A stealthy erosion of individual autonomy

16 March 2006

THE PRIME MINISTER recently claimed that many Australians, including Muslim women, find the wearing of the full burqa confronting. Last year, when Bronwyn Bishop called for Muslim headscarves to be banned in public schools, he did not disagree on principle, but merely said that it would be impractical since it might also affect Jews and Sikhs. The prime minister has now rightly made it clear that Australian law should not ban people from wearing what they want.

Other countries have not been quite so committed to the freedom of people to choose what they wear, including to express their religious beliefs. There have been heated debates in France, Belgium, Germany and Britain about whether to ban Islamic dress in schools or public institutions.

A few months ago, sixteen judges on Europe’s highest human rights court upheld a Turkish university’s ban on women wearing the Islamic headscarf on campus. The court found that Turkey was entitled to protect its secular democracy from religious extremism. Banning the headscarf was thought necessary to protect other students from being pressured to wear the headscarf or convert to Islam. Such a ban was considered a legitimate restriction on freedom of religious expression.

One judge disagreed with the other sixteen, who unduly deferred to Turkey’s view of what was necessary to counter religious extremism. The judge correctly observed that the case involved a modern, well-educated Turkish woman who voluntarily chose to wear the headscarf. There was no evidence that her wearing it had pressured others to adopt it or provoked extremism on campus.

Even if the reasoning of the majority of judges is accepted, the decision does not apply to Australia’s circumstances. Australia faces nothing like the threat of extremism in Turkey, which would be necessary to justify banning Islamic dress here. There is also no evidence that banning Islamic dress would reduce extremism. To the contrary, a ban might provoke a backlash which encourages greater extremism.

Clearly, people have no absolute right to wear whatever they like in any situation. Occupational health and safety laws sometimes require dress codes, while it may be necessary to remove head coverings to identify people on passports or drivers licenses.

If it was shown that banning Islamic dress would appreciably reduce extremism, there might be a case for restricting it. No such evidence has been shown, and finding someone’s clothing confronting is the flimsiest reason for banning it.

People are entitled to freely express their personal and religious identity through their clothing, and to have their choices respected. Even if their clothing is not banned, people should not be told by their prime minister that their clothing is confronting.

Such a statement reflects a crude aversion to the visible signs of difference, which is the slightest step away from the more sinister impulse to eradicate that difference. It sends a message to migrants that they are only welcome in Australia as long as they leave their differences and their clothing at the door.

Such incivility and intolerance may play well to parts of the electorate, particularly those obsessed with policing the boundaries of a mainstream Australian identity. But no respectable national identity can be built upon the exclusion and marginalisation of cultures that are different to ours.

An identity of that kind fails to value individual autonomy and inevitably compromises liberal democracy itself. Ultimately it produces what the poet Kenneth Slessor called a country of whey-faced anonymity.

In these circumstances, Australians are entitled to ask who comes next. Will Mr Howard tell orthodox Jews that their beards are confronting? Of course, the law will not require them to be shaved off. But know that your beards are not welcome here.

Ben Saul teaches law at the University of NSW and is director of the Bills of Rights Project project at the Gilbert + Tobin Centre of Public Law. This article first appeared in the Canberra Times.

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Ben Saul, 2006, A stealthy erosion of individual autonomy, Canberra Times, viewed 27 April 2017, <http://apo.org.au/node/6247>.

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