Wednesday, 6 July 2011

Burqa bathos

The Herald-Sun today ran an article about the NSW push to legislate to compel burqa-wearing women to show their face to police when requested to identify themselves. (Presumably it will also apply to the niqab. This diagram highlights the differences.)

Strangely, we haven't had such a push to combat the evil of helmet-wearing motorcyclists; or a requirement that men remove facial hair if they've grown a beard since their licence photo was taken; or a power to compulsorily remove sunglasses that hide the wearer's eye colour from observation; or a power to require drivers of darkened limousines to fully wind down their windows.

That's probably because the law in this state is broad enough to cope with a person who refuses to identify themself when the police are able to require they do so.

Police have a general power to stop motorists and require their name and address under Road Safety Act 1986 s 59. That power also provides for police to require the person to produce their driver licence or permit. Note the use of the possessive their: not somebody else's licence, but their licence. If a police officer can't see the face of the person who produces the licence, in appropriate circumstances they might not be satisfied the licence is in fact that of the person behind the wheel.

Section 59(5) provides that police can give reasonable directions to carry out the provisions of the Act or regulations. I reckon that could extend to, "Take your helmet off please Sir so I can see your face matches your licence." Or, "Please remove your niqab Ma'am so I can see your face matches your licence."

There's also a similar but less expansive power in s 76 for offences committed against various regulatory offences under the Road Safety Act. It deals with a person who is requested to give his or her name and address — here too the pronouns are used in the possessive sense — and who refuses or fails to, or provides one reasonably suspected of being false.

In any event, if the police can't be certain of who they are dealing with, they aren't in any position to ensure Mr Anonymous' attendance at court and so would be permitted to arrest for the purpose of ascertaining who it is they intend to summon or bail.

There is also a general arrest power in s 458(1) of the Crimes Act 1958, where police can arrest a person for one of four prescribed reasons, one of which is to ensure the appearance of an accused person at Court. An essential element of any criminal charge is that of identity — proving that the accused person at Court is the same person who allegedly performed the conduct that is the subject matter of the charges. Those two issues — ensuring attendance, and establishing identity — are so intertwined that they are frequently blurred, and only sometimes are discrete issues.

That power can also be exercised in conjunction with the power to require a person to state their correct name address — again, note the use of the possessive — in s 456AA of the Crimes Act. An offence against that section could then justify the use of the s 458 arrest power.

In extreme cases, the offence of being disguised with unlawful intent contrary to s 49C of the Summary Offences Act 1966 might even apply. That's probably more likely for the bandit with a motorcycle helmet or balaclava...

It might be argued there's some uncertainty in all of this, and that legislative reform would remove that doubt. I'm not sure we have a major problem with recalcitrant and subversive niqab and burqa wearers in Victoria. (The original case involving Carnita Matthews' was heard in the Local and then District Courts: there are no written judgments we can refer to, just media reports such as this one in the Sydney Morning Herald. I wonder if the investigation would have proceeded similarly for a helmet-wearing motorcyclist?)

If the Parliament does decide to act, I imagine the only legislative amendment that would be required would be in the name-and-address provisions above, providing a power to require a person to remove any article that hides or conceals their features or impedes the ability to visually identify them.

But surely the better option would be to educate drivers about their obligations, and to better educate or at least reassure the police about their use of their existing powers? Oh, and more funding from the government so all police cars have video cameras, as in the Carnita Matthews case. Not only does it act as a check on police excess, it also acts to vindicate them when falsely accused by wrongdoers.


Anonymous said...

You think like I do & that's how I briefed.

concealed behind a burka said...

Spot on. The need for in-car video is particularly important in cases such as these. In the absence of the NSW policeman's video evidence, his reputation and career would have been thrown into question because of the defendant's calculated cries of "racist" and tricky playing of the islamaphobia card.

LabRat said...

Well said Elucubrator! NSW politics make a legislated response to every problem or issue compulsory. But it isn't a problem unique to our northern neighbours, and I fear it is getting worse.