Ridge and Registrar of Marriage Celebrants [2011] AATA 36 (11 January 2011)

Last Updated: 28 January 2011

Administrative Appeals Tribunal

WRITTEN REASONS FOR DECISION [2011] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2779

GENERAL ADMINISTRATIVE DIVISION		)
	Re		TAMALA RIDGE

Applicant

And

REGISTRAR OF MARRIAGE CELEBRANTS

Respondent

WRITTEN REASONS FOR DECISION

Tribunal

Mr A Sweidan, Senior Member

Date of Decision 11 January 2011

Date of Written Reasons 25 January 2011

Place Perth

At the conclusion of the hearing of this application on 11 January 2011 the terms of the decision intended to be made and the reasons for that decision were stated orally by the Tribunal. On 17 January 2011 the respondent requested the Tribunal to furnish a statement in writing of the Tribunal’s reasons for its decision. The written reasons are attached and are forwarded to the applicant and to the respondent as the reasons for the Tribunal’s decision.

..(sgd) Mr A Sweidan............
Senior Member

KEYWORDS

Marriage celebrants – application for registration made out of time, based on qualification not acceptable under new legislation and not on required form – no discretion to accept late application – decision under review affirmed

LEGISLATION
Marriage Act 1961 s.39
Marriage Regulations 1963 Reg 37G, H and HA

REASONS FOR DECISION

25 January 2011	Mr A Sweidan, Senior Member
BACKGROUND

1. On 3 July 2009 applicant obtained a certificate from Mission Australia stating that the applicant had attained competency in “CDCMCEL401A Plan, conduct and review a marriage ceremony”.
2. On 10 May 2010 the applicant applied to the Respondent for registration as a marriage celebrant.
3. On 10 June 2010 the respondent decided not to register the applicant as a marriage celebrant, on the ground that the respondent was not satisfied that the applicant had the required qualification to be registered as a marriage celebrant. Applicant seeks a review of that decision.
4. Applicants’ application for review states in part: I have three issues to raise for wanting to appeal the decision made not to accept my Registration to become a Marriage Celebrant:

4.1 That I was never informed that there was a cut off date;

4.2 That I have valid and proven medical reasons for taking so long to hand in my registration; and

4.3 That I have paid $650.00, completed my Certificate IV in Marriage Celebrancy and because of my medical reasons – my Application for Registration should be assessed under the previous regulations (Prior to 3 February 2010) regardless of the cut off date.

LEGISLATION

5. At the time the applicant applied for registration Section 39C(1) of the Marriage Act 1961 (the Act) provided:

(1) A person is only entitled to be registered as a marriage celebrant if the person is an individual and the Registrar of Marriage Celebrants is satisfied that the person:

(a) is aged 18 years or over; and

(b) has all the qualifications, and/or skills, determined in writing to be necessary by the Registrar in accordance with regulations made for the purposes of this paragraph; and

(c) is a fit and proper person to be a marriage celebrant.

6. Section 39D of the Act relevantly provided:

(1) A person may apply to be registered as a marriage celebrant by giving the Registrar of Marriage Celebrants:

(a) a completed application in the form specified by regulations made for the purposes of this paragraph; and

(b) any statutory declarations required by the form.

...

(4) The Registrar must register a person as a marriage celebrant if:

(a) the person has applied in accordance with subsection (1); and

(b) the Registrar is satisfied that the person is entitled to be registered as a marriage celebrant.

The Registrar must not register a person as a marriage celebrant in any other circumstances.

7. Section 120 of the Act relevantly provided:

The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular:

(a) prescribing the forms to be used under this Act;

...

(c) prescribing the manner of making application for registration under Division 1 of Part IV;

8. The Marriage Regulations 1963 (the Regulations) relevantly provided:

37G Qualifications and skills required for registration as a marriage celebrant (Act s 39C)

(1) For paragraph 39C (1) (b) of the Act, the determination must require the person to have:

(a) either:

(i) a celebrancy qualification (however described) from a university, mentioned in the determination, that includes all the units the Registrar determines to be necessary for registration as a marriage celebrant and are provided in accordance with the requirements mentioned in subregulation (2); or

(ii) a Certificate IV in Celebrancy, awarded by a registered training organisation, that includes all the units the Registrar determines to be necessary for registration as a marriage celebrant and are provided in accordance with the requirements mentioned in subregulation (2); or

...

(2) For paragraph (1) (a), the requirements are as follows:

(a) each unit must be delivered by a marriage celebrant having the qualifications, skills, training and experience as a marriage celebrant that the Registrar determines;

(b) each unit must not be delivered by a marriage celebrant against whom the Registrar is taking or has taken any disciplinary measure mentioned in section 39I (2) of the Act during the period that the Registrar determines;

(c) each unit must include all the materials that the Registrar determines must be used in the unit.

37H Application for registration as a marriage celebrant — Form 12A (Act s 39D (1))

For paragraph 39D (1) (a) of the Act, an application for registration as a marriage celebrant must be in accordance with Form 12A.

37HA Application for registration as a marriage celebrant — due date (Act, s 120)

For paragraph 120 (c) of the Act, an application for registration as a marriage celebrant that relies on a qualification mentioned in paragraph 37G (2) (a), (c) or (d) must be given to the Registrar of Marriage Celebrants before 3 February 2010.

Note   The application must be a completed application — see subsection 39D (1) of the Act.

ISSUE

9. The issue is whether the applicant should be registered as a marriage celebrant.

TRIBUNAL’S FINDINGS

10. The respondent must register the applicant only if both of the following two conditions apply (see s 39D(4)):

10.1 the applicant has applied for registration in accordance with s 39D(1); and

10.2 the respondent (and hence the Tribunal) is satisfied that the applicant is entitled to be registered as a marriage celebrant.

11. For the reasons set out below the Tribunal finds that neither of the conditions are met.

APPLICATION IN ACCORDANCE WITH S 39D(1)

12. The applicant did not apply for registration in accordance with s 39D(1), because she did not give the respondent a completed application in the form specified by the Regulations. Regulation 37H required the applicant to complete Form 12A, provided at Schedule 1 of the Regulations, which in Part B (a) "Qualifications" requires the marriage celebrant applicant who relies on a qualification mentioned in paragraph 37G (1)(a) of the Regulations to tick either the celebrancy qualification from a university or the Certificate IV in Celebrancy. The applicant's application, at T13, is a different form (it is an earlier version of Form 12A) Having applied after 3 February 2010, the Regulations required the applicant to give the respondent the Form 12A applicable as and from that date.
13. Section 39D(4)(a) of the Act, read with regulation 37H, does not provide any discretion to allow the respondent to accept an application in a different form.

ENTITLED TO BE REGISTERED

14. A person is only entitled to be registered as a marriage celebrant if the respondent is satisfied in relation to the matters listed at s 39C(1), relevantly:

14.1 that the person has all the qualifications determined in writing to be necessary by the Registrar in accordance with the Regulations.

15. On or about 10 May 2010 - that is, after 3 February 2010 - the applicant gave the respondent her application for registration as a marriage celebrant. The qualification the applicant relied on was CHCMCEL401A Plan, conduct and review a marriage ceremony, which met the requirements of paragraph 37G(2)(d) of the Regulations as in force prior to 3 February 2010, but not from and after that date.
16. The Marriage Amendment Regulations 2009 (No. 1) amended the Regulations for the following purpose:

... to prescribe a new qualification, the Certificate IV in Celebrancy, as the minimum training qualification required for registration as a Commonwealth registered marriage celebrant from 3 February 2010. (Explanatory Statement, Marriage Amendment Regulations 2009 (No. 1), 26 November 2010)

17. The applicant's qualification does not answer the description of either of the required qualifications that r 37G(1)(a)(i) or (ii) of the Regulations required under the Determination as and from 3 February 2010. The Determination in place at the time the applicant applied for registration provided, at ss 4(b) and (e), for those qualifications. The applicant gained competency in a unit of study that falls short of the relevant requirements at the time she applied.
18. It is clear that the applicant had to lodge her application by 3 February 2010 to be able to rely on the qualifications she had obtained.
19. She failed to do this as she only applied on 10 May 2010.
20. The Tribunal therefore cannot be satisfied that the applicant has all the qualifications determined in writing to be necessary in accordance with the Regulations applicable at the time she applied.
21. While the Tribunal sympathises with the applicant neither the Act nor the Regulations provide any discretion to the Registrar or the Tribunal to register a person in these circumstances.

DECISION

22. As neither of the necessary conditions at s 39D(4) are met by the applicant, the decision under review must be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: ..(sgd) P Hayward.......................

Associate

Date/s of Hearing 11 January 2011

Date of Decision 11 January 2011

Date of Written Reasons 25 January 2011

Applicant’s Representative Self - represented

Respondent’s Representative Mr P MacLiver

Australian Government Solicitor