Parliamentary Committees

Legislative Review Committee: Amendment to the Births, Deaths and Marriages Registration Regulations 2011 to Enable the Recognition of De Facto Relationships on the Register Recording the Death of a Person (Death Certificate)

The Hon. A.L. McLACHLAN (16:04): I move:

That the report, entitled Inquiry into an Amendment to the Births, Deaths and Marriages Registration Regulations 2011 to Enable the Recognition of De Facto Relationships on the Register Recording the Death of a Person (Death Certificate), be noted.

I rise as the Acting Presiding Member, in the absence of the Hon. Gerry Kandelaars, who is on leave. I acknowledge his work on the committee as Presiding Member and look forward to his return. This inquiry was referred by the other place to the committee on 6 May 2015. After publicly advertising the inquiry and writing to a number of relevant stakeholders, nine submissions were received. In response to those submissions, five public hearings were held. The Births, Death and Marriages registration regulations provide, amongst a number of other matters, for the provision of information to the Registrar of Births, Death and Marriages, which is necessary for the purposes of the registration of the death of a person.

Regulation 10(1) requires the provision of information with respect to all marriages of a deceased person, as well as information regarding the parents and children of a deceased person. There are currently no requirements to provide information with respect to other relationships of deceased persons and no requirement to record the same. In the course of conducting the inquiry, the committee considered a number of issues with respect to the recording of de facto relationships in the South Australian register of deaths and consequently, upon death certificates, including:

the purpose of death certificates;

the accuracy of death certificates;

the risk of misuse of death certificates;

whether the recording of a de facto partner on a death certificate may reverse the onus of proof as to the existence of the relationship for the purposes of claims against a deceased estate;

the definition of relationships to be recorded;

the potential for the registration of relationships;

the potential for declared domestic partnerships to be recorded on death certificates; and

the recording of relationships on death certificates in other Australian jurisdictions.

I will expand briefly upon each of these issues. After considering the provisions of the Births, Death and Marriages Registration Act, the committee concluded that the purpose of a death certificate is to accurately record all death registration information required by the regulations, provided the information is known, and to certify the accuracy of the same. The committee did not consider the purpose of a death certificate extends any further.

The potential for inaccurate facts to be recorded on death certificates was also considered. The current process for providing death registration information to the Registrar was of concern to the committee, as it appeared there was a potential for informants to provide inaccurate death registration information to funeral directors without the capacity for informants to be held legally accountable for accuracy of the same. The Registrar does not, as a matter of routine, independently verify death registration information received. The committee was concerned by the potential for the recording of inaccurate information as well as the risk arising from misuse of the same.

The first recommendation of the report proposes a review of the laws and administrative procedures which apply to the obtaining and processing of death registration information. In making this recommendation, the committee in no way intended to be critical of the practices of the Registrar. In contemplation of the potential for misuse of information recorded on death certificates, the second recommendation of the report suggests that limiting the information they record, with certificates to note only that a person is deceased, the person's date of birth, the sex of the deceased, when and where the person died, and the cause of death (if known).

These were considered by the committee to be the minimum and essentials required to established that a person is deceased and the circumstances of the person's death with minimal risk of inaccuracy or likelihood of misuse. It was considered that other information, such as with respect to any relationships or family of the deceased, might then be made available by way of a separate, uncertified extract from the registrar.

In the alternative, the second recommendation of the report proposes the placement of a statement upon death certificates to the effect that users of any recorded information, other than the fact that the named person is deceased, should verify the information before it is relied upon. It was accepted that this recommendation may not be to the satisfaction of members of the community, who would like to see death certificates record all death registration information, and to be expanded to include de facto relationships.

Whilst the committee was sympathetic to these views, the committee resolved to recommend what it considered to be the most efficient and effective reform options available for consideration by the Parliament of South Australia in all of the circumstances.

In the case of disputes regarding deceased estates of alleged members of relationships, the evidence led the committee to be concerned by the potential for a death certificate that inaccurately records the existence of a relationship to shift the evidential burden of proof to the family of a deceased, and leaving the family to prove that the relationship did not exist.

The committee also considered the need for any reform to clearly define the nature of the relationships to be recorded. It was noted that de facto relationships have been proven difficult to define, and that the definition of domestic partnerships, set out in the Family Relationships Act, is wider than would typically apply to de facto relationships. As a result of these matters, the committee accepted the evidence and submissions suggesting that establishing a register of relationships would be suitable reform for the parliament to consider.

It followed that registered relationships might then be recorded in the register of deaths. No submissions or evidence raised concerns in this regard. The Law Society of South Australia stated unequivocally that it was supportive of this reform. Mr Dini Soulio, Commissioner for Consumer Affairs, Liquor and Gambling, also generally supported this reform in the interests of certainty.

The committee also noted that the Relationships Register Bill remains to be debated after being read for a second time in the other place. Members will note that these matters are reflected in the third recommendation of the report.

The committee also noted evidence raising the option of domestic partners under the Family Relationships Act to obtain a declaration as to the existence of the relationship from a South Australian court. As an alternative to recommendation 3, the committee was of the view that this also had the potential to be prescribed as a qualifying criterion for the recording of a relationship in the register of deaths, and this formed the basis of the fourth recommendation of the report.

Finally, the committee considered the information which is entered into the register of deaths of persons in other Australian jurisdictions, noting considerable variation between approaches of the jurisdictions and finding little consistency from which to draw guidance. The committee would like to thank the committee secretary, Mr Matt Balfour, and the committee's research officer, Mr Ben Cranwell, for providing valuable assistance to the committee throughout the conduct of the inquiry.

In conclusion, I thank the other members of the committee for their contributions to the inquiry: the Hon. Gerry Kandelaars, the current Presiding Member of the committee, who remains on leave; the Hon. John Darley; the member for Little Para, Mr Lee Odenwalder; and, the member for Fisher, Ms Nat Cook. I also thank members who resigned from the committee during the course of the conduct of the inquiry, including the member for Heysen, Ms Isobel Redmond, and the member for Elder, Ms Annabel Digance. I commend the report to the council.

Debate adjourned on motion of Hon. J.A. Darley.