Rona Goold
Civil Celebrations Advocate
What are "authorised" marriage celebrants?
There are 4 different types of Authorised Marriage Celebrants under Division 1 of the Australian Marriage Act 1961. Currently these
"(1) Subject to this Part, a marriage between parties of whom one at least is a member of the Defence Force may be solemnized in an overseas country by or in the presence of a chaplain."
It could be that this section of the Act is unconstitutional because there is a religious test for this "public trust under the Commonwealth, and no alternative way to be a chaplain. However, Senator Dean Smith's Bill aims to correct that aspect of the Marriage Act with 37 amendments from No 27 Section 74 (heading) to Number 62 Paragraph 119(3)f.
Who are civil marriage celebrants?
Civil Celebrations Advocate
What are "authorised" marriage celebrants?
There are 4 different types of Authorised Marriage Celebrants under Division 1 of the Australian Marriage Act 1961. Currently these
- Division 1—Subdivision A--Ministers of recognised religions - regulated by State/ Territory Registrars of Births, Deaths and Marriages.
- Division 1—Subdivision B--State and Territory officers - regulated by State/ Territory Registrars of Births, Deaths and Marriages.
- Division 1—Subdivision C—Marriage celebrants - Independent civil marriage celebrants and non-aligned religious organisations marriage celebrants - regulated the Commonwealth Registrars of Marriage Celebrants.
"(1) Subject to this Part, a marriage between parties of whom one at least is a member of the Defence Force may be solemnized in an overseas country by or in the presence of a chaplain."
It could be that this section of the Act is unconstitutional because there is a religious test for this "public trust under the Commonwealth, and no alternative way to be a chaplain. However, Senator Dean Smith's Bill aims to correct that aspect of the Marriage Act with 37 amendments from No 27 Section 74 (heading) to Number 62 Paragraph 119(3)f.
Who are civil marriage celebrants?
- Division 1—Subdivision B State and Territory officers are authorised to marry couples in civil ceremonies trough local courts and Registry Offices.
These marriage celebrants are Public Servants of the State and Territory government by whom they are employed. - Division 1—Subdivision C—Marriage celebrants - Independent civil marriage celebrants are authorised to marry couples in civil ceremonies, as are other marriage celebrants, to marry couples in civil ceremonies at any time and day of the year at a place within Australia at a place as negotiated with the marriage celebrant.
As private citizens or residents of Australia, independent civil marriage celebrants individually carry an authorisation to marry couples according to Australian law. This is a truly unique, privileged position and a world first.
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"My view as an academic is that it seems that there are multiple routes by which a person can become an "authorised celebrant" under the Marriage Act 1961. I think an "authorised celebrant" is likely to be an "office or public trust under the Commonwealth". However, I doubt that a religious test is required for the position of authorised celebrant. One route for becoming an authorised celebrant requires that a person be a minister of religion; and that, in my view, amounts to a religious test. But, importantly, the fact that other routes for becoming an authorised have nothing to do with religion means that person is not required to satisfy a religious test in order to become an authorised celebrant. On this basis I don't think there is any breach of the religious tests clause of section 116 of the Constitution."
See below for details of Section 116 of the Australian Constitution. |
That marriage celebrants have, in relation to Section 116 of the Constitution, noted in 1995 by Professor Michael Pryles, a renowned constitutional lawyer (Minter Ellison Morris Fletcher), as follows:
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As a civil or religious authorised celebrant the person does hold a position of duty, trust and authority. A position which the government authorises and advertises to the public through the publication of 2 lists of names of authorised celebrants.
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This proposition is supported by the Thirtieth report of Parliamentary Joint Committee on Human Rights**, when commenting on Marriage Legislation Amendment Bill 2015, Section 1.513 stated:
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"It should be noted in the Australian context that civil celebrants, acting under the Marriage Act, are performing the role of the state in solemnising marriages. It is irrelevant to this analysis that civil celebrants are not directly employed by the state. Further, nothing in the bill affects the body of existing anti-discrimination law provisions which prohibit persons who provide goods or services to the public from discriminating against persons on the basis of their sexual orientation."
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What are civil marriage celebrants?
The Civil Marriage Celebrant Program was brought into being in 1973 to provide dignified and meaningful marriage ceremonies tailored to the couple's ethical beliefs and values by an independent civil celebrant, as an alternative option to church and registry office ceremonies.
Civil marriage celebrants are not civil, because they do many weddings in parks and gardens, and not in churches.
Marriage celebrants are given the title "Civi" marriage celebrants because they solemnise a marriage according to civil law under the Marriage Act 1961.
Civil celebrants may include some religious material if, and only if, requested by the couple, and the inclusion does not break copyright laws.
The Civil Marriage Celebrant Program was brought into being in 1973 to provide dignified and meaningful marriage ceremonies tailored to the couple's ethical beliefs and values by an independent civil celebrant, as an alternative option to church and registry office ceremonies.
Civil marriage celebrants are not civil, because they do many weddings in parks and gardens, and not in churches.
Marriage celebrants are given the title "Civi" marriage celebrants because they solemnise a marriage according to civil law under the Marriage Act 1961.
Civil celebrants may include some religious material if, and only if, requested by the couple, and the inclusion does not break copyright laws.
Are independent marriage celebrants just "businesses" because they are recompensed for their services?
My position is NO - that taking a fee for a service, does not automatically define someone as "a business', even though the Australian Taxation Office may treat the individual as a Sole Trader for the purposes of taxation.
For example, when a person of specific knowledge and skill is engaged by the Commonwealth to sit on a Royal Commission and recompensed for their time and skill, they would not be considered a person who is there to "make a profit or business" out of their role. Their brief would be to advise government on the issues involved in the matter and make recommendations for the common good. That is why we have governments in a democracy and pay taxes for those services to be done on our behalf as citizens and residents of a state or country.
So, whilst marriage celebrants may be professionals employed by the churches or state courts and registry offers or self-employed as "professionals in private practice", it is the expected that their duty to the Commonwealth be discharged for the public good by the exercising their ethical commitment in conjunction with their recompense for their work, where there may be competing interests that their Commonwealth duties take precedence personal monetary and other interests.
That is why Sections 31 and 33 aim to prohibit Recognised Religious Celebrants "from making a profit or a business of " being a marriage celebrant.
Likewise Section 39 has provisions related to conflict of interest and benefit to business to ensure that Commonwealth independent celebrants put their duty to the state above personal interest.
My position is NO - that taking a fee for a service, does not automatically define someone as "a business', even though the Australian Taxation Office may treat the individual as a Sole Trader for the purposes of taxation.
For example, when a person of specific knowledge and skill is engaged by the Commonwealth to sit on a Royal Commission and recompensed for their time and skill, they would not be considered a person who is there to "make a profit or business" out of their role. Their brief would be to advise government on the issues involved in the matter and make recommendations for the common good. That is why we have governments in a democracy and pay taxes for those services to be done on our behalf as citizens and residents of a state or country.
So, whilst marriage celebrants may be professionals employed by the churches or state courts and registry offers or self-employed as "professionals in private practice", it is the expected that their duty to the Commonwealth be discharged for the public good by the exercising their ethical commitment in conjunction with their recompense for their work, where there may be competing interests that their Commonwealth duties take precedence personal monetary and other interests.
That is why Sections 31 and 33 aim to prohibit Recognised Religious Celebrants "from making a profit or a business of " being a marriage celebrant.
Likewise Section 39 has provisions related to conflict of interest and benefit to business to ensure that Commonwealth independent celebrants put their duty to the state above personal interest.
Why do many civil celebrants think they are just businesses?
Because:
In the last 15 years, in my opinion, there has been a lot of mis-information about the status of Commonwealth authorised marriage celebrants.
This coincides with the introduction of a different system of authorisation of independent Commonwealth celebrants based on a 'professional model" of celebrancy. Authorisation based upon training qualifications, along with a Code of Practice, and maintained with annual professional development was included in the Marriage Act. The Act also created a new section of the Attorney-General's Department to oversight the basic regulation required for authorise celebrants and discipline those who did not meet their obligations under the Act.
Kym Duggan, a senior lawyer with the Attorney-Generals Department, who drafted the changes, explained to me that Ministers of Religions (Subdivision A marriage celebrants) were a profession and that this "professional model" was being applied to Commonwealth marriage celebrants. He was discussed the Law Society as a peak body for lawyers and explained that AG Darryl Williams has hopes that Commonwealth Marriage Celebrants associations would work together to form a peak body. The Explanatory Memorandum clearly outlines this option. It also clearly spells out the need for Conflict of Interest and Business to Business Provisions in Section 39 of the Act to uphold the “public trust” that Commonwealth Marriage Celebrants have, as do other authorised marriage celebrants..
In simple terms, a Profession is a Business with Ethics. The original professions - Ministry, Law and Medicine - had aims for the common good.
A business on the other hand has aims to create wealth for the owners and/or shareholders with the focus on "profit" whether the products and services are for the common good or not. A classic example is the tobacco industry. Of course, for most small businesses, the reality is that running a small business is simply an alternative form of employment (self-employment), rather than a "profit making venture. There are few profits i.e. income over and above an hourly wage equivalent and covering expenses.
Religious celebrants under the Act and State Officers (as public servants) would not see themselves as “businesses” rather as “professionals”.
Whilst the boundaries between professions and businesses are more blurred these days, there are significant differences.
Improved training is one of the ways, independent celebrancy can meet higher standard and delivers better services to the Australian community - not just in wedding ceremonies, but in other ceremonies as well. Likewise professional development programs,
There is a part that independent civil celebrants can play in the social and cultural life of Australia. Dally Messenger and I have been advocating seeing the Commonwealth Celebrant Program as broader than simply officiating at wedding ceremonies, to improve the health and wellbeing of community members.
The Commonwealth Celebrant Program could play an official role on behalf of civil government in:
Because:
- As noted above, they are treated as sole traders under Australian Taxation Laws, although the majority of Commonwealth marriage celebrants do not have a taxable income from wedding work
- When the training of independent celebrants first commenced in 2003, the Vocational Education and Training system was not well informed as to the role.
In the last 15 years, in my opinion, there has been a lot of mis-information about the status of Commonwealth authorised marriage celebrants.
This coincides with the introduction of a different system of authorisation of independent Commonwealth celebrants based on a 'professional model" of celebrancy. Authorisation based upon training qualifications, along with a Code of Practice, and maintained with annual professional development was included in the Marriage Act. The Act also created a new section of the Attorney-General's Department to oversight the basic regulation required for authorise celebrants and discipline those who did not meet their obligations under the Act.
Kym Duggan, a senior lawyer with the Attorney-Generals Department, who drafted the changes, explained to me that Ministers of Religions (Subdivision A marriage celebrants) were a profession and that this "professional model" was being applied to Commonwealth marriage celebrants. He was discussed the Law Society as a peak body for lawyers and explained that AG Darryl Williams has hopes that Commonwealth Marriage Celebrants associations would work together to form a peak body. The Explanatory Memorandum clearly outlines this option. It also clearly spells out the need for Conflict of Interest and Business to Business Provisions in Section 39 of the Act to uphold the “public trust” that Commonwealth Marriage Celebrants have, as do other authorised marriage celebrants..
In simple terms, a Profession is a Business with Ethics. The original professions - Ministry, Law and Medicine - had aims for the common good.
A business on the other hand has aims to create wealth for the owners and/or shareholders with the focus on "profit" whether the products and services are for the common good or not. A classic example is the tobacco industry. Of course, for most small businesses, the reality is that running a small business is simply an alternative form of employment (self-employment), rather than a "profit making venture. There are few profits i.e. income over and above an hourly wage equivalent and covering expenses.
Religious celebrants under the Act and State Officers (as public servants) would not see themselves as “businesses” rather as “professionals”.
Whilst the boundaries between professions and businesses are more blurred these days, there are significant differences.
Improved training is one of the ways, independent celebrancy can meet higher standard and delivers better services to the Australian community - not just in wedding ceremonies, but in other ceremonies as well. Likewise professional development programs,
There is a part that independent civil celebrants can play in the social and cultural life of Australia. Dally Messenger and I have been advocating seeing the Commonwealth Celebrant Program as broader than simply officiating at wedding ceremonies, to improve the health and wellbeing of community members.
The Commonwealth Celebrant Program could play an official role on behalf of civil government in:
- Coming of Adolescence
- Coming of Age for every 18 year old
- Citizenship for non-Australian born ceremonies
- Affirmation of Citizenship ceremonies
- ANZAC Day and Remembrance Day ceremonies
The Australian Constitution, the Marriage Act and Religion
My investigations were to understand why the authorisation of Subdivision A Ministers of Recognised Religions is not unconstitutional because there is a religious test for their authorisation.
The short answer appears to me a matter of words and numbering in the Act, rather than meeting the spirit of of Section 116.
In other words, if the Subdivision A Ministers of Religion were in a different part of Commonwealth Marriage Act, like the Defence Force Chaplains, to provide marriage services their authorisation would be un-constitutional since a religious text is required as a qualification.
My investigations were to understand why the authorisation of Subdivision A Ministers of Recognised Religions is not unconstitutional because there is a religious test for their authorisation.
The short answer appears to me a matter of words and numbering in the Act, rather than meeting the spirit of of Section 116.
In other words, if the Subdivision A Ministers of Religion were in a different part of Commonwealth Marriage Act, like the Defence Force Chaplains, to provide marriage services their authorisation would be un-constitutional since a religious text is required as a qualification.
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Section 116 of the Australian Constitution states:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” |
* The Constitution prohibits religious tests as a qualification for offices or public trusts under the Commonwealth.
Dr Luke Beck has written on 'The Constitutional Prohibition on Religious Tests' (2011) 35(2) Melbourne University Law Review 323:c Read here
Dr Luke Beck has written on 'The Constitutional Prohibition on Religious Tests' (2011) 35(2) Melbourne University Law Review 323:c Read here
** Parliamentary Joint Committee on Human Rights Human rights scrutiny report Thirtieth report of the 44th Parliament 10 November 2015 Comments on: Marriage Legislation Amendment Bill 2015