Sunday, October 16, 2011

How can a second birth certificate for adoptees be a legal document?

We believe that "make alterations" should be to the original birth certificate and not mean, issue a second birth certificate.
We cannot see any reference to a second birth certificate to be issued.

This transcript has been taken from the Proof Committee Hansard, Public Hearing in Canberra, and relates to birth certificates.
This is part of the Attorney-General's Department statement.

Wednesday, 28 September 2011 Senate Page 5

CHAIR: Before we move off the legislation there are two things I want to ask about in following up from Senator Moore. One of those is the time limit on offences. In 1965, were there any time limits on the offences that were outlined?
Ms Smith: They would have been subject to whatever broader requirements there are for the statute of limitations, but there is nothing in this actual ordinance that puts any time limit on
CHAIR: So we would need to check what the statute of limitations was for the ACT at that time.
Ms Smith: It is outside my area; I am sorry.
CHAIR: Was there one general one across Australia or was there one specific for each state and territory. It is not an area of my expertise.
Dr Smrdel: It is not ours either. What we do not know is how this legislation was affected by, say, the Crimes Act operating in each state and territory at the time.
CHAIR: For the ACT one, which the Commonwealth was responsible for, is it possible to find out what the statute of limitations was at the time and how it interacted with the Crimes Act?
Dr Smrdel: We will talk to our colleagues in the criminal law enforcement branch and see if they can provide us with an answer. I hesitate to provide an answer when they might say they cannot, but we will certainly endeavour to follow up with them.
CHAIR: It is obviously an issue that is of deep interest to many of the people that we have been talking to about this issue.

The second area is birth certificates. One of the big issues is access to data and documentation,, which we have touched on. A lot of the complaints that we have had are around either a second birth certificate being generated with just the adoptive parents' names on them or the first one being altered with the father's name not being put on and the mother's name taken off. So there is one birth certificate but not with the birth mother's name on it. Is that sort of issue dealt with in either the model legislation or the ACT ordinance?
Ms Smith: The legislation with respect to the responsibility of the registrar of births, deaths and marriages relates to registering the adoption order and making alterations to it as prescribed. There is a section which deals with the making of adoption order, the adopted child having the surname of his adoptive parent or parents and the forename as in the adoption order approved on application of the adoptive parents.
(2) Where, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child shall have that name as his surname.
(3) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, in accordance with the law of the Territory.


Page 6 Senate Wednesday, 28 September 2011
So that would be subject to name-change laws.
Senator MOORE: I am sorry; somewhere in that sequence I lost what name we were talking about. Can you do that again? I want to try to follow the name through because it is critical in this inquiry. So the child is born.
Ms Smith: In section 35 of the ACT ordinance, when an adoption order is made:
the adopted child shall have as his surname the surname of the adoptive parent or parents and shall have as his forename or forenames such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.
Senator MOORE: Right
Ms Smith: And further:
Where, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child shall have that name
Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order
Senator MOORE: That middle bit seems to go back and then forward again. Under the 1965 legislation the adoption order allows the child to be known by the surname of the adoptive parent?
Ms Smith: That is correct.
Senator MOORE: The documentation ceases to have the name of the birth mother and instead has the name of the adoptive family?
Ms Smith: That is correct. ?
CHAIR: That automatically means birth certificate?
Ms Smith: Yes.
CHAIR: changing the birth certificate has changed history and changed reality. That section does not specifically talk about a birth certificate; it talks about changing the name. To me, those are two different things. Birth certificates contain the names of the natural birth parents you were born to, which is different to changing a person's name.
Senator MOORE: There is still a documentation trail. We have had cases where people have had two birth certificates. The original one was somewhere on file and they did not find it until later. Their birth certificate, which they have taken through life, is in their adoptive process—sometimes with correct dates, sometimes not, which is a clerical issue—but, nonetheless, the standard proof of identity which, under our system, is the birth certificate is in the name of the adoptive forename and surname.
CHAIR: If there are regulations that go with the legislation, could you take it on notice to look at that issue? The issue of the birth certificate and access to data has come up repeatedly during this inquiry.
Ms Smith: I can read to you the provision which deals with the process for the registration.
CHAIR: Thank you. What does it say?
Ms Smith: Section 56 states:
The Registrar of the Supreme Court shall cause a memorandum ... of every adoption under this order made by the Court under this Ordinance, and a copy of every order for the discharge of such an adoption order, to be sent to the Registrar of Births, Deaths and Marriages, who shall—
(a) register it ... in a Register of Adoptions ... and
(b) if it relates to a child whose birth is registered in the Register of Births kept by him, make such alterations
to, or entries in, that register as are prescribed.
CHAIR: The legislation says you can change the birth certificate?
Ms Smith: That is correct
CHAIR: That is the model legislation or the ACT legislation?
Ms Smith: That is the ACT ordinance.
CHAIR: Did that reflect the model legislation?
Ms Smith: I will just check that. We have confirmed that the same provision is in the model bill.
Senator MOORE: We need that legislation to highlight it. That particular clause came out of the discussions around the model legislation in 1964. With respect to what happened before that, we would have to trace through every jurisdiction. But this process in 1964 and 1965 established the process from then on and then each state had to enact their own legislation where, as you say, there could be some variation from state to state. We need to find out with respect to those key clauses what happened.
Ms Smith: Yes.
CHAIR: The process of investigating the legislation is what I want to go to.
Ms Smith: Just to clarify the terminology when I was paraphrasing then, it is the Register of Births, Deaths and Marriages which can be altered rather than the birth certificate.
CHAIR: When I want to get my birth certificate or, for example, my sons birth certificate I go to the registrar. Presumably, they look in the register and give me a birth certificate. That is essentially where the birth certificate is derived from, is it not?
Ms Smith: Yes.
CHAIR: If somebody is chasing their birth parents, they go to the register in the various states. The register says that if it has been altered through this process, their adoptive parents are the names that are on the birth certificate. That is certainly the evidence we have received and that seems consistent with what you have just told us.
Ms Smith: That is what the legislation provides. I could not comment on how the individual registries look after their applications for certification.
CHAIR: That is fair enough.

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