Section A - General

RECOMMENDATIONS - DETAILS

SECTION A – GENERAL

The CCN Inc. recommends that the Commonwealth Attorney General:

Recommendation 1

Remove discrimination from the Marriage Act and Regulations, in principle and practice, based upon “non or neutral religious belief” as well as “religious belief” as regards the criteria for validation of the marriage by ensuring that the same criteria are required of all classes of marriage celebrants and all marrying couples to ensure that:
  • all couples are treated equally with respect to the basic criteria for the validation of a  marriage
  • the wording of the key components of the marriage ceremony is in simple, plain English
  • Compliance as regards Sections 45 and 46 does not question the validity of a marriage on the basis of the specific wording of the declaration
  • all marriage celebrants are dealt with fairly and equitably as regards Compliance measures.
Rationale:

The CCN Inc. argues that:
  1. the essence of a civilised and humane society is its ability to adhere not just to the letter of the law, but to the spirit of the law. That is, to continue to review the law and its practical effects to ensure that the law and its consequences continue to serve the interests of all citizens without discrimination.
  2. Australia in many ways has made important contributions to the development of human and civil rights philosophy and practice. Whilst Australia may lag behind other countries as regards its understanding, respect, and treatment of its first peoples,  having started “white” settlement as a penal colony does seem to have influenced the development of our national characteristics of ‘a fair go’, ‘giving people a second chance’, ‘a healthy suspicion of power, authority - big shot-ism’’ and the allied “taking-the-micky” sense of humour.
  3. Australia was second only to NZ in granting women the right to vote and is the country with the longest history of women having the right to vote (NZ backtracked for a while).
  4. In the post Second World War years, Australia played a key role in the development of the United Nations’ Declaration of Human Rights, which outlines a range, not just race, gender, age, and disability, of factors upon which human beings are discriminated.
  5. The Australian Civil Marriage Celebrant program was thefirst in the world to be based upon human rights principles
  6. The role of both civil and religious celebrancy have important implications for the ways in which communities develop,

The Commonwealth Attorney General and Department (AGD), being the national government body recommending law policy nd reform in Australia, has not only a leadership responsibility with regard to human and civil rights for all Australian citizens, but it also has responsibilities through its agreements to the international community.

Thus, it is important to see the Marriage Celebrant Program in the context of other programs under the AGD’s responsibility, especially the AGD’s human rights objectives and anti-discrimination law, Family Law, Marriage and Relationship Education, and Support Services etc

The Australian Government Attorney General and Attorney General's Department provide legal and policy information on domestic human rights matters, anti-discrimination legislation, and implementation of international human rights obligations as well as a policy advising role and administrative responsibilities for the Australian Human Rights Commission.

In 2008 the Federal Attorney General established a major Human Rights Consultation process that resulted in a number of recommendations to advance and better protect the human rights of our citizens  as members of a free and democratic country, which played a major role in 1948 in the development of the Universal Declaration of Human Rights.  There are a number of relevant recommendations.

As regards this submission, CCN Inc. recommends that now is an appropriate time for the Attorney General’s Department to consider the Commission’s Recommendation 8 in relation to the Marriage Act and its Regulations and the Universal Declaration of Human Rights, especially articles 2 and 16.

Human Rights Consultation ‘Human rights in practice’ Recommendation 8 (in part) states

The Committee recommends as follows:

  • that the Federal Government develop a whole-of-government framework for ensuring that human rights—based either on Australia’s international obligations or on a federal Human Rights Act, or both—are better integrated into public sector policy and legislative development, decision making, service delivery, and practice more generally

The Universal Declaration of Human Rights Article 16 states:

  1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
  2. Marriage shall be entered into only with the free and full consent of the intending spouses.
  3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The Universal Declaration of Human Rights Article 2 states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Other Articles of the Declaration of Human Rights contain principles such as

‘All are equal before the law and are entitled without any discrimination to equal protection of the law” (7)

“presumed innocent until proved guilty” (11)

“the right to leave any country, including his own, and to return to his country” (13),  

The CCN Inc. also understands that

Australia is a signatory under the International Instrument titled The Declaration of the Elimination of Intolerance and Discrimination based on Religion or belief 1981

  • The AGD is currently calling for comment and submissions based upon the “consolidation of federal anti-discrimination laws” -
    Racial Discrimination Act 1975 (RDA)
    Sex Discrimination Act 1984 (SDA)
    Disability Discrimination Act 1992 (DDA), and
    Age Discrimination Act 2004 (ADA)

    to provide “an opportunity to consider the existing framework, and explore opportunities to improve the effectiveness of the legislation to address discrimination and provide equality of opportunity to participate and contribute to the social, economic and cultural life of our community”
  • The government intends that “Clearer and more consistent anti-discrimination legislation will make it easier for both individuals and businesses to understand rights and obligations under the legislation”.

Many of the provisions in the legislation set out above implement Australia’s obligations under the seven core human rights treaties to which Australia is a party:

International Convention on Civil and Political Rights

International Convention on Economic, Social and Cultural Rights

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Convention on the Rights of the Child

Convention on the Rights of Persons with Disabilities (CRPD), and

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

  • The Government has made it clear that this exercise will not lead to a reduction in existing protections in federal anti-discrimination legislation. In considering options for reform, the Government will keep the following principles in mind:

o      a reduction in complexity and inconsistency in regulation to make it easier for individuals and business to understand rights and obligations under the legislation

o      no reduction in existing protections in federal anti-discrimination legislation

o      ensuring simple, cost-effective mechanisms for resolving complaints of discrimination, and

o      clarifying and enhancing protections where appropriate.

Note: Above extracts from Consolidation of Commonwealth Anti–Discrimination Laws Discussion Paper September 2011

It is in this context, that CCN Inc. considers the fundamental underlying principles that apply Compliance to Commonwealth appointed Marriage Celebrants need to be applied to all marriage celebrants; its recommendations attempt to establish an equitable baseline for all marriage celebrants and the marrying public. 

Classes of marriage celebrants

  1. Employed civil (BDM staff)
  2. (“Employed”) Recognised religious
  3. Independent religious (Religious marriage celebrants in private practice)
  4. Independent civil (Civil marriage celebrants in private practice)

The CCN Inc. understands that the rationale (assumption) of government is that when a government function is outsourced, the organisation to which the function is given

  1. selects appropriate personnel
  2. ensures said personnel are appropriately trained
  3. supervises said personnel
  4. oversees  the quality of the work done by said personnel
  5. ensures said personnel do ongoing professional development
  6. takes measures to censure or terminate said personnel’s employment if they do the wrong thing or are performing badly and continue to do so.

Because they are considered to be covered by the above rationale, Classes 1 and 2 are exempted from the MLCS administration.

“In practice” however, Class 2 Recognised Religious Celebrants do not get any of the above in relation to the Marriage Act and the requirements for conducting and registering a marriage.

Because Classes 3 and 4 do not meet the “outsourcing criteria", the 2003 changes brought in the Compliance requirements and the five year reviews.

Class 3 Independent minority religious and civil marriage celebrants

Whilst CCN Inc. encourages competence and high standards in independent marriage celebrants, the government’s aim to establish a stable funding base upon which to run its Marriage Law and Celebrant Section should NOT be used to

  • expose civil celebrants to extra financial burdens that do no apply to the other classes of marriage celebrants
  • apply higher Compliance standards to civil celebrants especially as regards the Marriage Act and OPD, and
  • de-register civil celebrants on grounds that would never be applied to the other Classes of Marriage Celebrants.

It is important that the AGD recognise that

  • Any concerns that the government may have with the quality of the work of marriage celebrants needs to be equally applied to the recognised religious marriage celebrants.
  • In particular,  the prevalent attitude that many eligious celebrants appear to hold is that the “real” or “true” marriage is the spiritual union between the couple and their God as bound by their presiding minister[LN4]  in their religious ceremony, and that compliance with the legal requirements (such as legal time for Notice, all the paper checks etc) is secondary and thus not adhered to as required.
  • Numerous examples are reported to civil celebrants about the failure of recognised religious marriage celebrants to apply the legal requirements especially as regards Giving Notice Eg Notice being signed by both parties after the marriage or the registration of the marriage needing to be postponed until the Notice period has passed as the Notice had not been filled out in the first place.
  • The government not holding recognised religious celebrants to the same standards implies a disrespectful and discriminatory treatment of couples choosing a civil ceremony and their celebrants.

Recommendation 2

That  changes to the Marriage Celebrant Program be made based upon a professional model of celebrancy wherein marriage services and ceremonies are a sub-set, regardless of whether the celebrant is independent (i.e. in private practice) or not, or offering religious services or not.

The CCN Inc. considers that the original Civil Marriage Celebrant Program

  • was, in essence, a human rights program to remove discrimination against secular couples who wanted a dignified and meaningful alternative to a religious ceremony and an affirmative action for women program from which profession of civil celebrancy has been evolving.
  • is comparable in many ways to the profession of religious celebrancy and has the potential to continue to contribute to the goals of social inclusion, harmonious relationships, community health and well being.

Thus, the  Marriage Program, as established by the Attorney General in 1973, was about fairness, equity, and independence, especially “fairness before and access to the law” for people wishing to marry according to their own beliefs, as well as granting women the right to officiate at marriages.

Appendix 2 examines different models of celebrancy and concludes that a professional model of celebrancy within which marriage services are a sub-set is the best model upon which to build a stable and equitable foundation for the future.

The evolving profession of civil celebrancy could be strengthened by government support to meet other marriage related, community development, and community education goals pursued by government in the public interest. e.g. human rights, civic responsibilities, relationship building, social inclusion, mental health, community support.

See Recommendations 29, 30 and 31.

The CCN Inc. sees parallels with the broadening of the concept of the Schools Chaplain programme to include a secular pastoral care/youth worker role.

Therefore, the model upon which future directions are based needs to ensure that all marriage celebrants (religious and civil) are treated equally in principle and in practice, thereby providing a  broad community development role. There is a community benefit in adopting a professional model of celebrancy and viewing civil celebrancy as equal in value to whilst different in mode from religious celebrancy (i.e. “professional celebrants in private practice” using a  mix of strategies e.g. community development , information provision, and ceremonial duties.)

Recommendation 3

That all newly appointed Marriage Celebrants, whether commonwealth or state registered, be required to have the same basic level of training as regards Marriage Law and Marriage Registration.

Rationale

See Recommendation 1 above.
See CoCA Recommendation 5.1.

Recommendation 4

That the Conflict of Interest provisions be based on a professional model of celebrancy.

Rationale:

The CCN Inc. considers that this recommendation is an integral part of the underlying model upon which the decisions are made by the AGD.

The CCN Inc. considers that

  • Conflict of Interest primarily applies to people working in a profession; thus, it is not a concept that is applied so easily to businesses.
  • The principle underlying this concept is that professions have altruistic motives or provide services where the expectation of the clients and/ or the community is that the professional person will put their own needs and interests as secondary to those of the client.
  • The receipt of fees for services or products supplied by professionals “in private practice”, in contrast to professional practitioners in salaried employment by government or non-profit agencies, is the acknowledgement that “private practice” increases the possibility of the professional practitioners taking advantage of his or her client in monetary or other ways.
  • As professions have evolved, Codes of Conduct and other strategies have been developed to lessen the possibility of actual conflicts of interest for members of that profession being in private practice.
  • Where a government is outsourcing a service to professionals in private practice, the government is responsible to ensure that there are mechanisms to safe guard the community’s interest.

The Attorney General’s Department appears to have no difficulty with this concept when outsourcing services to religious celebrants, whether in private practice or under the umbrella of a religious organisation. The Draft Explanatory Material Section 12.3 makes it quite clear that “the minister [who] has been making a business of solemnising marriages for the purpose of profit or gain” is not acceptable and as such does not have an automatic right to be appointed.

"12.3   Fees for solemnizing marriages

All Commonwealth-registered marriage celebrants may charge each couple an appropriate fee for solemnising a marriage. The amount of the fee is a matter between the celebrant and the couple.  Similarly, there are no prescribed fees in relation to Registry officials who perform marriages.
The Marriage Act does not affect the right of a minister of religion who is an authorised celebrant to require or receive a fee for or in respect of the solemnisation of a marriage.  However, a minister of religion of a recognised denomination may have his or her name removed from the register if a Registrar of Ministers of Religion is satisfied that the minister has been making a business of solemnising marriages for the purpose of profit or gain.[1]
"

So why is a double standard applied to the role of an independent civil marriage celebrant?

If the same principle were to be applied to independent civil marriage celebrants, then the government should not authorize any person whose primary aim is to make a “business of solemnising marriages for the purpose of profit or gain.” Note: “profit” is defined as income in excess of the cost of providing a service or product, which includes the cost of paying for the labour in making or delivering the service. Currently, this principle does not apply to civil celebrants.

Thus, it is the government’s responsibility to ensure that independent people:

  1. whose goal is to make “a business of solemnising marriages for the purpose of profit or gain”, or
  2. who have a conflict of interest

are not appointed and that those who are appointed are operating on a “professional in private practice” model of celebrancy.

Thus, the CCN Inc argues that:

  • “Business Model” of celebrancy is not appropriate and that
  • Conflict of Interest provisions need to be strengthened as proposed by CoCA’s Submission.

Recommendation 5

That  all new Marriage Celebrants be required to adhere to the same Code of Practice.

Rationale

Over the last few years, extreme weather conditions, like bushfires, floods, high temperatures, heavy rains, and earthquakes, have threatened weddings  and highlighted the celebrant’s duty of care to self, the marrying couple, and their guests.

Because of the

  • emotional investment in the wedding day, made especially by the brides,
  • energy and time expended in planning a once-in-a-life time event, such as a wedding
  • cost of products and services that cannot be transferred to another time
  • the focus on "me" rather than on "guests"  of the day
changing the venue or time of the wedding, even when circumstances clearly are potentially life threatening, can be extremely difficult for the couple and thus for the celebrant.

In this increasingly litigious age, celebrants need to have the clear assurance of the government that requiring a change of venue or time is within their control, when extreme weather conditions are a major concern, without fear of censure by the government or the couple.

Accountability for services and Occupational Health and Safety issues are increasingly concerning for all governments, so the Code of Practice will serve as a conscious-raising tool for all celebrants.

Besides, as noted under Recommendation 4, all professions need to develop Codes of Practice to guide their work. As such, the wording of the Code for Marriage Celebrants can be crafted to include all Classes of Marriage Celebrants, whether they are independent or not, state or Commonwealth appointed.

CoCA revised the Code of Practice to accommodate these concerns and presented it to the Department via the Registrar. To date,  CoCA has had no feedback on its recommendation for the revised Code from the AGD.

See: Appendix 4

Recommendation 6

That all marriage celebrants be required to complete Ongoing Professional Development (OPD).

See Recommendations 1, 7, 8, 20, and 27 to 31.

Recommendation 7

That all marriage celebrants be required to utilize the Marriage Law and Celebrant Website’s Celebrant Only section to

  1. Provide annual statistics
  2. Review, confirm, or provide information on their OPD activities and other compliance requirements
  3. Gain access to legal fact sheets, information, and news bulletins
  4. Update contact information

Rationale:

This recommendation builds upon preceding arguments, especially in Recommendation 5.

Predominantly, the CCN Inc. is of the view that

  • where a government department is responsible for law and policies related to that law, it is important to have  accurate and unbiased information upon which to make policy so  that in the end, it will deliver a legal service to the Australian community
  • requiring every authorised marriage celebrant to demonstrate a certain level of duty of care to the marrying public, and specifically to those couples they marry, will encourage all marriage celebrants to improve their performance so that  the marrying public will receive a better service as a consequence.
It could be argued that, as is the case in other professions, the Attorney General's Department should require all authorised marriage celebrants to have appropriate:
  • Public Liability and Professional Indemnity Insurance cover

    Licence/s to cover Copyright of any materials/ resources that they have  not  authored and/ or for materials for which they have not gained the specific approval from the author for the use of the material, in whatever format in which it is intended to be used e.g. stored in a computer, emailed to others, printed in memento copies or celebrant's ceremony planners, printed in couple's programs for guests etc.
  • Membership of a celebrant association, network, organisation, institution etc.

The CCN Inc. is unsure of the government’s ability to make such requirements mandatory. However, as a process of encouraging and supporting all celebrants, using an Annual Survey would be one way to improve services and protections for the general public.

Recommendation 8

That all marriage celebrants be subject to the same procedures for information distribution about marriage, marriage related services, and complaints about celebrants.

Rationale:

All marriages, whether religious or civil, whether conducted by independent celebrants or celebrants employed by registry offices or church organizations, are conducted under the same Act – The Commonwealth Marriage Act 1961.

Therefore, the CCN Inc. considers that all Australian marriages should be equal under law. (The Universal Declaration of Human Rights Article 2 and 16)

All the pre- and post- legal paperwork is the same, whether the couple chooses an independent civil or religious marriage celebrant, or one from a recognised religion or a registry office.

Prior to 2003, all marriage celebrants had a degree of flexibility in terms of the wording of the ceremony.

For recognised religious celebrants the Act says:

  • Section 45 (1) allows:  ”the Minister is satisfied that the form of ceremony to be used by that person sufficiently states the nature and obligations of marriage, the Minister may, either by the instrument by which that person is so authorized or by a subsequent instrument, exempt that person from compliance with subsection (1) of this section”.   And,
  • Section 46 (2) allows  “any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister”.

For civil marriage celebrants the Act says:

Civil weddings are required to contain some wording that indicates:

  • the celebrant is authorised to marry the couple – Section 46 (1)
  • the occasion was a legal wedding by giving a definition of marriage – Section 46 (1)
  • the couple say words to the effect that they take each other as husband and wife, thus giving consent to the marriage – Section 45 (2).
  • The  ”words to that effect” in Section 45 (2) and 46 (1) clearly give civil marriage celebrants the flexibility and the responsibility to assess this aspect of the ceremony themselves.

In principle, this approach respects people with religious beliefs, different beliefs, and no religious beliefs alike, as regards  their form of ceremony and the wording of the consent by allowing some flexibility i.e. “words to that effect”.

The CCN Inc. is very concerned, however, that measures intended to address difficulties in the pre-2003 Marriage Celebrant Program by

  • making the appointment process more transparent and less subject to claims of bias, and
  • ensuring a baseline level of training for Commonwealth appointed marriage celebrants

are now being used to de-register Commonwealth appointed marriage celebrants on grounds that

  • are clearly not required of Recognised Religious Celebrants and State Officers, and

would be hard to imagine ever being applied to Recognised Religious marriage celebrants.
This approach constitutes “unfair dismissal” or “discriminatory” action on behalf of the AGD.

Not being able to afford a high annual “so-called Professional Celebrant Fee” similarly adds another criterion upon which Commonwealth appointed marriage celebrants could be discriminated against.

Whilst the Australian Constitution may be interpreted to give protection only to those people with religious belief, that narrow interpretation “in practice” means that

  • people with different religious beliefs (non-aligned religious, now termed independent religious) are discriminated against on religious grounds by being held to account in different ways, with negative consequences, as compared to  the “Recognised” religious celebrants, and
  • people who personally may or may not hold religious beliefs, but who support human rights and the importance of neutrality in a civil society in the acknowledgement of inclusive rites of passage, also are discriminated against on religious grounds by being held to account in different ways, with negative consequences, as compared to the “Recognised” religious celebrants.

The other related aspect is that ‘marriage’ or ‘marital status’ is understood to be covered by Anti-Discrimination legislation such that discrimination on marital status is  grounds upon which Australia people can take legal action.

Therefore, the process of ‘acquiring marital status’ likewise should not be grounds upon which marrying couples are discriminated against by having different procedures and related fees  imposed upon them by different government requirements administered by  different service providers. (Seems in some ways, as an issue under anti-competitive practices)