Religious exceptions - Anti-discrimination changes

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This online engagement was hosted on YourSAy from 2 November to 27 November 2020. Below is a record of the engagement.

Changes for organisations

The law currently allows some religious organisations to discriminate in relation to their staffing practices and how they provide services to their clients. These 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.

The State Government intends to amend the Equal Opportunity Act 1984 to clarify that organisations providing certain essential services – e.g. health care and aged care – cannot discriminate against workers and care recipients on the basis of sex or LGBTIQ identity. Pre-schools and primary and secondary schools will be among the services prevented from relying on the exception, although they have an existing separate exception specifically relating to hiring practices.

By changing the religious exceptions under the Equal Opportunity Act, the government aims to create a better balance between equality and religious freedom rights. This will bring South Australia into line with almost every other Australian state and territory.

Some religious exceptions would remain applicable to essential service providers. These are outlined in this factsheet.

What are the changes?

The proposed changes would remove, for some organisations or bodies, a general exception to the law that prohibits discrimination on the basis of sex, sexual orientation, gender identity and intersex status. The exception applies to ‘bodies established for religious purposes’.

The sectors that would be affected by the proposed changes are:

• children’s education
• health care and disability support
• aged care
• emergency accommodation
• public housing
• foster care placement.

Even if they were otherwise eligible for the exception, religious organisations or bodies would no longer qualify for it if the discrimination was in connection with one of these services. However, other exceptions may still apply.

By preventing pre-schools and primary and secondary schools from relying on the exception, the Bill will make it clear that discrimination against children on the basis of sex or LGBTIQ identity is not acceptable even on religious grounds. However, an existing exemption for hiring staff in religious educational institutions will still apply.

Which religious exceptions would remain?

Important religious freedoms would be maintained and strengthened by the following exceptions.

A new exception is proposed by the Bill for discrimination where a person is being selected for direct participation in practicing or observing the religion – e.g. preaching, prayer or holy communion. This includes the employment of people to perform these roles – e.g. hospital chaplains.

Existing exceptions:

• Allowing religious schools to hire staff in keeping with their religious values, provided they meet criteria such as having a written, publicly available policy on their hiring practices.
• For the ordination or appointment of priests, ministers of religion or members of a religious order, or their training or education.

An exception allowing single-sex schools would also remain.

What would no longer be allowed?

It would be against the law for organisations with religious affiliation to discriminate on the basis of sex or LGBTIQ identity when providing pre-school, primary or secondary education, health services, aged care, disability support services, foster care placement, emergency accommodation and public housing services. This would preclude:

• suspending, expelling or blocking entry to students, or otherwise subjecting students to unfavourable treatment,
• refusing to provide services, or providing lesser quality services, to potential or existing clients and patients,
• refusing to hire someone, or terminating their employment,

on the basis of sex, sexual orientation, gender identity or intersex status, unless (in relation to employment) there is a genuine occupational need.

It is already unlawful at a federal level for Commonwealth-funded aged care providers to discriminate against LGBTIQ people in providing aged care services.