Civil Status Registration Act - Issues Paper No 1 2014 [2014] VULawRComm 5 (1 June 2014)

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The Vanuatu Law Commission was established on 30 July 1980 by the Law Commission Act [CAP115] and was finally constituted in 2009.

Any public contribution to an inquiry is called a submission. The Vanuatu Law Commission seeks submissions from a broad cross-section of the community as well as those with a special interest in a particular inquiry. Comments and submissions from the public are welcome.

The closing date for submissions is on the 30^th of June 2014.There are a range of ways that a submission can be made and you can respond to as many or as few questions and proposals as you wish. You can write a submission, send an email or fax, or ring the Commission and speak to one of our staff.

You must indicate in your submission whether you wish your submission to be confidential as in the absence of such an indication your submission will be treated as non-confidential.

Introduction and Background

ISSUE ONE: Registration

ISSUE TWO: Updating and Incorporating new terms

ISSUE THREE: Fees

ISSUE FOUR: Adoption

ISSUE FIVE: Citizenship

ISSUE SIX: Other Laws

Opinions and Submissions

Vanuatu comprises of 83 Islands and had gained its independence in 1980. Recent statistics for 2013 had estimated Vanuatu’s population to be around 264,652. One quarter of this estimated population are scattered amongst Vanuatu’s urban areas, namely Luganville and Port Vila while the remaining three quarters are dispersed in the rural areas^[1].

The majority of the laws in Vanuatu are derived from various sources, for instance the laws which were enacted by the colonial powers prior to independence as well as the customary laws. Over the past few years there have been drastic changes which have been occurring in the country’s legal sectors such as changes in legal terms used in legislations, introduction of technology to be incorporated into laws and so forth. Due to these changes much of the country’s laws have not been reviewed nor amended to cater for such changes.

The Civil Status Act^[2] is one act that requires a review. It has undergone reviews prior to independence but till this date given the current change in circumstances a review has not been carried out to cater for these changes. A key area that this act focuses on is in regards to regulating the civil registry system the government has in place. The department responsible has acknowledged that this system is in dire need for an upgrade so as to better regulate the system of registry and it can only be accomplished should the act responsible be reviewed.

In 2014 the Civil Status Department requested the VLC to review the civil status act. The primary areas of focus were registration of various vital events^[3], licensing, fees, penalties, newly introduced terms and also taking into account the country’s legal obligation under the WHO assessment framework^[4] . The review is to focus on both the rural and urban areas. The Director also mentioned three other laws namely the education act, the national statistics act and the health act which should also be considered whilst undertaking the review.

This issue paper will look at and identify the issues in the Civil Status (Registration) Act. These issues will be highlighted in this paper and findings made will be used as recommendations to amend the legislation in a report that will be written up after undertaking consultations.

Civil registration systems is defined as a government administered system which is used to permanently record vital events including live births, deaths, foetal deaths, marriages and divorces. This method of registration has been around for years and it has been argued that vital statistics is important for the Pacific region particularly in the health and development sector^[5]. In 2009 a regional Millennium Development Goal conference held in Nadi identified that no country in the Pacific region through their respective civil registration and health information systems could rely on data which was less than 3 years old. This particular conference identified a huge problem affecting the regions CRVS systems. As a result, regional officials introduced an action plan which was the Ten Year Pacific Statistics Strategy 2011-2020 (TYPSS) to improve this type of system regionally and it has been certified as a regional priority^[6].

The first issue to be discussed is with regards to registration. Discussions relating to this topic will be carried out under specific subheadings.

Vanuatu’s Civil Status (Registration) Act [CAP 61] caters for the registration of births, deaths, marriages and divorces. The Act clearly states a civic duty that is owed by a citizen to declare the above events mentioned. The sole purpose of registering such events gives one a sense of belonging to a large community that is comprised of diverse cultures and ethnic groups. It has been stated that registration as such provides an official record which may later be used as evidence for various reasons such as disputes, issues relating to inheritance, succession, rights to citizenships, eligibility for marriage, age with regards to votes and driver’s license. Registration details also provide the state statistics regarding its people, which can be used to inform health and education policies, predict demographic trends and provide data useful for a variety of matters with which governments are concerned. Whether everyone complies with the duty to register these events is unclear.

Fiji like Vanuatu also has a legal obligation under its Births, Deaths and Marriages Act [1975]. Both Acts provide for the registration of the mentioned events and although it dictates a legal obligation they both do not clearly state that registrations as such are compulsory. Fiji has had a long standing civil registration system and a structure has been put in place which the country uses in collectively compiling vital statistics. A recent report stated that in Fiji registration practices that support the system and the quality of data compiled need strengthening so that the information introduced is of greater value^[7].

a) The law clearly states everyone must register births, deaths, marriages and divorces yet most have failed to do so. Should there be stricter measures put in place to ensure that people do register such events?

b) If such measures are to be put in place should the government also provide incentives to go along with such strict measures? A possible incentive could be if anyone registers such events for the first time they will not be charged a fee.

c) Are there other possible ways available that the civil status department could use to encourage people to register?

Additionally Vanuatu like most Pacific Island countries has a few of its citizens migrating overseas for study purposes, family matters, medical reasons and so forth. During the course of such events some may get married, have children, get divorced, or die due to illness or fall victim to some fatal or tragic accidents. The Civil Status Act does not clearly define the parameters which a citizen or non-citizen residing overseas is required to take should they encounter such events. The department responsible for registrations proposes that those born, married, divorce or encounter some untimely death abroad may re-register such events through Vanuatu’s Heads of missions overseas such as Ambassadors or Consulates, provided that steps followed or taken are being done so in accordance with the laws of overseas country . But re-registration of such event would only be possible if original certified documents are provided.

In Australia it is clearly provided for that marriages that have occurred over seas cannot be re-registered in Australia but it can only be recognized as valid if the marriage is recognized as valid under the law of the country where the marriage took place, if it is between a man and a woman, if both bride and groom are 18 and that neither bride nor groom is married to any otherperson. Australians residing overseas are encouraged to lodge their registrations through Australian Embassies, High Commissions, Consulates-General, Consulates, or other Australian or United Kingdom missions. These include the registration of children born overseas to Australian citizens^[8].

d) Should re-registration of births, deaths, marriages and divorces that have occurred overseas be allowed in Vanuatu?

e) If it were allowed should non-citizens be allowed to register the mentioned events as well?

Moreover, the world is evolving into an era where technology is rife and is vast evolving and most government sectors and respective entities need to upgrade and keep up with the changes. Under section 7 of the Civil Status (Registration) Act it states that entries in registers to be handwritten. Currently, with the modern technology, entries into registers can be done electronically.
As part of a regional strategic plan devised by ESCAP^[9] for the Asia and Pacific the organization clearly states in the report plan that improving the quality, coverage and efficiency of CRVS systems is increasingly possible due to the availability of various advanced technologies.

Fiji has invested a lot into engaging and carrying out registrations through such technological devices and the resource kits and tools that come with it. As a result it is getting timely and routine data. The country has also included in its country plan progress and ‘next steps’ to improve registrations in the rural areas through technology^[10].

f) Should entries into registers be extended to include entries done through any means of technology?

The introduction of technology into rural sectors as previously stipulated would help improve CRVS productivity. Although in order for this to work effectively, authorized persons or bodies need to be put in place to regulate such activities. Currently Vanuatu has a National Committee for the Civil Registration and Vital Statistics which comprises of various individuals from respective government agencies and is headed by the Director of Civil Status. It also has employees stationed throughout Vanuatu’s provinces to see to that the work of Civil Status department in the rural areas is being carried out. These employees are appointed by the Minister responsible and are permanent staffs of the Civil Status department. Apart from the national committee there are no other sub committees.

Most international agencies have introduced a definitive structure that details the work of different bodies under them who will oversee various plans and initiatives that are to be carried out within various regions. In the recent water supply report published by the VLC it recommended that a Provincial Water Resource Advisory Committee was to be set up and one of its duties was to report to the responsible department and National Water Resource Advisory Committee on the overall water supply services in its particular province.

Most of these idealistic approaches have been taken by various countries in the region Fiji being on them.

Prior to Independence, Vanuatu was jointly colonized by France and the Great Britain. During that era, these two colonial Powers were responsible to enact legislation regulating the administration of the country. However, many of the legislation enacted then were influenced by the system of governance in those two foreign countries and people were given the choice to either follow the French or British system. For Instance, the terms used in the Legislation contained certain notions which are no longer in use currently. Thus, there is a need to replace and update these outdated terms. Some of these Acts that need to have its terms to be updated are the Civil Status (Registration) Act [Cap 61] and the Marriage Act [Cap 60], which both came into force on the 21^st of June 1971, nine years prior to independence.

Some of the terms in the Civil Status [Registration] Act [Cap 61] which are written in the paper are no longer being used. The terms used in the legislation then, were taken from a foreign context which do not reflect the current situation in Vanuatu. The way Vanuatu was structured then is not the same today. For instance, the Act refers to the different areas as Districts but this term has been changed to Provinces in other Acts. Furthermore, Home Affairs is now referred to as Internal Affairs. Therefore, in order to keep up with the current circumstances and conditions, the old terms need to be updated and incorporated into the legislation

Furthermore, consideration should be given to the effect of a legislation enacted forty three years ago. The country is evolving rapidly and so does the language. Terms tend to be modernized to suit the current situation in a country. For this same reason, terms in legislation which were enacted in the past need to be amended to suit the present situation.

Therefore when we are faced with this situation, we need to closely consider the effect of such issue vis-a vis of the interpretation of the Legislation and thus updating and incorporating new terms into the Legislation will ensure that such law is consistent with the changes in the society and avoid any possibility of ambiguity.

b) Will the incorporation of these new terms reflect the current situation in Vanuatu?

c) Will the incorporation of these new terms affect the original intention of the legislature?

d) What is the effect of a legislation which its theory conflict with its practice?

The civil status department has a duty to register birth, death, marriages and all other related matters. Like all other department, the Civil Status office is established under the Ministry of Internal affairs. The Minister has the discretion to impose fees on the service delivered by the Department. The Legislation provides that where a person needs a copy of a birth, marriage or death, he/she has to pay of fee in order to obtain such document^[11].

The Section of fees in the Civil Status [Registration] Act briefly referred to the fees. Section 40 outlines that the fees for the copies of documents refer to in part 3 shall be prescribed by the Minister by order.^[12] However, the issue lies in the fees allocated to copies of death and birth certificate.

Should parents of children aged 0-6 years pay for a fee when they want to get a copy of birth or death Certificate?

For Instance, In the Birth, Deaths and Marriages Registration Act of Tuvalu, schedule 2 outlines the situation in which search of names shall be free for ascertaining the age of the applicant for the Judicial or Educational purposes.

Should Vanuatu also include a schedule in its Civil Status Registration act outline the age in which issuance of birth and death certificates will be free of charge?

Furthermore, Vanuatu composed of six provinces with two main towns. The office of the Registrar General is located in Port-Vila, Efate. Thus, if the registrar general wants to restrict other deputy registrar from imposing fee, it should introduce a system in place to regulate this issue.

e) Would that increase in fee be affordable to those who failed to register their children within the time limit imposed?

f) Should we take into account the people in the islands especially in the remote areas where they do not have access to the registry system? Should special treatment be afforded to them?

The Legislation make reference to a time limit within which after a child’s birth, nurses or parents or family members should ensure that a child is registered. Once that time period elapsed, a fee will be paid as a late registration fee. It has been seen that many parents tend to forget to register their children within the time limit imposed. Thus, considerations are being made to increase the late registration fees in order to ensure that all children are being registered at an early age.

In comparison, Fiji has a very well established registration system. No penalty is incurred for late registration until after one year. Births registered after two months must be made by a solemn declaration. Registration is free, but issuing a birth certificate incurs a prescribed fee.^[13]

Currently in the country, there are two main ways of adoption. On the one hand, we have the formal adoption and on the other hand, we have the customary adoption. The issue arising from these two types of adoption system lies in their registration. The Civil Status Registration Act, or any other Act, does not clearly outline the procedures which each have to follow in order to be recognized as a valid adoption. As a result, disputes tend to arise as to which law or procedure to follow when faced with an adoption case. To avoid such disputes in the future, it is important to set some limits in the legislation to regulate these issues. In order to fulfill the requirement leading to a valid adoption, the authority responsible to register adoption must ensure that all the conditions for each adoption procedure must be satisfied.

Legal or Formal adoption relates to the form of adoption which is regulated by the legislation. Vanuatu is still using the United Kingdom Adoption Act 1958 for adoption purposes. However, this legislation is from the Pre-independence era and the adoption Act in place is modeled on this old law and does not reflect the current situation in the country.

Article 21 of the Convention on the Right of the Child (CRC) put emphasis on all countries party to it to enforce this into their legislation. Vanuatu has ratified the UNCRC on July 1993 and it came into force on August of the same year. This ratification put a responsibility on the country with a duty to ensure that it respects the content of the Convention. Therefore, where a person presents an adoption application under the formal law, the court should ensure that it satisfies all the criteria in the legislation. The court must consider that, if adoption is to be granted, it must be solely in the best Interests of the child. The Marshall Islands Adoption Act 2002 places the child’s welfare at the centre of the legislation and sets out in detail what factors the court must take into account in determining what is the best interest of the child^[14]. It also encourages open adoption which is a process by which the adoptive parents and the biological parents share their identity and keep contact over the years. Open Adoption allows the biological parents to share their opinion on the upbringing of their child.

Customary Adoption is widely practiced in all of Vanuatu and Article 95 (3) of the Constitution of Vanuatu recognizes customary Law. Vanuatu has a diversity of custom and culture and customary practices differ from one community to another. However, the procedures of customary adoption will be defined according to the customs of the community where the child is taken from.

Customary adoption, unlike the formal adoption, does not severe the ties between the child and its biological parents. The child is adopted by another family relative and leaves in the same community with his/her parents. There is also the possibility for the child to return to his/parents.

“In some cases custom recognizes and facilitates not only infant or child adoption but also adult adoption-which may be particularly important for the passing of land or the continuation of a title, or name. It may also be the case, that while officially the law may recognize only formal adoption, informal customary adoption persists. This may cause confusion because whereas the formal law envisages adoption as severing ties between the adopted child and her natural parents, customary adoption may not, especially if the adoption is by relatives or within the same community.”^[15] In the present time, the extent to which customary is applied is still unclear. However, in some other countries in the regions, the application of customary adoption is clearly defined. For example, in Kiribati, indigenous adoption is governed solely by custom. In Nauru on the other hand, a Nauruan applicant may only adopt a Nauruan child if his/her spouse is also Nauruan. Furthermore, customary adoption also recognizes and facilitates the adoption of adults for the purpose of the passing of the Land.^[16]

Adoption allows a child who is not born in the family to be part of the family. To be recognized as part of the family, the child must be legitimatized. Thus, an adopted child becomes part of a family through the registration of his/her name in the Civil Status office. Once a child is adopted, he/she will have the name of his/her adoptive parents. However, the Civil Status Registration Act [CAP 61] does not make reference to the registration of adoption. This could be one main reason which causes adoptive parents to lose custody over their adoptive children here in Vanuatu.

Vanuatu is still using the UK 1952 Adoption Act which does not clearly make a distinction between these two types of registration. The Civil Registration act 1963 of the Papua New-Guinea clearly outlines the procedures of a formal adoption and one of customary adoption and has a very detailed registration act.

d) Will the inclusion of this section ensures an effective registration of adoption in the registry?

e) Is it really necessary to insert the registration of adoption into the Legislation? What would be its practical effect?

f) Should customary adoption only apply to adoption of a child by the indigenous people? Or should it also extend to foreigners who wish to adopt Ni-Vanuatu children?

g) Should there be a unified customary legislation regulating customary adoption?

Moreover the issue of improving CRVS also affects one nationality. As a citizen, one is required to know how to be a part of large communal society sharing a national identity, as well as knowing how to express oneself legitimately. This issue will be discussed under the two headings legal identity and dual citizenship.

The Civil Status department through the CRVS initiative has proposed to centralize the process of registry of any of the said events such as births, deaths, marriages and divorces to fall under one department which is the civil status. As discussed under the issue of registration above, Vanuatu’s registration system would change significantly. As a guiding example it could pick and choose various approaches which its fellow countries have taken. It would mean those in the outer islands and in overseas countries may register through the civil status head offices situated in the outer islands. Those overseas may go through the proper channel of going through the heads stationed overseas which might be the consulates or ambassadors. By centralizing the process of registry it would mean each citizen would be allocated a unique id number as discussed further below.

As an exemplary yet realistic guideline, Thailand’s long standing CRVS system has been guiding and steering government services. It has an electronic registration system which generates a unique identification number for its citizens, which forms the basis for all identification documents and enrolment in state health insurance schemes. Reimbursement and patient data from this state insurance scheme are in turn used to enhance the quality of the CRVS database

Also Albania being a low income country has introduced a project initiative that was geared to improve vital statistics in the country as a whole. One of the aims of the project was to develop a centralized CPR (Central Population Register) office and establish a central administrative unit, and a central national register among other things. The countries also setup a web base system where all statistics and data were available to various civil registry offices, with the administrating office being the office of the CPR^[17].

Vanuatu has recently passed a new legislation and it has come into effect allowing dual citizenship. The Constitution (Sixth) (Amendment) Act No. 27 of 2013 under article 13 states that the Republic of Vanuatu recognizes dual citizenship and that a person who is a citizen of Vanuatu or of a state other than Vanuatu may be granted dual citizenship. Due to this development it reaffirms the need for the general public to ensure that everyone is being accounted for through such norm of registry and it ensures that the data is current and up to date.

The Civil Status (Registration) Act is the principal act which deals with the civil registration and vital statistics system. As previously pointed out, most countries in the region have opted to centralize their registration processes under one office, in doing so it would render statistical data to be up to date and more reliable and encourage data sharing amongst various relevant agencies..

Fiji has acknowledged the need for cooperation amongst relevant stake holders in order to improve the country’s registration system. They have since introduced definitive roles for each stakeholder within the registration system and several agencies have data systems to manage their operations. The country is also working on helping these stakeholders to understand their roles better and how they are to be linked and to ensure that all the data are in sync.

Furthermore Fiji understands that by involving these relevant agencies it would only seem reasonable that their governing legislations that they are regulated by should also be re-visited and changes are made to them accordingly to avoid inconsistencies. It has also made it recommendation for its country plan that it needs to review its legislations^[18].

A weakness which Fiji saw and had stated that had crippled the improvement of civil registration was the lack of understanding in data sharing procedures particularly with regards to confidentiality practices. Fiji acknowledges the need for data sharing but sees the need for clear guidelines to be set up to help regulate confidentiality practice^[19]s.

Any opinions expressed in this Paper do not represent the policy position of the Government of Vanuatu, The Civil Status department or the Vanuatu Law Commission.

You are invited to make a submission on any matter raised in the Paper or anything you think is relevant to the Civil Status (Registration) Act. Information on where and how to make submissions is found on page 2 of this Paper.

^[1] Statistics Pocket Book 2012, Vanuatu National Statistics Office, Ministry of Finance and Economic Management, Port Vila Vanuatu
^[2]-Civil Status (Registration) Act [CAP 61]
^[3] The term vital events refers to events such as births, deaths, marriages, dissolution of marriages, adoptions and so forth.
^[4] Improving the quality of and use of births, death and cause-of-death information: guidance for a standards-based review of country practices, World Health Organization, 2010.
^[5] Shivnay Naidu, Michael Buttsworth & Audrey Aumua, ‘Strengthening civil registration and vital statistics systems in the Pacific: the Fiji experience,’ (Working paper No. 35, University of Queensland School of Population Health Working paper series, 2013) page 8.
^[6] Ibid
^[7] Ibid
^[8] http://www.naa.gov.au/collection/fact-sheets/fs89.aspx
^[9] Economic and Social Commission for the Asia and Pacific
^[10] Shivnay Naidu, Michael Buttsworth & Audrey Aumua, ‘Strengthening civil registration and vital statistics systems in the Pacific: the Fiji experience,’ (Working paper No. 35, University of Queensland School of Population Health Working paper series, 2013)
^[11] Entries in any registers shall be made free of charge. A fee may be charged when copies or extracts are issued, the amount of which shall be prescribed by the Minister by Order.
^[12] Civil Status [Registration] Act [ CAP 61] Section 40
^[13] Strengthening civil registration and vital statistic system in the Pacific: the Fiji Experience.
^[14] Farran.S, [2011], Law and the Family in the South Pacific, “Adoption” P.57
^[15] Farran.S, [2011], Law and the Family in the South Pacific, “Adoption” Pp54-55
^[16] See Above No.4 p.56
^[17] Civil Registration and Vital Statistics 2013: challenges, best practice and design principles for modern systems, World Health Organization.
^[18] Above no.5
^[19] ibid

Vanuatu Law Reform Commission

Civil Status Registration Act - Issues Paper No 1 2014 [2014] VULawRComm 5 (1 June 2014)