Kamaljit Kaur Athwal v State of Queensland

The Weapons Act 1990 s 51(1) contains a general prohibition on any person being in possession of a knife in a public place or a school. However, it is a “reasonable excuse” to nonetheless possess a knife for “genuine religious purposes”. This reasonable excuse only applies to a public place, not a school. This is by operation of the Weapons Act 1990 s 51(5). The applicant, an Amritdhari Sikh, applied for a declaration that s 51(5) was invalid to the extent it was inconsistent with the Racial Discrimination Act 1975 (Cth) s 10, which is concerned with laws that create differential enjoyment of rights by reason of race, colour or national or ethnic origin. Justice Brown concluded that the Weapons Act 1990 s 51(5) did not create a differential enjoyment of a “right”. The right to rely on a reasonable excuse to the general prohibition in the Weapons Act 1990 was the same as between Sikhs and non-Sikhs. Therefore, the Weapons Act 1990 s 51(5) was not inconsistent with the Racial Discrimination Act 1975 (Cth) s 10. The application was dismissed.

Brown J

30 September 2022

Background

Kamaljit Kuar Athwal (the “applicant”) is an Amritdhari Sikh. [1]. Once “initiated” into their faith an Amritdhari Sikh is required to wear a kirpan. [1], [6]–[8]. A kirpan is a small ceremonial sword. [1], [6]. The Weapons Act 1990 s 51(1) prohibits any person from possessing of a knife in a public place or a school without a reasonable excuse. [1]. It is a reasonable excuse for a person to possess a knife in a public place for “genuine religious purposes”. [1]. However, it is not a reasonable excuse for a person to possess a knife in a school for genuine religious purposes. [1].

The applicant sought a declaration that the Weapons Act 1990 s 51(5) (the “impugned State law”) was invalid to the extent it was inconsistent with a Commonwealth law, namely, s 10 Racial Discrimination Act 1975 (Cth): see Commonwealth Constitution s 109. [2]–[3]. The applicant contended that she and other Sikhs have been excluded from the following as a consequence of the impugned State law: dropping off and picking up their children; attending assemblies; meeting teachers; attending school activities; and conducting other work on school grounds. [19]. The applicant also contended that she was deprived of the ability to vote, as her local school was the most convenient place for her to do so. [20]. The Racial Discrimination Act 1975 (Cth) s 10 relevantly provides as follows:

10 Rights to equality before the law

(1) If, by reason of, or a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.”

(2) A reference in subsection (1) to a right includes reference to a right of a kind referred to in Article 5 of the [United Nations International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40; 660 UNTS 195 (the “Convention”)].” [24].

Whether the impugned State law was invalid to the extent it was inconsistent with the Racial Discrimination Act 1975 (Cth)

The Racial Discrimination Act 1975 (Cth) s 10 is a beneficial provision which requires a broad construction. [25]. Whilst the statute more broadly contemplates “discrimination”, s 10 is specifically directed to the “enjoyment of rights by some but not by others.” [25]. The provision has an equalising effect in that it is intended to confer upon a member of one group the enjoyment of a right to the same extent as it enjoyed by persons of another group. [25]. It is not necessary for a state law to make an express distinction based on race, colour or national or ethnic origin. [31]–[32].

The applicant referred to the “six elements” which she was required to establish to demonstrate an inconsistency with Racial Discrimination Act 1975 (Cth) s 10: see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 (Mason CJ); see also Maloney v The Queen [2013] HCA 23; (2013) 252 CLR 168 (Hayne J). [39]. The dispute between the parties was narrowed to whether the applicant had established the following elements: first, the nature of the right enjoyed by persons of another group, but which was not enjoyed to the same extent by the applicant’s group; and that “by reason of” the impugned State law the applicant, a Sikh, enjoyed a right to a lesser extent than people who are non-Sikhs. [40]–[44].

Justice Brown observed that the “critical question” was to determine the relevant right, the enjoyment of which, is said to be affected by the impugned State law. [54]. The relevant rights must be identified with specificity which requires “close attention to the legal and practical operation of the [relevant] legislation…” [55], [66]–[67]. The impugned State law is concerned with prohibiting conduct without a reasonable excuse. [67].   Whist the applicant had claimed differential enjoyment in relation to a number of human rights, her Honour seemed to accept the respondent’s submission that the “real gravamen” of the applicant’s complaint was that the rights enjoyed to a lesser extent by Sikhs were: the right to religious freedom; and right to freedom of movement (the “relevant rights”). [58], [67].

There must be a sufficient casual connection between the lesser enjoyment of the relevant rights and the impugned State law. [82]. The applicant emphasised the “practical effect” of the impugned State law which was said to give rise to a sufficient casual connection, whereas the respondent contended that because the casual connection was merely incidental it did not engage the Racial Discrimination Act 1975 (Cth) s 10. [76]–[77]. Justice Brown held that the causal connection was insufficient. [87]. Under the impugned State law both Sikhs and non-Sikhs alike enjoy the same rights to rely on the reasonable excuses to possess a knife as exceptions to the general prohibition. [87].

Justice Brown observed that the Racial Discrimination Act 1975 (Cth) s 10 is only engaged in circumstances where there is a differential enjoyment of rights by reason of race or ethnic origin and that had not been established by the applicant. [89]. Section 10 Racial Discrimination Act 1975 (Cth) is not concerned with the “discriminatory effect” of a law having regard to racial characteristics, rather the relative enjoyment of a right by persons of different racial groups. [88]. It followed that the applicant could not demonstrate an inconsistency between the impugned State law and Racial Discrimination Act 1975 (Cth) s 10. [90].

Disposition

In the result, the application was dismissed. [90]. 

D Kerr