QLD Court of Appeal finds that legislation prohibiting Sikhs from wearing ceremonial knives in schools is inconsistent with the Racial Discrimination Act 1975 (Cth)
Athwal v State of Queensland [2023] QCA 156
Summary
Kamaljit Kaur Athwal successfully brought an action against the State of Queensland seeking a declaration that the restriction on possessing a knife for religious reasons inside a school was inconsistent with the federal Racial Discrimination Act 1975 (Cth) (‘RDA’). Section 51(5) of the Queensland Weapons Act 1990 (Qld) (‘Weapons Act’) prohibits the bringing of a knife onto school premises, including for a genuine religious purpose. The Court of Appeal found that there was no evidence of other religions involving physical possession of a knife so the prohibition in section 51(5) could not be intended for any purpose other than to restrict the wearing of the kirpan on school property, noting that section 51 does not generally prohibit bringing knives into schools, for example, for cutting food. The fact that the prohibition only impacted members of the Sikh religion led the Court of Appeal to find that section 51(5) of the Weapons Act was inconsistent with section 10(1) of the RDA. The constitutional supremacy of Commonwealth legislation over state legislation then rendered section 51(5) invalid.
Facts
Background Context and Legislation
Initiated members of the Sikh religion are required to always wear or possess the five articles of faith.1 One of those articles is the ‘kirpan’, a typically small ceremonial sword worn underneath clothing on a cloth sling. Initiated Sikhs who remove an article of faith, including in medical emergencies, must go through an absolution process that can involve not eating or drinking until prayers are recited.
Section 51(1) of the Weapons Act makes it a criminal offence to physically possess a knife in a public place or school without reasonable excuse. However, section 51(4) of the Weapons Act specifically allows for the carrying of a knife for genuine religious purposes in public places. Importantly, this exemption does not extend to schools, with the carrying of a knife for genuine religious purposes being prohibited in a school, under section 51(5) of the Weapons Act.
Section 10 of the RDA prohibits discrimination on grounds of race, colour or national or ethnic origin and as such, Ms Athwal argued that section 51(5) of the Weapons Act was illegal, as it discriminated against her ability to practice her religion, and limited her ability to enjoy certain rights enjoyed by other people of different religious denominations.
Ms Athwal gave uncontested evidence that she and other initiated Sikhs were excluded from various activities that take place on school grounds. These activities included dropping off and picking up their children, attending assemblies, meeting teachers, attending school activities, conducting other work on school grounds and voting in elections where polling booths are established on school grounds. ]
Decisions
Lower Court
At first instance, the Queensland Supreme Court dismissed Ms Athwal’s action, refusing to find that the legislation was discriminatory. In particular, Justice Brown found that Sikhs and non-Sikhs enjoyed the same lawful excuses to possess a knife, being those exemptions set out in section 51(2) of the Weapons Act. Her Honour found that the provisions of the Weapons Act did not have a practical effect of providing a greater right of wearing a knife for religious purposes to initiated Sikhs.
Appeal
Leave to Appeal was sought in the Court of Appeal and the three-judge bench unanimously allowed the appeal. Acting Judge of Appeal Mitchell wrote the lead judgment, with which President Mullins and Dalton JA agreed, ultimately declaring that section 51(5) of the Weapons Act was inconsistent with section 10 of the RDA and therefore invalid.
In reaching this conclusion, the Court found it was apparent from the express terms of the Weapons Act that Parliament objectively intended to prevent the physical possession of kirpans in schools. The Court found that it was the fact that the legislation was specifically directed at Sikhs which rendered it is inconsistent with the RDA and therefore inoperative under the Constitution and invalid.
Importantly, the Court noted that there are times in which a religious right may be limited, such as the carrying of the kirpan, where it is limited for the public at large, not a specific subset of the public. The example cited by the Court was the general prohibition on bringing knives, including the kirpan, on a plane. It is illegal for all members of the public to carry a knife on board a plane, without exception.
Acting Judge of Appeal Mitchell found that section 51(5) of the Weapons Act qualified the general operation of the Act in a way that is particularly directed at Sikhs. Noting that section 51 does not generally prohibit bringing knives into schools, his Honour observed that pocketknives for utility purposes and paring knives for cutting food would not offend section 51(1). Rather, they would fall under the exemptions in section 51(2) of the Act. However, Sikh parents were prohibited from sending their children to school with a kirpan, or from entering school property themselves if they were wearing a kirpan despite these being no more dangerous than knives permitted under section 51(2). Further, there was no evidence of other religions involving physical possession of a knife so the prohibition in section 51(5) could not be intended for any purpose other than to restrict the wearing of the kirpan on school property.
The operation of section 51(5) of the Weapons Act therefore necessarily limited the extent to which initiated Sikhs enjoyed their rights to freedom of religion and movement. In circumstances where State legislation, in this case the Weapons Act, and Commonwealth legislation, the RDA, are incompatible, section 109 of the Australian Constitution states that the Commonwealth legislation prevails and invalidates the inconsistency. As such, section 51(5) of the Weapons Act was found to be invalid.
Commentary
This decision demonstrates that the competing interests of Parliament to protect the community from potential harm still needs to be balanced against enabling members of the community to practice their religion, free from discrimination. The decision is a timely reminder to drafters that legislation must have equal application to all members of the community, and be free from discrimination, to operate effectively. Otherwise, such laws are at risk of being invalidated.
Prepared by Catherine O’Keefe and Jordan Bova, Wotton + Kearney