On May 2, Peter Wertheim appeared before the Joint Standing Committee on Foreign Affairs, Defence and Trade’s Par­lia­ment­ary Inquiry into the status of the human right to freedom of religion or belief.
The ECAJ’s full written sub­mis­sion can be viewed here, and the tran­script of Mr Wertheim’s appear­ance is below.

Joint Standing Committee on Foreign Affairs, Defence and Trade – 02/05/2018
Inquiry into the status of the human right to freedom of religion or belief

Members in attend­ance: Kevin Andrews MP (Chair), Anne Aly (Deputy Chair), Senator Claire Moore.
WERTHEIM, Mr Peter John, CO-CEO, Executive Council of Aus­trali­an Jewry
[11:39]
CHAIR: Welcome. I remind you of the rights and respons­ib­il­it­ies which have been made known to you. If you’d like to, you can make some opening comments.
Mr Wertheim: Thank you, Mr Chair. Is it in order for my associate to take a photo?
CHAIR: Yes, certainly.
Mr Wertheim: Thank you. I thank the committee for this oppor­tun­ity to present to the inquiry. Jewish Aus­trali­ans are fortunate to enjoy a high level of freedom of religion and belief. In practice, there are very few imped­i­ments to Jews in Australia identi­fy­ing openly as Jews, express­ing their beliefs, moving freely and con­greg­at­ing peaceably with fellow Jews at religious and communal events, partaking in Jewish religious services and observing Jewish customs and tra­di­tions. Jewish Aus­trali­ans are also free to impart Jewish learning and values through formal and informal education and, subject to general legal require­ments, establish and operate private Jewish day schools and places of worship.
Our written sub­mis­sion has explored in some detail both the successes and dif­fi­culties exper­i­enced by our community in finding ways to accom­mod­ate within the framework of Aus­trali­a’s laws and generally accepted values fun­da­ment­al Jewish beliefs and practices such as observ­ance of holy days, pro­duc­tion and con­sump­tion of kosher food and observ­ance of key lifecycle events around birth, death, marriage and burial. In addition to positive freedoms, the freedom to practice one’s faith and live out one’s beliefs, Jews in Australia have also generally enjoyed freedom from per­se­cu­tion, violence, har­ass­ment and exclusion on the basis of religion affil­i­ation, beliefs or practices. In sharp contrast to the countries of Europe and the Middle East, there has never been any kind of legally or offi­cially sanc­tioned per­se­cu­tion, violence, har­ass­ment, exclusion or dis­crim­in­a­tion against Aus­trali­an Jews as Jews.
Overall, Jewish life and the Jewish way of life have been able to flourish in Australia and, con­sequently, Jews have been able to con­trib­ute to every facet of Aus­trali­a’s devel­op­ment and prosper­ity in a manner and to an extent that would simply not have been possible in many other countries. This is not to deny that various forms of anti-Jewish prejudice have existed and continue to exist in Australia. The annual reports on antisemitism in Australia, which my organ­isa­tion has published since 1989, demon­strate all too clearly that antisemitism in Australia is a per­sist­ent and increas­ingly frequent problem, sometimes involving threats or acts of violence.
The last 18 months have seen the rise of a small but tightly organised group espousing Nazism as an ideology. It has defaced public places with its posters and stickers, which graph­ic­ally urge the mass killing of Jews and gay people. The group engages in para­mil­it­ary training in remote areas. It has links with groups overseas that have committed murder and other acts of violence. This is a new and alien phe­nomen­on in Australia. Aus­trali­a’s criminal laws pro­hib­it­ing the urging of violence against people on the basis of their race have thus far proved to be com­pletely inef­fect­ive in address­ing it. Threats of violence against Jewish Aus­trali­ans do not only emanate from groups espousing Nazism as an ideology. Groups wishing to end the State of Israel have on occasion advocated and engaged in acts of violence against Jews in Australia.
In Australia, as elsewhere, the virus of antisemitism has mutated over time in order to accom­mod­ate changing cir­cum­stances. Whereas Jews were once demonised as an alien people ensconced within nations to which they did not belong, the trope more commonly adopted by Jew haters nowadays is to deny the dis­tinct­ive people­hood of Jews in order to deny their right of national self-determ­in­a­tion.
My organ­isa­tion welcomes the fact that last year’s political debate about part IIA of the Racial Dis­crim­in­a­tion Act was resolved very much along the lines suggested in recom­mend­a­tions 8 and 9 of our written sub­mis­sion to this inquiry in February 2017. We also welcome the fact that on 30 November 2017 Australia upgraded its status on the Inter­na­tion­al Holocaust Remem­brance Alliance, the IHRA, from observer to liaison status in pre­par­a­tion for full mem­ber­ship later this year or next year at the latest. Currently 31 demo­crat­ic states around the world are members of the IHRA. Each of them has taken up the com­mit­ment in the Stockholm Declar­a­tion of 2000 to combat growing Holocaust denial and antisemitism. Member states also subscribe to the IHRA working defin­i­tion of ‘antisemitism’, an invalu­able tool in under­stand­ing the protean nature of antisemitism and combating it.
The enactment of legis­la­tion late last year to recognise same-sex marriages has accen­tu­ated concerns amongst reli­giously observant people and com­munit­ies about a gathering trend in Australia and elsewhere in the Western world to seek to curtail existing religious freedoms. My organ­isa­tion addressed this matter more fully in February this year in our written sub­mis­sion to the Expert Panel on Religious Freedom, estab­lished by the Depart­ment of the Prime Minister and Cabinet.
Last, but certainly not least, my community continues to be troubled by the problem of spouses, mostly women, who are parties to marriages that have irre­triev­ably broken down but cannot obtain a religious divorce, and are thus prevented from finding happiness and stability for them­selves and their children in a new marriage. We have dealt with this in some detail in our written sub­mis­sion, but I feel it would be remiss of me not to take this oppor­tun­ity to highlight the issue. Thank you.
CHAIR: Thank you very much, Mr Wertheim. Can I begin the dis­cus­sion as I have with a number of witnesses. Whilst we are on any sort of objective assess­ment a fairly tolerant and open nation where one has a great deal of freedom to express oneself, et cetera, non­ethe­less, as we pointed out in our interim report, there are limited legal pro­tec­tions for freedom of religion and belief. The Con­sti­tu­tion is fairly narrow in this regard. We may have ratified instru­ments like the Inter­na­tion­al Covenant on Civil and Political Rights, but we haven’t incor­por­ated much of that into domestic law. The question then arises: should we be doing something more, given what a lot of witnesses have said is a changing culture in which we live, and, if so, what should that be?

Mr Wertheim: There’s no simple answer to that question—

CHAIR: If there was, we wouldn’t be sitting here!
Mr Wertheim: Indeed! We addressed this in some detail in our other sub­mis­sion to the expert panel. We did not see the enactment of changes to the defin­i­tion of ‘marriage’ as in and of itself neces­sar­ily imposing some con­straint on religious freedoms. We don’t see that there’s an immediate urgency in that direction. However, we do agree with the general pro­pos­i­tion that there does seem to be a tendency in Australia and in other Western societies to wind back some of the exemp­tions for pro­tec­tion of religious freedom that exist in anti­discrim­in­a­tion legis­la­tion. Whilst those exemp­tions still exist, the general position of religious com­munit­ies in Australia in terms of observing and living out their beliefs is safe. There’s no com­pel­ling reason to start incor­por­at­ing some of these inter­na­tion­al con­ven­tions into domestic law. But if the trend continues, and if there is a suf­fi­cient groundswell of opinion in some sectors of society for winding back the exemp­tions in anti­discrim­in­a­tion law to the point where religious com­munit­ies might be compelled to do things against their con­science, then I think that whole question would need to be looked at much more seriously.
There’s always the concern, also, that by incor­por­at­ing the pro­vi­sions of inter­na­tion­al treaties into domestic law, the words of those treaties are read down as words of lim­it­a­tion instead of inter­preted in the way I believe they were intended as words con­fer­ring bene­fi­cial rights. That would also need to be guarded against. We’ve taken a fairly con­ser­vat­ive approach to that whole area of law reform. But we do acknow­ledge that this is an area in which social norms and con­ven­tions are changing. It needs to be monitored, and it might need to be reviewed in the future.
CHAIR: Quite a few witnesses in sub­mis­sions to us have in effect suggested that simply relying upon the exemp­tions to anti­discrim­in­a­tion law, a so-called negative right, is inad­equate compared to the pro­clam­a­tion of a positive right — for example, that article 26 of the inter­na­tion­al covenant has been incor­por­ated in domestic law in Australia whereas article 18, which goes to freedom of religion and belief, hasn’t been incor­por­ated except to the extent that, for example, the charter of human rights in Victoria and the Human Rights Act in the ACT do broadly incor­por­ate those pro­vi­sions.
Mr Wertheim: There’s also article 27, which is the pro­tec­tion of the religious freedoms of minority com­munit­ies. I accept the genu­ine­ness of the concern. I would say that in some areas, and perhaps in the most critical area, namely employ­ment law, in the Fair Work Act there actually is a positive acknow­ledge­ment of freedom of religion. It’s not just a begrudging, negative accept­ance of an exemption. It is worded in a positive way. I would say that would be the most pressing and com­pel­ling area where that issue arises. It could arise also in other contexts, but, if I have under­stood the thrust of sub­mis­sions from other religious com­munit­ies in that direction properly, they are mainly concerned about the implic­a­tions in the employ­ment area, and I would say that the legis­la­tion, without neces­sar­ily expressly invoking these positive rights, has done so in its own way.
Dr ALY: I have a question about Gett recal­cit­rance, because this is not just an issue for the Jewish community; it’s a very big issue for Muslim com­munit­ies as well. I’m sure you know that. In your sub­mis­sion you say:
Gett refusal or recal­cit­rance was con­sidered in depth by the Aus­trali­an Law Reform Com­mis­sion…
The recom­mend­a­tion made was to have something in the civil divorce courts — inter­ven­tion by the civil courts — that would do several things:
An Order enforcing a pren­up­tial agreement that encour­ages the removal of barriers to remar­riage…
I want to ask a question spe­cific­ally about that. Under our Con­sti­tu­tion the gov­ern­ment shall not make any laws about religion. When I have discussed this issue, and the cir­cum­stances are very close with Muslim com­munit­ies, the pref­er­ence has been for no inter­fer­ence from civil Aus­trali­an law. The religious process of marriage and divorce and the civil process of marriage and divorce sit parallel but very separate from each other. Can you explain a little further about what would be the benefits but also the dis­ad­vant­ages of having civil law inter­fer­ence in religious marriage processes?
Mr Wertheim: Let me start with section 116 of the Con­sti­tu­tion, which you alluded to. That prohibits the par­lia­ment from enacting laws which impose a religious observ­ance. I might not have the wording exactly right.
Dr ALY: I think what you said is pretty accurate.
Mr Wertheim: It’s something along those lines. The proposal that my organ­isa­tion and the Organ­isa­tion of Rabbis of Aus­tralasia, as it then was, put to the gov­ern­ment in 2000 was drawn in a way that spe­cific­ally avoided imposing a result. I think that’s an important point to start with, because this is not only a require­ment of our Con­sti­tu­tion; it is also, as it happens, a require­ment of Jewish religious law. Under Jewish religious law, a religious divorce has to be granted by the male and accepted by the female. If there is any duress or com­pul­sion involved in the process on the part of either party it is null and void. So it would not be fit for purpose, and it would also, quite possibly, con­tra­vene section 116 of the Con­sti­tu­tion. The model that was put forward by my community in 2000, and which has been put forward since, has been drawn in a way that there is no com­pul­sion; there’s no duress. The sorts of remedies that are offered or that are made available at the dis­cre­tion of the Family Court are set out at the top of page 11 of our sub­mis­sion. There are four different types of orders that we suggest should be made available to the Family Court, and they have been spe­cific­ally drawn in a way to avoid that whole area of com­pul­sion.
As to the benefits, the benefits are, essen­tially, to protect vul­ner­able people. This is one of the primary functions of the law. In 98 per cent of cases, as far as we can tell, it’s the female spouse and the children who are to be protected against the use of the religious tradition and con­ven­tion to acquire an advantage in civil pro­ceed­ings, because that’s happening now anyway. That inter­mix­ing, if you like, is happening now — when one party withholds consent to the granting or the accepting of a religious divorce as a condition of getting their way in a property set­tle­ment or in a custody dispute. Given that reality, the altern­at­ives that we put forward are there to protect people from being exploited in that way.
The other point I would make is that there are com­par­able jur­is­dic­tions, Canada, the UK, the state of New York, South Africa, which already make these sorts of pro­vi­sions available in their civil law and have done so now for some years. And the sky hasn’t fallen.
Dr ALY: In those cases, has there been any kind of argument that these pro­vi­sions impinge on the freedom of religion or the freedom of belief by indi­vidu­als who perhaps want to retain that power?
Mr Wertheim: I don’t know enough about any indi­vidu­al case in those other jur­is­dic­tions. I would have assumed, and I have read some things that suggest, that those points were made when the reforms were ori­gin­ally intro­duced, but have since ceased to be relevant and have not really been raised since. But, as to what may transpire in any indi­vidu­al case, I couldn’t say.
CHAIR: Just to tease that out a bit further, I note that your sub­mis­sion says:
In January 2004, the then Federal Attorney General declared that the proposals would not be imple­men­ted, claiming that they would not be con­sti­tu­tion­al and would also violate the principle of sep­ar­at­ing religion and the state and threaten the system of no-fault divorce.
I’m just inter­ested in the comment that it wouldn’t be con­sti­tu­tion­al. Pre­sum­ably, in devel­op­ing these proposals, you had some con­sti­tu­tion­al advice in relation to that. If so, can you say anything about that? And did you or the council of rabbis or whoever seek advice from the then Attorney as to why this wouldn’t be con­sti­tu­tion­al?
Mr Wertheim: We did. There were many con­ver­sa­tions with the then Attorney. As it happened, it was Mr Ruddock, who is chairing the expert panel. I don’t think it got beyond the assertion by the Attorney that the remedies we were proposing would involve imposing a religious observ­ance. No doubt that is a view that, if such a reform were to be made, could be argued before the High Court, but the expert advice that I can refer you to is an article by Amanda Wil­li­am­son. I’ve referred to her article in the sub­mis­sion. She wrote about this in the James Cook Uni­ver­sity Law Review in 2004. I would commend that article to you. Ms Wil­li­am­son is not Jewish, as far as I know, but she’s certainly very much on top of this issue, including the con­sti­tu­tion­al aspects.
CHAIR: In summary, without me reading her article, her opinion was that this would not be uncon­sti­tu­tion­al?
Mr Wertheim: That was part of her article, and, yes, she was of that view. She expressed scep­ti­cism about the con­sti­tu­tion­al invalid­ity argument. I should also say that the Family Law Council endorsed the proposal that we put forward to the Attorney as well.
Senator MOORE: Thank you for the inform­a­tion about the inter­na­tion­al situation as well. We have not got time to go into all of that but it was very useful to have that summary of what is occurring around the world. I think your sub­mis­sion has placed in context that this is an inter­na­tion­al process, and we have to be careful in Australia because these things are arising every­where. Is that right? I would have thought that would be—
Mr Wertheim: Are you talking spe­cific­ally about Gett refusal?
Senator MOORE: I have moved on from the Gett. It abso­lutely totally fas­cin­ated me because I had been reading about it sometime in the past and picked up all the questions. That is fine. It was just a matter of seeing where we stand now. But inev­it­ably it looks like a High Court situation somewhere down the track.
Mr Wertheim: It would be if that reform was intro­duced.
Senator MOORE: It is just a pressing need for the women involved.
Mr Wertheim: It is. And family law prac­ti­tion­ers who have clients in that situation have written about it over a period of years.
Senator MOORE: I’m sure your community has put sub­mis­sions into the current review of the Family Law Act that is going on. There is a House of Reps committee looking at the whole issue of family law in Australia.
Mr Wertheim: My organ­isa­tion has not but I believe one of the family law prac­ti­tion­ers who has spe­cial­ist knowledge in this area has done so.
Senator MOORE: It’s another way to go. It was about the summation of the situation around the world. Mr Wertheim, it is always confusing when talking with your community because it seems to me you are covered by the Racial Dis­crim­in­a­tion Act and also the religious area. People don’t separate that. It still continues to confuse me — the Sikh group, the Islamic group and the Muslims as well. People have this view that it is one group when it is a great wide variety of people.
Mr Wertheim: The legal position in the common law countries, as I under­stand it — unless there has been some recent case law that I am not across — is that only the Jewish and Sikh com­munit­ies are recog­nised as both national and faith com­munit­ies because of their his­tor­ic­al ante­cedents. I don’t believe Muslims per se are recog­nised as ethno-religious. I think that is still the case. It certainly has been for many years. So that has given rise to certain issues about their pro­tec­tions under the Racial Dis­crim­in­a­tion Act. There is another point that I really would like to raise with this committee because I do think it is an area of urgent need for reform and that is the current laws that cover incite­ment of violence — not incite­ment of hatred but incite­ment of violence — on the basis of race and religion.
I am referring spe­cific­ally to sections 80.2A and 80.2B of the Criminal Code. I raised it spe­cific­ally in the context of the remarks I made earlier about the rise of this new Nazi group in Australia. It is a small group at present but they are very open about their advocacy of mass killing of Jews and gays, among others. There seems to be no pos­sib­il­ity of pro­sec­ut­ing members of this group for their activ­it­ies, for inciting violence on the basis of race and religion, because the elements of the offences as they are currently defined in sections 80.2A a and 80.2B impose an impossibly high evid­en­tiary bar on a pro­sec­utor. Spe­cific­ally, these sections require proof of two elements of mens rea, which is almost unheard of in the criminal law. One is the intention to do the inciting but the other is an intention that violence will occur, which is a very difficult thing to prove because the threats and the incite­ment are often implicit, not provable beyond reas­on­able doubt. Added to that is the further com­plic­a­tion that the current law — which, by the way, was intro­duced in 2010 — has available to it a defence in section 80.3 which is based on, essen­tially, a good faith type defence, a free speech type defence. I’m just asking members of the committee to pause and reflect for a minute on a situation where somebody has been proven, beyond reas­on­able doubt, to have intended to incite violence on the basis of race or religion — has been proven to have intended that violence will occur — and yet did so reas­on­ably and in good faith.
Senator MOORE: Whatever that means.
Mr Wertheim: Well, whatever it means, I don’t believe there is any cir­cum­stance, no matter how broad a view you take of the words ‘good faith’, that would cover a situation where somebody has been shown to intend to incite violence and intend that violence will occur. That, in and of itself, seems to be com­pletely incom­pat­ible with any sug­ges­tion of good faith, freedom of speech or express­ing a view. My organ­isa­tion has made repeated sub­mis­sions about this, including when the law was initially intro­duced. We would say that, if there is any situation where somebody intends to simply express a point of view or give voice to a philo­sophy, in those cir­cum­stances, then the original elements of the offence — the intention to incite and the intention that violence will occur — will not be present, so the defence is mis­con­ceived. The whole scheme of the legis­la­tion, in that respect, is mis­con­ceived. It seems to me also that — given that you’ve got groups that do get away with inciting violence on the basis of race or religion, and there has never been a pro­sec­u­tion, to my knowledge, under either of those sections, or certainly not a con­vic­tion — this is an area in urgent need of reform, and it does actually go to religious freedom because it is one of the few laws that does provide specific pro­tec­tions to people on the basis of religion.
Senator MOORE: What’s the response when you raise it with attorneys of all flavours?
Mr Wertheim: The eyes glaze over!

Dr ALY: Do you think that the law adequately captures these kinds of incite­ments made on social media? I’ll give you an example, because I share your concerns about rising antisemitism coupled with white suprem­acist and neo-Nazi movements in Australia. One example is a tweet by one of these groups which refers to a report in The New York Times and says, ‘This report mentions an increase in antisemitic incidents in Australia by almost 10 per cent in the last year. Let’s get those numbers up.’ To me, saying to followers, ‘Let’s get those numbers up,’ is very much a call to action. This was done on social media. Do you believe that the law, the Criminal Code, as it currently stands, effect­ively protects your community from this kind of—
Mr Wertheim: No, it doesn’t, and the example you’ve cited is a very mild example, if I may say so. I’m happy, if the committee wishes, to email you some of the posters that have been issued by that same group, Anti­podean Res­ist­ance, one of which calls for the leg­al­isa­tion of the execution of Jews and does so with a graphic portrayal taken from one of the mass killings from World War II, showing an SS officer about to shoot somebody in the back of the head. There was another one that was issued, actually, during the recent debate about same-sex marriage and referred to the fact that there were reports of gay people com­mit­ting suicide during that debate because they felt that they had been vilified, and again saying, ‘Let’s get those numbers up’ — the same sort of idea — and again accom­pan­ied by a graphic picture of, pre­sum­ably, a gay person being shot in the head. So it seems to me that these sorts of public displays of incite­ment to violence, or even advocacy or promotion of violence, ought to be something that the law can reach in extreme and suf­fi­ciently serious cases like that. Just last week, that same group plastered those very posters on a synagogue in Adelaide. Again, this was done in the dead of night. It’s unlikely that anyone is going to be appre­hen­ded for it. It goes to show you that, unless you nip this in the bud, it gets worse. Sooner or later, the price that Australia has to pay — or that any society that doesn’t deal with this early on will have to pay — is going to be much greater. I’m using this oppor­tun­ity to raise the issue and urge the committee to look at and recommend a review of the law in this area.
Senator MOORE: I have one last question about the security costs. That was something I did not know about before. It said that you had to request increased funding. Have you had a decision on that request?
Mr Wertheim: No. The gov­ern­ment estab­lished the Safer Com­munit­ies Fund. The first round was mainly for local councils. In fact, I think it was exclus­ively for local councils. The second round was open to all groups, and 93 Jewish organ­isa­tions in Australia made an applic­a­tion for assist­ance. I’m talking about syn­agogues, community centres, museums — there are many organ­isa­tions around the country. The schools are in a somewhat different situation because they are covered by a separate grant, the Secure Schools Program. That has been the case since, I think, 2007. That situation appears to have been dealt with adequately.
Of course, schools are not the only insti­tu­tions that are vul­ner­able to attack. The expenses are enormous and getting higher every year. For one thing, it’s capital expenses, but it is also more par­tic­u­larly the ongoing expenses of static guards and so on. It’s a sad reality that, even in Australia, if you’re Jewish and you want to attend services at a synagogue, you have to go through metal detectors, past security guards and all the rest of it. That is not something that has been exper­i­enced by any other community, to my knowledge.
CHAIR: Thank you very much for your sub­mis­sion. Thank you very much for coming along and dis­cuss­ing it with us today. If there’s any further material you wish to put before the committee, please forward it to the secretary.