Bills Digest No. 112 2001-02
Marriage Amendment Bill 2002
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.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Marriage
Amendment Bill 2002
Date Introduced:
14 February 2002
House: House
of Representatives
Portfolio: Attorney-General
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.
Purpose
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 denominations(1)
-
- 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 Australia(6)
- 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 celebrant's
role
- 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 celebrants,
and
- there is no formal procedure for the review of any celebrant's practice.(7)
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.
Appointment
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 reviews.
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 removed.(10)
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 marriages
- 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 Celebrants.(11)
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 environment.(12)
Training
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 competencies.
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
breakdown.(19)
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 counselling
role.
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 marriage celebrants.
Financial impact
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.
Item 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 marriage celebrants.
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 39B).
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 regulation,
and
- 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 of marriages
- 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 interests
- would be likely to gain a benefit in respect of another business that
they own or carry out if registered as a marriage celebrant
- will fulfil their obligations under section 39G to abide by a Code
of Practice, and undertake professional development activities,
- will notify the Registrar of any change in their details that would
affect their ability to be registered as a celebrant, and
- 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 39D(7)).
Registered marriage celebrants may solemnise marriages
anywhere in Australia (proposed section 39F).
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 must:
- comply with the prescribed Code of Practice for celebrants
- undertake professional development as required by the regulations,
and
- notify the Registrar in writing of any necessary changes to the register.
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 subsection
39H(3)).
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 review.
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 review
- 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 subsection 39I(1)).
The disciplinary measures the Registrar may take are
to:
- caution the marriage celebrant in writing
- require the celebrant to undertake professional development activities
- suspend the marriage celebrants registration for up to 6 months, or
- deregister the marriage celebrant (proposed subsection 39I(2)).
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 be revoked.(22)
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 Marriage Act.
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 regulation.
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 Austrade employees.
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 intrusive.(24)
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 regulation.
- 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, p. 1.
- 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 in Melbourne.
- 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 will
include:
- 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 2000.
- 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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ISSN 1328-8091
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