France’s hijab ban – could it happen in Australia?

In an effort to counter the dangers of what he calls “Islamist separatism”, French President Emmanuel Macron announced a contentious bill last October. In his speech, Macron stigmatized the followers of the Islamic faith by expressing his fear that a minority of the some six million Muslims in France could threaten to form a “counter-society”. The invoice was debated back and forth between the lower house of France, the National Assembly and the Senate, and was ultimately adopted by a margin of 49 votes to 19. constitutional authority also approved the bill, striking down only two of its articles.

The “anti-separatism” law has many implications for the religious freedoms of Muslims living in France. These include strict control of places of worship and religious organizations, as well as the imposition of restrictions on home schooling for Muslim students. While it is beyond the scope of this article to cover all of these implications, one of the most controversial elements of the law is its extension of the so-called “Principle of neutrality” – which prohibits civil servants from wearing religious symbols, such as the Muslim hijab and expressing political opinions – beyond public sector employees to all private contractors of public services, such as those who work for transport companies .

Other amendments were also included in the original draft of the bill, which included a ban on long swimsuits (“burkinis”), as well as a ban on girls under 18 from wearing the hijab in public and mothers from wearing the hijab when their children go to school. These amendments were then canceled.

Despite the French government’s repeated insistence that these laws do not necessarily target the Muslim community, it is nonetheless clear that the “anti-separatism” law targets Muslims given its disproportionate effect on the freedoms of Muslim women.

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It is certainly difficult to understand why all A Western country that claims to uphold liberal values ​​and human rights – let alone a self-proclaimed stronghold of Western liberal values ​​like France – would attempt to interfere with the way women choose to dress. But France is not alone in its abnormal approach to Muslim dress. These same views, and the contradictions that accompany them, also exist in Australia. A recent study found that a third (33.7%) of respondents agreed that women should not be allowed to wear the hijab in Australia; the figure rose to almost half (48.9%) when asked to wear the niqab or burqa.

And while the Australian Muslim Rights Network was successful in his legal action against former Senator Fraser Anning, that does not mean that Muslims can be assured of full legal protection against bad political actors in the future.

Could similar laws be passed in Australia?

The short answer is yes. The long answer is, he may be a legal remedy, but it is limited. At the federal level, part 2 of the Racial Discrimination Act 1975 (Cth) protects against discrimination based on race, ethnic origin, nationality and color. However, it does not protect people because of their freedom of religion or association. Protections against religious discrimination and defamation exist in only half of Australia’s states and territories.

There has been obvious pressure for reform by the state and the federal government to outlaw religious discrimination. The State Government of New South Wales has indicated his engagement to ban religious discrimination, but will wait until the Commonwealth’s Religious Freedoms Bill is passed by the federal parliament. New South Wales Attorney General Mark Speakman said the Coalition is making sure its laws “reflect the values ​​of the modern community” by introduce a bill to add religion state anti-discrimination legislation.

If these bills pass, it would be an important step for faith communities – including Muslims – across Australia. However, it is important to note that even though federal or state laws protect the right to the free exercise of religion, including the right of women to wear the hijab, these protections can easily be removed. suspended by federal law – as the Howard government did with the Racial Discrimination Act during implementation Northern Territory Emergency Response. Once the Federal Parliament has conferred a right or a right in a law, it is also competent, by virtue of the doctrine of parliamentary sovereignty, to withdraw this right or this right.

The greatest protection Australians could have comes in the form of a constitutional bill of rights. Currently, the only provision protecting religious freedom is contained in article 116 of the Constitution. Article 116 is not a source of personal rights and does not provide individuals with a legal remedy. The court usually takes a narrower point of view. Previous High Court decisions make it clear that this section does not constitute a constitutional guarantee of the right to freedom of religion and belief.

Section 116 cannot be used to defend general law violations who manage to discriminate against religion. It is not clear whether this article could be used to challenge cases where an Australian Prime Minister decides, for example, to ban the headscarf for “security reasons”, despite being an attack. clear against the freedoms of Muslim women.

What is the solution? Despite the political challenges surrounding the effort to secure a bill of rights – especially the one enshrined in the constitution – this may well be the only way for Muslim women to enjoy true religious protection and freedom in Australia. It is not just women like me who wear the hijab who would feel assured by this protection. All Australians should enjoy the protection of human rights.

Maryam Hashimi is a research associate at Australian Muslim Rights Network (A MAN). His research explores the intersection between Australian law and religion. She is also a research assistant and occasional tutor at Western Sydney University, where she is completing an LLM.

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