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2013-2014-2015-2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
REGISTRATION OF DEATHS ABROAD
AMENDMENT BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Foreign Affairs,
the Hon Julie Bishop MP)
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REGISTRATION OF DEATHS ABROAD AMENDMENT BILL 2016
GENERAL OUTLINE
The primary purpose of the Registration of Deaths Abroad Amendment Bill 2016 is to
correct an anomaly in the Registration of Deaths Abroad Act 1984 (the RDA Act).
The correction will allow the 'Registrar of Deaths Abroad' (the Registrar) to register
deaths in prescribed circumstances. Further, this Bill seeks to simplify the process for
registering an overseas death.
The principal amendments of the Bill are to:
provide the Foreign Minister with the flexibility to appoint any State or
Territory Registrar as the Registrar;
validate the prior appointment of the ACT Registrar-General as the Registrar
and any previous registrations of deaths under the RDA Act;
allow the Registrar to register deaths that could have been registered under the
law of a State or Territory, where the State or Territory concerned has provided
notice that it will not register a death; and
remove any references to 'registering officers' from the RDA Act, to ensure that
only the Registrar can register deaths under the RDA Act.
Financial impact statement
Passage of this legislation will not result in any additional cost to the community or to
the Commonwealth.
Regulation impact statement
In consultation with the Office of Best Practice Regulation, a regulation impact
statement is not required because the measures are of minor policy significance and
they will not impose a regulatory burden on individuals, businesses or community
organisations.
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REGISTRATION OF DEATHS ABROAD AMENDMENT BILL 2016
NOTES ON CLAUSES
Clause 1--Short title
1. Clause 1 is a formal provision specifying the short title of the Bill which, when
enacted, is to be cited as the Registration of Deaths Abroad Amendment Act
2016.
Clause 2--Commencement
2. Clause 2 provides for the commencement of the Bill.
3. Subsection 2(1) provides that each provision of this Bill specified in column 1
of the table, when enacted, commences or is taken to have commenced in
accordance with column 2 of the table, and that any other statement in
column 2 is to have effect according to its terms.
4. Table Item 1 specifies that sections 1-3 (and anything in the Act not elsewhere
covered by the table) will commence on the day after this Act receives the Royal
Assent.
5. Table Item 2 provides that Schedule 1 Part 1 (Amendments) and Schedule 1
Part 2 (Application and transitional provisions) will commence on a single day
to be fixed by Proclamation.
6. Subsection 2(2) provides that any information in column 3 of the table is not
part of this Bill but may be inserted in this column, or information in it may be
edited, in any published version of this Act.
Clause 3--Schedules
7. Clause 3 provides that legislation specified in a Schedule to the Act is to be
amended or repealed as set out in the applicable items in the Schedule
concerned, and stipulates that any other item in a Schedule to the Act has
effect according to its terms.
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Schedule 1--Amendments
Part 1--Amendments
Registration of Deaths Abroad Act 1984
Item 1--Subsection 3(1)
8. Item 1 repeals the definition of appoint in the RDA Act, which is unnecessary.
Subsection 3(1) of the RDA Act simply notes that 'appoint includes
reappoint'.
Item 2--Subsection 3(1)
9. Item 2 repeals the definition of registering officer in the RDA Act. In
conjunction with other items that remove references to 'registering officers'
from the RDA Act, this amendment is intended to ensure that only the
Registrar can register deaths under the RDA Act. The Department of Foreign
Affairs and Trade no longer performs the function of registering deaths under
the RDA Act.
Item 3--Subsection 3(1)
10. Item 3 inserts two new definitions into the RDA Act: relevant State or
Territory seal and State or Territory registrar.
11. Relevant State or Territory seal has the meaning given by the new section 3A.
These amendments, in conjunction with item 27, are intended to allow a State
and Territory registrar that is appointed as Registrar (in a permanent, acting or
delegated capacity) to continue using the seal used by that person in their
capacity as a State or Territory registrar.
12. State or Territory registrar is defined to mean a person who holds an office or
position that has the function of keeping a register of deaths under a law of a
State or Territory. Each Australian State and Territory currently has a
governmental authority that can register deaths upon application, including
some overseas deaths. The amended section 5 of the RDA Act provides that
the Minister must not appoint a person unless, inter alia, the person is a State
or Territory registrar.
Item 4--Subsection 3A
13. Item 4 defines relevant State or Territory seal. In conjunction with item 27,
this amendment is intended to allow a State or Territory registrar which has
been appointed as Registrar (in a permanent, acting or delegated capacity) to
continue using the seal used by that person in their capacity as a State or
Territory registrar. These items are intended to reduce the administrative
burden for any State or Territory registrar performing functions under the
RDA Act.
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Item 5--Section 4A
14. Item 5 repeals section 4A of the RDA Act because the Criminal Code is a law
of general application that applies regardless of section 4A.
Item 6--Sections 5 and 6
15. Item 6 repeals section 5 of the RDA Act and replaces it with a new section 5.
This amendment is intended to provide the Foreign Minister with the power to
appoint, by written instrument, any State or Territory registrar as the Registrar.
16. Subsection 5(2) of the RDA Act currently requires the Registrar to be a
'person engaged under the Public Service Act 1999'. This requirement created
an anomaly whereby the ACT Registrar-General had been appointed as the
Registrar but beyond 1994 was not employed under that Act. Accordingly,
item 6 is intended to remove this requirement and allow any State or Territory
registrar to be appointed to the position.
17. For purposes of constitutional validity, the appointment of a State or Territory
registrar as the Registrar is subject to the written notice of the State or
Territory concerned in paragraph 5(3)(b). This written notice may be provided
on behalf of a State or Territory by a Minister of the State or Territory.
18. The new subsections 5(5)-(8) of the RDA Act clarify the termination and
resignation processes for a Registrar.
19. Item 5 also repeals and replaces section 6 of the RDA Act, regarding acting
Registrars. The new subsection 6(1) reflects the language of the RDA Act
prior to these amendments, identifying the circumstances in which a Minister
may appoint an acting Registrar. In addition to the matters stipulated in
subsection 6(1), subsections 6(2)-(3) are intended to impose the same
conditions on the appointment of an acting Registrar as are imposed on the
appointment of a Registrar.
20. Again, for the purposes of constitutional validity, the appointment of a State or
Territory registrar as the acting Registrar is subject to the written notice of the
State or Territory concerned in paragraph 6(2)(b). This written notice may be
provided on behalf of a State or Territory by a Minister of the State or
Territory.
Item 7--Subsection 7(1)
21. Item 7 removes the requirement that the Register of Deaths Abroad be kept 'at
a place in the Australian Capital Territory approved by the Minister'. This
requirement serves no policy purpose. It is also too prescriptive and would not
be practical where a State or Territory registrar other than the ACT
Registrar-General was appointed as Registrar.
Item 8--Paragraph 8(2)(b)
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22. Item 8 repeals and replaces paragraph 8(2)(b) of the RDA Act regarding the
registration of overseas deaths by State and Territory registrars in their
capacity as State or Territory registrars.
23. All State and Territory registrars have the capacity to register deaths that occur
overseas in circumstances prescribed by the relevant governing legislation.
24. Currently, paragraph 8(2)(b) provides that the Registrar is not authorised to
register 'a death that may be registered under the law of a State or of a
Territory'. However, the new paragraph 8(2)(b) permits the registration of
such deaths on the condition that the State or Territory registrar concerned
notifies the Registrar of its decision not to register the death.
25. Under current arrangements, applicants can remain in a procedural 'limbo' as
they negotiate with State or Territory Registrars to register an overseas death.
This amendment is intended to simplify the process by providing clear
authority for the Registrar's discretion where the appropriate notification has
been provided.
Items 9-22
26. These items amend (omit or in some cases replace with 'the Registrar')
references to 'registering officers' in the named provisions. These
amendments are intended to ensure that only the Registrar can register deaths
under the RDA Act. The Department of Foreign Affairs and Trade no longer
performs the function of registering deaths under the RDA Act.
Item 23--Subsection 15(2)
27. Item 23 amends subsection 15(2) to accord with the new process for the
electronic sealing of documents described in section 17 of the amended RDA
Act.
Items 24 and 25--Subsections 15(3) and (4)
28. Items 24 and 25 amend subsections 15(3) and (4), respectively, to remove
references to 'a registering officer', to ensure that only the Registrar can
register deaths under the RDA Act.
Item 26--Section 16
29. Item 26 repeals and replaces section 16 in the RDA Act. This amendment is
intended to reflect the removal of the concept of 'registering officers' from the
RDA Act. It is also intended to simplify the section.
Item 27--Section 17
30. Item 27 repeals and replaces section 17 in the RDA Act. The current text of
the provision does not reflect the modern practice of signing and sealing
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documents by electronic means, as practised by all State and Territory
registrars, including the ACT Registrar-General. Accordingly, the new section
17 adopts the language used in relevant model State and Territory legislation.
31. The new section 17 also refers to 'the relevant State or Territory seal', which
refers to the capacity for the Registrar to use the seal ordinarily used in that
person's capacity as State or Territory registrar. This reflects amendments
elsewhere in the Bill (in particular, refer item 4).
Item 28--After subsection 19(3)
32. Item 28 inserts a new subsection 19(3A), which requires the Registrar to sign
and seal, or cause to be sealed, with the relevant State or Territory seal each
certified copy or extract of the Register of Deaths Abroad. This amendment is
considered necessary because copies and extracts of the Register of Deaths
Aboard have legal consequences under subsection 23(2) of the RDA Act. This
also accords with State and Territory model legislation for the registration of
births, deaths and marriages.
Item 29--Subsection 21(8)
33. Item 29 amends subsection 21(8) to remove the reference to 'a registering
officer', to ensure that only the Registrar can register deaths under the RDA
Act.
Item 30--Subsection 22(2)
34. Item 30 repeals subsection 22(2) of the RDA Act. With the use of electronic
registers, it is no longer the practice of State or Territory registrars to write in
the margin of a register to cancel a registration. This amendment leaves open
the manner in which the Registrar would record a cancellation under
subsection 22(1) of the RDA Act.
Items 31 and 32--Subsection 23(1)
35. Items 31 and 32 amend subsection 23(1) to accord with the new process for
the electronic sealing of documents described in section 17 of the amended
RDA Act.
Item 33--Subsection 24(3)
36. Item 33 amends subsection 24(3) to accord with the new process for the
electronic sealing of documents described in section 17 of the amended RDA
Act.
Item 34--Section 26
37. This item repeals and replaces section 26 of the RDA Act.
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38. The new subsection 26(1) empowers the Registrar to delegate by writing all or
any of its powers and functions under the RDA Act. The Registrar may
delegate to an employee in the same office or body as the Registrar or another
State or Territory registrar (defined in section 3(1) of the amended RDA Act).
39. The capacity to delegate is not confined to senior employees (for example,
positions equivalent to SES positions in the Australian Public Service). State
and Territory registrars advised that employees in their offices were not
employed at levels equivalent to SES in almost all cases. Even limiting the
Registrar's delegation capacity to employees in positions equivalent to
Executive Level 1 in the Australian Public Service would have meant that
some State and Territory registrars could not delegate to an employee in their
office. Accordingly, it was not feasible to place a condition of seniority on the
capacity to exercise delegated powers and functions under the RDA Act.
40. In subsection 26(2), for purposes of constitutional validity, the Registrar's
capacity to delegate to another State or Territory registrar under paragraph
26(1)(b) is subject to the written consent of the State or Territory concerned.
41. Subsection 26(2) does not apply to delegations under paragraph 26(1)(a)
because these delegations are made within a State or Territory (that has
already consented to its officers or bodies performing functions or duties, or
exercising powers, under Commonwealth legislation) and not to another State
or Territory. Accordingly, the same constitutional issues do not apply.
42. A delegation under section 26 of the RDA Act does not require Ministerial
approval and is most appropriate to cover short-term absences.
Item 35--Paragraphs 27(1)(a) and (b)
43. This item removes references to 'a registering officer', to ensure that only the
Registrar can register deaths under the RDA Act.
Item 36--Paragraph 27(1)(f)
44. Item 36 amends paragraph 27(1)(f) to refer to a decision to cancel the
registration of a death under subsection 22(1). Subsection 22(2) is repealed by
item 29. In any case, subsection 22(1) refers to the decision to cancel a
registration, while subsection 22(2) refers to the manner in which the
cancellation is recorded.
Item 37--Subsection 27(2)
45. This item removes the reference to 'a registering officer', to ensure that only
the Registrar can register deaths under the RDA Act.
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Schedule 1--Amendments
Part 2--Application and transitional provisions
46. This Part establishes transitional provisions that are intended to ensure the
proper continuation of functions under the RDA Act, as well as to validate any
appointments and any consequent registrations made under the RDA Act prior
to the commencement of this Part.
Item 38--Principal Act
47. Item 38 defines Principal Act, referred to in this Part.
Item 39--Validation of things purportedly done under the Principal Act
48. Item 39 validates things purportedly done under the Principal Act prior to the
commencement of this item, namely the appointment of a Registrar under the
Principal Act and accordingly any registrations made by that Registrar that
would otherwise have been valid and effective.
49. In particular, item 39 removes the requirement for the Registrar to be 'engaged
under the Public Service Act 1999'. This requirement affected the prior
appointment of the ACT Registrar-General as the Registrar and may have
affected registrations made by the ACT Registrar-General in its capacity as the
Registrar.
50. Item 39 also validates registrations that may otherwise have been invalidated
by the operation of subsection 8(2) of the Principal Act, which disallows the
registration of a death where it could have been registered under the law of a
State or Territory.
Item 40-- Pending applications for the registration of a death
51. Item 40 permits a Registrar appointed after the commencement of this item to
consider pending applications for the registration of a death (where the
application was made prior to the commencement of this item and a decision
to accept or refuse the registration has not been made).
Item 41-- Notification that State or Territory registrar will not register death
52. In conjunction with item 8, item 41 allows the Registrar to rely on a
notification that a State or Territory registrar will not register a death even
where it was provided at or before the commencement of this item.
Item 42-- Judicial notice of the mark of a stamp etc.
53. Item 42 is intended to ensure that the stamps etc. referred to in subsection
17(5) and used on documents, copies or extracts prior to the commencement of
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this item continue to have the same legal consequence, despite the repeal of
that subsection.
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REGISTRATION OF DEATHS ABROAD AMENDMENT BILL 2016
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011 (Cth)
Registration of Deaths Abroad Amendment Bill 2016
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The principal amendments of the Bill are to:
provide the Foreign Minister with the flexibility to appoint any State or
Territory Registrar as the 'Registrar of Deaths Abroad' (the Registrar);
validate the prior appointment of the ACT Registrar-General as the Registrar
and any previous registrations of deaths under the Registration of Deaths
Abroad Act 1984 (the RDA Act);
allow the Registrar to register deaths that could have been registered under the
law of a State or Territory, where the State or Territory concerned has provided
notice that it will not register a death; and
remove any references to 'registering officers' from the RDA Act, to ensure that
only the Registrar can register deaths under the RDA Act.
Human rights implications
This Bill does not engage any of the human rights and freedoms recognised or
declared in the international instruments listed in Section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. For clarity, the registration of deaths under the
RDA is a non-mandatory regime.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.