- The department declined to allow the peak body CoCA or other stakeholders to provide advice on the structure of the survey of Commonwealth marriage celebrants to be used as part of the consultation
- The department released the Survey on the 26 November with a deadline of the 13 January - during the busiest period for marriage work, holidays and other family responsibilities.
- The survey was structured to direct answers to specific responses, and did not allow for a response of more restrictive provisions for COI and B2B
- Even with an extension for associations to respond to 3rd February, only a small proportion of individual celebrant associations were able to respond since many volunteer committees do not meet in January
- CoCA, as the peak body, despite the short time-frame, did make a comprehensive submission recommending that
- COI and B2B be reviewed to ensure similar principles would apply to Commonwealth marriage celebrants as required of the other two subdivisions of Marriage Celebrants, and
- to allow only those activities that would enhance celebrants ceremonial skills and their roles in offering professional celebrancy services (i.e. other ceremonies), and not compromise their ability to provide valid marriage ceremonies of the highest quality.
Broadened COI and B2B provisions are likely to increase the number of celebrants, in an already over-supplied market, thus reducing opportunities for celebrants perform marriage ceremonies to maintain and improve their professional skills.
- More than 70% (72.2%) of the respondents to the OPD and COI/B2B survey recommended no change to the benefit to business provisions
- An interim position paper was not discussed with the peak body or other stakeholder associations, even though the May 2017 Stakeholders meeting would have been an opportunity to do so.
- The final new policy was released at the end of September 2017 - seven months from the date associations were given to respond.
- Consideration of the long term effect of such as major change to COI or B2B was not canvassed or assessed. Broadening the COI and B2B provisions can have a broad range of negative impacts to the profession of celebrancy.
Given that less than 30% of the respondents to the OPD and COI/B2B survey wanted change and, given the unsatisfactory nature of the consultation, CoCA cannot support the department's conclusions, and thus the revised COI and B2B policy.
Conflict of Interest (COI) and Benefit to Business (B2B) for Commonwealth Marriage Celebrants - Background
When Subdivision C authorised marriage celebrants were initially appointed in 1973, the appointee was prohibited from having any interest in a wedding related business. The role was considered as a type of community service, but given the expenses, time involved in preparation of the legals and ceremony, and weekend work involved the celebrants were not expected to offer these services for free. This is seen as comparable to Subdivision A Ministers of Recognised Religions and Subdivision B State Officers who were and are remunerated for their services.
When the Marriage Act was amended in 2002 the Explanatory Memorandum tabled by Attorney-General Darryl Williams went into considerable depth about the inclusion of Conflict of Interest and Benefit to Business provisions - to the point of declaring that "Celebrants will be unable to have an interest in other wedding related business as proposed by the conflict of interest reform."
Section 39C Entitlement to be registered as a marriage celebrant (link) was intended to ensure that a Commonwealth Marriage Celebrant would, in principle, be expected to uphold the high standards of professionalism expected of the 22,960 Ministers of the over 120 Recognised Religions (Subdivision A) celebrants and State Officers (Subdivision B) celebrants. Section 31 and Section 33 of the Marriage Act outlines the professional conduct expected of Subdivision A celebrants. Public Service provisions of the various states and territories ensure that Public Servants would also not make a "business of solemnising marriages for the purpose of profit or gain".
- Would parliament expect marrying couples to be offered make-up,wedding party clothes hire, car hire, photography etc. by religious ministers or marriage officers in the Registries of Births, Deaths and Marriages?
- And if not, why then from Commonwealth Marriage Celebrants?
- Should not the same principles apply to all marriage celebrants under the law that covers us as one nation?
The Attorney-General's Department stated in 2002 that:
"The conflict of interest provisions is a standard provisions replicated in a number of pieces of Commonwealth legislation" . ... 'The inclusion of a statutorily defined conflict of interest provision is not a new concept. The selection criteria operating under the current system of appointment states that marriage celebrant applicants must not have a conflict of interest or potential for such a conflict of interest in any of their business interests, hobbies or other interest connection with any of their business, hobbies or other interests." and that "These issues will need to be dealt with on an individual basis in the course of the application process."
CoCA considers that the provisions to protect the marrying public have been watered down with a flexible approach of
- "how the Commonwealth Marriage Celebrant is to manage their actual or potential conflict of interest (COI) or benefit to business (B2B)"
rather than as originally envisaged and enacted by parliament of an approach that
- the Commonwealth Marriage Celebrant "must not have" an actual or potential conflict of interest or benefit to business to be authorised in the first place, or continue to be registered as an authorised Marriage celebrant.
What influenced the AGD to make such radical changes to COI and B2B?
There are many factors that have contributed to this change in approach:
- a lack of understanding of the importance of the unique role of independent Commonwealth marriage celebrants
- the blurring of the lines between professions and businesses, particularly where professions operate in private practice rather than directly employed or funded by government bodies
- the influence of the media in the commercialisation of marriage etc.
- a perception that younger marrying couples want celebrants to offer additional services
- the difficulty experienced by the Attorney General’s department in regulating celebrants in respect of conflict of interest/benefit to business
- complaints by many independent celebrants that, because of the over-supply of marriage celebrants for marriage work, they are not able to generate sufficient income from marriage work to recover expenses and make a reasonable hourly rate for their time and expertise.
When Cost Recovery was being introduced to "increase professionalism", CoCA's 2012 Submission to the government detailed a number of strategies to increase professionalism without the burden of fees being applied only to Commonwealth Marriage Celebrants.
Recommendation 3: CoCA recommends that the following 6 main principles be used by MLCS in the consideration of Conflict of Interest:
- A professional is expected to be impartial in advice/ service giving. Thus a celebrant needs to be at arm’s length from any related activities.
- The other activities of a professional can harm the public perception of the profession.
- Free and informed consent to choose a celebrant must not be hampered by the actions of the celebrant’s other activities.
- A celebrant’s other activities or roles must not impact on their ability to fully and competently prepare and deliver a marriage ceremony.
- The benefit from another activity must never outweigh the benefit from the celebrant role (esp. financially), tempting the celebrant to take shortcuts or to act illegally.
- A professional is expected to have some motive involved in their work, beyond their own personal needs.
Need for an Independent Inquiry into the Commonwealth Marriage Celebrant Program.
CoCA considers that
- the outcomes expected by the 2002 amendments to the Marriage Act 1961 have not been satisfactorily achieved and that
- it is now time for an independent review of the Commonwealth Marriage Celebrant Program
- against the 2002 Explanatory Memorandum, and
- Cost Recovery Principles
before further erosion of standards eventuate.