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 Although the enabling sections of the Arbitration Act were subsequently repealed, it did ignite the possibility that within a common law system there could be faith-based dispute resolution for family law and other legal matters.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.
We never needed to introduce special Greek, Vietnamese or Irish laws. They managed to cope ok. What’s wrong with the Muslim Immigrants. They knew what they were coming to a Christian country, and that we don’t stone women to death , or cut off the hands of a thief. Our system of law seems to have resulted in a much more peaceful country than any Muslim country. If they can’t live under our laws then , get out, go back to the county that your stupid laws wrecked and made you flee for safety. Muslims have no country to go back to because their system of law and Government has utterly failed.They have destroyed every blessing their God gave them.
Sharia law is more than just family law. If we allow ‘part’ of it that is contrary to the usual decisions that an Australian court would make in the same circumstances then it should not be allowed. Get married to one person, that is compatible with Australian law, get married to numerous is not. A mans word is worth twice a woman’s – not compatible; a woman has to prove rape with two male witnesses – no compatible, a man can beat his wife – not compatible, non-Muslims can be enslaved – not compatible, and the list goes on. The problem with making allowances for small incompatibilities is they soon pave the way for big ones. If a Muslim wants to train as a lawyer & become a judge and be allowed to offer his services – under Australian law, dispensing Austalian law (that may or may not be compatible with Sharia) – to other Muslims I am ok with that because it’s still Australian law – but NO concessions for Sharia. If they want to openly live under & apply Sharia courts then go to the Middle East.
This must never be allowed to happen in Australia. Are any of the politicians listening to the people of this country. NO SHARIA LAW! ONLY AUSTRALIAN LAW FOR EVERYONE.
I hate it when someone pulls the ‘Australia was built on multiculturalism’ card. Sure it was but, most of the immigrants that came here before and after WWII came from Europe. Guess what, they all came from a european culture with some slight and regional differences and were willing to have a go and eventually identified as Australian. The issue is not race. It’s cultural. Some cultures molded by their religion do not suit our western lifestyle. Most muslims identify first as muslim as they are obligated to. That is the problem, the obligation…..
Simple answer…. NO! Australia is a secular western country period. Let’s keep it that way for our children do that they can have freedom of choice and the liberty to follow their conscience and not live in a way dictated by others….
The laws of sharia and islam are one you can’t have one without the other,when 60 minutes conducted a survey a few years ago in Lakemba, men and women were asked ‘which law do you follow Australian law or the sharia ?’ all answered the sharia ,God’s law not man made laws,they will follow our laws but if there is conflict ,they follow the sharia.,muslims in Australia live by it in a moderate form as they increase in numbers so do their demands for sharia law ,that’s why we should stop islamic immigration ,look at London ,muslim mayor because they have the numbers,doubt there will ever be a Christian mayor ever again.in London or anywhere else they outnumber the population.
The argument of the paper is that Muslims must adhere to Sharia law as part of their faith. Therefore, they must adhere to ALL of it, not just bits and pieces or the parts that relate to marriage, as the writer is suggesting Australia does to accomodate Muslims. This is the ‘thin edge of the wedge’ technique whereby a society is changed bit by bit until it’s changed completely.
A divorced woman under Sharia law in Malaysia gets something like six weeks of the husband’s wage and the husband can take the children and the ex-wife has little or no access to them.
Even in Malaysia, though, Sharia law is not permitted to take precedence over the law of the country.
“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.”
They also believe in Female Genital Mutilation – OK?
They also believe in killing gays – OK?
The list is endless – OK?
Now, what is logical? Accepting Santa’s rules as law?
Sharia law is not Australian law and will never be followed by average Australians.
So you want them stoning people to death? As long as its in private and doesn’t affect us…go for it..you will be sorry!
Come on. Give pauline a go. She is my voice
Muslims can come to Australia, welcomed in Australia, only when they pledge to follow Australian Law and Australian Culture, full stop! Muslim minorities should not change Australia, however and unfortunately for the Majority of Australians, the politically correct and bleeding hearts continue to raise their uneducated heads.
Learn from the other countries that have historically and currently had to deal with Muslims.
After WWII, the immigrants who came to Australia became Australians, Muslims do not assimilate, due to the fact that they do not recognise the law of the land they live upon and will only recognise the law stated in the Islamic Karan.
Remove the cataracts from your eyes and observe.
This is highly offensive to every thinking Australian. If we have to abide by Australian Law so should all imports to this country. Sorry but if they do not want to abide by the Laws of Australia then they are welcome to live in a country that is more accepting of their sharia. Many ME countries that already have sharia. Australia will continue to have problems while ever there are people trying to divide all who live her giving concessions based on a religion that is foreign to the majority of us and is the main cause of unnecessary murders, rapes, paedophilia. One Australia. One Law for all……no ifs, buts or maybes. This conversation MUST be shut down and the Islamic Council leaders told in no uncertain terms that sharia will NOT be accepted in Australia. If our current Governments cannot or will not do this it is past time for them to GO. Rise up Australia and we should ensure that every politician who does not support the majority should be ousted from Parliament and replaced with people who have the best interest of the MAJORITY and One LAW only supported. This sharia shit is ridiculous!
Sharia law breaches the human rights of women. The only way to escape the oppression of Islam and not be subject to Sharia is to become a non-Muslim. Why special treatment for these ratbags. If they became the majority they would scrap Australian law and force Australians to practice their barbaric practices.