Multicultural
conflict and the challenge to the rule of law
Laurence Maher Posted Friday, 30 November 2018
In
Australia and the other inheritors of the English common law world, the
abstraction the rule of law has often been taken to refer to the three
inter-related broad constitutive principles essayed by Albert Venn Dicey
(1835-1922) in his Introduction to the Study of the Law and the Constitution
(1885). First, ours is a society regulated by fixed and ascertainable legal
rules enforceable by an independent judiciary rather than government by the
exercise of wide, arbitrary or discretionary powers of constraint; secondly,
that legal framework applies to every individual; finally, it secures three
specific constituent individual liberties: the right to personal freedom, the
right to freedom of discussion and the right of public meeting.
Each of
those broad principles can be given concrete specification by analysis of
elements such as the ancient writ of habeas corpus, the presumption of
innocence, the ban on forced confessions, the right to legal representation,
the open justice principle, the right to a fair hearing, Commonwealth and State
constitutional law, the modern law of merits and judicial review of
administrative decisions, and much more.
Nowadays
in the Australia legal academy, Dicey's name is almost entirely forgotten. His
Victoria-era confidence in the protective nature of his third broad
specification is not spoken of much in polite society. It is heresy to contend
that Australia does not need a "modern" Bill of Rights. The
prevailing mood, reminiscent of the Cultural Cringe of old, is that we must
"keep up with the International Joneses". Thus, the conventional wisdom
which has evolved over the past half century, is that Australians should
reproach themselves for failing to rise up in one loud voice demanding that a
Bill of Rights be created forthwith. The internationalist approach is given
prominent expression in the CommonwealthAustralian Human Rights Commission Act 1986,
the Victorian Charter of Human Rights and Responsibilities Act2006,
the ACT Human Rights Act 2004, and the pending
Queensland Human Rights Bill.
The
ideological foundation is the claim that the real source of what are called
human rights is to be found predominantly in post-World War Two international
covenants. Those instruments go well beyond legal rights and obligations of the
kind Dicey had in mind to encompass social and economic entitlements. And to a
major extent those rights are treated as inherent in specific groups of people
at the expense of the universal individual rights which the 1948 UN Universal Declaration of Human Rights set
forth.
If, fifty
years ago, anyone had suggested that in the foreseeable future members of one
or more cultural groups (even if only a handful of fanatics) would emerge or
settle in Australia and reject altogether the principle of the supremacy of the
rule of law in Australia because of a claim to complete superiority of one or
other of their groups' cultural ideas, the response is likely to have been at
least one of incredulity. If, in addition, it had also been suggested that it
would come to pass that limitations, legal and extra-legal, would be imposed to
curtail open public debate on such cultural ideas for fear of offending their
adherents, the response would likely have been side-slapping derision.
Fifty
years ago nobody could have predicted that Australia, along with comparable
nations, would have adopted the elaborate ideological Western belief system
that is contemporary multiculturalism. If the absence of the word
"dissent" from the vast output of official and non-official
documentary material disseminated in Australia about that ideology is any
guide, it will be readily apparent that there is a taboo on speaking about that
type of multiculturalism in anything other than approving ideological terms.
This is more than passing strange since, as a matter of common sense, the word
"culture", perhaps now the most pervasive and least useful
abstraction in the English language (followed closely by various subalterns,
especially "diversity", "identity", "inclusion",
"respect", "narrative", etc), is value neutral.
"Culture" is a mixed bag of good and bad beliefs, ideas and
practices. But the official Australian multicultural notion of diversity
although aimed at promoting equality rests on an ideological hierarchy of
privileged categories of ideas.
Given
that two of the privileged categories of ideas are religion/theocracy (about
which devastating armed conflict is occurring elsewhere on the globe) and
sexual equality/sexuality, it was inevitable that the rigid ideological version
of multiculturalism would collapse under the weight of its inherent
contradictions. At its worst, the incompatibility between theocratic and
democratic systems of government carries the inherent risk that in a secular democracy
the supremacy of the rule of law will be questioned. This has begun to occur in
Australia.
One
example of the reception in Australia of ideas about the "cultural"
treatment of women which is manifestly incompatible with Australian legal and
social norms defining the equality of the sexes can be seen in the use of one
word in a single sentence in a recent Court judgment. It emerged in the case of
a woman from Sudan who had arrived in Australia via Uganda as a refugee in
2006. She pleaded guilty in the Supreme Court of Victoria to the infanticide of
one of her children, the murder of two more of her children and the attempted
murder of a fourth. Before she left her homeland, she had been subjected to a
shocking ordeal. She had been caught up in violent upheaval, had witnessed her
husband's murder, and had been raped repeatedly.
Thereafter,
in the passing observation of the Victorian Court of Appeal allowing her appeal against sentence ( a decision now the
subject of a pending application for special leave to appeal to the High Court of Australia),
"As was tradition, the woman became the wife of her dead husband's
younger brother, who had two other wives (my italics)."
In his
First Annual Report (2011) as Independent National Security Legislation
Monitor, Mr Bret Walker SC, of the NSW Bar, made the general point about the
everyday reality of inevitable cultural conflict by drawing attention to the
social distrust or hostility which occurs when different ethnic and cultural
groups travel or migrate, including in settler societies such as Australia. In
a display of exquisite tact, he observed that: "The success of
multiculturalism cannot conceal this problem." Had he been inclined to
plainer speaking he might have said that the most extreme adherents of
contemporary politico-cultural supremacism in the nation hate Australia and its
constituent secular values with an abiding passion.
One
example of the mischief that lurks in the prevailing worshipful approach to
international human rights legal standards is the determination of the 57 member states of the Organization of
Islamic Co-operation - which has a permanent delegation at the
United Nations and has promulgated its own sectarian (Cairo) Declaration of Human Rights - to secure the
adoption of an international agreement on the criminalization of defamation of
religion. As recent events have reminded us, in Australia, elements of the leadership of the Islamic community
are quick to be outraged and to take offence if the
politico-religious beliefs which constitute Islam are exposed to critical
public scrutiny.
Other
recent events have brought into sharp focus the fact that no amount of
ostrich-like denial can disguise the folly of ignoring the misguided nature of
official multicultural zealotry which fences off categories of ideas
from close public examination for fear of causing offence.
As the
recent same sex marriage controversy demonstrates, each of the three main
monotheistic religions (in varying degrees and for varying reasons) asserts
that such a marriage is a contradiction in terms. A pastoral letter "Don't
Mess with Marriage" sent by the Catholic Archbishop of Hobart to
parishioners and setting out the Church's teaching in the most conciliatory
language was roundly condemned. It prompted the lodging of a complaint (and its
acceptance for the applicable inquisition) under the State's Anti-Discrimination
Act. By way of contrast, a statement released on 10 March 2017 by the
Australian National Council of Imans making clear in stern terms that homosexuality is a forbidden
action and is a major sin has attracted almost, no mass media
attention.
In the
past decade or thereabouts, other problems of cultural conflict arguably
involving some form of explicit questioning of the supremacy of the law of the
land have arisen. There have been court proceedings in which a female who was a party, to the proceeding or the spouse of a party or a witness has refused to
give evidence or has sought to remain in courtveiled and the Court has
had to make an appropriate order to uphold its authority. In other cases, a
member of the public or an accused person has failed/refused to stand for a
judge in court.
It is in
this context that the New South Wales, the Parliament has found it necessary to
pass the CourtsLegislation Amendment (Disrespectful Behaviour)
Act2016 because of perceived shortcomings in the law of contempt
of court.
A broader
more revealing situation arose when the Australian National Council of Imans issued a public document on 17 December
2017 under the heading "Explanatory Note on the Judicial Process and
Participation" which was noted in passing without comment by the New South
Wales Court of Appeal in dismissing the appeal inElzahed v State of New South Wales (alluded
to above) on 18 May 2018.
That
document has attracted scant public scrutiny. Its most conspicuous feature is
the absence of an explicit acknowledgment that the law of Australia is supreme.
Itstates that believers are considered by revealed scripture to be living in
Australia under a covenant and for that reason they must comply with Australian
law. The assertion that the source of the obligation is the scriptural
mandate – not Australian law – misconceives the nature of the universal
obligation to obey the law in Australia. Australian law does not make such
blanket sectarian distinctions when it ascertains and applies the dictates of
justice.
Most
Australians are likely to agree with the wide-ranging observation of the late Ronald Dworkin in 2006
commenting on the Danish cartoons controversy, "No one's religious
convictions can be thought to trump the freedom that makes democracy
possible."
Finally,
there is the explicit unequivocal rejectionist stance asserted by the Australian
outpost of the international religious political party Hizb-ut Tahrir (HT)
which is set out at length with perspicuous clarity in its online English
language publications. It has brazenly promoted ideas such as the
justifiability of wife-beating and honour killings, and it routinely denounces
the depravity of all who do not share its version of the one true faith. It
detests the Western secular state and rejects integration into Australian
culture. HT's humourless spokespersons seem unable to grasp the Monty
Pythonesque-like absurdity of their simultaneous whingeing about not being
given a fair go by those who do not submit to its theocratic worldview. HT was
quick to attack the Imans statement on the Courts as
"sheepish, empty and defensive politics", wondering whether its
authors thought that secular court conventions more sacred than the divinely
revealed higher jurisprudence.
