You can find the published version of this legal update here.
Every marriage celebrant knows that they have to pay an annual charge to remain registered, but what does that really mean in practice?
Two recent cases in the federal Administrative Appeals Tribunal highlight the importance of getting that charge paid on time.
For marriage celebrants who don’t, they will be deregistered.
It is just a matter of time.
(The writer understands that Mr Shalala passed away in early 2019. This legal update is a comment on the state of the law and is not intended to be disrespectful to Mr Shalala or his family)
On 30 January 2019, the Tribunal dismissed an application by former marriage celebrant Pastor Anthony Shalala on the grounds that his application had no reasonable prospect of success.
Mr Shalala was first registered as a marriage celebrant under the Commonwealth Marriage Act 1961 (Marriage Act) on 28 August 1997. He had complied with his obligations to notify the Registrar of his changes in contact details and paid his registration charges over the previous ~ 20 years. But in 2018, he failed to pay his registration charge by the charge payment date (31 August 2018). By letter on 10 September 2018, Mr Shalala was advised that his deregistration would take effect on 2 October 2018.
On 10 October 2018, Mr Shalala applied to the AAT for a review of the deregistration decision. His explanation was that he had not received his invoice or any correspondence because he had been on long service leave. Further, his church had taken care of his ‘licence’ (sic) administratively and had paid invoices on his behalf. He stated that they had not received correspondence either. It didn’t matter.
The requirement to pay the celebrant registration charge in respect of a particular financial year falls under s 39FA of the Marriage Act. Under that provision, a person must pay the celebrant registration charge if:
the person is a marriage celebrant on 1 July in that financial year, or
becomes a marriage celebrant later in that financial year,
unless an exemption applies.
In addition, the celebrant registration charge must also be paid if:
the person is a marriage celebrant on 1 July of that financial year, and
before that day, the Registrar has decided to deregister the person and that person has applied to the AAT for a review of the decision, and
the AAT application has not been determined
The requirement to pay is absolute.
If the person has not paid the celebrant registration charge by the end of the charge payment day, the Marriage Act (s 39FB) says that the Registrar must send a notice to the person advising that:
they haven’t paid the registration charge, and
advising that the person will be deregistered as a marriage celebrant on a day that is at least 7 days after the notice is issued.
There is no discretion for the Registrar to make a different decision – they, very simply, must deregister a marriage celebrant who has not paid the charge unless an exemption applies (which it did not in Mr Shalala’s case).
The only discretion for the Registrar lies in the timing of that deregistration – it is here that all is not immediately lost for a celebrant’s existing clients.
On 1 October 2018, Julian Morrow (yes, of the Chaser fame) sought a review of the Registrar’s decision to deregistrer him as a marriage celebrant, which was to take effect ‘as soon as practicable after 2 October 2018’.
Mr Morrow applied to the Tribunal for a stay of that decision – that is, he asked the Tribunal to make a decision that the Registrar’s decision should not take effect while he sought a review through the Tribunal. The Tribunal granted the stay unopposed by the Registrar. This meant that Mr Morrow remained registered pending the outcome of the Tribunal application.
Mr Morrow argued that, by advising him that his de-registration would take effect “as soon as practicable after 2 October 2018”, the Registrar had:
failed to comply with s 39FB(2)(a) of the Marriage Act, and
failed to provide him procedural fairness because:
he had not had an opportunity to put forward arguments on what the date of de-registration should be, and
the Registrar had “inflexibly applied a policy in relation to the date on which deregistration is to occur, which is not required or justified” by the Marriage Act.
The Tribunal did not disagree. In submissions to the Tribunal, Mr Morrow described the language of the relevant provisions “imprecise and ambiguous” – a characterisation which the Tribunal considered was accurate. In doing so, the Tribunal reflected that the imprecision was the intention of the Parliament. In its discussion, the Tribunal noted that “the aim of [the] flexibility/imprecision was… intended to have a potentially beneficial purpose as far as intended marriage partners were concerned but this was achieved at the expense of leaving the celebrants unclear and uncertain about their status in terms of the precise date of their deregistration.”
Accepting that the timing of a deregistration decision can affect the livelihood of celebrants, the Tribunal commented that “it is not in accord with best practice government operations” - presumably to allow for this level of uncertainty for celebrant businesses.
While the Tribunal had no choice than to apply the law and affirm the deregistration decision, the Deputy President varied the decision in relation to the date that the 2018 deregistration was to take effect. Mr Morrow’s deregistration took effect on 11 July 2019 (being 21 days after the Registrar issued a new Notice to Mr Morrow, required to be issued on the 8th business day after the Tribunal’s decision on 12 June 2019).
Neither of these decisions would prevent the marriage celebrants in question (or any other deregistered celebrants) from seeking and gaining registration again under s 39D of the Marriage Act, provided that they otherwise met the criteria for registration. However, there are potentially significant costs in seeking re-registration including the potential need to retrain as well as the relevant application fee.
With invoices about to be issued by the Attorney-General’s Department, there is no more timely reminder: if you want to stay registered, you must pay your registration charge before the charge payment date (expected to be 31 August 2019) unless an exemption applies - or they want to go through the process of being registered again. Otherwise, at best, a celebrant will be allowed a period of time to transfer their existing bookings to another registered marriage celebrant.
STATE OF THE LAW | Emma White Legal
Emma is an administrative and public law expert and Special Counsel with lawyerbank. While she is the Principal and Director of this practice, she is also Commonwealth registered marriage celebrant eagerly awaiting her annual registration charge invoice so she can remember to pay a bill on time!