Marriage Equality Bills - Supplementary

TO: House of Representatives
Standing Committee on Social Policy and Legal Affairs

RE: Marriage Equality Bills.


Civil Celebrations Network (CCN) Inc Supplementary Submission.
20th April 2012.

Introduction:

As Chairperson of the Civil Celebrations Network (CCN) Inc. I presented our Marriage Equality Submission to the Committee’s public hearing in Sydney on 12th April 2012, and was thankful to have the opportunity to make some points to the Committee.

However, the time assigned to the Civil Celebrant Section was shorter than expected, and the discussion rather rigidly focused upon the legal aspects of the proposed changes.

We appreciate that other speakers may have been called to address on the broader social impact of changing the definition of marriage.

However, given the emphasis of the discussion in our session, the CCN Inc considers that we need to ask the Committee to consider in more depth the CCN Inc. Submission’s Recommendation 1:

CCN Inc recommends the definition of marriage in Section 45 (1) be changed to: “marriage is the union of two adults, to the exclusion of all others, voluntarily entered into for life.”

This is because, before being able to present the broader importance of the community education value of this recommendation, Mr Neumann focussed the issue as being a political one of Commonwealth versus State rights as the general age definition of “adult”.

This had not been anticipated, as there was no indication in either of the Marriage Equality Bills to change the minimum age at which people could freely marry, nor the conditions upon which one of the parties to the marriage could be younger than 18 but not younger than 16 without court consent. (Marriage Act 1961 Part II—Marriageable age and marriages of minors).

Additional Points to add to our CCN Inc Submission:

1.  The CCN Inc. rejects the assumption some people have - that only “religious” marriage celebrants possess an ethical stand on the importance of marriage in society.

The CCN Inc maintains that religious people do not have a monopoly on morality and ethics.

Whilst one can acknowledge the social good that certain religions have given societies in times past and present, one also has to challenge practices based upon ignorance and social custom that are no longer sustainable an enlightened democratic society such as Australia. One only has to look at past history and current concerns about the behaviour of not only individuals, but of the institutional hierarchy, as regards abusive practices against predominantly women (e.g. the Inquisition) and children (e.g. recent disclosures of paedophilia and forced labour camps called children homes).

That said, neither can one argue that societies which have repressed religious belief and expression are ones that provide the best environment in which their citizens can live to the fullest expression of their humanity and dignity.

Thus arguments about other times and places are not very relevant.

Rather what Australians need of their parliament is wise, compassionate and reasoned leadership. This needs to be based upon the latest knowledge of human biology and functioning; childhood development; of psychology and sociology; and of moral and ethical systems that are based upon best practice and the common good for living human beings.  Whatever the nature of life after death, religious beliefs must not be used to justify inhumane or discriminatory behaviours in the here-and-now.

Australian laws need to uphold the universal system of ethics developed in 1948, with considerable input by Australians. Termed the Universal Declaration of Human Rights, that ethical system gives guidance for the development of societies that allow for the maximum respect for individuals as well as the maximum benefits for the common good.

2.  The CCN Inc challenges the assumption that religious marriage celebrants and ceremonies are better than civil ones.

People who make this assumption would appear to disrespect 65+ % of Australians who choose a civil, rather than religious, ceremony.

The nature of the ceremony does not demonstrate the true state of an individual’s religious or spiritual beliefs. There are those who marry in churches for the ambiance, photographic and other characteristics of the venue, without any deep conviction to the religion within whose church the person is married.

Civil Celebrants take their duties and responsibilities very seriously and uphold the importance of marriage, being an extremely important stable long-term caring relationship, and with the respect required the statutory obligations that our Code of Practice requires. See Appendix 2.

The Coalition of Celebrant Associations (CoCA) Inc, the peak body for civil celebrants, submitted a revised Draft of the Code of Practice to the Attorney General in 2011, which upholds civil celebrants respect for marriage in a civil society. This draft combines sections 2 and 3 of the current Code and states (in part):

“Therefore your celebrant will recognise the social, cultural and legal significance of marriage and the marriage ceremony in the Australian community, and the importance of strong and respectful family relationships.

Marriage is a fundamental and central institution of Australian society and weddings mark a special day in the lives of those involved. Adherence to this Code of Conduct will ensure that your marriage will be valid and all parts of the legal documents will be accurate and appropriate. Your Celebrant also has a duty to ensure that the information supplied by you conforms to the requirement of the Marriage Act and Regulations. In addition the safety and health, of you, your guests and others associated with your wedding is of paramount importance.

Your Celebrant has the right not to conduct or to ask that you postpone your ceremony should there be any danger or failure by you to comply with the requirements of the law. To help ensure that high standards are observed the Registrar of Marriages will hear any complaints you may have relating to the failure of your Celebrant to meet the obligations under the law and may take disciplinary action and/ or hear any complaints your Celebrant may have relating to your failure to meet the obligations under the law.”


3. The CCN Inc maintains that civil marriage celebrancy, like religious marriage celebrancy, it is not part of the Wedding Industry.

Civil Marriage Celebrants, like any other professional person, do require a fee for their services.

This fact does not make civil celebrants “just a business” any more than the fact that Recognised Religious Celebrants take a fee for the marriage and receive a stipend, accommodation and /or other financial or in kind support for their services or Registry Office that charges a fee and whose Marriage Celebrants receive a wage.

Civil Marriage celebrants, as do religious marriage celebrants, perform a legal function on behalf of the Commonwealth of Australia.

Marriage in Australia is a legal contract, as well as a psychological and social contract, that confers certain rights, privileges and protections for those who enter into this contract.

Unlike other times and places, groups of people in Australia have access to lawyers for rights and protection of assets and income under Partnership and Company laws and the like, so claims of the need for the definition of marriage to change to protect those who wish to enter polygamous or polyandrous arrangements are not valid. Neither are concerns about de-facto couples as recent Commonwealth legislation has been enacted to protect couples living in these arrangements.

Thus marriage is still an important contract for ordinary couples who may not have the wealth and knowledge to use the legal system to protect themselves in ways mentioned above.

Thus marriage celebrants, like other professionals, must place their clients’ needs and their responsibilities to the Commonwealth government, before their personal financial and other interests.

Conflict of Interest provisions for Commonwealth marriage celebrants in the Marriage Act (Part IV Division 1 Section 39C Entitlement to be registered as a marriage celebrant) makes this aspect very clear.

The CCN Inc upholds the concept that providing wedding ceremonies is only part of the role of the modern civil celebrant.

Like religious celebrants, civil celebrants provide support for families and communities in times of change via civil funeral and memorials ceremonies, civil parenting ceremonies to welcome children into their families and other ceremonies.

4. A definition of marriage as between “two adults” sends a clear message as a community standard for the marriage relationship as well as by inference a traditional standard recognized by the community as the goal for sexual behaviour.

The CCN Inc considers the term “people” as being one that is inclusive of “children”. When one talks about the people of a country, for example, the term includes babies and children.


This was an argument used by presenters just prior to our session in the public hearing – that changing the definition of marriage from the time-honoured one was going to automatically lead to a broadening of the definition of marriage to include polygamy, polyandry, incest, bestiality and the like.


Whilst one can have all sorts of theoretical debates about the nature of marriage in times past or in other countries, religions or cultures, one cannot dismiss the growing body of knowledge about the detrimental affects of sexual behaviour that is not consensual, that is coerced or abusive. The latter includes sexual behaviour between people in positions of trust or parental/carer roles and other vulnerable people including children and people with intellectual disabilities.

The CCN Inc considers that the community education value, of retaining this core principle of our Australian way of life, is extremely important to uphold.

The boundaries between adults and children are being blurred in numerous ways by powerful organisations that have vested interests in creating new markets for their “adult” products in the fashion industry, alcohol and other drug industries, online internet services and the like.


The principle of “no sex before marriage” upheld by most religions may have been relevant in times where the onset of puberty and marriage were much closer together in time, where the whole of society upheld that principle as valid and attainable for most people and ‘policed via chaperone-ship’ up until marriage, where access to sex was limited by economic, transport and other factors.

However in today’s complex world, our society needs to acknowledge that a new paradigm has been evolving as regards sexual behaviour. Its two key principles are

  1. “consent” – which needs to be both informed and empowered, and thus involves protection of children and animals, people with intellectual disabilities whether caused  before or during birth, by accident or by age.
  2. “privacy” – also protecting children from exposure to behaviours that are not age appropriate. E.g. Pornography laws
The CCN Inc considers that, the community standard that has evolved over the last century, is that appropriate sexual behaviour “needs to be private and between consenting adults” and as such is “not the business of the State”.

History and recent studies show that sexual behaviour once considered practiced exclusively by gay and lesbian people, has and is practiced by heterosexual couples both inside and outside of marriage. Thus sexual behaviour alone cannot be grounds upon which to exclude same sex couples from marriage, any more than the lack of sexual behaviour in marriage is any longer grounds for the invalidity of a marriage in Australia.

However, conversely the CCN Inc considers that sexual behaviour that is “not private, not consensual” and “not between adults” is “the business of the State”.

The recent Four Corners Program ‘Without Consent’ highlights this issue and the importance of our society ensuring that our multicultural community is educated about the standards that our Australian culture considers appropriate. 1

The ceremonies, such as marriage, are powerful agents for the transmission of cultural values and as such important for promoting “civilised bahaviour” of its citizens by a civilised democratic multicultural society.

Removing the discrimination against same sex couples will mean a more tolerant, fair and compassionate society.

But this does not have to be at the expense of changing the definition of marriage to remove the concept of age and maturity as being important. Upholding the protection of children and vulnerable adults will also mean a more tolerant, fair and compassionate society.


All the CCN Inc recommendations (See Appendix 2) are based upon human rights and Australians national and international obligations under law.



Please contact us for more information or clarification of any of the points made in this and our full submission.

Thank you for the opportunity to add these comments to our Submission and Public Hearing presentation.

Rona Goold

Chairperson
Civil Celebrations Network (CCN) Inc


Reference:
1. ABC Four Corners - Without Consent - By Sarah Ferguson and Deb Masters

http://www.civilcelebrationsnetwork.org.au/test/941-without-consent


Appendix 1 Code of Practice for Marriage Celebrants
(NB The Code only applies to Commonwealth Appointed marriage celebrant, thus does not apply to the 23,500 Recognised Religious Marriage Celebrants nor 500 State Registry Office Marriage Celebrants)



(Regulation 37L)

1 Application of this Code of Practice

This Code of Practice applies to marriage celebrants (being persons registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961).

Note: Under paragraph 39I(1)(b) of the Marriage Act 1961, if the Registrar of Marriage Celebrants is satisfied that a marriage celebrant has not complied with an obligation under section 39G of that Act, including this Code of Practice, the Registrar may take disciplinary measures against the marriage celebrant.

2 High standard of service

A marriage celebrant must maintain a high standard of service in his or her professional conduct and practice.

3 Recognition of significance of marriage

A marriage celebrant must recognise the social, cultural and legal significance of marriage and the marriage ceremony in the Australian community, and the importance of strong and respectful family relationships.

4 Compliance with the Marriage Act and other laws

A marriage celebrant must:

(a) solemnize marriages according to the legal requirements of the Marriage Act 1961 (Cth); and

(b) observe the laws of the Commonwealth and of the State or Territory where the marriage is to be solemnized; and

(c) prevent and avoid unlawful discrimination in the provision of marriage celebrancy services.

5 General requirements for marriage ceremonies

A marriage celebrant must respect the importance of the marriage ceremony to the parties and the other persons organising the ceremony. To that end, the marriage celebrant must do the following:

(a) give the parties information and guidance to enable them to choose or compose a marriage ceremony that will meet their needs and expectations;

(b) respect the privacy and confidentiality of the parties;

(c) maintain appropriate facilities to interview parties and provide office facilities, including facilities for the secure storage of records;

(d) within a reasonable time before the marriage ceremony:

(i) confirm all details with the parties; and

(ii) ensure the return of all personal documents belonging to the parties (unless it is necessary to keep the documents for the ceremony); and

(iii) sign any necessary declarations;

(e) if requested by the parties, conduct a marriage ceremony rehearsal;

(f) ensure that his or her personal presentation is of an appropriate standard for the marriage ceremony, and respect the expectations of the parties in relation to the ceremony;

(g) make efforts to ensure that the marriage ceremony is audible to all those present (using audio equipment, if required);

(h) ensure accuracy in the preparation of documents, and in the conduct of the marriage ceremony;

(i) arrive at the venue for the marriage ceremony no later than the time agreed with the parties;

(j) if the marriage celebrant has agreed to perform more than one marriage ceremony on the same day:

(i) ensure that the parties to each marriage receive a level of service that meets their separate and special requirements; and

(ii) be available at the venue for each marriage ceremony at least 20 minutes before the agreed commencement of each ceremony (unless, in the case of consecutive ceremonies, the ceremonies are to be held at the same venue);

(k) ensure that all relevant documents are completed and sent to the appropriate registering authority within 14 days after the marriage ceremony, as required by section 50 of the Marriage Act 1961;

(l) in relation to the provision of marriage services, accept evaluative comment from the parties, and use any comments to improve performance;

(m) give the parties information about how to notify the Commonwealth Attorney-General’s Department of any concerns or complaints they may have regarding the marriage services provided by the marriage celebrant.

6 Knowledge and understanding of family relationships services

A marriage celebrant must:

(a) maintain an up-to-date knowledge about appropriate family relationships services in the community; and

(b) inform parties about the range of information and services available to them to enhance, and sustain them throughout, their relationship.


Appendix 2 Summary of Civil Celebrations Network (CCN) inc. Recommendations:

Recommendation 1:

CCN Inc recommends the definition of marriage in Section 45 (1) be changed to: “marriage is the union of two adults, to the exclusion of all others, voluntarily entered into for life.”

Recommendation 2:

CCN Inc recommends Subsection 45(2) and 72 (2) be changed to inserting “or marriage partner or partner in marriage” after husband.

Recommendation 3:

The CCN Inc recommends that the current position be maintained to allow for the flexibility for the Courts only to determine the maturity of the person aged between 16 and 18 as of ‘adult” status.

Recommendation 4: The CCN Inc recommends combining items Section 45 (1) and (2) to read:

Where a marriage is solemnized by or in the presence of an authorized celebrant it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the marriage celebrant and is sufficient if, in the presence of the authorized celebrant and the witnesses, each of the parties indicate consent to the marriage by saying in words or indicating in some other form to the other:

I, A. take you, B, to be my wife / husband (or marriage partner or partner in marriage or spouse).

Recommendation 5

The minimum age for appointment as a religious celebrant should be changed to 18 years so that the minimum age for all marriage celebrants is the same.

Recommendation 6

That the category of Civil Marriage Celebrant be re-established.

Recommendation 7

That Section 47 be changed to read:

47 Authorised Marriage Celebrants not bound to solemnize marriage etc.

Nothing in this Part: (a) imposes an obligation on an authorized celebrant, to solemnize any marriage; (b) prevents an authorized celebrant, being a religious celebrant, from making it a condition of his or her solemnizing a marriage that:

(i) longer notice of intention to marry than that required by this Act is given; or (ii) requirements additional to those provided by this Act are observed.

Recommendation 8

That the Committee on Social Policy & Legal Affairs recommend to government that the Coalition of Celebrant Associations Inc’s recommendations on Cost Recovery and Increasing the Professionalism of Marriage Celebrants be adopted.

In particular, Commonwealth appointed marriage celebrants and their couples should not be adversely affected by compliance measures and their associated fees for cost recovery that are not required of the Recognised religious celebrants and state registry office marriage celebrants.

Recommendation 9:

That married couples be granted the same rights to a second marriage ceremony under the same conditions as couples seeking marriage ceremonies from religious celebrants.

Recommendation 10:

That the Committee on Social Policy & Legal Affairs recommend to government the development and inclusion of training units in Community Services and Health Sector of the national VET program on:

Human rights, Discrimination and Citizenship; Spirituality, Religion and Community; Rites of Passage and Stages of Human Growth to Maturity; Role of Community Citizenship Celebrant

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