Williams and Registrar of Marriage Celebrants
[2009] AATA 525
•15 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 525
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2539
GENERAL ADMINISTRATIVE DIVISION ) Re JUDITH WILLIAMS Applicant
And
REGISTRAR OF MARRIAGE CELEBRANTS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date15 July 2009
PlacePerth
Decision The Tribunal affirms the decision under review. ..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
PROFESSIONAL QUALIFICATIONS – marriage celebrant – applicant applied for registration as marriage celebrant in 2008 – applicant convicted of fraudulently misappropriating Commonwealth property in 2001 – applicant did not fully disclose convictions in application for registration – applicant made false and misleading statutory declarations – applicant not a fit and proper person to be marriage celebrant – applicant not entitled to be registered as marriage celebrant – applicant must not be registered as marriage celebrant – decision under review affirmed
Marriage Act 1961 (Cth), s 5(1), s 39C, s 39D, s 39F, s 39G and s 41
Marriage Regulations 1963 (Cth), reg 37G
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Stasos v Tax Agents’ Board (1990) 21 ALD 437
REASONS FOR DECISION
15 July 2009
Deputy President S D Hotop
Introduction
1. On 25 February 2008 Judith Williams (“the applicant”) applied to be registered as a marriage celebrant under the Marriage Act 1961 (Cth) (“the Act”).
2. On 27 May 2008 the Registrar of Marriage Celebrants (“the Registrar”) decided, under s 39D of the Act, not to register the applicant as a marriage celebrant on the ground that the Registrar was not satisfied that the applicant was a “fit and proper person to be a marriage celebrant”, within the meaning of s 39C of the Act, and that, pursuant to that section, the applicant was accordingly not entitled to be registered as a marriage celebrant.
3. On 9 June 2008 the applicant applied to the Tribunal for review of the Registrar’s decision.
The Relevant Legislative Framework
4. Part IV of the Act contains provisions relating to the solemnization of marriages in Australia. Section 41 provides:
“ A marriage shall be solemnized by or in the presence of an authorized celebrant who is authorized to solemnize marriages at the place where the marriage takes place”.
The phrase “authorized celebrant” is defined in s 5(1) to mean:
“ (a) a minister of religion registered under Subdivision A of Division 1 of Part IV; or
(b)a person authorized to solemnize marriages by virtue of Subdivision B of Division 1 of Part IV; or
(c)a marriage celebrant.”
Subdivision B of Div 1 of Pt IV refers to State and Territory officers authorized to solemnize marriages. The phrase “marriage celebrant” is defined in s 5(1) to mean:
“ a person registered under Subdivision C of Division 1 of Part IV.”
Subdivision C of Div 1 of Pt IV contains ss 39A - 39M. Section 39A establishes the office of Registrar of Marriage Celebrants and s 39B requires the Registrar to maintain a register of marriage celebrants. Section 39C, which is headed “Entitlement to be registered as a marriage celebrant”, relevantly provides:
“(1) A person is only entitled to be registered as a marriage celebrant if the person is an individual and the Registrar of Marriage Celebrants is satisfied that the person:
(a)is aged 18 years or over; and
(b)has all the qualifications, and/or skills, determined in writing to be necessary by the Registrar in accordance with regulations made for the purposes of this paragraph; and
(c)is a fit and proper person to be a marriage celebrant.
(2)In determining whether the Registrar is satisfied that the person is a fit and proper person to be a marriage celebrant, the Registrar must take into account:
(a)whether the person has sufficient knowledge of the law relating to the solemnization of marriages by marriage celebrants; and
(b)whether the person is committed to advising couples of the availability of relationship support services; and
(c)whether the person is of good standing in the community; and
(d)whether the person has been convicted of an offence, punishable by imprisonment for one year or longer, against a law of the Commonwealth, a State or a Territory; and
(e)whether the person has an actual or potential conflict of interest between his or her practice, or proposed practice, as a marriage celebrant and his or her business interests or other interests; and
(f)whether the person’s registration as a marriage celebrant would be likely to result in the person gaining a benefit in respect of another business that the person owns, controls or carries out; and
(g)whether the person will fulfil the obligations under section 39G; and
(h)any other matter the Registrar considers relevant to whether the person is a fit and proper person to be a marriage celebrant.
…”
Section 39D, which is headed “Registration as a marriage celebrant”, relevantly provides:
“(1) A person may apply to be registered as a marriage celebrant by giving the Registrar of Marriage Celebrants:
(a)a completed application in the form specified by regulations made for the purposes of this paragraph; and
(b)any statutory declarations required by the form.
(2)The Registrar must deal with applications in the order in which they are received.
(3)In dealing with an application, the Registrar:
(a)must have regard to the information in the application; and
(b)may have regard to any other information in his or her possession; and
(c)is not required to seek any further information.
(4)The Registrar must register a person as a marriage celebrant if:
(a)the person has applied in accordance with subsection (1); and
(b)the Registrar is satisfied that the person is entitled to be registered as a marriage celebrant.
The Registrar must not register a person as a marriage celebrant in any other circumstances.
…”
Section 39F provides:
“ A person who is registered as a marriage celebrant may solemnize marriages at any place in Australia.”
Section 39G, which is headed “Obligations of each marriage celebrant”, provides:
“ A marriage celebrant must:
(a)conduct himself or herself in accordance with the Code of Practice for marriage celebrants prescribed by regulations made for the purposes of this paragraph; and
(b)undertake all professional development activities required by the Registrar of Marriage Celebrants in accordance with regulations made for the purposes of this paragraph; and
(c) notify the Registrar, in writing, within 30 days of:
(i)a change that results in the details entered in the register in relation to the person no longer being correct; or
(ii)the occurrence of an event that might have caused the Registrar not to register the person as a marriage celebrant if the event had occurred before the person was registered.
Note: If a marriage celebrant fails to comply with these obligations, the Registrar may take disciplinary measures under section 39I.”
Regulation 37G of the Marriage Regulations 1963 (Cth) (“the Regulations”) provides:
“ (1) For paragraph 39C(1)(b) of the Act, a person must have:
(a) at least 1 of the qualifications mentioned in subregulation (2); or
(b) all the skills mentioned in subregulation (3).
(2) For paragraph (1)(a), the qualifications are as follows:
(a)a certificate (however described) awarded by a university, showing successful completion of a course conducted by the university that includes the marriage celebrancy unit;
(b)a Certificate IV in Marriage Celebrancy awarded by a registered training organisation;
(c)a Statement of Attainment in the marriage celebrancy unit awarded by a registered training organisation;
(d)a written assessment given by a qualified assessor, showing attainment of competency in the marriage celebrancy unit.
(3) For paragraph (1)(b), the skills are as follows:
(a) fluency in an indigenous language;
(b)ability to liaise with clients and, if appropriate, the indigenous community in planning a marriage ceremony;
(c)ability to conduct a marriage ceremony, and to register a marriage, as required under the Act (including completing the required documentation);
(d) ability to communicate effectively.
…”
The Evidence
5. The evidence before the Tribunal comprised:
· the “T Documents” (T1 - T17, pp 1 - 43 ) lodged by the Registrar in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1 - A4 tendered by the applicant;
· Exhibits R1 - R5 tendered by the Registrar; and
· the oral evidence of the applicant.
The Factual Background
6. The following background facts are found by the Tribunal on the basis of the T Documents and exhibits.
7. On 6 May 2000 the applicant was arrested in Pinjarra for the offence of driving with a blood alcohol content exceeding 0.08% and she appeared in the Pinjarra Court on 3 August 2000 (Exhibit R2).
8. On 13 June 2001 the applicant was convicted (following a plea of “not guilty”), in Bunbury Magistrates Court, of 3 charges of fraudulently misappropriating property (comprising 3 Australian Money Orders in the total amount of $2,497.49) belonging to a public authority under the Commonwealth (namely, Australian Postal Corporation), contrary to s 71(1) of the Crimes Act 1914 (Cth). The applicant was released upon her giving a surety by recognisance of $2,000 to be of good behaviour for a period of 12 months. Three other charges of fraudulently misappropriating property (comprising 1 Australian Money Order and 2 sums of cash in the total amount of $2,529.23) belonging to a public authority under the Commonwealth (namely, Australian Postal Corporation), contrary to s 71(1) of the Crimes Act 1914 (Cth), were dismissed on the same occasion. (Exhibit A3, pp 3 - 4; Exhibit R5)
9. On 2 October 2007 the applicant lodged with the Marriage Celebrants Section, Family Law Branch, Attorney-General’s Department a completed “Application for registration as a marriage celebrant” form, signed by her and dated 28 September 2007, together with supporting documents (T3, T4, T6). One of those documents was a statutory declaration by the applicant, dated 28 September 2007, which the applicant provided in response to a pro forma request in the application form which stated:
“ Please provide a statutory declaration stating whether or not you have been convicted of an offence, punishable by imprisonment for one (1) year or longer, against a law of the Commonwealth, a State or Territory.”
The applicant’s statutory declaration stated as follows:
“ On 13 June 2001 due to lack of proof of my innocence I was put on good behaviour bond for 12 mth for allegedly taking cheques. These cheques were in a pile on my desk when I was robbed by 3 persons unknown to me. They stole cheques and cash. This was reported to Australia Post and the Police.” (Exhibit R4)
10. By letter dated 31 October 2007 an officer within the Attorney-General’s Department informed the applicant that her application for registration as a marriage celebrant could not be processed as it was incomplete. The letter went on to state as follows:
“ …
You indicated on the Statutory Declaration you provided that a 12 month good behaviour bond has been imposed on you in relation to an offence. Thank you for providing this information. Unfortunately your Statutory Declaration cannot be accepted as you have not stated what your conviction was.
You will therefore need to complete a new Statutory Declaration form that includes information on what offence you were convicted of, under what jurisdiction you were convicted (ie whether a law of the Commonwealth, a State or Territory) and when it occurred. If possible, can you also separately attach any relevant documentation relating to the offence, particularly any court documents that you may have.
Our office will consider your application carefully and if necessary we will contact you further in the course of the assessment process.
I have also noted that not all of your referee reports address all of the required selection criteria.
· The referee report from P… S… does not address points 2, 3 and 4 as listed below;
· The referee report from P… T… does not address points 3 and 4; and
· The referee report from P… F… does not address points 2, 3 and 4.
The two reference (sic) reports from P… S… and P… F… do not state your commitment to the institution of marriage (crit 2). Your referees must state their observations in specific terms regarding your commitment to the central importance of the institution of marriage and they should speak about your beliefs and opinions of marriage in the general sense of society, rather than your own marriage.
It has also been noted that none of your referees speak about your knowledge of the available relationship support services in your area (crit 3) or your commitment to advising couples about them (crit 4). Your referees need to attest with certainty that your knowledge of the available relationship support services is extensive and whether or not in their opinions you are committed to advising any future couples you may marry about these services.
The selection criteria were set out in Section I on the back page of the application form. The instructions sent to you for completing the application form clearly state that each reference should “separately cover each of these topics listed in Section I of the application form”. The selection criteria are reproduced below, for your information:
1.The nature and length of your relationship with the applicant
2.the applicant’s commitment to the central importance of the institution of marriage
3.the applicant’s knowledge of the availability of relationship support services
4.the applicant’s commitment to advising couples about these relationship support services
5.the applicant’s standing within the community, either through professional or voluntary activities
6.the applicant’s reputation for personal integrity and ethical standards
7.any other qualities or attributes that the applicant possesses that would support their application for registration as a marriage celebrant.
I have enclosed another copy of our Guidelines for Referees document which was also enclosed in the application pack. You might find it helpful to hand this to each referee mentioned above when you ask them to provide a new reference or a supplementary referee report. Please refer to the instructions supplied with the application form as this will make it easier for your referees to know what criteria we need them to address.
It is also stated in the guidelines that it is not satisfactory to provide generic references. Your referees need to provide specific information, as listed above, relating to your future performance as a marriage celebrant.
…” (T5)
11. On 25 February 2008 the applicant resubmitted her application for registration as a marriage celebrant, including fresh referee reports and a statutory declaration made by her on 22 February 2008 as follows:
“ On June 13 2001 I was accused of taking commonwealth cheques. Due to lack of proof of innocence, eg receipts I was placed on 12 month good behaviour bond. These cheques were in a pile on my desk awaiting processing when 3 persons unknown to myself robbed me of these. This matter was reported to Australia Post and Police. A sum of cash was also taken. I have served 12 month good behaviour bond without any incidents.” (T10, p 26)
In a covering letter the applicant stated that she did not have “any court papers” (T7).
12. On 27 May 2008 the Registrar decided not to register the applicant as a marriage celebrant (T15, T16).
13. In an undated letter which accompanied her application to the Tribunal for review of the Registrar’s decision, the applicant stated (relevantly):
“ In response to the registrars decision letter I Judith Williams would like in my defence refute that I am not a fit and proper person to become a marriage celebrant. (sic)
I addressed the conviction to the best of my knowledge. I stated the offence was stealing cheques from the commonwealth. I also stated the date and circumstances in which the offence occurred. I do not have any court documents to send to you. I have pleaded not guilty to this charge and still say that I am innocent. I have no proof that the intruders took the cheques in question when they took all the other money. The cheques were in with the money. And I stand my original statement that I was robbed of the takings which included the said cheques. (sic)
…
I would appreciate your reviewing of my application and hope that you can believe me when I say that I have never stolen and certainly not from the commonwealth.
…” (T17)
The Applicant’s Evidence
14. The applicant tendered in evidence, as her evidence-in-chief, her signed statement dated 11 May 2009 (Exhibit A1).
15. In her statement of evidence the applicant addressed the matter of her criminal convictions on 13 June 2001 as follows:
“ …
10.These matters came about as a result of my management of the Post Office at Burekup between 1 November 1997 and 13 December 1999. …
11.I was represented in these matters by Mr … of …, Bunbury. I had very limited contact with Mr … in advance of the trial and did not have the matters explained to me clearly at any stage prior to, during or after the trial.
12.I had made taken (sic) care to make Mr … aware that I had not acted dishonestly in relation to these matters and that in short there had been issues, firstly with cash having been taken by third parties whilst under my care at the post office and secondly that on two occasions I had paid for bills relating directly to the business ($1777.05 for a Telstra account paid on 17 May 1999 and $400.00 for advertising costs with South West Printing and Publishing paid on 17 June 1999) by way of Australia (sic) Money Orders.
13.I was without funds to settle these urgent accounts and very unwisely decided to utilise Australian Money Orders with the intention of replacing the necessary funds soon after. This was poor judgment on my part and I allowed myself to fall into error in this regard with catastrophic consequences for my character.
14.I was experiencing severe emotional, physical and financial stress at the time and was working very extensive hours. I ran the business virtually alone and operated the store from 6.00 am to 9.00 pm or 10.00 pm Mondays to Saturday and from 8.00 am to 1.00 pm on Sundays.
15.The store was not only a post office but also a newsagent, general store and ‘bottle shop’. I was often up at 3.00 am to receive the mail and worked long hours once the business was shut to attend to administration matters. I often managed for weeks on only 3 or 4 hours of sleep each night. I was exhausted for much of the time.
16.I had inherited a business that was in a dreadful state and I was obliged to apply myself completely to try and ‘turn it around’. … I was totally committed to making a success of the business and threw myself into the task ‘heart and soul’.
17.With the benefit of hindsight I had taken on far too much and was unable to cope. I did not know where to turn and respectfully assert that my judgment was compromised as a result of the situation. I rely upon my numerous references, my otherwise good character (both before and since my convictions) and my efforts in relation to these proceedings as evidence of my usually high standard of judgment in the face of difficulties.
18.I will never allow my personal or working circumstances to cause a repeat of any such behaviour, compromised reasoning or poor judgment in the future as I have been obliged to learn a demanding and devastating lesson as a result of the events that occurred in 1999.
19.I was struggling financially and whilst I was aware that it was inappropriate to utilise Australian Money Orders for these purposes without immediately depositing cash in payment for the Orders I fully intended to pay for those Orders once I had sufficient funds. In those circumstances I made a serious error in judgment and prepared and issued the two Australian Money Orders without immediately paying for them.
20.I fully accept that my actions were inappropriate and were found to be criminal by the Harvey Court of Petty Sessions (sic) at trial. With the benefit of hindsight I recognise completely that my actions were in the poorest judgment and as a result of those actions I have forever lost my good character and that has led to ongoing issues including the matters that come before the Tribunal in this case.
21.I never gave evidence at the trial and found it generally hard to follow the proceedings. I had made Mr ... aware of the issues set out above and received legal advice to maintain a Not Guilty stance to all matters. I made it clear that I would not tell lies to the Court and this was a critical factor in me not giving evidence at trial.
22.At trial I was found Guilty of the matters relating to the Australian Money Orders … . These were charges HV247 and 248 of 2000.
23.I was also found Guilty of HV250 of 2000 being a matter involving a further Australian Money Order in the sum of $320.24 being allegedly applied in payment of Shire rates to Dardanup Shire on 13 July 1999. I had not utilised that Australian Money Order as alleged but was found Guilty in any event.
…
33.I fully accept that I have been convicted of offences of dishonesty against the Commonwealth. I continue to feel ashamed and embarrassed about these matters.
34.I do say that of the three matters I was convicted of I had always accepted my responsibility of (sic) the two matters …. I remain confused as to the third matter … but have resigned myself to the fact that I remain obliged to suffer the burden of that conviction.
35.These matters occurred almost ten years ago and were dealt with at the Court almost eight years ago.
36.I discharged the sentence that was imposed and have never offended otherwise, either before these matters or since.
37.I accept the consequences of my errors but do not accept that as a result of these matters I am not a fit and proper person to be registered as a marriage celebrant.
38.I have been advised and believe that the sentence imposed by the Court was at the lower end of the scale for what could be fairly described as an offence of gross breach of duty and trust whilst in a position of significant trust.
39.The full recovery of all funds allegedly misappropriated had occurred long before the trial and the fact that three of the six charges were dismissed indicates that the Court was not satisfied to the necessary standard in relation to those matters.
40.The apparent anomaly of the Australian Money Order relating to Dardanup Shire is difficult to reconcile also although I am obliged to accept the conviction as it stands.
41.I have been advised and believe that the decision of the Court to make no order as to costs is an indication of the Court’s view as to the appropriate placing of my offending within the tariff of offences of that nature.
42.I do not minimise the seriousness of my behaviour and do not suggest that my convictions are not serious. However, I do assert that when considered on a totality basis these are not offences that, of themselves, must be properly and fairly said to prevent me from being deemed to be a fit and proper person to be a marriage celebrant.
43.The conviction will relatively shortly become a Spent Conviction. I make it clear that even had it been a Spent Conviction at the date of my application to the Respondent I would still have disclosed it in an effort to deal with this matter on a full, frank and transparent basis.” (original emphasis)
The applicant then addressed the Registrar’s contention that she had not disclosed her convictions to the Registrar, either upon applying for registration as a marriage celebrant or subsequently, as follows:
“44. By way of a written application dated 28 September 2007, I applied to become a Registered Marriage Celebrant. … I do not have a copy of a crucial and critical document forming part of the Application and I have been advised and believe that the Respondent also does not have a copy of that missing document.
45.The missing document is the first Statutory Declaration I made in relation to my criminal convictions. I did not retain a copy of my original Application and was obliged to receive a copy from the Respondent in their ‘T’ documents.
46.I have been advised and believe that my solicitor has, by way of a telephone call made around late April 2009, requested a copy from the Respondent.
47.At the date of preparing this statement I have been advised that my solicitor has not been contacted by the Respondent regarding his earlier telephone request for the missing Statutory Declaration.
48.I make it clear that I do not on any basis assert or allege that the Respondent has at any time been anything other than entirely fair, just, helpful and collegiate in relation to this matter.
49.It appears at this stage that the document has either been misplaced by the Respondent or perhaps was returned to me by the Respondent as a requisition and has been misplaced by me.
50.If the latter is the case I have no recollection of having had the document returned to me, do not hold a copy and it would appear the Respondent returned it to me without taking a copy for the file.
51.I had completed the Application to the best of my ability and included all of the material that I believed was necessary for the Application to be properly received, processed and approved. I had most certainly included the required Statutory Declaration regarding my confirmation (sic) as requested.
…
54.… I respectfully assert that the Respondent cannot sensibly allege that I failed to disclose my convictions upon my application for registration as the Respondent’s own correspondence categorically confirms that I did.
55.I accept that my original Statutory Declaration appears to have been lacking is (sic) sufficient detail and … a further Statutory Declaration was requested to address the following issues ‘You will therefore need to complete a new Statutory Declaration form that includes information on what offence you were convicted of, under what jurisdiction you were convicted (ie whether a law of the Commonwealth, a State or a Territory) and when it occurred. If possible, can you also separately attach any relevant documentation relating to an offence, particularly any court documents that you may have.’
56.I rely upon … document [T7], being the covering letter I believe was sent by me to the Respondent with the ‘new’ Statutory Declaration, being … document [T10, p 26], declared 22 February 2008.
…
58.… document [T7] clearly states ‘I am sorry I do not have any court papers’. The Court case had concluded almost seven years earlier and I did not retain any papers in relation to the matter. I had been asked … to provide any documents I may (my emphasis) have had. I had none and advised the Respondent of that fact by way of my letter [T7].
59.I respectfully assert that my new Statutory Declaration [T10, p 26] properly addresses the requests made … as it sets out the following:
a)Requested information: ......‘information on what offence you were convicted of’
b)Provided information: ......’ I was accused of taking Commonwealth cheques...;
c)Requested information ......... ‘under what jurisdiction you were convicted (ie whether a law of the Commonwealth, a State or a Territory’)
d)Provided information: ....’ I was accused of taking Commonwealth cheques’
e)Requested information: ‘….when it occurred….’
f)Provided information: ‘ ... on June 13 2001 I was accused of......’
60.Whilst I accept that my Statutory Declaration [T10, p 26] was not particularly elegant I respectfully assert that it was certainly more than adequate to clearly set out the relevant matters in sufficient detail to satisfy the Respondent that I had beyond any doubt properly disclosed my convictions at the initial application stage as well as subsequently.
61.On the basis of the matters in paragraphs 44 to 60 above I respectfully assert that the Respondent cannot sensibly maintain that I failed to disclose my convictions upon my application for registration, or subsequently.
62.I rely upon … document [Exhibit A3, p 33], being the Police Clearance which I used to base my Statutory Declarations upon. Upon consideration of the Court extract [Exhibit A3, pp 2 - 4] and CDPP report [Exhibit A3, pp 10 - 11] I accept that my Statutory Declaration does not entirely coincide with those documents. However, I respectfully assert that I as (sic) relied upon the [Police Clearance] as the source of my information for the content of my Statutory Declarations I say that [my Statutory Declaration] accurately reflects the contents of the Police Clearance … .
63.I respectfully assert that I did disclose my convictions to the Respondent upon my original application and in my subsequent Statutory Declaration. I believe the Respondent has fallen into error in asserting I did not.
64With the benefit of hindsight I should have simply provided a copy of my Police Clearance Certificate … as this would have categorically addressed the issue and removed much confusion. However, at no time was I requested to provide a Police Clearance Certificate. I was unrepresented in this matter until very recently.
65It simply did not occur to me to have provided the Police Clearance Certificate although on detailed consideration of the issue it would appear to have been a much simpler method of dealing with this issue had either I or the Respondent considered this as a practical and ready solution to a rather overly complicated issue.” (original emphasis)
The applicant next addressed the Registrar’s contention concerning her “continuing lack of candour about misrepresentation of her criminal record …” as follows:
“66. I rely upon my comments above in this regard. I have been candid throughout this matter and have at no time misrepresented my criminal record. I have at all time used very best effort to fully provide any and all information necessary for the Respondent to fully and properly consider my application.
67.I respectfully assert that the Respondent appears to have erred in that they have overlooked the proper disclosure of my convictions from the outset as set out above and have fallen into error in their assertions as to my alleged lack of candour as a result of that erroneous initial view.
68.I accept that with the benefit of hindsight I should have simply provided a copy of my police clearance. This did not occur to me and I respectfully suggest that it seems to have been overlooked as an option by the Respondent also.
69.I was until very recently unrepresented in this matter and have been obliged to use best efforts to comply with the paperwork requirements. I respectfully assert that I have properly and ably complied with the duty of full and frank disclosure that I assumed applied in this matter.
70.I take the view that had I been represented it would have been far easier to have provided information in a manner that was concise, accurate and simplified.
71.The nature of my original convictions was not straightforward nor were the offences themselves, the mixed findings of the Court or the significance of the matters that were raised at and subsequent to trial. I respectfully assert that I have used every best effort to provide candid and transparent information within a procedural application framework that appears to be unnecessarily complicated.
72.I do not accept that I have at any time lacked candour or misrepresented myself or my criminal convictions such that my status as a fit and proper person has been compromised in any way.”
The applicant next addressed the Registrar’s contention regarding her “lack of judgment or care about matters of legal significance …” as follows:
“73. I do not accept that I have shown any lack of judgment or care about matters of a legal significance save for the following:
(a)the personal issues leading up to my original convictions in June 2001;
(b)my decision to be originally unrepresented in this matter;
(c)my failure to keep a copy of all documents submitted to the Respondent in this matter.
74.As regards the specific legal responsibilities of a marriage celebrant I rely upon [document T16], at paragraph 6, where the Respondent indicates its satisfaction that I have the required qualifications under Regulation 37G of the Marriage Regulations 1963.
75.I further rely upon [Exhibit A3, p 35], being an extract of the Marriage Regulations 1963, setting out the contents of Regulation 37G. I respectfully assert that I have successfully completed all of the necessary training in relation to the legal requirements of the role of a marriage celebrant to the necessary standard and this has already been accepted by the Respondent.
76.I say that my recent decision to seek legal assistance in this matter is a practical example of my recognising and acting upon an issue of legal significance that required such assistance. I say that this clearly indicates a keen awareness of these issues.
77.I say that my experience in this matter to date has made me acutely aware of the critical nature of matters involving legal issues. I also say that far from being a person who has shown a lack of care or judgment in this matter I have maintained consistent effort to work through a relatively complex issue and then reached a decision that I needed professional assistance when the matter became too complex for me to continue to conduct unrepresented.
78.I then sought out and secured assistance and have been instrumentally involved in the preparation of this matter and that of itself has led to an even greater awareness of the great importance of applying great care and good judgment in any and all matters of legal significance.
79.I do not accept that I am in any way lacking as regards awareness, judgment and care in matters of a legal significance. I say that I made mistakes in 1999 and was punished for those mistakes in June 2001 and have properly dealt with the punishment imposed without complaint or further incident.
80.I do not accept that I have in any way demonstrated that I am not a fit and proper person to carry out the legal responsibilities of a marriage celebrant. I respectfully assert that my experiences in 1999, my convictions in 2001 and my dealings with the legal aspects of this matter from late 2007 to date all support the assertion that I will certainly remain acutely aware of the significance of legal issues over and above that of an individual who has not had my specific life experiences in this regard.
81.I assert that I have already been punished for the mistakes that I made in 1999 and do not accept that I should be now deemed less than fit and proper within the context of this application.”
Finally, the applicant referred to various referee reports, letters of support, certificates and statements of attainment (part of Exhibit A3) and concluded:
“93. I say that the diverse letters of support, confirmation of my community efforts and achievements to date should be balanced against my convictions of 13 June 2001 and that, on balance, the Respondent has fallen into error in asserting I am a person not fit and proper to be a marriage celebrant.
94.I am an industrious and committed person who uses every effort to make a success of any task that I am involved in. I say that my convictions of 13 June 2001 were committed by me at a time of great stress when my judgment was compromised. I shall be absolutely vigilant in the future to ensure I do not fall into any such error again in the future.
95.I say that my training, education and keen understanding of the role of a marriage celebrant when taken together with my industry, attitude and tenacity as well as my sensible, mature and candid approach to my criminal convictions will provide a firm foundation for my being deemed a fit and proper person to carry out the tasks of a marriage celebrant.
96.The contents of this statement are true to the best of my knowledge and belief and I have used every effort to state matters plainly, truthfully and on a transparent basis so as to assist the Tribunal to the best of my ability.”
16. In cross-examination the applicant confirmed that on 13 December 1999 she paid the amount of $6,691.25 to Australia Post when the sale of her post office agency store was settled. She said that that amount included restitution of the amount which she had been convicted of fraudulently misappropriating from Australia Post and also “transfer fees” which were payable by her to Australia Post on the sale of the agency.
17. As regards her statement, in para 36 of her statement of evidence (Exhibit A1), that she had “never offended otherwise”, either before or after the abovementioned fraudulent misappropriation offences (which were committed in the period May–July 1999), the applicant confirmed that that statement was correct. Asked to confirm that she had “never been charged by police with anything, never arrested for anything else”, the applicant responded:
“ I did have a drink driving charge against me but that was – can’t even remember the date of that one now but yes.”
It was put to the applicant that she was arrested for that offence on 6 May 2000, as stated in an Australian Federal Police facsimile dated 21 August 2000 (Exhibit R2 – see paragraph 7 above). The applicant confirmed that she was convicted of that offence.
18. The applicant confirmed that she provided to the Registrar two statutory declarations, dated 28 September 2007 and 22 February 2008, “relating to conviction of offences”, as required for the purposes of her application for registration as a marriage celebrant (see paragraphs 9 and 11 above). The applicant was cross-examined on the contents of those statutory declarations as follows:
“ MR DILLON: Could you just confirm that that is your signature? --- Yes, it is.
It’s dated 28 September 2007? --- That’s correct.
This is your statutory declaration? --- It is.
Okay. Now, in this stat dec you say:
On 13 June 2001 due to a lack of proof of my innocence I was put on good behaviour bond for 12 months for allegedly taking cheques. These cheques were in a pile on my desk when I was robbed by three persons unknown to me. They stole cheques and cash. This was reported to Australia Post and the police.
All right. We will move I think to the next one. But this is what you declared to be a true statement about the circumstances that led to your conviction? --- Yes, yes.
Okay. All right. Now as there seemed to be some confusion there was a second statutory declaration filed with the registrar? --- Thank you.
As Ms Williams has just said, this statutory declaration was meant to provide further information about the nature of the offence and the jurisdiction, etcetera? --- Yes.
All right. … If I could run you through this stat dec which is very similar to the first which is why I haven’t laboured on the first. Now, the first statement:
On 13 June 2001 I was accused of taking Commonwealth cheques.
That is not true, is it? --- Yes, it is.
You were accused of ---? --- I was accused of taking Commonwealth cheques.
You were accused and convicted of misappropriating money orders? – Yes. Yes, and the cheques one was dismissed but to the best of my knowledge when I filled out this I was going off my police clearance which said – because, as I’ve said, it happened nine years ago and a lot in my life has happened since nine years.
Indeed. But this is a statement, this is a statement about your convictions. Now, you may have been accused of taking a cheque and you may have been acquitted of it but what you were attesting to and telling the registrar was about your convictions. Do you disagree with the proposition that this statement is meant to make the registrar think that what you were convicted of was taking Commonwealth cheques? --- No. I wasn’t trying to lead him into thinking that at all.
Well, where is the mention in here of money orders and convictions? --- Well, there is no mention in there. As I said, I went off my police clearance which on the police clearance it had ‘stealing Commonwealth property’.
Yes? --- Underneath it had ‘three cheques’.
Yes. I will hand up the police clearance … Your evidence now has just been that you were accused of taking Commonwealth cheques but you were acquitted in fact. That is what you just told the tribunal? --- Yes, yes.
I do agree with you, this does say ‘steal Commonwealth property, three cheques’. But this is a record of convictions and it’s a record of a penalty:
$2000. Recognition (sic) to be of good behaviour. Bond for 12 months.
Now, nowhere in this statutory declaration do you mention money orders. Nowhere do you mention that you were in fact convicted? --- I’m sorry, I didn’t include the money orders, I didn’t purposely not include them.
But surely that ---? --- As I said, nine years ago and I really couldn’t remember the whole case.
All right. So you didn’t remember being convicted of stealing money orders? --- At that time, no.
All right. Now, you say:
Due to a lack of proof of innocence, for example, receipts, I was placed on a 12-month good behaviour bond.
Well, it wasn’t ‘due to a lack of proof of innocence’. It was because, as you have said in the tribunal today, you did the criminal act? --- Because of – yes, because of the money orders, because of the money orders, yes.
Yes. But that wasn’t ---? --- I couldn’t prove that I hadn’t taken those cheques. But then ---
But you weren’t convicted of taking the cheques? --- No.
You’ve just said that. You were convicted of taking money orders, misappropriating money orders that were entrusted to you by Australia Post? --- That’s correct.
Yes. That is what you were convicted of. What you are saying here is that:
… due to a lack of proof of innocence, for example, receipts, I was placed on a 12-month good behaviour bond.
That is simply a false statement? --- No, it’s not a false statement. I was talking about the cheques.
Well, no, you were making a statutory declaration about your convictions. That was the purpose. You have ticked in your application the statutory declaration relating to conviction of offences. That is what you were doing. That is what you were purporting to do? --- Well, to the best of my knowledge that is what I did.
Well, it’s not to the best of your knowledge, is it? --- Well, it was.
Because you have said that you know that you committed those crimes? --- I know now because I’ve – I had the papers from the courts.
Well, you knew because you were convicted of them? --- I – as I said, I did not remember the money order part of it. I was going on the cheques off the police clearance.
That is your evidence about that statement? --- Yes.
Okay. All right. Now you say:
These cheques were in a pile on my desk awaiting processing when three persons unknown to myself robbed me of these.
Now, what you were convicted of was taking a pad of money orders, writing out an amount to your benefit and paying your bills with it which had nothing to do with being robbed? --- I didn’t take a pad of money orders.
No, but you said money orders came in a pad? --- I used it, yes. Yes, yes. Sorry. I beg your pardon.
It had nothing to do with being robbed by persons unknown to you. It was a deliberate act that you said you did because you were under stress. You were short of money, you were under stress. You intended to pay it back later. You took out the pad of money orders, issued money orders to yourself without remitting the money? --- Yes.
You were caught and convicted of that? --- Yes.
Yes. So this statement about cheques being:
… in a pile on your desk awaiting processing when three persons unknown to myself robbed me of these –
that is just an entirely misleading statement in the circumstances? --- It was not meant to be misleading.
…
I put it to you that this is an intentionally misleading statement which was meant to create in the mind of the registrar that you were an unfortunate victim of circumstances, you were robbed, the evidence wasn’t there and as a result of the evidence not being there you were unfairly convicted? --- I was not intentionally trying to mislead the registrar at all.
…”
19. The Tribunal drew the parties’ attention to the fact that in the “National Police Certificate” issued to the applicant by Western Australia Police on 23 January 2007, to which the applicant referred in her abovementioned evidence as the “police clearance”, the offences of which the applicant was convicted on 13 June 2001 were described as follows:
“STEAL COMMONWEALTH PROPERTY (3 CHGS)” (Exhibit A3, p 33).
The applicant accepted the Tribunal’s suggestion that the abbreviation “CHGS” in that document was a reference to “charges”, not “cheques”, but she added that she had taken the expression “3 CHGS” in that document “to mean three cheques”.
20. The applicant acknowledged that she had referred to that “police clearance” document when she prepared the abovementioned statutory declarations for the purpose of her application for registration as a marriage celebrant, and that that document clearly stated that she had been convicted of stealing Commonwealth property.
21. The applicant was cross-examined on the letter which she lodged with the Tribunal together with her Application for Review (see paragraph 13 above) as follows:
“ MR DILLON --- So if I could take you to the second paragraph, where you say:
I address (sic) the conviction to the best of my knowledge
? --- Yes.
Is that a true statement? --- Yes, it is.
I stated the offence of (sic) stealing cheques from the Commonwealth. I also stated the date and circumstances in which the offence occurred.
Are you saying that you stated that in your statutory declaration? --- As I’ve said before, I took it off my police clearance and it was never ever deliberately or intentionally meant to mislead anybody.
Okay. So just by chance, you completely overlooked the writing out of money orders and paying bills with it? --- As I said, I didn’t remember them at the time. Since I’ve got the court document and that’s when I went to Mr Mahon and asked for him to represent me.
Okay. But the purpose of writing this paragraph was again to ask the --- ? --- To ask the tribunal to hear my case.
Yes, and in effect, to believe what you said in your statutory declaration? --- Well, yes.
Yes. Okay. Now a bit further down, you say”
I pleaded not guilty to this charge. I’ve been told to do that, and still say that I’m innocent. (sic)
But you don’t now say you’re innocent, do you, for charges for which you were convicted? --- Not now that I have the court document stating that it wasn’t the cheques that was in question.
Okay:
I have no proof that the intruders took the cheques in question when they took all the other money.
So you’re still wanting the registrar to believe that you were the victim of an unfortunate robbery? --- I am still not wanting him to believe that, no. When I wrote this letter, yes.
You were, yes? --- Because I myself believed it.
Yes? --- But since getting the court documents and reading through them and realising what I had been actually convicted of.
Sorry, how did you believe that you were convicted of that when you were clearly convicted of the money order of … How could you possibly believe that? --- As I stated before, I took that to mean three cheques on my police clearance.
But even so, even if you thought three cheques, three money orders, that’s what I was convicted for, that could be plausible, but to say that you honestly believed that you were convicted for cheques being stolen from your desk – is that your evidence? --- Yes.
Okay:
And I stand by (sic) my original statement that I was robbed of the takings which included the set of (sic) cheques.
Okay. Then the next page, down the bottom. …
I would appreciate your reviewing of my application and hope [that] you can believe me when I say [that] I have never stolen and certainly not from the Commonwealth.
Now, you say – you have said numerous times during your evidence that you had regard to the national police certificate clearance? --- Yes.
You say your understanding of what you were convicted of came from this document? --- Yes.
Yes. This document says, “Offence. To (sic) steal Commonwealth property.” So how can you be saying:
I would appreciate your reviewing of my application and hope [that] you can believe me when I say [that] I have never stolen –
And then, having been convicted of ---? --- Of money orders.
--- that you admit you did steal. Then you say, ‘certainly not from the Commonwealth’. That is deliberately misleading, isn’t it? --- It wasn’t deliberately misleading, no. I mean ---
But you’ve just said you took it all from your certificate? --- Yes.
It says specifically ‘steal Commonwealth property’? --- I obviously said the wrong wording in this letter. But it was not meant to mislead the registrar (sic).”
Additional Evidence
22. The Tribunal has had regard to the documentary exhibits referred to in paragraph 5 above, including:
·various letters of reference from 3 persons regarding the applicant (Exhibit A3, pp 36 - 44);
·2 letters from Continuing Health Care, dated 8 August 2008 (Exhibit A4) and 4 May 2009 (Exhibit A3, pp 45 - 46), regarding the applicant’s employment as an Assistant in Nursing at Mandurah Care Facility from 31 March 2008 to 4 February 2009;
·the applicant’s Certificate of Membership of the Lioness Club of Exmouth, dated 14 November 2002 (T4, p14), and a letter, dated 3 May 2009, from the President of the Lioness Club of Exmouth regarding the applicant’s membership of the Club and her fund-raising activities in the local community (Exhibit A3, p 47);
·Certificate of Appreciation awarded to the applicant on 15 May 2007 by Yarloop Primary School “in recognition of [her] valuable contributions to Yarloop Primary School P & C Association” (Exhibit A3, p 49).
Analysis
23. It is common ground that the applicant meets the requirements of paras (a) and (b) of s 39C(1) of the Act. The sole issue for the Tribunal's determination is whether the applicant meets the requirement of para (c) of s 39C(1) of the Act – namely, whether the Tribunal is satisfied that she “is a fit and proper person to be a marriage celebrant”.
24. In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Dixon CJ, McTiernan and Webb JJ said (at 156):
“ … The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ – Coke. …”
In Stasos v Tax Agents’ Board (1990) 21 ALD 437 Hill J said (at 444):
“ The content of what is necessary to constitute a person a fit and proper person to occupy a particular office or pursue a particular vocation may vary having regard to the office or vocation under consideration. …”
25. In the present case the proper inquiry is whether the Tribunal is satisfied, having regard to the matters set out in paras (a) – (h) of s 39C(2) of the Act, that the applicant is a “fit and proper person” to be entrusted with the responsibilities, to discharge the obligations and to perform the functions and duties, of a marriage celebrant registered under the Act.
26. As regards the matters set out in paras (a) – (h) of s 39C(2) of the Act, the Tribunal understands that the Registrar does not contend that a consideration of any of the matters referred to in paras (a) – (c) and (e) – (g) would militate in favour of the conclusion that the applicant is not a fit and proper person to be a marriage celebrant. The Registrar does, however, contend that a consideration of the matter referred to in para (d), and a consideration of other relevant matters for the purposes of para (h) – in particular, the applicant’s failure fully to disclose to the Registrar her criminal convictions and her “continuing lack of candour about, and misrepresentation of, her criminal record” – militate decisively in favour of the conclusion that the applicant is not a fit and proper person to be a marriage celebrant.
27. As regards the matters referred to in paras (a) – (c) and (e) – (g) of s 39C(2) of the Act, the Tribunal comments, in relation to the applicant, as follows:
· para (a) – the applicant, by reason of her having successfully completed the relevant “marriage celebrancy unit” provided by a “registered training organisation”, within the meaning of reg 37G(2) of the Regulations (see the Statement of Attainment awarded to the applicant by the Academy of Celebrancy, Australia on 19 March 2007 – T4, p13), has one of the qualifications mentioned in reg 37G(2) and thereby meets para (b) of s 39C(1) of the Act, and, accordingly, must be taken to have “sufficient knowledge of the law relating to the solemnization of marriages by marriage celebrants”, for the purposes of para (a) of s 39C(2) of the Act;
· para (b) – in her application for registration as a marriage celebrant the applicant identified three organisations which provide relationship support services in her area and described the major relationship support services offered by each organisation (T4, p 8), and her referees confirmed her commitment to advising couples of the availability of relationship support services (Exhibit A3, pp 36 - 37, 40 - 41, 43);
· para (c) – the applicant’s good standing in the community is evidenced by the recognition of her voluntary community activities by the Lioness Club of Exmouth and the Yarloop Primary School (see paragraph 22 above) and by the reports of her abovementioned referees;
· paras (e) and (f) – in her application for registration as a marriage celebrant the applicant confirmed that she does not own or run a business, that her employment does not have any connection with marriage celebrancy or the “wedding industry”, and that her registration as a marriage celebrant would not be likely to result in her gaining a commercial or financial benefit in respect of any business that she owns, controls or carries out (T4, p 9), and there is no evidence before the Tribunal which is inconsistent with any of those propositions;
· para (g) – in her application for registration as a marriage celebrant the applicant gave the undertakings required of her by the Registrar to satisfy the Registrar that she will fulfil the obligations under s 39G of the Act (T4, p 11).
28. As regards the matter referred to in para (d) of s 39C(2) of the Act, it is common ground that, on 13 June 2001, the applicant was, following a plea of “not guilty”, convicted of 3 offences, each of which was “punishable by imprisonment for one year or longer”, of fraudulently misappropriating property belonging to a public authority under the Commonwealth, contrary to s 71(1) of the Crimes Act 1914 (Cth). It is also common ground that the applicant was not sentenced to imprisonment in respect of those convictions but was, instead, released upon her giving a surety by recognisance of $2,000 to be of good behaviour for a period of 12 months.
29. Finally, as regards para (h) of s 39C(2) of the Act, and, in particular, the Registrar’s contention that the applicant failed fully to disclose her criminal convictions in the statutory declarations provided by her in support of her application for registration as a marriage celebrant (see paragraphs 9 and 11 above) and that the applicant has continued to be lacking in candour about, and has misrepresented, her criminal record, the Tribunal has had particular regard to the following evidence:
· the contents of each of the abovementioned statutory declarations (see paragraphs 9 and 11 above);
· the applicant’s letter (undated) which was lodged with the Tribunal, together with her Application for Review, on 9 June 2008 (see paragraph 13 above); and
· her evidence at the hearing of the Tribunal on 15 June 2009 (see paragraphs 14–21 above).
Having considered that evidence, in the context of the whole of the evidence in this matter, the Tribunal is of the opinion that the Registrar’s abovementioned contentions are well-founded for the following reasons.
30. The statutory declaration, dated 28 September 2007, was provided by the applicant to the Registrar in response to a request in the “Application for registration as a marriage celebrant” form, completed by the applicant on that date, as follows:
“ Please provide a statutory declaration stating whether or not you have been convicted of an offence, punishable by imprisonment for one (1) year or longer, against a law of the Commonwealth, a State or Territory. (See paragraph 39C(2)(d) of the Act.)”
In the Tribunal’s opinion the declaration made by the applicant on 28 September 2007 (see paragraph 9 above) was:
· factually false in that it stated that she had been “put on good behaviour bond for 12 mth for allegedly taking cheques”, when in fact such bond had been imposed upon her following her conviction of 3 offences of fraudulently misappropriating property (namely, 3 Australian Money Orders) belonging to a public authority under the Commonwealth; and
· misleading in that it conveyed the impression that the applicant was an innocent victim of an offence committed by others rather than herself having committed any offences.
31. The statutory declaration, dated 22 February 2008, was provided by the applicant to the Registrar in response to a letter, dated 31 October 2007, sent to her on behalf of the Registrar which stated (inter alia):
“ I refer to your application for authorisation as a marriage celebrant which was received by us on 2 October 2007.
…
You indicated on the Statutory Declaration you provided that a 12 month good behaviour bond has been imposed on you in relation to an offence. Thank you for providing this information. Unfortunately your Statutory Declaration cannot be accepted as you have not stated what your conviction was.
…”
In the Tribunal’s opinion the declaration made by the applicant on 22 February 2008 (see paragraph 11 above) was also factually false and misleading in the same respects as those referred to in the preceding paragraph in respect of the statutory declaration of 28 September 2007. Although the applicant was in possession of a National Police Certificate issued to her by Western Australia Police on 23 January 2007, in which the offences of which she had been convicted on 13 June 2001 were described as:
“STEAL COMMONWEALTH PROPERTY (3 CHGS)”,
the applicant did not provide that document (or a copy thereof) to the Registrar despite the request in the abovementioned letter of 31 October 2007 that she attach to her new statutory declaration “any relevant documentation relating to the offence, particularly any court documents that [she] may have”. Rather, the applicant, in a covering letter to the Registrar, merely stated:
“I am sorry I do not have any court papers.” (T7)
The Tribunal regards that statement, together with her failure to provide the Registrar with a copy of the abovementioned National Police Certificate, as indicative of a lack of candour on her part regarding her criminal convictions. Likewise, the Tribunal regards the applicant’s explanation for her failure to provide that document to the Registrar which she proffered in her evidence before the Tribunal – namely, that at no time was she requested to do so and that it did not occur to her to do so – as disingenuous and unconvincing.
32. In her (undated) letter which she lodged with the Tribunal, together with her Application for Review, on 9 June 2008, the applicant stated (inter alia):
“ I addressed the conviction to the best of my knowledge. I stated the offence was stealing cheques from the commonwealth. I also stated the date and circumstances in which the offence occurred. I do not have any court documents to send to you. I have pleaded not guilty to this charge and still say that I am innocent. I have no proof that the intruders took the cheques in question when they took all the other money. The cheques were in with the money. And I stand my original statement that I was robbed of the takings which included the said cheques”. (sic)
In the Tribunal’s opinion the abovequoted extract from the applicant’s letter was both factually false and misleading in the same respects as those referred to in paragraphs 30 and 31 above in respect of the relevant statutory declarations made by the applicant. In that letter, furthermore, the applicant went on to state:
“ I would appreciate your reviewing of my application and hope that you can believe me when I say that I have never stolen and certainly not from the commonwealth.”
That statement is, of course, inconsistent with the fact of her conviction, on 13 June 2001, of 3 offences of fraudulently misappropriating property belonging to a public authority under the Commonwealth, and is, moreover, contrary to her apparent acknowledgment in her evidence before the Tribunal that she was guilty of 2 of those offences (see paras 12–13, 19–20, 33–34 of her statement of evidence set out in paragraph 15 above).
33. As regards the applicant’s evidence at the hearing of the Tribunal on 15 June 2009, the Tribunal has similar opinions to those expressed above in relation to the applicant’s statutory declarations and letter. Although the applicant appeared, in her statement of evidence, to acknowledge her guilt of 2 of the fraudulent misappropriation offences of which she was convicted on 13 June 2001, in cross-examination she appeared, in the Tribunal’s opinion, to prevaricate in relation to the contents of her statutory declarations and letter.
34. As regards the contents of the applicant’s statutory declarations, the Tribunal does not accept the applicant’s evidence to the effect that she did not refer to her conviction of stealing money orders in her statutory declarations because, at the time she made those declarations, she did not remember that she had been convicted of that offence. Likewise, the Tribunal does not accept the applicant’s evidence that, in her statutory declarations, she addressed the matter of her criminal convictions “to the best of [her] knowledge”. In the Tribunal’s opinion the applicant, in her statutory declarations, intentionally misrepresented her criminal history in such a manner as to convey to the Registrar the false impression that she had wrongly been placed on a 12-month good behaviour bond for an offence which she did not commit, namely, “taking Commonwealth cheques”. The Tribunal does not accept the applicant’s evidence that, in her statutory declarations, she was “not intentionally trying to mislead the Registrar” in relation to her criminal history.
35. As regards the contents of the applicant’s letter which was lodged with the Tribunal together with her Application for Review, the Tribunal does not accept the applicant’s evidence that her statement in that letter, namely, that she had “addressed the conviction to the best of [her] knowledge”, is true. The Tribunal, furthermore, does not accept the applicant’s evidence whereby she sought to explain her statements (in the second paragraph of that letter) regarding the offence of stealing cheques from the Commonwealth and the action of “intruders” in taking the cheques (see paragraph 21 above). Finally, the Tribunal does not accept the applicant’s evidence that her statement (in the final paragraph of that letter) that she had “never stolen and certainly not from the commonwealth” (sic) – which she appeared in her evidence to acknowledge was false – was not deliberately misleading. Indeed, the Tribunal would go so far as to say that, in its opinion, that statement was deliberately made by the applicant, knowing it to be false.
Conclusion
Is the Tribunal satisfied that the applicant is a fit and proper person to be a marriage celebrant?
36. The office of marriage celebrant under the Act is an important public office which entails significant legal obligations and responsibilities for persons holding that office. Furthermore, a marriage celebrant is authorised by the Act to perform a function which is of fundamental importance to the stability and wellbeing of Australian society, namely, the solemnization of marriage whereby individuals enter into a solemn and binding relationship involving important legal and social consequences for them. In the Tribunal’s opinion, significant matters to be considered, for the purposes of para (h) of s 39C(2) of the Act, in determining whether a person is a fit and proper person to hold the office of marriage celebrant under the Act include the character and integrity of that person.
37. In the present case the applicant was, on 13 June 2001, convicted of 3 offences involving dishonesty, namely, fraudulently misappropriating property (comprising 3 Australian Money Orders) belonging to a public authority under the Commonwealth, which were committed in the period May–July 1999. Clearly, those convictions reflected adversely upon the applicant’s character at that time. Although the applicant stated in her statement of evidence (at para 20):
“ With the benefit of hindsight I recognise completely that my actions were in the poorest judgment and as a result of those actions I have forever lost my good character …”
the Tribunal notes that, notwithstanding the abovementioned convictions, it would have been possible for the applicant to have demonstrated by her conduct over a subsequent appropriate period of time that she had rehabilitated herself and re-established her good character.
38. There is evidence before the Tribunal regarding the applicant’s voluntary community work, her good standing in the local community, and her employment as an Assistant in Nursing, in the period November 2002 – February 2009 (referred to in paragraph 22 above), which goes some way towards demonstrating that the applicant was in the process of rehabilitating herself and re-establishing her good character. On the other hand, however, the conduct of the applicant in connection with both her application for registration as a marriage celebrant and her subsequent application to the Tribunal for review of the Registrar’s adverse decision, in the opinion of the Tribunal, again calls her character into question. That conduct has been discussed in paragraphs 30–32 above. Likewise, the Tribunal has, in paragraphs 33–35 above, commented adversely on the evidence which the applicant gave (on affirmation) at the hearing of this matter and, in the Tribunal’s opinion, her conduct in giving that evidence reflects very poorly on her character.
39. Having regard to all the matters discussed in paragraphs 27–38 above, the Tribunal is, on balance, not satisfied that the applicant is a fit and proper person to be a marriage celebrant, for the purposes of s 39C(1)(c) of the Act. In the Tribunal’s opinion the applicant has demonstrated, by her abovementioned conduct in connection with:
· her application for registration as a marriage celebrant,
· her application to the Tribunal for review, and
· her evidence at the hearing before the Tribunal,
that she lacks the good character and integrity which, in the Tribunal’s opinion, are required, and which members of the public are entitled to expect, of a person holding the office of marriage celebrant under the Act. In the Tribunal’s assessment, that consideration outweighs the matters referred to in paras (a) – (c) and (e) – (g) of s 39C(2) of the Act and militates decisively against the conclusion that the applicant is a fit and proper person to be entrusted with the responsibilities, to discharge the obligations and to perform the functions and duties, of a marriage celebrant registered under the Act.
The applicant is not entitled to be registered as a marriage celebrant
40. The Tribunal concludes, therefore, that the applicant does not meet the requirement of para (c) of s 39C(1) of the Act and that, accordingly, pursuant to that subsection, she is not entitled to be registered as a marriage celebrant.
The applicant must not be registered as a marriage celebrant
41. Pursuant to s 39D(4) of the Act, it follows from the Tribunal’s conclusion that the applicant is not entitled to be registered as a marriage celebrant that her application for such registration must not be granted.
Decision
42. For the above reasons the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ................[sgd D Brodie]........................
Associate
Date of Hearing 15 June 2009
Date of Decision 15 July 2009
Counsel for the Applicant Mr B Mahon
Solicitor for the Applicant Equity Legal
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
2
1
0