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Births, Deaths and Marriages
Registration Amendment Bill 2019
Introduction Print
EXPLANATORY MEMORANDUM
General
The Births, Deaths and Marriages Registration Amendment Bill 2019 amends
the Births, Deaths and Marriages Registration Act 1996 (referred to as the
"Principal Act" in this explanatory memorandum) to remove the requirement
for a person to have undergone sex affirmation surgery before being able to
apply to alter the sex recorded in their Victorian birth registration or to obtain
a document acknowledging their sex from the Victorian Registrar of Births,
Deaths and Marriages (the Registrar).
The amendments allow an adult to apply to alter the sex recorded in their
birth registration to a sex descriptor of their choice. The application will be
accompanied by a statutory declaration and supporting statement made by an
adult who has known the applicant for at least 12 months.
The amendments introduce a new process to allow the parents or guardian of
a child to apply, with the child's consent, to alter the sex recorded in the
child's birth registration to a nominated sex descriptor.
The Bill provides that where an adult or a child's birth is registered in a place
outside of Victoria, the Registrar may issue a document acknowledging the
person's sex in accordance with the person's nominated sex descriptor.
The Bill also makes consequential amendments to the Children, Youth
and Families Act 2005, the Corrections Act 1986, the Serious Offenders
Act 2018 and the Sex Offenders Registration Act 2004 in order to provide
an approval process for applications to alter a record of sex in a birth
registration, or for a document acknowledging a person's sex, made by a
youth justice detainee, a person who is a prisoner, on parole, under
supervision as a serious sex offender or a registrable offender.
591082 1 BILL LA INTRODUCTION 18/6/2019
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill.
The main purposes of the Bill include the making of amendments
to the Principal Act in order to--
provide for applications to alter a record of sex in
a Victorian birth registration to a sex descriptor
nominated by the applicant;
provide for the issuing of a document acknowledging
the name and sex of an adult whose birth is registered
in a place outside of Victoria;
remove the requirement that an applicant has undergone
sex affirmation surgery in respect of applications to
alter the record of sex in their Victorian birth
registration, or for the issuing of a document
acknowledging their name and sex;
provide for alteration of the record of a child's sex in a
child's Victorian birth registration, or where that child's
birth is registered in a place outside of Victoria, to
provide for the issuing of a document acknowledging
the child's name and sex; and
set out the requirement that an application to alter the
record of a restricted person's sex, or for the issuing of a
document acknowledging the restricted person's name
and sex, be accompanied by the appropriate approval--
a restricted person is defined in new section 30FB,
inserted by clause 13 of the Bill.
It is also a purpose of the Bill to consequentially amend the
Children, Youth and Families Act 2005, the Corrections
Act 1986, the Serious Offenders Act 2018 and the Sex
Offenders Registration Act 2004 to provide for an approval
process and required information sharing in respect of
applications made by or on behalf of a restricted person to alter
the record of sex of that person or for the issuing of a document
acknowledging that person's name and sex.
2
Clause 2 is the commencement provision, which provides for the Bill to
come into operation on a day or days to be proclaimed, or on
1 May 2020 if not proclaimed before that date.
The purpose of the default commencement date of 1 May 2020 is
to allow sufficient time for implementation of the changes arising
from the Bill.
Clause 3 provides that the Births, Deaths and Marriages Registration
Act 1996 is described as the Principal Act in the Bill.
Part 2--Amendment of Births, Deaths and
Marriages Registration Act 1996
Clause 4 amends 2 of the objects set out in section 3 of the Principal Act.
The amendment provide that the objects of the Principal Act
include the alteration of the record of sex in a birth registration,
and the issue of documents acknowledging the name and sex of
persons whose birth is a registered in a place other than Victoria.
Clause 5 amends section 4(1) of the Principal Act, which sets out the
definitions used in the Principal Act.
Paragraph (a) substitutes a new definition of interstate
recognition certificate to remove redundant references to
interstate legislation. An interstate recognition certificate means
a current certificate identifying a person as being of a particular
sex that is issued under a law of another State (defined to include
a Territory under the Principal Act) that relates to the recognition
of a person's sex.
Paragraph (b) substitutes a new definition of registrable event to
include an alteration of the record of sex in a birth registration as
a registrable event, and to set out all registrable events in the
form of a list. The definition is relevant to Part 7 of the Principal
Act in relation to the Registrar's obligation to maintain a register
of registrable events. The definition is also relevant to section 56
of the Principal Act in relation to the Registrar's obligation to
provide certain information to the Minister about the number of
registrable events registered in a financial year. There will no
longer be a requirement for the Registrar to separately report on
the number of occasions on which the Registrar altered the record
of sex in a birth registration (see the amendment to section 56 of
the Principal Act in clause 18 of the Bill).
3
Paragraph (c) amends the definition of sex affirmation surgery to
replace the reference to "opposite sex" with "a particular sex".
While sex affirmation surgery will no longer be a requirement for
an application to alter the sex recorded in a Victorian birth
registration, or to obtain a document acknowledging name and
sex from the Registrar, the definition is retained for the purposes
of section 30H of the Principal Act. Section 30H applies to the
reissuing of interstate birth certificates and provides that the
validity of such a certificate in Victoria is not affected merely
because it was issued as a result of the person having undergone
sex affirmation surgery.
Paragraph (d) inserts the following new definitions into
section 4(1) of the Principal Act--
acknowledgement of sex application, which means an
application by or on behalf of a restricted person under
section 30A, 30B, 30E or 30EA of the Principal Act
(applications to alter the sex recorded in a birth
registration or for a document acknowledging name and
sex). These applications require the prior approval of a
relevant authority. The terms restricted person and
approval are also defined;
approval, which means a decision by the relevant
authority to approve the making of an acknowledgement
of sex application by a restricted person;
Justice Secretary, which means the Secretary to the
Department of Justice and Community Safety;
prohibited sex descriptor, which means a descriptor of a
person's sex that is obscene or offensive, or that could
not practicably be established by repute or usage
because it is too long, consists of or includes symbols
without phonetic significance or for some other reason;
restricted person, which means a person who is a
detainee within the meaning of section 482A of the
Children, Youth and Families Act 2005, a prisoner
within the meaning of section 3(1) of the Corrections
Act 1986, a prisoner on parole within the meaning of
section 79HA of the Corrections Act 1986, an offender
within the meaning of section 265A of the Serious
Offenders Act 2018, or a registrable offender within
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the meaning of section 3 of the Sex Offenders
Registration Act 2004; and
sex descriptor, which is defined to include male or
female or any other sex. It is intended to provide for
any description of sex including male, female or any
gender diverse or non-binary descriptions of sex.
The only limitation on what can be included as a sex
descriptor is the Registrar's discretion to refuse to
register or issue a document with a prohibited sex
descriptor.
Clause 6 amends section 28(2) of the Principal Act.
Section 28(2) allows the Registrar to register a change of name of
a person whose birth is registered in Victoria, if satisfied that the
name has been changed by order of a court. The amendment
clarifies that this includes an order of a court of another State
(defined to include a Territory under the Principal Act) or the
Commonwealth.
Clause 7 replaces the heading of Part 4A of the Principal Act to remove
the outdated reference to "transsexualism" and to better describe
what is provided for by Part 4A. Rather than refer to
"recognition of sex (transsexualism)", the new heading refers to
"acknowledgement of sex", as Part 4A provides for applications
to alter the record of an adult or a child's sex on a Victorian birth
registration and applications for documents acknowledging the
name and sex of an adult or a child.
Clause 8 substitutes sections 30A and 30B of the Principal Act with
new sections 30A and 30B, and also inserts new sections 30BA
and 30BB into the Principal Act.
New section 30A
New section 30A sets out a new process for adults to apply to the
Registrar to alter the record of sex in their Victorian birth
registration. The new process does not require the applicant to
have undergone sex affirmation surgery.
Instead, new section 30A(1) allows a person who is 18 years old
or over to make an application if--
the person's birth is registered in Victoria; and
5
the person believes their sex to be as nominated in the
application; and
the record of their sex has not been altered within the
12 months preceding the application date.
The applicant must nominate a sex descriptor. Clause 5 inserts a
definition of sex descriptor into the Principal Act, which includes
male or female or any other sex.
The application must be in the form approved by the Registrar
and include a statutory declaration by the applicant that the
applicant meets the requirements of section 30A(1).
The application must be accompanied by a supporting
statement from an adult who has known the applicant for at
least 12 months, which states that the person making the
supporting statement believes that the applicant makes their
application in good faith, and that the person supports the
application.
The application must also be accompanied by any prescribed fee
and any other documents or information reasonably required by
the Registrar.
New section 30B
New section 30B sets out a new process for the parents of a child
to apply to the Registrar to alter the record of the child's sex in
a child's Victorian birth registration. The section is subject to
new section 30BA, which sets out the circumstances in which
one parent, or a guardian, may make the application.
Under new section 30B(1), the parents of a child may make an
application for the record of sex in the child's birth registration to
be altered if--
the child's birth is registered in Victoria; and
the child consents to the alteration of the record of the
child's sex to the sex descriptor nominated in the
application; and
the parents believe on reasonable grounds that the
alteration is in the best interests of the child; and
the record of child's sex has not been altered in the
12 months preceding the application date.
6
In the application, the parents must nominate a sex descriptor.
Clause 5 inserts a definition of sex descriptor into the Principal
Act, which includes male or female or any other sex.
New section 30B(3) provides that the application must be in
the form approved by the Registrar and must include a statutory
declaration made by each parent that the application meets the
requirements under section 30B(1).
The application must be accompanied by a supporting statement
made by a relevant person, defined in new section 30B(5) to
mean a doctor, registered psychologist or a person who is a
member of a prescribed class of persons. The supporting
statement must state that, in the relevant person's opinion, the
alteration of the record of the child's sex is in the best interests of
the child. If the child is under 16 years of age, the supporting
statement must also include the relevant person's opinion that the
child has capacity to consent to the alteration of the record of
their sex. A child aged 16 or more years is presumed to have
capacity to consent.
A supporting statement does not need to accompany the
application where the County Court makes an order under new
section 30BB(3) approving the alteration of the record of the
child's sex. New section 30BB allows one parent, or a guardian,
to apply to the County Court for an order approving the alteration
of the record of a child's sex if the Court is satisfied that the
alteration is in the child's best interests.
The application must also be accompanied by any prescribed fee
and any other documents or information reasonably required by
the Registrar.
New section 30BA
New section 30BA sets out the circumstances in which
one parent, or a guardian, may make an application under new
section 30B to alter the record of a child's sex in the child's
Victorian birth registration.
An application under section 30B may be made by one parent
if--
the applicant is the sole parent named in the child's
Victorian birth registration; or
there is no other surviving parent of the child; or
7
the County Court makes an order under new
section 30BB(3) approving the alteration of the record
of the child's sex.
An application under new section 30B may be made by the
child's guardian if--
the child's parents are dead, cannot be found or
cannot exercise their parental responsibilities in
relation to the child; or
the County Court makes an order under new
section 30BB(3) approving the alteration of the record
of the child's sex.
Where the County Court makes an order under new
section 30BB(3) approving the alteration of the record of the
child's sex, the parent or guardian is then able to apply to the
Registrar for the alteration under new section 30B.
New section 30BB
New section 30BB allows a parent of a child to apply to the
County Court for an order to approve the alteration of the record
of the child's sex in the child's birth registration. The section also
allows a guardian to make such an application where the parents
of the child are dead, cannot be found or for some other reason
cannot exercise their parental responsibilities in relation to the
child.
The County Court may make an order approving the alteration
of the record of the child's sex if satisfied that the alteration is in
the child's best interests.
Clause 9 substitutes sections 30C and 30D of the Principal Act.
New section 30C
New section 30C sets out how the Registrar must
determine an application made under new section 30A
(application to alter record of sex in person's birth registration)
or 30B (application to alter record of sex in child's birth
registration).
Under subsection (1), the Registrar must determine an application
made under section 30A by either altering the record of
the person's sex in the person's Victorian birth registration or
refusing to do so.
8
Under subsection (2), the Registrar must determine an application
made under section 30B by either altering the record of the
child's sex in the child's Victorian birth registration or refusing to
do so.
Subsection (3) enables the Registrar to request necessary
further information or documentation from an applicant before
determining the application, including evidence to establish to the
Registrar's satisfaction--
the identity and age of the person or child whose record
of sex is to be altered; and
that the alteration of the record of sex is not sought for
a fraudulent or other improper purpose.
Separate to an application under section 30A or 30B, subsection
(4)(a) enables the Registrar to alter the record of sex in a
Victorian birth registration if a court (including a court of another
State (defined to include a Territory under the Principal Act) or
the Commonwealth) has ordered that the sex recorded be altered.
This provision will, for example, enable the Registrar to alter the
record of a child's sex in the child's Victorian birth registration
when the Family Court makes an order to that effect. The Family
Court may be approached to make such an order where a child
seeks to alter their record of sex and no parent or guardian of the
child seeks to make an application on behalf of the child.
Subsection (4)(b) also enables the Registrar to alter the record of
sex in a Victorian birth registration if the record has been altered
under another law.
New subsection (5) enables the Registrar to refuse to alter the
record of sex in a Victorian birth registration if the alteration
would result in the recorded sex being a prohibited sex
descriptor. A prohibited sex descriptor is defined in clause 5 to
be a descriptor of a person's sex that is obscene or offensive, or
which could not practicably be established by repute or usage
because it is too long, consists of or includes symbols without
phonetic significance or for some other reason.
9
New section 30D
New section 30D provides for the form of any birth certificate
issued by the Registrar after the alteration of the record of sex in
a Victorian birth registration. After the alteration, the birth
certificate must--
state the person's sex or the child's sex as altered; and
not state that the record of sex has been altered; and
not state the person's former name or the child's former
name (if any).
The purpose of section 30D is to ensure a person or child is not
required to disclose personal information regarding the alteration
of their record of sex by way of their birth certificate.
Clause 10 substitutes section 30E of the Principal Act and inserts new
sections 30EA, 30EB and 30EC.
New section 30E
New section 30E allows an adult whose birth is registered outside
of Victoria, and for whom Victoria has been their principal place
of residence for at least 12 months, to apply to the Registrar for a
document acknowledging their name and sex. The requirements
of this application are the same as for an adult seeking to alter
their record of sex in their Victorian birth registration, unless the
person already has an interstate recognition certificate (defined
in clause 5), in which case, a supporting statement is not
required.
Subsection (3) clarifies that an application under section 30E
relates only to the acknowledgement of a person's sex. If the
person wishes to change their name, the person must apply under
Part 4 of the Principal Act.
New section 30EA
New section 30EA sets out a new process for the parents of a
child to apply to the Registrar for a document acknowledging
a child's name and sex, if the child's birth is registered outside of
Victoria and Victoria has been the child's principal place for
residence for at least 12 months. This section is subject to new
section 30EB, which sets out the circumstances in which
one parent, or a guardian, may apply for a document
acknowledging a child's name and sex.
10
The requirements of this application are the same as for an
application seeking to alter a child's record of sex in the child's
birth registration, unless the child already has an interstate
recognition certificate (defined in clause 5), in which case, a
supporting statement is not required.
Further, the 12 month residency requirement is waived if the
County Court makes an order under new section 30EC(3), and
can be waived if the Registrar is satisfied that the document
acknowledging sex is sought for the child's protection.
New section 30EB
New section 30EB sets out the circumstances in which
one parent, or a guardian, may make an application under new
section 30EA for a document acknowledging a child's name
and sex.
An application under new section 30EA may be made by
one parent if--
the applicant is the sole parent named in the child's birth
registration registered outside of Victoria; or
there is no other surviving parent of the child; or
the County Court makes an order under new
section 30EC(3) that the Registrar issue a document
that acknowledges the child's name and sex.
An application under new section 30EA may be made by the
child's guardian if--
the child's parents are dead, cannot be found or cannot
exercise their parental responsibility in relation to the
child; or
the County Court makes an order under new
section 30EC(3) that the Registrar issue a document
acknowledging the child's name and sex.
Where the County Court makes an order under new
section 30EC(3) that the Registrar issue a document
acknowledging the name and sex of the child, the parent or
guardian is then able to apply to the Registrar for a document
acknowledging the child's name and sex.
11
New section 30EC
New section 30EC allows a parent to apply to the County Court
for an order that the Registrar issue a document acknowledging
the name and sex of the child under new section 30F(1A).
The section also allows a guardian to make such an application if
the parents of the child are dead, cannot be found or for some
other reason cannot exercise their parental responsibilities.
The County Court may make an order that the Registrar issue a
document acknowledging the name and sex of the child in these
circumstances if satisfied that the issuing of the document under
new section 30F(1A) is in the child's best interests.
Clause 11 makes various amendments to section 30F of the Principal Act.
Existing section 30F sets out how the Registrar must determine
an application made under section 30E (applications for a
document acknowledging name and sex). Amended section 30F
also sets out how the Registrar must determine an application
under section 30EA (applications for a document acknowledging
a child's name and sex).
Subclause (7) inserts a new subsection 30F(6) to provide that the
Registrar may refuse to issue a document acknowledging the
name and sex of an adult or a child if that document would
acknowledge a prohibited sex descriptor. A prohibited sex
descriptor is defined in clause 5 to be a descriptor of a person's
sex that is obscene or offensive or could not practicably be
established by repute or usage because it is too long, consists of
or includes symbols without phonetic significance or for some
other reason.
Clause 12 inserts new section 30FA into the Principal Act.
New section 30FA provides that, where the Registrar issues a
document acknowledging name and sex under section 30F(1)
or (1A), the Registrar must notify the relevant registering
authority of the name and sex acknowledged. As defined in
section 4(1) of the Principal Act, the relevant registering
authority will be the authority responsible under a law of the
State or Territory in which the person's or child's birth is
registered.
12
Clause 13 inserts new Division 2A into Part 4A of the Principal Act.
New Division 2A sets out the process for acknowledgement of
sex applications made by restricted persons (as set out in the
definition inserted by clause 5).
New section 30FB
New section 30FB requires an acknowledgement of sex
application made to the Registrar by or on behalf of a restricted
person to be accompanied by the appropriate approval.
New section 30FC
New section 30FC(1) provides that if the Registrar is satisfied
that the acknowledgement of sex application is accompanied by
an approval as required by new section 30FB, the Registrar must
determine the application in accordance with either section 30C
(alteration of the Register) or 30F (issue of document
acknowledging name and sex), as the case requires.
New section 30FC(2) requires the Registrar to give a copy of a
decision to refuse an acknowledgement of sex application under
section 30C and 30F of the Principal Act to the person or body
which gave the approval that accompanied the application.
New section 30FD
New section 30FD provides that if an acknowledgement of sex
application is not accompanied by the appropriate approval, the
Registrar must notify the relevant person or body whose approval
was required of the failure to provide that approval.
Clause 14 makes various amendments to section 30G of the Principal Act to
provide that the alteration of a record of sex in a Victorian birth
registration, the issuing of a document acknowledging name and
sex and an interstate recognition certificate have effect for the
purpose of, but subject to, the law of Victoria.
Clause 15 amends section 30H(a) of the Principal Act to omit a redundant
reference to a Territory, as Territory is included in the definition
of State in section 4(1) of the Principal Act.
Clause 16 inserts new sections 30J and 30K into the Principal Act to allow
for the disclosure of certain information by the Registrar to the
Justice Secretary.
13
New section 30J
New section 30J applies if the Registrar has been notified of the
details of certain persons by the Justice Secretary under the
Corrections Act 1986 or the Serious Offenders Act 2018.
In these circumstances, the Registrar must give the Justice
Secretary notice of an alteration of the record of sex of the
person, or the issuing of a document acknowledging name and
sex of the person, as soon as practicable after the record is altered
or the document is issued.
New section 30K
New section 30K provides that if the Justice Secretary
makes a request to the Registrar under section 47R of the
Corrections Act 1986 in relation to a prisoner, the Registrar
must disclose to the Justice Secretary all alterations made to
the record of sex in the prisoner's birth registration or all
documents issued acknowledging the name and sex of the
prisoner.
Clause 17 amends section 43(5) of the Principal Act. Currently, section 43
provides for the correction and amendment by the Registrar of
the Register of registrable events. After amendment,
section 43(5) will allow a person to apply to the Registrar for the
addition, alteration or deletion of registrable information to an
entry in the Register.
Clause 18 amends section 56(b) of the Principal Act to remove the
Registrar's obligation to include in the report of operations under
the Financial Management Act 1994 a report on the number
of occasions on which the Registrar altered the sex recorded in a
person's Victorian birth registration. The reporting of the
alteration of a record of sex will now form part of the Registrar's
obligation to report registrable events under section 56(a).
Clause 19 inserts a new section 65 into the Principal Act to provide for
transitional arrangements.
Where an application is made under either section 30A
(Application to alter Register) or 30E (Application for document
acknowledging identity) of the Principal Act before these
sections are substituted by the Births, Deaths and Marriages
Registration Amendment Act 2019, and the Registrar has not
determined the application before the substitution, the Registrar
is to determine the application in accordance with Part 4A of the
14
Principal Act as if it had not been amended. However, the
Registrar may ask the applicant to nominate a sex descriptor
(as defined in clause 5 of the Bill) for the purposes of the
application.
Clause 20 makes a statute law revision to section 4(1) of the Principal Act.
Part 3--Consequential amendment of other Acts
Division 1--Amendment of Children, Youth and Families
Act 2005
Clause 21 inserts a new section 17(1)(fb) into the Children, Youth and
Families Act 2005.
New paragraph (fb) adds to the list of functions or powers that
the Secretary is not authorised to delegate the power to approve
the making of an acknowledgement of sex application under new
section 488Q.
Clause 22 inserts into section 482A of the Children, Youth and Families
Act 2005 definitions of acknowledgement of sex application,
Registrar and Victorian Registrar.
The definition of acknowledgement of sex application refers to
an application made under the Principal Act for the alteration of
the record of sex in a Victorian birth registration or for the
Victorian Registrar to issue a document acknowledging name and
sex, as well as to applications under a corresponding section of
an equivalent law of another State or Territory.
Clause 23 repeals the definition of Victorian Registrar in section 488I of
the Children, Youth and Families Act 2005 as the definition
will now be located in section 482A of that Act.
Clause 24 repeals section 488J(3) of the Children, Youth and Families
Act 2005 as the definition of Registrar will now be in
section 482A and apply to the whole of Part 5.8 of that Act.
Clause 25 inserts a new Division 4A into Part 5.8 of the Children, Youth
and Families Act 2005.
New Division 4A sets out the approval process for the making
of an application by a detainee within the meaning of the
Children, Youth and Families Act 2005, or by a person acting
on behalf of a detainee, to alter the record of sex in the detainee's
15
birth registration (whether registered in Victoria or outside of
Victoria) or for the issue of a document (by the Victorian
Registrar or by the Registrar of another State or a Territory)
acknowledging a detainee's name and sex.
New section 488O
New section 488O makes it an offence for a detainee, a person
acting on behalf of a detainee, or a person acting on behalf
of a detainee who is under the age of 18 years, to make an
acknowledgement of sex application to a Registrar without prior
written approval of the Secretary of the Department of Justice
and Community Safety.
New section 488P
New section 488P provides that a detainee, or a person acting on
behalf of a detainee, may apply to the Secretary for approval to
make an acknowledgement of sex application.
New section 488Q
New section 488Q sets out the process the Secretary must
follow in considering whether or not to approve the making of
an acknowledgement of sex application.
Section 488Q(1) provides that the Secretary may approve the
making of an acknowledgement of sex application if the
Secretary is satisfied that the alteration of the record of sex or the
issuing of a document acknowledging name and sex is reasonable
in all the circumstances.
Section 488Q(2) provides that the Secretary must not approve the
making of an acknowledgement of sex application if the
Secretary is satisfied that the alteration of the record of sex, or the
issuing of a document acknowledging name and sex, would be
reasonably likely to--
be a threat to the security of a youth residential centre or
youth justice centre; or
jeopardise the safe custody or welfare of any detainees;
or
be used to further an unlawful activity or purpose; or
be regarded as offensive by a victim of crime or an
appreciable sector of the community.
16
New section 488R
New section 488R sets out to whom the Secretary must provide a
copy of the Secretary's approval or refusal of the making of an
acknowledgement of sex application.
Section 488R(1) provides that, if the Secretary approves the
making of an acknowledgement of sex application, the Secretary
must as soon as practicable provide a copy of the approval to the
person who sought the approval and to the Victorian Registrar.
Section 488R(2) provides that, if the Secretary refuses the
making of an acknowledgement of sex application, the Secretary
must give a copy of that refusal to the person who sought the
approval.
Division 2--Amendment of Corrections Act 1986
Clause 26 inserts into section 3(1) of the Corrections Act 1986 definitions
of acknowledgement of sex application, Registrar and Victorian
Registrar.
The definition of acknowledgement of sex application refers to
an application made under the Principal Act for the alteration of
the record of sex in a Victorian birth registration or for the
Victorian Registrar to issue a document acknowledging name and
sex, as well as to applications under a corresponding section of
an equivalent law of another State or a Territory.
Clause 27 repeals the definition of Victorian Registrar in section 47G of
the Corrections Act 1986, as the definition will now be located
in section 3(1) of that Act.
Clause 28 repeals section 47H(3) of the Corrections Act 1986, as the
definition of Registrar will now be located in section 3(1) of that
Act.
Clause 29 inserts a new Division 6 into Part 6 of the Corrections Act 1986.
New Division 6 sets out the approval process for the making of
an application by a prisoner, or by a person acting on behalf of a
prisoner, to alter the record of sex in the prisoner's birth
registration (whether registered in Victoria or outside of Victoria)
or for the issue of a document (by the Victorian Registrar or by
the Registrar of another State or a Territory) acknowledging a
prisoner's name and sex.
17
New section 47N
New section 47N makes it an offence for a prisoner, or a person
acting on behalf of a prisoner, to make an acknowledgement of
sex application to a Registrar without prior written approval of
the Secretary of the Department of Justice and Community
Safety.
New section 47O
New section 47O provides that a prisoner, or a person acting on
behalf of a prisoner, may apply to the Secretary for approval to
make an acknowledgement of sex application.
New section 47P
New section 47P sets out the process the Secretary must follow in
considering whether or not to approve the making of
an acknowledgement of sex application.
Section 47P(1) provides that the Secretary may approve
the making of an acknowledgement of sex application if the
Secretary is satisfied that the alteration of the record of sex, or the
issuing of a document acknowledging name and sex, is in all the
circumstances necessary or reasonable.
Section 47P(2) provides that the Secretary must not approve the
making of an acknowledgement of sex application if the
Secretary is satisfied that the alteration of the record of sex, or the
issuing of a document acknowledging name and sex, would be
reasonably likely to--
be a threat to prison security; or
jeopardise the safe custody or welfare of any prisoners;
or
be used to further an unlawful activity or purpose; or
be regarded as offensive by a victim of crime or an
appreciable sector of the community.
New section 47Q
New section 47Q sets out to whom the Secretary must provide a
copy of the Secretary's approval or refusal of the making of an
acknowledgement of sex application.
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Section 47Q(1) provides that, if the Secretary approves the
making of an acknowledgement of sex application, the Secretary
must as soon as practicable provide a copy of the approval to the
person who sought the approval, and to the Victorian Registrar.
Section 47Q(2) provides that, if the Secretary refuses the making
of an acknowledgement of sex application, the Secretary must
give a copy of that refusal to the person who sought the approval.
New section 47R
New section 47R allows the Secretary to request information
from the Victorian Registrar in relation to all of the alterations of
the record of sex in a prisoner's birth registration or all
documents issued acknowledging the name and sex of a prisoner.
The Secretary must not make a request for the information unless
the request is reasonably necessary to receive information in
respect of a prisoner for--
the administration of Corrections legislation as defined
in section 104ZX of the Corrections Act 1986 (which
includes the Corrections Act 1986, Community Based
Sentences (Transfer) Act 2012, Parole Orders
(Transfer) Act 1983, Serious Offenders Act 2018 and
the regulations made under any of these Acts); or
the provision of services related to the health of the
prisoner.
Clause 30 inserts a new Division 6A into Part 8 of the Corrections
Act 1986.
New Division 6A sets out the approval process for the making of
an application by a prisoner on parole, or by a person acting on
behalf of a prisoner on parole, to alter the record of sex in the
prisoner's birth registration (whether registered in Victoria or
outside of Victoria) or for the issue of a document (by the
Victorian Registrar or by the Registrar of another State or
Territory) acknowledging a prisoner's name and sex.
New section 79HA
New section 79HA defines prisoner on parole for the purposes
of new Division 6A of Part 8 of the Corrections Act 1986.
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New section 79HB
New section 79HB makes it an offence for a prisoner on parole,
or a person acting on behalf of a prisoner on parole, to make an
acknowledgement of sex application to a Registrar without prior
written approval of the Adult Parole Board.
New section 79HC
New section 79HC provides that a prisoner on parole, or a person
acting on behalf of a prisoner on parole, may apply to the Adult
Parole Board for approval to make an acknowledgement of sex
application.
New section 79HD
New section 79HD sets out the process the Adult Parole Board
must follow in considering whether or not to approve the making
of an acknowledgement of sex application.
Section 79HD(1) provides that the Adult Parole Board may
approve the making of an acknowledgement of sex application if
the Board is satisfied that the alteration of the record of sex, or
the issuing of a document acknowledging name and sex, is in all
the circumstances necessary or reasonable.
Section 79HD(2) provides that the Adult Parole Board must not
approve the making of an acknowledgement of sex application if
the Board is satisfied that the alteration of the record of sex, or
the issuing of a document acknowledging name and sex, would
be reasonably likely to be--
regarded as offensive by a victim of crime or an
appreciable sector of the community; or
used to evade or hinder supervision of the prisoner
during the parole period.
New section 79HE
New section 79HE sets out to whom the Adult Parole Board must
provide a copy of the Board's approval or refusal of the
acknowledgement of sex application.
Section 79HE(1) provides that, if the Adult Parole Board
approves the making of an acknowledgement of sex application,
the Board must as soon as practicable provide a copy of the
approval to the person who sought the approval, the Victorian
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Registrar and the Secretary of the Department of Justice and
Community Safety.
Section 79HE(2) provides that, if the Adult Parole Board refuses
the making of an acknowledgement of sex application, the Board
must give a copy of that refusal to the person who sought the
approval and the Secretary of the Department of Justice and
Community Safety.
New section 79HF
New section 79HF provides that an acknowledgement of sex
application lapses if the prisoner's parole is cancelled and the
Victorian Registrar has not yet registered the alteration of the
record of sex or issued the document acknowledging name and
sex.
Division 3--Amendment of Serious Offenders Act 2018
Clause 31 inserts into section 3 of the Serious Offenders Act 2018
definitions of acknowledgement of sex application, Registrar
and Victorian Registrar.
The definition of acknowledgement of sex application refers to
an application made under the Principal Act for the alteration of
the record of sex in a Victorian birth registration or for the
Victorian Registrar to issue a document acknowledging name and
sex, as well as to applications under a corresponding section of
an equivalent law of another State or a Territory.
Clause 32 repeals the definition of Victorian Registrar from section 258 of
the Serious Offenders Act 2018, as the definition will now be
located in section 3 of that Act.
Clause 33 repeals section 259(1) of the Serious Offenders Act 2018, as the
definition of Registrar will now be located in section 3 of that
Act.
Clause 34 inserts a new Part 17A into the Serious Offenders Act 2018.
New Part 17A sets out the approval process for the making of an
application by an offender, or by a person acting on behalf of an
offender, to alter the record of sex in the offender's birth
registration (whether registered in Victoria or outside of Victoria)
or for the issue of a document (by the Victorian Registrar or by
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the Registrar of another State or a Territory) acknowledging an
offender's name and sex.
New section 265A
New section 265A defines offender for the purposes of Part 17A
of the Serious Offenders Act 2018.
New section 265B
New section 265B makes it an offence for an offender, or a
person acting on behalf of an offender, to make an
acknowledgement of sex application to a Registrar without prior
written approval of the Post Sentence Authority.
New section 265C
New section 265C provides that an offender, or a person acting
on behalf of an offender, may apply to the Post Sentence
Authority for approval to make an acknowledgement of sex
application.
New section 265D
New section 265D sets out the process the Post Sentence
Authority must follow in considering whether or not to approve
the making of an acknowledgement of sex application.
Section 265D(1) provides that the Post Sentence Authority may
approve the making of an acknowledgement of sex application if
the Authority is satisfied that the alteration of the record of sex or
the issuing of a document acknowledging name and sex is in all
the circumstances necessary or reasonable.
Section 265D(2) provides that the Post Sentence Authority
must not approve the making of an acknowledgement of sex
application if the Authority is satisfied that the alteration of the
record of sex or the issuing of a document acknowledging name
and sex would be reasonably likely to be--
regarded as offensive by a victim of crime or an
appreciable sector of the community; or
used to evade or hinder supervision of the offender
during the period of the supervision order or interim
supervision order.
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New section 265E
New section 265E sets out to whom the Post Sentence Authority
must provide a copy of the Authority's approval or refusal of the
making of an acknowledgement of sex application.
Section 265E(1) provides that, if the Post Sentence Authority
approves the making of an acknowledgement of sex application,
the Authority must as soon as practicable provide a copy of the
approval to the person who sought the approval, the Victorian
Registrar and the Secretary of the Department of Justice and
Community Safety.
Section 265E(2) provides that, if the Post Sentence Authority
refuses to approve the making of an acknowledgement of
sex application, the Authority must give a copy of that refusal to
the person who sought the approval and the Secretary of the
Department of Justice and Community Safety.
Division 4--Amendment of Sex Offenders Registration Act 2004
Clause 35 inserts into section 3(1) of the Sex Offenders Registration
Act 2004 definitions of acknowledgement of sex application,
Registrar and Victorian Registrar.
The definition of acknowledgement of sex application refers to
an application made under the Principal Act for the alteration of
the record of sex in a Victorian birth registration or for the
Victorian Registrar to issue a document acknowledging name and
sex, as well as to applications under a corresponding section of
an equivalent law of another State or a Territory.
Clause 36 repeals the definition of Victorian Registrar in section 70B of the
Sex Offenders Registration Act 2004, as the definition will now
be located in section 3(1) of that Act.
Clause 37 inserts a new Part 5C into the Sex Offenders Registration
Act 2004.
New Part 5C sets out the approval process for the making of an
application by a registrable offender, or by a person acting on
behalf of a registrable offender, to alter the record of sex in the
registrable offender's birth registration (whether registered in
Victoria or outside of Victoria) or for the issue of a document
(by the Victorian Registrar or by the Registrar of another State or
a Territory) acknowledging a registrable offender's name and sex.
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New section 70Q
New section 70Q makes it an offence for a registrable offender,
or a person acting on behalf of a registrable offender, to make an
acknowledgement of sex application to a Registrar without prior
written approval of the Chief Commissioner of Police.
New section 70R
New section 70R provides that a registrable offender, or a
person acting on behalf of a registrable offender, may apply to
the Chief Commissioner of Police for approval to make an
acknowledgement of sex application.
New section 70S
New section 70S sets out the process the Chief Commissioner of
Police must follow in considering whether or not to approve the
making of an acknowledgement of sex application.
Section 70S(1) provides that the Chief Commissioner of Police
may approve the making of an acknowledgement of sex
application if the Chief Commissioner is satisfied that the
alteration of the record of sex or the issuing of a document
acknowledging name and sex is in all the circumstances
necessary or reasonable.
Section 70S(2) provides that the Chief Commissioner of Police
must not approve the making of an acknowledgement of sex
application if the Chief Commissioner is satisfied that the
alteration of the record of sex or the issuing of a document
acknowledging name and sex would be reasonably likely to--
be regarded as offensive by a victim of crime or an
appreciable sector of the community; or
frustrate the administration of the Sex Offenders
Registration Act 2004 in respect of the registrable
offender.
New section 70T
New section 70T sets out to whom the Chief Commissioner of
Police must provide a copy of the Chief Commissioner's approval
or refusal of the making of an acknowledgement of sex
application.
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Section 70T(1) provides that, if the Chief Commissioner of
Police approves the making of an acknowledgement of sex
application, the Chief Commissioner of Police must as soon as
practicable provide a copy of the approval to the person who
sought the approval and the Victorian Registrar.
Section 70T(2) provides that, if the Chief Commissioner of
Police refuses the making of an acknowledgement of sex
application, the Chief Commissioner must give a copy of that
refusal to the person who sought the approval and the Secretary
of the Department of Justice and Community Safety.
New section 70U
New section 70U provides that an acknowledgement of sex
application made by or on behalf of a registrable offender lapses
if a registrable offender ceases to be a registrable offender and
the Victorian Registrar has not registered the alteration of the
record of sex or issued the document acknowledging name and
sex.
New section 70V
New section 70V applies to a registrable offender who is also
subject to a supervision order, an interim supervision order, a
detention order, an interim detention order or an emergency
detention order within the meaning of the Serious Offenders
Act 2018.
For registrable offenders in these circumstances, and despite what
is otherwise provided for in Part 5C of the Sex Offenders
Registration Act 2004, an application for the approval to make
an acknowledgement of sex application must be made under and
in accordance with Part 17A of the Serious Offenders Act 2018.
This means that the approval must be sought from the Post
Sentence Authority.
New section 70W
New section 70W provides that an application for the approval to
make an acknowledgement of sex application by or on behalf of a
registrable offender who is also a prisoner on parole within the
meaning of new Division 6A of Part 8 of the Corrections
Act 1986 must be made under and in accordance with
Division 6A of Part 8 of the Corrections Act 1986.
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Part 4--Repeal of this Act
Clause 38 provides for the automatic repeal of this amending Act on 1 May
2021. The repeal of this Act does not affect in any way the
continuing operation of the amendment made by this Act
(see section 15(1) of the Interpretation of Legislation
Act 1984).
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