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Assoc. Professor Paula Gerber Faculty of Law Monash University.

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Presentation on theme: "Assoc. Professor Paula Gerber Faculty of Law Monash University."— Presentation transcript:

1 Assoc. Professor Paula Gerber Faculty of Law Monash University

2 Plan International, UNICEF and the Castan Centre for Human Rights Law have brought together leading experts and interested parties to discuss the problem and explore solutions. Problems need interdisciplinary approach so we have representatives from:  Academia;  Government;  Civil Society;  Indigenous community;  Health sector; and  You!

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4  Two 15-year-old Aboriginal girls obtained mainstream employment at café.  No birth certificates, so unable to apply for TFN.  No ID documents to satisfy BDM to get certificates  No photo ID  Nothing with residential address.  Employer forced to tax wages at highest rate  Minimal take home pay despite hours of work.  Birth certificate and TFN not obtained until after placement finished.  Both withdrew employment program with very negative experience of mainstream work.

5  53-year-old elder at Lake Tyers Aboriginal Trust needed to produce birth certificate to receive estate payment.  No ID documents:  No birth certificate (unregistered)  Never voted  Never had TFN  No drivers license  Told by BDM need to produce evidence of circumstances of birth  Stolen gen member – little info available about family history;  Unsure of place or details of birth.  After 18 months by chance record found that born at Orbost hospital – enough to register birth.  BUT, he died prior to being able to register birth.

6  Gippsland, Victoria: Partnership created between government and local community groups to assist Indigenous youth obtain drivers licences, in order to:  Reduce isolation from living in remote communities;  Facilitate them taking advantage of employment opportunities;  Reduce number of youths getting into trouble with the law for unlicensed driving; and  Improve road safety.  120 individuals enrolled for driver training.  BUT, 50% of participants had no birth certificate, and 12% births had never been registered. So these individual couldn’t satisfy ID requirements for obtaining a drivers licence.

7  Castan Centre organised a symposium on this issue, in Melbourne, on 1 December  This generated significant interest and a call for further investigation of the problem.

8 1. WA Equal Opportunity Commission 2. Rise network (formerly Hills Community Support Group) 3. Plan International 4. Victorian Aboriginal Legal Service 5. Qld Dept of Aboriginal and Torres Strait Islander Services 6. Clayton Utz 7. Tangentyere Council (Alice Springs)

9  In 2012, we obtained and ARC Linkage Grant to undertake research in: ▪ Victoria; ▪ Western Australia; ▪ Northern Territory; and ▪ Queensland.  Project Duration: 3 years  Anticipated completion: July 2015.

10  Paula Gerber  Melissa Castan  Lynette Russell  Jane Freemantle  Rod Hagen

11 We identified 2 distinct, but related issues: 1.Births are not being registered so no certificate is available; and 2.Births are registered, but birth certificate not obtained at the time, and cannot now be obtained because of: (i)inability to satisfy ID requirements; and/or (ii)inability to pay fees.

12 Several steps involved in registering a birth & getting a birth certificate: 1.Hospital or midwife notifies BDM of a birth; 2.Hospital or midwife provides birth registration form to parent(s); 3.Both parents must complete and sign the Birth Registration Form. If only one parent has signed, s/he must explain to the Registrar why the other parent has not signed.

13  Registration form must be submitted within 60 days of the birth;  Potential penalty for late registration in Vic is $1,4000.  Apply for a birth certificate, on the same form as registration, and pay fee ranging from $30.20 in Victoria to $51 in NSW.

14 If an individual wants to obtain a copy of their birth certificate, at any time other than when birth registered, need to satisfy strict ID requirements. Good reason for this – to prevent fraud – BUT, can make it VERY difficult for people who can’t satisfy these requirements.

15  ONE document from each list (1, 2 and 3). At least one containing a photograph; or  TWO from List 2 and ONE from List 3. List 1 - Evidence of link between photo and signature Australian driver's licence Australian passport Australian firearm's licence Overseas Passport List 2 - Evidence of operating in the community Medicare card Credit card or ATM card Australian security guard or crowd controller licence Marriage Certificate issued by the Victorian Registry Student or tertiary identity card Australian Citizenship Certificate Standard Birth Certificate issued in Australia Department of Veterans' Affairs card Working with Children Check card List 3 - Evidence of current residential address Utility account (including gas, water, electricity, mobile or home phone) Rates notice Centrelink concession card (Pension Concession Card, Health Care Card or C’lth Seniors Health Card) Bank statement (including passbook, credit, savings or cheque accounts) Current lease or tenancy agreement Superannuation fund

16  If not applying in person, have to provide certified copies of original documents.  Documents can only be certified by the Police!  BUT.... provision of BDM services at 26 Justice Service Centre across the state of Victoria, mean can now get ID certified without having to go to police station.

17 Things on the improve in Victoria with:  Justice Service Centres;  Indigenous Access Fund; and  Koori Access Team (4 staff). BUT, still room for improvement with more flexible ID requirements and expanded outreach work to Indigenous communities, particularly for cross-border (interstate) communities.

18 Birth never registered:  Complex forms/bureaucracy;  Literacy;  Isolation from mainstream services;  Low priority afforded to birth registration;  Fees (not understanding it is free if don’t request a birth certificate) and/or  Stolen generation (= mistrust of bureaucracy).

19 Birth registered but no certificate:  Inflexible registry policy re proof of ID. Don't accept Proof of Aboriginality documents.  ID with residential address difficult to produce if: ▪ Homeless ▪ Living with extended family or friends ▪ Under 18  Fees  Complex family histories ▪ Names change depending upon who living with ▪ Name registered either different to or unknown to individual ▪ Displacement of communities  Cross jurisdictional issues

20  Article 24(2) of the International Covenant of Civil and Political Rights and Article 7 of the Convention on the Rights of the Child say “every child shall be registered immediately after birth”.  BUT, no explicit mention of a right to a birth certificate.  However, commentary and jurisprudence from the relevant treaty committees, suggest right to a birth certificate is implicit in right to birth registration.

21  Birth registration and birth certificates very much on the radar of the UN and international organisation.  In 2012 C’ttee on Rights of the Child urged Australia to: “review its birth registration process in detail to ensure that all children born in Australia are registered at birth, and that no child is disadvantaged due to procedural barriers to registration, including by raising awareness among the Aboriginal population on the importance of birth registration and providing special support to facilitate birth registration for illiterate persons. It further urges the State party to issue birth certificates upon the birth of a child and for free.”

22 Report of OHCHR in June 2014 made several recommendations for increasing rates of birth registration, including: 1. Raising awareness across communities about importance of birth registration, and that it is a child’s right; 2. Make registration accessible – physically as well as through forms being available in different languages and simple enough to be understood by those with low literacy levels; 3. Ensure penalties for late registration don’t discourage registration.

23  Birth “registration should be completely free of charge”.  Work of Minimbah Project in holding birth registration days in local primary schools in NSW was highlighted as a an example of good practice!

24  Governed by state and territory law, not federal.  Birth, Deaths and Marriages Act 1996 (Vic) is framed in terms of parents having a responsibility and obligation to register the births of their children, rather than children having a the right to have their birth registered and a birth certificate provided (s 15).  Even in states and territories with human rights legislation (Vic & ACT), no mention of a right to birth registration or a birth certificate.

25  Current system throws up impediments to Indigenous Australians and other vulnerable persons obtaining a birth certificate.  This directly impacts upon the ability of Indigenous Australians to be recognised by the legal system and participate meaningfully in society.  Inhibits social inclusion and further marginalises Indigenous community.  Need to balance concerns of ensuring accuracy of registry and protecting against fraud, with need for flexibility so everyone can obtain a copy of their birth certificate.

26 1.Gerber, Paula & Castan Melissa ‘Achieving universal birth registration for Indigenous Australians: Recommendations from the Victorian Law Reform Commission’ (2014) 8(14) Indigenous Law Bulletin 2.Gerber, Paula, Gargett, Andy & Castan, Melissa ‘Does the right to birth registration include a right to a birth certificate?’ (2011) 29(4) Netherlands Quarterly of Human Rights Castan, Melissa, Gerber, Paula & Gargett, Andy ‘Indigenous Australians’ Access to Birth Registration Systems: A Breach of International Human Rights Law?’ (2011) 17(1) Australian Journal of Human Rights Gargett, Andy, Gerber, Paula & Castan, Melissa ‘A Right to Birth Registration in the Victorian Charter? Seek and you shall NOT Find!’ (2010) 36(3) Monash University Law Review Gerber, Paula ‘Making Visible the Problem of Invisibility’ (2009) 83(10) Law Institute Journal Gerber, Paula ‘Making Indigenous Australians ‘Disappear’: Problems arising from our Birth Registration Systems’ (2009) 34(3) Alternative Law Journal 157.

27  URL: Registration/Introduction.html Registration/Introduction.html   Facebook: Closing the Gap on Indigenous Birth Registration 

28  Papers from this symposium will be published as an edited collection by Future Leaders in early All symposium delegates will receive a complimentary copy. Make sure we have your postal address!  Melissa Castan and I will be writing a scholarly book about the outcomes of the project which will be published by Edward Elgar in the UK in late 2015


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