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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Marriage
Amendment Bill 2001
No. ,
2001
(Attorney-General)
A
Bill for an Act to amend the Marriage Act 1961, and for related
purposes
Contents
Part 1—Amendments 3
Marriage Act
1961 3
Part 2—Transitional
provision 14
Marriage Act
1961 15
A Bill for an Act to amend the Marriage Act 1961,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Marriage Amendment Act
2001.
(1) Sections 1, 2 and 3 commence on the day on which this Act
receives the Royal Assent.
(2) Subject to subsection (3), the items of Schedule 1 (other
than items 19 and 20) commence on a day or days to be fixed by
Proclamation.
(3) If an item to which subsection (2) applies does not commence
under that subsection within the period of 12 months beginning on the day on
which this Act receives the Royal Assent, the item commences on the first day
after the end of that period.
(4) If item 371 of Schedule 1 to the Administrative Review
Tribunal (Consequential and Transitional Provisions) Act 2001 has not
commenced before the commencement of section 1 of this Act, items 19
and 20 of Schedule 1 to this Act commence immediately after the
commencement of item 371 of Schedule 1 to the Administrative Review
Tribunal (Consequential and Transitional Provisions) Act 2001.
(5) If item 371 of Schedule 1 to the Administrative Review
Tribunal (Consequential and Transitional Provisions) Act 2001 has commenced
before the commencement of section 1 of this Act, items 19 and 20 of
Schedule 1 to this Act commence immediately after the commencement of
item 18 of Schedule 1 to this Act.
(6) The items of Schedule 2 (other than item 15) commence on the
28th day after the day on which this Act receives the Royal Assent.
(7) Subject to subsection (8), item 15 of Schedule 2
commences on a day to be fixed by Proclamation.
(8) If item 15 of Schedule 2 does not commence under
subsection (7) within the period of 6 months beginning on the day on which
this Act receives the Royal Assent, that item commences on the first day after
the end of that period.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 5(1) (definition of authorized
celebrant)
Repeal the definition, substitute:
authorized celebrant means:
(a) a minister of religion registered under Subdivision A of
Division 1 of Part IV; or
(b) a person authorized to solemnize marriages by virtue of Subdivision B
of Division 1 of Part IV; or
(c) a marriage celebrant.
2 Subsection 5(1)
Insert:
marriage celebrant means a person registered under
Subdivision C of Division 1 of Part IV.
3 Paragraph 9(1)(f)
After “under”, insert “Subdivision A of”.
4 Division 1 of Part IV
(heading)
Repeal the heading, substitute:
5 Before section 25
Insert:
6 Subsections 25(1) and (2)
Omit “Division” (wherever occurring), substitute
“Subdivision”.
7 Subsections 27(1) and (4)
Omit “Division”, substitute
“Subdivision”.
8 Subsections 28(3) and (4)
Omit “Division”, substitute
“Subdivision”.
9 Sections 29, 30 and
31
Omit “Division” (wherever occurring), substitute
“Subdivision”.
Note: The heading to section 29 is altered by omitting
“Division” and substituting
“Subdivision”.
10 Section 32
Omit “Division”, substitute
“Subdivision”.
11 Subsection 33(1)
Omit “Division” (wherever occurring), substitute
“Subdivision”.
12 Subsections 34(1) and
(5)
Omit “Division”, substitute
“Subdivision”.
13 Subsection 35(1)
Omit “Division”, substitute
“Subdivision”.
14 Sections 37 and 38
Omit “Division” (wherever occurring), substitute
“Subdivision”.
15 After section 38
Insert:
16 Subsection 39(2)
Omit “or other fit and proper persons”.
Note: The heading to section 39 is amended by omitting
“other celebrants” and substituting “State and
Territory officers etc.”.
17 Subsection 39(4)
Repeal the subsection.
18 At the end of Division 1 of
Part IV
Add:
(1) There is to be a position occupied (on an acting, permanent, full-time
or part-time basis) by an APS employee in the Department, the duties of which
are expressed to consist of, or include, the performance of the functions given
to the Registrar of Marriage Celebrants by or under this Act.
(2) The APS employee occupying the position from time to time is the
Registrar of Marriage Celebrants.
(3) The Registrar of Marriage Celebrants 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.
(1) The Registrar of Marriage Celebrants is to maintain a register of
marriage celebrants.
(2) The register may be kept in any way the Registrar thinks appropriate,
including by electronic means.
(3) The register may be made available for inspection in any way the
Registrar thinks appropriate.
(4) All information contained in the register must be made available on
the Internet.
(5) Any or all of the information contained in the register may also be
disseminated in any other way the Registrar thinks appropriate, including by
electronic means.
(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.
(2) In determining whether the Registrar is satisfied that the person is a
fit and proper person to be a marriage celebrant, the Registrar must take into
account:
(a) whether the person has sufficient knowledge of the law relating to the
solemnization of marriages by marriage celebrants; and
(b) whether the person is committed to advising couples of the
availability of relationship support services; and
(c) whether the person is of good standing in the community; and
(d) whether the person has been convicted of an offence, punishable by
imprisonment for one year or longer, against a law of the Commonwealth, a State
or a Territory; and
(e) whether the person has an actual or potential conflict of interest
between his or her practice, or proposed practice, as a marriage celebrant and
his or her business interests or other interests; and
(f) whether the person’s registration as a marriage celebrant would
be likely to result in the person gaining a benefit in respect of another
business that the person owns, controls or carries out; and
(g) whether the person will fulfil the obligations under section 39G;
and
(h) any other matter the Registrar considers relevant to whether the
person is a fit and proper person to be a marriage celebrant.
(3) Nothing in this section affects the operation of Part VIIC of the
Crimes Act 1914 (which includes provisions that, in certain
circumstances, relieve persons from the requirement to disclose spent
convictions and require persons aware of such convictions to disregard
them).
(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.
(2) The Registrar must deal with applications in the order in which they
are received.
(3) In dealing with an application, the Registrar:
(a) must have regard to the information in the application; and
(b) may have regard to any other information in his or her possession;
and
(c) is not required to seek any further information.
(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.
(5) The Registrar registers a person as a marriage celebrant by entering
in the register of marriage celebrants all details relating to the person that
are required by regulations made for the purposes of this subsection.
(6) If the Registrar registers a person as a marriage celebrant, the
Registrar must notify the person in accordance with regulations made for the
purposes of this subsection.
(7) If the Registrar decides not to register a person as a marriage
celebrant after dealing with the person’s application, the Registrar must
inform the applicant in writing of:
(a) the decision; and
(b) the reasons for it; and
(c) the person’s right under section 39J (if any) to apply for
review of the decision.
(1) Despite subsection 39D(4), the Registrar of Marriage Celebrants must
not register a person as a marriage celebrant if doing so would cause the breach
of any applicable limit on the number of marriage celebrants determined in
accordance with regulations made for the purposes of this subsection.
Note: A person who, because of this section, is not
registered is entitled to written notice under subsection
39D(7).
(2) Subsection (1) ceases to have effect at the end of the period of
5 years after this section commences.
A person who is registered as a marriage celebrant may solemnize
marriages at any place in Australia.
A marriage celebrant must:
(a) conduct himself or herself in accordance with the Code of Practice for
marriage celebrants prescribed by regulations made for the purposes of this
paragraph; and
(b) undertake all professional development activities required by the
Registrar of Marriage Celebrants in accordance with regulations made for the
purposes of this paragraph; and
(c) notify the Registrar, in writing, within 30 days of:
(i) a change that results in the details entered in the register in
relation to the person no longer being correct; or
(ii) the occurrence of an event that might have caused the Registrar not
to register the person as a marriage celebrant if the event had occurred before
the person was registered.
Note: If a marriage celebrant fails to comply with these
obligations, the Registrar may take disciplinary measures under
section 39I.
(1) The Registrar of Marriage Celebrants must regularly review each
marriage celebrant’s performance to determine whether the Registrar
considers that the marriage celebrant’s performance is
satisfactory.
(2) The first review must be completed within 5 years of the marriage
celebrant being registered and must cover the period between registration and
the end of the review. Each later review must be completed within 5 years of the
previous review and must cover the period since the previous review.
(3) In reviewing the performance of a marriage celebrant, the
Registrar:
(a) must consider the matters prescribed by regulations made for the
purposes of this paragraph; and
(b) may have regard to any information in his or her possession, but is
not required to seek any further information.
(4) The Registrar must not determine that a marriage celebrant’s
performance in respect of a period was not satisfactory unless:
(a) the Registrar has, in accordance with regulations made for the
purposes of this paragraph, given the marriage celebrant a written
notice:
(i) stating the Registrar’s intention to make the determination
unless, before the date specified in the notice (which must be at least 21 days
after the date on which the notice was given), the person satisfies the
Registrar that the marriage celebrant’s performance in respect of the
period was satisfactory; and
(ii) informing the marriage celebrant that any representations made to the
Registrar before that date will be considered by the Registrar; and
(b) the Registrar has considered any representations made by the marriage
celebrant before the date specified in the notice; and
(c) the determination is made in writing within 14 days after the date
specified in the notice.
(1) The Registrar of Marriage Celebrants may only take disciplinary
measures against a marriage celebrant if the Registrar:
(a) is satisfied that the marriage celebrant is no longer entitled to be
registered as a marriage celebrant; or
(b) is satisfied that the marriage celebrant has not complied with an
obligation under section 39G; or
(c) has determined in writing under section 39H that the marriage
celebrant’s performance in respect of a period was not satisfactory;
or
(d) is satisfied that it is appropriate to take disciplinary measures
against the marriage celebrant after considering a complaint in accordance with
the complaints resolution procedures established under paragraph 39K(c);
or
(e) is satisfied that the marriage celebrant’s application for
registration was known by the marriage celebrant to be false or misleading in a
material particular.
(2) The only disciplinary measures that the Registrar may take against a
marriage celebrant are to:
(a) caution the marriage celebrant in writing; or
(b) in accordance with regulations made for the purposes of this
paragraph, require the marriage celebrant to undertake professional development
activities determined in writing by the Registrar; or
(c) suspend the marriage celebrant’s registration for a period (the
suspension period) of up to 6 months by annotating the register of
marriage celebrants to include:
(i) a statement that the registration is suspended; and
(ii) the dates of the start and end of the suspension period; or
(d) deregister the marriage celebrant by removing his or her details from
the register of marriage celebrants.
Note: A decision to suspend a marriage celebrant’s
registration, or to deregister a marriage celebrant, is reviewable under
section 39J.
(3) If the Registrar suspends a marriage celebrant’s registration
for a particular period, section 39F does not apply in respect of the
marriage celebrant during the period.
(4) If the Registrar decides to take disciplinary measures against a
marriage celebrant, the Registrar:
(a) must give the marriage celebrant written notice of:
(i) the decision; and
(ii) the reasons for it; and
(iii) the disciplinary measure that is being taken; and
(iv) the person’s right under section 39J to apply for review
of the decision; and
(b) may inform the community, in any way the Registrar thinks appropriate,
including by electronic means, that the disciplinary measure is being taken
against the marriage celebrant.
(1) An application may be made to the Administrative Appeals Tribunal for
a review of a decision of the Registrar of Marriage Celebrants:
(a) not to register a person as a marriage celebrant (unless a ground for
the decision was that the Registrar would breach section 39E by registering
the person); or
(b) to suspend a person’s registration as a marriage celebrant;
or
(c) to deregister a marriage celebrant.
(2) For the purposes of both the making of an application under
subsection (1) and the operation of the Administrative Appeals Tribunal
Act 1975 in relation to such an application, if:
(a) a person has made application for registration as a marriage celebrant
under section 39D; and
(b) at the end of 3 months after the day on which the application was
made, the person has not been:
(i) registered; or
(ii) notified by the Registrar that that person’s application has
been refused;
the Registrar is taken to have decided, on the last day of the 3 month
period, not to register that person as a marriage celebrant.
(3) The Registrar must take such action as is necessary to give effect to
the Tribunal’s decision (even if doing so at the time the action is taken
would cause a breach of a limit under section 39E).
The Registrar of Marriage Celebrants must:
(a) amend the register of marriage celebrants in accordance with
regulations made for the purposes of this paragraph; and
(b) keep records relating to marriage celebrants, and the register of
marriage celebrants, in accordance with regulations made for the purposes of
this paragraph; and
(c) establish complaints resolution procedures, in accordance with
regulations made for the purposes of this paragraph, to resolve complaints about
the solemnization of marriages by marriage celebrants; and
(d) perform any additional functions specified in regulations made for the
purposes of this paragraph.
The Registrar of Marriage Celebrants is not liable to an action or other
proceeding for damages in respect of anything done, or omitted to be done, in
good faith in:
(a) the exercise or performance; or
(b) the purported exercise or performance;
of powers or functions under this Act.
A certificate, signed by the Registrar of Marriage Celebrants, stating
that, at a specified time, or during a specified period:
(a) a person was registered as a marriage celebrant; or
(b) a person’s registration as a marriage celebrant was suspended;
or
(c) a person was not registered as a marriage celebrant;
is prima facie evidence of that fact.
19 Subsection 39J(1)
Omit “Administrative Appeals Tribunal”, substitute
“Administrative Review Tribunal”.
20 Subsection 39J(2)
Omit “Administrative Appeals Tribunal Act 1975”,
substitute “Administrative Review Tribunal Act
2001”.
21 Paragraph 115(2)(a)
After “under”, insert “Subdivision A of”.
22 Subsection 117(1)
Omit “Division 1 of Part IV”, substitute “a
Subdivision of Division 1 of Part IV (other than Subdivision C of that
Division)”.
23 Subsection 117(1)
Omit “Division in”, substitute “Subdivision
in”.
24 Subsection 117(1)
Omit “Division is”, substitute “Subdivision
is”.
25 Subsection 117(1)
Omit “Division at”, substitute “Subdivision
at”.
26 Subsection 117(2)
Omit “Division 1 of Part IV”, substitute “a
Subdivision of Division 1 of Part IV (other than Subdivision C of that
Division)”.
27 Subsection 117(2)
Omit “Division at”, substitute “Subdivision
at”.
28 Paragraph 120(d)
Repeal the paragraph.
29 Registration of existing marriage
celebrants
(1) In this item:
existing marriage celebrant means a person:
(a) in respect of whom an instrument made under subsection 39(2) of the
Marriage Act 1961 was in force immediately before the commencement of
item 18 of this Schedule; and
(b) who was not authorized by that instrument to solemnize marriages as an
officer of a State or Territory.
(2) Each existing marriage celebrant is taken to have been registered under
Subdivision C of Division 1 of Part IV of the Marriage Act 1961
as a marriage celebrant on the date of the commencement of item 18 of this
Schedule.
(3) As soon as practicable after the commencement of item 18 of this
Schedule, the Registrar of Marriage Celebrants must enter in the register of
marriage celebrants all details relating to the person that are required by
regulations made for the purposes of subsection 39D(5) to be entered in the
register in respect of a person who is registered as a marriage
celebrant.
1 Subsection 5(1) (paragraph (a) of the
definition of Judge)
After “Family Court of Australia”, insert “, or a Federal
Magistrate of the Federal Magistrates Court,”.
2 Subsection 5(1) (definition of marriage
officer)
Repeal the definition.
3 Subsection 5(1) (definition of official
house)
Repeal the definition.
4 Subsection 5(1) (paragraph (a) of the
definition of prescribed authority)
Omit “being an authorized celebrant or a justice of the peace”,
substitute “being an officer or employee of the Commonwealth, a
State or a Territory”.
5 Application of items 4 and
56
The amendments made by items 4 and 56 apply in relation to
appointments of prescribed authorities made after those items
commence.
6 Subsection 5(1) (paragraph (b) of the
definition of prescribed authority)
Repeal the paragraph.
7 At the end of subsection
9A(1)
Add “or a Federal Magistrate of the Federal Magistrates
Court”.
8 Subsection 13(2)
Repeal the subsection, substitute:
(2) For the purposes of subsection (1), the consent of a person is
duly witnessed if the signature of that person was witnessed:
(a) if the consent is signed in Australia—by one of the following
persons:
(i) an authorized celebrant;
(ii) a Commissioner for Declarations under the Statutory Declarations
Act 1959;
(iii) a justice of the peace;
(iv) a barrister or solicitor;
(v) a legally qualified medical practitioner;
(vi) a member of the Australian Federal Police or the police force of a
State or Territory; or
(b) if the consent is signed in any other place—by one of the
following persons:
(i) an Australian Diplomatic Officer;
(ii) an Australian Consular Officer;
(iii) a minister of religion of that place;
(iv) a judge of a court of that place;
(v) a magistrate or justice of the peace of or for that place;
(vi) a notary public;
(vii) an employee of the Commonwealth authorised under paragraph 3(c) of
the Consular Fees Act 1955;
(viii) an employee of the Australian Trade Commission authorised under
paragraph 3(d) of the Consular Fees Act 1955;
and not otherwise.
9 Paragraph 42(1)(a)
Omit “6 months”, substitute “18 months”.
10 Application of
item 9
The amendment made by item 9 applies in relation to notices of
intention to marry given after the item commences.
11 Subparagraph
42(1)(b)(ii)
Omit “born; and”, substitute “born; or”.
12 After subparagraph
42(1)(b)(ii)
Insert:
(iii) a passport issued by a government of an overseas country, showing
the date and place of birth of the party; and
13 Paragraph 42(2)(b)
Repeal the paragraph, substitute:
(b) must be signed by each of the parties; and
(c) if a party signs the notice in Australia—must be signed in the
presence of:
(i) an authorised celebrant; or
(ii) a Commissioner for Declarations under the Statutory Declarations
Act 1959; or
(iii) a justice of the peace; or
(iv) a barrister or solicitor; or
(v) a legally qualified medical practitioner; or
(vi) a member of the Australian Federal Police or the police force of a
State or Territory; and
(d) if a party signs the notice outside Australia—must be signed in
the presence of:
(i) an Australian Diplomatic Officer; or
(ii) an Australian Consular Officer; or
(iii) a notary public; or
(iv) an employee of the Commonwealth authorised under paragraph 3(c) of
the Consular Fees Act 1955; or
(v) an employee of the Australian Trade Commission authorised under
paragraph 3(d) of the Consular Fees Act 1955.
14 Subsection 42(3)
Omit “Where”, substitute “However, if”.
15 Subsection 42(5)
Repeal the subsection, substitute:
(5) Despite a notice required by subsection (1) having been received
later than 1 month before the date of the marriage, a prescribed authority may
authorise an authorized celebrant to solemnize a marriage if the authority is
satisfied that one or more of the circumstances prescribed in the regulations
have been met.
16 Section 54
Repeal the section, substitute:
The Governor-General may declare by Proclamation that a country is a
proclaimed overseas country for the purposes of this Division if he or she is
satisfied that the country’s law or custom authorizes the solemnization,
by or in the presence of either or both diplomatic or consular officers of that
country, of marriages outside that country.
17 Application of
item 16
The amendment made by item 16 applies in relation to Proclamations
declared after the item commences.
18 Part V (heading)
Repeal the heading, substitute:
19 Divisions 1 and 2 of
Part V
Repeal the Divisions.
20 Division 3 of Part V
(heading)
Repeal the heading, substitute:
21 Subsection 74(1)
Omit “marriage officer or”.
Note: The heading to section 74 is altered by omitting
“marriage officer or”.
22 Subsection 74(3)
Omit “marriage officer or a”.
23 Section 75
Omit “marriage officer or a”.
Note: The heading to section 75 is altered by omitting
“Marriage officer or chaplain” and substituting
“Chaplain”.
24 Section 75
Omit “marriage officer or” (second occurring).
25 Subsection 76(1)
Omit “marriage officer or”.
26 Subsection 77(1)
Omit “marriage officer or”.
27 Subsection 78(2)
Omit “marriage officer or”.
28 Section 79
Omit “marriage officer or a”.
Note: The heading to section 79 is altered by omitting
“Marriage officer or chaplain” and substituting
“Chaplain”.
29 Section 79
Omit “marriage officer or” (second occurring).
30 Subsection 80(1)
Omit “a marriage officer or”.
31 Subsection 80(1)
Omit “marriage officer or” (second occurring).
32 Paragraph 80(2)(a)
Repeal the paragraph, substitute:
(a) the chaplain; and
33 Paragraph 80(2)(c)
Omit “marriage officer or”.
34 Subsection 80(4)
Omit “marriage officer or”.
35 Paragraph 80(4)(b)
Omit “any notice under section 66 and”.
36 Subsections 80(5), (6) and
(8)
Omit “marriage officer or”.
37 Subsection 80(9)
Omit “marriage officer or” (wherever occurring).
38 Subsection 80(10)
Omit “marriage officer or”.
39 Section 81
Omit “marriage officer or” (wherever occurring).
40 Paragraphs 83(1)(a), (b) and
(c)
Repeal the paragraphs.
41 Paragraph 83(1)(e)
Omit “67, 68, 69,”.
42 Subsection 83(2)
Omit “marriage officer or”.
43 Paragraph 84(1)(a)
Repeal the paragraph, substitute:
(a) a chaplain has attended a marriage in an overseas country between
parties of whom at least one was an Australian citizen or a member of the
Defence Force; and
Note: The heading to section 84 is altered by omitting
“marriage officer or”.
44 Paragraphs 84(1)(b) and
(c)
Omit “marriage officer or”.
45 Subsection 84(1)
Omit “the marriage officer, upon payment of the prescribed fee, or
the chaplain, as the case may be,”, substitute “the
chaplain”.
46 Paragraphs 85(1)(b) and
(c)
Omit “marriage officer or”.
47 Subsection 85(1)
Omit “the marriage officer, upon payment of the prescribed fee, or
the chaplain, as the case may be,”, substitute “the
chaplain”.
48 Subsection 92(1)
After “Family Court of Australia,”, insert “the Federal
Magistrates Court,”.
49 Subsection 99(2)
Repeal the subsection.
50 Subsection 104(1)
Omit “or to a marriage officer under
section 66,”.
51 Subsection 104(1)
Omit “or section 66”.
52 Subsection 104(2)
Repeal the subsection (but not the penalty).
53 Section 110
Repeal the section.
54 Subsection 115(3)
Omit “and, where appropriate, the religious body or religious
organization to which he or she belongs”.
Omit “, marriage officer” (wherever occurring).
56 Paragraph 117(2A)(b)
Repeal the paragraph, substitute:
(b) an officer or employee of the Commonwealth, a State or a
Territory, appointed by the Minister to be a prescribed
authority;