Marriage Amendment Act 2002
No. 77, 2002
An Act to amend the Marriage Act 1961, and for related purposes
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 1
3............ Schedule(s).......................................................................................... 2
Schedule 1—Marriage celebrants 4
Part 1—Amendments 4
Marriage Act 1961 4
Part 2—Transitional provision 15
Schedule 2—Other matters 16
Marriage Act 1961 16
Marriage Amendment Act 2002
No. 77, 2002
An Act to amend the Marriage Act 1961, and for related purposes
[Assented to 8 October 2002]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Marriage Amendment Act 2002.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table
The day on which this Act receives the Royal Assent
8 October 2002
2. Schedule 1
A day or days to be fixed by Proclamation, subject to subsection (3)
1 September 2003 (Gazette No. GN31)
3. Schedule 2, items 1 to 14
The 28th day after the day on which this Act receives the Royal Assent
5 November 2002
4. Schedule 2, item 15
A single day to be fixed by Proclamation, subject to subsection (4)
8 April 2003
5. Schedule 2, items 16 to 56
The 28th day after the day on which this Act receives the Royal Assent
5 November 2002
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
(3) If a provision covered by item 2 of the table does not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(4) If a provision covered by item 4 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Marriage celebrants
Part 1—Amendments
Marriage Act 1961
1 Subsection 5(1) (definition of authorized celebrant)
Repeal the definition, substitute:
authorized celebrant means:
(a) a minister of religion registered under Subdivision A of Division 1 of Part IV; or
(b) a person authorized to solemnize marriages by virtue of Subdivision B of Division 1 of Part IV; or
(c) a marriage celebrant.
2 Subsection 5(1)
Insert:
marriage celebrant means a person registered under Subdivision C of Division 1 of Part IV.
3 Paragraph 9(1)(f)
After “under”, insert “Subdivision A of”.
4 Division 1 of Part IV (heading)
Repeal the heading, substitute:
Division 1—Authorized celebrants
5 Before section 25
Insert:
Subdivision A—Ministers of religion
6 Subsections 25(1) and (2)
Omit “Division” (wherever occurring), substitute “Subdivision”.
7 Subsections 27(1) and (4)
Omit “Division”, substitute “Subdivision”.
8 Subsections 28(3) and (4)
Omit “Division”, substitute “Subdivision”.
9 Sections 29, 30 and 31
Omit “Division” (wherever occurring), substitute “Subdivision”.
Note: The heading to section 29 is altered by omitting “Division” and substituting “Subdivision”.
10 Section 32
Omit “Division”, substitute “Subdivision”.
11 Subsection 33(1)
Omit “Division” (wherever occurring), substitute “Subdivision”.
12 Subsections 34(1) and (5)
Omit “Division”, substitute “Subdivision”.
13 Subsection 35(1)
Omit “Division”, substitute “Subdivision”.
14 Sections 37 and 38
Omit “Division” (wherever occurring), substitute “Subdivision”.
15 After section 38
Insert:
Subdivision B—State and Territory officers etc.
16 Subsection 39(2)
Omit “or other fit and proper persons”.
Note: The heading to section 39 is altered by omitting “other celebrants” and substituting “State and Territory officers etc.”.
17 Subsection 39(4)
Repeal the subsection.
18 At the end of Division 1 of Part IV
Add:
Subdivision C—Marriage celebrants
39A Registrar of Marriage Celebrants
(1) There is to be a position occupied (on an acting, permanent, full‑time or part‑time basis) by an APS employee in the Department, the duties of which are expressed to consist of, or include, the performance of the functions given to the Registrar of Marriage Celebrants by or under this Act.
(2) The APS employee occupying the position from time to time is the Registrar of Marriage Celebrants.
(3) The Registrar of Marriage Celebrants is to perform those functions and has power to do all things necessary or convenient to be done for or in connection with the performance of those functions.
39B Register of marriage celebrants
(1) The Registrar of Marriage Celebrants is to maintain a register of marriage celebrants.
(2) The register may be kept in any way the Registrar thinks appropriate, including by electronic means.
(3) The register may be made available for inspection in any way the Registrar thinks appropriate.
(4) All information contained in the register must be made available on the Internet.
(5) Any or all of the information contained in the register may also be disseminated in any other way the Registrar thinks appropriate, including by electronic means.
39C Entitlement to be registered as a marriage celebrant
(1) A person is only entitled to be registered as a marriage celebrant if the person is an individual and the Registrar of Marriage Celebrants is satisfied that the person:
(a) is aged 18 years or over; and
(b) has all the qualifications, and/or skills, determined in writing to be necessary by the Registrar in accordance with regulations made for the purposes of this paragraph; and
(c) is a fit and proper person to be a marriage celebrant.
(2) In determining whether the Registrar is satisfied that the person is a fit and proper person to be a marriage celebrant, the Registrar must take into account:
(a) whether the person has sufficient knowledge of the law relating to the solemnization of marriages by marriage celebrants; and
(b) whether the person is committed to advising couples of the availability of relationship support services; and
(c) whether the person is of good standing in the community; and
(d) whether the person has been convicted of an offence, punishable by imprisonment for one year or longer, against a law of the Commonwealth, a State or a Territory; and
(e) whether the person has an actual or potential conflict of interest between his or her practice, or proposed practice, as a marriage celebrant and his or her business interests or other interests; and
(f) whether the person’s registration as a marriage celebrant would be likely to result in the person gaining a benefit in respect of another business that the person owns, controls or carries out; and
(g) whether the person will fulfil the obligations under section 39G; and
(h) any other matter the Registrar considers relevant to whether the person is a fit and proper person to be a marriage celebrant.
(3) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
39D Registration as a marriage celebrant
(1) A person may apply to be registered as a marriage celebrant by giving the Registrar of Marriage Celebrants:
(a) a completed application in the form specified by regulations made for the purposes of this paragraph; and
(b) any statutory declarations required by the form.
(2) The Registrar must deal with applications in the order in which they are received.
(3) In dealing with an application, the Registrar:
(a) must have regard to the information in the application; and
(b) may have regard to any other information in his or her possession; and
(c) is not required to seek any further information.
(4) The Registrar must register a person as a marriage celebrant if:
(a) the person has applied in accordance with subsection (1); and
(b) the Registrar is satisfied that the person is entitled to be registered as a marriage celebrant.
The Registrar must not register a person as a marriage celebrant in any other circumstances.
(5) The Registrar registers a person as a marriage celebrant by entering in the register of marriage celebrants all details relating to the person that are required by regulations made for the purposes of this subsection.
(6) If the Registrar registers a person as a marriage celebrant, the Registrar must notify the person in accordance with regulations made for the purposes of this subsection.
(7) If the Registrar decides not to register a person as a marriage celebrant after dealing with the person’s application, the Registrar must inform the applicant in writing of:
(a) the decision; and
(b) the reasons for it; and
(c) the person’s right under section 39J (if any) to apply for review of the decision.
39E Capping of number of marriage celebrants for 5 years
(1) Despite subsection 39D(4), the Registrar of Marriage Celebrants must not register a person as a marriage celebrant if doing so would cause the breach of any applicable limit on the number of marriage celebrants determined in accordance with regulations made for the purposes of this subsection.
Note: A person who, because of this section, is not registered is entitled to written notice under subsection 39D(7).
(2) Subsection (1) ceases to have effect at the end of the period of 5 years after this section commences.
39F Effect of registration
A person who is registered as a marriage celebrant may solemnize marriages at any place in Australia.
39G Obligations of each marriage celebrant
A marriage celebrant must:
(a) conduct himself or herself in accordance with the Code of Practice for marriage celebrants prescribed by regulations made for the purposes of this paragraph; and
(b) undertake all professional development activities required by the Registrar of Marriage Celebrants in accordance with regulations made for the purposes of this paragraph; and
(c) notify the Registrar, in writing, within 30 days of:
(i) a change that results in the details entered in the register in relation to the person no longer being correct; or
(ii) the occurrence of an event that might have caused the Registrar not to register the person as a marriage celebrant if the event had occurred before the person was registered.
Note: If a marriage celebrant fails to comply with these obligations, the Registrar may take disciplinary measures under section 39I.
39H Performance reviews
(1) The Registrar of Marriage Celebrants must regularly review each marriage celebrant’s performance to determine whether the Registrar considers that the marriage celebrant’s performance is satisfactory.
(2) The first review must be completed within 5 years of the marriage celebrant being registered and must cover the period between registration and the end of the review. Each later review must be completed within 5 years of the previous review and must cover the period since the previous review.
(3) In reviewing the performance of a marriage celebrant, the Registrar:
(a) must consider the matters prescribed by regulations made for the purposes of this paragraph; and
(b) may have regard to any information in his or her possession, but is not required to seek any further information.
(4) The Registrar must not determine that a marriage celebrant’s performance in respect of a period was not satisfactory unless:
(a) the Registrar has, in accordance with regulations made for the purposes of this paragraph, given the marriage celebrant a written notice:
(i) stating the Registrar’s intention to make the determination unless, before the date specified in the notice (which must be at least 21 days after the date on which the notice was given), the marriage celebrant satisfies the Registrar that the marriage celebrant’s performance in respect of the period was satisfactory; and
(ii) informing the marriage celebrant that any representations made to the Registrar before that date will be considered by the Registrar; and
(b) the Registrar has considered any representations made by the marriage celebrant before the date specified in the notice; and
(c) the determination is made in writing within 14 days after the date specified in the notice.
39I Disciplinary measures
(1) The Registrar of Marriage Celebrants may only take disciplinary measures against a marriage celebrant if the Registrar:
(a) is satisfied that the marriage celebrant is no longer entitled to be registered as a marriage celebrant; or
(b) is satisfied that the marriage celebrant has not complied with an obligation under section 39G; or
(c) has determined in writing under section 39H that the marriage celebrant’s performance in respect of a period was not satisfactory; or
(d) is satisfied that it is appropriate to take disciplinary measures against the marriage celebrant after considering a complaint in accordance with the complaints resolution procedures established under paragraph 39K(c); or
(e) is satisfied that the marriage celebrant’s application for registration was known by the marriage celebrant to be false or misleading in a material particular.
(2) The only disciplinary measures that the Registrar may take against a marriage celebrant are to:
(a) caution the marriage celebrant in writing; or
(b) in accordance with regulations made for the purposes of this paragraph, require the marriage celebrant to undertake professional development activities determined in writing by the Registrar; or
(c) suspend the marriage celebrant’s registration for a period (the suspension period) of up to 6 months by annotating the register of marriage celebrants to include:
(i) a statement that the registration is suspended; and
(ii) the dates of the start and end of the suspension period; or
(d) deregister the marriage celebrant by removing his or her details from the register of marriage celebrants.
Note: A decision to suspend a marriage celebrant’s registration, or to deregister a marriage celebrant, is reviewable under section 39J.
(3) If the Registrar suspends a marriage celebrant’s registration for a particular period, section 39F does not apply in respect of the marriage celebrant during the period.
(4) If the Registrar decides to take disciplinary measures against a marriage celebrant, the Registrar:
(a) must give the marriage celebrant written notice of:
(i) the decision; and
(ii) the reasons for it; and
(iii) the disciplinary measure that is being taken; and
(iv) the marriage celebrant’s right under section 39J to apply for review of the decision; and
(b) may inform the community, in any way the Registrar thinks appropriate, including by electronic means, that the disciplinary measure is being taken against the marriage celebrant.
39J Review of decisions
(1) An application may be made to the Administrative Appeals Tribunal for a review of a decision of the Registrar of Marriage Celebrants:
(a) not to register a person as a marriage celebrant (unless a ground for the decision was that the Registrar would breach section 39E by registering the person); or
(b) to suspend a person’s registration as a marriage celebrant; or
(c) to deregister a marriage celebrant.
(2) For the purposes of both the making of an application under subsection (1) and the operation of the Administrative Appeals Tribunal Act 1975 in relation to such an application, if:
(a) a person has made application for registration as a marriage celebrant under section 39D; and
(b) at the end of 3 months after the day on which the application was made, the person has not been:
(i) registered; or
(ii) notified by the Registrar that that person’s application has been refused;
the Registrar is taken to have decided, on the last day of the 3 month period, not to register that person as a marriage celebrant.
(3) The Registrar must take such action as is necessary to give effect to the Tribunal’s decision (even if doing so at the time the action is taken would cause a breach of a limit under section 39E).
39K Additional functions of the Registrar
The Registrar of Marriage Celebrants must:
(a) amend the register of marriage celebrants in accordance with regulations made for the purposes of this paragraph; and
(b) keep records relating to marriage celebrants, and the register of marriage celebrants, in accordance with regulations made for the purposes of this paragraph; and
(c) establish complaints resolution procedures, in accordance with regulations made for the purposes of this paragraph, to resolve complaints about the solemnization of marriages by marriage celebrants; and
(d) perform any additional functions specified in regulations made for the purposes of this paragraph.
39L Registrar not liable for damages
The Registrar of Marriage Celebrants is not liable to an action or other proceeding for damages in respect of anything done, or omitted to be done, in good faith in:
(a) the exercise or performance; or
(b) the purported exercise or performance;
of powers or functions under this Act.
39M Evidence of registration etc.
A certificate, signed by the Registrar of Marriage Celebrants, stating that, at a specified time, or during a specified period:
(a) a person was registered as a marriage celebrant; or
(b) a person’s registration as a marriage celebrant was suspended; or
(c) a person was not registered as a marriage celebrant;
is prima facie evidence of that fact.
19 Paragraph 115(2)(a)
After “under”, insert “Subdivision A of”.
20 Subsection 117(1)
Omit “Division 1 of Part IV”, substitute “a Subdivision of Division 1 of Part IV (other than Subdivision C of that Division)”.
21 Subsection 117(1)
Omit “Division in”, substitute “Subdivision in”.
22 Subsection 117(1)
Omit “Division is”, substitute “Subdivision is”.
23 Subsection 117(1)
Omit “Division at”, substitute “Subdivision at”.
24 Subsection 117(2)
Omit “Division 1 of Part IV”, substitute “a Subdivision of Division 1 of Part IV (other than Subdivision C of that Division)”.
25 Subsection 117(2)
Omit “Division at”, substitute “Subdivision at”.
26 Paragraph 120(d)
Repeal the paragraph.
Part 2—Transitional provision
27 Registration of existing marriage celebrants
(1) In this item:
existing marriage celebrant means a person:
(a) in respect of whom an instrument made under subsection 39(2) of the Marriage Act 1961 was in force immediately before the commencehment of item 18 of this Schedule; and
(b) who was not authorized by that instrument to solemnize marriages as an officer of a State or Territory.
(2) Each existing marriage celebrant is taken to have been registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961 as a marriage celebrant on the date of the commencement of item 18 of this Schedule.
(3) As soon as practicable after the commencement of item 18 of this Schedule, the Registrar of Marriage Celebrants must enter in the register of marriage celebrants all details relating to the person that are required by regulations made for the purposes of subsection 39D(5) to be entered in the register in respect of a person who is registered as a marriage celebrant.
Schedule 2—Other matters
Marriage Act 1961
1 Subsection 5(1) (paragraph (a) of the definition of Judge)
After “Family Court of Australia”, insert “, or a Federal Magistrate of the Federal Magistrates Court,”.
2 Subsection 5(1) (definition of marriage officer)
Repeal the definition.
3 Subsection 5(1) (definition of official house)
Repeal the definition.
4 Subsection 5(1) (paragraph (a) of the definition of prescribed authority)
Omit “being an authorized celebrant or a justice of the peace”, substitute “being an officer or employee of the Commonwealth, a State or a Territory”.
5 Application of items 4 and 56
The amendments made by items 4 and 56 apply in relation to appointments of prescribed authorities made after those items commence.
6 Subsection 5(1) (paragraph (b) of the definition of prescribed authority)
Repeal the paragraph.
7 At the end of subsection 9A(1)
Add “or a Federal Magistrate of the Federal Magistrates Court”.
8 Subsection 13(2)
Repeal the subsection, substitute:
(2) For the purposes of subsection (1), the consent of a person is only duly witnessed if the signature of that person was witnessed:
(a) if the consent is signed in Australia—by one of the following persons:
(i) an authorized celebrant;
(ii) a Commissioner for Declarations under the Statutory Declarations Act 1959;
(iii) a justice of the peace;
(iv) a barrister or solicitor;
(v) a legally qualified medical practitioner;
(vi) a member of the Australian Federal Police or the police force of a State or Territory; or
(b) if the consent is signed in any other place—by one of the following persons:
(i) an Australian Diplomatic Officer;
(ii) an Australian Consular Officer;
(iii) a minister of religion of that place;
(iv) a judge of a court of that place;
(v) a magistrate or justice of the peace of or for that place;
(vi) a notary public;
(vii) an employee of the Commonwealth authorised under paragraph 3(c) of the Consular Fees Act 1955;
(viii) an employee of the Australian Trade Commission authorised under paragraph 3(d) of the Consular Fees Act 1955.
9 Paragraph 42(1)(a)
Omit “6 months”, substitute “18 months”.
10 Application of item 9
The amendment made by item 9 applies in relation to notices of intention to marry given after the item commences.
11 Subparagraph 42(1)(b)(ii)
Omit “born; and”, substitute “born; or”.
12 After subparagraph 42(1)(b)(ii)
Insert:
(iii) a passport issued by a government of an overseas country, showing the date and place of birth of the party; and
13 Paragraph 42(2)(b)
Repeal the paragraph, substitute:
(b) must be signed by each of the parties; and
(c) if a party signs the notice in Australia—must be signed in the presence of:
(i) an authorised celebrant; or
(ii) a Commissioner for Declarations under the Statutory Declarations Act 1959; or
(iii) a justice of the peace; or
(iv) a barrister or solicitor; or
(v) a legally qualified medical practitioner; or
(vi) a member of the Australian Federal Police or the police force of a State or Territory; and
(d) if a party signs the notice outside Australia—must be signed in the presence of:
(i) an Australian Diplomatic Officer; or
(ii) an Australian Consular Officer; or
(iii) a notary public; or
(iv) an employee of the Commonwealth authorised under paragraph 3(c) of the Consular Fees Act 1955; or
(v) an employee of the Australian Trade Commission authorised under paragraph 3(d) of the Consular Fees Act 1955.
14 Subsection 42(3)
Omit “Where”, substitute “However, if”.
15 Subsection 42(5)
Repeal the subsection, substitute:
(5) Despite a notice required by subsection (1) having been received later than 1 month before the date of the marriage, a prescribed authority may authorise an authorized celebrant to solemnize a marriage if the authority is satisfied that one or more of the circumstances prescribed in the regulations have been met.
16 Section 54
Repeal the section, substitute:
54 Governor‑General may declare countries to be proclaimed overseas countries
The Governor‑General may declare by Proclamation that a country is a proclaimed overseas country for the purposes of this Division if he or she is satisfied that the country’s law or custom authorizes the solemnization, by or in the presence of either or both diplomatic or consular officers of that country, of marriages outside that country.
17 Application of item 16
The amendment made by item 16 applies in relation to Proclamations declared after the item commences.
18 Part V (heading)
Repeal the heading, substitute:
Part V—Marriages of members of the Defence Force overseas
19 Divisions 1 and 2 of Part V
Repeal the Divisions.
20 Division 3 of Part V (heading)
Repeal the heading, substitute:
Division 3—Marriages of members of the Defence Force overseas
21 Subsection 74(1)
Omit “marriage officer or”.
Note: The heading to section 74 is altered by omitting “marriage officer or”.
22 Subsection 74(3)
Omit “marriage officer or a”.
23 Section 75
Omit “marriage officer or a”.
Note: The heading to section 75 is altered by omitting “Marriage officer or chaplain” and substituting “Chaplain”.
24 Section 75
Omit “marriage officer or” (second occurring).
25 Subsection 76(1)
Omit “marriage officer or”.
26 Subsection 77(1)
Omit “marriage officer or”.
27 Subsection 78(2)
Omit “marriage officer or”.
28 Section 79
Omit “marriage officer or a”.
Note: The heading to section 79 is altered by omitting “Marriage officer or chaplain” and substituting “Chaplain”.
29 Section 79
Omit “marriage officer or” (second occurring).
30 Subsection 80(1)
Omit “a marriage officer or”.
31 Subsection 80(1)
Omit “marriage officer or” (second occurring).
32 Paragraph 80(2)(a)
Repeal the paragraph, substitute:
(a) the chaplain; and
33 Paragraph 80(2)(c)
Omit “marriage officer or”.
34 Subsection 80(4)
Omit “marriage officer or”.
35 Paragraph 80(4)(b)
Omit “any notice under section 66 and”.
36 Subsections 80(5), (6) and (8)
Omit “marriage officer or”.
37 Subsection 80(9)
Omit “marriage officer or” (wherever occurring).
38 Subsection 80(10)
Omit “marriage officer or”.
39 Section 81
Omit “marriage officer or” (wherever occurring).
40 Paragraphs 83(1)(a), (b) and (c)
Repeal the paragraphs.
41 Paragraph 83(1)(e)
Omit “67, 68, 69,”.
42 Subsection 83(2)
Omit “marriage officer or”.
43 Paragraph 84(1)(a)
Repeal the paragraph, substitute:
(a) a chaplain has attended a marriage in an overseas country between parties of whom at least one was an Australian citizen or a member of the Defence Force; and
Note: The heading to section 84 is altered by omitting “marriage officer or”.
44 Paragraphs 84(1)(b) and (c)
Omit “marriage officer or”.
45 Subsection 84(1)
Omit “the marriage officer, upon payment of the prescribed fee, or the chaplain, as the case may be,”, substitute “the chaplain”.
46 Paragraphs 85(1)(b) and (c)
Omit “marriage officer or”.
47 Subsection 85(1)
Omit “the marriage officer, upon payment of the prescribed fee, or the chaplain, as the case may be,”, substitute “the chaplain”.
48 Subsection 92(1)
After “Family Court of Australia,”, insert “the Federal Magistrates Court,”.
49 Subsection 99(2)
Repeal the subsection.
50 Subsection 104(1)
Omit “or to a marriage officer under section 66,”.
51 Subsection 104(1)
Omit “or section 66”.
52 Subsection 104(2)
Repeal the subsection (but not the penalty).
53 Section 110
Repeal the section.
54 Subsection 115(3)
Omit “and, where appropriate, the religious body or religious organization to which he or she belongs”.
55 Subsection 116(2)
Omit “, marriage officer” (wherever occurring).
56 Paragraph 117(2A)(b)
Repeal the paragraph, substitute:
(b) an officer or employee of the Commonwealth, a State or a Territory, appointed by the Minister to be a prescribed authority;
(2/02)
[Minister’s second reading speech made in—
House of Representatives on 14 February 2002
Senate on 14 May 2002]
