EXPLANATORY STATEMENT
Marriage (Celebrant Fees) Determination 2014
The Marriage (Celebrant Fees) Determination 2014 is made by the Attorney-General under regulations 37HB, 37JD and 37MC of the Marriage Regulations 1963 (the Regulations).
The instrument determines the fees payable for the purposes of the Regulations. The Determination does not list those matters for which a levy is charged.
Background
The Marriage Act 1961 (the Act) establishes categories of authorised celebrants who are able to solemnise marriages in Australia, including celebrants authorised under Part IV, Division 1, Subdivision C of the Act (marriage celebrants). This group includes civil celebrants and celebrants who are ministers of certain religious organisations. Marriage celebrants must be registered by the Registrar of Marriage Celebrants before they are authorised to solemnise marriages in Australia.
The Act provides for fees to be imposed on aspiring marriage celebrants when applying for registration to allow for improved scrutiny to applicants prior to registration. Aspiring and existing marriage celebrants who are seeking exemptions from relevant requirements may also be charged fees to cover the cost to the Attorney-General’s Department (the department) in processing these applications. These fees are determined on a cost recovery basis.
The Marriage (Celebrant Registration Charge) Act 2014 provides legislative authority for the Government to charge marriage celebrants an annual cost recovery levy to enable the department to regulate marriage celebrants.
A Cost Recovery Implementation Statement (CRIS) was developed in compliance with the Australian Government Cost Recovery Guidelines and is available on the department’s website (www.ag.gov.au). The fees set out in this determination are derived from that CRIS. The fees have been accurately linked to the estimated cost of performing the function, including both direct and indirect costs, and the cost of collecting the proposed fees and charges will be administratively efficient.
Notes on Sections
Section 1 – Name of determination
Section 1 provides for the citation of the determination as the Marriage (Celebrant Fees) Determination 2014.
Section 2 – Commencement
This section provides that the determination commences on 1 July 2014.
Section 3 – Authority
This section provides that the authority for making the determination is the Marriage Regulations 1963
Section 4 - Definition
This section provides that the definition of ‘Marriage Regulations’ in the determination is the Marriage Regulations 1963.
Section 5 – Registration application fee
In order to be registered as a marriage celebrant under the Act, a person must pay a registration application fee or obtain an exemption from paying the fee (subsections 39D(1A) and (1B)). The registration application fee may be specified in the Regulations (subsection 39D(1D)) or by legislative instrument determined by the Minister (subregulation 37HB(1)).
This section provides that, for the purposes of subregulation 37HB(1) of the Regulations, the registration application fee is $600.
Section 6 – Registration exemption application fee
Exemptions from liability to pay a registration application fee are provided for in the Act (paragraph 39D(1C)(a)) and the Regulations (regulation 37HA). Exemptions may be granted where the applicant resides in a remote area where there is not more than one other marriage celebrant residing in that area.
A fee may be required to be paid in respect of such exemptions (paragraph 39D(1C)(b) of the Act). The registration exemption fee may be specified in the Regulations or by legislative instrument determined by the Minister (subsection 39(1D) of the Act and subregulation 37HB(2) of the Regulations).
This section provides that, for the purposes of subregulation 37HB(2), the registration exemption application fee is $30.
Section 7 – Charge exemption application fee
The Act requires marriage celebrants to pay a celebrant registration change on an annual basis (subsection 39FA(1)) in order to remain registered. The following exemptions from liability to pay the celebrant registration charge are provided for in the Regulations:
- the marriage celebrant lives in a remote area with not more than two marriage celebrants living in the same area (including the celebrant who is seeking an exemption) (subregulation 37JC(2))
- the marriage celebrant will not be a resident of Australia at any time during the financial year (subregulation 37JC(3)(a)), or
- the marriage celebrant will be unable to perform as a marriage celebrant for at least six months of the financial year due to serious illness or caring responsibilities (subregulation 37(3)(b)).
The Minister may determine, by legislative instrument, the fee payable for an application for an exemption from liability to pay the celebrant registration charge (regulation 37JD).
This section provides that, for the purposes of regulation 37JD, the charge exemption application fee is $30.
Section 8 – Professional development exemption application fee
Marriage celebrants are required to undertake a specified number of professional development activities each year (paragraph 39G(1)(b) of the Act and regulation 37M of the Regulations) unless they are granted an exemption (subregulation 37M(6)(b)). Exemptions may be granted where:
- any professional development activity within the financial year is not feasible in light of the marriage celebrant’s date of registration (subregulation 37M(6)(b)(i), or
- exceptional circumstances exist (subregulations 37M(6)(b)(ii) and 37M(7)).
A fee may be paid if a marriage celebrant applies for an exemption from their professional development obligations (regulation 37MC). The fee may be specified in the Regulations or by the Minister by legislative instrument (subsection 39G(2) of the Act and regulation 37MC of the Regulations).
This section provides that, for the purposes of regulation 37MC, the professional development exemption application fee is $30.
Consultation
A formal consultation process was undertaken between the department, marriage celebrants and other stakeholders, including the Department of Finance. Feedback from these consultations informed the development of the CRIS and the legislation implementing the cost recovery arrangements.
Regulation Impact Statement
A Regulation Impact Statement has also been prepared and is available on the Office of Best Practice Regulation’s website (http://ris.dpmc.gov.au/).
A Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is provided at Attachment A to this Explanatory Statement.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Marriage (Celebrant Fees) Determination 2014
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
This Legislative Instrument sets a fee of $600 for aspiring marriage celebrants seeking registration under Part IV, Division 1, Subdivision C of the Marriage Act 1963 (the Marriage Act). It also sets a fee of $30 for aspiring marriage celebrants seeking an exemption from liability to pay the registration application fee.
The Legislative Instrument also sets a fee of $30 for existing marriage celebrants seeking an exemption from meeting their professional development obligations, as required by the Marriage Regulations 1963 (the Marriage Regulations).
The Legislative Instrument also sets a fee of $30 for aspiring and existing marriage celebrants seeking an exemption from liability to pay the celebrant registration charge provided for in the Marriage (Celebrant Registration Charge) Act 2014 and the Marriage Regulations.
Prior to the introduction of the fees set out above, there was no requirement to pay fees when applying to become registered as a marriage celebrant or when applying for an exemption from professional development obligations. The purpose of these fees is to recover the Attorney-General’s Department’s service delivery and regulatory costs of assessing applications from aspiring and existing marriage celebrants. Marriage celebrants will continue to be able to charge marrying couples for their professional services.
Human rights implications
Rights to work and rights in work
The Legislative Instrument engages the right to work set out in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by placing additional limits on registration as a marriage celebrant by requiring payment of fees to recover regulatory costs from those who receive the benefit of registration.
Article 6 of ICESCR provides that the right to work includes the right of everyone to the opportunity to gain a living by work which he or she freely chooses or accepts. The right also encompasses the right not to be unjustly deprived of work.
However, the right to work in article 6 of ICESCR does not equate to a guarantee of full employment. Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. The UN Committee on Economic, Social and Cultural Rights has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review.
The Legislative Instrument limits the right to work by providing that a fee must be paid before a person can be registered as a marriage celebrant under Part IV, Division 1, Subdivision C of the Marriage Act. Exemptions may be sought from the requirement to pay this registration application fee. An aspiring marriage celebrant must pay a nominal fee in order to apply for an exemption.
Marriage celebrants perform an important role that carries significant legal responsibilities. A key part of upholding the institution of marriage is to ensure that marriage celebrants undertake their role professionally and in accordance with relevant standards and legal obligations. The limitation on the right to work imposed by this Legislative Instrument is intended to ensure that the Attorney-General’s Department has sufficient resources to apply scrutiny to applications for persons to be registered as marriage celebrants and to ensure marriage celebrants are complying with their ongoing professional development requirements.
The implementation of fees through the Legislative Instrument is necessary to achieve the legitimate objectives of ensuring that marriage celebrants are appropriately regulated in order to support the institution of marriage in Australia. The fees determined by the Legislative Instrument have been developed using the Australian Government’s Cost Recovery Guidelines and have been designed to ensure that only the efficient costs of regulating marriage celebrants are passed on through the fees. In addition, exemptions are available from liability to pay the fees in limited circumstances.
The Legislative Instrument does not engage Article 7 of ICESCR concerning the right to enjoyment of just and favourable conditions of work, including remuneration.
Right to respect for the family
The Legislative Instrument promotes the right to respect for the family set out in Article 23 of the International Covenant on Civil and Political Rights. The right to respect for the family includes the right of men and women of marriageable age to marry.
The determination of fees through this Legislative Instrument will ensure that marriage celebrants in Australia are scrutinised prior to appointment and undertake their role in accordance with relevant standards and legal obligations. This ensures that marrying couples are provided with professional services that result in valid marriages, thereby supporting respect for the family.
Conclusion
This Determination is compatible with the human rights because it advances the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.