For years now, I have been freely answering questions for Celebrants. I have often used the phrases “Commonwealth Officer when exercising our duties under the Marriage Act” and “Agent of the Crown” as dually synonymous in my answers.
During the 15 October 2008 OPD meeting, The Registrar of Marriage Celebrants, Ms Nance, publicly took me to task for saying these two phrases. I was quite taken aback and argued that we indeed were both. She categorically rejected my assertion that Civil Marriage Celebrants are “Commonwealth Officers” and yet seemed to be unsure whether or not we are Agents of the Crown, following my attempt to engage her on these points.
Having been a past Commonwealth Public Servant employee, I can understand her reluctance on this matter. Commonwealth Public Servants are entitled to certain benefits, including coverage by Comcare, the government’s own injury insurance scheme. Were her department required to cover all the many thousands of Civil Marriage Celebrants under the Comcare, they would have budgetary financial coverage problems. This could mean an immediate halt to the massive appointments of new Marriage Celebrants.
Actually, according to the current operating Commonwealth Crimes Act 1914 (as amended) Civil Marriage Celebrants are covered by the Criminal Code Act 1995 (as amended) as performers of the duties of a “Commonwealth public official”.
It is a Commonwealth crime to intend to dishonestly influence, or conspire to influence, or to attempt to or to actually bribe, or to threaten to harm or to actually harm, or to intimidate, or to make false statements to, or to present false documents to, or to obstruct, hinder, or resist a Commonwealth public official in the performance of the official's functions.
So who is a “Commonwealth public official”?
According to legal practitioners, it means any person holding a Commonwealth authority, duty, function or power that is conferred on the person by the Commonwealth. It is an individual who holds or performs the duties or functions of an appointment, office or position under a law of the Commonwealth. Therefore a “Commonwealth public official” is every appointed and Registered Commonwealth Marriage Celebrant.
Ms Nance can therefore correctly argue that we are not Commonwealth Public Servants in the strict paid Employee sense, since the government does not pay Marriage Celebrants a salary, nor does it provide any or many gratis benefits to Marriage Celebrants, besides exclusive compulsory OPD training (in the past) at government expense.
There can be no doubt however that an appointed and Registered Marriage Celebrant is a “Commonwealth public official” under the meaning of coverage under the aforementioned Legislative Acts, whose functions, responsibilities and obligations are specifically mandated to these Commonwealth public officials. A Registered Marriage Celebrant is therefore most definitely a Commonwealth public official when exercising any marriage related duties or functions under the Marriage Act.
I contend that should I or any other Marriage Celebrant be injured in the course of my duties as a Commonwealth Registered Marriage Celebrant that eligibility for medical bills payments should be covered by Comcare.
I also contend (as I did in my October interchange with Ms Nance) that charging, whom I now know is a “Commonwealth public official, and whom I believe to be an Agent of the Crown, to learn “Compulsory” information about that official’s duties or functions is contrary to the public interest and is nothing short of scandalous as a breach of Crown delegated authority!
Being an “Agent of the Crown” is also a difficult concept for many of us and indeed for the government to grapple with, for a number of different reasons.
I have observed over the years that quite a few Civil Celebrants see Marriage Celebrancy as a business, just like the rest of their Civil Celebrant functions. Oh, they know that to be able to legally solemnize a registered marriage they must be given a letter written by someone in AGs in Canberra.
But for many celebrants this is just some sort of minor vetting to ensure that one is a “fit and proper person” free of some strange ‘conflict of interest’ connections and bureaucratic red tape to attest that one has not been convicted of a serious (non traffic) crime. One Celebrant told me that it was “Sort of like the formality that one has to go through with a police check to work with children”.
This is compounded by the fact that training to be a Marriage Celebrant can cost less than $500 and take as little as a weekend with virtually no one flunked. Add to this the fact that no interviews for suitability or language or presentation skills, or history of Celebrancy etc are undertaken. It seems indisputable that AGs letters of appointment are given out to virtually all those who have taken accredited training and that many have been coached to answer any AGs staff written questions ‘properly’. The lack of a relevant commemorative Certificate suitable for framing of the status of a Citizenship Certificate also adds to the diminution of the appointee’s perception of oneself in the governmental scheme of things.
As Tony Gelme asked in an online forum on 8 th Sept, 2008 “… So, did the Government put in place a stringent selection and training scheme to ensure would-be marriage celebrants will be properly selected, trained and appropriate for the position they will hold as Agents of the Crown?” The answer to Tony’s plaintive query, of course is a resounding “NO!” Therefore, is it any wonder that there is a concept that Marriage Celebrancy is just another business venture or lucrative hobby?
In fact, an experienced Marriage Celebrant recently stated to me online that Marriage Celebrants are really just like any other federal government contractors who make a submission to the government to tender for government work. This is presumably after proving that they are capable by reason of training to accomplish the task for which they are asking to get a federal contract, and for which a need presumably exists!
My response was to note that Marriage Celebrants are appointed by the Attorney General (AG), a Minister of the Crown. The Marriage Act and the Marriage Regulations have been assented to by the Crown’s Representative and Royal Proclamations issued. Marriage Celebrants (unlike other Civil Celebrants) hold an office of Commonwealth legal responsibility assented to and proclaimed by the Representative of the Sovereign in Australia and enacted by the Parliament operating under the designated Queen of Australia.
Marriage Celebrants hold a secular sinecure with de jure responsibility which originally had a degree of political patronage attached to appointments. Marriage Celebrants are not chosen in the same manner of any one designated as a contractor (provision of competitive or benchmarked tenders, etc) of the AGs Department.
Why is this important?
Because there are two ways in which one can become an agent of the Crown. The first is when the Crown exercises sufficient control over it so that it can be said to be in /de jure/ control, which requires a careful examination of the relationship between the parties, The second way is for the legislature to expressly legislate it to be an agent.
Marriage Celebrancy does not meet the second criteria but it certainly meets the first criteria. There is no doubt that there is de jure (of the law) quite tight control of Marriage Celebrants within this Constitutional Monarchy.
I have at other places waxed eloquent about the Commonwealth Registered Marriage Celebrant as a Platypus (a quite peculiar and very unique egg laying mammal with bird feet and duck bill that has fur but lives in the water and acts like a beaver, is poisonous etc) because Marriage Celebrants look like something other than that which we in fact actually are. We cannot exercise any Solemnization of marriage power unless we are appointed and controlled by a designated Minister of Her Majesty, the Queen of Australia or her successor (until we are a Republic).
So de jure control?
By Law and Regulation and by opinions of the delegate - the Registrar or her staff - Marriage Celebrants must use certain words, interpret words in a certain narrow manner, use certain governmental forms and maintain certain procedures, account for exactly what we do, attend certain governmental mandated or approved courses, constantly meet certain performance criteria, buy only certain documents from a certain designated monopoly supplier, issue certain written statements, not have conflicts of interest, not co-advertise other activities, keep track of keep secure certain used and unused numbered governmental documents, meet certain strict legislated timelines, adhere to a governmental code, etc, all of which lead in one de jure controlled direction and therefore qualifies Marriage Celebrants as that type (de jure) of an Agent of the Crown. If we were so tightly controlled by any other entity than the Crown, we would be de facto employees for tax, and other purposes!
Prosecutors are Crown Prosecutors. Vacant land held by the government is called Crown Land. James Bond was an agent of the Crown in Her Majesty’s Secret Service, just like the Federal Agent that was the groom in a recent marriage ceremony that I attended as a “government witness”. Marriage Celebrants are agents of the Crown.
Now let’s look at the appointment process.
Marriage Celebrants are appointed by the same Minister of the Crown as certain other Crown representatives. His other Crown appointees are Judges, Justices, Federal Magistrates and Administrative Appeals Tribunal Referees (except that these are all appointed on a realistic present or projected ‘needs only’ basis). These procedures are not how contractors are selected for temporary provision of service.
Marriage Celebrants have no statutory "Sunset Clause" to appointments as Marriage Celebrants. Marriage Celebrants have no mandatory retirement age stipulated anywhere. Marriage Celebrants are appointed to sinecure for life, unlike contractors, who hold a position only temporarily. Marriage Celebrants must be Australian Citizens to hold an appointment, unlike contractors. Marriage Celebrants cannot hold the office except as a true person; not as a company or corporation, as general celebrants can choose to do in the course of other Civil Celebrant activities.
Marriage Celebrants cannot grant heirs Marriage Celebrancy privileges, rights or duties in wills, unlike contractors. Nor can Marriage Celebrants on-sell or even delegate or subcontract Marriage Celebrancy functions, unlike contractors. Nor can Marriage Celebrants sell any Marriage Celebrancy accumulated specific "good will", as can be done with other Civil Celebrancy income- generating accomplishments, unlike contractors.
However, the main reason to constantly remind ourselves that Marriage Celebrants are Agents of the Crown is what The Registrar constantly reminds us.
We represent the government (from the Sovereign on down) at one of society's most important legal change of status occurrences. Heterosexual couples can commit to each other but without Marriage Celebrants acting for the Crown, it means very little or nothing for society or the Commonwealth or indeed for the rest of the world.
From the moment we receive and date and sign the Notice of Intended Marriage thus validating the NoIM as a legal document, to the placing of our signature on the Official Marriage Certificates at the end of wedding ceremony, which we are required to securely store for years in the one instance and to forward in the other, our officialness as Commonwealth public officers and as Agents of the Crown has all sorts of ramifications for all concerned.
If we are not agents of the Crown as Marriage Celebrants in compliance with the legal definition of a de jure Agent of the Crown, with all the restrictions sanctioned by a Minister of the Crown, whose agent are we?
Unlike many Civil Marriage Celebrants, I do not consider that I am a sole proprietor business person when exercising my legal powers and responsibilities and when satisfying my legally mandated and regulated obligations. I am an Agent of the Crown and always try to act accordingly, as an appointed Citizen Marriage Celebrant of this Monarchy.
Until we are a Republic, we Marriage Celebrant Commonwealth public officers are frankly, Agents of the Crown, in my considered opinion.
Charles Foley
Canberra Region Civil Celebrant/Officiant
