2011 - Vol 36(1) - Making the Law Work for Justice

altlj 36 1 cover sml

Parliaments and peoples' rights

Courts and law-making

International perspectives

Bright lines and open prisons

Keiran Hardy
Article

The effect of a statutory human rights instrument on control order regimes

The control order regime in Division 104 of the Australian Criminal Code Act 1995 (Cth) ('Criminal Code') is one of the exceptional measures introduced into Australian anti-terrorism law after the 2005 London bombings. Like the UK regime on which it was based, it threatens to erode long-established principles of public and criminal law by severely restricting individual liberty on the basis of future conduct and without prior determination of criminal guilt. The Australian legislation is likely to remain in its original form for the foreseeable future, while the UK control order regime in the Prevention of Terrorism Act 2005 ('POTA') is now the subject of a proposed wholesale revision by the UK government.1

This article compares the approach of the Australian High Court in Thomas v Mowbray2 with recent control order jurisprudence in the UK, which has been influenced by the presence of the Human Rights Act 1998 (UK) ('HRA'). It examines the effect that a statutory bill of rights can have on the judicial interpretation of rights-infringing anti-terror legislation — and on political support for the same over time.

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Preventive detention and the control of sex crime

Mark Brown
Article

Receding visions of justice in Australian case law

Between the idea
And the reality
Between the motion
And the act
Falls the Shadow

TS Eliot, The Hollow Men (1925)1

The mere fact of a future outcome is not what determines the justice or injustice of preventive measures. The objective in dealing with ‘dangerous’ offenders is to find the just course and not simply the practical way out of the difficulty they present.

Floud & Young, Dangerousness and Criminal Justice (1981)2

Since 2003 five Australian states have set in place mechanisms for the post-sentence preventive detention of sex offenders. Detention orders are either automatically indefinite or potentially so via mechanisms of extension. They are also buttressed by supervision arrangements that the Victorian Supreme Court described in the case of TSL3 as making individuals ‘a prisoner in all but name’. They also build on registration and other liberty restrictions that may be imposed on even first-time, never imprisoned, non-contact or inchoate offenders. Depending on the circumstances, these may remain in place for life. Together, these laws have substantial implications for human rights, including the basic right to liberty, and it is in respect of such matters that Australian courts have been asked to consider them. There is emerging a small but growing literature on the various issues raised by detention, supervision and registration and the treatment given them by Australian judicial decision makers.4

(2011) 36(1) AltLJ 10

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Can and should burqas be banned?

Anne Hewitt and Cornelia Koch

The legality and desirability of bans of the full veil in Europe and Australia

The last two decades have seen growing debate in many countries about the appropriateness of displaying religious symbols in the public sphere. Much discussion has focussed on the wearing of religiously inspired dress and in particular Islamic dress. The latest chapter in this saga are attempts to ban in public the burqa and niqab, clothing worn by some Muslim women which covers the face.1

A number of European countries have taken steps to prohibit the wearing of this type of dress and several Australian legislators have called for legislation which would ban the burqa and niqab, including federal Senator Cory Bernardi, New South Wales MP Fred Nile and South Australian MP Bob Such. The arguments relied on by proponents of a ban include that this type of dress symbolises oppression of women and thus offends the principle of sexual equality; that it causes a risk to public security because the wearer cannot be readily identified or because weapons or explosives can be hidden under it; and that clothing which conceals the face is offensive to others in Western societies. Conversely, opponents of a ban argue that it would infringe women's right to manifest their religion, and rights to personal autonomy and integrity, and that a ban would lead to a greater marginalisation of already disadvantaged women and create a rift between some Muslim groups and society at large.

he last two decades have seen growing debate in many countries about the appropriateness of displaying religious symbols in the public sphere. Much discussion has focussed on the wearing of religiously inspired dress and in particular Islamic dress. The latest chapter in this saga are attempts to ban in public the burqa and niqab, clothing worn by some Muslim women which covers the face.1

A number of European countries have taken steps to prohibit the wearing of this type of dress and several Australian legislators have called for legislation which would ban the burqa and niqab, including federal Senator Cory Bernardi, New South Wales MP Fred Nile and South Australian MP Bob Such. The arguments relied on by proponents of a ban include that this type of dress symbolises oppression of women and thus offends the principle of sexual equality; that it causes a risk to public security because the wearer cannot be readily identified or because weapons or explosives can be hidden under it; and that clothing which conceals the face is offensive to others in Western societies. Conversely, opponents of a ban argue that it would infringe women’s right to manifest their religion, and rights to personal autonomy and integrity, and that a ban would lead to a greater marginalisation of already disadvantaged women and create a rift between some Muslim groups and society at large.

The primary focus of this article is not on the merits,
or otherwise, of these arguments. Instead it examines whether legislative bans in a number of jurisdictions would be able to withstand challenges in court. First, we consider the developments in Europe, with particular emphasis on France and Belgium where the most concrete steps towards banning the
burqa and niqab have been taken,2 and examine whether enacted or proposed legislation will withstand scrutiny under the European Convention on Human Rights (‘ECHR’). This analysis leads to the conclusion that the European Court of Human Rights (‘ECtHR’) will most likely declare laws enacting a blanket ban on the burqa and niqab in public to be in breach of the ECHR.

We discuss in the second part whether similar bans could be validly enacted in Australia and show that the only legal protection in this jurisdiction is domestic anti-discrimination law. These protections are limited because Commonwealth and State Parliaments can override them. Therefore, unlike in Europe, Muslim women in Australia would not have grounds on which to challenge legislation banning the full veil. This disparate protection is indicative of the difference in the protection of the rights of members of minority groups: in Europe, affected Muslim women can rely on human rights protections to defend themselves in court, while this avenue is not open in Australia.

This is problematic. We concede that there may be situations in which a person has to identify herself by revealing her face, for example, when picking up her child from school. However, we do not believe that as a matter of policy this warrants the imposition of a blanket ban on this type of clothing in public which constitutes a disproportionate infringement of women’s rights.

Burqa bans in Europe:
Belgium and France blaze the trail

Concrete steps to prohibit the wearing of the burqa and niqab in certain public settings are being contemplated in a number of European countries, including the Netherlands, Austria and Switzerland. However, France and Belgium have gone furthest along the path of imposing a legislative ban, with the legislation being enacted in France and passing the lower house of Parliament in Belgium. In both countries legislation making the covering of the face in public a criminal offence was supported by an overwhelming majority in the lower houses of Parliament.3 The French Senate went on to pass the legislation 246 votes to 1.4 While the Belgian Senate has not yet considered the bill, no serious opposition is expected and it is therefore likely that the burqa ban will eventually become law in Belgium. Opinion polls in both countries suggest that the initiatives have very wide community support. However, it is interesting to note in this context that only a tiny number of women wear the burqa or niqab: approximately 30 in Belgium and 1900 in France.5

While these legislative proposals emerged out of public debate relating specifically to the wearing of the burqa and niqab, their wording is general.6 They prohibit appearing in public with the face fully covered so as to make it impossible to recognise the person. Therefore, the group of persons who may be affected by this legislation would include, for example, wearers of balaclavas or scarves covering the face during political rallies. Nonetheless, the public discussion clearly reveals that the intended targets of the legislation are fully veiled Muslim women. This is further demonstrated by a provision in the French legislation which goes beyond punishing the wearers of full face coverings: it creates the offence of forcing another person to hide their face because of their sex.

The proposed burqa bans will apply in all locations open to the public or used for public service, for example streets, parks, shops and restaurants. The punishment imposed by the legislation is not insignificant. Under the Belgian proposal fines of €10–20 or a period of imprisonment of up to five days for repeat offenders are permitted. The French law envisages fines of up to €150 and the obligation to complete a course in ‘French citizenship’. A person who forces another to cover up in public faces imprisonment for one year and a fine of €30 000. This penalty increases twofold if the offence is committed against a minor. The stark difference in punishment for wearers of veils and those forcing women to cover their faces suggests an assumption by French law makers that this type of dress may be forced upon women. Such compulsion is clearly regarded as a far graver offence than merely donning the burqa or niqab.

Domestic judicial review
in Belgium and France

In Belgium and France there is scope for judicial review of the bans either domestically or internationally. A domestic challenge could be brought in the Belgian Constitutional Court, which has the power to declare the law invalid if it finds it in contravention of the Constitution, which guarantees, inter alia, freedom of religion and the right to personal autonomy.

In contrast, the French legislation cannot be judicially invalidated at the national level because French courts do not have the power to strike down enacted laws. Prior to its promulgation, the ban had already been approved by France’s highest court in constitutional matters, the Conseil Constitutionnel. In a characteristically short judgment the Conseil held that the law was valid as long as the concealment of the face in places of worship open to the public was permitted. It determined that the legislation struck a constitutionally permissible balance between concerns of public safety and security and of equality of the sexes on one hand and the right to religious belief and expression, and personal liberty of the affected women on the other.7

The outcome of this review was surprising because the ban had previously received a negative assessment from the Conseil d’État, France’s highest administrative court. When asked about the constitutionality of the proposed ban by the Prime Minister, the Conseil d’État indicated that a general ban on the burqa and niqab would not be legal because it would infringe the constitutional guarantees of freedom of religion and the right to personal autonomy. However, it also stated that a more limited ban would be compatible with the Constitution, if it was imposed for security reasons or to prevent fraud in certain circumstances, for example in banks, at sporting events, in electoral offices, when picking up children from school or within the health system.8 However, the advisory opinion of the Conseil d’État is now irrelevant because the legislation has subsequently been validly enacted.

There is also an avenue to challenge French and Belgian laws at the international level: the bans of the burqa and niqab could be tested in the ECtHR for contravention of the ECHR to which both France and Belgium are signatories.

Legality of French and Belgian laws
under the ECHR

In light of the ECtHR’s existing jurisprudence on religious dress, the Court would probably regard the Belgian and French blanket bans on the burqa and niqab in public as contravening the ECHR, in particular the freedom to manifest one’s religion or belief. This freedom is guaranteed by Article 9(1) ECHR and, according to case law, wearing of religious dress qualifies as a manifestation of religion.9

While the ECtHR has so far not been asked to rule on a ban of the burqa or niqab, it has been called upon to determine the compatibility with the ECHR of legislation banning the Islamic headscarf (hijab). In three cases the ECtHR upheld the national prohibition, but importantly these bans were more limited than the proposed burqa legislation as they concerned bans on hijab in the specific context of public education in countries that constitutionally subscribe to a secular form of state.10

If the principles developed in these cases are applied to the French and Belgian legislation on face coverings, the following picture emerges. Where the applicant before the Court holds a sincere belief that covering her face in public is a religious rule, the ECtHR will accept this as a manifestation of religion.11 In such a situation the French and Belgian laws would be regarded as constituting an infringement of the freedom guaranteed in Article 9(1). Subsequently, the Court would examine whether this infringement is justified under Article 9(2) as ‘necessary in a democratic society in the interests of public safety, for the protection of public order ... or for the protection of the rights and freedoms of others.’

Public safety concerns did not play a role in the previous headscarf cases, but arguments of public safety are prominent in the burqa and niqab debate. For example, the introductory note to the Belgian bill describes the ban as a safety measure to ensure that people can be identified at all times. It is therefore likely that the ECtHR would be asked whether the burqa bans are justified on this ground. When examining if Article 9(2) would permit a ban on this basis the Court would determine whether the means used to protect public safety are proportionate. If the bans were limited to situations where there is a significant risk to public safety (for example in banks or at major public events), the ECtHR may accept that they constitute proportionate limitations on the freedom to manifest one’s religion in the interest of public safety. However, because the laws apply in all public places (regardless of the risk to public safety which wearing of the burqa or niqab is likely to constitute in the specific place) it is very unlikely that the Court would regard the bans as proportionate.

The headscarf cases focused on the Article 9(2) justifications of the protection of public order and the rights and freedoms of others. Public order was important in Sahin v Turkey, where the ECtHR put much emphasis on the domestic Turkish context in coming to its decision. While almost the whole population of Turkey adheres to the Islamic faith, the country is also strongly wedded to a constitutional principle of secularism. In Turkey, the hijab is viewed by secularists as a symbol of political Islam and the first step on a slippery slope towards Islamic fundamentalism. The Court accepted that in the particular political and social context of Turkey a ban on hijab in educational institutions could be justified for the protection of public order. However, the same argument cannot be made in relation to France or Belgium because there the number of women wearing full veils is minute and neither society is politically, culturally and religiously in danger of becoming fundamentalist Islamic state. It is therefore unlikely that the bans on the burqa and niqab could be upheld on this basis.

The protection of the rights and freedoms of others, particularly in the context of public educational institutions, was another important ground for justifying the laws challenged in the hijab cases. In Turkey, Switzerland and France secularism is a constitutionally protected principle which demands that the state sphere is free from religious values and symbols. The ECtHR accepted that in such states, public schools and universities should not accommodate religious symbols. However, as the burqa laws extend far beyond state institutions to all public places, including parks, shops or means of public transport, this argument is unlikely to justify the bans.

Another important aspect of protecting the rights and freedoms of others is the effect of external and peer pressure. In Sahin the Court accepted that if many Muslim women wore hijab at university, then those not wanting to wear the headscarf may feel pressured to do so. The pressure may be heightened if a teacher of young and impressionable children wore a headscarf as occurred in Dahlab. However, there is insufficient potential for this type of group pressure in relation to the burqa or niqab because so few women in France and Belgium wear it.

For these reasons it is likely that the ECtHR would declare the French and Belgian blanket bans on wearing full face coverings in public to be unjustified infringements of the freedom to manifest one’s religion. One can therefore expect that the French and Belgian legislation will not withstand challenges in the ECtHR and will not endure. In contrast, it appears that if similar legislation was enacted in Australia, that legislation would be valid, as shown below.

Guarantees of equality and the legality
of a burqa ban in Australia

Fierce public debate over the wearing of the burqa and niqab is not restricted to Europe. Since May 2010 Senator Cory Bernardi has been calling for a federal ban on this type of dress in Australia,12 and New South Wales MP Fred Nile and South Australian MP Bob Such have both introduced private members bills which would impose restrictions on the burqa and niqab in public.13 The two bills that have been introduced operate quite differently. The NSW bill makes it an offence for a person to wear a face covering while in a public place without a reasonable excuse (maximum penalty $550). A face covering is defined as any article of clothing or other thing (such as a helmet) that hides the face so as to conceal identity. The bill specifically provides that religious or cultural belief does not constitute a reasonable excuse. The bill also makes it an offence to compel another person to wear a face covering in a public place (maximum penalty $1100). The SA bill prohibits entry into prescribed premises (including a government agency or other area where security dictates it is necessary or desirable to establish identity) with any form of covering which obscures the face so as to make identification impossible.

In comparison to France and Belgium, debate in Australia about such legislative measures occurs in a very different legal landscape due to the lack of a constitutional guarantee of religious freedom such as those in the French and Belgian Constitutions and Article 9 ECHR. While section 116 of the Commonwealth Constitution protects the free exercise of religion, this provision has a limited scope of operation. It applies only to the Commonwealth, not the states, and has been interpreted so narrowly by the High Court that no law has ever been invalidated due to an infringement of section 116.14 Therefore, it is unlikely that this provision would offer individuals any protection from a burqa ban.

However, absence of constitutional safeguards does not mean that Australians are completely bereft of protection from attacks on their religious freedom. While the coverage is not uniform there are a number of pieces of legislation which may assist. Primary among these are prohibitions on various types of discrimination and the statutory bills of rights which have been enacted in some Australian jurisdictions. We now turn to consider the protections afforded by these legislative instruments to individuals dressed in burqas or niqabs, and the effect they would have on any legislative ban of the full veil.

‘The management reserves the right not to serve women wearing a burqa or niqab’

First, the protections which may be offered to an individual who is treated differently because she is dressed in a burqa or niqab will be considered. This discussion is not about the validity of legislation banning the full veil, but examines whether there is an avenue of redress for a woman who is told she will not be served at the local coffee shop because ‘the management reserves the right not to serve women wearing a burqa or niqab.’

a)  Prohibitions on discrimination based on religious belief or activity

Every Australian jurisdiction except South Australia, New South Wales15 and the Commonwealth prohibits religious discrimination. These prohibitions all extend to discrimination which is either based on a person’s religious belief or activity, or on characteristics associated with religious belief or attributed to people with that belief.16 The legislative provisions are also similar in scope — in each jurisdiction the prohibition extends, inter alia, to employment, education, access to goods, services, facilities and accommodation.17

While the doctrinal foundation for a religious requirement that women cover their faces may be debated, it is clear that the burqa and niqab are commonly regarded as items of religious dress peculiar to Islam. As such, even if a court was not convinced that the wearing of this type of dress constituted religious activity, it could clearly be regarded as either a characteristic of Muslim women, or as a characteristic which is imputed to Muslim women. Discrimination based on being dressed in a burqa or niqab is thus probably prohibited in all jurisdictions except SA, NSW and the Commonwealth.

b)  Prohibitions on discrimination based on religious dress or appearance

Instead of prohibiting discrimination based on religious belief or activity, South Australia has implemented a prohibition restricted to discrimination on grounds of religious dress or appearance.18 While this provision would clearly cover discrimination against individuals wearing the burqa or niqab, it is limited in that it does not apply to all of the areas in which discrimination is normally prohibited in Australia. Instead, it applies only in employment, within partnerships and to discrimination in education.19

c)   Prohibitions on discrimination based on race

For some religious groups another potential source of protection against discrimination based on items of religious dress may be found in provisions prohibiting discrimination based on race. This is of particular importance at Commonwealth level where there is neither a prohibition of discrimination based on religious belief or activity nor on the basis of religious dress or appearance.

In most Australian anti-discrimination legislation the definition of ‘race’ includes ethnic group or ethnic origin.20 This is useful for those religious groups whom the case law establishes are also an ethnic group (including Jews and Sikhs21). The question whether or not Muslim people constitute a group with a common ‘ethnic origin’ under the Race Discrimination Act 1975 (Cth) has not yet been decided. However, in the UK it has been found that Muslims are drawn from too diverse a range of backgrounds to receive protection.22 The same conclusion would surely be reached in Australia. Muslim women would thus be unable to seek redress under prohibitions against direct racial discrimination in relation to decisions which affect them as a consequence of wearing the burqa or niqab.

Conversely, in some circumstances discrimination against certain groups of Muslims may amount to indirect race discrimination. For example, if a decision not to hire Muslims (while not an overtly race-related criterion) has a disproportionate impact on a racial group which does receive protection (eg, people of a particular nationality) it would be prohibited as indirect discrimination on racial grounds. An argument of this kind was successful in a case heard in the UK, where an employer directed a jobcentre not to send him Muslims or men.23 This was held to constitute indirect discrimination against Pakistanis, the majority of whom were Muslim, who were the largest minority group living in the area. In the same way, refusal to serve women wearing the burqa or niqab may indirectly discriminate against a particular ethnic group.

d)  Charters of rights

While Australia does not have a constitutional bill of rights, the ACT and Victoria have both enacted statutory charters of rights. Both provide that individuals have a right to have a religion or belief, manifest a religion or belief, and enjoy their human rights without discrimination.24 However, the ACT
and Victoria have taken different approaches in relation to the enforcement of the rights enshrined in the charters. The
Human Rights Act 2004 (ACT) creates an independent cause of action and a person may initiate court proceedings against a public authority to seek a remedy on the ground that there has been a breach of his or her human rights.25 In contrast, in Victoria a person may initiate proceedings under the Charter of Human Rights and Responsibilities Act 2006 (Vic) only if he or she already has a cause of action other than under the human rights legislation.

In conclusion, our hypothetical victim, who has been told that she will not be served coffee because she is wearing a burqa or niqab, may be able to seek redress under one or more of the protections against discrimination around Australia. But would these protections have any effect on the validity of a legislative instrument banning the burqa and niqab? This will be considered below.

‘A person must not, without reasonable excuse, wear a face covering while in a public place’

Whether a prohibition of this nature can be enacted in Australia depends largely on which parliament enacts it.

a)  A Commonwealth ban on the burqa and niqab?

While it is unlikely that a legislative ban on wearing the burqa and niqab would be directly inconsistent with the Race Discrimination Act 1975 (Cth), as Muslims probably do not qualify as a racial group, it is possible that a ban may contravene the prohibition on indirect discrimination. However, according to the principle of parliamentary sovereignty, Parliament can override its previous legislation and is thus able to enact legislation that directly or indirectly discriminates against a racial group provided that the legislative intent to do this is clear. Moreover, the Commonwealth Parliament is capable of validly making laws which are inconsistent with state and territory legislation.26 A federal ban of the burqa and niqab would therefore be valid.

b)  A state ban on the burqa and niqab?

Because the principle of parliamentary sovereignty also applies at state level, state Parliaments are free to make laws that offend their own prior anti-discrimination legislation. However, pursuant to section 109 of the Commonwealth Constitution, any state law which discriminates against a group of people contrary to the Commonwealth Race Discrimination Act 1975 would be invalid. The most probable way this would occur is if a state or territory ban was held to violate the federal prohibition against indirect racial discrimination.

The ACT and Victorian charters of rights both provide a process for scrutiny of proposed legislation for consistency with human rights principles. However, in each jurisdiction the parliament is able to enact legislation which it knows contravenes human rights. Similarly, while the Supreme Courts of both jurisdictions may declare a piece of legislation inconsistent with the human rights in the charters, such a declaration does not affect the law’s validity, operation or enforcement.27 Therefore, even if a ban on the wearing of the burqa and niqab was inconsistent with human rights protected by the ACT or Victorian charters, neither would invalidate the legislative ban.

In summary, the states are thus free to implement burqa bans, except to the extent that they violate the federal Race Discrimination Act 1975.

Conclusion

It follows that there is no legal limitation on the Commonwealth’s power to implement legislation banning the wearing of the burqa and niqab and it is unlikely that there is any real limitation on the enactment of an effective state or territory ban.
The most likely impediment to state legislation is that it might constitute indirect racial discrimination in contravention of the
Racial Discrimination Act 1975 (Cth), but this could only be established where the majority of people affected by any ban were of one racial or ethnic group. Merely being a Muslim probably does not satisfy this requirement. Therefore, while Muslim women living in Europe have recourse to the domestic courts and the ECtHR to challenge burqa bans on the basis that they infringe their freedom to manifest their religion, Australian women are defenceless against legislation preventing them from wearing a garment which they believe is mandated by their religion. And the importance of this issue in the Australian community has already been demonstrated; in August 2010 a woman was ordered to remove her burqa to give evidence before the Western Australian District Court.28

In light of the limited legal protections available in Australia the best hope for vulnerable minorities is that Commonwealth and State Parliaments do not succumb to calls for banning religious headdress. To this end, calls for banning the burqa and niqab must be met with reasoned arguments, stressing that while certain situations may reasonably require that a person identify herself, this does not warrant a broad and disproportionate infringement of a woman’s right to manifest her religion, and to personal autonomy and integrity.

ANNE HEWITT and CORNELIA KOCH teach law at the University of Adelaide. The research for this article was supported by funding from the Adelaide Law School, and was first presented at a joint seminar of the Australian Association of Constitutional Law (SA Chapter) and the Research Unit for the Study of Society, Law and Religion, on 20 July 2010. The authors thank the organisers for the invitation and the audience for their helpful comments.

© 2011 Anne Hewitt and Cornelia Koch

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REFERENCES

1. The burqa covers the whole face, with a fabric mesh insert across the eyes. The niqab covers the majority of the face but has an eye slit.

2. These countries will be considered as they provide a useful comparison with Australia. However, it is interesting that limited bans of burqas and niqabs have also been implemented in non-Western countries including Syria and Egypt.

3. Only one MP voted against the French bill, and no MPs opposed the Belgian proposal, though there were a number
of abstentions in both countries.

4. The Belgian lower house passed the bill in April 2010, followed by the French lower house in July and the Senate in September of the same year.

5. Carole Landry, ‘Report calls for burqa ban in France’, Sydney Morning Herald (Sydney), 26 January 2010 <http://news.smh.com.au/breaking-news-world/report-calls-for-burqa-ban-in-france-20100126-mvxn.html> at 3 March 2011; ‘Belgian lawmakers pass burka ban,’ BBC News (Mobile), 30 April 2010 <http://news.bbc.co.uk/2/hi/8652861.stm> at 3 March 2011. The authors have been unable to locate accurate information about the number of women who wear the burqa
or
niqab in Australia.

 

6. Sénat de Belgique, Proposition de loi instaurant une interdiction de se couvrir le visage d’une manière rendant impossible toute identification de la personne (2010) <senate.be/www/?MIval=/publications/viewPub&COLL=S&LEG=4&NR=1427&PUID=67111173&LANG=fr> at 5 March 2011 ; LegiFrance, Loi n° 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public (1) <legifrance.gouv.fr/affichTexte.do;jsessionid=C3F0C399830F92EA20F1C040354F496F.tpdjo02v_2?cidTexte=LEGITEXT000022912210&dateTexte=20110411> at 5 March 2011.

7. Conseil Constitutionnel, Decision n° 2010 – 613 DC of October 7th 2010 <conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/en2010_613dc.pdf> at 5 March 2011.

8. Conseil D’État, Study of possible legal grounds for banning the full veil (2010) <conseil-etat.fr/cde/media/document/RAPPORT%20ETUDES/etude_voile_integral_anglais.pdf> at 5 March 2011.

9. There is debate within the Islamic community whether Islam imposes a duty on women to cover their faces. However, it is clear some Muslim women hold a sincere belief that wearing the burqa is a religious rule. A similar debate exists about the Islamic headscarf (hijab); the ECtHR has accepted that, if the wearer sincerely believes she is required to wear hijab, this constitutes a manifestation of religion, see, eg, Sahin v Turkey (2005) XI Eur Court HR, 173, 196–197. It is thus likely the Court would accept the wearing of the full veil as a manifestation of religious belief.

10. Dahlab v Switzerland (2001) V Eur Court HR 447 (a challenge by a teacher to a Swiss law preventing her wearing hijab while teaching), Sahin v Turkey (2005) XI Eur Court HR 173 (on rules preventing students wearing religious symbols in universities in Turkey) and Dogru v France (2008) XIV Eur Court HR 1; Kervanci v France (2008) XIV Eur Court HR 1
(a challenge to pupils in France being expelled from school for refusing to remove headscarves in physical education classes).

11. See Conseil D’État, above n 8.

 

12. Cory Bernardi, Ban the Burqa (6 May 2010) <corybernardi.com/2010/05/ban-the-burqa.html> at 3 March 2011.

13. Summary Offences Amendment (Full-face Coverings Prohibition) Bill 2010 (NSW), and Facial Identification Bill 2010 (SA).

14. See Suri Ratnapala et al, Australian Constitutional Law: Commentary and Cases (2007) at 676–686.

 

15. In NSW, ‘ethno-religious’ discrimination is prohibited. Anti-discrimination Act 1977 (NSW) s 4 and s 7. However, this ground has been held not to cover discrimination against Muslims: Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131.

16. See, eg, Equal Opportunity Act 1995 (Vic) s 6(j) and ss 7(b) and (c) (Note, from August 2011, this Act will be replaced by the Equal Opportunity ACT 2010 (Vic)); Anti-discrimination Act 1991 (Qld) s 7(i) and s 8.

17. See, eg, Anti-discrimination Act 1991 (Qld) Part 4; Anti-discrimination Act 1998 (Tas) s 22; Equal Opportunity Act 1995 (Vic) ss 13, 14, 37, 42, 49–52.

18. Equal Opportunity Act 1984 (SA)
s 85T(1)(f).

19. Equal Opportunity Act 1984 (SA) Part 5B.

20. See, eg, Discrimination Act 1991 (ACT) Dictionary; Equal Opportunity Act 1995 (NSW) s 4; and Racial Discrimination Act 1975 (Cth) s 9. Note, however, the definition of race in SA does not include ethnicity: Equal Opportunity Act 1984 (SA) s 5.

21. See, eg, King-Ansell v Police [1979] 2 NZLR 531 (concluding that Jews are a race) and Mandla v Dowell Lee [1983] 2 AC 548 (concluding that Sikhs are an ethnic group). Australian cases which have extended protection to Jewish people include Miller v Wertheim [2002] FCAFC 156 at [14] and Jones v Scully (2002) 120 FCR 243 at 272.

22. See, eg, Nyazi v Rymans [1988] unreported EAT/6/88 (UK).

23. Commission for Racial Equality v Precision Manufacturing [1991] No 4106/91 (Sheffield Industrial Tribunal) (UK).

24. Human Rights Act 2004 (ACT) ss 8, 14; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 14.

 

25. Human Rights Act 2004 (ACT) s 40C.

26. Provided, of course, the Commonwealth is legislating in an area for which it has a relevant head of power. In 2008 the Full Court of Federal Court established that state anti-discrimination law does not bind the Commonwealth: Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) (2008) 248 ALR 494.

27. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 30, 36(2) and (5); Human Rights Act 2004 (ACT) s 32.

28. Joel Gibson, ‘Burqa decision ripples across world’, Sydney Morning Herald (Sydney), 20 August 2010 <smh.com.au/national/burqa-decision-ripples-across-world-20100819-12s43.html> at 5 March 2011.

(2011) 36(1) AltLJ 16

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Recognition of the Human Right to Water

Paula Gerber and Bruce Chen
Article

Has the tide turned?

Unlike the right to food and housing, the right to water was not expressly acknowledged in the Universal Declaration of Human Rights ('UDHR') or the subsequent International Covenant on Economic, Social and Cultural Rights ('ICESCR'). This omission generated debate about whether a human right to water exists at international law.1

Because a right to water was not expressly mentioned in ICESCR, the Committee on Economic, Social and Cultural Rights ('ESC Committee'), in 2003, published General Comment 15 which recognised the existence of a right to water as part of the right to an adequate standard of living (Article 11), and the right to the highest attainable standard of health (Article 12). However, this General Comment generated significant criticism, with some scholars arguing that the ESC Committee, in inferring the right to water, had exceeded its authority, was acting on its own revisionist views, and had done so without sound legal basis.2

However, the debate about the existence of a human right to water is now at an end. In a landmark resolution, the UN General Assembly, unanimously adopted the Declaration on the Human Right to Water and Sanitation on 26 July 2010. That this resolution was passed without any votes against it, strongly suggests that the existence of a right to water is now recognised as being part of the body of international human rights law albeit in the form of a non-binding declaration.3

(2011) 36(1) AltLJ 21

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