The burqa covers the whole face, with a fabric mesh insert across the eyes. The niqab covers the majority of the face but has an eye slit.
2.
These countries will be considered as they provide a useful comparison with Australia. However, it is interesting that limited bans of burqas and niqabs have also been implemented in non-Western countries including Syria and Egypt.
3.
Only one MP voted against the French bill, and no MPs opposed the Belgian proposal, though there were a number of abstentions in both countries.
4.
The Belgian lower house passed the bill in April 2010, followed by the French lower house in July and the Senate in September of the same year.
There is debate within the Islamic community whether Islam imposes a duty on women to cover their faces. However, it is clear some Muslim women hold a sincere belief that wearing the burqa is a religious rule. A similar debate exists about the Islamic headscarf (hijab); the ECtHR has accepted that, if the wearer sincerely believes she is required to wear hijab, this constitutes a manifestation of religion, see, eg, Sahin v Turkey (2005) XI Eur Court HR, 173, 196–197. It is thus likely the Court would accept the wearing of the full veil as a manifestation of religious belief.
10.
Dahlab v Switzerland (2001) V Eur Court HR 447 (a challenge by a teacher to a Swiss law preventing her wearing hijab while teaching), Sahin v Turkey (2005) XI Eur Court HR 173 (on rules preventing students wearing religious symbols in universities in Turkey) and Dogru v France (2008) XIV Eur Court HR 1; Kervanci v France (2008) XIV Eur Court HR 1 (a challenge to pupils in France being expelled from school for refusing to remove headscarves in physical education classes).
Summary Offences Amendment (Full-face Coverings Prohibition) Bill 2010 (NSW), and Facial Identification Bill 2010 (SA).
14.
See RatnapalaSuri, Australian Constitutional Law: Commentary and Cases (2007) at 676–686.
15.
In NSW, ‘ethno-religious’ discrimination is prohibited. Anti-discrimination Act1977 (NSW) s 4 and s 7. However, this ground has been held not to cover discrimination against Muslims: Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131.
16.
See, eg, Equal Opportunity Act 1995 (Vic) s 6(j) and ss 7(b) and (c) (Note, from August 2011, this Act will be replaced by the Equal Opportunity ACT 2010 (Vic)); Anti-discrimination Act 1991 (Qld) s 7(i) and s 8.
17.
See, eg, Anti-discrimination Act 1991 (Qld) Part 4; Anti-discrimination Act 1998 (Tas) s 22; Equal Opportunity Act 1995 (Vic) ss 13, 14, 37, 42, 49–52.
18.
Equal Opportunity Act 1984 (SA) s 85T(1)(f).
19.
Equal Opportunity Act 1984 (SA) Part 5B.
20.
See, eg, Discrimination Act 1991 (ACT) Dictionary; Equal Opportunity Act 1995 (NSW) s 4; and Racial Discrimination Act 1975 (Cth) s 9. Note, however, the definition of race in SA does not include ethnicity: Equal Opportunity Act 1984 (SA) s 5.
21.
See, eg, King-Ansell v Police [1979] 2NZLR531 (concluding that Jews are a race) and Mandla v Dowell Lee [1983] 2 AC 548 (concluding that Sikhs are an ethnic group). Australian cases which have extended protection to Jewish people include Miller v Wertheim [2002] FCAFC 156 at [14] and Jones v Scully (2002) 120 FCR 243 at 272.
22.
See, eg, Nyazi v Rymans [1988] unreported EAT/6/88 (UK).
23.
Commission for Racial Equality v Precision Manufacturing [1991] No 4106/91 (Sheffield Industrial Tribunal) (UK).
24.
Human Rights Act 2004 (ACT) ss 8, 14; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 14.
25.
Human Rights Act 2004 (ACT) s 40C.
26.
Provided, of course, the Commonwealth is legislating in an area for which it has a relevant head of power. In 2008 the Full Court of Federal Court established that state anti-discrimination law does not bind the Commonwealth: Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) (2008) 248ALR494.
27.
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 30, 36(2) and (5); Human Rights Act 2004 (ACT) s 32.
