Senator Jacqui Lambie’s preoccupation with “Sharia law” – whatever it is she conceives it to be – is embarrassing.
It is also, in my opinion, a misuse of her time as a senator in the Australian Parliament, given she is paid from the public purse. Following her appearance on the ABC television program Q and A this week, the Senator subsequently issued numerous tweets in an apparent attempt to consolidate her obviously confused position on the “Sharia” question.
Lambie also made available on her Twitter feed a video which asks the question (in what appears to be capitalized Calibri font): WHAT DO YOU KNOW ABOUT SHARIA LAW? In the video, Senator Lambie then proceeds to elucidate, in “six quick obvious points,” all that she fails to understand about what Sharia Law is, and is not.
What is particularly ironic is that her first point: “Sharia law is not Australian law,” pretty-well makes redundant her remaining unconscionable misrepresentations regarding Sharia Law and how it might be of any relevance to Australia (or to anybody else, for that matter). Senator Lambie’s preoccupation is embarrassing because the (obvious) import of her first point – the only sensible thing uttered by her in the presentation – seems to be lost on her.
In simple terms, Australian law might be most easily understood as any law which is validly enacted or otherwise given authority by one of the several parliaments of Australia’s commonwealth, its states or territories. The mechanism which makes available that system of laws and law-making is the Australian Constitution. Taken together, the laws so enacted regulate the conduct of Australians, and that of anybody who is otherwise subject to Australian Commonwealth and/or state and territory jurisdictions, and it does so in particular ways.
An obvious feature of our system of law is that people subject to an Australian jurisdiction are free to conduct their lives in any manner they choose, unless such conduct is somehow prohibited or otherwise regulated by the law. So far as I understand it, “Sharia law” is not regulated by Australian law; that is (and as Senator Lambie helpfully points out), Sharia law is not, in any way, Australian law or the subject of Australian law.
What that means, Senator Lambie, is that Sharia “law” falls within that notional area comprising people’s private lives. It is something people are free to engage in, or not, at their will, subject to Australian law.
Really, that should be all there is to say on the matter.
However, there are significant numbers of people in Australia – including a number of parliamentarians – who don’t appear to be able to join the dots (and who, reportedly, also don’t like being told that there are things they appear not to understand).
As periodically happens on social media following an event such as this week’s Q and A program, all manner of persons came out of the woodwork to have their two bobs’ worth. And as is always the case in this case, that two bob comprised, in large part, ill-informed people sticking their respective noses into other people’s private lives. On the comments thread of an online article for The Australian, “Helen” raged about her various perceptions of Sharia law, including:
“Muslim women cannot opt out of Islam and we have Sharia “courts” where an Imam can tell a women (sic) she is no longer married if her husband says ‘I divorce you three times’ (sic)…no recourse, no money…out on the street!”
“What I do know is that under the Cairo Agreement signed by all 57 Islamic Countries and applicable to ALL Muslims around the world, ‘Sharia SUPERSEDES all other Laws including UN Law!”
So, where to begin?
Well, it’s worth noting (to begin with), that these two comments are characteristic of a large amount of the ill-informed and unsophisticated prejudice passing as expressions of concern about Sharia law in Australia. And they make no substantive contribution to the national discussion regarding Muslims in Australia; they do little more than flood the interwebs with invective and white noise.
The first comment, regarding matrimonial matters, has nothing to do with Australian law. The jurisdiction of the Family Court of Australia administers questions of marriage and divorce pursuant to the Family Law Act 1975. That reality is displaced or otherwise modified not-at-all by the practices of some people of the Muslim faith, which practices might involve imams and Sharia “courts” and chanting “I divorce you.” Indeed, those practices are things which go on the in the private lives of the people concerned – and those are things that are none of Helen’s business. But try telling Helen that (or Senator Lambie, for that matter).
People in Australia are entirely free to resolve their matrimonial issues (to the extent that is possible) without initiating proceedings in the Family Court, if they so choose, so long as they don’t break the law in the process. If any person - including a person of the Muslim faith - feels aggrieved following a failed attempt to resolve their matrimonial issue privately, then they are free to use the laws available to them to resolve the matter – their access to Australian law remains available to them.
If a person of the Muslim faith manages to resolve their matrimonial matter by resort to something they call a Sharia “court,” thereby avoiding the need to add their matter to the Family Court’s already overburdened lists, then that is a private matter for them. If a Muslim husband chooses to chant three times “I divorce you,” it may mean a whole lot to him and it may also mean a whole lot to his wife.
Crucially, however, under Australian law, it is meaningless. The man and his wife have done nothing more than engage in some private ritual, as they are free to do. The fact that one or the other party, or both, may have acted in accordance with the directives of an imam is their business. The fact that some people of the Muslim faith attempt to resolve their matrimonial issues by resort to a Sharia “court” is a “fact” in their minds only. So far as Australian law is concerned, resort to a Sharia “court” is nothing more than something people are free to do in their private lives because it is nothing that in any way involves the law. It is certainly nothing that supplants or displaces or modifies the law, in any way, shape or form.
The second comment is fanciful, and wrong. Without getting too technical, the so-called “Cairo Agreement” – formally known as the Cairo Declaration on Human Rights in Islam (CDHRI) is an instrument which was adopted in Cairo, Egypt, on 5 August 1990. It is widely acknowledged to be an Islamic response to the Universal Declaration of Human Rights (UDHR) adopted under the auspices of the United Nations in 1948.
Put simply, Australia is not a signatory to the CDHRI (it is a signatory to the UDHR). As Australia is not a signatory to the “Cairo Agreement,” the necessary steps for it to be enshrined in Australian law: ratification and enactment in legislation by the Australian parliament, cannot be fulfilled. So much being so, the application of Australian law to Muslims who are subject to Australia’s jurisdiction is affected in no way whatsoever by the CDHRI. It is simply of no effect in this country.
The remainder of the “quick obvious points” made by Senator Lambie in her video reveal a crying need for much greater thought on the matters concerned (by her and her advisors) and much more careful articulation. They are generally absurd. I am inclined to say they are almost humorous, as in farce - except for the fact of Senator Lambie’s important role in the making and reviewing of laws in this country.
Nonetheless, I can’t but help point out some quick obvious points about her quick obvious points:
. “Support for Sharia is an obvious sign of radicalization” (I guess that makes me radicalized)
. “Sharia law is undemocratic” (as are the secular rules I apply to others in my own house)
. “Sharia law imposes the death penalty on gay people just for being gay” (not in Australia it doesn’t)
. “Sharia law imposes the death penalty on women who aren’t faithful to their husbands” (see above)
. “Sharia law … is religious, civil and criminal law all rolled into one code” (although not so-rolled by the Australian parliament)
. “It has no separation of powers” (huh?)
. “Sharia law is nothing more than an anti-democratic cancer that doesn’t belong in a free society”
What does not belong in a free society is Senator Lambie’s proposal for what a free society should look like in Australia.
A free society does not give licence to interfere in the private lives of others for no better reason than the fact that they belong to a particular religion. That is Nazism by any other name. The commitment to the freedom of any individual from interference in his or her private life by that individual’s neighbours, or by the state, is a long-recognized tenet of liberal-democracy.
In the closely-regulated – and, now, monitored - world we moderns inhabit, that precious private space is already severely compromised. Senator Lambie proposes to significantly degrade that remaining private space where it happens to belong to a Muslim who is domiciled, whether temporarily or permanently, in Australia.
Senator Lambie’s claim that there is somehow a link between the private and extra-legal administration of young Muslim couples’ matrimonial arrangements (for example) and matters of national security is, quite frankly, breathtakingly naïve.
Her lack of perspective and poorly-camouflaged bigotry contributes absolutely nothing to the free society she claims to support for Australia.
*Phil Patterson is an Australian lawyer who lives in Hobart. He practiced predominantly as a commercial litigator, and, for several years prior to that, from not long after the 9/11 attacks, as a counter-terrorism lawyer for the Commonwealth Attorney-General’s Department. He is currently a PhD researcher at the University of Melbourne. His thesis was inspired by his time in Canberra. It is entitled: “Virtue and the ‘Three Monkey Defence’: Regulating Ethical Conduct in the Australian Public Service.”