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2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MARRIAGE (CELEBRANT REGISTRATION CHARGE) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Hon Mark Dreyfus, QC MP)
MARRIAGE (CELEBRANT REGISTRATION CHARGE) BILL 2013
GENERAL OUTLINE
The Marriage (Celebrant Registration Charge) Bill 2013 implements a 2011-12 Budget
measure to introduce cost recovery for Commonwealth-registered marriage celebrants 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 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 three categories of celebrants who are authorised to solemnise
marriages under Australian law as follows:
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 2013 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 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 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.
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The implementation of cost recovery will enable the Program to improve services delivered
to Commonwealth-registered marriage celebrants, while also effectively regulating those
celebrants. These measures will in turn ensure professional, knowledgeable and legally
correct services are delivered to marrying couples in Australia.
From 1 July 2013 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 imposed on all Commonwealth-registered
celebrants
a registration application fee for prospective 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 imposition
legislation. 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 2013. 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 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 2013.
REGULATION IMPACT STATEMENT
A Regulation Impact Statement accompanied the 2011 Budget measure 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 2013.
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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 2013 which is related to this Bill.
Overview
The object of the Marriage (Celebrant Registration Charge) Bill 2013 is to implement a 2011-
12 Budget measure to introduce cost recovery for Commonwealth-registered marriage
celebrants 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 three categories of celebrants who are authorised to solemnise
marriages under Australian law as follows:
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 celebrants.
Under proposed amendments in the Marriage Amendment (Celebrant Administration and
Fees) Bill 2013, a Commonwealth-registered marriage celebrant who does not pay the
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 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 charge, including celebrants performing marriages for religious organisations
that are not `recognised denominations' proclaimed under section 26 of the Marriage Act. It
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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 a celebrant
registration charge. This difference arises because of the nature of the regulatory scheme.
Ministers from independent religious organisations have alternatives if they do not wish to
pay the celebrant registration fee and remain registered under the Program. Section 113 of
the Marriage Act allows for couples to have a legal marriage followed by a religious
ceremony or marriage. Religious celebrants may still be able to provide religious ceremonies
for couples in their congregation after the couple have taken the steps to complete the legal
marriage. This practice is one followed in a number of countries and section 113 provisions
have been part of the Marriage Act since it was enacted in 1961.
Rights to an effective remedy
Under the Marriage Amendment (Celebrant Administration and Fees) Bill 2013, a 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 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 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
Prior to the introduction of the celebrant registration charge, a celebrant was authorised for
life, subject to compliance with obligations under section 39G of the Marriage Act. Although
the Bill places additional limits on registration for life 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 2013.
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 2013.
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 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 2013.
The liability applies in relation to a financial year to implement a 2011-12 Budget measure
that cost recovery be introduced from 1 July 2013. 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 first registration until the
next annual charge becomes due and payable on 1 July. It is likely that the determination will
set a different amount, depending on the time of year a new celebrant is registered.
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 2013. 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 2013, 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 2014
financial year 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.
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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.
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 provides to disregard index numbers published in substitution
for previously published index numbers (except where the substituted numbers are published
to take account of changes in the reference base).
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