CHAPTER 1
INTRODUCTION
1.1
On 20 March 2013, the Marriage Amendment (Celebrant Administration and
Fees) Bill 2013 (Administration and Fees Bill) and the Marriage (Celebrant
Registration Charge) Bill 2013 (Charge Bill) were introduced into the House of
Representatives by the Attorney-General, the Hon Mark Dreyfus QC MP.[1]
On 21 March 2013, the Senate referred the provisions of both
bills to the Senate Legal and Constitutional Affairs Legislation Committee
(committee) for inquiry and report by 18 June 2013.[2]
Purpose of the bills
1.2
All persons who solemnise marriages in Australia must be authorised
under Division 1 of Part IV of the Marriage Act 1961 (Cth) (Marriage
Act). That Division establishes three categories of authorised celebrants:
- ministers of religion of a recognised denomination, proclaimed
under section 26 of the Marriage Act, who are nominated by their
denomination and who are registered and regulated by state and territory
Registries of Births, Deaths and Marriages (Subdivision A);
- state and territory officers who are authorised to perform
marriages as part of their duties, and who are registered and regulated by
state and territory Registries of Births, Deaths and Marriages (Subdivision B);
and
- Commonwealth-registered marriage celebrants (celebrants) who are
regulated under the Marriage Celebrants Program administered by the Attorney‑General's
Department (Department) (Subdivision C). This group includes civil celebrants,
and celebrants who are ministers of religion whose denomination is not
proclaimed under section 26 of the Marriage Act.
1.3
The bills seek to implement a 2011-12 Budget measure, to introduce cost
recovery for the third category only from 1 July 2013.[3]
Previous consultations on measures contained in the bills
1.4
In 2011 and 2012, the Department conducted two public consultations on
the cost recovery measure announced in the 2011‑12 Budget. The peak
representative body for celebrants, the Coalition of Celebrant Associations
(CoCA), was involved in both the 2011 consultation and the 2012 consultation.
2011 consultation
1.5
In late 2011, the Department consulted publicly on the introduction of
an annual registration fee (2011 consultation). Seventeen face‑to‑face
meetings were held nationally throughout October and November 2011, and over 280
written submissions were received by December 2011 in response to a call for
submissions.[4]
1.6
The Department reported the key issues arising from the 2011 consultation,
and advised that these matters would be considered by the Department as it
developed the reform.[5]
As part of its report, the Department also outlined the key stages of the
reform, which included the release of a consultation paper in mid-late 2012 to
allow interested stakeholders a further opportunity to comment on the proposals.[6]
2012 consultation
1.7
In August 2012, the Marriage Celebrants Program, Program Improvements
through Cost Recovery consultation paper was released (consultation paper),
with the Department calling for submissions by 24 September 2012 (2012
consultation). The paper detailed the proposed cost recovery arrangements,
as well as proposed key changes to the Marriage Celebrants Program. The
Department explained the dual purpose of the reform:
While cost recovery will form an integral part of the Program
once implemented, the Department is also determined to provide improved
services and value for money to Commonwealth‑registered marriage
celebrants. The benefits of proper regulation of the Program will also flow on
to marrying couples as the end users of an improved Program.[7]
1.8
The consultation paper acknowledged the significant feedback received from
stakeholders during the 2011 consultation, particularly in relation to the
charging structure and proposed improvement to services:
[T]he Department has considered ways to improve its service
delivery to, and regulation of, marriage celebrants. It engaged an external consultant
to cost this service delivery and regulation and formulate a charging structure
that would prove reasonable, as well as reflect value for money for celebrants.
A 'bottom up' methodology was used to cost the charging structure, involving a
detailed analysis of the celebrant population and the relevant steps in each
proposed [process] with improved efficiencies.[8]
1.9
The Department advised in August 2012 that the following charges would apply
to the Marriage Celebrants Program from 1 July 2013:
- a $600 fee for persons applying for registration as a celebrant
(application fee);
- an annual charge of $240 for registered celebrants (registration
charge); and
- a $30 processing fee for applications for exemption from either
the application fee or the registration charge (processing fee).[9]
1.10
The consultation paper noted the proposition that the registration
charge could be based on a sliding scale. However, 'the Department considered
the principles of fairness and equity in how it delivers services to celebrants'
and concluded that a flat fee ought to be charged:
[T]he Department carefully considered the argument that many
celebrants perform few weddings and should therefore be subject to a lower
charge. To do so under a cost recovery arrangement, the Department would be
required to demonstrate that it more actively regulates those celebrants that
perform more marriages. Given that it can also be argued that those celebrants
who perform more weddings may require less regulatory effort from the
Department, a sliding charge is unsuitable.[10]
1.11
The consultation paper indicated also that exemptions from payment
would be available to celebrants operating in remote, very remote or migratory
areas (as defined by the Australian Bureau of Statistics' Remoteness Structure
classifications), and those celebrants affected by 'special circumstances'.[11]
A brief description of what might constitute 'special circumstances' was
provided in the consultation paper:
'Special circumstances' are beyond the celebrant's control in
situations which a reasonable person would consider is not due to the
celebrant's action or inaction, either direct or indirect, and for which the
celebrant is not responsible. The situation must be unusual, uncommon or
abnormal to celebrants and the profession generally. It might include serious
ill health at a level that renders the marriage celebrant unable to perform
their duties as a marriage celebrant, family issues or extended periods of
leave.[12]
1.12
As in the 2011 consultation, the Department outlined the next stages of
the reform, including the development of a Cost Recovery Impact Statement (CRIS).
The CRIS is intended to reflect the outcomes of the two consultations and will
be made available on the Department's website by 30 June 2013.[13]
1.13
The Department advised that 72 submissions were received in relation to
the 2012 consultation, leading to two meetings with CoCA to discuss the
proposed changes.[14]
Key provisions of the bills
1.14
The key provisions of the two bills are described below.
Administration and Fees Bill
1.15
The Administration and Fees Bill seeks to amend the Marriage Act to:
- create the registration charge (proposed new subsection 39FA(1),
item 3 of Schedule 1), and provide for the deregistration of celebrants who do
not pay the charge, or who are not exempted from paying the charge, by the
charge payment day (proposed new section 39FB, item 3 of Schedule 1);
- allow for the imposition, by way of regulations, of the application
fee (proposed new subsection 39D(1B), item 6 of Schedule 1);
-
provide for exemptions from payment, by way of regulations
(proposed new paragraphs 39FA(3)(a) and 39D(1C)(a), items 3 and 6 of Schedule
1), and allow for the imposition of the processing fee (proposed new paragraphs
39FA(3)(b) and 39D(1C)(b), items 3 and 6 of Schedule 1);
- change the requirements relating to performance reviews of
celebrants (proposed new subsection 39H(1), item 2 of Schedule 2), to repeal
the requirement for five‑yearly reviews and instead institute
discretionary and targeted reviews by the Registrar of Marriage Celebrants; and
- increase the efficiency and operation of the Marriage Celebrants
Program (Part 1 of Schedule 2).[15]
Charge Bill
1.16
The Charge Bill seeks to provide legislative authority for the Commonwealth
to charge celebrants an annual cost recovery levy.[16]
The key provisions of this bill:
- impose the registration charge each financial year in accordance
with proposed new section 39FA of the Marriage Act (clause 6);
- provide that the amount of the registration charge is to be determined
by the Attorney-General, by legislative instrument, and is not to exceed the
statutory limit (subclause 7(1)); and
- sets a statutory limit of $600 on the registration charge for the
financial year commencing 1 July 2013, to be indexed annually in accordance
with the Consumer Price Index (subclause 8(1)).[17]
Conduct of the inquiry
1.17
The committee advertised the inquiry in The Australian on 27
March 2013. Details of the inquiry, including links to the bills and associated
documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon.
The committee also wrote to 26 organisations and individuals, inviting
submissions by 26 April 2013. Submissions continued to be accepted after that
date.
1.18
The committee received 113 submissions and a number of form letters for
this inquiry, which are listed at Appendix 1. All submissions and some examples
of the form letters were published on the committee’s website.
1.19
The committee held a public hearing on 24 May 2013 at Parliament House
in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2,
and the Hansard transcript is available through the committee's website.
Acknowledgement
1.20
The committee thanks those organisations and individuals who made
submissions and who gave evidence at the public hearing.
Note on references
1.21
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
transcript.
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