Commonwealth Numbered Regulations - Explanatory Statements
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MARRIAGE AMENDMENT (2015 MEASURES NO. 1) REGULATION 2015 (SLI NO 82 OF 2015)
EXPLANATORY STATEMENT
Select Legislative Instrument No. 82, 2015
Issued by the authority of the Attorney-General
Marriage Act 1961
Marriage Amendment (2015 Measures No. 1) Regulation 2015
Section 120 of the Marriage Act 1961 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that the Act requires or permits to be prescribed or are necessary or convenient to be prescribed for carrying out and giving effect to the Act.
The purpose of the Regulation is to amend the Marriage Regulations 1963 (the Principal Regulations) to address issues arising from the introduction in 2014 of the annual celebrant registration charge and registration application fee (cost recovered), as well as issues relating to the effective handling of complaints about the solemnisation of marriages. The Regulation will:
* remove the requirement for express consent to use a marriage celebrant's email address when distributing notices under subsection 39FA(2) and 39FB1 of the Act.
* extend the timeframe in which an application for exemption from the celebrant registration charge may be submitted to 21 days from the day on which the notice under subsection 39FA(2) of the Act is sent.
* require the Registrar of Marriage Celebrants to grant an exemption from the celebrant registration charge for the year in which the marriage celebrant was registered where the marriage celebrant was granted an exemption from the application registration fee and that application led to their registration.
* allow the Registrar of Marriage Celebrants to decide not to deal with a complaint at any point in the complaint resolution procedure, and require the Registrar to advise the complainant of this decision.
* require that a complaint state that the complainant consents to the marriage celebrant to which the complaint relates being notified and given a copy of the complaint.
* provide the Registrar of Marriage Celebrants with a discretion to determine not to provide a marriage celebrant's response to a complaint to the complainant.
The Attorney-General's Department (the Department) consulted with seventeen celebrant associations on the amendments. Six of these celebrant associations made submissions on the amendments, which were considered by the Department.
The Office of Best Practice Regulation was consulted about the Regulation and advised that a Regulatory Impact Statement is not necessary, as the amendments are minor or machinery in nature.
Details of the Regulation are set out in the Attachment.
The Regulation 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.
This Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation will commence on 1 July 2015.
Authority: Section 120 of the Marriage Act 1961.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Marriage Amendment (2015 Measures No. 1) Regulation 2015
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 Regulation
The Regulation will amend the Marriage Regulations 1963 (the Principal Regulations) by addressing issues arising from the introduction in 2014 of the annual celebrants registration charge and registration application fee (cost recovered), as well as issues relating to the effective handling of complaints about the solemnisation of marriages.
Human rights implications
The Regulation does not engage any of the applicable rights or freedoms.
Conclusion
This Regulation is compatible with human rights as it does not raise any human rights issues.
Attorney-General Senator the Hon George Brandis QC
ATTACHMENT
Details of the proposed Marriage Amendment (2015 Measures No. 1) Regulation 2015
Regulation 1 - Name of Regulation
This section provides that the title of the Regulation is the Marriage Amendment (2015 Measures No. 1) Regulation 2015.
Regulation 2 - Commencement
This section specifies that the Regulation commences on 1 July 2015. Commencing on this date provides the Attorney-General's Department (the department) with sufficient time to make the necessary administrative changes to the Marriage Celebrants Programme to implement the amendments for the issuing of notices concerning the 2015-16 celebrant registration charge.
The department administers the Marriage Celebrants Programme under Subdivision C, Division 1, Part IV of the Marriage Act 1961 (the Act) and Division 1A, Part III of the Marriage Regulations 1963 (the Principal Regulations).
Regulation 3 - Authority
This section provides that the Regulation is made under the Marriage Act 1961.
Regulation 4 - Schedules
This section provides that each instrument set out in a Schedule to the Regulation is amended or repealed as set out in the Schedule.
Schedule 1 - Amendments
Schedule 1 provides that its amendments are to the Marriage Regulations 1963 (the Principal Regulations).
Item [1] - Subparagraph 37G(1)(a)(i)
This item amends subparagraph 37G(1)(a)(i) by replacing the term 'Registrar' with the term 'Registrar of Marriage Celebrants'. This change makes the provision consistent with the remainder of the Principal Regulations.
Item [2] - At the end of subregulation 37HA(1)
This item adds a note at the end of subregulation 37HA(1).
Subregulation 37HA(1) outlines when the Registrar of Marriage Celebrants may grant an exemption from the registration application fee. The note explains that where this exemption is granted, if the application leads to the person being registered as a marriage celebrant, then the person must be granted an exemption from liability to pay the celebrant registration charge for the year in which they were registered under new subregulation 37JAA (see item 9 below).
Item [3] - Regulation 37J (heading)
This item repeals and replaces the current heading of regulation 37J, in order to better reflect the contents of the regulation.
Item [4] - Subregulation 37J(2)
This item makes a consequential amendment to subregulation 37J(2).
Item 6 introduces a new subregulation 37J(2A). The amendment to subregulation 37J(2) makes clear that where new subregulation 37J(2A) applies, a notice does not need to comply with subregulation 37J(2).
Item [5] - Paragraph 37J(2)(d)
This item makes a consequential amendment to paragraph 37J(2)(d) due to more substantive amendments to paragraph 37JB(2)(a) (see item 11 below).
Subregulation 37J(2) outlines what statements must be included in a notice to a marriage celebrant under subsection 39FA(2) of the Act. Paragraph 37J(2)(d) specifies that the notice must state that the marriage celebrant must apply for an exemption no later than 14 days after the day the notice is sent. This item omits the reference to 14 days and inserts a reference to 21 days, consistent with the amendments to paragraph 37JB(2)(a) (which increases the timeframe in which an application could be made from 14 to 21 days - see item 11).
Item [6] - Subregulation 37J(3)
This item repeals the existing subregulation 37J(3) and inserts new subregulations 37J(2A) and 37J(3).
Subsection 39FA(2) of the Act requires the Registrar of Marriage Celebrants to send a notice to each marriage celebrant on 1 July of each financial year, specifying the celebrant registration charge amount and the charge payment day by which the amount must be paid. The notice must also comply with any other requirements prescribed by regulations.
Subregulation 37J(2) outlines what must be included in a notice about the celebrant registration charge under subsection 39FA(2) of the Act. Under the Act, the Registrar is required to send the notice regardless of whether a marriage celebrant has been granted an exemption. New subregulation 37JAA (see item 9 below) introduces an automatic exemption for certain celebrants from the celebrant registration charge. Where a marriage celebrant has this automatic exemption it would be superfluous to include the information required by subregulation 37J(2) in the notice. New subregulation 37J(2A) makes clear that the information outlined in subregulation 37J(2) does not need to be included in a notice being sent to a marriage celebrant who has received an exemption under new subregulation 37JAA.
Subregulation 37J(3) sets out how the Registrar must send a notice under subsection 39FA(2) of the Act to a marriage celebrant - to the marriage celebrant's principal residential address, postal address (if this differs from the residential address) or email address. Currently, paragraph 37J(3)(c) requires the department to seek the express consent of each marriage celebrant in order to send a celebrant registration charge notice to the marriage celebrant's email address. In 2014, the department distributed 7,203 notices (70% of all invoices) by post. The new subregulation 37J(3) makes email the default method for distributing these notices, by allowing the department to infer from a celebrant's conduct that they have consented to receiving communications by email (such conduct would include providing the department with an email address as part of a celebrant's contact details). Inferring consent in this manner is consistent with the Electronic Transactions Act 1999, which continues to apply where the Registrar sends a notice under subsection 39FA(2) to a marriage celebrant's email address. The amendment also improves the department's efficiency in managing the Marriage Celebrants Programme.
Where a marriage celebrant does not have an email address, or the department cannot infer consent to send a notice under subsection 39FA(2) to a marriage celebrant's email address, the notice will be sent to either the marriage celebrant's principal residential address or postal address (if this differs from the residential address).
Item [7] - Regulation 37JA (heading)
This item repeals and replaces the current heading of regulation 37JA, in order to better reflect the contents of the regulation.
Item [8] - Subregulation 37JA(3)
This item repeals the existing subregulation 37JA(3) and inserts a new subregulation.
Where a person received a notice about a celebrant registration charge, and has not paid the charge by the charge payment day, the Registrar of Marriage Celebrants must send a notice to that person as soon as practicable after the charge payment day advising the person that they have failed to pay the charge and specifying the date on which the person will be deregistered (subsections 39FB(1) and (2) of the Act). The notice must also comply with any other requirements prescribed by regulations, including requirements relating to how the notice is sent (paragraph 39FB(2)(b) of the Act).
Subregulation 37JA(3) sets out how the Registrar must send a notice under section 39FB(1) of the Act to a marriage celebrant - to the marriage celebrant's principal residential address, postal address (if this differs from the residential address) or email address. Currently, paragraph 37JA(3)(c) requires the department to seek the express consent of each marriage celebrant in order to send a notice to the marriage celebrant's email address regarding the deregistration of the marriage celebrant due to failure to pay the annual celebrant registration charge. The new subregulation 37JA(3) makes email the default method by which these notices are distributed, by allowing the department to infer from a celebrant's conduct that they have consented to receiving communications by email (such conduct would include providing the department with an email address as part of a celebrant's contact details). Inferring consent in this manner is consistent with the Electronic Transactions Act 1999, which continues to apply where the Registrar sends a notice under subsection 39FB(1) to a marriage celebrant's email address. This also improves the department's efficiency in managing the Marriage Celebrants Programme.
Where a marriage celebrant does not have an email address, or the department cannot infer consent to send a notice under subsection 39FB(1) to a marriage celebrant's email address, the notice will be sent to either the marriage celebrant's principal residential address or postal address (if this differs from the residential address).
Item [9] - After regulation 37JA
This item inserts a new regulation 37JAA, providing that the Registrar of Marriage Celebrants must grant an exemption from the celebrant registration charge for the year in which the marriage celebrant was registered where the marriage celebrant was granted an exemption from the application registration fee and that application led to their registration.
Regulations may provide for the granting of exemptions from the registration application fee (paragraph 39D(1C)(a) of the Act) and the celebrant registration charge in respect of a financial year (paragraph 39FA(3)(a) of the Act). Regulations 37H and 37JB respectively set out application processes for exemptions from the registration application fee and the celebrant registration charge.
The combined effect of regulations 37H and 37JB is that where a person is granted an exemption from paying the registration application fee, and becomes registered as a marriage celebrant, if they wish to also be exempt from the celebrant registration charge they are required to submit another application and pay another application fee upon receiving a notice about the charge. As the application for exemption from the celebrant registration charge is likely to be on the same grounds (residence in a remote area) upon which the exemption from the registration application fee was granted, this means that the marriage celebrant is required to pay two application fees and they and the department are duplicating effort and work in collating, submitting and reviewing the same or similar evidence.
The new regulation 37JAA addresses this issue by providing that the Registrar must grant an exemption from the celebrant registration charge on the basis of remoteness for the year in which the marriage celebrant was registered where the marriage celebrant was granted an exemption from the application registration fee and that application led to their registration. No application will be required for the Registrar to grant this exemption. For each subsequent year, the celebrant will need to make a new application and pay the appropriate application fee.
Item [10] - Regulation 37JB (heading)
This item repeals and replaces the current heading of regulation 37JB, in order to better reflect the contents of the regulation.
Item [11] - Paragraph 37JB(2)(a)
This item amends paragraph 37JB(2)(a), by removing the reference to 14 days and inserting a reference to 21 days.
Paragraph 37JB(2)(a) requires that an application for exemption from the celebrant registration charge must be made no later than 14 days after the day on which the notice is sent under subsection 39FA(2) of the Act (a notice specifying the celebrant registration charge amount and the charge payment day by which the amount must be paid). The proposed amendment would increase the timeframe in which an application may be submitted to 21 days.
This amendment addresses the concern raised by celebrant associations that the timeframe to submit an application is too short.
Item [12] - Regulation 37JC (heading)
This item repeals and replaces the current heading of regulation 37JC, in order to better reflect the contents of the regulation.
Item [13] - Subregulation 37JC(1)
This item amends subregulation 37JC(1) by replacing the term 'Registrar' with the term 'Registrar of Marriage Celebrants'. This change makes the provision consistent with the remainder of the Principal Regulations.
Item [14] - Regulation 37JD (heading)
This item repeals and replaces the current heading of regulation 37JD, in order to better reflect the contents of the regulation.
Item [15] - At the end of subregulation 37S(2)
This item adds a new paragraph 37S(2)(e), requiring a complaint to state that the complainant consents to the relevant marriage celebrant being notified of the complaint and provided with a copy of the complaint.
Under subregulation 37U(3), the Registrar of Marriage Celebrants must not deal with a complaint where the complainant has not consented to the relevant celebrant being provided with information about the complaint. However, the current complaint resolution procedure requires the Registrar to undertake a preliminary assessment to determine whether a complaint should be dealt with before seeking the complainant's consent to discuss the complaint with the marriage celebrant (paragraph 37U(1)(d)). This delay in obtaining consent creates inefficiencies where, after the Registrar determines a complaint should be dealt with, the complainant refuses to give their consent to it being discussed with the marriage celebrant, thus preventing the Registrar from dealing with the complaint. Adding new paragraph 37S(2)(e) means that the complainant's consent is sought at the outset of the complaints process. If the complainant's consent is not provided, the complaint will not be valid and the Registrar will not be required to deal with the complaint. This creates efficiencies in the complaints-handling process and also reflects the department's current administrative practice of requesting consent at the outset of a complaint being made.
Item [16] - Paragraph 37U(1)(c)
This item makes a consequential amendment to paragraph 37U(1)(c), due to more substantive amendments to subregulation 37U(1) (see item 17 below) repealing paragraphs 37U(1)(d) and (e), thus making paragraph 37U(1)(c) the last paragraph in the subregulation.
Item [17] - Paragraphs 37U(1)(d) and (e)
This item repeals paragraphs 37U(1)(d) and (e).
Paragraphs 37U(1)(d) and (e) respectively outline the current requirement to obtain a complainant's consent to the relevant marriage celebrant being notified of the complaint and provided with a copy of the complaint and specify that the Registrar cannot deal with a complaint without this consent. These paragraphs will be made obsolete by new paragraph 37S(2)(e) (see item 13 above), which requires the complainant's consent to be provided at the onset of the complaints process.
Item [18] - Subregulation 37U(3)
This item repeals subregulation 37U(3).
Subregulation 37U(3) indicates that the Registrar must not deal with a complaint if the complainant does not consent to the relevant marriage celebrant being apprised of the complaint and provided with a copy of the complaint in accordance with paragraph 37U(1)(d). This subregualtion will be made obsolete by new paragraph 37S(2)(e) (see item 15 above), which requires the complainant's consent to be provided at the onset of the complaints process. The Registrar will not be required to deal with the complaint if the complainant's consent is not provided, as the complaint will not be valid.
Item [19] - Subregulation 37U(4)
This item makes a consequential amendment to subregulation 37U(4) due to more substantive amendments to subregulation 37U(1) (see item 17 above).
Currently, the actions the Registrar of Marriage Celebrants under subregulation 37U(4) must be performed as soon as practicable after receiving a statement of consent from a complainant under paragraph 37U(1)(d). As paragraph 37U(1)(d) will be repealed by item 17 above, this amendment will omit the reference to paragraph 37U(1)(d) in subregulation 37U(4), and insert a reference to paragraph 37U(1)(a) to act as the trigger for the Registrar's obligations under subregulation 37U(4). The timeframes in both paragraphs 37U(1)(d) and 37U(1)(a) are the same (21 days from the date of a notice given to a complainant under subregulation 37U(1)).
Item [20] - Subparagraph 37U(4)(a)(iii)
This item amends subparagraph 37U(4)(a)(iii), by giving the Registrar of Marriage Celebrants a discretion to decide whether to provide a copy of a marriage celebrant's response to a complaint to the complainant.
Currently, subregulation 37U(4) implies that there is a mandatory obligation on the Registrar to provide any response and supporting material provided by a marriage celebrant in relation to a complaint to the complainant. The amendment means that the Registrar can consider the appropriateness of providing the celebrant's response to the complainant, for example where a response or supporting material may be inflammatory, or contains sensitive or personal information.
Item [21] - At the end of regulation 37U
This item adds new subregulations 37U(7) and (8).
New subregulation 37(U) allows the Registrar of Marriage Celebrants to decide not to continue to deal with a complaint at any point during the complaints process. The grounds upon which the Registrar would make this decision are those grounds outlined in paragraphs 37T(2)(c) to (e) of the Principal Regulations. This means that the Registrar can choose to stop dealing with a complaint if, during the complaints process, the marriage celebrant or complainant provides information or material which would have caused the Registrar to decide not to deal with the complaint if it had been provided at the commencement of the process.
New subregulation 37U(8) requires the Registrar to issue a written notice to a complainant advising of their decision to cease to deal with a complaint under subregulation 37U(7). Where a complaint has been raised with a marriage celebrant, the Registrar must also issue the written notice to the marriage celebrant.
Item [22] - At the end of regulation 37Z
This item adds a new paragraph 37Z(j), to apply record-keeping obligations to written notices issued under new subregulation 37U(8) (see item 21 above).
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