State of the Law: The Celebrant Registration Charge – What does it mean to you?

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.

Shalala and Registrar of Marriage Celebrants [2019] AATA 63 (29 January 2019)

(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.

Morrow and Registrar of Marriage Celebrants [2019] AATA 1253 (12 June 2019)

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).

In closing

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!

IN THE News: Royal Commission on banking and financial services to be established

The Government has announced today that it will establish a Royal Commission into the alleged misconduct of Australia’s banks and other financial services entities.

You can find the Prime Minister's media release and a link to the draft Terms of Reference here. The draft Terms of Reference will form the basis of the Letters Patent recommended to the Governor-General to establish the proposed Royal Commission under the Royal Commissions Act 1902. (Letters Patent are a type of legal document that give effect to orders made by the Governor-General).

Royal Commissioner/s are yet to be announced.

IN THE NEWS | Emma White Legal

OPINION: The Secretary's Review of Commonwealth Legal Services: The Report is out. But what next?

For anyone who has worked in a Commonwealth legal services unit (however described), or provided legal services to a Commonwealth entity, the recommendations in the Secretary’s Review of Commonwealth Legal Services will not be a surprise.

The clear result? The Commonwealth must be more cohesive, collaborative and connected, must share its advice, must have a consistent set of standards for its work, and, to use the oft quoted phrase, must be a better ‘informed purchaser’ of external legal services.

In the terms of reference, the Secretary was tasked with considering:

  1. The means for ensuring appropriately coordinated and aligned Commonwealth legal services that avoid duplication, identify and manage Commonwealth legal risks and take account of whole of government issues;

  2. The efficiency and effectiveness of legal branches of Commonwealth entities, including how in-house legal work is and should be organised and what elements of Commonwealth legal work should be competitively sourced;

  3. The appropriate mechanisms for the efficient procurement of external legal services by Commonwealth entities, including the Legal Services Multi-Use List (LSMUL);

  4. The appropriate role and scope of tied legal work;

  5. Potential improvements to the Legal Services Directions 2005;

  6. Possible savings to be brought forward in the 2016 Mid Year Economic and Fiscal Outlook; and

  7. Any other relevant matter concerning the delivery, performance or cost of Commonwealth legal work.

To assist in considering those terms, the Secretary issued two ‘Issues Papers’ for consideration by stakeholders – primarily, this writer suggests, for comment by law firms providing services to (or wishing to provide services to) Commonwealth entities, and in house practices within those entities.

The issues papers sought submissions on overarching issues of relevance to the review, the role of external legal services providers in the Commonwealth legal services market, options for improving procurement of external legal services and models for the provision of Commonwealth legal services, the role and structure of in-house legal services, and coordination and collaboration between practices.

Following consideration of the submissions received, and extensive in person consultation, the Review has made 10 recommendations under 4 broad headings. They are:

A better framework for Commonwealth legal services (Recommendations 1, 2 and 3)

  • Linking government lawyers through automatic inclusion in an Australian Government Legal Service, delivering information sharing, collaboration, guidance and professional development.

  • Strengthening the accountability of General Counsel in entities for their contribution to a joined‑up approach to managing Commonwealth legal risk.

  • Better positioning the Australian Government Solicitor to fulfil its role as the key central provider of Commonwealth legal services, with an emphasis on defined priorities and delivering value.

Coordination and collaboration to improve outcomes and support efficiency (Recommendations 4, 5 and 6)

  • Clarity of priorities and targeted resourcing for the Office of Legal Services Coordination to support whole‑of‑government approaches and the roles of the First and Second Law Officers.

  • An electronic solution to better share critical legal advice and other information held by Commonwealth entities to improve consistency and reduce duplication of effort.

  • Maintenance of tied work arrangements, with adjustments to ensure they achieve the core objective of minimising risk to the Commonwealth’s position for the most critical legal issues.

Better and more consistent standards for government lawyers and in‑house legal areas (Recommendations 7 and 8)

  • Identifying and promulgating good practice arrangements for in‑house legal areas in support of quality outcomes and efficiency, including through shared arrangements if appropriate.

  • A clear statement of expectations, ongoing tailored training in core skills and mobility opportunities for government lawyers.

Ensuring the best value external legal services (Recommendations 9 and 10)

  • Maintaining external legal services providers as a critical component of Commonwealth legal services arrangements.

  • Obtaining better value for external legal services through establishment of a whole‑of‑government panel and updating arrangements for engaging counsel.

If the recommendations are accepted and implemented effectively, there are real positives in the now public 2016 Secretary’s Review which should give some heart to government lawyers and lawyers to government alike. But there lies the challenge.

Consultation with stakeholders on the practical effect of these recommendations has been ongoing for some time, but what these recommendations mean in practice remains to be seen publically.

In general terms, there are inherent, though not insurmountable, barriers to effective implementation. For example, with the LSMUL currently set to expire on 30 June 2018, there is a very real timeframe challenge to put in place a whole-of-government panel for legal services (and its related processes and policies) by July 2018. A challenge to be faced by both Commonwealth entities required (or opting) to use it, and the law firms wishing to respond to the eventual Request for Tender.  Austender currently says nothing about a planned approach to market so one risks assuming that the approach is not imminent.

More broadly speaking, there are challenges to giving effect to the broad strategic vision set out in the comprehensive review. Whether those in the know will have the freedom to decide what implementation looks like in practice, and are as free from interference to make those decisions as the beaurocracy and politics will allow remains to be seen. To allow the implementation of the recommendation will go a long way to finally seeing the dream become reality - a wholistic, collaborative, and coherent Commonwealth legal service that doesn't compete with itself; that is appropriately regulated and educated under a common banner; and is armed with information which goes a good way to reducing the level of advice on the same or similar issues between Commonwealth entities.

These challenges are the not dissimilar to the challenges no doubt faced by hard working public officers after the 1997 Logan review was received, or the challenges that were faced to give practical effect and meaning to the 2009 Blunn Krieger and 2011 Gruen reports. But  implementation of the recommendations of those earlier reports has only ever been partially realised. And the measures that have been taken to date are only as effective as the broader policies and practices of the Commonwealth, and of individual entities interpretation of the guidance and rules, have allowed.

Perhaps there is enough momentum and appropriate resourcing now to complete the job. There will have to be to achieve some of the ambitious recommendations, including developing a meaningful advices database that helps and doesn’t hinder the task of a legal researcher/lawyer in government legal practice, and the establishment of the recommended whole of government legal services panel.

The continued practice of law within the Commonwealth will most certainly benefit from effective and meaningful implementation of these recommendation.

We can only wish very limited 2am finishes and solid support for the continued work of public servants, in house counsel, and law firms tasked with implementing and responding to these recommendations! And of course, we are always happy to help departments and agencies, and law firms, to respond to those challenges!l

OPINION | Empower Consulting Group

Emma White
Managing Director

Full disclosure: Managing Director and Principal of Empower Consulting Group, Emma White, is a former government lawyer and former Director in the Office of Legal Services. She led the teams responsible for the implementation of the Legal Services Multi-Use List and the Australian Government Legal Network between 2011 and 2013. She won the Lawyers’ Weekly Women in Law In House Award in 2013, primarily for her work on those projects and the related management of the team tasked with progressing the reforms.