Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
I would like to reflect briefly on a number of points. The first is that the expert panel process that's been established by the government and endorsed by cabinet is the right place to review people's hesitations or concerns about future risk, if they believe there is any future risk, around legislating for same-sex marriage.
The second point is the point that I made previously, and that is that this is a bill that deals with same-sex marriage and protects people's religious views about marriage, full stop. So it is simple and necessarily narrow in its construction. That is the right way in which to legislate for same-sex marriage in Australia.
Before I make my third point, it is worth noting as well that the Senate committee report reflected favourably on the idea of further exploring positive protections for religious freedom in Australia. So you could say, I think, with great confidence that the expert panel is a product of one of those issues—or a mechanism that the Senate committee itself identified. The Senate committee report said that there was common ground between many groups on the need for positive protection for religious freedom. There was widespread support from religious people, from LGBTI communities and from others that presented to the committee. So there was a view that there was a need for Australian law to positively protect those religious freedoms and that the best way to do that was by further detailed and comprehensive inquiry.
As I briefly mentioned before, I was curious as to why the issue of charities hadn't been included in the government's original exposure draft. As a result of the Senate inquiry, it's worth noting that the issue of charities wasn't further raised by any stakeholders. So, by design, there is no mention of issues around charities in this bill—nor does there need to be. There doesn't need to be because I went and satisfied myself not with unfounded concerns and not with potential risk; I sought the professional advice of the Australian Taxation Office and from the charities commissioner, and they, to my satisfaction, have confirmed for me that the risks that are being talked about are not real.
In addition to that, I would like to share and read into Hansard the attitude of Not-for-profit Law, the peak legal organisation responsible for the legal issues and the legal concerns around Australian charities. It says—and I'm happy to table this as well:
If a charity discriminates against same sex couples in accordance with the exemptions—
the exemptions as proposed in my bill—
there is no risk to its status as a charity. A charity would not lose its "public benefit" nature just because engages in legal discrimination under the exemptions, so there is no need to amend the Charities Act 2013(Cth) to protect charities which engage in legal discrimination.
Some charities will want to continue to promote the traditional beliefs about marriage, family and gender. There is no doubt that under Australian law, and under the Bill without the proposed amendments—
the proposed amendments being those that we're talking about here—
they can continue to do so, provided the current requirements are met. The requirements are that the advocacy is relevant to their charitable purpose, is not contrary to public policy, and does not amount to promoting a particular political party or candidate.
Some people are concerned about examples from the US, UK and NZ involving loss of charity status as a result of legislation to allow same sex marriage. Our law—
meaning Australia's law—
regarding discrimination and advocacy by charities is different to the law in these jurisdictions and so examples from overseas need to be interpreted carefully.
For example, some concern has been raised over the example in NZ of Family First being deregistered as a charity because in the opinion of the Independent Charities Registration Board it "has a purpose to promote its own particular views about marriage and the traditional family that cannot be determined to be for the public benefit in a way previously accepted as charitable".
This should not cause concern for Australian charities because our law on advocacy by charities is different to the law in other jurisdictions including NZ and US. Our law has recently been clarified by the Courts, in legislation and in guidance issued by the Australian Charities and Not-for-profits Commission.
On the basis that advocating for traditional marriage and/or engaging in legal discrimination would not be contrary to public policy, charities will continue to be able to advocate on issues relevant to their charitable purpose.
The point I'm trying to make is that I was curious about this issue. I went and tested the issue with informed views—the views of people responsible for these policies—and they've come back and reassured me, in writing. I'm satisfied. It is a matter that can be shared with the expert panel to give those people who are looking for it—or people who might like to put further hurdles in the way of the passage of same-sex marriage in our country—further reassurance, but I'm confident. I'm personally satisfied. This was an issue that was most curious to me, of all the issues I saw during the campaign. I might add that ACOSS has not come to the parliament seeking clarity. Not-for-profit organisations themselves have not come to the parliament seeking clarity. With those remarks, I seek leave to table this document.