Thursday, 7 December 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; Consideration in Detail
These amendments are completely unnecessary. Religious charities, we all agree, provide essential services for our community, and their charitable status will not be affected by their stance on marriage. A charity may advocate on any matter relevant to that charity, and nothing in this bill will change that—the same way charities that support marriage equality have not had their charitable status revoked in all the years prior to today.
Importantly, the charities commission and the tax commissioner have both confirmed that this amendment and changes to the Marriage Act will not impact on the charitable status and DGR status. I will make reference to a couple of letters where we sought clarification on this issue. The first one is from the Australian Taxation Commissioner. In his response, he said:
… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on DGR endorsement.
Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the Future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.
The second one is from the Australian Charities and Not-for-profits Commission, and again we sought clarification from the acting commissioner. The advice we have received says: 'Different religions take different positions on a range of social issues, including marriage. The law of charity does not endorse the beliefs or practices of one religion over another. It follows that, if a charity with a purpose of advancing religion currently holds and expresses a view or position on marriage that is based on the beliefs, tenets or doctrines of the religion it advances, its status as a charity as defined in the Charities Act will not be negatively affected by reason merely for its continuing to hold and/or express the view following the enactment of the future marriage act.' And they went on because there have been some issues raised in relation to other jurisdictions. The ACNC is aware of those raising concerns about the possible effects of the future Marriage Act and has cited cases in other jurisdictions, including the United States, Canada, the United Kingdom and New Zealand and goes on to state that these cases provide limited guidance or assistance in determining questions on charity status under Australian law.
We thought that last one was a little bit ambiguous and we thought we would seek further clarification, which we did. The clarification that came back said that the ACNC view is that under the current ACNC and Charities Act framework, it is unlikely that a charity for the advancement of religion could lose charitable status by adopting or advocating for the pre-existing definition of marriage—that is, it would be unlikely that a lawfully-held view and an advocacy of that view would be against public policy or public benefit. So clearly the view is there. For the record, I seek leave to table those documents.
I thank the House. The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill inquiry into the George Brandis exposure draft that led to this bill comprehensively considered the issue relating to religious freedoms and didn't find any need for extra protections for charities. The government indicated earlier there will be an inquiry into the broader issue of religious freedoms. That inquiry next year will be undertaken by four very eminent individuals in the Honourable Philip Ruddock, Father Frank Brennan, former Federal Court judge Annabelle Bennett and the President of Australian Human Rights Commission, Rosalind Croucher. If there are any genuine concerns, I can't think of a more qualified panel to fully explore the risks and how best to deal with them. Like I said, I don't think these concerns will be borne out by the evidence, but my colleagues should take comfort in the process and accept that that is an appropriate forum to deal with them.
What we don't need is to rush into these amendments at the eleventh hour when the bill has been out there for consultation for almost four months. (Time expired)