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Anti-Discrimination Amendment Bill - Second Reading Speech

May 27, 2015

Mrs Armitage (Launceston) - Mr President, I also thank the Government and all those who took the time to brief us.  They were informative briefings.  I also thank everyone who took the time to write and provide their views.  They are always important.

 

This amendment bill allows faith-based schools to preference admissions on the basis of religious belief.  These schools have been founded and operate on the principles of a faith community who are committed to taking responsibility for the education of children of that faith.

 

While I accept the current legislation allows schools to apply for an exemption to preference children of their faith if their classes are full, in many of the smaller Christian schools this is not possible.  I am advised by the principal of John Calvin School, Launceston, Mr Daniel Coote, that in the case of his school, the current anti-discrimination legislation would restrict their ability to carefully manage the environment in which their students are nurtured.  Due to their small class sizes, the current exemption process is not applicable to them, because they cannot demonstrate that their classes are full.

 

Mr Coote continues -

 

Enrolments are welcomed from the families which are active Christians belonging to a church with the same professional standards as ours, essentially Presbyterian in nature.  If enrolments are open to students of all faiths or no faith at all, the specific faith-based teachings for which our school was established will be eroded.  The very purpose of this independent school is at risk.

 

I will read a letter from a parent and the chairman of the school board, Mr Ian Boersma.  He writes -

 

Independent schools, like the one my family support, have had their freedom to regulate enrolments infringed by the Anti-Discrimination Act 1998.  This legislation prevents schools such as ours from limiting their enrolments to children of a particular faith. 

 

The John Calvin School in Howick Street was established 50 years ago by members of the Free Reformed Church, most of whom were Dutch immigrants.  The community which founded and continues to operate the school is characterised by strong religious and ethical convictions.  It established the school in order to complement their children's upbringing at home and the teaching of the church.

 

A significant proportion of the school's operating cost is paid directly by the school community, but the members of this community also pay taxes that go to the support of the state school system.  The operation of this school therefore represents a considerable cost saving to the government.  The school has grown to cater for children from a number of churches.  Because these churches share similar beliefs, all children at the school have been able to equally participate in activities and lessons that have religious content.  However, the time may come when this is no longer possible because of the diversity of students' religious backgrounds, due to the inability to limit enrolments to children on a denominational or faith basis.  Were this to occur, the community that established the school would almost certainly withdraw their support, forcing the closure of the school. 

 

Many other small Christian schools will find themselves in a similar situation to the John Calvin School. This amendment will simply provide the schools with the relevant protection to make decisions on enrolments as they see fit.  We heard in briefings yesterday regarding Catholic schools that often there are many more enrolments, particularly in year 7, than there are places.  I believe in one instance it was quoted 120 enrolments for 90 spaces.  It is a fact that difficult decisions need to be made and that some parents and students will be disappointed.  If a Catholic student has attended a Catholic primary school, has siblings at the school and is of the faith, is it right to prevent them gaining a place, for example, at a Catholic high school because that school must accept a student not of that faith who may have been enrolled earlier?  It could be that the Catholic student relocated from the mainland a couple of years earlier but that the non-Catholic student has been enrolled longer.

 

It could be said that the Catholic enrolment policy under the current legislation is not legal.  I believe it is right to address this issue.  Catholic schools are inclusive and accepting of non-Catholic students provided there are spaces.  It is important to note that ability to pay is not a criterion for Catholic schools.  Whilst it is essential that the majority of students are able to afford their Catholic education, no practising Catholic student would be turned away because of an inability to pay.

 

I note the concern of Mr Rodney Croome and others that students may be denied a place in a faith-based school because of sexual orientation, having same-sex parents or a similar reason.  While I trust schools would not preference admission on grounds other than religion, to allay any community concerns I will be moving an amendment to include in section 16 of the act, which prevents discrimination on the grounds of attribute, an exemption for religious activity, belief or affiliation.  Although this amendment is not necessary, given the bill clearly states in clause 4, proposed section 51A(3), 'Subsection (1) does not permit discrimination on any grounds other than those specified in that subsection', if including the other grounds of attribute described in section 16 of the act, with the exception of religion, gives comfort that students will not be excluded for any reason other than religion, then it is worthwhile.

 

I will also read a statement regarding the Tasmanian Anti-Discrimination Amendment Bill by Professor Patrick Parkinson AM, a professor of law at the University of Sydney. His statement has been endorsed by Professor Nicholas Aroney, professor of constitutional law at the University of Queensland; Professor Neville Rochow SC; Dr Keith Thompson, Associate Dean of the School of Law at the University of Notre Dame, Sydney; Christopher Brohier, barrister at law; Michael Stokes from the University of Tasmania, and Greg Walsh from the University of Notre Dame, Sydney. He states:

 

We commend the Tasmanian Government for introducing the Anti-Discrimination Amendment Bill 2015. It removes the constraint upon the freedom of a private school principal to select the students who are best suited to the school and who, in the view of the principal, will most benefit from that school's education. The bill promotes human rights.

 

Private schools are just that: private schools.  They give parents choices other than the public schools.  Some schools were founded to provide an education for families who adhere to a particular faith.  Catholic schools, for example, were established to provide an education for children of Catholic families.  Jewish schools provide an education for children of Jewish families.  These schools will often choose to admit some children whose parents do not belong to that faith, but common sense ought to tell us that the schools would never have been founded if the founders had known then that they would not have the freedom to select students using faith as a criterion. 

 

International human rights law supports the existence of faith-based schools.  The International Covenant on Civil and Political Rights requires governments to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.'

 

Giving freedom for faith-based schools to exist is fundamental to freedom of religion.  That human right is impaired if private schools are not allowed to select students who are most likely to fit in with the faith and values of the school community.  Tasmanian law has for a long time been very odd in preventing religious schools from preferring to select students from families for whom those schools exist.  We know of no similar law anywhere else in Australia. 

 

Confusion about discrimination - it is not discrimination against others to select students who fit the criteria of the school.  The Anti-Discrimination Act 1998 in Tasmania prohibits discrimination on the grounds of gender as well, but it is not sex discrimination for girls' schools to refuse to admit boys or for boys' schools to refuse to admit girls.  For single-sex schools, gender is a justifiable criterion for admission.  There are many single-sex schools in Tasmania. 

 

To say that schools cannot have their own selection criteria that are appropriate to their purpose, is to give an absurd meaning to the term 'discrimination'.  Of course private schools should have the freedom to choose their students.  That is what makes them private schools.  If a school was established to serve a particular faith community, that is as relevant a criterion as if it was established to educate children of a particular gender.

 

Is there any conflict with the Tasmanian Constitution?  We note that Professor George Williams has recently given advice that the Tasmanian Anti-Discrimination Amendment Bill would somehow conflict with section 46 of the Tasmanian Constitution Act 1934.  That section provides -

 

(1)     Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

 

(2)     No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.

 

It should be obvious that subsection (1) has nothing to do with entry to private schools.  If a child of an Anglican family is not selected to attend a Jewish school, the child's freedom of religion or conscience is in no way impaired and nor are the freedoms of his or her parents.  The child can attend the local state school or another private school which offers a place.  If a child of a non-believing family is not admitted to a Catholic school, this is no way impairs a child's freedom of belief or conscience nor that of his or her parents.  All family members can continue to believe or not believe, as they choose.

 

No child has a legal right of entry to a private school and no parent has a legal right to send their child to any school of their choice.  Children are enrolled in private schools by agreement between the school and the parents.  What Section 46 means is that the Tasmanian government should not pass any law that interferes with a person's freedom to exercise his or her religion or to act in accordance with conscience except as is needed to preserve public order or morality. 

 

With respect to Professor Williams, the view that there is some kind of conflict between the right of private schools to select students and the freedom of religion clause in the Constitution is an inversion of the real position.  The bill promotes religious freedom.  It takes away freedom from no-one because no-one has the right to insist that their child be admitted to a particular private school. 

 

I believe this bill legitimises and regularises the current enrolment practices of religious-based schools in Tasmania, as well as bringing them into line with other states in Australia.  I support the bill.

 

 

 

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