South Australian Law Reform Institute Review of Exceptions to Equal Opportunity Law

About

This engagement has concluded

We want you to share your views on the current exceptions to the laws making discrimination on the grounds of sexual orientation, gender identity or intersex status unlawful, and whether these exceptions are fair or need reform.

Continuing on from the South Australian Law Reform Institute's (SALRI) audit of all South Australian laws and regulations to identify discrimination on the grounds of sexual orientation, gender, gender identity or intersex status, SALRI is looking carefully at South Australian laws that make it unlawful to discriminate on these grounds. In particular, SALRI is looking at the exceptions to these laws - that is, the circumstances where discrimination on these grounds may be lawful.

SALRI was established in December 2010. It is independent of the South Australian Government - read more here.

What is this reference all about?

SALRI’s latest reference is about identifying the laws and regulations in South Australia that discriminate against individuals and families on the basis of their sexual orientation, gender, gender identity or intersex status. This includes laws that discriminate against lesbians, gays, bisexuals, trans, intersex and queer people. You can learn more about this on SALRI's Fact Sheet No 1 (PDF, 408KB).

The wider context for these recommendations is the South Australian Government’s stated aims for a South Australia where the presence and contributions of lesbian, gay, bisexual, trans, intersex and queer (‘LGBTIQ’) people are welcomed and celebrated and where their ability to participate fully in all aspects of social and economic life, free from discrimination and prejudice, is maximised.

What has SALRI already done?

On 7 September 2015, SALRI completed the first part of its work with respect to this Reference by publishing an Audit Report entitled Discrimination on the grounds of sexual orientation, gender, gender identity and intersex status in South Australian legislation (the Audit Report). Download the report here under Current Projects: https://law.adelaide.edu.au/research/law-reform-institute/

The Audit Report identifies the many current South Australian laws that discriminate or potentially discriminate on the grounds of sexual orientation, gender, gender identity or intersex status. The Audit Report was prepared following an extensive desktop review of all South Australian laws, followed by extensive consultation by SALRI with LGBTIQ individuals and community organisations and included a public submission process facilitated here on YourSay.

The Audit Report contained a number of recommendations for immediate reform, as well as recommendations relating to five areas of law that had been identified as giving rise to discrimination, but requiring further review and report. One of these areas was exemptions to existing anti-discrimination laws.

What is the focus of this consultation?

This consultation looks at the scope of the existing exceptions to unlawful discrimination on the grounds of sexual orientation, gender identity and intersex status under the Equal Opportunity Act 1984 (SA) (‘EO Act’) was identified by the audit process and noted in the Audit Report as a particularly complex issue, where the competing rights and interests require careful consideration and balancing. These exceptions to the EO Act cover a wide range of situations and make it lawful for certain people or organisations to treat people differently because of their sexuality or gender identity. The scope and operation of at least some of these exceptions is contentious. All of the detailed information about these laws is contained in the Issues Paper (PDF, 1.5MB). You can also learn more about this on SALRI's Fact Sheet No 2 (PDF, 620KB)

This Issues Paper (PDF, 1.5MB) sets out the existing exceptions to the EO Act and describes the rationale for these exceptions. The Paper suggests that exceptions exist to either protect the rights of persons being discriminated against, to balance the rights of others or for practical reasons.

The exceptions in the EO Act SALRI is particularly interested in reviewing are:

• exceptions for religious organisations, especially in the area of employment
• exceptions relating to participation in competitive sports
• exceptions in the provision of health care relating to blood donation and assisted reproductive therapy
• health care provision by religious institutions
• the terminology in the exception for clubs and associations
• the measures in the EO Act intended to achieve greater equality.

To inform the potential reform proposals, the Issues Paper then details how each of the other Australian jurisdictions (State, Territory and Commonwealth) provides exceptions in relation to the areas of concern.

The final section of the Issues Paper sets out four options for reform. Based on the issues raised in this Paper, SALRI invites interested parties and readers to consider each of the options as the best way to amend or maintain the EO Act to better reflect contemporary South Australian values and expectations and the need to protect and promote the rights of LGBTIQ and other South Australians.

How can you be involved?

There are a number of ways that you can get involved and provide your feedback:

1. Read our Issues Paper (PDF, 1.5MB) and send in a formal written submission directly to SALRI via email: salri@adelaide.edu.au
2. Complete the online feedback form - the Issues Paper can help provide important background information.
3. Request a meeting or phone call with SALRI via email: salri@adelaide.edu.au
4. Join the online discussion
5. Continue the conversation on social media using the hashtags #SALRIReview and #EqualOpportunity

How your input will be used

Comments will close on Friday 19 February at 5:00pm.

The final report will be released later this year and will be available on this page and the SALRI website: https://law.adelaide.edu.au/research/law-reform-institute

Background

The South Australian Law Reform Institute

The South Australian Law Reform Institute (‘SALRI’) was established in December 2010. Based at the Adelaide Law School, SALRI was formed by an agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia. It is independent of the South Australian Government.
When conducting reviews and research on proposals from the Attorney-General, SALRI focuses on:

• the modernisation of the law
• the elimination of defects in the law
• the consolidation of any laws
• the repeal of laws that are obsolete or unnecessary
• and uniformity between laws of other States and the Commonwealth.

SALRI then provides reports to the Attorney-General or other authorities on the outcomes of reviews and/or research and makes recommendations based on those outcomes. Ultimately, it is up to the Government and the Parliament to implement any recommended changes to South Australian law.

Find out more about SALRI here: https://law.adelaide.edu.au/research/law-reform-institute/

LGBTIQ - Removing Discrimination from SA Laws

SALRI completed an audit of all South Australian laws and regulations to identify discrimination on the grounds of sexual orientation, gender, gender identity or intersex status - find out more here.