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CoCA Submission: Exposure Draft of the Marriage Amendment (Same Sex Marriage) Bill

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SUMMARY OF RECOMMENDATIONS:

Recommendation 1: 
That Section 47A as proposed in the exposure draft not be included.

Recommendation 2: 
CoCA proposes that if the parliament decides to provide exemptions for independent professional civil celebrants, such exemptions should only apply to:

  1. current authorised civil celebrants, not new civil celebrants, and

  2. require those who object on “religious or conscientious grounds”  to apply to the Commonwealth Marriage Registrar for an exemption in accordance with the legislation or re-assignment as an independent religious celebrant.

Recommendation 3: 
CoCA recommends that the definition of marriage in Part I—Preliminary, Section 5 Interpretation and all such associated references to marriage be amended to read:

"marriage means the union of two adults to the exclusion of all others, voluntarily entered into for life.”

Recommendation 4: 
CoCA recommends that Subdivision C Marriage Celebrants be separated into two separate subdivisions – Subdivision C, Commonwealth civil celebrants and Subdivision D, Commonwealth Religious celebrants to enable the initial training and professional development of the two groups to be addressed separately.

DL 210x99 letterhead CoCA 2017

TO: Committee Secretary

Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

Department of the Senate
PO Box 6100
Canberra ACT 2600

Phone: 02 6277 3228
Fax: 02 6277 5829
This email address is being protected from spambots. You need JavaScript enabled to view it. 

Friday 13th January 2017

Dear Committee Secretary

On behalf of the Coalition of Celebrants Association (CoCA) Inc., I am writing to thank the Select Committee for the opportunity to make a submission on this Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.

CoCA is recognised by the Commonwealth Attorney General as the peak representative body for all Commonwealth-registered marriage celebrants. CoCA comprises 11 professional associations of marriage celebrants.

Please find our Submission attached.

Given the fact that civil marriage celebrants conduct seventy-five percent of all marriages, the Coalition of Celebrants Association (CoCA) Inc. respectfully requests an opportunity to speak with the Select Committee during its information gathering stage.

Should you require any further information, let us know please.

Yours sincerely
Rona Goold

CoCA Secretary
Coalition of Celebrants Association (CoCA) Inc.
http://www. coalitionofcelebrantassociations.org.au

Mail: The CoCA Secretary 
PO Box 3113 Robertson NSW 2577
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.


Submission to the Select Committee on the Exposure Draft of the Marriage Amendment (Same Sex Marriage) Bill

  1. This submission is made on behalf of the Coalition of Celebrant Association (CoCA) Incorporated, established on 16 October 2008.

  2. CoCA is recognised by the Commonwealth Attorney-General as the peak representative body for all Commonwealth-registered marriage celebrants. CoCA is comprised of 11 professional associations of marriage celebrants.

  3. The Australian Marriage Act was established in the middle of the last century based upon British legislation pioneered in 1836, and authorises a number of different types of marriage celebrants to provide valid marriage under civil law. 1

  4.  Australia’s Civil Celebrant Program is a world first in that the marrying public can be married with a ceremony of their choice, at any location, time or day.2   This flexibility was introduced in 1973 under Section 39 of the Marriage Act.

  5. Along with Registry staff, Australia’s group of independent civil celebrants under Subdivision C of the Marriage Act was created to ensure civil law is upheld for any couple wanting their services.

  6. Civil celebrants now conduct 75% of marriage ceremonies in Australia.

  7. CoCA wishes to submit comments on sections (a) and (c) of the Committee’s Terms of Reference

Term of Reference
(a) the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemption.

Recommendation 1:  That Section 47A as proposed in the exposure draft not be included.

Rationale:
  1. The current Section 47 already grants all religious marriage celebrants the right to refuse to marry any couple and to add any additional requirements they so choose.  

    Two thirds of all authorised marriage celebrants are covered by this existing exemption - Subdivision A and Independent (22,880*) Religious Celebrants in Subdivision C (539*) 

  2. Any marrying couple, who meet the criteria for valid marriage, have the right to expect they would not be refused that service on the basis of a personal objection from a professional civil marriage celebrant, whether Commonwealth or State registered, who is authorised by the government to implement the Marriage legislation.

    State and Territory officers (Subdivision B) provide civil ceremonies.  Currently Division 2—Marriages by authorised celebrants of the Act containing Section 47, Part VII—Offences and Part IX—Miscellaneous Sections 111 to 114 do not distinguish between Subdivision B and C authorised marriage celebrants offering civil ceremonies.

    This draft Bill removed the word “authorised celebrant” from the current Section 47 and replaced the term with “marriage celebrant” (which by definition refers to Subdivision C celebrants only). 

    If Section 47A is implemented, then less than 1% (293 State and Territory officers*) of all authorised marriage celebrants (31752*), and only 3.5% of all authorised celebrants providing civil marriage ceremonies must apply the legal definition of the law that this Bill proposes to change.

  3. The purpose of legislative changes under consideration is to remove discrimination against same-sex couples in the Australian Marriage Act.

    If the right to discriminate is extended to the remaining one third (8040*) of marriage celebrants and State and Territory officers (293*) then 100% of all marriage celebrants will be able to perpetuate discrimination against same-sex couples and thus not be required to apply the definition of the legal service (in this case valid marriage) that this legislation is designed to provide.

  4. From a same-sex couple’s perspective, there would be no transparent way of knowing who of the 8040* independent professional (Subdivision C) civil marriage celebrants have a “conscientious objection” to the civil law definition of marriage; nor a transparent way of knowing who of the 539* independent religious (Subdivision C) marriage celebrants have a “conscientious objection” to the civil law definition of marriage.

    A blanket exemption as proposed by this Bill would waste same-sex couples’ time in trying to determine which celebrants would be willing to marry them and increase the possibility of further distress to these couples.

    * Figures at 04-01-2017
Term of Reference
(a) the nature and effect of proposed exemptions for ministers of religion, marriage celebrants and religious bodies and organisations, the extent to which those exemptions prevent encroachment upon religious freedoms, and the Commonwealth Government’s justification for the proposed exemptions 

Recommendation 2:  CoCA proposes that if the parliament decides to provide exemptions for independent professional civil celebrants, such exemptions should only apply to:

  1. current authorised civil celebrants, not new civil celebrants, and

  2. require those who object on “religious or conscientious grounds”  to apply to the Commonwealth Marriage Registrar for an exemption in accordance with the legislation or re-assignment as an independent religious celebrant.
Rationale

  1. A basic principle of civil law (whether created and administered by a federal, state or local government body), is that those required to implement  the new legislation, whether government services/ independent professionals / business, are required to adhere to civil law from the time of its enactment, unless provisions are made to phase the changes in.

    Personnel working for government services, whether employed (full-time / part-time /casual) contracted or independent, are required to not let their personal religious or other belief systems interfere with their primary civil functions. School teachers, doctors, nurses, police personnel, etc. in government services are examples of this principle.

    For example, nurses or doctors in hospital Emergency Departments must by law treat a patient, irrespective of their own religious or conscientious beliefs.

  2. Only 3 % of independent civil celebrants, according to our 2015 survey3 would resign if the legal definition of marriage were changed.

    This would  indicate that only a very small number of Commonwealth civil celebrants would apply for an exemption on “religious or conscientious” beliefs.

  3. CoCA proposes that those Subdivision C celebrants could apply to be independent religious celebrants or be required to apply for an exemption on “conscientious grounds” to the Commonwealth Marriage Registrar.

    Exempted celebrants would be noted on the Register of Marriage Celebrants published on the Attorney-General’s website  to enable the marrying public to easily identify which celebrants were exempted from offering marriage services to same sex couples.   
Term of Reference

(c)
potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate

Recommendation 3:  CoCA recommends that the definition of marriage in Part I—Preliminary, Section 5 Interpretation and all such associated references to marriage be amended to read:

"marriage means the union of two adults to the exclusion of all others, voluntarily entered into for life.”

Rationale

  1. The current definition “man and woman” implies an adult level of maturity for legal marriage even though the Act makes provisions for a person between the ages of 16 and 18 years to marry a person aged 18 years and over with both Court approval and parental consent.

  2. Child and forced marriage is a growing concern as Australia becomes more multicultural with families coming from countries where child marriage is acceptable.

  3. The requirement under Section 46 of the Act for civil celebrants to give a definition of marriage according to Australian law is a powerful mechanism for public education.

    By this mechanism, it is conservatively estimated that over 20 million people each decade would be reminded that in Australia marriage is for adults, not children.

  4. CoCA proposes that all marriage ceremonies conducted in Australia, whether by civil or religious celebrants, should include 

a.     the wording of section 454  to indicate consent to the marriage and 

b.     the wording of section 465 to indicate that a marriage according to law is being solemnised.

Term of Reference

(c)
potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate

Recommendation 4:  CoCA recommends that Subdivision C Marriage Celebrants be separated into two separate subdivisions – Subdivision C, Commonwealth civil celebrants and Subdivision D, Commonwealth Religious celebrants to enable the initial training and professional development of the two groups to be addressed separately.

Rationale
  1. The Commonwealth is responsible for registration (based on designated training criteria) and professional development of the Subdivision C civil and religious celebrants.  These requirements are stated in the Act and the Regulations.

  2. State and Territory Registrars of Births Deaths and Marriages register Subdivision A (Recognised Religions) and Subdivision B (State Officers). The Marriage Act has no specific requirements for training and professional development for these state and territory registered celebrants.

  3. As a result of changes made to the Marriage Celebrant program in 2003, the training and professional development needs of the Independent Religious Marriage Celebrants were not addressed separately from Independent Civil Marriage Celebrants.

  4. If these two groups of celebrants were separated under the Act, the distinction between the groups would be clearer to the public and the different needs of the two groups in terms of their initial training and continuing professional development could be addressed through appropriate consultation and changes to the Marriage Regulations. 

Notes:

  1. The Act was established in the middle of the last century based upon British legislation pioneered in 1836. Unlike France where all couples must attend a registry office to legally marry, couples in the Australian community may choose from 4 types of marriage celebrants.

    ·       Subdivision A - Religious celebrants from Recognised Religions (22,880* - 72.1%)
    ·       Subdivision B  - Marriage Officers in State and Territory Registry Offices (293* - 0.9%) 
    ·       Subdivision C - Independent Civil Marriage Celebrants (8040* - 25.3%)
    ·       Subdivision C - Independent Religious Marriage Celebrants (539*- 1.7%)

    Total of all = 31,752

    All marriage celebrants perform the same legal functions on behalf of the government, whether the ceremony is religious or civil, long or short. These functions are to:

    • accept a Notice of Intended Marriage from the couple within the legal timeframe required
    • assess whether the parties to the marriage are free to marry one another
    • be satisfied with the identities of the couple and the information they provided
    • complete the required documentation prior to the ceremony
    • conduct a marriage ceremony after which the couple sign the relevant documents
    • complete the processing of the marriage documents, and
    • register the marriage with the relevant state or territory registry office.

    This is because our Federal government granted this civil function of witnessing and registering a marriage according to civil law to these different groups including religious celebrants.

    * Figures at 04-01-2017

  2. Unlike the UK, where couples can only marry in civil ceremonies at venues where the government designates Registry Office Staff to perform marriage, independent professional Subdivision C civil celebrants are authorised to marry anywhere within Australia. 

    Inclusion of independent professional civil celebrants in Subdivision C marriage celebrants is a world first and is unique as it allows personalised ceremonies for couples to:

    ·       choose the marriage celebrant they want
    ·       choose a venue, the time and day of the ceremony
    ·       choose any number of guests
    ·       choose the ceremony of their choice without discrimination on the basis of religion or personal conscience of the celebrant

    The other subdivisions offer restricted or standardised services due to their organisational structure.

  3.  CoCA sent a survey on Same-sex Marriage to 6654 authorised marriage celebrants on 4th August 2015. 1491 (22.4%) celebrants responded.

    The purpose of the survey was to provide CoCA and the Attorney-General’s Department with information about independent civil celebrants views on Same Sex marriage, should this become legal. The results were:

    ·       80% indicated they would happily marry same sex couples
    ·       6.5 % indicated they would accept same sex clients if legally required to do so
    ·       10.5 % indicated they would consider discreetly refusing (i.e. be 'unavailable')
    ·       3 % indicated they would resign if the definition of marriage were to be changed. 

4.        Marriage Act 1961 Section 45

45 Form of ceremony

  1. Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.

  2. Where a marriage is solemnised by or in the presence of an authorised celebrant, not  being a minister of religion, it is sufficient if each of the parties says to the other in the presence of the authorised celebrant and the witnesses the words:

    ― ”I call upon the persons here present to witness that  A.B. (or C.D.) take thee C.D (or A.B.) to be my lawful wedded wife (or husband);”

    or words to that effect.

  3. Where a marriage has been solemnised by or in the presence of an authorised celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnised in accordance with this section.

  4. Nothing in subsection (3) makes a certificate conclusive:

    a. where the fact that the marriage ceremony took place is in issue—as to that fact; or

    b. where the identity of a party to the marriage is in issue—as to the identity of that party.


5.    Marriage Act 1961 Section 46

46 Certain authorised celebrants to explain nature of marriage relationship
  1. Subject to subsection (2), before a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion of a recognised denomination, the authorised celebrant shall say to the parties, in the presence of the witnesses, the words:

    ―I am duly authorised by law to solemnise marriages according to law.

    ―Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

    ―Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or words to that effect.

  2. Where, in the case of a person authorised under subsection 39(2) to solemnise marriages, the Minister is satisfied that the form of ceremony to be used by that person sufficiently states the nature and obligations of marriage, the Minister may, either by the instrument by which that person is so authorised or by a subsequent instrument, exempt that person from compliance with subsection (1) of this section.