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Thursday, 7 December 2017
Page: 13064


Mr MORRISON (CookTreasurer) (13:05): by leave—I move amendments (1) to (3), as circulated in my name, together:

(1) Clause 1, page 1 (lines 14 and 15), omit "Marriage Amendment (Definition and Religious Freedoms) Act 2017", substitute "Marriage Amendment (Definition and Protection of Freedoms) Act 2017".

(2) 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.

(3) 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.

As I said in my speech on the second reading, the issue of same-sex marriage and it being passed by this chamber is not in question. That matter has been determined by the Australian people. This will be a significant day for many around the country, and it is not the intent of any of the amendments that are moved today to in any way frustrate that process. But what faith based and religious organisations are seeking—I have met with them and I have worked with them over many years and particularly as they have come to consider this significant change that is now taking place—is they will be able to continue to simply do what they have been doing, and the many good works that they do in our community and beyond our shores, without any question or any doubt about their status, in particular their charitable status, or any doubt or question about their ability to receive public funding for the work that they do, or any doubt that could be expressed on that in terms of them continuing to hold a view about marriage in its traditional understanding. They are simply seeking for the status quo for them to be maintained and to have an assurance.

The assurance they're seeking is so they can continue to get on with the wonderful work they do in education, the wonderful work they do in aged care and in respite care and the wonderful work that they do in health care and in disability care. Many religious and faith based organisations in particular, I have no doubt, will be providing a significant role in the delivery of disability care services under the National Disability Insurance Scheme. The assurance they're seeking is so they can continue to do amazing work as part of our overseas aid program. It is so they can do that without any question about their charitable status, their gift deductibility status or the public funding that they may be eligible to apply for under grants so they can continue do that important work. There is the work they do in employment services to get Australians into jobs. They're involved in that work as well.

One of the most important expressions of someone's faith is the practical action they undertake to help others. And, to the extent—and it is a very large extent—that religious and faith based organisations do this work, they do that as an expression of their love and care for others. They should be able to do that regardless of what their view of traditional marriage or same-sex marriage is. That issue should not come into question. This is an issue that has been raised by religious and charitable institutions concerned about the doubt and question that could be placed upon them.

As the member for Canning spoke to this House, he spoke particularly about the impact in the education area, but also he referred to correspondence that he had received—and I have seen the same correspondence—from over 40 different religious organisations and schools and the Maronite bishop who I spoke of in my address on the second reading. I table those documents. I table the correspondence that has been received from those Australians of faith and religious practice. I thank the House for the opportunity to do that.

The questions that arise go to the issue of the public interest test and the conformity with public policy under common law and how that could impact on charitable status. That is experienced particularly in overseas jurisdictions—like New Zealand, Canada and the United States—where these questions have been raised and can potentially impact here in our own jurisdictions with the passage of these laws.

We have received advice from the charities commission and they have supported the view that the amendments that I'm putting forward here would put beyond doubt this question. Why would we want this question to be in doubt? Putting the question beyond doubt does not take away at all the change that is being voted on here and, I'm quite certain, will be passed here by this parliament. It simply ensures that the great faith works—that the fragrance of faith that is in our community and is serving our community will continue to be able to be experienced by Australians here and by many people around the world as a result of their very great faithful works, which they do in service of their community and in obedience to their faith.

These changes do not threaten same-sex marriage; they don't seek to prevent it and they don't seek to frustrate it. They simply are seeking the status quo of them being able to do what they do without question or threat. I can assure you that as Treasurer in the Turnbull government, and with my colleagues, our government would never seek to deny that public funding or that charitable status. We would never do that and it would certainly never happen on my watch as Treasurer. But I cannot provide that guarantee forever. I can't provide a guarantee about a potential government at either a Commonwealth or state level who may seek to withdraw those rights or to take away that certainty and take away that support and drive people of faith and organisations of faith serving our community from the public square. They are simply today accessing charitable status and gift deductibility status and competition for accessing grants funds, which already exist, so there's no extra cost. It's just allowing these organisations to get on with the job. I commend the amendments to the House.