Religious Freedom Review Calls to Amend Charities Act

Religious charities advocating traditional marriage would be protected from losing their charitable status under a leaked recommendation from the federal government’s religious freedom review.

The 20 recommendations from the religious freedom review were leaked and published by Fairfax Media on Friday, despite the government’s refusal so far to publicly release the report.

One recommendation is that: “The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.”

The recommendation comes 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 inquiry 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.

No. 4 from the Ruddock Review recs released today by @smh: 'The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.' https://t.co/cjTzi6lVe6

— Krystian Seibert (@KSeibertAu) October 12, 2018

But experts in the social sector were not convinced amending the Charities Act was needed, despite the case of Family First New Zealand.   

Krystian Seibert, an industry fellow at the Centre for Social Impact at Swinburne University, said on Twitter it was very unlikely the charities regulator or an Australian court would rule the traditional view of marriage as a disqualifying purpose for a charity.

He said however that providing such clarity in the Charities Act was “pretty harmless”.

Sue Woodward, the head of Not-for-Profit Law at Justice Connect, told Pro Bono News an amendment of this kind was unnecessary.

She said the High Court’s decision in the Aid/Watch case – which protected a charity’s right to advocate in pursuit of a charitable purpose – meant a charity would not lose its charity status just because it advocates against government policy.

“To help alleviate the concerns of religious charities, we think a better approach to amending the Charities Act would be for the [Australian Charities and Not-for-profits Commission] commissioner to issue guidance to confirming this interpretation,” Woodward said.

“We would not want an amendment of the Charities Act for one type of charitable purpose to spark a list of others seeking similar clarification.”

Hmm maybe @KSeibertAu – we think better in @ACNCommissioner Interpretation Statement than by amending Charities Act. After all agree remote chance given AidWatch High Court decision and if include this clarification then many others could ask for their issue to be clarified too! https://t.co/tjKO7uPHdh

— Not-for-profit Law (@nfp_law) October 12, 2018

Responding to the leaked recommendation, ACNC commissioner Dr Gary Johns told Pro Bono News the commission would await the tabling of the review before commenting on any recommendations.

“As with all areas of charity law, the ACNC will consider publishing education and guidance materials, or a commissioner’s interpretation statement,” Johns said.

Pro Bono News also contacted The Salvation Army on the leaked recommendation.

A spokesperson for the charity said: “Having made a submission to the religious freedom review, The Salvation Army will respect the formal process and wait for the government to release the findings.”