ICCA Recommendation 3: Marriage Act be reviewed and updated

Recommendation 3:

That Marriage Act be reviewed and updated to ensure that the Marriage Act 

i.    describes Subdivision C as Civil Marriage Celebrants in line with Subdivision D being described as 

      Religious  Marriage Celebrants, and that 

ii.  Section 39G (d) clarified as to “ whether the celebrant is a civil or religious marriage celebrant”.

3.1 Confusion about what a marriage celebrant is, as opposed to a religious marriage celebrant.

CoCA’s submission to CoCA Submission to the Select Committee on the Exposure Draft of the Marriage Amendment (Same Sex Marriage) Bill in January 2017 made recommendations with respect to the creation of a Subdivision D in the Marriage Act for

·       marriage celebrants for non-aligned religious currently with civil celebrants in Subdivision C, and

·       any exemptions, if deemed appropriate by parliament,  to be time-limited and those marriage
       celebrants included in Subdivision D.

The reasons for CoCA recommending the creation of Subdivision D were to:

    1. ensure the public had access to a significant proportion of marriage celebrants who  would not
        discriminate against them as discussed in Recommendation 2 above

    2. ensure there would be transparency for the Australian marrying public

        That is, the couple would know what type of marriage celebrant  they were potentially engaging,  and as
        a consequence whether there could be additional requirements made   of them (Section 47) and if they
       were a same gender couple, whether they could be refused a marriage ceremony on the basis of
        religious belief.

     3. reflect the strength of a Subdivision C marriage celebrant’s objection given that only 3% of those 1491 marriage
          celebrants who responded to CoCA’s national surveyed, sent to Survey of 6654 celebrants in 2015  stated they
          would need to resign should marriage equality become  law and no exemptions provided.

It was ICCA’s expectation that, the Marriage Law and Celebrant Section would include those celebrants who applied for an exemption on the basis of their personal religious beliefs, would include these celebrants in the section currently titled “Marriage celebrants conducting religious ceremonies for independent religious” by changing the title to “Religious marriage celebrants for independent religious organisations or individuals with religious beliefs” or words to that effect.

This expectation has not been met yet.  Instead those celebrants who are refusing to marry same gender couples are included in the List titled “Marriage celebrants conducting civil ceremonies”.

The ICCA considers this to be extremely confusing for the general public as there are some Subdivision A  ministers and Subdivision D marriage celebrants who are willing to marry same gender couples.

Some couples could reasonably assume that those “religious marriage celebrants” in the “civil ceremonies” list are willing to conduct same gender marriages, where in fact this is the opposite.

SubC MLCS list

The Marriage Law and Celebrants Section, who are responsible for regulating Subdivision C and D, obviously consider their role is to stick strictly to the wording of legislation rather than the spirit of the legislation, even though their ‘guidance’ is accompanied by a disclaimer. For example in the Marriage Celebrant Guidelines:

 “ The following material is provided on the understanding that the Attorney-General’s Department is not providing professional legal advice on any particular matter”.

As the staff of the Department are not marriage celebrants, nor educators/ trainers and do not conduct marriages, their advice can sometimes be more theoretical, than practical. The advice with respect to advertising is a point in question.  The “Guidelines on Advertising for Commonwealth -registered Marriage Celebrants” 14 state:

advertising guidelines

As a marriage celebrant can be civil or religious, just saying one is a “marriage celebrant” does not assist the public to know whether you are a religious one or not. Some of our civil celebrants members have already had queries from the public who are unsure about whether as a “Marriage Celebrant” we would refuse to marry them if they are a same gender couple.

So getting the legislation accurate from the marrying public’s point of view is essential if their human rights are to be upheld and respected.

3.2 Clarification of Commonwealth civil marriage celebrants and religious marriage celebrants

The ICCA understands that Senator Dean Smith’s Bill was intended make minimal changes the Marriage Act 1961 whilst enabling exemptions for current civil celebrants on the basis of religious conscience.

Rather than repeating Sections 30DA to 39DE were added as follows:

Subdivision D—Religious marriage celebrants                                                                      

39DA...... Entitlement to be identified as a religious marriage celebrant on the register of marriage celebrants    

39DB...... Request to be identified as a religious marriage celebrant on the register of marriage celebrants         

39DC...... Identification as a religious marriage celebrant........................................

39DD..... Transitional provisions for existing marriage celebrants........................

39DE...... Process of identification on the register as a religious marriage celebrant

For consistency and transparency, the following simple changes could be made to make the legilistation clearer for those Commonwealth regulated civil marriage celebrants, the personnel responsible for their regulation and the marrying public.

3.3 Here are some further examples of practical changes to legislation for the pubic good.

Example 5- Subdivision C Marriage Celebrants – add “Civil” marriage celebrants in Subdivision C and add “Commonwealth” to the title “Registrar of Marriage Celebrants” ..

Subdivision C—Civil Marriage celebrants                                                                      22

39A......... Registrar of Commonwealth Marriage Celebrants...................... 22

39B......... Register of Commonwealth marriage celebrants........................ 22

39C......... Entitlement to be registered as a Civil marriage celebrant................. 22

39D........ Registration as a Civil marriage celebrant.............................................. 23

and whereever appropriate in the text of Sections 39A, 39B, #9C, 39D
– See Appendix 1 -

Example 6 -  Section 39DA  - add “entitled to be”

39DA  Entitlement to be identified as a religious marriage celebrant on the register of marriage celebrants

A person is entitled to be identified as a religious marriage celebrant on the register of marriage celebrants if:

                                 (a)   the person is entitled to be registered as a civil marriage celebrant under Subdivision C of this Division; and

(b) the person is a minister of religion.

39G  (d) Obligations of each Commonwealth marriage celebrant

(d) disclose that the celebrant is a  marriage celebrant and whether or not the celebrant is a civil or religious marriage celebrant, in any document relating to the performance of services as a marriage celebrant (including advertisements) by the celebrant.

Example 7 - Subdivision E—General provisions relating to all marriage celebrants

 And whereever appropriate in the text of Subdivision E to add Commonwealth” “civil” etc as the examples shown in – See Appendix 1