Sydney Beth Din refused the right to appeal to the High Court

May 19, 2019 by J-Wire Newsdesk
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Four members of the Sydney Beth Din found guilty of contempt of court with an appeal against the decision was dismissed have now their application to have their case heard by the High Court rejected.

At the time they sought leave to appeal the Sydney Beth Din stated:  The Beth Din considers that the case raises significant questions as to the ability of Orthodox Jews to practise their faith freely and that it has broader implications for people of all faiths practising their religion in Australia.”

The four members of the Beth Din attended an injunction hearing at the Supreme Court in Sydney dealing with religious sanctions being threatened to an orthodox member of the Sydney Jewish community who defied the Beth Din.

The threat of the sanctions was the result of the member refusing to appear before the Beth Din on a $5 million commercial dispute.

The judge hearing the injunction matter found the rabbis’ actions to be contempt of court and fined them collectively $50,000.

Rabbis Moshe Gutnick, Michael Chriqui, Yehoram Ulman and Eli Schlanger appealed the verdict but it was upheld by a 2-1 decision by the three appeal judges. However, the fines imposed on them were halved.

Response:

The Sydney Beth Din has released the following statement: “The Sydney Beth Din is, of course, disappointed with the decision of the High Court not to grant leave to hear its appeal against the finding that it was in contempt for using only its purely halachic powers, to summons a Jewish person to a Din Torah.

Until now it was thought and practised, that the law of contempt in relation to Dinei Torah did not apply to circumstances where a civil court case was not contemplated.

The High Court decision allows the finding of the Court of Appeal to stand, that the Rabbis were found in contempt even in those circumstances. This decision will effectively be binding on Batei Din throughout the common law jurisdiction. In the USA, where all aspects of Freedom of Religion are constitutionally protected, the issuing of such orders by Batei Din remains unassailable as a large body of case law shows. The original decision of the Court of Appeal created “new law”, that has effectively reduced the scope of religious autonomy in Australia and this is the view of religious groups and legal experts that worked with the Beth Din. As one internationally renowned advocacy group wrote, this “is one of the bigger intrusions on religious autonomy that we’ve seen a civil court validate in recent years.”

There are those within the community who wish to disingenuously discredit the Beth Din as a result of this decision. In response, the Beth Din makes the following observations.

In the decision of the Court of Appeal, the Judges all agreed that the Rabbis did not act “contumaciously”, which means there was no willful intent to do anything wrong. The reason is simple. The Rabbis at all times thought what they were doing was correct and were acting lawfully based on the legal advice they had received. One just has to read the dissenting decision of Justice McColl, and in it her defence of the Rabbis and freedom of religion. If even she thought what the Beth Din was doing was proper, how were the Rabbis or even their legal advisors to suspect otherwise?

Justice Bathurst, who wrote the majority decision, recently gave a speech on Law and Religion and in it, he referred to this case. He was confident that with only minor alterations to the wording of the Beth Din summonses, the issues could be brought in line with the current contempt law, and he effectively acknowledged that it was never the intention of the Rabbis to do anything improper, as indeed Justice McColl recognized.

The Beth Din cannot be taken to task for performing a religious duty, in accordance with Halacha, that even a Supreme Court Judge thought ought to be proper and acceptable. It is only now, as a result of this precedent, that it has become not allowed.

The Beth Din has for some time undertaken a complete revision of all its judicial practices and procedures as well as its corporate obligations, together with the assistance of a Supreme Court Judge and other legal experts in the community, with a view to bringing them fully up to date with current expectations. Those changes will be made public on the Beth Din website in due course. They will include a detailed Rules of Procedure for Dinei Torah ensuring even further transparency as to procedure, as well as ensuring adherence and best practice in terms of Halacha and the law. As far as we know we will be the first Beth Din outside the United States to produce such a document.

The Beth Din is absolutely committed to following the law of the land and will indeed do so. It can not and will not resile from the Biblical Halachic principle that Jews must submit their disputes to a Beth Din. However, it will take on board the advice of Justice Bathurst and adjust its procedures accordingly.”

Comments

2 Responses to “Sydney Beth Din refused the right to appeal to the High Court”
  1. Steven Shochet says:

    Rather than fight the decision, the rabbis should be more concerned that people do not have confidence in the integrity of the Din Torah process in Australia.
    The debacle in Melbourne some years ago regarding Caulfield Hebrew Congregation undermined the likelihood of people utilising the process.

  2. Bella Ceruza says:

    Why is a it any different for the Beth Din in Sydney to try to bully a Jew into demurring to a Beth Din for a commercial matter than for a Sharia court in Australia to impose forced divorce / genital mutilation edicts?

    Hopefully we would all object to the latter because Australian laws govern divorce and outlaw genital mutilation. Similarly, Australian law governs commercial transactions. Accordingly, unless both parties agree to seek ‘counsel’ of the Beth Din, parties have the right to ignore the Beth Din on commercial matters and to use the Australian legal system.

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