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8 July 2018

Most of you probably didn’t pay too much attention to the fact sheet that was released on Friday 6 July 2018, in the email advising the new Guidelines were out. I certainly didn’t until someone brought an apparent typographical error to my attention. You can have a read of it here:

Fact sheet re one month notice

According to the AFCC, who spoke to MLCS after the fact sheet was released, it is not an error but NEW GUIDANCE on how we are to calculate the one month’s notice period.

I wrote this email to MLCS today. I’ll keep you posted on the response…

Dear MLCS

I am¬†very¬†concerned about the new fact that was released on 6 July 2018¬†setting out¬†new guidance¬†about¬†giving one month’s notice,¬†which is inconsistent with the advice provided by the AG’s department since 2011. As this is causing considerable confusion to celebrants, some of whom are wondering whether they need to advise current clients who have given notice in accordance with the previously issued guidelines to seek a shortening of time from BDM, can you please clarify the situation urgently. I¬†am teaching OPD to celebrants on 15 July 2018 and have no idea what to tell them.

Interpretation

The fact sheet refers to item 7 in the table at s36(1) of the Acts Interpretation Act and states that the if a period of time is expressed to end before a specified date, then the time period does not include that day. It also refers to two examples set out in the Acts Interpretation Act:

  • Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year (which I understand means it ends on 14 January).
  • Example 2: A month starting on 31 August in a year ends at the end of September in that year¬†(which I understand means 30 September).

Further, the fact sheet states that having regard to the definition of a month in s2G the time period does not include the marriage day, which on a clear reading of the examples in Item 7 would mean respectively that the marriage day would be 15 January or 1 October. However, the fact sheet goes on to provide an example that appears inconsistent with the information above two examples. The example in the fact sheet is:

  • If the parties to an intended marriage give notice to the celebrant on 15 November, the first day the marriage could be solemnised would be 16 December.

This example seems consistent with Item 6 which provides that where a period is expressed to begin after a specified day the day is not included (which could be seen as stating that the day the NOIM is lodged is not included in that day, therefore the notice period would start on 16 November in the above example), not Item 7, the one referred to in the fact sheet, which sets out the example of the calculation of a period expressed to end before a specified day.

Communication

As this is a MAJOR change to previous advice given to celebrants, the manner in which this has been communicated is less than satisfactory.

1. The fact sheet was set out essentially as an addendum to the email letting celebrants know the new Guidelines had been released. The email simply says, “the department has published a new fact sheet”. Nowhere does it say, “this new fact sheet contains a major change to the way you operate and should be very carefully read and considered.”

2. The information contained in the new fact sheet does not reflect the information contained in the new Guidelines.

  • Nowhere in the new Guidelines is the new example stating that a Notice lodged on 15 December would mean the marriage could not be solemnised until 16 December.
  • Nowhere in the new Guidelines does it explicitly say, as it does in the fact sheet, “Item 7 in the table at subsection 36(1) states that if a period of time referred to in an Act that is expressed to end before a specified day, then the period of time does not include that day. In accordance with this rule, this time period would not include the marriage day. Taken together with the definition of “month” in section 2G of the Acts Interpretation Act, further examples are provided below.” Instead, the new Guidelines provide an example of giving a week’s notice, which is not useful in the context of the Marriage Act, which requires a month’s notice.
  • Any examples of when a NOIM can be lodged and the subsequent marriage be solemnised have been removed from the Guidelines.

3. The interpretation of notice being given and the marriage being solemnised on the corresponding day of the next calendar month has been taught since I became a celebrant in 2013, and I believe prior to that as well, indeed since the Acts Interpretation Amendment Act 2011 changed the definition from one month and one day to one month on 27 December 2011. This change from the previous interpretation of one month and one day was explicitly outlined in multiple documents. The new fact sheet appears to have reverted to the prior 2011 interpretation of one month and one day.

  • The 2012¬†Guidelines on the Marriage Act 1961 for Marriage Celebrants¬†outline the previous¬†interpretation, provide multiple examples¬†and specifically state, “The information previously provided by the Marriage Law and Celebrants Section including in the¬†Explanatory Material on the Marriage Act 1961 for Marriage Celebrants¬†regarding the calculation of the one month period is no longer current.”¬†There is no such explicit statement in the 2018 Guidelines or in the new fact sheet.
  • The 2014¬†Guidelines on the Marriage Act 1961 for Marriage Celebrants¬†similarly outline¬†the previous¬†interpretation, provide multiple examples, and also include the explicit statement that, “The information previously provided by the department including in the¬†Explanatory Material on the Marriage Act 1961 for Marriage Celebrants¬†regarding the calculation of the one month period is no longer current. The Acts Interpretation Act 1901 was amended by the Acts Interpretation Amendment Act 2011 commencing on 27 December 2011.”¬†Again, there is no such explicit statement in the 2018 Guidelines or in the new fact sheet.

The definition of a month is the number one thing celebrants across the country struggle with, and the new fact sheet is only causing further confusion and distress, with many believing the November example provided is an error.If this new interpretation is indeed to become the standard interpretation for all celebrants:

  • an explicit statement needs to be added to the Guidelines and the fact sheet that previous advice is no longer current
  • the examples from the fact sheet need to be included in the new Guidelines¬†together with an explanation as to how the November example is consistent with item 7
  • and there needs to be some explanation given about why the interpretation has changed from what has been taught by celebrant trainers across the board (underpinned by the Guidelines produced by your department) over the last six and a half years.

I look forward to receiving your urgent clarification.

Update: 11 July 2018

I have received a wholly unsatisfactory response from MLCS, which simply regurgitates the information in the fact sheet with no further analysis or answers to any of my direct points.

Dear Ms Aird

From 4 May to 4 June 2018, the Attorney-General’s Department’s Marriage Law and Celebrants Section (MLCS) sought feedback on the Guidelines on the Marriage Act 1961 for marriage celebrants.

As part of this process the department reviewed and updated the guidance provided about the one month notice period.Part 4.4.1 of the guidelines and the new fact sheet, ‚ÄėNOIM – Giving the minimum one month notice‚Äô explain that both subsections 2G(1) and 36(1) of the¬†Acts Interpretation Act 1901 are considered together when calculating the minimum one month notice period required in the Marriage Act.Paragraph 42(1)(a) of the Marriage Act requires the notice to be given at a date no later than one month before the marriage day. Applying the relevant rule in the table at subsection 36 of the Acts Interpretation Act in conjunction with the definition of ‚Äėmonth‚Äô in section 2G of the Acts Interpretation Act means if the parties to an intended marriage give a notice to the celebrant on 15¬†November, the first day the marriage could be solemnised would be 16¬†December.

Further examples are included in the fact sheet, ‚ÄėNOIM – Giving the minimum one month notice‚Äô.

I trust this information is of assistance.

With regard to OPD, you mention you are an OPD trainer. Panel members are aware that if their trainers have questions relating to OPD delivery they should be raised with the MLCS through the OPD panel member. This is so we can provide a consistent response to all trainers. If you have any further OPD delivery concerns, please let the OPD panel member you train for know and they can then raise it with us. I note that this year’s compulsory activity does not cover calculating the one month notice but does mention giving one month notice. You may therefore wish to mention the updated guidelines and the fact sheet on this topic if it is raised with you at the OPD you will be delivering on 15 July 2018.

If you have any questions contact us at marriagecelebrantssection@ag.gov.au or 1800 550 343.

Kind regards

Angela Tsongas

No, Ms Tsongas, this information is not of assistance. So I responded with this:

Dear Ms Tsongas

Thank you for your email, which simply reiterated the information I have already read in the fact sheet and referred to in my email.

Will MLCS be updating the 2018 Guidelines with a statement that previous advice is no longer current, and/or providing further information to Celebrants to highlight this change?

Should Celebrants who have accepted notice on, for example, 4 July for a wedding on 4 August (in line with previous guidance and before the new fact sheet was released) seek a shortening of time for such a marriage?

What will happen if a Celebrant chooses to use their own interpretation of the Acts Interpretation Act (in line with previous guidance) and solemnises marriages on the corresponding day of the month following lodgement of a NOIM?

I look forward to your response.

As always, I’ll keep you posted on any response.

Update: 24 July 2018

Today I attended the Australian Federation of Civil Celebrants annual conference. One of the speakers was the Registrar of Marriage Celebrants from the Marriage Law and Celebrant Section, Bridget Quayle, and they were silly enough to open her session up to questions from the audience. Going into the session I was quite determined that I’d already done enough by putting my concerns in writing, but once I was in there I couldn’t help myself. I really need to work on my self-discipline.

Anyway, I asked her about the inconsistency between the two examples in the fact sheet. When I wrote my initial email to MLCS I hadn’t paid enough attention to the two examples to see that one was providing advice in line with the previous guidance, and the other in line with the new guidance.

Example: If the parties to an intended marriage give a notice to the celebrant on 15 November, the first day the marriage could be solemnised would be 16 December.

This one is the new guidance; the marriage can be solemnised a month and a day after the notice is given.

Example: The notice period for a NOIM given on 29, 30 or 31 January ends at the end of February in that year. … Therefore, for a NOIM given to the celebrant on 29, 30 or 31 January, the first day the marriage can be solemnised is 1 March of that year.

This one is the same as the old guidance; the marriage can be solemnised one month after the notice is given.

When I outlined the two examples and explained why they were inconsistent, her first response was “do you want me to sit here and read the fact sheet to you?” I said no, I already knew what the fact sheet said, and I again recited those two examples. Her next response was “that’s because November has 30 days.” No, the number of days in a month is irrelevant to the definition of “a month” if notice is given on a day that appears in the following calendar month. All she could say then was “do you really want me to waste time sitting here nutting this out with you?” at which point Ant Burke, the AFCC President, suggested we take this offline and leave the rest of the session to other questions.

I was quite frankly appalled that the Registrar of Marriage Celebrants couldn’t understand the issue at hand. If she can’t understand the definition of a month, how is a regular celebrant supposed to? She shut me down as quickly as possible. I had a number of delegates approach me afterwards, thanking me for my question and congratulating me on holding my ground. Ant has promised to speak to me further about it before taking the argument back to MLCS. Watch this space…

Update: 26 July 2018

Oh dear. It appears not even the BDMs were properly informed of this change. Here’s the text of an email exchange I’ve had with the Victorian BDM over the past few days:

20 July 2018:

Hi BDM

Can you please advise whether the online registration system will be updated in line with the new guidance on the one month’s notice period that was issued by the Attorney General’s Department on 6 July?

Thanks

Sarah

25 July 2018:

Hello Sarah,

Please note that at present our online system is in line with the one month period.

Kind regards,

25 July 2018:

Hi team

I know it’s in line with the old interpretation of one month, but the Attorney General’s Department released new guidance on 6 July that if a couple lodges a NOIM on 15 November they can’t get married until 16 December. This is in line with the pre-2012 interpretation of one month and one day. Please see the attached fact sheet for further information.

Can you please confirm whether BDM will be updating its systems in line with this new guidance?

Thanks

26 July 2018:

Dear Sarah,

Thank you for your email, please be advised that we have contacted Attorney General Department to clarify the new guidance.

You will be notified once we receive reply from AGD.

As always, I’ll let you know any updates…

Update: 27 July 2018

Today I finally received a response to my email of 11 July. It was a form response that I know a number of other celebrants have received, but it’s a start.

Dear Ms Aird

I refer to your further email expressing concern about the revised guidance on how to calculate the minimum one month notice for the purposes of section 42 of the Marriage Act 1961.

Some celebrant representatives and individual marriage celebrants have written to the MLCS expressing concern that the MLCS has made an error in the revised guidance. We appreciate that celebrants may have concerns about the changed approach in the guidance and the new fact sheet. In developing the revised guidance, the MLCS consulted the area within the department that is responsible for the Acts Interpretation Act 1901 and also sought advice from the department’s office of corporate counsel. In other words, the MLCS sought internal legal advice.

We are in the process of arranging a teleconference with celebrant associations to discuss the one month notice period with a view to gaining a better understanding of what celebrants are concerned about.

We will write again following the teleconference.

Kind regards

Angela Tsongas

Further to this email, Peter Gourlay and I have again agreed to work with Ant Burke on a response, hopefully before the teleconference with associations mentioned in this email.

Update: 29 July 2018

Here’s the text of the full response I’ve sent to Ant Burke and Peter Gourlay. It’s an extension of what I wrote in my initial email to MLCS.

Interpretation

The fact sheet refers to item 7 in the table at s36(1) of the Acts Interpretation Act and states that the if a period of time is expressed to end before a specified date, then the time period does not include that day. It also refers to two examples set out in s2G(1) of the Acts Interpretation Act:

  • Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year (which I understand means it ends on 14 January).
  • Example 2: A month starting on 31 August in a year ends at the end of September in that year¬†(which I understand means 30 September).

We have been told that Item 7 of s36(1) means that if a period of time is expressed to end before a specified day, that specified day (i.e. the marriage day) is not included in the period of time. The marriage day has never been included in the period of time calculated as per previous guidance, so if the marriage day is on 15 January, the notice period is 15 December to 14 January. On a clear reading of the examples in Item 7, for the examples in s2G(1), respectively the marriage day would be 15 January or 1 October. However, the fact sheet goes on to provide an example that appears inconsistent with the information above two examples. The example in the fact sheet is:

  • If the parties to an intended marriage give notice to the celebrant on 15 November, the first day the marriage could be solemnised would be 16 December.

The two examples provided in the fact sheet are also inconsistent with each other, leading to further confusion. One states that the notice period required is a month and a day, and the other states the period required is a month.

Explanation and example in s2G(1) of Acts Interpretation Act 1901 Example in Guidelines on the Marriage Act 1961 for Marriage Celebrants, July 2014 Example in Notice of Intended Marriage – giving the minimum one month notice fact sheet, July 2018
Mid-month notice and marriage date In any Act, month means a period starting at the start of any day of one of the calendar months, and ending immediately before the start of the corresponding day of the next calendar month … [emphasis added]Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year. A month starting on 15 December in a year ends immediately before 15 January in the next year (therefore the first day the marriage can be solemnised is 15 January). If the parties to an intended marriage give a notice to the celebrant on 15 November, the first day the marriage could be solemnised would be 16 December.This example provides guidance that the marriage could take place a day later than previous guidance.
End of the month notice and marriage date In any Act, month means a period starting at the start of any day of one of the calendar months, and ending immediately before the start of the corresponding day of the next calendar month, or if there is no such day, at the end of the next calendar month [emphasis added].Example 2: A month starting on 31 August in a year ends at the end of September in that year (because September is the calendar month coming after August and does not have 31 days). A month starting on 29, 30 or 31 January ends at the end of February in that year because February is the calendar month coming after January and does not have 31 days (therefore the first day the marriage can be solemnised is 1 March). …for a NOIM given to a celebrant on 29, 30 or 31 January , the first day the marriage can be solemnised is 1 March of that year.This example provides guidance that the marriage could take place on the same day as previous guidance.

Communication

As this is a MAJOR change to previous advice given to celebrants, the manner in which this has been communicated is less than satisfactory.

The fact sheet was set out essentially as an addendum to the email letting celebrants know the new Guidelines had been released. The email simply says, “the department has published a new fact sheet”. Nowhere does it say, “this new fact sheet contains a major change to the way you operate and should be very carefully read and considered.

The information contained in the new fact sheet does not reflect the information contained in the new Guidelines.

Nowhere in the new Guidelines is the new example stating that a Notice lodged on 15 December would mean the marriage could not be solemnised until 16 December.

Nowhere in the new Guidelines does it explicitly say, as it does in the fact sheet, “Item 7 in the table at subsection 36(1) states that if a period of time referred to in an Act that is expressed to end before a specified day, then the period of time does not include that day. In accordance with this rule, this time period would not include the marriage day. Taken together with the definition of “month” in section 2G of the Acts Interpretation Act, further examples are provided below.” Instead, the new Guidelines provide an example of giving a week’s notice, which is not useful in the context of the Marriage Act, which requires a month’s notice.

Any examples of when a NOIM can be lodged and the subsequent marriage be solemnised have been removed from the Guidelines.

The interpretation of notice being given and the marriage being solemnised on the corresponding day of the next calendar month has been taught since I became a celebrant in 2013, and I understand prior to that as well, indeed since the Acts Interpretation Amendment Act 2011 clarified the definition of a month on 27 December 2011. This change from the previous interpretation of one month and one day was explicitly outlined in multiple documents.

The 2012 Compulsory OPD activity stated, “The Acts Interpretation Act was recently amended by the Acts Interpretation Act 2011. Section 2G provided that in any Act, month means a period starting at the start of any day of one of the calendar months and ending immediately before the start of the corresponding day of the next calendar month … e.g. a month starting on 15 December ends immediately before 15 January therefore the first day the marriage can be solemnised is 15 January.” From the notes to OPD trainers in 2012: “The FAQ on how the one month notice period is calculated generated a lot of interest. The reason for the change from one month and one day to one calendar month is because the Acts Interpretation Act 1901 was recently amended to clarify what is meant by one month. This amendment will come into effect from 27/12/11. The FAQ now includes relevant provision of the Act which clarifies the meaning of a month. It should be noted that the Registrar does not have discretion to vary the application of the Acts Interpretation Act with regard to the one month period [emphasis added].”

The 2012¬†Guidelines on the Marriage Act 1961 for Marriage Celebrants¬†outlined the then new interpretation, provided multiple examples¬†and specifically stated, “The information previously provided by the Marriage Law and Celebrants Section including in the¬†Explanatory Material on the Marriage Act 1961 for Marriage Celebrants¬†regarding the calculation of the one month period is no longer current.”¬†There is no such explicit statement in the 2018 Guidelines or in the new fact sheet.

The 2014¬†Guidelines on the Marriage Act 1961 for Marriage Celebrants¬†similarly outlined¬†the then current interpretation, provided multiple examples, and also included the explicit statement that, “The information previously provided by the department including in the¬†Explanatory Material on the Marriage Act 1961 for Marriage Celebrants¬†regarding the calculation of the one month period is no longer current. The Acts Interpretation Act 1901 was amended by the Acts Interpretation Amendment Act 2011 commencing on 27 December 2011.”¬†Again, there is no such explicit statement in the 2018 Guidelines or in the new fact sheet.

The definition of a month is the number one thing celebrants across the country struggle with, and the new fact sheet is only causing further confusion and distress, with many believing the November example provided is an error. If this new interpretation is indeed to become the standard interpretation for all celebrants:

  • an explicit statement needs to be added to the Guidelines and the fact sheet that previous advice is no longer current
  • the examples from the fact sheet need to be made consistent with each other
  • the examples from the fact sheet need to be included in the new Guidelines¬†together with an explanation as to how the November example is consistent with item 7
  • there needs to be some explanation given about why the interpretation has changed from what has been taught by celebrant trainers across the board (underpinned by the Guidelines produced by your department) over the last six and a half years (new internal legal advice is a confusing reason given the previous interpretation was surely based on internal legal advice; if the administrative lawyers within the Attorney General’s Department can’t agree on the correct interpretation, what hope do celebrants have?)
  • BDMs across the country need to be informed about the change (when I emailed Victoria BDM last week they had no idea what I was referring to).

I would also be interested to know what would happen to celebrants who choose to continue to use their interpretation of the Acts Interpretation Act and solemnise marriages on the same day of the calendar month following lodgement of the NOIM (i.e. accept a NOIM on 15 November and solemnise marriages on 15 December).

Update: 8 August 2018

Peter Gourlay and I had a teleconference with Ant Burke, President of the AFCC, today ahead of the Associations teleconference with the AGD scheduled for Friday. We discussed our concerns with the advice, and the fact that Ant doesn’t want to see Friday’s teleconference end up in a rehashing of the issues; they know what the issues are, he wants them to tell us what’s going to happen next. Watch this space for the outcome.