Australian Constitution and public law pluralism

Introduction

Only a small portion of how democratic governments operate can be explained by constitutions,

although they do offer a framework for government activity. The Australian Constitution has a

number of intriguing features. One example is the way it tries to blend robust bicameralism with

responsible governance. Further concern is that of the large number of crucial sections that are

either absent from the Constitution altogether, or can only be located by reading between the

lines and sleuthing about. Policy and governance consequences of legal plurality are enormous.

There are several examples of non-state judicial systems in poor nations that manage most

conflicts and maintain significant autonomy and power. But the relevance of legal plurality is

seldom acknowledged and much overestimated.

The term "legal pluralism" refers to a scenario in which two or more diverse legal systems

coexist in a single nation, particularly when one of the systems was brought in as part of a

foreign political structure and culture1. Legal pluralism may exist in practice even if the

"dominant" legal system does not recognize it. After British colonization in Australia, Aboriginal

customary law was an example of this. There is the possibility that it may exist in a formalized

form, such as in many nations where the law recognizes indigenous customary law or religious

law in contrast to the general legal system that was imposed by colonization2. The degree to

which the Australian legal system should accept some sort of legal plurality in this second

meaning is a fundamental question for the Commission in its investigation into the recognition of

1
MB Hooker, Legal Pluralism. An Introduction to Colonial and Neo-colonial Laws, Clarendon Press, Oxford, 1975 6-
54
2
S Poulter, Legal Dualism in Lesotho, Morija, Lesotho, 1979.
Aboriginal customary law. Legal plurality in this sense has been argued to be undesirable and

should be avoided3.

This paper intends to explore the constitution of Australia and how it is compatible with the

notions of public law pluralism and also explore the Uluru Statement of the heart and finally

conclude that

The Uluru Statement of the Heart

As part of a historic consensus, Indigenous leaders came together at Uluru to call for

constitutional reform to give First Australians a voice in Parliament. The Uluru Statement was

made on May 26, 2017, after the First Nations National Constitutional Convention, which

brought together 250 Indigenous delegates from around the nation. This is the first time that

Indigenous and non-Indigenous Australians have come to an understanding on the issue of

constitutional recognition following years of often acrimonious discussion. People from the

indigenous communities of Australia have issued an open invitation to join them "in a movement

of the Australian people for a brighter and more prosperous future". Structure improvements,

including constitutional changes, are required for in order to create a constitutionally protected

"Voice of Parliament." The Voice to Parliament will provide Aboriginal and Torres Strait

Islanders a voice in the legislative and policy processes that affect them. In the long run, it will

be a dependable source of guidance for both the legislature and the executive branch of

government. One of the most significant moments in our nation's history lies ahead of us.

3
T Rowse, ‘Liberalising the Frontier. Aborigines and Australian Pluralism’ (1983)
Aboriginal and Torres Strait Islanders have a legitimate role in our country, but only if we work

together to bring about meaningful change for them.

A First Nations Voice and Makarrata Commission were agreed upon by Aboriginal and Torres

Strait Islander leaders at the Convention, as stated in the Uluru Statement. Rather than outlining

the precise details of any proposed modifications to the Australian Constitution, these aims

represent the kind of reform wanted. It is true that some of the ideas and solutions offered by

Indigenous and political leaders, as well as constitutional experts, are reflected in the Uluru

Statement. A revitalized dialogue regarding constitutional change and acknowledgment of

Aboriginal and Torres Strait Islander peoples is envisaged to be sparked by stating two

viewpoints that have wide support.

It also respects Aboriginal and Torres Strait Islander sovereignty, as well as their historic and

ongoing relationship with their lands. It also discusses the social issues that Aboriginal and

Torres Strait Islander peoples confront, as well as the institutional barriers that prevent First

Nations peoples from achieving true self-determination. The Uluru Statement takes a stance that

is diametrically opposed to the Recognise campaign's call for symbolic constitutional

recognition. According to a 2015 IndigenousX online poll, 58% of Indigenous respondents were

opposed to Recognize. An Indigenous Parliamentary body was supported by 54 percent of those

polled in the same study, but only 62 percent said Indigenous Australians would be better off if

they were recognized as citizens under the Constitution. Most regional dialogues had rejected a

minimalist or symbolic approach of Indigenous constitutional recognition in favor of more

significant transformation, thus it was no surprise that the Uluru Convention came to a more

robust conclusion.
The Key elements in the Uluru Statement

Sovereignty. A statement acknowledging the sovereignty of Aboriginal nations in Australia,

which has never been relinquished, and which coexists alongside Crown sovereignty.

Revision of the constitution. The existing lopsided statistics regarding, for example, jail or

suicide would be corrected if constitutional amendments were implemented.

Committee for the Makarrata. As previously mentioned, the Makarrata (Trade) Commission

would serve the following functions: Allow each sovereign Aboriginal nation to negotiate their

own treaty, and supervise a process of truth-telling in the national framework. In nations such as

Canada, New Zealand, and South Africa, similar commissions (which include truth-telling) have

been created4.

In the process of "speaking the truth," an Aboriginal person is able to see the full scope of the

previous wrongs that they have suffered. All Australians would get a better understanding of

Aboriginal and Australian history, which would aid in the process of achieving true

reconciliation.

In the House of Representatives, speak out. The establishment of a constitutionally mandated

elected representative in the House of Representatives. As a result, Aboriginal people will be

empowered to influence legislation that affects them. Only a constitutional vote would be able to

remove it from the system.

Australia's multiculturalism and legal diversity

4
'Uluru Statement from the Heart: Information Booklet', University of Melbourne, Law School, p.5 retrieved from
https://www.creativespirits.info/aboriginalculture/selfdetermination/uluru-statement-from-the-heart
Around 26% of the population was born outside of Australia, making it the world's largest

multicultural experiment. However, diversity is still a contentious issue in Australia. Cultural

variety is seen by some as a positive, while others point out the development of ethnic ghettoes

and inter-racial friction. Race riots in Sydney's inner suburbs are thought to be a sign of a

growing sense of discomfort in the city.

Whatever the case may be, Australia and its institutions can no longer ignore the fact that

diversity has become a part of the country's fabric. The legal system is one area where a more

diverse population has led to a reassessment of key beliefs. While the law is firmly rooted in

British christian common law, other cultures and faiths are beginning to have an impact.

Indigenous customary law and customs have been partially accommodated in two cases, while

Islamic law ideas have been debated in another.

As can be seen, there is legal diversity in Australia. However, it is hidden from view behind the

country's official legal framework. A few efforts have been made to accommodate indigenous

beliefs and practices in the official domain, with indigenous courts being established in most

states as one of the most significant developments. It's too early to tell whether or not this effort

has been a success. In the meanwhile, those in need have been deprived of formal safeguards

since faith-based courts, whether Christian, Jewish, or Muslim, have not been officially

recognized and supervised. The author believes that the most important aspect of legal pluralism

is protecting the vulnerable members of society, regardless of what shape it takes.

Despite being one of the world's most cosmopolitan countries, Australia's judicial system is

nonetheless plagued by ancient biases and allegiances. As a result, the nation has been reluctant

to accept new ideas that are not in line with British common law and traditional traditions. On
the basis of the "one law for all" motto, legal pluralism arises only at the edges and in the

shadows of the system. Legal assimilation has supplanted assimilation as the overarching

premise of our immigration policy, notwithstanding our efforts to do so5. Discrimination and

social isolation may be avoided by denying persons with a specific cultural or religious

background the feeling of unity that comes from adhering to their religious rules and rituals. We

don't understand how important it is for them to have their concerns addressed in front of others

who share their worldview.

Many officials and judges are left to their own devices when it comes to integrating or at least

acknowledging certain indigenous rituals and ceremonies, despite several legislation reform

suggestions. Most notable is the proliferation of indigenous courts, but there is no guarantee that

they will survive in this period of fiscal restraint without proof of their efficacy.

Traditional practices and rituals that are in conflict with the State's laws and international human

rights standards are always a challenge in contemporary society. Australian society must

overcome the perception that other systems of law, especially customary law and Shariah, are

oppressive of the rights of women and children and impose punishments and sanctions at odds

with fundamental human rights if they are to gain a more comprehensive representation in

Australian society6. It is possible that the government or courts might "cherry pick" from the

other laws to accommodate cultural variations, but basic principles of justice derived from the

integrated system and international treaties will and should be used to restrict what a fair and just

society should accept. In this author's opinion, the protection of the weak should take priority

over cultural subtleties and customs in a compromise between opposing values.

5
amila Hussain, Islam: its Law and Society, Federation Press 2004
6
Refah Partisi (No 2) v Turkey (2003) 37 EHRR 1 the European Court of Human Rights ruled that both Shariah and
plural religion based legal systems were incompatible with the European Convention on Human Rights.
In spite of the obvious obstacles, it is possible that the best method to ensure legal pluralism's

preservation is to put it under the umbrella of official recognition, complete with the associated

processes and review rights. De facto legal pluralism was not taken into consideration by the

Joint Standing Committee on Immigration when it advised against legislative recognition in its

2013 report Inquiry into Migration and Multiculturalism in Australia7. Someday, these religious

"courts" may become registered arbitrators, and disgruntled parties may be able to take their

cases to the courts for final resolutions. It's possible that decisions that go against fundamental

human rights and Australian values/laws may be overturned as a matter of public policy.

Australian Shariah, Halakhah, and Canon law might be developed in the same way that Muslim

countries are incorporating Western legal elements into a reformed Shariah system8. Devoutly

religious Australians may be able to fulfill secular as well as religious commitments if there is

such a confluence.

Conclusion

Despite all the concern for the health, education, families, communities, and economic results of

Indigenous Australians, the government continues to reproduce its past failures in Indigenous

affairs. The government's refusal to acknowledge Indigenous Australians' authority inside

Australia's institutional framework is evidence of its colonial mindset when confronted with

what it views as intractable challenges involving Indigenous Australians. This is Makarrata's

power. It is imperative that the Indigenous Australian experience of government be changed in

order for the country to progress.

7
The report is available at
http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=m
ig/multiculturalism/report.htm
8
Abdullah Saeed, “Reflections on the establishment of Shari’a Courts in Australia” in Rex Ahdar and Nicholas
Aroney (eds), Sharia in the West, Oxford University Press 2010, 223 at 231 (“Saeed 2010”).
Changing governance requires a transformation in mindset, which includes that of Australia's

elected officials. Minister Scullion has made it clear that he has considerable influence. He,

along with other government officials, has real influence over the future direction of Indigenous

policy and the amount of money spent on its initiatives. As Davis points out, the boundaries of

what Australians are willing to endure are set by the country's political leaders9. They must be

held to account for their role in shaping the public perception of the country. A good place to

start is by being open and honest about the Makarrata Commission's suggestion.

As long as Australia's institutional systems are built to exclude Indigenous people' voices, we

will be unable to assist communities in solving the complex issues they confront. It is incumbent

upon us to pay attention and acknowledge the validity of self-determination arguments made by

Indigenous Australians themselves. Within established public law principles, Australia has been

given an elegant and legally valid answer to the dilemma of inclusive government there is no

way to change this fact if the government denies that the Uluru Statement represents democratic

governance. When it comes to political and legislative reform, we as lawyers may help educate

the public about the Uluru Statement10, and its significance in the development of a pluralistic

Australian public legal system via our writings.

9
Megan Davis, ‘The Long Road to Uluru: Walking Together — Truth Before Justice’ (2018) 60 Griffith Review
10
Law Council of Australia, ‘Law Council Supports Calls for Voice to Parliament’ (Media Release, 15 June 2018)
 Bibliography

Case law

Refah Partisi (No 2) v Turkey (2003) 37 EHRR 1

Books

amila Hussain, Islam: its Law and Society, Federation Press 2004

MB Hooker, Legal Pluralism. An Introduction to Colonial and Neo-colonial Laws, Clarendon

Press, Oxford, 1975 6-54

Megan Davis, ‘The Long Road to Uluru: Walking Together — Truth Before Justice’ (2018) 60

Griffith Review

S Poulter, Legal Dualism in Lesotho, Morija, Lesotho, 1979.

T Rowse, ‘Liberalising the Frontier. Aborigines and Australian Pluralism’ (1983)

Journal articles

Abdullah Saeed, “Reflections on the establishment of Shari’a Courts in Australia” in Rex Ahdar

and Nicholas Aroney (eds), Sharia in the West, Oxford University Press 2010, 223 at 231

(“Saeed 2010”).

Online Sources

Law Council of Australia, ‘Law Council Supports Calls for Voice to Parliament’ (Media

Release, 15 June 2018)

The report is available at

http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_co

mmittees?url=m ig/multiculturalism/report.htm

'Uluru Statement from the Heart: Information Booklet', University of Melbourne, Law School,

p.5 retrieved from https://www.creativespirits.info/aboriginalculture/selfdetermination/

uluru-statement-from-the-heart