Advocates warn of possible Supreme Court challenge.
Call on Upper House to block “DANGEROUS BILL”
“Every Tasmanian parent has the right to choose where to send their children to school, and every Tasmanian student has the right to feel welcome wherever they enrol.”
– Rodney Croome
Australia’s leading constitutional expert says the State Government’s proposed anti-discrimination exemption for religious schools is likely to violate the Tasmanian Constitution.
In response, human rights advocates say they will challenge the exemption in the Supreme Court if it passes parliament.
Prof George Williams from the University of NSW has released a statement (included below) in which he says the exemption, allowing religious schools to turn away students on the basis of religion, is likely to violate section 46 of the Tasmanian Constitution Act.
Section 46 protects religious freedom and, according to Prof Williams, guarantees that no Tasmanian can be disadvantaged because of their religion.
2015 Tasmanian of the Year, Rodney Croome, said,
“All Tasmanians should be concerned that the State Government’s proposal may be unconstitutional.”
“If it is passed, I will work with families and students who face discrimination to mount a case to the Supreme Court.”
“The government’s exemption is about looking after ‘the big end of church’ – priests, pastors and religious principals who want to discriminate.”
“As Tasmanian of the Year I feel a duty to stand up for the freedom of everyday Tasmanian families to choose the best school for their children, regardless of their religious beliefs.”
“Every Tasmanian parent has the right to choose where to send their children to school, and every Tasmanian student has the right to feel welcome wherever they enrol.”
“I call on the Upper House to vote down this dangerous bill, or at least send it to an inquiry so the constitutional question can be properly examined.”
Prof Williams said it is uncertain what the impact would be of a ruling against the Government’s proposed exemption because section 46 has never been tested in court and because the Tasmanian Constitution is an Act of Parliament.
In his statement he said, “It is possible that section 46 sets down a legal principle that cannot be departed from except through express words in a later statute”.
Mr Croome said, “Regardless of the legal impact of a favourable Supreme Court ruling, it will be deeply embarrassing for the Tasmanian Parliament to have passed a law that is found to violate the constitutional rights of all Tasmanians”.
For more information contact George Williams on 0414 241 593 or Rodney Croome on 0409 010 668.
Author: George Williams / Rodney Croome
Publication: AME Media Release
Date: 21 April 2015
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Statement by George Williams, Professor of Constitutional Law, University of NSW
Inconsistency with the Tasmanian Constitution Act
I think it is likely that the Anti-Discrimination Amendment Bill 2015 (the Bill) is inconsistent with section 46 of the Tasmanian Constitution Act (the Act).
The inconsistency would arise because:
· The Bill lawfully allows access to an educational institution to be denied on the basis of religious belief or affiliation or religious activity.
· Section 46 of the Act protects religious freedom, including freedom of conscience, free profession and practise of religion, and prevents the subjection of any Tasmanian to a disability on the grounds of their religion or religious belief.
Limits on section 46
My view is that section 46 has a broader operation than public offices. If nothing else, the first clause makes no mention of such offices.
The application of section 46 of the Act therefore includes school enrollment.
The consequences of a finding of inconsistency
The legal consequences of any finding of inconsistency by the Tasmanian Supreme Court are uncertain.
Section 46 has not been the subject of judicial interpretation, and the Tasmanian Constitution is not entrenched.
It is possible that section 46 sets down a legal principle that cannot be departed from except through express words in a later statute.