The Court of Appeal has overturned a ban on Sikhs carrying knives for religious purposes in Queensland schools.
In September last year, Brisbane Supreme Court dismissed Kamaljit Kaur Athwal’s challenge to Queensland weapons laws – which ban the wearing of a “kirpan” by initiate Sikhs for religious purposes on school grounds – as a breach of national anti-discrimination laws.
Backed again by Caxton Legal Centre, Ms Athwal successfully appealed Justice Brown’s decision, with the Court of Appeal in Brisbane yesterday declaring the state’s laws are inconsistent with the Commonwealth’s laws because they target Sikhs.
Under Section 51(1) of the Weapons Act 1990 (Qld), a person is prohibited from carrying a knife in public without reasonable excuse. Under Section 51(5) it is not a reasonable excuse to carry a knife in a school for genuine religious purposes.
In a bid to remedy that exclusion, Ms Athwal challenged the law as being in conflict with s 10 the Racial Discrimination Act 1975 (Cth), which is designed to ensure the rights to equality before the law for people of all races, colours, or national or ethnic origin.
As an initiated Sikh, Ms Athwal is required at all times to wear or possess five mandatory articles of faith: a kachera (undergarment), a kangha (wooden comb), a kara (iron band), kes (unshorn hair) and a kirpan (ceremonial sword).
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 a long and rigorous absolution process.
Ms Athwal argued denying 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.
In their decision, Court of Appeal Justices Mullins, Dalton and Mitchell ordered Justice Brown’s decision be set aside and substituted with a declaration that s 51(5) of the Weapons Act 1990 (Qld) is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) and, by reason of s 109 of the Commonwealth Constitution, is therefore invalid.
Among its submissions, the State of Queensland had asserted the fact that any particular kirpan might be blunt or sewn into a pouch, where it is difficult to access, does not mean that a kirpan is not a knife within the meaning of s 51 of the Weapons Act.
It had also asserted that the interpretative rule contained in s 48 of the Human Rights Act 2019 (Qld) was of no assistance in understanding what is meant by the term knife in s 51 of the Weapons Act.
Justice Dalton stated those submissions were misplaced given the provision being interpreted was one creating a criminal offence.
“To suggest that police officers attempting to enforce the law could be drawn into completely ill-defined questions as to the bluntness or sharpness of any particular object, or how readily it might be accessed when worn on the body, is quite unrealistic,” she said.
“The idea that they might be drawn into abstruse legal considerations regarding s 48 of the Human Rights Act is more so. This is sufficient to dispose of the arguments made in the notice of contention.
“I record that I am surprised that counsel for the State of Queensland would rely upon the Human Rights Act in train of an argument to support a legislative provision which is directed at reducing the human rights of a particular racial or religious group within our society.”
The justices agreed the appeal focused on the right to religious freedom and the right to freedom of movement, which are protected under the Racial Discrimination Act.
“It must be recognised that significant numbers of people work at schools: teachers, cleaners, gardeners. Schools are commonly used as polling stations during elections and evacuation centres during natural disasters. They are places where athletics carnivals, fairs and other community events are held,” Justice Dalton said.
“Legislation which prevents persons of a particular race attending schools is legislation which does infringe the broad rights to religious freedom and freedom of movement in my view.”
Justice Mitchell said possession of a kirpan by a Sikh for genuine religious purposes could constitute a reasonable excuse in relation to schools.
“Knives may be brought into schools without committing an offence for a variety of reasons which do not involve using a knife offensively or for purposes of self-defence. For example, a parent may send their child to school with a pocketknife for utility purposes or a paring knife to cut up fruit at lunchtime without committing an offence against s 51(1),” he said.
“However, a Sikh parent is prohibited from sending their child to school with a kirpan, which may be much less dangerous than a pocketknife or paring knife. That is so despite kirpans generally not presenting a greater danger than the many other kinds of knives that s 51 does not prohibit from being taken into schools for a variety of non-religious reasons.
“By targeting the physical possession of a knife in a school for religious purposes, when other uses which do not involve using a knife offensively or for purposes of self-defence are not prohibited, s 51(5) of the Weapons Act effectively singles out Sikhs for differential treatment.”
No order was made as to the appeal costs.
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