MARRIAGE AMENDMENT BILL 2002 Explanatory Memorandum

MARRIAGE AMENDMENT BILL 2002

2002





THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA







HOUSE OF REPRESENTATIVES







MARRIAGE AMENDMENT BILL 2002







EXPLANATORY MEMORANDUM





(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)



TABLE OF CONTENTS

Page

General Outline 1

Financial Impact Statement 2

Regulation Impact on Business 2

Regulation Impact Statement 3

Consultation Statement 16

Notes on Clauses 17

Schedule 1 18

Schedule 2 25

MARRIAGE AMENDMENT BILL 2002

GENERAL OUTLINE

The primary purpose of the Marriage Amendment Bill 2002 (‘the Bill’) is to give effect to the Government’s commitment to reform the Marriage Act 1961 (‘the Act’) as it relates to the Marriage Celebrants Program operated under subsection 39(2) of the Act. The Bill is the result of a four year consultative process.

The Marriage Celebrants Program was established in 1973 to provide marrying couples who did not want to have a religious ceremony with a dignified and meaningful alternative to a registry office wedding. When the program was launched, approximately one couple in six chose a civil marriage ceremony. Today, over half of all marriage ceremonies within Australia are non-religious ceremonies. The vast bulk of these weddings are performed by civil marriage celebrants and the number of weddings they are performing is increasing each year as both religious and registry office weddings decline in number. The original program was designed to operate on a relatively small scale with limited numbers. There are now almost 1700 civil marriage celebrants and a similar number of religious marriage celebrants appointed under the program. Reform of the program to better cope with its rapid expansion is now necessary.

In relation to marriage celebrants currently appointed under section 39(2) of the Act, the principal provisions of the Bill have the following effect:

• introduction of a revised basis of appointment for new marriage celebrants based upon satisfaction of core competencies primarily by attendance at appropriate training courses and a detailed fit and proper person test;

• appointments remain on a lifetime basis, subject to regular reviews of performance;

• there is a transition period of 5 years to allow staged introduction of the revised basis of appointment;

• a statutory appointment as the Registrar of Marriage Celebrants is created with employment to come under the Public Service Act 1999;

• a public register of marriage celebrants is created that will be accessible from the internet;

• the standard of marriage celebrancy services is raised by introducing ongoing professional development requirements;

• power to create a more effective and transparent complaints handling mechanism is introduced;

• most refusals to register an applicant, revocation of authorisation or suspension of celebrants are subject to merits review by the Administrative Appeals Tribunal; and

• a legislated code of practice is introduced.

In relation to sections of the Act, other than those concerning marriage celebrants, the principal provisions of the Bill have the following effect:

• the Notice of Intended Marriage is amended to make processes in relation to the form more flexible. In particular, notaries public will now be able to witness the Notice overseas. Currently only certain Australian qualified professionals and Australian Consular Officials are able to witness a Notice that is signed overseas. This process has a negative impact on overseas persons wishing to marry in Australia;

• overseas passports are an acceptable form of identification for couples as well as birth certificates;

• there is power in the regulations to provide guidance to authorities charged with permitting the shortening of time between when a Notice of Intended Marriage must be lodged and when a couple are able to marry;

• persons authorised to permit the shortening of time between when a Notice of Intended Marriage must be lodged and when a couple are able to marry no longer have to be justices of the peace or marriage celebrants; and

• Divisions 1 and 2 of Part V of the Act are removed. These divisions allow for marriages to be performed overseas essentially by Australia Consular Officials but have not been used since 1993.

FINANCIAL IMPACT STATEMENT

The additional regulatory functions to be carried out by the Attorney-General’s Department will involve greater administrative costs. The additional cost is estimated at approximately $320,000 per annum. There will be additional funding provided to the Attorney-General’s Department to meet these costs.

REGULATION IMPACT ON BUSINESS

There will be some additional costs for marriage celebrants to undergo initial training and ongoing professional development. These costs are not expected to be great. Otherwise the regulation impact on business will be low. A Regulation Impact Statement follows.

REGULATION IMPACT STATEMENT

Background

The Marriage Celebrant Program was established to provide marrying couples who did not want to have a religious ceremony with a dignified and meaningful alternative to a registry wedding.

When the Program was launched in 1973 less than two per cent of couples chose a civil marriage. Today, over half of all marriage ceremonies within Australia are conducted by civil marriage celebrants.

The growing demand for civil ceremonies has resulted in a steady increase in the numbers of authorised civil marriage celebrants, and an even greater increase in interest in the profession of celebrancy, with enquiries from people wishing to become a marriage celebrant running at approximately 3,000 per year.

However, since the Program commenced, the process for authorising civil marriage celebrants has developed in an ad hoc way.

In 1997, the current Government replaced the appointment by electorate system of authorisation with one based on regional or special community need. The needs based system has two aims: first, to ensure that marrying couples have a choice between civil marriage celebrants and second, to ensure the availability of celebrancy services to meet the special needs of particular groups, such as people from ethnic and cultural communities, or people with disabilities.

However, the current system remains far from perfect. Authorisation based on regional or special need excludes many people who would make excellent celebrants from entering the profession. Furthermore, there is a perception that the current system does not encourage celebrants to convey fully the intention of the Marriage Act that marriage should be understood and appreciated as a solemn and binding union for life. Finally, both celebrants and marrying couples alike are concerned that not all celebrants provide services of an equally high standard.

A review of the Marriage Celebrant Program commenced in 1997 and a Proposals Paper outlining a number of proposals for legal, administrative and organisational reform to address these issues was released in November 2000. This Regulation Impact Statement reflects the final proposals considered in light of comments received during the consultation process.

A number of recommendations were put forward in the Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, To Have and to Hold, regarding a number of miscellaneous amendments to the Marriage Act. Those recommended amendments are being looked at parallel to this process, however, wider reform to the Act falls outside of the scope of this Regulation Impact Statement, which focuses on the marriage celebrant aspects only.

Problem Identification

Problem - the need for reform

The Government’s extensive review of the Marriage Celebrant Program has identified a number of defects in the existing system that applies to civil, non-aligned religious and special need marriage celebrants who are authorised by the Attorney-General under the current system of meeting the “fit and proper person” test set out in subsection 39(2) of the Marriage Act.

In terms of issues affecting celebrants, the review has revealed that:

• many people who would make good marriage celebrants are unable to be authorised as celebrants;

• the role of celebrants lacks clear definition and guidance;

• a significant percentage of celebrants do not fully understand both the legal and administrative requirements of marriage celebrancy; and

• there is a lack of standardised training.

In terms of issues affecting marrying couples, the review revealed that:

• marrying couples are concerned by a lack of information about what they can and should expect from a celebrant;

• the absence of formal performance reviews has allowed a broad range of abilities to persist among celebrants; and

• in some instances, ceremonies conducted by celebrants have not met the reasonable expectations of marrying couples.

Finally, in terms of government priorities, a careful examination of the Program has revealed 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, but there are barriers that often discourage this;

• not all celebrants provide services that meet minimum community expectations; and

• the current system of authorisation results in a number of categories of celebrants, creating confusion for marrying couples and requiring complex administration arrangements.

Specification of the desired objective(s)

To achieve the goal of reforming the Marriage Celebrants Program, three key objectives are required.

First, opening the doors to marriage celebrancy to a greater number of appropriate applicants will enable talented and dedicated members of the community to influence and continue to improve the style, content and dynamism of celebrancy.

Second, a commitment to broadening and enhancing the role of celebrants to include the promotion of pre-marriage and other relationship services will assist in building stronger and healthier family relationships.

Thirdly, a commitment to elevating the overall standard of professional celebrancy services will ensure that all marrying couples receive celebrant services, which meet their reasonable expectations.

To achieve the desired goals it is necessary to amend the governing regulations to encompass the following points:

• amend the current system of authorising celebrants on the basis of regional or community need to a revised basis of appointment;

• introduce skills and formal training requirements for marriage celebrants;

• modify the current “fit and proper person” standard to ensure that celebrants possess a range of characteristics appropriate to marriage celebrancy; and

• establish a system of ongoing quality assurance through a system of ongoing professional development and review to ensure continuing high standards.

Identification of options

Four options are considered in this RIS:

Option 1: Maintain the status quo

This option would involve no change to the current arrangements.

Option 2: Self-regulation

Under this option, celebrants would be encouraged to set their own standards of service and to develop and introduce a quality assurance mechanism to deal with complaints and to maintain skills and abilities with a requirement that these systems be adopted nationally and checked against a self-audit scheme.

Option 3: Reform the Program as described in the Proposals Paper – Reform to the Marriage Celebrants Program, November 2000

Introduce the reforms to the Program as described in the Proposals Paper – Reform to the Marriage Celebrants Program, November 2000. The reforms open the market to competition, subject to meeting minimum quality standards, to ensure marrying couples, irrespective of where they live, have access to marriage celebrants who are professional and responsive, who provide high quality services and who respect and promote the ideals of marriage in Australia.

Existing celebrants would be required to demonstrate they also meet the required skills and abilities. Those existing celebrants that do not demonstrate they meet the standard within 2 years of commencement of the reforms would have their authorisation revoked. All celebrants would be limited to fixed terms of authorisation and renewal, in addition to regular review of practice.

Option 4: Reform the Program with revisions consistent with stakeholder feedback

The modified reforms are based on those described in the Proposals Paper – Reform to the Marriage Celebrant Program, November 2000. A number of the proposals have been modified to reflect the outcomes of an extensive consultation process with the inclusion of a more gradual transition phase.

Under this option, marriage celebrant authorisation would be amended to a revised basis of appointment. A requirement for ongoing professional development would be introduced. A “rigorous fit and proper person” standard would be required to ensure that all celebrants possess a range of characteristics appropriate to marriage celebrancy. A system of review would ensure continuing high standards.

Existing celebrants would be automatically accredited, but subject to the ongoing professional development and other requirements. Entry into the market would be capped for the first 5 years to provide a more gradual transition process and give those existing celebrants, who consider they need it, an opportunity to develop their skills to the higher minimum standard required.

Assessment of Impacts (Costs and Benefits) of each option

Impact group identification

The groups likely to be affected by the reforms include:

• marriage celebrants;

• marrying couples;

• training providers;

• wedding organisers;

• the general community; and

• Government.

Option 1 – maintain the status quo

Marriage Celebrants

This option would have no effect on existing marriage celebrants. However, hopeful celebrants may continue to be excluded from the market. Under the current system celebrants are appointed in accordance with an assessment of community and special needs. Population growth is the main basis for appointing new celebrants. Many suitable applicants are unable to gain places because the current system of authorisation based on perceived regional or special need excludes people who do not live within the relevant regions from entering the profession.

Marrying Couples

This option limits marrying couples in choice of celebrant. Marrying couples have advised their concern about a lack of information about what they can and should expect from a celebrant. The absence of formal performance reviews has allowed a broad range of abilities to persist among celebrants. In some limited cases, ceremonies conducted by celebrants have not met the reasonable expectations of marrying couples. There is no system in place for properly dealing with complaints and celebrants are not, under the current system, required to meet a set of minimum standards.

The demographic of celebrants authorised under the current Program does not reflect the age demographic of the general community. At present, some 70% of celebrants are aged 55 years or older. This contrasts with the general population where 21% are over 55 years of age.

The current Program does little to encourage people to participate in marriage and relationship education programs. Studies have shown that marriage and relationship education and skills programs can contribute to stronger positive relationships, better health, quality of life and productivity in the workplace, as well as better communication and conflict management skills. By helping to build stronger relationships, the Government can seek to minimise relationship breakdowns to the benefit of couples and the broader community.

In 1997, as part of the Marriage and Relationship Education community awareness campaign, the Attorney-General's Department (Family Services Branch) commissioned Donovan Research to conduct national qualitative and quantitative research into prevailing attitudes towards marriage and relationship education.

The research identified some barriers preventing people from considering and participating in marriage or relationship education, despite its clear benefits. Barriers included social stigma or embarrassment, perceptions about the affordability of services and a view that relationship education was unnecessary. Lack of awareness of the services and their benefits was found to be one of the most significant barriers.

Training Providers

This option has no impact on the 2 existing training providers. The current system in part restricts accredited training authorities from entering the market because there is no nationally accredited training program for marriage celebrants. The Australian National Training Authority has identified a gap in training for marriage celebrants.

Wedding Organisers

This option has no impact on existing wedding organisers.

Government

Administratively, the Program lacks accountability in terms of management and there is no mechanism in place to ensure that all celebrants provide services to a minimum standard.

Community

It is considered that the Government and community benefits are aligned. The policy outcomes impact on the community. The costs of divorce are borne by the community via the tax and transfer system.

Marriage celebrants currently have access to information about pre-marriage and family relationship counselling and although they are encouraged by Government to alert marrying couples to the availability of these services, there is no requirement for marriage celebrants to have a comprehensive knowledge of or to refer couples to such services.

Option 2 - self-regulation regime

Self-regulation could operate by way of a statutory board with representatives from the celebrant community and the wider family relationships sector (such as representatives from bodies with a charter for relationship education). As a first step, the board could be established and be under the direction of the Attorney-General. With the passage of time, it could move to a position where marriage celebrants were fully self-regulated, being responsible for maintaining a register of celebrants in accordance with the statutory criteria, standard setting, complaints and disciplinary matters, and peer reviews of celebrants.

Self-regulation works well where there is a professional group, which is cohesive, adheres to a set of common goals and has been established for a considerable period of time.

This option would have a varying affect on individual celebrants. Concerns were raised during consultations that individuals required more information about a self-regulating body, how it would work and its membership. There was also a perception that the formation of such a body may be too self-interested. The majority of those consulted indicated a preference for the Attorney-General’s Department, or other government body, to retain overall control of standards. It was reported that the Program, being an important legal function, should not be outsourced to a self-governing body. Marriage celebrants are not currently governed by a national or state/territory wide peak body that could readily undertake this task.

Given the time for which marriage celebrancy has been in operation, the self-regulation option is not considered feasible. It is something to be pursued as a medium term goal.

Option 3 - introduce the original reforms to the Program

Marriage Celebrants

Under this option, marriage celebrants and their related associations would be required to adhere to the original reform proposals.

Role of celebrants

This proposal involves a strengthened requirement for celebrants to support the Government’s Stronger Families and Communities Strategy, by requiring celebrants to provide couples with information on pre-marriage and other relationship skills courses.

Marriage celebrants are well placed to provide this information service to marrying couples because they have ready access to the information, occupy a key position in the community and most importantly, under the reform proposals, have a responsibility toward the value of marriage and therefore act as a guide to couples in preparing for the marriage relationship

This proposal will impose only minor costs on celebrants in terms of becoming familiar with material, and the time taken in distributing and discussing it. In encouraging and assisting couples to consider fully the implications of their decision to marry, celebrants will be playing an important role in enabling the community to build and strengthen itself by capitalising on the benefits of this policy.

Revised basis of appointment

It is proposed to replace the system of authorisation based on regional or community need, which has operated since 1997, with a revised basis of appointment. The proposed system would allow any applicant who has reached a sufficiently high standard of professional practice to be authorised, subject to the fit and proper person criteria.

This change in approach would potentially see the authorisation of a greater number of celebrants. It will mainly benefit potential new celebrants, as it will provide greater opportunities to enter the market. Greater competition may provide incentives for improved standards among celebrants, which may add to demand for celebrant services overall.

This proposal could have a negative impact on some existing celebrants because there may be greater competition from newly authorised celebrants who have demonstrated their knowledge and skills through the completion of a formal training course. Couples will have a greater choice of celebrant as opposed to the current system where numbers of celebrants are restricted in specific geographic areas. This may lead to couples choosing a newly appointed celebrant on the basis of qualification over an existing celebrant on the basis of experience or length of service.

Some existing celebrants may choose to exit the market rather than complete the ongoing professional development requirements. This is expected to occur for some older celebrants and for those performing occasional services where the effort of maintaining their professional development is likely to outweigh the income from providing the service.

Celebrants residing in rural or remote communities will still be required to meet the minimum requirements for training and ongoing professional development utilising distance education services. There would be no provision for cases of hardship as it is considered that all celebrants should be providing equally high standards of professional service.

Formal training

It is proposed that marriage celebrants’ meet minimum competency standards in the core area of the knowledge a celebrant needs to solemnise marriage. This covers knowledge of the Marriage Act 1961 and the Marriage Regulations; ceremony preparation, structure and management skills; knowledge and understanding of family relationships and support services; and office and administrative skills.

Celebrants would have to meet the costs of attaining the required competencies. Current training available to celebrants in Australia costs between $1,200 and $6,000. By ensuring minimum quality standards apply in the industry it is expected that this requirement will have a positive impact on demand for training services which will expand the market and thus reduce costs for training.

Authorisation is proposed to replace the current system of appointment based on perceived need by instituting a fixed period of authorisation for both new and existing celebrants. Celebrants would be authorised for an initial period of 3 years with subsequent authorisation for a period of 5 years.

The benefit of this approach is that all celebrants, existing and new, will have the same level of training and periods of authorisation. The negative impact is that it does not take account of the expertise or experience of existing celebrants. To this extent, there is a lack of recognition of the skills possessed by existing celebrants in terms of practical experience.

Marrying Couples

The main direct benefits for marrying couples will come from the greater accessibility and choice available under the new system. Improved quality assurance safeguards should also ensure couples obtain the high level of service expected of the profession.

While complaints are few, the introduction of a formal complaints mechanism will ensure couples receive restitution, where appropriate, in the event that their choice of celebrant fails to provide the appropriate level of service.

Couples could derive substantial long-term benefits if the reforms encourage more couples to participate in marriage and relationship education and skills programs. These programs can contribute to stronger positive relationships, better health, quality of life and productivity in the workplace, as well as better communication and conflict management skills^. It could help couples avoid the significant financial and emotional costs associated with relationship breakdown^[1].

The introduction of quality assurance measures is likely to have an impact on the price of celebrant services to cover the costs of training and ongoing professional development.

Training Providers

Potential new training providers will gain more opportunity to enter the celebrancy training market. Courses could be delivered on campus or through distance education, thus expanding the market to those individuals not residing in metropolitan Australia. Existing providers would face competition, but these reforms are not expected to have a negative impact as the current providers deliver a high standard of education that meet, or could be modified to meet, the proposed competency standards.

Wedding Organisers

Without the introduction of a conflict of interest criterion, there is no restriction on separating the interests of wedding organisers and celebrants. During consultations with interested parties, celebrants were vocal about the need for a conflict of interest provision, particularly in terms of having a stake in a wedding house or wedding organiser business.

Government

The reforms will provide for a Program, which is administratively easier. In that sense, there should be some savings for the government over a period of time.

The new training and review system will be of similar or greater cost than the current system. However, the benefits to be gained come from having a more structured system that provides a consistent decision-making base.

By introducing a system of independent review of decisions of the Department will improve the quality and predictability of management decisions affecting the Program.

Option 4 – introduce revised reforms to the Program

Marriage Celebrants

This option will have the similar long term impact as option 3, but the benefits of competition would be delayed by the introduction of a five year transition period in which the number of new celebrants would be capped. In the short term there are considerable uncertainties about the number of new entrants into the market and the impact this may have on existing celebrants. By capping the number of new entrants over the first five years of the program it will allow for a smoother transition to the new arrangements. This would mostly benefit existing players by giving them time to adapt to the new requirements. New entrants will continue to be disadvantaged by the restrictions on entry.

Authorisation

Under this proposal authorisation would be ongoing rather than for a fixed term. Celebrants would be subject to the review process discussed in option 3 so that authorisation could be revoked in cases where celebrants were found to be performing unsatisfactorily, either because complaints were raised or the celebrant had failed to keep up with their ongoing professional development requirements.

The option will see some impost of costs on celebrants in terms of formal training and ongoing professional development requirements. However, on balance, it is considered that these costs will result in a more professional and adaptable sector better able to respond to community demands.

Marrying Couples

As with option 3 this option would have a positive impact on marrying couples by providing an opportunity for couples to choose from a wider, appropriately qualified range of celebrants. Couples could be confident that the selected celebrant is committed to assisting to build stronger and healthier family relationships and who have a thorough understanding and knowledge of the Marriage Act 1961. Couples would be assured of receiving celebrant services, which meet minimum quality standards that are in line with the community’s reasonable expectations.

Training Providers

Training providers would be afforded the opportunity to develop and deliver an accredited course based on established competencies, which, in turn, will return a financial profit. Courses could be delivered on campus or through distance education, thus opening the market to those individuals not residing in metropolitan Australia.

The transitional arrangements will provide an opportunity to continue to develop the formal training course during the 5 year capped period for celebrant authorisations. At the end of the 5 year capped period, training will become more competitive which will expand the training market.

Wedding Organisers

The introduction of formal training requirements proposed under the modified reforms will make it much more difficult for wedding organisers to capture the market. Celebrants will be unable to have an interest in other wedding related business as proposed by the conflict of interest reform.

On the other hand, these wedding organisers will have a wider range of appropriately experienced or qualified celebrants for referral to clients.

Wedding organisers may be able to provide an expert screening function for clients by ensuring they set high quality standards through referring clients to a choice of professional celebrants.

Wedding organisers, like their clients, should benefit from competition, as they will have a larger number of appropriately qualified celebrants to choose from.

This option has the potential to offer the wedding organiser an assurance that any complaint submitted by a marrying couple, will not reflect on the wedding organiser business, as the celebrant function remains separate from other wedding details.

Government

This option gives strength to the Government’s existing move towards greater accountability, the revised basis of appointment policy and most importantly demonstrates further the commitment to building stronger and healthier relationships and communities.

With the social impact and costs to the community of family breakdown being estimated at $3-6 billion^[2], cost effective measures aimed at assisting families to develop better relationships should be encouraged. These reforms will provide a platform for marriage celebrants to play a bigger role in providing information to couples about the availability of educational programs.

Consultation

In 1997, the Federal Attorney-General, the Hon Daryl Williams AM QC MP, initiated a process to identify and address issues affecting celebrants and the delivery of civil marriage services. This was the first major examination of the program undertaken in 25 years.

It has comprised of a number of stages including:

• the identification and exploration of key issues;

• examination of client need;

• extensive stakeholder consultation including analysis of the 864 responses and submissions to the Civil Marriage Celebrant Program Discussion Paper issued in October 1997;

• a survey of 800 couples married during February 1998;

• meetings with the State and Territory Registrars of Births, Deaths and Marriages;

• a national conference attended by 350 celebrants held in July 1998 to address quality issues in the program and to reinforce the importance of promoting marriage and relationship education and other family support services to couples entering their first or subsequent marriages; and

• consultation with all marriage celebrants in November 1999 on the contents of three documents: the role, duties and responsibilities of civil marriage celebrants; a code of practice for celebrants; and advertising guidelines for celebrants.

The development of the proposed reforms has involved extensive consultations on key issues including:

• training;

• registration and quality measures;

• the appointment period, entry requirements for celebrants; and

• involvement of celebrants in promotion of and referral to relationship support services.

Since the review process began, officers from the Attorney-General’s Department have met formally with groups of celebrants on numerous occasions to provide an opportunity for further discussion and clarification of issues.

In November 2000 a proposals paper was publicly released with copies being sent to all marriage celebrants in Australia as well as to numerous community groups and government organisations which had an interest in the program. The Department received more than 1,200 responses to the proposals paper.

As a direct result of the consultation process a number of the original proposals have been modified to take into account the views expressed by the parties affected by the proposals. This includes some reconsideration of the most effective way to achieve the desired outcome of certain proposals.

The proposal to open the market to competition raised concern from celebrants. They argued that it would not resolve the inequitable spread of celebrants across Australia. It was perceived that increased competition would have a negative effect on standards of services and that it would make the service uneconomical for individual celebrants. There was also concern that a revised basis of appointment system would flood the market.

However, the Department does not expect there to be a flood of celebrants into the market because the conditions for appointment are being raised/increased. All potential celebrants would be required to undertake formal training and all celebrants, existing and new, would be required to undertake ongoing professional development. Some existing celebrants may choose to exit the market rather than complete the ongoing professional development requirements. This is expected to occur for some older celebrants and for those performing occasional services where the effort of maintaining their qualifications is likely to outweigh the income from providing the service. It is expected that these requirements would effectively keep numbers of applicants at an acceptable level.

Some existing celebrants objected to the requirement to undertake ongoing professional development for various reasons, including that there will be a cost attached, and some may consider retiring from the sector.

The Australian National Training Authority (ANTA) required the Community Services Training Package, developed by Community Services and Health Training Australia Ltd (CSHTA), to be reviewed by July 2001.

Amongst other things, the review process included a scoping study to identify any gaps in availability of units of competency and/or qualifications. Training for marriage celebrants was identified as a gap in this instance.

Option 3 and 4 discuss proposals to address the lack of formal training for marriage celebrants.

The second most contentious proposal was the introduction of fixed periods of authorisation. Existing celebrants considered that a continuation of the lifetime appointment with the introduction of a formal complaints mechanism was sufficient. Concern was also expressed that to revoke the current lifetime authorisation would disadvantage existing celebrants who had gained expertise in celebrancy over the course of their authorisation. On balance, it was considered an appropriate compromise that existing celebrants receive recognition for their experience through the lifting of the most contentious part of the proposal.

The proposal has since been modified to remove the fixed term appointment for both existing and new celebrants but retain the 5 year review proposal. That is, authorisation would be ongoing unless the celebrant was unsatisfactorily reviewed or circumstances arose that necessitated revocation of authorisation.

Some concern was expressed about the regular review of celebrancy practice, particularly in terms of uncertainty and resource burden.

The proposal has been modified so that it is more streamlined and less resource intensive. A formal review would occur every 5 years and would only take place more often for celebrants about whose performance is in doubt. The proposal would, in part, be introduced to work together with the complaints mechanism in determining levels of satisfactory performance.

Some concern was expressed about the transitional arrangements relating to the process for achieving requisite standards of skill and ability to maintain authorisation.

As in the modified proposal for lifetime authorisation discussed above, changes have been made to this proposal so that existing celebrants would retain their lifetime appointment status and there would be no requirement to demonstrate that they reach the requisite standard of performance. Existing celebrants would still be subject to ongoing professional development requirements.

Concern was expressed about the proposal to establish a self-governing body for marriage celebrants, which would have responsibility for the authorisation and service of all celebrants. There was criticism that such a body may be too self-interested and also that the current arrangement whereby 13 separate associations purport to represent the sector, would make it difficult to self-regulate with any degree of consistency and confidence.

The revised proposal has taken account of the preference for the Attorney-General’s Department, or other Government body, to retain overall control of standards. It is considered that it would be in the best interests of the sector to postpone self-regulation until such time as a stable, widely accepted, national representative body provides a ready basis for national regulation. The revised proposal would incorporate the appointment of a Registrar of Celebrants within the Attorney-General’s Department who would make appointments of celebrants on the basis of satisfactory training and meeting the statutorily defined fit and proper person criteria.

The final proposal attracting criticism was the introduction of a processing and/or registration fee. Concerns were expressed that any such fee would be passed to the consumer, that some celebrants officiate at lower numbers of weddings, and that many country based celebrants charge less for weddings that their city counterparts.

Taking account of these concerns resulted in a further option concerning fees which was that celebrants pay an annual fee for authorisation using a sliding scale based upon the number of weddings performed.

In order to ensure that celebrants were not disadvantaged by the impost of fees, it was proposed that the Registrar of Celebrants would have the power to waive the fee in cases of demonstrated hardship.

The Bill does not include provision for celebrants to pay an annual fee for authorisation. After careful consideration it was concluded that the cost to authorised celebrants and the resulting cost to marrying couples of such a fee as well as the administrative cost to collect the fee outweigh any advantages of a fee.

Members of the Attorney-General’s office and Department have since met with all major groups representing celebrants across Australia to conduct in-depth discussions about the reform proposals. Those discussions have been positive with celebrants expressing general support for the government’s objectives.

Conclusion and Recommended Options

Option 4 is the preferred option.

Option 4 will revise the basis of appointment so that persons who meet certain skill requirements and statutorily defined fit and proper person criteria would be appointed notwithstanding the number of celebrants who might be in any given geographic area. Celebrants would be subject to ongoing scrutiny through 5 yearly review but would be appointed on a lifetime basis. These changes may lead to an increase in the number of celebrants, particularly over the longer term, as more training programs become available.

The revised system proposed in this option eliminates the ad hoc and subjective nature of the previous system of appointment and introduces a system of administrative law protection with greater transparency and accountability.

Implementation and Review

Option 4 will be implemented progressively following the Government’s endorsement of legislative amendment. As a first step, the implementation of a revised basis of appointment for celebrants will occur through a transition period. For the next 5 years, appointments will be based upon satisfying core competency standards through the system of accreditation operating in vocational education and training. In addition, persons will have to satisfy the fit and proper person criteria to which will be added a criteria that celebrants must avoid a conflict of interest.

There will be a ceiling of 10% per annum of new appointments on a State by State basis with a metropolitan and rural region in each State except Tasmania. The ACT and the Northern Territory will form one region each. Appointments will be made by a Registrar of Celebrants appointed from within the Attorney-General’s Department. There will be a very limited special needs category retained for unique situations.

Appointments will be made on a lifetime basis but there will be 5 yearly reviews of celebrants’ performance. For celebrants about whom there are documented concerns that do not warrant revocation, reviews will occur more frequently.

Reviews will occur on the basis of a consideration of any complaints received concerning a celebrant, satisfaction of the code of practice and of requirements for ongoing professional celebrant development. All celebrants, existing and new, will be required to undertake ongoing professional development but existing celebrants will not be required to demonstrate that they satisfy the new core competencies.

The core competencies will be based upon such competencies developed by celebrants in 1995 with revision based upon recent consultations with celebrants. These competencies will also guide the content of the ongoing professional development requirements.

Revocation of authorisation will only take place after a celebrant has failed to perform in accordance with the above requirements and any such decision will be subject to review by the Administrative Appeals Tribunal.

The Department will develop a new mechanism for complaint handling. Celebrants will have a right to be advised of the complaint against them and a right to put whatever material they think appropriate to the Department before a final decision on any sanctions is made. Possible sanctions will include a requirement that further professional development be undertaken; the suspension of a celebrant, and the revocation of authorisation as a last resort.

The Code of Practice will be modified with an emphasis on ensuring that each marrying couple receives a level of service, which meets their individual requirements.

Celebrants will also be legislatively required to abide by the Code of Practice that has an emphasis on the ethical and professional standards expected of all marriage celebrants. A marriage celebrant must recognise the social, cultural and legal significance of marriage and the marriage ceremony in the Australian community and the importance of strong and respectful family relationships.

Reforms to the Marriage Celebrants Program will be reviewed following 18 months of introduction. The review process will evaluate the effectiveness of the 10% ceiling placed on new appointments, which will, if necessary, be amended accordingly during the five year transitional phase.

A provision will be built into the review strategy to allow for ongoing modification to any aspect of the revised reforms, in terms of administrative processes, as required.

CONSULTATION STATEMENT

Celebrants appointed under the current Marriage Celebrants Program, marrying couples and community groups have been consulted on the proposed reforms contained in this Bill. In addition, the following Government departments were consulted – Prime Minister and Cabinet; Treasury; Finance and Administration, Education, Training and Youth Affairs; Family and Community Services; Immigration and Multicultural Affairs; Transport and Regional Services; and Office of Regulation Review.

NOTES ON CLAUSES

Clause 1 – Short title

1. Clause 1 will provide that the Act may be cited as the Marriage Amendment Act 2002.

Clause 2 – Commencement

2. Clause 2 of the Bill will provide for the commencement of the Act. That clause generally provides that the Act will commence on a day or days to be fixed by proclamation.

3. Subclause 2(1) provides that sections 1, 2 and 3 commence when the Act receives Royal Assent. The items of Schedule 1 commence on a day or days to be fixed by proclamation but if the items have not commenced within 12 months of the day the Bill receives Royal Assent the Bill will automatically commence the day after that 12 month period (subclause 2(3)). The reason why such an extended time is required for Schedule 1 of the Bill to come into force is that there will be a need to develop the core competencies and associated training for new celebrants and provide time for registered training organisations to commence such training. This will occur under the auspices of the Australian National Training Authority.

4. In addition there are a number of clauses in Schedule 1 where significant regulations will need to be developed before those provisions can be effective. For example, the details of the new complaints mechanism will be contained in regulations. It is the Government’s intention that this new mechanism will be developed in close consultation with marriage celebrants and therefore may take some time to finalise.

5. Schedule 2 of the Bill will contain a number of miscellaneous amendments. Subclause 2(1) provides that except for item 15 of Schedule 2 the other items of this schedule commence 28 days after Royal Assent has been given to the Bill. Item 15 will commence on a day to be fixed by proclamation and if it has not commenced within 6 months after the day on which the Act receives Royal Assent it will commence automatically on the day after the end of that period (subclause 2(4)). Item 15 requires regulations to be made for its provisions to be of any effect.

Clause 3 – Schedule(s)

6. Clause 3 of the Bill will provide that each Act specified in a Schedule will be amended or repealed as set out in the applicable items in the Schedule. Clause 3 of the Bill will also provide that any other item in a Schedule has effect according to its terms.

SCHEDULE 1 – MARRIAGE CELEBRANTS

Part 1 – Amendments

Marriage Act 1961

Item 1 – Subsection 5(1) (definition of authorised celebrant)

7. Currently, the Act provides that marriages can be performed by: (i) celebrants from recognised denominations (Division 1 of Part IV); (ii) State Registrars of Births, Deaths and Marriages and certain other State and Territory officers operating under those Registrars (subsection 39(1) and 39(2)); and (iii) celebrants appointed under the fit and proper person criteria in subsection 39(2) of the Act.

8. Subsection 39(2) of the Act provides a virtually unlimited discretion for the Minister to authorise persons to solemnize marriages save and except that they must be “fit and proper” persons. Currently, there are three categories of such celebrants: (i) civil marriage celebrants, (ii) religious celebrants who do not belong to recognised denominations; and (iii) celebrants appointed to deal with special community needs. These celebrants comprise the Marriage Celebrants Program.

9. This Bill separates and clarifies the categories of all persons who are authorised celebrants under the Act. Item 1 defines the 3 categories of authorised celebrants. The first category comprises ministers of religion, who are dealt with in sections 25 to 38 of the Act. These provisions will become Subdivision A of Division 1 of Part IV. These provisions are not otherwise amended. The second category comprises State Registrars of Births, Deaths and Marriages and certain officers operating under those Registrars, who are currently dealt with in section 39 of the Act. These provisions now become Subdivision B of Division 1 of Part IV. The third category comprises those marriage celebrants set out in paragraph 8 above. The new provisions dealing with these celebrants will be dealt with by the new Subdivision C of Division 1 of Part IV.

Item 2 – Subsection 5(1)

10. Item 2 defines a marriage celebrant as a person registered under Subdivision C of Division 1 of Part IV. See notes under Item 18.

Item 3 – Paragraph 9(1)(f)

11. This amendment is consequential to the creation of Subdivision A of Division 1 of Part IV. Paragraph 9(1)(f) enables officers of States to be appointed as Registrars and Deputy Registrars of Ministers of Religion for that State. These appointments were dealt with under what was Division 1 of Part IV. The effect of this amendment is to ensure this subsection refers to the new Subdivision A.

Item 4 – Division 1 of Part IV (heading)

12. This Item repeals the previous heading for Division 1 of Part IV, being Authorization of Ministers of Religion and other Persons as Celebrants, and inserts a new heading of Authorised Celebrants. This Division contains 3 Subdivisions which each deal with a subcategory of authorised celebrants – namely ministers of religion, state and territory officers and marriage celebrants. These Subdivisions reflect the new regime of 3 separate categories of authorised celebrants described above in paragraph 9.

Division 1 – Authorised celebrants

Subdivision A – Ministers of religion

Item 5 – Before section 25

13. This is the heading for the new Subdivision A of Division1 of Part IV.

Item 6 – Subsections 25(1) and (2)

Item 7 – Subsections 27(1) and (4)

Item 8 – Subsections 28(3) and (4)

Items 9 – Sections 29, 30 and 31

Item 10 – Section 32

Item 11 – Subsection 33(1)

Item 12 – Subsections 34(1) and (5)

Item 13 – Subsection 35(1)

Item 14 – Sections 37 and 38

14. These items replace “Division” with “Subdivision” in the sections referred to. These amendments reflect the new Subdivisions of the Act dealing with the 3 categories of authorised celebrants.

Subdivision B – State and Territory officers etc.

Item 15 – After section 38

15. This is the heading for the new Subdivision B of Division 1 of Part IV.

Item 16 – Subsection 39(2)

16. Subsection 39(2) of the Act currently provides a virtually unlimited discretion for the Minister to authorise persons to solemnize marriages save and except that they must be “fit and proper” persons. Currently, there are three categories of such celebrants: (i) civil marriage celebrants, (ii) religious celebrants who do not belong to recognised denominations; and (iii) celebrants appointed to deal with special community needs. These celebrants comprise the Marriage Celebrants Program.

17. There is currently no mechanism in place to ensure that all celebrants provide services of an equally high standard. Section 39(2) provides that “the Minister may, by instrument in writing, authorise....other fit and proper persons to solemnize marriages”. This provision appears to have been inserted in the Act to cover exceptional cases but has been used as the basis for the whole Marriage Celebrants Program. Celebrants authorised under this provision are not subject to the restraints in other sections of the Act, which control the activities of celebrants who belong to recognised religious denominations.

18. To address these difficulties, the Bill provides that marriage celebrants will be subject to defined “fit and proper person” criteria. Accordingly, this criterion is being removed from subsection 39(2) of the Act. A new fit and proper person test is set out in the proposed new section 39C of the Act added by item 18.

Item 17 – Subsection 39(4)

19. Subsection 39(4) currently provides that officers of a State and Territory and other fit and proper persons, other than ministers of religion, are not entitled to demand payment of a fee for the solemnization of marriage higher than the fees set out in the regulations. This subsection is being deleted. The Government believes it appropriate to leave the matter of fees to be charged for solemnization of marriages to the commercial judgment of celebrants and couples. There are currently no regulations setting such fees.

Subdivision C – Marriage celebrants

Item 18 – At the end of Division 1 of Part IV

20. This is the heading for the new Subdivision C of Division 1 of Part IV.

Section 39A – Registrar of Celebrants

21. The Bill creates a statutory appointment for a position of Registrar of Marriage Celebrants within the Attorney-General’s Department. The person occupying this position will have all the functions set out in the Act required to be performed by the Registrar. That person’s terms and conditions will be as set out in the Public Service Act 1999.

22. Similar functions, as those that are envisaged will be undertaken by the Registrar are currently undertaken, amongst a range of other duties, by an SES officer. Given the increased duties being given to the Registrar, it may be necessary for this position to be full time. If this is the case, then consideration will be given to having an officer at Executive Level 2 undertake the role of Registrar.

23. The Registrar is to perform those functions and has power to do all things necessary or convenient to be done for or in connection with the performance of those functions given to the Registrar by or under the Act. Under the Act the Registrar will:

• create and maintain a register of marriage celebrants (sections 39B& 39K);

• deal with the registration of marriage celebrants (sections 39C & 39D);

• monitor the conduct of marriage celebrants and in particular conduct reviews of the performance of each celebrant in accordance with the Act (sections 39G & 39H);

• investigate complaints about marriage celebrants and take appropriate disciplinary action (sections 39I & 39K);

• develop and publish requirements for ongoing professional development for celebrants (section 39G).

Section 39B – Register of Marriage Celebrants

24. Section 39B will require the Registrar of Marriage Celebrants to maintain a register of marriage celebrants in any way the Registrar thinks is appropriate, including by electronic means. The register will be published on the Internet. There is also provision for the information contained in the register to be disseminated in any other ways that the Registrar thinks appropriate. Currently such information is published in accordance with section 115.

Section 39C – Entitlement to be registered as a marriage celebrant

25. The Registrar is to authorize persons to be marriage celebrants if satisfied they are 18 years of age or over; have the necessary qualifications and/or skills deemed necessary by the Registrar in accordance with regulations that will be made under this provision; and are a fit and proper person to be a marriage celebrant.

26. In determining whether the Registrar is satisfied that an applicant for registration as a marriage celebrant is a fit and proper person, the Registrar must take into account 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 been convicted of a Commonwealth, State or Territory offence punishable by imprisonment for one year or longer (subject to the spent conviction scheme set out in Part VIIC of the Crimes Act 1914 (see subsection 39C(3) of this Bill);

• has an actual or potential conflict of interest with any of their business interests, hobbies 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;

• is likely to fulfil their obligations under section 39G to abide by a Code of Practice, undertake professional development activities, and notify the Registrar of any change in their details or the occurrence of an event that may mean the person would not have been registered as a celebrant had the event occurred prior to their registration; and

• any other matter that the Registrar may consider relevant.

Section 39D – Registration as a marriage celebrant

27. Applicants to become marriage celebrants will be required to complete a prescribed form and any statutory declaration required by the form. Subsection 39D(2) requires the Registrar to deal with each application in the order in which it is received. Applications that are defective are not deemed to be applications, meaning the Registrar does not have to deal with them under subsection 39D(2). The Regulations will specify what details concerning marriage celebrants the Registrar must enter in the register of marriage celebrants. These details are likely to include the celebrant’s full name, address and religious denomination (if any). Similar details are already published under section 115 of the Act for existing celebrants.

28. A person is registered by the Registrar entering their name on the register and the Registrar advises the person accordingly. If the Registrar decides not to register a person the Registrar must inform the applicant in writing of what the decision is and the reasons for coming to the decision. In addition the Registrar must advise that a decision not to register a person as a marriage celebrant is reviewable in accordance with section 39J.

Section 39E – Capping of number of marriage celebrants for 5 years

29. This provision provides for the 5 year phasing in period for the revised basis of appointing marriage celebrants. Section 39E will, for a period of 5 years from the commencement of the new provisions, limit the number of marriage celebrants to be appointed. The Regulations will limit the number of increase to 10% per annum. The 10% figure will be determined on a region by region basis, there being one region for each State and Territory and within all States except Tasmania there will be a capital city region and a rest of the State region. Subsection 39E(2) provides that this section only has effect for 5 years after it commences.

Section 39F – Effect of registration

30. Section 39F will permit a registered marriage celebrant to solemnize marriages anywhere in Australia.

Section 39G – Obligations of each marriage celebrant

31. Paragraph 39G(a) will require marriage celebrants to comply with a Code of Practice that will be prescribed by regulations. It is envisaged the Code will require marriage celebrants to:

• maintain a high standard of service;

• recognise the significance of marriage;

• comply with the Marriage Act 1961 and other laws;

• respect the importance of the marriage ceremony and comply with a number of general requirements for each marriage ceremony;

• maintain knowledge about appropriate family relationships services in the community;

• inform couples about the range of information and services available to them; and

• adhere to guidelines approved by the Attorney-General.

32. Paragraph 39G(b) requires marriage celebrants to undertake all professional development activities required by the Registrar. It is envisaged that the Registrar will publish a list, to be available to all celebrants, of professional development activities at the start of each year.

33. Paragraph 39G(c) requires marriage celebrants to provide certain information to the Registrar in writing.

Section 39H – Performance Reviews

34. Section 39H will require the Registrar to conduct a review of the performance of each celebrant every 5 years. The review is to be conducted taking into consideration matters prescribed in the regulations (subsection 39H(3)). It is envisaged such matters will include:

• any complaints received against a celebrant and any feedback received from couples;

• whether the celebrant has met the requirements for ongoing professional development;

• whether the celebrant has complied with the Code of Practice during the review period;

• whether the celebrant has developed any physical or mental incapacity that prevents him/her from carrying out his/her duties as a marriage celebrant.

Section 39I – Disciplinary Measures

35. Under Section 39I, the Registrar will have the power to take disciplinary measures against a marriage celebrant. This can occur if the Registrar:

• is satisfied that the celebrant is no longer entitled to be registered;

• is satisfied that the marriage celebrant has not met their obligations under section 39G for ongoing professional development and complying with the Code of Practice;

• has determined that the person’s performance was not satisfactory at a performance review (section 39H);

• has determined after a complaint has been dealt with under the new complaints mechanism to be established under section 39K, that disciplinary action is necessary; or

• is satisfied that the celebrant’s application for registration was known by the celebrant to be false or misleading in a material particular.

36. Subsection 39I(2) provides that the measures the Registrar can take against the celebrant include providing a caution, requiring the celebrant to undertake professional development activities, suspending registration, or deregistering the celebrant. Subsection 39I(4) provides that if a Registrar takes disciplinary measures, the celebrant must be given written notice of the decision, reasons for it and disciplinary action being taken, and may inform the community about the disciplinary measures being taken. In addition the Registrar must inform the marriage celebrant of their right to seek review of certain decisions under section 39J.

Section 39J – Review of decisions

37. Currently there is no right for a celebrant to seek merits review of a decision taken in relation to them under the Act. Section 39J will allow applications to the Administrative Appeals Tribunal for reviews of the following decisions of the Registrar of Marriage Celebrants:

• not to register a person as a marriage celebrant; or

• to suspend a person’s registration as a marriage celebrant ; or

• to deregister a marriage celebrant.

38. The one exception to this is provided in paragraph 39J(1)(a) that indicates that there is no right to seek review of a decision not to register a person because the cap provided for in proposed section 39E has been filled. This is because the decision would not be a discretionary one. The effect of subsection 39J(3) is that the limit on the number of marriage celebrants who can be appointed pursuant to the cap in section 39E can be ignored if it is required to do so to give effect to a decision of the Tribunal. This means that if the Administrative Appeals Tribunal decides that a person should have been registered then the Registrar is obliged to register them even if the effect of this would be to register more celebrants than is allowed under the cap.

Section 39K – Additional powers and functions of the Registrar

39. This section proposes a range of additional functions for the Registrar. Paragraph 39K(a) will require the Registrar to amend the register of marriage celebrants in accordance with regulations that will be made for this purpose. Paragraph 39K(b) requires the Registrar to keep the records of marriage celebrants required under the regulations. This is likely to require, for example, the Registrar to keep records of the ongoing professional development undertaken by marriage celebrants.

40. Further the provision requires the Registrar to establish a complaints mechanism to deal with complaints made against marriage celebrants. The current mechanism operated by the Attorney-General’s Department has proved to be unsatisfactory and a new mechanism that is more open and accountable will be developed in consultation with marriage celebrants.

Section 39L – Indemnity for Registrar

41. Section 39L will provide the Registrar with protection from suit for damages for actions done in good faith in the performance of his/her functions.

Section 39M – Evidence of registration etc.

42. Section 39M will provide that a certificate signed by the Registrar attesting to certain facts will be prima facie evidence of those facts. The certificate can state that at a specified time, or during a specified period: (i) a person was registered as a marriage celebrant; or (ii) a person’s registration as a marriage celebrant was suspended; or (iii) a person was not registered as a marriage celebrant.

Item 19 – Paragraph 115(2)(a)

43. This amendment reflects the new Subdivisions of the Act dealing with the 3 categories of authorised celebrants, and in particular refers to new Subdivision A of Division 1 of Part IV, being the Subdivision dealing with authorised celebrants who are ministers of religion.

Item 20 – Subsection 117(1)

44. Section 117 deals with certificates issued by persons responsible for keeping registers under Division 1 of Part IV of the Act. This amendment makes it clear that the provision does not deal with the register kept under the new Subdivision C of Division 1 of Part IV. Certificates issued under this part are dealt with in the new section 39M.

Item 21 – Subsection 117(1)

Item 22 – Subsection 117(1)

Item 23 – Subsection 117(1)

Item 24 – Subsection 117(2)

Item 25 – Subsection 117(2)

45. Each of these items is a consequential amendment required to reflect the establishment of Subdivisions A, B and C of Division 1 of Part IV by this Bill.

Item 26 – Paragraph 120(d)

46. This paragraph currently provides for the Governor-General to make regulations prescribing the fees to be charged in respect of the solemnization of marriages by authorised celebrants who are not ministers of religion and by marriage officers. This paragraph is being repealed. The Government believes it appropriate to leave the matter of fees to be charged for solemnization of marriages to the commercial judgment of celebrants and couples. There are currently no such regulations (see also Item 17).

Part 2 – Transitional provision

Item 27 – Registration of existing marriage celebrants

47. This provision provides for the entering of the details of existing celebrants, whose authorisation is current when this Bill becomes the law, onto the new register to be established under section 39B.

48. The provision also ensures that State and Territory Officers of Births, Deaths and Marriages and other State and Territory officers authorised under subsection 39(2) who are already appointed do not become marriage celebrants under Subdivision C of Division 1 of Part IV on commencement.

SCHEDULE 2 – OTHER MATTERS

Item 1 – Subsection 5(1) (paragraph (a) of the definition of Judge)

49. This provision will ensure that a magistrate of the Federal Magistrates Court will have the same functions as a Judge of the Family Court of Australia in relation to the Act.

Item 2 – Subsection 5(1) (definition of marriage officer)

Item 3 – Subsection 5(1) (definition of official house)

50. These amendments are consequential to the repeal of Divisions 1 and 2 of Part V of the Act.

51. Part V deals with the solemnization of marriages overseas. Currently, Divisions 1 and 2 of Part V allow for marriages to be performed overseas by essentially Australian consular officials authorised under section 62 of the Act as marriage officers, where at least one of the parties to the marriage is an Australian citizen. Division 3 of Part V provides for chaplains of the Defence Forces to solemnize such marriages where at least one party is a member of the Australian Defence Force.

52. Due to the high costs of providing such services overseas, the Department of Foreign Affairs and Trade requested that all appointments of Australian consular officials as marriage officers be revoked. This occurred on 1 January 1993. These provisions of the Act have not been used since and are now redundant. Accordingly, the current Divisions 1 and 2 of Part V are being repealed. Part V will now concern only marriages of members of the Defence Force overseas.

Item 4 – Subsection 5(1) (paragraph (a) of the definition of prescribed authority)

Item 5 – Application of items 4 and 56

53. In relation to marriages to be solemnized in Australia, prescribed authorities will now only be officers or employees of the Commonwealth, a State or a Territory. Authorized celebrants or justices of the peace will no longer be prescribed authorities. This amendment will only apply to persons appointed after the commencement of the Marriage Amendment Act 2002. Prescribed authorities appointed under the Act prior to commencement of the Marriage Amendment Act 2002 will continue to be prescribed authorities.

Item 6 – Subsection 5(1) (paragraph (b) of the definition of prescribed authority)

54. This amendment is consequential to the repeal of Divisions 1 and 2 of Part V of the Marriage Act 1961. See notes on Items 2 and 3 of Schedule 2.

Item 7 – At the end of subsection 9A(1)

55. This is one of a number of amendments that ensure the Federal Magistrates Court has the same jurisdiction as the Family Court to hear cases under the Act.

Item 8 – Subsection 13(2)

56. This section has been redrafted so it is easier to read. Subparagraphs (vii) and (viii) have been inserted in paragraph 13(2)(b). The effect of this is that certain overseas recruited Commonwealth and Austrade employees will be able to witness signatures of persons whose consent is required by the Act for the marriage of minors, in circumstances where the signature indicating consent is signed out of Australia. This subsection is intended to ease the burden on Australian diplomatic officers overseas.

Item 9 – Paragraph 42(1)(a)

Item 10 – Application of item 9

57. Paragraph 42(1)(a) imposes time limits on the giving of the Notice of Intended Marriage by an authorized celebrant. The section currently provides that the Notice must have been given in accordance with the section and received by the authorized celebrant solemnizing the marriage not earlier than 6 months before the date of the marriage and not later than 1 month before the date of the marriage.

58. Celebrants have made repeated representations to have the period of 6 months extended. Many couples book their weddings well in advance and will often see the celebrant and complete the Notice of Intended Marriage at that time.

59. In addition, the House of Representatives Standing Committee on Legal and Constitutional Affairs Report: To Have and To Hold, June 1998, proposed in Recommendation 9 that the maximum period for notification of an intention to marry be extended by law to 18 months. This recommendation was made to provide an extended period to allow greater opportunity for couples to attend pre-marriage education.

60. This amendment will only apply to Notices of Intended Marriage given after the commencement of Item 9.

Item 11 – Subparagraph 42(1)(b)(ii)

Item 12 – After subparagraph 42(1)(b)(ii)

61. Paragraph 42(1)(b) provides that before a celebrant can marry a couple, the couple must produce a certified copy or certified extract of a birth certificate or a statutory declaration as to why one cannot be produced.

62. Celebrants have indicated that it is often difficult for persons from some overseas countries to produce a certified copy of a birth certificate. These people, however, would often have a passport. Passports can only be obtained after investigation of the identity and birth details of the holder. Paragraph 42(1)(b) will therefore be amended to allow, as an option, proof of identity to be shown by a valid passport issued by a government of an overseas country.

Item 13 – Paragraph 42(2)(b)

63. A Notice of Intended Marriage must be witnessed. Paragraph 42(2)(b) of the Act specifies who can witness the Notice.

64. The limited number of persons currently eligible to witness the Notice overseas has presented problems for people in overseas countries. Marriage celebrants, especially those in Queensland, have regularly written to the Attorney-General suggesting that these restrictions are seriously limiting the number of couples from overseas who may otherwise marry in Australia.

65. In practice, only Australian diplomatic staff are readily available to witness the Notice overseas. When the Act was passed, Australian weddings involving couples who both lived overseas were very rare. Now, such weddings are common and couples may be forced to travel very long distances to get the Notice witnessed by Australian diplomatic staff.

66. Item 13 will amend paragraph 42(2)(b) by splitting the current provision and adding paragraph 42(2)(c) and (d). This will allow notaries public to witness the notice overseas. In addition certain overseas recruited Commonwealth and Austrade employees will also be able to witness the Notice. The redrafted paragraph specifies the different categories of people who can witness the Notice, depending upon whether the party to the marriage signs the Notice in, or outside of, Australia.

Item 14 – Subsection 42(3)

67. This is a drafting amendment designed to make the subsection read more easily.

Item 15 – Subsection 42(5)

68. Subsection 42(5) enables prescribed authorities to authorize authorized celebrants to expedite marriages in certain circumstances when the Notice of Intended Marriage has been received later than 1 month before the date of the marriage.

69. Prescribed authorities are generally State and Territory officers. The provision currently gives prescribed authorities wide discretion but no guidance on the matters that should be considered for shortening of the statutory time limit. This has lead to some inconsistency.

70. Prescribed authorities will continue to be able to authorize a shortening of time. The circumstances in which this may occur will now be prescribed.

Item 16 – Section 54

Item 17 – Application of item 16

71. Item 16 will redraft section 54 by removing reference to Division 2 of Part V of the Act. This amendment is consequential to the removal of Divisions 1 and 2 of Part V (see notes on Items 2 and 3 of Schedule 2). Item 17 makes it clear that the new provision only operates in relation to proclamations made after the new section 54 comes into force. Current proclamations therefore continue in force.

Item 18 – Part V (heading)

Item 19 – Divisions 1 and 2 of Part V

Item 20 – Division 3 of Part V (heading)

Item 21 – Subsection 74(1)

Item 22 – Subsection 74(3)

Item 23 – Section 75

Item 24 – Section 75

Item 25 – Subsection 76(1)

Item 26 – Subsection 77(1)

Item 27 – Subsection 78(2)

Item 28 – Section 79

Item 29 – Section 79

Item 30 – Subsection 80(1)

Item 31 – Subsection 80(1)

Item 32 – Paragraph 80(2)(a)

Item 33 – Paragraph 80(2)(c)

Item 34 – Subsection 80(4)

Item 35 – Paragraph 80(4)(b)

Item 36 – Subsections 80(5), (6) and (8)

Item 37 – Subsection 80(9)

Item 38 – Subsection 80(10)

Item 39 – Section 81

Item 40 – Paragraphs 83(1)(a), (b) and (c)

Item 41 – Paragraph 83(1)(e)

Item 42 – Subsection 83(2)

Item 43 – Paragraph 84(1)(a)

Item 44 – Paragraphs 84(1)(b) and (c)

Item 45 – Subsection 84(1)

Item 46 – Paragraphs 85(1)(b) and (c)

Item 47 – Subsection 85(1)

72. These amendments are consequential to the repeal of Divisions 1 and/or 2 of Part V of the Act. See notes under Items 2 & 3 of Schedule 2.

Item 48 – Subsection 92(1)

73. This is one of a number of amendments that ensure the Federal Magistrates Court has the same jurisdiction as the Family Court to hear cases under the Act.

Item 49 – Subsection 99(2)

Item 50 – Subsection 104(1)

Item 51 – Subsection 104(1)

Item 52 – Section 104(2)

Item 53 – Section 110

74. These amendments are consequential to the repeal of Divisions 1 and/or 2 of Part V of the Act. See notes under Items 2 & 3 of Schedule 2.

Item 54 - Paragraph 115(3)

75. See notes under Items 4 and 5 of Schedule 2. Under other amendments prescribed authorities appointed in the future, will only be officers or employees of the Commonwealth, a State or a Territory. Accordingly, there is no longer a need to show the religious body or religious organization to which prescribed authorities belong in the lists published by the Minister pursuant to section 115.

Item 55– Subsection 116(2)

76. This amendment is consequential to the repeal of Divisions 1 and/or 2 of Part V of the Act. See notes under Items 2 & 3 of Schedule 2.

Item 56 – Paragraph 117(2A)(b)

77. See notes under Items 4 and 5 of Schedule 2. Prescribed authorities will now only be officers or employees of the Commonwealth, a State or a Territory. This amendment is consequential to the new definition of prescribed authorities.

^[1] According the “To have and to hold” report, family breakdown costs the community between $3 and $6 billion

^[2] Report ‘To have and to hold” – Strategies to strengthen marriage and relationships – June 1998