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ERIC Number: EJ944207
Record Type: Journal
Publication Date: 2011
Pages: 33
Abstractor: ERIC
Reference Count: N/A
ISSN: ISSN-1938-9809
Religious Freedom and Section 116 of the Australian Constitution: Would a Banning of the Hijab or Burqa Be Constitutionally Valid?
Gray, Anthony
Forum on Public Policy Online, v2011 n2 2011
In recent years, the issue of the extent to which an individual has or should have the right to religious freedom, and to manifest that freedom by wearing particular items of clothing, has become very contentious. Some nations have seen fit to ban the wearing of particular items of clothing thought to have religious significance, at least in some contexts. Courts from a range of jurisdictions have sought to grapple with these issues, involving a range of values and sometimes competing interests. In this article, the author considers constitutional (and discrimination) issues that would arise if the Australian Parliament enacted legislation prohibiting the wearing of particular items of clothing often thought to have religious significance, in particular the "hijab", "burqa" or "niqab". He draws upon the rich jurisprudence concerning these issues in other jurisdictions, where much more litigation has taken place regarding the question than Australia. The volume of litigation elsewhere means that consideration of the Australian position is enriched by considering some of the specific issues that have been considered by overseas courts, with the likelihood that at some stage similar issues will need to be considered by Australian courts. These overseas developments should inform the consideration of the interpretation of the Australian provisions, and assist in reaching an interpretation of the relevant provisions. As with all comparative analysis, it is necessary to bear in mind the different statutory, constitutional and convention context in which decisions are reached. The author also considers briefly whether a different result would apply if the ban were passed at State level. This is not an abstract argument; a current Senator in the Australian Parliament, has personally called for a burqa ban, and private members' bills have been introduced in New South Wales and South Australia to introduce such a ban, at least in some circumstances. In Part A, the author sets the statutory framework for the discussion. In Part B, the meaning of the wearing of the hijab and burqa is considered. Part C considers how laws banning the wearing of religious dress or symbols have been considered in various courts. In Part D, he considers the validity of a Commonwealth law that banned the wearing of religious dress or symbols. (Contains 155 footnotes.)
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Publication Type: Journal Articles; Reports - Research
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers - Location: Australia