AUSTRALIAN courts will increasingly have to grapple with the sexist cultural traditions of minorities from the Middle East and south Asia, the state’s most senior judge says, and will find it difficult without more support from politicians.
After 200 years of debate about how to deal with Aboriginal customary law, the Chief Justice, Jim Spigelman [right], said the country’s growing diversity was creating new conflicts about how to deal with the customs of immigrant populations.
”There are important racial, ethnic and religious minorities in Australia who come from nations with sexist traditions which, in some respects, are even more pervasive than those of the West,” he said last night.
The legal dilemmas include honour crimes, forced marriages and other examples of violence against women, he said, but such cases exposed a rift between support for universal rights and our purported belief in tolerance. And unlike in Britain, where forced marriages have been outlawed, Australia lacks the laws to deal with them.
Australian courts have begun hearing cases – common in Europe – where Western and international law clash with traditional values. In the case of Hami Qutami in 2001, a Jordanian Christian tried to hire someone to kill his niece, who was in a relationship with a Muslim. Qutami argued that the family’s shame and the niece’s forgiveness should mitigate his sentence.
In a case in 1973, a Sicilian girl was abducted in Italy. Her father would have been culturally obliged to kill her if she did not marry her kidnapper, but the Australian court annulled the marriage on the ground of duress. In a speech at the University of NSW on violence against women, Justice Spigelman said judges had to decide such cases with one eye on stopping violence against women, ”even if motivated by cultural considerations”.
But experience in dealing with Aboriginal customary law shows imposing Western ideals is not always the answer. ”Human rights norms are, to a substantial degree, based on assumptions about individual autonomy, the full implications of which are not universally accepted …
”There is a fundamental conflict between a human rights approach to these matters, on the one hand, and the tolerance of cultural traditions, based on an assumption of an equality between cultures, on the other hand … There is no way of avoiding the dilemma arising from this conflict of values.” In Australia the trafficking of under-age people for a forced marriage was illegal, but there were no criminal sanctions for obtaining consent to marry through duress, he said.
In Britain the government passed laws in 2007 allowing the family court to prevent forced marriages and stop intimidation.