Marriage Amendment (Celebrant Administration and Fees) Bill 2014 [and] Marriage (Celebrant Registration Charge) Bill 2014

Bills Digest no. 56 2013–14

PDF version  [697KB]

WARNING: 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 Bill.

Mary Anne Neilsen
Law and Bills Digest Section
25 March 2014

This is a revised version of Bills Digest 112, 2012–13, prepared for an earlier version of these Bills introduced into the 43rd Parliament.

 

Contents

Commencement

History of the Bills

Purpose of the Bills

Background

Committee consideration

Policy position of non-government parties

Position of major interest groups

Financial implications

Statement of Compatibility with Human Rights

Key issues and provisions

Concluding comments

 

Date introduced:  20 March 2014

House:  House of Representatives

Portfolio:  Attorney-General

Commencement:  See page 3 below.

 

Commencement

Sections 1 to 3 of the Marriage Amendment (Celebrant Administration and Fees) Bill 2014 commence on Royal Assent. Schedules 1 and 2 commence six months after Royal Assent unless earlier by proclamation.

Sections 1 and 2 of the Marriage (Celebrant Registration Charge) Bill 2014 commence on Royal Assent and sections 3 to 8 commence at the same time as Part 1 of Schedule 1 to the Marriage Amendment (Celebrant Administration and Fees) Act 2014 (when enacted).

History of the Bills

Previous versions of the Bills—the Marriage Amendment (Celebrant Administration and Fees) Bill 2013 and the Marriage (Celebrant Registration Charge) Bill 2013 (the previous Bills) were introduced into the 43rd Parliament on 20 March 2013.[1] The previous Bills had been debated in the House of Representatives and had been introduced into the Senate, but had not been passed when the Parliament was prorogued on 5 August 2013. As a result, the previous Bills lapsed.

The Bills under consideration in this Bills Digest mainly replicate the previous Bills.[2] As noted above, this Bills Digest is a revised version of an earlier Bills Digest prepared for the previous Bills.[3]

Purpose of the Bills

The purpose of the Marriage Amendment (Celebrant Administration and Fees) Bill 2014 (‘the Administration and Fees Bill’ or ‘the Bill’) is to amend the Marriage Act 1961[4] to implement a 2011 Budget decision to introduce cost recovery for Commonwealth–registered marriage celebrants. It includes the setting-up of a system for the imposition of an annual celebrant registration charge, provision of a registration application fee for prospective marriage celebrants and provision of a fee for seeking an exemption from the annual charge, the registration fee or annual ongoing professional development obligations. The Bill also makes other technical amendments related to the administration of the Marriage Celebrants Program.

The purpose of the Marriage (Celebrant Registration Charge) Bill 2014 (‘the Registration Charge Bill’ or ‘the Bill’) is to provide legislative authority for the Government to charge Commonwealth‑registered marriage celebrants an annual cost recovery levy, referred to as the celebrant registration charge. To ensure constitutional validity a separate Bill is required to impose the charge.[5]

The two Bills are interrelated and therefore dealt with in the one Bills Digest.

Background

Marriage Act 1961

While the Commonwealth has constitutional responsibility for marriage matters,[6] it was not until 1961 that laws bringing the regulation of marriage into the jurisdiction of the Commonwealth were enacted. Under the Marriage Act, there are three major classes of authorised marriage celebrants. Two of these continue to be regulated by the state and territory Registries of Births, Deaths and Marriages and the third and more recent class is regulated by the Commonwealth. These are:

  • celebrants from recognised religious denominations proclaimed under section 26 of the Marriage Act who are nominated by their denomination and registered and regulated by state and territory Registries of Births, Deaths and Marriages. There are currently approximately 24,500 such people
  • state and territory officers authorised to solemnise marriages under subsection 39(1) of the Marriage Act and registered by state and territory Registries of Births, Deaths and Marriages. There are currently approximately 730 such people and
  • Commonwealth-registered marriage celebrants who are authorised under the Marriage Celebrants Program to perform marriages. This group includes civil celebrants and celebrants who are ministers of religion whose denomination is not proclaimed under section 26 of the Marriage Act.[7] There are currently approximately 10,500 such people.[8]

It is the last group, Commonwealth-registered marriage celebrants, that are the subject of the Bills.

Marriage Celebrant Program

The Marriage Celebrants Program was established in 1973 by the then Attorney-General, 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. Starting with only 13 civil celebrants in 1973, the program has greatly expanded since then, with a dramatic increase in numbers following the gradual lifting of the ceiling on the number of marriage celebrant appointments after 2002.[9] There are currently over 10,500 Commonwealth-registered marriage celebrants administered by the program.[10] Civil marriages have outnumbered religious ceremonies since 1999 and in 2011 70.1 per cent of all marriages were performed by civil celebrants.[11]

2003 reforms to the Marriage Celebrant Program

In 1997, the then Howard Government commenced a review of the Marriage Celebrant Program and a Proposals Paper for reform was released in November 2000. That paper formed the basis for the quite substantial legislative changes that eventually came into operation in 2003. The changes included:[12]

  • a more clearly defined set of criteria that competent marriage celebrants would need to possess
  • the introduction of a training scheme for celebrants
  • an expanding role for celebrants, with the celebrants’ selection process requiring celebrants to demonstrate a commitment to advising couples of the availability of marriage preparation services
  • a gradual lifting of the ceiling on the number of marriage celebrant appointments. Prior to 2003 the method of authorisation was based on regional or community need. The 2003 changes provided that after a period of five years there would be no restriction on the number of celebrants and appointment would be based solely on satisfying a set of criteria
  • appointment of celebrants was to continue to be on a life-time basis but subject to five-yearly performance reviews and
  • the appointment of a Registrar of Marriage Celebrants employed within the Attorney-General’s Department, with the function of establishing and maintaining the register of marriage celebrants.[13]

The changes were controversial and the impetus for the reform being to broaden and enhance the role of marriage celebrants to include the promotion of pre-marriage and other relationship services was criticised for being simplistic and intrusive.[14] The criticism of these reforms is evident in many of the submissions to the Senate inquiry into the previous Bills, suggesting those changes caused the current oversupply of celebrants and resulted in making the Marriage Celebrant Program unmanageable because of the increased rate of appointment of new undertrained celebrants.[15]

In the context of the Bills currently before the Parliament, it is also of interest that the Government review of the Marriage Celebrant Program that preceded the 2003 reforms had recommended the introduction of fees for initial and ongoing authorisation of celebrants. However in response to pressure from existing celebrants this recommendation was dropped from the legislation.[16]

Cost recovery

As part of the 2011–12 Budget, the Government announced that it would implement cost recovery arrangements for the Marriage Celebrants Program from 1 July 2013.[17] The stated purpose of introducing cost‑recovery was to enable the Attorney-General’s Department to improve the services delivered to marriage celebrants, while also effectively regulating those celebrants.[18] These services are described in the Explanatory Memorandum as including:

[…] assessing and authorising new marriage celebrants for registration, reviewing celebrant performance, resolving complaints about celebrants, handling a large volume of enquiries from celebrants, producing information and guidance materials, managing ongoing professional development arrangements for celebrants and engaging with celebrants and their peak group.[19]

The Minister’s second reading speech states that subject to the passage of these Bills, from 1 July 2014 the fees are to be set at:

  • a $600 registration application fee for prospective celebrants seeking registration
  • a $240 annual celebrant registration charge imposed on all Commonwealth registered celebrants (although the Registration Charge Bill states that the fee may rise to a maximum $600 per annum and is to include CPI adjustments) and
  • a $30 application processing fee for seeking an exemption from the annual celebrant registration charge, the registration application fee or annual ongoing professional development obligations.[20]

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

At the time of writing this Bills Digest, the Bills have not been referred to committee. However the previous Bills were referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 18 June 2013 (‘the Senate inquiry’). The Committee report recommended that the previous Bills be passed.[21]

In support of this recommendation, the Committee stated:

Marriage celebrants operate businesses and are paid for their services. Since Commonwealth-registered marriage celebrants are the clear users and financial beneficiaries of the Marriage Celebrants Program administered by the Department, the committee considers that they should contribute financially to its administration and maintenance. The proposals are fully consistent with the Australian Government's Cost Recovery Guidelines and have been the subject of extensive and ongoing consultations, and targeted awareness campaigns, since 2011.

In the circumstances, therefore, the committee does not consider the amount of the proposed charge to be unreasonable or excessive. [22]

Details of the inquiry are at the inquiry web page.[23]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills considered the previous Bills and raised questions regarding the use of regulations, in particular in regard to the granting of exemptions from liability to pay the celebrant charge (item 3, Schedule 1, proposed subsection 39FA(3) of the Administration and Fees Bill) and in regard to the registration application fees. According to the Committee:

The grounds for granting exemptions and the provision for internal review of exemption decisions may be considered to raise important questions and it is not clear why they cannot be dealt with in the legislation. The same issue arises in relation to item 6 of Schedule 1, in relation to registration application fees.

As the committee prefers that important matters be included in primary legislation unless a strong justification is provided it seeks the Attorney-General’s advice as to the justification for the proposed approach.[24]

The Committee was satisfied with the Attorney-General’s response to these questions which was:

Following extensive consultation with celebrants prior to drafting the legislation, a policy decision was made to allow for the granting of exemptions from both the celebrant registration charge and the registration application fee, in certain circumstances. The Bill is drafted to allow for such exemptions, but for the Regulations to set exemption grounds and the process.

The reason for omitting the grounds from the primary legislation is merely to reduce complexity in the Bill.

The grounds for exemption will be contained in amendments to the Marriage Regulations 1963 following passage of the Bill. The Regulations will allow celebrants to apply for an exemption from the celebrant registration charge on the basis of remoteness or specified circumstances. The intention of the former is to allow remote communities to maintain access to celebrancy services. The latter includes long term absence from Australia, serious illness or caring responsibilities. It is intended to apply only to celebrants who need a temporary period of 'time out' from their celebrancy duties due to personal circumstances, without having to resign and reapply to become a celebrant at a later date. Given that these are administratively procedural concepts, it was decided that they were more appropriately placed in Regulations.

[…]

I note that the procedures set out in the Regulations will be subject to Parliamentary scrutiny and disallowance as the Regulations will be legislative instruments. This will assist in ensuring that the delegation of this power will be used appropriately.[25]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered that the previous Bill did not give rise to any human rights concerns.[26]

Policy position of non-government parties

It would be expected that the Bills will have bipartisan support given that they essentially replicate the previous Bills introduced by the Labor Government in the 43rd Parliament.

Position of major interest groups

The Senate inquiry into the previous Bills received 113 submissions mainly from marriage celebrants associations and many individual celebrants. While a couple of associations supported the Bills, the majority of submissions were critical of them.

A sample of the arguments for and against the previous Bills were presented in the previous Bills Digest and that material is replicated here and in the ‘Key issues and provisions’ section below.

Arguments for the Bills

The Australian Federation of Civil Celebrants[27] (AFCC) supported the previous Bills for three reasons.

Firstly, it, like most other submitters to the Senate inquiry, was concerned about the excessive number of celebrants currently registered. The AFCC believed that the introduction of the proposed charge is a practical and equitable way of reducing the number of celebrants.[28]

Secondly, the AFCC also supported the concept of user pays and stated that the concept of payment of a licence fee was overdue and would go some way to give celebrants more credibility as a profession.[29]

Thirdly, noting the criticism often levelled at the Attorney-General’s Department (AGD) for its management of the celebrants program, the AFCC looked forward to an improvement in service predicated on direct funding through a fee. Further, it noted that there is an argument that it is ‘improper that the general taxpayer should be burdened by service costs to a profession that, although providing a valuable and much sought after service to the community is commercially based’.[30]

Arguments against the Bills

Many submissions argued the Bills were discriminatory in that they placed different requirements upon civil celebrants to those applying to religious and registry office celebrants. The Coalition of Celebrant Associations[31] suggested consistent criteria for appointment and compliance requirements be applied to all categories of celebrants and that this be enshrined in legislation. The imposition of the annual registration charge was seen as particularly discriminatory by many celebrants and associations. It was noted that while the Commonwealth appointed marriage celebrants were being asked to pay the annual registration fee, the much larger number of recognised religious denomination celebrants, and the state and territory Registry Officers, were not.[32] AGD responded to this saying that as the Department does not regulate state appointed celebrants it has no capacity to impose a cost recovery levy on them.[33]

The amount of the charge was another source of criticism with some submitters claiming it would cause hardship. They argued that Commonwealth-registered celebrants already have more overheads and more staff development obligations than celebrants employed by state and territory registry offices or the recognised religious denominations. They also pointed out that the increased number of celebrant appointments has resulted in celebrants performing on average only seven wedding ceremonies per year, which is five times lower than in 1999. Based on these figures, to cover the introductory $240 registration charge, celebrants who choose to pass on the fees to marrying couples would need to add another $34–$40 to their fee for each of these weddings. If the charge increases to $600 they would need to charge approximately $100 extra per couple. Couples who choose celebrants from the other categories would not be loaded with this extra charge. The submissions therefore claimed the fairest policy would be to spread the cost and to ask all marrying couples to pay, regardless of which category of celebrant they use.[34]

In response to this argument, the AGD’s proposal paper argued that a cost recovery fee on all marrying couples was considered but rejected on the basis that it was unsuitable given that marrying couples are not directly in receipt of the services provided by the Department to marriage celebrants.[35]

AMC also argued that, on its calculations, the fee being charged would be a ‘more than generous’ contribution to cost recovery. Based on the number of celebrants, it calculated that the revenue derived by AGD would be $2.64 million per annum and when the fee rises to the statutory limit of $600 the amount would be $6.6 million. The AMC’s submission also asked what AGD might be doing to control or cut costs or to show what improvements might be made in the celebrant program or what accountability may be provided.[36] AGD, in its submission, responded stating amongst other things that there was no intention to make profit from the charge and a full cost recovery statement would be available on the Department’s website by 30 June 2013.[37]

Some submissions also objected to the proposals in the Bills, arguing that they would remove celebrant’s lifetime appointments and substitute annual appointments by means of an annual registration fee. They argued that annual appointments would create insecurity for celebrants and for marrying Australian couples planning future ceremonies. The annual registration cycle for celebrants would create an unstable, inexperienced and reduced workforce capability.[38] AGD did not agree with this characterisation, saying that providing celebrants comply with the obligations of being a celebrant, they could continue to be celebrants for many years.[39]

Financial implications

The Explanatory Memorandum states that the implementation of fees and charges for celebrants will recover the costs of the Attorney-General‘s Department‘s administration of the program and is not intended to generate revenue. A Cost Recovery Impact Statement will be available on the Attorney-General‘s Department website by 30 June 2014.[40]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the two Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible.[41]

Key issues and provisions

Marriage Amendment (Celebrant Administration and Fees) Bill 2013

Schedule 1

Schedule 1 of the Administration and Fees Bill is divided into four parts:

  • Part 1 sets up the system for the imposition of an annual celebrant registration charge
  • Part 2 provides for a registration application fee for prospective marriage celebrants seeking registration
  • Part 3 provides for a fee for seeking an exemption from annual ongoing professional development obligations and
  • Part 4 sets out the application dates of the various amendments in this Schedule.

Annual celebrant registration charge

Item 3 inserts proposed section 39FA into the Marriage Act and sets out the requirements for an annual celebrant registration charge. Proposed subsection 39FA(1) provides that unless an exemption has been granted, a person is liable to pay a celebrant registration charge[42] to the Commonwealth in respect of a financial year if the person is a registered marriage celebrant on 1 July in that financial year or becomes a marriage celebrant later in that financial year. The charge must be paid by the end of the charge payment day.[43]

Regulations may provide for exemptions from the celebrant registration charge with the grounds of exemption to be specified in the regulations. Regulations may also provide for a fee for an exemption application (proposed subsection 39FA(3)). The grounds for an exemption are likely to include circumstances such as serious illness, incapacity or absence from Australia. It is also intended that eligibility for exemptions be available for celebrants in remote areas.[44]

Comment

The North Queensland Celebrants Networking Group in their submission to the Senate inquiry on the previous Bills was supportive of allowing exemptions for celebrants in remote areas as it would assist remote communities to maintain access to a civil celebrant service. They noted particularly that currently there are many towns hundreds of kilometres from the nearest celebrant and that many celebrants who do live in the areas of the Gulf Country, Torres Strait, or Inland Australia may only do two or three weddings a year, and only charge a low fee (if any).[45]

De-registration of celebrants consequent to non-payment

Proposed section 39FB deals with the consequences of non-payment of the celebrant registration charge and provides for de-registration of a marriage celebrant. Proposed subsection 39FB(1) provides that if a person has not paid the registration charge by the due day, nor obtained an exemption, then the Registrar must send the person a notice advising that de-registration as a celebrant will occur after the day specified in the notice.[46] Item 4 proposes an amendment to section 39J with effect that decisions to deregister a celebrant for non‑payment of the celebrant registration charge may be reviewed by the Administrative Appeals Tribunal.

Comment

AMC, along with many other submissions, argued that deregistration, not on the basis of performance, but because of non-payment is unreasonable. AMC stated that a celebrant’s proven poor professional performance, skills, experience, knowledge and service to the marrying public should be the only justifiable reasons for deregistration.[47]

The AFCC, on the other hand, supported the imposition of punitive measures that are a consequence of non‑payment of the charge, noting that it may go some way to reduce the number of celebrants currently on the register. Its submission stated that AFCC members have expressed their frustration at the lack of a fast and practical mechanism for removal of celebrants who have failed to complete the required yearly ongoing professional development.[48]

Registration application fee

Section 39D of the Marriage Act sets out the technical requirements for registering a marriage celebrant. Amongst other things, the Registrar must be satisfied that the person is entitled to be registered and the person has completed the prescribed application form. Applications must be dealt with in the order they are received. Item 6 of Schedule 1 of the Bill inserts proposed subsections 39D(1A) to 39D(1E) which contain new requirements regarding the payment of a registration application fee. The effect is that an application to become a marriage celebrant is made only when the applicant has either paid the application fee or has been granted an exemption. The fee is to be determined by legislative instrument of the Minister or via regulation.[49] The regulations may also set out rules regarding exemptions, including the grounds for exemption and the amount of any fees required for an exemption application. The regulations made for these purposes may also provide for internal review of a decision to refuse an exemption.[50]

Comment

It is of interest that while most submitters to the Senate inquiry were critical of other aspects of the Bill, there were fewer objections to the imposition of a registration application fee. Many saw it as a way of reducing the amount of program costs being passed on to existing celebrants and also as a way of reducing the number of applicants who, in the words of the AFCC, ‘are not aware of, or who do not acknowledge the commitment and obligations to the role…’.[51]

Exemptions from ongoing professional development

Section 39G of the Marriage Act sets out the obligations of each marriage celebrant and include amongst others a requirement to undertake professional development as required by the regulations. The regulations to the Marriage Act provide that in exceptional circumstances the Registrar of Marriage Celebrants may grant an exemption from completing this professional development.[52] Item 11 inserts proposed subsection 39G(2) into the Marriage Act with the effect of allowing the regulations to require a fee to be paid for an application for such an exemption from professional development. The amount of the fee may be specified in the regulations or determined by a legislative instrument from the Minister.

Schedule 2

The amendments in Schedule 2 of the Administration and Fees Bill are largely technical and consequential. The following are the more significant.

Forms

Part 1 of Schedule 2 is a new Part not contained in the previous Bill and deals with forms required under the Marriage Act. Items 2, 3, 7, 8, 11, 12, 13, 15 and 16 of Schedule 2 have the effect of removing the requirement for certain forms in the Marriage Act to be prescribed by the Regulations or in a prescribed format. To replace these requirements, proposed subsection 119(1) (item 17) provides that the Minister will be able to approve forms for the purposes of the Act. Under proposed subsection 119(3) the Minister will be required to approve forms for specified purposes under the Act, for example forms for official marriage certificates and forms for declarations by parties to marriage.

Removal of the cap-on-appointments provision

Item 19 repeals section 39E which provided for a cap on the numbers of marriage celebrants who could be registered for five years after the passage of the Marriage Amendment Act 2002. The five year transitional arrangement concerning celebrant numbers ceased on 31 August 2008 when the cap ended. The section is therefore redundant.

Comment

While essentially a technical and necessary consequential amendment, many submitters to the Senate inquiry chose to criticise this provision more broadly, suggesting that the removal of the cap had caused many of the current difficulties with the celebrants program. Many suggested that putting a flexible capping regime in place would be a good option. They argued that it would still allow new celebrants to enter the system based upon the ‘best person’ selection criteria and would reduce the cost recovery burden on existing celebrants who are being required to subsidise a system that is not matched to either their needs or the community’s need.[53]

Abolition of five yearly performance reviews

Since the 2003 reforms to the Marriage Celebrant Program, appointment of a marriage celebrant under the Marriage Act is ongoing, subject to satisfactory five yearly performance reviews (section 39H). Item 20 repeals subsections 39H(1) and (2) and substitutes a new subsection 39H(1) with the effect of removing the requirement for the Registrar to conduct performance reviews on all marriage celebrants every five years. Instead new subsection 39H(1) provides that the Registrar may, from time to time, review the performance of a marriage celebrant to determine whether the celebrant’s performance is satisfactory.

Comment

AMC argued that a review, determined only at the discretion of the Registrar, would mean that few celebrants would ever be reviewed. It argued that what is needed is the implementation of an ongoing rigorous review system that genuinely reviews the professional performance, skills and knowledge of each marriage celebrant. ‘Replacing the current five yearly, less than rigorous, reviews with occasional, if any, reviews is not contributing to the professionalism or quality of services provided by marriage celebrants.’[54]

In contrast, the AFCC supported the introduction of performance reviews when necessary rather than at a prescribed period. This move was considered both as a cost saving measure and as an acknowledgement that global, time based regular reviews are ineffective in identifying unsatisfactory performance.[55]

Identity documents

A further amendment provides that a marriage celebrant may use an Australian passport as an additional identity document to establish a marrying party’s place and date of birth (proposed subparagraph 42(1)(b)(iv), item 24 of Schedule 2).

Many submissions commented that this would be a sensible and long overdue amendment.

Marriage (Celebrant Registration Charge) Bill 2014

Clause 3 of the Registration Charge Bill is an objects clause stating that the object of the proposed Act is to impose a charge for the purpose of funding the administration of the Commonwealth Marriage Celebrant Program and for the provision of Commonwealth services to marriage celebrants registered, or seeking registration, under that program.

Clause 6 imposes a celebrant registration charge that a person is liable to pay in respect of a financial year in accordance with new section 39FA of the Marriage Act (referred to above).

Clause 7 provides that the amount of the charge is to be set by the Minister via legislative instrument up to a statutory limit. Different amounts may be set for people who become celebrants after 1 July in the relevant financial year. Clause 8 provides that the statutory limit for the charge for the year commencing 1 July 2014 is to be set at $600. For subsequent years, the figure is to be indexed according to the All Groups Consumer Price Index.

Concluding comments

While the Bills have a narrow focus, the submissions to the Senate inquiry into the previous Bills indicate they aroused strong criticism amongst marriage celebrants, with much of that criticism describing the Bills as discriminating against Commonwealth-registered celebrants.

The 2003 legislative changes to the Marriage Celebrants Program have caused their own set of problems, some of which these Bills are aiming to address. The Government’s stated purpose for the Bills is to introduce cost recovery for the Marriage Celebrants Program. A likely practical impact will also be a reduction in the number of authorised celebrants as some may opt out of the system rather than pay the annual registration charge.

Practically and legally[56] the Commonwealth is unable to impose cost recovery fees on marriage celebrants regulated by the states and territories. However this does not detract from the argument that the proposed imposition of an annual registration charge that applies only to celebrants within the Marriage Celebrants Program and not to celebrants regulated by the states and territories is felt to be inequitable.

 

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.



[1].     Parliament of Australia, ‘Marriage Amendment (Celebrant Administration and Fees) Bill 2013 homepage’ and the ‘Marriage (Celebrant Registration Charge) Bill 2013 homepage’, Australian Parliament website, accessed 21 March 2014.

[2].     Note however the current Bills differ to the previous Bills in the introduction of new arrangements regarding marriage forms so that the majority of existing prescribed marriage forms will become Ministerial approved forms for the purposes of the Marriage Act. See below at p. 10.

[3].     M Neilsen, Marriage Amendment (Celebrant Administration and Fees) Bill 2013 [and] Marriage (Celebrant Registration Charge) Bill 2013, Bills digest, 112, 2012–13, Parliamentary Library, Canberra, 2013, accessed 21 March 2014.

[4].     The Marriage Act 1961, accessed 21 March 2014.

[5].     A separate Bill is required for imposition of the charge as a charge could be construed as imposing a tax and section 55 of the Constitution requires in part that 'Laws imposing taxation shall deal only with the imposition of taxation and any provision therein dealing with any other material shall be of no effect.’

[6].     Like all section 51 powers, the marriage power in section 51(xxi) of the Constitution is not an exclusive federal head of power but is held concurrently with the states.

[7].     For example, Sikhs, Buddhists and World Harvest Ministries.

[8].     Note that the figures for the three celebrant groups are taken from: Attorney-General’s Department, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Marriage Amendment (Celebrant Administration and Fees) Bill 2013 [and] Marriage (Celebrant Registration Charge) Bill 2013, 3 May 2013, accessed 21 March 2014.

[9].     The Coalition of Celebrant Associations is the Attorney-General’s Peak Advisory Body for Commonwealth Celebrants. Coalition of Celebrant Associations, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Marriage Amendment (Celebrant Administration and Fees) Bill 2013 [and] Marriage (Celebrant Registration Charge) Bill 2013, 25 April 2013, accessed 21 March 2014.

[10].  Explanatory Memorandum, Marriage Amendment (Celebrant Administration and Fees) Bill 2014, p. 2, accessed 21 March 2014.

[11].  Australian Bureau of Statistics (ABS), Marriages and Divorces, Australia, 2011, cat. no. 3310.0, ABS, Canberra, 2011, accessed 21 March 2014,

[12].  Further information about the review and subsequent legislation can be found in: M Neilsen, Marriage Amendment Bill 2002, Bills digest, 112, 2001–02, Parliamentary Library, Canberra, 2002, accessed 21 March 2014.

[13].  The register is the mechanism for the appointment and revocation or suspension of all marriage celebrants.

[14].  J Murray, ‘Who can judge a couple’s chances of wedded bliss’, The Australian, 9 November 2000, accessed 21 March 2014; F Stewart, ‘Government meddling is a marriage turn-off’, The Australian, 3 November 2000, accessed 21 March 2014; T Sweetman, ‘No bouquet for marriage initiative’, The Courier Mail, 31 October 2000, accessed 21 March 2014 and S Harris, ‘Making of the marriage minders’, The Advertiser, 10 November 2000, accessed 21 March 2014; quoted in M Neilsen, op. cit., p. 9.

[15].  Coalition of Celebrant Associations, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Marriage Amendment (Celebrant Administration and Fees) Bill 2013 [and] Marriage (Celebrant Registration Charge) Bill 2013, op. cit.

[16].  M Neilsen, Marriage Amendment Bill 2002, op. cit., p. 5.

[17].  Budget paper no. 2 (2011–2012) states: The Government will provide $4.3 million over four years to reform the administration of the Marriage Celebrants Program to improve professional standards and to ensure Marriage Celebrants comply with their legislative obligations. The funding for the measure includes $2.9 million to establish the Marriage Celebrants Program on a full cost recovery basis, which will be met from within the existing resources of the Attorney‑General's Department. The reform will include the introduction of a registration fee for Marriage Celebrants from 2013–14 which will recover the costs of the program, with revenue estimated at $8.2 million over two years: Australian Government, ‘Part 2: Expense measures’, Budget measures: budget paper no. 2: 2011–12, Attorney‑General’s Department, Marriage Celebrants Program – reform, 2011, accessed 21 March 2014.

[18].  Attorney-General’s Department, Marriage Celebrants Program: program improvements through cost recovery, Consultation paper, August 2012, paragraph 2, accessed 21 March 2014.

[19].  Explanatory Memorandum, Marriage Amendment (Celebrant Administration and Fees) Bill 2014, op. cit., p. 3.

[20].  J Frydenberg, ‘Second reading speech: Marriage Amendment (Celebrant Administration and Fees) Bill 2014’, House of Representatives, Debates, 20 March 2014, p. 6, accessed 21 March 2014.

[21].  Senate Legal and Constitutional Affairs Legislation Committee, Marriage Amendment (Celebrant Administration and Fees) Bill 2013 [Provisions]; Marriage (Celebrant Registration Charge) Bill 2013 [Provisions], The Senate, Canberra, 19 June 2013, p. 13, accessed 24 March 2014.

[22].  Ibid., p. 12.

[23].  Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Marriage Amendment (Celebrant Administration and Fees) Bill 2013 [and] Marriage (Celebrant Registration Charge) Bill 2013, March 2013, accessed 21 March 2014.

[24].  Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 5 of 2013, The Senate, Canberra, 15 May 2013, pp. 67-68, accessed 24 March 2014.

[25].  Senate Standing Committee for the Scrutiny of Bills, Seventh report of 2013, The Senate, Canberra, 27 June 2013, p. 341, accessed 24 March 2014.

[26].  Parliamentary Joint Committee on Human Rights, Sixth report of 2013, The Senate, Canberra, May 2013, accessed 21 March 2014.

[27].  The AFCC submission describes the Association as the largest national professional Celebrants Association with 1450 financial members. The submission states that its members are from the more professionally aware sector of authorised celebrants.

[29].  Ibid.

[30].  Ibid.

[31].  Coalition of Celebrant Associations, op. cit.

[32].  The AFCC on the other hand is one of the few submissions that acknowledges that AGD could not impose a charge upon celebrants registered by the states, or employees of the state conducting marriages as part of their position. The AFCC is pleased to note that the application of the charge covers all marriage celebrants including non-aligned religious celebrants, authorised or registered under Part IV, Division 1 Subdivision C.

[33].  Attorney-General’s Department, Submission, op. cit.

[34].  For example see: Coalition of Celebrant Associations, op. cit., and Australian Marriage Celebrants, op. cit.

[35].  Attorney-General’s Department, consultation paper, op. cit., paragraph 3.4.

[36].  Australian Marriage Celebrants, op. cit.

[37].  Attorney-General’s Department, Submission, op. cit. Note the given date for the cost recovery statement for the current Bills is 30 June 2014, Explanatory Memorandum, p. 4.

[38].  Australian Marriage Celebrants, op. cit.

[39].  Attorney-General’s Department, Submission, op. cit.

[40].  Explanatory Memorandum, p. 4.

[41].  The Statement of Compatibility with Human Rights can be found at pages 5–6 of the Explanatory Memorandum to the Administration and Fees Bill and pages 4–5 of the Explanatory Memorandum to the Registration Charge Bill.

[42].  The imposition of the charge requires separate legislation and is to be done through the proposed Marriage (Celebrant Registration Charge) Act 2014 (described below). The amount of the charge is also to be set out in that Act.

[43].  The charge payment day is a day that is at least 30 days after the day on which a notice is sent by the Registrar detailing the charge payment requirements (proposed subparagraph 39FA(2)(a)(ii)).

[44].  Explanatory Memorandum, p. 11.

[46].  The date in the notice must be at least seven days after the day the notice was sent.

[47].  Australian Marriage Celebrants, op. cit.

[48].  Australian Federation of Civil Celebrants, op. cit.

[49].  Note, this is in contrast to the annual celebrant registration charge which is being treated as a charge under section 55 of the Constitution. See footnote 5.

[50].  These decisions will not be reviewable by the AAT.

[51].  Australian Federation of Civil Celebrants, op. cit.

[52].  Subregulation 37M(7) of the Marriage Regulations 1963, accessed 21 March 2014.

[53].  For example: Coalition of Celebrant Associations, op. cit.

[54].  Australian Marriage Celebrants, op. cit.

[55].  Australian Federation of Civil Celebrants, op. cit.

[56].  As noted above the Commonwealth holds the marriage power concurrently with the states (section 51(xxi) of the Constitution). To change the regulatory roles and responsibilities relating to marriage celebrants would require legislative amendments to the Marriage Act and according to the AGD consultation paper, this is not the purpose of these Bills.

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