1. The Australian Charities and Not-for-profits Commission has recently taken a position that a public benevolent institution (PBI) cannot be a main purpose religious charity at law. Given a recent judgment of the Victorian Court of Appeal, the ACNC’s position – if a correct statement of the law – has the effect that faith-based PBIs cannot argue that they satisfy the requirement for exemption granted religious bodies under anti-discrimination law in Victoria.

The Court of Appeal decision will be highly influential on other State and Territory courts. This approach to PBIs has meant that, in Queensland, the St Vincent de Paul Society has been held to not be a religious body. The result was that it was not able to require that a president of a local conference be a Catholic.

23 out of the top 25 charities in Australia (after pure religious charities are removed) are faith based.

2. In effect, the requirements of charity law disentitle such bodies from exemptions under anti-discrimination law. This has the practical consequence that such bodies will not be able to require that their governing members or staff (the people who effect their purposes) ascribe to, or act in accordance with, their set of religious beliefs. They thus forgo discretion over the character and voice of their institutions.

Ironically, such a position would remove the very foundational convictions grounded in faith that inspired their establishment. The concern is not abstract, nor is it consigned solely to PBIs: 23 out of the top 25 charities in Australia (after pure religious charities are removed) are faith based. Furthermore, this concern in a pluralistic society extends to all faiths.

3. The first clause of the 1215 Magna Carta states, “quod Anglicana ecclesia libera sit” (“the English Church shall be free”). In its historical context, this clause was directed at preserving the Church’s rights to determine appointments to bishoprics, and hence the right to independently determine doctrine.

… a necessary condition of an open and flourishing democratic society.

Citing that clause, US Chief Justice Roberts observed in 2012 that these principles are not to be relegated to historical curiosities; the fundamental contribution of church/state separation to societal freedom continues to resonate today. An association’s ability to offer its conception of truth to the wider society is a necessary condition of an open and flourishing democratic society. Any removal of the ability of faith-based charities to determine and espouse their beliefs would be a restriction on these historically hard-won liberties.

4. A further concern is the failure of certain state legislation to acquit Australia’s obligations to protect religious freedom under international law. Article 50 of the International Covenant on Civil and Political Rights applies the rights contained therein, including religious freedom, to all parts of a federation, “without any limitations or exceptions.”

… a church cannot require that its priests refrain from either married or de facto relationships in Tasmania.

One glaring example is the failure of the Tasmanian Anti-Discrimination Act 1998 to accord religious bodies their rights in respect of the protected attributes of marital or relationship status. Let me be clear: leaving aside an unlikely argument that commonwealth law prevails, a church cannot require that its priests refrain from either married or de facto relationships in Tasmania.

5. A similar illustration of the inadequacy of state law is provided by the recent threat by the University of Sydney Union to de-register the Evangelical Union on the basis of its “discriminatory” requirement that new members affirm that “Jesus is Lord.” The concern arises as religious belief is not a protected attribute under the Anti-Discrimination Act 1977 (NSW). This concern was also highlighted by social media calls for Macquarie University lecturer Stephen Chavura to be dismissed based on his association with the conservative charity, the Lachlan Macquarie Institute.

In the absence of an equivalent protection under commonwealth law, the Evangelical Union and Mr Chavura are left without protection. A commonwealth enactment protecting organisations and individuals from discrimination on the basis of religious belief, drafting for which is provided in my submissions, would address this concern.

Mark Fowler is Chair of CLEAR International Australia Ltd, an organisation uniting Christian lawyers’ societies in Australia.