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Intersections between the Law, Religion and Human Rights Project: Literature Review prepared by Schofield King Lawyers (2011)

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Intersections between the Law, Religion and Human Rights Project

Literature Review prepared by
Schofield King Lawyers for the Australian Human Rights Commission

January 2011

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Contents


Introduction

Schofield King Lawyers was contracted by the Australian Human Rights Commission (the Commision) to investigate intersections between the law,
religion and human rights focusing on:

  • The practice of Alternative Dispute Resolution (ADR) processes in
    religious communities (with a focus on Islamic communities) in Australia,
    particularly in respect of family law issues.
  • Education:
    • Education on the intersection of human rights, religion and
      culture (with a focus on Islamic communities) in the context of ADR processes
      for the judiciary, court staff, lawyers, police, and the broader community
      including religious communities (with a focus on Islamic communities);
    • Education for members of Australia’s religious communities
      (with a focus on Islamic communities) who engage in or support ADR processes in
      family disputes about rights and obligations that apply to all members of the
      community in Australia’s legal system and the intersection of human
      rights, religion and culture in the context of ADR processes;
    • Education for the members of Australia’s religious
      communities (with a focus on Islamic communities) and the broader community
      about the role of the court, legal advice and opportunities for ADR already
      available and how the current systems can accommodate difference where
      appropriate;
    • Training for religious leaders (with a focus on Islamic
      communities) to be able to identify situations of family violence and refer the
      parties individually appropriately; and
    • Creating space for dialogue between judges, police and religious
      leaders (with a focus on Islamic communities)
      (Australian Human Rights
      Commission 2010: 3-4).

As contracted with the Commission, this
review reports on collated and analysed “research from the States and
Territories on the Two Themes of the Project, in particular from Queensland and
Western Australia” (Australian Human Rights Commission 2010:13). The
review concludes that comprehensive and systematic Australian research is
required to investigate the topics raised by the “two themes.”

Australian Research on
Practice, Education and Training in Alternative Dispute Resolution Related to
Family Law Issues in Islamic Communities

The Australian literature on this subject, in terms of published,
high-quality research (that is, systematic and comprehensive investigation
undertaken with public funding, either through research higher degrees or
competitive, peer-reviewed grants), is sparse indeed. There are published
critical commentaries and opinion pieces, and there is online material
describing recent developments related to the subject. However, the research
required to identify and analyse the patterns and dynamics of alternative
dispute resolution related to family law matters in Islamic communities in
Australia does not yet exist.

Much of what is published in relation to alternative dispute resolution
related to divorce and family matters in Islamic communities in Australia claims
that the prevailing system of Australian family law and its provisions for
managing marital breakdown, divorce, child custody and parenting arrangements
does not adequately address the rights and interests of Islamic Australian
citizens, providing reasons and argument in support of it. What is notably
absent however is published empirical research – both quantitative and
qualitative – that demonstrates:

  • how and why current family law and mediation provisions are failing
    Australian Islamic communities;
  • the extent to which members of Australian Islamic communities engage in and
    support alternative dispute resolution processes related to divorce and family
    matters;
  • the extent to which members of Australian Islamic communities eschew and
    reject alternative dispute resolution processes related to divorce and family
    matters; and
  • how and why the existing operation of alternative dispute resolution
    processes related to divorce and family matters in Islamic communities do or do
    not serve their rights and interests.

The following outlines and
critically discusses the existing published commentaries that engage with
alternative dispute resolution, divorce and related family matters among
Australian Islamic communities.

1. Australian family law
does not accommodate the requirements of Islamic divorce, child custody and
parenting arrangements

One of the most influential contributions to the commentaries on family law
issues in Islamic communities in Australia is Jamila Hussain’s book, Islam: Its Law and Society (2004). Hussain addresses the issue of
alternative dispute resolution in relation to family law issues within Islamic
communities in the context of divorce, child custody, and parenting plans and
consent orders. She prefaces her discussion by explaining that there is little
conflict between Sharia or Islamic law and Australian Family Law regarding the
issue of marriage. She notes that Imams are registered as Marriage Celebrants
and all elements of Islamic marriage such as the consent of a Wali (guardian for marriage), Mahr (dowry), offer and acceptance, may all
be complied with within the terms of Australian law. At the same time, all
requirements of Australian law towards marriage, such as notice, consent,
witnesses and registration, are readily acceptable to Muslim couples. The only
issue of Muslim marriage which conflicts with Australian law, Hussain notes is
that of polygamy which is criminalised in Australia as bigamy.

Nevertheless, Hussain proposes that there is a major conflict facing Muslim
compliance with Australian Family Law in relation to divorce. Religious
divorce, unlike religious marriage, is not recognised at all by Australian law.
Hussain argues that this is a problem for Islamic communities in Australia for a
number of reasons. First, by contrast with the Australian Family Law Act 1975
(Cth) (cited in Hussain 2004:218), Islamic divorce customarily takes three
months, not twelve. Second, while the Australian Family Law Act 1975 does not
acknowledge “fault” in divorce, some Muslims prefer to have fault
included in the divorce process. Third, Australian law pertaining to child
custody arrangements, parenting plans and consent orders (which take into
account a child’s social and familial background, and the time spent with
each parent) fail to address the Islamic law that children must live with their
mother and should remain with their ethnic/religious community. Hussain
concludes, “the result is that some Muslims have decided to disregard
Australian laws entirely in family matters and have simply married and divorced
under religious law” (Hussain 2004:219). Furthermore, Hussain continues,
when Muslim women in Australia want a religious divorce, they must return to a
Muslim country in which there is a Muslim court or seek the assistance of a
group of local Sheikhs who have established an informal tribunal to deal with
these matters. She comments that “the Family Law Council has recently
conducted an inquiry into this problem” (Hussain 2004:219).

In response, Hussain (2004:219) proposes a specific alternative dispute
resolution process as her following comment outlines:

“Since mediation has become the desired method of settling disputes
between divorcing parties concerning children and even property, and since
mediation and arbitration are the recommended means of settling marital
differences under Islamic law, there is a need for the Muslim community to set
up their own family mediation service. At present, Muslim couples referred to
mediation must attend upon non-Muslim mediators who cannot be expected to
understand fully the cultural and religious issues involved. Normally, Muslims
are reluctant to seek help from sources outside the community and will use
Australian Courts only as a last resort and even then the Court’s judgment
will not necessarily resolve underlying problems which are caused by different
family values”.

Hussain’s assertion that Australian Muslims prefer to have fault
included in the divorce process, is a significant claim that is supported by no
research on how widespread this preference is and whether it is held by the vast
majority of Australia’s diverse Islamic communities. The further claim
that when Muslim women in Australia want a religious divorce, they must return
to a Muslim country in which there is a Muslim court or seek the assistance of a
group of local Sheikhs to deal with these matters, is also advanced in the
absence of any evidence to demonstrate how extensive this practice is among
members of Australian Islamic communities. And while there is strong evidence
that immigrant communities from non-Anglo ethnicities are significantly
under-represented in their use of family mediation services associated with the
Australian Family Court (see Armstrong 2009:4), further research is needed to
establish whether people from Islamic communities are over-represented among
this group.

2. Australia
is “not ready for legal recognition” of Sharia law in interpersonal
disputes, especially related to divorce and family matters

In Queensland, the legal researcher, Ann Black (2008), comments on
alternative dispute resolution processes and family law issues in Australian
Islamic communities in her Alternative Law Journal article,
“Accommodating Sharia law in the Australian legal system: Can we? should
we?” Like Hussain, she claims that Australia’s 350,000 Muslims have
a “preference to have disputes (including those related divorce, child
custody and parenting) settled by persons with Islamic credentials” (Black
2008:216). Black reiterates many of Hussain’s comments on Australian
Islamic practice related to divorce. She states, “the reality is that for
Muslims generally in Australia, marriage, including polygynist ones, divorce and
custody can and do occur without resort to the Australian legal system”
(Black 2008:216). And like Hussain, she cites no research to substantiate this.
An important and useful conceptualisation of the issue of religious divorce
among Australian Islamic communities proposed by Black (2008:216), however, is
that it “operates in the realm of the unofficial or the extra-legal,
leaving it in a sphere of cultural practice (emphasis added).” As a
result, she comments, there are significant implications for Islamic
communities. One is that the legally unregulated operation of Sharia in relation
to divorce does not guarantee fairness and justice:

“As Shariah
law continues as the dominant normative force in the lives of many Australian
Muslims, its operation and regulation is essentially 'underground', in the sense
that it is not subject to scrutiny by anyone other than its participants. Nor is
it subject to the protection Australian laws and process could provide...
Essentially, we are allowing determination of important matters like divorce,
custody and maintenance to go unchecked. Islam is premised on doing justice
between the parties, and in seeking fairness in terms of the Shariah. But can
Muslims in this country be sure, in a totally unregulated or self-regulated
environment, that this is being achieved? If the government, in conjunction with
representative bodies of the Muslim community, were to agree and give formal
recognition to the application of Islamic law by a Board of Imams, a Shariah
Arbitration Councilor Court, the opportunity for regulation and accountability
becomes more likely”
(Black 2008:217).

This argument lies at
the heart of support for the establishment of publicly recognized alternative
dispute resolution processes related to divorce, child custody and parenting
arrangements in Australia. (It is one advanced in detail by Ghena Krayem, a
Sydney-based PhD researcher, whose comments are discussed below.) Yet as Black
also explains, such a view is by no means unanimous among and representative of
Australia’s diverse Islamic communities. Citing a Family Law Council of
Australia (2001) report, she claims that just as common among Australian Muslims
is the view that the Australian Family Law system does provide access to
fairness and justice in relation to divorce and related matters (Black
2008:218). She also reports on the widespread and organised opposition by Muslim
women in Canada to the proposed introduction of legally sanctioned faith-based
arbitration – or religiously based alternative dispute resolution –
on the basis of its potential for the violation of women’s civil rights,
especially in relation to family law matters (Black 2008:219). In the face of
the pluralised character of contemporary Islamic life and views, particularly in
relation to divorce, and the male dominance of Islamic religious governance in
Australia, Black concludes that Australia is “not ready for legal
recognition” of Sharia law and the introduction of alternative
interpersonal dispute resolution mechanisms. In the absence of an Australian
bill of rights, she adds, the lack of readiness is even further compounded.

3. Muslim women in
Australian Islamic communities are diverse in their views and practices,
including in relation to religious divorce and related family matters

Samina Yasmeen (2005, 2007, 2010), based at the Centre for Muslim States
and Societies at the University of Western Australia, is a scholarly commentator
on Islamic communities in Australia. Much of this commentary is based on
published social research. Her sociological work on Muslim women in Western
Australia is especially informative in terms of understanding the diversity of
Muslim women’s participation in family, social and political life, and the
views they hold in the process, including those related to marriage, family and
divorce. Certainly, as she proposes, “traditional Muslim womanhood”
is alive and well but no more so than emergent femininities that seek to combine
Islam with the rights and freedoms of democratic secularism. Despite this, as
Yasmeen (2007:51) comments, there is little appreciation by public authorities
of this diversity:

“The dominant society has generally focused
on those who obviously look Muslim. Hijab, in this context, has emerged as the
definer of Muslim women-hood. The tendency to equate those wearing hijab as the
true representatives of Islam is admittedly not limited to Australia.
Nevertheless, the emphasis on symbols has created a condition where the wider
society and state assumes that those subscribing to traditional dress code are
truly representing Muslim women. State structures inadvertently and innocently
support the orthodox Muslim women groups without always exploring representation
from the other end of the spectrum. The trend is slowly changing with some
government agencies (for example, the Office of Multicultural Interests in
Western Australia) engaging a wider network of Muslim women. But the overall
picture remains one where a smaller minority of Muslim women subscribing to
traditional notions of Muslim womanhood are being recognised and acknowledged by
governmental institutions as representing all Muslim women.”

In a recent telephone interview (6 January 2011) for this literature review,
Professor Yasmeen reported that neither she nor those connected with her Centre
have conducted any research into alternative dispute resolution processes
related to family law matters. Professor Yasmeen did say that in 2010 the
Centre held three workshops for the Muslim community in Perth for three Sundays
from 2 May to introduce participants to Australian and Family Law and Family Law
Dispute Resolution. Training was provided to participants in dispute resolution
processes and practice in the community. Associate Professor Robyn Carroll at
UWA's Law School facilitated the workshops which were designed to meet the needs
of local Muslim community members, leaders, imams and advocacy organisations,
and at no cost to participants (see also http://www.cms.uwa.edu.au/). In the same
telephone interview, Yasmeen further commented that among “traditional
Muslim women” in Western Australia, secular divorce as administered by the
Australian legal system raises significant issues for their understanding of
their status as no longer married. Yasmeen argues that Islamic religious divorce
plays a profoundly constitutive role in cultural understandings at least among
“traditional Muslim women” (Yasmeen 2007) of how they understand
their marital status and identity. In the absence of religious divorce, they
often believe and feel their marriage has not been dissolved and they are not
free to re-marry.

4. Islamic family
law does not oppress women: it is women’s exclusion from its governance,
and the absence of public support for and regulation of how it operates that is
the problem

Ghena Krayem, as previously mentioned, also concurs that research to
explore Australian Muslim women’s views and practices in relation to
divorce and related family law matters is well overdue (2008: 24). In an online
paper from a recent national conference Challenges to Social
Inclusion in Australia: The Muslim Experience -
conducted by the National
Centre of Excellence for Islamic Studies Australia at the University of
Melbourne, Krayem (2008:2) examines “the call for recognition of Muslim
Family Law” in Australia. She argues that “what is needed is a
genuine dialogue with the community, one that is not reliant on mere stereotypes
and generalisations but one that is informed by the real lived experiences of
women within these minority groups
(emphasis added).” It is in this
context, according to Krayem, that research is needed. Significantly, however,
while she argues a passionate case for the introduction of aspects of Muslim
Family Law into Australian divorce processes, no research is presented in
support of her assertions about the relationship between their operation and
their impact on Australian Muslim women from the perspective of women
themselves
.

Rather, Krayem argues her case with reference to a
critique of an argument by some feminist commentators that
“multiculturalism is bad for women”. She draws on theoretical
contributions by proponents of multicultural liberalism and citizenship such as
Will Kymlicka (1989, 1995, 2007 cited in Krayem) and Ayelet Shachar (2007 cited
in Krayem) in developing her case. Her conclusion is that, contrary to the
prevailing international feminist argument that Islamic family law, especially
in relation to divorce, disadvantages women and consolidates gender inequities,
this is not necessarily the case. It all depends on how secular State-based
family law and Islamic family law are combined as a system of governance in
relation to divorce and related family matters. Fundamental to Krayem’s
argument here is the need to establish “genuine dialogue” and
co-operation between Islamic communities and the state, including Muslim women
as distinct from “the Muslim community” as a
whole.

Krayem’s paper suggests that state-sanctioned alternative
dispute resolution processes related to family law matters in Islamic
communities are fundamental to the rights of religious-ethnic communities within
liberal democracies, and in particular of women within them. In the absence of
such processes, in fact, Krayem proposes that the rights and interests of Muslim
women are threatened. The confinement of Islamic divorce to an unofficial,
cultural practice is a major challenge to gender equality in Australian Muslim
communities. While Krayem’s paper is not a peer-reviewed publication, it
has underpinned a number of opinion pieces and commentary in the Australian
media about Islamic family law and women’s rights (Krayem and Farache
2008, Neighbour 2010-2011). It is for this reason that it is discussed in this
review. Significantly, while Krayem’s case rests heavily on what
Australian Muslim women say and do in relation to Islamic divorce, the
research-based evidence for this is neither presented nor cited in relevant
peer-reviewed publications.

Conclusions

The establishment of alternative dispute resolution processes associated with
divorce and family law matters in Islamic communities in Australia warrants
further research. If policy makers and legislators are going to look at this
issue systematically, then it is critical that they are informed about the
arguments and reasons marshalled by proponents and opponents of Islamic ADRs
associated with divorce and related family law matters. They also need to be
able to draw on sound empirical research – both quantitative and
qualitative – that lets us know:

  • how and why the current family law and mediation provisions are failing
    Australian Islamic communities;
  • the extent to which members of Australian Islamic communities engage in and
    support alternative dispute resolution processes related to divorce and family
    matters;
  • the extent to which members of Australian Islamic communities eschew and
    reject alternative dispute resolution processes related to divorce and family
    matters; and
  • how and why the existing operation of alternative dispute resolution
    processes related to divorce and family matters in Islamic communities do or do
    not serve their rights and interests.

Critical scholarship in the
field has developed rapidly with publication of cogent and well-argued
commentary about the pros and cons of ADRS in Islamic divorce and related family
law matters in Australia. Systematic and comprehensive empirical social
research, subject to critical peer review in reputable publications, is now
required to furnish an evidence base that can be used in examining the claims
and arguments that have been advanced.

References

Akbarzadeh, S. and Yasmeen, S. (eds) (2005) Islam and the West:
Reflections from Australia,
UNSW Press, Sydney.

Armstrong, S. (2009) ‘Culturally Responsive Family Dispute Resolution
in Family Relationship Centres’, Family Relationships Quarterly
Issue
, Australian Institute of Family Studies, Melbourne.

Black, A. (2008) ‘Accommodating Sharia Law in the Australian Legal
System: Can We? Should We?, Alternative Law Journal, 33, 4, 214-219.

A. Boellstorff, T. (2006) ‘Domesticating Islam: Sexuality, Gender, and
the Limits of Pluralism’, Law & Society Inquiry, 31, 4, 1035
– 1053.

Boyd, M. (2005) ‘Dispute Resolution in Family Law: Protecting Choice,
Promoting Inclusion’, Inroads, September.

Evans, C. and Gaze, B. (2008) ‘Between Religious Freedom and Equality:
Complexity and Context’, Harvard International Law Journal, 49
April 21, 2008.

Family Law Council of Australia (2001) Report on Cultural Community
Divorce and the Family Law Act 1975
(Executive Summary 17).

Hussain, J. (2004) Islam: Its Law and Society (2nd edn),
The Federation Press, Sydney.

International Council on Human Rights Policy (2009)When Legal Worlds
Overlap: Human Rights, State and Non-State Law
, Geneva, Switzerland.

Krayem, G. (2008) ‘Multiculturalism and its Challenges for Muslim
Women’, Challenges to Social Inclusion in Australia: The Muslim
Experience,
NCEIS Conference, Melbourne, pp 1-24, Accessed at:
http://www.nceis.unimelb.edu.au/sites/nceis.unimelb.edu.au/files/Ghena_Krayem.pdf

Krayem, G. and Farache, H. (2008) ‘Grim picture of Sharia hides its
useful aspects’, Sydney Morning Herald, 18 February, Accessed at:
http://www.smh.com.au/news/opinion/grim-picture/of/sharia/hides/its/useful/aspects/2008/02/17/120319064668.html

Provins, M.E. (2005) ‘Constructing an Islamic Institute of Civil
Justice that Encourages Women’s Rights’, International &
Comparative Law Review
, 27, 515 – 540.

Yasmeen, S. (2007) ‘Muslim Women as Citizens in Australia: Diverse
Notions and Practices’, Australian Journal of Social Issues, 42, 1,
41-54.

Yasmeen, S. (ed) (2010) Muslims in Australia: the Dynamics of
Inclusion and Exclusion
, Melbourne University Publishing, Melbourne.

Neighbour, S. (2010-2011) ‘The way to the watering hole’, The
Monthly
, December 2010-January 2011, Accessed at:
http://www.themonthly.com.au/monthly-essays-sally-neighbour-way-watering-hole-sharia-law-2929#