Paper tabled at meeting of CoCA with the Attorney-General Department December 2014
Topic: Clarification of legal processes for Deregistration related to the Annual Fee
Introduction
The Coalition of Celebrant Associations (CoCA) Inc. has heard at least a half a dozen examples regarding celebrants receiving letters de-registering them when they:
· had not paid and should have known they had not paid
· had not paid as the banking system rejected their payment after having shown the payment as processed
· had paid but received a de-registration Notice because of administrative errors in the Attorney-General’s Department
· went to the Administrative Appeals Tribunal, paid $819 to have them represent their case, then were able to negotiate re-instatement of their authorisation themselves directly with the Department
In all cases above, the celebrants were able to have their de-registrations reversed.
This appears to be due to these celebrants:
1. going directly to their Senators who presumably put pressure on the Department
2. had their association's committee support and intervention with the Department
3. being persistent in their efforts with the Department to reverse the Registrar’s decision. This includes a celebrant, who paid the AAT but was able to resolve the matter with the Department without the AAT intervention.
There could be many more exceptions like the above, that CoCA is not aware of.
Likewise, there could be examples of the above where the celebrant simply gave up because the system has become so unfair and de-moralising to continue.
The latter group can include celebrants with knowledge and skills of benefit to their communities and to their associations.
Concerns:
Legality of the Action by the Department
CoCA believes that Sections 39FA and 39B make it clear that the Registrar has no power legislatively to reverse de-registration action once taken. Relevant parts of Section 39 are highlighted in the Appendix attached. The previous Assistant Secretary, Peter Arnaudo, stated this position to CoCA in 2013.
That is, the Registrar cannot reverse the decision to de-register either on the grounds that
1. the Department made a mistake, or
2. something happened beyond the celebrant’s control.
This means what has happened appears to be illegal and non-transparent - and therefore does not stand up in terms of natural justice.
Mr Arnaudo informed CoCA that, because the legislation was not enacted until 1st July 2014, the Notices could not be sent before hand. Section 39FA(2) (a) (ii) would not prevent the Registrar from issuing invoices at 60 or 90 days before the charge date.The Coalition of Celebrant Associations supports fair and transparent processes with regard to revoking a celebrant’s authorization on any grounds, but especially in regards to the payment of the annual fee.
The reinstatement of marriage celebrants’ authorisation where the grounds for revocation were factors beyond their personal control would be fair & reasonable, but does not appear to be possible with the current legislation.
Associated Legal Concern
Celebrant associations’ members have raised concerns that "re-registration letters" state they are only registered to 30th June the following year, the same as currently registered celebrants and this means a "no man or woman's land" if they conduct a wedding between the 30th of June and the 1st of August or whenever their confirmation for the next year’s registration letter arrives.
As celebrants they may not be de-registered but neither are they technically registered? Does this invalidate any marriage they may conduct during this period of time?
We would ask that notices be sent on 1st May to be paid by 30th June or alternatively, sent out 1st April to be paid by 31st May with the celebrants re-registration confirmed before the 30th June. As noted above, Section 39FA(2) (a) (ii) would not prevent the Registrar from issuing invoices at 60 or 90 days before the charge date.
The former perhaps needs the legislation to be changed to ensure celebrants are covered when they are not longer registered, but not in fact deregistered.
This latter issue and the fact that Subdivision A and B celebrants are not charged any fee, raises the issue of whether this legislation is in fact breaking laws related to anti-competitive practices.
Exemptions on the Grounds of Ill-health or Carer Responsibilities
This year, celebrants wishing to a apply for an exemption on the grounds of serious ill-health or carer responsibilities, only had a two week period in which to do so.
Given that such celebrants cannot predict circumstances with regard to their own health or that of the person(s) they care for, this short period is stressful and unnecessary if the Department were to implement processes for such celebrants to apply for exemptions at least two months in advance.
Given the number of applications on these grounds are small, and the Department has both computerized systems and staffing for the purpose of collecting fees, it must be possible to implement a fairer system for the management of this type of exemption.
It may be that 2015 will also allow a longer lead-time for issuing invoices that may address this issue.
Action:
The Coalition of Celebrant Associations requests the Department:
o clarify the legality of the action of the Registrar with respect to the re-instatement of the authorisation of those celebrants who were sent deregistration notices by the Department.
o provide a report on
§ the number of celebrants sent de-registration letters on the grounds of non-payment of the annual fee
§ the number of celebrants de-registered on the grounds of non-payment of the annual fee
§ how many celebrants have been sent de-registration letters on the grounds of non-payment of the annual fee and not de-registered
§ upon what grounds were they un-de-registered
§ how many were required to pay full fee after the date the letter of de-registration was sent.
§ the number of celebrants sent de-registration letters on grounds other than non-payment of the annual fee, and
§ upon what grounds were they de-registered
o consult with CoCA on the best time frames for issuing invoices, pre-payment options and receiving payment given that mid-year, many celebrants take annual leave here and overseas and may not have access to either their invoices or internet banking to enable payment within the time stated.
o consult with CoCA on the best time frames for issuing invoices, pre-payment options and receiving payment for celebrants applying for exemptions from paying the annual fee.
CoCA recommends the Department consider submitting changes to the Act such that:
· The Marriage Act provides for internal review by the Registrar of Celebrants of non-payment of the charge fees due to circumstances beyond the celebrant’s control.
· The Marriage Act and The Regulations be changed such that the Registrar of Marriage Celebrants is required to
o send an initial notice at least 2 months before the charge date
o followed by a reminder notice at least one month before the charge date and
o a third and final notice after the charge date by registered mail, stating deregistration will automatically occur if the celebrant registration charge is not paid within 21 days of the date of the final notice.
· A clause added Section 48 of the Marriage Act to cover Subdivision C celebrants when they are no longer registered, but not in fact deregistered, in terms of the validity of any marriages they may conduct in this period.
APPENDIX: 39FA Celebrant registration charge: liability to pay charge
(1) A person is liable to pay celebrant registration charge to the Commonwealth in respect of a financial year if:
(a) the person:
(i) is a marriage celebrant on 1 July in that financial year; or
(ii) becomes a marriage celebrant later in that financial year; and
(b) the person has not, before the end of the charge payment day, been granted an exemption from liability to pay the charge.
The charge must be paid by the end of the charge payment day.
Note: For the imposition and rate of the charge, see the Marriage (Celebrant Registration Charge) Act 2014.
(2) The Registrar of Marriage Celebrants must, in respect of a financial year, send each person who is a marriage celebrant on 1 July in the financial year, or who becomes a marriage celebrant on a later day in the financial year, a notice that:
(a) specifies:
(i) the amount of celebrant registration charge that is payable by the person (unless the person is granted an exemption); and
(ii) the charge payment day (being a day that is at least 30 days after the day on which the notice is sent); and
(b) complies with any other requirements prescribed by the regulations relating to the content of the notice, or how it is to be sent.
(3) The regulations may do all or any of the following:
(a) provide for the granting of exemptions, on grounds specified in the regulations, from liability to pay celebrant registration charge in respect of a financial year;
(b) require a fee to be paid in respect of an application for an exemption;
(c) provide for internal review of decisions to refuse to grant exemptions.
(4) Regulations made for the purpose of paragraph (3)(b) may specify a fee, or provide for a fee to be determined by the Minister by legislative instrument.
(5) Regulations made for the purpose of paragraph (3)(c) must provide that the outcome of an internal review of a decision (the original decision) is either:
(a) that the original decision is confirmed; or
(b) that a different decision is substituted for the original decision, with effect from the time when the original decision was made.
(6) An amount of celebrant registration charge that a person is liable to pay:
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent jurisdiction.
39FB Celebrant registration charge: consequence of non‑payment
(1)If a person has not, by the end of the charge payment day, paid an amount of celebrant registration charge that the person is liable to pay, the Registrar of Marriage Celebrants must, as soon as practicable after that day, send the person a notice in accordance with subsection (2), unless the Registrar considers
(2) that the notice should not be sent at that time because the person’s liability to pay the charge may be affected by:
(a) the outcome of an application for internal review of a decision to refuse to grant an exemption; or
(b) any other circumstance of which the Registrar is aware.
Note: Depending on the outcome of matters referred to in paragraph (a) or (b), it may turn out that the person is not liable to pay the charge.
(3) The notice referred to in subsection (1) must:
(a) advise the person that, because the person has failed to pay celebrant registration charge, the person will be deregistered as a marriage celebrant after the day specified in the notice (being a day that is at least 7 days after the day on which the notice is sent); and
(b) comply with any other requirements prescribed by the regulations relating to the content of the notice, or how it is to be sent.
(4) The Registrar of Marriage Celebrants must deregister the person as a marriage celebrant by removing his or her details from the register of marriage celebrants as soon as practicable after the day specified under paragraph (2)(a).
Note: If the person wishes to become a marriage celebrant again, the person may reapply under section 39D.
39G Obligations of each marriage celebrant
(1) A marriage celebrant must:
(a) conduct himself or herself in accordance with the Code of Practice for marriage celebrants prescribed by regulations made for the purposes of this paragraph; and
(b) undertake all professional development activities required by the Registrar of Marriage Celebrants in accordance with regulations made for the purposes of this paragraph; and
(c) notify the Registrar, in writing, within 30 days of:
(i) a change that results in the details entered in the register in relation to the person no longer being correct; or
(ii) the occurrence of an event that might have caused the Registrar not to register the person as a marriage celebrant if the event had occurred before the person was registered.
Note: If a marriage celebrant fails to comply with these obligations, the Registrar may take disciplinary measures under section 39I.
(1) An application may be made to the Administrative Appeals Tribunal for a review of a decision of the Registrar of Marriage Celebrants:
(a) not to register a person as a marriage celebrant (unless a ground for the decision was that the Registrar would breach section 39E by registering the person); or
(b) to suspend a person’s registration as a marriage celebrant; or
(c) to deregister a marriage celebrant. “(including under subsection 39FB(3))”.
(2) For the purposes of both the making of an application under subsection (1) and the operation of the Administrative Appeals Tribunal Act 1975 in relation to such an application, if:
(a) a person has made application for registration as a marriage celebrant (see subsection 39D(1A)).; and
(b) at the end of 3 months after the day on which the application was made, the person has not been:
(i) registered; or
(ii) notified by the Registrar that that person’s application has been refused;
the Registrar is taken to have decided, on the last day of the 3 month period, not to register that person as a marriage celebrant.
(3) The Registrar must take such action as is necessary to give effect to the Tribunal’s decision.
