EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 359

 

 

Subject- Marriage Act 1961

 

Marriage Amendment Regulations 2009 (No. 2)

 

 

Section 120 of the Marriage Act 1961 (the Act) provides, in part, that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

To be entitled to be a Commonwealth Government registered marriage celebrant, a person must have all the qualifications and/or skills, determined in writing to be necessary by the Registrar of Marriage Celebrants (the Registrar), in accordance with regulations made for the purposes of the Act.

 

The Regulations amend the Marriage Regulations 1963 (the Principal Regulations) in ways that affect the training and application processes required for registration as a marriage celebrant by the Commonwealth.

 

The Regulations amend the transitional provision of the Principal Regulations to prevent disadvantage to those currently undertaking training to be eligible for registration as a marriage celebrant. The Regulations also set out details regarding the marriage celebrancy units of the Certificate IV in Celebrancy to be included in a determination to be made by the Registrar of Marriage Celebrants.

 

The Certificate IV in Celebrancy is the result of consultation between the Community Services and Health Industry Skills Council, representatives of the marriage celebrant industry and the
Attorney-General’s Department. The marriage celebrant industry endorsed more extensive training and a qualification that would equip people for other types of celebrancy work. The Certificate IV in Celebrancy will be one of two alternative qualifications under section 39C of the Act required for registration as a marriage celebrant by the Commonwealth from 3 February 2010.

 

There are four units within the qualification that have been specifically developed for work in marriage celebrancy and it will be mandatory for a person seeking registration by the Commonwealth as a marriage celebrant to have completed those units. These are referred to as marriage celebrancy units.

 

The Registrar is a position provided for in section 39A of the Act. A determination is a written instrument that will be issued by the Registrar in accordance with the amendments to the Principal Regulations. The determination will be a legislative instrument that will be lodged on the Federal Register of Legislative Instruments and will also be publicly available on the internet at www.ag.gov.au/celebrants.

 

The Regulations also streamline the delivery of professional development to registered marriage celebrants to improve its quality and reduce the regulatory obligations on marriage celebrants and would make some other minor consequential amendments to the Principal Regulations.

 

The amendments regarding the delivery of professional development to marriage celebrants were the result of a separate consultation process involving providers of professional development to registered marriage celebrants and representatives of the marriage celebrant industry.

 

Details of the Regulations are as follows:

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Marriage Amendment Regulations 2009 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for regulations 1 to 4 and Schedule 1 of the Regulations to commence on the day after they are registered and for Schedule 2 to commence immediately after the commencement of Schedule 2 of the Marriage Amendment Regulations 2009 (No 1) which will be on 3 February 2010.

 

Regulation 3 – Amendment of Marriage Regulations 1963

 

This regulation provides that the Marriage Regulations 1963 (the Principal Regulations) are amended as set out Schedules 1 and 2.

 

Regulation 4 – Transitional

 

This regulation provides a transitional provision for ‘relevant persons’ for the 1 January 2010 to 31 December 2010 registration year. A relevant person is a marriage celebrant who has completed the training mentioned in paragraphs 37G(2)(a), (c) and (d) of the Principal Regulations before 1 January 2010 and applied for registration before 3 February 2010. It this case, for the purposes of exemption from professional development obligations under regulation 37M(6)(a), the registration year will be treated as being from 1 September 2009 to 31 December 2010. The circumstances in which the exemption will arise are if the marriage celebrant has successfully completed a formal course of training in the six months immediately before his or her registration. In this context, ‘formal course of training’ includes a course or certificate mentioned in that definition in regulation 37F as if in force immediately before regulation 4 commenced.

 

SCHEDULE 1 – Amendments commencing on day after registration

 

Item [1] – Regulation 4, definition of registration year

 

Item 1 substitutes a new definition of the term ‘registration year’ to refer to a calendar year. The term ‘registration year’ is well understood in the industry as the term during which marriage celebrant obligations are to be met.

 

Item [2] – Regulations 37F, definition of formal course of training

 

Item 2 substitutes a new definition of ‘formal course of training’ to reflect the new qualifications mentioned in paragraph 37G (2)(b) to (e) and the new requirements in subregulation 37G(4). The definition is used in regulation 37M (professional development) and in regulation 37O (disciplinary measures).

 

Item [3] – Regulation 37G(1)

 

Item 3 substitutes the term ‘Registrar of Marriage Celebrants’ for ‘Registrar’. This change provides certainty as to the person being referred to in regulation 37G. Subsequent subregulations of regulation 37G then refer to ‘the Registrar’. The Registrar of Marriage Celebrants is a position provided for in section 39A of the Act.

 

Item [4] – Subregulation 37G(2)

 

From 3 February 2010, under the Principal Regulations, a person applying to be registered as a marriage celebrant by the Commonwealth will need to have at least one of the following qualifications:

 

·             a Certificate IV in Celebrancy awarded by a registered training organisation;

·             a celebrancy qualification from a university mentioned in a determination by the Registrar; or

·             all of the skills currently listed in subregulation 37G(3).

 

The amendments change the provision concerning the transition period to the new qualification requirements that provided that, until 3 February 2010, a person meets the training qualifications for registration as a marriage celebrant if he/she has at least one of the following qualifications:

 

·                    a Certificate IV in Celebrancy awarded by a registered training organisation;

·                    one of the other qualifications listed in subregulation 37G(2) (these include the qualifications listed in the Principal Regulations); or

·                    all of the skills listed in subregulation 37G(3), which are designed primarily for the benefit of members of indigenous communities where undertaking formal training may prove too onerous.

 

These transitional arrangements were put in place in the Marriage Amendment Regulations 2009 (No. 1) and reflected announcements made in February 2009 regarding the pending changes. It recognised that people currently enrolled in training needed time to complete their course and should be entitled to have their training recognised.

 

It became evident that there was anxiety in parts of the sector as to the operation of the transitional provision leading to potential disadvantage to a number of people. The amendments provide that, for aspiring marriage celebrants who have received their qualification before 1 January 2010 and given their completed application to the Registrar before 3 February 2010, the current qualifications listed in subregulation 37G(2) of the Principal Regulations will meet the qualification requirement.

 

Subregulation 37G(2) substitutes an amended list of qualifications, for the purpose of paragraph 37G(1)(a) of the Principal Regulations. The qualifications have been amended as follows.

 

The words ‘before 1 January 2010’ have been added to paragraphs 37G(2)(a), (c) and (d) to provide certainty to students that, if they complete the training specified in those paragraphs and apply in accordance with regulation 37HA, their qualification will meet the requirements of subsection 39C(1) of the Act. This regulation needs to be read in conjunction with new regulation 37HA.

The qualifications in paragraphs 37G(2)(b) and (e) have been amended to provide that, in addition to determining the units necessary for registration as a marriage celebrant, the Registrar may determine in writing the requirements for the delivery of those units in accordance with subregulation 37G(4).

 

Item [5] – After subregulation 37G(3)

 

The consultation process leading to the development of the Certificate IV in Celebrancy also identified the need for trainers in specific marriage celebrancy units of the Certificate IV in Celebrancy to have complied with the key obligations of a Commonwealth registered marriage celebrant and to use key materials on the legal aspects of a marriage celebrant’s obligations in the delivery of this training.

 

Under the Principal Regulations, the Registrar would issue a determination listing the units the Registrar determines to be necessary for registration as a marriage celebrant, as well as the universities offering a celebrancy qualification. The amendments enable additional matters concerning materials and trainers for the marriage celebrancy units to be included in this determination by the Registrar.

 

Subregulation 37G(4) specifies the requirements that may be determined by the Registrar in writing in the delivery of the units necessary for registration as a marriage celebrant. The units must be delivered by a marriage celebrant having the qualifications, skills, training and experience the Registrar determines. The delivering celebrant must also not be the subject of current or past disciplinary action during a period the Registrar determines. In addition, the delivery of each unit must include all the materials the Registrar determines must be used.

 

Item [6] – After subregulation 37H

 

The amendment inserts a new regulation to provide that a completed application based on a qualification referred to in paragraphs 37G(2)(a), (c) and (d) must be given to the Registrar before
3 February 2010. These are the qualifications that will be superseded from 3 February 2010.

 

Item [7] – Subregulation 37I(4)

 

This amendment omits this subregulation. The Register of Marriage Celebrants is publicly available on the internet at www.ag.gov.au/celebrants in accordance with section 39B of the Act. A paper copy of the Register has never been sought and the requirement to make available a paper copy is redundant.

 

Item [8] – Subregulation 37J(2)

 

This amendment is one of several that remove provisions of the Principal Regulations that are redundant as a result of the end of the operation of section 39E of the Act on 1 September 2008.

 

Section 39E provided that a person must not be registered as a marriage celebrant if to do so would breach the cap limit determined in accordance with the Principal Regulations. Section 39E ceased to operate five years after the section commenced, that is, on 1 September 2008. The amendment removes the reference to the reasons for the rejection of an application being that it would breach section 39E of the Act.

 

Item [9] – Regulation 37K

 

The amendment repeals regulation 37 K which set out the requirements for the implementation of the ‘applicable limit’ referred to in section 39E of the Act. Section 39E provided that a person must not be registered as a marriage celebrant if to do so would breach the cap limit determined in accordance with the Regulations. Section 39E ceased to operate five years after the section commenced, that is, on 1 September 2008. The cessation of the operation of that section on 1 September 2008 rendered regulation 37K redundant.

 

Item [10] – Regulation 37M

 

This item substitutes an amended regulation 37M to streamline arrangements for the provision of professional development to registered marriage celebrants.

 

The amendments to the delivery of professional development to marriage celebrants were the result of a separate consultation process involving providers of professional development to registered marriage celebrants and representatives of the marriage celebrant industry which led to the development of a new approach to the delivery of professional development to registered marriage celebrants. This approach involves the selection of a panel of providers through a request for expressions of interest. The revised approach will improve the quality and efficiency of professional development delivery and align professional development for registered marriage celebrants with pre-registration training. The changes also reduce the regulatory obligations on marriage celebrants.

 

Subregulation 37M(1) clarifies that the list of professional development activities published by the Registrar of Marriage Celebrants must include the kinds of activities and the providers of the activities for that registration year. This enables approved providers of activities to be included in the list. It also provides clarity for marriage celebrants about the kind of activities being provided. This might include, for example, an activity that is being provided online or by visual media such as by DVD. This enables marriage celebrants to be in a better position to decide on the most appropriate professional development activities for them for that registration year.

 

Subregulation 37M(2) continues the requirement that the Registrar state which activities are compulsory for any registration year and limits the number of these to a maximum of two.

 

Subregulation 37M(3) continues the facility for the Registrar to add activities, other than compulsory activities, to the list published under subregulation 37M(1) during the registration year. Any addition should include the approved provider(s) of the activity and details of the kind of activity in accordance with subregulation 37M(1).

 

Subregulation 37M(4) provides that a marriage celebrant must undertake at least two professional development activities each registration year from the list published by the Registrar in accordance with subregulation 37M(1). This continues the previous requirement in the Principal Regulations.

 

Subregulation 37M(5) provides that any professional development activity undertaken by a marriage celebrant must be an activity on the list published by the Registrar in accordance with subregulations 37M(1) and (3). In addition, a marriage celebrant must undertake any activity that is listed as compulsory for that year and must complete activities that total at least five hours in duration taken together. These requirements already existed in the Principal Regulations prior to this amendment. The restriction that was in subregulation 37M(5) of the Principal Regulations that a marriage celebrant may not include, in his or her professional development, an activity undertaken in the previous five registration years, has been removed. This requirement proved to be unduly restrictive for activity providers and marriage celebrants.

 

Paragraph 37M(6)(a) provides that a marriage celebrant need not undertake professional development for two registration years if he or she has completed a formal course of training in the registration year immediately before those two registration years.

 

Paragraph 37M(6)(b) provides that if, before the end of a registration year, a marriage celebrant seeks an exemption from undertaking professional development for a registration year by applying in writing to the Registrar and the Registrar grants that exemption, the marriage celebrant does not have to undertake the professional development required by subregulation 37M(4).

 

Subregulation 37M(7) in the Principal Regulations is replaced by a completely new subregulation 37M(7). This change removes the requirement for marriage celebrants to submit an Annual Return relating to the professional development activities undertaken by them. This removes a regulatory obligation for marriage celebrants and simplifies their completion of professional development obligations. Information on the completion of professional development by marriage celebrants will be provided by activity providers.

 

New subregulation 37M(7) clarifies the circumstances in which the Registrar may grant an exemption from professional development for a registration year. This continues the substance of the requirement in the Principal Regulations that the Registrar must be satisfied that granting the exemption is justified because of exceptional circumstances.

 

Item [11] – Paragraph 37N(1)(e)

 

The amendment omits from subregulation 37N(1) the requirement for the Registrar to consider whether a marriage celebrant has submitted the Annual Returns required by subregulation 37M(7) of the Principal Regulations in conducting a marriage celebrant’s performance review. This omission is a consequence of removing the requirement for an Annual Return as a result of the amendments to regulation 37M in item [10] above.

 

Item [12] – Paragraph 37P(b)

 

Item 12 omits paragraph 37P(b). This removes the Annual Return from the list of records required to the kept by the Registrar in relation to each marriage celebrant. This omission is a consequence of removing the requirement for an Annual Return as a result of the amendments to regulation 37M in item [10] above.

 

Item [13] – Schedule 1, Form 4

 

The amendment corrects an error in the previous Form 4 specified in Schedule 1 to the Principal Regulations. The Form is used by those persons who are under marriageable age (defined in section 11 of the Act) and who wish to marry someone of marriageable age.

 

Such persons require the consent of specified persons to the marriage (usually parents or guardians). Form 4 is used to apply to a judge or magistrate for consent to marry in the event of the refusal of consent by a required person. Form 4 in Schedule 1 to the Principal Regulations provided for details to be given of the other party to the marriage if that party is also under marriageable age. This is contrary to the Act (section 12) as two people who are both under marriageable age cannot marry. The amendment ensures that Form 4 is consistent with the requirements of the Act.

 

Item [14] – Schedule 1, Form 7, paragraphs 5 and 6

 

The amendment omits paragraphs 5 and 6 from the current Form 7 specified in Schedule 1 to the Principal Regulations and replaces them with the previous paragraph 6 renumbered as paragraph 5. Under section 12 of the Act a court order from a judge or magistrate is required authorising the marriage of a person below marriageable age to a particular person of marriageable age. Paragraph 5 referred to the other party to the proposed marriage being also under marriageable age. This is contrary to the Act (section 12) as two people who are both under marriageable age cannot marry. This change makes Form 7 consistent with the requirements of the Act.

 

Item [15] – Schedule 1, Form 12A

 

Form 12A of Schedule 1 to the Principal Regulations is the application form completed by persons seeking registration as a marriage celebrant by the Commonwealth. Part B of Form 12A requires an applicant to tick a box to indicate the qualification on which their application is based.

 

Form 12A has been amended to include bolded advice to applicants with qualifications awarded before 1 January 2010 that they must give their application to the Registrar before 3 February 2010.

 

Item [16] – Schedule 1, Form 12A

 

Item 16 amends Form 12A in consequence of regulation 37HA and ensures that the qualifications a person is seeking to rely on are the same as the qualifications listed in new subregulation 37G(2).

 

Item [17] – Schedule 1, Form 12B

 

The amendment omits Part C from Form 12B in Schedule 1 to the Principal Regulations. This is a consequence of the amendment to regulation 37J. Part C of the form is now redundant as section 39E of the Act ceased to operate on 1 September 2008. Section 39E had allowed for a cap to be determined on the number of marriage celebrants that could be registered.

 

Item [18] – Schedule 1, Form 12C

 

The amendment omits Form 12C from Schedule 1 to the Principal Regulations. This Form was the Annual Return required to be submitted by marriage celebrants relating to the professional development they had undertaken. The requirement to submit an Annual Return has been omitted through the amendments to regulation 37M made by item [10] above.

 

SCHEDULE 2 – Amendments commencing immediately after the commencement of Schedule 2 to the Marriage Amendment Regulations 2009 (No. 1)

 

Item [1] - Regulation 37F, definition of formal course of training

 

This amendment ensures that the definition of ‘formal course of training’ in operation from 3 February 2010 only refers to the new requirements. That is, a celebrancy qualification from a university or a Certificate IV in Celebrancy. Both of these qualifications must include certain units (subparagraphs 37G(1)(a) (i) and (ii)) and must be delivered in accordance with certain requirements (subregulation 37G(2)).

 

Item [2] – Regulation 37G

 

The amendment substitutes a new regulation 37G which prescribes the qualifications or skills that the Registrar must determine are required to be held by an applicant for the purposes of paragraph 39C(1)(b) of the Act to be registered as a marriage celebrant.

 

Item [3] – Schedule 1, Form 12A

 

Form 12A of Schedule 1 to the Principal Regulations is the application form completed by persons seeking to be registered as a marriage celebrant by the Commonwealth.

 

Part B of Form 12A requires an applicant to tick a box to indicate the qualification they are seeking to rely upon to meet the qualification requirement in section 39C of the Act. Part B of Form 12A has been amended so the qualifications a person can rely on are the same as the qualifications listed in subregulation 37G(2).

 

Part B of the Form has been further amended in Part B (c) to advise applicants that the Registrar will provide questions to an applicant for registration to ensure that their knowledge of the law relating to the solemnisation of marriages by marriage celebrants is sufficient for them to be registered. The application will not be completed and therefore lodged until the answers to the questions are returned to the Registrar.

 

Other minor amendments to the Form have been made to make its requirements clearer to applicants.