Births, Deaths and Marriages Registration Act 1995

The Act casts a wide net. Primary duty-bearers include:

• Parents and guardians: jointly responsible for registering a child’s birth (s 15) and any subsequent change of name or sex record (ss 28, 32C). They must sign birth-registration statements and may face 10 penalty-unit fines for late registration (s 16).
• Medical practitioners and midwives: must notify births (including stillbirths) and deaths, certify cause of foetal or neonatal death, and provide medical certificates (ss 12, 39).
• Hospitals: chief executives must notify births occurring in, or children brought to, their facilities within 24 hours (s 12(5)).
• Funeral directors and persons arranging disposal: must notify the Registrar within seven days of disposal (or 28 days if remains leave the State) and, if remains are not disposed of within 30 days, must report that fact (s 41). Penalty is 5 penalty units.
• Authorised celebrants: responsible for lodging marriage certificates (s 34 and note).
• Courts: the District Court may order registration of births, inclusion of parentage details, resolution of naming disputes, approval of child name or sex changes, and review of certain decisions (ss 19, 22, 28(4), 32D, 32F). Coroners issue orders authorising disposal and notify causes of death (ss 38, 40).
• Adoption and surrogacy agencies: records of adoption orders, discharge orders and parentage orders flow automatically to the Registrar via the Adoption Act 2000 and Surrogacy Act 2010 (ss 24, 25B).
• Restricted persons and their supervising authorities: inmates, parolees, forensic patients, persons on extended supervision orders and former serious offenders face additional layers of scrutiny before any name or sex change can be registered (Div 3 of Part 5 and Div 6 of Part 5A). Supervising authorities (Mental Health Review Tribunal, Commissioner of Corrective Services) must assess risk to security, safety and public confidence.
• Members of the public: anyone seeking a change of name or sex record, access to Register information, or a certificate is directly affected. Adopted persons, donor-conceived persons and their families have specific rights to integrated or post-adoption birth certificates (s 25A) and addenda (s 22A(2)).
• Government agencies and researchers: may be granted bulk access for statistical or administrative purposes (s 46), subject to privacy conditions.
• The Registrar: a senior public servant (s 4) whose staff, delegates and contractors exercise day-to-day functions (ss 7–8). The Registrar maintains the Register’s integrity against identity fraud (s 6(a1)), enters reciprocal arrangements with other jurisdictions (s 11), and issues policies on access (s 53).

The Act therefore touches virtually every NSW resident at some point in their life, as well as non-residents whose events have a sufficient connection (birth in an aircraft en route to NSW, death of a domiciliary outside Australia, etc.—ss 13(3)–(4), 36(3)–(4)).

Duties

• Notification duties are strict and time-bound: 7 days for live birth, 48 hours for stillbirth or death (ss 12, 39). Failure attracts penalty units.
• Registration duties fall on parents (s 15), persons with custody of foundlings, and, for adoptions and parentage orders, flow through statutory mechanisms (ss 23–25B).
• Accuracy duties: applicants for name or sex changes must disclose criminal records (s 29A), provide evidence of identity and purpose (s 30), and, for restricted persons, obtain prior approvals (ss 31C, 32GB). Statutory declarations attract Oaths Act 1900 perjury sanctions plus s 57 offences.
• Disposal duties: funeral directors must report manner and place of disposal (s 41).
• The Registrar must refuse prohibited names or sex descriptors (ss 21(2), 30(3), 32E(4)), must not register parentage details without one of seven listed pathways (s 18), and must protect privacy when granting access (ss 46(3), 48).

Rights

• Individuals have a right to register a change of name (s 26) or, since 2024, to have their sex record altered or acknowledged on satisfying the evidentiary threshold (ss 32B, 32DA). Children’s rights are mediated through parental consent or court approval based on best interests (ss 29, 32F(2)).
• Access rights: any person with an “adequate reason” may search the Register or obtain a certificate (ss 47, 49). Adopted and donor-conceived persons have statutory rights to integrated certificates and addenda (ss 22A(2), 25A).
• Review rights: most Registrar decisions are administratively reviewable by NCAT (s 56); specific Tribunal and Supreme Court appeal routes exist for mental-health patients (s 31K).
• Privacy rights are expressly protected; the Registrar must maintain access policies (s 53) and, when providing additional information services (s 55B), must avoid unjustified intrusion.
• Recognition rights: once a sex record is altered or acknowledged, the person “is, for the purposes of a law of this State, a person of the sex stated” (s 32H(1)–(2)), subject to any other Act. A recognition certificate from another jurisdiction is likewise recognised (s 32H(3)).

The Act creates a tiered enforcement regime. Strict-liability notification offences carry 5 penalty units (ss 12(1), 39(1), 41). Late registration of a birth attracts 10 penalty units (s 16). The centrepiece offence is s 57—making a false or misleading representation in any application, notice or response to a Registrar’s inquiry—punishable by 100 penalty units or 2 years imprisonment or both. Unauthorised access to or interference with the Register (s 58) and forgery or falsification of certificates (s 59) carry identical maximums. Unauthorised disclosure of information obtained under the Act is punishable by 50 penalty units or 1 year imprisonment (s 60).

Enforcement is primarily administrative. The Registrar may refuse to register a change of name or sex if statutory preconditions are not met (ss 30(3), 32E(1)(c)), may correct the Register where an entry was made in contravention of the restricted-person provisions (ss 31G, 32GE), and may impound fraudulent certificates (s 59(3)). Delegated staff and contractors (s 7–8) handle day-to-day compliance.

Criminal proceedings are summary before the Local Court (s 63). The Act does not create a dedicated investigation unit; reliance is placed on co-operation with NSW Police, the Commissioner of Corrective Services and the Mental Health Review Tribunal. Memoranda of understanding under s 46A facilitate intelligence sharing on change-of-name applications. For restricted persons, the supervising authority’s power to withhold approval operates as a de-facto injunction.

Civil remedies are limited. Section 61 grants the Registrar personal immunity for good-faith acts. Aggrieved applicants’ primary recourse is administrative review under s 56 or, for children’s sex-record applications, fresh application to the District Court.

The Act is expressly subject to the Adoption Act 2000 and Surrogacy Act 2010 (s 52); inconsistencies are resolved in favour of those Acts. Chapter 7 of the Adoption Act supplies the adoption records that the Registrar must register and note against birth entries (ss 24–25). The Surrogacy Act triggers parentage-order registration under Part 4A; birth certificates issued thereafter must not disclose the surrogacy arrangement (s 25D(2)).

The Relationships Register Act 2010 is integrated via s 4A and amendments to the Registrar’s functions (s 6). The Assisted Reproductive Technology Act 2007 is engaged by donor-conception notations (s 22A(2)) and by the obligation on the Registrar to notify the Director-General of Health of name changes affecting persons on the central donor register (s 25E).

Criminal-justice statutes loom large. The Crimes (Administration of Sentences) Act 1999, Crimes (High Risk Offenders) Act 2006, Terrorism (High Risk Offenders) Act 2017 and Mental Health and Cognitive Impairment Forensic Provisions Act 2020 supply the definitions of “restricted person”, “serious offender”, “forensic patient” and “supervision order” used in Part 5 Division 3 and Part 5A Division 6. The Child Protection (Offenders Registration) Act 2000 adds further name-change restrictions for registrable offenders; the Registrar must notify the Commissioner of Police of any approved change (s 31E(3)(b)).

Commonwealth legislation intersects at several points. The Marriage Act 1961 (Cth) certificates are the vehicle for marriage registration (s 34). The Family Law Act 1975 (Cth) parenting orders can confer sole parental responsibility to make name-change applications (s 28(3)(a1)). Recognition of interstate and foreign adoptions flows through Commonwealth and reciprocal State laws (s 23).

The Interpretation Act 1987 applies to undefined terms (note to s 4). The Government Sector Employment Act 2013 governs the Registrar’s status and staff (ss 4, 7). Privacy obligations under the Privacy and Personal Information Protection Act 1998 and Commonwealth Privacy Act 1988 (where agencies share data) overlay the Registrar’s access policies (ss 46(3), 48, 53).

The Voluntary Assisted Dying Act 2022 requires the Registrar, on receipt of a specific cause-of-death certificate, to record both the underlying disease and that voluntary assisted dying was the manner of death (s 42(3)).

The Act has been amended more than twenty times. Three clusters stand out.

2008–2010 amendments responded to same-sex recognition and surrogacy. The Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 amended s 18 to facilitate registration of female same-sex parents. The Surrogacy Act 2010 inserted Part 4A and amended birth-certificate rules so that new certificates reflect the parentage order without disclosing surrogacy. The Relationships Register Act 2010 extended the Register’s coverage to registered relationships.

2009–2012 name-change reforms addressed identity fraud and offender evasion. The Births, Deaths and Marriages Registration Amendment (Change of Name) Act 2009 introduced criminal-record disclosure (s 29A), numerical limits on changes (s 29B), and exceptions for domestic-violence victims (s 29C). The 2012 Act inserted Division 3 of Part 5, creating the “restricted person” regime after high-profile cases in which serious offenders changed names to evade monitoring. Information-sharing obligations (s 31I) and NCAT review rights (s 31J) were added to balance rigour with procedural fairness.

2024–2025 sex-record reforms represent the most significant rewrite since 1996. The Births, Deaths and Marriages Registration Amendment Act 2024 substituted Part 5A entirely. Self-identification for adults replaced the previous requirement for gender-reassignment surgery; non-binary and non-specified descriptors were added; child applications now require counselling by a qualified counsellor and, where parents disagree, District Court approval based on best interests (ss 32C–32F). Parallel restricted-person controls were inserted (ss 32GA–32GF). The Births, Deaths and Marriages Registration Amendment Act 2025 made minor adjustments to ss 32E and 32F and inserted s 51A allowing issuance of “old birth certificates” showing pre-alteration sex in limited circumstances (e.g. law-enforcement requests), after consultation where practicable. These changes reflect evolving community standards on gender identity while retaining safeguards for children, correctional integrity and public confidence.

The amendments were driven by recommendations from the NSW Law Reform Commission, parliamentary inquiries into surrogacy and transgender recognition, and the need to align with Commonwealth and other State approaches.

Although the Act itself has generated few reported decisions, several controversies have shaped its interpretation and amendment.

The pre-2024 requirement for “sex affirmation surgery” in former s 32B was challenged on human-rights grounds; the 2024 substitution removed the surgery precondition, aligning with AH v Western Australia (2010) 41 WAR 431 principles that self-identification should not be medically gated for adults. The District Court’s role in child sex-record applications (s 32D) has yet to produce published judgments, but the best-interests test in s 32F(2)–(3) mirrors Gillick competence and Re Jamie (2013) 50 Fam LR 369 reasoning.

Name-change restrictions for offenders have been litigated in NCAT. In several unreported decisions the Tribunal has upheld refusals where the Commissioner of Corrective Services demonstrated a risk that the new name would be used to evade supervision or cause offence to victims. The “security sensitive information” provisions (s 31L) limit reasons disclosure and closed-hearing requirements; these have survived administrative-law challenges on procedural-fairness grounds because the statute expressly authorises departure from ordinary rules.

Controversies continue around s 32H’s recognition of altered sex “for the purposes of a law of this State”. Debate persists whether this extends to single-sex spaces, sports or prisons; the statutory note to s 32H expressly states that nothing in the Part changes access to toilets, change rooms, sport or correctional allocation. This carve-out has been criticised by advocacy groups as undermining recognition and defended by others as preserving sex-based rights under other statutes (e.g. Anti-Discrimination Act 1977 exemptions).

The interaction with voluntary assisted dying recording (s 42(3)) has raised concerns about certificate accuracy for insurance and superannuation purposes; the Registrar’s obligation to record both the underlying condition and the manner of death has been described in parliamentary debates as striking a balance between transparency and dignity.

Practitioners should note several traps that “most people don’t realise”.

First, the 180-day extended registration window for births where “variations of sex characteristics do not allow for an easy assignment of sex” (s 16(1)(b)) is not a general exemption; it applies only where medical opinion supports delayed assignment. Lodging outside both windows still attracts the 10-penalty-unit offence even though the Registrar must ultimately accept the statement (s 16(2)).

Second, a change-of-name application by a former serious offender who has had a 10-year “prison-free period” is exempt from Commissioner approval (s 31F(5)(a)), but only if the person is not currently a restricted person. Many applicants mistakenly assume a spent conviction automatically removes all restrictions; the Act expressly disapplies the Criminal Records Act 1991 (s 31F(6)).

Third, for sex-record applications, the support statement must come from an adult who has known the applicant for at least 12 months (ss 32B(2)(c), 32DA(2)(c)). A statutory declaration from a recent counsellor will not suffice; the Registrar routinely rejects applications on this ground.

Fourth, integrated birth certificates for adopted persons (s 25A(1)(b)) now must be issued alongside post-adoption certificates when an adoption is registered after 2020 (s 25A(3)). Many solicitors still request only one certificate, triggering mandatory dual issuance and an unnecessary fee argument.

Fifth, the Registrar’s power to correct the Register under s 45 is not limited to clerical errors; it extends to entries made in contravention of the restricted-person divisions (ss 31G, 32GE). A name or sex change registered without required approvals can be reversed administratively without court order.

Sixth, s 32H(4) makes the recognition of altered or acknowledged sex “subject to any other Act”. This qualification is easily overlooked; it preserves, for example, the Births, Deaths and Marriages Registration Regulation 2017 power to prescribe additional sex descriptors and the operation of Commonwealth passports policy.

Finally, the prohibition on including “illegitimate” or similar terms in certificates (s 49(3)) survives even though the word has disappeared from modern legislation; older Register entries still contain it and must be redacted on every certificate.

Compliance begins with accurate identification of the registrable event and the correct applicant.

For births, hospitals should embed the approved birth-notification form in maternity software so that all s 12 particulars are captured at the point of care. Parents should complete the birth-registration statement within 60 days (or 180 where medically indicated) and obtain both parents’ signatures unless the Registrar accepts a single-parent statement on impracticability grounds (s 15(1)).

Name-change applications require an approved form, criminal-history disclosure, and evidence of identity, age and non-fraudulent purpose (s 30(1)). Restricted persons must first obtain written approval from the supervising authority; the authority’s notice must be lodged with the Registrar (s 31E(1)). Legal practitioners should advise clients to factor in the 12-month cooling-off period (s 29B) and to consider whether a common-law change by repute and usage (s 32) is sufficient for non-official purposes.

Sex-record applications under the post-2024 regime demand meticulous evidence gathering: a statutory declaration in the exact statutory language, a 12-month support statement, and any additional documents the Registrar reasonably requires. For children, a qualified counsellor’s statement is mandatory; the counsellor must confirm both that counselling occurred and that the counsellor supports the application (s 32C(2)(d)). Where parents disagree, District Court proceedings should be commenced promptly; affidavits must address the child’s views and maturity (s 32F(3)).

Organisations holding custody of human remains must diarise the 7-day, 28-day and 30-day notification triggers under s 41. Funeral directors should maintain templates that capture every particular required by regulation.

Government agencies seeking bulk access should negotiate a memorandum of understanding that expressly recites the privacy protections in ss 46(3) and 48. Law-enforcement agencies must use the s 46A channel rather than general search applications.

The Registrar’s access policies (s 53) should be consulted before every application. Fees are prescribed by regulation or negotiated; the power to remit (s 55) is exercised sparingly but is available for hardship or public-interest cases.

Finally, all applicants should assume that any false statement will be detected: the Registrar cross-checks against Centrelink, corrective-services and police databases. A single s 57 conviction can preclude future name or sex changes and trigger Register correction. Early engagement with specialist counsel is the safest compliance strategy for complex or contested matters.