Guidelines on conflict of interest and benefit to a business for Commonwealth-Registered Marriage Celebrants

Transcription

1 Guidelines on conflict of interest and benefit to a business for Commonwealth-Registered Marriage Celebrants WHAT is the purpose of these guidelines? The purpose of these Guidelines is to help potential marriage celebrants and existing Commonwealth-registered celebrants identify, disclose and avoid a potential conflict of interest or benefit to a business. WHAT is a conflict of interest/benefit to a business? A conflict of interest is a situation where your interests or activities would make it difficult for you to fulfill your legal duties and functions as a marriage celebrant in good faith. A benefit to a business is a situation where you own, control or carry out another business that involves the sale of products, or services, related to marriage and selling those products to the marrying couple could benefit your role as a marriage celebrant. WHY is it important to avoid a conflict of interest/benefit to a business? It is important to avoid a conflict of interest or a benefit to a business because: a conflict of interest or a benefit to a business interferes or might interfere with the proper fulfillment of your duties as a marriage celebrant. You might unintentionally or otherwise influence potential clients to use your services as a marriage celebrant. To be registered as a marriage celebrant, or to continue to be registered as a marriage celebrant, the Registrar must be satisfied that you are a fit and proper person to be a marriage celebrant. 1 In determining whether an applicant is a fit and proper person, the Registrar must take into account a number of factors, including: whether you have an actual or potential conflict of interest between your practice, or proposed practice as a marriage celebrant and your business activities or other interests that you own, control or carry out; 2 and 1 Paragraph 39C(1)(c) of the Marriage Act Paragraph 39C(2)(e) of the Marriage Act. August

2 whether registration is likely to result in you gaining a benefit in respect of another business you own, control or carry out. 3 You must avoid a conflict of interest between your work as a celebrant and other business activities or interests. 4 You must avoid obtaining a benefit to your marriage celebrancy business through another business activity or interest you own, control or carry out. If your business or work changes and you take up new employment that is related to weddings or marriage that might create a potential conflict of interest or lead to a benefit to your business as a marriage celebrant you must notify the Registrar in writing. 5 Failure to comply with this obligation may lead the Registrar to take disciplinary measures against you. 6 HOW can I avoid a conflict of interest/benefit to a business? Conflicts of interest and benefits to a business will arise from time to time. Keep your marriage celebrancy work completely separate from your other business activities or interests, and make sure that your other business activities or interests you have do not interfere with a couple s freedom of choice about the nature of their marriage. An easy way to determine whether you have a conflict of interest or whether you are obtaining a benefit to a business is to ask yourself whether your interests are likely to interfere with your judgement in performing your duties as a marriage celebrant. 3 Paragraph 39C(2)(f) of the Marriage Act. 4 Paragraphs 39C(2)(e) and (f) of the Marriage Act impose a strict standard on prospective applicants and registered marriage celebrants. 5 Subparagraph 39G(c)(ii) of the Marriage Act. 6 Disciplinary measures may be taken under section 39I of the Marriage Act.

3 Guidelines (CONTINUED) This is known as the trust test. Would clients trust my judgement as a marriage celebrant if they knew I had other business interests that I stood to gain a benefit from? If, after applying the trust test, you believe you may have a conflict of interest or are gaining a benefit to your business as a marriage celebrant through your other business activities or interests you should take steps to address the matter. WHAT should i do if i suspect i have a conflict of interest/ benefit to a business? You should notify the Registrar of Marriage Celebrants. The Registrar will consider your case and may: determine that you do not have a conflict of interest or a benefit to a business determine that you have a clear conflict of interest or a benefit to a business and may ask you whether you wish to remain registered as a marriage celebrant or would prefer to pursue your other business activities or interests ask you to sign an undertaking that you will keep your business activities or interests entirely separate from your work as a marriage celebrant. The Registrar may also seek further information. August

4 EXAMPLE conflict of interest scenario for potential applicants Max registered migration agent is thinking about studying a Certificate IV in Celebrancy Max is a registered migration agent. He is considering studying a Certificate IV in Celebrancy to become a registered marriage celebrant. He has contacted the Marriage Law and Celebrants Section for advice. Max believes that by becoming a marriage celebrant he will be able to expand his business as a migration agent. In this example, by applying the trust test, there is a clear conflict of interest/benefit to a business as Max will be offering services as both a marriage celebrant and a migration agent. Max stands to gain a clear benefit to his business as a marriage celebrant through his business as a migration agent. Work undertaken by a migration agent and a marriage celebrant can be very sensitive work that often involves dealing with vulnerable clients. One of the means a person may seek to migrate to Australia, and obtain permanent residency, is through marriage. If a potential client understands that a person is holding registration in both occupations, they may be more inclined to approach the person to solemnise their marriage and act as their migration agent. The Registrar considers persons working as both a registered migration agent and a marriage celebrant to have a direct conflict of interest. It is also a breach of the Migration Agents Code of Conduct if a registered migration agent accepts a person as a client if the agent has previously acted, or intends to act, as the person s marriage celebrant. 7 EXAMPLE benefit to a business scenario for a Commonwealth-registered marriage celebrant Cheryl marriage celebrant wishes to start a wedding planning business Cheryl is a Commonwealth-registered marriage celebrant. Cheryl is interested in starting up a wedding planning business as well. Cheryl intends to offer clients a one-stop-shop for weddings by offering various wedding packages. The packages will vary and the price for her services may range from: the venue for the wedding, the venue for the wedding reception and her services as a marriage celebrant; to: the venue for the wedding, the wedding reception, the bride s dress and groom s suit, the flowers, the catering at the reception and her services as the marriage celebrant. Cheryl plans to advertise her wedding planning business and marriage celebrancy business together. 7 Paragraph 2.1A(a) of the Migration Agents Code of Conduct, Schedule 2 to the Migration Agents Regulations 1998.

5 Guidelines (CONTINUED) Applying the trust test, this is a typical benefit to a business as Cheryl is providing products and services to couples whilst she is acting as their celebrant. Cheryl is also receiving a benefit by advertising her businesses together. Cheryl should, to avoid a benefit to her business, keep her marriage celebrancy services and her wedding planning business entirely separate. That is, she should not provide services that are additional to a wedding when acting as a celebrant for a couple. Cheryl could, however, continue to run both of her businesses provided she did not provide both services and products to the same couple. For example, Cheryl could plan a wedding for a couple provided the couple was engaging the services of another marriage celebrant to solemnise the marriage. Cheryl could also solemnise a couple s marriage provided she did not offer any wedding planning services. Cheryl should also notify the Registrar of Marriage Celebrants of her change in circumstances and the arrangements she will put in place to avoid the benefit to business. Claudia marriage celebrant who has just been employed as a registered relationship counsellor Claudia lives in a small coastal town in southern NSW. She has been a marriage celebrant for 8 years. She is well known in her community and has mainly solemnised marriages in and around the town. Claudia is also an accredited counsellor and has been working as a school counsellor at the local school for many years. Claudia has recently retired from working as a school counsellor and has taken up a job as a part time family and relationship counsellor with the local branch of a counselling service in the town. Claudia s role will focus on pre-marriage counselling for couples. In this case, by again applying the trust test, there is a clear potential for a conflict of interest to arise. Claudia will be working as both a pre-marriage counsellor and also as a marriage celebrant in a small coastal town and may knowingly, or otherwise, provide counselling services to couples that she may marry in the future. The Registrar considers persons working as both a relationship counsellor, particularly a pre marriage counsellor, and a marriage celebrant to be a direct conflict of interest. Claudia could seek to limit her role to counselling married couples in her local area or should provide other counselling services within the counselling service. August

6 OTHER examples of conflicts of interest/benefits to a business Other examples that may result in a conflict of interest and/or benefit to a business include (but are not limited to) the following situations: a marriage celebrant working in or operating a business that has a connection with the marriage or wedding industry (e.g. operating a function hire/decorating business/wedding planning business, formal/wedding dress hire company, providing wedding packages, car hire company, catering company or florist) a marriage celebrant working in or operating an entertainment business (e.g. master of ceremonies, singing) a marriage celebrant leasing premises for weddings/receptions etc, or a spouse/partner/family member of the marriage celebrant operating any of the above businesses. FURTHER INFORMATION If you believe you have a conflict of interest or a benefit to business scenario after considering these Guidelines and you require further guidance please contact the Marriage Law and Celebrants Section of the Commonwealth Attorney-General s Department: marriagecelebrantssection@ag.gov.au Post: Marriage Law and Celebrants Section Access to Justice Division Attorney-General s Department 3-5 National Circuit BARTON ACT 2600 August