CHAPTER 2


CHAPTER 2

KEY ISSUES

2.1        Most submitters to the committee's inquiry expressed strong opposition to the bills and, in doing so, supported the views and recommendations made in the Coalition of Celebrant Associations' (CoCA) submission. CoCA is the peak representative body for marriage celebrant associations in Australia.

2.2        Some of the issues raised in submissions and evidence included:

  • the perceived 'discriminatory' imposition of a registration charge on Commonwealth-registered marriage celebrants, and not on other categories of authorised marriage celebrants;
  • objections to the amount of the registration charge; and
  • opposition to deregistration as the sanction for non-payment of the registration charge.

Imposition of charge on Commonwealth-registered marriage celebrants only

2.3        Most submitters commented on the apparent differential treatment of Commonwealth-registered marriage celebrants, compared to other persons authorised to solemnise marriages in Australia, by the imposition of the registration charge on that category of authorised celebrants only. CoCA argued that, by not applying to all categories of authorised celebrants, the bills:

...impose unfair conditions upon which [Commonwealth-registered celebrants'] services can be terminated upon specific grounds not applicable to other categories of [authorised celebrants] even though all three categories provide the same government approved service of legal marriage to the Australian community[.][1]

2.4        Both CoCA and the Civil Celebrants' Graduate Association (Monash) (CCGA) questioned the equity in requiring only Commonwealth-registered marriage celebrants to contribute to cost recovery. CoCA submitted that, since the Attorney‑General's Department (Department) provides services to all authorised celebrants, as well as members of the public, Commonwealth-registered marriage celebrants alone should not be funding those government services.[2] CCGA similarly considered it 'unfair' to target only one category of authorised celebrant.[3]

2.5        Several submitters argued that costs should be recovered directly from all marrying couples, rather than the person conducting the marriage ceremony.[4] CoCA took the view that this would, among other things, be a fairer and more effective method of cost recovery, and would allow for the Marriage Law and Celebrants Section in the Department to be funded by all persons using its services, not just Commonwealth-registered marriage celebrants.[5]

2.6        This view was not, however, shared by all submitters and witnesses. For example, the North Queensland Celebrants Networking Group supported the creation and imposition of the registration charge on Commonwealth‑registered marriage celebrants only.[6]

2.7        Similarly, the Australian Federation of Civil Celebrants (AFCC) submitted that the proposals in the bills:

  • are a practical and equitable way to reduce the number of registered celebrants;
  • are consistent with the principle of 'user pays'; and
  • will fund improved services to celebrants by the Department.[7]

2.8        At the public hearing, Mr Alan Milson from the AFCC elaborated on these arguments:

Celebrants do operate as a commercial venture and are paid for their services...[I]t should not be the general taxpayer that pays for the maintenance of a register and the other necessary management of the celebrant program but those that financially benefit from the existence of the program...[T]he reality is that celebrants are the commercial beneficiary of the program and should be the point of payment.[8]

Departmental response

2.9        With respect to the proposal to recover costs directly from Commonwealth‑registered marriage celebrants, the Department advised that various options for cost recovery had been considered; however, the option of recovering costs from marrying couples is not consistent with the Australian Government's cost recovery principles.[9] The Cost Recovery Guidelines provide that '(u)sers of the Australian Government's information products being cost recovered or individuals/groups that have created the need for regulation should pay cost recovery charges'.[10]

2.10       The Department confirmed that the end‑users of the Marriage Celebrants Program administered by the Department are the Commonwealth-registered marriage celebrants from whom costs will be recovered. Further, the other two categories of authorised celebrants are not part of the cost recovery model because they do not receive the same support and benefits from the Marriage Celebrants Program:

...significant legislative, policy and administrative amendments [would be required] to recover a fee from a new class of people that [is] currently not subject to significant interaction with the department.[11]

Amount of the registration charge

2.11      A number of submitters expressed concern with the proposed amount of the registration charge: $240, commencing 1 July 2013. Many submitters described how they expect the amount of the registration charge will affect their personal circumstances.

2.12      CoCA explained that those celebrants with 'other employment or private resources' will be able to afford the registration charge. However, those more likely not to be able to afford the charge would include:

  • longer-term celebrants who mentor newer celebrants,
  • more experienced celebrants who have caring responsibilities for partners, parents or grand-children,
  • full-time civil celebrants who like religious celebrants provide a range of other ceremonies, particularly civil funeral ceremonies.[12]

2.13      CoCA argued that the impost of the charge will result in a diminution of the expertise and experience of large numbers of Commonwealth-registered marriage celebrants:

The standard of the profession overall will be diminished by the loss of this knowledge and expertise, simply on the basis of a crude cutting numbers measure by the government.[13]

2.14      On the other hand, Mr Milson from the AFCC expressed the view that $240 is a small sum over a 12-month period:

[T]he fee will professionalise the conception of, 'I have got to put this amount of costs into this business, or into this profession, to be able to make a return'. That will adjust the hobbyist out of the profession and also possibly increase costs to an acceptable level.[14]

Departmental response

2.15      A departmental representative acknowledged the concern of stakeholders regarding the capacity of some celebrants to pay the $240 registration charge. The Department explained that there has been an attempt to address this concern, by costing the charge based on 'what celebrants really want from the [D]epartment' and by providing for exemptions from payment:

[T]he key thing from the [D]epartment's perspective is to demonstrate the value that [the Department] would provide in response to that fee paid by the celebrants. That is something that is coming up in the future, if the legislation is passed on 1 July.[15]

2.16      The submission from the Department noted that the costing arrangements will be reviewed at least every five years. In this regard, the Department has undertaken to review the costing model before 1 July 2016, in consultation with stakeholders.[16]

2.17      In response to the suggestion by some submitters and witnesses that the Marriage Act should provide for a cap on the number of registered celebrants, or some form of capping mechanism to reduce the number of marriage celebrants, the Department explained that such proposals would not be a viable or efficient way to manage celebrant numbers and ensure professionalism within the industry:

Experience with the 2003-08 'cap' on new registrations...indicates that the cap did not dissuade people from applying to become a celebrant, but rather led to extensive waiting lists for aspiring celebrants who ultimately became registered before the cap expired (due to the increase in the cap in 2006) or at its expiry in 2008. A regional appointment process is also incongruous with the ability of marriage celebrants to marry couples anywhere in Australia once registered.[17]

De-registration as a consequence of not paying the registration charge

2.18      A large number of submitters expressed concern with the proposed consequences of non‑payment of the registration charge, with two arguments featuring prominently in submissions: first, registered celebrants are authorised for life;[18] and, second, deregistration at short notice could adversely affect marrying couples.[19]

2.19      At the public hearing, Mr Milson from the AFCC informed the committee that he did not consider that registration as a celebrant is a 'life time appointment'; he also expressed the view that registered celebrants are 'authorised to perform marriages, not appointed to a position, and that authorisation is a privilege not a right'.[20]

2.20      Further:

[Any argument that deregistration will be detrimental to the marrying public] is unfounded as [the AFCC] cannot envisage any situation where a celebrant who has consciously agreed to book and prepare for a wedding with the intention of not paying the fee would be registered.[21]

2.21      Many submitters objected also to deregistration as a consequence of not having paid the registration charge, rather than deregistration being due to below-par professional performance.[22]

2.22      In CoCA's view:

[T]here is absolutely no justification for the government to remove the right to continue to practice as a [celebrant] if one continues to be a [f]it and [p]roper [p]erson simply on the basis of the non‑payment of an annual fee.

Removing ongoing lifetime appointments (by removing 5 yearly reviews of performance) [and replacing that] with annual appointment based upon ability to pay a fee (rather than poor performance):

  • has serious and unnecessary consequences for the marrying public,
  • is a disproportionally harsh consequence for the non-payment of [a] fee,
  • is discriminatory in its being only applicable to one [c]ategory of [authorised] [c]elebrant[.][23]

2.23      Mr Milson from the AFCC, however, did not agree:

[D]eregistration as a result of non-payment is an uncomplicated, low-cost and less time-consuming procedure to remove non-practising or noncompliant entities and is...a method of retaining the contemporaneousness of the register.[24]

Departmental response

2.24      The Department confirmed that registration as a marriage celebrant does not equate to a 'lifetime appointment', and emphasised that registration is subject to compliance with certain obligations:

[A] celebrant who does not meet these obligations can be deregistered...The introduction of an annual cost recovery charge imposes a new obligation upon celebrants (similar to existing obligations to undertake annual ongoing professional development, acting in a fit and proper manner and updating the Registrar of Marriage Celebrants of any change in their circumstances).[25]

2.25      The Department explained that the concerns of marriage celebrants in relation to 'accidental deregistration' have been addressed:

  • by allowing ample opportunity for registered celebrants to pay the registration charge (30 days, but 60 days during the first two years of enactment);[26] and
  • by foreshadowing, and raising awareness of, the potential introduction of the registration charge.[27]

Committee view

2.26      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.

2.27      In the circumstances, therefore, the committee does not consider the amount of the proposed charge to be unreasonable or excessive. The committee notes advice from the Department that the amount of $240 has been costed after taking into account the concerns of stakeholders (as expressed during the 2011 consultation process), balanced with the objective of providing improved services under the Marriage Celebrants Program. The committee also understands that the costing model will be reviewed before 1 July 2016.

2.28      In relation to de-registration as a consequence of non-payment of the charge, the committee agrees that such an approach is an 'uncomplicated, low-cost' procedure that will remove any non-practising or non-compliant celebrants from the register to assist in reducing the number of marriage celebrants in Australia. The committee considers that payment of the charge is a condition of being authorised to solemnise marriages in Australia as a marriage celebrant, and one with which a celebrant must comply if they wish to continue to solemnise marriages – in the same way that other professions and industries are regulated and required to pay registration fees as a condition of providing their services to the public.  

2.29      Accordingly, the committee concludes that the bills should be passed.

Recommendation 1

2.30      The committee recommends that the Marriage Amendment (Celebrant Administration and Fees) Bill 2013 and the Marriage (Celebrant Registration Charge) Bill 2013 be passed.

 

Senator Trish Crossin
Chair

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