Migration Help
17th April 2010, 10:21 PM
THE chief justice of the NSW Supreme Court, James Spigelman, has raised an important issue in an address to the law faculty of the University of NSW: the extent to which Australia should extend its understanding of different cultures into the practice of law and criminal justice in particular. Justice Spigelman was referring to the law's treatment of violence against women, attitudes to which can differ between cultures.
Honour crimes - those which see violence perpetrated against mostly women as a result of imagined infringements of personal, family or tribal honour - can pose a dilemma in a legal system which looks both to notions of universal human rights, and to an ideal of multiculturalism. That violence is criminal is not in question; what Justice Spigelman believes needs discussion is the extent to which respect for the values and attitudes of minority cultures should influence sentencing for crimes that have been committed.
Multiculturalism has for the most part passed the tests to which it has been subjected. It is an important reason Australia has been able to accept hundreds of thousands of immigrants each year from countries of widely differing cultures and attitudes without dangerous levels of stress or conflict arising. Perhaps that is in part a question of resources - and luck: Australia is wealthy enough for differences of culture and attitudes not to become the fault lines in disputes over resources. Such disputes over, say, land or water or other resources have indeed happened elsewhere and have been hastened and sharpened by ethnic and cultural differences. As a result of its benign situation, Australia has seen little of the bitterness such disputes can bring.
One area, though, is an exception: white Australia's relations with indigenous Australia. There, the history of conflict and misunderstanding is long and the record largely dismal. High rates of indigenous incarceration for violent crime, among other offences, show that the ordinary criminal law works differently in this different culture - and less satisfactorily. Australia's states and territories already recognise to varying degrees the special situation of indigenous Australians. Aspects of indigenous customary law can be taken into account in sentencing indigenous offenders in ways which set them apart from offenders from other backgrounds. Is this a precedent for those from other cultures who fall foul of Australian law?
We believe not. The position of indigenous Australians is indeed a special case, and unique. White settlement for more than a century ignored completely indigenous Australia's traditions of law and custom and devastated indigenous society as a result. The disastrous consequences of that historical process for individual Australians of indigenous background has been a dark shadow on Australia's record.
The belated recognition of the value of that law and custom, resurrected in some form within the larger legal system and in various forms of indigenous self-management, is an attempt to shore up what remains of the cultural values which underpin indigenous society, and to repair the damage. It is still an experiment, and its outcome is still in doubt. The events leading to federal intervention in the Northern Territory are evidence that indigenous self-management in all its forms has a long way to go. The experience of the intervention itself is evidence that a return to older alternatives offers only modest improvements, and at considerable cost.
Whatever the successes and failures of indigenous policy, though, it offers no useful model for the treatment of minority ethnic groups who migrate to Australia, where a system of law and of cultural values underpinning the law are firmly in place and based on British and other traditions of still longer standing. Unlike indigenous Australians, those groups have - or had - a choice whether to engage with white Australian culture. Having made the choice, they must accept the consequences when it comes to questions of law.
The notion of honour as the basis of justice has deep roots in many cultures, including those of Europe. It persists today in some parts of the world from which recent Australian immigrants come - the Middle East, south Asia, some poorer parts of Europe and South America. But in other countries value systems based on honour have been replaced by law, and revenge by punishment. Australia is one such place. Multiculturalism can soften many aspects of the often difficult and bewildering experience of migration, but it cannot, nor should it, alter that.
SOURCE (http://www.watoday.com.au/opinion/editorial/the-laws-sensitivity-should-be-the-same-for-all-20100416-skcf.html)
MH
Honour crimes - those which see violence perpetrated against mostly women as a result of imagined infringements of personal, family or tribal honour - can pose a dilemma in a legal system which looks both to notions of universal human rights, and to an ideal of multiculturalism. That violence is criminal is not in question; what Justice Spigelman believes needs discussion is the extent to which respect for the values and attitudes of minority cultures should influence sentencing for crimes that have been committed.
Multiculturalism has for the most part passed the tests to which it has been subjected. It is an important reason Australia has been able to accept hundreds of thousands of immigrants each year from countries of widely differing cultures and attitudes without dangerous levels of stress or conflict arising. Perhaps that is in part a question of resources - and luck: Australia is wealthy enough for differences of culture and attitudes not to become the fault lines in disputes over resources. Such disputes over, say, land or water or other resources have indeed happened elsewhere and have been hastened and sharpened by ethnic and cultural differences. As a result of its benign situation, Australia has seen little of the bitterness such disputes can bring.
One area, though, is an exception: white Australia's relations with indigenous Australia. There, the history of conflict and misunderstanding is long and the record largely dismal. High rates of indigenous incarceration for violent crime, among other offences, show that the ordinary criminal law works differently in this different culture - and less satisfactorily. Australia's states and territories already recognise to varying degrees the special situation of indigenous Australians. Aspects of indigenous customary law can be taken into account in sentencing indigenous offenders in ways which set them apart from offenders from other backgrounds. Is this a precedent for those from other cultures who fall foul of Australian law?
We believe not. The position of indigenous Australians is indeed a special case, and unique. White settlement for more than a century ignored completely indigenous Australia's traditions of law and custom and devastated indigenous society as a result. The disastrous consequences of that historical process for individual Australians of indigenous background has been a dark shadow on Australia's record.
The belated recognition of the value of that law and custom, resurrected in some form within the larger legal system and in various forms of indigenous self-management, is an attempt to shore up what remains of the cultural values which underpin indigenous society, and to repair the damage. It is still an experiment, and its outcome is still in doubt. The events leading to federal intervention in the Northern Territory are evidence that indigenous self-management in all its forms has a long way to go. The experience of the intervention itself is evidence that a return to older alternatives offers only modest improvements, and at considerable cost.
Whatever the successes and failures of indigenous policy, though, it offers no useful model for the treatment of minority ethnic groups who migrate to Australia, where a system of law and of cultural values underpinning the law are firmly in place and based on British and other traditions of still longer standing. Unlike indigenous Australians, those groups have - or had - a choice whether to engage with white Australian culture. Having made the choice, they must accept the consequences when it comes to questions of law.
The notion of honour as the basis of justice has deep roots in many cultures, including those of Europe. It persists today in some parts of the world from which recent Australian immigrants come - the Middle East, south Asia, some poorer parts of Europe and South America. But in other countries value systems based on honour have been replaced by law, and revenge by punishment. Australia is one such place. Multiculturalism can soften many aspects of the often difficult and bewildering experience of migration, but it cannot, nor should it, alter that.
SOURCE (http://www.watoday.com.au/opinion/editorial/the-laws-sensitivity-should-be-the-same-for-all-20100416-skcf.html)
MH