Navigating dual legal systems: Islamic inheritance law in Australia’s secular legal framework

HDR Milestone Presentation by Brooke Thompson

Title: Navigating dual legal systems: Islamic inheritance law in Australia’s secular legal framework

Advisors: Associate Professor Ann Black and Associate Professor David Morrison

When: 2-2.45pm Friday 20 November

Where: Boardroom (W353), Level 3, Forgan Smith building (1)

Abstract

In 2012, the ACT Supreme Court considered an inheritance case involving a Muslim family, where the testatrix had made a will devolving her estate according to Islamic principles.  The case attracted media attention, much of which incorrectly assumed that the will was being challenged on the basis that Islamic law should not apply to the distribution of the estate because the principle of a son inheriting twice that of a daughter is unfair.

In 2013, the Joint Standing Committee on Migration released its report, the Inquiry into Migration and Multiculturalism in Australia.  A major part of the committee’s task had been to evaluate allegations that values and beliefs of the Islamic faith are incompatible with Australia’s policy framework of multiculturalism.  During the course of the committee’s public hearings, two Muslim organisations requested that the committee consider the issue of Islamic inheritance law and raised a number of obstacles they perceived with the current inheritance law framework.

There has been limited resulting consideration as to the intersection of Islamic and Australian inheritance law.  Where Muslims resident in Australia wish to assimilate their faith-based obligations with their country-based obligations they must essentially navigate dual legal systems: the official Australian legal system and the unofficial Islamic legal system.  My research has sought to answer the question how can the Australian legal framework respond to the challenges that Muslims face when navigating dual inheritance legal systems?  The presentation will provide an overview of the comparative legal analysis and India country study that was undertaken as part of the research and provide an overview of the research findings.