Morrow and Registrar of Marriage Celebrants
[2019] AATA 1253
•12 June 2019
Morrow and Registrar of Marriage Celebrants [2019] AATA 1253 (12 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5613
Re:Julian Morrow
APPLICANT
AndRegistrar of Marriage Celebrants
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 June 2019
Place:Sydney
The decision under review is varied such that the Registrar is to issue the Applicant with a Notice under section 39FB of the Act on the eighth business day after publication of this decision, with such notice to have effect on and from the 21st day thereafter.
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Chris Puplick AM, Senior Member
Catchwords
Marriage – failure to pay celebrant registration charge – registration cancelled – scope of discretion to give notice of deregistration on non-payment of charge – decision varied
LEGISLATION
Civil Law and Justice Amendment Act 2018 (Cth)
Marriage Act 1961 (Cth)
Marriage Amendment (Celebrant Administration and Fees) Act 2014
Marriage Regulation 2017 (Cth)
CASES
Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33
Director-General of Social Services v Chaney (1980) FLR 87
Shalala and Registrar of Marriage Celebrants [2019] AATA 63
Thiel and Registrar of Marriage Celebrants [2015] AATA 524
Wright v The State of Western Australia [2010] WASCA 199
SECONDARY MATERIALS
Revised Explanatory Memorandum, Civil Law and Justice Legislation Amendment Bill 2018
Explanatory Memorandum, Marriage Amendment (Celebrant Administration and Fees) Bill 2014
House of Representatives Hansard, 20 March 2014, Mr Frydenberg, Parliamentary Secretary to the Prime Minister
REASONS FOR DECISION
Chris Puplick AM, Senior Member
12 June 2019
Mr Julian Morrow (the Applicant) seeks a review of a decision by the Registrar of Marriage Celebrants (the Registrar) related to his de-registration as a marriage celebrant.
There are two important initial matters to note:
1.The facts in this application are not in dispute between the parties,[1] and
2.The legislation, then operational, has been significantly amended since the date of the determination in question. Relevantly, section 39FB of the Marriage Act 1961 (the Act) was amended by passage of the Civil Law and Justice Amendment Act 2018. The new provisions, while curing the central issue at stake in this application were not, at the relevant time enacted and so the Tribunal’s considerations must take place with reference to the Act as it was before the 2018 amendments.
[1] Applicant’s Statement of Facts, Issues and Contentions at [2].
THE FACTS
Mr Julian Morrow has been a registered marriage celebrant since 2008 and, in accordance with requirements of the Act, paid his annual registration charge as required until 2018. In 2018, as a result of admitted “administrative errors” on his part he failed to pay his annual registration charge by the specified date.
Where a registered celebrant fails to pay the registration charge the Registrar must cancel their registration. There is no discretion available to the Registrar not to cancel the registration, although the Registrar has a wide discretion about the exact timing of the effective date upon which the de-registration takes place.
In this case, the Registrar notified the Applicant on 10 September 2018 by letter advising that:
“Our records indicate that you did not pay the celebrant registration charge (the charge) by the charge payment date of 31 August 2018.
….
I am writing to advised that, because of your non-payment of the charge, you will be deregistered as a marriage celebrant under section 39FB of the Marriage Act 1961 (the Act).
You will be deregistered as a marriage celebrant after 2 October 2018.
As a result of your deregistration you will not be legally authorised to solemnise any marriages. I will deregister you as a marriage celebrant by removing your details from the register of marriage celebrants, as soon as practicable after 2 October 2018. You must not solemnise any marriages on and from 3 October 2018.”[2]
[2] Section 37 Tribunal Documents at [94-95].
On 3 October the Registrar wrote again to the Applicant stating:
“This letter confirms that on 3 October 2018 you were removed from the register of marriage celebrants in accordance with section 39FB of the Marriage Act 2961.”[3]
[3] Ibid at [131].
In the interim, on 1 October 2018 the Applicant applied to the Tribunal for a Stay of the deregistration decision. The Stay application was not contested by the Registrar and was granted by Deputy President Constance on 11 October 2018 with effect until the final determination of an appeal against the deregistration decision by the Tribunal.[4]
[4] Ibid at [143].
The hearing of the substantive appeal against the decision, which was also made on 1 October 2018, came before this Tribunal on 31 May 2019.
THE LEGISLATION
At the time of the decision by the Registrar (that is, prior to the 2018 amendments) section 39FA of the Act provided that a notice must be sent to each marriage celebrant who is registered as of 1 July each year setting out the amount of the celebrant registration charge and the charge payment date (being a day that is at least 30 days after the day on which the notice is sent). The notice is required to set out the information required by regulation 44 of the Marriage Regulations 2017:
44 Notice of liability for celebrant registration charge
(1) For the purposes of paragraph 39FA(2)(b) of the Act, a notice sent to a person in respect of a financial year under subsection 39FA(2) of the Act must comply with the requirements of subsections (2), (3) and (4) of this section.
(2) The notice must state that:
(a) the person is liable to pay celebrant registration charge in respect of the financial year unless the person is granted an exemption from the liability before the end of the charge payment day; and
(b) the amount of the charge is a debt due by the person to the Commonwealth which may be recovered by action in a court of competent jurisdiction; and
(c) the person may apply for an exemption from the liability by making an application under section 48 and paying the charge exemption application fee; and
(d) an application for an exemption must be made no later than 21 days after the day on which the notice is sent; and
(e) if the person is liable to pay celebrant registration charge and does not do so before the end of the charge payment day, the person will be deregistered under section 39FB of the Act.
(3) Despite subsection (2), if, at the time the notice is sent to the person, the person is exempt from liability to pay celebrant registration charge in respect of the financial year under section 45 or 46, the notice:
(a) does not need to state the matters referred to in that subsection; and
(b) may instead state that the person is so exempt.
(4) The notice must be sent to the person by sending it to:
(a) if the person has provided an email address to the Registrar of Marriage Celebrants—the email address; or
(b) in any other case:
(i) the principal residential address provided by the person to the Registrar; or
(ii) if the postal address provided by the person to the Registrar is different from the principal residential address—the postal address.
The Act then provided (section 39FB) that certain consequences followed where a celebrant, without an exemption, failed to pay the registration charge:
(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 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.
(2) 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.
(3) 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
In Thiel[5] the Tribunal explained the operations of these sections of the Act as follows:
18. As can be seen, the Registrar ‘must’ send a notice to a person who has failed to pay the celebrant registration charge by the charge payment day ‘unless’ the person’s liability to pay the charge may be affected by an internal review process relating to an application for exemption or any other circumstance. This discretion is essentially preconditioned by the existence of circumstances that may affect the person’s liability to pay the charge. If no such circumstances exist, the discretion to not send a notice of deregistration is not enlivened.
19. In the event that this discretion is not enlivened or it is not exercised, the provision directs the Registrar to send a notice to the person advising that he or she will be deregistered ‘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)’. This is a mandatory consequence of non-payment by a person who is not exempt from liability to pay and who has been sent a proper notice. On this point, there is no discretion or latitude.
20. Even though the language of the provision in respect of the period of notice prior to deregistration is somewhat imprecise and ambiguous, deregistration occurs after the day specified in the notice. That day is to be at least seven days after the day on which the notice was sent.
[5] Thiel and Registrar of Marriage Celebrants [2015] AATA 524.
This lack of any discretion on the part of the Registrar was discussed by this Tribunal in Shalala where reference was made to “the absolute nature of this provision” and its “inflexible application”.[6]
[6] Shalala and Registrar of Marriage Celebrants [2019] AATA 63.
THE APPLICANT’S POSITION
The Applicant’s (accurate) characterisation of these provisions of the Act as “imprecise and ambiguous” lie at the heart of the Applicant’s appeal.
In advising him that his deregistration would take place “as soon as practicable after 2 October 2018”, the Applicant asserts that the Registrar failed to comply with section 39FB(2)(a) of the Act; failed to accord him procedural fairness by not allowing him to put to her arguments as to what the deregistration date should be and “inflexibly applied a policy in relation to the date on which deregistration is to occur … which is not required or justified” by the provisions of the Act.[7]
[7] Applicant’s Statement of Facts, Issues and Contentions at [3.3].
Unfortunately for the Applicant it has to be concluded that the imprecise and ambiguous character of the legislation is exactly what was intended by the Parliament.
A close reading of the Second Reading Speech on the Marriage Amendment (Celebrant Administration and Fees) Act 2014, which introduced section 39FB into the Act discloses that this section was intended essentially to “introduce cost recovery for the regulation of the Marriage Celebrants Program and (make) minor amendments to the administration of the program.”[8]
[8] House of Representatives Hansard, 20 March 2014, page 2582, Mr Frydenberg, Parliamentary Secretary to the Prime Minister.
The Explanatory Memorandum to the Bill goes further in explaining the rationale for the inclusion of the qualification that certain actions are to be taken “as soon as practicable”. It states:
Under proposed subsection 39FB(2), the notice referred to in proposed subsection 39FB(1) must comply with certain requirements. It must advise the person that because of their failure to pay the celebrant registration charge, the person will be deregistered after a specified day that is at least seven (7) days after the day on which the notice is sent. It must also comply with any other requirements prescribed by the regulations relating to the content of the notice, or how it is to be sent. Like the notice in proposed section 39FA, this might include practical matters such as the address to which it must be sent and outlining a person’s right to review of the deregistration decision.
Under proposed subsection 39FB(3), the Registrar of Marriage Celebrants must deregister the person by removing his or her details from the register of marriage celebrants as soon as practicable after the day specified in the notice in paragraph (2)(a). All changes made to the register of marriage celebrants are updated automatically each business day.
A marriage celebrant who solemnises a marriage following the date of effect of deregistration may be guilty of an offence under section 101 of the Marriage Act which makes it an offence to solemnise a marriage without being authorised under the Act. The notice will give the celebrant at least seven days to transfer any Notices of Intended Marriage in their possession to a registered celebrant.[9]
[9] Explanatory Memorandum, Marriage Amendment (Celebrant Administration and Fees) Bill 2014 at [12].
In other words, apart from being a revenue-raising provision, a degree of flexibility is provided to the Registrar so that, where a celebrant is about to be deregistered, arrangements can be made to ensure that any planned solemnisations which that celebrant had already booked could be transferred to another celebrant and the otherwise disadvantaged third parties could be (somewhat) protected.
The aim of the flexibility/imprecision was thus intended to have a potentially beneficial purpose as far as intended marriage partners were concerned but this was achieved at the expense of leaving the celebrants unclear and uncertain about their status in terms of the precise date of their deregistration.
When the 2018 amendments (see below) were made, the Explanatory Memorandum on that occasion stated/admitted in relation to section 39FB(2)(a) that its impact was to the effect that “[a]s such, celebrants are not certain of the precise date their deregistration will take effect.”[10]
[10] Explanatory Memorandum, Civil Law and Justice Legislation Amendment Bill 2018.
The Applicant argues that the term “as soon as practicable” should not be confined to refer only to “practical” matters such as those outlined in the Explanatory Memorandum (i.e. the addresses, review rights or transfer of booked solemnisations) but, drawing upon Wright v Western Australia, should be extended to encompass the concept of
“As to timing, the duty must be performed “as soon as practicable after arrest”. The word “practicable” is not defined and has its natural and ordinary meaning of “capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible”: Macquarie Dictionary 1494.”[11]
[11] Wright v The State of Western Australia [2010] WASCA 199 at [26], [148].
He seeks to import into the Act some element of “reasonableness” in terms of how and when a deregistration decision should take effect.
At the same time, the Applicant argues that matters extraneous to the decision as to whether or not the registration charge has been paid, should be imported into the Registrar’s consideration as to the precise date for the deregistration to take effect. He further suggests that issues such as the status, experience and past compliant history should be taken into effect and indeed, so should contrary indications such as complaints against, charges or reprimands or general poor character findings. His suggestion is that it is open to the Registrar to treat some individuals more favourably than others by granting them a longer period before their deregistration takes effect thereby perhaps advantaging them in terms of outstanding solemnisations to be completed or giving them more of an opportunity to complete steps necessary to apply for re-registration.
There is, of course, no warrant for suggesting this course of action or level of discretion. The Respondent was right, in submissions to the Tribunal, to characterise the regulatory system as a “closed system” based upon principles of “strict liability”.
DISCUSSION
The Applicant is right to point out to the Tribunal that the current operational practices of the Respondent leave celebrants whose registration is to be cancelled in state of uncertainty as to precisely when any such cancellation will take place. As the Tribunal has already noted, this concession was made by the government when introducing the amending legislation, the express purpose of which was to cure this defect.
To the extent that this level of uncertainty impacts upon the livelihood of celebrants (especially those for whom such activity is a principal source of income), it is not in accord with best practice as far as government operations should be undertaken.
Even with the 2018 amendments in place, there is still discretion given to the Registrar to commence the automatic deregistration process “as soon as practicable” after a specified day.
The Respondent advised the Tribunal that it was the general practice of the Registrar to allow a period of 21 days after the Notice under Section 39FB(1) has been given for the deregistration to take effect. The Registrar apparently regards this as a period of sufficient time for the celebrant to arrange for any transfer of book ceremonies to other celebrants.
The Applicant provided to the Tribunal data showing that where the Registrar had adopted a policy of sending celebrants an SMS notice advising of the impending date of their need to complete payment of the charge payment, instances of failure on the part of celebrants dropped significantly.[12] Such a form of notification is not required or mandated under the Act and the Tribunal understands that this practice was not used in the last registration year, although no decision has been made about its future use. The data presented by the Applicant was not challenged by the Respondent when given the opportunity to do so.
[12] Applicant’s Statement of Facts, Issues and Contentions at [62].
It is of course not part of the Tribunal’s remit to seek to interfere with the administrative practices of this (or any) Respondent. As long as they are in conformity with the statute that is entirely a matter for them.
However, good decision-making should import some sense of finality where it goes to matters such as the status or economic well-being of a citizen.
In Chaney, Deane J suggested that a decision may, among many meanings, sometimes be limited to “a determination effectively resolving an actual substantive issue”[13] and in Bond Mason CJ referred to a decision as “having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute”.[14]
[13] Director-General of Social Services v Chaney (1980) FLR 87 at [100].
[14] Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33 at [30].
The Registrar is not of course, making a decision about deregistration – that decision is automatic – but is making a decision about the precise date which is deemed to be “as soon as practicable” for the Notice to be issued.
It would perhaps be helpful to all concerned were this date to always be the same (for example 21 days) but there is no legislative requirement that it be so and there may well be instances where both shorter and longer periods are justified or required in the particular circumstances of each case.
Any celebrant deregistered for failing to pay the charge is entitled to seek re-registration under section 39D of the Act. Such re-registration is not of right, nor is it guaranteed and it requires the completion of certain study requirements.
The Applicant has suggested that the Tribunal should make a determination which would have the effect of minimising the time between the date of his effective deregistration and the date of his potential re-registration.[15] However, to do so, given that the latter date must be indeterminate, is to invite the Tribunal to do the very thing which he finds objectionable – failure to provide certainty of outcome.
[15] Applicant’s Statement of Facts, Issues and Contentions at [70].
The Tribunal accepts the Respondent’s submission that the appropriate course of action for it to take is to specify an exact date upon which the Applicant’s deregistration will take effect.
In doing so the Tribunal notes the provisions of the 2018 amendments which are now in force and respectfully suggests to the Registrar that some form of policy or practice be adopted, which may or may not involve revival of SMS notifications and the translation of a generalised 21 day rule into a formal practice, so that applications such as this can be avoided in the future. That matter is entirely one for the Registrar to determine.
DECISION
The decision under review is varied such that the Registrar is to issue the Applicant with a Notice under section 39FB of the Act on the eighth business day after publication of this decision, with such notice to have effect on and from the 21st day thereafter.
40. I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 12 June 2019
Date(s) of hearing: 31 May 2019 Applicant: In person Solicitors for the Respondent: Mr J Davidson and Ms Nithya Ramesh, Australian Government Solicitor APPENDIX
CIVIL LAW AND JUSTICE AMENDMENT ACT 2018: SCHEDULE 9
18 Subsection 39FB(1)
Repeal the subsection, substitute:
(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 written notice in accordance with subsection (2), unless the Registrar considers that the notice should not be sent at that time because:
(a) the person’s liability to pay the charge may be affected by:
(i) the outcome of an application for internal review of a decision to refuse to grant an exemption; or
(ii) any other circumstance of which the Registrar is aware; or
(b) the person’s details have been removed from the register under paragraph 39I(2)(d) or 39K(a) before the notice is sent.
Note: Depending on the outcome of matters referred to in paragraph (1)(a), it may turn out that the person is not liable to pay the charge.
19 Application of amendment
The amendment of subsection 39FB(1) of the Marriage Act 1961 made by this Schedule applies in relation to charge payment days that occur on or after the day this item commences.
20 Paragraph 39FB(2)(a)
Omit “celebrant after”, substitute “celebrant on”.
21 Subsection 39FB(3)
Repeal the subsection, substitute:
(3) The person is taken to have been deregistered by the Registrar of Marriage Celebrants at the start of the day specified in the notice.
Note: A person who wishes to become a marriage celebrant again may reapply under section 39D.
(4) The Registrar of Marriage Celebrants must remove the person’s details from the register of marriage celebrants.
CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2018: REVISED EXPLANATORY MEMORANDUM
Item 20—Paragraph 39FB(2)(a)
489. The purpose of this amendment is to provide certainty around the date that a celebrant is deregistered for non-payment of the annual celebrant registration charge. Paragraph 39FB(2)(a) currently provides that 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). Subsection 39(3) then requires that 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). As such, celebrants are not certain of the precise date their deregistration will take effect.
490. Item 20 would replace the reference to ‘after’ in the phrase ‘after the day specified’ with the word ‘on’. The effect of this amendment is that the notice would state that the celebrant’s deregistration will take effect on the day specified, being at least 7 days after the day that a notice of deregistration is sent.
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