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Religious Rights in Australia

Pagans and the NSW Knife Laws

The following information is offered as a guide and is not to be taken as any sort of legal advice. This text should be appearing in the next edition of "Pagan Times". (I didn't write this, there was no atrribution on the copy forwarded to me - Laren)

This article is in response to a number of pagan friends who've expressed fears as to how the new N.S.W. knife laws impact on their possession of ritual blades (athames). This article was prepared using the Act itself, a government information kit, the police services own internal training package, and the assistance of a Senior Sgt. Police trainer including discussions with police who will be enforcing this act 'at the coalface'.

'But constable, it's not a knife it's my Athame.'

The N.S.W. Public Safety Act came into force on the 1st of July 1998. The new Act permits police to demand the name and address of any person, to search any person and confiscate any kitife or weapon found in their possession. The possession of a knife in any school or public place without a lawful excuse is an offence. Refusing a second request to be searched is an offence. Previously, searching was legally restricted to persons who had already been arrested. The type of search permitted is a pat-down (or metal detector) only, however, you can be asked to remove your over-coat, or coat. If you refuse they will ask again under this Act. A second refusal will probably result in arrest. As a person in custody, a strip search at a police station is then mandatory. Refusing to provide personal particulars is an offence. Whether or not one agrees with these provisions, the act exists and much of the advice given in the 'know your rights' booklets produced in the 1980's is now obsolete˙ So, what is a lawful excuse for carrying a blade? The Act specifies five exemptions:

  1. Genuine occupational use. Abattoir workers, chefs, carpet layers etc, all have very expensive knives and generally take them home. Carrage to and from work is legal.

  2. Legitimate sporting/recreation activity. Martial artists, metal weapons re-enactment groups, campers, fishers etc. may all possess blades to indulge in their sport/hobby.

  3. Food preparation. This law will not impact on people using knives to cut fruit, spread butter & generally prepare food on a picnic, street stall etc.

  4. As part of a uniform. Scottish pipe bands wear a dirk in theft sock. Prison officers carry a small 'noose cutter'. Members of the Armed Forces often wear a bayonet for public parades.

    and finally,

  5. Genuine religious purposes. Every Sikh male is required to carry a knife to symbolise his willingness to defend his faith. (Although in practise this usually manifest itself as a small symbolic blade). The Athame, or ritual blade of the pagan is most defineately covered by this exemption.

However... the Act places the onus of proof on the accused, and it appears that the key to these exemptions is context. So while a butcher needs his knives whilst working and commuting, he would be hard pressed to prove occupational necessity whilst sitting in a pub. Likewise a martial artist can posses a samurai sword, but if training nights are Mon.& Wed., and the sword is found in his car on a Friday night, then his exemption probably won't hold water. This was the actual circumstance of the first charge laid under the Act. The guy didn't front court and was fined in his absence - (Sword to be destroyed.) The same may be said for a picnicker using a bowie knife to butter saos. The picnicker may have some difficulty justifying their choice of cutlery.

So while there is no legal impediment to a pagan transporting their Athame to & from circle or festivals, if they stop off at timezone, or the pub, the context would suggest that it is not being held for a genuine religious purpose and they leave themselves vulnerable to, at the very least, confiscation. While this law may prove inconvenient, it's now a fact of life that an extra burden of responsibility is placed on the owners of legitimate blades.

While the law doesn't differentiate between wearing a blade and having one in your bag, (both being possession) I would suggest that wearing it on your belt publicly is tantamount to erecting a neon sign asking the police to question, search and possibly confiscate it. Not everyone has that much time to waste which brings me to my next point.

Dealing with the Police

This law was introduced (hurriedly) following the stabbing murders of two police, and the less publieised non-fatal stabbing/cutting of a number of others. The new law gives them sweeping powers. How they use these powers will depend to a great degree on your reaction. For the purpose of this exercise we will assume you have been stopped by the police on your way to/from circle. Your blade will of course be snugly wrapped up in your bag in company with other ritual items (clothes, cord etc). As well as placing the item in its proper context, this will later be evidence that the blade was being carried for the stated ritual purpose. Police have been instructed to introduce themselves, and advise you that they wish to question you under this new Act.

Questioning

Avoid becoming emotional. (A magical practitioner should be able to exercise control). It may be that you have been targeted through a combination of your appearance and the personal prejudice of the officer. On the other hand an old lady may have just been killed nearby and they're questioning as many people as possible. Now while your not obliged to tell them any more than your name and address, it is probably in your interest to eliminate yourself from their enquires at the earliest possible stage, telling them where your going to/coming from will also validate your reason for possessing the blade which they are about to find. If you refuse to provide your name and address, you may be arrested.

The Search

An initial request to search will generally be casual eg: '..well we'd like to look in your bag' or 'Are you carrying anything you shouldn't be?' (A formal request will follow any refusal.) At this point be up-front and honest. You have the blade for a legitimate purpose and are within the law. A good response would be "No, (ie' nothing I shouldn't) but I do have my ritual knife in my bag" Ask them if they would like you to remove it, or if they would rather do it themselves. Criminals otfen plant syringes, razors etc in their bags as booby traps for police. On the other hand if someone actually has just been found murdered, they may be disinclined to let you reach into your bag for a knife. While this action may seem insignificant it will help by sub-consciously taking some of the tension out of the encounter.

If they ask you to unpack it don't whip it out and pass it to them. Unroll it in front of them. State that as it's a religious accoutrement, you'd prefer that they didn't touch it. (They probably will anyway but you are establishing that it is a genuine religious article and not just another shiv). The questions will then revolve around why you have it with you at this time. If you answer that you're commuting to/from circle, you should have no problems. (If you add" .... and to defend myself with." then you have just invited old man trouble to stay for the holidays.) At this juncture they may make some notes, check your story, and that should be the end of the matter. However ....

What if the cop in question is a religious bigot? What ff they were away sick when the new law was explained. What if the old lady' s body had a huge pentagram carved into it? In that case the police might:

a) Confiscate the blade

or

b) Arrest you AND confiscate the blade.

Confiscation

If your Athame is confiscated, you have 28 days to attend a police station, fill out a pro-forma application stating your details, the name rank & station of the officer and the reason why your blade should be returned. The local commander has the authority to return the blade. Should return be refused, you then have a further 28 days to appeal to the local court. A decision is made by a magistrate sitting alone. If you do not so apply the blade is then disposed of.

Arrest

If you are arrested there is no mileage to be had in throwing a tantrum. Even though you were within the law and the police are in error, the arrest alone is not necessarily illegal. It is pointless stating your objection to being arrested, (this goes without saying, no one wants to be arrested), and the subtle difference between objecting and resisting (another offence) are usually lost on the average copper. I've never yet known a copper to 'unarrest' someone. The place to argue the matter is in court. The same holds for friends accompanying you who may be tempted to play tug-of-war with your body. They will be far more use to you taking notes (notes made at the time are good evidence) and arranging bail than sitting next to you charged with hinder/obstruct police (another offence).

Bail

Unlike the sheriff in old movies about the Deep South, police don't want to keep you in custody a minute longer than than it takes to identify and charge you. For starters they have to allocate someone to watch over you, and secondly if any harm comes to you in custody the guy in charge usually wears the blame. However, before they give you bail they need to satisfy a few criteria.

1. That you'll turn up to court.

You can satisfy this condition by having an address (or the address of a friend if your from out of town) and no prior instances of not turning up to court. ( I've assumed from the outset that your'e law abiding.)

2. You'11 commit no further offences whilst on bail.

If they've confiscated you blade you can hardly re-offend with it.

3. The seriousness of the offence.

This is not held to be an offence without an assumption in favour of bail.

Any assistance you can give them towards achieving bail will save you an uncomfortable and depressing night. Steadfastly refusing to give your name and address garrentees that they have to hold you.

The Charge

On arrival at the station you should ask to speak to a senior officer about the charge. Explain to them what has happened and that you believe you have a lawful excuse to carry the blade, and if possible give them the contact number of a responsible pagan where they can contirm your story. Advise them that you explained this to the arresting officer, but do not engage in blaming, or complaining about the arresting officers prejudice. Now is not the time or place. Above all remain calm and in control. You might well be released without being charged. If so and you've been calm and co-operative you will quite possibly be given a lift back to your destination.

If not, your next step is to have your solicitor approach the police prosecutions branch to drop the charge. These people are experienced professionals trained to recognise a charge destined to fall on it's arse. In the unlikely event the police do go on with it, the matter will be determined by a magistrate. Remember though that the act states that the onus of proof is on the accused to prove the validity of their exemption. Your solicitor will tell you what kind of evidence is required. eg: testimony of circle members, encyclopedia references, photos of the Athame in use.

Pagans come from all walks of life. We vote, we work and we pay taxes. We have the same responsibilities towards, and are entitled to the same protection from the law as any other member of the community. The Police Service has carefully briefed it's members as to the purpose of this Act, and how it is to be utilised. Their oath of office contains the phrase "... without malice or ill will..."

If an officer makes derogatory or insulting comments about you faith, or worse, arrests you for carrying an Athame in clearly legal circumstances, lodge a complaint with their station commander (usually an Inspector). There is also the police integrity branch and the Ombudsman. The State Ombudsman has been specifically charged to oversee the use of this Act. The law has been gazetted for an initial period of 12 months, with the Ombudsman to report on any police abuse of their discretionary powers.

**** If you get arrested while hooning around a public place with your Athame hanging off your belt then your buggered and nothing that I've written will be of any help to you.

Page Updated 2nd April, 2000
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