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  • Writer's pictureStuart Jeffery

Common(wealth) Knowledge #63: Ban on religious knives in Queensland schools overturned

A Queensland law introduced to prevent knife crime has been found to discriminate against Sikhs.

The Queensland Court of Appeal has ruled that a law prohibiting the possession of knives on school property was inconsistent with the Racial Discrimination Act 1975 (Cth).


There was much outrage on social media as a result of this ruling, as youth crime has been a contentious topic in Queensland throughout 2023, while the death of 17-year-old Jack Beasley led to legislation allowing police to carry hand-held metal detectors to search people for knives.


However, this decision, Athwal v Queensland [2023], is not as drastic as many people believe.


The legislation in question is Section 51(5) of the Weapons Act 1990 (Qld). Section 51(1) prohibits the possession of a knife in public places and schools, and although there are some exceptions, subsection (5) makes it clear that “genuine religious purposes” is not a valid excuse for having a knife on school grounds.


The challenge to this ruling was brought by a Sikh woman, Kamaljit Kaur Athwal, on behalf of her son, who was not allowed to carry his kirpan, a religious knife required under Sikhism, at school.


To understand this ruling, and why the RDA applies, it is first necessary to understand the nature of Sikhism.


The overwhelming majority of Sikhs not only share the same religion, but also the same ethnic group. Most Sikhs today live in the Punjab province of India, though more than 200,000 call Australia ‘home.’


Sikhism is one of the few ethnoreligious groups in the world. These groups tend to be small, such as the Kurdish Yazidis from the Middle East, with less than 1000 living in Australia, mostly in Toowoomba and regional New South Wales.


Sikhism can be contrasted with Judaism, which is both a religion and an ethnicity, but it is possible for a person to be Jewish by religion but not by birth, and many ethnic Jews are secular.


The Queensland government recognised the importance of Sikh religious beliefs by including Section 51(4) in the legislation, which allows Sikhs to carry kirpans in public places, but was not willing to concede on the question of school grounds.


The existence of Section 51(4) means that the challenge wasn’t brought against the entirety of Section 51, but only Section 51(5), which dealt with school grounds.


Justice Brown, from the Supreme Court’s Trial Division, sided with Queensland, ruling that, as the ban applied to Sikhs and non-Sikhs, “there was no differentiation occurring in the enjoyment of rights between people of different ethnic origins.” The Court of Appeal disagreed, ruling that Justice Brown incorrectly applied Section 10(1) of the RDA.


Under Section 10(1) of the RDA, any legislation that limits the rights of a particular ethnic group more than other ethnic groups is considered to be invalid. Section 109 of the Australian Constitution states that when a State law is inconsistent with Commonwealth legislation, it is struck down, to the extent of the inconsistency.


Acting Justice of Appeal Mitchell, with whom President Mullins, head of the Court of Appeal, agreed, ruled that the Queensland legislation was invalid under Section 10(1), as it unfairly limited the freedom of religion and freedom of movement.


According to His Honour, at paragraph [39] of the judgment, this is the correct application of Section 10(1):


“To say that both Sikhs and non-Sikhs cannot practice their religion while wearing a knife ignores the fact that carrying a knife is only a feature of the religious observation of the Sikhs. A law which prohibits a person from carrying a knife in school for religious purposes impacts on Sikhs by preventing them from lawfully entering schools while adhering to their religious beliefs. That law has no impact on the practice of religion or freedom of movement of other purposes.”

When referring to the freedom of religion and freedom of religion, Mitchell AJA did not refer to the Australian Constitution as authority for those rights.


Although Section 116 does allow for the freedom of religion, it only prevents Commonwealth legislation from limiting that freedom. An early proposal for Section 116, brought by Tasmanian Attorney-General Andrew Inglis Clark on behalf of his colony’s Parliament, prior to Federation, which would have extended Section 116 to the States, was rejected by the other colonies.


There is even less of a justification for a constitutional freedom of movement. In Gerner v Victoria (2020), which challenged border lockdowns in response to Covid-19, the High Court said that Section 92, which allows for free “trade, commerce, and intercourse” across state borders, does not imply a right to the freedom of movement.


Instead, the court turned to Sections 19 and 20 of Queensland’s Human Rights Act 2019 (Qld), which enshrines the freedom of movement and freedom of religion, respectively.


In addition to Section 109 of the Constitution and Section 10(1) of the RDA, the court also considered Section 8 of the HRA. Section 8 only allows laws to limit human rights if those limitations are consistent with Section 13.


Section 13 allows for limitations that are reasonable and justifiable. In the Australian Capital Territory, Victoria, and under international human rights treaties, issues of public safety are commonly used as limitations that meet those requirements.


However, the court did not believe that Section 13 was triggered here, as any potential justification for the safety of children was greatly outweighed by the importance of freedom of religion and freedom of movement.


The final judge, Justice of Appeal Dalton, generally agreed with the reasons given by Mitchells AJA, though he was more reluctant to characterise Section 10(1) of the RDA as a broad “anti-discrimination,” and referred to Chief Justice French and Justices Hayne and Gageler of the High Court in Maloney v The Queen (2013) to say that laws for public safety may override Section 10(1), but that did not arise here.


Queensland Education Minister Grace Grace has not ruled out an appeal of this decision.


However, if the Queensland government accepts the ruling by this court, or appeals to the High Court and loses there, major changes to the legislation would not be needed, as the government could re-insert Section 51(5) along the lines of subsection (4), with an allowance to carry knives for “genuine religious purposes.”


Regardless of any outcome of an appeal, this ruling is nothing more than a narrow extension of the RDA to religions where religion and ethnicity are indistinguishable.


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Sources:

Athwal v Queensland [2023] QCA 156.

Gerner v Victoria (2020) 270 CLR 412; [2020] HCA 48.

Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28.

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