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Sharia law and Australia

By Sebastian De Brennan - posted Wednesday, 22 March 2006

The Federal Treasurer, Peter Costello, has spoken out against "confused, mushy, misguided multiculturalism" and told Muslim immigrants to leave violent cultural baggage at the door. According to the treasurer, not only will Australia never observe Sharia or Islamic law, but those who wish to live under it should have no place in Australia.

For the average Australian, Sharia law might be equated with some pretty sordid images - stoning, genital mutilation and subservient women: too uneducated or scared to resist. Certainly, before I had the opportunity to study Islamic law as a structured academic discipline, I had some serious misgivings as to whether Sharia law could ever be reconciled with international human rights law, let alone western democracy as we know it today. I was also guilty of dismissing it as a rigid, ahistorical body of medieval rules of law, detached from underlying theories of discretion, historicism and legal change.

Contrary to this assessment, Sharia is an incredibly diverse and fascinating legal system, touching on areas such as family law, contract law, property and criminal law. As Islamic legal scholar Professor Anver Emon has noted, Sharia encompasses a vast array of legal and theoretical literature, which when read collectively, suggest that the legal system at its fullest was not merely a body of rigid rules applied indiscriminately.


Rather the operation of Sharia involved considerable juristic nuance and discretion that accounted for the need to balance individual expectations with commitments to the social good amid a constantly changing and developing society.

For example, a frequent charge levelled against Sharia law is that it is oppressive and discriminatory to women. However, whether or not women will be marginalised depends on how one defines Sharia. Under classical Islamic law a husband did not need to petition a court to divorce his wife. He simply pronounced to his wife that she was divorced. A wife, however, had to petition a court for a divorce. An inequitable arrangement, but it is interesting to note that modern Muslim nations often disregard this rule. Some require husbands and wives to file a petition with a court. Others, like Egypt, require the husband to provide a notarised document to his wife stating that she is divorced.

Another oft-cited example is that of polygamy. Many Muslim countries permit polygamy, albeit with restrictions. However, Tunisia expressly bans polygamy by relying on a Koranic verse stipulating that men can never be just to multiple women - justice being a requirement for polygamous marriages. Here the substantive rights of marriage differ depending on which Islamic argument one makes. (Did someone mention common law judicial precedent?)

Do Muslims in the West want Sharia law? It would seem that some do. A recent poll in Britain found that four out of ten Muslims supported the introduction of Sharia law. Indeed, as late as September last year, Canada was considering, very seriously, whether it should introduce Sharia-based arbitration in areas such as family law.

Although provinces such as Quebec and Ontario ultimately decided against this course, the ensuing debate in Canada serves as a useful point of reference as to whether Sharia law could ever work in the Australian context? Both Canada and Australia are immigrant-based and have a substantial Muslim population. Both nations are self-governing federal democracies following the Westminster form of government. Each country has a market free economy with remarkable similarities in terms of natural resources, agriculture and financial sectors. Both have long-standing Indigenous cultures. Both began their contemporary existence as British colonies. Social norms are also very similar in both countries.

Finally, both Canada and Australia have borne the same social consequences with similar religious, educational and judicial institutions, similar family patterns, similar expectations for men and women within their society, similar electoral representation with their federal systems, and similar legislation.


Muslim spokesperson Keysar Trad suggests that no Muslims are advocating Sharia law in Australia. I agree with the assessment of another commentator that "he may be downplaying things".

As the Canadian experience demonstrates, it is only a matter of time before Sharia law is proposed as a legitimate means of resolving disputes - including family law disputes - as they arise between Islamic Australians. The presence of Koori courts and sentencing circles for Indigenous Australians and the fact that much of the law in this land is predicated on the Judeo-Christian legal tradition remind us that there is nothing novel about the interplay and tension between religion, culture and law.

On the evidence it is submitted that Canada's politicians made the right decision in opting against the introduction of certain aspects of Sharia law. What was most impressive, however, was the way in which the debate was conducted by both sides. Rather than promoting further divisiveness between Muslims and non-Muslims (as Costello seems to have done) - both sides appeared to retire from the process with a greater appreciation of not only the diversity of the Islamic faith, but the nation of Canada itself.

For, after a 1,450-year long encounter between Islam and what is now known as the West, surely it's time that we tried to understand one another.

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First published in The Canberra Times on March 6, 2006.

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About the Author

Sebastian De Brennan is principal of De Brennan & Co. Consulting and teaches in the College of Law & Business at the University of Western Sydney and the School of Business at the University of Notre Dame Australia.

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