Births, Deaths and Marriages Registration Act 1999 (Tas)

Births, Deaths and Marriages Registration Act 1999 An Act to provide for the registration of births, deaths and marriages and to provide legal recognition for trans and gender-diverse Tasmanians and those with innate variations of sex characteristics [Royal Assent 24 November 1999] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Births, Deaths and Marriages Registration Act 1999 . 2. Commencement (1) Sections 1 , 2 and 62 commence on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act commence on a day to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – adult means a person who is aged 18 years or older or, although under that age, is or has been married; authorised celebrant means an authorised celebrant under the Marriage Act 1961 of the Commonwealth, as amended; birth means the expulsion or extraction of a child from its mother; birth registration statement means the statement referred to in section 13 ; change of name includes an addition, omission or substitution; child includes a stillborn child; corresponding law means a law of another State that provides for the registration of births, deaths and marriages; death does not include a stillbirth; disposal of human remains means – (a) cremation of the remains; or (b) burial of the remains, including burial at sea; or (c) placing the remains in a mausoleum or other permanent resting place; or (d) placing the remains in the custody of an educational or scientific institution for the purpose of medical education or research; or (e) removal of the remains from the State (but not if the remains have been cremated or are taken from the State by sea and buried at sea in the course of the voyage); funeral director means a person who carries on the business of arranging for the disposal of human remains; gender – see section 3A ; gender amendments day means the day on which Part 4 of the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 commences; gender declaration means a statutory declaration in which the declarant declares that the declarant identifies as being of the gender specified in the declaration and lives, or seeks to live, as a person of that gender; midwife means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the midwifery profession; previous registered gender, in relation to a person, means a gender that was the registered gender in relation to the person before section 28C(7) applied in relation to the registered gender; previous registered sex, in relation to a person, means a sex that was the registered sex in relation to the person before section 28C(7) applied in relation to the registered sex; prohibited name means a name that – (a) is obscene or offensive; or (b) could not practicably be established by repute or usage – (i) because it is too long; or (ii) because it consists of or includes symbols without phonetic significance; or (iii) for some other reason; or (c) includes or resembles an official title or rank; or (d) is contrary to the public interest for some other reason; recognition certificate means a certificate that – (a) is issued under a law of another State or a Territory that recognises that a person may have changed sex or gender; and (b) is issued in respect of a person who has changed sex or gender; and (c) states the sex or gender of that person as so changed; Register means the Register referred to in section 40 ; registered gender, in relation to a person, means the registered gender in relation to the person that is registered under section 28C(1) and that has not ceased in accordance with section 28C(7) to be the registered gender in relation to the person; registered sex, in relation to a person, means – (a) the sex that is registered under section 16(3) or (4) in relation to the person; or (b) the sex of the person that was last registered under this Act in relation to the person before the gender amendments day – if that sex has not ceased in accordance with section 28C(7) to be the registered sex in relation to the person; registering authority means an authority responsible under a corresponding law for the registration of births, deaths and marriages; registrable event means a birth, change of name, death, marriage or adoption; registrable information means information that must or may be included in the Register; Registrar means the Registrar of Births, Deaths and Marriages; regulations means regulations made and in force under this Act; sex characteristics means a person's physical, hormonal or genetic features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, genes, hormones, and secondary sexual characteristics; State includes a Territory; stillbirth means the birth of a stillborn child; stillborn child means a child of at least 20 weeks' gestation or, if it cannot be reliably established whether the period of gestation is more or less than 20 weeks, with a body mass of at least 400 grams at birth, that exhibits no sign of respiration or heartbeat or other sign of life after birth. 3A. Meaning of, and designation of, gender (1) In this Act – gender means – (a) male; or (b) female; or (c) indeterminate gender; or (d) non-binary; or (e) a word, or a phrase, that is used to indicate a person's perception of the person's self as being neither entirely male nor entirely female and that is prescribed; or (f) a word or phrase that is used to indicate a person's perception of the person's self as being neither entirely male nor entirely female. (2) For the purposes of the definition of gender in subsection (1) – (a) a reference, in paragraph (a) of the definition, to "male" is to be taken to be a reference to the male gender; and (b) a reference, in paragraph (b) of that definition, to "female" is to be taken to be a reference to the female gender. (3) Without limiting the grounds on which the Registrar may refuse to register a gender in relation to a person, the Registrar may refuse to register, as a gender in relation to a person, a word or phrase (other than a word or phrase specified in or under paragraph (a) , (b) , (c) , (d) or (e) ) if the Registrar is of the opinion that the word or phrase is not within paragraph (f) of the definition of gender in subsection (1) . PART 2 - Administration Division 1 - The Registrar 4. Registrar (1) Subject to and in accordance with the State Service Act 2000 , the Registrar of Births, Deaths and Marriages is to be appointed or employed for the purposes of this Act. (2) The Registrar is responsible, subject to the Minister's control and direction, for the administration of this Act. 5. Registrar's general functions The Registrar's general functions are to – (a) establish and maintain the registers necessary for the purposes of this Act; and (b) administer the registration system established by this Act and ensure that it operates efficiently, effectively and economically. 6. Registrar's staff (1) The Registrar's staff consists of any staff necessary for the proper administration of this Act. (2) The Registrar's staff are to be appointed or employed subject to and in accordance with the State Service Act 2000 . 7. Delegation The Registrar may delegate to any person any of the Registrar's powers or functions other than this power of delegation. Division 2 - Execution of documents 8. The Registrar's seal The Registrar has a seal. 9. Execution of documents (1) The Registrar may issue a certificate or other document under the Registrar's signature and seal or a facsimile of the Registrar's signature and seal produced by stamp, machine imprint or some other method authorised by regulation. (2) If a document produced before a court or an administrative authority or official is apparently under – (a) the Registrar's signature and seal; or (b) a facsimile of the Registrar's signature and seal produced by stamp, machine imprint or some other method authorised by regulation – the court, authority or official must presume, in the absence of evidence to the contrary, that the document was properly issued under the Registrar's authority. (3) Judicial notice is to be taken of the seal. Division 3 - Reciprocal administrative arrangements 10. Reciprocal administrative arrangements (1) The Minister may enter into an arrangement with the Minister responsible for the administration of a corresponding law providing for – (a) the exercise by the Registrar of powers and functions of the registering authority under the corresponding law; and (b) the exercise by the registering authority under the corresponding law of powers and functions of the Registrar under this Act. (2) When an arrangement is in force under this section – (a) the Registrar may exercise, to the extent authorised by the arrangement, but subject to the conditions of the arrangement, the powers and functions of the registering authority under the corresponding law; and (b) the registering authority under the corresponding law may exercise, to the extent authorised by the arrangement, but subject to the conditions of the arrangement, the powers and functions of the Registrar under this Act. (3) An arrangement under this section may – (a) establish a database in which information is recorded for the benefit of all the participants in the arrangement; and (b) provide for access to information contained in the database; and (c) provide for payments by or to participants in the arrangement for services provided under the arrangement. PART 3 - Registration of births Division 1 - Notification of births 11. Notification of births (1) When a child is born in the State, the responsible person must give notice of the birth to the Registrar. (2) Notice is to – (a) be in writing or in any other manner or form approved by the Registrar; and (b) include any particulars the Registrar requires. Penalty: Fine not exceeding 10 penalty units. (3) The notice must be given – (a) in the case of a live birth, within 21 days after birth; or (b) in the case of a stillbirth, within 48 hours after birth. (4) When notice of a stillbirth is given, the responsible person must also give the Registrar a medical practitioner's certificate in a form approved by the Registrar, certifying the cause of foetal death. (5) The certificate must be completed by the medical practitioner responsible for the professional care of the mother at the birth or a medical practitioner who examined the body of the stillborn child after the birth. (6) In this section, responsible person means – (a) in the case of a child born in a hospital or brought to a hospital within 24 hours after birth, the chief executive officer of the hospital; or (b) in any other case – (i) the medical practitioner or midwife responsible for the professional care of the mother at the birth; or (ii) if no medical practitioner or midwife was in attendance at the birth, any other person in attendance at the birth. Division 2 - Registration of births 12. Cases in which registration of birth is required or authorised (1) When a child is born in the State, the birth must be registered under this Act. (2) If a court, whether of this or any other State or the Commonwealth, directs the registration of a birth, the birth must be registered under this Act. (3) If a child is born in an aircraft during a flight or on a vessel during a voyage to a place of disembarkation in the State, the birth may be registered under this Act. (4) If a child is born outside the Commonwealth, but the child is to become a resident of the State, the birth may be registered under this Act. (5) The Registrar must not register a birth under subsection (3) or (4) if the birth is registered under a corresponding law. 13. How to have the birth of a child registered A person has the birth of a child registered under this Act by lodging a birth registration statement in a manner and form approved by the Registrar. 14. Responsibility to have birth registered (1) The parents of a child are jointly responsible for having the child's birth registered under this Act (and must both sign the birth registration statement) but the Registrar may accept a birth registration statement from one of the parents if satisfied that it is not practicable to obtain the signatures of both parents on the birth registration statement. (2) If a child is a foundling, the person who has custody of the child is responsible for having the child's birth registered. (3) The Registrar may accept a birth registration statement from a person who is not responsible for having the child's birth registered if satisfied that – (a) the person lodging the statement has knowledge of the relevant facts; and (b) the child's parents are unable or unlikely to lodge a birth registration statement. 15. Obligation to have birth registered (1) A person responsible for having the birth of a child registered must ensure that a birth registration statement is lodged with the Registrar – (a) within 60 days after the date of the birth; or (b) in the case of a live birth where variations of sex characteristics do not allow for an easy assignment of sex, within 120 days of birth. Penalty: Fine not exceeding 10 penalty units. (2) The Registrar must accept a birth registration statement even though it is lodged after the period of 60 days. (3) The Registrar, at any time before registering a birth, may request that further information be provided to support the birth registration statement. 16. Registration (1) The Registrar registers a birth by making an entry about the birth in the Register. (2) However, if the particulars available to the Registrar are incomplete, the Registrar may register a birth on the basis of those incomplete particulars. (3) The Registrar, in registering the birth of a person, is to register the sex of the person as being either male or female. (4) The Registrar may not change from male to female, or from female to male, the registered sex in relation to a person, except if it is necessary to correct an error made before or at the time the person's sex was first registered in relation to the person. (5) The Registrar may only register the sex of a person under subsection (3) or (4) and must not register the sex of a person as any sex other than male or female. (6) Nothing in subsection (3) , (4) or (5) is to be taken – (a) to prevent a gender being registered under section 28C(1) in relation to a person; or (b) to prevent a registered sex in relation to a person ceasing, in accordance with section 28C(7) , to be the registered sex in relation to the person; or (c) to invalidate the registration of a previous registered sex that occurred before the gender amendments day. 17. Registration of parentage details (1) The Registrar must not include information about the identity of any of a child's parents in the Register unless – (a) the parents of the child make a joint application for the inclusion of registrable information about that identity; or (b) one parent of the child makes an application for the inclusion of registrable information about that identity and the other parent cannot join in the application – (i) because he or she is dead; or (ii) because he or she cannot be found; or (iii) for some other reason; or (c) one parent of the child makes an application for the inclusion of registrable information about that identity and the Registrar is satisfied that the other parent does not dispute the correctness of that information; or (d) any court having jurisdiction orders the inclusion of registrable information about that identity in the Register; or (e) any court having jurisdiction makes a finding that a particular person is a parent of a child; or (f) the Registrar is entitled under any law, including a law of another State or the Commonwealth, to make a presumption as to the identity of the child's parent. (2) The Registrar may include information about the identity of a child's parent in the Register if – (a) the Registrar is not prohibited by subsection (1) from doing so; or (b) despite subsection (1) , both the parents are unable to give registrable information about the identity of a child's parent or parents or are unavailable and another person can provide information to the Registrar's satisfaction as to the identity of the child's parent or parents; or (c) despite subsection (1) , one parent has provided the birth registration statement and the registrable information relates only to the identity of that parent. 18. Addition of details after registration of birth (1) A person may apply to the Registrar for the inclusion in the Register of additional registrable information about a child's birth. (2) An application to the Registrar for the inclusion of registrable information in the Register – (a) must be made in writing; and (b) must include the information required by the Registrar; and (c) must, if the Registrar requires verification of the information contained in the application, be accompanied by a statutory declaration verifying the information contained in the application and other evidence the Registrar may require. Division 3 - Court order for registration of birth 19. Court may order registration of birth (1) A magistrate, on application by an interested person or on his or her own initiative, may order – (a) the registration of a birth; or (b) the inclusion of registrable information about a birth or a child's parents in the Register. (2) If a court, including a court of another State or the Commonwealth, finds that – (a) a birth is not registered as required under this Act or a corresponding law; or (b) the registrable information contained in an entry about a birth in the Register under this Act or a corresponding law is incomplete or incorrect – the court may direct registration of the birth or the inclusion or correction of registrable information in the Register under this Act or the corresponding law. Division 4 - Child's name 20. Name of child (1) Subject to this section, the birth registration statement must state the name of the child. (2) The name is a matter of choice for the person or persons lodging the statement, but the Registrar may assign a name to a child if – (a) the name stated in the birth registration statement is a prohibited name; or (b) the birth registration statement is lodged by both parents of the child and they satisfy the Registrar that they are unable to agree on the child's name. 21. Dispute about child's name (1) If there is a dispute between parents about a child's name, either parent may apply to a magistrate for a resolution of the dispute. (2) On an application under subsection (1) , the magistrate may – (a) resolve the dispute about the child's name as the magistrate considers appropriate; and (b) order the Registrar to register the child's name in a form specified in the order. PART 4 - Change of name 22. Change of name by registration A person's name may be changed by registration of the change under this Part. 23. Application to register change of adult's name A person who has attained the age of 16 years – (a) who is domiciled or ordinarily resident in the State; or (b) whose birth is registered in the State – may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the person's name. 24. Application to register change of child's name (1) The parents of a child who has not attained the age of 16 years – (a) who is domiciled or ordinarily resident in the State; or (b) whose birth is registered in the State – may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the child's name. (2) An application for registration of a change of a child's name may be made by one parent under subsection (1) if – (a) the applicant is the sole parent named in the registration of the child's birth under this Act or any other law; or (b) there is no other surviving parent of the child; or (c) a magistrate approves the proposed change of name. (3) A magistrate may approve, on application by a child's parent, a proposed change of name for the child under subsection (1) if the magistrate is satisfied – (a) that the proposed change of name for the child is consistent with the will and preference of the child; or (b) that the child is unable to understand the meaning and implications of the proposed change of name and that the proposed change of name is in the best interests of the child. (4) If the parents of a child are dead, cannot be found, or for some other reason cannot exercise their parental responsibilities in respect of the child, the child's guardian may apply for registration of a change of the child's name. 25. Child's consent to change of name A change of a name of a child of more than 12 years of age must not be registered unless – (a) the child consents to the change of name; or (b) the child is unable to understand the meaning and implications of the change of name. 26. Registration of change of name (1) Before registering a change of name under this Part, the Registrar may require the applicant to provide evidence to establish to the Registrar's satisfaction – (a) the identity and age of the person whose name is to be changed; and (b) that the change of name is not sought for a fraudulent or other improper purpose; and (c) if the person whose name is to be changed is a child aged 12 years or more, that the child consents to the change of name or is unable to understand the meaning and implications of the change of name. (2) If the Registrar is satisfied that the name of a person whose birth is registered in the State has been changed under another law or by order of a court, the change of name may be registered under this Act. (3) The Registrar may refuse to register a change of name if, as a result of the change, the name would become a prohibited name. 27. Entries to be made in Register (1) The Registrar registers a change of name by making an entry about the change of name in the Register. (2) If the applicant for registration of the change of name asks the Registrar to arrange for noting the change of name in the particulars of the person's birth, and the person's birth is registered under this Act or a corresponding law, the Registrar must – (a) if the birth is registered under this Act, note the change of name in the entry relating to the birth; or (b) if the birth is registered under a corresponding law, notify the relevant registering authority of the change of name. (3) . . . . . . . . 28. Change of name by repute or usage This Part does not prevent a change of name by repute or usage. PART 4A - Gender Identity 28A. Registration of gender identity (1) A person who has attained the age of 16 years and whose birth is registered in this State may apply to the Registrar to have a gender, specified in the application, registered in relation to the person. (2) An application under subsection (1) by a person to have a gender registered in relation to the person – (a) is to be in the approved form; and (b) is to be accompanied by a gender declaration made by the person; and (c) is to be accompanied by any other document or information that the Registrar reasonably requires, other than a medical certificate, or other medical document, in relation to the sex, sexual characteristics or gender of the person. (3) The parents, or guardians, of a person who has not attained the age of 16 years and whose birth is registered in this State may apply to the Registrar to have a gender, specified in the application, registered in relation to the person. (4) One of the parents, or a guardian, of a person who has not attained the age of 16 years and whose birth is registered in this State may apply to the Registrar to have a gender, specified in the application, registered in relation to the person, if – (a) the applicant is the sole parent named in the registration under this Act of the person's birth; or (b) the guardian is the sole guardian of the person; or (c) there is no other surviving parent of the person; or (d) the registration of the gender in relation to the person is approved by a magistrate under section 28B(2)(a) . (5) An application under subsection (3) or (4) to have a gender registered in relation to a person is to be – (a) in the approved form; and (b) accompanied by – (i) if the person is able to make a statutory declaration – a gender declaration made by the person; or (ii) if the person is not able to make a statutory declaration but is able to express the person's will and preference – a statement from each of the applicants stating that the applicant believes on reasonable grounds that the registration of the gender in relation to the person is consistent with the will and preference of the person; and (c) accompanied by any other document or information that the Registrar reasonably requires, other than a medical certificate, or other medical document, in relation to the sex, sexual characteristics or gender of the person. (6) An application under subsection (1) , (3) or (4) to have a gender registered in relation to a person who has not attained the age of 18 years may be accompanied by evidence that – (a) the person has undertaken counselling as to – (i) whether or not the application ought to be made; and (ii) the implications of the registration of the gender in relation to the person; and (b) the counselling was provided by a person, chosen by the applicant, who the applicant considers has suitable qualifications, training or experience to provide such counselling. (7) An application must not be made under this section in relation to a person within 12 months after a gender has been registered in relation to the person. 28B. Approval by magistrate of registration of gender (1) A parent, or guardian, of a person who has not attained the age of 16 years may apply to a magistrate to approve the registration of a gender, specified in the application, in relation to the person. (2) A magistrate to whom an application is made under subsection (1) to approve the registration of a gender, specified in the application, in relation to a person may – (a) approve the registration of the gender in relation to the person; or (b) refuse to approve the registration of the gender in relation to the person. (3) A magistrate may only approve the registration of a gender in relation to a person if the magistrate – (a) is satisfied that the registration of the gender in relation to the person is consistent with the will and preference of the person; or (b) is satisfied that the person is unable to understand the meaning and implications of the registration of the gender in relation to the person. 28C. Registration of gender (1) The Registrar, after receiving an application made under section 28A(1) , (3) or (4) for a gender to be registered in relation to a person – (a) must – (i) register the gender as the registered gender in relation to the person by making an entry in the Register specifying the gender to be the registered gender in relation to the person; and (ii) make any other changes to the Register that are necessary to indicate that each previous registered sex, and each previous registered gender, of the person is no longer the registered sex or registered gender in relation to the person; or (b) must refuse to register the gender as the registered gender in relation to the person. (2) The Registrar may only register under subsection (1) a gender as the registered gender in relation to a person in accordance with an application made under section 28A(3) or (4) if the Registrar is satisfied that – (a) the gender to be registered in relation to the person is consistent with the will and preference of the person; or (b) the person is unable to understand the meaning and implications of the registration of the gender in relation to the person. (3) The Registrar may, before determining under subsection (1) an application made under section 28A(1) , (3) or (4) , require a person who made the application to provide to the Registrar the further documents or information that the Registrar reasonably requires, other than a medical certificate, or other medical document, that relates to the sex, sexual characteristics or gender of the person to whom the application relates. (4) Despite subsection (3) , the Registrar may, before determining under subsection (1) an application made under section 28A(1) , (3) or (4) in relation to a person, require the applicant to provide to the Registrar appropriate evidence of counselling of the person, if – (a) the person has not attained the age of 18 years; and (b) the application is not accompanied by evidence under section 28A(6) of counselling being provided by a person who the Registrar considers is a person with suitable qualifications, training or experience to provide such counselling. (5) For the purposes of subsection (4) , appropriate evidence of counselling of the person is evidence that – (a) the person has undertaken counselling as to – (i) whether or not the application to register a gender ought to be made; and (ii) the implications of the registration of the gender in relation to the person; and (b) the counselling was provided by a person, agreed to by the Registrar and the applicant, who the Registrar considers has suitable qualifications, training or experience to provide such counselling. (6) If the Registr