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Tuesday, 28 November 2017
Page: 9096


Senator PATERSON (Victoria) (19:48): by leave—I, and also on behalf of Senator Fawcett, move amendments on page 8329 together:

(1) Clause 1, page 1 (lines 6 and 7), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

[short title]

(2) Clause 2, page 2 (table item 5), omit "Part 5", substitute "Parts 4A, 4B, 4C and 5".

[consequential—charities]

(3) Schedule 1, page 5 (after line 17), after item 5, insert:

5A After section 5

Insert:

5AA Meaning of entity

(1) For the purposes of the Act, an entity means:

(a) an entity (other than an individual) within the meaning of section 184-1 of the ANew Tax System (Goods and Services Tax) Act 1999; and

(b) a non-entity joint venture within the meaning of section 195-1 of the ANew Tax System (Goods and Services Tax) Act 1999.

Note: The term entity includes body corporates, body politics, partnerships, unincorporated associations or other bodies of persons, trusts and superannuation funds.

(2) For the purposes of subsection (1), an entity is an entity regardless of whether:

(a) the entity is for-profit or not-for-profit; or

(b) the entity is a religious body or organisation; or

(c) the entity operates to make a profit or not.

5AB Meaning of relevant marriage belief

(1) A person holds a relevant marriage belief if the person holds:

(a) a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of the belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, which beliefs may include, without limitation, any of the following beliefs:

   (i) a marriage that is not a union of a man or a woman is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person;

   (ii) the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children;

   (iii) sexual relations should only occur within a marriage, understood as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life;

   (iv) the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage;

   (v) a fundamental feature of a marriage between a man and a woman is the modelling for children born from, or raised in, that marriage of the gender difference and complementarity of the man and the woman;

but for the avoidance of doubt, does not include the belief mentioned at paragraph 5AC(1) (b).

(2) An entity holds a relevant marriage belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AC Meaning of relevant belief

(1) A person holds a relevant belief if the person holds:

(a) a relevant marriage belief; or

(b) a genuine religious or conscientious belief that:

   (i) a same-sex relationship is not consistent with the doctrines, tenets, beliefs or teachings of the religion or the conscience of the person; or

   (ii) the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth; or

   (iii) any one or a combination of genuine religious or conscientious beliefs that are constitutive of, supporting of or a corollary of a belief mentioned in subparagraphs (1) (b) (i) or (1) (b) (ii).

(2) An entity holds a relevant belief if the entity has adopted:

(a) a belief mentioned in paragraph (1) (a); or

(b) one or more beliefs mentioned in paragraph (1) (b);

as beliefs the entity holds.

5AD Determining when a belief is held etc.

(1) For the purposes of this Act, a person or entity holds a genuine religious or conscientious belief, or genuinely believes, if the holding of the belief (inclusive of the person's or entity's beliefs as to the actions, refusals, omissions or expressions that are consistent with, a consequence of, made in connection with, based upon, constitutive of, supporting of, or a corollary of that belief)is not fictitious, capricious or an artifice.

(2) For the purposes of subsections 5AB(2) and 5AC(2), but without limiting those subsections, an entity may state or adopt a belief as a belief the entity holds by:

(a) including the belief in its governing documents, organising principles, statement of beliefs or statement of values; or

(b) adopting principles, beliefs or values of another entity which include the belief;

(c) adopting principles, beliefs or values from a document or source which include the belief; or

(d) acting consistently with that belief.

[determining when a belief is held]

(4) Schedule 1, page 15 (after line 26), after item 58, insert:

58A After Part VA

Insert:

Part VAA—Freedom of thought, conscience, religion, expression and association in relation to holding certain beliefs

88N Non -discrimination in the allocation of funding

(1) Despite any law, it is unlawful for the Commonwealth, a State, a Territory or a government entity to:

(a) decline to provide funding; or

(b) impose a condition on funding that is provided;

that discriminates against a person or an entity because the person or entity:

(c) holds a relevant belief or a relevant marriage belief; or

(d) acts, or refuses or omits to do an act, because the person or entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief; or

(e) expresses the relevant marriage belief or relevant belief.

Note: For paragraph (1) (a), an example of funding is a grant made by the Minister under Part 1A of the Act.

(3) In this section:

government entity means:

(a) a government entity (within the meaning of the A New Tax System (Australian Business Number) Act 1999); or

(b) an entity established by or under a law of a State or Territory.

88O Charitable status

(1) An entity does not fail to satisfy the requirement in subparagraph (b) (i) of the definition of charity in section 5 of the Charities Act 2013 for the reason that:

(a) the entity holds, expresses or acts upon a relevant marriage belief or a relevant belief; or

(b) the entity refuses, or omits, to do an act because the entity genuinely believes that the action, refusal or omission is consistent with the relevant marriage belief or relevant belief.

(2) For the purposes of paragraph (c) of the definition of charity in section 5 of the Charities Act 2013, a purpose of an entity is not a disqualifying purpose (within the meaning of section 11 of that Act) for the reason that:

(a) the entity has a purpose of engaging in or promoting, or engages in or promotes, activities that the entity genuinely believes are in connection with, or as a consequence of, the entity holding, expressing or acting upon a relevant belief or a relevant marriage belief; and

(b) if it were not for this Part, the activities may be:

   (i) unlawful or contrary to public policy; or

   (ii) determined to be unlawful or contrary to public policy.

[non -discrimination in allocation of funding / charitable status]

(5) Schedule 1, page 19 (after line 13), after Part 4, insert:

Part 4A—Amendment of the Charities Act 2013

Charities Act 2013

68A After subsection 12(3)

Insert:

(4) For the purposes of this section, disregard the fact that an entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

Note 1: For example, a body that has a purpose of advancing social or public welfare may be registered under subparagraph (1) (c) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing social or public welfare and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (c) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.

Note 2: For example, a body that has a purpose of advancing religion may be registered under paragraph (1) (d) regardless of whether it is a body established to advance religion under section 37 of the Sex Discrimination Act 1984. It may be both a body that has a purpose of advancing religion under paragraph (1) (d) and a body established for religious purposes under section 37 of the Sex Discrimination Act 1984, but for the purposes of paragraph (1) (d) regard is not had to its status under section 37 of the Sex Discrimination Act 1984.

Part 4B—Amendment of the Income Tax Assessment Act 1997

Income Tax Assessment Act 1997

68B After subsection 30 -320

Insert:

30 -325 Bodies established for religious purposes

A fund, authority or institution does not fail to satisfy the requirements for endorsement under Division 30 of this Act for the reason that the fund, authority or institution is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

Part 4C—Amendment of the Fringe Benefits Tax Assessment Act 1986

Fringe Benefits Tax Assessment Act 1986

68C After subsection 123C(2)

Insert:

(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

68D After subsection 123D(2)

Insert:

(3) An entity does not fail to satisfy the requirements for endorsement in subsection (2) for the reason that the entity is, or has been, a body established for religious purposes within the meaning of section 37 of the Sex Discrimination Act 1984.

[charities]

This is the amendment that was foreshadowed earlier in discussions in previous amendments and it relates to charities. It has a number of purposes but in essence its aim is to ensure that charities which are operating today, whether or not they receive public funding, can continue to operate as they do after this law changes. They can continue to seek public funding if they're eligible for it and they can continue to retain their tax status if they're already eligible for it.

Senator Smith has helpfully written to the Australian Taxation Office and the ACNC to seek their views on whether his bill affects the rights of those charities to continue to operate as they have, and I'm pleased to hear both of those commissioners have written back to Senator Smith—letters he's now tabled—saying that there is nothing in his bill which would change the status of the charities. That is a welcome but only limited reassurance to the operation of charities in this area. Of course, as it relates to the discretion of the ATO Commissioner or the discretion of the ACNC Commissioner—at least the current ones while they are still in their roles—we can take some comfort they might not take decisions to remove charitable status. What obviously is outside the remit of a commissioner of the ACNC or the ATO is any subsequent policy changes by parliaments or by government departments at the state or federal level, and that is not protected under the Smith bill. What is also outside their control is the operation of common law and any court cases that may occur in this area. And this is not an idle concern. It's a concern that we have seen in other jurisdictions who regulate charities in a very similar way to Australia.

I'm going to quote from the explanatory memorandum that accompanied my original bill, which remains equally applicable to the amendments in this section. It relates in particular to section 88O, which is included within this amendment on sheet 8329. It states:

Section 88O introduces protections to charities to address concerns that their charitable status will be affected by the introduction of same sex marriage. Australia shares the common law of charities with the United Kingdom, the United States and New Zealand. Based on recent experience in those jurisdictions there is a concern that a failure to provide religious or faith based charities with an ability to access exemptions in charity law in respect of the question of marriage will lead to the loss of charitable status, government funding where such is conditional on that status, and tax exemptions and concessions.

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 and the traditional family that cannot be determined to be in the public benefit in a way previously accepted as charitable'.

It's worth noting, before I go on, that Family First New Zealand is not a political party like the former entity here in Australia but a body akin to the Australian Christian Lobby, a third-party lobby group. The explanatory memorandum continues:

Furthermore, the common law requires that charities conform to public policy. In Obergefell v Hodges, Chief Justice Roberts stated that the tax exempt status of United States religious institutions that opposed same sex marriage “would be in question,” based on the reasoning of the Court in Bob Jones University v United States. This concern has prompted the United States Internal Revenue Service to issue a clarification that, for its purposes, it will not interpret the law to remove the tax exemption of religious charities. While there are distinctions in the law of charities between the U.S. and Australia, both jurisdictions have adopted the House of Lords decision in Pemsel’s case and prima facie there is no distinction that is material to the question of whether an institution’s position on same sex marriage would be considered to be relevant to a determination of whether it continues to meet the test that charitable institutions conform with public policy.

That's important because it is possible that a charity in Australia could lose its tax status in future not through a decision of the ATO or the ACNC but through a decision of the court. The explanatory memorandum continues:

The common law requirement that a charity’s purposes not be contrary to public policy was retained on the introduction of the Charities Act 2013 by section 11(a). In light of the foregoing, there are sufficient reasons to consider that an Australian charity’s position on the question of same sex marriage may be relevant to a determination of whether it meets the requirement of a charity at law. The Bill thus amends the Charities Act in response to these concerns.

I hope that these amendments are totally superfluous and totally unnecessary—that they pass, and sit on the statute book, and are never used. But the alternative—not passing them at all—opens up the risk that charities who are doing good work today, whom we all support and want to see continue doing that good work, may lose that status in the future. I suspect that people in this debate will say that that is a misplaced fear and that the chances of that happening are remote. But I'm not willing to take even a remote chance that some charities in future will lose their charitable status, their ability to receive tax deductible donations or their ability to receive government funding conditional on their tax status. I'm not willing to put that down to hope. I think it needs to be much more reliable than that. I think we need to put in actual measures here to ensure that's not the case. This amendment, unlike the other amendments considered so far, is genuinely uncontentious. Although I support the previous amendments, I understand why other senators may not. This one, I think, is genuinely uncontentious. It just seeks to ensure that a charity that operates today can continue to operate tomorrow as it does today and that this change in the law will have no effect on it. So I would urge all senators to carefully consider supporting it. Thank you.