Senate debates

Tuesday, 28 November 2017


Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee

8:24 pm

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | Hansard source

In response to Senator Smith and some of the points he and others have raised, in fact the Senate select committee did hear from charities, and particularly from lawyers who act for charities who have concerns in this space. I have certainly heard from them since. I regret the fact that when Senator Paterson, for example, offered to reach out and discuss this bill with Senator Smith on a number of occasions, that offer was never taken up, and so we haven't had the chance to talk through some of the representations that have been made to people who have worked to put this bill and this set of amendments together. I do recognise that at least some on the other side have been prepared to have a look at the amendments and consider them, and I welcome that input. I'm disappointed that they haven't seen fit to support them.

These points I was going to raise in the next amendments, on sheet 8330, but they go to the issue that Senator Smith raises about whether or not there is uncertainty about the status of charities. The definition of 'marriage' and the ability of a group to claim the protections of the Sex Discrimination Act because they are a religious body go to the very heart of the interplay between at least three different groups. This is not overseas; this is three different groups here in Australia where we see some history.

The first is the Australian Charities and Not-For-Profits Commission. They have adopted the interpretation that a body, to be a faith based public benevolent institution, must have a main purpose of providing benevolent relief in order to be registered as a PBI and cannot have a religious purpose. That's one group. That's their definition. Then we go to the Queensland anti-discrimination tribunal. They say an organisation like St Vincent de Paul is not established for religious purposes; therefore, it doesn't get any of the protections. So someone who seeks to have the protections as a religious body carrying out charity because of their religious convictions is caught between definitions of what their purpose is.

To compound things even further, in one case the Victorian Court of Appeal decided that it would insert itself into the process to determine what a religious group actually believed. So they started essentially dissecting their interpretation and telling the group what they did or didn't believe, which then leads to whether or not the group or the organisation in this case was held to be religious in nature or not. So an assurance from the taxation commissioner does nothing to address the uncertainty that arises because of the interactions between various authorities in Australia. These amendments are very straightforward amendments which seek to provide certainty about what a religious body is so that bodies know—particularly where they're established as religious bodies that conduct charitable activities—that they can have the assurance that they won't have these divergent and different interpretations by authorities.

Whilst I welcome the letter from the taxation commissioner, I note that in the United States one of the calls from one of the judges in the Supreme Court was that they in fact needed to have that kind of clarity from their taxation commissioner. It's great that we have got that. It doesn't address the underlying problem that we have a number of authorities who can make decisions that will impact on the status of these bodies. That's why these amendments are very sensible. There is no detriment to anyone arguing the case for same-sex marriage, but it provides certainty to groups who for decades in Australia have provided probably the bulk of welfare and charitable services to our community. They deserve the certainty that these amendments provide.


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