Multicultural conflict and the challenge to the rule of law

Multicultural conflict and the challenge to the rule of law

Laurence Maher Posted Friday, 30 November 2018

In Australia and the other inheritors of the English common law world, the abstraction the rule of law has often been taken to refer to the three inter-related broad constitutive principles essayed by Albert Venn Dicey (1835-1922) in his Introduction to the Study of the Law and the Constitution (1885). First, ours is a society regulated by fixed and ascertainable legal rules enforceable by an independent judiciary rather than government by the exercise of wide, arbitrary or discretionary powers of constraint; secondly, that legal framework applies to every individual; finally, it secures three specific constituent individual liberties: the right to personal freedom, the right to freedom of discussion and the right of public meeting.  

Each of those broad principles can be given concrete specification by analysis of elements such as the ancient writ of habeas corpus, the presumption of innocence, the ban on forced confessions, the right to legal representation, the open justice principle, the right to a fair hearing, Commonwealth and State constitutional law, the modern law of merits and judicial review of administrative decisions, and much more.

Nowadays in the Australia legal academy, Dicey's name is almost entirely forgotten. His Victoria-era confidence in the protective nature of his third broad specification is not spoken of much in polite society. It is heresy to contend that Australia does not need a "modern" Bill of Rights. The prevailing mood, reminiscent of the Cultural Cringe of old, is that we must "keep up with the International Joneses". Thus, the conventional wisdom which has evolved over the past half century, is that Australians should reproach themselves for failing to rise up in one loud voice demanding that a Bill of Rights be created forthwith. The internationalist approach is given prominent expression in the CommonwealthAustralian Human Rights Commission Act 1986, the Victorian Charter of Human Rights and Responsibilities Act2006, the ACT Human Rights Act 2004, and the pending Queensland Human Rights Bill.

The ideological foundation is the claim that the real source of what are called human rights is to be found predominantly in post-World War Two international covenants. Those instruments go well beyond legal rights and obligations of the kind Dicey had in mind to encompass social and economic entitlements. And to a major extent those rights are treated as inherent in specific groups of people at the expense of the universal individual rights which the 1948 UN Universal Declaration of Human Rights set forth.

If, fifty years ago, anyone had suggested that in the foreseeable future members of one or more cultural groups (even if only a handful of fanatics) would emerge or settle in Australia and reject altogether the principle of the supremacy of the rule of law in Australia because of a claim to complete superiority of one or other of their groups' cultural ideas, the response is likely to have been at least one of incredulity. If, in addition, it had also been suggested that it would come to pass that limitations, legal and extra-legal, would be imposed to curtail open public debate on such cultural ideas for fear of offending their adherents, the response would likely have been side-slapping derision.

Fifty years ago nobody could have predicted that Australia, along with comparable nations, would have adopted the elaborate ideological Western belief system that is contemporary multiculturalism. If the absence of the word "dissent" from the vast output of official and non-official documentary material disseminated in Australia about that ideology is any guide, it will be readily apparent that there is a taboo on speaking about that type of multiculturalism in anything other than approving ideological terms. This is more than passing strange since, as a matter of common sense, the word "culture", perhaps now the most pervasive and least useful abstraction in the English language (followed closely by various subalterns, especially "diversity", "identity", "inclusion", "respect", "narrative", etc), is value neutral. "Culture" is a mixed bag of good and bad beliefs, ideas and practices. But the official Australian multicultural notion of diversity although aimed at promoting equality rests on an ideological hierarchy of privileged categories of ideas.

Given that two of the privileged categories of ideas are religion/theocracy (about which devastating armed conflict is occurring elsewhere on the globe) and sexual equality/sexuality, it was inevitable that the rigid ideological version of multiculturalism would collapse under the weight of its inherent contradictions. At its worst, the incompatibility between theocratic and democratic systems of government carries the inherent risk that in a secular democracy the supremacy of the rule of law will be questioned. This has begun to occur in Australia.

One example of the reception in Australia of ideas about the "cultural" treatment of women which is manifestly incompatible with Australian legal and social norms defining the equality of the sexes can be seen in the use of one word in a single sentence in a recent Court judgment. It emerged in the case of a woman from Sudan who had arrived in Australia via Uganda as a refugee in 2006. She pleaded guilty in the Supreme Court of Victoria to the infanticide of one of her children, the murder of two more of her children and the attempted murder of a fourth. Before she left her homeland, she had been subjected to a shocking ordeal. She had been caught up in violent upheaval, had witnessed her husband's murder, and had been raped repeatedly.

Thereafter, in the passing observation of the Victorian Court of Appeal allowing her appeal against sentence ( a decision now the subject of a pending application for special leave to appeal to the High Court of Australia), "As was tradition, the woman became the wife of her dead husband's younger brother, who had two other wives (my italics)."

In his First Annual Report (2011) as Independent National Security Legislation Monitor, Mr Bret Walker SC, of the NSW Bar, made the general point about the everyday reality of inevitable cultural conflict by drawing attention to the social distrust or hostility which occurs when different ethnic and cultural groups travel or migrate, including in settler societies such as Australia. In a display of exquisite tact, he observed that: "The success of multiculturalism cannot conceal this problem." Had he been inclined to plainer speaking he might have said that the most extreme adherents of contemporary politico-cultural supremacism in the nation hate Australia and its constituent secular values with an abiding passion.

One example of the mischief that lurks in the prevailing worshipful approach to international human rights legal standards is the determination of the 57 member states of the Organization of Islamic Co-operation - which has a permanent delegation at the United Nations and has promulgated its own sectarian (Cairo) Declaration of Human Rights - to secure the adoption of an international agreement on the criminalization of defamation of religion. As recent events have reminded us, in Australia, elements of the leadership of the Islamic community are quick to be outraged and to take offence if the politico-religious beliefs which constitute Islam are exposed to critical public scrutiny.

Other recent events have brought into sharp focus the fact that no amount of ostrich-like denial can disguise the folly of ignoring the misguided nature of official multicultural zealotry which fences off categories of ideas from close public examination for fear of causing offence.

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) Act2016 because 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.

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

Growing Up in a Progressive Utopia - life in a socialist country.

Growing Up in a Progressive Utopia

written by Konstantin Kisin

I grew up in one of the most progressive societies in the history of humanity. The gap between the rich and poor was tiny compared to the current gulf between the ‘haves’ and the ‘have-nots’ we find across much of the West. Access to education was universal and students were paid to study and offered free accommodation. Healthcare was available to all and free at the point of use. Racial tensions were non-existent, with hundreds of different ethnic groups living side by side in harmony under the mantra of ‘Friendship of the Peoples.’ Women’s equality was at the very heart of Government policy. According to the prevailing ideology “all forms of inequality were to be erased through the abolition of class structures and the shaping of an egalitarian society based on the fair distribution of resources among the people.”

You are probably wondering whether the idyllic nation from which I hail is Sweden or Iceland. It was the Soviet Union. In modern Britain the top 10 percent earn 24 times as much as the bottom 10 percent but in the Soviet Union the wealthy and powerful barely made 4 times as much as those at the bottom. The illiteracy rate in late Soviet times was just 0.3 percent compared to 14 percent of the US adult population who cannot read today. University students were paid an allowance to study and those from working class backgrounds were often given preferential treatment to facilitate better access to higher education. Free accommodation was available for students studying outside their home town.

The Soviet Union was a huge country populated by hundreds of ethnic and religious groups that had been slaughtering each other for centuries. In this shining example of a successful multicultural state, Armenians, Azerbaijanis, Ukrainians, Russians, Tatars, Moldovans, Belarussians, Uzbeks, Chechens, Georgians, Kazakhs, Tajiks, Turkmens, Lithuanians, Estonians, Latvians, and dozens of others all lived side-by-side as friends and neighbours.

The USSR actively promoted women’s equality in order to get more women into the workforce, with some of Vladimir Lenin’s first steps after the 1917 Revolution including simplifying divorce and legalising abortion with the stated goal of “freeing women from the bondage of children and family.” Maternity leave was generous and the state provided ample childcare centres, one of which I myself attended.

Unfortunately, despite these facts and the lofty ideals from which they were derived, the reality of life in the Soviet Union was rather different.

Low levels of wealth and income inequality were achieved by making everyone poor and restricting access to basic goods such as food, domestic appliances, and basic clothing. The ’emancipated’ women of the USSR were denied the evil fruits of misogynistic Western civilisation such as tampons, washing machines, and the ability to feed their children. And while healthcare provision was universal, it was also universally poor and entirely corrupt. Only people with influence, connections, and the ability to pay bribes could actually obtain good treatment.

University places which paid students to study were subject to the same corruption with examiners able to solicit bribes and favours. In exchange for an education, you forfeited the right to a future career of your own choosing—instead, you would be allocated a job by the state system, often in a completely different part of the country.

The temporary lull in ethnic and religious strife was achieved through systematic murder, forced starvation, mass deportation, imprisonment, and ruthless ethnic cleansing by an oppressive police state to keep everyone in check. At least 50 million people were killed or sent to concentration camps to create this ‘peaceful’ society, to say nothing of millions who had their property seized ‘for the benefit of society.’ These enemies of the state included my great-grandparents who met in a Soviet concentration camp for political prisoners. Every morning at their camp, three people would be picked out at random from the general population of the camp and thrown into the icy waters of the lake to freeze and drown in full view of the other prisoners to ‘keep things under control.’ And the moment the regime was no longer able to keep a lid on this volatile melting pot, it exploded into horrific ethnic conflicts, which erupted all over the former Soviet empire and resulted in the deaths of millions of people.

With this background, I am—perhaps understandably—hypersensitive to the emerging far Left in Western politics. I can’t help noticing similarities in the rhetoric about “eradicating inequality,” “smashing the class system,” and a new age of “radical egalitarianism.” And when I do, I shudder.
I shudder because such people no longer appreciate what they have in the West: one of the most prosperous, free, fair, equal, tolerant, peaceful, and open societies not just in the world today but in the entire history of our species. This isn’t an abstract point about the ungrateful youth of today, it’s a reminder of the unforgiving reality that those who don’t realise how good they have it, or take their lives of plenty for granted, are vulnerable to demagogic ideologies that promise to tear it all down to build a ‘better tomorrow’ just as the founders of the Soviet Union did before them.

I shudder because I know that an environment in which anyone who does not hold the correct political views is ostracised can eat away at the heart of what makes Western society a beacon of hope to the rest of the world: the fact that we value free speech and individual autonomy above anything else, including material or practical considerations.

I shudder because the murderous track record of the far Left is no better, and arguably far worse in terms of raw statistics, than that of the far Right. I say “Nazi,” you say “Holocaust,” but “Communist” does not bring to mind the 50 million who perished in my country or the 80 million murder in Maoist China.

In an ideal world, everyone would be equal in every way and we would all ride our unicorns to the end of the rainbow. Unfortunately, we do not live in that world we live in this one. We must deal with reality as we find it not as we wish it to be. And we must bear the cruel lessons of history in mind as we do so.

World has far more reason for cheer than fear - Bjorn Lomborg

World has far more reason for cheer than fear

By Bjorn Lomborg

It is very easy to form the view that the modern world is coming apart. We are constantly confronted with an onslaught of negativity: Frightening headlines, alarming research findings, and miserable statistics. 

There are indeed many things on the planet that we should be greatly concerned about, but fixating on horror stories means that we miss the bigger picture. The UN focuses on three categories of development: Social, economic, and environmental. In each category, looking back over the last quarter-century, we have far more reason for cheer than fear. Indeed, this period has been one of extraordinary progress. Socially, the most important indicator is how long each of us lives. In 1990, average life expectancy was 65 years. By 2016, it had climbed to 72.5. In just 26 years, we gained 7.5 years of life. A pessimist might suggest this means we have 7.5 more years to be sick and miserable, but this is not the case. In 1990, we spent almost 13 percent of our life unwell, and that percentage has not increased. And, while there is much talk of inequality being worse than ever, on this most vital measure inequality is decreasing: The gap between life expectancy in poor and rich countries has narrowed dramatically. In terms of economic development, one of the most important indicators is the share of people in poverty. Far fewer people now live in abject need. In 1990, 37 percent of all people were living in extreme poverty; today it is less than one in 10. In just 28 years, more than 1.25 billion people have been lifted out of poverty - a miracle that receives far too little attention. 

Looking at the environment, one of the biggest killers is indoor air pollution caused by poor people using dung and wood to cook and keep warm. In 1990, this caused more than 8 percent of deaths; now it is 4.7 percent. That equates to more than 1.2 million fewer people dying from indoor air pollution each year, despite an increase in population. We are constantly confronted with an onslaught of negativity, but we should all challenge ourselves to pay more attention to the positive facts about the world.

There is a similar trend in many other environmental development statistics. Between 1990 and 2015, the percentage of the world practicing open defecation halved to 15 percent. Access to improved water sources increased by 2.6 billion people in the same period, to 91 percent, meaning more than one-third of the world's entire population gained access to improved water. The improvements do not stop there: The world is more literate; child labor has been dropping; we are living in one of the most peaceful times in history; and the majority of the world's governments are democratic regimes. 

Max Roser, of Oxford University, has built a comprehensive website to explore data sets like these. He strikingly suggests that we could think about these quarter-century changes in terms of what happened over the past 24 hours. Seen this way, just in the last day, average life expectancy increased by 9.5 hours; 137,000 people escaped extreme poverty; and 305,000 got access to safer drinking water. 

The media could have told each of these stories every single day since 1990. But good news is not as newsworthy as bad news. That is not just the media's fault. It is more challenging to tell a positive story. In many cases, the "news" isn't that something has happened, but that a bad thing is no longer happening. It doesn't capture our imagination in the same way. 

An intriguing 2014 study found that, even when participants stated that they wanted to read positive stories, their behavior revealed a preference for negative content (a preference they didn't even realize). 

We should all challenge ourselves to pay more attention to the positive facts. When people are asked if living conditions around the world will be better in 15 years, 35 percent believe they will be and 29 percent think they will get worse - essentially a toss-up. But, among people who understand that many things on the planet already are better than they were, 62 percent believe in progress. That share drops to just 17 percent among those who don't know the facts. 

The belief that everything is getting worse paints a distorted picture of what we can do, and makes us more fearful. Consider the fairly common scenario in which politicians and the media whip up fear of crime, even when statistics show national crime rates are low or falling. Attention and scarce resources can end up being devoted to solving the wrong challenge, and we get more police on the streets or reduced civil liberties, rather than more welfare-enhancing - but less newsy - policies like improving pre-schools or healthcare.

While getting the facts wrong can easily result in misguided, fear-based policies, a more balanced, fact-based recognition of what humanity has achieved enables us to focus our efforts on the areas where we can achieve the most good (often where we are already doing well). This will ensure that the future can be even brighter.