By Henry Ergas
Respect for the courts is crucial to the rule of law. But, like all respect, it must be earned. By and large, our courts more than earn it every day. And it is precisely so as to defend their standing that decisions that gravely tarnish the courts’ reputation should be called out.
State of New South Wales v Farhat, handed down this week, is precisely such a decision.
The question before Fagan J was narrow. The state sought an extended supervision order against a young man who had spray-painted “Fuk Israel” and “PKK coming” on cars and buildings and burnt-out a vehicle. To succeed, it had to satisfy the court “to a high degree of probability” that he posed “an unacceptable risk of committing a serious terrorism offence”.
The court found Mohommed Farhat to be a drug-addicted vandal paid $4000 to paint slogans he did not choose and dismissed the application. Whether that finding is correct is open to debate. What is absolutely indefensible is the court’s decision to stray into extraneous matters on which it proved inconsistent, ill-informed and, ultimately, incoherent.
The errors are typified by what the court felt entitled to declare about Israel, in a case where no party led evidence on the subject. It held, for example, that Israel “achieved demographic Jewish dominance … by forcible expulsion of 750,000 indigenous Palestinians”. Those events, it added, “are uncontroversially established in extensive historical literature”.
In support, a footnote cites Benny Morris’s classic The Birth of the Palestinian Refugee Problem Revisited alongside a book by Ilan Pappe. Yet Morris’s account is, in reality, starkly different. On page 7 of the edition the court cites, he stresses that the exodus was the product of “a war that the Palestinians started” whose ultimate cause was the intention of the Palestinian leadership and of most Arab states “to destroy the Jewish state” and threaten the Jewish community in Palestine itself.
The most highly respected chronicler of what Israel did in 1948 therefore unambiguously rejects the single-cause “expulsion” narrative that the judge attributed to him – on his seventh page, suggesting nobody even opened the book. Nor does the court deign to mention that Morris savaged Pappe’s work for its gross factual errors and that Pappe has publicly denied that factual accuracy is relevant. Disdain for the facts should have ruled Pappe’s work out of the court’s consideration; that it didn’t speaks for itself.
But Fagan J hardly stopped there. Instead, he turned to what antisemitism meant and went wrong three times over.
The first error is elementary. Sieg Heil means “hail victory.” There is nothing about Jews in it. But shouted by uniformed men marching past a synagogue, its meaning is unmistakable. The point is that words take their sense from the occasion of their use. Yet the court held that “the political nature of the curse (which Farhat scrawled) was not changed by the circumstances”. Meaning, apparently, stops at the letters written on the page – or in this case scrawled on a firebombed car.
Except when it doesn’t. The court read Farhat’s family chats in context, his tattoos in context, even Washington’s designation of Hezbollah in context – in fact, it relied on context to interpret actions or words some 30 times. But it did so only when context supported its conclusions; when taking context into account would have damaged them, the words suddenly had to stand alone. And to that end it discarded the most telling context of all. The court accepted the police account that Farhat received “clear instructions regarding … spray-painting antisemitic phrases”. It also accepted that 13 related attacks in the same campaign involved “antisemitic symbols and slurs” and that most targets were “clearly associated with the Jewish community”. Yet severed from that surrounding evidence, Farhat’s attack – same campaign, same method – was made to stand alone, cleansed of any antisemitic taint. Unafraid of non sequiturs, the court placed its preferences above basic logic.
The consequences of that approach extend far beyond Farhat. Because antisemitism is socially unacceptable, it travels nowadays under cover of dog whistles and encoded expressions whose meaning is obvious when shouted by enraged protesters – and deniable the moment they are challenged. By excluding context from consideration, the court has effectively given that tactic a free pass.
The second, no less serious, error is one of consistency. The court dismissed the International Holocaust Remembrance Alliance definition of antisemitism as “so verbose and imprecise” that no ordinary Australian could apply it. Yet it decided the case using “unacceptable risk”, “a high degree of probability” and “the ordinary reasonable person” while relying on a decision under the Racial Discrimination Act, which asks whether conduct is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate”.
The court itself therefore invokes at least 20 standards every bit as vague. That is hardly unusual: the law routinely relies on open-textured concepts whose meaning is disciplined by reasons, precedent and appeal. Yet vagueness suddenly becomes disqualifying when the IHRA definition is involved. A principle invoked only when convenient is not a principle: it is an excuse.
And this too is an excuse with disastrous consequences. There is a reason the IHRA definition does not attempt to specify exhaustively every form antisemitic speech may take. The “bad man”, as American jurist Oliver Wendell Holmes famously said, cares only for where the line falls: draw that boundary too precisely and the Jew-hater will simply operate immediately inside it. Yet instead of recognising that obvious fact, the court loosely cites criticisms of the IHRA definition while ignoring its intellectual foundations and the cases in which it has been readily applied.
The third error lies in the definition the court devised for itself: antisemitism as hostility “against all Jewish people”. Neither dictionary it quoted actually contains that “all”: the court arbitrarily inserted it. Having done so, it could treat the existence of Jewish dissenters as an answer to a charge of antisemitism.
But antisemites have been sorting good Jews from bad for centuries. St Paul distinguished the true Jew from the merely outward one. Joseph Stalin and his successors relied on cringing statements by anti-Zionist Jews to shield the Soviet empire’s vicious antisemitism from criticism. The same device operates today when the Jewish Council of Australia is invoked as an alibi for the murderous Jew-hatred of Islamist fundamentalists. Far from detecting that ploy, a definition requiring hostility to each and every Jew licenses it.
Worse still, while purporting to explain antisemitism, the court allowed tropes to find footing. The Executive Council of Australian Jewry, the community’s representative body, was not a party and was not represented. Yet repeating the old Jewish lobby trope, the court denounced it as “transparently, a pro-Israel lobbying organisation”. Meanwhile, the minuscule, bitterly anti-Zionist JCA was quoted, entirely unexamined, as an authentic Jewish voice.
The good Jews testify; the bad Jews lobby – and procedural justice, which required giving the ECAJ an opportunity to contest the charge, was blatantly ignored.
This decision is, in the end, a shocking demonstration of how judging can go wrong. But it is far more than that. It reveals how deeply antisemitism has seeped into our public culture.
In a country where hatred of Jews has already turned murderous, the marriage of prejudice and ignorance is not merely disgraceful. It is deadly.
This column was originally published in The Australian
Court’s ruling gives antisemitism a free pass
Court’s ruling gives antisemitism a free pass
By Henry Ergas
Respect for the courts is crucial to the rule of law. But, like all respect, it must be earned. By and large, our courts more than earn it every day. And it is precisely so as to defend their standing that decisions that gravely tarnish the courts’ reputation should be called out.
State of New South Wales v Farhat, handed down this week, is precisely such a decision.
The question before Fagan J was narrow. The state sought an extended supervision order against a young man who had spray-painted “Fuk Israel” and “PKK coming” on cars and buildings and burnt-out a vehicle. To succeed, it had to satisfy the court “to a high degree of probability” that he posed “an unacceptable risk of committing a serious terrorism offence”.
The court found Mohommed Farhat to be a drug-addicted vandal paid $4000 to paint slogans he did not choose and dismissed the application. Whether that finding is correct is open to debate. What is absolutely indefensible is the court’s decision to stray into extraneous matters on which it proved inconsistent, ill-informed and, ultimately, incoherent.
The errors are typified by what the court felt entitled to declare about Israel, in a case where no party led evidence on the subject. It held, for example, that Israel “achieved demographic Jewish dominance … by forcible expulsion of 750,000 indigenous Palestinians”. Those events, it added, “are uncontroversially established in extensive historical literature”.
In support, a footnote cites Benny Morris’s classic The Birth of the Palestinian Refugee Problem Revisited alongside a book by Ilan Pappe. Yet Morris’s account is, in reality, starkly different. On page 7 of the edition the court cites, he stresses that the exodus was the product of “a war that the Palestinians started” whose ultimate cause was the intention of the Palestinian leadership and of most Arab states “to destroy the Jewish state” and threaten the Jewish community in Palestine itself.
The most highly respected chronicler of what Israel did in 1948 therefore unambiguously rejects the single-cause “expulsion” narrative that the judge attributed to him – on his seventh page, suggesting nobody even opened the book. Nor does the court deign to mention that Morris savaged Pappe’s work for its gross factual errors and that Pappe has publicly denied that factual accuracy is relevant. Disdain for the facts should have ruled Pappe’s work out of the court’s consideration; that it didn’t speaks for itself.
But Fagan J hardly stopped there. Instead, he turned to what antisemitism meant and went wrong three times over.
The first error is elementary. Sieg Heil means “hail victory.” There is nothing about Jews in it. But shouted by uniformed men marching past a synagogue, its meaning is unmistakable. The point is that words take their sense from the occasion of their use. Yet the court held that “the political nature of the curse (which Farhat scrawled) was not changed by the circumstances”. Meaning, apparently, stops at the letters written on the page – or in this case scrawled on a firebombed car.
Except when it doesn’t. The court read Farhat’s family chats in context, his tattoos in context, even Washington’s designation of Hezbollah in context – in fact, it relied on context to interpret actions or words some 30 times. But it did so only when context supported its conclusions; when taking context into account would have damaged them, the words suddenly had to stand alone. And to that end it discarded the most telling context of all. The court accepted the police account that Farhat received “clear instructions regarding … spray-painting antisemitic phrases”. It also accepted that 13 related attacks in the same campaign involved “antisemitic symbols and slurs” and that most targets were “clearly associated with the Jewish community”. Yet severed from that surrounding evidence, Farhat’s attack – same campaign, same method – was made to stand alone, cleansed of any antisemitic taint. Unafraid of non sequiturs, the court placed its preferences above basic logic.
The consequences of that approach extend far beyond Farhat. Because antisemitism is socially unacceptable, it travels nowadays under cover of dog whistles and encoded expressions whose meaning is obvious when shouted by enraged protesters – and deniable the moment they are challenged. By excluding context from consideration, the court has effectively given that tactic a free pass.
The second, no less serious, error is one of consistency. The court dismissed the International Holocaust Remembrance Alliance definition of antisemitism as “so verbose and imprecise” that no ordinary Australian could apply it. Yet it decided the case using “unacceptable risk”, “a high degree of probability” and “the ordinary reasonable person” while relying on a decision under the Racial Discrimination Act, which asks whether conduct is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate”.
The court itself therefore invokes at least 20 standards every bit as vague. That is hardly unusual: the law routinely relies on open-textured concepts whose meaning is disciplined by reasons, precedent and appeal. Yet vagueness suddenly becomes disqualifying when the IHRA definition is involved. A principle invoked only when convenient is not a principle: it is an excuse.
And this too is an excuse with disastrous consequences. There is a reason the IHRA definition does not attempt to specify exhaustively every form antisemitic speech may take. The “bad man”, as American jurist Oliver Wendell Holmes famously said, cares only for where the line falls: draw that boundary too precisely and the Jew-hater will simply operate immediately inside it. Yet instead of recognising that obvious fact, the court loosely cites criticisms of the IHRA definition while ignoring its intellectual foundations and the cases in which it has been readily applied.
The third error lies in the definition the court devised for itself: antisemitism as hostility “against all Jewish people”. Neither dictionary it quoted actually contains that “all”: the court arbitrarily inserted it. Having done so, it could treat the existence of Jewish dissenters as an answer to a charge of antisemitism.
But antisemites have been sorting good Jews from bad for centuries. St Paul distinguished the true Jew from the merely outward one. Joseph Stalin and his successors relied on cringing statements by anti-Zionist Jews to shield the Soviet empire’s vicious antisemitism from criticism. The same device operates today when the Jewish Council of Australia is invoked as an alibi for the murderous Jew-hatred of Islamist fundamentalists. Far from detecting that ploy, a definition requiring hostility to each and every Jew licenses it.
Worse still, while purporting to explain antisemitism, the court allowed tropes to find footing. The Executive Council of Australian Jewry, the community’s representative body, was not a party and was not represented. Yet repeating the old Jewish lobby trope, the court denounced it as “transparently, a pro-Israel lobbying organisation”. Meanwhile, the minuscule, bitterly anti-Zionist JCA was quoted, entirely unexamined, as an authentic Jewish voice.
The good Jews testify; the bad Jews lobby – and procedural justice, which required giving the ECAJ an opportunity to contest the charge, was blatantly ignored.
This decision is, in the end, a shocking demonstration of how judging can go wrong. But it is far more than that. It reveals how deeply antisemitism has seeped into our public culture.
In a country where hatred of Jews has already turned murderous, the marriage of prejudice and ignorance is not merely disgraceful. It is deadly.
This column was originally published in The Australian
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