EXPLANATORY STATEMENT
Marriage (Celebrant Registration Charge) Determination 2014
The Marriage (Celebrant Registration Charge) Determination 2014 is made by the Attorney‑General under section 7 of the Marriage (Celebrant Registration Charge) Act 2014 (the Act). The instrument determines the charge payable for the purposes of the Act.
Background
The Marriage Act 1961 (the Marriage 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 Marriage 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 the Commonwealth to charge marriage celebrants an annual cost recovery levy known as the celebrant registration charge. The charge will be imposed on marriage celebrants registered on 1 July in a financial year and also on marriage celebrants first registered after 1 July in a financial year. The implementation of the celebrant registration charge will enable the Attorney-General’s Department to improve the services it delivers to marriage celebrants, while also better regulating those celebrants.
The Marriage Regulations 1963 provide for exemptions from liability to pay the celebrant registration charge where:
- the marriage celebrant lives in a remote area with not more than two other marriage celebrants living in the same area (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 37JC(3)(b)).
The consequence of non-payment of the celebrant registration charge is deregistration as a marriage celebrant (section 39FB of the Marriage Act).
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 charges set out in this determination are derived from that CRIS. The charges 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 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 Registration Charge) 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 subsection 7(1) of the Act.
Section 4 – Celebrant registration charge
The Minister may determine, by legislative instrument, the amount of celebrant registration charge payable by a person in respect of a financial year (subsection 7(1) of the Act). The determination may provide for different amounts of celebrant registration charge to be payable if a person becomes a marriage celebrant later than 1 July in a financial year (subsection 7(2) of the Act). The statutory limit on the celebrant registration charge is $600 for the 2014‑15 financial year (paragraph 8(1)(a) of the Act).
Subsection 4(a) of the determination provides that the amount of celebrant registration charge payable for a person who is a marriage celebrant on 1 July of a financial year is $240.
Subsection 4(b) of the determination provides that, if a person becomes a marriage celebrant after 1 July in a financial year, the celebrant registration charge is as follows:
- for a marriage celebrant registered between 2 July and 30 September - $240
- for a marriage celebrant registered between 1 October and 31 December - $180
- for a marriage celebrant registered between 1 January and 31 March - $120
- for a marriage celebrant registered between 1 April and 30 June - $60.
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/).
Statement of compatibility with human rights
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 Registration Charge) 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 charge of $240, payable annually, for marriage celebrants registered under Part IV, Division 1, Subdivision C of the Marriage Act 1963 on 1 July of a financial year.
The Legislative Instrument also provides that if a person becomes a marriage celebrant after 1 July in a financial year, the celebrant registration charge is reduced relative to the proportion of the year that they will be registered. In these circumstances, the celebrant registration charge is as follows:
- for a marriage celebrant registered between 1 July and 30 September - $240
- for a marriage celebrant registered between 1 October and 31 December - $180
- for a marriage celebrant registered between 1 January and 31 March - $120
- for a marriage celebrant registered between 1 April and 30 June - $60.
Exemptions from liability to pay the celebrant registration charge may be granted if a marriage celebrant lives in a remote area, will not be resident of Australia for a financial year or is unable to perform as a marriage celebrant for six months due to serious illness or caring responsibilities.
The consequence of non-payment of the celebrant registration charge is deregistration as a marriage celebrant.
Marriage celebrants will continue to be able to charge marrying couples for their professional services.
Extensive consultation has been since 2011 with marriage celebrants and other stakeholders. Feedback from these consultations informed the development of a cost recovery implementation statement and the legislation implementing the cost recovery arrangements.
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 an annual charge 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 an annual charge must be paid for a person to remain 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 the celebrant registration charge.
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 to regulating marriage celebrants, including monitoring performance of celebrants, handling enquiries, producing information material, administering the fees and charges and deregistering celebrants where appropriate.
The implementation of the celebrant registration charge 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 charge determined by the Legislative Instrument has been developed using the Australian Government’s Cost Recovery Guidelines and has been designed to ensure that only the efficient costs of regulating marriage celebrants is passed on through the charge. In addition, exemptions are available from liability to pay the charge in limited circumstances, including to ensure that marriage celebrant services remain accessible in remote areas of Australia.
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 imposition of a charge through this Legislative Instrument will ensure that marriage celebrants in Australia undertake their role in accordance with relevant standards and legal obligations and have access to improved services and regulation by the Attorney‑General’s Department. 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.