ECAJ co-CEO Peter Wertheim appears before the Parliamentary Inquiry into the status of the human right to freedom of religion or belief

May 10th, 2018

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
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—

: 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!

: 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.