Justice Legislation Amendment Act 2016 (ACT)

Case

Justice Legislation Amendment Act 2016

A2016-7

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Births, Deaths and Marriages Registration Act 1997

4            Notification of birthsSection 5  3

5            New section 5 (8)  3

6            Registration of parentage orderSection 16A (1)  3

7           Change of name entries in registerSection 21 (2) (a) (i)  4

8            Section 21 (3)  4

9            New division 4.1 heading  4

10          Application to alter register to record change of sexSection 24 (2)  5

11          Evidence in support of applicationSection 25 (1), new notes  5

12          New division 4.2  5

13          Protection of privacySection 44  9

14          Confiscation of forged etc instrumentsSection 51 (2)  9

15          Certificate evidenceNew section 65 (2A)  9

16          Regulation‑making powerSection 70 (4), definition of relevant children  10

17          Reviewable decisionsSchedule 1, new item 6A  10

18          Dictionary, new definitions  10

Part 3Births, Deaths and Marriages Registration Regulation 1998

19          New section 3  11

20          Notification of birthSection 4 (1) (g) and (h)  11

21          Registration of birthsSection 5 (f)  12

22          Section 5 (g)  12

23          Section 5 (h)  12

24          Section 5 (i)  12

25          Section 5 (m)  12

26          New section 5 (2)  13

27          Change of name entries in register—Act, s 21Section 5A (f)  13

28          Section 5A (g)  13

29          Application to alter register to record change of sexSection 6 (1) (b)  13

30          Section 6 (1) (c)  14

31          Notification of deaths by funeral directorsSection 9 (1) (j)  14

32          Section 9 (1) (k)  14

33          New dictionary  15

Part 4Liquor Act 2010

34          Definitions—div 9.3Section 149, definition of caution offence, paragraph (g)  16

35          Section 209  16

36          Section 210 heading  16

37          Section 210  17

38          Section 211 heading  17

39          Section 211 (b)  17

40          New part 22  17

41          Dictionary, definition of identification document, subparagraph (a) (ii)     18

42          Dictionary, definition of interstate proof of age card  18

43          Dictionary, new definition of interstate proof of identity card                18

44          Dictionary, definition of proof of age card  18

45          Dictionary, new definition of proof of identity card  19

Part 5Parentage Act 2004

46          Section 7  20

47          Presumption arising from domestic partnershipSection 8 (1)  20

48          Section 11  21

49          Application for parentage declarationSection 15 (1) (b)  22

50          Section 15 (1) (c)  22

51          Annulment of parentage declarationSection 22 (4)  23

52          Definitions for div 2.5Section 23, definition of birth parent  23

53          Section 23, definition of birth sibling  23

54          Section 23, definition of procedure  23

55          Section 23, definition of substitute parent agreement  24

56          Parentage orderSection 26 (3) (c) (ii)  24

57          Name of childSection 28  24

58          Medical informationSection 30 (3) (c) and (d)  24

59          Section 30 (3) (e)  25

60          Children all of equal statusSection 38 (1)  25

61          Construction of instrumentsSection 39 (3) (b)  25

62          Section 39 (8), definition of exnuptial child  25

Schedule 1 Other amendments  26

Part 1.1    Casino Control Act 2006  26

Part 1.2    Children and Young People Act 2008  27

Part 1.3    Dangerous Substances (Explosives) Regulation 2004     27

Part 1.4    Dangerous Substances (General) Regulation 2004         27

Part 1.5    Medicines, Poisons and Therapeutic Goods Regulation 2008    28

Part 1.6    Race and Sports Bookmaking Act 2001  29

Part 1.7    Road Transport (Driver Licensing) Act 1999                 29

Part 1.8    Road Transport (Driver Licensing) Regulation 2000        30

Part 1.9    Second-hand Dealers Regulation 2002  31

Part 1.10   Smoking in Cars with Children (Prohibition) Act 2011     32

Part 1.11   Tobacco Act 1927  32

Part 1.12   Totalisator Act 2014  32

Part 1.13   Wills Act 1968  33

Justice Legislation Amendment Act 2016

A2016-7

An Act to amend legislation about births, deaths and marriages, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Justice Legislation Amendment Act 2016.

  2. Commencement

    This Act commences on a day fixed by the Minister by written notice.

    Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

    Note 3If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

  3. Legislation amended

    This Act amends the following legislation:

    ·     Births, Deaths and Marriages Registration Act 1997

    ·     Births, Deaths and Marriages Registration Regulation 1998

    ·     Liquor Act 2010

    ·     Parentage Act 2004.

    NoteThis Act also amends other legislation (see sch 1).

Part 2Births, Deaths and Marriages Registration Act 1997

  1. Notification of births
    Section 5

    omit

    mother

    substitute

    birth parent

  2. New section 5 (8)

    insert

    (8)In this section:

    birth parent, of a child, means the person who gave birth to the child.

  3. Registration of parentage order
    Section 16A (1)

    after

    section 26,

    insert

    or a corresponding parentage law,

  4. Change of name entries in register
    Section 21 (2) (a) (i)

    substitute

    (i)if the person’s birth is registered in the ACT—

    (A)alter the register by changing the person’s name in the entry relating to the person’s birth; or

    (B)if the applicant for registration of the change of name asks the registrar-general to note the change of name in the particulars of the person’s birth—note the change of name in the entry relating to the person’s birth; or

  5. Section 21 (3)

    substitute

    (3)Any birth certificate issued by the registrar-general for the person must—

    (a)if the register is altered under subsection (2) (a) (i) (A)—show the person’s name as changed on the front side of the certificate; or

    (b)if the change of name is noted in the register under subsection (2) (a) (i) (B)—note the person’s name as changed on the reverse side of the certificate.

  6. New division 4.1 heading

    before section 24, insert

Division 4.1               People with birth registered in the ACT

  1. Application to alter register to record change of sex
    Section 24 (2)

    omit 1st mention of

    the child

    substitute

    a child

  2. Evidence in support of application
    Section 25 (1), new notes

    insert

    Note 1The Statutory Declarations Act 1959 (Cwlth) applies to the making of statutory declarations under ACT laws.

    Note 2It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).

  3. New division 4.2

    insert

Division 4.2               ACT residents with birth registered elsewhere

29AApplication for recognised details certificate

(1)A person may apply to the registrar-general for a document that acknowledges a person’s name and sex (a recognised details certificate) if—

(a)the person is at least 18 years old; and

(b)the person is domiciled or resident in the ACT; and

(c)the person’s birth is registered in a place other than the ACT; and

(d)the person believes their sex to be the sex nominated in the application (the altered sex), and—

(i)has received appropriate clinical treatment for alteration of the person’s sex; or

(ii)is an intersex person.

Note 1If a form is approved under s 69 for an application, the form must be used.

Note 2A fee may be determined under s 67 for an application.

(2)The parents of, or a person with parental responsibility for, a child may apply to the registrar-general for a recognised details certificate for the child if—

(a)the child is domiciled or resident in the ACT; and

(b)the child’s birth is registered in a place other than the ACT; and

(c)the parents, or person with parental responsibility, believe on reasonable grounds that a recognised details certificate for the child is in the best interests of the child; and

(d)the child—

(i)has received appropriate clinical treatment for alteration of the child’s sex; or

(ii)is an intersex person.

(3)However, an application under subsection (2) may be made by 1 parent if—

(a)the applicant is the only parent named in a register kept under a corresponding law or the law of any place outside Australia; or

(b)there is no other surviving parent of the child.

(4)An application under this section must set out, or be accompanied by, the particulars prescribed by regulation.

29BEvidence in support of application for recognised details certificate

(1)An application under section 29A for a recognised details certificate for a person who is at least 18 years old must be accompanied by—

(a)a statutory declaration by a doctor, or a psychologist, certifying that the person—

(i)has received appropriate clinical treatment for alteration of the person’s sex; or

(ii)is an intersex person; and

(b)documents confirming that—

(i)the person is domiciled or resident in the ACT; and

(ii)the person’s birth is registered in a place other than the ACT; and

(c)any other documents and information prescribed by regulation.

Note 1The Statutory Declarations Act 1959 (Cwlth) applies to the making of statutory declarations under ACT laws.

Note 2It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).

(2)An application under section 29A for a recognised details certificate for a child must be accompanied by—

(a)a statement signed by the parents of, or a person with parental responsibility for, the child stating that a recognised details certificate for the child is in the best interests of the child; and

(b)a statutory declaration by a doctor, or a psychologist, certifying that the child—

(i)has received appropriate clinical treatment for alteration of the child’s sex; or

(ii)is an intersex person; and

(c)documents confirming that—

(i)the child is domiciled or resident in the ACT; and

(ii)the child’s birth is registered in a place other than the ACT; and

(d)any other documents and information prescribed by regulation.

(3)In this section:

psychologist means a person registered under the Health Practitioner Regulation National Law (ACT) to practise in the psychology profession (other than as a student).

29CIssue of recognised details certificate

(1)On receipt of an application under section 29A, the registrar‑general must—

(a)issue a recognised details certificate; or

(b)refuse to issue the certificate.

(2)The certificate must not state the applicant’s former sex or former name (if any) unless the applicant has requested, in writing, that the information be included.

(3)The registrar-general may, if the registrar-general considers it appropriate, include in the certificate any other information about the applicant’s birth that the applicant has requested, in writing, be included.

29DEffect of recognised details certificate and interstate recognised details certificate

(1)A person to whom a recognised details certificate relates is, for the purposes of, but subject to, any territory law, a person of the sex stated in the certificate.

(2)A person to whom an interstate recognised details certificate relates is, for the purposes of, but subject to, any territory law, a person of the sex stated in the certificate.

  1. Protection of privacy
    Section 44

    omit

    his or her

    substitute

    the person’s

  2. Confiscation of forged etc instruments
    Section 51 (2)

    omit

    his or her

    substitute

    the person’s

  3. Certificate evidence
    New section 65 (2A)

    insert

    (2A)An interstate recognised details certificate is, for the purposes of any territory law, evidence that the person mentioned in it is of the sex stated in the certificate.

  4. Regulation‑making power
    Section 70 (4), definition of relevant children

    substitute

    relevant children—a child is a relevant child if a parentage order has been made about the child under—

    (a)the Parentage Act 2004, section 26; or

    (b)a corresponding parentage law.

  5. Reviewable decisions
    Schedule 1, new item 6A

    insert

6A

29C

refuse to issue recognised details certificate

applicant

  1. Dictionary, new definitions

    insert

    corresponding parentage law means a law of a State or another Territory relating to parentage and includes a law prescribed by regulation to be a corresponding parentage law.

    interstate recognised details certificate means a recognised details certificate (however described) issued under a corresponding law.

    recognised details certificate—see section 29A (1).

Part 3Births, Deaths and Marriages Registration Regulation 1998

  1. New section 3

    insert

  2. Dictionary

    The dictionary at the end of this regulation is part of this regulation.

    Note 1The dictionary at the end of this regulation defines certain terms used in this regulation, and includes references (signpost definitions) to other terms defined elsewhere.

    For example, the signpost definition ‘birth parent—see the Act, section 5 (8).’ means that the term ‘birth parent’ is defined in that section and the definition applies to this regulation.

    Note 2A definition in the dictionary (including a signpost definition) applies to the entire regulation unless the definition, or another provision of the regulation, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

  3. Notification of birth
    Section 4 (1) (g) and (h)

    omit

    mother

    substitute

    birth parent

  4. Registration of births
    Section 5 (f)

    omit

    mother

    substitute

    birth parent

  5. Section 5 (g)

    substitute

    (g)the place of birth of the birth parent of the child and the birth parent’s date of birth or, if the date of birth is not known, the birth parent’s age;

  6. Section 5 (h)

    omit

    father or other parent

    substitute

    other parent (other than the birth parent)

  7. Section 5 (i)

    substitute

    (i)the place of birth of the other parent (other than the birth parent) of the child and the other parent’s date of birth or, if the date of birth is not known, the other parent’s age;

  8. Section 5 (m)

    omit

    male and any deceased female

  9. New section 5 (2)

    insert

    (2)For subsection (1) (f) to (i), the word ‘mother’ or ‘father’ may be used to describe either or both of the parents of the child.

  10. Change of name entries in register—Act, s 21
    Section 5A (f)

    omit

    mother

    substitute

    birth parent

  11. Section 5A (g)

    omit

    father

    substitute

    other parent (other than the birth parent)

  12. Application to alter register to record change of sex
    Section 6 (1) (b)

    omit

    mother

    substitute

    birth parent

  13. Section 6 (1) (c)

    omit

    father

    substitute

    other parent (other than the birth parent)

  14. Notification of deaths by funeral directors
    Section 9 (1) (j)

    omit

    mother

    substitute

    birth parent

  15. Section 9 (1) (k)

    omit

    father or other parent

    substitute

    other parent (other than the birth parent)

  16. New dictionary

    insert

Dictionary

(see s 3)

Note 1The Legislation Act contains definitions and other provisions relevant to this regulation.

Note 2For example, the Legislation Act, dict, pt 1 defines the following terms:

·     Act

·     civil partnership

·     civil union

·     must (see s 146).

Note 3Terms used in this regulation have the same meaning that they have in the Births, Deaths and Marriages Registration Act 1997 (see Legislation Act, s 148). For example, the following terms are defined in the Births, Deaths and Marriages Registration Act 1997, dict:

·     birth

·     birth certificate

·     child (see s 4)

·     death

·     parents

·     register.

birth parent—see the Act, section 5 (8).

Part 4Liquor Act 2010

  1. Definitions—div 9.3
    Section 149, definition of caution offence, paragraph (g)

    omit

    age

    substitute

    identity

  2. Section 209

    substitute

  3. What is a proof of identity card?—div 14.2

    In this division:

    proof of identity card, for a person, means a card that includes the following about the person:

    (a)the name of the person;

    (b)a photo of the person;

    (c)the date of birth of the person.

  4. Section 210 heading

    substitute

  5. Proof of identity cards

  6. Section 210

    omit

    age

    substitute

    identity

  7. Section 211 heading

    substitute

  8. Offence—child or young person use false identification to obtain proof of identity card

  9. Section 211 (b)

    omit

    age

    substitute

    identity

  10. New part 22

    insert

Part 22Transitional—proof of age cards

  1. Meaning of commencement day—pt 22

    In this part:

    commencement day means the day the Justice Legislation Amendment Act 2016, section 34 commences.

  2. Proof of age cards

    A proof of age card issued under this Act, section 210 as in force before the commencement day is taken to be a proof of identity card issued under this Act.

  3. Expiry—pt 22

    This part expires 1 year after the commencement day.

    NoteTransitional provisions are kept in the Act for a limited time. A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act, s 88).

  4. Dictionary, definition of identification document, subparagraph (a) (ii)

    omit

    age

    substitute

    identity

  5. Dictionary, definition of interstate proof of age card

    omit

  6. Dictionary, new definition of interstate proof of identity card

    insert

    interstate proof of identity card means a document corresponding to a proof of identity card that has been issued under the law of a State.

  7. Dictionary, definition of proof of age card

    omit

  8. Dictionary, new definition of proof of identity card

    insert

    proof of identity card, for division 14.2 (Children and young people)—see section 209.

Part 5Parentage Act 2004

  1. Section 7

    substitute

  2. Presumptions arising from marriage, civil union or civil partnership

    (1)A child born to a person while the person is married or in a civil union or civil partnership is presumed to be a child of the person and the person’s spouse, civil union partner or civil partner.

    (2)A child born to a person within 44 weeks after the death of the person’s spouse, civil union partner or civil partner is presumed to be the child of the person and the person’s spouse, civil union partner or civil partner who died.

    (3)A child born to a person within 44 weeks after the annulment of the person’s purported marriage is presumed to be the child of the person and the person’s purported spouse.

    (4)A child born to a person after the end of the person’s marriage, civil union or civil partnership, but within 44 weeks after the person last separated from the person’s spouse or partner in that marriage, civil union or civil partnership, is presumed to be the child of the person and the person’s spouse or partner in that marriage, civil union or civil partnership.

  3. Presumption arising from domestic partnership
    Section 8 (1)

    omit

    the woman

    substitute

    another person

  4. Section 11

    substitute

  5. Presumptions arising from procedure

    (1)This section sets out presumptions that arise if a person undergoes a procedure as a result of which the person becomes pregnant.

    (2)The person is conclusively presumed to be a parent of any child born as a result of the pregnancy.

    (3)If the ovum used in the procedure was produced by another person other than the person’s domestic partner at the time of the procedure, the person who produced the ovum is conclusively presumed not to be a parent of any child born as a result of the pregnancy.

    (4)If semen used in the procedure was produced by another person other than the person’s domestic partner at the time of the procedure, the person who produced the semen is conclusively presumed not to be a parent of any child born as a result of the pregnancy.

    (5)If the person undergoes the procedure with the consent of the person’s domestic partner at the time of the procedure, the domestic partner is conclusively presumed to be a parent of any child born as a result of the pregnancy.

    (6)For subsection (5), a person is presumed to consent to the carrying out of a procedure in relation to the person’s domestic partner, but the presumption is rebuttable.

    (7)The presumptions set out in this section apply—

    (a)whenever the pregnancy happened and whether or not it resulted from a procedure carried out in the ACT; and

    (b)in relation to any child born as a result of the pregnancy, whether or not the child was born in the ACT.

    (8)However, this section does not affect the vesting in possession or in interest of any property that happened before the commencement of this Act.

    (9)In this section:

    procedure means—

    (a)artificial insemination; or

    (b)the procedure of transferring into the uterus of a person an embryo derived from an ovum fertilised outside the person’s body; or

    (c)any other way (whether medically assisted or not) by which a person can become pregnant other than by having sexual intercourse with a person.

  1. Application for parentage declaration
    Section 15 (1) (b)

    omit

    that he or she is

    substitute

    to be

  2. Section 15 (1) (c)

    omit

    his or her

    substitute

    their

  3. Annulment of parentage declaration
    Section 22 (4)

    omit

    he or she

    substitute

    each person

  4. Definitions for div 2.5
    Section 23, definition of birth parent

    omit

    woman

    substitute

    person

  5. Section 23, definition of birth sibling

    substitute

    birth sibling, of a child, means any other child who is born as a result of the same pregnancy as the child.

  6. Section 23, definition of procedure

    substitute

    procedure means the procedure of transferring into the uterus of a person an embryo derived from an ovum fertilised outside the person’s body.

  7. Section 23, definition of substitute parent agreement

    omit

    woman

    substitute

    person

  8. Parentage order
    Section 26 (3) (c) (ii)

    omit

    his or her

    substitute

    their

  9. Name of child
    Section 28

    omit

    his or her

    substitute

    their

  10. Medical information
    Section 30 (3) (c) and (d)

    omit

    brother, sister, uncle or aunt

    substitute

    sibling or sibling of the parents

  11. Section 30 (3) (e)

    omit

    his or her

    substitute

    their

  12. Children all of equal status
    Section 38 (1)

    omit

    his or her parents

    substitute

    the person’s parents

  13. Construction of instruments
    Section 39 (3) (b)

    omit

    he or she

    substitute

    the person

  14. Section 39 (8), definition of exnuptial child

    omit

    father and mother

    substitute

    parents


Schedule 1Other amendments

(see s 3)

Part 1.1Casino Control Act 2006

[1.1]Section 78, definition of document of identification, paragraph (a)

omit

age

substitute

identity

[1.2]Section 78, definition of proof of age card

omit

[1.3]Section 78, new definition of proof of identity card

insert

proof of identity card includes a document corresponding to a proof of identity card that has been issued under the law of a State.

[1.4]Dictionary, definition of proof of age card

omit

[1.5]Dictionary, new definition of proof of identity card

insert

proof of identity card—see section 78.

Part 1.2Children and Young People Act 2008

[1.6]Section 877 (4), definition of document of identification, paragraph (a) (ii)

omit

age

substitute

identity

Part 1.3Dangerous Substances (Explosives) Regulation 2004

[1.7]Dictionary, definition of identification papers, example

omit

age

substitute

identity

Part 1.4Dangerous Substances (General) Regulation 2004

[1.8]Dictionary, definition of identification papers, example

omit

age

substitute

identity

Part 1.5Medicines, Poisons and Therapeutic Goods Regulation 2008

[1.9]Section 173 (2), definition of photo identification document, paragraph (c)

omit

age

substitute

identity

[1.10]Section 173 (2), definition of proof of age card

omit

[1.11]Section 173 (2), new definition of proof of identity card

insert

proof of identity card means a proof of identity card issued under—

(a)the Liquor Act 2010, section 210 (Proof of identity cards); or

(b)the law of a State, an external territory or New Zealand.

Part 1.6Race and Sports Bookmaking Act 2001

[1.12]Section 72A (6), definition of document of identification, paragraph (a)

omit

age

substitute

identity

Part 1.7Road Transport (Driver Licensing) Act 1999

[1.13]Section 34 etc

omit

age

substitute

identity

in

·     section 34

·     section 36 (1)

·     section 37 (1) (c)

·     sections 39 and 40

[1.14]Dictionary, definition of proof of age card

omit

[1.15]Dictionary, new definition of proof of identity card

insert

proof of identity card means a proof of identity card issued under the Liquor Act 2010, section 210 (Proof of identity cards).

Part 1.8Road Transport (Driver Licensing) Regulation 2000

[1.16]Sections 138AB (1) and 138B

omit

age

substitute

identity

[1.17]Dictionary, definition of proof of age card

omit

[1.18]Dictionary, new definition of proof of identity card

insert

proof of identity card, for part 8A (Protection of photographs and signatures)—see the Act, dictionary.

Part 1.9Second-hand Dealers Regulation 2002

[1.19]Section 6, definition of photo identification document, paragraph (f)

omit

age

substitute

identity

[1.20]Schedule 2, part 2.1, item 6, column 2

omit

age

substitute

identity

[1.21]Dictionary, definition of proof of age card

omit

[1.22]Dictionary, new definition of proof of identity card

insert

proof of identity card means a proof of identity card issued under—

(a)the Liquor Act 2010, section 210 (Proof of identity cards); or

(b)the law of a State, an external territory or New Zealand.

Part 1.10Smoking in Cars with Children (Prohibition) Act 2011

[1.23]Section 8 (4), definition of identification document, paragraph (b)

omit

age

substitute

identity

Part 1.11Tobacco Act 1927

[1.24]Section 14 (6), definition of document of identification, paragraph (a) (ii)

omit

age

substitute

identity

Part 1.12Totalisator Act 2014

[1.25]Section 56 (5), definition of identification document, paragraph (a) (ii)

omit

age

substitute

identity

Part 1.13Wills Act 1968

[1.26]Section 28A heading

substitute

28ADevises to people who have altered their sex

[1.27]Section 28A (1) (b)

omit

successfully undergoes sexual reassignment surgery

substitute

altered their sex

[1.28]Section 28A (1)

omit

undergone the surgery

substitute

altered their sex

[1.29]Section 28A (2)

omit

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 19 November 2015.

  2. Notification

    Notified under the Legislation Act on 29 February 2016.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Justice Legislation Amendment Bill 2016, which originated in the Legislative Assembly as the Justice Legislation Amendment Bill 2015 and was passed by the Assembly on 16 February 2016.

    Acting Clerk of the Legislative Assembly

    © Australian Capital Territory 2016

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