Federal Government says Sharia Law already operating in Australia
Family Matters No. 84
Legal recognition of Sharia law
Is this the right direction for Australian family matters?
A new direction for a pluralistic nation?
Australia is marked by pluralism – cultural, religious and ethnic. Yet, our legal system is not pluralistic. Apart from some concessions to the Indigenous peoples of this country, we abide by the “one law for all” mantra. Both sides of politics have rejected a separate stream of law for specific religious or ethnic communities on the basis that Australia is a secular nation. Freedom of religion and worship is protected, but religion is to play no part in the formal legal system. Australia’s former treasurer, Peter Costello (2006), argued, “there is one law we are all expected to abide by. It is the law enacted by the Parliament under the Australian Constitution. If you can’t accept that then you don’t accept the fundamentals of what Australia is and what it stands for” (para. 44). This year, Attorney-General Robert McCelland 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” (Zwartz, 2009).
Research undertaken by Dunn (2005) and Poynting, Noble, Tabar, and Collins (2004) indicates that there is a high level of apprehension among the general population about Muslims “in our suburbs”, which gives support to the contention that the majority of Australians accept and endorse the “one law for all” approach. However, this position does raise challenges for Australian Muslims for whom adherence to their religious law – the Sharia1 – is an Islamic obligation and not a matter of personal preference, particularly in regard to family matters.
The issue of whether Australia should give formal legal recognition to Sharia law in resolving family law disputes involving Muslims will be canvassed in this paper. The case for and against such recognition is outlined. Debate on this issue has gained currency across common law jurisdictions due to several recent events. One was the legal recognition given to Islamic arbitration in the province of Ontario, Canada, in 2004. Although the enabling sections of the Arbitration Act were subsequently repealed, it did ignite the possibility that within a common law system there could be faith-based dispute resolution for family law and other legal matters. The second event was the Archbishop of Canterbury’s address to the Royal Courts of Justice (Williams, 2008), in which he promoted the concept of Britain becoming a “plural jurisdiction” by accommodating aspects of Sharia law. Although this speech provoked opposition from some other members of Britain’s legal, political and religious communities (including some Muslim groups), the Lord Chief Justice of Britain came to the Archbishop’s defence by also supporting alternative dispute resolution using Sharia principles. Whether this is the right direction for Australia or whether we should retain the status quo needs consideration and debate.
This paper examines arguments that have been raised for and against the official recognition of Sharia law and finds that, on balance, the status quo should prevail.
The case for official recognition
Sharia law is already operating in Australia
Given that many of Australia’s 350,000 Muslims (Australian Bureau of Statistics [ABS], 2006) are already regulating their lives according to Sharia, it is logical to officially recognise and support this. Sharia regulates the legal relationships many Australian Muslims enter into and out of, including marriage, divorce, custody and inheritance, as well as contractual and commercial dealings. Among Australian Muslims, there exists a strong preference to have legal questions answered and disputes settled by persons with Islamic credentials. Except in rare cases, this does not mean there is rejection of Australian laws, but instead there is a desire to conform with Sharia law when it is possible to do so. Muslims as minorities in secular societies like Australia have been recognised as skilled “cultural navigators” (Yilmaz, 2005), able to manoeuvre through two systems of law, one of their nation and the other of their faith.
Complying with both systems of laws is one approach that can and is being taken. In Australia, marriage is a good example where there can readily be dual compliance. The Marriage Act 1961 (Cth) accommodates Islamic marriages by allowing marriages to be performed and registered by a Muslim marriage celebrant, usually an Imam, without the need for a separate registering event or ceremony. Polygynist marriages, however, remain problematic, being unlawful under section 94 of the Act.
Posted on November 11, 2015, in agenda21, Federal Politics, Islam, mosque, Muslim, Muslim Issues, Politicians, Politics, Sharia Law and tagged corruption, Halal, Islam, jihad, Liberal National Party, malcolm turnbull, people control, Sharia law, unaccountable. Bookmark the permalink. 14 Comments.