Access to WA Birth Extract BDMR Act 1998 s. 54(1)(b)

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Atom Ant

17 March 2021
Refer Births, Deaths and Marriages Registration Act 1998 (WA)


I am being denied access to a s. 54(1)(b) Birth Extract as it is being interpreted that the legislation provides discretion for the Registrar to consider conditions that are not submitted by the applicant, namely that the BDM Registry no longer produces the Birth Extract since 2006 (~8yrs after the 1998 revision).

In the 15 years since the Registry claims it phased out the Birth Extract, it has not sought to have the Legislation adjusted to reflect the internal decision (for which the Registry was unable to produce endorsement of by someone with Delegation of Authority).

My interpretation is that the discretion of ‘’may” is directly linked to the applicant having an “adequate reason” as grammatically carried through the hyphen (-).

s. 54(1) The Registrar may, on conditions the Registrar considers appropriate - (b) provide a person having an adequate reason for wanting information from the Register, with information extracted from the Register.

The Legislation is so granular as to define the "conditions" of an “adequate reason” in s. 54(2).

s.54(2) In deciding whether an applicant has an adequate reason for wanting access to the Register, or information extracted from the Register, the Registrar must have regard to — (a) the nature of the applicant’s interest; (b) the sensitivity of the information; (c) the use to be made of the information; and (d) other relevant factors.

Discretion for access to the extract is strictly limited to "deciding whether an applicant has an adequate reason".

The grammar of s. 54(1) through use of the hyphen (-) ensures that the “conditions” to be considered are the “adequate reasons” referred to in s. 54(1)(b) and defined in s. 54(2). The grammar is clear that the “conditions” are not distinct and separate from subsection (b), but rather the “conditions” are only the “adequate reasons”.

I believe the Legislation does not extend denial of access to whether the Registrar chooses to no longer make the Extracts available, as this is NOT an adequate reason made by the applicant.

Furthermore, if the extract is no longer available as it has been phased out as a result of an internal decision that has not been take to the Legislature, I believe the Registry has removed the ability of the Registrar to "may...provide" and apply any discretion to the applicants s. 54(2) considerations.

Finally, the justification for the claimed discontinuation of the Birth Extract was “these were no longer accepted by most organisations as sufficient primary evidence of a person’s identity”.

In fact the WA Registry itself still accepts documents that use the Extract as the primary evidence.

The Marriage Act 1961 (Cth) (No. 12, 1961 Compilation No. 27) which is In Force states;

s. 42 Notice to be given and declaration made

(b) there has been produced to that authorised celebrant, in respect of each of the parties:

(i) an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or

15 years after the claimed justification for internal phasing out of the Birth Extract, in contradiction to the Registry’s claims, the Birth Extract remains an accepted sufficient form of primary evidence of a person’s identity for the WA Births, Death and Marriages Registry.

Births, Deaths and Marriages Registration Act 1998 (WA) Part 6 s. 38

s. 38. How to have marriage registered

A person may have a marriage registered by lodging with the Registrar a certificate of the marriage under the Marriage Act 1961 of the Commonwealth or, if the marriage was solemnized before the commencement of that Act, the evidence of the marriage required by the Registrar.

The Registry does not appear to have made any efforts to request change to the Federal Legislation in the 15 years to date, and does not appear to deny the validity of the Birth Extract as primary evidence upon receiving a Marriage Certificate that was created through use of a Birth Extract. The latest revision of the Marriage Act (Cth) was October 2018.

My question is, do you believe the WA Registrar/Registry is on solid ground to deny access to the Birth Extract based on the aforementioned reasons (conditions not submitted by the applicant).

Note: The Registry has repeatedly offered a s. 57 Certificate. The Legislation is clear that it intends to provide access to both a s. 54(1)(b) Extract, and a s. 57 Certificate.
I have both documents for myself, but am requesting access for my offspring's records. I can confirm that the information contained on these documents is meaningfully different.

Your opinion is appreciated.

Kind Regards