Making Indigenous Australians ‘Disappear’

In this article, the term Indigenous refers to all Aboriginal and Torres Strait Islanders who identify as such.

Topsfield Jewel , ‘The Unbearable Heaviness of Being No One’, The Age (Melbourne), 23 January 2009.

For further stories of Indigenous Australians suffering because they cannot prove their identity, see Orenstein Joel , ‘The Difficulties Faced by Aboriginal Victorians in Obtaining Identification’ (2008) 7(8) Indigenous Law Bulletin 14.

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, art 24(2) (entered into force 23 March 1976).

UNICEF , The ‘Rights’ Start to Life (2005) The United Nations Children Fund, 3. This figure is from 2005, and more recent figures suggest the number of unregistered births may now be 51 million. See Heap Simon and Cody Claire , ‘The Universal Birth Registration Campaign’ <http://repository.forcedmigration.org/pdf/?pid=fmo:4861> at 9 May 2009.

Sharp Nicola , Universal Birth Registration — A Universal Responsibility, Plan UK (2005) 30.

Ibid 7.

See media reports on this issue. Topsfield Jewel , ‘Aborigines Lack Proof of Identity’, The Age (Melbourne) 23 January 2009; ABC Radio , ‘Indigenous Australians Face Greater Difficulties Obtaining ID’, PM, 12 December 2008 <abc.net.au/pm/content/2008/s2445397.htm> at 9 May 2009.

Gippsland Community Legal Service , The Koori ID Project May 2008, 3. Copy of report on file with the author.

Births, Deaths and Marriages Registration Act 1996 (Vic); Births, Deaths and Marriages Registration Act 1995 (NSW); Births, Deaths and Marriages Registration Act 1997 (ACT); Births, Deaths and Marriages Registration Act 2003 (QLD); Births, Deaths and Marriages Registration Act 1996 (NT); Births, Deaths and Marriages Registration Act 1998 (WA); Births, Deaths and Marriages Registration Act 1996 (SA); and Births, Deaths and Marriages Registration Act 1999 (Tas).

The fee is $26.60 in Victoria; $42 in New South Wales; $33 in Queensland; $25 in the Northern Territory; $38 in South Australia; $36 in the Australian Capital Territory; $42 in Western Australia; and $35.84 in Tasmania.

If the exact details of the birth are not known, further fees may be incurred in conducting searches to locate the birth information.

Registrar of Births, Deaths and Marriages Victoria , Indigenous Access Project Update, March 2009. Copy on file with author.

For example, Shepparton , West Traralgon and Mildura . Source – Registrar of Births, Deaths and Marriages Victoria, Indigenous Access Project Update, March 2009. Copy on file with author.

Orenstein , above n 3.

Births Deaths and Victoria Marriages , ‘News archive’, 2009 Aboriginal Community Information Sessions <http://online.justice.vic.gov.au/CA2574F700805DE7/page/About+us-News+archive?OpenDocument&1=70-About+us∼&2=60-News+archive∼&3=∼> at 30 June 2009.

Births Deaths and Victoria Marriages , ‘Proof of identity’, <https://online.justice.vic.gov.au/CA2574F700805DE7/page/About+us-Registry+policies-Proof+of+identity?OpenDocument&1=70-About+us∼&2=40-Registry+policies∼&3=30-Proof+of+identity> at 7 August 2009.

In Victoria, the only Registry office for Births, Deaths and Marriages is in Melbourne. Getting to this office can be difficult for rural and regional people, with the result that the majority of Indigenous applicants are likely to have to apply online or by mail and therefore go through the police certification process to apply for a copy of their birth certificate.

‘Indigenous Deaths in Custody 1989–1996’ A Report prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner <hreoc.gov.au/Social_Justice/publications/deaths_custody/index.html> at 7 August 2009.

It is a curious requirement to have your birth certificate listed as one of the identification documents required by the Registrar in order to obtain a copy of your birth certificate!.

This is increasingly likely to be the case, as nowadays there is increasing dependence on documents such as birth certificates. Historically, it was less of a problem as you were able, for example, to open a bank account without a birth certificate.

Births Deaths and Victoria Marriages , ‘Registering a Birth’ Information Flyer <http://online.justice.vic.gov.au/CA256902000FE154/Lookup/BDMContentSite-PDFs/$file/4060_BDM%20Aboriginal%20C5Flyer_Final.pdf> at 7 August 2009.

Birth, Deaths and Marriages Registration Act 1996 (Vic), s 49.

Orenstein , above n 3, 15.

Todres Jonathan , ‘Birth Registration: An Essential First Step toward Ensuring the Rights of All Children’ (2003) 10 Human Rights Brief 32, 35.

It is noted that the Victorian Registrar of Births, Deaths and Marriages created a specific simplified form for victims of the Black Saturday bushfires (7 February 2009), and waived all fees, thereby demonstrating a willingness to be flexible when deemed necessary. <http://online.justice.vic.gov.au/CA256902000FE154/Lookup/BDMApplication_Forms/$file/Form%20Bushfire09.pdf> at 30 June 2009.

Todres , above n 25, 32.

Ibid 33.

Ibid.

Detrick Sharon , A Commentary on the United Nations Convention on the Rights of the Child (1999), 145–146.

A penalty fine of approximately $1000 may be imposed for failing to register a birth within this period.

It should be noted that Australia is the State Party to CROC, and as such has an obligation to ensure that the states and territories comply with the Convention.

CRC/C/58, 20 November 1996, para 49.

CRC/C/129/Add.4, 29 December 2004, para 475.

General Comment No 11, CRC/C/GC/11, January 2009.

Ibid para 41.

Ibid para 42.

Ibid para 43.

Thirty-fifth session of the HRC, 7 April 1989.

First Optional Protocol to the ICCPR, adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 23 March 1976.

Communication No 400/1990, 3 April 1995, CCPR/C/53/D/400/1990.

Ibid para 10.5.

Ibid.

Human Rights Act 2004 (ACT).

Other jurisdictions are considering enacting Human Rights Acts including Tasmania, WA and the Commonwealth.

Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38.

Evans Carolyn and Evans Simon , Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (2008) 3.

Victorian Department of Justice , Rights, Responsibilities and Respect: The report of the Human Rights Consultation Committee, November 2005, 45.

Charter of Human Rights and Responsibilities Act 2006 (Vic) s 44.

Article 16 of the ICCPR is based on article 6 of the Universal Declaration of Human Rights which provides that ‘Everyone has the right to recognition everywhere as a person before the law.’

Nowak Manfred , UN Covenant on Civil and Political Rights. CCPR Commentary (2nd ed, 2005), 372.

Smith Rhona , Textbook on International Human Rights (3rd ed, 2007), 236.

Article 4(2).

Orenstein , above n 3, 16–17.

Todres , above n 25, 33.

Other arguments could be raised about discrimination against Indigenous Australians in the enjoyment of this right, but that is beyond the scope of this article. 57. This is based on article 24 of the ICCPR.

For example, access to medical care, social security and education.

General Comment No 17: Rights of the Child (Art 24), Human Rights Committee , 7 April 1989, para 3.

Nowak , above n 51, 547.

The Charter does not create an independent cause of action and a breach of the Charter does not give rise to a cause of action in and of itself.

Rudd Kevin , ‘Apology to Australia's Indigenous Peoples’ Hansard, 13 February 2008, 167.