Commonwealth Numbered Regulations - Explanatory Statements

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REGISTRATION OF DEATHS ABROAD AMENDMENT REGULATIONS 2017 (F2017L00118)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Foreign Affairs

Registration of Deaths Abroad Amendment Regulations 2017

Registration of Deaths Abroad Act 1984

Registration of Deaths Abroad Regulations 1985

Registration of Deaths Abroad Amendment Act 2016

The Registration of Deaths Abroad Act 1984 (the RDA Act) provides for the registration of the deaths of citizens who have died overseas.

Section 28 of the RDA Act provides that the Governor-General may make regulations, not inconsistent with this Act; prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.  It also provides for the manner of giving notices under the Act.

The Registration of Deaths Abroad Amendment Act 2016 (the Amendment Act) corrects an anomaly in the RDA Act.

The Registration of Deaths Abroad Regulations 1985 (the RDA Regulations) prescribes the manner of making an application for the registration of a death abroad. 

 The purpose of the Registration of Deaths Abroad Amendment Regulations 2017 (the Amendment Regulations) is to amend the RDA Regulations to remove any references to "registering officers" to ensure only the Registrar can register deaths under the RDA Act.

Taken together, the Amendment Act and the Amendment Regulations clarify the procedures that apply when Australians seek to register a death that has taken place abroad in circumstances that fall outside the provisions of state and territory legislation.

Issues giving rise to the need for the instrument

About 1,300 Australians die each year abroad.  These deaths, may in some circumstances, be registered under applicable state or territory legislation but some occur in circumstances where state and territory governments advise they are not able to effect registration.  These circumstances include where a strong connection could not be made to an Australian state or territory, and for when the death occurred under certain other unusual conditions.

The RDA Act authorised the Registrar-General of the Australian Capital Territory (the ACT Registrar-General) to register these deaths in a capacity as the national Registrar of Deaths Abroad.  

However, the ACT Registrar-General continued with registrations even after the ACT's separation from the Commonwealth in 1994.  From this point, the registrations were not authorised by Commonwealth legislation and were later found to be technically invalid. 

The Amendment Act corrects this anomaly by re-establishing a national Registrar of Deaths Abroad.  It also validates all previous appointments made by the ACT Registrar-General and simplifies the process for registering an overseas death. 

The Amendment Regulations complements the Amendment Act by removing references to "registering officers" to ensure only the Registrar can register deaths under the RDA Act.  The Department of Foreign Affairs and Trade (DFAT) no longer performs the function of registering deaths under the RDA Act.

The Amendment Regulations commence at the same time as the Amendment Act.

Attachment A contains a list of the amendments made by the Amendment Regulations.

Attachment B contains a Statement of Compatibility with Human Rights.

Consultation

Australian state and territory governments were consulted during the drafting and passage of the Amendment Act.  They supported the amendments. 

The Attorney-General of the Australian Capital Territory has approved in writing the appointment of the ACT Registrar-General as the Registrar of Deaths Abroad.

DFAT also consulted the Department of Prime Minister and Cabinet, the Attorney-General's Department, the Australian Government Solicitor, and the Privacy Commissioner. 

Consultations were not undertaken on the Amendment Regulations as its amendments replicate those in the Amendment Act on which consultation was already undertaken.

Regulatory impact assessment

The Office of Best Practice Regulation (OBPR ID 20337) has advised a regulation impact statement is not needed for the legislation because its measures are of minor policy significance and will not impose a regulatory burden on individuals, businesses, or community organisations.

Attachment A

Notes to the Registration of Deaths Abroad Amendment Regulations 2017

Section 1         Name

This section provides for the instrument to be cited as the Registration of Deaths Abroad Amendment Regulations 2017.

Section 2         Commencement

This section provides for the Regulations to commence at the same time as the Registration of Deaths Abroad Amendment Act 2016.

Section 3         Authority

This section provides that the Registration of Deaths Abroad Amendment Regulations 2017 is made under the Registration of Deaths Abroad Act 1984 (the RDA Act).

Section 4         Amendments

This section provides that the instrument that is specified in Schedule 1 is amended as set out in the applicable items in that Schedule.

Schedule 1-Amendments to Registration of Deaths Abroad Regulations 1985

1. Paragraph 4 (a) to 4 (e), Regulation 5 and Items 25 and 27 of Schedule 2

Amendments remove any references to "a registering officer" to ensure that only "the Registrar" can register deaths under the RDA Act.  The Department of Foreign Affairs and Trade no longer performs the function of registering deaths under the RDA Act.

3. Regulation 6

Amendment corrects the reference to the relevant section of the RDA Act.

4.  Form 3 and Form 4 of Schedule 1

Minor amendments remove redundant date references to years beginning with "19..".

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Registration of Deaths Abroad Amendment Regulations 2017

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

This Legislative Instrument amends the Registration of Deaths Abroad Regulations 1985 (RDA Regulations).

The Registration of Deaths Abroad Amendment Regulations 2017 (the Amendment Regulations) follows the enactment of the Registration of Deaths Abroad Amendment Act 2016 (the Amendment Act) in September 2016.  The Amendment Act and the Amendment Regulations amend the Registration of Deaths Abroad Act 1984 (the RDA Act) and the RDA Regulations respectively.

The Amendment Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Amendment Regulations correct a technical anomaly in the RDA Regulations similar to that made by the Amendment Act to the original RDA Act.   This is to allow the RDA Act and the RDA Regulations to function as originally intended - establishing a Registrar of Deaths Abroad with the capacity to register deaths that took place in particular circumstances overseas. 

About 1,300 Australians die each year abroad.  While some of these deaths are registered under applicable state or territory legislation, some occur in circumstances where state and territory governments advise they are not able to effect registration.  These circumstances include where a strong connection could not be made to an Australian state or territory, and for when the death occurred under certain other unusual conditions.

For these cases, the RDA Act authorised the Registrar-General of the Australian Capital Territory (ACT Registrar-General) to make these registrations as the National Registrar of Deaths Abroad.  

However, the ACT Registrar-General continued with registrations even after the ACT's separation from the Commonwealth in 1994.  From this point, the registrations were not authorised by Commonwealth legislation and were later found to be technically invalid. 

The Amendment Act corrects this anomaly by re-establishing a national Registrar of Deaths Abroad.  It also validates all previous appointments made by the ACT Registrar-General and simplifies the process for registering an overseas death. 

The Amendment Regulations complements the Amendment Act by removing references to "registering officers" to ensure only the Registrar can register deaths under the RDA Act.  The Department of Foreign Affairs and Trade no longer performs the function of registering deaths under the RDA Act.

Human rights implications

The Amendment Regulations do not engage any of the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  For clarity, the registration of deaths under the RDA Act is a non-mandatory regime.

Conclusion

The Amendment Regulations are compatible with human rights as they do not limit any rights or raise any human rights issues of concern.