Features Australia

In praise of Justice Fagan

16 March 2019

9:00 AM

16 March 2019

9:00 AM

One sombre fact of life in contemporary Australia is the steady flow of terrorism prosecutions in which individuals have been convicted of (or have pleaded guilty to) offences where the offenders have resorted to terrorist conduct so as to advance politico-religious ideas, beliefs and practices in accordance with what is to be found in the Koran. Despite that ghastly commitment to violence, there remains a baffling sectarian taboo in various sections of Australian society on the frank public discussion of those ideas, beliefs and practices.

When a judge of an Australian superior court makes a detailed factual finding that specific scriptural ideas, beliefs and practices have motivated the commission of particular terrorist offences, Australians could reasonably expect at the very least that the judge’s sentencing remarks will be accurately reported to enable Australians to grapple with what could possibly explain such a willingness to bring about death and destruction. It should therefore be a cause for public concern, some might say alarm, if a judge in the course of discharging her or his solemn public duty in such a case is subjected to condemnation for dealing with (any) religious ideas, beliefs and practices which incite violence. Of course, if a judge’s decision in such a case is legally erroneous, the error can be corrected in the normal way by an appellate court applying Australian law.

On 31 January 2019, in the Supreme Court of New South Wales, Justice Desmond John Fagan sentenced Sameh Bayda and Alo-Bridget Namoa following their conviction on a charge under the Commonwealth Criminal Code that in 2015 when they were aged 18 years they had conspired with each other to do acts in preparation for a terrorist act (or acts), an offence punishable by life imprisonment.

Justice Fagan’s main evidentiary findings in his sentencing judgment can be summarised as follows:

– Jihadi propagandists and terrorists are motivated by specific belligerent verses of the Koran and follow the example set by the Prophet, that never-ending violence toward non-Muslims is a devotional manifestation of religious duty;


– The many Australian Muslims who wish to live in peace with the whole community may reflect that if Islam accepts the entirety of the Koran as Allah’s eternal instruction to believers, without explicit repudiation of verses which ordain intolerance, violence and domination, such unqualified acceptance will embolden terrorists to think they are in common cause with all believers and indeed that they are the spearhead of the religion;

– It is not for Australian courts or law enforcement authorities to rebut the terrorists’ perceived Islamic obligations. Only Muslims including those who profess deep knowledge, can do so. If that occurred, the terrorists’ moral conviction might be weakened;

– The incitements to violence which terrorists quote from the Koran cannot just be ignored by the many believers who desire harmonious coexistence. The hostile verses are inspiring serious crimes which, in turn, have the capacity to provoke social division and mistrust;

– The hostile verses are not answered by non-specific and unelaborated suggestions about interpretation or assurances that ‘Islam is a religion of peace’. In the absence of express public disavowal of the hostile verses, as quoted in the jihadist literature tendered in the case, such assurances are apparently contradicted, and thereby embolden jihadi propagandists and those who have followed them, including the offenders Bayda and Namoa.

Justice Fagan has done Australian society a service by his painstakingly careful and judicious treatment of the scriptural and expert evidence in the case, and the other evidence, including the admissions of the two offenders. His judgment should be known and openly discussed much more widely. Instead, in effect, His Honour has been accused by some commentators of betraying his judicial oath.

The Grand Mufti of Australia was reported as saying that Muslim leaders would ‘never, ever, ever’ disavow verses of the Koran. The Australian Muslim Women’s Association, the Australian Federation of Islamic Councils, the Australian National Imans’ Council, and the Muslim Legal Network (NSW) each asserted that the judge had no business whatsoever dealing with the Koran. Another commentator referred to the judge’s ‘sheer ignorance’. Predictably, a most intemperate response came from a spokesman for the Australian outpost of the fanatical international Islamic political party, Hizb ut-Tahrir. It can be read online.

Each of the foregoing responses manifests a misunderstanding of the foundational concept of the rule of law in Australia’s (secular) legal system. It is a society of democratically-made laws, the laws apply equally to everyone, and everyone is answerable to the same laws before independent courts. The sectarian claim that a particular set of religious ideas, beliefs and practices is not to be called into question in an Australian court because of a superior claim (such as the alleged perfect nature of the Koran) is manifestly incompatible with the rule of law and democracy.

The Law Council of Australia might have issued a public statement defending Justice Fagan but chose not to do so. Instead, in the week following the judge’s sentencing decision, the Council President was reported as expressing a general commendation of the ANIC, and as saying:

‘Without referring to or passing comment on any recent case, I make the observation that we must ensure that the criminal actions of a few are not used to unfairly judge, discriminate against or condemn a whole community and religion and that those who break our laws are the ones that pay the price and bear the punishment – not others wrongly implicated by association. Ultimately, we are one community.’

In this observer’s respectful view, that obscurantist formulation only serves to buttress the case that Australia’s judiciary deserved an unequivocal public defence in response to what was, whether intended or not, an unwarranted attack on the judicial branch of Australia’s secular form of government.

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