The Australian newspaper over the last week not only reported on but also actively campaigned against sharia in the ACT case of a daughter disputing a Muslim will which would have given her half that of her brothers. "Sharia unwelcome" was the headline selected for letters to the editor in response to the newspaper's coverage this week.
The story as it was reported by the national newspaper can briefly be summarised as follows:
On Wednesday the paper first reported the "exclusive" on its front page with the headline "Daughter disputes Muslim will that gave brothers twice as much" sprawled across the top. (- paywall) The report covered the bitter family dispute in the Supreme Court of the ACT which ruled that the will was invalid. The article included towards the end the point that the daughter's mother "might well have decided to make a will in the same or similar terms."
The two sons in the case "argued that even if the will was not valid, the children were obligated to distribute the estate according to Islamic law." The daughter, one of five sisters, objected saying that Australian law must apply where "all the children would get the same amount from their mother's estate regardless of gender." She argued that "the will was not valid because her mother had shown signs of dementia long before it was drawn up."
The next day The Australian published a follow up piece called "Respect our way on wills, say Muslims." This report focussed on concerns about the apparent judgment: "The president of the Australian Federation of Islamic Councils, Ikebal Adam Patel, said the Supreme Court's decision not to give sons twice the inheritance of daughters, reported in The Australian yesterday, could have serious ramifications in the Australian Islamic community, particularly in caring for the elderly." Mr Patel explained that this was because men "were the carers of the family, including elderly and disabled relatives, and therefore should receive a greater division of assets."
The journalist re-iterated the key aspect of the case was that, "The daughter argued Australian law, not Islamic law, should apply to their mother's will, despite it outlining her mother's wishes to follow sharia, or Islamic law in dividing her estate." The mother's dementia this time was referred to as a complication in the case.
On Saturday a third report which roped in the Attorney-General with "Roxon baulks at role for sharia by Australian Muslims" was published. "There is no place for sharia law in Australian society and the government strongly rejects any proposal for its introduction, including in relation to wills and succession," Ms Roxon is reported to have said.
Tuesday, the journalist for the second report wrote the paper's fourth news item titled "Sharia widespread in local community." "The revelation that the use of sharia law is widespread follows a declaration by Attorney-General Nicola Roxon that there is no place for Islamic law to settle family issues in Australia," she wrote.
There it is – four separate news reports in seven days by three different journalists – focussing primarily on choice of law as the issue for scrutiny.
However, the one important fact that was lost in The Australian's coverage and by others online and on talkback radio, was that the judge did not reject the will because it was a Muslim will, but rather that the mother was already showing signs of dementia at the time she signed it. Paragraph twelve of the judgment introduction clearly stated: "The essence of the dispute is as to the testamentary capacity of the deceased at the time she made her will. The will appears valid on its face, and the defendant should bear the onus of establishing lack of testamentary capacity, which would lead to a declaration that the will was invalid."
Mr Patel in the second report, presumably not fully cognisant of this key point of the judgment and relying solely on the media coverage, was perhaps misled into thinking that the judge ruled against a valid Muslim will. It is unlikely that he was arguing for the discretionary consideration of Islamic law as an alternative given his previous retraction on the topic of legal pluralism reportedly saying "it was a mistake to mention sharia law."
It is this report which distorted the emphasis of the case by implying that the judge rejected the will because of unequal gender allocation. It completely omitted to re-state the fact that due to dementia the "mother's wishes" could not have been established with certainty.
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