Tuesday, 28 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
I just want to make one further observation about charities in this debate. It follows on from Senator Smith's comments. I understand why he's been reassured by the letter from the ACNC and the letter from the ATO, but I want to explain why I'm not reassured by them. The reason is that in the Charities Act 2013 there is a tension between two clauses that are very close together in the act. One is section 11(a) and one is section 12, and I will quote from them. Section 11(a) of the Charities Act says a charity is permitted to engage in 'promoting or opposing a change to any matter established by law, policy or practice'. That may give you reassurance that a charity could campaign for a change in the law or campaign for something that's contrary to the law. However, the very next section of the act, section 12, imports that common-law definition I was talking about before: a charity could be disqualified for 'engaging in, or promoting, activities that are unlawful or contrary to public policy'.
So there is an unresolved tension in the Charities Act 2013. On the one hand it says you can campaign for change. On the other hand it says you can lose your charitable status because you do something which is contrary to public policy. If the law changes to make same-sex marriage legal—as it will very shortly—then activity that is contrary to the new law may cause a charity to be disqualified from its legal status. Although I appreciate Senator Smith's view that these issues should be deferred to the Ruddock committee, deferring them to the Ruddock committee won't be adequate if in the meantime a charity is inadvertently disqualified from its eligibility for tax status and other protections because of something in the Charities Act. The Charities Act says charities cannot do things that are contrary to public policy. Public policy will be that same-sex marriage is legal. Therefore, a charity that continues to say same-sex marriage should not be the law may be in defiance of the Charities Act. That's why amendments to this bill are necessary. This amendment would not be in here if it weren't necessary. I genuinely believe this is an uncontroversial amendment. All it is doing is making sure that nothing unintended happens as a result of Senator Smith's bill. I know it is not his intention, nor the intention of any senator supporting his bill, for a charity to lose its status. But that may be an unintended consequence of this bill if these amendments do not pass.