The Waverley Synagogue Decision: Why We Should Be Worried

In a recent decision of the Land and Environment Court of New South Wales the Commissioner decided against allowing the construction of a local synagogue due to concerns that it may be a target for terrorist attacks. The parties, Friends of Refugees of Eastern Europe and the Waverley City Council, have met since the decision to look for ways to resolve the security issues and allow the project to go forward. Nevertheless, the case has raised some significant political, social and legal issues which the courts, and the country, must face. This article will focus primarily on the legal issues involved, and the broader legal implications that are raised.

?The Australian Constitution

While the Australian Constitution does not contain a Bill of Rights, there are a number of rights that are either expressly stated or implied therein.

Section 116 of the Constitution expressly states that the Commonwealth “shall not make any law … prohibiting the free exercise of any religion”.

The High Court of Australia has also found, due to the democratic nature of the Australian Constitution, that there are implied rights to certain civil liberties such freedom of political communication, a right to vote, and a right to due process. It is therefore likely that there is a similar right to freedom of assembly may be implied in the Constitution.

Prohibiting the construction of a place of worship, therefore, would violate both the freedom of religion and freedom of assembly guaranteed by the Constitution.

Anti- Discrimination Laws

Jewish organizations may not only be defined by their religious status; they may be defined by their ethnic status as well. Any Jewish organization or establishment can be a target for terrorism, and prohibiting the existence of Jewish organizations or establishments would constitute a form of racial discrimination.

There are both Federal and State legislation relevant in this case: The Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW). These explicitly bind government bodies, prohibiting them from engaging in any form of discriminatory behavior.

Planning Laws

 When decided cases of planning permits, councils must indeed take security factors into consideration. However, these considerations must:

1.      not violate the constitutional and legal protections outlined above; and

2.      accurately define security risks.

In this latter function, the council and court have used:

1.      the “Precautionary Principle”; and

2.      Crime Prevention through Environmental Design.

The Precautionary Principle has been used in the past to prohibit the construction of facilities that create risks to the environment. Applying the Precautionary Principle in this case, however, seems to conflate the cause of the risk and the target of the risk. For example, it would be sensible for a council to prohibit the construction of a factory due to its harmful emissions; it would be ludicrous to prohibit the use of lungs due to the risks of breathing in said harmful emissions. Equating the cause and victim of a risk creates a dangerous precedent, paving the way for laws that put the responsibility on the victim rather than the perpetrator. What will be next: the banning of certain dress deemed to be provocative in order to prevent sexual assault?

The second issue councils must evaluate relates to the “Crime Prevention through Environmental Design” guidelines. These guidelines create a more complex framework, allowing councils to prohibit building or behavior that may only indirectly lead to crime. For example, a council may prohibit businesses to be open past midnight in a crime hot-spot in the expectation that that would lower the instances of crime. Yet, although councils may prohibit activity that does not pose a risk in itself, they do not have unlimited power to regulate the normal day-to-day activities of citizens for the purpose of reducing crime. If they had such power, we would all eventually be subject to curfews and state-mandated bedtimes to ensure late night crime would be reduced. 

The legal implications of the Land and Environment Commissioner’s decision touch at our foundational civil liberties in Australia. Government bodies should never be able to hide behind the issue of public safety to violate the rights of individuals who are the targets of violence. In the end, no one will be safe.