Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Quick Post: Pauline Hanson and the Burqa Ban

There is no good argument to ban the burqa.  It’s a racist proposal, pure and simple.  There is a smokescreen that racists use to hide their racism: they argue that we need to be able to see faces because it helps with security.  This is not a reasonable argument, and it flows from an intuition that anonymity is a threat and that everybody should present themselves for scrutiny at all times.

Senator Jacqui Lambie has introduced a Bill to the Senate to ban the burqa.  Senator Pauline Hanson has proposed some amendments.  It is helpful to understand what is being proposed and debated by our Parliamentarians.

First, Lambie’s Bill.

The first thing Lambie’s Bill does is limit its scope to the Territory and Commonwealth places:

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.

This is done because the Commonwealth Parliament has the power to legislate with regard to the Territories (s 122 of the Constitution) and Commonwealth places (like airports, immigration detention facilities, army bases: s 52 of the Constitution).   It is less clear that there is another power of the Commonwealth to pass this legislation.  It is true that terrorism powers have been referred to the Commonwealth, but they are limited and would not cover banning attire.  The ever fun defence power also exists, but it is unlikely that it would stretch to banning burqas.

So Lambie has limited her bill back to where Parliament undoubtedly has capacity to legislate.  Senator Hanson has claimed that she is introducing amendments to make the ban ‘Australia wide‘ but she does not suggest amending this provision.  As it stands, it is only a ban in the ACT, the Northern Territory, and in Commonwealth places.  If this Bill is passed, a person wearing a burqa in the middle of Burke Street, Melbourne would be unaffected.

Next, Lambie introduces a ‘Terrorism threat declaration’.  Under Lambie’s scheme, wearing a burqa in a Commonwealth place would be an offence if the ‘the National Terrorism Threat Advisory System is higher than possible’.  So wearing a burqa on the front lawn of Parliament House would be fine on a day when the National Terrorism Threat Advisory System indicated the level was ‘Not Expected’, but a punishable offence if the level was ‘Expected’.

Hanson seeks to remove this part of the Bill.  Every day of the week, it should be an offence, even if there is no threat of terrorism.

Next, we have the elements of the offence and the punishment.  Here are the elements:

1. A person commits an offence if:

(a) a terrorism threat declaration is in force; and

(b) the person wears a full face covering in a public place.

2. A person commits an offence if:

(a) a terrorism threat declaration is in force; and

(b) the person compels another person to wear a full face covering in a public place.

3. A person commits an offence if:

(a) a terrorism threat declaration is in force; and

(b) the person compels another person to wear a full face 10 covering in a public place; and

(c) the other person is under 18 years of age.

So Hanson wants to scrap the ‘terrorism threat declaration’ (as a consequence of the above about the National Terrorism Threat Advisory System), but also wants to change the punishments.

Both Lambie and Hanson agree that the punishment for wearing a full face covering (1) should be 20 penalty units.  Currently, one penalty unit is $180, so it’s a fine of $3,600.

They also agree that the punishment for compelling a person to wear a full face covering (2) should be 6 months in the slammer, or 200 penalty units ($36,000), or both.

And they are singing from the same hymn sheet about the punishment for compelling a person who is under 18 years of age to wear a full face covering (3): 12 months in prison or 400 penalty units ($72,000) or both.

But there are exemptions.

Lambie has the following list:

[The ban does] 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 ban] does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

Hanson wants to amend (b):

(b) the wearer’s participation in lawful entertainment, recreation, sport, festivities or traditional activities

On Twitter, Asher Hirsch wondered what would count as a ‘traditional activity‘.  Importantly, isn’t wearing a burqa a traditional activity for a particular group of Muslim women?

The phrase ‘traditional activity’ pops up in the Migration Act to refer to the Torres Strait Treaty:

“traditional activities” means activities performed by the traditional inhabitants in accordance with local tradition, and includes, when so performed-

(i) activities on land, including gardening, collection of food and hunting;

(ii) activities on water, including traditional fishing;

(iii) religious and secular ceremonies or gatherings for social purposes, for example, marriage celebrations and settlement of disputes; and

(iv) barter and market trade.

Although it’s good to see ‘religious and secular ceremonies or gathering for social purposes’, it’s limited to ‘traditional inhabitants’.  It is also probably not what Senator Hanson has in mind.

It might be a reference to bridal veils, but there is another carve out later which says you can wear a veil anywhere a lawful wedding is being held.  So the proposed amendment is odd.

Senator Hanson hasn’t called for an amendment to the definition of a ‘full face covering’:

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).

I have wondered about the sorts of things that would be captured by this.  Knitted beards would be banned, as would using the flag to conceal the identity of True Blue Crew protesters (although this might be political communication).  Face-paint is probably banned, as are those horrible morph suit things.  Cosplayers might get pinged if their costumes aren’t ‘reasonably necessary’ (for example, if they are on the train going to the venue).

Of course, the police, the Attorney-General, and the Director of Public Prosecutions aren’t going to bring cases against people wearing face paint or cosplayers (unfortunately) but it still presents a puzzle.  Why do Lambie and Hanson want to attack our privacy and anonymity?

2 responses to “Quick Post: Pauline Hanson and the Burqa Ban”

  1. […] By nature, I am against anonymity and sympathise with Burnside’s intuitions.  But my views are really outdated here, especially in the face of unprecedented consequences for public backlash for views.  Burnside speaks from a position of privilege: nobody can contact his employer to seek sanctions for slights real or imagined.  Both conservative and progressive public servants have had to deal with irritating issues arising from them stepping slightly too far into public debate without wearing a suitable disguise.  Employers are increasingly hostile to political speech from their employees.  Hostility towards anonymity became the ‘respectable’ suit and tie for the Islamophobic a…: […]

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