Introduction

1 God doesn’t like high rise development. This was the message that followed the construction, without planning approval, of the Tower of Babel. Mankind’s punishment was linguistic fragmentation presumably to discourage large scale project management. So, in mythology, cultural diversity arose. Some religious groups look back to the good old days before Babel. Their followers seek by free flowing and incomprehensible vocalisation, to recover the universal language of heaven. This practice is called “speaking in tongues” – the search for a kind of Divine Esperanto.

2 The administration of justice is informed by the ideal of equality before the law. But its application across cultural boundaries seems sometimes no less challenging than the quest of those who would speak in tongues to all mankind. For the courts, the challenge is integral to their function. It cannot be avoided. Nor can it be confined to the difficulties of administering justice in cases involving indigenous people or the members of particular ethnic groups.

3 The concept of “culture” embraces the worldviews, mindsets, traditions and practices of a society and societal subgroups defined by geography, indigenous character, ethnicity, religion, occupation and organisational affiliation. Occupational cultures include those of the judiciary and the legal profession and may even be subdivided by geography. The concept of “culture” in this wide sense may lack precision from the point of view of the social scientist but is nevertheless a tool for heightening awareness of social diversity and its implications for what courts do and whether they do it well by reference to their own implicit and explicit standards of equality before the law.

4 It is the purpose of this paper to consider the idea of “culture”, and its significance for the way in which courts do their work. A focus of discussion at this conference is upon the interactions of courts with indigenous and ethnic communities. That focus reflects the pressing practical challenges which those interactions present. It is helpful however to reflect upon those matters in the broader perspective of the many forms of social diversity. That is not to suggest that there is any single general solution to the problems to which they gave me. It is essential, however, that people involved in the work of the courts are educated to an awareness of difference that transcends their own experiences of life. For those experiences and the worldviews that go with them are necessarily culturally conditioned.

5 Many judges and lawyers have encountered diversity in every day living, in the course of legal practice and in the work of the courts. Those who have worked in the area of criminal law will perhaps have seen it more starkly than most. As a young practitioner with a substantial criminal practice I can vividly recall not so much shock but the sense of bafflement I had in trying to comprehend the worldviews and behaviours of some of those whom I represented and of their friends and associates. From my middle class perspectives some of them might as well have come from a different planet. The disconnect was most acute in relation to those few whom I was briefed to defend on charges of murder and wilful murder. The briefs were all legal aid and with one exception the killings were utterly irrational, done on minor or non-existent provocation by people whose personal history from childhood involved abuse, familial dysfunction and social isolation.

6 The lawyer representing such people or the judge hearing their cases can acquire an intellectual appreciation, through psychiatric and other evidence, of the taxonomies of their personalities and disabilities. Beyond taxonomy understanding is elusive. Moral judgment, absent such understanding is a marginal exercise. Society’s disposition of such cases is best and modestly justified as protective.

7 Many of us, I am sure, have had a range of experiences with people and groups beyond our normal experience. We may have formed views or provisional theories about particular groups. But experience, however wide, is no substitute for an informed awareness which not only enables us to regard diversity from within our occupational world, but to stand outside that world and see how it fits into the larger society.

A personal perspective – the native title process

8 My opportunity to stand outside the judicial world of which I was part came about 12 months after the decision of the High Court in Mabo (No 2) [1]. In May 1994, after having served 7 ½ years as a judge of the Federal Court, I was appointed, while still retaining office as a judge, to be President of the National Native Title Tribunal. The Tribunal was a body set up under the Native Title Act 1993 (Cth) to endeavour, through mediation, to resolve native title determination applications. It also had the responsibility of registering such applications and notifying the many interest holders who might be affected by them. It was required to refer to the Federal Court applications which could not be resolved.

9 From judge to administrator and advocate of a highly contentious process was a move out of the curial comfort zone. The whole idea of native title was new. It evoked suspicion and hostility. There was a variety of powerful and articulate non-indigenous groups each with its own perspective who scrutinised every decision, procedure and utterance about the process. These groups included the pastoral and mining industries, the fishing industries, tourism operators, local governments and, of course, State and Territory governments, who were main players in the political process. As I soon discovered, the responsibilities of an administrator trying to develop procedures to implement a legal process are very different from those of a judge required to decide a particular case about whether an administrator’s decision is legally flawed. The Tribunal was judicially reviewed on many occasions. The high point or low point, depending on your point of view, occurred after I had refused registration of a claim by the Waanyi people over land the subject of the proposed Century Zinc mine in North Queensland. I refused registration on the basis that the application could not succeed because of the extinguishing effects of historical pastoral leases in the area. I took the view that observations about the extinguishing effects of leases made by Brennan J in Mabo put the matter beyond doubt. My refusal to register the claim was an administrative act in the application of a test designed to screen out hopeless claims. The decision was overturned by the High Court in North Ganalanja[2] with such moral enthusiasm that the Court gave judgment immediately and reasons later. In so doing, it described my approach as “tantamount to a proleptic exercise of federal jurisdiction”. To add insult to injury, members of the Waanyi people were sitting in Court wearing T-shirts with the message “Ban French Testing”. I have no doubt, in retrospect, that I was properly found to have been in error. The considerations influencing my approach were those of the administrator, the urgent need to get the process moving and to establish its credibility in the face of ongoing attacks. There was a legal bottleneck on the issue of the relationship between pastoral leases and native title which was not resolved until the decision in Wik. Many ill-prepared applications were being lodged and upon registration were entitled to procedural rights affecting third party interests particularly in relation to mining and the release of Crown land for development around regional centres. I learned a useful lesson from all of this and that is that the worldview and culture of the administrator which I had adopted is very different from that of the courts.

10 There was much more in the way of cultural diversity to which I was exposed as a result of the Tribunal experience. Foremost was the interaction with indigenous groups and societies right around Australia. It was of an entirely different quality from that which occurs in a court process. Those interactions are discrete, formal, unequal and distant. My extended conversations with a variety of Aboriginal and Torres Strait Islander people around Australia over five years gave me a sense, beyond mere intellectual appreciation, of the gap that existed between themselves and the institutions with which they were engaging. The beginning of the native title process, coming to the Tribunal and to the Court, for many of them was like setting up a base camp at the foot of Mt Everest.

11 I learnt also that it would be a mistake to underestimate the cultural diversity of Aboriginal societies and, a fortiori, their differences from Torres Strait Islander communities. Even within particular Aboriginal groups there is diversity in aspiration and attainment and social disadvantage. The light and dark of Aboriginal life was brought home in 1995 when I attended a signing ceremony in Broome to mark the first significant framework agreement between a local authority and indigenous people anywhere in Australia. The Aboriginal people of the Broome area had formed a working party entitled “The Rubibi Working Party”. It comprised representatives of Yawuru, Goolaraboloo and Jabirr Jabirr people. Patrick Dodson was its Chairman. The group was focussed and hardworking attending innumerable meetings and committed to the advancement of Aboriginal people in the Broome area. The signing was held on a hill overlooking Roebuck Bay. It was a beautiful day for its weather and for its celebration of a significant step forward. On the way up the hill we stopped to help an intoxicated woman off the road where she had been sleeping. She was one of a group drinking under trees near the roadside. Her tragedy and that of her friends was stark and familiar and replicated in too many places around Australia. But it was not, and is not, the only story to be told about Aboriginal Australians. Overwhelming as the scale of dysfunction and social disadvantage must seem to those working in the criminal courts, both adult and juvenile, who see the worst, it is important for us all to appreciate that cultural awareness is not just a means of better communicating and formulating ways of dealing with damaged or disadvantaged people. It is a means of understanding the success that Aboriginal societies and people have achieved and the possibilities for success that exist.

12 The native title experience also led me to an awareness of the extent to which a diversity of worldviews and mindsets exist within the wider Australian society each of which might attract its own classification as a “culture” in the broad sense in which that term is frequently used today.

13 To a greater or lesser extent it was possible to discern among members of the pastoral industry a sense of shared history, a positive view of the undoubtedly paternalistic relationships they or their parents had had with Aboriginal people and their extended families and a shared sense that political correctness beginning with equal pay requirements had interfered with that relationship to the detriment of the people. These views were sincerely held and sometimes passionately held. They were views which made interaction between the pastoral industry and the native title process difficult and at one level more difficult than that between the mining industry and the process.

14 It was never useful simply to stereotype the industry as an obstacle to social progress. It was necessary to engage with it, aware of the history and traditions that informed attitudes of individuals. The nature of the relationship between pastoralists and Aborigines was described in a book written about their history in the Roebourne area by Dr Mary Edmunds, an anthropologist, a former Research Director of AIATSIS and a part-time member of the Tribunal. The book was entitled “They Get Heaps”[3]. It was a title whose colloquial ambivalence was appropriate to the complexities of the subject matter.

15 Although the mining industry had refused to participate in the negotiation process that led to the enactment of the Native Title Act in 1993, its principal concern, once the Act was in place, became the need to obtain certainty in agreements made about access to Aboriginal country. It was less affected by a sense of its own history. Even within the industry, however, there was complexity and diversity. Large mining companies with international experience of indigenous land issues led the way in moving from a philosophical objection to native title to a pragmatic engagement. Small entities and prospectors felt more threatened by the uncertainties of the process. They had a more visceral opposition.

16 Politicians were also engaged in the native title process. The level of their involvement depended upon ministerial or committee responsibilities and constituency concerns. Their ways of viewing the world and legal processes are entirely different from those of judges and lawyers. The States were the principal respondents to every native title claim. The policy positions of State Premiers and Ministers were determinative of their response to applications. The Commonwealth was also often a party but had responsibility for the funding and general oversight of the process which it had defined in passing the Native Title Act. A Joint Parliamentary Committee on Native Title had a general reporting function and I appeared before it on a number of occasions.

17 An important lesson which I learnt early was that the time of politicians is filled with myriad demands. For the minister with responsibility for a particular statute, its implementation is likely to be just one among a large number of issues which demand attention at a level of generality that simply does not equate to the level at which those with direct responsibility engage. The courts with their focus upon the detailed resolution of individual cases according to law have a function which differs fundamentally from the political. Courts which wish to explain their role and function adequately to politicians and to the public when politicians comment upon their role, must understand that great difference in approach which can properly be said to reflect a difference in organisational or occupational culture.

18 These observations are made to emphasise the importance to judges, heads of jurisdiction and court administrators, of understanding the extent to which other people do not see us or the world as we see it. Awareness of the diversity of our own community and the rather unique set of factors that influence the way in which judges and courts as institutions work and communicate with the rest of society is necessary to their effective functioning.

19 Before coming back to that general proposition, it is useful to see to what extent the concept of “culture” as presently used encompasses the things of which I have been speaking.

The concept of culture

20 Much has been written about the concept of culture at the societal level and as an attribute of groups within societies. A broad sociological definition taken from the Macquarie Dictionary has “culture” as:

The sum total of ways of living built up by a group of human beings, which is transmitted from one generation to another.[4]

It is also used to describe the behaviours, beliefs and values of human societies.[5] The idea of culture as encompassing not only “the specific and variable cultures of different nations and periods, but also the specific and variable cultures of social and economic groups within a nation” occurred in the late 18 th century.[6] This development broadened the idea of culture so that the term sub-culture or cultures within a culture could be used. This extended concept led to a concept of culture as “any set of shared signifying practices – practice by which meaning is produced, performed, contested or transformed”.[7] It is premised according to cultural study scholars, on shared meaning. It is said to be “concerned with issues that revolve around shared – perhaps hegemonic – social meanings. That constitutes the variety of ways in which we make sense of the world.”[8] Within that broad idea of culture it is possible to speak of the culture of the legal profession.

The culture of the legal profession

21 The legal profession for present purposes comprise those who work in it, judges, lawyers and court administrators. In considering the “culture” of the profession it is necessary first to consider what a profession is. This is not a trivial matter.

22 A profession, according to an established sociology-of-work model, is characterised by three elements:

(i) community - defined as “an identifiable unified body of functionaries linked by common values and interest”;

(ii) specialised knowledge and skills;

(iii) a “service ideal” which is “often articulated in a code of ethics”.[9]

The latter element leads to the proposition that a “profession”:

denotes a set of values above and beyond a mere trade or way of earning a livelihood … We expect, and professions (including lawyers) promise, not only technical mastery of their field, but something more – a higher standard of service, discretion, judgment, ethical accountability and adherence to stated cultural ideals.[10]

23 Other models have been proposed.[11] Three principal theoretical traditions in the study of professions have their origins with Weber, Marx and Durkheim.[12] In the Weber tradition, professions control the distribution of economic rewards in the marketplace, using “strategies of social closure” to enhance marketplace success.[13] To Marx they were a “middle class” of functionaries mediating between the bourgeois and the proletariat class.[14] Durkheim and “structural functionalists”, regarded the professions as a restraint on selfish materialism as they promote themselves as a distinct community.[15]

24 The legal profession has a “culture” according to the broad understanding of the term. Lawyers have been described as “a community or subculture with its own values, language and ways of thinking.”[16] Their “clubbiness” has been likened to the cohesion of ethnic groups.[17] Legal culture has been defined as the “relatively stable patterns of legally oriented social behaviour and attitudes.”[18] The law in this context is “one (albeit very powerful) institutional cultural actor whose diverse agents (legislators, judges, civil servants, citizens) order and reorder meanings.”[19] If culture is about meaning, “law is one of the most potent signifying practices.”[20]

25 Many of us will recognise intuitively that there is more than one legal profession or culture within our society. This is not just an Australian phenomenon. In civil law countries the concept of a single legal profession, does not exist. France has a broad range of legal occupations, including individuals who draft and certify court documents (notaires), process servers (huissiers), individuals who represent clients in magistrates’ courts (mandataires), and the general category of lawyers (avocats).[21] A leading study of Chicago lawyers found that one could “posit a great many legal professions, perhaps dozens.”[22] The study found a major divide between lawyers serving corporations and lawyers serving individuals and their small businesses.[23]

26 There are local legal cultures which have been described as

systematic and persistent variations in local legal practices as a consequence of a complex of perceptions and expectations shared by many practitioners and officials in a particular locality, and differing in identifiable ways from the practices, perceptions, and expectations existing in other localities subject to the same or a similar formal legal regime.[24]

A study of bankruptcy courts in judicial districts of the United States (US) found that variation in consumer debtors’ behaviour with respect to key bankruptcy decisions was related to variations in local legal culture.[25]

Judicial decision making – shaped by culture

27 Judicial decision-makers are people who are inescapably part of a legal professional culture, a wider societal culture and of groups or organisations with have their own subcultures. Lawrence Friedman, who is credited with the term “legal culture”[26] has written of “internal legal culture” and “external legal culture” as affecting the ways in which judges decide cases. The first refers to the ideas and practices of legal professionals. The second refers to the opinions, interests and pressures brought to bear on the law by wider social groups.[27]

28 Four models of judicial change have been developed through scholarship about the United States Supreme Court. The first three relate to internal legal cultures and are concerned with legal, individual and institutional change. The fourth is concerned with the political system.[28]

29 The legal model depends upon a judicial role under which judges apply a priori canons, rules and principles to cases. The judicial role is defined by the powers conferred on courts and by accepted approaches to interpretation.[29]

30 Legal realists in the 1960s proposed a model which took account of the policy preferences of individual judges. This was called the “attitudinal model”. The court’s function was seen as “a simple by-product of individual judges pursuing their policy preferences as aggregates of individual actions”.[30] So the economic and ethnic background and the gender of the judge might be seen as relevant to that model.

31 The institutional model has regard to the role of “substantive law, judicial norms, legal reasoning, constitutive documents, formal powers and informal conventions” that shape a judge’s mind.[31] Pierce writes of one institutional model called “the strategic approach”:

To advance their preferences, judges must make strategic calculations about the views of other colleagues on the bench, legislators, administrators, and what the law might allow. They must understand the consequences of their own actions and anticipate the response of others.[32]

32 The fourth model considers the political system and thus external legal culture. So it has been suggested that the US Supreme Court is never far out of line with legislators and that the political system exerts a substantial amount of control over the Court through the appointment process.[33]

33 Pierce contended in his study of change in the High Court of Australia that the attitudinal model did not wholly account for changes in the Court and that reference to particular political and historical circumstances was necessary.[34] Laster and Douglas, writing on whether female judges think and judge differently from their male counterparts, were unable to discern significant gender differences in their approach to judicial decision making (as might be predicted by the attitudinal model). They observed however some differences in communication style.[35] They argued that extra-judicial “reform of recruitment procedures which saw the feminisation of the bench” brought in more women and men with a new conception of justice.[36] They said: “politicians allowed women into the all male preserve because the political imagination suddenly could conceive of them as exercising power under a new ideological regime.”[37]

34 It has been suggested that the decision of the High Court in Mabo (No 2) evidenced the impact of external legal culture. In Mabo (No 2), the High Court referred to the “contemporary values of the Australian people.”[38] According to Pierce, the Mason Court on the whole helped to bring about greater acceptance that judicial decision making may require consideration of community values, even those not reflected in legislation.[39] This proposition has been much debated not least by reference to the difficulties of identifying community values as distinct from broad community attitudes. Many judges would still take the view that speculation about community values is inherently unsafe as a guide to decision making. Given the diversity of views on many topics in our society there is much to be said for that scepticism. In any event, “community values” may be a reflection of a judge’s own cultural attitudes.

35 Just as the external legal culture can at times favour judicial decision making protective of rights it can also lead to rights-limiting judicial decision making when the culture shifts in a more conservative direction. John Calmore has written of the US Supreme Court’s retreat in recent decades from the equality jurisprudence of the Warren Court in the 1960s.[40] He has endeavoured to show “how, in a racist culture, it is very hard to litigate, negotiate, and maintain antiracist legal remedies, let alone employ them to shift culture.”[41] Joanna Cohn Weiss notes the role of victims’ rights groups in the US in pressuring judges to institute tough and possibly unconstitutional sentences on offenders.[42]

Judicial decision making impacting on culture

36 The relationship between culture and decision making is not necessarily unidirectional. There is some evidence to suggest that Courts and judges have at times impacted on the broader culture. Nelken notes that the courts of several nations (namely South Africa and those of the ex-communist countries) actively try to mould their societal culture to a better future.[43] Calmore described a process of “culture shifting” when judges engage in expressing a new moral standard or ideal, or attempt to change cultural attitudes and patterns.[44] He offered the US Supreme Court under Earl Warren in the 1960s as an example.[45]

37 Conservative judges can try to use decision making to shift the external culture towards conservative aims. Calmore cited as an example the majority opinion in the US Supreme Court decision in City of Memphis v Greene,[46]. In that case the Court held that a residential community did not violate civil rights laws and the Constitution when it closed off a road allegedly to prevent residents of a neighbouring African American community from traversing it. The Court concluded that the closure served the legitimate goal of child safety and tranquillity. According to Calmore, Justice Stevens, writing for the majority in the case, “trivialized the harm of racism by focusing on slight inconvenience, and he reduced black people to actual and metaphorical ‘unwanted traffic’.”[47]

38 The occasions upon which judicial decision makers can influence or limit the wider societal culture are, in my opinion, few and far between. The analysis of cause and effect in such cases is difficult. Was Mabo an idea whose time had come? Had the judges of the Court become sensitised to the concept of underlying ownership of land by their exposure to serial litigation about the Aboriginal Land Rights ( Northern Territory) Act 1976?[48] Or did the approach of the judges merely reflect wider community attitudes about the need to take steps to redress the history of dispossession of Aboriginal and Torres Strait Islander people? Certainly the political process took up the decision and provided tools for its implementation and for the statutory protection, by Commonwealth law, of rights derived from it. But it also eroded those rights. And the reception given to the decision was not universally positive. There was loud and acrimonious debate about the effects of the judgment and of the Act that followed and on whether the judges had overreached themselves. It may be that the Mabo decision was both a cause and an effect of shifting community attitudes. In my own experience there is no doubt that in the years that followed it brought about, by necessity, changes in attitudes towards indigenous people and the land. Dealing with indigenous people who came to the negotiating table bearing rights at law required a psychological approach quite different from that required in discussions about grace and favour grants even under statutory land rights regimes.

Compliance by ethnic and religious groups

39 Minority cultures may be disadvantaged in comparison to the dominant culture when it comes to complying with the law. This may be due to lack of knowledge and familiarity with the law, cultural requirements whose observance necessarily means violating the law, and communication barriers with enforcement officials and the judiciary. Efforts to make the law more responsive to multicultural society, such as the use of the “cultural defences” in criminal law, have given rise to debate about their potential impact on equality and individual rights.

40 Compliance with the law depends, to an important extent though not entirely, on moral acceptance of the law and a view that it is legitimate.[49] It has been suggested that multicultural society poses dangers to compliance because society moves from one “based on identification with a single set of superordinate values and institutions to a society composed of citizens with strong identifications with their ethnic and racial subgroups.”[50] In such a society the legitimacy of societal rules and authorities may diminish among minorities for whom allegiance to their own ethnic subgroup is stronger than allegiance to the larger society.”[51]

41 More commonly, explanations for compliance difficulties have focussed on the system’s failure to take into account cultural difference. There is, for example, evidence that the criminal justice system in the US leads to higher conviction rates and longer sentences for “outsider defendants” than for defendants from the dominant culture.[52] The explanation for this differential has been found to be the system’s failure to “reflect the shared values of a multicultural society” reflecting only those of the “traditionally male-identified values of the dominant culture.”[53] Studies of court room culture have found it can disadvantage minority cultures. Court room culture includes the value system of the legal profession, procedures by which juries are selected, the value system of jurors, communication barriers between cultural minority defendants and the professionals and non-professionals in court, and negative stereotypes of cultural minorities held by professionals.[54] A specific example of how court room culture impacts minority cultures is found in witnesses who look down or fail to look into the eyes of examiners. There is a tendency, according to societal norms, to regard such people as evasive or dishonest. However such behaviour may be perfectly normal in some cultures.[55] This is a difficulty associated with witnesses from some Aboriginal societies.

42 Culture may affect compliance with child abuse laws. Corporal punishment is not illegal in some countries from which immigrants come. [56] In so saying it is necessary to be aware of the danger of relying upon stereotypes that families from certain ethnic backgrounds use harsh forms of punishment to discipline their children.[57] Theresa Hughes has referred to the practice by some immigrant families of leaving their children home alone because in their country of origin, neighbours should keep an eye on them.[58] She wrote that the “fact that the practice was acceptable in their country of origin should be taken into account in assessing a family’s overall stability, their willingness to conform to local standards, and what interventions and services are appropriate for the family.”[59] She also notes that part of the problem is that while recipients of child protective services are disproportionately poor and of particular ethnic origins, the judges, attorneys and child protective case workers are middle-class and of European descent.[60]

43 In 1989 the Australian Government proposed a National Agenda for a Multicultural Australia.[61] The Agenda was a statement of the government’s policy response to the changing ethnic composition of Australia.[62] One of its key aims was to examine “the implicit cultural assumptions of the law and the legal system to identify the manner in which they may unintentionally act to disadvantage certain groups of Australians.” The Agenda called for the Australian Law Reform Commission to consider whether Australian family law, criminal law and contract law were appropriate for a multicultural society.

44 The Australian Law Reform Commission in its report on the topic identified a number of areas in which compliance with the law was more difficult for some groups.[63] It recognised that for some immigrant communities obeying the law may involve violating cultural norms.[64] “Individuals may find themselves having to choose between violating their cultural norms, perhaps jeopardising their status in the community with which they identify, and breaking the law.” [65] One example provided was wearing a turban while riding a motor cycle, which may breach the requirement to wear a safety helmet. The Commission also observed that while ignorance of the law is generally no excuse, that rule impacts harshly on immigrants who may have lived much of their lives under different legal systems.[66] It noted that the criminal law’s use of reasonable person and mental state standards for determining liability may also disadvantage people of different cultural backgrounds. The subjective standard may disadvantage cultural groups by failing to properly assess an individual’s state of mind given ignorance of the individual’s culture or reliance on cultural stereotypes. The objective standard may disadvantage people of minority cultures because it only reflects the values of the dominant group in society.[67]

Taking culture into account

45 Some have argued for greater consideration of cultural difference by the courts. While this is an area of controversy it should not be controversial that culture provides context for legal decision making. Charles Lawrence has written in this respect:

Human problems considered and resolved in the absence of context are often misperceived, misinterpreted, and mishandled. But the hazards and liabilities of noncontextual interpretation are not experienced randomly. Blacks and others whose stories have been and are excluded from the dominant discourse are more likely to be injured by the error of noncontextual methodology.[68]

Consideration of culture also addresses what has been called “pluralistic ignorance” a term coined by Professor Dwight Greene. Maguigan states that pluralistic ignorance:

is reinforced by the exclusion of evidence that explains the ways in which many people in [the US] – including many victims and people accused of crime – are not part of the dominant legal culture and have experiences and perspectives not known or understood by decisionmakers in the current system.[69]

Pluralistic ignorance is particularly a problem where the judiciary is unrepresentative of the diversity of society.[70]

46 International human rights law endorses an ideal of cultural and religious pluralism.[71] Article 26 of the International Covenant on Civil and Political Rights[72] (ICCPR) requires equality before the law, irrespective of race, religion and national origin, among other things.[73] Article 18 of the ICCPR guarantees freedom of thought, conscience and religion and states that these freedoms include the freedom for an individual to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching . Finally, article 27 guarantees the right to the enjoyment of one’s own culture, stating:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

47 In the area of family law it has been said that legal pluralism is essential for maintaining culture.[74] Family law plays a powerful role in transmitting culture and determining group membership through its rules on personal status and lineage.[75] Changes in family law during the latter part of the twentieth century focussed on the individual versus the family and a more contractual emphasis in place of moral discourse, made it easier to accommodate a more pluralist approach.[76]

48 In any effort to take culture into account it is necessary to ensure that diversity within a culture is acknowledged. A good example is the Muslim community. What we know from observation in Australia is true elsewhere. Thus Donald Brown notes that Canada’s Muslim community is not uniform and that while some Muslims immigrated hoping to be able to continue to freely practice their religion, “others have come to escape the restrictions that custom and religion may have imposed on them.”[77] Similarly, M Cherif Bassiouni has said of Muslim immigrants:

Though bound by the common thread of Islam, they hail from different cultures whose legal systems are dissimilar except for some common aspects of Shari’a, Islamic law, concerning the regulation of marriage, divorce, children’s custody, and inheritance. But even in these aspects there are differences in the Shari’a, depending on which Islamic legal school is recognized and applied in the countries from which Muslims come.[78]

Janet Bauer has warned that judges, lawyers and court interpreters:

should only generalize so much about the extent to which “cultural background” determines immigrant behaviours. Culture is not a static or easily isolated set of values or behaviors and may vary by education or class background.[79]

49 In the area of family law, there is a three-part challenge for judges deciding disputes and confronted with religious cultures.[80] A court must appreciate and attempt to understand unfamiliar cultural and religious practices caught up in the dispute.[81] It must revaluate familiar legal principles to determine whether they can be extended or harmonised with the different tradition.[82] And if there is a conflict between the two that cannot be reconciled, the court must fashion a resolution that leaves room for both to coexist.[83]

Limits to taking culture into account

50 Support for taking culture into account has generated its own backlash from groups and individuals who argue that taking culture into account can lead to “balkanization” of the law, violations of equality and individual rights, and unfavourable outcomes for women and children in particular. For example, Donald Brown has written that the defeat in Ontario, Canada, of the introduction of religious arbitration in family law was due to advocacy efforts by those who viewed such arbitration as “cultural relativism”.[84]

51 Cultural evidence has been said to incorporate “discriminatory norms and behaviours” and to contrast with the victim’s interest in “obtaining protection and relief through a non-discriminatory application of the criminal law.” [85] It has been argued that rights should take precedence over culture.[86] The criminal justice system gives to defendants opportunities to raise non-discriminatory arguments in support of their innocence. It has been contended that to take in cultural evidence is to lead to a “balkanization of the criminal law, where non-immigrants are subject to one set of laws and immigrants to another.”[87]

52 Concern has also been expressed that pluralism in the family law may threaten women’s equality.[88] Women may be subject to heightened control and rules that make them dependent and unequal in particular communities. [89] Ayelet Shachar has said:

Women are particularly vulnerable to oppression within traditional family law systems, where they face greater restrictions on their rights to marry, their rights to pass on their nationality or membership to their children, their options and access to divorce, their financial circumstances and their opportunities to be awarded custody.[90]

Women may also have greater difficulty in exiting from their traditional cultures.[91] In considering whether culture should be taken into account, it will be necessarily to recognise certain which are not negotiable and alternatively ought to be weighed against the needs of minority cultures. Courts in the US confronted with distinct cultural practices and family law rules have adhered to a number of key principles, including due process, antidiscrimination, separation between church and state, the right of individuals within religious and cultural milieus, and maintaining the protection function of courts in family law.[92]

53 The Australian Law Reform Commission’s report on multiculturalism and the law argued that to ensure social cohesion, all Australians should:

accept the basic structures and principles of Australian society – the Constitution and the rule of law, tolerance and equality, parliamentary democracy, freedom of speech and religion, English as the national language and equality of the sexes …[93]

In conducting its inquiry, the Commission was conscious of the need to protect and privilege certain values in the majority culture, even as it looked for ways to take account of minority values:

The problem is to differentiate between those values which are necessary for cohesion and those which may be adjusted to allow for diversity.[94]

54 The Commission said that it considered principles from international human rights law, such as equality before the law, freedom of speech, protection of the family and of the child, freedom of thought and religion, and cultural rights, as relevant.[95] (Yet it also conceded that the principles sometimes point in different directions, giving as an example, the tension between equality of rights of women and freedom of religion, among other examples.[96])

55 The Commission made several recommendations for the incorporation of cultural concerns into existing law. It considered whether the law should recognise a “cultural defence.” This would be a free standing defence, separate from traditionally recognised defences, raised by criminal defendants not part of the dominant culture.[97] Such a defence would capture the idea that criminal defendants should be judged according to their own cultural standards rather than those of the jurisdiction.[98]

56 The Commission rejected the proposal, noting that it had previously and in the context of Aboriginal communities rejected a cultural defence that would completely absolve a criminal defendant from liability, and noting that such a defence would lead to uncertainty.[99] Moreover, while noting its prior recommendation for a very limited “partial cultural defence” for Aboriginal communities, it rejected the same for other ethnic or cultural groups, who are not socially and geographically isolated as are many Aboriginal communities. [100] Instead, the Commission recommended that the cultural background of the offender be taken into account in deciding sentencing, whether or not to record a conviction, and whether or not to prosecute the offence.[101] It recommended revision to relevant sections of the Crimes Act 1914 (Cth) and the prosecution guidelines of the Director of Public Prosecutions (Cth).[102] These strategies were also favoured over a proposal that the criminal law recognise a defence of justifiable ignorance of the law for certain cultural groups.[103] Despite these recommendations, the Crimes Act 1914 (Cth) currently contains the opposite structure, explicitly prohibiting consideration of “customary law or cultural practice” in sentencing decisions and the decision of whether to discharge an offender without proceeding to conviction.[104]

57 Changes to the criminal law with respect to the use of subjective and objective standards to determine fault were also rejected.[105] The view had been expressed in some submissions that a proposal to have courts take into account cultural values, beliefs and practices of the accused in determining his or her state of mind “might encourage racial or cultural stereotyping and could disadvantage women from certain ethnic backgrounds which were seen as particularly oppressive towards women.”[106] Interestingly, the Commission rejected a proposal for courts to have regard to culture in determining the reasonableness of an act, omission or state of mind (objective standard) because that standard is ultimately about the broader community’s value judgment on the act.[107] Here, “[s]uch a judgment can only be made against one set of values.”[108]

58 On the other hand, the Commission determined that it was advisable to have special exemptions from the criminal law on cultural grounds, such as currently existing exemptions allowing the religious slaughter of animals.[109] Specifically, it recommended that Parliament consider the implications for people from particular cultures when considering proposed legislation creating offences, and that:

The law should support individual religious and cultural freedom only where the significance to the individual of upholding the right outweighs the harm the law seeks to prevent and where the recognition of that freedom by the law poses no direct threat to the person or property of others. [110]

Moreover, it considered it desirable for legislators to expressly include the relevant exemptions in the legislation, rather than confer on courts the discretion to decide. [111]

Conclusion

59. Recognition and awareness of cultural difference in our society and the ways in which it can result in inequality before the law is essential to the proper functioning of our legal institutions. The longstanding and pressing challenge of indigenous and ethnic cultural differences is properly emphasised at this conference. But those matters acute as they are, are part of a larger picture. Seeing that picture we see ourselves as others see us and are better equipped to find practical means of achieving equal justice.

[1] Acknowledgement

I acknowledge the considerable assistance of Lara Rabiee, Bronwyn Lo and Dr Liza Rybak of the Federal Court Research Directorate from whose research memorandum I have drawn in the preparation of this paper.

Mabo v Queensland (No 2)[1992] HCA 23; (1992) 175 CLR 1

[2] North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595

[3] Edmunds M, “They get heaps: A study of attitudes in Roebourne, Western Australia” (1989, Canberra, Aboriginal Studies Press)

[4] Macquarie Dictionary, Revised 3 rd Edition, 2001.

[5] Lachowicz R, Changing Justice – Seeking Unity in Diversity – A Training Resource about Culture, Community, Conflict Resolution and Law (South Brisbane Immigration and Community Legal Service 1997) at 19.

[6] Mezey N, “Law as Culture” (2001) 13 Yale JL and Human 35 at 36.

[7] Mezey N op cit at 42.

[8] Calmore J, The Law and Culture-Shift: Race and the Warren Court Legacy (2002) 15 Washington and Lee Law Review 1095 at 1107.

[9] Weisbrot D, Australian Lawyers (Longman Cheshire, 1990) 4 citing Cotterrell R, The Sociology of Law: an Introduction (1984).

[10] Laster K, Law as Culture (2 nd ed, Federation Press, 2001) 15.

[11] Weisbrot, op cit at 5.

[12] Abel RL, The Legal Profession in England and Wales (Basil Blackwell Ltd 1988) 4.

[13] Abel op cit at 4-5.

[14] Abel op cit at 5.

[15] Abel op cit at 5-6.

[16] Laster, op cit at 10.

[17] Laster, op cit at v.

[18] Nelken D, “Using the Concept of Legal Culture” (2004) 29 Australian J of Legal Philosophy 1, 1.

[19] Mezey, op cit at 45.

[20] Mezey, op cit at 45.

[21] Weisbrot, op cit at 6.

[22] Weisbrot op cit, citing Heinz JP and Laumann EO, Chicago Lawyers: The Social Structure of the Bar (1982) at 5.

[23] Weisbrot op cit.

[24] Sullivan TA, Warren E, and Westbrook JL, “The Persistence of Local Legal Culture: Twenty Years of Evidence from the Federal Bankruptcy Courts” (1994) 17 Harvard J of L and Public Policy 801, 804.

[25] Sullivan et al, op cit at 806-807.

[26] Nelken, op cit at 8.

[27] Nelken, op cit at 8.

[28] Pierce JL, Inside the Mason Court Revolution: the High Court of Australia Transformed ( Carolina Academic Press, 2006) at 18.

[29] Pierce, op cit, at 19.

[30] Pierce, op cit.

[31] Pierce, op cit, at 20.

[32] Pierce, ibid.

[33] Pierce, op cit, at 21.

[34] Pierce, op cit, at 22.

[35] Laster K and Douglas R, “Feminised Justice: the Impact of Women Decision-makers in the Lower Courts in Australia” at 104.

[36] Ibid 105.

[37] Ibid.

[38] See Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 42.

[39] Ibid.

[40] Calmore J, op cit at 1111.

[41] Calmore op cit, at 1098.

[42] Weiss JC, “Tough on Crime: How Campaigns for State Judiciary Violate Criminal Defendants’ Due Process Rights” (2006) 81 New York U L Rev 1101, 1118.

[43] Nelken, op cit, at 4.

[44] Calmore, op cit, at 1099.

[45] Ibid.

[46] [1981] USSC 142; 451 US 100 (1981).

[47] Calmore, op cit, at 1118.

[48] French RS, “The Role of the High Court in the Recognition of Native Title (2002) 3 UWA Law Review 124-166.

[49] Tyler TR, “Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities” (2000) 25 Law & Social Inquiry 983 at 985.

[50] Tyler, op cit, at 987.

[51] Tyler, op cit, at 988.

[52] Maguigan H, “Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?” (1995) 70 New York U L Rev 36, 45.

[53] Maguigan, op cit, at 46.

[54] Maguigan, op cit, at 58.

[55] DeMuniz PJ, “Introduction” in Moore JI (ed), Immigrants in Courts (University of Washington Press, 1999) 4.

[56] Hughes T, “The Bookshelf: The Neglect of Children and Culture: Responding to Child Maltreatment with Cultural Competence and a Review of Child Abuse and Culture: Working with Diverse Families” 44 Family Ct Rev 501, 503.

[57] Hughes T, op cit, at 504.

[58] Hughes T, op cit, at 506.

[59] Ibid.

[60] Hughes T, op cit, at 502.

[61] Australian Government Department of Immigration and Citizenship, National Agenda for a Multicultural Australia viewed 31 August 2007.

[62] Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) at [1.1] (ALRC Report No 57 (1992)).

[63] ALRC Report No 57 (1992) at [8.2].

[64] ALRC Report No 57 (1992) at [8.3].

[65] Ibid.

[66] alrc R eport No 57 (1992) at [8.4].

[67] ALRC Report No 57 (1992) at [8.6].

[68] Maguigan, op cit, at 61-62.

[69] Maguigan, op cit, at 46.

[70] Maguigan, op cit, at 54.

[71] Estin, AL, “Embracing Tradition: Pluralism in American Family Law” (2004) 63 Maryland L Rev 540, 554.

[72] (Opened for signature 16 December 1966) 999 UNTS 171 (entered into force 23 March 1976).

[73] “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

[74] Estin, op cit, at 551.

[75] Estin, op cit, at 551.

[76] Estin, op cit, at 556-557.

[77] Brown D, “A Destruction of Muslim Identity: Ontario’s Decision to Stop Shari’a-Based Arbitration” (2007) 32 North Carolina J of Int L and Commercial Regulation 495, 510.

[78] Bassiouni, MC, “The Sharia’a: Islamic Law – What Muslims in the United States Have in Common” in Moore JI (ed), Immigrants in Courts (University of Washington Press, 1999) p 98.

[79] Bauer S, “Speaking of Culture: Immigrants in the American Legal System” in Moore JI (ed), Immigrants in Courts (University of Washington Press, 1999) 28.

[80] Estin, op cit, at 558.

[81] Ibid.

[82] Estin, op cit, at 558-559.

[83] Estin, op cit, at 559.

[84] Brown, op cit, at 537-538.

[85] Coleman DL, “Individualizing Justice Through Multiculturalism: the Liberals’ Dilemma” (1996) 97 Columbia L Rev 1093, at 1097.

[86] Ibid.

[87] Coleman, op cit, at 1098.

[88] Estin, op cit, at 551.

[89] Ibid.

[90] Estin, op cit, at 600 [referring to Shachar S, Multicultural Jurisdictions (2001) 36, 55-56].

[91] Estin, op cit, at 559.

[92] Ibid.

[93] ALRC Report No 57 (1992) at [1.18].

[94] ALRC Report No 57 (1992) at [1.23].

[95] ALRC Report No 57 (1992) at [1.25].

[96] ALRC Report No 57 (1992) at [1.27].

[97] Maguigan, op cit, at 39-40.

[98] Coleman, op cit, at 1094.

[99] ALRC Report No 57 (1992) at [8.11].

[100] ALRC Report No 57 (1992) at [8.12].

[101] ALRC Report No 57 (1992) at [8.13]-[8.16].

[102] Ibid.

[103] ALRC Report No 57 (1992) at [8.24].

[104]Crimes Act 1914 (Cth) ss 16A(2A) and 19B(1A), respectively.

[105] ALRC Report No 57 (1992) at [8.34], [8.38].

[106] ALRC Report No 57 (1992) at [8.33].

[107] ALRC Report No 57 (1992) at [8.38].

[108] Ibid.

[109] ALRC Report No 57 (1992) at [8.18].

[110] ALRC Report No 57 (1992) at [8.20].

[111] Ibid.