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Marriage equality – proposed amendments to the bill are unnecessary

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MEDIA RELEASE 28/11/2017

 

Marriage equality – proposed amendments to the bill are unnecessary

Amendments moved by Senators Fawcett and Paterson to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (“the Bill”) to protect the charity status of faith-based charities are unnecessary.

These are a distraction from the business of making marriage equality law. Justice Connect considers the most appropriate way forward is to defer these issues to the Religious Freedoms inquiry to be conducted in 2018.

The changes relate to ensuring charities can advocate for traditional marriage, and discriminate in the provision of goods and services, without risking their charity status.

Even without the amendments, the Bill preserves the existing rights of religious bodies to advocate for traditional marriage and to discriminate in terms of who they employ, and who they provide goods and services to, without this affecting their status as a charity.

Ability to discriminate

The Bill’s religious exemption is consistent with the Sex Discrimination Act 1984 (Cth) and does not extend the legal test for religious organisations.

If a charity discriminates against same sex couples in accordance with the exemptions, there is no risk to its status as a charity.  A charity would not lose its “public benefit” nature just because engages in legal discrimination under the exemptions, so there is no need to amend the Charities Act 2013 (Cth) to protect charities which engage in legal discrimination.

Advocacy

Some charities will want to continue to promote the traditional beliefs about marriage, family and gender.  There is no doubt that under Australian law, and under the Bill without the proposed amendments, they can continue to do so, provided the current requirements are met. The requirements are that the advocacy is relevant to their charitable purpose, is not contrary to public policy, and does not amount to promoting a particular political party or candidate.  

Some people are concerned about examples from the US, UK and NZ involving loss of charity status as a result of legislation to allow same sex marriage.  Our law regarding discrimination and advocacy by charities is different to the law in these jurisdictions and so examples from overseas need to be interpreted carefully.

For example, some concern has been raised over the example in NZ of Family First being deregistered as a charity because in the opinion of the Independent Charities Registration Board it “has a purpose to promote its own particular views about marriage and the traditional family that cannot be determined to be for the public benefit in a way previously accepted as charitable”.

This should not cause concern for Australian charities because our law on advocacy by charities is different to the law in other jurisdictions including NZ and US. Our law has recently been clarified by the Courts, in legislation and in guidance issued by the Australian Charities and Not-for-profits Commission.

On the basis that advocating for traditional marriage and/or engaging in legal discrimination would not be contrary to public policy, charities will continue to be able to advocate on issues relevant to their charitable purpose.  

A charity would not lose its “public benefit” nature just because engages in advocacy in pursuit of its charitable purpose, so there is no need to amend the Charities Act 2013 to protect charities which engage in advocacy. 

Funding

If charities lose funding this would be as a result of a change in government or philanthropic policy, not as a necessary consequence of the proposed changes to the Marriage Act 1961.

 

 

 

Justice Connect helps people who are locked out of the justice system have a fair chance at better lives, by connecting them with free legal help.

Not-for-profit Law is a service of Justice Connect and provides free or low cost, high quality practical legal help for not-for-profit community organisations and advocates for improved standards and legal framework

Media inquiries:           Ed Butler, communications manager, Justice Connect,

03 8636 4476, 0408 620 385, ed.butler@justiceconnect.org.au

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