I. INTRODUCTION

4.1 In the previous chapters, the history, law and practice of the Registry were examined to determine the purposes for which and the principles on which it operates. Few explicit statements of principle were found. It seems that generally the purposes of the Registry are assumed and the principles left unstated. An exercise of discretionary power by the Principal Registrar is relied upon to fill any gaps. This method has been used with reasonable success for many years, but it is now time for more legislative guidance to be given to the Registry on these fundamental matters. Assistance in formulating the appropriate principles can be derived from the related fields of privacy and freedom of information. In the following recommendations the Commission has attempted to apply those principles to the Registry's practices. The continuing importance of the common law in the field is also recognised.

II. PRINCIPLES UNDERLYING RECOMMENDATIONS

4.2 As described in Chapter 3, originally the registration system was introduced to further efficient administration of government. The system arose from a need to know population numbers and distribution, and to calculate population trends. In time, individuals came to rely on the information on the register relevant to them at certain significant times (at birth, death and marriage) to establish identity, family relationships and legal rights. Civil registration was intended to provide universal and accurate accounts of this information for government and accurate records for citizens. As a direct descendent of the English civil registration system, the system in New South Wales was established for these dual purposes. Then, as now, the Registry recognised its service to public administration by supplying data to government agencies.¹

4.3 As no clear principles governing the collection and keeping of these records are enunciated in the relevant legislation, we have sought guidance from three sources: the Guidelines for the Operation of Personal Data Systems propounded by the New South Wales Privacy Committee in 1977,² those stated by the Australian Law Reform Commission, In its Report on Privacy in 1983³ and the principles to be gathered from freedom of information legislation, particularly from those Acts in force in Victoria and the Commonwealth.⁴ From those sources we have formulated three principles of general application:

• only the minimum personal data necessary should be sought and recorded;
• care should be taken to ensure the accuracy of all information recorded;
• access to the information should be consistent with the socially accepted purposes of the register.

4.4 These principles are so wen accepted as part of proper government practice that departure from them would require clear justification. The Commission can see no reason why the Registry of Births, Deaths and Marriages should depart from them. In general, we have found that the Registry abides by them.

4.5 We have received little complaint about the amount or nature of information collected by the Registry. Those complaints referred to in the Report relate to two matters:

• the accuracy of the information recorded and the capacity of the persons affected to correct inaccurate information; and
• the inclusion of potentially embarrassing or discriminatory information on certificates issued by the Registry, particularly when they must be produced as documents of identification for some purposes.

4.6 A variety of measures is used to ensure the accuracy of information placed on the register, although complete accuracy of the register is not an attainable objective. Informants must notify the Registry within one month of the registrable event occurring.⁵ The Principal Registrar must register the event if he is of the opinion that the particulars are sufficient to warrant registration and if he has no reason to believe the particulars furnished are inaccurate.⁶ He has powers to make "such inquiries as he thinks fit"⁷ and to require persons conversant with the event to furnish particulars.⁸ It is an offence knowingly to furnish false or misleading information.⁹

4.7 The extent of verification of events recorded, generally speaking, is a matter left to the Principal Registrar's judgment. Although the Act requires certain people to be informants, (parents in the case of a birth or stillbirth¹⁰ and the occupier of premises or a relative where a death occurs¹¹), any person conversant with the facts may furnish information about an event to the Registry.¹²

4.8 In some cases the requirements for verification are specified. A medical certificate of cause of death or of perinatal death is necessary and must be signed by a medical practitioner.¹³ Documents relating to the disposal of a body must be signed by the person responsible for the arrangements.¹⁴ Marriage registration is effected on receipt of a certificate completed by the authorised celebrant.¹⁵ Registrations of adoptions occur only on the authority of a court memorandum of adoption.¹⁶ Before recordings of legitimations or parentage information are made, the Act provides for verification by statutory declaration or registration on the authority of a court order or declaration, and the concurrence of both parents in the information to be registered.¹⁷

4.9 Although the current system might not ensure complete accuracy of the register, the Commission is reluctant to suggest use of more thorough measures for collecting information. On the whole the information is obtained from those most likely to know its accuracy. Any further measures would require stringent means of certification and crosschecking. The result would be much more invasive of privacy than the current system. It would also be expensive to administer. As the Commission is not aware of serious complaints stemming from inaccuracies or misinformation entered on the register, it does not recommend the introduction of any new systems to produce improved accuracy, (The one exception to this recommendation is discussed at paragraphs 4.117-4.120 below. It concerns the supply of incomplete details on a death registration.) The register will continue to offer reasonably accurate information, but will not be a completely reliable source of personal data. So long as the possibility of inaccuracy is made known to those who use it, the Registry's practices should be regarded as complying with the principles outlined above.

4.10 A common cause of inaccuracy often reported in relation to the keeping of other personal records is the failure to update regularly the information contained in them. Data on the registers of births, deaths or marriages is not as susceptible to dating as many other sources of personal data. The information contained is of interest and importance largely because it is historical. Thus, there is no need to provide an expiry date for these records. The aim is, and should continue to be, to retain information indefinitely. However, inaccuracies may occur for other reasons. The original information may have been wrong or circumstances may have changed making it inaccurate.¹⁸

4.11 Most members of the public have access to their own records to ensure their accuracy and the Principal Registrar has power to amend to reflect the changes required.¹⁹ The decision to amend is the Principal Registrar's. The person affected has no right to insist on the amendment and as the Principal Registrar is given authority to authenticate the amendments in any way he thinks fit, the views of persons other than the person affected may be sought and perhaps relied upon.²⁰ The people affected by them therefore have little control over the accuracy of entries on the register at present. The decision to amend the register lies entirely in the Principal Registrar's discretion and the Commission recommends that the person affected by an inaccuracy be given the right to request amendments to the register. The Commission's recommendation on this matter is discussed further at paragraphs 4.37 to 4.44 below.

4.12 The third privacy principle listed in paragraph 4.3 is that access to the information should be limited. In practice those affected by entries on the register generally have access to and control over the release of the information. Apart from the government and institutional access permitted by the Principal Registrar or authorised by statute, release of the information is by disclosure on the certificates issued by the Registry. At present such disclosure occurs in two ways. A certificate is issued when requested personally or through an acknowledged agent of the person concerned. Information is then disclosed to others whenever the certificate is used for purposes of identification. A certificate may also be issued on other than a personal application if in the circumstances the Principal Registrar is satisfied that the person concerned would have consented to it. Thus a lawyer or sporting club can obtain copies of information on the register, although in the latter case an extract certificate only will be supplied.

4.13 The Commission's recommendations on access to registered information and the form certificates should take are discussed below in paragraphs 4.14 - 4.24 and 4.34 - 4.36.

III. RECOMMENDATIONS

RECOMMENDATION 1: An Open Register

The Commission's principal recommendation is that the Register of Births, Deaths and Marriages should become an open register available to all members of the public, except for those parts which are closed by statutory authority.

4.14 In New South Wales, the register has always been closed, subject to certain qualifications (see below, paragraph 4.19). The Registration of Births, Deaths and Marriages Act 1973²¹ gives the public no right to search either the indexes or the registers. Anyone wanting a copy of an entry on the register must satisfy the Principal Registrar of a sufficient reason for requiring it. The Principal Registrar has the discretion either to refuse the application or to issue a full or extract certificate.²²

4.15 The intention of our recommendations for an open register is that the Registry of Births, Deaths and Marriages should provide open access to all its indexes, except those required by statute to be kept confidential. On payment of the prescribed fee, any person should be entitled to a full copy or an extract of any non-confidential register entry.

4.16 An open register, or open access, does not mean that the public has unrestricted access to the register books. As we understand it, the open register system in other jurisdictions operates in the following way:

• The indexes to the registers are made available in the public area of the registries.
• The public may search the indexes and request copies of the register entries to which they refer.
• No access is permitted to the registers themselves, except by requesting identified copies.
• A request may be made for an official search of the registers to be done by Registry staff.
• Some parts of the register are closed. The indexes and entries relating to adoptions and stillbirths are not available except with special dispensation.

Such an open register system operates in England, Scotland and New Zealand.²³ We recommend that a similar register be introduced in the New South Wales Registry.

4.17 The Commission understands that the computer being installed in the Sydney Registry at present has capacity to implement an open register system. The fees structure is capable of being adapted to accommodate such a system. In other jurisdictions, the scales of fees imposed vary according to the detail of the information supplied by the applicant. A request which provides a precise reference to the certificate required attracts a lower fee than one which involves Registry staff in searching the indexes and entries in the register.

4.18 The reasons for the secrecy of a closed register are not made clear in the Registration Act. They appear to centre on considerations of privacy and confidentiality which are not necessarily given effect in the operation of the registration system or in other public registers in the State.

4.19 For a variety of reasons, the register is not totally closed at present and probably never can be. Both government and private institutions may gain access, although this is not widely known. Private citizens, on furnishing sufficient reasons to satisfy the Principal Registrar of a legitimate interest in the information, may also be given access without the knowledge of the person named in the entry. The confidentiality of the current system depends upon the exercise of the Principal Registrar's discretion in giving or denying this access. The principles on which the discretion is exercised are not publicly known and as no record is made of the people to whom certified copies are supplied, it is not possible to know whether privacy principles have been respected. There is no foolproof identity system, and therefore no practical way of verifying the identity of those applying for access. The Principal Registrar must rely on the honesty of applicants in assessing whether to release the information. As there is no way of guaranteeing the effective operation of a closed system, and since we have received no evidence of abuse of the open register system, the Commission recommends that an open register be substituted for the existing one which may be accessible to those interested enough to deceive the Principal Registrar.

4.20 There is no doubt that at present a birth certificate can be improperly obtained and used to establish a false identity,²⁴ yet it continues to be used by many, including public authorities, as reliable evidence of identity. It is common practice for a birth certificate to be accepted uncritically, without requiring additional evidence to link the person tendering the certificate to the person named on it.²⁵ It is not, and never has been the function of the Registry to provide a person with a complete proof of identity. The introduction of an open register should make this plain to all using it.

4.21 In the Commission's view the possibility that the open register system will be used to gain access to another person's birth certificate merely to satisfy idle curiosity does present a significant privacy problem. We acknowledge that an open register will allow access to information on the register, some of which may be regarded by some people as sensitive; however the present system under which a certificate will be issued on any apparently legitimate application (see above paragraph 4.12) can lead to the same result. The greater concern about privacy arises where a person using a full certificate as evidence for a particular purpose (for example age or nationality) must reveal all the registered information and not only that relevant to the circumstances. In practice the proposals contained in our recommendation about the content of certificates (see Recommendation 3 discussed at paragraphs 4.34 to 4.36) will provide greater protection for privacy than at present. It is unlikely that applications for copies of certificates relating to other people will be made regularly or to such an extent as to cause concern.

4.22 We have no evidence that the practice in other jurisdictions over many years has revealed problems with the open register. A real possibility for abuse of privacy, however, lies in commercial applications of access to registered, information through the sale of computer links to the Registry data base.²⁶ The problem seems to have been avoided in those jurisdictions by giving free personal access to the indexes only, which contain information going little beyond what is more readily available from other sources.²⁷ Certificates are issued in response to individual applications and a not insubstantial fee is imposed, both of which discourage the extensive access necessary for commercial purposes. We believe that on-line access to the Registry's data base should occur only with statutory authority, or on clear principles of public benefit. Under New South Wales law the Privacy Committee has statutory authority to act as a privacy ombudsman. It seems an appropriate body to assess any applications for computer access to information on the registers.

4.23 Another problem in the current provisions for access to the register is that they rely for implementation on exercise of the Principal Registrar's discretion. An open register will eliminate the need for such a discretion. Wide, unregulated discretion is not acceptable unless necessary in times of emergency.²⁸ The principles established in privacy and freedom of information legislation are direct applications of this philosophy. As the operation of the registration legislation has not been reviewed in any real sense since its passage in 1855, it does not contain the principles and guidelines expected in modem legislation. While the Principal Registrar has published some guidelines for the exercise of his discretion in the Registry's manuals, many sensitive decisions are left completely unfettered and depend upon the Principal Registrar's assessment for determination.²⁹ The exercise of such wide discretion cannot be justified by reference to the material stored or the circumstances in which requests are made for its release.

4.24 Legislative decisions have been made to restrict access to some registered material and confidential registers have been created for adoptions, legitimations and stillbirths. The Commission recommends that this system be maintained and that when information is regarded by Parliament as so sensitive that it should not be released without official sanction, it should be recorded on a closed section of the register.³⁰ All other information should be available for public scrutiny.

RECOMMENDATION 2: Information Recorded

The Commission recommends that the Register should contain the minimum information necessary to fulfil the purposes for which it was created.

4.25 The Principal Registrar must record the child's sex, parentage, and the date and place of birth and such other particulars as he thinks fit.³¹ The particulars currently sought under this discretion and included on the birth register are:

• the father's age, occupation, place of birth;
• the mother's age, maiden surname, place of birth, and optionally, her occupation;
• where the parents are married, the date and place of marriage, and previous children of the marriage (including deceased but not stillborn); and
• the name and address of the informant.

Previous versions of the prescribed forms sought information which was entered on the register about:

• the mother's previous married surname;
• the name of the doctor, nurse or other persons present at the birth; and
• whether the child was present (ie when registration was effected).

4.26 The additional information which the Principal Registrar requires is consistent with the purposes for which registration occurs. Most of the particulars serve to identify the person more accurately. All particulars requested also provide statistical data considered necessary (by the Australian Bureau of Statistics) for demographic records and medical research. The prescribed form follows precedents from the establishment of civil registration in New South Wales which, in turn were modelled on forms used in other colonies and in England. Even then there were some who objected to the "impertinent" and "inquisitorial" requests for information made for registration.³²

4.27 Similar concerns have been expressed recently by those who argue certain details are inappropriate, unnecessarily embarrassing, or create the potential for discrimination. Reference to parental marital status, occupation, or ethnic background may cause problems. Submissions drew attention to the privacy implications of having large holdings of sensitive personal data at the Registry especially when computerisation of Registry operations will enhance facilities for storage, retrieval and transfer of data.

4.28 The amount of information currently entered on the register was considered acceptable in the majority of submissions to the Commission, and most agreed that there should be no change in the amount of information requested apart from the addition of a statement of the mother's occupation. Current Registry practice permits optional recording of this information about the mother, while making it mandatory to include the father's occupation. This practice was adopted only after complaints to the Anti-Discrimination Board. Submissions in response to our proposal in the Discussion Paper agreed that the practice was unnecessarily discriminatory; if information about the occupation of one parent is considered relevant, then the same information about the other parent must also be relevant.

4.29 While there are those who would limit the amount of information sought at registration, there are others who argue that as much information as possible should be recorded. To this end, suggestions were made to include the following data on the register:

• Precise addresses, rather than general locality.
• Optional recording by Aborigines of traditional names, tribal relationships, and places of family origin.
• Details of de facto relationships, including children.
• Ethnic background, nationality or citizenship of parents.
• Details of children of the marriage, including details of stillborn children.
• Previous names, and all previous issue, of each parent.
• Full identifying details of informant.

4.30 Each of these suggestions relies on the role of the Registry as keeper of information valuable for individuals in proving identity and descent. Submissions pointed to benefits such as tracing hereditary health problems, reclaiming ethnic or Aboriginal identity, or just providing a more complete identity for a person. Not surprisingly from a community in which interest in genealogy is very strong, it was argued that private and family interests could be better served by more extensive entries.

4.31 As previously suggested the register should contain as little information as is necessary to allow it to carry out its proper purposes. The provision of information to the Registry is compulsory and the Commission recommends that it should continue to be compulsory.³³ However, the compulsion to supply information should be limited to information genuinely required in accordance with the purposes of registration. These purposes include the maintenance of demographic records, personal identification, and the collection of material for genealogical purposes.

4.32 Although no analysis justifying information currently required to be placed on the register has been presented to the Commission. We are of the view that each piece of data is of direct evidentiary value to establish proof of a person's identity and descent. We are not satisfied that the register would be as useful if less information was recorded. Current statistical users assert that they are able to justify the use of every item recorded.³⁴ For genealogical purposes, additional information may well be desirable, however we are not persuaded that compulsory recording of these further matters is necessary. Nor do we regard the additional burden imposed on the Registry to be warranted.

4.33 The Commission has concluded that the information currently required in respect of births is appropriate. The only addition we recommend is to the birth register to record the mothers occupation. We regard the current system of recording this information at the option of the applicant to be discriminatory.

RECOMMENDATION 3: Certificates

The Commission recommends that the certificates issued by the Registry should contain only the information requested by the applicant.

4.34 Currently, Registry practice relating to the release of information on the register is based on the Registration Act and the exercise of the Principal Registrar's discretion under that Act, as well as on several State and Federal statutes which authorise disclosure of registered information.³⁵ Private individuals have access to records (other than those created before 1899) only where the Principal Registrar is of the opinion that they have sufficient reason. The amount of information made available depends on what the Principal Registrar thinks is necessary having regard to the reason for which it is required. Either a full certificate with all registered details, or an extract certificate is available. Access by government bodies occurs extensively by way of copies of all registrations and/or selected compilations, and in response to specific requests. Computerisation will permit on line access by many existing users, and possibly other agencies not currently having access to Registry data.

4.35 An open register as we have recommended does not mean the dissemination of all information contained on it. The most frequent use of the register will be the provision of certificates on personal application and the purposes for which they are required will be specific. Typical reasons will be to accompany passport applications, to support applications for probate and to provide evidence of age, marital status, or nationality for a variety of purposes. It is the Commission's view that the information on the certificate should be limited to that which the applicant wishes to obtain and provide. Thus, a school requiring proof of age on first admission has no need for information about legitimacy or nationality; the Passports Office does not require evidence of sex change: and the marriage celebrant need not know nationality.

4.36 There should be flexibility in the forms in which extracts and certificates of registered information are issued. A person requesting a copy of details from the register should be permitted to specify the content as required for the purpose intended. Any certificate other than a full copy of the entry should bear an appropriate notation that it is less than a full copy. In this way only those details which the person wishes or needs to disclose would be included on the certificate and embarrassment or discrimination caused by the other information would be avoided. There was considerable support in submissions responding to this proposal in our Discussion Paper. Computerisation should make the recommendation easy to implement.

RECOMMENDATION 4: Corrections and Deletions

The Commission recommends that the Register should contain an accurate record of all entries made on it. There should be no deletions or expungement to conceal sensitive or embarrassing material. People affected by entries on the register should have access to ensure that those entries are correct.

4.37 At present the register may be corrected or altered only in accordance with the Act which authorises the Principal Registrar "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" to effect the correction of a clerical error, or an error of fact or substance in a recording.³⁶ Alterations occur frequently but the Registry approach is cautious. Obvious clerical errors detected by Registry staff are corrected by them, but all outside applications are considered by the Principal Registrar only when supported by a statutory declaration and other verification from external sources.³⁷

4.38 As the official record of the event, an original entry in the register must be capable of being modified. No counter argument has been raised before the Commission. The initial recording may be deficient, containing clerical errors, omissions, or errors of fact or substance. These may occur inadvertently or deliberately and if they occur, it must be open for them to be remedied. As it is evidence of identity and descent, a registration should be capable of alteration in all material ways.

4.39 The manner in which an alteration is made on the register is a matter for the Principal Registrar's discretion, although the date of authentication must be recorded.³⁸ It is possible to amend the register either by complete deletion of the erroneous or superseded entry, and the insertion of the new material which amounts to re-registration, or by retention of both the original and replacement entries. In practice, both the original and the replacement are usually retained. Apart from alterations relating to legitimation and adoption, which are governed by statute,³⁹ re-registration is used only rarely.⁴⁰ The fact that an alteration has been made is thus permanently recorded on the face of the register. A full certified copy of an amended entry shows all details, unless, at the Principal Registrar's discretion, the original details are omitted.

4.40 The Commission believes that the register should provide a complete record of all entries made on it. Unless an entry is shown to be incorrect, it should not be removed from the register. Sensitive or embarrassing information, other than information which is protected by statute, should be available on the public record. However, it need not be disseminated automatically on request for a certificate, because of the proposals contained in Recommendation 3. (see paragraphs 4.34 - 4.36). The contents of a certificate should be those requested by the applicant, in accordance with the purpose for which it is required. A person using a certificate for specific purposes of identification should be able to request that only the amended or current details be shown on an extract certificate, and thus avoid the need to disclose indiscriminately sensitive information irrelevant to that purpose.

4.41 We recommend that anyone affected by an entry should be able to apply to have it corrected if he or she believes it to be inaccurate. Such an application should be accompanied by a statutory declaration setting out the corrections required, and the supporting evidence. The Principal Registrar should make the correction if satisfied that the original recording was inaccurate. Where the entry affects someone who is without legal capacity, the application for a correction should be made by the person's guardian or legal representative.⁴¹

4.42 Inaccuracies about people may be contained in entries concerning themselves or others. Thus, particulars about a child may be inaccurately described on an entry about a parent or particulars about relations may appear inaccurately on a death certificate. We envisage that requests for correction may be made by the person affected by the inaccuracy, regardless of the record on which it appears. Where an applicant seeks to correct an entry on the record relating to another person, the Principal Registrar must be satisfied that the other person either concurs, or has no valid objection to the alteration being made.

4.43 Amendments to a child's birth registration should be by application of the child's parents or guardian/s in the same way as the birth is registered. Unless the child's guardians are in agreement, no alteration of the register should be made. It is not the Principal Registrar's function to determine or adjudicate the competing claims of parents or guardians. That is a judicial function exercised in guardianship proceedings.

4.44 Clearly substantiation is necessary before changes are incorporated in the register. Current practice requires a statutory declaration by the person applying to alter the entry, supported by evidence from an objective source. We understand the need for caution but this represents a significantly higher degree of proof than applies to initial recording of the entry. The desire and opportunity to falsify the record would appear to be as great at that time as it may be subsequently. An application by statutory declaration which cites evidence in support would appear to be sufficient authentication.

RECOMMENDATION 5: Birth Registrations

The Commission recommends that both parents should be required to register the birth of their child.

4.46 The father of an ex-nuptial child may, but is not obliged to, furnish particulars to register the birth of his child.⁴⁶ His particulars are recorded in accordance with s42A of the Registration Act which incorporates into the registration system the presumptions of paternity in the Children (Equality of Status) Act 1976.⁴⁷ The Principal Registrar may enter his name as the father of a child if on receipt of:

• An acknowledgment of paternity made jointly with the mother; or
• a sole acknowledgment of paternity to which the mother makes no valid objection; or
• a court order concerning custody, maintenance or payment of expenses which names him as the father; or
• a Supreme Court declaration of paternity.

4.47 Registration is effected on the basis of particulars supplied in the Form of information. The prescribed form contains two schedules: one used only when paternity of an ex-nuptial child is acknowledged, the other in all other cases. These have identical sections about the child and each parent, but there is no reference to the parents' marriage on the version in which ex- nuptial paternity is acknowledged.

4.48 The law and practice of registration have been criticised as being discriminatory on the grounds of sex and marital status. The Act reflects the attitudes of an earlier age when the main concern was to guard against malicious attribution of paternity, and the rights of parents varied according to whether they were married to each other. Unmarried parents cannot name each other on the register. As a consequence the mother who is not married to the child's father may register the birth of her child without reference to the father. She may thus conceal the identity of the father. However, the mother may not declare a man to be the father or register the child in his surname without his acknowledgment, even if he is dead or missing. Similarly the father is given no right to register the birth without the mother's consent, unless she is dead or cannot be located. The father of an ex-nuptial child is not prevented from having his name placed on the register, but he must comply with more in a onerous formalities than the married man. As a last resort he must obtain judicial declaration of paternity. The Act recognises differently a presumption of paternity arising from birth within marriage and the presumptions of paternity arising from cohabitation⁴⁸, and does not afford de facto relationships the recognition accorded the rest of the relationship by the De Facto Relationships Act 1984. In particular the Registration Act equates the father in a stable but de facto relationship with one who merely fathers a child in a casual liaison. It does not distinguish between the father who wishes to assume, or is prepared to accept, all the responsibilities of a parent and the one who does not.

4.49 As well as making reference to the legal issues, submissions on this matter drew attention to the practical problems associated with protecting the interests of the mother, father and child. It was argued that registration of the father's name is important to protect a child from discrimination and to ensure rights of inheritance, and that it should occur without unnecessary obstacles. There was concern that if registration could be effected without proof of identity, either parent, but particularly the mother, may be forced to defend false, spiteful, or malevolent claims of parentage. There was support for giving the father whose paternity was acknowledged, proved, or presumed at law the right to register. Yet the difficulty of placing the Principal Registrar in the position of determining whether a man is entitled to register was recognised.

4.50 In arriving at our conclusions, we considered first the purposes of registration. It creates a public record of, the fact of, and particulars about, the birth of a child. It provides evidence used in the legal proof of identity and descent of the person. It is in the interests both of the public record and the child, that the entry on the register be as accurate and complete as possible. It is also in the interests of the child that the procedures of registration do not create a legal disability or a basis for discrimination. Of great, but necessarily secondary importance, are the interests of the parents. Registration procedures should operate, without discrimination, to permit acknowledgment of parentage. It is therefore desirable that, wherever possible, the names and particulars of both parents should be entered on the register.

4.51 The Commission believes that registration practice should coincide so far as is possible with practice under the law of guardianship. Since the commencement of the Commonwealth Powers (Family Law - Children) Act 1986 in October 1987, guardianship of all children has been vested in "each of the parents" by s63F(1) of the Family Law Act 1975 (Cth). This probably means that each parent may exercise the powers of guardianship individually so long as there is no challenge from the other. When a dispute arises the parents will have to come to an accommodation or seek a court order to authorise action to be taken. These provisions apply to all parents, whether married to each other or not.

4.52 The Registration Act already contains examples of the procedures necessary to allow the Commission's recommendation to be implemented. They appear in s42A which was added in 1976 to give effect to the policies of the Children (Equality of Status) Act 1976 concerning ex-nuptial children. These procedures should now have general application. Section 42A(2)(a) directs the Principal Registrar to register a birth on the joint application of the mother and father of an ex-nuptial child. If the application names the father, but is made by one parent without countersignature by the other, the Principal Registrar may not enter the details until he has notified the other party and given them an opportunity to object.⁴⁹ The Commission recommends that this procedure should be used for the registration of all births.

4.53 Where particulars of the other parent are not given, the birth should be registered with those particulars provided. This would not preclude the other parent from making an application to change the register at some later stage. If the later application is made jointly, the Registry should act on it without further supporting evidence. If not, the Registry should retain the original entry until satisfied that the other party does not object to the amendment or until a court order is made directing the change.

4.54 There are practical difficulties which intrude on any administrative procedures for the acknowledgment of parentage. Although rare, there are circumstances in which the mother's identity is unknown or concealed (by false declaration). More common are situations in which paternity is not revealed, either deliberately concealed by the mother, or because as a matter of fact it is not known. Statutory presumptions in force under the Artificial Conception Act 1984 may leave a child fatherless despite public acknowledgment of paternity by the father.

4.55 These situations create problems beyond the province of the law and practice of registration. It is not the function of a Principal Registrar to make inquiries as to the presumptions of paternity which may apply, nor is it a duty to oversee any compulsory paternity testing. The statutory powers do not extend to the exhaustive verification of the identity of persons named on prescribed forms. It must be open to the Principal Registrar to effect registration on the basis of information supplied by the mother if only in those circumstances in which the child's father is not reasonably identifiable.

4.56 Our proposals are designed to permit the father of an ex- nuptial child to have his name recorded on the register without unnecessary difficulty, unless the child's mother denies his claim of paternity. We consider that requiring him to prove paternity in court when the mother denies it does not constitute undue discrimination under the Registration Act and is consistent with the policy and provisions of the Children (Equality of Status) Act 1976.

RECOMMENDATION 6: Registration of Name

The Commission recommends that it should be compulsory for parents to register a name for their child at birth.

4.57 The Commission regards it as the child's right to have a name registered at birth. This is consistent with Principle 3 of the United Nations Declaration of the Rights of the Child.⁵⁰ Section 11(3) of the Registration Act already requires that a name be given as part of the particulars required for registration of a birth. It is clear that the name referred to in s 11(3) is the forename and not the surname.⁵¹ On some occasions a child is registered without a name.⁵² This is undesirable and parents should be encouraged to provide a name within the month given for registering a birth.⁵³

4.58 The recognition of the importance of bestowing a name upon a child at birth made by the United Nations in the Declaration of Human Rights is compelling. A child's name is chosen at birth by the guardians, which in most cases will be by the parents together. We see it as both their right and their duty to choose a name for the child. Registration of the birth of the child in the chosen name is part of that duty. Any dispute between the guardians over names for the child is beyond the scope of registration law and outside the Principal Registrar's function to decide. It is a matter to be resolved in guardianship proceedings. For the child's sake the matter should be resolved expeditiously in the Family Court of Australia.

RECOMMENDATION 7: Choice of Names

The Commission recommends that the names of a child entered on the register should be those chosen by the parents. The only exceptions to this freedom of choice should be made to ensure that names are not obscene, offensive, or unreasonable in length. The parents should be free to register the names, including the surname, by which they intend the child to be known.

4.59 Although there is no statutory authority for the practice, on occasions the Principal Registrar has refused to register names chosen by parents. This has occurred when names were considered derogatory or too numerous, it has been put to us that the Principal Registrar should have a limited discretion to reject a name, exercised only for reasons of public policy. An unreasonably long series of names or an obviously obscene or offensive name would be rejected on this basis. Apart from these reservations there appears to be no compelling reason why the parents' complete freedom of choice at law to choose a name for their child should not be reflected in the law and practice of registration. The circumstances in which a Principal Registrar may choose to exercise discretion should be very restricted.

4.60 The Registration Act requires the "name" of the child to be entered on the register.⁵⁴ The Form of information currently used to register a birth requires the informant to nominate "Christian or other names" and a "surname" for entry on the register. The Principal Registrar specifies the approved types of surnames in which a registration may be made. Following the decision of the Equal Opportunity Tribunal in the Ms L case,⁵⁵ the Registry has altered its practice and now will record as the surname any of, or a combination of any of, the surnames of either parent acknowledged. Registration in a surname of either of the parents when they are man-led is permitted without the need to obtain the consent of the other. If the parents lodge forms separately and show different surnames, the first to be received is registered. The mother of an ex-nuptial child may not select the surname of the child's father without his consent.⁵⁶ Whilst the prescribed form indicates that the Principal Registrar will not accept a surname different from a parent's, (even if only a spelling variation or anglicisation) there is evidence that it has been the practice recently to permit some departure from this rule, especially to respond to the naming practices of some ethnic groups.

4.61 It is the Registry's view that the restrictions on the surnames in which a child may be registered do not deny the parents the right to choose a name. Consistently with the common law, registration is considered to be a record of the birth and not to constitute evidence of a person's lawful name. The Registry's rules for recording the event are based on the convention by which a child takes the parents' surname. They do not attempt to settle the legal surname of the child. This is acquired by use and reputation. The prescribed form indicates that any other name lawfully acquired by the child may be recorded on the register after proof of its use for 12 months.

4.62 Surnames have always been assigned by the Registry when compiling its annual index to the register of births, but they have been recorded on each entry only since 1966. This was done to accommodate the limited indexing capacity of the computer then installed at the Registry. Current capacity does not impose such restrictions, and the Registry acknowledges that registration of a birth with no surname, or with any surname the parents may nominate, is now administratively feasible.

4.63 Current Registry practice recognises the desirability of a child having a surname which reinforces links with the family unit. It also recognises the importance, of a family name for genealogical research. Many accept the Principal Registrar's argument that the practice is efficient, appropriate to naming traditions in Australian society, and does not detract from the right of parents to choose their child's name at common law.

4.64 To others the practice is unnecessarily restrictive and discriminatory. They argue that it does not support the freedom of choice afforded parents by the common law. The register must later be altered and its evidentiary value diminished when the parents are unable to record the name they actually give to the child. It is also argued that the practice discriminates against those whose naming traditions are not accommodated, and those who wish to vary their family name at the time of the birth of a child. This practice forces some to register a surname which they have no intention of using and later to record a change of name on the register. It is doubtful that the entry on a birth register of a surname never in fact used by the child is an effective means of reinforcing family ties.

4.65 Of concern to some is the Registry requirement that a surname must be assigned on the child's birth registration. The Commission has received representations from parents who wish to give their child forename/s only, and who have had difficulty in gaining the Registry's approval for registration in this manner.

4.66 Registration creates a public record of the event and the basis for proof of identity for the individual. Neither purpose is served by the restrictive naming requirements currently imposed by the Registry. For the statistical needs of government, the surname is immaterial. If identifying data is to be extracted, an entry in the surname actually used would appear to be preferable. Similarly, as a document of identification, a birth certificate in the surname in use is more accurate.

4.67 Nowhere in the legislation of New South Wales is there any restriction on the common law principles of the law of names. A person's true legal name, is the forename. A surname is a matter of convention rather than a legal necessity. It is the right of the guardians to assign a child's name at birth and to determine the surname by which the child is to be known. The conventions on which Registry practice for surnames is based have no greater force at law than rebuttable presumptions. There is no reason for Registry practice to depart from the common law of names.

4.68 It is the Principal Registrar's duty to enter the name of the child on the register. The term "name" is not defined in the Act, but there are persuasive authority,⁵⁷ administrative precedent⁵⁸ and references in other parts of the Act⁵⁹ to support the view that name means forename only and not surname. A surname is not a legal necessity. Thus the Principal Registrar probably does not have power to require parents to give a child a surname and record one on the register if it is their intention that the child will not be known by any surname.

4.69 In the usual case a child will be known by a surname. Parents may accept the surname conventionally assigned, or avoid it by choosing another. They have that discretion. It is desirable that the surname entered on the register reflects their decision about the surname by which it is intended the child be known. This could include a recording in the form "surname Smith-Jones, known as Smith". When no surname is entered on the register, it may be presumed that the child takes the name assigned by convention, unless evidence is produced of consistent use of another surname or that no surname is used. Parents should therefore be encouraged to enter a surname but should not be forced to do so. They should be made aware, however, that if they do not choose a surname for their child, a name will be assigned which coincides with the convention applicable to their circumstances.

RECOMMENDATION 8: Change of Name

The Commission makes the following recommendations on change of name:


(i) there should be no change to the existing law under which a change of name is a matter of choice for an individual, and for which registration is not necessary.

(ii) the evidence required to support an application to register a change of name should be stated in Regulations under the Registeration Act.

(iii) the statutory prohibition on recording a change of surname following marriage should be removed.

4.70 The Principal Registrar is authorised to record in the birth register a name given to a child after registration (that is, an additional name or simply a name where the child was registered unnamed except for a surname).⁶⁰ Where a person effects a lawful change of name (other than a change of surname associated with marriage), that may also be recorded on the birth certificate (or record of adoption).⁶¹

4.71 Section 34 of the Registration Act gives the Principal Registrar discretion to require the written application to be supported by such evidence as appears to him sufficient. It is Registry practice to require evidence of the abandonment of the former name and the acquisition by usage and reputation of a new name.⁶² Evidence of exclusive use of a name for a period of at least one year must be provided to satisfy the Registry of the acquisition of a new name. A deed poll or similar instrument is not considered sufficient evidence. A statutory declaration made by the applicant, containing evidence of the circumstances prior to the period of exclusive use of the new name, and reference to the extent of its use must be furnished. Documentary evidence and a supporting statutory declaration from another person are also required.

4.72 The Registry has special requirements before a change of name will be recorded for a minor. Normally consents from both parents, and the child if over 15, are necessary, but this may be varied at the Principal Registrar's discretion. Whilst he recognises that generally one parent does not have the right unilaterally to change the surname of a child, he will consider such applications. When he is satisfied it is in the best interests of the child, a change will be registered.⁶³

4.73 Various concerns were raised in submissions about registration of change of name. There was some dissatisfaction with the procedures for changing the surname of a child. There was wide support for the proposal in our Discussion Paper to repeal the prohibition on recording a change of surname "consequent upon or effected after ... marriage".⁶⁴ There was much discussion of the suggested options for reform of the Registry practice which imposes more rigorous evidentiary requirements to authenticate a change of name than are required by the common law.

4.74 Currently, there is no need to make an entry on the register to effect a change of name, nor is it mandatory to record a legal change of name on the register. The name in use may therefore be different from the entry on the register. The failure to register may make identification difficult but it does not make it impossible since deeds poll and other less formal means of identifying the change can be used.

4.75 The purposes of the registration system do not extend to maintaining an up to date identity system. Certainly proof of identity is enhanced when the birth certificate shows the change of name, but neither this nor the creation of a public record of the birth makes it imperative to register every change of name. Registration is not necessary at common law to make a change of name lawful. There is no reason to require it under the Registration Act. Therefore, we recommend that registration of a change of a name should continue to be a matter of choice for the individual.

4.76 Since registration is a valuable aid to identification, it should be made more accessible to those who wish to use it as evidence of a change of name. Registry practices currently insist on proof of exclusive use of a new name for a period of at least 12 months, and the supporting evidence referred to in paragraph 4.71, before accepting that a legal change of name has occurred. Whilst we understand the Registry's caution, in combination these requirements seem unduly technical and impose greater, restrictions on the recognition of a change of name than does the common law. As well, the verification required is far more stringent than for an initial registration where no supporting evidence is required. The common law imposes no qualifying period for a change of name. Acquisition of a name is by usage and reputation, and the change operates when the person becomes known by the new name.⁶⁵ Registration of the change does not make it lawful; it merely reflects the change which has occurred. Although stipulation of a time period is arbitrary and may be restrictive, the Commission accepts that it is necessary to protect the integrity of the register. The evidence required to support the acquisition of the new name is properly a subject for regulation under the Registration Act, and not for the unfettered exercise of the Principal Registrar's discretion. There appears to be no reason why the evidence provided by a deed poll should not be sufficient, or proof of exclusive use for a period of six months.

4.77 As a child's birth registration is created on information furnished by the guardians, they should have the authority to change details on the register, including the name of the child. When both parents are the guardians at law, the application should be made jointly by them. There should be provision for one parent to exercise the right to change the child's name if the other parent is missing or cannot be contacted. The Principal Registrar should only act on such an application when evidence is produced which satisfies him that the other parent is in fact missing or permanently out of contact with the child. If the parents are in dispute a joint request will not be possible. It is not the Principal Registrar's function to settle disputes between guardians. The proper forum for this is a court, hearing an application about a child's name as an incident of guardianship. Once the issue is resolved by a court, a judicial order determining the name by which the child is to be known will support the guardian's application for alteration of the register.

4.78 We can discover no explanation for the prohibition on the Principal Registrar's recording a surname change following marriage, although it is a provision common to several Registration Acts.⁶⁶ Perhaps it reflects the view that acquisition by a woman of her husband's surname is no more than a convention and does not alter her legal name. Yet this does not accord with other aspects of the common law of names which permit a person to lawfully acquire any name or surname. It operates to disadvantage a married woman who must produce birth and marriage certificates to establish her identity. It discriminates against the married woman compared with the woman who adopts the surname of her de facto husband. While it is administratively convenient for the Registry not to be required to alter birth registrations for married woman, we find it difficult to justify this prohibition and recommend that it be lifted. It is a discriminatory practice and any difficulties the Registry may experience in effecting the possibly large number of amendments should be overcome by the introduction of the computer system.

RECOMMENDATION 9: Registration of a Change of Name

Administrative responsibility for the registration of changes of name should be transferred from the Land Titles Office to the Registry of Births, Deaths and Marriages.

4.80 It seems logical that registration relating to names be centralised at the Registry of Births, Deaths and Marriages, and the Principal Registrar be responsible for maintaining the public records of changes of name. This would remove a source of confusion and inconvenience for people who wish to register such instruments and obtain access to registered information. We understand that the proposal has the support of the relevant administrations. We recommend accordingly.

RECOMMENDATION 10: Registration of Stillbirths

The Commission recommends that:


(i) a permanent Register of Stillbirths should be created and maintained. The register should not be open to the public, but certificates containing the information entered on the register should be available to the parents.

(ii) The definition of stillbirth in the Registration Act should be amended to accord with the definition used for medical purposes.

4.81 A stillbirth occurs with the delivery of a child who is of at least 20 weeks gestation or at least 400 grams weight and has not breathed after delivery.⁶⁷

4.82 The Principal Registrar is obliged to register each stillbirth of which he ascertains particulars "sufficient to warrant registration".⁶⁸ Particulars should be supplied by a parent, but any other person conversant with the facts may, using the prescribed form for registration of birth.⁶⁹ In addition a medical practitioner must submit a medical certificate of cause of perinatal death, and the person responsible for the disposal of the body of a stillborn child must lodge the prescribed form for registration of death.⁷⁰

4.83 The manner of registration is at the Principal Registrar's discretion.⁷¹ The birth is included in the birth register index with a notation of stillbirth. The "stillbirth register" consists of all relevant documents lodged, kept in alphabetical order at the Sydney Registry, and in notebook form in local registries. No birth or death certificate is issued, but an acknowledgment of notification of a stillbirth may be sent to parents on request. Records may be cancelled or destroyed after two years,⁷² although it appears records for the past five years are extant.

4.84 Substantial dissatisfaction with the law and practice of stillbirth registration is felt by medical and social work professionals and the parents of children who are stillborn. Their criticisms are that registration serves public purposes only and ignores the important personal need of families who desire formal recognition of the birth of their child. In fact, because of the statutory definition of "birth", the parents are not regarded as having given birth to a child at all. The law requires compliance with procedures as though birth and death registrations are to be made, but particulars of the event do not appear on the permanent public record. It is treated as a non-event, and no validation by way of certificate is available to the family.

4.85 The objective of proposals for reform is to remove the distinction created by the Act between the registration of stillborn and live born children. This should be achieved by abandoning the separate register for stillbirths which is capable of cancellation, and having common registration for all births, with provision for an appropriate notation on the entry for the stillborn child. A certified copy of such a registration should be available to parents on request. Associated changes would also permit recognition of the stillborn child as a sibling in all registrations for members of the family.

4.86 Submissions to the Commission on this issue display considerable agreement amongst interested parties. Their experiences and research suggest that these reforms would reflect changes which have occurred in recent years to attitudes to the grieving process.⁷³ It is now widely accepted that this process is fostered by the appropriate recognition of the loss of an expected child. There is also precedent for reform in Victoria and the Northern Territory where certificates are now available for a stillbirth registration.⁷⁴ Similar reform is proposed in Queensland.⁷⁵

4.87 Compulsory registration of stillbirths began in New South Wales in 1934, to allow reliable data to be collected for medical research.⁷⁶ For the purposes of the Registration Act, the child was deemed to have been born alive and to have subsequently died.⁷⁷ The procedures now followed commenced in 1969.⁷⁸ The Registry's perception of the purpose of stillbirth registration is confined to administrative purposes and does not recognise any function to cater for the needs of private citizens. Although the Act contains no prohibition on the issue of certified copies of entries in the stillbirth register, Registry policy, based on its view of public opinion, has been to refuse any requests. The Principal Registrar, however, has indicated that he would be willing to alter Registry policy and seek amendment of the legislation if a need is demonstrated.

4.88 There appears to the Commission to be no reason why the registration system should not serve the dual purposes for stillborn registration that it does in all other cases, it should be possible to accommodate the basic demands of those seeking reform by altering Registry policy within the existing legislation. Preservation of the register and the issue of certified copies of entries would be a minimum response. It may be necessary, however, to make extensive amendments to the Registration Act in order to remove anomalies in the definitions of "birth" and "stillbirth" and to remove the differentation between the registration of each, and embody the changed policy in legislation.⁷⁹

4.89 The stillbirth register should be created and maintained according to the models proposed in our recommendations regarding birth registration. This would place upon parents the duty to furnish the particulars required as for a birth registration, and require the entry of those particulars on a permanent register. Access to certified copies of an entry would be given on request to the parents of the stillborn child. The register could also show siblings of the stillborn child, and the child's name could be included on any registrations of family members in the future.

4.90 Another aspect of stillbirth registration law raised was the inconsistency between the legal and statistical definitions of stillbirth. Whereas the Registration Act refers to a child "who did not breathe after delivery",⁸⁰ the statistical criterion is "whose heart did not beat".⁸¹ It has been argued before the Commission that the anomaly should be removed by amending the definition in the Registration Act to make it conform with the definition used in the compilation of medical statistics.

4.91 The definition of a stillbirth child which appears in the Registration Act is but one definition used in the legal system to determine whether a child has been born alive.⁸² There is no uniformity in these definitions, and none in comparable registration statutes in other Australian jurisdictions. Submissions on this issue from the medical profession have highlighted the inconsistency between the Registration Act's definition and that used by medical statisticians in this State. We note, too, that the definition for registration purposes has altered, over time, to reflect changes in the medical view of viability of children at birth.

4.92 In our view the purposes of registration would be best served' by a definition of stillbirth in the Registration Act which is of value to the collection of medical statistics and medical research, but which simultaneously meets the private needs of the parents of a child who is not born alive. We have received advice from the Department of Health that the definition should be:

a stillbirth is the complete expulsion or extraction of a child from its mother in which the child is at least 400 grams at delivery or 20 weeks gestation (if birth weight unknown) and does not either breathe or have a heart beat.⁸³

Our recommendation endorses this. We recommend that the definition of stillbirth in the Registration Act should be amended so as to remove any inconsistency with the definition used for the purposes of medical statistics.

RECOMMENDATION 11: Registration of Adoptions

The Commission recommends no change to practice in the registration of adoptions. Information on the original birth registration of a child who is subsequently adopted should be retained permanently, although not made available for public access.

4.93 The adoption of a child is recorded by the Registry as a re-registration of the child's birth. The original entry is cancelled. A new registration is made of the child's name and parentage to reflect the new legal and social relationship created by the memorandum of adoption.

4.94 The process of adoption is governed by the Adoption of Children Act 1965 and administrative responsibility is vested in the Department of Family and Community Services. Adoption occurs by court order, making the child the lawful child as if born to the adopter. The Adoption of Children Act provides that a memorandum of adoption, containing details of the child and adopting parents, is to be sent to the Principal Registrar.⁸⁴ The Registration Act requires the memorandum to be registered and a reference to it made on the child's original birth registration.⁸⁵ The memorandum becomes the child's birth registration, from which a birth certificate is supplied. The original registration is cancelled, but not extinguished from the register. A certified copy is available only with the consent of the permanent head of the Department of Family and Community Services, or by a court order.⁸⁶ The policy of governments in New South Wales since 1967 has been to maintain the confidentiality of adoption records and to refuse adopted persons access to their original birth registration.⁸⁷

4.95 Agitation for the abandonment of closed adoption records has been growing in New South Wales especially since at least two Australian States⁸⁸ have followed other countries⁸⁹ in giving adopted people over 18 the right to obtain a copy of their original birth certificate. We have received several submissions which canvass the experience of these places and argue that adoption and registration law should be amended to reflect the changing public attitudes to adoption and to permit release of identifying information both to adopted persons and relinquishing parents. We were urged to consider reform of registration law to accomplish this.

4.96 Adoption law is governed primarily by the Adoption of Children Act 1965. The Registry's role is to store information about two events, the child's birth and the adoption, and to be able to make available a certified copy of information on its register whenever authorised by law. At present the Registry is authorised to provide evidence of identity based only on the child's legal status as recorded in the adoption order. This reflects current policy on adoption. The underlying principles are those of adoption and not registration law. Reversal of that policy is a matter for Parliament and will occur on grounds unrelated to registration law and practice. Should such a decision be made, it is essential that the original registration be in existence so that any change in policy can be implemented. The Registry must ensure that the records of children's original birth registrations are permanently maintained on the register of births so that access to them is possible. Therefore, we recommend that information in the original birth registration of a child who is adopted should be permanently retained by the Registry. Release of that information is not a decision for the Registry but the Registry should be able to give access to the information if and when the policy alters.

RECOMMENDATION 12 - Registration and Artificial Reproduction

Consistently with its recommendations on the registration of adoption, the Commission recommends that the Registry of Births, Deaths and Marriages should become the repository of all information relating to the parentage of children born through use of any of the artificial reproductive techniques. This information should be held permanently, initially on a closed register, until decisions are taken on the storage and release of the information.

4.97 The Registration Act requires that particulars of a child's parentage be recorded.⁹⁰ The Principal Registrar enters the full names of the child's fat-her and mother. These are not defined in the Act, but as the law and practice of registration developed when only natural reproduction was possible, it must be assumed that only biological parentage was intended. Now that artificial reproductive technology is employed, several categories of "parent" exist. By the use of artificial insemination, embryo transfer, in vitro fertilization and surrogacy, children can be created with numerous combinations of biological, gestational, and social parents. The issues for registration are first, which parentage should be recorded, and secondly, whether any record should be made of the use of this technology.

4.98 The register of births in New South Wales appears never to have acknowledged any but social parents. It is known that the procedures, especially artificial insemination, have been practised for some time. Yet no birth registration describes the father as "semen donor, unknown" or the mother as "gestational only". Except in adoption, the parents are always those into whose family the child is born. It has not been Registry practice to inquire of any informant whether artificial reproductive technology or donor gametes have been used. Any information concerning that exists in medical records only.

4.99 Only recently were legislative steps taken to clarify the parentage and legal status of children created by these procedures. Presumptions exist in State and federal law, to regularise if not authorise explicitly the registration of social and not biological Parentage.

• The Family Law Act 1975 adopts State law in assigning parentage to a woman and her partner where the partner has agreed to an artificial conception procedure.⁹¹ This presumption applies regardless to whom the child is genetically related.
• The Artificial Conception Act 1984 provides that when a child is born to a woman as a result of artificial insemination or in vitro fertilization to which her husband or de facto partner has consented, her partner is presumed for all purposes to be the father of the child,⁹² and any semen donor who is not the woman's husband or partner is presumed not to be the father of the child.⁹³

4.100 Registration of particulars about a person's birth establishes evidence for the legal proof of identity and parentage. It reflects the person's legal status, but does not confer that status. In the vast majority of cases, the legal status in a birth registration reflects the biological reality of parentage in others, for example an adoption order, it does not. The parentage of a child born as a result of artificial reproductive technology is not determined by registration, but by the statutory presumptions which apply. In a manner similar to an adoption order, their operation alters the child's legal status. The presumed parentage is recorded on the register which then reflects the social rather than the biological reality. Registration therefore establishes the proof of the person's legal identity as determined elsewhere by law. It is unnecessary to recommend any amendment to registration law or practice other than that it should ensure that the particulars of a child's birth are furnished in accordance with the legal presumptions. Birth certificates should contain these details and not any revealing the use of artificial reproductive techniques.

4.101 Registration of social parentage in accordance with the statutory presumptions conceals the biological or gestational parentage and the fact that artificial reproductive technology has been used. This information relates to the circumstances of the child's birth, and the child's actual identity and descent. It should be recorded permanently. Here too, we draw a parallel with the registration of a child who has been adopted. We believe it is important to register the relevant information.

4.102 It is not usual to make this information available to the child who is born as a result of using this technology. Confidentiality has been maintained so far, not as a result of government policy (as with adoption), but because of decisions made by the parents and the medical profession. It is an area in which public opinion may well change, and release of the information may be considered desirable or even essential in the future. Therefore it is important that information should be stored permanently and securely.

4.103 There are three places where the information may be stored: the medical institutions where the procedure is carried out; a government agency concerned with child welfare, or the Registry of Births. We believe there is a strong case for making the Registry of Births the keeper of this information, in the same way as it stores original birth records of adoptees. This is consistent with the recommendation made by the Commission in the Surrogate Motherhood Report.⁹⁴

4.104 Once it is recorded, access to the information would need to be determined as a matter of public policy. The role of the Registry would be to implement the decisions made at law about who should have access and the circumstances in which access should be given.

RECOMMENDATION 13: Registration and Transsexuals

The Commission recommends that:

(i) alteration of the register should be permitted to reflect change of sex following sexual reassignment surgery;

(ii) applications for such alterations to the register should be supported by a statutory declaration citing appropriate medical evidence;

(iii) an application for a change of name to a name more appropriate to a member of the opposite sex should be accepted and the change registered, provided the application is supported by evidence necessary to prove change of name at common law;

(iv) no entry on the register should be expunged following an alteration to sex or name, but certificates issued by the registry should contain only the information requested by the applicant;

(v) these parts of the register should be kept open to the public.

4.106 In the Court of Criminal Appeal recently, Street CJ and Mathews J held for the first time in Australia that a person could be psychologically a female although born a male. In R v Harris a person who had undergone full sexual reassignment surgery appealed against conviction of an offence under s81A of the Crimes Act 1900 that "being a male" he had attempted to commit an act of indecency with another male person.⁹⁸ In allowing the appeal, the majority of the Court rejected an argument that the physical and medical facts were necessarily conclusive in determining gender. The Court was not prepared to decide that surgery combined with psychological outlook would always be determinative of a person's gender. Mathews J expressly excluded the application of her determination to the law of marriage and decided that Ms Harris' co-defendant, who had not undergone surgery, was correctly described as a male person within the terms of s81A.

4.107 Whether through error or decision to change, the registration of birth may state a sex which is different from the sex the person chooses. The discrepancy becomes an issue because under the law, many rights, benefits and detriments are determined solely on the basis of whether a person is male or female. Underpinning this system is the understanding that a person's sex is self-evident and conclusive in reality and at law. Registration of birth provides evidence in proof of a person's identity, including sexual identity, by which legal status is determined. A discrepancy between the recorded and apparent sex creates difficulties for the person, including those relating to legal status.

4.108 The Registration Act gives the Principal Registrar considerable discretion in the means by which an alteration to the register is made.⁹⁹ It is Registry practice to re-register the birth of a child on medical evidence that the sex of the child was recorded incorrectly, or that surgery has altered the child's apparent sex. This practice is not followed for transsexuals. For some time the Principal Registrar has permitted a person producing medical evidence of having undergone sexual reassignment surgery to record a change of name on the birth registration which is gender appropriate, but he will not alter the recorded sex.¹⁰⁰ This means transsexuals must comply with stricter requirements than others to have a name change recorded. It was the practice of the Registry not to issue an extract certificate showing only the new name. The person would be issued only with a full certificate complete with original and amended names and the sex as registered at birth. The rationale for this policy was to prevent a transsexual using m extract as misleading proof of identity for purposes of the Marriage Act 1961 and to participate in a void marriage.

4.109 Since October 1987 Registry practice has altered to permit the issue of an extract certificate with no reference to sex. The change occurred after the Principal Registrar obtained assurances that the Commonwealth Attorney General's Department (which administers the Marriage Act) had no objection. This change has resolved only one of the difficulties created for transsexuals by the registration system. The Registry will still not alter the sex on the register. As yet, there is also no recognition for pre-operative and non-operative transsexuals who may not register even a change of gender-specific name, and there is some dissatisfaction about the registration of death in a transsexual's original name and sex.

4.110 It is argued that legal acceptance of reassignment, including recognition by registration authorities, is necessary to preserve the rights of and prevent discrimination against those who are transsexuals. The solution proposed is for the Principal Registrar, on proof of successful sex reassignment surgery, to amend the birth register, issue a certificate showing the amended details only. and permit access to the original records only with the consent of the person or on a court order. This is tantamount to re-registration of the birth. A similar proposal in our Discussion Paper received some sympathetic support. It was recognised that the Registry's previous policy on the issue of extract certificates was discriminatory and based on concerns best dealt with under the Marriage Act. Understandably, there was opposition to our proposals, both on the grounds that a closed register for transsexuals would itself be discriminatory, and that there should be no recognition of these people as a matter of public policy.

4.111 We accept that transsexuals face significant practical difficulties whenever social practices require production of a birth certificate as a document of identification. Although the solution proposed involves the right to amend the birth register, it is not simply a matter of registration law. As a person's legal status depends on their sex in many instances, the full resolution of the problem must involve changes to the law relating to the determination of a person's sex. This is beyond our terms of reference. This area of the law is in a state of transition, and transsexuals have the right to cancel their original birth registration in several European and North American jurisdictions. This right has not been conferred in Australia or England. Judicial decisions are scarce. So far none recognises that transsexual surgery alters a person's legal sex for all purposes.¹⁰¹ Nor has legislation provided that right. A draft Sexual Reassignment Act (NSW) prepared in 1986 and designed to secure the legal status of transsexuals has not yet been tabled in Parliament. In view of this, we do not consider that it is appropriate to make recommendations which would alter the substantive law on this matter. However, there are some aspects of the issue which can be addressed within the framework of the principles we have adopted and the recommendations we have made about the registration system generally.

4.112 Our conclusions and recommendations, especially about alteration of the register and access to registered details where the register has been altered are presented above, at paragraphs 4.37 - 4.40. It is our view that correcting errors in the original registration, and recording subsequent changes to registered details is consistent with the purposes of registration. Any alterations should be recorded so that the original recording is retained on the face of the register. There should, however, be flexibility in the form of certificate available to allow a certificate to be issued which omits reference to sex or which shows only the current status of the applicant.

4.113 Application for change of sex to be recorded should only be entertained from those who provide medical evidence of having undergone sexual reassignment surgery. For the reasons given by Mathews J in R v Harris, to accept any evidence short of surgery to enable a change would be unacceptable. It could only lead to difficulties of proof and abuse by those who are not true transsexuals. We agree with Mathews J that this could lead to a trivialisation of the difficulties genuinely faced by people with gender identification disharmony".¹⁰²

4.114 A person should be entitled to record any change of name, whether or not it is gender appropriate. There is no restriction on change of name at common law. The altered details should be available on a certified copy of the register, endorsed as "current status only" in line with the general policy recommended for the Registry. The full copy of the register should show all information, original and amended. If a decision is to be made to close this part of the register it must be done by way of legislation or regulation, and not as an exercise of the Principal Registrar's discretion. This matter is beyond the Commission's terms of reference and we make no further recommendation.

RECOMMENDATION 14: Registration of Death

The Commission recommends that where possible the particulars necessary for the registration of a death should be obtained from a relative of the deceased person as relative is defined in the Registration Act.

4.115 Although our terms of reference specifically refer to the registration of deaths we have found little evidence of community dissatisfaction with this aspect of the registration system. We have received submissions on the information which should be recorded in relation to deaths and on the inclusion of potentially embarrassing details on the death certificate. Another issue which has been addressed is the integrity of information recorded on the death register. We consider only those issues.

4.116 Compulsory registration of a death serves dual purposes, as does birth registration. For public purposes it is considered necessary to have a statistical record of both the fact of and the cause of each death. It is the only method by which reliable statistical and actuarial data can be collected, identifying information about the deceased is used by various parts of the administration.¹⁰³ For private citizens, death registration provides evidence of the event and of the identity of the deceased, as well as genealogical information. Consistent with our approach to the reform of birth registration, our recommendations take all these purposes into account. As well, the principles outlined in paragraph 4.3 are applied, where relevant.

4.117 Registration of a death is governed by the Registration Act and the Coroners Act 1980. The Principal Registrar must register each death where particulars have been furnished or otherwise ascertained or established.¹⁰⁴ Various documents relating to the cause of death and disposal of the body must be lodged with the Registry, completed by a medical practitioner or coroner, and the funeral director. Particulars about the deceased which are required for registration are lodged in the prescribed Form of information. The duty to furnish particulars falls on:

• he occupier of a house or institution where the death occurs there; or
• a relative of the deceased where the death occurs elsewhere. A relative means spouse, parent or guardian, or any son, daughter, brother or sister aged 18 years or over, but any person conversant with the facts may do so.¹⁰⁵

The Act provides for particulars to be furnished to the funeral director or a local registrar.¹⁰⁶ In practice the funeral director completes the prescribed form from information provided by the next-of-kin, another relative, a friend, matron of a hospital or a trustee.

4.118 Concern has been expressed that the current procedures permit people who are not sufficiently familiar with the deceased's personal details to be informants and so compromise the integrity of data entered on the register. A significant proportion of death registrations contain inaccurate information or not known entries as a result.¹⁰⁷ This reduces the evidentiary and genealogical value of the document.

4.119 The remedy which has been proposed is to permit, where possible, only those with the required relationship with the deceased to be sole informants, and more distant relatives and acquaintances to furnish only the information necessary for disposal of the body. This may require that the prescribed form be submitted at a later date by an appropriate informant or that the Registry verify with such a person particulars furnished by another.

4.120 It is clear that current procedures do not always result in the collection of accurate information about the identity and descent of the deceased. If this may be improved by an alteration to the administrative practices of the Registry, then we believe this should occur. Distinguishing between the data necessary to identify the deceased on the register and information relevant to the cause of death and disposal of the body is consistent with the dual purposes of registration. As the proposed procedures add little burden to the Registry's task, and would result in the creation of more valuable records, we recommend that they be adopted.

4.121 The Principal Registrar is required to effect registration by recording the deceased's name, parentage, date, place and cause of death, and such other particulars as he thinks fit.¹⁰⁸ The Registry records the following additional information on the death register:

• sex and age;
• usual residence and usual (or previous) occupation;
• place of birth and, if appropriate, period of residence in Australia;
• marital status and details of each marriage; and
• names of all children, including ex-nuptial and legally adopted.

4.122 Certain other information is collected for statistical purposes only.¹⁰⁹ A certified copy of the entry contains all recorded data with the exception of the period of residence in Australia, which at one time was included on the death certificate.

4.123 The inclusion in the register of deaths of details which may be embarrassing or potentially discriminatory is specific to the terms of this reference. Amongst this potentially embarrassing information is the exact cause of death or the place of death precisely identified. As well, an accurate account of the person's parentage or descendants may reveal information previously concealed from relatives and others with legitimate access to the register or death certificate. As we have determined with regard to birth registrations, this is more appropriately considered as a question of access to registered information. Nevertheless, it raises an important issue which must be addressed.

4.124 We would argue that it is not only unreasonable to expect or permit the Principal Registrar to censor sensitive information in these circumstances, but that he has a positive duty not to conceal the truth, and to ensure all data is recorded precisely and fully. Registration of a death creates a document recognised as evidence of the particulars it contains about the person and the event.¹¹⁰ Its veracity may be of crucial importance in legal proceedings arising from the death, for example concerning criminal acts or administration of the deceased's estate.

4.125 Consistently with our view throughout these recommendations, we do not recommend that any information entered on the death register should be made confidential. Like all certificates issued by the Registry, however, the contents of a death certificate should meet the requirements of the applicant for it. In this way, most of the public embarrassment caused by entries on the register would be avoided.

4.126 The extensive information which the Principal Registrar requires under his discretion clearly provides a more precise identification of the deceased and of any children. This aspect of the information on the death register has been referred to in submissions. The proposals for reform refer to the need to record all details meticulously, and the value for genealogical purposes of recording additional information. This additional information could include the following items:

• previous names of the deceased;
• last usual domestic residence;
• occupation of parents;
• full names of each spouse and child;
• details of de facto relationships, spouses and children; and
• nationality, citizenship, or ethnic background of deceased and his or her parents.

4.127 Death registrations in New South Wales already record quite comprehensive details identifying the deceased and their families. Proposals to increase the amount of information compulsorily recorded do not raise privacy implications to the same degree as birth registrations. The potential for misuse of such data does exist, but is small. Obviously for genealogical purposes recording additional information is desirable. However, we are not persuaded that compulsory recording is necessary. Nor do we regard the additional burden imposed on the Registry to be warranted.

1. The Registrar General responsible for implementation of compulsory civil registration argued:

"The machinery of this Department ... may be available for many useful and important objects. at present either wholly neglected or entrusted to Departments with whose duties they have no very intimate connection ..." Registration (Report from Registrar General) (Sydney, June 1856) at 5.

3. ALRC 22, Privacy (AGPS, 1983).

4. Freedom of Information Act 1982 (Vic) and Freedom of Information Act 1982 (Cth). At the time of writing the Freedom of Information Bill 1988 (NSW) was still under discussion.

5. Registration Act. ss12(1), 17(1), 23(1).

6. ss11(1)(b), 16(1)(b). 22(1)(b).

7. s37(1).

8. s38(1).

9. s57(1); see also Crimes Act 1900 ss337, 547A.

10. ss12(1), 17(1).

11. s23(1).

12. ss12(2), 17(2), 23(2).

13. ss18(2), 24(2).

14. s28. The funeral director or other "person responsible".

15. s29(2); Marriage Act s50(4).

16. Registration Act. ss30, 31.

17. Part IV Recording of Legitimations and Parentage Information ss41-42B.

18. For example, a person may have changed his or her name by usage or sex by surgery and may wish to alter the register to reflect the change.

19. ss32, 35.

20. s35(6)(a).

21. ss43 - 48A

22. s44.

23. Births and Deaths Registration Act 1953 (Eng); Registration of Births, Deaths and Marriages (Scotland) Act 1965; Births and Deaths Registration Act 1951 (NZ).

24. Royal Commission of Inquiry Into Drug Trafficking, Interim Report No 2 Passports (AGPS, Canberra, 1982) at 30-40.

25. Id at 50; D P Byrne and J D Heydon, Cross on Evidence, (Butterworths, Sydney, 3rd Aust ed, 1986) at 1058; Evidence Act 1898 s30(1); Registration Act, s48(4).

26. The Lands Titles Office currently supplies information or sells indexes which are used to access Information held at the Office: Land Titles Office Annual Report 1988 at 13, and the Department of Motor Transport supplies information for commercial purposes.

27. For example, newspapers and electoral rolls.

28. M Aronson and N Franklin, Review of Administrative Action (Law Book Co. Sydney. 1987) at 26-30; De Smith's Judicial Review of Administrative Action (J M Evans ed) (Stevens & Sons. London, 4th ed, 1980) at 295.

29. Most of the Registry's practice in the choice and registration of names falls into this category. as does the practice on destroying stillbirth records and the issue of certificates to transsexuals.

30. The records of parentage in IVF births may also be dealt with in this way by statute.

31. s11(3)

32. Registration, Second Annual Report 1858; Blackett v Newman (1858) 2 Legge 1117.

33. Registration Act ss12, 17. 23; Marriage Act 1961 (Cth) s50(4).

34. Australian Bureau of Statistics, submissions to the Commission of 14 May 1986 and 14 July 1988.

35. ss43-48A: see above paras 3.22-3.23.

36. Division 6 ss32-36, s32(1).

37. Manual of Practice for the Guidance of Local Registrars of Births and Deaths, New South Wales, Ch X 38. s35(5),(6).

39. ss31, 41.

40. For example, it is used to record a change of sex for an entry in relation to a child.

41. Those without legal capacity include children and the mentally incapable. The next of kin should be the person informed when a death certificate is to be amended.

42. s12(1) but any other person conversant with the facts may furnish particulars: s12(2).

43. s4(1).

44. (1985) EOC 92-142 Equal Opportunity Law and Practice (Aust & NZ) CCH.

45. As occurs now in 75% of registrations: Australian Bureau of Statistics Births New South Wales 1987 (Sydney. 1987) Table 18 at 18. In 1976 ex-nuptial-paternity was acknowledged in only 56% of registrations.

46. s14(1).

47. ss 11- 13.

48. Family Law Act 1975, s66Q. Children (Equality of Status) Act 1976, s10(3).

49. Registration Act, s42A(S)(c).

50. Principle 3 states that "the child shall be entitled from his birth to a name...".

51. Discussed paras 2.6 - 2.12; and see paras 4.68, and notes 57-59.

52. Provision is made to add a name later. Registration Act s34(1). Although there is provision for the Principal Registrar on the application of the parents or guardian to insert a name if a person has been registered with only a surname, only rarely will a child be registered as -unnamed- with a surname.

53. s12(1).

54. s11(3).

55. (1985) EOC 92 - 142.

56. See Registration Division Circular 1 April 1986.

57. Re s22 of the Registration of Births, Deaths and Marriages Act [1973] Qld R 441.

58. Prescribed forms used at the Registry since 1856.

59. s34(1).

60. s34(WA).

61. s34(1)(b).

62. See Manual of Practice for the Guidance of Local Registrars of Births and Deaths, Ch III-9.

63. The criteria are outlined in the Manual of Practice for the Guidance of Local Registrars of Births and Deaths, Ch III-9 and include the principles stated in George v Radford (1976) FLC 90-060.

64. s34(1)(b)(ii).

65. See discussion at para 2.13, and Du Bourlay v Du Bourlay [1869] LR 2 PC 430. Earl CowIey v Countess Cowley [1901] AC 450.

66. For example, Registration of Births, Deaths and Marriages Ordinance 1963 (ACT s22(1), Registration of Births, Deaths and Marriages Act 1980 (Nn s21(3).

67. Delivery is the complete expulsion or extraction of a child from the mother: Registration Act s4(1).

68. In accordance with Division 2. ss16-21.

69. s17(1), (2).

70. s18.

71. s16(2).

72. s21.

73. Stillbirth and Neonatal Death Support Group (SANDS). submission to the Commission. 25 May 1988; oral submissions from medical practitioners and social workers; debate on Registration of Births, Deaths and Marriages (Amendment) Bill (Vic) in Victorian Parliamentary Debates (Hansard), 16 October 1985 at 865-888.

74. Registration of Births. Deaths and Marriages Act 1959 (Vic) s27A. Inserted 1986 by Registration of Births. Deaths and Marriages (Amendment) Act 1985: Registration of Births, Deaths and Marriages Act 1980 (NT).

75. Registration of Births, Deaths and Marriages Amendment Bill 1988 (Qld).

76. Registration of Birth. Deaths and Marriages (Amendment) Act 1934 s3, inserting s19A into the 1899 Registration Act.

77. Registration Act 1899 s19A.

78. Registration of Births. Deaths and Marriages (Amendment) Act 1967 s2(1)(g), repealing s19A and inserting Division 2 ss30B-30F into the 1899 Registration Act.

79. Submission from SANDS.

80. s4(1).

81. Professor R Shearman, letter to the Commission, 30 January 1987.

82. See Crimes Act NSW s20, Definition of Child Murder; R v Hutty [1953] VLR 338 at 339 per Barry J; Williams, Glanville Textbook of Criminal Law (Stevens, London, 2nd ed, 1983) at 289-90.

83. Maternal and Perinatal Sub-committee, New South Wales Department of Health, advice to the Commission, August 1988.

84. Adoption of Children Act, s61.

85. ss30,31(1)(a), or on a memorandum relating to that person previously registered, s31(1)(b).

86. s46(1).

87. The Adopted Persons' Contract Register administered by the Department of Family and Community Services can match adoptees and their natural parents but only if both parties independently register their names and addresses.

88. Western Australia, Victoria.

89. Scotland, England, Finland, Israel.

90. s11(3).

91. Family Law Act 1975 (Cth) s60B(1),(4).

92. Artificial Conception Act 1984 ss3, 5.

93. Id s6.

94. The Commission there recommended that an accurate record of the circumstances of the child's conception and birth should be kept on the register of births and that this should be available to the child on attaining the age of 18: Recommendation 11, New South Wales Law Reform Commission, Surrogate Motherhood Report (LRC 60, New South Wales Government Printer, 1988) at 66.

95. s11(3).

96. See Corbett v Corbett [1971] P 84 and Family Law Council, Birth Certificate Revision of the Sexually Reassigned (Working Paper No 1, July 1978).

97. See "Mother says Kylie is a girl, but the law says she's a boy", Sydney Morning Herald 9 September 1983 (report of South Australian child).

98. Unreported (Court of Criminal Appeal,NSW, 31 October 1988, Street CJ, Carruthers and Methews JJ). 99. s35.

100. See Manual of Practice for the Guidance of Local Registrars of Births and Deaths, Ch X-3.

101. Even in R v Harris (see para 4.106 above) the Court of Criminal Appeal was not prepared to recognise a change of sex for the purpose beyond those which confronted the Court. Corbett v Corbett [1971] P 84; R v Tan and Others [1983] QB 1053 (CA); Rees v United Kingdom (1987) 9 EHRR 56 (European Court of Human Rights)/

102. R v Harris note 98, judgment of Matthews J at 43.

103. Above para 3.21-3.23.

104. s22(1).

105. s23(1), (2), (5).

106. s23(1).

107. Mr M R Sainty, submission to the Commission. 12 May 1988.

108. s22(3).

109. Municipality or shire of usual residence, whether the deceased was a pensioner or Australian aborigine.