Multicultural conflict and the challenge to the rule of law

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.