Athwal v State of Queensland

This case concerned s 51 Weapons Act 1990 which makes it an offence to possess a knife in a public place or a school without a reasonable excuse. Under s 51(4) and 51(5) of that Act, it is a reasonable excuse to possess a knife for a genuine religious purpose in a public place but not in a school. Initiated Sikhs must, at all times, wear a small ceremonial knife known as a kirpan. Justice Mitchell (with Mullins P agreeing) held that s 51(5) prevented Sikhs from wearing a kirpan at a school and that that prohibition was inconsistent with s 10 Racial Discrimination Act 1975 (Cth). The provision was, for that reason, invalid under s 109 Commonwealth Constitution. Justice Dalton, agreeing in the result, gave separate reasons.

Mullins P, Dalton JA and Mitchell AJA

1 August 2023

The appellant, a member of the Sikh community, brought this appeal alleging that s 51(5) Weapons Act 1990 was inconsistent with s 10 Racial Discrimination Act 1975 (Cth) (“RDA”), and therefore invalid under s 109 Commonwealth Constitution. [35], [37]. Section 51(1) Weapons Act provides that a “person must not physically possess a knife in a public place or a school, unless the person has a reasonable excuse”. [46]. Under s 51(2), reasonable excuses include possessing a knife to “perform a lawful activity, duty or employment” or “for use for a lawful purpose”. [46]. Under s 51(4), it is also a reasonable excuse to possess a knife in a public place for a genuine religious purpose. The example given in that provision, is that a Sikh may possess a knife known as a kirpan to comply with the person’s religious faith. However, s 51(5) states “it is not a reasonable excuse to physically possess a knife in a school for a genuine religious purpose”. [5].

An initiated Sikh must, at all times, wear or possess the five articles of faith. [66]. One of the articles is the kirpan, a small ceremonial sword made a steel or iron. [66]. An affidavit before the court estimated that approximately 80 – 90% of kirpans are blunt and without a cutting edge. [68].

Under s 10 RDA:

“If, by reason of, or of 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… 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.”

The primary issue in the dispute was whether s 51(5) Weapons Act was inconsistent with this provision. In order to avoid inconsistency, the State argued that if a kirpan is not sharp or is sewn into a pouch such that it cannot be easily accessed it would not be a knife within the meaning of s 51. [41]. The court rejected this argument. Each member of the court considered this argument to be contrary to the language of the provision, which expressly contemplated that a kirpan would be covered. [3], [41]. A blunt or a secured knife is still a knife. [3], [41]. In separate reasons, Dalton JA added that it is unrealistic that police officers attempting to enforce the law would be drawn into questions of the sharpness or accessibility of the blade. [4]. For that reason, the court held that a kirpan is a knife within the meaning of s 51. [3], [107].

As to whether s 51(5) was contrary to s 10 RDA, it was first necessary to identify the right which Sikhs were said not to enjoy because of s 51(5). The primary judge characterised the right as the right to religious freedom (or the right to freedom of movement) while wearing a knife as an article of faith in a school. [7]. The primary judge held that Sikhs were able to exercise that right to the same extent as other ethnic groups as that conduct was prohibited for all persons. [38]. The Court of Appeal held that that characterisation of the right was erroneous. [7], [38]. The right cannot be characterised by reference to a feature which distinguishes the protected ethnic group, and which is the target of the legislation. [39]. To do so would undermine the purpose of s 10 RDA. Regard must be had to the practical impact of the law. [39]. Here, there was no evidence before the court that any group other than Sikhs must possess a knife as part of their faith. As such, a law that prohibits the possession of a knife for religious purposes does not affect any group other than Sikhs in the exercise of religious freedom and freedom of movement. [39].

Justice Mitchell (with Mullins P agreeing) went on to note that s 10 RDA will “not be engaged when a general law prohibits certain conduct by all members of the community, even where that conduct may be the subject of religious belief only by persons of a particular ethnic origin”. [109]. His Honour noted that s 51 does not provide a blanket ban on the possession of knives at schools. [113]. It provides exceptions that would cover, for example, a student possessing a pocketknife for utility purposes or a paring knife for cutting fruit at lunch. [113]. However, s 51(5), in its practical effect, singles out Sikhs. [113]–[114]. In doing so, it prevents Sikhs from exercising the right to freedom of movement and freedom of religion to the same extent as other members of the community. [114]. For that reasons, s 51(5) Weapons Act was inconsistent with s 10 RDA. Under s 109 Commonwealth Constitution, State legislation that is inconsistent with Federal legislation is invalid. Justice Mitchell (with Mullins P agreeing) therefore held that s 51(5) was invalid. [126].

Justice Dalton agreed in the result. However, in brief separate reasons Her Honour highlighted that a law that is “facially neutral” may still fall foul of s 10 RDA if the law, for example, has a disproportionate impact on members of a particular ethnic group. [30]–[31].

L Inglis