Ideas@TheCentre

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Equal under the law - and no exceptions

Peter Kurti | 04 April 2014

peter-kurti Claims that cultural identity mitigates legal responsibility for criminal acts pose a threat to Australia's legal norms.

'Identity [emphasises] the idea of certain reservations which one is entitled to insist on and which others have to recognise as constraints,' warns NYU's Jeremy Waldron.

Far from increasing social cohesion, identity politics makes living with difference harder.

Recent efforts by Australian courts to reconcile the cultural practices of minority groups with the rule of law have produced contrasting results.

In February, a Victorian magistrate accepted 'cultural differences' as a mitigating factor in a case of the attempted kidnap of a child in Geelong by a 35 year old Afghan man.

The magistrate's decision was roundly criticised by Daily Telegraph columnist, Miranda Devine. 'How can "cultural differences" be an excuse for child sexual offences?' Devine asked.

But in NSW, Parramatta local court took no account of differences in culture, practice or belief in sentencing a Muslim cleric charged with solemnising an underage marriage.

The cleric pleaded guilty, was fined, and now faces deportation after performing a 'marriage' between a 12 year old girl and a 26 year old man. The 'husband' faces criminal charges too.

The Marriage Act 1961 stipulates that you have to be 18 years of age to get married. In exceptional circumstances, the age can be lowered to 16. The Act makes no provision for lowering it to 12.

Nor has any Australian parliament made allowance for cultural differences in dealing with another practice that evokes great concern - female genital mutilation (FGM), which is banned outright in Australia.

'Whatever the cultural practice, whatever the religious practice, there is no law above Australian law,' declared NSW Minister for Community Services, Pru Goward.

Advocates of identity politics argue that such laws are racist because they have an unequal impact. But this is to mistake the cart for the horse.

Law is one of the ways a society orders itself and maintains a commitment to justice and dignity for all its citizens. The role of law is to protect without distinction or favour.

By arguing that they identify with their cultural or religious practices, members of minority groups attempt to claim more protection for their interests and practices than they are entitled to.

The demands of minority groups to exemption from laws that apply to everyone else do nothing to strengthen the liberal state.

An authentically liberal approach to living with diversity must resist the claims of group-specific identity and insist on the equal standing of all citizens under the rule of law.

Yet the pressure on Australian local courts to recognise cultural differences when dealing with minority groups is unlikely to ease.

Peter Kurti is a Research Fellow at The Centre for Independent Studies.