Victorian Supreme Court finds Charter does not protect right to wear nikab in Court

The Queen v Chaarani (Ruling 1) [2018] VSC 387 (16 July 2018)

Summary

Justice Beale of the Victorian Supreme Court has rejected a challenge to an earlier order prohibiting the wearing of a nikab by a spectator during the trial of three men accused of plotting a Christmas bombing of Federation Square in Melbourne's CBD. Ms Aisha Al Qattan, the wife of one of the accused, submitted that a prohibition against wearing the nikab while in the public gallery of the court breached Ms Al Qattan's right of religious freedom and right to participate in public life. Both rights are enshrined in the Victorian Charter of Human Rights (Charter).

Facts

Ms Al Qattan's husband, Mr Abdullah Chaarani, was charged with conspiring to do acts in preparation for, or planning, a terrorist act, being the bombing or attack by firearm and/or knife in Melbourne's CBD. Ms Al Qattan sought to wear a nikab (a veil that completely covers the head and face except for an opening for the eyes) during her husband's jury trial before Justice Beale. Justice Beale indicated that spectators in his Honour's court must have their faces uncovered for security reasons. Ms Al Qattan sought a variation from this prior order.

Ms Al Qattan argued that it was oppressive to prohibit her from wearing a nikab in court, as it breached her right of religious freedom and her right to participate in public life, found in sections 14 and 18 of the Charter. Ms Al Qattan argued that her wearing the nikab was a fundamental part of observing her faith, and that there was nothing disrespectful, offensive or threatening about wearing a nikab in court. She further offered to remove her nikab for security staff at the court entrance so that her identity could be ascertained, in addition to undergoing the routine weapons detector screening. She also noted that she was permitted to wear her nikab in court during her husband's committal proceedings (although these proceedings were heard by a different judicial officer). Ms Al Qattan also submitted that she was not a security risk, and that Australia is a "multicultural society and religious dress should be accommodated unless overriding considerations relating to freedom and democracy, or the interests of justice prevail".

Decision

Justice Beale dealt with each of Ms Al Qattan's arguments in turn.

Justice Beale agreed that the wearing of a nikab in court for religious reasons is not disrespectful, offensive or threatening, but his Honour considered it to be "an impediment to the deterrence and punishment of misbehaviour by spectators in the public gallery".

As to Ms Al Qattan's concerns about immodesty, his Honour considered that "the exposure of one's face in a court room cannot reasonably be viewed as an immodest act: subjective views to the contrary cannot rule the day, or the management of a court room".

Although Justice Beale acknowledged Ms Al Qattan's willingness to undergo additional identity checks with court security staff, his Honour opined that security "is more than just a matter of identification". His Honour also expressed concerns that the weapon scanners do not eliminate all security concerns; serious misconduct can occur without the use of a weapon. Further, his Honour noted that Ms Al Qattan was not the only spectator who wished to wear a nikab during the proceedings. This is compounded by the "highly stressful" nature of Supreme Court proceedings:

As a consequence of that stress, incidents happen from time to time in court. Whilst it is rare for physical violence to erupt, it is not so rare that things are said by spectators in the public gallery which should not be said…in some cases, things said or done by spectators may necessitate the discharge of a jury, which may cause great distress to participants in the trial, not to mention the cost to the community.

In this regard, if something were to occur during the proceedings, it might be difficult to work out who was involved in the incident if there were multiple people with their faces covered. Moreover, minimising the occurrence of such incidents, his Honour opined, "must inform one's approach to court management in general".

As to Ms Al Qattan's submission that she was permitted to wear a nikab during the committal proceedings faced by her husband, Justice Beale considered that a trial before a judge and jury was a different matter and accordingly "different considerations come into play", although his Honour did not elaborate as to what these considerations might be.

Ms Al Qattan professed a willingness to abide by any directions given "to uphold the good order and management of the proceedings". In this regard, his Honour considered the possibility of segregating spectators wearing nikabs and/or arranging for the presence of additional security staff who could sit near them. However, his Honour opined that such an arrangement would be an inappropriate use of limited court security resources, and that such measures would "be more restrictive of rights than a requirement that spectators have their faces covered", notwithstanding the religious beliefs underpinning Ms Al Qattan's desire to wear a nikab.

Dealing with Ms Al Qattan's assertion that she did not present a security risk, his Honour noted that:

… [P]ersons closely associated with an accused have a larger stake in the proceedings than the casual observer and will be subjected to considerable stress where the charges are serious, as is the case here. Ms Al Qattan, and other supporters of the accused men who also wish to wear nikabs in court, may be able to handle the stress and act with restraint. But they may not. I consider that there is a risk that should not be ignored.

Case law

His Honour then turned to previous authorities which were instructive on the issue. However, many of the authorities considered dealt with the issue of whether a witness should be permitted to wear a nikab while giving evidence. Another case was about whether an accused could wear a nikab during her trial. The cases considered suggested that, where a witness is not giving contested evidence, they may wear a nikab, and where identity is not an issue, an accused may wear a nikab save for when giving evidence. Justice Beale also distinguished these cases from Ms Al Qattan's situation, noting that, whereas an accused is compelled to be present in court, and witnesses are often compelled by force of subpoena to attend court, Ms Al Qattan was under no legal compulsion to attend court. Rather, Ms Al Qattan was present as a spectator and supporter of her husband.

Principles of court management

Justice Beale considered that adopting a proactive, rather than a reactive, approach is preferable. One reason for this is that misbehaviour will not always be immediately detected by court staff:

A person to whom something improper is said or done may be too stunned or frightened to raise the alarm immediately, enabling the culprit to get away. Or there may not be sufficient court security staff on hand. Court security resources are limited and one cannot always predict which cases will generate problems in the public gallery.

His Honour further noted that Ms Al Qattan, if she considers that it would be improper for her to attend court with her face uncovered, can choose not to attend. Arrangements could be made so that the proceedings could be live streamed to her from another room within the court complex.

Human rights

In his judgment, Justice Beale acknowledged that "open justice, religious freedom and the right to participate in public life are fundamental values which must be accorded full respect in our society and in this court". However, these rights and principles are not free of limitations. Accordingly, Justice Beale found that it is a reasonable limitation "demonstrably justified in a free and democratic society based on human dignity, equality and freedom to require spectators in the public gallery to have their faces uncovered".

Commentary

The debate of whether to ban Muslim women from wearing the burqa or nikab has long been a topic of debate for politicians and the media in Australia. This is especially troubling when it is used to stir up Islamophobic sentiment. In support of such a ban, proponents often cite European countries, such as France, Germany and Denmark, which have banned women from wearing the items in public spaces. The justifications for the ban span from Western conceptions of female equality, protecting the “Australian way of life” and, as featured in this case, public safety.

Critics of the ban have dismissed the policy as blatant Islamophobia, which will further alienate and isolate Muslim women in Australia. Public safety is ensured by laws such as the Identification Legislation Amendment Act 2011 (NSW), which empowers police to require people to remove face coverings for identification purposes.  

The debate potentially also emboldens violent attacks against Muslims in Australia. A recent report, Islamophobia in Australia, found that perpetrators of Islamophobic attacks overwhelmingly target women wearing Islamic dress.

This decision is disappointing for Muslim Australians who wish to exercise their right to religious freedom. 

The full text of the decision is available here.

Sarah Hort is a graduate at Ashurst.