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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MARRIAGE (CELEBRANT REGISTRATION CHARGE) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
MARRIAGE (CELEBRANT REGISTRATION CHARGE) BILL 2014
GENERAL OUTLINE
The Marriage (Celebrant Registration Charge) Bill 2014 implements a 2011-12 Budget measure to
introduce cost recovery for the regulation of Commonwealth-registered marriage celebrants that was to
commence from 1 July 2013. The Bill provides legislative authority for the Government to charge
Commonwealth-registered marriage celebrants an annual cost recovery levy, the celebrant registration
charge.
Legislation to implement these reforms was introduced into Parliament in March 2013. The Bill was
passed by the House of Representatives, and was considered by the Senate Standing Committee for
Legal and Constitutional Affairs, who recommended that it be passed by the Senate. However, the
Senate did not consider the Bill prior to Parliament being prorogued. As a result, the cost recovery
measures could not be implemented from 1 July 2013.
The Commonwealth has constitutional responsibility for marriage matters including the Marriage
Celebrants Program. The Program, established in 1973 under the Marriage Act 1961, includes both
civil celebrants and ministers from independent religious organisations -- known collectively as
Commonwealth-registered marriage celebrants. The Program is administered by the
Attorney-General's Department.
All persons who solemnise marriages in Australia must be authorised under the Marriage Act. The
Marriage Act establishes the following three categories of celebrants who are authorised to solemnise
marriages under Australian law:
Ministers of religion of a recognised denomination, proclaimed under section 26 of the Act,
who are nominated by their denomination and registered and regulated by state and territory
registries of births, deaths and marriages.
State and territory officers who are authorised to perform marriages as part of their duties
and are registered and regulated by state and territory registries of births, deaths and
marriages, and
Commonwealth-registered marriage celebrants who are authorised under the Marriage
Celebrants Program to perform marriages. This group includes civil celebrants and
celebrants who are ministers of religion whose denomination is not proclaimed under
section 26 of the Act.
The Marriage (Celebrant Registration Charge) Bill 2014 only relates to the third group. The regulation
of the first two groups is carried out by states and territories. The purpose of the Bill is to cost recover
the regulation of Commonwealth-registered marriage celebrants.
When the Program was launched in 1973 less than 2% of couples chose a civil ceremony. Most recent
ABS statistics show that 71% of marriage ceremonies within Australia are civil ceremonies, conducted
by marriage celebrants registered under the Program or state officers. There are currently over 10,500
Commonwealth-registered marriage celebrants administered by the Program.
The administration of the Program includes assessing and authorising new marriage celebrants for
registration, reviewing celebrant performance, resolving complaints about celebrants, handling a large
volume of enquiries from celebrants, producing information and guidance materials, managing
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ongoing professional development arrangements for celebrants and engaging with celebrants and their
peak group. Many of these functions are carried out by the Registrar of Marriage Celebrants, a
departmental officer with specific authority under the Marriage Act to carry out various functions in
Subdivision C of Division 1 of Part IV of the Act.
The implementation of cost recovery will enable the Program to improve services delivered to
Commonwealth-registered marriage celebrants, while also better regulating those celebrants. These
measures will in turn facilitate Commonwealth-registered marriage celebrants delivering professional,
knowledgeable and legally correct services to marrying couples in Australia.
From 1 July 2014 the Attorney-General's Department intends to recover the following types of fees
and charges in relation to registered and prospective marriage celebrants:
an annual celebrant registration charge for all Commonwealth-registered marriage
celebrants
a registration application fee for aspiring marriage celebrants seeking registration, and
an application processing fee for seeking an exemption from:
the annual celebrant registration charge
the registration application fee, or
annual ongoing professional development obligations.
This Bill only provides for the imposition of the celebrant registration charge. This is because the
celebrant registration charge is a cost recovery levy and requires separate legislation to impose the
levy. This Bill imposes the charge that is payable in respect of a financial year and sets a statutory limit
of $600 on the charge, to be indexed according to the Consumer Price Index. The actual amount of the
annual registration charge is to be determined by the Minister by legislative instrument.
The machinery for implementing the celebrant registration charge and also for setting up the
registration application fee is being introduced separately by the Marriage Amendment (Celebrant
Administration and Fees) Bill 2014. In summary, to remain registered, a marriage celebrant must pay
an annual registration charge by the due date set out in a notice to the celebrant. Provisions will allow
an exemption from the annual registration charge. A celebrant who does not pay the charge (or have an
exemption) will be deregistered.
FINANCIAL IMPACT STATEMENT
The implementation of fees and charges for marriage celebrants will recover the costs of the
Attorney-General's Department's administration of the Program. It is not intended to generate revenue.
A Cost Recovery Impact Statement will be available on the Attorney-General's Department website by
30 June 2014.
REGULATION IMPACT STATEMENT
A Regulation Impact Statement has been prepared (Attachment A) and a Cost Recovery Impact
Statement will be available on the Attorney-General's Department website to further outline the details
of cost recovery by 30 June 2014.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. An overview
of measures in the Bill and human rights implications is below. The human rights implications should
be read in conjunction with the Marriage Amendment (Celebrant Administration and Fees) Bill 2014
which is related to this Bill.
Overview
The object of the Marriage (Celebrant Registration Charge) Bill 2014 is to implement a
2011-12 Budget measure to introduce cost recovery for the regulation of Commonwealth-registered
marriage celebrants that was to commence from 1 July 2013. Legislation to implement these reforms
was introduced into Parliament in March 2013. However, the Bill was not passed prior to Parliament
being prorogued. As a result, the cost recovery measures could not be implemented from 1 July 2013.
The Bill provides legislative authority for the Government to charge Commonwealth-registered
marriage celebrants an annual cost recovery levy, the celebrant registration charge. The charge will be
imposed on celebrants registered on 1 July in a financial year and also on celebrants first registered
after 1 July in a financial year.
All persons who solemnise marriages in Australia must be authorised under the Marriage Act. The
Marriage Act establishes the following three categories of celebrants who are authorised to solemnise
marriages under Australian law:
Ministers of religion of a recognised denomination, proclaimed under section 26 of the Act,
who are nominated by their denomination and registered and regulated by state and territory
registries of births, deaths and marriages.
State and territory officers who are authorised to perform marriages as part of their duties
and are registered and regulated by state and territory registries of births, deaths and
marriages, and
Commonwealth-registered marriage celebrants who are authorised under the Marriage
Celebrants Program to perform marriages. This group includes civil celebrants and
celebrants who are ministers of religion whose denomination is not proclaimed under
section 26 of the Act.
The introduction of legislative measures to introduce cost recovery only relates to the third group. The
regulation of the first two groups is carried out by states and territories. The purpose of the Bill is to
cost-recover the regulation of Commonwealth-registered marriage celebrants.
Under proposed amendments in the Marriage Amendment (Celebrant Administration and Fees) Bill
2014, a Commonwealth-registered marriage celebrant who does not pay the celebrant registration
charge (unless an exemption has been granted) will be deregistered. That Bill also enables regulations
to be made to provide exemptions from imposition of the celebrant registration charge.
Human rights implications
Rights to freedom of thought, conscience and religion or belief
Rights to equality and non-discrimination
Unless an exemption has been granted, all Commonwealth-registered marriage celebrants must pay the
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celebrant registration charge, including celebrants performing marriages for religious organisations
that are not `recognised denominations' proclaimed under section 26 of the Marriage Act. It will be
open to a Commonwealth-registered marriage celebrant, including those who perform marriages for
independent religious organisations, to apply for exemptions from the celebrant registration charge.
The exemption processes and grounds for exemptions and extensions are to be provided in regulations.
This Bill does not impose a celebrant registration charge on the first two categories of authorised
celebrants listed above. The regulation of these groups is carried out by states and territories. The
purpose of the Bill is to cost recover the regulation of Commonwealth-registered celebrants registered
under the Program and administered by the Commonwealth Attorney-General's Department.
The result of having different regulatory schemes is that some, but not all, authorised celebrants who
perform marriages using religious marriage ceremonies will pay the celebrant registration charge. This
difference arises because of the nature of the regulatory scheme, which is based on the categories of
celebrants set out under the Marriage Act.
Ministers from independent religious organisations may offer religious ceremonies of marriage to
couples in their congregations, even if they do not wish to remain registered under the Program.
Section 113 of the Marriage Act allows couples who are legally married to then undertake a religious
ceremony of marriage. The second religious ceremony has no legal affect however provides an
opportunity for couples to reflect important religious practices and beliefs related to marriage.
Ministers of religion do not need to be authorised celebrants under the Act if they are conducting
second religious marriage ceremonies under section 113. This practice is one followed in a number of
countries and has been available in Australia under section 113 of the Marriage Act since it was
enacted in 1961.
Rights to an effective remedy
Under the Marriage Amendment (Celebrant Administration and Fees) Bill 2014, a marriage celebrant
will be deregistered for not paying the celebrant registration charge by the due date unless he or she
has been granted an exemption from the charge. A marriage celebrant who is deregistered for
non-payment of the charge may seek review of his or her deregistration at the Administrative Appeals
Tribunal.
Under that Bill, a marriage celebrant who is refused an exemption from payment of the annual
registration charge may seek internal review of a charge exemption refusal decision.
Rights to work and rights in work
While the Bill places additional limits on registration by requiring payment of an annual registration
charge to recover regulatory costs from those who receive the benefit of authorisation, it does not
engage Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
This provision concerns the right to enjoyment of just and favourable conditions of work, including
remuneration.
Conclusion
The Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
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NOTES ON CLAUSES
Clause 1 - Short title
This clause provides that, when enacted, the Act may be cited as the Marriage (Celebrant Registration
Charge) Act 2014.
Clause 2 - Commencement
This clause sets out when the various parts of the Act are to commence.
Sections 1 and 2 will commence on the day on which this Act receives the Royal Assent.
Sections 3 to 8 will commence at the same time as Part 1 of Schedule 1 to the
Marriage Amendment (Celebrant Administration and Fees) Act 2014.
Clause 3 - Object of Act
This clause outlines the object of the Act to impose a charge for the purpose of funding the
administration by the Commonwealth of Subdivision C of Division 1 of Part IV of the
Marriage Act 1961, and the provision by the Commonwealth of services to people registered (or
seeking to become registered) as marriage celebrants under that Subdivision.
The purpose of this clause is to clarify the purpose of the Act. It reflects the proposed introduction of
cost recovery for the administration of the Marriage Celebrants Program, including services delivered
to Commonwealth-registered marriage celebrants.
Cost recovery only applies to Commonwealth-registered marriage celebrants, registered under
Subdivision C of Division 1 of Part IV of the Marriage Act. It will not apply to other celebrants
registered under the Marriage Act, as these are registered and regulated by state and territory registries
of births, deaths and marriages.
Clause 4 - External Territories
This clause provides that the Act extends to each of the Territories of Norfolk Island, the Territory of
Christmas Island, and the Territory of Cocos (Keeling) Islands. This mirrors the application of Part IV
of the Marriage Act pursuant to subsection 8(1) of that Act.
Clause 5 - Definitions
This clause defines the terms `index number' and `statutory limit'.
Index number is defined by the Act as, in relation to a quarter, the All Groups Consumer Price Index
number, being the weighted average of the eight capital cities, published by the Australian Statistician
in respect of that quarter.
The All Groups Consumer Price Index number is published by the Australian Bureau of Statistics on a
quarterly basis.
Statutory limit is defined in clause 8.
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Clause 6 - Imposition of celebrant registration charge
This clause provides legislative authority to impose the celebrant registration charge. A person is
liable to pay the celebrant registration charge in respect of a financial year in accordance with
section 39FA of the Marriage Act proposed to be amended by the Marriage Amendment (Celebrant
Administration and Fees) Bill 2014.
The liability applies in relation to a financial year to implement a 2011-12 Budget measure that cost
recovery be introduced. The liability will arise each financial year.
Clause 7 - Amount of charge
Subclause 7(1) provides that the amount of the celebrant registration charge payable by a person in
respect of a financial year is the amount determined by the Minister by legislative instrument. The
amount determined must not exceed the statutory limit for that financial year. This is further dealt
with in Clause 8.
Subclause 7(2) states that for people who become marriage celebrants later than 1 July in a financial
year, a determination under subclause (1) may provide that different amounts of celebrant registration
charge are payable in respect of that year. This amount may depend on when in the year they become
a marriage celebrant. This is to reflect that costs are incurred by the Program in administering newly
appointed celebrants from the time they are registered until the next annual charge becomes due and
payable on 1 July.
Clause 8 - The statutory limit
Clause 8 defines the statutory limit and describes the indexation factor. The statutory limit is the
maximum amount that a Minister may determine to be the celebrant registration charge.
Clause 8(1)(a) sets $600 as the statutory limit for the first financial year, commencing on 1 July 2014.
The amount will be indexed, using the Consumer Price Index (CPI).
The CPI is a measure of the average change over time in the prices paid by households for a fixed
basket of goods and services. In Australia, the CPI measures the changes in the price of a fixed basket
of goods and services, acquired by household consumers who are resident in the eight state/territory
capital cities. The Australian Bureau of Statistics is responsible for calculating the CPI on a quarterly
basis.
Subclause 8(1)(a) provides that for the financial year commencing on 1 July 2014, the amount is $600.
The Government has indicated that the amount to be set will be lower than $600. The determination
may be amended by the Minister in future years, to reflect the costs of administering the Program.
Subclause 8(1)(b) sets the statutory limit for later financial years, commencing 1 July 2015 and all
financial years beyond. Subparagraph 8(1)(b)(i) provides that unless subparagraph (ii) applies, the
amount is calculated by multiplying the statutory limit for the previous financial year by the indexation
factor. Subparagraph 8(1)(b)(ii) provides that if the indexation factor for the later financial year is one
or less, the statutory limit will the same amount as for the previous financial year.
Allowing the capped amount to be multiplied by the indexation factor ensures the statutory limit is
appropriately increased over following years to reflect inflation. This will reduce the need to amend
the primary legislation in the future.
Subclauses 8(2), 8(3) and 8(4) provide the technical details of how the indexation factor is to be
calculated.
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Subclause 8(2) provides that the indexation factor for a financial year is the number calculated by
dividing the index number for the March quarter immediately preceding that financial year by the
index number for the March quarter immediately preceding that first-mentioned March quarter. This
clause is intended to provide clarity to how the indexation factor for a financial year will be reached.
Subclause 8(3) provides that the indexation factor for a financial year is to be worked out to three (3)
decimal places (rounding up if the fourth decimal place is five (5) or more).
Subclause 8(4) provides that in working out the indexation factor for a financial year use only the
index numbers published in terms of the most recent published reference base for the Consumer Price
Index. It also requires that index numbers published in substitution for previously published index
numbers are disregarded (except where the substituted numbers are published to take account of
changes in the reference base).
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ATTACHMENT A
COST RECOVERY AND OTHER REFORMS FOR THE COMMONWEALTH MARRIAGE CELEBRANTS
PROGRAM - REGULATORY IMPACT STATEMENT
The Attorney-General's Department administers the Commonwealth Marriage Celebrants Program. The Program is
operated under subdivision C of Division 1 of Part IV of the Marriage Act 1961 (Cth) and Division 1A of Part III of the
Marriage Regulations 1963 (Cth). Subdivision C celebrants are civil celebrants or ministers of religion from independent
religious organisations, both of which are classified as Commonwealth-registered marriage celebrants.
PROBLEM IDENTIFICATION
MARRIAGE CELEBRANTS PROGRAM
2. In the years since its inception in 1973, the Program has grown significantly. Currently about 71% of Australian
marriages (there were approximately 123,000 marriages registered in 2012) are performed by marriage celebrants
registered by the Commonwealth. At the time of writing, there are over 10,500 Commonwealth-registered marriage
celebrants administered by the Program (between 2003 and 2009, the number of marriage celebrants increased from
3,623 to 9,045).
3. Marriage celebrants perform an important role that carries significant legal responsibilities. A key part of upholding
the institution of marriage is to ensure that celebrants undertake their role professionally and in accordance with relevant
standards and legal obligations.
4. The existing legislative regime governing marriage celebrants is robust, with statutory provisions to ensure integrity
and professionalism of celebrants. However, the department has had limited resources to effectively utilise the legislative
provisions available to regulate the industry properly. For example, to respond in a timely way to complaints relating to
the non-compliance of celebrants with their legislative obligations or with the statutory code. Having only limited
resources has also meant that the department has not been able to provide sufficient services to celebrants to support
them to meet their obligations.
5. Further detail is outlined in the Regulatory Impact Statement (RIS) published in June 2011 (Attachment A; pp. 3-7).
COST RECOVERY
6. The Australian Government is committed to ensuring consistency, transparency and accountability of Commonwealth
cost recovery arrangements and promoting the efficient allocation of resources. `Cost recovery' broadly encompasses
fees and charges related to the provision of government goods and services (including regulation) to the private and
other non-government sectors of the economy.
7. Cost recovery and other reforms for the Marriage Celebrants Program were to commence on 1 July 2013, subject to
the passage of legislation. Legislation to implement the reforms was introduced into Parliament in March 2013. The Bills
were passed by the House of Representatives, and the Senate Standing Committee for Legal and Constitutional Affairs
recommended passage of the Bills. However, the Senate did not consider the Bills prior to Parliament being prorogued.
This means that cost recovery could not be implemented from 1 July 2013.
OBJECTIVES OF PROPOSED REFORMS
8. The objective of the proposed reforms is to enable the department to improve the education and training services
delivered to marriage celebrants, while also better regulating those celebrants. Improved service delivery from the
department and efficient administration of the Program will in turn ensure professional, knowledgeable and legally
correct services are delivered to marrying couples in Australia.
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ATTACHMENT A
ADMINISTERING THE MARRIAGE CELEBRANTS PROGRAM
9. The department's administration of the Program includes assessing applications for registration from aspiring
marriage celebrants, reviewing celebrant performance every five years , resolving complaints about celebrants, handling a
large volume of enquiries from celebrants, producing information and guidance materials to assist celebrants to perform
their role, managing ongoing professional development (OPD) arrangements for celebrants and engaging with celebrants
particularly through representative associations and networks. Many of these functions are carried out by the Registrar of
Marriage Celebrants, a departmental officer with specific authority under the Marriage Act to carry out various functions
in Subdivision C of Division 1 of Part IV of the Act.
10. In addition to Subdivision C celebrants, the Marriage Act includes Subdivision A celebrants who are ministers of
religion who solemnise marriages for religious organisations that have been proclaimed as recognised denominations;
and Subdivision B celebrants who are officers who solemnise marriages on behalf of their state or territory (generally in
registry offices and courts). The proposed cost recovery arrangements do not apply to Subdivision A and Subdivision B
celebrants as they are regulated by the state and territory registries of births, deaths and marriages, and the department
incurs minimal cost in relation to these celebrants.
OVERVIEW OF PROPOSED CHANGES FOR THE PROGRAM
11. The implementation of cost recovery will introduce an annual celebrant registration charge for all
Commonwealth-registered marriage celebrants; a registration application fee for new marriage celebrants; and an
application processing fee for seeking an exemption from the annual celebrant registration charge, the registration
application fee or the annual ongoing professional development obligations.
12. In addition to cost recovery, administrative improvements are proposed to increase the efficiency and operation of
the Program. These include:
providing for more flexibility in undertaking celebrant performance reviews by removing the requirement that
this be done for all marriage celebrants every five years
providing for an Australian passport to be used as evidence of date and place of birth. This would be in addition
to the existing acceptable evidence specified in the Marriage Act, and
streamlining the marriage forms currently prescribed in the Marriage Regulations and providing for the majority
of the forms to become forms approved by the Minister instead of being prescribed in the Regulations.
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ATTACHMENT A
OTHER OPTIONS CONSIDERED TO MEET THE OBJECTIVES
13. The 2011 RIS provided details of the options for achieving the objectives of the proposed reforms to the Marriage
Celebrants Program. Some of these included maintaining the status quo; the provision of increased budget funding to
properly regulate the Program; and the introduction of cost recovery and improved regulation (Attachment A; pp.8-16).
CONSULTATION
14. Following the release of the options-stage RIS in 2011, the department undertook extensive consultation with
marriage celebrants, celebrant associations and state and territory registries of births, deaths and marriages (BDMs) so as
to inform the development of an appropriate fee structure and inclusions.
15. The department engaged with stakeholders in 17 meetings across Australia in October and November 2011.
Approximately 696 people attended these meetings (despite 1,348 advising they would attend). The department also
received over 280 written submissions during this time. This consultation elicited significant feedback from marriage
celebrants about the charging structure and inclusions. A summary of the outcomes of this consultation process was
made available on the department's website.
16. The department reviewed and revised processes, services and regulation to incorporate much of the feedback
received during the consultations. It considered how to deliver the Program in the most cost efficient way, while
providing value for money for celebrants and meeting government and legislative requirements, including cost recovery
policy objectives. An external consultant was engaged to determine the cost of effectively delivering these activities to
celebrants.
17. In August 2012 a consultation paper was released. The paper provided detailed information on the quantum and
structure of the fees and charges and the services that would be provided to registered marriage celebrants. 72 written
submissions were received in response to the consultation paper.
18. Ongoing consultation was also undertaken with individual celebrants, celebrant associations (some of which are
affiliated with the peak group), BDMs and training organisations delivering ongoing professional development to marriage
celebrants. Consultation included regular meetings with the peak group.
REGISTRATION APPLICATION FEE
19. The idea to set a registration application fee was derived directly from consultations with stakeholders. This fee
reflects the work carried out by the department specifically relating to the processing, assessment and approval of
applications from aspiring marriage celebrants.
COSTING APPROACHES
20. In determining the structure for the annual registration charge, careful consideration was given to arguments
presented by stakeholders during the consultation. While strong views were expressed during consultations about
whether the annual registration charge should be flat or based on a sliding scale, there was no consensus on a preferred
approach. For example, a strong argument presented during consultations was that many celebrants perform few
weddings and should therefore be subject to a lower charge. For this to be consistent with the Australian Government
Cost Recovery Guidelines, the department would need to demonstrate that it more actively regulates those celebrants
who solemnise more marriages. However it is arguable that celebrants who perform more weddings may require less
regulatory effort from the department as they have more experience and therefore require less guidance.
21. A sliding scale charge based on the number of weddings performed was therefore determined unsuitable and contrary
to the policy objectives of the introduction of cost recovery for the Program.
22. Some stakeholders called for any fees and performance obligations to be applied to the three categories of celebrants
authorised to conduct marriages under the Marriage Act:
(a) ministers of religion from proclaimed recognised denominations
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ATTACHMENT A
(b) state and territory officers performing marriages in the course of their duties, and
(c) Commonwealth-registered marriage celebrants.
Category (a) and (b) celebrants are not regulated by the department; they are regulated by the state and territory BDMs.
The purpose of introducing the changes is not to reform regulatory roles and responsibilities, and to do so would involve
significant amendments to the Marriage Act. Rather, the changes are designed to allow the department to improve the
delivery of services to and the regulation of Commonwealth-registered marriage celebrants (category (c) celebrants).
23. Another suggestion put forward by some stakeholders was in relation to applying a charge to the Notice of Intended
Marriage (NOIM). A fee on the NOIM is also unsuitable given that marrying couples are not the direct recipients of the
services provided by the department to marriage celebrants. While this approach would apply the fee to all marrying
couples in Australia, and therefore all types of marriage celebrants, it would create administrative, financial and legal
difficulties in apportioning the fees between the separate Commonwealth, state and territory regulators the three
categories of marriage celebrants under the Marriage Act. This would also not be cost effective and hence inconsistent
with the Cost Recovery Guidelines.
REMOVAL OF `LIFETIME' REGISTRATION
24. Some marriage celebrants suggested the introduction of cost recovery represents a shift away from the concept that
registration as a Commonwealth marriage celebrant is a lifetime appointment. This characterisation is inaccurate. A
marriage celebrant who complies with the obligations of being a celebrant as set out in the Marriage Act can continue to
be a celebrant. However a celebrant who does not meet his or her obligations can be deregistered (for example, since
2008 approximately 370 marriage celebrants have been deregistered following reviews of their performance).
25. The introduction of the annual celebrant registration charge creates a new obligation for marriage celebrants similar
to existing obligations to undertake annual ongoing professional development, act in a fit and proper manner and update
the Registrar of Marriage Celebrants of any change in their circumstances.
INTRODUCTION OF A CAP OR MORATORIUM FOR NEW APPLICANTS
26. Some marriage celebrants suggested the department should introduce new requirements for the registration of new
celebrants including capping numbers, a moratorium or appointing a limited number of celebrants in specific regions
every five years.
27. When the current form of the Program was introduced in 2003 it included a five year cap on the number of new
celebrant registrations (the cap expired in September 2008). Under the `cap' no more than 10% of the total number of
registered marriage celebrants in the previous year could be registered as marriage celebrants (applied on a regional
basis). In 2006, the cap was increased to 20% in order to reduce pressure on the extensive waiting lists that had
developed of people aspiring to become Commonwealth-registered marriage celebrants. In August 2008, the cap ceased
to exist by operation of section 39E of the Marriage Act.
28. A cap is not a viable or efficient way to manage celebrant numbers and ensure applicant quality. Experience with the
2003-08 `cap' on new registrations led to extensive waiting lists for aspiring celebrants who ultimately became registered
before the cap expired (due to the increase in the cap in 2006) or at its expiry in 2008. A regional appointment process is
also incongruous with the ability of marriage celebrants to marry couples anywhere in Australia once registered.
29. This was an option also considered in the 2011 RIS as unsuitable.
30. The introduction in 2010 of the requirement that applicants hold a Certificate IV level qualification has significantly
reduced the number of applications submitted for registration from 3,180 in 2009 to 759 in 2013. The higher qualification
delivers more in-depth training and better equips celebrants to fulfil their legal and professional role.
31. The department is confident that the strengthened process it proposes for the assessment of applications, along with
the requirement of a Certificate IV qualification, will have a further positive impact on the quality of incoming celebrants
without the need for a cap or a complicated regional appointments process.
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ATTACHMENT A
CONSULTATION: CONCLUDING COMMENTS
32. As noted earlier, following the introduction of the Bills, the Senate Committee held an inquiry. 111 submissions were
received from the peak group, celebrant organisations and individual celebrants. Submissions included a number of
`form-letter' type submissions. The views of celebrants remain divided. Some support the introduction of the fees and
charges under cost recovery arrangements as a professional obligation; others oppose the introduction and suggest
alternatives such as those discussed above. These issues were canvassed in the Senate Committee report which
concluded no amendments to the Bills were required to address these issues and recommended passage of the Bills.
IMPACT ANALYSIS: COSTS AND BENEFITS
33. From 1 July 2014 the department intends to recover the following types of fees and charges in relation to registered
and prospective marriage celebrants:
(i) an annual celebrant registration charge for all Commonwealth-registered marriage celebrants - this charge will
be set at $240 in 2014/15
(ii) a registration application fee for aspiring marriage celebrants seeking registration - this fee will be set at $600 in
2014/15, and
(iii) an application processing fee of $30 in 2014/15 for seeking an exemption from:
the annual celebrant registration charge
the registration application fee, or
annual ongoing professional development obligations.
34. The department will provide a Cost Recovery Impact Statement to support the introduction of cost recovery from 1
July 2014.
ANNUAL CELEBRANT REGISTRATION CHARGE
35. The annual costs of administering Commonwealth-registered marriage celebrants will be fully cost recovered through
a cost recovery levy known as the celebrant registration charge.
36. Registered marriage celebrants will be required to pay the annual registration charge to retain registration as a
marriage celebrant. Failure to pay the charge by the due date will result in deregistration unless an exemption is granted
by the Registrar of Marriage Celebrants.
37. The options for paying the annual charge will include credit card payment online or by other means such as telephone.
Costs and benefits for marriage celebrants, industry and marrying couples
38. The 2011 RIS anticipated that up to 10% of marriage celebrants registered under the Program may leave the industry
as a result of the introduction of the annual celebrant registration charge. Following consultation, there is no indication to
suggest that the anticipated figure of 10% has changed.
39. It is also anticipated there will be negligible impact on the number of marriage celebrants available to marrying
couples if marriage celebrants leave the industry. For example, in February 2010 the minimum qualification requirement
for marriage celebrants was significantly increased from a single unit of competency to a full Certificate IV level
qualification. While the number of celebrant registrations has reduced since the introduction of the increased
qualification, there has been no impact on the number of marriage celebrants available to marrying couples. In fact, there
are more celebrants to choose from given that prior to the introduction of the increased qualification, there were 8,546
Commonwealth-registered marriage celebrants and today there are over 10,500 marriage celebrants registered under the
Program.
40. The inclusion of exemptions from the annual charge for celebrants in remote areas will ensure continued access to
celebrancy services for those communities.
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ATTACHMENT A
41. It is estimated that 9800 marriage celebrants will be subject to the annual registration charge in 2014/15.
REGISTRATION APPLICATION FEE AND STRENGTHENED APPLICATION PROCESS
42. Aspiring marriage celebrants will be required to pay an application fee unless an exemption from the application fee
has been granted. Currently no fee is payable. The application fee will apply irrespective of whether the application is
successful as the department undertakes the assessment in either case. Regulations will provide for the granting of
exemptions from the application fee, grounds for exemptions and a process of internal review of decisions to refuse to
grant an exemption.
43. Once a person has paid the fee, completed and submitted their application for registration, the current practice of
dealing with applications in order will be retained to maintain fairness in processing applications for registration.
44. Aspiring celebrants will complete an online application for registration and have the option to pay the fee online or to
request an invoice to be sent to them. Moving the current paper based application form for registration as a marriage
celebrant to an online application form will streamline the application process and improve the administration of the
application process for the department. Prospective marriage celebrants will continue to have the option to apply using
the paper based form. It is expected that only a small portion of applicants will use the paper based form (approximately
7%).
45. Aspiring celebrants are required to complete and submit an application form along with supporting documents when
applying to become a marriage celebrant. It is proposed that a strengthened application process be introduced, including
police background checks on all applicants, and interviews with aspiring celebrants where appropriate. The strengthened
process will provide for better scrutiny of aspiring marriage celebrants before they are registered.
Costs and benefits for marriage celebrants, industry and marrying couples
46. The registration application fee does not impact existing marriage celebrants as it applies to aspiring marriage
celebrants.
47. It is anticipated that while the number of applications for registration may reduce as a result of introducing the
registration application fee, the actual number of overall registrations are likely to remain consistent. As noted in
Attachment B, the number of applications has remained steady over the past four years. This is the case notwithstanding
the increased qualification requirements for registration in 2010. The average annual number of applications for
registration is expected to remain at 572.
48. The inclusion of an exemption on the grounds of remoteness from the registration application fee for aspiring
celebrants will ensure access to celebrancy services for those communities.
EXEMPTION APPLICATION FEE
49. Marriage celebrants will be able to seek an exemption from either the registration application fee, the annual
celebrant registration charge or from fulfilling their ongoing professional development obligations. Criteria for the
processing of and grounds for exemptions will be set out in the Marriage Regulations. These criteria will include
circumstances such as long term illness or incapacity for a significant period during the year. It is also intended that
eligibility for exemptions be available for celebrants living in remote areas to assist remote communities maintain access
to a civil celebrant service. An exemption application processing fee will apply. The exemption application fee will apply
regardless of whether the exemption is granted as the department processes the request in either case.
50. To apply for an exemption from the annual celebrant registration charge, marriage celebrants will be required to
complete an application for exemption form, either online or on a paper form and pay the exemption application
processing fee. Prior to completing the application for exemption form, they will self-assess their eligibility for making the
exemption application. Guidance material will be made available by the department for celebrants to determine their
eligibility.
51. An application for an exemption from the registration application fee must be made before the application for
registration is submitted to the department. Prior to completing the application for exemption form, aspiring marriage
14
ATTACHMENT A
celebrants will self-assess their eligibility for making the exemption application. Guidance material will be made available
by the department for applicants to determine their eligibility.
52. The Marriage Regulations already provide that celebrants may apply for exemptions from annual ongoing professional
development (OPD). It is intended a fee will be charged for processing OPD exemption applications. The process for
applying for an OPD exemption will be streamlined and simplified including through the use of an online application form.
Costs and benefits for marriage celebrants, industry and marrying couples
53. It is estimated 200 marriage celebrants will apply annually for an exemption from fulfilling their OPD obligation.
54. The inclusion of exemptions from either the registration application fee or the annual celebrant registration charge
will ensure continued access to celebrancy services for communities.
PERFORMANCE REVIEWS
55. Under the Marriage Act, the Registrar of Marriage Celebrants must regularly review each marriage celebrant's
performance to determine whether the performance is satisfactory. The Marriage Act also provides the timeframe in
which the Registrar must conduct performance reviews: the first review must be completed within five years of the
celebrant being registered; and each later review must be completed within five years of the previous review.
56. Due to the rapid expansion of the Program and the resource intensive nature of performance reviews, it is not
practicable for the department to perform meaningful performance reviews of each of the approximately 10,500
marriage celebrants every five years. For example, the number of reviews required to be completed in 2014 is 1,919.
57. The current statutory requirement to review every marriage celebrant regardless of identified concerns means that
those that have provided no cause for concern must undergo an assessment in any event. This has resulted in insufficient
focus on those marriage celebrants whose performance merits attention in a timely way.
58. The requirement to review a celebrant's performance every five years will be removed. Instead of all celebrants
having their performance reviewed, the department will focus attention on celebrants about whom concerns are raised,
for example through complaints.
59. The proposed change to performance review requirements will make performance reviews more meaningful and
useful as part of the Program. It will provide the practical flexibility to enable performance reviews to address problems
when they are identified.
60. For the majority of celebrants this will remove the burden of going through a mandatory review in circumstances
where there may not be any grounds to impose such a process.
AUSTRALIAN PASSPORTS AS ACCEPTABLE DOCUMENT FOR DETERMINING DATE AND PLACE OF
BIRTH
61. Marrying couples must provide their celebrant with evidence of date and place of birth as part of the process of
completing their notice of intended marriage. The Marriage Act lists the acceptable evidence, which includes a passport
issued by a government of an overseas country. It is proposed to amend the Marriage Act to enable a marriage celebrant
to accept an Australian passport as evidence of date and place of birth in addition to the existing provisions. This will
increase the documentation that a marriage celebrant may use to determine the date and place of birth of the marrying
parties.
62. Large numbers of overseas-born Australians seeking to be married do not have (or find it impracticable to obtain)
official certificates, or official extracts of an entry in an official register, showing their date and place of birth. Many
overseas-born Australians do not have a passport issued by a government of an overseas country showing their date and
place of birth, but they do hold an Australian passport.
63. If a marrying individual does not possess a foreign passport, a birth certificate must be produced to verify the person's
date and place of birth. If a person does not possess a birth certificate, this document must be obtained from the relevant
15
ATTACHMENT A
authority, whether in Australia or overseas. This can involve considerable expense and inconvenience, particularly for
those who were born overseas.
64. Increasing the documentation that may be used to determine the date and place of birth of marrying couples will
significantly reduce the burden on them of having to locate their official certificates showing their date and place of birth
or to complete a statutory declaration declaring that it is impractical to obtain an official certificate.
65. The department regularly deals with enquiries regarding evidence of date and place of birth from marrying individual
and marriage celebrants. Anecdotal evidence, including feedback from marriage celebrants during the consultations,
suggests that a significant number of marrying individuals with an Australian passport would seek to utilise this document
as their evidence of their date and place of birth over trying to locate or obtain an original birth certificate or extract from
an official register. Marriage celebrants are also supportive of providing for an Australian passport to be used as evidence
of date and place of birth.
PRESCRIBED FORMS TO BECOME APPROVED FORMS
66. Currently all marriage forms are prescribed in the Marriage Regulations. A significant number of the forms are of an
administrative nature. In order to improve and modernise the operation of the Program the majority of the existing
prescribed forms (those of an administrative nature) will become Ministerial approved forms for the purposes of the
Marriage Act. This will facilitate the department's ability to make relevant and timely updates while maintaining
appropriate checks and balances for the available marriage forms. For example, during the consultations for cost recovery
and other changes, marriage celebrants identified the need to update and modernise the form 14A `Happily Before and
After' brochure which they are required to provide to marrying couples. In order to update the form 14A amendments to
the Marriage Regulations are required. The administrative process for amendments to regulations requires a significant
amount of time and is subject to external timeframes.
67. The marriage certificate that marrying couples receive will remain as a form prescribed in the Marriage Regulations.
REGULATORY COSTS AND OFFSETS ESTIMATE TABLE
AVERAGE ANNUAL COMPLIANCE COSTS (FROM BUSINESS AS USUAL)
Costs ($m) Business Community Individuals Total Cost
Organisations
Total by Sector $0.119 $0 $0 $0.119
Cost offset ($m) Business Community Individuals Total by
Organisations Source
Agency $0.061 $ $3.390 $3.451
Within portfolio $ $ $ $
Outside portfolio $ $ $ $
Total by Sector $0.061 $ $3.390 $3.451
Proposal is cost neutral? yes no
Proposal is deregulatory yes no
Balance of cost offsets $3,332,000
Attachment B provides details on the compliance and costs.
16
ATTACHMENT A
CONCLUSION
68. The purpose of introducing cost recovery and other reforms to the Program is to streamline and modernise the
administration of the Program particularly by moving most transactions with marriage celebrants to the online
environment.
69. Stakeholder consultation elicited significant feedback on the proposed reforms. The department reviewed and revised
processes, services and regulation to incorporate much of the feedback received during the consultations. In summary,
feedback received during consultations indicated some marriage celebrants support the introduction of the fees and
charges under cost recovery arrangements as a professional obligation; others oppose the introduction and suggest
alternatives including, costing approaches such as a sliding scale based on the number of weddings performed or applying
a charge on the Notice of Intended Marriage form. Some marriage celebrants suggested that that the introduction of cost
recovery represents a shift away from the concept that a registration as a Commonwealth marriage celebrant is a lifetime
appointment. The introduction of the annual celebrant registration charge creates a new obligation for marriage
celebrants similar to existing obligations, compliance with which is the basis for continuing registration. Some marriage
celebrants suggested the department should introduce new requirements for the registration of new celebrants including
capping numbers. Marriage celebrants overwhelmingly supported the introduction of a registration application fee in
consultations.
70. It is envisaged the operation of the Program will be improved through the introduction of cost recovery. Cost recovery
will enable the department to improve the education and training services delivered to marriage celebrants, while also
efficiently regulating those celebrants and ensuring quality control. Improved service delivery from the department and
efficient regulation will in turn ensure professional, knowledgeable and legally correct services are delivered to marrying
couples in Australia. Through the introduction of cost recovery the Program will be placed on a more secure foundation
into the future ensuring that the high standards Australians rightfully expect of Commonwealth-registered celebrants are
properly monitored and enforced.
17
ATTACHMENT A
ATTACHMENT B - COST RECOVERY AND OTHER REFORMS FOR THE COMMONWEALTH MARRIAGE CELEBRANTS PROGRAM - REGULATORY
COST AND OFFETS
Foundation Assumptions
A. Celebrant time costing: $30/hr
This figure can be justified in three ways:
1) The consultation RIS indicates the average charge for a marriage celebrant's service is $250-300 per ceremony. Informal consultation with celebrants has
revealed approximately 10 hours of time per ceremony. This would translate to $25-30/hr.
2) According to the Australian Bureau of Statistics, the average weekly earnings in 2012 were $1,222.60
(http://www.abs.gov.au/ausstats/abs@.nsf/mf/6306.0/). Given the vast difference in celebrant working hours, charging rates and geographic placement,
there is unlikely a more suitable figure than the average earnings across all Australian industries. This figure equates to a $30-32/hr rate depending on
hours worked per week (37.5 - 40).
3) The Office of Best Practice Regulation Interim Regulation Impact Statement Process Guidance Note provides in Attachment D, that the default wage for a
non-managerial employee is $34.20. The majority of marriage celebrants however, provide celebrant services on a part-time or casual basis as a sole
trader or individual.
B. Time taken to complete tasks:
1) Time taken to complete tasks was estimated from trialling where possible. For example, researching potential exemptions in the register.
REGULATION COST AND IMPACT ASSESSMENT
Activity No. of Celebrants Calculation Justification and impact assessment Time required to complete (minutes)
affected
1. Registration application fee
1.1 Paying the 532 It is estimated that 572 applications will be received per year, of 20
registration which a percentage will be eligible for an exemption from the
application fee registration application fee. The number of marriage celebrant
applications has remained steady (at 45 - 50 per month) over
the past four years, with little variation. The average number of
18
ATTACHMENT A
applications that can be expected annually is 572.
Paying the registration fee includes the payment of the fee
during the registration process via the online portal or other
means (such as over the telephone), and receiving a payment
receipt for the transaction.
The registration application fee is a one-off start up cost.
1.2 Seeking an A number of aspiring celebrants will be eligible for an 40
exemption from the exemption from the registration application fee on the grounds
registration of remoteness. All those seeking an exemption are required to
application fee research on the locator tool (web based) and the Register of
Marriage Celebrants on the department's website to check if
they fulfil the exemption eligibility requirements.
Exemption applications are required to be completed and
emailed or mailed to the department. This is accompanied by
the payment of a $30 exemption application processing fee.
The applicant will receive notification of the outcome of the
exemption via mail or email.
2. Strengthened application process
2.1 Strengthened 572 As part of a more comprehensive application process, police 30
application process checks are required for aspiring celebrants; applicants will be
including application interviewed to determine their suitability as a marriage
interviews and police celebrant.
checks
3. Annual celebrant registration charge
3.1 Paying the annual 9800 Over the past five years, there have been minor fluctuations in 20
celebrant the balance between registrations and deregistrations, however
registration charge the overall number of registered celebrants has remained
relatively consistent. There are currently approximately 10,500
registered marriage celebrants. A percentage will be eligible for
an exemption from the annual celebrant registration charge.
19
ATTACHMENT A
This process includes receiving an annual invoice, payment of
the registration charge via the online portal or other means
(such as over the telephone), and receipt of a transaction
receipt for the payment.
3.2 Seeking an It is estimated a percentage of celebrants will be eligible for an 40
exemption from the exemption from the annual celebrant registration charge,
annual celebrant primarily based on the geographic location of the celebrant.
registration charge The aim of the exemption is to ensure that celebrancy services
remain available in remote communities. Celebrants seeking an
exemption are required to research on the locator tool (web
based) and the Register of Marriage Celebrants on the
department's website to check if they fulfil the exemption
eligibility requirements on the basis of remoteness.
4. OPD exemption application fee
4.1 Paying the OPD 200 On average, 200 OPD exemption requests are received 30
exemption annually.
application fee
This involves completing an exemption application form, and
the payment of a $30 administration fee.
20
ATTACHMENT A
REGULATORY OFFSETS AND IMPACT ASSESSMENT
Activity No. of Celebrants Calculation Justification and impact assessment Time Saved (minutes)
affected
1. Performance Reviews
1.1 Targeted 1279 Over the next five years, the average number of performance 90
performance reviews reviews required to be conducted annually is 1804. The marriage
celebrants database can accurately predict that the number of
performance reviews to be conducted are:
2014 - 1919
2015 - 1995
2016 - 427
2017 - 1098
2018 - 3581
Each performance review requires a comprehensive
questionnaire, which includes marriage celebrants having to
demonstrate an understanding of the requirements of the
Marriage Act, in addition to providing the department with
specific information regarding their practice.
Targeted performance reviews will significantly reduce the
number of performance reviews required to be undertaken by
celebrants each year. Targeted performance reviews will be
triggered by conduct, such as complaints, and the department's
administrative goal will be to conduct targeted reviews on 5% of
registered celebrants per year.
On average, this measure will reduce the annual regulatory
burden on 1279 celebrants by not being required to complete a
performance review in a given year.
2. Marriage Celebrant Registration Application Streamlining
21
ATTACHMENT A
2.1 Marriage celebrant 572 Streamlined online application process has facilities for digital 60
registration document upload and faster question submission. This will save
application - online celebrants time when making an application for registration to
submission and the department.
removal of statutory
declaration Additionally, the statutory declaration is no longer required.
3. Online OPD Exemption Application Form
3.1 Applying for an OPD 200 On average 200 OPD exemption requests are received annually. 20
exemption
The online form will streamline the process for applying for an
OPD exemption, with faster question submission and supporting
document upload facilities.
4. Evidence of date and place of birth
4.1 Providing for an 62,783 The Marriage Act 1961 does not provide for an Australian 120
Australian passport passport to be used to establish a person's date and place of
as evidence of date birth for the purpose of getting married.
and place of birth
If an individual does not possess a foreign passport, a birth
certificate must be produced to verify the person's date and
place of birth. If a person does not possess a birth certificate, this
document must be obtained from the relevant authority,
whether in Australia or overseas. This can involve considerable
expense and inconvenience, particularly for those who were born
overseas.
Providing for an Australian passport to verify a person's date and
place of birth would significantly reduce the time, cost and
inconvenience involved to locate an original birth certificate or to
provide a statutory declaration declaring it is impossible to do so
for the purpose of getting married in Australia.
During consultations, marriage celebrants supported providing
for an Australian passport to be used as evidence of date and
place of birth.
22
ATTACHMENT A
123,000 weddings are conducted each year in Australia, involving
167,423 Australian born individuals. The other individuals are
foreign born, and will not be affected by this proposal. (latest
available ABS statistics; the number of marriages that take place
each year is steady at this number).
There are 11 million (50% of the population) active Australian
passports currently. Therefore 83,711 (50%) of the Australian
born individuals getting married will have active Australian
passports
It is estimated 75% (62,783) will use an Australian passport. This
is based on anecdotal evidence received during consultations and
the enquiries dealt with by the department from both marrying
couples and marriage celebrants.
Whilst an individual requires a birth certificate to apply for an
Australian passport (which is then usually valid for 10 years), a
person does not need to provide a birth certificate for passport
renewal. Anecdotal feedback suggests that a passport will more
likely be readily accessible. A birth certificate may be left with
other family members, or secured in less convenient location.
23
ATTACHMENT A
REGULATION IMPACT STATEMENT (2011)
New Policy Proposal
Marriage Celebrants Program - Better Management through Fees
Background
The Marriage Celebrants Program
The Marriage Celebrants Program (the 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 wedding. The Commonwealth has constitutional responsibility for marriage matters
including the Program. It is administered by the Attorney-General's Department.
All persons conducting marriages in Australia must be authorised to do so under the Marriage Act
1961 (the Act). The Act establishes 3 categories of people who may be authorised to conduct
marriages in Australia.
a) Ministers of religion from `recognised denominations' under the Act,
b) Officers of the States and Territories who are authorised to perform marriages as part of their
duties, and
c) Marriage celebrants authorised under the Program to perform marriages.
The proposals addressed in this RIS relate only to marriage celebrants in category (c).
When the Program was launched in 1973 less than 2% of couples chose a civil ceremony. Today 65%
of marriage ceremonies within Australia are conducted by civil marriage celebrants registered under
the Program.
Principal elements of the Program
Significant reforms to the Program were made as a result of the passage of the Marriage Amendment
Act 2002. These reforms commenced operation on 1 September 2003. The major elements of the
Program that resulted from these reforms were:
completion of a prescribed training course in order to be registered as a celebrant (from 2010
this has required a Certificate IV in Celebrancy),
a statutory application process for registration including criteria for assessing the suitability of
applicants to be registered as marriage celebrants,
public listing of approved celebrants on a Register of Marriage Celebrants,
a requirement for celebrants to undertake a minimum of 5 hours of professional development
each year,
compliance with a statutory Code of Practice,
24
ATTACHMENT A
a complaints process which enables complaints to be lodged against celebrants regarding
their solemnisation of marriage ceremonies,
review of the performance of each individual marriage celebrant against statutory criteria at
least every five years,
availability of disciplinary measures against marriage celebrants who fail to meet their
statutory obligations (including suspension and deregistration), and
a right of appeal for marriage celebrants to the AAT against decisions to reject their
application for registration or to suspend or deregister them.
These requirements are necessary and appropriate for the authorisation and monitoring of private
citizens who perform significant legal responsibilities where failure to properly perform those
responsibilities can have a significant negative impact on members of the public.
Legal significance of the role of marriage celebrant
Marriage results in a change of legal status for the parties to it and often a change of name for one
party. Marriage celebrants have a number of significant legal responsibilities in conducting marriages.
They must satisfy themselves as to the identity of each party they marry. There is no subsequent
official confirmation that the individuals a celebrant names in a marriage certificate are who they
claim to be. Further, a new identity document, a marriage certificate, is created that is dependent on
the individual celebrant's care and expertise in verifying individuals' identities. There is evidence of
long-term problems with celebrants incorrectly verifying the identity of people prior to a marriage.
Other significant and potentially complex legal responsibilities include ensuring the full and free
consent of each of the parties to a marriage, that the parties are aged over 18 years and not closely
related and that neither party is currently married. Fulfilling these obligations often requires
celebrants to examine and assess foreign identity, marriage and divorce documents. Celebrants need
to also ensure that the parties' marriage vows meet minimum requirements, prepare marriage
certificates (which are identity documents) and send marriage certificates and other documents to
registering authorities following the marriage ceremony.
State and Territory registering authorities register marriages on the basis of the material provided by
the celebrant. Poor understanding of legal obligations and requirements on the part of celebrants
may therefore have a significant effect on the marrying couple in relation to complex issues such as
succession, divorce and the validity of marriages. Unprofessional performance by celebrants can
leave marrying couples required to pay costs associated with obtaining the correction of records and
certificates or rectifying other failures such as non-registration of marriages.
In 2010 there were a number of media reports claiming a large percentage of marriages may be
invalid because the wording of the vows used in ceremonies did not comply with the Act. The
adequacy of vows is one example of a legal obligation of which some celebrants registered under the
Program have a poor understanding. Under the Act marriages may be invalid if they do not meet
specific legislative requirements for solemnisation. The use of vows in marriage ceremonies is
considered a key element in establishing consent before witnesses.
25
ATTACHMENT A
In addition to these significant legal responsibilities marriage celebrants perform an important
ceremonial role in the conduct of marriages. As marriages are an infrequent event in the life of
people in the community, professional performance of this role is significant to marrying couples and
their family and friends and something they are entitled to rely upon.
The Government has clearly stated that marriage is an important institution within society.
Professional performance of the role of a marriage celebrant is a key part of upholding the
importance of marriage within society.
Marriage celebrants registered under the Program
Marriage celebrants are registered as individuals. An organisation cannot be registered to solemnise
marriages. Most celebrants charge couples a fee for the performance of their functions. There are
no prescribed fees. Celebrants are able to charge whatever fee they judge appropriate and are
therefore able to recover the costs of operating as a celebrant, including meeting legislative
requirements.
A proportion of celebrants (up to 30%) do not charge marrying couples a fee or charge only a minimal
fee. These celebrants include persons conducting marriage ceremonies on behalf of small
independent religious organisations and celebrants in rural and remote locations in which few
marriage ceremonies are performed each year.
The number of marriages conducted in Australia in 2008 was 118,756 (ABS statistic). Of these, 35%
were conducted by ministers of religion. The rest were conducted by marriage celebrants registered
under the Program and the Registries of Births, Deaths and Marriages in the States and Territories.
Approximately 5% of marriages fall into this latter category.
The raw average for the number of marriages conducted by each celebrant registered under the
Program is approximately 6.6 per annum. A significant proportion would perform many more
marriages than this (up to 50 or more per year) and a significant proportion would perform less (0-2
each year).
Many registered marriage celebrants are of retirement age or older and many undertake celebrancy
to supplement other income, out of interest or to contribute to the community.
Problem identification
The legislative regime governing marriage celebrants registered under the Program is robust. It
contains a range of mechanisms to ensure that the integrity of the Program is protected including
performance reviews, disciplinary measures and a complaints procedure. From a legal standpoint,
these measures are considered adequate to address non-compliance or poor performance by
marriage celebrants.
However, practical experience in administering the Program has indentified that a significant
percentage of marriage celebrants do not fully understand either the legal or administrative
requirements of marriage celebrancy and do not comply with their legislative obligations. The
Department currently lacks the resources or capacity to apply the existing legislative measures
26
ATTACHMENT A
provided to properly regulate the industry and respond in a timely way to those celebrants who not
comply with their legislative obligations. The factors underlying these problems are identified below.
Growth in the Program
The Program has experienced considerable growth in numbers - a trebling - and hence demand for
Departmental services has increased steadily since 1 September 2003. On
1 September 2003 there were 3,317 celebrants registered under the Program. At 1 January 2011
there were approximately 10,500 celebrants.
Celebrants registered under the Program are placing increasing demands on the Department for
guidance and advice on carrying out their responsibilities. The number of enquiries handled by the
Department is approximately 18,000 per annum. Many of these enquiries are complex, raise
significant legal issues and require a written response.
Celebrants pay no charge for provision of these services.
Inability to effectively regulate the Program
The huge growth in the Program has made it increasingly difficult to manage the statutory
requirements involved in regulating celebrants within the resources provided through the budget.
This has fuelled the continuation of poor performance by celebrants. Some key statutory regulatory
responsibilities are currently not being met. A key example is provided by the conduct of
performance reviews on marriage celebrants registered under the Program.
Performance reviews
Section 39H (1) of the Marriage Act provides that the Registrar of Marriage Celebrants must regularly
review each marriage celebrant's performance to determine whether the performance is
satisfactory. Subsection 39H (2) provides the time frame in which the Registrar must conduct the
performance reviews: the first review must be completed within 5 years of the celebrant being
registered; and each later review must be completed within 5 years of the previous review. A
detailed analysis follows:
A large number of marriage celebrants registered prior to 1 September 2003 were transferred to the
Program that commenced on that date. The reviews of 2,802 of these celebrants were required to
be completed by 1 September 2008. Reviews of this group completed to date number 1,967. The
number of celebrants identified as fully compliant with their obligations was only 753. The number
of reviews in this group still be finalised is 835.
Non-compliance with the legislative obligations contained in sections 45 and 46 of the Act (which
establish the key requirements for the conduct of marriage ceremonies) required follow up in at least
154 instances of the 1,967 completed reviews of celebrants registered prior to 1 September 2003.
Reviews due for completion by 1 September 2009 were 336. These were celebrants registered in the
year 2003-2004. The number of reviews completed is 333 of which only 83 complied in all respects
with their obligations. A total of 247 were subject to further follow up due to non-compliance with
27
ATTACHMENT A
the obligations in sections 45 and 46 of the Act. Following a supplementary review of these
celebrants in which further information was sought and examined, a total of 58 still did not comply
and will require further action. A total of 15 reviews are still outstanding in this group.
The number of first reviews due to be completed by 31 December 2010 was 731. These celebrants
were registered in 2004-2005. Of these, 506 have been assessed. A total of 239 have been assessed
as meeting all obligations and 139 as meeting some. A total of 58 were found to have met no
obligations. The total number within this group yet to receive any assessment is 225. Of those
assessed, 275 do not comply with the requirements of sections 45 and 46 of the Act.
In 2011,767 celebrants will be due for their first performance review (these celebrants were
registered in 2005-2006). In addition, 1,055 are due for follow up review. Thus 1,822 reviews are
required to be completed in 2011. By 2013 the number required to be completed will increase to
more than 4,500 due to the increased rate of registration of new celebrants from 2005-2006
onwards.
The above numbers do not take full account of the backlog of performance reviews remaining
incomplete from previous years. The current backlog is over 1,000. These outstanding reviews all
relate to celebrants about whom more complex and serious issues of non-compliance have been
identified and in which the response to the specific issues must be directed to the individual
circumstances of the particular celebrant.
The total number of performance reviews completed to date is 2,806. The issues identified as a
result of these performance reviews are:
non-compliance with the legislative requirements of sections 45 and 46 of the Act,
compulsory activities such as questionnaires not being completed,
full or partial non-compliance with professional development obligations,
failure to meet annual reporting requirements, and
non-compliance with legislative obligations to advise of changes of contact details or personal
circumstances.
In order to finalise the 2,806 performance reviews completed to date, the scope of the reviews has
effectively been reduced to a perfunctory level. The failure to respond to more serious allegations of
non-compliance has been due to the strict requirements of administrative law which must be
afforded to celebrants before disciplinary measures can be imposed. Involuntary deregistration of a
celebrant results in a review right to the AAT resulting in further strains on the Program.
Currently, perfunctory performance reviews are undertaken at a rate of approximately 8 per day
resulting in a maximum of 1,840 being completed annually. The proper conduct of performance
reviews would require an increase in time spent per review to an average of 2 hours per review
which would result in the completion of only 3 per day for a total of 690 per annum.
28
ATTACHMENT A
A total of 244 celebrants have been deregistered as a result of performance reviews, another 261
voluntarily resigned (at least in part as a result of performance reviews), and 63 cautions have been
issued. This result has not been achieved in a timely way which has resulted in significant issues of
non-compliance remaining unaddressed. There is a significant concern that some celebrants who
have outstanding performance reviews should not be performing marriages due to poor
performance.
Performance of legal obligations
Lack of understanding of legal obligations remains a significant problem. The requirement that
marriage celebrants complete a minimum of 5 hours of professional development per year is
intended to ensure that celebrants maintain up-to-date knowledge of the law relating to marriages.
However, as noted above, a large number have failed to complete these obligations since 2003. In
2005, 1,038 celebrants were issued with disciplinary measures as a result of failure to fulfil any
professional development obligations in 2 years. The disciplinary measure imposed required them to
complete some of the key professional development activities that had not been complied with in
order to ensure that these celebrants were aware of key statutory changes. Only 61 of these
celebrants complied with the disciplinary measures (a compliance rate of approximately 6%). While
further action has since been taken against many of these celebrants and some have resigned, action
still remains in train against others.
Poor understanding of legal requirements for marriage and obligations as a marriage celebrant is also
evidenced by:
the nature of many of the 18,000 enquiries received (which demonstrate a lack of
understanding by celebrants of their legal obligations) and responded to by the Department
each year,
anecdotal advice received from Registries of Births, Deaths and Marriages. In their role
registering marriages they have identified increasing error rates in documents lodged for
registration, poor understanding of requirements and they receive frequent enquiries and
requests for guidance. Errors by celebrants can be a significant matter for marrying couples
as a fee must generally be paid for each error to be corrected. These fees vary between
jurisdictions,
referrals to the Registrar of Marriage Celebrants by the Family Court of Australia or others of
marriage celebrants who have not complied with legal requirements or who are unsuitable
for continuing registration by reason of criminal conviction,
concern repeatedly expressed by the marriage celebrancy peak body - the Coalition of
Celebrant Associations - in correspondence and at regular meetings with the Department
since its formation in 2008- about the poor knowledge and skill level of a large number of
celebrants, and
media attention which reported the potential invalidity of a high proportion of marriages due
to vows that do not comply with legislative requirements.
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ATTACHMENT A
Steps taken to respond to these problems
The level of qualification required for registration has been significantly increased from a single unit
of training to a full Certificate IV in Celebrancy. The latter came into effect on 3 February 2010. The
increase in the level of qualification has, to date, had some marginal effect in raising the standard of
training of applicants for registration but has not sufficiently addressed the fundamental problems of
ensuring celebrant have an appropriate understanding of obligations and compliance with obligations
outlined above. The completion of the Certificate IV in Celebrancy is considered to be a necessary
condition to ensuring the professionalism of celebrants, but it is not of itself a sufficient condition.
Appropriate monitoring and enforcement of the relevant standards is also required.
Correct understanding and performance of legal obligations has been a focus of professional
development since 2003 but the effectiveness of this in addressing problems has not been great due
to the large number of celebrants who fail to fulfil the obligation and the inability of the Department
to respond to this failure in a timely way.
The quality of professional development provided to celebrants has been improved through an open
and rigorous selection process for a panel of approved providers of professional development to
marriage celebrants. Despite this the number of celebrants failing to fulfil this obligation remains
high. Early analysis indicates that a considerable number of celebrants did not complete their
professional development obligations in full in 2010.
The Department has significantly increased its provision of information to celebrants through its
website in an effort to reduce the need to respond to enquiries and requests for guidance. This has
had no effect in reducing the number of enquiries.
While steps have been taken to improve the quality of pre-registration training and professional
development for marriage celebrants, those who were registered before the increased qualification
was introduced in 2010 received either no, or inadequate, training. The majority of marriage
celebrants were registered before the increased qualification was introduced in February 2010. As a
result many marriage celebrants do not understand or properly fulfil their legal responsibilities.
Objective of the proposal
The Government's objective is to effectively regulate the Program, thereby improving the compliance
and professionalism of marriage celebrants to the benefit of marrying couples and society more
generally.
The legal requirements of the Program are appropriate but cannot be effectively implemented
because of the lack of available resources to properly regulate celebrants who are failing to meet
their obligations.
Options to achieve the objective
The following options are considered in this RIS:
Option 1: Maintain the status quo
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ATTACHMENT A
This option would involve no change to the current arrangements.
Option 2: The provision of increased budget finding to properly regulate the Program
This option would involve the provision of additional funding from the budget to properly regulate
the Program through the provision of additional resources (in particular legal resources) to enable
proper regulation to be undertaken and failure to fulfil obligations to be responded to in a timely
way.
Option 3: Introduction of a Fee Scheme and Improved Regulation
This option would involve the introduction of a fee scheme (on a cost recovery basis) to enable the
proper regulation of celebrants registered under the Program. Fees would be levied annually on
celebrants in order to retain their registration. The income from the fees would fund additional
staffing resources (in particular legal resources) to properly regulate, review and discipline marriage
celebrants who do not fulfil their obligations.
A fee would enable the Program to be put on a secure financial footing and provide the capacity to
properly regulate it.
The fee per celebrant is expected to be in the region of $600 per annum although the details of the
fee will be addressed more closely during the consultation and implementation phase of the
proposal.
Option 4: Pass responsibility for regulation of celebrants to the States and Territories
This option would involve the registration and regulation of celebrants registered under the Program
being passed to the States and Territories to be administered by the Registry of Births, Deaths and
Marriages in each jurisdiction. The celebrant would be registered and regulated by the state or
territory in which he or she resides.
Under this option responsibility for the administration of the Act and marriage policy would remain
with the Commonwealth. States and Territories would expect considerable funding support to
implement this option.
Option 5: Pay celebrants to leave the industry
This option, suggested by the Coalition of Celebrant Associations, the celebrant peak industry group,
would involve the Government offering to pay a significant number of marriage celebrants to leave
the industry. It is likely that celebrants would seek payments as compensation for lost income and
loss of lifetime registration as a celebrant.
Option 6: Reimposition of a cap on the number of marriage celebrants able to be newly registered in
each year
Between 1 September 2003 and 31 August 2008 the number of marriage celebrants able to be
registered each year was subject to a legislative cap. Section 39E of the Act, which enabled the
imposition of the cap, ceased operation on 1 September 2008.
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ATTACHMENT A
The cap was a transitional measure which operated for the first 5 years of the Program. Its intention
was to enable celebrants registered prior to the reforms to the Program that began on 1 September
2003, to have a transition period in which to get used to the new requirements.
This option would involve reinstituting a cap on the number of celebrants that could be newly
registered each year in order to stabilise the growth of the Program, thereby enabling a greater
proportion of existing resources to be focussed on ensuring the fulfilment of obligations on the part
of celebrants.
Impact of the options
The impact of Options 4, 5 and 6 will not be addressed in detail in this RIS as they have been
identified as not addressing the key objective of the proposal which is to effectively regulate the
Program to the ultimate benefit of marrying couples and society more generally.
Options 5 and 6 do not address the objective at all and, in addition, option 5 is likely to generate high
and increasing costs for Government and would not ensure that poorly performing celebrants are the
ones leaving the Program.
Option 4 does not address the objective as it simply shifts the problem of effective regulation of non-
compliant celebrants to the State and Territory authorities.
The groups likely to be affected, directly or indirectly, by Options 1, 2 and 3 outlined above are:
Directly
(a) marriage celebrants, and
(b) Government - Commonwealth, State and Territory
Indirectly
(c) marrying couples, and
(d) the general community.
Option 1: Maintain the status quo
(a) Marriage celebrants
There are no direct costs to marriage celebrants if the status quo is maintained. They would not be
liable to any additional imposts or regulation. There are no direct benefits to marriage celebrants
from maintenance of the status quo as quality of service provision, including meeting the
requirements to ensure a valid marriage, would not improve and there would be no improvement in
either the rigour or the timeliness of regulation by the Department.
There may be indirect costs to marriage celebrants in the maintenance of the status quo in that the
continuing registration of non-performing celebrants serves to undermine the status of celebrants
generally.
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ATTACHMENT A
(b) Government
There are no direct or indirect costs to State or Territory government from maintenance of the status
quo. There will be direct costs to the Commonwealth in continuing to manage the problems caused
by non-compliant celebrants. There are also indirect costs to the Commonwealth. Without increased
funding the Program will become increasingly expensive to administer given the annual application
rate of approximately 1,800 per annum. The number of applications for registration slowed in 2010
as a result of the introduction of a higher qualification requirement. The number of applications for
registration commenced increasing in the latter half of 2010 and information from training providers
indicates that over 1,000 applications can still be expected in 2011. Inadequate levels of regulation
will continue and perpetuate the problem of low levels of quality and professionalism. Another
indirect cost of maintenance of the status quo is the continuing registration of celebrants who do not
comply with legal obligations, have a poor understanding of the role and low professional standards.
This generates a negative public perception of the Program and celebrants generally.
There are no benefits to Commonwealth, State or Territory governments from maintenance of the
status quo.
(c) Marrying couples
There are no direct costs to marrying couples from this option. There are indirect financial and
emotional costs for marrying couples where celebrants are non-compliant with legal obligations or
unprofessional in performing their role. For example, at one end of the spectrum, couples will
continue to need to pay to have any errors on their marriage certificates corrected (in order to use
the certificates as identity documents). At the other end failure by celebrants to understand their
legal obligations, such as vow requirements, may result in invalid marriages and failure to check
identity may result in underage, bigamous or forced marriages.
(d) General community
There are no direct costs to the community from this option. An indirect cost may be a loss of
standing for the process of marriage if large numbers of unprofessional celebrants remain registered.
There is no net benefit to the community from this option.
Option 2: the provision of increased budget funding to properly regulate the Program
(a) marriage celebrants
There is no direct or indirect cost to marriage celebrants as a result of this option. A direct benefit to
marriage celebrants could be expected to arise from improved service to celebrants and improved
regulation of the sector by the Department leading to an increase in the standing of celebrants.
(b) Government
There will be a significant direct financial cost to the Commonwealth under this option but no cost to
State or Territory government.
(c) marrying couples
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ATTACHMENT A
This option would have no direct cost to marrying couples. The improved regulation that it would
enable would be of direct benefit in increasing their assurance of obtaining a knowledgeable,
competent and professional celebrant who is fully conversant with his or her legal obligations and
with developed skills in performing the role.
(d) general community
There would be no direct cost to the community arising from this option but there would be an
indirect cost arising from the diversion of funding from other priorities to fund improved regulation
of the Program. The community would receive a benefit from the improved professionalism and
knowledge of marriage celebrants that would result.
Option 3: A Fee Scheme and Improved Regulation
(a) marriage celebrants
This option would lead to a direct cost to marriage celebrants in that they would need to pay a fee to
obtain and retain registration. Currently there is no fee or obtain or retain registration. Detailed
statistics on the number of marriages performed by each celebrant are not collected but as noted
earlier, the raw average for the number of marriages conducted by each marriage celebrant
registered under the Program is approximately 6.6 per annum. A significant proportion would
perform many more marriages than this (up to 50 or more per year) and a significant proportion
would perform less (0-2 each year).
Anecdotal information provided by celebrant representative bodies indicates that the number of
marriages conducted by each celebrant annually varies widely as a result of factors such as the
location of the celebrant and a range of individual factors.
The price charged by celebrants to conduct a marriage is considered a matter for each of them to
determine according to a wide range of factors including their own individual circumstances and the
necessity to comply with legislative obligations such as professional development. Anecdotal
information available to the Department indicates that a fee of $250-$300 per marriage is not
uncommon and that a large number of celebrants charge considerably more than that. Celebrants in
rural and remote areas and celebrants conducting marriage ceremonies for small independent
religious organisations generally charge significantly less than this per marriage ceremony. The
imposition of fees on a cost recovery basis may result in those persons who conduct relatively few
marriages from becoming or remaining registered as celebrants and this will be an indirect cost to the
sector more generally. It is anticipated that up to 10% of celebrants may leave the industry if fees are
introduced although each celebrant will need to assess his or her own circumstances in making that
decision. It is anticipated that this would be essentially a one-off reduction.
The benefit of this option to marriage celebrants both individually and as a sector is that the
celebrants who continue will develop better experience through the opportunity to conduct more
ceremonies thereby improving their level of professionalism and the overall performance and the
standing of the sector. They will also receive improved standards of regulation by the Department.
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ATTACHMENT A
Costs would be higher under this option for the small proportion of celebrants that perform religious
marriage ceremonies for small independent religious communities at either no or minimal cost to
marrying couples. It is the celebrant who would need to individually pay the fee as only individuals
can be registered as celebrants. As such celebrants effectively operate as volunteers and often do
not charge any fee for conducting marriages, the cost of the fee would relatively be more significant
for these celebrants than those operating on a more commercial basis. Such celebrants would find it
difficult to pay a full annual fee for registration and this may result in marrying couples in small
independent religious communities being unable to have their marriage conducted by the minister of
their group according to their group's rites.
The relative cost of this option would also be higher for those celebrants in rural and remote areas
who perform few marriage ceremonies each year owing to the small population. While statistics are
not available, anecdotal information from celebrant representative bodies indicates that such
celebrants may conduct only 2 or 3 marriage ceremonies per annum. This small number of marriages
may make it uneconomical to remain registered and this may leave some rural and remote
communities at risk of not having available the services of a civil celebrant.
(b) Government
There is no cost to State and Territory government in this option but a potential benefit in a
reduction of workload caused by the improved regulation of the Program.
There will be costs to the Commonwealth in order to implement this option but this option is
anticipated to provide the necessary resources to properly regulate celebrants through cost recovery
arrangements. Establishment costs would be offset by cost recovery along with the ongoing program
costs. The benefit to the Commonwealth will be that funding will be provided by those who benefit
from the Program which is appropriate and equitable. This will, in turn, free resources to be directed
elsewhere. Benefit to the Commonwealth will also be gained as a result of improved regulation of
the Program.
(c) marrying couples
This option would be likely to impose some additional cost on marrying couples as celebrants would
be likely to pass on the cost of the fee in the form of higher charges. The increase is likely to be small
in the context of the overall cost of getting married. The costs of getting married vary widely but
appear to range between $5,000 to $30,000 or more. Most Registries of Births, Deaths and
Marriages offer to solemnise marriages on their premises - so-called `registry office' marriages. The
charges in those jurisdictions that offer this service range from $250-$300 as a standard weekday fee
to $320-$420 for weekends. In this context a small increase in the fees charged by celebrants under
the Program would not be significant. More efficient and effective regulation of the Program could
be expected to benefit marrying couples by leading to improved services. It would also mean greater
compliance by celebrants with legal obligations which would reduce the risk of invalid marriages and
other potential costs.
It is of critical importance, given the significant legal responsibilities of marriage celebrants, that
those who utilise marriage celebrants registered under the Program have access to high quality
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ATTACHMENT A
services that do not result in invalid marriages (which have serious consequences in terms of
inheritance, property rights and proving identity). Recovery of costs will ensure the Department can
properly monitor and enforce the standards which marrying couples are entitled to expect of all
marriage celebrants.
While an absolute reduction in celebrants could be argued to reduce the choice available to marrying
couples, the anticipated 10% one-off reduction in the number of available celebrants within the
Program is not likely to have more than a marginal impact on the choice of celebrants available in
most areas. The potentially greater impact on choice in rural and remote regions or in the case of
small independent religious bodies is discussed further below.
(d) general community
There is no cost to the general community arising from this option as the cost would be borne by
those being regulated (the registered celebrants) and the marrying couples using the service. A likely
reduction in the number of celebrants will result in an industry with more committed and
professional celebrants. The improvement in the performance of celebrants resulting from the
improved regulation would accord with community expectations of marriage celebrant service
standards.
An indirect cost to particular sectors of the community might arise as a result of his option. As noted
above, the Program includes celebrants that perform religious marriage ceremonies for small
independent religious communities. Such celebrants effectively operate as volunteers and do not
usually charge any fee for conducting marriages. The relatively greater difficulty such celebrants
would find in paying a fee for registration may result in marrying couples in small independent
religious communities being unable to have their marriage conducted by the minister of their group
according to their group's rites.
People in rural and remote areas may also be at risk of not having available the services of a civil
celebrant given the relatively higher cost of the annual fee to celebrants in those areas owing to the
small number of marriages annually. Up to 30% of celebrants may fall into one or other of these
categories.
Overall there is a net benefit to the community generally from this option. This arises from having
those who benefit from the Program providing its funding and from the overall improvement in
professional standards of celebrants.
Conclusion and recommended option
The legislative regime governing marriage celebrants registered under the Program s robust. It
contains mechanisms including performance reviews, disciplinary measures and a complaints
procedure, any or all of which are capable of addressing non-compliance or poor performance by
marriage celebrants.
Experience in administering the Program has identified that a significant percentage of marriage
celebrants do not fully understand either the legal or administrative requirements of marriage
celebrancy and do not comply with their legislative obligations. However, the Department has
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ATTACHMENT A
insufficient resources or capacity to use the legislative measures provided to properly regulate the
industry and respond in a timely way to those celebrants who do not comply with their legislative
obligations.
The benefits of addressing underperforming marriage celebrants are not readily quantifiable.
However, given the significant legal responsibilities of celebrants, improved regulation is critical to
ensuring improved compliance with legal obligations by celebrants as well as enhancing
professionalism within the sector. This would enable those who utilise marriage celebrants
registered under the Program to be assured that any celebrant registered by the Government under
the Program fully understands and complies with all legal obligations and provides a professional
service.
With this in mind the Government's objective is to effectively regulate the Program, thereby
improving the compliance and professionalism of marriage celebrants to the benefit of marrying
couples and society more generally.
The preferred option to achieve this objective is Option 3.
Increased funding would enable the Program to be properly regulated and thereby improve
compliance and professionalism. While increased budget funding directly to the Program would
achieve this, it does not provide any guide to either celebrants or marrying couples as to the cost of
providing professional celebrants who have a full understanding of, and comply with, all legal
obligations involved in conducting marriages. It is also unlikely that such funding would be available
in the current budgetary situation.
Option 3 will provide the necessary resources to properly regulate the Program. It is effective and
transparent in providing a viable means to properly regulate the Program. It is also an appropriate
way of achieving the Government's objective.
Registration under the Program provides celebrants with the authority of the Government to perform
a legally significant and socially important function and to charge marrying couples for the
performance of this function. It is appropriate that the beneficiaries of the Program -the celebrants
registered under it - provide the funding to properly regulate it. It is also appropriate that marrying
couples who utilise the services of celebrants contribute in a reasonable way towards the proper
regulation of the Program through the payment of the celebrant who solemnises their marriage.
Similar regulatory environments, such as those applicable to migration agents, impose significant fees
for regulating their program. Migration agents, like marriage celebrants, are registered and centrally
regulated to perform an essential role in the community. It is a role that carries significant legal
responsibilities and for the performance of which they are able to charge their clients.
Option 3 may result in some marriage celebrants, who conduct relatively few marriages deciding to
leave the sector because a fee would make it less economically viable to remain registered. As noted
above, it is anticipated that this factor may result in approximately 10% of celebrants registered
under the Program deciding to leave the Program on a one-off basis.
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ATTACHMENT A
A full cost recovery fee may have a negative impact on specific sub-groups of celebrants registered
under the Program. One group is the small proportion that provides religious marriage ceremonies
to small independent religious organisations. Such celebrants do not usually charge a fee to marrying
couples for conducting marriages. Such celebrants would find it uneconomic to pay a cost recovery
fee for registration and this may result in marrying couples in these small independent religious
communities being unable to have their marriage conducted by the minister of their group according
to their group's rites.
Another group is celebrants in rural and remote areas who may only perform one or two marriage
ceremonies per year owing to the small population. A full cost recovery fee may make it uneconomic
for such celebrants to remain registered. This could create a risk that some rural and remote
communities may not have the services of a civil celebrant available to them.
The impact of Option 3 on these groups within the sector will need to be considered in the
implementation of the Option with a view to seeking to accommodate their specific needs. It is
intended that significant consultation would be undertaken with all key stakeholders in relation to
the implementation of Option 3. The consultation period would provide the opportunity for the
details of the operation of the scheme to be discussed with stakeholders so as to ensure that all
Australians continue to have access to suitable and professional marriage celebrant services
regardless of where they live.
Consultation
It has not been appropriate to undertake detailed consultation with the sector to this point. Some
canvassing of options has been undertaken with the peak body representing marriage celebrants, the
Coalition of Celebrant Association (CoCA). The CoCA is a coalition of up to 17 marriage celebrant
representative bodies and was formed in 2008. Not all celebrant representative bodies are members
of CoCA. The majority of marriage celebrants registered under the Program are not members of any
representative body. CoCA, however, is the body that is most representative of the sector. At CoCA's
December 2010 meeting with the Department the question of the problems relating to the quality
and professionalism of some marriage celebrants were raised and discussed.
CoCA reiterated its long standing concern that the failure of celebrants to meet obligations was not
being addressed in a timely way by the Department. The Department raised the need to consider
more fundamental changes to address these problems and invited views from CoCA. At that meeting
CoCA suggested celebrants be paid by the Government to leave the sector. This suggestion forms
Option 5 of this Regulation Impact Statement. The poor professionalism of some celebrants has also
been raised by CoCA in meetings with the Attorney-General.
In addition, correspondence over several years to the Attorney-General from celebrant associations
and individual celebrants has raised concern about the poor performance of some celebrants and the
failure to properly regulate the Program and take prompt action against those celebrants who have
not fulfilled their obligations.
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ATTACHMENT A
Option 3 may be expected to elicit a range of views among celebrants. Some may be expected to
oppose the introduction of a fee as one has not been charged to date. These celebrants may be likely
to acknowledge the need for improved regulation but argue that this should be budget funded.
Other celebrants, as well as the Registries of Births, Deaths and Marriages , will support Option 3 as
providing the means for the regulation of non-performing registered celebrants and improvement of
professional standards they have been seeking for many years.
Detailed consultation with stakeholders will commence in the second half of 2011 to seek their views
on how the fee scheme could be introduced to ensure the need to address the professional
standards of celebrants is addressed. This will include consultation through meetings with peak
bodies representing marriage celebrants and communication directly to registered celebrants.
The development phase will also focus on measures to assess and minimise any negative impacts of
the fee charging scheme and respond to the likely concern of those celebrants who perform
marriages at little or no cost for small independent religious organisations or those in rural and
remote areas. Some segments of the sector such as these groups may point to the need for an
exemption from paying any fee to be considered or a reduced rate of fee where celebrant services
are provided on a voluntary basis or at minimal cost.
More detailed assessment of these potential impacts will take place in the consultation phase during
the two year period prior to the introduction of the new fee arrangements and included in future
impact statements. The result of these assessments will be considered in settling the final detail of
Option 3 and in the implementation of the option.
The implementation phase of this option would also involve the preparation of information materials
to be released on announcement of the new arrangements and delivery of an information and
education campaign to marriage celebrants, state and territory authorities and the general public.
Implementation and Review
The implementation of Option 3 would require the development and passage of primary legislation
through Parliament in 2013 followed by the development of subordinate legislation. The
implementation arrangements would be developed over a two year period prior to commencement
in full consultation with the sector. The fee regime would commence on 1 July 2013. The revenue
from the payment of fees, the number of registered celebrants and their compliance with legal
obligations will be monitored by the Government. This will be done on an ongoing basis with
progress reported annually to the Attorney-General. Monitoring will also ensure cost-recovery
principles are complied with in relation to the administration of the fees. A review of the structure of
the fee arrangements will occur in 2014-15 and this review will canvass whether the amount of fee is
still appropriate.
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