[1] A Davidson, "Multiculturalism and Citizenship: Silencing the Migrant Voice" (1997) 18(2) Journal of Intercultural Studies 77 at 77 & 82 (emphasis added). See also S Castles "Multicultural Citizenship: A Response to the Dilemma of Globalisation and National Identity" (1997) 18(1) Journal of Intercultural Studies 5.
[2] A O'Donnell, "Thinking 'Culture' in Legal Education" (1996) 7(2) Legal Education Review 135.
[3] Australian Law Reform Commission, The Recognition of Aboriginal Customary Law. Report No. 31 (Canberra: AGPS, 1986).
[4] Australian Law Reform Commission, Multiculturalism and the Law. Report No 57 (Canberra: AGPS, 1992).
[5] Eg, G Bird (ed), Law in a Multicultural Australia (Melbourne: National Centre for Cross-Cultural Studies in Law, 1991); S Garkawe, "The Impact of the Doctrine of Cultural Relativism on the Australian Legal System" (1995) 2 E Law-Murdoch University Electronic Journal of Law 29; S Bronitt & K Amirthalingam, "Cultural Blindness: Criminal Law in Multicultural Australia" (1996) 21(2) Alternative Law Journal 58; I Leader-Elliott, "Sex, Race and Provocation: In Defence of Stingel (1996) 20 Criminal Law Journal 72; S Yeo, "Sex, Ethnicity, Power of Self-Control and Provocation Revisited" (1996) 18 Sydney Law Review 304; J Burley, "The Law and Multiculturalism: Problems With Criminal Law Reform in the Vietnamese Community" (1996) 17 (1&2) Journal of Intercultural Studies 69; D Stepniak, "Minority Values and the Reasonable Person of Torts" in M Chanock and L Marks (eds), 50th Anniversary Conference of the Australasian Law Teachers' Association-Cross Currents: Internationalism, National Identity and Law (Melbourne: La Trobe University, 1996) p405; and F. Bates, "Minority, Multiculturalism and Parenthood in Australian Family Law" (1992) 21 Anglo-American Law Review 202.
[6] ALRC, supra note 4 at 10-14.
[7] A Sarat and T Kearns, "Responding to the Demands of Difference: An Introduction" in A Sarat and T Kearns (eds), Cultural Pluralism, Identity Politics and the Law (1999) 1 at 11.
[8] K Laster & V Taylor, "Law For Our Multicultural Society? No Worries" in H Selby (ed), Tomorrow's Law (Sydney: Federation Press, 1995) at 210 (emphasis added).
[9] J Gobbo, Law in a Multicultural Society (Canberra: Australian Institute of Multicultural Affairs, 1983) at 6. See also J Gobbo, "The Supreme Court" in Bird, supra note 5 at 29.
[10] See, ALRC, supra note 4; also K Laster & V Taylor, Interpreters and the Legal System (Sydney: Federation Press, 1994); Mr Justice Brooke, "The Administration of Justice in a Multi-Cultural Society" (1994) 1 Judicial Review 283; D. Eades (ed), Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia (Sydney: UNSW Press, 1995); J. Chan (ed), Proceedings of the Symposium on Cross Cultural Issues in the Law (Sydney: Ethnic Affairs Commission of NSW, 1993); M. D'Argaville, Cross-Cultural Communication Issues and Solutions in the Delivery of Legal Services (Clayton: Monash University, 1991); Commonwealth of Australia, Access to Justice Advisory Committee, Access to Justice: An Action Plan (Canberra: AGPS, 1994); and J. Stubbs et al, Cross Cultural Awareness for the Judiciary (Sydney: University of Sydney, 1996).
[11] Eg, the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW), Part 2. On the impact of the Racial Discrimination Act see, Human Rights and Equal Opportunity Commissioner, Race Discrimination Commissioner, The Racial Discrimination Act: A Review (Canberra: Australian Government Publishing Service, 1996).
[12] Debate over the implications of cultural diversity for Australian law has tended to follow two sometimes parallel, but rarely intersecting tracks: claims based on ethnicity and claims based on Aboriginality. The ALRC's completion of separate references on The Recognition of Aboriginal Customary Law and Multiculturalism and the Law follows this pattern which mirrors the government policy 'divide' between Aboriginal affairs and immigration-related matters (see S. Castles & E. Vasta, "Introduction: Multicultural or Multi-Racist Australia? in E. Vasta & S. Castles (eds), The Teeth Are Smiling: The Persistence of Racism in Multicultural Australia (Sydney: Allen and Unwin, 1996) at 1. While sensitive to the significance of the distinction (particularly from the point of view of many Aboriginal people who object to the reduction of their distinctive claims to arguments for mere minority status) the project will explore the conceptual common ground between the multicultural (ethnicity) law reform agenda and the Aboriginal rights agenda and will consider the practical implications of areas of overlap as well as points of departure.
[13] It should be acknowledged that the project is necessarily reformist in orientation. That is, it assumes that it is possible and desirable to respond more justly to cultural diversity in the construction and application of normative criminal law standards.
[14] H. Bhabha, "The Third Space" in J. Rutherford (ed), Identity, Community, Culture, Difference (London: Lawrence & Wishart, 1990) 207 at 208.
[15] Masciantonio v R (1995) 183 CLR 58 at 74.
[16] Stingel v R (1990) 171 CLR 312.
[17] (1995) 183 CLR 58 at 66.
[18] (1990) 171 CLR 312 at 326.
[19] (1994) 69 ALJR 111 (High Court of Australia).
[20] Ibid at 113.
[21] This pattern is perhaps most significantly reflected in the approach adopted by the Australian Law Reform Commission in its report on Multiculturalism and the Law, supra note 4. On the imperviousness of Australian legal and political institutions to the implications of multiculturalism, see A. Jamrozik et al, Social Change and Cultural Transformation in Australia (Melbourne: Cambridge University Press, 1995); G. Bird, The Process of Law in Australia: Intercultural Perspectives (Sydney: Butterworths, 2nd ed., 1993); Bird, supra note 5; Davidson, supra note 1; Castles, supra note 1; and O'Donnell, supra note 2.
[22] Greta Bird and Mark McDonell, "Muslims in the Dock: A Transgressive Narrative of Law and Life" (1997) 3(2) Australian Journal of Human Rights http://www.austlii.edu.au/au/other/ahric/ajhr/V3N2/ajhr3205.html
[23] Ibid.
[24] Ibid.
[25] ALRC, supra note 4.
[26] W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995).
[27] A. Harris, "The Jurisprudence of Reconstruction" (1994) 82 California Law Review 741.
[28] A Sarat and R Berkowitz, "Disorderly Differences: Recognition, Accommodation, and American Law" (1994) 6 Yale Journal of Law & the Humanities 285 at 289.
[29] ALRC, supra note 4 at 9.
[30] The Commission did recommend that "the offender's cultural background should be specified as a factor to be taken into account when the court is passing sentence": ibid at 173.
[31] Ibid at 187. Counter-intuitively, perhaps, Sinha has identified the concept of reasonableness as a (potential) friend of cultural pluralism: "The most important quality of this doctrine of reasonableness is that it can neither be reduced to a finite set of rules, nor can it be specified in terms of customs or practices. Therefore, its open-endedness lends itself to the pluralistic use": Surya Prakash Sinha, "Legal Polycentricity" in Hanne Petsersen and Henrik Zahle, Legal Polycentricity: Consequences of Pluralism in Law (1995)
[31] at 51.
[32] ALRC, supra note 4 at 187.
[33] Ibid at 187.
[34] Preference for this approach is well-established: see John McCorquodale, "Judicial Racism in Australia? Aboriginals in Civil and Criminal Cases" in Kayleen M Hazlehurst (ed), Ivory Scales: Black Australia and the Law (1987) at 31-32.
[35] For example, even if the ethnic composition of the New South Wales magistracy was to reflect the ethnic diversity of the state's population, it by no means follows that a magistrate, whatever her/his ethnic identity, would have the unique cultural understanding to deal with an application by the accused that s/he be assessed with reference to a differential standard based on his/her ethnicity (say, in the context of a bail application or a sentencing submission). In addition, there is the difficult of developing cultural awareness programs that taken into account intra-group diversity: see Burley, supra note 5 at 82.
[36] ALRC, supra note 4 at 170-171.
[37] Ibid at 171.
[38] Ibid.
[39] W Kymlicka, Multicultural Citizenship: a Liberal Theory of Minority Rights (1995).
[40] W Kymlicka, Liberalism, Community and Culture (1991) at 3.
[41] Kymlicka, supra note 39 at 75 & Ch 5.
[42] Kymlicka, supra note 40 at 13.
[43] Kymlicka, supra note 39 at 80-81.
[44] Ibid at 81-82.
[45] Kymlicka, supra note 40 at 135.
[46] Kymlicka, supra note 39 at 84.
[47] Ibid at 86. This is based on various theorists who document the important role of cultural membership in a person's self-identity and self-esteem, and the bonds between language, culture and identity: ibid at 88-90.
[48] Kymlicka, supra note 40 at 137.
[49] Ibid at 137.
[50] Ibid at 152-3.
[51] Ibid at 154.
[52] Kymlicka, supra note 39 at 107.
[53] Ibid at 108.
[54] Ibid at 109.
[55] Ibid at 114.
[56] Of course, the silencing of women and Indigenous peoples in the construction of normative criminal law standards cannot be explained in the same way.
[57] The limits of Kymlicka's 'equality argument' are defined to a certain extent by the existence of disadvantage, which is susceptible to redress by the granting of special rights to national minorities, and whether the rights are sought by polyethnic groups or national minorities - a structural difference with important theoretical consequences for Kymlicka. Kymlicka makes an important distinction between what he describes as "the two main sources of cultural pluralism" (Kymlicka, supra note 40 at 239), or elsewhere, as "patterns of cultural diversity" (Kymlicka, supra note 39 at 10). Multination states are constituted by more than one culture, marked by distinct language, shared history and sense of nation and people. Typically, a state resulting from the invasion and colonisation of territory occupied by Indigenous peoples would be described as a multination state, and the Indigenous nations as 'national minorities' or 'minority cultures' (Kymlicka, supra note 40 at 239). By way of differentiation, a polyethnic state is one marked by extensive immigration of people of diverse cultures. Kymlicka notes that such individuals, while allowed to maintain much of their ethnic particularity, do not constitute nations in the same way that Indigenous peoples do (ibid at 239). Post-colonial multicultural societies such as Australia (and Canada and the USA_ are culturally diverse in both senses. although there has long be debate about the relative claims of ongoing debate in legal and cultural theory over the comparative claims of Indigenous Australians and those of immigrant backgrounds: supra note 12.
[58] Kymlicka, supra note 39 at 93.
[59] B Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (2000) at 340.
[60] Kymlicka, supra note 39 at 152.
[61] Ibid at 153.
[62] The overview of legal pluralism which begins this section draws on work previously published in L McNamara, "The Locus of Decision-Making Authority in Circle Sentencing: The Significance of Criteria and Guidelines" (2000) 18 The Windsor Yearbook of Access to Justice 60 at 67-69.
[63] S Merry, "Legal Pluralism" (1988) Law and Society Review 869 at 869; see also D Manderson, "Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory" (1996) 20 Melbourne University Law Review 1048 at 1059.
[64] Merry, supra note 63 at 872.
[65] Manderson, supra note 63 at 1059.
[66] Merry, supra note 63 at 871.
[67] John Griffiths, "What is Legal Pluralism?" (1986) 24 Journal of Legal Pluralism 1at 38.
[68] Peter Sack, "Legal Pluralism: Introductory Comments" in Peter Sack and Elizabeth Minchin (eds), Legal Pluralism: Proceedings of the Canberra Law Workshop VII (Canberra: Law Department, Research School of Social Sciences, Australian National University, 1988), 1.
[69] Griffiths, supra note 67 at 4-5.
[70] Manderson, supra note 63 at 1060.
[71] Thanks to Paul Havemann for first prompting this insight.
[72] Alan Hunt, Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993) at 307.
[73] Ibid at 323.
[74] Sinha, supra note 31 at 47, 48.
[75] Warwick Tie, Legal Pluralism: Toward a Multicultural Conception of Law (1999) at 162, 167.
[76] Robert Cover, "Foreword: Nomos and Narrative" (1983) 97 Harvard Law Review 4.
[77] Sarat & Berkowitz, supra note 28 at 314-315.
[78] Ibid at 315.
[79] See Marie Deveney, "Courts and Cultural Distinctiveness" (1992) 25 University of Michigan Journal of Law Reform 867.
[80] Ibid at 869.
[81] Ibid at 876.
[82] R Delgado and J Stefancic, "Hateful Speech. Loving Communities: Why Our Notion of 'A Just Balance' Changes So Slowly" (1994)
[82] California Law Review 851.
[83] Harris, supra note 27 at 742.
[84] Cited ibid. See also G. Torres, "Critical Race Theory: The Decline of the Universalist Ideal and the Hope of Pluralist Justice" (1991) 75(3) Minnesota Law Review 993.
[85] Harris, supra note 27 at 750.
[86] D Litowitz, "Some Critical Thoughts on Critical Race Theory" (1997) 72 Notre Dame Law Review 503 at 503-504.
[87] Harris, supra note 27 at 752.
[88] Ibid.
[89] Ibid at 754.
[90] Ibid at 759.
[91] Ibid at 759.
[92] Ibid at 765.
[93] Ibid at 779.
[94] C Harris, "Whiteness as Property" (1993) 106 Harvard Law Review 1709 at 1777-1778.
[95] M Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002) at 281.
[96] W Montag, "The Universalization of Whiteness: Racism and Enlightenment" in M Hill (ed), Whiteness: A Critical Reader (1997) 281 at 290.
[97] See Barbara Flagg, "'Was Blind But Now I See': White Race Consciousness and the Requirement of Discriminatory Intent" (1993) 91 Michigan Law Review 953.
[98] See Neil Gotanda, "Tales of Two Judges: Joyce Karlin in People v Soon Ja Du; Lance Ito in People v OJ Simpson" in Wahneema Lubiano (ed), The House That Race Built (Vintage Books, 1998) 66 at 71-72.
[99] Joel Olson, "The Limits of Colorblind and Multicultural Personhood" (2001) 2 Stanford Agora: An Online Journal of Legal Perspectives 1.
[100] Ibid at 16.
[101] Ibid at 18.
[102] Ibid.
[103] Ibid at 21.
[104] Ibid at 19.
[105] Although my own research currently focuses on criminal justice decision-making, the challenge of interrogating of normativity, arising in many other (non-criminal law) legal decision-making contexts, particularly, as Simpson and Charlesworth have observed, given that legislation is increasingly framed in a way which relies on "open-ended standards, requiring officials to decide, for example, what is in the 'public interest' or what is 'reasonable in the circumstances": G Simpson and H Charlesworth, "Objecting to Objectivity" in Rosemary Hunter, Richard Ingleby and Richard Johnstone, Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (1995) 86 at 103.