Contempt of Court
The controversial “contempt of court” and “obstruction of justice” rulings recently published and confirmed by the Supreme Court and Appeals Court against Rabbis of the Sydney Beth Din has brought much anguish and frustration to the Orthodox Jewish community in Australia and to members of the Jewish faith living abroad…writes Rabbi Shabsi Tayar.
Never before has a country, which purports to be democratic, disallowed a religious court from exercising their Constitutional right to free speech and Religion and to govern its communities according to the principals it lives by. This would have been a severe affront not only to the religious communities it attempted to condemn but to the very principals upon which this great country was founded upon.
With the recent rise of the countless anti-religious movements without, accompanied and supported by individuals within(who lack the pride and conviction to stand for who they are), there has arisen a scenario that Rabbis of a rabbinic court were found guilty and punished for attending to their religious duties.
The most identifiable fallacy in the orders of the respective courts was their failure to recognise one of the most elementary principles of justice. A Court is meant to recognise that an average member of society need only possess rudimentary knowledge of the law and may not be disciplined for something even a Justice of the court considers to be appropriate. Justice McCOLL JA wrote that the Rabbis were merely seeking to ensure the second respondent’s compliance with Jewish law and his attendance at the Beth Din and that “these were criminal proceedings in which ‘[i]f a statement is reasonably capable of more than one meaning and one of those meanings does not involve contempt, a charge based upon that statement is, … not made out.’” See paragraphs 241-242, 262-283.
Rabbi Shabsi Tayar Photo: LinkedIn
So in response to those who have jumped upon the bandwagon of elitism and self-righteousness and have urged the rabbis of the Beth Din to resign, I refer you to par. 274 of the Appeals Court ruling where Justice McCOLL JA writes that “Even if that were not the case, and the appellants were labouring under a mistaken, albeit honestly held, view as to the effect of Halachic law, that could not, in my view, be the determining factor in the question whether their conduct was such as a matter of practical reality to have a tendency to interfere with the due course of justice.”
There’s really no need to be “Frumer” (more religious) than a Justice of the Court.
At a time when judges around the world are seen to give in to public pressure and eagerly support the wilful deterioration of society as it denounces the Eternal Morals and Values of the Abrahamic religions, it comes as no surprise that Justices in both the Supreme and Appeals Court have utilised a split-hairs argument to penalise Rabbis against the well-articulated position of their colleague McCOLL JA (see Paragraphs 239 and onwards). This is doubly insulting, as these very Rabbis are known for their staunch recognition and support of Dina D’Malchusa (the law of the land), a level of respect and deference that is not reciprocated.
Righteousness springs from within. The time to act is now. I call upon our brethren, both Jewish and otherwise, to lend support to the critical task of changing the course of our future. What you do now will impact the lives of your children and grandchildren. Don’t leave this to others.
Quote from Nadav Prawer
“In Thaler v Amzalek, it so far departed from due process that it awarded a judgement to a person that the Supreme Court found may not even exist “
Context of that case : Mr Amzalak refused to adhere to the unanimous verdict of the Bet Din ( Zablo ) Binding Arbitration to pay Thaler $318,000 for money that had been wired for 685,000 shares that were not transferred by Amzalak.
When Thaler went to court to have his binding Din Torah Arbitration ruling enforced , Amzalak cross claimed that the Dayanim (including his own chosen Dayan ) were biased against him.
Amzalak via his lawyer asserted that Thaler may not exist, and the judge refused to allow Thaler to appear by video link ( and show his psssport ) to refute this false accusation and refute other accusations
Mr Thaler, who lives in Israel , was known to exist by two of the Dayanim.
The judge hearing the civil case did NOT allow Thaler to speak in his own defence.”
Freedom of commentary is a wonderful thing. However, when it originates with those purporting to be religious leaders, it behooves commentators to do so from a position of knowledge.
Rabbi Tayyar makes a series of assertions, most of which, with respect, are not supported by facts or logic.
Sequentially:
1. Rabbi Tayyar asserts that the decision was unprecedented in its interference with freedom of religion, of speech and of free governance of communities.
This is hyperbolic. Australia has unusually frequently intervened in the conduct of religious affairs. It does so in everything from the acts of parliament which regulate the affairs of a number of religions through to its imposition of mandatory reporting. In New South Wales, there are also acts that relate specifically to Jewish groups, such as the Great Synagogue Act. Indeed, the NSW Supreme Court has intervened far more extensively on many counts.
To suggest that a contempt of court ruling is somehow an unprecedented interference with religion is to show a lack of knowledge of the law.
2. Rabbi Tayyar suggests a constitutional right to free speech and the free exercise of religion. Neither are correct in the manner suggested. An implied right to freedom of POLITICAL communication has been found to exist under the constitution. (See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1). The right to the free exercise of religion is actually a provision pursuant to which the federal government may not legislate to compel the exercise of the practice of a particular religion.
However, the suggestion that the government may not legislate in a manner which impacts on religions is incorrect. Religions are not exempted from Australian law. They are not to be specially burdened by it, either. This does not mean that governments can legislate to block religious observance. It does, however, mean that they can legislate consistently in a manner which imposes rules regardless of religious observance. The government can certainly make laws in this instance to prevent parties from engaging in contempt of court. The court did not rule that batei din are illegal; the court held, consistent with long established law, that no-one can act to functionally restrain others from access to civil courts.
Finally, Rabbi Tayyar indicates his strong approbation for the judges of the beit din, and their support for the law of the land. Regrettably, the Sydney Beit Din does not have a good track record here. In Thaler v Amzalek, it so far departed from due process that it awarded a judgement to a person that the Supreme Court found may not even exist. In this case, Justice Sukkar’s review of the facts is devastating to any suggestion that the beit din proposed to act in a manner consistent with the arbitration act. The judges of the beit din are experienced dayanim. They have been offered training, repeatedly, in Australian law. Their ignorance can only be described as wilful.
In practice, though, I have not seen calls for the judges to resign from the beit din being widely spread. The call- from other rabbis as well- has been for Rabbi Gutnick to stand down as president of the RCANZ. The RCANZ code of conduct requires, amongst other things, that a rabbi not commit any criminal offence. I think it is plainly inappropriate for the president to be in breach, or accused of breaching, a fundamental tenet of the organisation’s policies.
I know that it is tempting to launch a solipsistic rallying cry, and to view this as an attack on religion. But it isn’t. The Beit Din can issue a siruv if it acts competently. I hope that this is a wakeup call but have my doubts.
Despite all your commentary, the facts are there is no accountability, no transparency, no proper governance and we have two of the senior members of the Beth Din using the Beth Din as a business partnership. If for nothing else, they must resign! The Sydney community must stand up and say, enough is enough!
This comment doesn’t make sense. It is irrelevant and pointless in legal analysis to seek to justify actions based on a dissenting judgment. A dissenting judgment is not law. The majority judgment is. Secondly, a reading of the judgment shows that the majority relied on similar precedent from england and also Australia. The ruling was nothing new. Thirdly, no freedom is unrestricted. Freedom of religion is balanced against other interests, the administration of justice and unimpressed access to the courts being another. The justices and the first instance judge found that the relevant actions had the effect of seeking to impede a litigant’s access to the courts which impacts the administration of justice.
Additionally, it’s worth reading the first instance judgment where certain individiuals’ evidence was weak and hastily changed under cross examination.
Not a good look. Fourthly, it is evident that the writer knows nothing about Australian constitutional law. There is not right to free speech or expression in Australia. The Australian constitution mentions no such thing. There is an implied freedom of political communication. This has been implied by case law.
Semicha does not a lawyer make and it would be best if authors researched what they write before doing so. Lest they appear ignorant.
A well established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have intended to limit fundamental rights, unless it indicates this intention in clear terms. This includes freedom of expression. ICCPR Article 19 states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. General Comment 34 emphasises that freedom of expression and opinion are the foundation stone for a free and democratic society and a necessary condition for the promotion and protection of human rights.
Section 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides that every person has the right to freedom of expression which includes the freedom to impart information, whether within or outside Victoria, by any medium chosen by him or her.
Whilst this right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons, religious sanctions are not defamatory in nature. They are issued as a means of communicating the level of a person’s chosen level of religious observance, including Rabbinic authority, and at the same time to limit his or her membership benefits. An additional function of this communication is to protect others, who rely on an individual’s purported loyalty to their theology, from financial harm. Naturally, benefits are awarded to individuals who respect the rules of the organisation. Internal publication of a member’s refusal to abide by the rules of that organisation is not an attack on the person’s general reputation but rather an attempt to limit his or her rights as a member there.
A scholarly article published by Law and Religion Australia concludes with the following:
“…the decision of the majority here means that correspondence from a Jewish tribunal which simply threatened religious sanctions if the party did not adhere to Jewish law, was seen to amount to contempt of court. With respect, there seems no clear explanation of why these purely religious sanctions were an “improper” form of pressure. The dissent of McColl JA more correctly acknowledges the importance of the religious freedom of all the parties involved, and notes that in general it is better for the courts not to intervene in internal religious disputes of this sort. It will be interesting to see if this matter is taken on appeal to the High Court.”
The above article does not intend to prove from the minority opinion that Batei Din have the constitutional right to govern their communities according to Halacha. It demonstrates the unfortunate intentions of the majority vote.
I think it’s actually a brilliant article. He must have been referring to the ICCPR Article 19 and the general Comment 34 and Section 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
People on the outside fail to comprehend that religious sanctions are not defamatory in nature. They are issued for two reasons: to protect the financial interests of other members by making transparent the position of this individual in terms of future business dealings that they are not to be defined and governed by Choshen Mishpat. And second to strip the offender of his membership rights. I don’t think the judges understood all of that.
A scholarly article published by Law and Religion Australia concludes with the following:
“…the decision of the majority here means that correspondence from a Jewish tribunal which simply threatened religious sanctions if the party did not adhere to Jewish law, was seen to amount to contempt of court. With respect, there seems no clear explanation of why these purely religious sanctions were an “improper” form of pressure. The dissent of McColl JA more correctly acknowledges the importance of the religious freedom of all the parties involved, and notes that in general it is better for the courts not to intervene in internal religious disputes of this sort. It will be interesting to see if this matter is taken on appeal to the High Court.”
The Justices ruling was ‘insulting’? Who do you think you are?