LEGAL AFFAIRS: by Sir Gerard BrennanNews Weekly
No place for Sharia law in Australia
, September 15, 2012
There have been some suggestions that, following the growth of Islam in Australia, there is room for a pluralistic legal system, a system in which at least some parts of Islamic Sharia law might operate as part of Australian law and in parallel with the common law system.
Dr Rowan Williams, Archbishop of Canterbury, made that suggestion for the United Kingdom. That suggestion seems to me to be misconceived.
No court could apply and no government could administer two parallel systems of law, especially if they reflect — as they inevitably would reflect — different fundamental standards. To give effect to dual legal systems would be to confirm dual cultures and, as Lord Devlin pointed out, a stable society is held together by “the invisible bonds of common thought”, that is, common thought about fundamental moral standards.
The emphasis here is on “fundamental”. In a multi-cultural society, cohesiveness depends on agreement about fundamentals, leaving ample freedom for individuals to adhere to moral standards different from those of the mainstream majority.
The beliefs, customs and practices which give an individual his or her identity as a member of a religious or national or ethnic group are respected by Australian law except in a case where the custom or practice is proscribed by the general law. Freedom of religious belief and practice is one of the essential freedoms that are a fundamental value of contemporary Australian culture.
In 1983, the then Chief Justice Sir Anthony Mason and I spelt out the principle in The Scientology Case:
“Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e., if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion.”
Our law, strengthened by anti-discrimination legislation, is intended to give effect to our basic values.
Australians enjoy political stability because we share the basic values of equality, tolerance and freedom of thought and action; we respect integrity, especially in public office, and we insist on the rule of law. These are the essential values of our culture that must be reflected generally in our law. This is the law that binds all Australians and which has effect in every part of our nation.
Therefore a Muslim is free to adhere to the beliefs, customs and practices prescribed by Sharia law insofar as they are consistent with the general law in force in this country. That freedom must be respected and protected, but that does not mean that Islamic Sharia should have the force of law. One version of Islamic Sharia was expounded by the president of the Federal Supreme Court of the United Arab Emirates at a conference I attended in Abu Dhabi in 2008. The scholarly and hospitable president explained the scope of that law.
He said that “the Islamic Sharia is … comprehensive in the sense that it finds the legal rules that regulate all the aspects of daily life for individuals and societies. For instance, there are overall rules regulating civil and commercial transactions, rules regulating family relationships, rules regulating the affairs of the judiciary, litigation and criminal justice, rules related to international relations, and so on.”
His Excellency further explained that the basic principles of Islamic Sharia are provided by “[b]oth the Koran and the Sunna [which] could be considered the constitution in other legislation systems, and therefore all other sources should agree with them. Thus, if juristic reasoning contradicts with them, it should be rendered invalid, and if customs contradict with them, they are also unacceptable; and this applies to all other secondary or ancillary sources.”
The common law does not go so far — it leaves a gap between the mandates of the law and the conduct that we choose to engage in according to our individual moral standards. We call that gap “freedom” and it allows Australian law to protect the cultural moral values of our minorities. We value that freedom not only for the benefit of the individual but in order to maintain a free society — a society which can celebrate the rule of law but which rejects the notion of rule by law.
We are proud of our multi-cultural, multi-ethnic, multi-religious society especially because our citizens, including the Islamic community, share the basic Australian values of tolerance, egalitarianism and individual freedom in thought and action. That consensus provides the essential cohesiveness of our society, and the moral support for our integrated system of law. It secures the peace and order that we cherish.
The Hon. Sir Gerard Brennan AC KBE QC was the 10th Chief Justice of the High Court of Australia (1995-1998). The above article is an extract from the Hal Wootten Lecture, which Sir Gerard gave at the University of New South Wales, on August 23, 2012. The full version of the lecture is available here.