SA Government proposes restrictions on religious freedom

3 November 2020

The South Australian Government, in a rather surprising and unexpected move,  has commenced a consultation on proposals to impose greater restrictions on religious freedom.

The proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 proposes to amend the Equal Opportunity Act 1984 by replacing provisions that currently provide exemptions in relation to the administration and operation of religious bodies consistently with their faith with much narrower exemptions - and explicitly excluding bodies providing primary, secondary or pre-school education.

The fact-sheet supporting the consultation rather superficially indicates that  "[t]hese organisations sometimes discriminate to avoid offending members of the religion or to strongly encourage staff and clients to conform to the teachings of the particular religion" - which is a pejorative and dismissive characterisation of the fundamental religious freedoms involved.

The information on the background to the consultation claims that the proposal arose in relation to -

  • Recommendations from a community roundtable held in 2019 on issues affecting LGBTIQ communities in South Australia.
  • A report prepared by the South Australian Law Reform Institute in 2016 about religious exceptions in the Equal Opportunity Act.
  • The findings of the federal Expert Panel on Religious Freedom in 2018.

This is a complete distortion of the outcomes of the Expert Panel on Religious Freedom which criticised South Australia and New South Wales for their lack of protection of religious freedom.  The 2016 report by the South Australian Law Reform Institute is also fundamentally flawed as we pointed out in an earlier Briefing.  As pointed out in that Briefing -

Despite acknowledging that the “vast majority of electronic submissions” relating to the application of the exemptions in Christian schooling “clearly support the continuation (or strengthening) of these exceptions” the Report proposes a dramatic recasting of the existing exemptions and exceptions which would impose significant potential constraints on religious freedom.

The results of consultation with the activists representing the LGBTIQ communities are also equally predictable.

The consultation correctly points out that the proposal will not affect the (limited and conditional) exemption in section 34(3) regarding employment by Christian and other faith based schools.  However, the provisions being amended  provide a 'safety net' should there be arguments raised that the strict requirements to be able to utilise the section 34(3) are not met.  In addition the provisions being amended also provide the basis on which schools can provide education in accordance with their faith and beliefs in relation to sex, gender identity, sexual orientation or intersex status (noting that Christian schools have never sought to discriminate in relation to intersex status).  Legal advice is being urgently sought to consider whether schools can still teach a Biblical and scientific view of sex and sexuality should these amendments proceed.

The introduction of these proposals at the same time that the Government is proposing controversial changes to abortion law has also been greeted with some scepticism.

The consultation period closes on 27 November.  CSA will be making a detailed submission and providing further resources to South Australian schools to assist them in ensuring that their communities are aware of the proposals.

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