Athwal v State of Queensland [2023] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION: Athwal v State of Queensland [2023] QCA 156

PARTIES: KAMALJIT KAUR ATHWAL / (appellant) / v / STATE OF QUEENSLAND / (respondent)

FILE NO/S: Appeal No 12964 of 2022 / SC No 1362 of 2021

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 209 (Brown J)

DELIVERED ON: 1 August 2023

DELIVERED AT: Brisbane

HEARING DATE: 2 May 2023

JUDGES: Mullins P and Dalton JA and Mitchell AJA

ORDER: It is declared that s 51(5) of the Weapons Act 1990 (Qld) is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) and, by reason of s 109 of the Commonwealth Constitution, is therefore invalid.

CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – CONSTITUTIONAL MATTERS – INCONSISTENCY OF LAWS – where s 51(1) of the Weapons Act 1990 (Qld) creates the offence of physically possessing a knife in a public place or school – where there are reasonable excuse provisions in ss 51(1) and (2) of the Weapons Act 1990 (Qld) to physically possess a knife for a range of reasons not involving using the knife offensively or for self-defence – where s 51(4) of the Weapons Act 1990 (Qld) specifically provided that it is a reasonable excuse to the offence in s 51(1) of that Act to physically possess a knife for genuine religious purposes – where s 51(4) of the Weapons Act 1990 (Qld) specifically gives the example that a Sikh may possess a knife known as a kirpan to comply with their religious faith – where s 51(5) of the Weapons Act 1990 (Qld) excludes the operation of s 51(4) of that Act to the extent that it involves physical possession of a knife in a school – where the appellant was a Sikh and, at first instance, brought an application to the Supreme Court for a declaration that s 51(5) of the Weapons Act 1990 (Qld) was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth), and therefore invalid by operation of s 109 of the Commonwealth Constitution – where the primary judge dismissed the appellant’s application for declaratory relief – whether the primary judge erred in dismissing the application at first instance – whether s 51(5) of the Weapons Act 1990 (Qld) is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) / Acts Interpretation Act 1954 (Qld), s 14(3), s 35C(2) / Charter of Human Rights and Responsibilities Act 2006 (Vic), s 7, s 32 / Constitution (Cth), s 109 / Human Rights Act 2019 (Qld), s 7, s 8, s 13, s 19, s 20, s 48, s 53 / Racial Discrimination Act 1975 (Cth), s 8, s 9, s 9(1A), s 10 / Weapons Act 1990 (Qld), s 3(2), s 5, s 49A(1), s 50(1), s 51, Sch 2 / Weapons Amendment Act 2011 (Qld), s 10 / Weapons and Another Act Amendment Act 2003 (Qld), s 14 / Weapons Categories Regulation 1997 (Qld), r 7A(j), r 7A(k) / Weapons Regulation 2016 (Qld), r 41(e), r 46 / Addy v Federal Commissioner of Taxation (2021) 273 CLR 613; (2021) 95 ALJR 911; [2021] HCA 34, cited / Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited / Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3, cited / Bell Group NV (in liq) v Western Australia (2016) 260 CLR 500; [2016] HCA 21, cited / Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557; [1942] HCA 30, cited / Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1, cited / Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56, applied / CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited / Croome v Tasmania (1997) 191 CLR 119; [1997] HCA 5, cited / Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited / Fraser v Canada (Attorney-General) [2020] 3 SCR 113; [2020] SCC 28, cited / Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, considered / International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, cited / Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, cited / Mabo v Queensland (1988) 166 CLR 186; [1988] HCA 69, cited / Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28, considered / Mandla v Dowell Lee [1983] 2 AC 548; [1982] UKHL 7, considered / Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, considered / Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited / Purvis v New South Wales (2003) 217 CLR 92; [2002] HCA 62, cited / Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23, cited / Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53, cited / Unions NSW v New South Wales (2023) 97 ALJR 150; [2023] HCA 4, cited / Wenn v Attorney-General (Vic) (1948) 77 CLR 84; [1948] HCA 13, cited / Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373; [1995] HCA 47, cited / Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, considered / Wilson v Kuhl [1979] VR 315; [1979] VicRp 34, cited / YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12, considered / Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52, cited

COUNSEL: R Merkel KC, with M J Jackson and K Brown, for the appellant / G J Del Villar KC SG, with F J Nagorcka and K J E Blore, for the respondent

SOLICITORS: Caxton Legal Centre for the appellant / G R Cooper, Crown Solicitor for the respondent

1. MULLINS P: I agree with Mitchell AJA.

2. DALTON JA: I agree with the orders proposed by Mitchell AJA and to a large extent agree with his reasons. I wish to add some views of my own.

Weapons Act

3. I agree with Mitchell AJA’s construction of the Weapons Act 1990 (Qld) and in particular that:

carrying a kirpan “as a symbol of a religious commitment would, at least ordinarily, constitute a use of the knife for a lawful purpose (namely, religious observance).” – [106] below;

the fact that any particular kirpan might be blunt or sewn into a pouch where it is difficult to access does not mean that a kirpan is not a knife within the meaning of s 51 of the Weapons Act;

the interpretative rule contained in s 48 of the Human Rights Act 2019 (Qld) is of no assistance in understanding what is meant by the term knife in s 51 of the Weapons Act.

4. In relation to the latter two points, the submissions of the State of Queensland were misplaced given that the provision being interpreted was one creating a criminal offence. To suggest that police officers attempting to enforce the law could be drawn into completely ill-defined questions as to the bluntness or sharpness of any particular object, or how readily it might be accessed when worn on the body is quite unrealistic. The idea that they might be drawn into abstruse legal considerations regarding s 48 of the Human Rights Act is more so. This is sufficient to dispose of the arguments made in the notice of contention. I record that I am surprised that counsel for the State of Queensland would rely upon the Human Rights Act in train of an argument to support a legislative provision which is directed at reducing the human rights of a particular racial or religious group within our society.

Rights

5. I agree with the reasons of Mitchell AJA in characterising the rights relevant to this appeal as the right to religious freedom and the right to freedom of movement. So far as the second of those rights is concerned, it needs to be borne in mind that most schools are owned and operated by the State. Others are privately owned, but in providing education they are important institutions within our society. It must be recognised that significant numbers of people work at schools: teachers, cleaners, gardeners. Schools are commonly used as polling stations during elections and evacuation centres during natural disasters. They are places where athletics carnivals, fairs and other community events are held. Legislation which prevents persons of a particular race attending schools is legislation which does infringe the broad rights to religious freedom and freedom of movement in my view.

6. The only lawful purpose fastened onto by s 51(5) of the Weapons Act is a lawful purpose that only a Sikh will have. The result is that the provision has the effect that Sikh people could enjoy only a more limited right of freedom of movement and freedom of religion than the rest of the community, to borrow from the language of French CJ in Maloney v The Queen.¹

7. I agree with Mitchell AJA that the primary judge was wrong in characterising the relevant rights 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. There are two reasons. The first is that the High Court in the early case of Gerhardy v Brown made it clear that the rights with which s 10(1) is concerned are broad rights in the “political, economic, social, cultural or any other field of public life”.² Section 10(2) of the Racial Discrimination Act 1975 (Cth) provides that a relevant right includes, but is not limited to, a right referred to in Art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. These rights are broad rights, such as, “the right to nationality”, “the right to freedom of opinion and expression”, and “the right to freedom of movement and residence within the border of the State”.

8. In the same case Mason J observed that, “The concept of human rights as it is expressed in the Convention and in the United Nations Universal Declaration of Human Rights evokes universal values, ie., values common to all societies”. Relevantly here, he observed that the right to freedom of movement would “ordinarily include a right of access to places and services used by members of the public” – p 102. On the facts of that case the High Court found that freedom of movement might include access to privately owned lands – p 103.

“The characteristics of the comparator

Discrimination jurisprudence establishes that the circumstances of the person alleged to have suffered discriminatory treatment and which are related to the prohibited ground are to be excluded from the circumstances of the comparator. In Sullivan v Department of Defence (83), Sir Ronald Wilson said:

‘It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment ... could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.’

Similarly, in Proudfoot v Australian Capital Territory Board of Health (84), Sir Ronald Wilson said that the equivalent exemption provisions of the Sex Discrimination Act:

‘would be rendered superfluous by such a construction, as presumably all of the circumstances contemplated by those sections would constitute material differences, with the consequence that the actions identified did not even pass through the threshold requirement of constituting discrimination. In my opinion, this construction could not have been intended. I therefore conclude that a difference to be material cannot be referable to the prohibited basis for less favourable treatment, namely sex. The purpose of s 5(1) is to identify less favourable treatment of one sex than the other in essentially the same circumstances, which circumstances are external to the question of sex.’

In The Commonwealth v Human Rights and Equal Opportunity Commission (85), Wilcox J, after referring with approval to a statement of Sir Ronald Wilson in the decision under review (which was the same as that given in Sullivan), said:

‘To the extent that the Commonwealth argues in this case that there is a material difference between single people and married people in that the former tend not to have “family” whereas the latter do, the difference is the proscribed discrimination itself.’” (emphasis in the original; footnotes omitted).

13. The beginning of the passage just extracted was referenced by the High Court in Addy v Federal Commissioner of Taxation⁵ as authority for the proposition that “Discrimination jurisprudence establishes that the circumstances of the person alleged to have suffered discriminatory treatment and which are related to the prohibited ground are to be excluded from the circumstances of the comparator” (emphasis in the original).

Race or Religion

14. The Crown conceded that s 10(1) of the Racial Discrimination Act applied to the dispute here. I must confess I have some continuing disquiet about the effect of that concession in this case. I accept that Sikhs are, “persons of a particular race, colour or national or ethnic origin” within the meaning of s 10 of the Racial Discrimination Act. However, I think it is a separate question whether or not that definition is sufficiently coterminous with the beliefs of the Sikh religion to attract the operation of s 10(1).⁶ The provision under challenge in this appeal is one which is directed at adherence to the Sikh religion.

15. In Mandla v Dowell Lee⁷ the House of Lords held that on the evidence in that case, Sikhs were a group of persons defined by ethnic origins for the purposes of an anti‑discrimination provision contained in the Race Relations Act 1976 (UK). The judgment records and rejects an argument to the contrary, that Sikhs “were essentially a religious group, and they shared their racial characteristics with other religious groups, including Hindus and Muslims, living in the Punjab” – p 561. That case was one in which a school refused entry to a child because he felt obliged to wear a turban. This was discussed in terms of cultural practice rather than religion, so that the question which troubles me in this appeal was not decided. The question is largely a factual one and given that the Crown made the concession below, and expressly again on appeal, I act on it. I do not regard this Court’s doing so as anything more than a response to the factual material before it (including the Crown’s concession).

The Nature of s 10 of the Racial Discrimination Act

16. There are now several anti-discrimination Acts at the Federal level.⁸ As well, there are Acts at State level. The Racial Discrimination Act was the first, or one of the first, such pieces of legislation in Australia, and I think it is fair to say that this type of Act has become more sophisticated over time, particularly as a case-based jurisprudence has grown up around the various legislative frameworks. Professor Alice Taylor has written quite insightfully as to this history:

“The RDA was the first federal prohibition of discrimination on any ground when it was passed in 1975. In introducing the Bill, the Commonwealth Attorney-General Kep Enderby acknowledged that its purpose was to implement Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), remedy the inadequacies of the common law, and educate the public about the ‘undesirable and unsocial consequences of discrimination … and make them more obvious and conspicuous’. The structure of the RDA is different from the other Commonwealth anti-discrimination legislation. This is, in part, because the RDA is older than the other legislation. The most obvious difference is that its text and structure closely resembles the CERD. In contrast, though each of the other Commonwealth statutes lists corresponding international conventions in its objects clauses or application provisions, none of them follow the structure of those conventions as closely as the RDA follows the CERD. The close textual relationship between the RDA and the CERD could be explained by the fact that at the time of passage, the full extent of the Commonwealth’s powers with respect to external affairs were yet to be clarified by the High Court. Regardless of the reason, the close resemblance is distinctive and has led to the use of different tests to prove discrimination from those required by other Commonwealth anti-discrimination legislation.”⁹

17. Professor Taylor goes on to describe that s 9 of the Racial Discrimination Act does the work of preventing acts discriminating on the basis of race. In this respect she notes that in 1990 the Racial Discrimination Act was amended to add s 9(1A) so that the section dealt with both direct and indirect discrimination. Jurisprudence as to the latter concept was being developed, both in the case law and the statute law, in the years between 1975 and 1990. In contrast, s 10 is a distinct provision, focusing not on discriminatory acts, but upon the operation of legislation. This was recognised early in the decision of Gerhardy v Brown where Gibbs CJ stated:

“The provisions of Pt II of the Racial Discrimination Act other than ss 8 and 10 may be regarded as amplifying and applying to particular cases the provisions of s 9 which prohibit acts of discrimination by persons (including the Crown). Section 10 has a different purpose. It is the only provision of the Racial Discrimination Act which deals with the effect of legislation which brings about discrimination. The words of s 10(1) are wide; they refer to laws by reason of which persons of (inter alia) one race do not enjoy ‘a right’ that is enjoyed by persons of another race.”¹⁰

18. It is convenient to set out both ss 9 and 10 at this point:

“9Racial discrimination to be unlawful

(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)Where:

(a)a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)the other person does not or cannot comply with the term, condition or requirement; and

(c)the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

…

10Rights to equality before the law

(1)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, or enjoy a right to a more limited extent than 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.

(2)A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

…”

19. Although the Racial Discrimination Act binds the Crown, Brennan J explained in Gerhardy v Brown¹¹ that the act of a Parliament in enacting legislation could not be regarded as “an act” prohibited by s 9 of the Racial Discrimination Act. A Parliament cannot be prohibited from enacting a law which is in breach of s 10. If a Parliament does so, the operation of the Act will be affected by s 10(1), and, in the case of a State law, perhaps s 109 of the Constitution.¹²

20. In Maloney, Hayne J drew attention to the fact that:

“… s 10(1) does not use the word ‘discriminatory’ or any cognate expression, yet the language of discrimination is used throughout the authorities in which s 10(1) has been considered. That use of language follows from the sub-section’s focus on the enjoyment of rights by some but not by others or to a more limited extent by others but it must always be kept at the forefront of consideration that it is the statutory text which is controlling. Questions about the enjoyment of rights do not necessarily require consideration of the concepts that are often associated with ‘discrimination’.” – [65].

21. He went on to remark upon the width of s 10 – [67] – and to say that care was needed to observe this difference so as not to inadvertently narrow or confine the operation of s 10 – [68]. He said that, “To do so would be contrary to the large objects which the RDA evidently pursues and the generality of the words which it uses. Reference to ‘discrimination’ is apt to bring with it conceptual baggage which has been developed in other contexts but which finds no reflection in the text of s 10.” – [68].

22. These matters were raised by Mason J in Gerhardy v Brown, p 99, and in the judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward:

“A number of points may be made at once. First, the sub-section does not use the word ‘discriminatory’ or cognate expressions. Yet these terms are used throughout the authorities in which s 10(1) has been considered. That to which the sub-section in terms is directed is the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race, colour or national or ethnic origin. ‘Enjoyment’ of rights directs attention to much more than what might be thought to be the purpose of the law in question.”¹³ (emphasis in the original).

23. In my view two things flow from these passages in the context of the present case. The first is that the enquiry is not whether or not s 51(5) of the Weapons Act can be called a “discriminatory” law or a “non-discriminatory” law. Instead, attention must be paid to the words of s 10(1) of the Racial Discrimination Act.

24. Secondly, concepts which have developed in anti-discrimination statute and case law subsequent to the Racial Discrimination Act should not be directly applied to a case involving s 10 of the Racial Discrimination Act. These are concepts which have developed in the context of distinctly different legislative provisions; legislative provisions more akin to s 9(1) and s 9(1A) of the Racial Discrimination Act. They may be helpful by way of analogy when considering s 10, but they cannot be directly imported into such a consideration.

Unjustifiable Disparate Impact¹⁴

25. In Western Australia v Ward the majority judgment contained the following passage:

“In determining whether a law is in breach of s 10(1), it is necessary to bear in mind that the sub-section is directed at the enjoyment of a right (216); it does not require that the relevant law, or an act authorised by that law, be ‘aimed at’ native title, nor does it require that the law, in terms, makes a distinction based on race. Section 10(1) is directed at ‘the practical operation and effect’ of the impugned legislation and is ‘concerned not merely with matters of form but with matters of substance’ (217).” – [115] (footnotes omitted).

26. That passage is consistent with all the High Court authority dealing with s 10(1) of the Racial Discrimination Act. Indeed, I think that must follow from the introductory words to s 10(1), “If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory …” (my emphasis). The drafting is not entirely elegant, but it seems expressly to contemplate a lack of enjoyment of rights caused not by the express words of (a provision of) an Act, but caused more broadly by reason of the Act.¹⁵

27. As the case of Maloney illustrates, that approach to the interpretation of s 10(1) will see it operate upon legislation which does not expressly apply to a particular race of people. In that case provisions of the Liquor Act 1992 (Qld) allowed declarations of “restricted areas” to be made. Persons in the restricted areas had limited rights to possess alcohol. Palm Island, a community composed almost entirely of indigenous people, was declared a restricted area. French CJ said:

“The impugned provisions were directed at an indigenous community. … In this case, the impugned provisions had the effect that indigenous persons who were the Palm Island community, … could not enjoy a right of ownership of property, namely alcohol, to the same extent as non-indigenous people outside that community. The impugned provisions effected an operational discrimination notwithstanding the race-neutral language of s 168B of the Liquor Act, under which the appellant was charged.” – [38].

28. The reasoning of Hayne, Crennan and Bell JJ in Maloney was similar. Together with Gageler J, they held that the impugned provisions would have been within the ambit of s 10 of the Racial Discrimination Act had they not been a “special measure” within the meaning of s 8 of that Act.

29. For the reasons given by Mitchell AJA, I think that the facts and the terms of the legislation with which we are concerned are comfortably within the majority reasoning in Maloney. There is therefore no reason for this Court to venture beyond those principles in order to decide this case, and good reason not to do so.

30. The law as to the ambit of s 10(1) of the Racial Discrimination Act in relation to legislation which is facially neutral, but has a differential effect, is still developing. The judgment of Gageler J in Maloney is one indication. Counsel for the appellant referred us to several others. There are early statements by Brennan J in Gerhardy v Brown referring to international decisions to the effect that equal treatment of unequal persons can be discriminatory – p 128ff. In Street v Queensland Bar Association Gaudron J remarked that, “a failure to accord different treatment appropriate to that difference also constitutes discrimination”.¹⁶ Those comments were taken up in Castlemaine Tooheys Ltd v South Australia where Gaudron and McHugh JJ spoke about direct discrimination and added, “A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference, or, in other words, if it treats equally things that are unequal – unless, perhaps, there is no practical basis for differentiation.”¹⁷ The Supreme Court of Canada considered this type of discrimination in Fraser v Canada (Attorney*‑**General)*, “Adverse impact discrimination occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground. There is no doubt that adverse impact discrimination violates the norm of substantive equality which underpins the Court’s equality jurisprudence.”¹⁸

31. This jurisprudence will develop as cases concerning s 10(1) come before the Courts. Each will have its own facts; the terms of the impugned legislation will need to be considered in each case, and the result of the cases may well turn upon whether the impugned legislation is Federal or State legislation. Presently it cannot be assumed that a law which is facially neutral will not be within the ambit of the section. For this reason that I cannot agree with parts of the judgment of Mitchell AJA, such as, “Section 10 of the RDA is not engaged when the rights are subject to non-discriminatory regulation” – [61] and paragraphs [108]-[110] and [121] of his judgment.

“The application of s 10 to a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, but that does not meet the requirements of a special measure, cannot be avoided by showing that the criteria the law adopts are nevertheless proportionate or reasonably necessary to the pursuit of a legitimate aim where the substance of the aim is redressing some other imbalance in the enjoyment of human rights by persons of a particular race. Otherwise, the carefully tailored regime for permissible special measures would be undermined. Unless it is a special measure excluded by s 8, the law is one to which s 10 applies.” [348].

35. MITCHELL AJA: Section 51(1) of the Weapons Act 1990 (Qld) creates the offence of physically possessing a knife in a public place or school without a reasonable excuse. In general terms, under s 51(2) and s 51(3), it is a reasonable excuse to physically possess a knife for a range of reasons which do not involve using the knife offensively or for purposes of self‑defence.

36. Section 51 also contains provisions which are evidently directed at Sikhs, many of whom hold religious beliefs that require them to carry a ceremonial knife, called a kirpan. Kirpans come in a variety of shapes and sizes and may or may not have sharp blades. There is nothing before the court indicating the presence of any other significant group in the community whose religious beliefs require members to carry a knife. Section 51(4) in effect provides that it is a reasonable excuse to physically possess a knife in a public place for genuine religious purposes. Section 51(5) provides that it is not a reasonable excuse to physically possess a knife in a school for genuine religious purposes.

37. The appellant, an initiated Sikh, brought proceedings against the State in the Supreme Court of Queensland. The appellant sought a declaration that s 51(5) of the Weapons Act is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) (RDA) and, by reason of s 109 of the Commonwealth Constitution, is therefore invalid. The appellant claims that s 51(5) operates in a discriminatory manner to prevent Sikhs from entering a school while adhering to their religious beliefs. She contends that, as a result, Sikhs enjoy the rights to freedom of movement and freedom of religion, which are protected by the RDA, to a more limited extent than other ethnic groups. The appellant says that s 10 of the RDA overrides s 51(5) of the Weapons Act by providing for Sikhs to enjoy those rights to the same extent as other ethnic groups.

38. The primary judge dismissed the appellant’s application for declaratory relief. Her Honour characterised the relevant rights as rights to religious freedom and freedom of movement while wearing a knife as an article of faith in a school.²⁰ The primary judge held that Sikhs and non‑Sikhs enjoy the same lawful excuses to possess a knife as an exception to the general prohibition in s 51(1) of the Weapons Act. In her Honour’s view, s 51(5) does not have a practical effect of providing a greater right of wearing a knife for religious purposes to Sikhs and non‑Sikhs.²¹ Her Honour found that, therefore, s 10 of the RDA was not engaged as there was no differentiation occurring in the enjoyment of rights between people of different ethnic origins.

The Weapons Act

43. The object of the Weapons Act is to prevent the misuse of weapons.²³

44. The term “weapon” is defined to mean a firearm or “another thing prescribed under a regulation to be a weapon or within a category of weapon”.²⁴ Certain kinds of knives, including a thing designed for use as a weapon or a cutting or piercing instrument capable of causing bodily harm, are prescribed as category M weapons.²⁵ A miscellaneous weapons licence may be issued for a “category M knife” but only if an authorised officer is satisfied the applicant for the licence has a special occupational need for the knife.²⁶ A licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose.²⁷ Section 50(1) of the Weapons Act creates an offence of unlawfully possessing a weapon.

45. The above provisions indicate that some kinds of knives are weapons for the purposes of the Act but that many knives, including many knives designed for use as a tool rather than for offensive or self-defence purposes, are not weapons.

46. Section 51 of the Weapons Act creates an offence of possessing a knife without reasonable excuse, in the following terms:

“(1)A person must not physically possess a knife in a public place or a school, unless the person has a reasonable excuse.

Maximum penalty — 40 penalty units or 1 year’s imprisonment.

(2)It is a reasonable excuse for subsection (1) to physically possess a knife—

(a)to perform a lawful activity, duty or employment; or

(b)to participate in a lawful entertainment, recreation or sport; or

(c)for lawfully exhibiting the knife; or

(d)for use for a lawful purpose.

Example for subsection (2)(a)—

1 A person may carry a knife on his or her belt for performing work in primary production.

Examples for subsection (2)(b)—

1 A scout may carry a knife on his or her belt as part of the scout uniform.

2 A person may carry a knife as an accessory while playing in a pipe band.

3 A fisher may carry a knife for use while fishing.

Example for subsection (2)(c)—

1 A person who collects knives may exhibit them at a fete or another public gathering.

Examples for subsection (2)(d)—

1 A person may use a knife to prepare or cut food at a restaurant in a public place or when having a picnic in a park.

2 A person may carry a pen knife or swiss army knife for use for its normal utility purposes.

(3)However, it is not a reasonable excuse to physically possess a knife in a public place or a school for self-defence purposes.

(4)Also, it is a reasonable excuse for subsection (1), to the extent the subsection relates to a public place, to physically possess a knife for genuine religious purposes.

Example—

A Sikh may possess, in a public place, a knife known as a kirpan to comply with the person’s religious faith.

(5)However, it is not a reasonable excuse to physically possess a knife in a school for genuine religious purposes.

(6)In deciding what is a reasonable excuse for subsection (1), regard may be had, among other things, to whether the way the knife is held in possession, or when and where it is held in possession, would cause a reasonable person concern that he or she, or someone else in the vicinity, may be threatened or harmed.

(7)In this section—

knife includes a thing with a sharpened point or blade that is reasonably capable of—

(a)being held in 1 or both hands; and

(b)being used to wound or threaten to wound anyone when held in 1 or both hands.

public place includes a vehicle that is in or on a public place.

school means any part of the premises of—

(a)a State educational institution under the Education (General Provisions) Act 2006; or

(b)a non-State school under the Education (Accreditation of Non-State Schools) Act 2017.”

47. References to a school in s 51(1) and s 51(3), and the definition of school in s 51(7), were introduced by s 14 of the Weapons and Another Act Amendment Act 2003 (Qld). The explanatory notes for the Bill for the 2003 Amendment Act indicate that these amendments were introduced out of concern that schools might not be a “public place” for the purposes of s 51 of the Weapons Act.²⁸

48. Subsections (4) and (5) were introduced into s 51 by s 10 of the Weapons Amendment Act 2011 (Qld), which also increased the maximum penalty for the offence created by s 51(1) of the Weapons Act.

49. The explanatory notes for the Bill for the 2011 Amendment Act addressed the consistency of the Bill with Fundamental Legislative Principles (FLPs) outlined in the Legislative Standards Act 1992 (Qld). The explanatory notes indicated that a “potential FLP breach is created” by the exclusion of a genuine religious purpose as a reasonable excuse for a knife to be physically possessed in a school. It was argued that, while the potential breach had the capacity to interfere with an individual’s freedom to undertake genuine religious practices, the safety and welfare of children attending Queensland schools was of paramount importance. The explanatory notes referred to the number of offences committed with knives on school premises in Queensland, the general policy of State schools that students are not permitted to bring knives to school and restrictions on the physical possession of knives on an aircraft.²⁹

The RDA

50. Section 10 of the RDA relevantly provides:

“(1)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, or enjoy a right to a more limited extent than 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.

(2)A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.”

51. The reference to the Convention is to the International Convention on the Elimination of All Forms of Racial Discrimination, the English text of which is set out in the schedule to the RDA. Article 1 of the Convention defines the term “racial discrimination” as used in the Convention to mean:

“[A]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

52. Article 2(1)(c) of the Convention provides:

“States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

…

(c)Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists[.]”

53. Article 5 of the Convention relevantly provides:

“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

…

(d)Other civil rights, in particular:

(i)The right to freedom of movement and residence within the border of the State;

…

(vii)The right to freedom of thought, conscience and religion[.]”

54. Section 8 of the RDA provides for exceptions to the application of pt II of that Act (in which s 10 is located), including in relation to certain “special measures” to which art 1(4) of the Convention applies. Article 1(4) of the Convention refers to certain special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals. There is no suggestion that s 51(5) of the Weapons Act is a special measure of the kind referred to in that paragraph of the Convention.

Operation of s 109 of the Constitution and s 10 of the RDA

55. Section 109 of the Constitution provides that, when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Section 109 of the Constitution renders an inconsistent State law inoperative to the extent of the inconsistency.³⁰

56. The operation of s 109 of the Constitution in relation to s 10 of the RDA has been considered in a series of decisions of the High Court of Australia.³¹ The following general propositions may be taken from those decisions in relation to State laws which prohibit conduct in a way that affects the enjoyment of rights identified in art 5 of the Convention.

57. Section 10 was inserted into the RDA to give effect to art 2(1)(c) of the Convention and is designed to overcome inequality before the law based on race, colour or national or ethnic origin.³² Section 10 may operate even though the relevant State law does not make a distinction expressly based on race, colour or national or ethnic origin and does not have a discriminatory purpose. Rather, the section is directed to the discriminatory operation and effect of the legislation. Section 10 is concerned with the unequal enjoyment of rights that should be conferred irrespective of race, colour or national or ethnic origin.³³

58. Section 10 of the RDA does not allow for persons of a particular race, colour or national or ethnic origin to enjoy a right to a more limited extent than other persons by reason of a State law if the difference is justifiable or proportionate to a legitimate end. If the law is not a special measure within the meaning of s 8(1) of the RDA, the conclusion that persons of a particular race, colour or national or ethnic origin enjoy a right to a more limited extent than others is sufficient to engage s 10 of the RDA.³⁴

59. To engage s 10 of the RDA, it is not necessary to show that all persons of a particular race, colour or national or ethnic origin enjoy the relevant right to a more limited extent than others. Nor is it necessary to show that only persons of the particular race, colour or national or ethnic origin enjoy the relevant right to a more limited extent than others.³⁵ This point is illustrated by , where the State law prohibited possession of alcohol in a public place on Palm Island, whose residents were predominantly Aboriginal. The majority held that the State law would have been inconsistent with s 10 of the RDA had it not been a special measure. This was so notwithstanding that the law also applied to non‑Aboriginal persons on Palm Island and did not apply to regulate the conduct of Aboriginal persons outside of Palm Island.

Sikhs and Sikhism

63. The evidence in the primary proceedings consisted of affidavits of the appellant, who is a director of the Sikh Nishkam Society of Australia, and other members of the Sikh community. The deponents were not subject to cross‑examination and the State did not seek to adduce any contrary or additional evidence. The affidavits establish the following facts about Sikhs and the Sikh religion, which are not controversial in these proceedings.

64. Sikhism is a monotheistic religion that was founded in the Punjab region of South Asia in the 15th Century by Guru Nanak. The Sikhs (followers of the Sikh faith) share a religion, language, heritage and tradition. Sikhs have a distinct appearance as men and some women wear a turban. Sikhs have unshorn hair and men have a beard.⁴⁰

65. The initiation (Amrit Sanchar) of Sikhs is an important part of the religion, which can occur at any age when a person has the maturity to understand the Sikh code of conduct (Rahit Maryada) and is ready to commit themselves to living as an initiated (Amritdhari) Sikh. The initiation ceremony itself is conducted by five initiated Sikhs (the five “Beloved Ones”).⁴¹

66. Once a Sikh is initiated, they are required 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. The five articles of faith are a kachera (a special undergarment), kanga (a wooden comb), kara (an iron band), keshas (unshorn hair) and a kirpan (a ceremonial sword). When a person is preparing themselves for initiation they live as a Sehajdhari Sikh. Often Sehajdhari Sikhs also wear or possess the five articles of faith in preparation for the commitment they will make when initiated.⁴²

67. The kirpan is a small ceremonial sword made of either steel or iron. It comes in a variety of different shapes, sizes and degrees of sharpness/bluntness. The kirpan represents spiritual, religious and moral sanctions and rights and responsibilities of an initiated Sikh. In Queensland, the kirpan is worn sheathed and typically concealed beneath clothing and is not publicly on display. It is usually worn on a cloth sling called a Gatra, which holds the kirpan tightly and usually has a cloth loop to keep the kirpan within its sheath. The use of the kirpan in a non‑ceremonial manner would be inconsistent with the Sikh code of conduct.⁴³

68. One deponent estimated that approximately 80 - 90% of kirpans worn by initiated Sikhs in Australia are short and blunt without a cutting edge.

Issues not in controversy

72. I note two issues which are not in controversy between the parties.

73. First, there is no dispute that the appellant has standing to seek the declaratory relief applied for in the primary proceedings and the question of whether that relief should be granted is a justiciable controversy that constitutes a matter arising under the Constitution or involving its interpretation which this court has federal jurisdiction to resolve.⁵⁰

74. Secondly, it is common ground that Sikhs are “persons of a particular race, colour or national or ethnic origin” for the purposes of s 10 of the RDA. That is consistent with the ruling of the House of Lords, in Mandla v Dowell Lee,⁵¹ that Sikhs were a group of persons defined by reference to “ethnic origins” for the purposes of similarly worded provisions of the Race Relations Act 1976 (UK).

75. It is appropriate for this court to proceed on the above bases.

Proper construction of s 51 of the Weapons Act

76. There are two issues as to the construction of s 51 of the Weapons Act that are raised by the State’s submissions, which the appellant does contest.

77. First, the State says that a kirpan which is blunt and/or sewn into a pouch is not a “knife” for the purposes of s 51 of the Weapons Act. This is on the basis that a knife to which s 51(1) applies must have a sharpened point or blade that is reasonably capable of being used to wound or threaten to wound. The State contends that a blunt kirpan sewn into a pouch would not meet those criteria. That aspect of the construction of the Weapons Act forms the foundation for an argument that, because a kirpan is capable of being rendered to fall outside the scope of s 51 of the Act, s 51 does not provide for the relevant rights to be enjoyed by Sikhs to any lesser extent than other persons.

78. Second, the State says that, even in the absence of s 51(5), a Sikh with a kirpan would not have a reasonable excuse for physically possessing the knife in a school as it would not fall within any of the limbs of s 51(2) or s 51(4) of the Weapons Act. That aspect of the construction of the Weapons Act forms the foundation for an argument that s 51(5) does not take away from Sikhs any rights that they would otherwise have under the general provisions of s 51 of the Act.

79. For the following reasons, neither of the State’s arguments as to the proper construction of s 51 of the Weapons Act should be accepted.

General principles of statutory construction

80. Statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai:⁵²

“It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws … the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy.” (citations omitted)

81. The primacy of the language which Parliament has chosen to use was emphasised by French CJ, Hayne, Crennan, Bell and Gageler JJ in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd:⁵³

“‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.” (citation omitted)

82. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament’s intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.⁵⁴

83. Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions.⁵⁵ Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted.⁵⁶ Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.⁵⁷

84. The rules of interpretation referred to in Zheng include the common law “principle of legality”. This is the presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness. The principle of legality has been recognised as a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted.⁵⁸

85. However, the principle of legality operates as a presumption to be applied in determining objective legislative intention consistently with the general rules described above. It does not operate to shield fundamental principles where the terms, objects and context of the legislation being construed make it plain that the legislature has determined to abrogate the principles.⁵⁹ It does not authorise the courts to strain to place an artificial counterintuitive judicial gloss on statutes which departs markedly from the ordinary meaning of the statutory text.⁶⁰

Interpretive rule in the Human Rights Act

86. In its submissions as to the proper construction of s 51 of the Weapons Act, the State places significant reliance on the interpretive rule contained in s 48 of the Human Rights Act 2019 (Qld).

87. Section 7 of the Human Rights Act defines “human rights” to mean the rights stated in certain provisions, including s 19 and s 20 of that Act. Section 19 of the Human Rights Act relevantly provides that every person lawfully within Queensland has the right to move freely within Queensland. Section 20 of that Act relevantly provides that every person has the right to freedom of religion, including the freedom to demonstrate the person’s religion in observance and practice, in public or in private.

88. Under s 48(1) and s 48(2) of the Human Rights Act:

“(1)All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

(2)If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.”

89. Under s 8 of the Human Rights Act:

“An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

(a)does not limit a human right; or

(b)limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.”

90. Section 13(1) provides that:

“A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.”

Section 13(2) identifies factors which may be relevant in deciding whether a limit on a human right is reasonable and justifiable as mentioned in s 13(1) of the Human Rights Act.

91. In Momcilovic v The Queen,⁶¹ the High Court addressed a similar provision to s 48 of the Human Rights Act, namely s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The majority of the court emphasised that s 32 of the Victorian Charter was an interpretive provision which operated together with other rules of statutory interpretation and did not authorise the courts to effectively re‑write legislation to make it compatible with human rights. For example, Crennan and Kiefel JJ observed:⁶²

“Section 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes. Its terms identify an approach of interpretation which has regard to the terms and to the purpose of the statutory provision in question, as previously discussed. The statutory direction in s 32(1), that statutory provisions ‘must be interpreted in a way that is compatible with human rights’, is qualified by the recognition that such an interpretation is to be effected only ‘[s]o far as it is possible to do so consistently with their purpose’. This statutory direction seeks to ensure that Charter rights are kept in mind when a statute is construed. The direction is not, strictly speaking, necessary. In the ordinary course of construction regard should be had to other existing laws. The Charter forms part of the context in which a statute is to be construed. ... The process of construction commences with an essential examination of the context of the provisions being construed.

Where it is possible, consistently with a statute’s purpose, s 32(1) requires that all statutory provisions are to be read conformably with Charter rights. Section 32(3)(a) acknowledges that this may not be possible in all cases, by providing that s 32(1) does not affect the validity of an Act or a provision of an Act which is incompatible with a human right. It cannot therefore be said that s 32(1) requires the language of a section to be strained to effect consistency with the Charter. When a provision cannot be construed consistently with the Charter, the provision stands. … Such a provision reaffirms the role of the legislature and makes clear that a court’s role in ascertaining the meaning of the legislation remains one of interpretation.” (citations omitted)

92. I note that there is one difference between s 48 of the Human Rights Act and s 32 of the Victorian Charter. In Momcilovic, an issue arose as to whether, in determining whether a statutory provision was “compatible with human rights” for the purposes of s 32 of the Victorian Charter, the courts were concerned with whether interference with the human right was justified under s 7 of the Victorian Charter. Section 7 of the Victorian Charter (which is broadly equivalent to s 13 of the Human Rights Act) sets out when human rights may be limited. The court in Momcilovic divided on this question.⁶³

93. By contrast with the Victorian Charter, s 8 of the Human Rights Act specifically refers to s 13 in defining when a statutory provision is “compatible with human rights”. This would appear to make the issues raised by s 13 of the Human Rights Act relevant to the interpretive rule provided for in s 48 of that Act. However, this potential difference between the Victorian Charter and the Human Rights Act does not affect the character of s 48 as establishing one of the rules of statutory interpretation to be applied, with other rules, in determining the objective meaning of a provision.

94. In the present case, the rule of interpretation in s 48 of the Human Rights Act is of little assistance. It is apparent from the express terms of s 51(4) and s 51(5) of the Weapons Act that Parliament objectively intended to prevent the physical possession of kirpans in schools. The explanatory notes referred to at [49] above show that this decision was taken with an appreciation that the section potentially breached “FLPs” by interfering with an individual’s freedom to undertake genuine religious practices. Those promoting the Bill saw the safety and welfare of children attending Queensland schools as justifying this potential breach. The question of whether the provision was justified in the view of this court might arise if the court were to consider making a declaration of incompatibility under s 53 of the Human Rights Act. However, in interpreting a law designed to prevent the physical possession of knives for genuine religious purposes in schools, the weight to be attached to a presumption against interference with freedom of religion must be very limited. A law which expressly restricts conduct engaged in for genuine religious purposes necessarily interferes with a person’s freedom to demonstrate his or her religion in observance and practice, as referred to in s 20 of the Human Right Act.

95. In the present case, for reasons explained below, the objective meaning of s 51 of the Weapons Act is apparent from the language of the provision understood in its context and having regard to its purpose. Neither the principle of legality nor s 48 of the displace those considerations.

Is a kirpan a knife?

Need for a knife to be sharp

96. The term “knife” is a common English word denoting a cutting instrument consisting of a blade attached to a handle.⁶⁴ A knife may be sharp or blunt, large or small, and still be a knife as that term is commonly understood. As a matter of ordinary language, the reference to a “knife” in s 51 of the Weapons Act includes a kirpan, even when it is blunt.

97. The definition of knife in s 51(7) of the Weapons Act is inclusive rather than exclusive. The State’s argument in effect requires the word “includes” in that definition to be read as “means” or “means and includes”. Depending on the context in which it appears, a definition framed inclusively generally takes an ordinary word and adds to what is signified by the natural import of that word.⁶⁵ In the context of the Weapons Act, the definition appears to be intended to capture items which might not be knives in the ordinary meaning of that term, but which may be used to the same effect. Examples may include a makeshift prison‑style “shiv”, or a blade concealed in an item such as a walking stick.⁶⁶

98. It is unlikely that Parliament would have objectively intended the commission of an offence against s 51(1) of the Act to depend on the particular degree of sharpness of the blade of the instrument said to be a knife. Sharpness is a relative term, and there is no statutory test for the degree of sharpness required for a bladed instrument to constitute a knife. Further, even a small blunt blade can be used to inflict, for example, an eye injury. A blunt knife can also be used to threaten a person, who may be thought unlikely to closely examine the sharpness of the blade with which they are being threatened.

99. Further, any doubt as to whether a kirpan is a knife is removed by the specific reference to “a knife known as a kirpan” in the example provided in s 51(4) of the Weapons Act. That example is part of the Act and the provision in s 51(4).⁶⁷ That part of the Weapons Act indicates that a kirpan is a knife even though, on the evidence adduced in this case, most kirpans are blunt.

Whether a knife sewn into a pouch is a knife

100. As a matter of ordinary language, a knife remains a knife even though it is located in a place that is difficult to access. A knife sewn into a pouch may be difficult to access but it is still a knife within the ordinary meaning of that term.

101. Nothing in the definition of “knife” in s 51(7) of the Weapons Act suggests otherwise. The definition refers to a thing which is reasonably capable of being used to wound or threaten to wound anyone “when held in 1 or both hands”. The definition speaks to the capability of an instrument when it is held in one or both hands, rather than the ease with which it may be accessed so that it may be held.

102. There is nothing in the text, context or purposes of the Weapons Act which indicates that a knife sewn into a pouch ceases to be a knife for the purposes of the Act.

Is possession of a kirpan for religious purposes a use for a lawful purpose?

103. Section 51(1) of the 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. Section 51(2) and s 51(4) provide for what are reasonable excuses. Section 51(3) and s 51(5) provide for what is not a reasonable excuse.

104. These provisions as to the physical possession of a knife are made in an Act which has the object of preventing the misuse of weapons. A knife is a common implement that may be used as a weapon, to inflict a wound or other injury on another person either offensively or defensively, or as an everyday tool. Whether a knife is used as a weapon, as that term is ordinarily understood, may depend on an intention of the person in possession of the implement to use it to injure or threaten to injure another person.⁶⁸ A kitchen carving knife would not be regarded as a weapon when used for culinary purposes, even though the experience of the courts is that such knives can be effective lethal weapons.

105. In that context, s 51(2) refers to various uses of a knife for purposes other than as a weapon, such as performing a “lawful activity, duty or employment” or participating in a “lawful entertainment, recreation or sport”. The reference to “lawful” in s 51(2) excludes, as a reasonable excuse, the offensive use of a knife to injure or threaten injury, which would constitute an offence. It would also exclude possession of a “category M knife” (prescribed as a weapon) without a miscellaneous weapons licence. Section 51(6) provides that, in deciding what is a reasonable excuse for the purposes of s 51(1), regard may be had to whether the way the knife is held in possession or when and where it is held in possession, would cause a reasonable person concern that he or she, or someone else in the vicinity, may be threatened or harmed. Section 51(3), by excluding “self‑defence purposes”, indicates that physical possession of a knife to defensively injure or threaten injury is not a reasonable excuse. In this manner, s 51(2), s 51(3) and s 51(6) of the Weapons Act provide that it is a reasonable excuse to physically possess a knife for a range of reasons that do not involve using a knife offensively or for purposes of self-defence to threaten or harm others.

106. Section 51(2)(d), in providing that it is a reasonable excuse to physically possess a knife for use for a lawful purpose, is to be understood having regard to the above provisions and the general object of the Weapons Act. In that context, it does not require that the lawful purpose involve the use of a knife as a tool (which would be captured by earlier provisions). The physical possession of a concealed kirpan as a symbol of a religious commitment would, at least ordinarily, constitute a use of the knife for a lawful purpose (namely, religious observance). By making specific provision that physical possession of a knife in a public place for genuine religious purposes is a reasonable excuse, s 51(4) removes any doubt about that question in relation to the physical possession of a kirpan in public places other than schools. However, it does not detract from the “use for a lawful purpose” for which s 51(2)(d) provides a reasonable excuse.

Conclusion as to the application of s 51 to kirpans

107. For the above reasons, a kirpan is a “knife” for the purposes of s 51 of the Weapons Act whether it is blunt or sharp and whether or not it is sewn into a pouch. But for the specific provision made by s 51(4) and s 51(5), possession of a kirpan in a public place or school for religious purposes, without any intention to use it either offensively or defensively to threaten injury or harm, would, at least ordinarily, constitute a reasonable excuse under s 51(2)(d) of the Weapons Act. However, s 51(4) specifically provides for physical possession of a kirpan in a public place other than a school for genuine religious purposes to be a reasonable excuse. Section 51(5) specifically provides that genuine religious purposes are not a reasonable excuse for physically possessing a knife in a school. Therefore, subject to the operation of s 10 of the RDA, physical possession of a kirpan by a Sikh in a school will constitute an offence against s 51(1) of the Weapons Act.

Operation of s 10 of the RDA in this case

108. Section 10 of the RDA does not give Sikhs or any other ethnic group the absolute rights of freedom of movement and freedom of religion. Rather, it gives Sikhs the enjoyment of those rights to the same extent as persons of other ethnic origins. The rights of freedom of movement and freedom of religion are to be exercised by all people in the community in a manner that is consistent with the requirements of the general criminal law.

109. In my view, s 10 of the 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. Such a law may only impact the religious activities of those persons, as prohibition of conduct that does not form any part of other groups’ religious beliefs will have no impact on the exercise of freedom of religion by persons in those other groups. However, that fact does not mean that persons of the particular ethnic origin whose religion advocates that specific conduct do not enjoy freedom of religion to the same extent as other persons in the community, who are likewise prohibited from engaging in that conduct. All groups enjoy freedom of movement and religion in a manner that conforms to the requirements of the general criminal law.

110. Therefore, provisions such as those which impose a general restriction on bringing knives on to an aircraft are not inconsistent with s 10 of the RDA. Similarly, a general weapons offence such as that contained in s 51 prior to the 2011 Amendment Act may be consistent with s 10 of the RDA even if it did impact on the capacity of Sikhs to carry a kirpan in a public place or a school. Such laws exist in other Australian States and Territories. Some make specific provision allowing the possession of a knife or weapon for religious purposes as variously described,⁶⁹ while others contain a general requirement for a lawful excuse.⁷⁰

111. The vice in s 51 of the Weapons Act is rather to be found in the specific provision in s 51(5) that it is not a reasonable excuse to possess a knife in a school for genuine religious purposes. Such a provision is not found in any of the other State and Territory legislation referred to in the previous paragraph.

112. As noted above at [60], in determining whether s 10 of the RDA is engaged, the court must look to the practical operation and effect of the law.

113. Section 51(5) qualifies the general operation of the offence created by s 51(1) of the Weapons Act in a way that is particularly directed to Sikhs. Section 51 of the Weapons Act does not contain a general prohibition against bringing knives into schools. Knives may be brought into schools without committing an offence for a variety of reasons which do not involve using a knife offensively or for purposes of self‑defence. For example, a parent may send their child to school with a pocketknife for utility purposes or a paring knife to cut up fruit at lunchtime without committing an offence against s 51(1). However, a Sikh parent is prohibited from sending their child to school with a kirpan, which may be much less dangerous than a pocketknife or paring knife. That is so despite kirpans generally not presenting a greater danger than the many other kinds of knives that s 51 does not prohibit from being taken into schools for a variety of non‑religious reasons. By targeting the physical possession of a knife in a school for religious purposes, when other uses which do not involve using a knife offensively or for purposes of self‑defence are not prohibited, s 51(5) of the effectively singles out Sikhs for differential treatment. There is nothing before the court to suggest that there is any other significant group in the community whose religion involves physical possession of a knife. The practical operation of s 51(5) is the same as if it had provided that a Sikh does not have a reasonable excuse to possess a kirpan at a school.

Orders

123. For the above reasons, the appeal should be allowed and the order of the primary judge dismissing the application in the primary proceedings should be set aside.

124. In substitution, a declaration should be made that s 51(5) of the Weapons Act is inconsistent with s 10 of the RDA and, by reason of s 109 of the Constitution, is therefore invalid. That was the declaration sought by the appellant’s application in the primary proceedings, which reflects the extent of the inconsistency between s 51 of the Weapons Act and s 10 of the RDA. The operation of the balance of s 51 does not depend on s 51(5). It cannot be concluded that the balance of s 51 was intended to operate only with s 51(5) so that s 51 has no valid operation once s 51(5) is found to be invalid.⁷⁵

125. In accordance with the parties’ agreement,⁷⁶ the primary judge’s order that there be no order as to the costs of the primary proceedings should not be disturbed, and there should be no order as to the costs of this appeal.

126. The formal orders should therefore be:

The appeal is allowed.

Order 1 made by the primary judge on 30 September 2022 is set aside and the following order is substituted:

It is declared that s 51(5) of the Weapons Act 1990 (Qld) is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) and, by reason of s 109 of the Commonwealth Constitution, is therefore invalid.

There is no order as to the costs of the appeal.

Footnotes

1. (2013) 252 CLR 168, [4]. ↩

2. Gerhardy v Brown (1985) 159 CLR 70, pp 85-86 per Gibbs CJ. ↩

3. Gerhardy v Brown, above, p 127. ↩

4. (2003) 217 CLR 92, pp 131-132. ↩

5. (2021) 95 ALJR 911, [30]. ↩

6. Cf Brennan J in Gerhardy v Brown (above), p 125. ↩

7. [1983] 2 AC 548. ↩

8. See for example the Sex Discrimination Act 1984 (Cth); the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth). ↩

9. Assistant Professor Alice Taylor, Bond University, Anti*‑*Discrimination Law as the Protector of Other Rights and Freedoms: The Case of the Racial Discrimination Act, (2021), 42(2) Adelaide Law Review, p 405, p 408. ↩

10. Above, p 85. ↩

11. Above, 120ff. ↩

12. Section 10 may operate to confer rights on persons who do not enjoy them, or, if a State law impedes the enjoyment of a right by persons of a particular race, s 109 of the Constitution will operate so that the State law is to that extent invalid – see the discussion by Gageler J in , above, [303].