Shalala and Registrar of Marriage Celebrants
[2019] AATA 63
•29 January 2019
Shalala and Registrar of Marriage Celebrants [2019] AATA 63 (29 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5937
Re:Anthony Shalala
APPLICANT
AndRegistrar of Marriage Celebrants
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:29 January 2019
Place:Sydney
The application before the Tribunal is dismissed under s 42B of the Administrative Appeals Tribunal Act as having no reasonable prospect of success.
...........................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MARRIAGE − registration as marriage celebrant – celebrant registration charge – charge not paid within prescribed period – consequences of not paying charge within notified period – scope of discretion to give notice of deregistration on non-payment of charge – section 42B application on the basis that application is has no reasonable prospect of success – substantive application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Marriage Act 1961
Marriage Amendment (Definition and Religious Freedoms) Act 2017
Marriage Regulations 2017
CASES
Filsell and Comcare [2009] AATA 90
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Thiel and Registrar of Marriage Celebrants [2015] AATA 524
Thiel and Registrar of Marriage Celebrants [2015] AATA 872
SECONDARY MATERIALS
Guideline on the Marriage Act 1961 for Authorised Celebrants (Australian Government, July 2018 at 3.4
Marriage Celebrant Programme information sheet (updated April 2018)
REASONS FOR DECISION
2018/5937
29 January 2019
DEREGISTRATION AS A MARRIAGE CELEBRANT
The facts in this matter are quite clear:
(1)Pastor Anthony Shalala (the Applicant) was a marriage celebrant appointed under the Marriage Act 1961 (the Act). He first became a registered marriage celebrant on 28 August 1997.[1]
(2)Marriage celebrants are required to pay an annual registration charge, unless they apply for and are granted a specific exemption.
(3)If a marriage celebrant fails to pay the registration charge (and is not exempt) by the due date their registration must be cancelled by the Registrar of Marriage Celebrants (the Registrar).
(4)Mr Shalala failed to pay his registration charge by the due date, being 31 August 2018 and as a result his registration was cancelled.
[1] Section 37 - Tribunal documents at [67]-[69].
MARRIAGE CELEBRANTS: REGISTRATION AND OBLIGATIONS
The Act[2] establishes a regime whereby certain persons are authorised to perform marriage ceremonies and such people are registered by the Registrar of Marriage Celebrants. They are civil celebrants as distinct from ministers of religion of a recognised denomination.[3]
[2] Part IV, Division 1 Subdivision C.
[3] Part IV, Division 1 Subdivision A.
Marriage celebrants must pay an annual registration charge under s 39FA of the Act which is set out as an Appendix to these Reasons[4]. That section provides, inter alia, a scheme whereby the Registrar must notify each marriage celebrant of their obligation to pay the registration charge and the date by which payment must be made. Notification must be sent to an address, either at an email address provided by the Celebrant or another notified postal address.[5]
[4] This is further explained in Guideline on the Marriage Act 1961 for Authorised Celebrants (Australian Government, July 2018 at 3.4.
[5] Marriage Regulations 2017 section 44.
The celebrant is entitled to seek an exemption from payment provided that they do so with a statutory period of 21 days.[6]
[6] Ibid section 48. Exemption details are attached in the Appendix.
If a person fails to pay the registration charge by the specified date (“the charge payment day”) then, under s 39FB(1) (see below) the Registrar must notify the celebrant they have failed to make the payment and the Celebrant will be deregistered. Again the notification will be sent to any email address, postal address or residential address as provided by the celebrant.[7]
[7] Ibid section 51.
Section 39G lays a clear obligation on any Celebrant to notify the Registrar of their current contact details, including email and telephone contacts and postal address and to keep this information up to date.[8]
[8] Marriage Act 39G(1)(c)(i) and further explained in the Guideline on the Marriage Act 1961 for Authorised Celebrants (Australian Government, July 2018) at 13.2.4.
The Applicant complied with this requirement and notified a number of changes of contact details and addresses between 1997 and 2018.[9] He was clearly aware of his obligations in this regard. He also consented to the email receipt of invoices and notices.[10]
[9] Respondent’s Submission to Tribunal at [9]-[15].
[10] Section 37 - Tribunal documents at [75].
It is to be noted that the actions by the Registrar in advising Celebrants of their payment obligations are mandated, they do not depend upon the exercise of any discretion on the part of the Registrar (except where exemptions have been considered or granted.)
In Thiel and Registrar of Marriage Celebrants[11] the Tribunal emphasised the non-discretionary operation of these provisions.
(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.
[11] Thiel and Registrar of Marriage Celebrants [2015] AATA 524, Member Webb.
Marriage celebrants are also kept informed by the Registrar of their obligations, together with any changes in the legislation (such as that occurring with the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017).
The Registrar’s online Marriage Celebrant Programme information sheet (updated April 2018) entitled Maintaining your registration as a Commonwealth marriage celebrant indicates 5 key obligations, two of which are to keep contact details updated and to pay the registration charge. The Factsheet states clearly:
Annual registration charge
The annual celebrant registration charge is payable each financial year. This includes celebrants registered during a financial year. Commonwealth-registered marriage celebrants who have an email address recorded on their account will receive their invoice via email. If an email address is not recorded, a hard copy will be sent to the postal address recorded. Invoices will also be available on the self-service portal.
It is very important that you make sure your email address is up to date and that you pay your registration charge by the charge payment day. If payment is not made by the charge payment day, you will be deregistered. There is no discretion in the Marriage Act to consider late payments for any reason. (emphasis added)
The absolute nature of this provision, that is its inflexible application, was illustrated in the case of celebrant Thiel (supra) who was deregistered when he neglected to pay his registration charge following the death of both of his parents in a car accident just prior to the due date – even in circumstances such as that no discretion not to deregister was available to the Registrar, the Tribunal or any other authority.
TIMETABLE
The charge payment day in 2018, was 31 August 2018. The Registrar communicated details regarding the payment to the Applicant by email (as provided by him) on 14 June 2018, 2 July 2018, 8 August 2018 and 20 August 2018.
Specifically the correspondence of 8 August 2018 addressed to the Applicant advised him that he had apparently not paid the required registration charge and that he had until 31 August to do so. It included advice to the effect that failure to do so would result in deregistration and that late payment could not be accepted.[12]
[12] Section 37 Tribunal documents at [83]-[84].
Despite these notifications the Applicant did not pay the registration charge by 31 August 2018 and, as a result, on 10 September 2018 the Registrar sent to the Applicant’s postal address and his email address a notification to the effect that he would be deregistered as a marriage celebrant from 2 October 2018.
On 10 October 2018[13] the Applicant applied to the Tribunal for a review of the deregistration decision and on 29 October the Applicant contacted the Registrar advising them accordingly.[14]
[13] Section 37 Tribunal documents at [5].
[14] Section 37 Tribunal documents at [1].
BASIS OF THE APPEAL
In submitting that the Tribunal should review the deregistration decision, the Applicant wrote:
“I did not receive the invoice or any correspondence, as I have been on long service leave from 10 June 2018, and then resigned as of the 11 July 2018 from the church. My church email was disconnected and the church was in the care of my licence administratively and has been for 21 years, and they paid the invoices on my behalf yearly, not myself. Therefore I had no knowledge of the unpaid invoice or that my celebrant licence was threatened for de-registration. Otherwise I would have attended to it immediately. Also in reference to the intention to de-register letter of the 10 September 2018 stated in the de-registration letter of 3 October 2018 neither myself nor the church received that letter. Therefore neither were able to respond. I am asking for the decision to be reversed based on a unique set of circumstances beyond my control.”[15]
[15] Section 37 Tribunal documents at [9].
It appears however that there is more than a simple resignation involved. In testimony to the Tribunal the Applicant made it clear that he had been involved in a dispute with the church (the C3 Central City, previously City Church) and that, as a result, there was no longer any employment relationship between the two. Furthermore, he asserted that the church had behaved badly towards him and had deliberately, to use his words “cut him out’ of any communication or involvement with church activities. This, he said, included the passing on of information or correspondence.
CONSIDERATIONS
In Thiel the Tribunal at first instance remitted to the Registrar the deregistration under appeal on the basis that the Registrar had failed to adhere to certain mandated dates for sending of notifications under s 39FB(2) of the Act. (There is no question here that the dates as specified were adhered to by the Registrar but the Applicant claims that correspondence sent was never received.) On reconsideration at the Tribunal’s direction the Registrar affirmed the deregistration decision on the grounds of non-payment and when the matter again came before the Tribunal[16] it was dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 as having no prospect of success at a full merits hearing.
[16] Thiel and Registrar of Marriage Celebrants [2015] AATA 872 per Deputy President Kendall.
The Registrar asserts that correspondence was sent both by email and by post to those addresses which had been provided by the Applicant and which he had a statutory obligation to keep current and updated by notification of changes to the Registrar. The evidence before the Tribunal is equally clear on such matters.
It transpires that both the email and postal addresses to which correspondence was directed were those of the church. Those addresses were the latest which the Registrar had on record for the Applicant, and had been supplied by the Applicant.
The Applicant failed to notify the Registrar of his change of postal address, which, he told the Tribunal, took place in November 2017 or his email address which occurred in July 2018. Had he done so, all the relevant correspondence of 8 and 20 August (at least) would have been sent to him directly and not to his then employer, the church.
In this regard, the Registrar has fulfilled all the requirements imposed upon it by the Act.
The Tribunal is satisfied that correspondence was sent to the church’s address and it accepts that either a breakdown in communications or the existence of bad blood between the parties resulted in that correspondence not being forwarded to the Applicant in person. That however is a direct consequence of his own failure to comply with his statutory obligations to keep his contact details up to date.
The Applicant must have known that he was required to renew his registration on an annual basis and it appears that this has been done over some 20 years to date. The Applicant also must have been aware of the timing of such renewals as they occur at approximately the same time each year. It was his responsibility to ensure that his registration was current at all times.
The Tribunal notes the Applicant’s claim that the church usually paid the registration charge but, given that the Applicant had resigned from the church in July 2018, it may be thought that he should have taken positive steps to ensure that this continued, although why the church would continue to pay his registration charge after his resignation and when the parties were in dispute, is perhaps a moot point.
The Applicant told the Tribunal that, again in his words, that “the church was responsible” for paying his registration charge and that it had been “negligent” in failing to do so. This however is not what the Act says or requires. The Act requires the “person” who is the celebrant to pay the charge. It is a personal responsibility which must be discharged by the individual concerned. Even if they make some sort of arrangement for payment by a third party this does not absolve them of the responsibility to ensure their personal compliance with the Act.
It thus follows that the Tribunal is satisfied that the Applicant failed to pay the registration charge by the charge payment date and that the Registrar had no option but to proceed with the de-registration in question.
ASIDE
When the Applicant’s original authorisation as a celebrant was granted it was at a time when he was employed by the Glorious Gospel Church. The letter notifying him of his appointment makes it clear that if he left that organisation his registration could be revoked unless he applied for it to be transferred to another religious organisation.[17] There is no clear evidence that this was done although the Applicant stated in testimony to the Tribunal that this indeed was the case. The matter again comes to the fore with his resignation from the 3C Church, in that his registration was attached to that organisation and having left it and not transferred to any other registered or recognised religious organisation, it may well be that his registration itself is now subject to revocation. However, for the purpose of these proceedings this is not a matter which is of concern for the Tribunal.
[17] Section 37 Tribunal documents at [67]-[68].
CONCLUSION
Given that this application must fail because the statute says that it must, the question becomes what order or decision should the Tribunal make?
Section 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) states:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act.
This is the course of action urged upon the Tribunal by the Registrar. It is consonant with very similar factual circumstances in Thiel which was determined ultimately in this fashion.
It is clear that s 42B (1)(b) of the AAT Act allows the Tribunal to dismiss any application before it where that application has no prospect of success. However this must be done only sparingly and with great care.[18]
[18] General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 at [8] per Barwick CJ.
That is the case in this application and the Registrar has applied for the Tribunal to so act. Judicial authority and the objects of the AAT Act itself encourage the Tribunal to act so that futile or inappropriate matters are not before it causing a waste of time and resources to all parties[19] and that it operates in a way which is “fair, just economical, informal and quick.”[20]
[19] Filsell and Comcare [2009] AATA 90 at [33].
[20] AAT Act s.2A.
The Tribunal notes that neither deregistration (under s 39FB) nor dismissal in these circumstances (under the AAT Act) precludes Pastor Shalala from making another application for registration at any time under s 39D of the Act.
DECISION
The application before the Tribunal is dismissed under s 42B of the Administrative Appeals Tribunal Act as having no reasonable prospect of success.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of 2018/5937
...........................[sgd].............................................
Associate
Dated: 29 January 2019
Date(s) of hearing: 23 January 2019 Applicant: In person Solicitors for the Respondent: Ms A Tsongas, Registrar of Marriage Celebrants (by phone) APPENDIX: EXTRACTS FROM THE MARRIAGE ACT 1961
MARRIAGE ACT 1961 - SECT 39FA
Celebrant registration charge: liability to pay charge
(1) A person is liable to pay celebrant registration charge to the Commonwealth in respect of a financial year if:
(a) the person:
(i) is a marriage celebrant on 1 July in that financial year (except if paragraphs (1A)(b) and (c) apply in relation to the person on that day); or
(ii) becomes a marriage celebrant later in that financial year; or
(iii) is liable to pay the charge under subsection (1A); and
(b) the person has not, before the end of the charge payment day, been granted an exemption from liability to pay the charge.
The charge must be paid by the end of the charge payment day.
Marriage celebrants appealing decision to be deregistered
(1A) A person is liable to pay celebrant registration charge to the Commonwealth in respect of a financial year if:
(a) the person is a marriage celebrant on 1 July of that financial year; and
(b) before that day:
(i) the Registrar decided to deregister the person as a marriage celebrant; and
(ii) the person applied to the Administrative Appeals Tribunal for review of the decision; and
(c) that application, or any later application to a court that relates to that application, has not been finally determined by that day; and
(d) that or any later application is finally determined in that financial year; and
(e) after the application is finally determined, the person is not deregistered.
Notice of charge
(2) The Registrar of Marriage Celebrants must, in respect of a financial year, send each person who is liable to pay the celebrant registration charge in respect of the financial year a written notice that:
(a) specifies:
(i) the amount of celebrant registration charge that is payable by the person (unless the person is granted an exemption); and
(ii) the charge payment day (being a day that is at least 30 days after the day on which the notice is sent); and
(b) complies with any other requirements prescribed by the regulations relating to the content of the notice, or how it is to be sent.
Exemptions
(3) The regulations may do all or any of the following:
(a) provide for the granting of exemptions, on grounds specified in the regulations, from liability to pay celebrant registration charge in respect of a financial year;
(b) require a fee to be paid in respect of an application for an exemption;
(c) provide for internal review of decisions to refuse to grant exemptions.
(4) Regulations made for the purpose of paragraph (3)(b) may specify a fee, or provide for a fee to be determined by the Minister by legislative instrument.
(5) Regulations made for the purpose of paragraph (3)(c) must provide that the outcome of an internal review of a decision (the original decision ) is either:
(a) that the original decision is confirmed; or
(b) that a different decision is substituted for the original decision, with effect from the time when the original decision was made.
Charge debt due to the Commonwealth
(6) An amount of celebrant registration charge that a person is liable to pay:
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent jurisdiction.
MARRIAGE ACT 1961 - SECT 39FB
Celebrant registration charge: consequence of non-payment
(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.
(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 on 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 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.
Exemption Provisions
Marriage Celebrant Programme information sheet (updated April 2018):
Maintaining your registration as a Commonwealth marriage celebrant
“An exemption may be sought from payment of the registration charge. Applications for exemption must be made no later than 21 days after the charge notice is sent. Exemptions from payment are only granted in specified circumstances as provided in legislation. These are: remoteness; where you will not live in Australia during the financial year to which your application relates; or you are unable to perform as a marriage celebrant for at least six months of the financial year because of serious illness or caring responsibilities.
In addition to the above, two exemptions exist which are granted automatically and for which you do not need to apply. You will be exempt from paying the celebrant registration charge for your first year of registration if you were granted an exemption from the registration application fee. You will also be exempt from paying the celebrant registration charge if you resign as a marriage celebrant before the due date of the charge. You do not need to apply in order to receive these exemptions, and you will be informed in writing if you have received either of these exemptions.”
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