The Niqab and the Law
Wednesday 2 October 2013 @ 1.23 p.m. | Crime | Legal Research
The issue of the whether a person should be forced to uncover their face for purposes of identification is frequently portrayed in the media in contexts of high emotion and controversy. France has enacted a total ban on the burqa while here in Australia some media outlets have run sensationalist pieces on the topic, painting a picture of imminent threat to social order.
Whereas at first blush the matter appears to be a highly contentious dispute, the ‘two sides’ may not be as far apart in practice; laws governing the issue expressly provide for appropriate regard to religious sensitivities and religious leaders have clarified that there is more flexibility regarding religious rules on the wearing of veils inside a courtroom than some people realise.
The legal framework
In all Australian jurisdictions defendants and witnesses giving evidence in court must remove clothing which covers their face if requested. Some states have enacted further legislation providing police with powers to request the removal of veils if necessary for identification purposes.
The recently introduced Criminal Investigation (Identifying People) Amendment Bill 2013 (Bill No 17 of 2013) in the Western Australian Parliament's Legislative Assembly has now reached second reading stage (7 August 2013) in the Legislative Council. If passed, the new law will require Muslim women to remove a burqa or niqab to prove their identity to Western Australian police.
In NSW Division 4, Part 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 was introduced almost 2 years ago (1 November 2011), which authorises police to require that a person remove an item covering their face, such as a motorcycle helmet or a niqab. Removal of such items allows police to view a person’s entire face and compare it to any photo identification. The law requires that this process must be conducted quickly and in a way that provides reasonable privacy if the person requests it, as far as is reasonably practicable.
A recent review of this law was conducted by the NSW Ombudsman who examined the effectiveness of the new laws in allowing police to verify a person’s identification, a fundamental aspect of their work. The review found that the laws have been used infrequently (only 8 officially recorded times since enactment, in addition to reports of a small number of times that were not officially recorded) and without controversy. That said, recommendations were made regarding the need for further education on the laws in the Muslim community as well as further amendments to provide that a female officer is made available where practicable; however, overall the review confirmed that the new laws have been used appropriately and have enhanced the process of identification for police.
The Media
The issue arose in Brisbane recently, when magistrate John Costello made remarks to the lawyer of a woman wearing a niqab, about whether it was appropriate that he could only see her eyes before proceeding to sentence her for leaving her baby in a hot car.
Yasmin Khan, president of the Muslim community festival Eid fest, says she is unhappy about the way the matter arose because it was a routine matter. Ms Khan said the report in Brisbane’s Courier-Mail newspaper worsened already-existing stereotypes:
"It reinforces (accusations) like not integrating into Australian society. It reinforces one rule for one, and another rule for another. You know, people will always say, 'Oh, well, they want sharia law,' so there's always those sorts of issues. You know, (people say) they want their own legal system, you know, women are oppressed, women have to be covered, and yet husbands can walk around uncovered. So there's a whole heap of stereotypes that go on there that we try so hard to dispel constantly."
SBS reported that leading Australian Muslim figures responded to the coverage by confirming they support judges asking women to remove their face coverings if necessary.
The assistant secretary of Muslims Australia, Keysar Trad, says the country's Islamic scholars have clearly explained it is no problem for women to remove their face coverings.
"The Islamic scholars in Australia have already reached a position on this, and they've published a statement to say that, whilst a person is required to be identified, there are certain points -- for example, entering the court building, et cetera -- they can remove it temporarily, and, if they're in the court and they're giving evidence, they can remove it for the duration of the period that they're giving evidence. So, where it's necessary and there's a legitimate reason for removing it, the scholars have said that they should remove it for that period and then they can put it back on when they finish."
While there may still be tensions regarding how and when the law can require a woman to remove her face covering, education and cooperation in an atmosphere of respect is essential for the issue to be managed smoothly.
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