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Tuesday, 19 March 1985
Page: 403

Senator DURACK(4.13) —I move:

Clause 15, paragraph (b), leave out proposed new sub-section (4), insert the following sub-section:

'(4) Nothing in this Act shall prevent a person, not being a minister of religion, who is authorized under sub-section (2) to solemnize marriages, from contracting with the parties to an intended marriage for the payment, for the solemnization of that marriage by that person, of a fee that exceeds the fee prescribed by regulations made under section 120 that is applicable to the solemnization of that marriage by that person.'.

The present clause 15 of the Bill amends section 39 of the principal Act, dealing with the appointment by the Attorney-General of suitable persons to act as civil marriage celebrants. The Act also contains a provision of the making of regulations concerning the fees that may be charged by such persons, and regulations were made for the purpose some time ago and have been amended from time to time.

Apart from the provision that regulations may be made to fix fees and the regulations fixing them, the Act is apparently not seen to be satisfactory, because the Government proposes an amendment in the terms of clause 15 (b) to add the following provision to section 39, which deals with the appointment of civil marriage celebrants. That now reads:

A person, not being a minister of religion, who is authorised under sub-section (2) to solemnise marriages is not entitled to demand the payment for the solemnisation of a marriage by that person of a fee that exceeds the fee prescribed by the regulations.

They are the regulations that I have just referred to. The question of charges made by civil marriage celebrants is, from my own experience, one that has given rise to problems from time to time.

The Minister for Resources and Energy (Senator Gareth Evans) in his second reading speech has referred to the fact that there are various charges made for extra services, such as flowers. Certainly, that is a recognition of something that has been happening over the years; that some civil marriage celebrants have been dissatisfied with the fees scale. Like all other scales that are laid down by government in an endeavour to fix prices that people charge for goods or services, these scales never keep up with the cost of living, the cost of providing those services. The scales have been a constant source of trouble with the legal profession. Scales of fees laid down by regulations or by rules of court are constantly out of date. Fortunately, the provisions in relation to the legal profession have always enabled parties to be able to make their own arrangements and they have not been hamstrung by the fees scales. The civil marriage celebrants' scale is no exception.

It takes time for governments to get around to looking at fees scales. Admittedly, they have many other things to do and these things seem to get put aside, but it takes time to process the determination of an increase, to determine the sort of increase which would be allowed and to make the regulations themselves. These things seem to take months and months, so such scales become rapidly out of date. A fairly substantial increase was made last year, which has meant that at the present moment there do not seem to be many complaints, but that would seem to be an exceptional period because in my experience there were constant complaints made about the nature of the fees that were prescribed.

There have been many ways and means by which people can get around these fees, and they have done so. It is all very well for Senator Evans as Minister representing the Attorney-General to say that this is supposed to be a public service and they are only being paid on that basis; they are not supposed to be making money out of it. The fact is that there are a number of civil marriage celebrants who do it for a living and who do make very considerable and very comfortable incomes out of providing the service. I do not see anything wrong with that. Many people do it with a good deal of panache and style and provide the sort of service that the parties entering into marriage want to have, for one reason or another. Again, that is entirely a matter for their choice. We are not going to moralise about this in this place, nor should the Government be fussed about these things in the way it has been. I know that there has been this typical bureaucratic approach to this question, of which I was reminded very forcibly by the remarks just made by the Minister representing the Attorney-General.

The Opposition is particularly concerned about the provision which states, quite categorically, that no one is entitled to demand the payment of a fee that exceeds the prescribed fee. The original amendment did provide a penalty-it was a criminal offence with a penalty. That was the basis of our original objection to this provision. However, even though the Government has now removed the penalty from this provision in the Bill, it is still clearly making it illegal. Whether it was before is perhaps another question. But if this provision is passed by this place, clearly it will make it illegal. If a statute says that something is illegal, there could well be a common law offence and a penalty could still arise if the Government was so silly as to prosecute anybody who persistently breached this prohibition. Undoubtedly some people do charge to excess even though they may dress it up in the provision of other services and so on. The question would arise as to whether the practice-which is recognised by the Minister in his second reading speech-would be prevented by a statement in the terms of this provision. The Opposition is certainly opposed to anything being done to change the existing situation and that is why we have been opposed to this provision in the Bill. However, on reflection, it seems to me that the amendment that I originally circulated opposing this sub-section did not fully express the views of the Opposition which, as I explained in the second reading debate, was that people ought to be free to make their own arrangements. That is why I have circulated the more detailed amendment which clearly expresses the view of the Opposition.

The vast majority of civil marriage celebrants and parties wanting their services are not going to be concerned about these matters; they will charge the ordinary fee. That is what is laid down as seemingly a fair thing. Certainly civil marriage celebrants who are not commercially minded will, no doubt, not be concerned about it. I cannot see how such a provision will really create all the problems for the Government that Senator Gareth Evans has indicated. Clearly these are the sorts of familiar arguments which we get from people in the Public Service who want to be able to keep a very close control of anything over which they have power. It may well be that more civil marriage celebrants ought to be appointed. There are certainly plenty more fit and proper people to be civil marriage celebrants than it has been customary to appoint; more have applied than have been appointed. If there was any indication that it was hard to get a civil marriage celebrant to do a job because he was asking too much for it, a few more could be appointed and that would soon overcome that problem, but I just do not see it arising. Many people take on this job because they want to perform a public service; they like doing the job and they are very happy to do it for the fee. All we in Opposition are saying is that if other people who for various reasons are in great demand for the special services they provide, we do not see any reason why they should not be able to come to an ordinary commercial arrangement about what they can charge. Any suggestion about marriage celebrants in a particular area putting their heads together and fixing a fee is just absolute Alice in Wonderland stuff.

If the Minister knew anything about economics, which of course he does not, he would know that if the market is opened up that is the best way of dealing with such matters. But, for heaven's sake, for a Minister to say that that could happen and nothing could be done about it by the Government is ludicrous. Of course something could be done about it by the Government. The Minister could cancel people's licences. There is no reason to believe that that would be a problem at all. In fact, as I have said, some civil marriage celebrants provide extra services and charge extra for them. There is no sign of marriage celebrants putting their heads together to ensure that that becomes a general rule. It just does not occur and it will not occur if marriage celebrants can charge a special fee. As I said, there is ample precedent for it. For example, scales have been laid down for services provided by the legal profession. By and large, solicitors have always been able to make special arrangements with their clients. Again, I am not aware of this horrific result that Senator Gareth Evans seems to think has occurred. Doctors are not required to charge the common fee. So there are plenty of precedents for the approach the Opposition is suggesting.