Bills Digest No. 112 2001-02
Marriage Amendment Bill 2002
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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Marriage Amendment Bill
Date Introduced: 14 February 2002
House: House of Representatives
Commencement: Schedule 1,
relating to the Marriage Celebrant Program, commences on
proclamation or 12 months after the Bill receives Royal Assent,
whichever is the sooner. Schedule 2, consisting of miscellaneous
technical amendments and amendments relating to certain overseas
marriages, mainly commences 28 days after Royal Assent.
The purpose of
the Bill is to amend the Marriage Act 1961 to give effect
to the reform of the Marriage Celebrant Program and to make other
technical amendments to the Marriage Act.
This Bill was previously introduced into the
House of Representatives on 27 September 2001. Parliament was
prorogued before debate resumed and the Bill then lapsed. This Bill
is written in exactly the same terms as the previous Bill.
Marriage Act 1961
Under the Marriage Act there are three major
classes of marriage celebrants. These are:
- Celebrants from recognised religious
- State Registrars of Births Deaths and Marriages authorised to
solemnise marriages under subsection 39(1), and
- persons authorised by the Minister to solemnise marriages
according to the fit and proper person criteria in subsection
39(2). Within this group there are currently three categories: (i)
civil marriage celebrants, (ii) religious celebrants who do not
belong to one of the recognised denominations(2), and
(iii) celebrants appointed to deal with special community
needs.(3) These latter three categories comprise the
Marriage Celebrant Program and are the subject of the Bill.
Marriage Celebrant Program
The Civil Marriage Celebrant Program was
established in 1973 by the then Attorney-General, the Hon. Senator
Lionel Murphy, to provide a secular alternative and freedom of
choice for marrying couples who did not want to have a religious
ceremony and yet did not want a registry wedding.
There were 13 civil celebrants when the program
commenced. There are now almost 1,700 civil and a similar number of
non-recognised denomination religious marriage celebrants appointed
under the program.(4) In 2000 civil marriage celebrants
performed 45% of all marriages in Australia.(5)
In 1997, the Government commenced a review of
the Marriage Celebrant Program and a Proposals Paper for reform was
released in November 2000. The review process and particularly the
Proposals Paper identified a number of problems with the existing
system. Amongst other things the Paper suggested:
- previous arrangements for marriage celebrant appointments have
resulted in an unequal distribution of celebrants across
- the current system of authorisation on the basis of regional or
community need, prevents able and potentially talented celebrants
being authorised and hence impacts the quality of the program
- there is an absence of clear definition of the civil marriage
- the Marriage Act does not set down express selection criteria
or standards for celebrants other than a celebrant must be 'fit and
proper' to solemnise marriage
- there is no formal training scheme available for marriage
- there is no formal procedure for the review of any celebrant's
The Proposals Paper and the Bill
The Bill is based largely on the recommendations
of the Proposals Paper, although some of the Paper's more
contentious aspects relating to professional development and
authorisation for celebrants have been modified.
Under current arrangements marriage celebrants
are appointed for life. The Proposals Paper recommended that
lifetime appointments should be replaced with fixed periods of
authorisation. In response to concerns from existing celebrants
this proposal has been amended in the Bill so that celebrants would
be appointed on a life time basis but subject to 5 yearly
The current arrangement for appointment of
marriage celebrants is based largely regional and special need. The
Proposals Paper recommended that these restrictions on the number
of appointments be lifted and that appointment be based solely on
satisfying a set of criteria. In response to concerns from marriage
celebrant groups, that the new method of appointment could see a
flood of celebrants onto the market(8), the reforms are
to be phased in over a period of 5 years. According to the
Explanatory Memorandum, during this period, the number of
celebrants authorised would be limited to a 10 per cent increase
each year based on the number of authorised celebrants in the
previous year. This would be calculated on a State by State basis,
with a metropolitan and a rural region in each State except
Tasmania, the ACT and the Northern Territory, all of which would
form one region apiece.(9) After the five-year
transition period, the ceiling for authorisations would be
Subsection 39(2) of the Marriage Act gives the
Attorney-General the power to authorise 'fit and proper persons' to
solemnise marriage as marriage celebrants. The Proposals Paper
recommended that the term 'fit and proper person' be replaced with
a form of words which would clearly identify the characteristics
that competent marriage celebrants should possess. That list of
characteristics proposed was:
- a commitment to marriage preparation
- sufficient knowledge of the law relating to solemnisation of
- satisfaction of the necessary training competencies
- good standing and respect within the community
- the absence of any criminal conviction, and
- adherence to the Code of Practice for Marriage
In response to concerns about deregulation of
the marriage celebrant market a conflict of interest criteria not
included in the Proposals Paper was added to the Bill. This was to
allay concerns from celebrants that wedding organiser businesses
would capture the marriage celebrant market in a new deregulated
According to the Proposals Paper the scheme of
training for celebrants would consist of either a nationally
accredited training course for celebrants or nationally endorsed
competency standards. The Government has opted for the latter
option.(13) All new appointments under the Marriage
Celebrant Program, both civil and religious(14) would be
based upon satisfying core competency standards. This would be
achieved through the system of accreditation operating in the
vocational education and training sector administered by the
Australian National Training Authority.(15)
Under the Bill all celebrants in the Program,
existing and new, would be required to undertake ongoing
professional development but existing celebrants would not be
required to demonstrate that they satisfy the new core
Once an aspiring celebrant completes the
training course, there would be an additional requirement to
demonstrate to the Registrar of Marriage Celebrants that he or she
passed the 'fit and proper person' criteria.(16)
Such requirements would also apply to religious
marriage celebrants from non recognised denominations appointed
under the program.
Expanding Role of Celebrants - Referral to
marriage education services
A major impetus for the proposed reforms to the
Marriage Celebrant Program is the Government's commitment to
pre-marriage education and family relationship support
services.(17) The Government believes that celebrants
are well placed to provide information and raise awareness about
the benefits and range of pre-marriage education and family
relationship support services.(18)
According to the Attorney-General:
The role of the modern celebrant extends far
beyond simply officiating at ceremonies. Celebrants are in a unique
position to foster quality family relationships. They can provide
information about services that will help couples to develop
stronger relationships. If necessary, celebrants can refer people
to these services.
These simple actions can deliver great benefits.
They can reduce the risk of relationship breakdown - and in the
process they can help to reduce the divorce rate. In 2000, there
were 49,900 divorces granted in Australia.
The Andrews Committee report, To Have and to
Hold, clearly illustrated the emotional and financial costs of
marriage and relationship breakdown. It also highlighted the value
of preventative action and the role it plays in promoting strong
and healthy marital relationships.
The reforms seek to harness and to use the power
and position that celebrants have. If we can succeed in doing this
we will help make relationships stronger. And we will reduce the
financial cost and the human trauma associated with relationship
Hence the Bill's criteria for selection includes
a requirement that celebrants have a commitment to advising couples
of the availability of marriage preparation services. In response
to concerns about the appropriateness of using celebrants for
pre-marriage counselling, the Government has emphasised that the
celebrant's role would be purely a referral role and not a
Registrar of Marriage Celebrants
The reforms proposed in the Proposals Paper and
the Bill include the appointment of a Registrar of Marriage
Celebrants employed within the Attorney-General's Department. The
Registrar's primary function would be to establish and maintain the
register of marriage celebrants. This register would be the
mechanism for the appointment and revocation or suspension of all
The Proposals Paper recommended the introduction
of fees for initial and ongoing authorisation of celebrants.
However in response to pressure from existing celebrants this
recommendation has been dropped from the Bill.
According to the Explanatory Memorandum the
additional regulatory functions to be carried out by the
Attorney-General's Department will involve a cost of approximately
$320,000 per annum and additional funding will be provided to the
Department to meet these costs.
Schedule 1-Marriage Celebrants
Items 1-16 and 20-25 are
largely technical and consequential amendments to the Marriage Act
reflecting the insertion of new provisions dealing with
appointments under the Marriage Celebrant Program.
18 inserts new Subdivision C into
Division 1 of Part IV of the Marriage Act. Subdivision
C sets out the new arrangements for the appointment of
New section 39A provides for
the appointment of a Registrar of Marriage Celebrants. This is a
position to be occupied by an APS employee in the
Attorney-General's Department who will have the functions and
powers as set out in the Bill.
Amongst other things the Registrar is to
maintain a register of marriage celebrants and this register is to
be available on the Internet (proposed section
New section 39C sets out the
requirements for registration as a marriage celebrant. The
Registrar of Marriage Celebrants is to register a person as a
marriage celebrant only if satisfied that the person:
- is aged 18 years or over
- has appropriate qualifications, and/or skills, as required by
- is a fit and proper person to be a marriage celebrant.
Proposed subsection 39C(2)
details the criteria for a 'fit and proper person'. In particular
the Registrar must consider whether the applicant
- has sufficient knowledge of the law relating to solemnisation
- is committed to advising couples of the availability of
relationship support services
- is of good standing in the community
- has a criminal conviction
- has an actual or potential conflict of interest with any of
their business interests, hobbies(20) or other
- would be likely to gain a benefit in respect of another
business that they own or carry out if registered as a marriage
- will fulfil their obligations under section 39G to abide by a
Code of Practice, and undertake professional development
- will notify the Registrar of any change in their details that
would affect their ability to be registered as a celebrant,
- any other matter that the Registrar may consider relevant.
Proposed section 39D sets out
the technical requirements for registering a marriage celebrant. In
order to register a person as a marriage celebrant the Registrar
must be satisfied that the person is entitled to be registered and
the person has completed the prescribed application form
(proposed subsection 39D(4)). Applications must be
dealt with in the order they are received (proposed
subsection 39D(2)). The Registrar must have regard to the
information provided in the application, and is also entitled to
consider any further information that he or she is aware of.
If the Registrar decides not to register a
person as a celebrant, the Registrar must inform the applicant in
writing and give reasons for that decision. The Registrar must also
advise that this decision is reviewable in the Administrative
Appeals Tribunal (AAT) (proposed subsection
Registered marriage celebrants may solemnise
marriages anywhere in Australia (proposed section
In the first five years of the new scheme there
is to be a limit on the number of marriage celebrants that may be
appointed. That limit will be set out in the regulations
(proposed section 39E).
Proposed section 39G sets out
the obligations of each marriage celebrant. A marriage celebrant
- comply with the prescribed Code of Practice for celebrants
- undertake professional development as required by the
- notify the Registrar in writing of any necessary changes to the
Failure to comply with these obligations may
result in disciplinary action (explanatory note to proposed
section 39G and proposed section 39I).
Appointment as a marriage celebrant is to be
ongoing subject to satisfactory five yearly performance reviews
(proposed section 39H). The performance review is
to take account of matters specified in the
regulations(21) and, in addition, the Registrar has the
discretion to consider any other information (proposed
Proposed subsection 39H(4) sets
out the procedure for giving notice of an unsatisfactory
performance review. Celebrants are to have the opportunity to
respond to a determination of unsatisfactory performance
The Registrar may take disciplinary measures
against a marriage celebrant if satisfied:
- the celebrant is no longer entitled to be registered
- the celebrant has not complied with a statutory obligation
- the celebrant has received an unsatisfactory performance
- there has been a complaint against the celebrant in accordance
with the complaints resolution procedures, or
- the celebrant knowingly included false or misleading
information in their application for registration (proposed
The disciplinary measures the Registrar may take
- caution the marriage celebrant in writing
- require the celebrant to undertake professional development
- suspend the marriage celebrants registration for up to 6
- deregister the marriage celebrant (proposed subsection
Decisions not to register, or to suspend or
deregister a celebrant are reviewable in the AAT under
proposed section 39J.
Proposed section 39K sets out
additional functions of the Registrar. These include the
establishment of complaints resolution procedures to deal with
complaints about marriage celebrants.
Item 27 is a transitional
provision. On commencement of the new provisions, the Registrar
must register all existing marriage celebrants. Existing celebrants
will therefore gain automatic registration and will not be required
to satisfy the core competencies required of new celebrants.
However existing celebrants will be subject to five yearly
performance reviews and at that time would be required to satisfy
the prescribed professional development requirements.
Schedule 2 -Other Matters
Part V of the Marriage Act deals with the
solemnisation of marriages overseas. In particular Divisions 1 and
2 of Part V provide that Australian consular officials may perform
marriages overseas for Australian citizens. Item 19 of
Schedule 2 deletes these Divisions and items 2, 3,
6, 16-47, 49-53, 55 make the necessary consequential
amendments. According to the Explanatory Memorandum Divisions 1 and
2 of Part V of the Marriage Act have not been used since 1993 when
the Department of Foreign Affairs and Trade requested that all
appointments of Australian consular officials as marriage officers
Items 1, 7 and 48 make
technical amendments to subsections 5(1), 9A(1), 92(1) respectively
so that the Federal Magistrates Court will have the same
jurisdiction as the Family Court of Australia in relation to the
Schedule 2 also contains
amendments to the procedures relating to the giving of the Notice
of Intended Marriage. Giving a Notice of Intended Marriage within
the specified time period is one of the preconditions that must be
satisfied before a marriage can be solemnised.
Current paragraph 42(1)(a) imposes time limits
on the giving of the Notice of Intended Marriage to a celebrant.
The current limits are no earlier than 6 months and no later than 1
month before the intended marriage. Item 9 amends
the paragraph so that celebrants may receive the Notice of Intended
Marriage up to 18 months prior to the marriage.
Under current subsection 42(5) the statutory
requirement of one months Notice of Intended Marriage may be
waived. Item 15 amends subsection 42(5) so that
the expediting of a marriage in this way may only occur if it meets
at least one of the requirements to be prescribed by
Subparagraph 42(1)(b)(ii) requires that couples
intending marriage must produce either a birth certificate (or
extract) or a statutory declaration stating reasons for not having
a birth certificate. Items 11 and 12 amend
subparagraph 42(1)(b)(ii) so that overseas passports will also be
an acceptable form of identification.
A Notice of Intended Marriage must be witnessed.
Paragraph 42(2)(b) sets out who can witness a Notice. Item
13 rewords and amends this paragraph so that a Notice of
Intended Marriage completed overseas can also be witnessed by
notaries public and certain overseas recruited Commonwealth and
The Government has indicated a major impetus of
the reform of the Marriage Celebrant Program is to broaden and
enhance the role of marriage celebrants to include the promotion of
pre-marriage and other relationship services. According to the
Attorney-General this will result in stronger and healthier family
relations and assist in lowering divorce rates.(23) Such
a view has been subject to criticism for being simplistic and
Undoubtedly it is ambitious to place
responsibility on marriage celebrants to play some part in reducing
divorce rates. However, if the Government is serious about this
ideal, then logically it might be argued that the reforms proposed
in this Bill should be applied to all marriage celebrants including
religious celebrants appointed from the recognised
denominations(25) and State and Territory registry
office celebrants. The Bill does not affect these
celebrants.(26) Further, if the Bill achieves its goal
and civil celebrants are successful in steering marrying couples
towards relationship education then presumably there will be a
growth in that industry. It would then seem that a burgeoning
marriage education industry could also need further scrutiny and
- That is, denominations that have been proclaimed as 'recognised
denominations' by the Governor-General.
- For example, Sikhs, Buddhists and World Harvest Ministries.
- For example, celebrants that serve the Epilepsy Association of
New South Wales, and the Spanish Australian Club of Canberra.
- Marriage Amendment Bill 2002, Explanatory Memorandum,
- Attorney General, Press Release: Reforms to the Marriage
Celebrants Program, 4 September 2001, p. 1.
- At the beginning of October 2000 there were 1671 civil marriage
celebrants in Australia. Of these 284 were based in Sydney and 259
- Proposals Paper: Reform of the Marriage Celebrants
Program, para. 1.2.
- See for example the response of the Marriage Celebrant (Civil)
Association of WA quoted in 'Move to cut divorce rate', West
Australian, 7 September 2002.
- Explanatory Memorandum, p. 10.
- Attorney-General, Press release: Marriage Celebrants
Program Reform Launch, 4 September 2001.
- Proposals Paper: Reform of the Marriage Celebrants
Program, para 3.3.
- Explanatory Memorandum, p. 10.
- Explanatory Memorandum, p. 15.
- That is, non recognised religious denominations see above at
pages 1-2 for an explanation of recognised denominations.
- Explanatory Memorandum, p. 16.
- Mentioned above at p. 3.
- See for example the Press Release of Attorney-General,
the Hon Daryl Williams, 'Coalition affirms commitment to marriage
and relationship education and counselling ', 14 September 1998.
- Attorney-General, Press Release 'Marriage celebrants
are important to long, healthy marriages' 1 November 2000.
- Attorney-General, Press release: Marriage Celebrants
Program Reform Launch, 4 September 2001.
- See Explanatory Memorandum, p. 21.
- According to the Explanatory Memorandum these matters
- Explanatory Memorandum, p. 25.
- See above at pp. 4-5.
- See for example: 'Who can judge a couple's chances of wedded
bliss', Australian, 9 November 2000. 'Government meddling
is a marriage turn-off', Australian, 3 November 2000. 'No
bouquet for marriage initiative', Courier Mail, 31 Oct
2000. 'Making of the marriage minders', Advertiser, 10 May
- See above at pp. 1-2 for an explanation of the different types
of religious celebrants.
- It could also be argued that this exemption for some religious
celebrants is discriminatory. Celebrants from small religious
groups (such as Sikhs and Buddhists) are affected by the Bill
whereas celebrants from Christian denominations (such as Catholics,
Uniting Church and Anglicans) are not affected.
Mary Anne Neilsen
19 March 2002
Bills Digest Service
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