This amendment is to probe the reason for subsection (2), particularly in what way it relates to subsection (4) of Clause 186.
This amendment was tabled with a statement that it was a probing amendment, and an explanation why. I wish, since this is purely a constructive probing exercise, to ask not just whether this situation is the way that it has always been, but why it is that subsection 187(2) says that clause 186
does not apply to race, so far as relating to colour
when subsection 186(4) says that if
a charitable instrument enables the provision of benefits to persons of a class defined by reference to colour, it has effect for all purposes as if it enabled the provision of such benefits
(a) to persons of the class which results if the reference to colour is ignored, or
(b) if the original class is defined by reference only to colour, to persons generally.
The fundamental problem is that I am unable to determine the meaning of subsection 186(4). I accept that that is my shortcoming, but it might be shared by others. I thought that the best way to raise the issue was by asking what subsection 187(2) does, because it is not obvious what it means, either to me or to others whom I have asked, including legally minded people. I would be grateful, therefore, for an explanation.
Amendment 308 would remove section 187(2), which prevents charities that provide benefits only to people of particular colour from relying on the exemption in subsections (1) and (2) of clause 186. The effect of the amendment would be that such a charity could seek to show that the restriction of benefits was proportionate in achieving a legitimate aim. There is never any justification for discriminating between people who have different colours, and subsection 186(4) replicates that effect. The law has not changed since 1976, and it is a pity if it has not been understood during all that time. When a charitable instrument defines beneficiaries by reference to colour, the provision takes effect as if the reference to colour were completely disregarded. Therefore, there is no problem here.