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LEGALDATE

Volume 34, Issue, 3 2022

LEGALDATE

Volume 34, Issue 3, 2022

Cultural diversity and legal pluralism in Australia

Dr Anne Macduff, ANU College of Law

Introduction

What is cultural diversity, and to what extent does current Australian law recognise cultural diversity? The Cambridge Dictionary defines culture as an umbrella term which captures ‘a way of life, especially the general customs and beliefs of a particular group of people at a particular time.’1  A culture, or way of life, therefore includes habits, attitudes, symbols, material practices, food, clothing, language, music, art, institutions and laws. Drawing on this definition, it is possible to state that the extent to which cultural diversity is recognised in a society is reflected in the cultural diversity of its legal systems.  

Although Australians today have diverse cultural backgrounds, the Australian Government has maintained the view that Australia has ‘one law for all.’2 That is, there is one legal system that applies to all individuals present in Australia, without distinction. In the Australian citizenship booklet, the Government states that ‘Australian laws apply to all people in Australia. This means regardless of your background or culture, you must follow Australian laws.’3 That does not mean that the modern Australian legal system does not reflect cultural values. It is well accepted that today’s Australian legal system is largely built on the cultural values derived from the English common law and parliamentary processes. 

However, not all countries with multicultural populations formally recognise only one legal system. For instance, in South Africa, different laws may apply depending on which indigenous, cultural or religious group an individual belongs to.4 Such countries might be described as having a strong expression of legal pluralism, which can be defined as ‘the existence of distinct legal systems within a country’5 , or alternatively, diverse legal systems operating in the same place at the same time.6

In evaluating the extent to which laws in Australian laws reflect cultural diversity, this article will consider the extent to which the Australian legal system is pluralistic. It will argue that although the Government formally presents Anglo-Australian law as the exhaustive authority for our laws or normative orders, legal pluralism nonetheless most certainly exists. The first section will argue how aspects of the traditional laws of First Peoples are in certain circumstances recognised and protected. The second section outlines the extent to which Sharia law operates within the national legal framework in Australia. Finally, the article then outlines and rejects a number of arguments against a formal adoption of legal pluralism, arguing that Australia ought to look towards an acknowledgment of the origins of its laws that are derived from both diverse and plural sources. 

Terra nullius, sovereignty and the recognition of First Peoples’ law

Although the doctrine of terra nullius is now recognised as a convenient legal fiction that justified the sole right of the British to the territory now known as Australia, it survives as a remnant influence, even though First Nations Peoples in Australia have achieved some degree of recognition.7

Australia was colonised by the British, who used the international doctrine of terra nullius or ‘empty land’ to claim possession of what is now called Australia in 1788.8 Of course, early English colonisers of Australia met and interacted with First Nations Peoples as they established their occupation of the country. However, the colonisers did not recognise the Indigenous culture, society and laws. This conscious lack of recognition served the economic interests of the English colonisers, who used the territory for its natural resources in addition to being a place to send its convicts. 

In 1992, the High Court of Australia overturned the application of some aspects of the doctrine of terra nullius to Australia. In the landmark decision of Mabo v Queensland (No2) (1992) 175 CLR 1, the High Court held that a form of land ownership by Indigenous inhabitants of Australia had survived colonisation.9   It held that native title could persist into the present day, provided that it had not been extinguished or that the laws and customs ceased to be practised. This case is the basis of the Native Title Act 1993 (Cth). 

However, although First Peoples’ laws in relation to land might have persisted in some circumstances, the High Court of Australia did so, maintaining the exclusive sovereignty of the Crown. The primacy of Anglo-Australian law was affirmed at the same time that the laws and customs of First Peoples, dating back many thousands of years, were recognised.10 This primacy and the limits set on formal recognition of Indigenous laws in Mabo to property were confirmed in Walker v NSW.11 In this case, Mason CJ held that the plurality expressed in Mabo did not extend to the criminal law. 

This is not to say Australian law has not recognised the laws of First Nations peoples from time to time and for different purposes. Before the landmark decision in Mabo, the Australian Law Reform Commission (ALRC) conducted a detailed inquiry in 1986 into whether to recognise, either in whole or in part, some First Peoples’ law.12 In 1986, however, First Peoples’ law was referred to as ‘customary law’. It has been argued that this term ‘devalues Aboriginal law to a lesser form of law ‘based on ‘custom’, habit or social practice’.13 First Nations peoples do not use the term and ‘have their own language and terminology to refer to both systems of law and specific processes and laws’.14  This article uses ‘Indigenous law’ and ‘First Peoples’ law’. 

The 1986 ALRC report and several others that have followed have considered the official recognition of First Peoples’ laws within Australian law. While they did not recognise autonomous (or parallel) official recognition, the ALRC recommended functional recognition, that is:

Indigenous laws should be incorporated into the Australian legal system in all appropriate areas, provided that neither Indigenous nor non-Indigenous people would be disadvantaged, that Indigenous people desired recognition, and that recognition would not be discriminatory or reflect gender bias. 

In other words, functional recognition was a means of incorporating First Peoples’ law within the Australian legal system. The ALRC determined that appropriate areas of recognition within Australian law might include sentencing and criminal law, marriage and inheritance, hunting, fishing and gathering rights. The implementation of the recommendations for widespread functional recognition has not occurred. For instance, in some jurisdictions, recognition of First Peoples’ laws as a relevant consideration in sentencing is only recognised in the law.16 Recognition of the pre-existing legalities of First Peoples has mostly focused on areas such as land and cultural heritage.

Sharia law in Australia

In the 2000s, the government’s assertion of one legal system for all Australians became a significant public issue in another, quite different cultural context. Following the destruction of the twin towers in the USA on September 11 2001, the United States and many of its allies became increasingly concerned about the threat posed by Islamic radical terrorists. In Australia, this sense of fear was heightened by the Bali Bombings in 2002 and the London bombings in 2005. In particular, there was an increased concern that Muslims in Australia would become radicalised, and would attack Australians, as well as the infrastructure and government of their home country.17 

Singled out as a part of the Australian community that might engage in suspicious conduct, Muslims in Australia experienced an increase in discrimination and anxieties about race.18 This concern about Muslims extended to a concern about Islamic religious laws. In 2006, the former treasurer, Peter Costello, gave a speech where he declared that ‘Sharia law will never be applied to Australia.’19 In 2010, Attorney-General Robert McCelland reiterated these sentiments when he confirmed that the ‘Rudd Government is not considering and will not consider the introduction of any part of Sharia law into the Australian legal system’.20 

However, notwithstanding what might be said in the political sphere, the legal picture is more complicated and nuanced. The undisputable reality is that through migration, various ethno-cultural groups now in Australia have brought with them not only their culture and its practice but the religious and legal systems that accompany them. The bringing of Islam into Australia involves ‘Sharia’, just as Jewish people brought with them the code set out by the ‘Halacha’. The idea of having faith-based dispute resolution mechanisms operate within a national legal system is not new or unique to Australia.21 However, it is a challenging and ongoing project for both people of culture and faith and law and policymakers.22 

Presently, Islamic faith-based dispute resolution is very much undeveloped in Australia. However, we, for example, have institutions such as the Board of Imams in Victoria (BOIV), which have provided a mediation and arbitration service. We do not have the more advanced institutions in the United Kingdom, such as the Muslim Arbitration Tribunal (MAT). Nor is there an Islamic equivalent of a Beth Din, which is the Rabbinical institution used across the world by people of the Jewish faith as an arbitration service, provision of religious rulings and mediation in personal law disputes.

Some Australian laws make some activities that are permitted under Sharia law illegal in Australia. For example, the practice of polygamy, which is permissible in some Islamic countries, is a criminal offence under Australian law, Marriage Act 1961 (Cth) s 94.23 However, there are Australian laws that provide a framework within which compatible Islamic laws can be recognised. For example, marriage laws permit Islam clerics to officiate at marriages without another ceremony or a civil ceremony needing to take place as well.24 Another example is where the Family Law Act 1975 (Cth) encourages individuals to arrive at mutual, private arrangements where possible, reserving litigation in the family court as a last resort.25  This means that if individuals agree on the way to divide up their property and look after their children, they are left to make whatever arrangement suits them. These arrangements upon separation could be made to be compatible with cultural or religious laws, including Sharia. How challenging or complex this may be at times is illustrated by the case of Mohamed v Mohamed [2012] NSWSC, 852.26 

Contrary to the government statements about one law for all, this article so far has argued and shown that legal pluralism already exists in Australia.27 This has been possible, provided that they are consistent with Australian law and can operate alongside or be incorporated within Australian law. In the case of faith-based legal practices, this means operating within the secular system of the nation or state.

Legal pluralism in Australia

If legal pluralism already exists in Australia, why have the governments in Australia so strongly insisted on maintaining the ‘one land, one law’ position? There are a number of arguments against a formal adoption of legal pluralism in that we would be acknowledging a multiplicity or plurality of sources of law. As discussed above, our present position following Mabo is that the Crown is the sole and exclusive source of legal authority.  A useful summary of the main arguments is outlined in an article by Ann Black.28 While Black sets out the main arguments for and against the official recognition of Sharia law, these arguments can also be considered applicable to legal pluralism more broadly.  This section, however, will argue that the reasons to change this position are more persuasive. 

Black notes that official recognition of legal pluralism can intensify divisions both between cultures in a society and within a cultural community itself. This is because individuals will have different views on the issue of recognition. The divisions might occur between the cultural community and the wider community or between individuals in the same cultural community. She argues such tensions undermine community cohesion. This position, I argue, is a misleading one. It is based on the false assumption that cohesion and concurring views already exist, and this issue will introduce tension.  I argue that there are already differences of opinion that exist within society, including on the very issue of whether or not to officially recognise legal pluralism. The counter to the community cohesion argument is that cohesion is attained only by recognising and accepting the other systems and cultures. The liberal political theory would call this ‘toleration’.29

Second, Black argues that officially recognising the legal system of another culture is problematic because it is difficult to know whose interpretation of the cultural laws is correct. This argument is not persuasive because it misunderstands legal pluralism. It assumes that it is appropriate for an external legal system, an ‘outsider’ position, to identify, judge and interpret laws in another legal system. Instead, recognising plural sources of law includes recognising the ability of cultural groups to identify and interpret their own sources of law and legal authority, which they would be entitled to do.  Some Australian inquiries have noted the dangers involved in an outsider interpreting the laws of another. For example, the NT Law Reform Commission in 2003 noted that First Peoples’ laws are misunderstood by lawyers of the colonial legal system through translations, and/or not known to those outside the communities themselves.30 

Third, Black suggests that since plural laws can co-exist with Australian law, it is largely unnecessary to take the next step and officially recognise those systems. This is not a strong argument either. Allowing a legal system to exist unofficially is not satisfactory and creates a number of disadvantages. It does not encourage individuals within the legal system to create consistent and transparent decision-making systems for its own people, as it is largely operating unofficially and ‘underground.’ It is also completely at odds with the overseas experience. Ethnocultural groups have their processes recognised in many countries, even where there are ongoing debates and tensions. England and Canada are two examples. Islamic and Jewish dispute resolution mechanisms operate within the national framework. An excellent and very thorough treatment of this subject was undertaken in the Canadian context by former Attorney General Marion Boyd, who presented a detailed and well-reasoned review of how faith-based legalities co-exist with secular law.31

A fourth argument, not mentioned by Black, might also be raised. This position has to do with the content of First Peoples’ law and laws of cultural minorities. In Australia, the aspects of these legal systems, which appear to be the least acceptable, are often raised as examples of the inequalities of those laws. For instance, it can be easier for a husband to declare a religious marriage over (talaq) than a wife.32 This is because if a husband does not agree to the divorce, a wife may find it more difficult to have the religious divorce recognised.33 This is argued as being unacceptable in an Australian society committed to gender equality. Equally, the Indigenous tradition of dispute resolution through ‘pay back’ (or spearing) has been described by non-Indigenous writers as a crime.34 These are difficult questions in any society and are often raised as some of the strongest objections to legal pluralism. However, arguing is not persuasive when the Australian legal system can also be subject to a similar critique. Indeed, no legal system is perfect. However, official recognition allows debate amongst a community and potentially different interpretations and outcomes. 

Having countered the arguments against official recognition, there is one further, very persuasive argument in favour of official recognition based on inclusion and belonging. In a country as multicultural as Australia, recognising the legal systems of others is a sign of respect and dignity. First Nations Peoples and Muslims in Australia experience discrimination and social marginalisation. Recognition of the wish of some individuals in these communities to have their legal system officially recognised might begin to address past experiences of marginalisation, misunderstanding and discrimination, and enhance equality.35 Recognition of different plural sources of legal authority might enhance all legal systems rather than undermine them.36 Further, without official recognition, the value of First Peoples’ law and culture is at risk of continuing to be ignored and silenced. If First Peoples’ law cannot be recognised in Australia, where can it be?

Conclusion

This article has explained how legal pluralism already exists in Australia. This was discussed in relation to two cultural groups, First Nations Peoples and Muslims. It argued that laws from these groups not only co-exist alongside Australian law, but at times, they are also recognised by, and incorporated into, Australian law. This article then considered whether Australia should officially adopt legal pluralism as the basis of its legal model. It raised arguments against official recognition and then rejected them all, arguing for official recognition based on inclusion and equality.

Certainly, this is not to say that there are no challenges to overcome should Australia formally recognise different sources of legal authority. The inter-relationships between those legal systems would need to be clarified, and what would happen if the laws conflicted. That said, there are already many rules in all legal systems that address and provide guidance about how to resolve such issues. This suggests that these challenges will likely be overcome and only present practical obstacles.

Student activities

1. What do you think the following statement means? ‘The extent to which cultural diversity is recognised in a society is reflected in the cultural diversity of its legal systems.’  

2. Why do you think the High Court in Mabo recognised First Peoples’ law with respect to land but not other areas of First Peoples’ law?

3. Should Australia officially recognise First Peoples’ law? What are some of the implications? Discuss.

4. Do you think that Sharia law should be formally recognised in Australia? Explain. What are some of the implications?

5. Are there other arguments either for or against the recognition of different sources of law in Australia?

6. Are the implications for recognising First Peoples’ Law and Sharia law the same or different? Or do they overlap? If so, in what ways?

7. What legal systems currently use different models to determine whose rules are applied and when? Are these models appropriate for use within Australia?

8. Do you think legal pluralism should be officially recognised in Australia?

References

1 Cambridge Dictionary (online) ‘culture’ < https://dictionary.cambridge.org/dictionary/english/culture>.

2 Peter Costello, ‘Worth Promoting, Worth Defending. Australian Citizenship. What it Means and How to Nurture it’ (Address to the Sydney Institute 23 February 2006).

3 Commonwealth of Australia, Australian Citizenship: Our Common Bond’ (2020) 34

4 Christa Rautenback, ‘Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law’ (2010) 42(6) The Journal of Legal Pluralism and Unofficial Law  143, 145

5 Northern Territory Law Reform Committee,’The Recognition of Aboriginal Law as Law’ (Committee of Inquiry into Aboriginal Customary Law, 2003) 16.

6 Margaret Davies, ‘Ethos of Pluralism’ (2005), 27 Sydney University Law Review 86.  See also Ann Black and Kerrie Sadiq, ‘Good and Bad Sharia: Australia’s Mixed Response to Islamic Law’, (2011) UNSW Law Journal 383, 386 – 387.

7 Heather McRae, Garth Nettheim, Laura Beacroft and Luke McNamara Indigenous Legal Issues: Commentary and Materials (Lawbook Co. Casebook, 3rd edition, 2003) 75, Mulqueeny KE ‘ Folk law or Folklore: When is Law not a Law. Or is it? In M A Stephensen and S Ratnapal (Eds) Mabo: A Judicial Revolution (1993) 165.

8 Fitzmaurice, Andrew. “The genealogy of terra nullius.” (2007) 38(129)  Australian Historical Studies 1

9 McRae et al (above n 7) 125

10 Elizabeth Povinelli, ‘The Cunning of Recognition Being Real and Aboroginal Recogntiion in Setller Australia’ (1998) 11 Australian Feminist Law Journal 3

11 Walker v NSW (1994) 182 CLR 45, Mason CJ [para 5, para 6]

12 Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (No 31, 1986) <https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/>.

13 Northern Territory Law Reform Committee, ‘Report on the Recognition of Local Aboriginal Laws in Sentencing and Bail: Two Justice Systems Working Together (Report 46, November 2020) 90 [para 240]

14 Ibid,  90 [241]

15 ALRC 1986 (above n 12) Chapter 11, quoted in McCrae et al (above n 7), 127

16 For a discussion, see Australian Law Reform Commission, Pathways to Justice- Inquiry Into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report 133, 2018), Chapter 6 ‘Sentencing and Aboriginality’  (2018); Australian Law Reform Commission, Multiculturalism and the Law (Report 57, 1992) ; ACT Justice Community Safety, Inquiry into Sentencing (2015); Jack Maxwell, ‘“Two Systems of Law Side by Side” :the Role of Indigenous Customary Law in Sentencing’ (2016) 19(2) Australian Indigenous Law Review 103.

17 Walled Aly ‘Multiculturalism, Assimilation and the Politics of Terrorism (Papers on Parliament 56, July 2011) < https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/pop56/c05>.

18 Poynting, S., Noble, G., Tabar P., & Collins J. Bin Laden in the suburbs: Criminalising the Arab “other” (Sydney: Institute of Criminology, 2004).

19  Costello, (above n 2).

20 Zwartz, B. ‘Australia’s Muslims cool on change’. The Age Online, 9 February 2009. Retrieved 3 July 2009, from <www.theage.com.au/news/world/australias-muslims-cool-on-change/2008/02/08/1202234168549.html>

21 See for example some of the overseas commentary on this issue. Elham Manea, Women and Sharia Law: The Impact of Legal Pluralism in the United Kingdom (I. B. Taurus, 2016), 122 – 130; Rowan Williams, Civil and Religious Law in England: A Religious Perspective, in Robin Griffith-Jones (ed), Islam and English Law: Rights, Responsibilities and the place of Sharia (Cambridge University Press, 2013) 32; Robin Griffith-Jones, The ‘Unavoidable’ Adoption of Sharia Law: The Generation of a Media Storm, in Griffith-Jones (ed), Islam and English Law, (Cambridge University Press, 2013) 9.

22 See Nadav Prawer, Nessen Ainsworth and John Zeleznikow, ‘An Introduction to the Challenges and Possibilities of Faith-based Arbitration in Australia’ (2014) Australasian Dispute Resolution Journal 91, 93; Ann Black and Kerrie Sadiq, ‘Good and Bad Sharia: Australia’s Mixed Response to Islamic Law’ (2011) 34(1)  University of New South Wales Law Journal 383, 383.

23 Ann Black ‘Legal Recognition of Sharia Law’ (2010) Family Matters. https://aifs.gov.au/publications/family-matters/issue-84/legal-recognition-sharia-law; Ghena Krayam ‘Islamic Family Law in Australia’ (2014, Melbourne University Press)

24 Ann Black ‘Legal Recognition of Sharia Law’ (2010) Family Matters. https://aifs.gov.au/publications/family-matters/issue-84/legal-recognition-sharia-law; Ghena Krayam ‘Islamic Family Law in Australia’ (2014, Melbourne University Press)

25 Judy Gutman “Litigation as a Measure of Last Resort: Opportunities and Challenges for Legal Practitioners with the Rise of ADR.” (2011) 14(1) Legal Ethics 1; Ross Hyams “Where will the children live? Arrangements for separated families in Australia.” (2010) 35(2) Alternative Law Journal 89

26 Mohamed v Mohamed [2012] NSWSC, 852

27 Northern Territory Law Reform Committee 2003 (above n 5) 16.

28 Ann Black ‘Legal Recognition of Sharia Law’ (2010) Family Matters <https://aifs.gov.au/publications/family-matters/issue-84/legal-recognition-sharia-law>

29 Chandran Kukathas, The Liberal Archipelago (Oxford University Press, 2003)

30 Northern Territory Law Reform Committee 2003 (above n 5).

31 Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (2004) Ministry of the Attorney General, <https://collections.ola.org/mon/9000/249159.pdf>

32 Ann Black (above n 28)

33 Ghena Krayam, Islamic Family Law in Australia (2014, MUP, Farrah Ahmed and Ghena Krayem, ‘Islam Uddin, Understanding Sharia Processes: Women’s Experiences of Family Disputes’ (2021) 35(1) International Journal of Law, Policy and the Family; Furgan Ahmad, ‘Understanding the Islamic Law of Divorce’ (2003) 45(3/4) Journal of Indian Law Institute 484, 486.

34 See Barnes [1997] NTSC 123, Bailey J. See discussion in McRae et al (above n 7) 150 -151

35 Law Reform Commission of WA, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture (Report 94, 2006) 15 <https://www.wa.gov.au/system/files/2021-04/LRC-Project-094-Final-report.pdf

36 NT Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse ‘Ampe Akelyernemane Meke Mekare: Little Children are Sacred (Report 2007)

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