Queensland, Sikhism and the kirpan: Athwal

Queensland’s Weapons Act 1990 prohibits possession of a knife in a public place or a school without reasonable excuse. S.51(4) provides an exception “for genuine religious purposes” and cites Sikhism specifically as an example of a religion in which carrying a knife is a genuine religious purpose. S.51(5), on the other hand, declares that “it is not a reasonable excuse to physically possess a knife in a school for genuine religious purposes” – and for purposes of that subsection, the Sikh kirpan is regarded as a knife.

The prohibition came before Queensland’s State Court of Appeal in Athwal v State of Queensland  [2023] QCA 156, in which Ms Kamaljit Kaur Athwal argued that the ban was discriminatory. (Though it isn’t stated in the judgment in terms, presumably the ban meant that she couldn’t wear her kirpan on the premises of her children’s school.)

The Court noted that initiated Sikhs are obliged by their religion “at all times to wear or possess the five articles of faith, which collectively symbolise that the person has dedicated themselves to the Sikh way of life” [66], otherwise known as “the five Ks”: the kachera (cotton undershorts), the kanga (a wooden comb), the kara (an iron bangle), keshas (uncut hair) – and the kirpan

The Court rejected the State Government’s arguments. Dalton JA stressed the inequality as between Sikhs and those of other religions that resulted from the ban:

“[T]o say that both Sikhs and non‑Sikhs cannot practise their religion while wearing a knife ignores the fact that carrying a knife is only a feature of the religious observance of Sikhs. A law which prohibits a person from carrying a knife in a school for religious purposes impacts on Sikhs by preventing them from lawfully entering schools while adhering to their religious beliefs. That law has no impact on the practice of religion or freedom of movement of other persons. Account must be taken of the different practical impact which the law directed to a particular ethnic group has on the exercise of freedom of religion and freedom of movement by members of that targeted group” [36: emphasis added].

Mitchell AJA agreed, concluding as follows:

“[T]he only question raised by this appeal is whether a Sikh necessarily commits a criminal offence against s 51 of the Weapons Act by having physical possession of a kirpan at a school for religious purposes … s 51(5) of the Weapons Act, in making specific provision directed at Sikhs, is inconsistent with s 10 of the Racial Discrimination Act and is inoperative under s 109 of the Constitution. Therefore, the answer to the question raised by this appeal is ‘no’” [122].

Appeal allowed [123].  The Court made a declaration that s 51(5) was inconsistent with s 10 of the Racial Discrimination Act 1975, which prohibits discrimination on grounds of “race, colour or national or ethnic origin” and therefore unconstitutional under s 109 (Inconsistency of laws) of the Australian Constitution Act.

According to a report in The Guardian, the Queensland Government was considering an appeal.

Cite this article as: Frank Cranmer, "Queensland, Sikhism and the kirpan: Athwal" in Law & Religion UK, 8 August 2023, https://lawandreligionuk.com/2023/08/08/queensland-sikhism-and-the-kirpan-athwal/

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