Landmark case fights states’ grab for total power, upholds religious freedom
By TONY MOBILIFONITIS
A BARRISTER representing Glady Berejiklian’s dictatorial COVID-19 regime that forbids singing in churches in the name of fighting a virus has told the Federal Court in Sydney “No one disputes a common law fundamental freedom of the practice of religion”.
This is the regime that recently issued $1000 fines to each of 30 adult members of a Sydney congregation who met during a lockdown. The same regime banned the minister from preaching for seven days, fined the church organisation $5000 for hosting the event and the pastor a further $500 fine for failing to wear a face mask in a public place.
The almost laughable comment in court came from Jeremy Kirk, representing defendants the state of NSW, Health Minister Brad Hazzard and Chief Health Office Kerry Chant. The barrister tried to excuse the state’s horrendous abuse of powers by citing “the right to life as the most important common law right”.
This right to life “defence” of a state government that has banned, suppressed and repeatedly lied about the inexpensive generic drug treatments for COVID-19 while furiously pushing dangerous experimental vaccines on behalf of a corrupt global pharmaceutical cabal is nothing more than gross hypocrisy. More than 450 post COVID vaccination deaths have been reported in Australia so far this year – more than the claimed number of COVID deaths.
The barrister then suggested that if “pastors, reverends or rabbis” who gave evidence in the court had real concerns about the health and safety of their members of their community or congregations they could “go visit them” with their “reasonable excuse”.
The case before the Federal Court of Australia is challenging restrictions on religious gatherings by the NSW and Victorian state governments and the legitimacy of lock downs in general. It continues next Wednesday (September 10).
The court directions hearing will cover questions on the validity of certain state Acts and consider how several Constitutional matters under Section 109 proceed as well. Section 109 essentially says Commonwealth Acts prevail against state Acts that are inconsistent with the former. It is now widely known that state health acts under which the so-called public health orders are made are inconsistent with the Commonwealth Biosecurity Act.
Plaintiffs are Rabbis Menachem Kamenetzky and Rabbi Zvi Telsner and Sydney-based Baptist Ministers Rev. Christopher Athavle and Rev. Robert Ayoub, as well as Presbyterian Rev Robin Tso, from the Hunter region. The rabbis are seeking to observe their Rosh Hashana and Yom Kippur services through September at their synagogues.
Lead solicitor in the case Tony Nikolic said the action involved two critical elements – an expedited injunction to allow religious Jews in NSW and Victoria to congregate in synagogues for the religious high-holiday of Rosh Hashanah from Monday, September 6, and secondly, a broader action against the NSW and Victorian governments and the Commonwealth of Australia.
It is alleged that none of the governments have the constitutional or common law power to deny NSW and Victorian citizens their religious freedom, including fulfilling particular religious obligations and practices in designated houses of worship.
The filing argues that NSW and Victoria have selectively discriminated against religious groups by stopping them from congregating in houses of worship which the governments have deemed “non-essential” while allowing citizens to congregate in retail outlets such as supermarkets, newsagencies and liquor stores.
Complainants also argue that houses of worship provide significant spiritual, psychological and emotional support for people, especially for those suffering financially and psychologically from the impact of the governments’ lockdown policies and that the states’ indiscriminate selection of “essential” and “non-essential” venues under public health orders are not supported by robust scientific or medical evidence.
They have called on Jayanta Bhattacharya, Professor of Medicine at Standford University (California, USA) to provide an independent expert report in support of the action brought forward by the plaintiffs.
Mr Nikolic said the action followed similar ones in the United States in which the US Supreme Court ruled that US state governments did not have the constitutional power to deny Americans’ religious freedom by indiscriminately closing houses of worship while allowing other venues to remain open.
“Courts in other jurisdictions such as Scotland have also ruled that COVID-19 measures cannot indiscriminately close houses of worship. Importantly, seeking injunctive relief from the Federal Court of Australia is the last possible venue for the plaintiffs to have their religious freedoms protected,” he said.
“My clients have attempted to engage with the NSW and Victorian premiers and their ministers as well as various NSW, Victorian and Federal parliamentarians to have their grievances addressed in a diplomatic and respectful manner.
“Unfortunately, in the context of NSW, the NSW Government has been unwilling to engage with my clients in any meaningful dialogue. As a result, our only last venue for relief is the courts. Alternatively, in the context of Victoria, while meaningful dialogue did occur, the Victorian Government failed to acknowledge and respect the religious freedoms of my clients,” he said.
He noted that churches and synagogues in the action were willing to adhere to exactly the same health measures required by the NSW and Victorian public health orders which are required of venues deemed “essential”.
“The churches and synagogues which special counsel and I are representing in this action are happy to meet all of the NSW and Victorian governments’ health requirements, including the use of hand sanitisers, facial masks, QR codes and social distancing,” Mr Nikolic said.
“If these measures are satisfactory for supermarkets, newsagents and liquor stores, we argue that these measures should be satisfactory for houses of worship, especially given that Australians have a constitutional and common law right of religious freedom, observance and practice.” Part of Friday’s court proceedings can be viewed online.