Confronting the Burqa in Australian Law

Following a recent report that Senator Jacqui Lambie of the Palmer United Party (the PUP) intends to introduce a private member's bill aimed at banning the wearing of the burqa in Australia, the issue of the wearing of the controversial garment has arisen for debate again, with the Prime Minister indicating that he wished that ". . . the burqa wasn't worn at all" but that it was "the choice of women to do so".

The Prime Minister's (the PM)comments arose from an interview relating to the efforts of Liberal Senator Cory Bernardi, who has lead a campaign to have the Islamic garment banned in Parliament. In the same interview,  the PM also indicated that he found the garment "confronting" but  said he was not aware of anyone ever having worn a burqa into Parliament anyway. A final decision on whether the wearing of the burqa will be banned in Parliament House, it is reported, could be made within a week. The decision is expected to follow after an assessment is made by speaker Bronwyn Bishop following on advice to be given to her by the Australian Security Intelligence Organisation (ASIO) and the Federal police on the security risks or otherwise presented by full facial coverings being allowed to be worn in parliament.

The Lambie Private Members Bill

The attempt by Senator Lambie to have burqas banned is tied very much to her view that it is a national security issue. On Monday (29 September 2014) it was reported that Senator Lambie would be seeking to ban "identity concealing religious garments" and hoped that her Bill would be put to a conscience vote.

Shaky Ground Constitutionally

The PUP senator, however, may have her Bill thwarted by the Commonwealth of Australia Constitution, where in section 116 it provides that:

Media reports quote constitutional expert George Williams as follows:

Professor Williams is further reported as saying that:

What Professor Williams suggests is already the approach that has been enacted in both NSW and WA where laws allow police and appropriate authorities to require a women wearing a burqa to reveal her face where such is required for identification in connection with investigations or with a security matter, (see previous posts at Criminal Investigation (Identifying People) Amendment Bill 2013: WA's Burqa response and more, andNSW Government introduces veil removing law).

Liberal Senator Cory Bernardi is reported as saying on Monday that he would be watching the Lambie Bill "carefully" given that  his:

As already mentioned above, Senator Bernardi has written to the presiding officers of the national Parliament asking them to ban the burqa from being worn in the building and his request is being considered.

When the Bill is Expected

It is reported that in speaking about the Bill, Senator Lambie indicated that:

The reported PUP view is that it has no policy about burqas but that Senator Jacqui Lambie ". . . is free to try to ban the religious attire".

PUP leader Mr Clive Palmer is quoted as saying that he and his senators can vote however they wish on any private member's bill that they produce.

Apart from other PUP Senators, it is reported that support is also likely to come from Senators Cory Bernardi and George Christensen.

PUP leader Mr Palmer did not indicate how he would vote, arguing that as party leader he didn't want to influence the other PUP senators.

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• Jacqui Lambie's attempt to ban the burqa could be unconstitutional, say legal experts (SMH - 29 September 2014)
• Senator Cory Bernardi requests burqa ban in Parliament House (SMH - 24 September 2014)
• Burqa debate: Tony Abbott says people need to be identifiable in secure buildings (SMH - 1 October 2014)
• PUP members free to vote on burqa ban (Sky - 30 September 2014)
• Commonwealth of Australia Constitution, s116