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representatives vote 2017-12-07#4

Edited by mackay staff

on 2018-03-28 14:17:34


  • Bills — Marriage Amendment (Definition and Religious Freedoms) Bill 2017; Consideration in Detail
  • Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - Consideration in Detail - Charitable status


  • <p class="speaker">Kevin Andrews</p>
  • <p>In seeking to refute the need for this amendment to protect the religious freedom of charitable organisations in Australia, moved by the Treasurer, the member for Leichhardt, and indeed the member for Isaacs, relied on advice from the charities commission and from the Australian Taxation Office. The problem with that advice is it's very selective. If you go to the letter from the charities commission, the question concerned whether a religious charity that currently holds or expresses a view or position on marriage would be able to continue to do so without any negative impacts on its charitable status. And in answering that question, in the letter which has been tabled by the honourable member for Leichhardt, the acting charities commissioner said, 'I assume that "religious charity" means a charity with a purpose of advancing religion.'</p>
  • <p>Now it's understandable that, not being a lawyer, the member for Leichhardt may not comprehend that there are a lot of purposes that constitute a charity, but it's beyond belief that my learned friend the member for Isaacs could repeat that situation. If one goes to 12(1) of the Charities Act, there are about 12 different purposes that constitute a 'charitable purpose', of which one of them is:</p>
  • The majority voted against [amendments]( introduced by Treasurer [Scott Morrison](, which means they failed.
  • ### What are the amendments?
  • Morrison MP [explained that]( his amendments would make sure that faith based and religious organisations:
  • > *will be able to continue to simply do what they have been doing ... 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.*
  • ### Why did some Coalition MPs vote Yes and others No?
  • The Coalition was split on this issue, with some voting Yes and others voting No. This split within the party is unusual but, given the nature of the subject matter of the vote, the Coalition decided to run this as a free vote, meaning that its members could vote however they chose rather than having to vote along party lines.
  • ### What does this bill do?
  • This [bill](;query=Id:legislation/billhome/s1099) will allow same-sex couples to marry under Australian law. However, it will also:
  • > *enable ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds; and make amendments ... to provide that a refusal by a minister of religion, religious marriage celebrant or chaplain to solemnise marriage in prescribed circumstances does not constitute unlawful discrimination.*
  • Read more in the [bills digest](
  • <p class="italic">(d) the purpose of advancing religion &#8230;</p>
  • <p>And that was what the advice went to. However, let me give some examples of others under 12(1):</p>
  • <p class="italic">(a) the purpose of advancing health;</p>
  • <p class="italic">(b) the purpose of advancing education;</p>
  • <p class="italic">(c) the purpose of advancing social or public welfare &#8230;</p>
  • <p>When one thinks about the major religious charitable organisations that operate in Australia, most of them that come to mind, like the CatholicCares, the Anglicares, the BaptistCares et cetera et cetera, are there not under purpose (d) of advancing religion but under purposes (a), (b) and (c) of advancing health, education or social or public welfare. So the advice that my friend the member for Leichhardt provides to the chamber is advice that doesn't relate to what most of the charities we're talking about actually do and the basis upon which their charitable purpose is stated and therefore doesn't go to the very issue of the amendments that have been moved by the honourable Treasurer.</p>
  • <p>But, more than that&#8212;and the honourable member for Leichhardt didn't quote this&#8212;in the penultimate paragraph of the advice which has been tabled, the Acting Commissioner of the Australian Charities and Not-for-profits Commission says: 'One way to address the concerns that have been raised may be to provide in the amending legislation that nothing in the legislation adversely affects an entity's charitable status by reason only that the entity holds or expresses a position on marriage after the enactment of the legislation that it held or expressed prior to the enactment of legislation that would not have had such an effect.' In other words, the advice provided is selective and doesn't go to the actual activities of most of the religious charities in Australia.</p>
  • <p>Secondly, the acting commissioner says, as a matter of making sure that there's no adverse consequence, to enact some amendments to the legislation, which is precisely the amendment before the House at the present time. Why is this important? It's important because of those other provisions under which most of the charities actually operate in Australia. If you then go to the way in which that has been interpreted by courts of law, because this is a provision or provisions that replicate charities law worldwide, then you find, in a number of jurisdictions which rely on the same common-law basis as do the provisions in the Charities Act in Australia, that this is actually a problem. Look at the position in relation to what happened in New Zealand. 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'&#8212; <i>(Time expired)</i></p>
  • <p class="speaker">Ian Goodenough</p>
  • <p>I call the member for Menzies.</p>
  • <p class="speaker">Kevin Andrews</p>
  • <p>On 21 August 2017, the New Zealand Charities Registration Board deregistered a charity, 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'. That will be the precise situation that charities in Australia will find themselves in if this amendment is not passed by this House and indeed by the parliament. We are threatening the very basis of those charities being able to operate for the good, the welfare, of millions of Australians, regardless of their religious background or not, by not passing this amendment.</p>
  • <p>A similar position was indicated in the United States. Some may say that the United States has a different legal system, but the United States charities law in this regard is based on English charities law, exactly the same as Australian charity law is. Indeed, no less a person than the Chief Justice of the United States, Justice Roberts, indicated that a similar situation would prevail in that country if this were passed in that form.</p>
  • <p>So the confidence being asked of us by the member for Leichhardt and the member for Isaacs is not borne out. It's not borne out by the law. It's not borne out by the experience which has occurred other jurisdictions that rely on the same common-law position as we do in Australia, and it's not borne out by the charities themselves. As Senator Fawcett pointed out in the Senate, there are many charities who are very concerned about this very provision. I've had charities come to me who are concerned about this provision, and I know from speaking to colleagues about this that many charities have spoken to them as well.</p>
  • <p>What we're doing, if we fail to pass this particular amendment moved by the Treasurer, is placing in danger the ongoing work of hundreds of charities throughout Australia, some of most well-known household names as far as the charity sector in this country is concerned. This does not stop for a moment the passage of the bill in terms of allowing same-sex marriage or marriage between any two people to occur in Australia. What the amendment does is protect the age-old position so far as charities are concerned. Simply to rely on one part of the charities law&#8212;namely, the advancement of religious purposes&#8212;and willy-nilly ignore the advancement of health, education, and social welfare would be a reprehensible step by this chamber to take in this regard. I ask all colleagues&#8212;colleagues who will see the passage of this bill and the passage into law of same-sex marriage in Australia&#8212;to at least look at what's being done here.</p>
  • <p>We've got a situation in the Labor Party where the idea of a conscience vote has been totally thrown out the window. The idea that every member of the Labor Party in both the Senate and the House will virtually vote the same way on everything is beyond belief. I ask my colleagues on this side and I ask the crossbenchers to look at what the adverse impact of this would be so far as charities in Australia are concerned. It's absolutely clear that what was put to the chamber earlier does not cover the whole situation. We have some responsibility, surely, to the charities of Australia and the millions of Australians who are served by those charities, to ensure that their status is not adversely affected by the passage of this legislation. Therefore, I urge colleagues to look at this carefully. Do not just have some knee jerk emotive reaction and say you can't have any amendments. Look at the reality of what this will mean so far as charities and millions of Australians are concerned and support this amendment.</p>
  • <p class="speaker">Trevor Evans</p>
  • <p>I'll be very brief in responding to one or two matters that were raised just then. I will be opposing these amendments, but I will start by acknowledging the genuinely held and professed concerns expressed just then by the member for Menzies, as well as those members moving these amendments: the member for Cook and the member for Boothby, who I have a lot of respect for, and, before that, many other members&#8212;the members for Deakin, McPherson, Dunkley, Warringah and others.</p>
  • <p>On this matter we disagree, respectfully, about the exact line where a compromise is to be struck. I remain forever grateful, as it seems most members on this side of the House do, for belonging to the great Liberal Party, which allows for a difference of opinion, allows for debates and conscience votes, and may, in fact, be the only party these days capable of bringing a majority of mainstream Australians along for the journey together into future.</p>
  • <p>The matter that I wanted to draw out in response to some of the concerns just raised was pointed to by the member for Menzies. It is a particular sentence in the letter of the acting charities commissioner, suggesting that it required this amendment to be moved to resolve any concerns. The member for Leichhardt did table that document, but I understand he also tabled some additional emails and some correspondence between a senator and the acting charities commissioner. I'm willing to be corrected on that, and I'll read it into the record in a moment, just in case. What the acting charities commissioner said in an email dated 24 November 2017 was very relevant and interesting on this point, so I'll put it on the record now:</p>
  • <p class="italic">The commission view is that under the current ACNC and Charities Act framework, it is unlikely&#8212;</p>
  • <p>unlikely&#8212;</p>
  • <p class="italic">that a charity for the advancement of religion could lose charitable status by adopting and advocating for the pre-existing definition of marriage. That is, it would be unlikely&#8212;</p>
  • <p>unlikely&#8212;</p>
  • <p class="italic">that a lawfully held view and advocacy of that view could be against public policy or public benefit.</p>
  • <p class="italic">However, given the doubts and concerns that have been raised arising from comments in other jurisdictions &#8212; particularly New Zealand and UK, a legislative provision confirming the intention of Parliament that the charity status of such an entity should not change by reason of the new definition, would put the matter beyond doubt.</p>
  • <p class="italic">I trust this clarifies but I would be happy to discuss further if required.</p>
  • <p class="italic">In short&#8212;</p>
  • <p>I'm still quoting&#8212;</p>
  • <p class="italic">not legally necessary but could remove any legal debate.</p>
  • <p>I'll repeat that final sentence for the benefit of honourable members: 'In short, not legally necessary but could remove any legal debate.' So this is not legally necessary according to the charities commissioner and therefore I and others remain unconvinced of the need for these amendments.</p>
  • <p>The Ruddock review will provide an opportunity to revisit this and some of the broader concerns on non-religious matters that were raised very legitimately by the member for Menzies just then and that do fall outside of the remit of the Marriage Act, which we're proposing to amend here today. If the Ruddock review engages in comprehensive consultation and recommends changes to laws such as these&#8212;and presumably it would then recommend that more than just views on marriage be protected&#8212;then I and others in this place would find that very persuasive and convincing.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>