In November 2011 the Law Enforcement (Powers and Responsibilities) Act 2002 and other laws were amended to confer powers on police officers, juvenile justice officers, court security staff and authorised correctional officers to request the removal of face coverings in certain circumstances.

The Police Commissioner has issued Commissioner’s Instruction 11/21 “Power to Require Removal of Face Coverings for Identification Purposes” outlining the changes to the law and procedural requirements.

A policy on Identity and Full Face Coverings (attached) was developed by the Community Relations Commission in consultation with community and religious leaders, and relevant public sector agencies. The policy explains circumstances in which a person may be requested to remove a face covering to establish identity and sensitivities that may apply.

This policy has been endorsed by the NSW Government.

Ministers should ensure that all agencies within their administration are aware of the contents of this Memorandum and comply with the attached policy.

Barry O’Farrell MP
Premier

This Memorandum has not superseded any other Memoranda.

Policy on Identity and Full Face Coverings

Policy Background

We live in a society in which we are free to signal our individuality, communicate our culture and express our faith in many different ways. Individuals can choose to wear garments, equipment and accoutrements, such as helmets, masks, scarves, veils and niqāb, which cover the face. At the same time, we are concerned individually with our safety, and collectively with our security. In order to improve our safety and security we cooperate.

By belonging to a society that provides us with security, works to keep us safe, and will generally assist us as we tackle the trials and tribulations of life, we undertake to cooperate in the work required to achieve these public goods. Individuals therefore share in the benefits and the burdens, the rights and the responsibilities, of collective life.

Identity, the distinguishing characteristics of an individual by which that person is definitively recognisable or known, enables full participation in social life. Knowing who someone is in order to allocate a benefit, extract a due, make a complaint, allege an offence, deliver a good or service, hand over a trust, establish a right, check bona fides, and repay a good turn, is integral to the trust, reciprocity and goodwill necessary to a collective life.

Establishing identity is, in the course of day to day life, relatively easy. We recognise faces, voices, places, things, uniforms and the like. In special circumstances we can identify individuals through palm-prints, fingerprints, eye-scans and DNA. However, in our day to day activities – picking up kids from day care, sitting for an exam, obtaining a driver’s licence and travelling internationally – we mostly rely on face recognition.

Each person is unique and identity is a passport to being treated with the respect and consideration that is due to all human beings. Some people closely guard their identity and privacy is often highly valued. Proof of identity should only be required when circumstances compel. A person’s privacy and any choice to wear partial and full face covering garments or equipment for health, safety, cultural, religious or other reasons must be treated with respect and consideration.

Policy Intent

In our society, individuals need to be able to be identified; both those representing the government and those accessing or receiving government-provided, identity-dependant goods and services. There are different ways of establishing a person’s identity and the most suitable method varies, depending on the situation.

In some circumstances, a person’s facial features are used to identify them. In these situations, individuals wearing full and partial face covering garments may be requested to reveal their face for the purposes of identification.

A request to remove a face covering to establish a person’s identity must be balanced with respect for the person’s decision to wear a full or partial face covering garment or equipment.

For the purpose of this policy “the face” is defined as the area from the bottom of the chin to the top of the forehead and to both edges as determined by the ears.

Policy

A person may be required to remove garments, equipment and accoutrements, such as helmets, masks, scarves, veils, niqāb and balaclava, that obscure the face when requested by a police officer, court security officer, or other officer with the power under legislation to do so.

In other circumstances, a person who wishes to access a service or facility where it is necessary to ascertain their identity may be requested to remove a face covering. It should be explained to the person that they may choose not to remove a face covering, however they may be denied access to that service or facility. This includes

• when sitting for a photograph for the purposes of licensing or permits issued by any New South Wales government agency;
• when accessing services from a New South Wales government agency where it is necessary to ascertain a person’s identity;
• when accessing any government office, place, space or facilities where it is necessary to ascertain a person’s identity;
• when having a document witnessed by a Justice of the Peace;
• when required to provide proof of age;
• as part of an accepted medical procedure.

Health, safety, cultural and religious considerations should be taken into account before requesting someone to remove a helmet, mask, scarf, veil, niqāb, balaclava or other face covering. Where appropriate, other means of identification should be considered.

Only a person with the authority to establish identity should request the removal of a face covering. The request should only be for a face covering to be removed for the period of time needed, and to the extent necessary, to establish identity. A person should not be requested to remove garments or equipment that cover the person’s hair if their face is otherwise visible.

Where operationally feasible, a face covering worn for reasons of modesty should only be removed in the presence of persons of the same gender, preferably in a place where only the identifier can view the face of the person to be identified.

Implementation

The Community Relations Commission and Principles of Multiculturalism Act 2000 (the “Act”) sets out the principles of multiculturalism, including the principle that institutions should respect and make provision for the culture, language and religion of others within an Australian legal and institutional framework (section 3(1)(d)).

Public authorities are required under section 3(4) of the Act to observe the principles of multiculturalism in conducting their affairs, and the Community Relations Commission assesses agencies’ effectiveness in this regard through agencies’ Multicultural Policies and Services Plans and annual reporting requirements.

Accordingly, agencies are required to incorporate the provisions of this policy into their respective Multicultural Policies and Services Plans.