Wednesday, May 18, 2005

Discrimination is not consensus

A Year 11 female student at a state school is punished with a detention for refusing to wear the school uniform. Fair enough.

A Year 11 female student of Shiite Muslim background attending a state high school in the western Sydney suburb of Auburn is placed on detention for wearing an overcoat. Fair enough?

Yes, according to shock jocks and tabloid columnists. No, according to Premier Carr. And no, it seems, according to NSW Anti-Discrimination Act 1977.

The case of Yasmin Alttahir has raised some important questions and has again led to calls for a review of anti-discrimination laws.

It seems clear that the school authorities did engage in unlawful discrimination under the provisions of the NSW Act. They clearly treated someone less favourably for wearing a symbol of her “descent, … ethno-religious or national origin” (to quote the words of Section 4 of the Act).

Cultural Context

If this incident had occurred during the early 1970’s, it may have been acceptable. But almost 3 decades have elapsed since the Act was passed. And it is a poor reflection on the Department that it cannot properly train and supervise its staff to ensure that such blunders are not made and the Government is not exposed to legal liability.

It is not unusual to see women in Auburn of various racial and faith backgrounds covering their hair and wearing loose-fitting clothes. Indian women, whether Hindu, Muslim, Sikh or other denomination tend to wear loose-fitting ‘shalwar kameez’. Catholic and Muslim women cover their hair. I have even seen the State MP for Auburn, Barbara Perry wear a head scarf when visiting the Gallipoli Mosque or the Turkish Welfare Centre.

Women who choose to dress in a certain way should not be subject to harassment, discrimination or inferior treatment. Australians of all denominations were offended when a young sheik from Liverpool made his remarks some weeks back. Regardless of what faith you choose to follow, the common denomination of all sensible people is that a woman can dress howsoever she wishes.

The Law is the Law

Section 17 of the Anti-Discrimination Act clearly applies rules prohibiting racial discrimination (including on the basis of ‘ethno-religious origin’) to educational institutions. Its provisions include a prohibition on “subjecting the student to any … detriment”. One would think that punishing a student with a detention may constitute a detriment. Where the detention arose from her dress, and where this dress is regarded as part of her ethno-religious origin, the school would be breaching the Act.

Similar provisions apply at Commonwealth level. The case law is clear. Yasmin’s case is not one of indirect discrimination where there might be some exemption or excuse. She has been placed on detention precisely because she is wearing a garment. That garment is not uniform. But ...

The departmental policy says that uniform is mandatory. But departmental policies developed by unelected bureaucrats cannot, under our legal system, be allowed to override the will of Parliament, the will of all New South Welshmen as expressed by their elected representatives.

Imagine if …

Muslim women in Auburn run accounting practices, work as solicitors, manage shops and arrange home loans. Two Muslim women can be elected to Auburn Council without their religion being made an issue. The covering page of the Council’s own website shows a photo of Muslim school children in the library (including girls wearing headscarves). And yet a Muslim student cannot wear a jacket over her uniform.

Imagine if the same scene were repeated in the Eastern Suburbs. Imagine if a Jewish boy were stopped from wearing a traditional cap. There would be community outrage. And rightly so.

Imagine if Sikh diggers were again refused permission to enter an RSL club without taking off their turbans. Imagine if their children were forbidden permission to attend state schools without removing their turbans. There would be an outcry. And rightly so.

And here’s one for a certain shock jock. Imagine if a young boy attending a high school in Paddington was refused permission to wear pink shorts to school on the Friday before the Gay & Lesbian Mardi Gras? Imagine if he complained, and if the media took up his case? Would the shock jock in question complain about minorities refusing to confirm?

If you don’t like it …

Some will argue that, as a matter of policy, state schools should insist on strict adherence to school uniform and should not make allowances for religion. Yet overriding any policy must be the will of Parliament. And policies developed by unelected bureaucrats cannot be allowed to override Acts of Parliament passed by elected legislators.

If some provisions of the Anti-Discrimination Act are wrong, people can lobby their MP’s to revoke them. Good luck if this happens. The NSW Act represents almost 30 years of Parliamentary consensus. Neville Wran introduced it. Nick Greiner and John Fahey passed on the baton, albeit with strengthened provisions. Bob Carr now carries it. And there is no finishing line in sight.

Of course, there is always Fred Nile MLC, Aussie Christianity’s answer to Feiz Mohamad. Like Feiz, Fred has been quoted as saying that judgments can be cast on women because of how they dress. Fred says that women who wear head scarves and long loose overcoats should be banned from doing so in case they are hiding bombs and weapons.

I really hope Fred’s views do not represent a growing consensus. But in case they do, Fred and his team will have to come up with a proper regime of lawful discrimination with more exceptions than rules.

That can be Fred’s challenge. But whilst in place, the Act must be followed. The law is the law. And Yasmin’s choice is clearly the will of the Parliament.

© Irfan Yusuf, 2005