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Standing Committee on Social Policy and Legal Affairs
12/04/2012

CAREY, Mr Stephen, Member, Civil Celebrations Network Inc.

GOOLD, Ms Rona Francis, Chairperson, Civil Celebrations Network Inc.

HOLLAND, Ms Suzanne, Celebrant, Engage Celebrants

LAMMOND, Mr Keith, Representative, Coalition of Celebrant Associations

[12:20]

CHAIR: I welcome our new witnesses. Please note that these meetings are formal proceedings of parliament. Everything said should be factual and honest, and it can be considered a serious matter to attempt to mislead the committee. Today's hearing is about the two bills that propose amendments to the Marriage Act. We will limit our discussions to those amendments. I notice that some of your submissions touch on other aspects of the Marriage Act, but obviously our focus is on the proposed amendments to the Marriage Act. Obviously those other important issues, such as minimum age and qualifications, are specific to celebrants, but they are topics for another time and perhaps another committee. Today's discussion relates to the provisions contained in the two bills, how these impact on civil celebrants and celebrants' views on marriage as a legal contract and as a ceremonial union of two people. Would any of you like to make a brief opening statement before we move to questions?

Mr Lammond : Yes, thank you. In our submission, the Coalition of Celebrant Associations were not in a position to make comment about the views of celebrants in terms of same-sex ceremonies or same-sex marriage. I was listening a minute ago, when you touched on section 47 of the act. That is of great concern to us as representatives of celebrant associations in that we find it discriminatory that religious ministers have the right to decline marriage services and celebrants do not. We respectfully urge you to consider amending that to protect and cover celebrants in their role. Celebrants may have certain feelings and may be uncomfortable doing certain ceremonies, and we need to have the protection to be able to say, 'Unfortunately, I'm not comfortable with that and we don't do it.' It will be interesting to see how we do that.

CHAIR: Rather than you specifically, how would your members deal with such a situation? I think you were in the room when we scored that with the witnesses.

Mr Lammond : Most would handle it in terms of: 'I'm not available.' That is the common way.

CHAIR: So it is not a very complicated issue to deal with.

Mr Lammond : It is not, but section 47 specifically mentions religious ministers. The Marriage Act discriminates against civil celebrants in many ways. Section 47 certainly discriminates. It just covers religious ministers, and there is no mention at all of civil celebrants. When you think that civil celebrants to about 65 per cent of all weddings these days, we really do feel that this should be considered.

Ms Goold : It puts civil celebrants in a very difficult position, particularly if you have already taken a booking for a ceremony and the couple then wants to include poetry that is particularly bawdy or disrespectful of the marriage relationship. We are required under a code of practice to uphold the dignity of marriage in Australia. We have had occasions where civil celebrants have been asked to do that. We have also had occasions where people have wanted to exchange jewellery, such as nipple rings or jewellery used on genitalia, as part of their symbolism for their marriage. There are a number of ways in which people, in the celebrant's opinion, are not necessarily upholding the dignity of marriage. We have no protection under law once we have taken a booking. Also, we think it is quite dishonest of us to have to be in a position of saying that we are not available when in fact we are when trying to deal with an issue that is a problem.

Also the committee needs to recognise that, in 2003, the fundamental principles upon which civil celebrants were appointed was changed. The civil celebrant category was disbanded and was absorbed into one grouping, which includes non-aligned religious as well as civil. We are now, under the code of practice, required to include religious material or spiritual material if couples so choose, which our association has no particular problem with. We think that Australia needs to be respectful of people's religious beliefs and not discriminate on that basis. However, we do see that people with different religious beliefs than the mainstream or with no beliefs or beliefs in a god that is not defined by the church in a particular way are, in fact, discriminated against.

We now probably have 80 per cent of celebrants who have been appointed since 2003 under a new arrangement, which means that they are approved to do civil ceremonies but they are not necessarily civil celebrants. They came in under a time when marriage was defined in a particular way. They are people that have often spent between $10,000 and $20,000 to set up a celebrancy practice. Under the current arrangements our private practices in celebrancy can be removed because we do not do a mandatory OPD or do not express sections 45 and 46 exactly as the government of the day is telling us that they must be expressed. Therefore, we can lose our appointments on the basis of criteria that recognised religious celebrants are not threatened with at all.

We are in a very difficult position as far as the law around the Marriage Act. It is quite obvious that the act, when it was put together in 1961 by Garfield Barwick, was to try and bring together the states' existing rights and responsibilities to do with marriage and to put together an act that tried to look after everyone. Civil celebrants came along after that, and I think that is why the whole Marriage Act needs to be looked at, not just in relation to these particular issues.

CHAIR: As I said, maybe that is for another committee and another piece of legislation. Ms Holland.

Ms Holland : As an opening statement, Engage Celebrants supports same-sex marriage and I want to discuss some of the items raised around discrimination, et cetera. As you have said at the moment there are situations where a celebrant may not feel comfortable performing a ceremony or may have different beliefs to the couple getting married. Yes, if you are aware of it at the time of organising the booking, you can obviously discuss whether or not you are available for that function.

It will be partially self regulating. In regard to right now, if someone is looking for a certain type of celebrant—

CHAIR: Just for the record, there is currently a code. It is not self regulated; it is put down by the Commonwealth government, which is my understanding.

Ms Holland : Yes. The current code of practice does actually prevent us from preventing and avoiding unlawful discrimination in the provision of our marriage celebrancy services. Under our code of practice we need to comply with that. Likewise there are circumstances where people have accepted and made a contract with people to perform services and have then found out that they disagree on personal beliefs with the couple. That obviously causes some issues, which are different to, upfront, being able to negotiate whether or not you enter into the contract.

CHAIR: Contractually.

Ms Holland : Yes. When you take a booking you are signing a contract with that couple for whom you will perform those services. When people come to us and ask about finding a celebrant, the first thing we say to them is to choose a celebrant they can build a rapport and relationship with who is going to perform the ceremony that meets what they are looking for out of their ceremony and their marriage. I would assume that in most cases a same-sex couple is not going to approach or engage with a celebrant who does not support same-sex marriage. As we have seen through all of the debates, it is obviously something that some people support and some people do not, and that happens within the celebrant industry as well. I have seen a lot of that. To single out and say, from a Marriage Act perspective, that a celebrant can choose whether or not to perform a same-sex ceremony is isolating same-sex ceremonies. There are other beliefs, religious beliefs or other personal beliefs, that people may also want to be able to opt out of should the case occur.

CHAIR: Can I just return to Mr Lammond. How many of your members would be of faith and would exclusively marry people from that faith?

Mr Lammond : Most of our members are civil marriage celebrants. We do have a number of non-aligned religious ministers, who are actually in the same group are civil celebrants. As Rona said earlier, there used to be civil celebrants and non-aligned religious celebrants, and in 2003 they were put into the one pot. We do have some who are affected, but they are very low numbers in our membership. A lot of the non-aligned ministers are not members of associations.

CHAIR: I just wondered what would have brought people to that profession. It might have been because they were able to fill a need in that religious community, perhaps.

Mr Lammond : It is strange. Over the years many people come into civil celebrancy because they see a celebrant doing a wedding for 20 minutes and think you can make a million dollars overnight. They come in with that perception. The people of particular faith are actually non-aligned ministers of the small non-recognised churches. Obviously, there would be a lot of civil celebrants out there who are involved in churches, but they predominantly do civil ceremonies.

Ms Goold : Can I make an opening statement? I got involved with a comment about section 47.

CHAIR: Yes. You guys all heard that exchange?

Ms Holland : Yes.

Ms Goold : The Civil Celebrations Network support gay marriage. We see a ceremony as a very powerful civilising agent in any community, whether those ceremonies be religious or civil. We think marriage is not the only important ceremony. Funerals, namings and other ceremonies also impart cultural values. Marriage in Western tradition is a civil function and not a religious function. That the religious churches got involved with marriage along the way is, from our association's point of view, not relevant. In Australia marriage is a civil function and, under the Marriage Act, the religious are given the right to perform those ceremonies on behalf of the state.

Enlightened countries should be removing discrimination based on a number of factors. If you go back into the history of marriage, there has been discrimination around race. Aboriginal people had to have approval to marry and so on. A lot of what is behind changes in attitudes to marriage is also to do with removing discrimination against women.

We believe the principle of private sexual behaviour between consenting adults is not the business of the state and that is a principle that has been hammered out over the last 50 years. We do believe that that principle of adults is a very important principle for a society to uphold; therefore, we think that the definition of marriage should not be between two people but between two adults. The current definition of 'man and woman' implies a level of maturity. In a changing world, we think that the declaration of human rights of 1948 actually encompasses a lot of what is a baseline of ethics for the common good in communities, particularly in those communities where there are different religious belief systems and non-belief systems.

As I said before, the Marriage Act in itself is discriminatory in a number of ways. It discriminates against couples in terms of what they can say, how they can say it and so on. Australia actually leads the world in civil ceremonies. We believe that it is taken for granted in our country that there are times when we perform a ceremony between, perhaps, a Muslim person and a Hindu or a Catholic and a Muslim, and because we are able to celebrate that relationship in a civil setting—we do not see the word civil as being equivalent to 'secular'; we see 'civil' has been an inclusive space. We recognise and respect for people at that gathering and try to make sure that everyone is treated with respect as an inclusive process—we think that civil ceremonies are really an important socialising thing that is happening in Australia. Recent changes in the last decade have in fact not upheld those principles that we started with. We were in fact, I believe, a human rights program when we started in 1973, because we gave people the choice of not having to have a religious ceremony: they could have a choice of the wording of their own ceremony. Secondly, it was an affirmative action for women, because, in 1973, 60,000 people in this country who married couples were men. So we see this as part of that whole process of an evolution of what is marriage and what our role is in community as a civil society.

CHAIR: Sorry, what did you say about the 60,000?

Ms Goold : In 1973, when the civil celebrant program was started, there was a loophole in the act, when Garfield Barwick wrote that the Commonwealth could appoint celebrants, that marriage celebrants were appointed under Commonwealth rather than under state registration. But at that time, almost exclusively, the people who were performing marriages in this country were all men.

Dr STONE: Civil celebrants?

Ms Goold : I think something like two per cent of marriages were done in registry offices, most of which were performed by men, and the rest were marriages done in churches—and most of them were done by men. I believe that one of the first things that happened with the program was that a lot of younger women were appointed to really make the point that marriage could be performed by both sexes, not just by males, and by younger people as well as older people.

CHAIR: I notice you touched on the age requirement—it is a little bit outside the inquiry—and the fact that it should be 18, whereas my understanding is—

Ms Goold : As I said, we have recommended that marriage be defined as the union of two adults to the exclusion of all others, voluntarily—

CHAIR: So there would be no exemptions—for example, with parental permission?

Ms Goold : How do we define adults?

CHAIR: Eighteen-year-olds.

Ms Goold : That is the legal definition, however, the current Marriage Act does allow for one of the parties to be between the ages of 16 and 18. We think there are probably circumstances—respecting people of different faiths—where there are where somebody is mature enough between 16 and 18, but not both. We have not attempted to raise the issue as directly as saying: 'It should be all 18.'

CHAIR: Sorry, I thought that is what you were asserting.

Ms Goold : No. When we stand before couples in civil marriage ceremonies, often with up to 140 guests, we are making statements before a community of people. We are upholding marriage as being an important, respectful relationship in which the couple are going to love and care for one another for the rest of their lives, hopefully. When we are required by law as Commonwealth celebrants to state a definition of marriage, which religious celebrants are not required by law to state, we are informing the community what the definition of marriage is. We believe that is an important part of the role we play: to remind people that marriage is a consensual relationship between two adults. As to the maturity of one of those, the act currently allows that to be slightly—

CHAIR: One is the exemption.

Ms Goold : Only one of the two can be—

CHAIR: So one of them can be immature but the other one—

Ms Goold : It depends on whether you call adulthood just on age. There are plenty of people who might not be adults.

CHAIR: I have certainly met some people in their thirties who were not mature.

Mr NEUMANN: The Commonwealth legislation currently allows flexibility, with the courts to determine capacity to marry, effectively, up to 16. Why should the federal government, for example, defer to the states? For example, in my home state of Queensland, the Age of Majority Act 1974 says 18. Before that it was 21. What if the new LNP government in Queensland decided to make adulthood 30? Why should the federal government defer to the states on this issue?

Ms Goold : I am not competent to answer that question.

Mr NEUMANN: That is the logical consequence of your opposition.

Ms Goold : I have worked as a high school science teacher, in drug education and in carer support work. In our association one of our key projects would be having a 'coming of citizenship' age ceremony for all 18-year-olds in this country. We believe there is a lot of emphasis on human rights, but there is not a lot of emphasis on the responsibilities we have as citizens of this country. The age of 18, of course, came about through the Vietnam War. The argument was that, if people were going to be conscripted, they should be able to drink. I do not think we are going to be able to change the whole lobby back to putting the age of consent back up to 21 in the climate we currently have in this country. I think it is much more important that we send a clear message that we have 18 as the age at which you can marry, you can enter into legal contracts, you are tried by an adult court and you are able to vote. There are a whole lot of things that come around—

CHAIR: Seventeen if you are in Queensland.

Mr NEUMANN: There is a whole host of stuff where you are wrong on that, where people at 18 years of age have the capacity to do certain things. For a start, I do not think the federal government should be deferring to the states on this. There is a real danger in what you are saying. You are throwing in all the jurisprudence that we have had in case law in this area. I can understand your argument, but this one is a nonsense argument.

Ms Goold : I am not a lawyer; I am a person who conducts marriages on behalf of the government. Marriages in Australia are under one act and I believe it should be the same for every Australian—the basic principles of the Marriage Act. I have said that I believe that it should be between adults, because that is the principle upon which we as a society have said that—

Mr NEUMANN: It should be, but we have provisions under the current legislation—

Ms Goold : I will leave it to you gentlemen to figure out what that aspect is.

Dr STONE: As you are aware, in four of our states we have provision for civil unions. Some are referred to as registrations. Are you noting, as civil celebrants yourselves, any trend for heterosexual couples to say, 'We don't want this called a marriage; we want this to be called a civil union'? Are you detecting any move—since, I presume, you have been marriage celebrants for a very long time—any change in people's view about something called a marriage and something called a civil ceremony or a civil union?

Ms Goold : Quite a few of us do commitment ceremonies already. Coming back to my statement at the beginning about the role of ceremony in society, the role of ceremony is really powerful and really important. Therefore I believe that, if we are not going to discriminate, we need to include all adults as being capable.

Dr STONE: That was not quite my point. Are you noting an evolution in people's embracing of the iconic term 'marriage' and being just as happy, even as heterosexual couples, to have their commitment called a civil union rather than a marriage, as the hierarchy, if you like, of terms?

Ms Goold : I have noticed the odd person requiring that, but not—

Ms Holland : We have had circumstances where people have elected to have a commitment ceremony because they disagree with the Marriage Act and the words that we need to say regarding that. They have made statements to us that—

CHAIR: Those words being 'a man and a woman'?

Ms Holland : Yes, and the fact that gay couples cannot be married, so they have said, 'Until we get marriage equality in Australia, we will have a commitment ceremony.'

CHAIR: This is since 2004?

Ms Holland : Yes.

Dr STONE: And these are heterosexual couples?

Ms Holland : Yes. They have said, 'Until our gay friends can also have the same right, we will have a commitment ceremony.' I do not do the official civil unions, so I do not know whether they have gone on to have an official civil union, as I believe you can have in several states, but they have had commitment ceremonies as part of that. The part of our—

CHAIR: Which is evidence towards a de facto relationship but it does not actually have other contractual legal rights; is that right? Is this New South Wales particularly?

Mr NEUMANN: You would have no legal standing. It is just evidence that could be used—for example, in a property law case to indicate the time at which the person might commence cohabitation or a factor in terms of what would happen in relation to a parenting order case—that had no legal standing whatsoever.

Dr STONE: They do not have a signing of an official marriage certificate as supplied by the state.

Mr NEUMANN: No legal status at all.

Ms Holland : From our code of practice as well, as marriage celebrants, we must recognise the social, cultural and legal significance of marriage and the marriage ceremony in the Australian community and the importance of the strong and respectful family relationships. So, whilst civil union is around, and that has a certain, I guess, relevance in the community, why should that be enough? Why should that be enough for some of our population and not everyone?

Mr Lammond : I do believe that the civil union does not allow heterosexual couples to go through a civil union ceremony.

Dr STONE: It doesn't?

Mr Lammond : I do not believe so—certainly in Canberra. We do not have that in New South Wales.

CHAIR: I am pretty sure that in Queensland you can.

Mr Lammond : Queensland only just introduced it; it has only been in there a few weeks. I do not believe so in Canberra.

Mr NEUMANN: We have problems in Queensland currently, worrying about what might happen with the new government.

CHAIR: The last question is hopefully not too facetious. We have had evidence from I think an academic from New England in the United States about the boost to the economy from same-sex couples being able to get married. Would you like to make comment on that in terms of your industry and your livelihood? Perhaps we will start with Ms Holland.

Ms Holland : I have read the Williams Institute School of Law report and their estimates of between $161 and $742 million—if we can have some of that, great! Based on the studies of the percentage of same-sex couples who have said that if it becomes legal then they would marry, obviously with those studies the evidence of how many of those would marry would need to come through. But I do see that there would be an increased boost to the wedding industry, of which we are a part. Assuming the views on same-sex marriage by the church, I assume that the majority of those weddings will come to civil celebrants.

CHAIR: You make comment that you have been involved with many commitment ceremonies with same-sex attracted people and you have also been involved in a lot of marriages with heterosexuals. Is there a difference in terms of expenditure or events? Could you make off-the-cuff comments on that?

Ms Holland : As far as a celebrant, for me, my fees for a marriage or for a commitment ceremony are the same; I can only speak on my own fees.

CHAIR: But in terms of the event?

Ms Holland : I do not stay on for the reception—I do not know how much they pay their photographers et cetera. Based on the study they imply that it would be less per event. But obviously there will be people who have been in relationships for a very long time who have been waiting for it to be legalised. So they may not have your bells and whistles function. It is similar to heterosexual couples. Typically when I marry an older couple who have had marriages and have got a family, they may have a backyard barbeque and something fairly casual compared to younger couples, who may go for all the bells and whistles. It will be the same across the board. I do not see a huge difference.

Ms Goold : I would like to state that I do not see marriage celebrants as being part of the wedding industry. I know that might sound a bit strange, but I think that our function is to uphold the law as far as this goes, and therefore we are under conflict of interest provisions. They are very grey at the moment because of the way in which the 2003 changes came about, which basically saw us as a small business. The reality is that the federal government is appointing marriage celebrants at such a fast rate that the average number of weddings per celebrant per year now is seven, which, as I said before, is less than $3½ thousand a year. Younger celebrants do not have that particular problem because they are a minority. Only about 20 per cent of celebrants are men. If you are looking at the overall industry as a whole, celebrants are not making a full-time income. You would have to be able to do 100 weddings a year—in other words, average two weddings a week—because one of the weddings would be going on all your costs. We do not have a stipend like the church. We do not have a salary as the registry officers do. So we have to cover our clothing, our vehicles, our car, our computer, our advertising and everything else before we walk out the door. We are also, as I said, covered by conflict of interest provisions. Personally, I do not think it is right that we get tied up with the business of the reception and all the rest of it, because we are primarily there to honour a legal contract and a public oath of commitment to a relationship. It is not about the dollars per se.

CHAIR: Thanks, Ms Goold. Thank you all for taking the time to appear before us today.

Pr oceedings suspended from 12:50 to 13:50