Australian Imams Publish Guidance For Muslim Witnesses In Judicial Proceedings

The Australian National Imams Council announced yesterday the release of a document titled Explanatory Note on the Judicial Process and Participation of Muslims (full text).  Prepared in cooperation with the Judicial Council of New South Wales, the document is designed to:

a) give practical guidance and explanation to members of the Australian Muslim community of the etiquette and behaviours expected of persons engaging in the judicial processes so that they may act consistently with these without compromising their religious beliefs; and,

b) provide information to judicial officers on Islamic concepts and practices as they relate to matters which may be raised in connection with Muslims participating in the court processes.

Among other things, the document says that there are no religious prohibitions on a Muslim standing up for the Magistrate or judge as a sign of respect.  It also announces:

It is not contrary to Sharia law for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is not contrary to Sharia law for the Magistrate or Judge (male or female) to look at her in order to know or identify who she is, make assessments as to credibility where this is an issue and protect the rights of all concerned.

The document also outlines the appropriate way to swear in a Muslim witness. Daily Telegraph, reporting on the document, outlines some of the situations in Australian courts that led to the need for these clarifications.

Australia Approves Same-Sex Marriage

As reported by the New Zealand Herald, Australia's Parliament has given final approval to same-sex marriage. The vote comes after a government mail survey showed that 61.6% of Australians favored marriage equality.  (See prior posting.) Marriage Amendment (Definition and Religious Freedoms) Bill 2017  passed the House of Representatives yesterday.  It was approved 43-12 last week by the Senate.  It now goes to the Governor General for royal assent.  The Herald reports further:

Amendments meant to safeguard freedoms of speech and religion for gay-marriage opponents were all rejected, though those issues may be considered later. The government has appointed a panel to examine how to safeguard religious freedoms once gay marriage is a reality in Australia....

The current bill allows churches and religious organizations to boycott gay weddings without violating Australian anti-discrimination laws.

Existing civil celebrants can also refuse to officiate at gay weddings, but celebrants registered after gay marriage becomes law would not be exempt from the anti-discrimination laws.

One of the rejected amendments would have ensured Australians could speak freely about their traditional views of marriage without fear of legal action.

ABC News says that the first same-sex weddings could take place as early as January 9.

Australian Government Survey By Mail Favors Same-Sex Marriage

The Australian Bureau of Statistics yesterday released the results of its national postal survey on whether the law should be changed to allow same-sex marriage.  (Press release; full survey results).  61.6% of respondents voted "yes"; 38.4% voted "no".  The press release expanded on the data:

All states and territories recorded a majority Yes response. Of the 150 Federal Electoral Divisions, 133 recorded a majority Yes response, and 17 Federal Electoral Divisions recorded a majority No response.

12,727,920 million people participated in the voluntary survey – representing 79.5 per cent of the more than 16 million eligible Australians.

CNN reports that celebrations broke out across Australia after the results were announced.  (See prior related posting.)

Australia's Top Court Upholds Planned Mail Survey of Voters On Same-Sex Marriage

In Wilkie v. Commonwealth of Australia, (High Ct. Australia, Sept. 7, 2017), Australia's highest court unanimously upheld the government's plan to conduct a voluntary survey by mail of the country's voters on whether same-sex marriage should be legalized.  At issue in the case was whether the government acted properly when it used a law permitting expenditures which are urgent and unforeseen to fund the survey.  As reported by news.com.au:

Ballots with the question, “Should the law be changed to allow same-sex couples to marry?” will be sent to households across the nation on September 12....

If a majority of people vote in favour, a vote will then be held in parliament which [Prime Minister Malcolm] Turnbull says he expects will make same-sex marriage legal. If Australians vote no, Mr Turnbull has said the parliamentary vote will not proceed.

The postal survey was conceived after Australia's Senate voted against government sponsored legislation for a binding plebiscite. Interestingly, advocates of marriage equality were among those challenging the plebiscite, arguing that Parliament should legalize same-sex marriage without this preliminary vote. (Marriage Equality Information Sheet).  Law & Religion Australia last month had a lengthy post on the religious liberty implications of the substantive legislation that is being considered.

Australian Catholic Bishops React To Planned Plebiscite On Same-Sex Marriage

As reported earlier this month by CBC News, Australia's government is planning a mail survey beginning Sept. 12 of Australians on the issue of same-sex marriage. However it is facing a court challenge arguing that the government does not have authority to conduct this type of plebiscite without obtaining authority from Parliament.  Meanwhile the Sydney Morning Herald reported yesterday that Catholic bishops in Australia have threatened that if same-sex marriage is legalized, parish employees, including teachers in Catholic schools, who marry a same-sex partner may well be fired.

Australian Commission Recommends That Child Sex Abuse Learned In Confession Must Be Reported To Authorities

Australia's Royal Commission into Institutional Responses to Child Sexual Abuse yesterday issued a release  (which includes links to full text) announcing its publication of a report titled Criminal Justice.  The report puts forward 85 recommendations for reforms aimed at providing fairer responses to victims of institutional child sexual abuse. Here is the Commission's summary of its recommendations on disclosure of abuse learned by clergy during confessions:

The report recommends making failure to report child sexual abuse in institutions a criminal offence. This recommendation extends to information given in religious confessions. Clergy should not be able to refuse to report because the information was received during confession.

Persons in institutions should report if they know, suspect or should have suspected a child is being or has been sexually abused.

The Royal Commission heard of cases in religious settings where perpetrators who made a religious confession to sexually abusing children went on to reoffend and seek forgiveness. The report recommends there be no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report information disclosed in connection with a religious confession.

AP reports on the Commission's action.

Australian Judge Says Muslim Plaintiff Cannot Testify Without Removing Veil

Australia's Daily Telegraph reported yesterday that a trial court judge in the Australian state of New South Wales has ruled that a Muslim woman who is plaintiff in a civil case against the state and federal governments may not take the stand in her own trial without removing her veil which conceals her face. Moutia Elzahed, who is one of two women married to a convicted Islamic extremist, is suing over alleged police brutality during a 2014 counter-terrorism raid of her home.  Elzhed says that for religious reasons she cannot show her face to any man outside her family.  She rejected alternatives of testifying in closed court or via a closed circuit television link since either would show her face to the male lawyers involved in the case.  Elzhed also refused to stand when Judge Audrey Balla entered the courtroom.

UPDATE: Here is the full text of the judge's decision.

Australian Agency Refuses to Approve Trademark For "McKosher"

Australia's ABC News reported last week that the Australian Trademark Office has refused to approve an application to trademark the name "McKosher" because of the danger of contextual confusion.  The application was submitted by New South Wales resident Mark Glaser who wants to open a Scottish-Jewish restaurant in Maclean, an Australian city with Scottish ties.  However the international McDonald's chain objected because it is in negotiations with Rabbinical leaders in Jerusalem to use the McKosher title as the name for kosher certified McDonald's restaurants in Israel.  Currently the Israeli rabbinate refuses to certify kosher branches of McDonald's for fear that the public will confuse the branches which are kosher with those that are not.

Australian Court Says Sex-Segregated Seating At Muslim Lecture Violates Anti-Discrimination Law

In Bevege v Hizb ut-Tahrir Australia, (NSW Civ & Adm Trib, March 4, 2016), the Civil and Administrative Tribunal of the Australian state of New South Wales held that sex-segregated seating at a lecture sponsored by a Muslim group violates the New South Wales Anti-Discrimination Act of 1977. The sponsor of the lecture, Hizb ut-Tahrir Australia, identifies itself as an 'international political party with a franchise in Australia."  When Alison Bevege attended the group's lecture on American intervention in Iraq and Syria, she was directed to a section of the auditorium reserved for women and children.  Hizb ut-Tahrir argued to the court that separate seating of men and women "is a part of Islam, and Muslims globally are adhering to this practice through choice as part of their belief and culture."

While the Anti-Discrimination Act has an exemption for acts or practices "of a body established to propagate religion that conforms to the doctrine of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion," (Sec. 56(d)), the court concluded that this exemption does not apply.  It was not shown that Hizb ut-Tahrir was established to propagate religion.  Also because Hizb ut-Tahrir argued that Bevege would have been allowed to choose her own seat if she had requested to do so, this shows that separate seating was not necessary to avoid injury to the religious susceptibilities of Muslims attending the lecture.

To avoid similar discrimination in the future, the court ordered that at events sponsored by the organization there must be notices that gender segregated seating is not compulsory, and ushers must be made aware of this.  Law and Religion Australia has more on the decision.

Australian Report On Laws That Encroach On Traditional Freedoms

On Wednesday, the Australian Law Reform Commission released  its report titled Traditional Rights and Freedoms—Encroachments by Commonwealth Laws. Chapter 5 of the report deals with Australian laws that may be seen as interfering with freedom of religion, including anti-discrimination laws. Law and Religion Australia blog has more on the report.

Australian Court Finds Anglican Diocese Liable For $40M Bank Loan

In Anglican Development Fund Diocese of Bathurst v. Palmer, (NSW Sup. Ct., Dec. 10, 2015), a trial court in the Australian state of New South Wales held (in a 615 paragraph opinion) that the Anglican Diocese of Bathurst is liable for a $40 million (Aus.) loan (equivalent to $29M US) from the Commonwealth Bank of Australia which the bank extended, under a special policy for loans to certain religious organizations, solely on the basis of "a letter of acknowledgment" from the Bishop of Bathurst. The Diocese's Anglican Development Fund had reloaned $28 million (Aus.) of the funds to two start-up schools that failed.  The Sydney Morning Herald reports on the decision.

New Muslim Political Party Launched In Australia

In Australia yesterday, a Sydney businessman launched a new political party, the Australian Muslim Party.  According to 9News, the new party hopes to run candidates for the Senate in all states and territories next year.  Businessman Diaa Mohamed, founder of the new party, says that  it is important that the Muslim community have a political voice.  The party was formed in part in response to the recent creation of six anti-Islamic parties.  Non-Muslims are welcome to join the party.

Australian Court Awards Damages For Sexual Abuse By Headmistress of Jewish School

In Erlich v. Leifer, (SC Victoria, Sept. 16, 2015), a trial court in the Australian state of Victoria awarded compensatory and exemplary damages to Hadassa Sara Erlich who as a student in an ultra-Orthodox school was sexually abused by the school headmistress Malka Leifer,  The court found that the school directly and vicariously liable for the psychological injuries to Erlich. In an 82-page opinion, the court described Leifer's unusual position of power over students.  The Melbourne Herald Sun reports on the decision.

Australian Court Says Polyamory Is Not "Sexual Orientation" Under Sex Discrimination Act

In Bunning v Centacare, (FCCA, Feb. 11, 2015), an Australian Federal Circuit Court judge dismissed a sexual orientation discrimination complaint filed against a Catholic social service agency by former employee Susan Bunning.  Bunning had worked most recently as the agency's Coordinator of Family Support, but was dismissed after it became known that she led a polyamorous lifestyle. She sued under the Sex Discrimination Act 1984.  The court held that plaintiff has no cause of action because polyamory-- the practice of engaging in multiple sexual relationships with the consent of all the people involved-- is sexual behavior, not sexual orientation. Financial Review reports on the decision.

Three Australian Rabbis Resign As Result of Government Inquiry Into Sex Abuse Scandals

JTA reported yesterday that in Australia, three leading Orthodox rabbis have resigned from at least some of their positions as a result of an inquiry by Australia’s Royal Commission into how Chabad officials responded to child sex abuse scandals in the 1980's and 90's at two institutions-- Yeshivah College in Melbourne and Sydney’s Yeshivah Centre. Yesterday's  Melbourne Herald Sun has additional details.

The Guardian reports that a turning point in the Commission's inquiry came earlier this month when Rabbi Moshe Gutnick, a senior judge of the Sydney Beth Din, told the Commission that a "culture of cover-up, often couched in religious terms" had pervaded the two schools. One of those resigning was the country's most senior rabbi-- Meir Shlomo Kluwgant, president of the Organisation of Rabbis of Australasia. His resignation was prompted by a text message he sent while the father of one of the abuse victims was testifying before the Commission. He labeled the father "a lunatic on the fringe, [who is] guilty of neglect of his own children..." Another of those resigning admitted to the Commission that in 2002 he did not know it was illegal for an adult to touch a child's genitals.

Welcome To Law and Religion Australia

Join me in welcoming Law and Religion Australia blog to the Religion Clause sidebar. Law and Religion Australia entered the blogosphere on January 1. It is authored by Neil Foster, Associate Professor of Law at the University of Newcastle, who also describes himself as an Evangelical Christian.  The new entry is particularly welcome as several blogs in area of law and religon have gone dormant in recent months.  I have removed from the sidebar those that have no posts for the last 6 months. A few others are coming close to that period of dormancy. So, welcome aboard.

Australia's Top Court Invalidates Federal Spending For School Chaplaincy Programs

In Williams v. Commonwealth of Australia, (High Ct. of Australia, June 19, 2014), Australia's highest court held that Australia's Parliament exceeded the powers given to the national government when it provided funds for chaplaincy services in public schools run by the states. The suit was brought by an atheist parent who objected to his son learning gospel songs in school.  AP reports on the decision, suggesting that the chaplaincy program could be constitutionally funded by providing grants to the states for the program. It quotes Sydney University constitutional lawyer Anne Twomey:

They could have always done this stuff through the states under grants; they chose to do these things by direct methods and one of the reasons they did that in the past was to get directly the political kudos that come from it.... The chaplaincy program was all about getting direct political support from religious lobby groups....

A Court press release also summarizes the decision. [Thanks to Scott Mange for the lead.]

Australian Court Says Wearing Kippah Does Not Excuse Absence of Bike Helmet

In Thomas v. Kent, (WASC, Feb. 4, 2014), the Supreme Court of Western Australia upheld the conviction of Simon Thomas for riding a bicycle without wearing a protective helmet. Thomas claimed that he was not wearing his helmet because he was wearing a kippah (a Jewish skullcap). Thomas said that he wears a kippah on three occasions each year, one of which is his birthday. But the court said that there had been no evidence introduced as to the religious reason for not placing a helmet over the skullcap, nor was there evidence that wearing a kippah made wearing a helmet impractical. News.com.au reports on the decision.

In Australia, Jewish MP's Oppose Call To Stop Parliamentary Tradition of Lord's Prayer

Today's Australian Jewish News reports that Jewish members of Australia's Federal Parliament are generally opposing a call by the The Green party to end the century-old tradition of opening each day's session of Parliament with the recitation of the Lord's Prayer. Jewish MP Mark Dreyfus said that while there could be more inclusive ways of recognizing the country's multi-faith nature, by calling for an end to prayer "the Greens are not showing an understanding of the importance of religious faith for very many Australians."

Australia's Highest Court Invalidates Capital Territory's Marriage Equality Law

In Commonwealth of Australia v. Australian Capital Territory, (Australia High Ct., Dec. 12, 2013), Australia's highest court invalidated the Australian Capital Territory's Marriage Equality (Same Sex) Act 2013 as inconsistent with federal law.  As summarized by the High Court's press release:

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The decision comes only 5 days after the Australian Capital Territory's new law took effect. Some 27 same-sex couples got married during that period. According to CNN, those marriages will be annulled.