the exercise of considerable discretion. The Registration Act confers very widely drawn powers on the holder of the office. The powers are not read down in regulations, nor are there specific guidelines within the Registry for their exercise. In addition the Principal Registrar is able to make administrative decisions in many areas of the Registry's operation which directly affect the public both in the registration process and in their access to registered information.

3.25 The Registration Act requires the Principal Registrar to establish and keep registers and indexes "in such manner and form as he thinks fit".³⁹ In similar terms, he may require further particulars for registration of births⁴⁰ and deaths⁴¹ beyond those stipulated in the Act. Stillbirth registration is effected .as he thinks fit", and may be cancelled or destroyed by the Principal Registrar after two years.⁴² To effect registration of a birth, death or marriage, he "may make such inquiries as he thinks fit- to ascertain particulars, and require any person he believes conversant with the facts to furnish relevant particulars.⁴³ He may alter, correct, supplement or cancel a registration, acting 'upon such evidence as appears to him to be sufficient and if he is satisfied that in the circumstances it is proper to do so". Any amendment to a registration is to be made "in such manner as-he thinks fit".⁴⁴ Certified copies, or such extracts as the Principal Registrar thinks necessary, are issued on request unless in the opinion of the Principal Registrar the reason stated by an applicant is not sufficient.⁴⁵

3.26 Apart from the restriction on providing access to original birth registrations where a person has been adopted, there is only one restriction imposed by the Registration Act on the Registry. Employees are limited to making available to members of the police force particulars of a birth or stillbirth in prescribed circumstances only.⁴⁶ This prohibits a practice formerly followed in the Registry of routinely providing particulars to police when a child was born to a woman younger than sixteen years and eight months.⁴⁷

E. Computerisation of the Registry

3.27 In 1985 the Attorney General's Department decided to fully computerise the records and operation of the Registry of Births, Deaths and Marriages.⁴⁸ They are in the process of installing an integrated information storage and retrieval system using optical and magnetic disk technology and a conventional computerised index. Currently registrations after 1952 are being scanned, transferred to optical disks and stored. Records from before 1952, which are handwritten, require a different technology, and scanning of these will commence in the 1988/89 financial year. When the system is fully operational new registrations will be stored as an image and Registry officers will be able to identify, locate, and print out any document required on demand. Additions and alterations will be easily made, and extracts taken as required.

3.28 Among the benefits of computerisation to the Registry and its users are:

• production of certificates and certified copies on demand,
• faster and easier historical and genealogical research.,
• greater accuracy;
• greater flexibility in certification such as production of abridged forms of certificates, and with legal alterations to contents;
• operational flexibility arising from rapid entry and retrieval, and cross referencing;
• compact and secure storage of records: and
• a networking capability with other Registry offices.⁴⁹

FOOTNOTES

1. R B Merriman, Life and Letters of Thomas Cromwell Vol II (Oxford Press, 1902) at 154.

2. R E Chester Waiters, Parish Registers in England (Longmans, Green & Co, London, 1887) at 5. See also N J Vine Hall, (ed) English Parish Register Transcripts (Society of Australian Genealogists, Sydney, 4th ed, 1985) at 6.

3. Births and Deaths Registration Act 1836 (6&7 Will 4 C86).

4. Report from the Select Committee on Parochial Registration, 15 August 1833 Paper No 669 in Reports of Select Committees 1801-1852 Volume 14, (House of Commons, 1853) at 505.

5. Colonial Secretary: in letters, No 124 General Order 15 September 1810 [AO NSW Ref 4/1725] (State Archives).

6. Act 6 Geo IV No 21.

7. Act 5 Will IV No 2, Act 3 Vic No 7, Act 4 Vic No 14.

8. 19 Vic No 30.

9. 19 Vic No 34.

10. Registration. (Report from the Registrar General), Second Annual Report, (Sydney, 1858) at 1.

11. Annual Report of the Registrar General 1857 to 1867, renamed Vital Statistics, 1868.

12. Act No 17 1899.

13. The Hon J C Madison, Minister for Justice, New South Wales Parliamentary Debates (Hansard) 18 September 1973 at 959-960.

14. s4A.

15. s4E.

16.s5.

17. ss11-15.

18. ss16-21.

19. ss22-28.

20. ss32-36.

21.s40.

22. ss43-48.

23.s54.

24. Registration Act s41.

25. Children (Equality of Status) Act 1976 ss 11- 15.

26. ss42A, 42B.

27.s61.

28. ss30, 31.

29. Artificial Conception Act 1984 ss5, 6.

30.s29.

31. ss108-111.

32. ss56, 57.

33. Friendly Societies (Amendment) Act 1976, Schedule 5(5).

34. Chiropodists Registration Act 1962 s25(2), Dentists Act 1934 s7(2), Medical Practitioners Act 1938 s22(2). Nurses Registration Act 1953 s18(2). Pharmacy Act 1897 s7(b). Physiotherapists Registration Act 1945 s23(2). Veterinary Surgeons Act 1923 s18(2).

35. Chiropodists Registration (Amendment) Act 1973 Schedule 2, Dentists (Amendment) Act 1964 s2(c)(ii), Medical Practitioners (Amendment) Act 1981 new s22, Nurses Registration (Amendment) Act 1964 s2(1)(e), Pharmacy Act 1964, Physiotherapists Registration (Amendment) Act 1972 s2(h)(ii), Veterinary Surgeons Act 1986.

36. Final Report, Management Audit, Registry of Births, Deaths and Marriages November 1983 at 5.

37. Principal Registrar, letter to the Commission 29 April 1986.

38. Department of Foreign Affairs, advice to the Commission May 1988.

39.s9(l).

40.s11(3).

41.s22(3).

42. ss 16, 2 1.

43. ss37,38.

44. See Division 6 ss32-36 (Correction and alteration of registers) and s40 (Cancellation of registration).

45. See ss43, 44, 45.

46. Registration Act s54(3). Registration of Births, Deaths and Marriages Regulations 1973, regulation 7 refers only to cases where the Registration Act appears not to have been complied with or a false or misleading statutory declaration has been made.

47. That is, under the age of consent when the child was conceived; see the Hon J C Maddison, Minister of Justice, New South Wales Parliamentary Debates, (Hansard) 5 December 1973 at 17 1.

48. See Registry of Births, Deaths and Marriages Project, NSW Attorney General's Department, Sydney, March 1988.

49. Ibid.