The 2015 Human Rights Report – Going to jail for not having a birth certificate? It happens

By Paula Gerber and Melissa Castan

This article is featured in the 2015 Castan Centre Human Rights Report. We will be featuring the articles on the blog throughout the month of May. 

It is well known that millions of children around the world never have their births registered. UNICEF puts the total number of unregistered births at 230 million while the World Health Organization estimates that 40 million, or approximately one third, of births are not registered every year.

While the overwhelming majority of these unregistered births occur in developing countries, many people are surprised to learn that the issue is also a problem in Australia. Our three-year research project on this topic reveals that while birth registration rates in non-Indigenous communities are above 97 percent, there is a significant problem of non-registration of births in Indigenous communities.

A person’s ability to participate in contemporary society is seriously affected if their birth was never registered, or if they can’t obtain their certificate because of the cost, their literacy levels, their remoteness or their inability to satisfy ID requirements. Getting a driver’s licence or tax file number, opening a bank account, enrolling in school or obtaining a passport can all be impossible without a birth certificate.

Not having a birth certificate leads to a form of legal invisibility, which is well illustrated by the experience of Bradley Hayes, an Indigenous man who grew up a ward of the state. For over 30 years, Mr Hayes could not obtain a birth certificate and, in the eyes of the authorities, he simply did not exist. Mr Hayes battled to enjoy what the legally visible take for granted, such as getting a driver’s license and registering a fishing boat. The difficulty in obtaining a copy of his birth certificate was a constant stumbling block for Mr Hayes. After 10 years of struggle, with the help of a community legal centre, he finally obtained a birth certificate and became legally visible. He jubilantly stated: ‘Like I said to my kids, I’m somebody now, I’m not nobody anymore’.

Circule of problems caused by lack of birth registration documentsThe problems faced by people who don’t have a birth certificate are not merely inconvenient or unfair, they are also an underlying cause of Indigenous overrepresentation in the criminal justice system. For example, those living in remote Western Australia have a very tangible need to drive, whether they hold a licence or not. The vast distances, harsh environment and lack of public transport or funds for taxis means people must use private cars for transport. Research out of Western Australia highlights the extent to which Indigenous Australians are being imprisoned for driving related offences, including unlicensed driving.

Licensing offences are one of the key reasons for Indigenous Australians being over-represented in the Roebourne Regional Prison, which manages prisoners from the Pilbara and Kimberley regions. In 2011, it was estimated that 90 percent of the prisoners in Roebourne were Indigenous and 40-60 percent were there for driving offences – that is more than 100 Indigenous people incarcerated at Roeburn for driving offenses at any one time. State-wide, the rate of imprisonment of Indigenous people for driving and vehicle offences in 2009 was 12.5 percent compared with a rate of 2.9 percent for non-Indigenous people, according to research undertaken by Alice Barter. So while driving offences are a relatively small proportion of the overall prison population, they contribute disproportionately to the unacceptable number of Indigenous people in custody. It seems that if an Indigenous Australian does not have a birth certificate, it increases their chances of ending up in jail.

There are some signs of improvement in WA. Driver licensing programs in Roeburn, Port Headland and South Headland are assisting young Indigenous drivers with all aspects of licencing, ranging from getting a birth certificate to practical training. The WA Government now has a Remote Areas Licensing Program which includes an ‘Open Licensing Day’ where service providers, such as the Department of Transport, Fines Enforcement, the Registry of Births, Deaths and Marriages, and Centrelink, provide a ‘one stop shop’ to help remote communities overcome the bureaucratic hurdles to legal driving.

But more needs to be done all around the country to ensure that all births are registered, individuals can readily access a birth certificate (particularly where they may not be in a position to pay the fee or satisfy strict ID requirements) and the lack of a birth certificate is not an insurmountable hurdle to accessing critical government services such as obtaining a driver’s license. As part of our grant, we are working with government, civil society organisations, the legal profession and community groups to realise this goal.

Melissa Castan and Paula Gerber have a current Australian Research Council Linkage Grant – Closing the Gap on Indigenous Birth Registration.

Further Reading

Melissa Castan and Paula Gerber (eds) Proof of Birth (Future Leaders, 2015).

The Castan Centre’s 2015 Annual Appeal is on now. Can you choose to support us with a donation?

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