Remember Carnita Matthews? She was the Muslim mother of seven who was jailed at first instance for falsely accusing a policeman of trying to tear off her face veil after he pulled her over for a random breath test in Woodbine in 2010.
Patrol car video showed police had done no such thing and Matthews was sentenced to six months in jail for making a false complaint.
But her conviction was overturned in the Federal Court, in part because the person who signed that false complaint against the police was wearing a niqab which covered her face, and the Justice of the Peace who witnessed the signature could not prove it was Matthews’.
The subsequent outcry forced the attorney-general at the time, Greg Smith, to require Muslim women and everyone else to remove face coverings to prove their identity to police or public officials.
Which brings us to the point.
The law may have been changed three years ago. But it doesn’t mean that Justices of the Peace, the officials who sign off on 8.5 million legal documents every year, have a clue about who is still entitled to cover their face, under a loophole exempting people with “special justification”.
For furious Harold Scruby, a JP of more than 40 years, the practical effect of the law change is just confusion. Whether because of political correctness or religious sensitivity, it obscures the most crucial function of a JP: identity verification.
“If somebody comes into my office and is wearing a balaclava ... I shouldn’t be required to give them the benefit of the doubt.
“Why should people who are not wearing a face covering be required to produce an identification document, when those wearing a face covering are required to produce nothing. It does not even require them to talk.”
When JPs witness signatures for a gun licence or a passport or a simple statutory declaration to prove a person’s identity, they must certify that the person signing the document is who they claim to be.
And yet the standard Statutory Declaration form still contains the option of certifying a person’s identity without seeing their face.
The JP can choose between two options: “I saw the face of the person OR I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification for not removing the covering.”
Scruby says he doesn’t “recall any instructions about how to deal with this ... I took it to my lawyer and he can’t believe it ever got through parliament.”
As it happens, the explanation of the exemption is buried in Appendix E, on page 78, of guidelines for JPs, on the Attorney-General’s website.
“Special justifications”, which allow people to keep their face covered while being identified, include a “legitimate medical reason”. According to the Ombudsman, there is the option of adding other exemptions in the future through new regulations.
At present, Appendix E states: “Religious beliefs or cultural practices are not a special justification for a person not removing his/her face covering. However, when you ask a person to remove his/her face covering, you should make reasonable efforts to accommodate the person’s beliefs.”
For Scruby, it’s not good enough. He doesn’t see how he is supposed to decide whether a person is justified in covering their face.
“Why should I be put in this position? It shouldn’t be up to me to worry about all this. We should be able to rely on the document itself, and not have these unspecified terms and conditions.”
He is also concerned about “potential liabilities” if he refuses to witness a signature because someone’s face is covered.
“Am I breaking any discrimination laws? [What happens] if that person is not the person they have claimed to be and goes on to commit a serious crime?”
The roughly 90,000 JPs in NSW are volunteers who must be of good character and be nominated by a member of parliament for the important unpaid role.
They act as independent witnesses to the truth, the crucial cogs in everything from job and passport applications to financial transactions.
But if they can’t do their job properly, the integrity of the system collapses.
Scruby has written to the Prime Minister, and the Premier and the new National Counter-Terrorism Co-ordinator, Greg Moriarty pointing out the confusion in the facial covering legislation.
“JPs should never be put in a position where they have to give anyone the benefit of the doubt,” he says.
The Martin Place siege inquest reveals every day what happens when a trusting society confers the benefit of the doubt too easily.