Jacqui Lambie’s attempt to fine and jail any person found to have forced a young woman to wear a burqa raises two “significant constitutional issues”, an expert has warned.
The Palmer United senator wants to fine parents of Muslim girls $34,000 and jail them for up to 12 months if they force their child to wear a burqa in Australia. She also wants police to issue on the spot $3400 fines if they wear the burqa in public.
Her bill is unlikely to succeed as neither major party supports her push and her own party leader Clive Palmer has publicly distanced himself from the senator’s strident anti-Islam comments.
But respected constitutional lawyer, George Williams, has warned her draft bill could expose it to a High Court challenge.
Professor Williams and lawyer George Newhouse have previously warned that any bid to ban the burqa could violate section 116 of the constitution.
Senator Lambie’s bill, which is being formally drafted, says “a person must not, without reasonable excuse, wear a full face covering while in a public place”. It also states: “a religious or cultural belief does not constitute a reasonable excuse”.
Professor Williams said the explicit reference “that denies to a person the free exercise of religion as a defence to the full face covering ban...clearly raises a 116 issue”. Section 116 of the constitution states “The Commonwealth shall not make any law …for prohibiting the free exercise of any religion”.
And he questioned whether the Commonwealth even has the power to ban the burqa in the first place. “It’s not clear to me that the Commonwealth has any power to pass such a ban,” he said on Wednesday.
Senator Lambie has previously argued the burqa should be banned so a woman’s body language can be read. The Tasmanian senator has also argued it is a national security risk.
But ASIO says there is no valid security reason to ban the burqa and in a leaked 2011 report obtained by Fairfax Media has further warned it could have “negative” security consequences.
Liberal senator Cory Bernardi, who has long advocated a ban on the burqa, told Fairfax Media the report is outdated.
“I have tremendous respect for ASIO’s research but I note that this report is almost four years old and a heck of a lot has changed in the past four years,” he said.
Nationals MP George Christensen, who has previously urged Senator Lambie to “shut up’ and stop bungling the ban the burqa campaign, rejected the security agency’s advice.
“It’s been done in France, it’s been done in Belgium and it’s been done up until lately in Turkey. It’s the case in government buildings in Malaysia and there hasn’t been an outbreak of national security incidents in those countries,” he said.
“So I reject the accusation that it would cause national security problem,” Mr Christensen said.
“I go back to fundamental commonsense that if you can’t see someone’s face it’s an issue, it makes CCTV redundant, which is something we fund as a Commonwealth as a crime-fighting measure,” he said.