Lim and The Registrar of Marriage Celebrants' [2011] AATA 74 (1 February 2011)

Last Updated: 10 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2414

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PASTOR KIAN LIM

Applicant

And

THE REGISTRAR OF MARRIAGE CELEBRANTS’

Respondent

DECISION

Tribunal

Mr Egon Fice, Senior Member

Date 1 February 2011

Place Melbourne

Decision

For reasons given orally at the hearing, the Tribunal affirms the decision under review.

...........[sgd] Egon Fice...............
Senior Member

MARRIAGE CELEBRANTS – registration as a marriage celebrant – qualifications – regulations prior to 3 February 2010 – not qualified in accordance with regulations

Acts Interpretation Act 1901 s 25C

Marriage Act 1961 ss 39C, 39J

Marriage Amendment Regulations 2009 (Number 1)

Marriage Regulations 1963 - 37G, 37H

REASONS FOR DECISION

10 February 2011

Mr Egon Fice, Senior Member

1. Pastor Kian Lim is a pastor with the Chinese Christian Church of Victoria. On 19 April 2010 Pastor Lim lodged an application with the Registrar of Marriage Celebrants’ (the Registrar) seeking registration as a Marriage Celebrant. In a letter dated 25 May 2010, the Registrar informed Pastor Lim that he was not entitled to be registered as a Marriage Celebrant. This was because he did not meet the qualifications and/or skills requirements set out in the Marriage Regulations 1963 (the Regulations).
2. Pastor Lim sought review of the Registrar’s decision pursuant to s 39J of the Marriage Act 1961 (the Act).
3. I heard this matter on 1 February 2011 and I found that the Registrar’s decision was correct. I provided Pastor Lim with oral reasons for that decision. Pastor Lim requested that I provide my reasons for decision in writing and these are those reasons.

REQUIRED QUALIFICATION

4. The entitlement of a person to be registered as a Marriage Celebrant is provided for in s 39C of the Act. Insofar as it is relevant to Pastor Lim’s application, it provides:

39C Entitlement to be registered as a marriage celebrant
(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. ...

5. The only issue in respect of Pastor Lim’s application is the requirements set out in s 39C(1)(b). Regulation 37G sets out the qualifications and skills required for registration as a Marriage Celebrant. The regulation provides:

37G Qualifications and skills required for registration as a marriage celebrant (Act s 39C)
(1) For paragraph 39C (1) (b) of the Act, a person must have:
(a) at least 1 of the qualifications mentioned in subregulation (2); or
(b) all the skills mentioned in subregulation (3).

(2) For paragraph (1) (a), the qualifications are as follows:
(a) a certificate (however described) awarded by a university, showing successful completion of a course conducted by the university that includes the marriage celebrancy unit;
(b) a Certificate IV in Marriage Celebrancy awarded by a registered training organisation;
(c) a Statement of Attainment in the marriage celebrancy unit awarded by a registered training organisation;
(d) a written assessment given by a qualified assessor, showing attainment of competency in the marriage celebrancy unit.

(3) For paragraph (1) (b), the skills are as follows:
(a) fluency in an indigenous language;
(b) ability to liaise with clients and, if appropriate, the indigenous community in planning a marriage ceremony;
(c) ability to conduct a marriage ceremony, and to register a marriage, as required under the Act (including completing the required documentation);
(d) ability to communicate effectively.

(4) In this regulation:
qualified assessor means a person who:
(a) holds a qualification at or above the Certificate IV level in Assessment and Workplace Training to conduct assessments for the marriage celebrancy unit; and
(b) in relation to an assessment that includes an assessment of a course of training previously undertaken by the person assessed — is not employed by, and is not conducting the assessment on behalf of, an organisation that conducted the course of training.

In essence, the qualifications required for registration as a Marriage Celebrant are either a qualification from a University or a Certificate IV in celebrancy awarded by a registered training organisation.

6. However, Regulation 37G was amended by the Marriage Amendment Regulations 2009 (Number 1). The form of the regulation set out above, was set out in Schedule 2 to the Marriage Amendment Regulations 2009 (Number 1) which commenced on 3 February 2010. Prior to that date, Regulation 37G referred to the qualifications and skills required for registration under s 39C which included the following:

(d) a Statement of Attainment in Marriage Celebrancy Unit awarded by a registered training organisation before 1 January 2010; ...

7. The qualification set out in (d) above was deleted upon the commencement of the amended s 37G on 3 February 2010.

PASTOR LIM’S QUALIFICATION

8. On his application form, which in fact was a form which applied to the Regulations prior to their amendment in February 2010, Pastor Lim recorded, under the qualifications and skill requirements, that he had obtained a Statement of Attainment in the Marriage Celebrancy Unit awarded by a registered training organisation.
9. In his oral evidence, Pastor Lim confirmed that he was awarded a single unit of training (CHCMCEL401A-Plan, conduct and review a marriage ceremony) on 14 May 2009. While that qualification would have met the qualifications and skill requirement set out in Regulation 37G prior to 3 February 2010, after that date, it was inadequate. Because Pastor Lim’s application was received by the Registrar on 19 April 2010, it is clear that he did not, at that time, meet the qualifications and skill requirements set out Regulation 37G. It necessarily follows that Pastor Lim did not satisfy s 39C(1)(b) of the Act, in that he did not have the qualifications determined in writing to be necessary by the Registrar in accordance with regulations made for the purposes of establishing a persons entitlement to be registered as a Marriage Celebrant. Therefore, I find that Pastor Lim was not entitled to be registered as a Marriage Celebrant as a consequence of lodging his application on 19 April 2010.
10. Pastor Lim submitted that when he registered for the unit which he completed with a registered training organisation, he was not informed by the institution that provided the course, nor the Registrar, about any changes which might occur in the law in the near future. He submitted that due to his busy ministry works, he was away from Australia from December 2009 to January 2010 and was unable to lodge his application before the commencement of the amended regulation.
11. While I readily accept that Pastor Lim has found himself in a most unfortunate situation where, due to personal commitments, he did not lodge his application following completion of the then required marriage celebrancy unit, whether Pastor Lim was notified of proposed amendments to the registration qualifications or whether he was aware of them when he lodged his application is, from a legal perspective, simply irrelevant. Section 39C of the Act makes it clear that a person is only entitled to be registered as a Marriage Celebrant if he satisfies the Registrar of, amongst other things, the qualifications and/or skills which he has attained. There is no provision for any discretion whatsoever. The Registrar was compelled by law to reject Pastor Lim’s application.
12. Although the Registrar also submitted that, in any event, Pastor Lim’s application was not made on Form 12A as is required by Regulation 37H, and I suggested in the course of the hearing that strict compliance with forms may not be required (see s 25C of the Acts Interpretation Act 1901), I need not address that matter as it is irrelevant given my finding above.

CONCLUSION

13. Unfortunately for Pastor Lim, although he obtained the requisite qualification for registration as a Marriage Celebrant prescribed by the Regulations prior to their amendment in February 2010, when he lodged his application for registration, the qualification which he obtained had been removed from the Regulations by an amendment which came into effect on 3 February 2010. Therefore, at the date of his application being made for registration as a Marriage Celebrant, Pastor Lim was not qualified in accordance with Regulations made by the Registrar for that purpose. Accordingly, the Registrar could not register Pastor Lim as a Marriage Celebrant. The Registrar’s decision was correct and I affirm that decision.
    

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Senior Member

Signed: .........[sgd] Elise Montalto.........................................

Associate

Date of Hearing 1 February 2011

Date of Decision 1 February 2011

Date of Written Reasons 10 February 2011

Counsel for the Applicant Self Represented

Solicitor for the Respondent Ms Irene Sekler, Australian Government Solicitor