RABBI Moshe Gutnick is to remain president of the Rabbinic Council of Australia and New Zealand (RCANZ) despite the High Court rejecting an appeal application by the Sydney Beth Din (SBD), which he heads, to overturn contempt of court convictions against four of its members.
The High Court dismissed the SBD’s Special Leave application last Friday and ordered Rabbi Gutnick and Rabbis Yehoram Ulman, Michael Chriqui and Eli Schlanger to pay costs.
Despite Rabbi Gutnick having run out of avenues to overturn the NSW Supreme Court December 2017 ruling, the RCANZ executive committee confirmed he will remain at the organisation’s helm.
“Justice McColl of the Supreme Court of New South Wales affirmed that the SBD’s actions were entirely appropriate,” the RCANZ executive committee said, in reference to the dissenting Court of Appeal judge who was overruled two to one.
“Although her honour’s view was not adopted by the majority, all agreed the SBD did not act contumaciously and, given the SBD is revising its communications policy to confirm with the majority ruling, we are satisfied that the position of our president remains entirely tenable.”
The convictions stemmed from a 2017 commercial dispute in which defendant Reuven Barukh refused to attend the SBD, preferring to have the case heard “in a civil court”.
The SBD secretary, Rabbi Schlanger, told Barukh if he did not comply, among other sanctions, “Synagogue/s where he prays will be informed accordingly. He will not be counted to a minyan. He will not be able to receive an aliyah to the Torah. He will not be offered any honour in the synagogue.”
Justice Sackar found the rabbis in contempt of court and fined Rabbis Schlanger, Ulman and Chriqui $10,000 each and Rabbi Gutnick $20,000. The Court of Appeal upheld the ruling but reduced the penalties.
The SBD said it was “of course disappointed” with the High Court decision.
“The High Court decision allows the finding of the Court of Appeal to stand, namely that the law relating to contempt includes circumstances where civil court proceedings were not in contemplation by the parties to the dispute,” the SBD said in a statement.
“The rabbis were found in contempt even in those circumstances. This represents an expansion of the law of contempt.”
The NSW Jewish Board of Deputies unanimously resolved at its March plenum to conduct a review into the SBD. The formation of an ad-hoc committee to conduct the review has been delayed until its next plenum.
Sydney Beth Din statement in full:
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 its Dayanim and secretary were in contempt for using purely halachic powers, to summons an orthodox Jewish person to a Din Torah.
Until now it was believed and practiced that the law of contempt in relation to compelling orthodox Jewish people to attend Dinei Torah did not apply in circumstances where a civil court case was not contemplated.
The High Court decision allows the finding of the Court of Appeal to stand, namely that the law relating to contempt includes circumstances where civil court proceedings were not in contemplation by the parties to the dispute. The Rabbis were found in contempt even in those circumstances. This represents an expansion of the law of contempt. It is a decision which will effectively be binding on Batei Din throughout the common law world. In the USA, where all aspects of Freedom of Religion are constitutionally protected, the issuing of such orders by Batei Din remain unassailable and there is a large body of US case law confirming that. The original decision of the Court of Appeal expanded the law and has effectively reduced the scope of freedom of religion in Australia. That this judgement has had the effect of curtailing freedom of religion is also the view of a number of other 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, all three judges agreed that the Rabbis did not act “contumaciously”, which means they did not wilfully intend to do anything wrong. The reason is simple. The Rabbis at all times thought that what they were doing was correct. The dissenting decision of Justice McColl, defends the Rabbis and freedom of religion. If she came to the conclusion having properly weighed up all of the evidence that what the Beth Din was doing was proper, how were the Rabbis to suspect otherwise?
Chief Justice Bathurst, who wrote the majority judgement in the Court of Appeal decision, referred to his case in his recent speech on Law and Religion. He was confident that if the Dayanim made minor alterations to the wording of the Beth Din summonses, the issues could be brought in line with the current law of contempt. Chief Justice Bathurst acknowledged that it was never the intention of the Rabbis to do anything improper, as indeed Justice McColl recognised.
The Beth Din can not be taken to task for honestly performing a religious duty, in accordance with, and required by, Halacha, in circumstances where even a Supreme Court Judge considered it to be proper and acceptable. It is only now as a result of the decision we know it is not.
For some time, the Beth Din has been undertaking a complete revision of all of its judicial practices and procedures as well as its corporate obligations. This has been done with the assistance of a Supreme Court Judge and other legal experts in the community. The aim of this review to ensure the dayanim are brought up to date with current expectations of practice and procedures. The changes the Beth Din has instituted as a result of that review will be made public on the Beth Din website in due course. They will include a detailed Rules of Procedure for Dinei Torah. This will ensure complete transparency as to procedure as well as ensuring adherence and best practice in terms of Halacha and the civil 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 has been and remains committed to following the law of the land and will indeed do so to the best of its ability. It can not however resile from applying the Biblical Halachic principle that Jews must submit their disputes to a Beth Din. In carrying out its religious duty to uphold Halacha the Beth Din will take on board the advice of Chief Justice Bathurst and adjust its procedures accordingly.