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Marriage Amendment (Definition and Religious Freedoms) Bill 2017

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8329

2016-2017

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Marriage Amendment (Definition and Religious Freedoms) Bill 2017

 

 

(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 A New Tax System (Goods and Services Tax) Act 1999 ; and

                     (b)  a non-entity joint venture within the meaning of section 195-1 of the A New 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 marri age 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 child ren 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]