That there be a review of the regulation of all authorised marriage celebrants to improve efficiency, ensure parity across the different groups providing professional marriage services and provide a consistent and measured approach to regulation appropriate to the level of risk to the public.
That amendments be made to ensure that authorised marriage celebrants from subdivisions A and B are required to undertake a VET unit of study in marriage law prior to authorisation and complete the annual compulsory professional development units as determined by the Attorney General’s department.
2. All authorised marriage celebrants held to similar professional standards under the Marriage Act.
Currently there are differences between the Division 1 authorised marriage celebrants with regard to:
i. initial training in marriage law
ii. fit and proper persons
iii. conflict of interest and benefit to business provisions
ii. compulsory professional development in marriage law
iii. Code of Conduct under the Marriage Act
vi. payment of an annual fee for government oversight (ie regulation).
The 2002 Amendments to the Marriage Act13 were introduced upon a model of “celebrancy as a profession”, in line with the professional status of Subdivision A authorised celebrants, with the long term aim of Subdivision C marriage celebrants being a self-regulating profession.
There are many reasons why this has not eventuated so far and are too numerous to list here.
2.1. Positive Outcomes of the 2002 Marriage Act Amendments
There have been positive outcomes for marriage celebrants in subdivisions C and D in terms of training units14 in the Vocation Education and Training (VET) system mandated professional development (both compulsory in marriage law and elective topics) and a Code of Practice15 in the Marriage Act.
2.1.1. Initial training, professional development and Code of Practice
These positive outcomes could now be utilised to ensure that all authorised marriage celebrants be required to have some basic knowledge of marriage law before authorisation and updated by the compulsory professional development (1 to 2 hours pa) when this is required as well as adhering to the same Code of Practice.
Currently these requirements only apply to the 27% of authorised marriage celebrants, not the 71.5 % who are Ministers of Recognised Religions16.
In relation to Child and Forced Marriage, most of the problems are in relation to religious marriage celebrants being unaware or unwilling to accept Australia’s marriage laws as having precedence over religious law.
Professional development providers are reporting that there are Ministers of Recognised Religions attending their professional development because their religious training and their own professional development programs are not sufficiently detailed to give them the detailed knowledge they need in relation to the legal aspects of marriage.
In 2002 the Marriage Act amendments also introduced a Code of Practice for all Commonwealth Authorised marriage celebrants. Consideration needs to be given to having all people providing valid marriage services under the one Act being required to adhere to the same Code of Practice.
Implementing the recommendations of this Submission, would enable the government to initiate a process over time whereby all new religious celebrants could be better trained initially in marriage law and the current and new religious celebrants updated via annual professional development when there are changes to the Marriage Act.
These factors are causally related in that because the Marriage Act is not specific enough to apply the same standards in terms of the registration and continued authorisation of independent Subdivision C and D marriage celebrants as apply to Subdivision A and B. The latter’s numbers are dependent on need / the ability of the Recognised Religions and the State governments to pay the salaries of their marriage celebrants.
2.2. Inconsistencies in Regulation of Authorised Marriage Celebrants and possible solutions
Subdivision A and B authorised marriage celebrants are regulated by the State/ Territory Registrar of BDMs, whereas Subdivision C and D authorised marriage celebrants are regulated by a Commonwealth Marriage Registrar, a position that was established in 2003.
2.3. The Coalition of Celebrant Associations supported the need for recovery of government costs in regulating all marriage celebrants.
In 2012, CoCA supported the introduction of Cost Recovery was provided 17 that:
i. it applied to all subdivisions of marriage celebrants including Recognised Religions and
State Officers, and
ii. the monies raised be distributed proportionally between the Commonwealth and the
States/ Territories for the regulation of all marriage celebrants.
The latter could have provided funds for those compulsory (not elective) professional
development activities in marriage to have been provided free to all marriage celebrants.
2.4. Births, Deaths and Marriages
Given the various changes in the states and territories with respect to Births, Deaths and Marriage Registry services being integrated into a government infrastructure that deals with many other aspects of government services e.g Services NSW, now may be the time to review the regulation of authorised marriage celebrants.
2.5. Reviewing and Streamlining the Regulation of All Marriage Celebrants.
All couples, whether religious or not, should receive the same basic standard of service to ensure their human and civil rights are upheld.
Currently the various types of ministers, chaplains and marriage celebrants are differently regulated at different level of regulation.
The following principles would assist in delivering a uniform standard of service:
- Over-regulation by government bodies of some groups of celebrants is to be minimised, whilst protecting the public’s rights and needs.
- Reviewing and streamlining the services provided by the States/ Territories and the Commonwealth AGD would improve the efficiency and economic impact of services on celebrants and the public. The latter not just with respect to marriage services, but also with the registration of marriages.
CoCA considers that registration of births, deaths and marriages are the priority services for BDM Registries, not providing marriage services outside government venues.
- Civil bodies should have the same or similar rights to religious bodies.
- If Recognised religions are deemed large enough and responsible enough to do their own day-to-day regulation then the same arrangements, as is the case in other professions, should be available to professional celebrant associations who meet similar required standards.
As noted in the Introduction there are different types of marriage celebrants and anomalies in terms of their level of regulation and how this regulation is monitored and legislated.
Day-to-day regulation is delegated to the Recognised Religion for Subdivision A celebrants, and presumably for Division 3 Chaplains in the Defence Forces Overseas. The Act is silent on the latter, as it is for Marriage Officers in Division 3 and for Division 2 Foreign diplomatic or consular officers. Likewise the Act is silent as regards Subdivision B State Officers, although assumed the relevant State/ Territory Registrar.
For Subdivision C and D Marriage Celebrants this day-to-day regulation is done by the Marriage Law and Celebrant Section, the following table shows this complexity.
The overall regulation is not consistent either. The State/ Territory Registrar oversights the
Subdivisions A and B celebrants and the Commonwealth Marriage Registrar Subdivisions C
and D celebrants, with the Act silent on the two other Divisions.
2.7. Reviewing and streamlining the services provided by the States/ Territories and the Commonwealth AGD would provide more parity, and improve the efficiency and economic impact of services on celebrants and the public.
Given that the miniscule complaint figures (0.03% on the number of marriages they performed)18on these two Subdivisions, there is a case for the delegation of day-to-day regulation to the professional celebrant associations.
Given the concerns about child and forced marriage and the lack of a formal complaints process for all celebrants under the Act, it is possible now to review and streamline the regulation of all celebrants to provided more parity, and improve the efficiency and economic impact of services on celebrants and the public.
In summary, given the fact that Australia has changed dramatically since 1961, it is time to ensure fairness, equality and parity in the Marriage Act to ensure all those who are married in Australia are treated so that their human and civil rights are not reduced because of their or other’s religious beliefs.