Amidst the entirely unworthy debates of whether one wealthy white guy is allowed to tell another wealthy white guy that he’s a ‘social climber’ or not, you might have missed that Senator Jacqui Lambie has introduced an ‘anti-burqa bill’ into the Senate. I think that there are fundamental legal problems with it (but they’re boring and technical) and it probably won’t get beyond second reading. But even if there aren’t technical problems, I still think — as a conservative — that there are problems with the Bill that we should debate. The key problem, from my perspective, is the extent to which people should be able to preserve their anonymity and defend their privacy. This Bill is an unrestrained attack on your ability to regulate the extent to which other people can monitor you and coerce your behaviour.
Lambie’s Bill would make it an offence to wear a full face covering in a public place if a terrorism threat declaration is in force… but only in the ACT, the Northern Territory, and other Commonwealth places:
395.1 Application of this Division
This Division applies:
(a) in a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and
(b) in a Territory.
So Victorian niqabs are fine, but Canberran burqas are a significant threat to national security.
Let us imagine that Lambie’s bill applied to all of Australia (somehow), here are the parts that constitute an offence:
- There’s a terrorism threat declaration in force.
- A person is in a public place.
- A person is wearing a full face covering.
(There’s an additional bit about compelling a child to wear a full face covering, but we can ignore that bit.)
A public place is:
(a) any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place; and
(b) the interior of a vehicle that is in a public place;
but does not include:
(c) a place of worship; or
(d) a place where a marriage, civil partnership or civil union ceremony is being lawfully held.
So brides are still allowed to wear a veil. But look at that first element: any place where the public have access as of right or by invitation. Private homes are pretty much the only place I can think of that do not meet that definition. If I hire a venue to hold a Niqab Appreciation Society symposium, anybody who showed up actually wearing a niqab would be off to the slammer under Lambie’s Bill.
So far, I’ve been referencing only religious coverings of female faces (bridal veils, niqabs, and burqas), but the definition of ‘full face covering’ is a lot more broad:
full face covering means an item that substantially covers the front of a person’s head from the top of the forehead to the base of the chin in a way that conceals the identity of the person (whether or not a part of the person’s face can still be seen).
Masks, helmets, scarfs, those surgical masks for filtering dirty air… all banned. ‘An item’ might stretch as far as face paint.
There are defences, but they are narrow:
[The offences] do not apply 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 wearer’s occupation;
(b) the wearer’s participation in lawful entertainment, recreation or sport;
(c) a genuine artistic purpose;
(d) protection from physical harm, if the full face covering is safety equipment;
(e) such other purposes as are prescribed by the regulations.
The tricky words are ‘reasonably necessary’. Let’s return to my Niqab Appreciation Society symposium. Is it lawful entertainment, recreation, or sport? Probably not. But what if I – for whatever insane reason – host a masquerade party in a hired venue? Is that lawful entertainment, recreation, or sport? And is it reasonably necessary to wear a mask to attend a masquerade party?
Ultimately, those questions are immaterial: even if the bill were passed, nobody is going to be prosecuted for participating in a masquerade party (more’s the pity). But they could plausibly go after other people who, for whatever reason they privately hold, want to wear a mask in public.
And this gets me to the guts of the problem with Lambie’s Bill. On the visceral, petty, tiny-minded level, I agree with Lambie when she says, in the explanatory memorandum:
The security and the safety of the community must come first. Moreover, the community must feel safe. Full face coverings such as helmets, masks, balaclavas and other facial coverings worn in public without good reason, often cause unnecessary fear with the Australian general public.
We feel safer when we are able to police each other. There is a conservative instinct to coerce people into conventional, social behaviours by using reputation, shame, and disapproval. It’s a conservative instinct which I, as a conservative, also have.
But it’s a weapon in the conservative armoury that we can use only when we have appropriate protections for individuals in place. We live in a society where there are so many private surveillance devices in operation. When I walk down the street, I have no idea who’s got footage of me or what their method for storing it is. If I’m in the background when somebody’s taking a picture to be uploaded to Facebook, I know that Facebook’s algorithm has a good chance of identifying me.
I was in Sydney recently and was shocked to see a club scanning licences and taking pictures of people who were entering. I’d written about this a few years ago for New Matilda, but seeing it in operation was horrifying: there was absolutely no protection for private information, and the bouncer was given the home address of everybody coming in. The screen was so large and bright that I, a random bystander, could easily read the name and details of entrants. But here was a long line of people willing to exchange their private details for entry into a club run by people associated with organised crime.
And the operation of the shaming weaponry falls disproportionately upon those who can’t fight back. No amount of shaming is ever going to stop the News Corp columnists from writing vile, antisocial garbage, and yet very slight shaming can have the effect of stopping a more vulnerable person from pursuing their rights against an employer who’s ripped them off.
At some point, we are going to have to empower people to be able to defend their privacy against others in society. Either by restricting private surveillance or identity-matching software, or by fostering a public culture of wearing identity-concealing clothing in public. I’d prefer the former, but we are likely to end up with the latter. If you want to go to a protest, if you want to go to a subversive film festival, if you want to buy a litre of milk from the supermarket, wear a Venetian mask and pay in cash.
We should not forget that this Bill was promoted by and for those conservatives who are unlike me. This is racism veiled in the language of security. If we were really worried about safety, we would focus on education, economics, and culture way before we worried about people wearing disguises. Where I am puzzling about masks and morph suits, Lambie and her kind really only care about burqas and niqabs.
But even if it weren’t about racism (which it is) we should still expose the security rhetoric to be deeply flawed. People should be able to negotiate their anonymity on their own terms, revealing only as much about themselves to their neighbours as they want rather than being forced to expose themselves. Even if the Bill weren’t riddled with problems, it should be opposed because it promotes a society in which we should not wish to live.
That, and it’s way racist.