In an attempt to counter the dangers of what he calls “Islamist separatism”, French President Emmanuel Macron announced a controversial bill last October. In his speech, Macron stigmatized supporters of the Islamic faith when he expressed his fear that a minority of France’s estimated six million Muslims threatened to form a “counter-society”. The bill was debated back and forth between France’s lower house, the National Assembly and the Senate, and was eventually passed by a margin of 49 votes to 19. France’s highest constitutional authority also approved the bill, deleting only two of its articles. .
The “anti-separatism” law has many implications for the religious freedoms of Muslims living in France. These include the strict police control of places of worship and religious organizations, as well as the introduction of restrictions on homeschooling of Muslim students. Although it is beyond the scope of this article to cover all these implications, one of the most controversial elements of the law is its extension of the so-called “principle of neutrality” – which prohibits officials from wearing religious symbols, such as the Muslim hijab, and expressing political views. in addition to public sector employees to all private public service contractors, such as those working for transport companies.
Other changes were also included in the original draft bill, which included a ban on full-length swimsuits (“burkinis”) as well as a ban on girls under the age of 18 wearing the hijab in public, and mothers on wearing the hijab on their children’s school trips. . These changes were later overturned.
Despite the French government’s repeated insistence that these laws do not necessarily separate Muslim society, it is nevertheless clear that the “anti-separatism” law is not aimed at Muslims given its disproportionate effects on the liberties of Muslim women. .
Admittedly, it is difficult to understand why anyone Western countries that claim to advocate liberal values and human rights – much less a self-proclaimed bastion of Western liberal values like France – would try to interfere in how women choose to dress. But France is hardly alone in its abnormal approach to Muslim dress. The same views and the contradictions that accompany them are also found in Australia. A recent survey showed that a third (33.7 percent) of respondents agreed that women should does not be allowed to wear the hijab in Australia; the number rose to almost half (48.9 per cent) when asked to wear the niqab or burka.
And while the Australian Muslim Bar Association was successful in its lawsuit against former Senator Fraser Anning, that does not mean that Muslims can be guaranteed full legal protection against bad political actors in the future.
Could similar laws be enacted in Australia?
The short answer is yes. The long answer is there able to be some legal means, but it is limited. At the Federal Level, Part 2 of Racial Discrimination Act 1975 (Cth) protects against discrimination on the grounds of race, ethnicity, nationality and skin color. However, it does not protect people because of their religious freedom or association. Protection against religious discrimination and slander is found in only half of Australia’s states and territories.
There has been a clear push for reforms by the state and federal government to ban religious discrimination. The New South Wales state government has stated its commitment to ban religious discrimination, but will wait until the Commonwealth’s law on religious freedom has been passed by the federal parliament. NSW’s Advocate General Mark Speakman has said the coalition made sure its laws “reflect modern societal values” by introducing a bill to add religion to state anti-discrimination legislation.
If these bills are passed, it would be a milestone for faith-based communities – including Muslims – across Australia. It is important to note, however, that although federal or state laws protect the right to freedom of religion, including the right of women to wear the hijab, these protections can be easily suspended by federal law – as the Howard government did. Law on Racial Discrimination by implementing Northern Territory Emergency Response. Once the federal parliament has conferred a right or justification in a statute, it is equally competent under the doctrine of parliamentary sovereignty to deprive that right or justification.
The greatest protection Australians could have is in the form of a constitutional law on rights. Currently, the only provision protecting religious freedom is contained in Article 116 of the Constitution. Section 116 is not a source of personal rights and does not give individuals the right to legal redress. The court generally takes a narrower view. Previous rulings by the High Court make it clear that the section does not constitute a constitutional guarantee of the right to freedom of religion or belief.
Section 116 cannot be used to defend violations of general laws that happen to discriminate against religion. It is not clear whether this section can be used to challenge cases where an Australian Prime Minister decides, for example, to ban headscarves for “security purposes”, despite being a clear attack on the liberties of Muslim women.
What is the solution? Despite the political challenges of securing a declaration of rights – especially one enshrined in the Constitution – it may well be the only way for Muslim women to enjoy real religious protection and freedom in Australia. It is not only women like me who wear the hijab who would feel safe with this protection. All Australians can benefit from human rights protection.
Maryam Hashimi is a research assistant at the Australian Muslim Advocacy Network (AMAN). Her research explores the intersection between Australian law and religion. She is also a research assistant and casual lecturer at Western Sydney University, where she is completing a Master of Laws (LLM).