A judge has ruled that laws prohibiting the carrying of small ceremonial swords on school grounds for “genuine religious purpose” are not an act of discrimination against a person enjoying a fundamental human right.
Brisbane Supreme Court Justice Brown on Friday dismissed Kamaljit Kaur Athwal’s challenge to Queensland weapons laws – which ban the wearing a ‘Kirpan’ by initiate Sikhs for religious purposes on school grounds – as a breach of national anti-discrimination laws.
Under Section 51(1) of Queensland’s Weapons Act 1990 a person is prohibited from carrying a knife in public without reasonable excuse. However, more than a decade ago the state’s Weapons Amendment Act 2011 relaxed laws to permit people to carry them for genuine religious purposes – including the carrying of a ‘Kirpan’ by people initiated into the Sikh religious faith.
One exclusion in the amendments was the carrying of a knife – even as required for religious purposes – on any school grounds or premises.
In a bid to remedy that exclusion, Ms Athwal sought to challenge the law in the Supreme Court of Queensland as being in conflict with Australia’s Commonwealth Racial Discrimination Act 1975 (RDA).
Justice Brown, in her 22-page decision, noted Ms Athwal’s contention that existing Queensland laws prevented Sikhs from entering school grounds because of their religious beliefs.
“The evidence provided on behalf of (Ms Athwal) identifies the effect of the prohibition of the possession of knives in schools on parents who wish to participate in school life and on Sikhs such as (her) who wish to enter the school for educational purposes,” Justice Brown said.
“As a result, (Ms Athwal) contends that (both she) and other initiated Sikhs have been excluded from … dropping off and picking up their children; attending assemblies; meeting teachers; attending school activities; and conducting other work on school grounds.
“(Ms Athwal) also contends that she has been deprived of the ability to vote at Government elections at the local school, the most convenient place for her to do so.”
The court was told Ms Athwal was an initiated ‘Amritdhari Sikh’ and had been the Sikh Niskam Society of Australia Director since 2010.
Justice Brown noted that, as part of her religion, Ms Athwal was required at all times to wear or possess five mandatory articles of faith, which include a Kachera (undergarment), a Kangha (small wooden comb), a Kara (iron band), Kes (uncut hair covered by a turban) and a Kirpan (ceremonial sword).
“The Kirpan is made of either steel or iron … (and) come in a variety of shapes, sizes, bluntness and material, and are usually worn underneath clothing on a cloth sling called a Gatra,” Justice Brown said.
“It runs counter to the beliefs of an initiated Sikh to remove or to have removed any of the five articles of faith. If an initiated Sikh removes any one or more of the five articles of faith, including in cases of medical emergency, they must go through an absolution process which in its strictest form would see a person refrain from eating or drinking until prayers are recited.
“That would extend to the removal of the Kirpan to enter school grounds.”
Lawyers for Ms Athwal argued that removing the possession of a knife at a school for a “genuine religious purpose” as a “reasonable excuse” effectively prohibited initiated Sikhs from entering and accessing school premises.
“This is because in order to legally access school grounds the applicant and other initiated Sikhs must either breach their religious faith or they otherwise cannot lawfully attend a school in Queensland” Justice Brown said.
“(Ms Athwal) therefore contends that the prohibition in s51 of the Weapons Act has the effect of differentiating between access to schools by persons who are Sikhs and access to schools by persons who are non-Sikhs.
“(She also) contends that the … Weapons Act therefore results in ‘operational discrimination’ notwithstanding its race neutral language.”
Ms Athwal submitted the Queensland’s law were in conflict with the Commonwealth religious discrimination laws designed to prevent people of one race from enjoying their human rights to a more than limited extent of people from another race.
The Queensland Government opposed Ms Athwal’s application.
In dismissing the application, Justice Brown said: “This is a difficult case and the outcome no doubt will be difficult for (Ms Athwal) and initiated Sikhs, particularly given it appears incongruous with some of the lawful excuses in s51(2) of the Weapons Act which do allow the possession of a knife in a school to not allow the wearing of a Kirpan for a genuine religious purpose at school.
“However … the RDA is engaged by a differentiation occurring in the enjoyment of rights between people of a race or ethnic origin as opposed to people of another race or ethnic origin by reason of the law and it is not relevantly engaged in the present case.
“The relevant comparison is not between lawful excuses permitting possession of a knife for other reasons which are not connected with possession for a genuine religious purpose and the exclusion of such a possession as a religious purpose.
“The application therefor fails.”
Read the decision.