English legal system doctrine that protects against arbitrary exercise of power by ensuring fair play. Natural justice is based on two fundamental rules: (1) Audi alteram partem (Latin for, hear the other side): no accused, or a person directly affected by a decision, shall be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party’s arguments; (2) Nemo judex in causa sua (Latin for, no man a judge in his own case): no decision is valid if it was influenced by any financial consideration or other interest or bias of the decision maker. These principles apply to decisions of all governmental agencies and tribunals, and judgments of all courts, which may be declared to be of having no effect (ultra vires) if found in contravention of natural justice. See also natural law and natural rights.
Between 1973 and 2003 the services provided by marriage celebrants appointed by the Commonwealth Attorney-General’s Department were delivered to the Australian marrying public without the need for a Regulatory function by the Commonwealth Attorney-General’s Department.
- since 1961 all marriage celebrants, whether State registered or Commonwealth appointed, are providing marriage
services on behalf of the Commonwealth Government under the Marriage Act 1961
- since 1961 all marriage celebrants have been required by the Commonwealth Governmenta. to provide those marriage services according to the rules set by theCommonwealth Governmentb. to register those marriages as directed by the Commonwealth with the State of Territory Registry within whose geographic boundaries the marriage takes placec. to use forms and other documentation as set by the Commonwealth and sold via the government printing services or the government contracted printing services
Secondly, the Federal Government has Anti-discrimination laws that prohibit discrimination based upon marital status. It can be argued that Cost Recovery being passed onto the 70% of couples married by Commonwealth marriage celebrants8 in predominantly civil marriage ceremonies means these married couples unfairly carry the burden of Cost Recovery, being treated differently from those couples married by Recognised Religious celebrants.
Thirdly, CoCA asserts that, since the High Court of Australia judgement in the Williams v Commonwealth of Australia  HCA 23 ( 20 June 2012) matter,9 where the High Court noted criteria upon which to assess whether a person held “office … under the Commonwealth”, there are now strong grounds upon which to state the status of Commonwealth marriage celebrants as “Officers of the Commonwealth”.
As such, that High Court judgement means that the “legal grounds” for specifically singling out Commonwealth Marriage Celebrants for the Regulation measures of
Commonwealth appointed Celebrants brought in 2003 is certainly not “clear”.
The Department of Finance’s Best Practice Guidelines2 and the Cost Recovery Guidelines3 also highlight the principle of consultation, the former stressing prior consultation and the latter “appropriate” consultation.
CoCA considers that allowing significant4 Cost Recovery Measures to be implemented at budget time, allows the Government to by-pass its own “best practice” guidelines.
Chairperson Robyn L. Caine Ph: 0412294537
Vice-Chair Ian Deegen
Secretary: Rona Goold P.O. Box 3113 Robertson N.S.W 2577
Phone: 02 48852393
Charging Policy Team
Financial Framework Policy Branch
Department of Finance and Deregulation
John Gorton Building,
King Edward Terrace
Dear Sir/ Madam
Thank you for the opportunity to comment on the Cost Recovery Guidelines.
The Coalition of Celebrant Associations (CoCA) is recognised by the Commonwealth Attorney General as the peak body for Commonwealth Marriage Celebrants and is the only national body representing the majority of celebrant associations in Australia.
As arranged with your Department, CoCA appreciated the extension granted to it, to submit its response today 29th August 2012.
CoCA has formulated its response under the following sections:
- Consultation with Stakeholders
- End Users of Government Services/ Products
- Clear Legal Authority for the imposition of charges
- Cost recovery – neither efficient nor effective
- Natural Justice
Should you require any further information please contact CoCA as above.
Wednesday 29th August 2012
DOWNLOAD THE SUBMISSION: CoCA-DF-CRG-Submission.pdf
To all FMA Act Agencies and CAC Act bodies
Australian Government Cost Recovery Guidelines
This Circular replaces Finance Circular 2002/02 and announces the publication of revised Australian Government Cost Recovery Guidelines (the revised Guidelines). Cost Recovery (CR) applies to all Financial Management and Accountability Act 1997 (FMA Act) agencies and also to those Commonwealth Authorities and Companies Act 1997 (CAC Act) bodies that have been notified, under sections 28 or 43 of the CAC Act, to apply the cost recovery policy.
No changes have been made to the CR policy. The guidelines have been revised to focus more on activities, rather than agencies, and to clarify a few areas (Attachment A contains more detail of these changes).
This Circular is relevant to Chief Finance Officers and relevant FMA Act officials and CAC Act officers with responsibilities for existing or potential cost recovery arrangements.
Application of the Cost Recovery policy
- The CR policy has been in place from December 2002 in respect of new or significantly amended CR arrangements and is being phased in for all existing arrangements according to a government agreed review schedule extending to 2007-2008 (refer to Attachment B).
- Many arrangements are not cost recovery for the purposes of the policy. Exclusions include:
- any form of intra-agency or inter/intra-governmental charging;
- charges by government business enterprises. These businesses operate in competitive or potentially competitive markets and are subject to competitive neutrality principles;
- other commercial charging arrangements in competitive or potentially competitive markets that comply with competitive neutrality principles (eg. commercial research);
- general taxation;
- repayments of loans to the Australian Government;
- receipts from asset sales, rental of property, royalties, including the sale of rights to access resources;
- fines and pecuniary penalties;
- payments by customers to non-Australian Government organisations and firms where Commonwealth policies may affect prices;
- receipts from one-off specific policy measures that have explicitly been recognised by the Government as not being subject to the cost recovery policy (subject to the provisions of paragraph 19, requiring the agreement of the Minister for Finance and Administration) – for example, where the Australian Government introduces a levy to fund an exceptional policy measure;
- charges relating to industry-government partnerships;
- statutory marketing levies; and
- fees charged by courts and tribunals.Key points regarding the application of the Cost Recovery policy
4.CR should not be applied where it is not cost effective, where it is inconsistent with government policy objectives or where it would unduly stifle competition or industry innovation.
5.Any charges should reflect the costs of providing the product or service and should generally be imposed on a fee-for-service basis or, where efficient, as a levy.
6.Agencies should ensure that all CR arrangements have clear legal authority for the imposition of charges.
7.Costs that are not directly related or integral to the provision of products or services (e.g. some policy and parliamentary servicing functions) should not be recovered. Agencies that undertake regulatory activities should generally include administration costs when determining appropriate charges.
8.Where possible CR should be undertaken on an activity (or activity group) basis rather than across the agency as a whole. CR targets on an agency-wide basis will be discontinued.
9.Products and services funded through the budget process form an agency’s ‘basic information product set’ and should not be cost recovered. Commercial, additional and incremental products and services that are not funded through the budget process fall outside of an agency’s ‘basic product set’ and may be appropriate to cost recover.
10.Portfolio Ministers should determine the most appropriate consultative mechanisms for their agencies’ CR arrangements, where relevant.
11.CR arrangements will be considered significant (‘significant CR arrangements’) depending on both the amount of revenue and the impact on stakeholders. A ‘significant CR arrangement’ is one where:
- an agency’s total CR receipts equal $5 million or more per annum – in this case every CR arrangement within the agency is considered, prima facie, to be significant, regardless of individual activity totals; or
- an agency’s CR receipts are below $5 million per annum, but stakeholders are likely to be materially affected by the CR initiative; or
- Ministers have determined the activity to be significant on a case-by-case basis.
- 12.All agencies with significant CR arrangements will need to prepare Cost Recovery Impact Statements (CRIS) when:
- reviews consistent with the Australian Government’s review schedule for existing cost recovery arrangements are undertaken; or
- new cost recovery arrangements are proposed; or
- material amendments are made to existing arrangements (a general rule-of-thumb is that price changes greater than the Consumer Price Index would be considered material. However, in making a decision about materiality, agencies should also consider the likely impact on stakeholders); or
- periodic reviews of cost recovery arrangements are undertaken.
14.A CRIS will not be required where a Regulation Impact Statement that also addresses CR arrangements against the revised Guidelines has been prepared.
15.Agencies with significant CR arrangements should ensure that they undertake appropriate stakeholder consultation, including with relevant departments.
16.Agencies are to review all significant CR arrangements periodically, but no less frequently than every five years
17.Agencies will need to separately identify all CR revenues in notes to financial statements – to be published in portfolio budget statements and annual reports consistent with the Finance Minister’s Orders.
18.Portfolio Ministers are responsible for ensuring that the CR arrangements of agencies within their portfolios comply with the policy and will report on implementation and compliance in portfolio budget submissions.
19.Where a Government entity considers that a significant cost recovery arrangement that is new, materially amended or which has been reviewed, should be exempted from the CR policy, either wholly or partly, relevant Ministers must obtain the agreement of the Minister for Finance and Administration.
20.The foregoing is an outline of the requirements of the CR policy. Agencies should refer to the revised Guidelines for more comprehensive information and guidance.
Acting Division Manager
Financial Framework Division
Financial Management Group
18 July 2005
It is recommended that the Attorney General, in aiming to increase professionalism of marriage celebrants and ensure the ongoing viability of the Commonwealth Marriage Celebrant Program be guided by the following principles:
- A professional model of celebrancy as “professional ceremonialists” is the most appropriate model upon which to base the future development of celebrancy.The definition of a professional ceremonialist is a person who adheres to high ethical standards. They uphold themselves to, and are accepted by the public as possessing special knowledge and skills in creating appropriate dignified and meaningful ceremonies to meet the needs of individuals, couples, families and communities and use key elements of ritual and ceremony. In the provision of their marriage services, they exercise their knowledge and skills to meet the requirements of the Commonwealth Marriage act 1961 and its Regulations.
- Increasing professionalism requires strengthening those characteristics associated with the traditional meaning of the word ‘profession”. (refer appendix A)
- Business skills are required of all independent professionals, but that does not define them as only businesses. Considering celebrancy as a small business only, ‘unprotected’ by government and regulated by market forces for a once in a life- time event is not appropriate because that approach has not worked. Many celebrants do not consider themselves a small business and do not operate as such.
- It is not appropriate for a government program based upon government appointment
- The original program with a set fee model remains inappropriate as the role requires, under the Marriage Celebrant’s Regulation Code of Practice (37L), the delivery of personalised ceremonies. Thus remuneration needs to be tailored to the level of work done by the celebrant, the worth of the celebrant’s skills and resources, and their costs in providing their assets and services.
- Acknowledging and respecting that marriage celebrancy services are part-time services for most marriage celebrants.
- Any fee needs to be based upon the capacity of marriage celebrants to make income from marriage work alone, not be subsidised by other means of income. The vast majority earn a part-time income at the most. Thus cost recovery needs to be set at a level commensurate with part-time work.
- A limit to the number of celebrants on a regional basis.
- to ensure the Marriage Celebrant Program serves the community in providing a stable system of competent independent marriage celebrant services in an equitable manner.
- to ensure the sector continues to increase in professional development of services – rather than becoming a “revolving door” of brand new inexperienced celebrants replacing older still relatively inexperienced marriage celebrants, with an annual massive loss of people’s time, financial and other resources.
- Utilising existing systems and services in training, education, administration, resource delivery.
- to maximise the competence and professionalism of celebrants entering the Marriage Celebrancy Sector and to retain experienced competent celebrants.
- to ensure that marriage services delivered by all marriage celebrants (Recognised religious, BDM staff and independent Marriage Celebrants) are of a high quality.
- Ensuring that the majority of the work done by the MLCS is in line with its primary national role in making law and marriage law policy decisions.
- To ensure that the implemented measures will increase the professionalism of all celebrants, without causing financial hardship to existing celebrants.
- MLCS will continue to provide indirect, supportive services, not direct services.
- to ensure the Marriage Act and Regulations are administered by the MLCS nationally in an equitable manner across all jurisdictions, and reviewed regularly.
- Making the MLCS effective in quality and cost efficient in utilising state of the art computer and IT based systems.
- to minimise staffing and manual labour, and not duplicate knowledge and skills available in other sectors such as Registry Offices and Celebrant Associations
- to provide statistical information on a range of items.
- Fees charged to Civil Celebrants must be directly related to work that is done for the MLCS’s compliance responsibilities
- cost recovery for appointments of new marriage celebrants needs to be obtained from those applying for authorisation
- costs for all other functions of the MLCS that can be related to all marriage celebrants need to be recovered from all celebrants, not just Commonwealth appointed marriage celebrants.
The aim of this recommendation is to balance the intake rate with retirement, de- registration rates, regionally based community need and adequate access to work to improve and maintain skills.
It is recommended that the model for limiting numbers involves:
- similar principles for appointment and registration being applied to civil as currently apply to Recognized religious (refer Division 1 – Subdivision A section 31 of the Marriage Act 1961)
- minimum overall average level of 24 weddings p.a per celebrant in each region, and upon the best applicant for an area by interview with a Regional Advisory Panel.
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.
4.1 Fit and Proper Persons
The aim of this recommendation is to determine the suitability of the applicant for the profession PRIOR to commencing any course of celebrant training.
It is recommended that some parts of the current Fit and Proper Person criteria be applied to those wishing to become civil celebrants.
4.2 Implement a Suitability Course.
It is recommended that consideration be given to develop and implement a suitability course.
5.0 Review approaches to Marriage Celebrant Training
5.1 Different approaches to training for different roles.
The aim of this recommendation is to improve the knowledge and skills of all classes of marriage celebrants (Commonwealth & state, religious and civil) who conduct marriage ceremonies.It is recommended that:
- Civil marriage officers in Registry of Births Deaths and Marriages (BDM) and Court Houses – complete 2 of the compulsory legal units of the Certificate IV in Celebrancy.These would be:
CHCCEL402A Maintain knowledge of the legal responsibilities of a marriage celebrant, and
CHCCEL404A Plan a marriage ceremony in line with legal requirements.
- Ministers of religion in recognized denominations – complete 2 of the mandatory legal units of the Certificate IV in Celebrancy.These would be: CHCCEL402A Maintain knowledge of the legal responsibilities of a marriage celebrant, and CHCCEL404A Plan a marriage ceremony in line with legal requirements
- Independent religious celebrants – complete the 4 mandatory legal units of the Certificate IV in Celebrancy and 1 of the compulsory core units which would be CHCCEL401A Work effectively in a celebrancy role.
- Independent Civil Celebrants – complete the Full Certificate IV in Celebrancy
5.2 Upgrade training of Civil Marriage Celebrants.
It is recommended that two additional units of study be added to the core competency skills and recommend two particular electives if the trainee has no prior business experience. The two units recommended to be added as Core Units are:
- CUSMPF303A – Prepare for Performance. (or a similar unit that relates to voice and delivery)
- CUFWRT301A – Write content for a range of media.
- BSBSMB405A – Monitor and Manage small business operations
- BSBSMB406A – Manage small business finances.
It is recommended that CoCA and the MLCS utilise the new national training authority, Australian Skills Quality Authority (ASQA) to strengthen the training of celebrants by the VET system. ASQA are responsible for mandating national Literacy and Numeracy (LLN) skills. MLCS and CoCA can work with ASQA to ensure:
- National Standards for Trainer Qualifications – Experience as a celebrant a must (varies each state)
- Time Frame – Set minimum time for the course eg VIC UNI = 800 hours
- Registered Training Organisations (RTO’s) – if not doing the course, to take it off their scope and/or check the currency
- Competence testing to be reviewed.
The aim of this recommendation is to ensure high standards for trainers of the Certificate IV in Celebrancy course.
It is recommended that current and future trainers will need to achieve the following:
- MLCS to conduct a knowledge and skills assessment of all current trainers to gain MLCS approval to teach the Certificate IV in Celebrancy core and mandatory units.
- The MLCS assessment would require; a current Curriculum Vitae, proof of their status as a marriage celebrant, proof of having conducted a minimum of 10 weddings in the previous three years and proof of their qualification in Workplace Training and Assessment and the Certificate IV in Celebrancy.
- MLCS approval to be re-assessed every five years. NB in the initial period the Pre-Appointment Assessment process could be used as part of the MLCS assessment procedures.
- Mandatory requirements for trainers will be:
- Certificate IV in Celebrancy (including funeral units)
- Certificate IV in Workplace Training and Assessment
- Experience in the elective units
- Proof of status and experience as above.
- Approval from MLCS as a trainer.
It is recommended that Auditors of RTO’s be provided with the results of pre-appointment skills and knowledge assessments. This concept is being discussed with ASQA. General auditors do not have celebrancy knowledge.
6.0 Implement a Pre-Appointment Assessment.
It is recommended that a self-funded uniform pre-appointment assessment process of knowledge and skills by interview be provided. This would ensure:
- a uniform high standard of entry for all independent marriage celebrants • a qualitative baseline for trainers qualifications to provide training with the VET system, and
- a measure against which existing celebrants could be tested as part of their OPD in a 5 year review cycle.
7.0 Review approaches to Ongoing Professional Development (OPD)
7.1 Flexible OPD phased-in over six years.
The purpose for this recommendation is to provide for flexibility in OPD in the next OPD period.
It is recommended that:
A minimum of six OPD providers to be appointed for the compulsory and non- compulsory OPD for the 2013-6 period, with an extension of three years, subject to satisfactory performance.
- A minimum of six OPD providers to be appointed for the compulsory and non- compulsory OPD for the 2013-6 period, with an extension of three years, subject to satisfactory performance.
- That all trainers of OPD compulsory or legal topics are approved trainers as outlined in section 2.4.3 ?? Skill Levels for Trainers of Certificate IV in Celebrancy. (moved up)
- By 2019 a new system of approval for OPD activities will have been phased in providing a a more transparent and flexible process be developed for the approval and review of compulsory and non-compulsory OPD topics from approved OPD providers (and post 2016 other training/education providers).
- CoCA’s comments to be sought on all applications for OPD Topics or activities
- All approved topics and activities to be published in the Celebrant Only section of the website.
- One day attendance at a Celebrant Association Conference to be approved as three hours of OPD in 2013–2019, unless changed to 5 hours prior to the end of that period by the MLCS.
- Review and general evaluation to be conducted by survey via the Celebrants Only Section of the website.
The aim of this recommendation is to improve the knowledge and skills of celebrants within the context of compliance with the compulsory legal aspects of their statutory obligations.
There are many topics of a legal nature that celebrants may need or wish to do as a refresher. Limiting topics of a legal nature to one topic only for the Compulsory does not address these needs.
It is recommended as follows:
- That all trainers of OPD compulsory or legal topics are approved trainers as outlined in section 2.4.3 Skill Levels for Trainers of Certificate IV in Celebrancy.
- That there be 2 hours minimum for compulsory legal topics to enable maximum cover of material and interactive learning.
- In conjunction with this there should be flexibility for a celebrant or celebrant association to choose the legal topic they wish to pursue. This will allow celebrants/associations to pursue the area of the legal studies where they assess the most need.
- Previous approved compulsory/ legal topics to be available as part of the compulsory and non-compulsory OPD mix.
- Compulsory OPD topic definition to be expanded to include subjects and activities related to the role of a marriage celebrant of a non-legal nature, eg How to access the AGD’s website portal for celebrants.
- That units provide self-assessment and interactive learning opportunities – both face to face and online
- Celebrants to complete new units when available and not to repeat a unit under 5 years.
- All available legal topics to be published in the Celebrant Only section of the website.
The aim of this recommendation is to improve the knowledge and skills of celebrants within the context of compliance with the non legal aspects of their statutory obligations.
It is recommended that:
- All trainers of OPD non legal topics are approved trainers as outlined in section 2.4.3 Skill Levels for Trainers of Certificate IV in Celebrancy.
- Non legal OPD be developed over time to provide an extensive list of approved topics and learning activities.
- Any unit component of the Certificate IV in Celebrancy, core, mandatory or elective, are to be considered appropriate topics for Non legal OPD.
- A full day attendance at a Celebrant Association Conference to be accepted as 3 hours of non legal OPD.
The aim of these recommendations is to encourage celebrants to meet the new requirements for appointment through the use of the Pre-appointment assessment and the Certificate IV in Celebrancy.
It is recommended that:
- In the OPD period 2013-2019, celebrants complete the Pre-appointment assessment of both Knowledge and Skills,
- the completion of units of study within the Certificate IV in Celebrancy to be approved as OPD.
8.0 Upgrade to MLCS Web and IT systems.
8.1 Requirements for Data analysis and planning.
It is recommended that:
- CoCA be consulted as regards what data MLCS is proposing to store for planning, program review and compliance needs.
It is recommended that:
- All marriage celebrants have the ability to login to a secure portion of the new system via an easily understood web portal environment.
t is recommended that for celebrants:
- The national register contains celebrant details of suburb/region, phone and email contacts.
- It also contains language skills and association membership or religious organization affiliation where applicable.
- The different types of celebrants
- The different types of fee structures
- Information on how to choose a celebrant
- Relationship education
- Press releases
- The celebrants role, and especially the independent civil celebrant role.
- The characteristics, values, skills and resources one needs to be a competent celebrant
- The disadvantages as well as advantages of being a celebrant.
- Financial resources needed to set up a celebrancy practice
- Step by Step Process of how to apply
- A listing of CoCA and Celebrant Associations
9.0 Create an Expert Resource Team
It is recommended that:
- A resource team made up of MLCS legal staff, BDM representatives and celebrant association/CoCA representatives be appointed to handle difficult questions/situations.
- The role of this panel would be to:
- To examine the more tricky questions that come in via celebrant associations or BDM
- Provide a team approach to problem solving.
- To request the AGD to contact the relevant embassies etc as required
- To document the findings into Fact Sheets or Information Sheets as matters are resolved.
- Be a resource group for Prescribed Authorities
- It is envisaged that this panel would be a closed in-house web-based forum inside the upgraded MLCS website.
10.0 Streamline Celebrant Queries
It is recommended that in the event of a celebrant contact to any source, in the first instance:
- All celebrants to be asked whether they have made reference to the Explanatory Material, When Words are Not Enough, the Marriage Act and the Marriage Regulations, the Fact Sheets and other information available inside the Celebrants Only Section of the website.
- Then contact the BDM who will be registering the marriage for clarification.
- If the question asked is not covered by the Explanatory material and/or BDM advice appears contradictory, the celebrant raises the matter via their celebrant association or requests the BDM raise the matter with the “Expert Resource Team” on their behalf.
- If no answer is forthcoming within a reasonable period of time, then the celebrant may contact the MLCS.
11.0 Support for Celebrant Associations
It is recommended that the AGD/MLCS provide funds to support CoCA for the following:
- With assistance to upgrade the CoCA website
- With travel equilisation
- With a salary for a part-time person to resource CoCA
- Recommendation 12
12.0 Support for Public Information on Marriage
It is recommended that funding for marriage information sessions for the general public be provided to CoCA associations.
Summary of the effects of Recommendations on Cost Recovery
|Name of Fee||MLCS work|
|Annual Marriage Law Education & Confirmation of Continuing Registration Fee or Annual Marriage Law & Celebrant Section Website Listing and Access Fee.||Marriage Law and Policy Development||Either collected as a fee directly from celebrants and paid once each year via CanprintOr by purchasing of vouchers/ stamps from Canprint per marriage|
|Marriage Stationery, Publications and Canprint|
|Data collection & analysis|
|Coordination of Resource Development and support for all marriage celebrants (BDMs and Celebrant Associations)|
|Reimburse BDM work|
|Reimburse CoCA work|
|Access to Marriage Law Information|
|Public Information about Marriage|
|Public Seminars on Marriage|
|Application Fee||Inquiries||Paid for by applicant|
|Fit & Proper Person Assessment|
|Appointment Assessment Fee||Knowledge and Skills Assessment||Paid for by applicant|
|Servicing Regional Advisory Committees|
|Compliance Fee||One hour each 5 years||Paid once each five years purchased from Canprint.Or a proportion added to the annual Website Fee|
|Fines for non-compliance|
CoCA advises against duplicating a mechanism for collecting fees when there is already a system in place via Canprint for the purchase of an annual numbered Voucher.
Celebrants should not be required to bear the cost of such duplication were the MLCS to set up its own collection system.
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