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.