ONGOING PROFESSIONAL DEVELOPMENT
AND
CONFLICT OF INTEREST/BENEFIT TO BUSINESS
ARRANGEMENTS FOR COMMONWEALTH-REGISTERED MARRIAGE CELEBRANTS
DISCUSSION PAPER – NOVEMBER 2016
The department is consideringoptions to reduce compliance costs and streamline regulationwithin the Marriage Celebrants Programme (the programme) so that management of the programme is more efficient and cost effective. This department, in consultation with celebrant associations, has identified professional development requirements for marriage celebrants and the conflict of interest and benefit to business provisions in the Marriage Act 1961 (the Marriage Act) as priority areas for review.
This discussion paper is divided into two parts:
Part A –Ongoing Professional Development
Part B – Conflict of interest and benefit to business
YOUR INPUT:
Your feedback is important to us. A survey for lodging your response is available at should take approximately 10-15 minutes to complete.
You may wish to read the discussion paper before providing your feedback in the accompanying survey. The survey allows you to provide feedback on either Part A orPart B or both Parts.
This discussion paper and accompanying survey are available for comment from 25November 2016until 5pm, Friday13 January2017. If you would like to provide more detailed comment, please send your submission in the attached templateby email to before 5pm,Friday, 13 January2017.
Submissions received may be published on the Attorney-General’s Department webpage, except where requests have been made to keep them confidential or where they relate to particular cases or personal information. If you wish to keep your submission private, please clearly mark the submission as confidential.
Contents
Part A: Ongoing Professional Development for Marriage Celebrants
Background
Issues
Options for change
Issue 1: OPD obligations that should be imposed on marriage celebrants
Issue 2: Timeframe for completing OPD activities
Issue 3: Subject variety and availability
Issue 4: Exemptions from OPD
Issue 5: Compliance monitoring
Part B: Conflict of interest and benefit to business
What is conflict of interest and benefit to business for marriage celebrants?
What does the Marriage Act say?
Issues to consider
Possible policy options
Option 1: retain current policy on conflict of interest and benefit to business
Option 2: retain current policy on conflict of interest and allow a narrow range of benefits to business that are directly related to the role of a celebrant
Option 3: retain current policy on conflict of interest and remove the benefit to business restrictions to allow a wider range of services to be provided
Option 4: remove conflict of interest and benefit to business restrictions
Summary of conflict of interest and benefit to business options
1
Part A: Ongoing Professional Development for Marriage Celebrants
Ongoing professional development (OPD)is intended to promote a high level of professionalism which should be balanced with the need to ensure that its administration and thecost of compliance for marriage celebrants are as efficient as possible. Thepurpose of this part of the discussion paper is to set out options for possible future OPD arrangements for marriage celebrants to ensure that the requirement can be met by celebrants as cost-effectively as possible to achieve its purpose.
Background
Since 2003, the Marriage Act has required all Commonwealth-registered celebrants to undertake professional development activities as required by the Registrar of Marriage Celebrants (theRegistrar) in accordance with the Marriage Regulations 1963 (the Regulations). Regulation 37M currently requires marriage celebrants to complete at least five hours of OPD, including any compulsory activity, from a list that is published by the Registrar. The department prepares a compulsory activity which is delivered by a panel of approved OPD training providers[1] and approves elective activities submitted by the panel (and conference activities submitted by celebrant associations) for inclusion in the list.
At the end of each year, training providers send the department details of celebrants who have completed OPD and the department identifiesthose celebrants who have not. The ability to closely and accurately monitor compliance and impose disciplinary measures where required, has resulted in very high OPD compliance rates (94% of celebrants met their OPD obligation in 2015). Disciplinary measures that are imposed for non-compliance may include a caution, additional OPD, suspension or deregistration, depending on the individual circumstances of celebrants.
Prior to this arrangement, anyone could apply to have an elective activity approved by the Registrar. Ascelebrancy training was in its infancy and options were limited in many areas, celebrants could also apply to have a relevant course that was locally available count towards their OPD. Thisprocess was resource intensive and many celebrants expended significant effort identifying appropriate courses, seeking approval from the department, and submitting annual returns. Feedback from the time suggests that manyof the proposed OPD training courses were under-developed and unsuitable, whilesome locally available courses had limited relevance to a marriage celebrant’s role. The department does not propose to return to a system where activities from a broad range of providers would be approved by the department.
OPD should be sufficient to ensure a high standard of service by the celebrant and ensure that their knowledge remains current, without creating unnecessary overheads and burden. Requirements that are imposed must bebalanced againstany risks to the community that could arise from unprofessional services. Whilethe legal risk of marriage celebrants not adequately performing their role is minimised by section 48 of the Marriage Act (which preserves the validity of a marriage where errors have been made), errors can cause considerable work for BDMs and the department. In addition, marrying couples often have a large emotional and financial investment to ensure that their marriage ceremony is a memorable one. Asthe celebrant has a central role, a great deal of distress can be caused by mistakes or unprofessional services and can lead to complaints from marrying couples.
Issues
Most feedback received on OPD, through a questionnaire sent to all celebrants in 2015,was positive with celebrants indicating that they were satisfied with the range of activities, found the contents of the activities useful and relevant, and felt that the trainers were well equipped to deliver the training. Many celebrants felt that OPD also gave them a chance to network and share experiences.
A number of celebrants noted that OPD was expensive, repetitive and not appropriately targeted to the level of experience of the celebrant. Although the feedback on the compulsory activities, which focus particularly on legal obligations, marriage paperwork and marriage law content waslargely positive, a number of celebrants identified these activities in particular as being repetitive. Somecelebrants noted that the requirement for newly appointed celebrants to undertake OPD seemed unnecessary given they had just completed their Certificate IV in Celebrancy and they did not feel that they benefitted from the additional training.
Celebrants also frequently cite the cost and availability of OPD as barriers to their compliance and have expressedthe view that, when added to the annual registration charge, the cost of OPD is too much, in particular given the low number of weddings that they perform. A number of celebrants advise the department each year that they have experienced confusion about the requirement to complete OPD during a calendar year, when their registration was for the financial year. This is despite the department regularly reminding celebrants about the timing of their obligations.
The current OPD framework also continues to require a significant investment of resources by the department to check compliance of all celebrants, develop the compulsory OPD course each year, and check the marriage law content of elective activities and association conferences, all of which contributes to the cost of running the programme. The close monitoring of OPD is not a typical feature of professional development programmes in other professions. Many other professions such as lawyers and accountants are responsible for maintaining their own professional development records (subject to audit).
Options for change
Below are a number of options for change.Any refinement of OPD for marriage celebrants could include a mixture of the following options. We seek your feedback to help the department ensure that the OPD framework is achieving its purpose with the minimum amount of impact on celebrants.
Issue 1: OPD obligations that should be imposed on marriage celebrants
Number of OPD hours required for completion each year
Consideration could be given to whether or not five hours each year is an appropriate number of hours to adequately update and refresh skills. For example, a five hour requirement may be excessive in certain years if there are no substantial legal changes. For the last three years the compulsory legal activity has been two hours in duration and has focussed on a celebrant’s legal obligations under the Marriage Act. The department could take the option of only preparing a compulsory activity in years where there has been a change to the legislative framework, or where a significant legal gap in knowledge has been identified. Changing the number of hours required each year could also be confusing for celebrants who would need to keep track of each particular year’s obligation. Training could be delivered by any approved training provider or may be made available directly by the department, for instance as an online test that the celebrant must complete (similar to the application test that must be taken by aspiring celebrants in NZ). In years where there was no compulsory activity, celebrants could be required to complete only three hours of elective activities.
Inconsidering this, it is likely that those celebrants who are engaged and pro-active in their role may already be doing more OPD than required by legislation. However, those celebrants who are less engaged or who are not actively conducting weddings may also be disengaged from OPD and not getting the most from their participation. A decrease in the number of required hours would reduce compliance costs for most celebrants. Celebrants looking to expand or further develop their business could seek additional development opportunities beyond the minimum legislated requirement.
Issue 2: Timeframe for completing OPD activities
Requirement to complete OPD in a calendar year
Many celebrants experience confusion about the requirement to pay the annual charge at the start of a financial yearand the requirement to complete OPD each calendar year. Consideration could be given to aligning the OPD (calendar) year to the registration (financial) year, so that marriage celebrants are only required to manage their registration at a single point throughout the year.
Many celebrants who are considering retiring do so at the conclusion of a financial year before the annual registration charge is due andintentionally decide not to comply with OPD in their final year of registration. As the OPD year and the registration year are out of sync, this can mean that they receive a disciplinary measure and blemish an otherwise perfect record. It is also administratively inefficient to capture those celebrants intending to retire in the department’s OPD compliance process.
Many new celebrants experience confusion about the two different timeframes for meeting their obligations. Each year approximately 25% of the celebrants who are followed up for possible non-completion of OPD cite confusion between the registration year and OPD year as a reason for their non-compliance.
In addition to these issues, the department experiences problems each year with late applications for an exemption from OPD. The department typically closes down for the Christmas/New Year period and with the last date for exemption applications falling on 31December, the department is not available to advise celebrants who may be seeking last minute assistance. Although celebrants should be applying for these exemptions well ahead of this period so that they have an opportunity to undertake OPD in the event an application is not granted, this is often not what occurs.
If the OPD year was aligned to the registration year, it is proposed to have a six month transition period between the conclusion of the OPD year on 31 Decemberand the commencement of the new OPD year on 1 July. The department could either allow celebrants an eighteen month period in which to complete their OPD in the first year or allow a six month period without an OPD obligation. If this change was to occur, it is likely that the transition would occur in 2018-19 to allow appropriate time for communication and fair notice for OPD training providers of this change.
Issue3: Subject variety and availability
Currently, thepanel of four training providers deliveraround 175 OPD activities. In addition, the department approves two or three celebrant association conferences each year. There are a number of additional types of activities that could be considered to count towards OPD for celebrants. Forinstance, celebrant associations have expressed interest in being able to hold workshops and have other networking eventsas part of OPD. Some Registries of Births, Deaths and Marriages have also expressed an interest in holding their own training courses for celebrants.
Currently, the range of activities that the Registrar will approve for OPD is restricted to courses that are relevant to general small business development and marriage ceremonies. Some celebrants have identified a desire for courses that focus on other types of ceremonies that a marriage celebrant might perform, such as funerals or name-giving ceremonies,to also count towards a celebrant’s OPD obligation. As the department is only responsible for the regulation of marriage and the purpose of ongoing professional development is to ensure that the marrying public receive professional and legally accurate services, any expansion of the range of activities will still require a link to the particular role of a marriage celebrant.
3.1 Guidelines for appropriate activities
It is open to the department to move away from the approved list of OPD activities and instead prepare guidelines about what kinds of activities can be counted towards OPD. This could allow celebrants to self-identify courses that would benefit them and could include a wider range of learning opportunities, both formal and informal such as university courses, peer review and mentoring or work-based learning, participating in conferences, workshops and other communities of practice as appropriate OPD activities. This could only be implemented in conjunction with celebrants self-monitoringtheir own compliance (seeissue5below). Many other professional development programmes operate in this way, with the professional being in control of what activities they think will develop them professionally.
If this option were to eventuate, the department does not propose to pre-approve each course that might be identified by a celebrant as this would be administratively inefficient. The department anticipates that any guidelines prepared for this purpose would need to be as specific as possibleto avoid any disagreement about appropriateness which would require individual attention and resources to resolve. In the event that a celebrant was suspended or deregistered for non-compliance with OPD these disagreementsmay also end in an appeal to the Administrative Appeals Tribunal, with associated costs for both the celebrant and department.
3.2 Panel of training providers
The current panel consists of four training providers who were successful in an expression of interest process that required them to demonstrate that they could develop and deliver high quality OPD activities to marriage celebrants. Applicants were required to be registered training organisations (RTOs) approved under the vocational education and training standards and meet other financial and administrative requirements.
If it is agreed that the Registrar should maintain a list of approved OPD activities (rather than have guidelines – see 3.1 above) the department would also need to identify appropriate providers. The options are to:
i) Update the OPD panelof providers through a selection process
This process (which is currently used) would specify minimum requirements, such as being an RTO (all currently have the Certificate IV in Celebrancy in scope), ability to comply with reporting on attendance to the department, ability to deliver training using suitably qualified trainers and using adult learning principles. Under this option, in addition to the panel of providers,we propose that BDMs would also be permitted to deliver recognised OPD and celebrant association conferences would continue to be able to be approved as OPD activities.
ii) Identify a broad category oftraining providers that could submit OPD activities
Instead of having an OPD panel of providers identified through a selection process, the department could allow categories of OPD providers, such as any RTO,any RTO with the Certificate IV in Celebrancy in their scope, any BDM or any celebrant associationto submit an activity for inclusion on the approved list.
Substantially increasing the number of providers who are able tooffer training could lead to more variety incontent.However there could be less control by the department and potentially it could be more administratively burdensome to maintain. Depending on the number of activities submitted, it may not be possible for the department to provide substantial input on content, as it currently does. This would need to be considered against the possible benefits of greater choice of training provider and perhaps more variety of activities.
Issue 4: Exemptions from OPD
Exemption for first year of registration
Many celebrants in their first year of registration have questioned the relevancy of OPD to their circumstances, given they have usually just completed a Certificate IV in Celebrancy. Thedepartment could exempt all newly registered celebrants from OPD in the year that they are registered if their qualification was completed close to the time they apply (for example, within 12 months). Another consideration is that OPD could be useful to a newly registered celebrant as it could be used to foster networks and identify other like-minded celebrants, to addresspracticalities/issuesas they establish their business, or to establish an awareness of their obligation from the very beginning of their registration.