Multicultural conflict and the challenge to the rule of law

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) Act2016because 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.