Bills Digest no. 4, 2016–17
PDF version [PDF 572KB]
Elibritt Karlsen and Moira Coombs
Law and Bills Digest Section
8
September 2016
This Bills Digest updates an earlier
version dated 7 April 2016.
Contents
History of the Bill
Purpose of the Bill
Background
Registration of Deaths Abroad Act
1984
Registrar of Deaths Abroad
Committee consideration
Senate Standing Committee for the
Selection of Bills
Senate Standing Committee for the
Scrutiny of Bills
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Schedule 1—amendments of Registration
of Deaths Abroad Act 1984
Part 2—Application and transitional
provisions
Concluding comments
Date introduced: 1
September 2016
House: House of Representatives
Portfolio: Foreign
Affairs and Trade
Commencement: Sections
1 to 3 on the day after Royal Assent. Schedule 1 commences on proclamation
or six months after Royal Assent, whichever is earlier.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can
be found on the Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2016.
History of
the Bill
This Bill was introduced into the 44th Parliament on 2
March 2016.[1]
That Bill had passed the House of Representatives and was before the Senate
when Parliament was dissolved. The Bill lapsed on dissolution of Parliament.
Purpose of the Bill
The purpose of the Registration of Deaths Abroad Amendment
Bill 2016 is to amend the Registration of Deaths Abroad Act 1984 (RDA
Act)[2]
to:
- provide
the Minister for Foreign Affairs with the flexibility to appoint any state or
territory registrar of deaths as Registrar of Deaths Abroad
- remove
an anomaly in the RDA Act requiring the Registrar of Deaths Abroad to be
appointed under the Public Service Act 1999
- allow
the Registrar to register a death that could have been registered under the law
of a state or territory where the state or territory has notified the Registrar
that it will not register the death
- validate
the prior appointment of the ACT Registrar-General as the Registrar of Deaths
Abroad and any previous registrations of death under the RDA Act
- provide
that only the Registrar of Deaths Abroad may now register a death under the RDA
Act.
Background
In 2012–13, consular staff provided advice and assistance
to the families of 1,247 Australians who died overseas during that year.[3]
In 2013–14, advice and assistance was provided to the families of 1,215
Australians who died overseas.[4]
Illness was the leading cause of death for Australian abroad. Accidents are
also a common cause. The national medical adviser for the Travel Doctor, Dr
Tony Gherardin, reportedly said:
People often forget to get the proper vaccinations before
going abroad and were putting themselves at risk of diseases such as malaria,
dengue fever and typhoid fever.[5]
The registration of deaths occurring within Australia is a
state and territory responsibility. It is not compulsory to register a death in
Australia that occurs overseas.[6]
However, as the Minister for Foreign Affairs noted in the second reading speech
to the 1984 Registration of Deaths Abroad Bill, the legislation was intended to
assist persons experiencing considerable difficulties in winding up the estates
of persons who have died overseas because no death certificate could be issued
in Australia.[7]
Currently, the Registrar of Deaths Abroad, the Minister
and various consular officials may register a death occurring overseas under
the RDA Act. A list of the officials currently able to register a death
appears in the Key Provisions part of this Digest, below. The Bill
provides that, in future, only the Registrar of Deaths Abroad can register a
death occurring overseas under the RDA Act. At present, the Registrar is
not authorised to register under the RDA Act, the death:
- of
a person whose identity is unknown
- that
may be registered under the law of a state or territory or
- of
a person, other than a prescribed person, who died on board an aircraft or
ship, other than an Australian aircraft or ship, whose death may be registered
under the law of a foreign country.[8]
The death of a person who dies within a state or territory
must be registered under state or territory law. Generally, state and territory
legislation provides that the state or territory may register a death which
occurs in an aircraft during a flight to an airport in the state or on board a
ship during a voyage to a port in the state. If a person is ordinarily resident
in the state or territory and dies outside Australia, or a person dies outside
Australia leaving property in the state, the death may be registered under the
state Act.[9]
Consular staff in Australia and overseas are able to
provide the following services:
- assist family and friends to
understand the legal and administrative processes that apply in [the foreign]
country
- provide a list of local funeral
directors and lawyers
-
liaise with the local funeral
director so they are aware of Australian quarantine regulations
- provide advice on how family and
friends can obtain translations if an English-speaking funeral service company
is not available
- advise on the estimated cost of
local burial, local cremation or transport of the deceased back to Australia
- advise on how to transfer funds
from Australia to meet any costs
-
assist, if necessary, to identify
the body
- assist with obtaining quarantine
clearance for the return of the remains
- provide advice on managing media
enquiries.[10]
Registration of Deaths Abroad Act 1984
The purpose of the Registration of Deaths Abroad Act
1984 is to provide for the registration in Australia of the deaths of
Australian citizens, Australian residents and people in receipt of Australian
social security benefits who die overseas and whose deaths cannot be registered
under existing state and territory legislation. The RDA Act enables
Australia to conform to accepted international practice by registering the
deaths of these and other persons which occur in international airspace or
waters on board Australian registered aircraft or ships, or on board ships or
aircraft travelling to and from Australia.[11]
Registrar of Deaths Abroad
The Registrar-General for the ACT presently undertakes the
function of Registrar of Deaths Abroad. The ACT Births, Deaths and Marriages
Practice Manual notes:
Registration of [relevant deaths that occur overseas] will
enable relatives and other relevant persons or organisations to readily obtain
certificates or results of searches without difficulty or delay. An Australian
document will also streamline the settlement of estates, insurance claims and a
variety of other matters. Registrations under the Act are not compulsory.
It should also be noted that each state and territory has
provision in their own legislation that allows them to register overseas deaths
for people who are usually domiciled or own property in the state or territory.
The registration of a death abroad may only be achieved where
the registration of the death cannot be established under state or territory
legislation (Part II, section 2(b) Registration of Deaths Abroad Act 1984).
5.4.1 APPLICATIONS FOR REGISTRATION OF A DEATH ABROAD
Registration under this Act may only be made if the
registration cannot be established under a State or Territory Act. Applications
made on the prescribed form can be made to a Registering Officer at an
Australian Embassy, High Commission in an overseas country or to the
Registrar-General in his capacity as Registrar of Deaths Abroad in Canberra.
Any person who requires the death to be registered or
believes that the death should be registered in Australia may apply for the
registration.
To enable registration in the Register of Deaths Abroad, the
Registrar-General requires:
- A completed Application Form;
- An original registered death certificate (where registered
overseas);
- An original Coroner’s Report (where applicable); or Medical
Practitioners Certificate; and
- Any other supporting documents, such as,
- a burial certificate,
- a cremation certificate, or
- transport of body certificate.
An official English translation is required if the documents
are in a foreign language. Difficulties may be experienced in obtaining some of
the documents indicated above. Where this is the case the Registrar-General may
ask for alternative documentation.
All original documents will be returned to the person
applying for the death to be registered.[12]
Committee consideration
Senate Standing Committee for the Selection of Bills
The Senate Standing Committee on the Selection of Bills
decided that the earlier Bill should not be referred to a Committee for inquiry.[13]
On 1 September 2016, the Committee again resolved to recommend that the current
Bill before Parliament not be referred to any committees.[14]
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing for the Scrutiny of Bills had no comment
on the earlier Bill.[15]
Financial implications
The Explanatory Memorandum notes that the Bill will not
result in any additional cost to the community or to the Commonwealth.[16]
Statement of Compatibility
with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[17]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[18]
Key issues and provisions
Schedule 1—amendments of Registration of Deaths Abroad Act
1984
Item 2 amends subsection 3(1) of the RDA Act
by repealing the definition of registering officer. Registering officer
currently refers to the Registrar of Deaths Abroad and a number of other
persons who may register deaths abroad. Those other persons include an
Ambassador, High Commissioner, Minister, Head of a Mission and other consular
staff or representatives. Item 2 of the Bill and related amendments at items
9 to 26, 29, 35 and 37, which remove references to ‘registering
officer’, ensure that only the Registrar can register deaths under the RDA
Act. The Explanatory Memorandum notes that the Department of Foreign
Affairs and Trade no longer performs the function of registering deaths under
the RDA Act.[19]
Item 6 repeals and substitutes sections 5 and 6 with proposed
sections 5 and 6. Under subsection 5(1) the Minister must appoint a
Registrar of Deaths Abroad. At present section 5(3) provides that if there is a
vacancy in the office of the Registrar of Deaths Abroad, the Minister must
appoint the ACT Registrar of Births Deaths and Marriages. Subsection 5(2)
requires that the Registrar of Deaths Abroad be employed under the Commonwealth
Public Service Act 1999. In fact, the ACT Registrar has not been
employed under the Commonwealth Public Service Act since 1994, an
anomaly that is removed by the Bill.[20]
(Item 39 of the Bill, discussed below, seeks to validate actions
previously taken under the RDA Act that may otherwise be invalid due to
the failure to comply with current legislative requirements, including the
requirement in subsection 5(2).) Proposed section 5 provides for a
Registrar of Deaths Abroad to be appointed by the Minister as is currently the
case. The Minister must not appoint a person unless that person is a state or
territory registrar and the state or territory concerned has given written
notice to the Minister agreeing to the appointment (proposed subsection
5(3)).[21]
The Registrar no longer needs to be employed under the Commonwealth Public
Service Act as this requirement would clearly not be met by state or
territory registrars.
Proposed subsection 5(5) reproduces current
subsection 5(4) by providing that the Minister may terminate the appointment of
the Registrar of Deaths Abroad at any time, while proposed subsection 5(6)
provides that the Minister must terminate the appointment if the person
who is the Registrar ceases to be a state or territory registrar.
Proposed section 6 provides that the Minister may
appoint a person to act as the Registrar of Deaths Abroad if there is a
vacancy, or the Registrar is absent or unable to perform the duties of the
office. The same qualifications and conditions apply to the Acting Registrar as
to the Registrar.
The proposed changes create greater flexibility by enabling
the Minister to appoint any state or territory registrar as the
Registrar/Acting Registrar of Deaths Abroad.
Item 8 repeals paragraph 8(2)(b) and substitutes it
with proposed paragraph 8(2)(b). Subsection 8(1) lists the deaths that
are registrable under the RDA Act, while subsection 8(2) lists those
deaths that are not registrable. Paragraph 8(2)(b) provides that a death is not
registrable under the RDA Act if it may be registered under the law of a
state or territory. Proposed paragraph 8(2)(b) will allow the
registration of a death that could be registered under a state or territory
law, provided that the relevant state or territory registrar has notified the
Registrar of Deaths Abroad that it will not register the death. The Explanatory
Memorandum notes:
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.[22]
Section 15 sets out how a death is registered under the RDA
Act. Current subsection 15(1) provides that where a registering officer is
required to register a death under the Act he or she must do so by completing a
written Certificate of Death Abroad. Current subsection 15(2) provides that such
a Certificate is not regarded as complete until the registering office has
signed the certificate and:
- if
the registering officer is the Registrar of Deaths Abroad, he or she has
stamped the Certificate with the ‘official stamp’ mentioned in subsection 17(1)
of the RDA Act (see below) or
- if
the registering officer holds a consular position that has an official seal, he
or she has sealed the Certificate.
Section 15 will be amended in two ways. Firstly, items 21
to 24 will amend section 15 to remove references to ‘registering
officers’. As discussed in relation to item 2, above, the RDA Act
will no longer refer to registering officers and instead only the Registrar of
Deaths Abroad will be able to register deaths under the Act.
Secondly, item 23 repeals and replaces subsection
15(2) to provide that a Certificate of Death Abroad is not complete until the
Registrar of Deaths Abroad has signed and sealed the certificate, or has caused
the certificate to be sealed, with the relevant state or territory seal.
‘Relevant state or territory seal’ is defined in proposed section 3A,
inserted by item 4 of the Bill, as the seal used by the Registrar of
Deaths Abroad in his or her capacity as a state or territory registrar. Item
27 of the Bill amends section 17 to remove the requirement for the
Registrar to have an ‘official stamp’. The combined effect of the amendments
made by items 4, 23 and 27 is that a Certificate will not be
complete until the Registrar (who, under proposed subsection 5(3), at item
6, must be a state or territory registrar) has signed and sealed the
Certificate (or caused it to be sealed) with the seal that he or she uses in
his or her capacity as a state or territory registrar. The removal of the
requirement for a separate stamp should simplify administrative processes for
the state or territory registrar who is acting as the Registrar of Deaths
Abroad, by allowing them to authenticate documents in the same way under both
the relevant state or territory legislation and the Commonwealth
legislation.
In addition to removing the requirement for the Registrar to
have an official stamp, proposed section 17 also updates the provision
to recognise electronic signing and sealing of documents. Proposed
subsection 17(1) provides that, if the Registrar causes, by any method, a
facsimile of the Registrar’s signature and the relevant state or territory seal
to appear on a document, extract or copy, then the Registrar is taken to have
signed the document and sealed it with the relevant state or territory seal.
Under proposed subsection 17(2), all courts, judges and persons acting
judicially must take judicial notice of the relevant state or territory seal on
a document, copy or extract made under the Act and to presume the document,
copy or extract was duly sealed with the relevant state or territory seal
(unless there is proof to the contrary).
Section 19 deals with applications for searches and the
making of copies of register entries. Subsection 19(3) requires the Registrar,
on receipt of such an application (and the payment of any required fee) to
advise the applicant of the result of the search and a copy or extract of an
entry in the register, if that has been requested. Item 28 inserts proposed
subsection 19(3A) which provides that the Registrar must sign and seal
(with the relevant state or territory seal, as discussed above) each certified
copy or extract issued under subsection 19(3). The Explanatory Memorandum notes
that it is necessary to sign and seal the certified copy or extract as these
documents have legal consequences under subsection 23(2) of the RDA Act
and this approach is consistent with state and territory model legislation for
the registration of births, deaths and marriages.[23]
Part 2—Application and transitional provisions
Item 39 validates matters that were purportedly
done under the RDA Act prior to the commencement of Schedule 1 to the
Bill, such as the appointment of the Registrar of Deaths Abroad and any
registrations made under the Act by the Registrar that may not have been valid
or effective.
Item 39 of the Bill applies to a thing purportedly
done under the Act prior to the commencement of Schedule 1 to the Bill, to the
extent that it would otherwise be invalid because:
- a person was not validly appointed as Registrar of Deaths Abroad under
subsection 5(1) of the Act or acting Registrar under section 6 of the Act or
- paragraph 8(2)(b) of the RDA Act was not complied with.
These actions (or ‘things) are validated by subitem
39(2).
The validation of things done by a person who may not have
been validly appointed as Registrar or acting Registrar is required as (as
discussed in relation to item 6, above) the RDA Act currently
requires such a person to be engaged under the Commonwealth Public Service
Act, but this requirement has not been met since 1994 (and will be removed
by the Bill). As a result, there is concern to ensure the validity of
registrations made by the Registrar since 1994.
As discussed above in relation to item 8 of the
Bill, current paragraph 8(2)(b) of the RDA Act provides that the
Registrar is not authorised to register the death of a person if that death may
be registered under the law of a state or territory. This situation could
affect applicants by letting them remain in a procedural ‘limbo’ as they
negotiate with state or territory registrars to register an overseas death.[24]
Item 39 will ensure that any deaths previously registered by the
Registrar of Deaths Abroad in non-compliance with paragraph 8(2)(b) will be
regarded as validly registered. In addition, item 41 extends the
application of paragraph 8(2)(b) as amended to deaths occurring before or after
the commencement of Schedule 1 to the Bill.
Item 40 allows pending applications to be dealt
with under the RDA Act as amended.
Concluding comments
The Bill will correct the anomaly which has resulted in
uncertainty as to the validity of the appointment of the Registrar of Deaths
Abroad since 1994 and, consequently, the registrations made during that time.
The provisions of the Bill validate the previous appointments of the Registrar
as well as previous registrations of death made under the Act. They also insert
greater flexibility into the operation of the registration process for deaths
abroad.
[1]. Parliament
of Australia, ‘Registration
of Deaths Abroad Amendment Bill 2016 homepage’, Australian Parliament
website.
[2]. Registration of
Deaths Abroad Act 1984 (Cth).
[3]. Department
of Foreign Affairs and Trade (DFAT), ‘Assisting Australians overseas’, Annual
report 2012–13, DFAT, Canberra, 2014, p. 129.
[4]. DFAT,
‘Assisting Australians overseas’, Annual
report 2013–14, DFAT, Canberra, p. 197.
[5]. L
Cornish, ‘Australians
dying overseas in record numbers’, News.com.au, 8 February 2013.
[6]. Department
of Foreign Affairs and Trade (DFAT), Consular Policy Branch, ‘Death
overseas’, Smartraveller.gov.au, June 2014.
[7]. W
Hayden, ‘Second
reading speech: Registration of Deaths Abroad Bill 1984’, House of
Representatives, Debates, 8 March 1984, p. 769.
[8]. A
‘prescribed person’ is, broadly, an Australian citizen or resident, or a person
in receipt of an Australian social security benefit or pension—subsection 3(1)
of the RDA Act.
[9]. Births,
Deaths and Marriages Registration Act 1995 (NSW), section
36; Births, Deaths and Marriages Registration Act 1996 (Vic.), section
34; Births, Deaths and Marriages Registration Act 2003 (Qld), section
27; Births, Deaths and Marriages Registration Act 1996 (SA), section
33; Births, Deaths and Marriages Registration Act 1999 (Tas.), section
32; Births, Deaths and Marriages Registration Act 1998 (WA), section
40; Births, Deaths and Marriages Registration Act 1997 (ACT), section
33; Births, Deaths and Marriages Registration Act (NT), section
32. The references in some of these sections to ‘the Commonwealth’ refers
to the Commonwealth of Australia. See: Interpretation Act 1987 (NSW), section
21; Interpretation of Legislation Act 1984 (Vic), section
38; Acts Interpretation Act 1915 (SA), section
4; Acts Interpretation Act 1931 (Tas), section
43; Interpretation Act 1984 (WA), section
5; Interpretation Act (NT), section
17.
[10]. DFAT,
Consular Policy Branch, ‘Death
overseas’, Smartraveller.gov.au, June 2014.
[11]. Hayden,
‘Second reading speech: Registration of Deaths Abroad Amendment Bill 2016’, op.
cit., p. 768.
[12]. ACT
Government, Department of Justice and Community Safety, ‘Deaths abroad’, Births,
deaths and marriages practice manual, ACT Office of Regulatory
Services, April 2014, pp. 26-27.
[13]. Senate
Standing Committee for the Selection of Bills, Report,
4, 2016, The Senate, Canberra, 17 March 2016.
[14]. Senate
Standing Committee for the Selection of Bills, Report,
5, 2016, The Senate, Canberra, 1 September 2016, p. 4, as amended by: D Bushby,
‘Selection
of Bills Committee Report’, Senate, Debates, (proof), 1 September
2016, p. 25.
[15]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 4, 2016, The Senate, Canberra, 17 March
2016.
[16]. Explanatory
Memorandum,
Registration of Deaths Abroad Amendment Bill 2016, p.
2.
[17]. The
Statement of Compatibility with Human Rights can be found at page 11 of the
Explanatory Memorandum to the Bill.
[18]. Parliamentary
Joint Committee on Human Rights, Thirty-sixth
report of the 44th Parliament, 16 March 2016, p. 1.
[19]. Explanatory
Memorandum, Registration of Deaths
Abroad Amendment Bill 2016, p. 4.
[20]. Ibid.,
p. 5.
[21]. Item
3 of the Bill inserts a definition of ‘State or Territory registrar’ into
subsection 3(1) of the RDA Act. A State or Territory registrar is ‘a
person who holds office or position that has the function of keeping a register
of deaths under a law of a State or Territory’.
[22]. Ibid.,
p. 6.
[23]. Ibid.,
p. 7.
[24]. Explanatory
Memorandum, Registration of Deaths Abroad Amendment Bill 2016,
op. cit., p. 6.
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