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Possible Backlash Caused by Planned Changes to Charities Act

14 December 2018 at 4:13 pm
Luke Michael
Legal experts warn that the federal government’s plan to guarantee legal protection for charities advocating traditional marriage may create a backlash, as charities scramble to clarify their legal right to advocate on other controversial issues.

Luke Michael | 14 December 2018 at 4:13 pm


Possible Backlash Caused by Planned Changes to Charities Act
14 December 2018 at 4:13 pm

Legal experts warn that the federal government’s plan to guarantee legal protection for charities advocating traditional marriage may create a backlash, as charities scramble to clarify their legal right to advocate on other controversial issues.

Prime Minister Scott Morrison and Attorney-General Christian Porter said on Thursday the government would amend the Charities Act 2013 to clarify that religious charities advocating traditional marriage would not be at risk of losing their charitable status.

This legislative change was recommended by a religious freedom review led by former Liberal MP Philip Ruddock.

But legal experts believe this amendment is unnecessary, and warn that changing the Charities Act for one type of charitable purpose could spark a list of others seeking similar clarification.

“Charities with the purpose of advancing religion might want similar clarification about opposing early-term abortions or assisted dying legislation. The list of clarifications could end up being much longer than the act itself,” Sue Woodward, head of Justice Connect’s Not-for-profit Law service told Pro Bono News.     

Woodward noted that the the government’s response to the review explicitly accepted the panel’s statement that advocacy of this nature would not meet the threshold of a “disqualifying purpose” under the Charities Act.

“This means the review panel and the government agree that a charity which continues to advocate for [traditional marriage] is not going to have its charity status, and related taxation concessions, taken away. There is not a problem to fix or even clarify,” she said.

Another charity law expert Jennifer Batrouney QC, the president of Australian Bar Association, agreed changing the Charities Act was unnecessary and dangerous.

She told Pro Bono News she was dismayed at the decision, and said the definition of “disqualifying purpose” in the Charities Act specifically noted activities were not contrary to public policy – and therefore potentially a disqualifying purpose for a charity – merely because they were not government policy.

“If the Charities Act is to be amended to specifically carve out advocacy of a ‘traditional’ view of marriage – the implication that cannot be ignored is that, in the government’s view, without this amendment such a purpose could be disqualifying,” Batrouney said.

“Such an amendment will [also] set an unfortunate precedent. This is because other charities might consider that their purpose may also require ‘clarification’ that their activities do not evidence a disqualifying purpose. Where will it end?”

Batrouney said any clarification was best left to the courts, while Woodward believed the Australian Charities and Not-for-profits Commission should clarify any ambiguities through a commissioner statement.

“If the High Court ruled that a commissioner statement was incorrectly applied in any case then that would be the time to consider legislative amendment,” Woodward said.

“Not now when there is actually a consensus in what the review panel (accepted by the government) believe is the law.”

Krystian Seibert, an industry fellow at the Centre for Social Impact at Swinburne University, agreed certainty could be provided to religious charities through an ACNC commissioner statement.

But he said providing clarification within the Charities Act itself was pretty harmless and would simply reflect the law as it currently stood.

“It isn’t absolutely necessary, but I don’t see a problem with providing some additional certainty for some religious charities in particular,” Seibert told Pro Bono News.

“However I wouldn’t support adding a whole new clause just about this issue – it’s better to use a short note or example inserted below the existing section of the Charities Act to explain how it operates.”

The government will push through changes to the Charities Act – along with other recommendations from the religious freedom review – in a Human Rights (Freedom of Religion) Amendment Bill slated to introduced in the first sitting week of 2019.

Seibert said if amendments to the Charities Act were introduced, public consultation on the draft legislation would be essential.

But a spokesperson for Attorney-General Christian Porter told Pro Bono News this bill would be introduced without advance public consultation, because it was “non-controversial”.

The push to protect charitable advocacy of traditional marriage came after faith-based charities expressed fears the legalisation of same-sex marriage in Australia could threaten these organisations’ charitable status, government funding and tax exemptions.

The Salvation Army’s submission to the religious freedom review noted that in New Zealand, the charitable status of Family First New Zealand was removed because its promotion of traditional marriage was no longer considered to be in the “public benefit”.

The submission said given this case in New Zealand (where same-sex marriage is legal) and other cases in the UK and the US, it was possible an Australian charity’s view on same-sex marriage could threaten charitable status.

The Salvation Army declined to comment on the government’s planned changes to the Charities Act when contacted by Pro Bono News.

Charities commissioner Dr Gary Johns said the ACNC had examined the religious freedom review and the government response, and would continue to register and regulate charities under the current requirements.

“We will monitor the progress of proposed amendments to the Charities Act, and where appropriate, we will provide education and guidance on complying with the ACNC Act and the Charities Act,” Johns told Pro Bono News.    

Luke Michael  |  Journalist  |  @luke_michael96

Luke Michael is a journalist at Pro Bono News covering the social sector.

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