The idea sharia could operate as part of Australian law was “misconceived” and minority practices that offend moral standards should be abandoned, the former High Court judge Sir Gerard Brennan said last night.
“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,” he said.
To do so would result in two legal systems and confirm dual cultures, Sir Gerard said during a lecture in honour of the former law professor Hal Wootten at the University of NSW.
“The democratic principle prescribes that the culture of the majority is determinative of the legal structure,” he said. In Islamic law, he said - quoting the president of the Abu Dhabi Supreme Court - customs and legal reasoning had to agree with the Koran. But in Australian common law there was a gap between the requirement of the law and individual moral standards.
“We call that gap ‘freedom’ and it allows Australian law to protect the cultural moral values of our minorities,” he said.
The lecture also featured anecdotes from Sir Gerard’s career and his reflections on the value of juries and the need for procedural fairness. He said in a multicultural society individuals were free to follow their own moral standards because of agreement about fundamental values, and Muslims were free to adhere to the beliefs, customs and practices prescribed by sharia “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,” he said. His remarks follow comments by the Archbishop of Canterbury, Dr Rowan Williams, who had called for sharia to operate in parallel with common law.
“That suggestion seems to me to be misconceived. It recalls the problem of recognition of traditional Aboriginal law,” he said.
In Britain, there are 80 sharia tribunals operating in the Muslim community, and a few weeks ago the UTS law lecturer and Muslim convert Jamila Hussain told the Herald sharia operates in Australia. But she said the existence of sharia did not pose a problem, and the two systems were rarely in conflict.