Thiel and Registrar of Marriage Celebrants
[2015] AATA 524
•17 July 2015
Thiel and Registrar of Marriage Celebrants [2015] AATA 524 (17 July 2015)
Division GENERAL DIVISION File Number(s)
2014/5833
Re
Benjamin Thiel
APPLICANT
And
Registrar of Marriage Celebrants
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 17 July 2015 Place Perth The decision under review is set aside and the matter is remitted to the Registrar to reassess Mr Thiel’s registration as a marriage celebrant.
...(Sgd) S. Webb.....................................................................
Mr S. Webb, Member
MARRIAGE – solemnisation – registration – meaning of ‘authorised celebrant’ – meaning of ‘minister of religion of a recognised denomination’ – registration as a marriage celebrant – celebrant registration charge – scope of discretion to give notice of deregistration on non-payment of charge – consequence of not paying charge within notified period – charge not paid within period – deregistration steps - no discretion – notice of deregistration invalid - decision set aside and remitted
PRACTICE AND PROCEDURE – jurisdiction – review of a decision to deregister a marriage celebrant – ‘decision’ includes determinative considerations in respect of issuing a notice of deregistration
LEGISLATION
Marriage Act 1961 ss 5, 26, 27, 29, 33, 39B, 39, 39C, 39D, 39FA, 39FB, 39I, 39J, 101
Marriage (Celebrant Registration Charge) Act 2014
Marriage Regulations 1963 regs 37J, 37JA, 37JB, 37JKB, 37JC, 37JD. 37JKB
Marriage (Celebrant Fees) Determination 2014
Marriage (Celebrant Registration Charge) Determination 2014
Marriage (Recognised Denominations) Proclamation 2007, Schedule 1
SECONDARY MATERIALS
Marriage Amendment (Celebrant Administration and Fees) Bill 2014 (Cth) Explantory Memorandum
REASONS FOR DECISION
Mr S. Webb, Member
17 July 2015
In Australia, marriages are permitted to be solemnised by people who are registered to perform that function. Benjamin Thiel was one of those people – he was registered as a marriage celebrant. Registration of that kind is subject to a payment of an annual charge. Failure to pay the charge results in deregistration. Mr Thiel’s registration elapsed. He was sent a notice, but he was otherwise engaged in a sudden and very tragic family crisis that commanded his full attention. Nonetheless, as he failed to pay the registration renewal charge within the allotted time, he was deregistered.
Mr Thiel is understandably upset by this eventuality. He has applied for review and in so doing he seeks some latitude or discretion to upset the deregistration decision on compassionate grounds.
I am sympathetic to Mr Thiels’ case. But, as will appear, there is no latitude or discretion that can be exercised. That is so even though the particular circumstances of Mr Thiel’s case might be expected to attract a compassionate and flexible response. Nonetheless, the notice of deregistration does not strictly comply with the requirements of the legislation and it is invalid. For this reason, the decision under review must be set aside and remitted to the Registrar to reassess Mr Thiel’s marriage celebrant registration.
Agreed facts
The facts are set out in the document Statement of Agreed Facts filed by the parties – Exhibit 1. The key facts are as follows –
(a)Mr Thiel was registered as a marriage celebrant on 27 November 2009.
(b)On or about 24 July 2014 he was sent a notice in respect of the celebrant registration charge. The charge payment due date was said to be 22 September 2014.[1]
[1] T8.
(c)Mr Thiel did not apply for exemption from liability to pay the charge.
(d)On 29 August 2014, Mr Thiel was sent an emailed reminder that the registration charge was due by 22 September 2014. He accepts that he received this email.
(e)On the same day, Mr Thiel’s parents were involved in a fatal motor vehicle accident in South Australia, far from his home in Macedon in Victoria.
(f)On 2 September 2014, Mr Thiel travelled to South Australia.
(g)On 4 September 2014 he attended the site of the accident and viewed the wreck in the Police holding yard.
(h)From 5 to 18 September 2014 he made arrangements for his parents’ funeral.
(i)On 19 September 2014, a Public Memorial Service was held. This was followed by a Burial Service on 21 September 2014.
(j)On 22 September 2014, the day on which payment of the celebrant registration charge was due, Mr Thiel and his sister consulted family members and made decisions as Executors of their parents’ Estate.
(k)Mr Thiel did not pay the celebrant registration charge by the due date.
(l)In consequence of this, on 16 October 2014, the Registrar sent Mr Thiel a notice of deregistration. The date of effect was said to be 23 October 2014.[2]
(m)On 5 November 2014, Mr Thiel received the notice of deregistration.
(n)On 6 November 2014, he lodged an application for review by this Tribunal.
(o)On the same day, he notified the registrar of changes to his address and contact details.
[2] T13 folios 38 and 39.
Legislative scheme
The solemnisation of marriages is governed by Part IV of the Marriage Act 1961 (the Marriage Act). Provision is made for marriages to be solemnised by an ‘authorised celebrant’. This term is given meaning by s 5(1) –
authorised celebrant means:
(a) a minister of religion registered under Subdivision A of Division 1 of Part IV; or
(b) a person authorised to solemnise marriages by virtue of Subdivision B of Division 1 of Part IV; or
(c) a marriage celebrant.
The requirements attaching to registration of a minister of religion under Subdivision A of Division 1 of Part IV are set out in s 29 of the Marriage Act – the person must be a minister of religion in a recognised denomination and nominated by that denomination. Denominations recognised for the purposes of the Marriage Act are set out in Schedule 1 to the Marriage (Recognised Denominations) Proclamation 2007 (the Proclamation).
On the evidence of Nathan Tyler, Vice President of the Australasian Union Conference and Secretary of the Ministerial Committee of the Seventh Day Adventist Reform Movement Church,[3] Mr Thiel was ordained as a Minister of this Church in 2006. Joe Voncina, Church Secretary and Treasurer, has asked for Mr Thiel’s registration as a marriage celebrant to be reinstated.[4]
[3] Statement of Nathan Tyler, 13 February 2015.
[4] Statement of Joe Voncina, 17 February 2015.
The Seventh-day Adventist Church is recognised in the Proclamation, but the Seventh Day Adventist Reform Movement Church is not. The materials before me do not establish that Mr Thiel was registered as a minister of religion under Subdivision A of Division 1 of Part IV of the Marriage Act.
The registration of a person under Subdivision B of Division 1 of Part IV of the Marriage Act applies in respect of officers of a State or a Territory who are authorised by the Minister for the purposes of s 39. Mr Thiel is not an officer of a State or a Territory.
The registration of a person as a marriage celebrant is subject to the provisions of Subdivision C of Division 1 of Part IV of the Marriage Act. The requirements for entitlement to be registered as a marriage celebrant are set out in s 39C. Under s 39D, an application in writing and payment of a fee is required unless the person has been granted an exemption from paying the fee. The requirement to pay a fee is determined under the Marriage Regulations 1963 (the Regulations). The amount of the fee is set out in the Minister’s Marriage (Celebrant Fees) Determination 2014.
It was under these provisions (as they stood at the time) that Mr Thiel was registered as a marriage celebrant on 27 November 2009.
A new charging regime came into effect on commencement of the Marriage (Celebrant Registration Charge) Act 2014. Liability to pay the ‘celebrant registration charge’ is established under s 39FA of the Marriage Act, a marriage celebrant is required to pay this charge in respect of each financial year by the ‘charge payment day’, unless an exemption has been granted. The amount of the charge is set out in the Minister’s Marriage (Celebrant Registration Charge) Determination 2014.
The discretion to grant exemption from liability to pay the celebrant registration charge is subject to the application requirements set out in regulation 37JB and satisfaction of one or more of the circumstances set out in regulation 37JC.
Mr Thiel did not apply for an exemption from liability to pay the celebrant registration charge under these provisions. He was liable, therefore, to pay the charge when it fell due.
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 37J –
(2) A notice to a marriage celebrant under subsection 39FA(2) of the Act must state the following:
(a) that the marriage celebrant is liable to pay celebrant registration charge in respect of a financial year unless, before the end of the charge payment day, the marriage celebrant is granted an exemption from the liability to pay the charge in respect of the financial year;
(b) that the amount of celebrant registration charge that the marriage celebrant is liable to pay:
(i) is a debt due by the person to the Commonwealth; and
(ii) may be recovered by action in a court of competent jurisdiction;
(c) that the marriage celebrant may seek an exemption from the liability to pay celebrant registration charge in respect of a financial year by:
(i) applying for an exemption under subregulation 37JB; and
(ii) paying the charge exemption application fee;
(d) that the marriage celebrant must apply for the exemption no later than 14 days after the day on which the notice is sent;
(e) that a marriage celebrant who is liable to pay a celebrant registration charge and does not do so before the end of the charge payment day will be deregistered as a marriage celebrant under section 39FB of the Act.
Mr Thiel was sent a notice of this kind on 24 July 2014.[5]
[5] T8.
The consequences of non-payment of the celebrant registration charge by a person without an exemption are set out in s 39FB –
(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).
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.
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.
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.
A proper notice under s 39FB(1) must set out the information required by regulation 37JA –
(2) A notice to a person under subsection 39FB(1) of the Act must state that:
(a) the amount of celebrant registration charge that is payable:
(i) is a debt due by the person to the Commonwealth; and
(ii) may be recovered by action in a court of competent jurisdiction; and
(b) a person who is deregistered as a marriage celebrant may apply to the Administrative Appeals Tribunal for review of the Registrar of Marriage Celebrant’s decision to deregister the person.
Note: If the person wishes to become a marriage celebrant again, the person may reapply under section 39D.
As can be seen, if a person is deregistered as a marriage celebrant under s 39FB, there is no bar to the person making a fresh application under s 39D to be registered as a marriage celebrant again. In those circumstances, the person must satisfy the requirements for entitlement to be registered and pay the required fee.
Discretion
Mr Thiel says that the exception ‘unless’ to the direction ‘must’ in s 39FB indicates that there is a discretion that may be exercised to avoid deregistration that, otherwise, would be a mandatory consequence of non-payment of the celebrant registration charge within the notified time. This is plainly correct.
In Mr Thiel’s submission, the existence of this exemption suggests that the Marriage Act may be construed in a manner that allows for other kinds of exemption from the direction. He argues that the Marriage Act and the amending legislation that established the celebrant registration charge regime must be construed according to the intent of the Parliament, such that any defect of drafting is corrected. The imposition of mandatory deregistration of a marriage celebrant for non-payment of the charge is defective, so the argument goes, because the punitive sanction was intended to apply to marriage “celebrants who fail to complete their ongoing professional development”.[6] Deregistration as a mandatory consequence of non-payment of a charge was not what the Parliament intended and, without flexibility to take account of particular circumstances, it is unreasonable and unfair. On this reasoning, Mr Thiel contends that the otherwise mandatory elements of s 39FB should be construed to allow discretion to take account of extenuating circumstances or, as I understand his submission, the discretionary element should be construed broadly to include circumstances that are not confined to those affecting liability alone.
[6] Applicant’s Submissions, 8 July 2015, page 6.
I do not agree.
The words and provisions of Part IV of the Marriage Act are quite clear. So is the sanction for non-payment of the celebrant registration charge by a person who is liable to pay the charge before the end of a specified day. There is some ambiguity in the drafting of the notice requirement, to which I will return below. But this does not go to the point Mr Thiel has raised.
Mr Thiel refers to the Explanatory Memoranda in order to expose the intention of the Parliament in enacting the celebrant registration charge legislation. It can readily be accepted that by enacting the celebrant registration charge amendments the Parliament intended to impose a charging mechanism for celebrant registration that included punitive measures consequent upon non-payment of the charge. That much can readily be understood from the text of the legislation, as that is the purpose served by s 39FB.
The accepted rules of construction, and the cases to which Mr Thiel has referred in his submissions, do not allow words to be imported into the text to fill perceived gaps, or for the plain meaning of the language used to be strained tortuously to include a meaning that would not otherwise be open.
The real issue that Mr Thiel seeks to address is the lack of flexibility under the present legislation for the registrar, or the Tribunal, to take into account extenuating circumstances that lead to a person failing to pay the celebrant registration charge within the allotted time.
There is flexibility in the legislation as presently drafted for the Registrar to consider circumstances that bear on a person’s ‘liability’ to pay the celebrant registration charge when deciding whether or not to issue a notice under s 39FB(1).
Once the Registrar issues a notice, however, there is no further discretion or flexibility to take account of particular circumstances, on review.
At this point it is necessary to say something about the Tribunal’s jurisdiction. Under Part IV of the Marriage Act, the Tribunal’s jurisdiction is confined to the kinds of decision set out in s 39J –
Review of decisions
(1) An application may be made to the Administrative Appeals Tribunal for a review of a decision of the Registrar of Marriage Celebrants:
(a) not to register a person as a marriage celebrant; or
(b) to suspend a person’s registration as a marriage celebrant; or
(c) to deregister a marriage celebrant (including under subsection 39FB(3)).
(2) …
It is quite clear that the Tribunal has jurisdiction to review a decision to deregister a marriage celebrant. The words ‘including under subsection 39FB(3)’ suggest that the jurisdiction is not limited to that subsection, but it extends to include a deregistration decision under s 39I.
The inclusive reference to s 39FB(3) requires careful consideration. Whether s 39FB(3) involves the making of a decision at all has not be raised by the parties. The section has the character of an operative provision that simply directs the Registrar to act in a particular way: no determination is required and no discretion is conferred –
(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).
The only determinative provision under s 39FB is that relating to the decision to not issue a notice under s 39FB(1) – once the notice is issued under s 39FB(2), the mandatory sanction of deregistration ‘must’ follow under s 39FB(3) unless the notice is found to be invalid. For this reason, if review is limited to s 39FB(3) the utility of the review mechanism would be very constrained. It could only apply to technical issues in respect of the validity of notices, for example.
The inclusive nature of s 39J(1)(c) suggests that the intention was to confer jurisdiction on the Tribunal to review a decision of the Registrar to deregister a marriage celebrant for non-payment of the celebrant registration charge. As I have said, the determinative element of that decision-making process lies in the discretion not to issue a notice under s 39FB(1). I think that the Tribunal’s jurisdiction conferred by s 39J is sufficiently broad to allow review of the Registrar’s decision on this point.
I will proceed on that basis.
Notice
As I have said, on 16 October 2014, the Registrar decided to send Mr Thiel a notice under s 39FB. It is not established that the Registrar had any knowledge of Mr Thiel’s circumstances at the time.
I must make the correct or preferable decision on the materials before me. It is quite clear that Mr Thiel was occupied by sudden, unavoidable and tragic family circumstances from 29 August 2014 until at least 22 September 2014, on which day he consulted family members and made decision as Executor of his parents’ estate.
Under the notice he was sent on 24 July 2014, he was due to pay the celebrant registration charge for which he was liable by 22 September 2014.
The circumstances Mr Thiel faced at the time did not affect his ‘liability’, strictly construed, to pay the celebrant registration charge.
On that basis, he cannot succeed.
If, however, the word ‘liability’ under s 39FA is read broadly for the purposes of s 39FB, circumstances that affect a person’s ability to meet the liability imposed under s 39FA(1) to pay the celebrant registration charge by the charge payment date may be relevantly taken into account when determining whether ‘the person’s liability may be affected by’ ‘any other circumstances of which the Registrar is aware’ for the purposes of s 39FB(1)(c).
Under a construction of that kind, Mr Thiel may be able to recover.
In the face of ambiguity of this kind, it is appropriate to refer to the Explanatory Memorandum to the Marriage Amendment (Celebrant Administration and Fees) Bill 2014, which provides in respect of s 39FB(1)(c) that –
Such other circumstance must affect the person’s liability to pay, rather than the timing of payment.
On that basis, it would appear that the intention is to adopt a strict interpretation of ‘liability’ that does not include latitude in respect to timing.
That being so, Mr Thiel cannot succeed.
At this point it is necessary to say something about the notice requirements under the Marriage Act and the Regulations. As I have said, under s 39FB(2)(a) a deregistration notice ‘must’ advise the person that he or she ‘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)’. The word ‘must’ indicates the mandatory nature of the direction.
The Registrar sent Mr Thiel a deregistration notice on 16 October 2014. Applying the mandatory notice provision, deregistration could not occur until at least seven days after the day on which the notice was sent. If it is assumed that the notice was sent on 16 October 2014, the earliest date for deregistration would be at least seven days from 17 October. The notice states –
“Your deregistration takes effect on 23 October 2014. Your details will be removed from the Register of Marriage Celebrants at this time”.
This is not consistent with the requirement for ‘at least seven days’ notice. The words ‘at least’ may be understood to mean no less than or at the minimum. Thus, the requirement is for no less than seven days, at the minimum, from 17 October 2014. Seven days from 17 October 2014 would end on 23 October 2014. This means that Mr Thiel’s deregistration could not come into effect until 24 October 2014.
In this regard the Registrar’s notice is not compliant with the requirements of s 39FB(2) of the Marriage Act.
As the notice is an essential component of the punitive deregistration process consequent upon non-payment of the celebrant registration charge under s 39FB of the Marriage Act, strict compliance with the notice requirements under s 39FB(2) is required. I note that it is an offence under s 101 of the Marriage Act for an unauthorised person, including a marriage celebrant who has been deregistered, to solemnise marriages and the maximum penalty for an offence of this kind is six months imprisonment.
In this context, failure to strictly comply with the deregistration notice requirements will render the putative notice invalid.
For this reason, I am satisfied that the Registrar’s notice of deregistration in T13 is invalid.
Being invalid, it is a nullity and the purported deregistration of Mr Thiel as a marriage celebrant under s 39FB(3) has not been properly given into effect.
The mechanism for deregistration under s 39FB(3) is by removing the person’s details from the register of marriage celebrants ‘as soon as practicable after the day specified’ in the notice given for the purposes of s 39FB(2). Even if the Registrar’s notice was found to meet the seven day requirement, which it does not, the removal of details could only take place ‘after the day specified’. The notice states that Mr Thiel’s details were to be removed on 23 October 2014. The notice is deficient in this regard. The earliest date Mr Thiel could have been deregistered after 16 october 2014 is 24 October 2014, and the earliest date his details could be removed from the register of marriage celebrants would be 25 October 2014.
This means that Mr Thiel has not been deregistered as a marriage celebrant.
For this reason, the decision under review is set aside and the matter remitted to the Registrar to reassess Mr Thiel’s registration as a marriage celebrant.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
.(Sgd) A Tran.....................................................................
Administrative Assistant
Dated 17 July 2015
Date of hearing Heard on the Papers on 17 July 2015
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