Media Statement

28.10.14
Full Face Coverings Prohibition in Public Places (Summary
Offences) Bill 2014 - Lambie
Palmer United Senator for Tasmania Jacqui Lambie has submitted a draft bill and research
papers to the Office of Parliamentary Council in order to create Private Members legislation,
which will make it illegal for a person to wear a full face covering while in public in
Australia.
" The facial covering farce and stunt which occurred in Parliament house yesterday, was
caused by a leadership failure created by the PM and the Liberal/ National Parties. For basic
security reasons and the need for assimilation, identity-concealing garments should not be
allowed in Australian public or Parliament house. Once again, our enemies will laugh at us.
France, Belgium and Turkey (an Islamic country) have all sorted this problem out. So can
Australia. All it requires is some simple legislation, some courage and pride in the Australian
culture. said Senator Lambie.
The private members legislation Ive asked the Parliamentary drafters to create (see attached
1), will be a simple Bill modelled on the recent French legal and political experience. (see
attached 2) Any person who is deemed by a police officer to have worn any identity
concealing garments in public unlawfully, will be issued with an on the spot fine or charged
with an offence which carries a maximum fine of $3,400. The process will be very simple
and similar to way traffic infringements are handled by police. said Senator Lambie
My private members bill will also introduce a further 2 offences. One for those who force or
intimidate an adult into wearing identity concealing garments and another for those who
force or intimidate children into wearing identity, concealing garments. said Senator
Lambie.
Any person found guilty of those offences will face maximum fine and/or jail term of
$34,000 and 6 months - with respect to the crime committed to adults. And a maximum fine
and/or jail term of $68,000 and 12 months if a person is found guilty of unlawfully forcing a
child to wear an identity-concealing garment in public. Religious excuses will not be
accepted as reasonable exemptions or lawful defence in my private members bill - because
the wearing of full-facial coverings is not mandated in any holy book.
However there will be exemptions for people to wear identity-concealing garments in private
places of worship - and of course in the sanctity of their own home. In addition the
prohibition of wearing face covering material or objects does not apply if such items are
authorised by law, are authorised to protect the anonymity of the person, are justified for
health reasons or on professional grounds, or are part of authorised artistic or traditional
festivities or events. said Senator Lambie

Attachment 1 Submission to Parliamentary Drafters

ATTACHMENT 2

Bill Name:
Full Face Coverings Prohibition in Public Places (Summary Offences) Bill 2014
Draft clauses of the Bill
Clause x - Commencement
This Act commences on the date of assent to this Act
Clause x - Wearing full-face coverings in public places
(1) A person must not, without reasonable excuse, wear a full face covering while in
a public place. Maximum penalty: 20 penalty units.
(2) A person who compels an adult to wear full face coverings in a public place, by any
means whatsoever, including by threat, inducements or any promise is guilty of an offence.
Maximum penalty: 6 months imprisonment and / or 200 penalty units
(3) A person who compels a child to wear full face coverings in a public place, by any means
whatsoever, including by threat, inducements or any promise is guilty of an offence.
Maximum penalty: 12 months imprisonment and / or 200 penalty units
(4) A full face covering is any article of clothing or other thing (such as a helmet) that
hides a persons face in a way that conceals the identity of the person.
(5) Without limitation, it is a reasonable excuse for the purposes of this section if
the wearing of the full face covering is reasonably necessary in all the
circumstances for any of the following purposes:
(a) the lawful pursuit of the persons occupation,
(b) participation in a lawful entertainment, recreation or sport,
(c) such other purposes as may be prescribed by the regulations.
(6) However, a religious or cultural belief does not constitute a reasonable excuse
for the wearing of a full face covering.
(7) For the purposes of this section, a full face covering can hide a persons face in a
way that conceals the identity of the person even though part of the persons
face can still be seen.
(8) The onus of proof of reasonable excuse in proceedings for an offence under
subsection (1) lies on the defendant.
(9) In this section: public place does not include a place of worship that authorised the
wearing of full face covering within the buildings ground.
(10) In this section:
Full face means the surface of the front of the head from the top of the forehead to the base
of the chin and the space in between, but not including the ears.
public place does not include a church.
threat means:
(a) a threat of physical force, or
(b) intimidatory or coercive conduct, or other threat, that does not involve a threat of a threat
of physical force.















Attachment 2 Parliamentary Library Research
2 October 2014
To From
Client: Senator Lambie Name: Diane Spooner and Catherine
Lorimer
Attention: Jo-Anna Barber Section: LBD
Tel: Tel: (02) 6277 2526
Email: Email: diane.spooner@aph.gov.au
TRIM
Reference:
10/1380
Banning the burka

Questions
Since the French ban of face covering in a public place in 2010 several other European
countries have also considered the issue.
1. Could you provide a background summary of the France experience in the lead up to their
introduction of the laws in their Parliament, the laws being passed and then the subsequent
decisions in the ECHR.
2. Could you provide a briefing for the Senator providing specific information about what
countries have introduced similar laws surrounding in regards to banning the covering of
your face in a Public Place similar to those which France introduced in 2010.
3. Any other background information on former instances where similar bans have previously
been contemplated in Australia.
4. Any laws which currently exists in this country banning the covering of your face in any
specific location / circumstances
5. Any other information relevant to this matter and the impacts of the bans on other countries
in the world.

FRANCE

The French Parliament gave consideration to the issue of banning face covering shortly after
the President Sarkozy raised the issue in June 2009.

The Bill was passed by the National Assembly by a vote of 335-2, and by the Senate by a
vote of 246-1 (with 100 abstentions.
France
Banned all religious symbols, including large crosses and head scarves from public
classrooms and buildings in 2004.
In May 2010 the French Cabinet approved a ban on veils that cover the face being worn
in public places. It also imposes fines and prison terms on those convicted of forcing a
woman to wear a burqa or niqab.
French lawmakers argue that the draft law is aimed at safeguarding the French
republics founding values of liberty, equality and fraternity, while others, such as a
member of the Community Party, add that it is necessary to combat extremism and protect
womens identity, femininity and gender equality. President Sarkozy said in a speech in
2009 that the problem with the burqa was not religious but concerned liberty and the
dignity of women. Catherine de Wenden, an expert on the history of immigration to
France, argues that the timing of the debate about the burqa is political: at the eve of the
[regional] elections, in the debate about national identity, the question of the burqa has
been put on the front scene in order to define national identity against what is different and
so against the burqa.
In an article on banning burqas, 2011, cites that opinion polls in Belgium and France suggest
that the initiatives had very wide community support, and noted that only a tiny number of
women wear the burqa or niqab: approximately 30 in Belgium and 1900 in France.
The French legislation, known as Act No 2010-1192 of 11 October 2010 prohibiting the
concealing of the face in public is generally worded in Article 1:
No one shall, in any public place, wear clothing designed to conceal the face.
The legislation also has Article 4 which creates an offence as follows:
Whosoever shall, by means of threats, duress or constraint, undue influence or misuse of
authority, compel another person, by reason of the sex of said person, to conceal their face
shall be liable to punishment of one years imprisonment and a fine of 30,000.
This provision is clearly aimed at fathers, husbands or religious leaders who force women to
wear face veils.
The prohibition of wearing face covering clothing does not apply if such clothing is
authorised by law, is authorised to protect the anonymity of the person, is justified for health
reasons or on professional grounds, or is part of sporting artistic or traditional festivities or
events. More on France is attached for information at the end of this memo.
ECHR
The case before the European Court of Human Rights on the French ban, S.A.S. v France
(application no. 43835/11) help that there had been no violation of Article 8 (right to respect
for private and family life) of the European Convention on Human Rights, and no violation of
Article (right to respect for freedom of thought, conscience and religion) unanimously, that
there had been no violation of Article 14 (prohibition of discrimination) of the European
Convention combined with Articles 8 or 9.
The court accepted that the interference with the with the exercise of the applicants rights
under Articles 8 and 9 was a legitimate aim for the reasons of public safety and the
protection of the rights and freedoms of others.
The applicant was a French practising Muslim who wore the burqa and niqab in accordance
with her religious faith, culture and personal convictions.
Although the court appeared critical of the ban, overall it considered that it could be regarded
a proportionate to the aim, and therefor there was no violation of the Articles. The full press
release on the decision can be found in this link.
OTHER MATTERS: AUSTRALIAN CONTEXT SECTION 116 CONSTITUTION
AND DISCRIMATION LAWS
You may also be interested in the position in Australia and some of the constitutional
implications. The following section of this memorandum has been written by my colleague,
Mary Anne Neilson.
if federal legislation were to ban the wearing of a burqa would it be open to constitutional
challenge, and possible invalidation by the High Court under section 116 of the Constitution?
I think the attached article by Professor Anthony Gray, Section 116 of the Australian
Constitution and dress restrictions, considers this question very well. The paper considers
constitutional arguments that would arise if a government at either federal or state level
decided to ban dress often identified as having religious connotations. Amongst other things
the paper considers the meaning of the Hijab and Burqa; how bans or restrictions on religious
dress have been answered in other jurisdictions; and provides substantial background on how
the High Court has considered section 116. Gray notes that there have been few cases on
section 116 to assist with interpretation and as with its rights jurisprudence more generally,
the High Court has tended to read express provision in the Constitution conferring religious
freedoms conservatively. Despite the lack of cases Gray argues:
Considering the Australian precedents, a law prohibiting a person from appearing in public
whilst their face was covered would be difficult to justify on the grounds discussed in the
Jehovah's Witness case. It is difficult see how such a ban would be necessary to `preserve a
civil government'. When the matter is considered again, the High Court may adopt different
words in expressing a test for when laws which infringe religious freedom may nevertheless
be valid.
Despite this, on the current state of the High Court jurisprudence on section 116, a law with
the effect of banning religious dress such as a burqa would probably not be unconstitutional.
This is because it would not meet the current test for invalidity set out in Kruger and Black ie
that only a law with the express purpose of infringing the rights mentioned in section 116 is
invalidated by that section. The federal government could state that its purpose in enacting
the law was to promote civil harmony or assimilation, or to promote public safety by making
it easier to identify everyone, and according to the High Court, this would be a decisive factor
in declaring the law to be valid. The court might draw on the European and American
precedents in support of this position, to find that the law was justified in terms of preserving
equality and liberty among citizens, and avoiding supposed subjugation of women. However,
as has been indicated, the research is difficult to reconcile with a bald assertion that the
wearing of religious dress such as the burqa is necessarily a sign of subjugation of women or
gender or religious inequality.
I would prefer the High Court took a broader view to the question of the rights protected by
section 116 of the Constitution than previous cases have provided. The test in Kruger for
invalidity pursuant to the section, that the law be passed with the purpose of restricting
religious freedom, is with respect too narrow. As interpreted by the High Court, this section
has very little operation, in that the Commonwealth, by carefully drafting its legislation, can
ensure that its law avoids invalidity under section 116, even when the law clearly has the
effect of restricting the rights implied in section 116. There is hope for a broader view, with
some of the judgments in Black allowing that a law which had the effect or result of
interfering with religion may be offensive to section 116, even if that were not its purpose.
This is of course not the only context in which the High Court has read `rights' contained in
the Constitution narrowly, so that they have little if any scope and can be subverted by
intelligent drafting. Rights provisions must not be read pedantically or narrowly, or in such a
way as to make them easy for the drafter to subvert. Nor should the courts blindly accept
claims by parliament that limits on religious freedoms are justified on `equality',
`assimilation', `esprit de corps' or `women's rights' grounds as has occurred elsewhere,
without a thorough investigation of the evidence.
I recommend Grays complete paper to you.
You may also be interested in a paper by Anne Hewitt and Cornellia Koch, Can and Should
Burqas be Banned. Hewitt and Koch conclude that there is no legal limitation on the
Commonwealths power to implement legislation banning the wearing of the burqa and niqab
and it is unlikely that there is any real limitation on the enactment of an effective state or
territory ban. Their view is that the most likely impediment to state legislation is that it might
constitute indirect racial discrimination in contravention of the Racial Discrimination Act
1975 (Cth) but this could only be established where the majority of people affected by any
ban were of one racial or ethnic group.
This view has been reiterated by the NSW Bar Association:


OTHER LAWS

New South Wales has passed the Identification Legislation Amendment Act 2011 was passed
on 15 September 2011, becoming the first legislation in Australia to specifically deal with
full face coverings. [CHECK]. Basically this Act amended the Law Enforcement (Powers and
Responsibilities) Act 2002 to insert the following definition:


Insert in alphabetical order in section 3 (1):
face means a persons face:
(a) from the top of the forehead to the bottom of the chin, and
(b) between (but not including) the ears.
face covering means an item of clothing, helmet, mask or any other thing that is worn by a
person and prevents the persons face from being seen (whether wholly or partly).
Further analysis of the Australian perspective can be found in footnote 8 of this
memorandum, in an article by Renae Barker.

OTHER ATTEMPTS

In June 2010, the New South Wales Member of Parliament and President of the Christian
Democratic Party, Reverend Fred Nile, introduced the Summary Offences Amendment (Full-
face Coverings Prohibition) Bill 2010 (NSW) in the New South Wales Legislative Council.
The bill sought to amend the Summary Offences Act 1988 (NSW) by inserting two new
offences in Part 2 of the Act. The first would have made it an offence to wear a face covering
while in a public place and the second would have made it an offence to compel another
person to wear a face covering in a public place. An exception to the general prohibition was
given where the person who had covered their face had a 'reasonable excuse'. The onus of
proving the existence of a reasonable excuse was placed on the defendant. The Bill did not
mention the niqab or burqa specifically, but did state that 'a religious or cultural belief does
not constitute a reasonable excuse for the wearing of a face covering'. The Bill lapsed.
In an article by Renae Barker (see footnote 8 below), and Independent in the South Australian
parliament also presented a Bill. Barker states:
In July 2010, one month after Fred Nile introduced his Bill, Independent South Australian
MP, Robert Such, introduced the Facial Identification Bill 2010 (SA). This bill was a more
nuanced approach to the issue. It did not create a blanket ban on full face coverings in public.
Instead it gave prescribed premises the power to display a sign which indicated that a person
whose face was obscured could not enter the premises. Prescribed premises were defined in
the bill as premises used for an authorised deposit institution (ADI), a State or Federal
government agency or 'any other business or activity where, for reasons of security or for the
purposes of compliance with any Act or law, it is necessary or desirable to establish the
identity of persons in the premises so used'.
This Bill was also unsuccessful.
Most laws in state and territory jurisdictions will be concerned with policy issues such as
public safety, verification of identity and other legitimate purposes. Further work can be done
on this if required.
ATTACHMENT: EXTRACT FROM ARTICLE BY JACLYN GIFFEN

The veil of the ban: a legal, social and political discourse.
3.2. 2004 FRENCH HEADSCARF LAW
The concept of laicite was invoked in 2004 when the French State banned any form of
religious symbol or manifestation thereof - including Islamic headscarves - from
primary and secondary state schools 8 French lawmakers believed that this ban
would encourage integration into the country "and help the country understand itself
in light of increasing religious and ethnic diversification." Following the law's entry
into force, there was a severe public reaction, including riots and daily violence which
demonstrated the tension and social repercussions of the law. The European Court of
Human Rights in several cases that followed the law's implementation, however,
upheld the law stating that the limitation on the freedom of religion and its
manifestations were justifiable according to the doctrine of proportionality In their
decision, the Court granted a wide margin of appreciation to France since the principle
of secularism was a founding principle of the state.
"'The Court also notes that in France, as in Turkey or Switzerland, secularism is a
constitutional principle, and a founding principle of the Republic, to which the
entire population adheres and the protection of which appears to be of prime
importance, in particular in schools. The Court reiterates that an attitude which
fails to respect that principle will not necessarily be accepted as being covered by
the freedom to manifest one's religion and will not enjoy the protection of Article 9
of the Convention (see Refah Partisi (Prosperity Party) and Others, cited above,
93). Having regard to the margin of appreciation which must be left to the member
States with regard to the establishment of the delicate relations between the
Churches and the State, religious freedom thus recognised and restricted by the
requirements of secularism appears legitimate in the light of the values
underpinning the Convention."
This principle of secularism that removes religion from the public sphere is clearly
seen by the Court in this case to be part of the French national identity, representing
the core values of neutrality, equality and freedom.
However, for those who do not subscribe to the French national identity, the
protection of laicite may not be seen to legitimately justify the infringement on
religious expression. Upon accepting his party's nomination for President of France,
Nicolas Sarkozy said that it is "unacceptabie to want to live in France without
respecting and loving France and learning the French language... If you live in France
then you respect the laws and the values of the Republic" - the same Republic he also
referred to as "the heirs of 2000 years of Christianity."
3.3. 2011 PUBLIC SPACE BANNING OF CONCEALED FACES
In 2009, the public debate surrounding the issue of face covering in public spaces
arose in France, specifically targeting the wearing of burqas and niqabs by French-
Muslim women. French President Nicolas Sarkozy, when addressing parliament,
expressed his strong dislike for the Islamic veil, calling it not a sign of religion but
rather a sign of subservience. He stated that "[the veil] will not be welcome on French
soil. We cannot accept in our country, women imprisoned behind a mesh, cut off from
society, deprived of all identity. This is not the French republic's idea of women's
dignity."2 France is home to Western Europe's largest population of Muslims; about
five million in total. However, it is estimated that only 2,000 women in France wear
the burqa.
The most recent French Law, Act prohibiting concealment of the face in public
Space was passed by the Senate of France on 14 September 2010. This law is a further
extension of the previous laws, and bans the wearing of any face-covering, including
masks, helmets, balaclavas, and the Muslim burqa and niqab, in any public space
whatsoever, including in the course of employment within the public sector. Examples
of 'public spaces' include anything such as the street, museums, shops, public
transportation, parks, banks, etc. After a decision in October 2010 by France's highest
court which stated that the French law to ban full-facial veils in public was in accordance
with the constitution, except in the case of places of worship, the law came into full
force in April 2011. Those who violate the law have to pay a fine of up to E 150, and/or
participate in citizenship education. Those persons who force another to wear any face
coverings can also be penalized with a fine of C 30,000 and one year in prison;
can be doubled if the victim is under the age of majority, or 18 years of age. The police
are not empowered to forcibly remove the veil. Although, there have been continued
incidents of assault by citizens against these women who are in non-compliance with
the law, demonstrating the dangers associated with targeting an already vulnerable
minority population and gender of the population; namely, women.

. Z Malik, Frances burka dilemma, BBC News, 16 March 2010, viewed 8 July 2010,
http://news.bbc.co.uk/today/hi/today/newsid_8568000/8568024.stm
. Ibid.
. A Gray, Section 116 of the Australian Constitution and dress restrictions, Deakin Law
Review, v. 16 no. 2, 2011, viewed 25 May 2012,
http://parlinfo.aph.gov.au/parlInfo/download/library/jrnart/1357639/upload_binary/1357
639.pdf;fileType=application/pdf#search=%22gray%20burqa%22
. Ibid, pp. 316-317.
. A Hewitt and C Koch, Can and Should Burqas be Banned, Alternative Law Journal, v.
36, 2011, viewed 25 May 2012,
http://parlinfo.aph.gov.au/parlInfo/download/library/jrnart/740401/upload_binary/7404
01.pdf;fileType=application/pdf#search=%22Anne%20Hewitt%20%20Burqas%22
. Ibid, p. 20.
. New South Wales Bar Association, Media Statement, Clothing, Religious Beliefs and
Racial Vilification, 3 October 2014.
. Renae Barker, The Full Face covering Debate: An Australian Perspective.(no citation
available).