SA Parliament Urged to Reject Law Reform Institute Report

30 June 2016 | Author: Mark Spencer and Stephen O’Doherty

South Australia’s Law Reform Institute (SALRI) has recommended changes that will weaken the legitimate exercise of religious choice in education.

SALRI has completed its review of the Equal Opportunity Act exemptions applying to schools operated by churches or other religious organisations.

“Parents choose faith-based schools with the clear understanding that spiritual formation is at the heart of everything the school does,” said Stephen O’Doherty, CEO of Christian Schools Australia.

“The Christian faith is a living faith. It is not just a set of rules that can be taught, in the way that algebra or the periodic table might be taught.

“The spiritual development of students in a Christian school is the work of an entire community of Christ-followers working together, demonstrating and exemplifying the beliefs and tenets of the faith as they fulfil their calling as teachers, administrators, or general and support staff.

“If it takes a village to raise a child, then it takes a community of authentic believers to contribute to the spiritual formation of students in a faith-based school,” he said.

On a reference from the SA Government, the SALRI undertook an audit that identified “the many current South Australian laws that discriminate or potentially discriminate on the grounds of sexual orientation, gender, gender identity or intersex status”.

CSA believes these terms of reference were flawed — framed in a way that predicated the outcome. Nowhere in the terms of reference was there a recognition of the legitimate place of freedom for religious beliefs.

The Audit Paper was “followed by extensive consultation by SALRI with LGBTIQ individuals and community organisations and included a [limited] public submission process”.

SALRI subsequently released an Issues Paper that focussed on the “effect of exceptions under the Equal Opportunity Act 1984 (SA) on Lesbian, Gay, Bisexual, Trans, Intersex and Queer (LGBTIQ) South Australians”.

CSA and Adventist Schools Australia (ASA) made a detailed submission to this Issues Paper, the details of which can be seen here.

As pointed out in the CSA/ASA submission, the flawed process leading to the Issues Paper inevitably resulted in conclusions and assumptions that we consider to be equally flawed — unsustainable, unjustifiable and incorrect.

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 SALRI Report proposes that the existing exemptions should be replaced by an an exemption that permits discrimination on the basis of religious belief, but only where this is “not unreasonable in the circumstances”.

The proposed test for unreasonableness would be based upon the Queensland legislation which requires consideration of:

  • whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions; and
  • the consequences for both the person and the employer should the discrimination happen or not happen.

So what is wrong with that?

“The recommended change would impose an incredibly subjective test on the application of this exemption,” Mr O’Doherty said.

“Under this approach a Court or Tribunal would, effectively, be required to adjudicate on church doctrines and beliefs, and weigh these in the balance against the impact on an individual whose application for employment may have been declined on the basis that they could not demonstrate genuine adherence to the schools’s foundational faith.

“The proposed change sets up an inevitable conflict between state and church. It crosses a line that our Constitution was framed to protect. No State authority should be placed in the position of adjudicating on what are of essence religious questions regarding the employment of staff whose role is to teach and model the tenets of a religion,” he said.

The SALRI report also proposes to introduce a specific power for the Equal Opportunity Commissioner to issue “authoritative practice guidelines” in relation to the protection and exception provisions of the Act.

While not intended to be strictly legally binding these guidelines, and the degree of compliance to them, could be considered by a Court or Tribunal. In effect, this provision would provide the Commissioner with a power to make almost binding declarations on the religious beliefs that could be promulgated by a Christian School.

CSA believes these recommendations fly in the face of similar reviews in other jurisdictions, which have recommended the retention, or strengthening, of protections for religious communities in Australia.

SA Premier Jay Weatherill has indicated that the recommendations will be put to the Parliament, but has noted that some of the issues might be subject to a conscience vote.

“The Premier’s obvious sensitivity is welcomed,” Mr O’Doherty said.

“He must know that the SALRI recommendations go well beyond any evidence received, and that the overwhelming weight of submissions supported the current exemptions.

“We encourage the parties in the SA Parliament to take an in-principle stand on behalf of choice in schooling, the right of parents to choose an education that includes spiritual formation, and the right of faith-based schools to choose staff who can best fulfil that role.

“We call on all parties in the SA parliament to reject the SALRI recommendations as flawed, being based on flawed assumptions and unjustified by the overwhelming evidence received during the review,” Mr O’Doherty said.

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A copy of the Final Report is available below.

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