Thursday, 7 December 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; Consideration in Detail
In seeking to refute the need for this amendment to protect the religious freedom of charitable organisations in Australia, moved by the Treasurer, the member for Leichhardt, and indeed the member for Isaacs, relied on advice from the charities commission and from the Australian Taxation Office. The problem with that advice is it's very selective. If you go to the letter from the charities commission, the question concerned whether a religious charity that currently holds or expresses a view or position on marriage would be able to continue to do so without any negative impacts on its charitable status. And in answering that question, in the letter which has been tabled by the honourable member for Leichhardt, the acting charities commissioner said, 'I assume that "religious charity" means a charity with a purpose of advancing religion.'
Now it's understandable that, not being a lawyer, the member for Leichhardt may not comprehend that there are a lot of purposes that constitute a charity, but it's beyond belief that my learned friend the member for Isaacs could repeat that situation. If one goes to 12(1) of the Charities Act, there are about 12 different purposes that constitute a 'charitable purpose', of which one of them is:
(d) the purpose of advancing religion …
And that was what the advice went to. However, let me give some examples of others under 12(1):
(a) the purpose of advancing health;
(b) the purpose of advancing education;
(c) the purpose of advancing social or public welfare …
When one thinks about the major religious charitable organisations that operate in Australia, most of them that come to mind, like the CatholicCares, the Anglicares, the BaptistCares et cetera et cetera, are there not under purpose (d) of advancing religion but under purposes (a), (b) and (c) of advancing health, education or social or public welfare. So the advice that my friend the member for Leichhardt provides to the chamber is advice that doesn't relate to what most of the charities we're talking about actually do and the basis upon which their charitable purpose is stated and therefore doesn't go to the very issue of the amendments that have been moved by the honourable Treasurer.
But, more than that—and the honourable member for Leichhardt didn't quote this—in the penultimate paragraph of the advice which has been tabled, the Acting Commissioner of the Australian Charities and Not-for-profits Commission says: 'One way to address the concerns that have been raised may be to provide in the amending legislation that nothing in the legislation adversely affects an entity's charitable status by reason only that the entity holds or expresses a position on marriage after the enactment of the legislation that it held or expressed prior to the enactment of legislation that would not have had such an effect.' In other words, the advice provided is selective and doesn't go to the actual activities of most of the religious charities in Australia.
Secondly, the acting commissioner says, as a matter of making sure that there's no adverse consequence, to enact some amendments to the legislation, which is precisely the amendment before the House at the present time. Why is this important? It's important because of those other provisions under which most of the charities actually operate in Australia. If you then go to the way in which that has been interpreted by courts of law, because this is a provision or provisions that replicate charities law worldwide, then you find, in a number of jurisdictions which rely on the same common-law basis as do the provisions in the Charities Act in Australia, that this is actually a problem. Look at the position in relation to what happened in New Zealand. On 21 August 2017, the New Zealand Charities Registration Board deregistered Family First New Zealand, a body advocating for the traditional understanding of marriage, on the basis that it 'has a purpose to promote its views about marriage'— (Time expired)