In a recent case before the Supreme Court of New South Wales, State of NSW v. Farhat, Justice Fagan had one job: to decide whether there was a high probability that a prisoner posed an unacceptable risk of committing a serious terrorism offence upon his release. Instead, he went off on a frolic and in the process has arguably brought the Court into disrepute.

The State had applied for a one-year extended supervision order (ESO) under the Terrorism (High Risk Offenders) Act against Mohomed Farhat upon his release from prison. Farhat is in prison for committing multiple serious offences including setting fire to a car and defacing buildings and cars by spray-painting slogans including ‘F-k Israel’. The offences were committed in Woollahra, a suburb of Sydney with a high proportion of Jewish residents. Fagan J dismissed the application for an ESO but in so doing left no one in any doubt about his views on the Israel/Palestine conflict.

Farhat was born in Australia in 2004. His father was born in Lebanon and emigrated to Australia in 1996. His mother was born in Australia. Farhat accepted an anonymous instruction to commit the offences in return for $4,000 and a quantity of drugs. After being charged with the offences, Farhat breached his bail conditions which led to his bail being revoked. His potential for early release on parole was also revoked. Prior to being sentenced, Farhat wrote a letter of apology to the Jewish community and since being in prison he has met on numerous occasions with a Jewish religious education teacher to gain a better understanding of the hurt and fear his actions caused to Jews. Farhat has a Hezbollah symbol tattooed on his neck. Hezbollah is a designated terrorist organisation under Australian law and the tattoo, under Australian law, is deemed to demonstrate ‘advocacy for a terrorist act or violent extremism’. Fagan J said, ‘It is understandable that people of Lebanese Shia Muslim heritage would follow closely the military conflict… and have sympathy for Hezbollah.’ The judge noted that Farhat had been at times ‘inconsistent, evasive and/or untruthful under minute scrutiny whilst in custody, including by the Court appointed psychologists’. Fagan J said that pending charges against Farhat where he directly threatened violence to his girlfriend were of ‘no significance in [his] assessment of whether [Farhat] poses a significant risk’. Further pending charges of possession of a firearm were also deemed of insignificant weight in assessing risk. Messages recovered on his phone where he threatened to ‘bash’ or ‘shoot’ someone were given no weight as there was ‘no context’. Farhat’s request to be transferred to a prison where his associates in a known criminal network were imprisoned were dismissed as ‘naïve’. The significance of his abuse of prison staff, threats to physically harm them and resistance to being restrained were minimised as ‘the pressure of the environment’. His threats to assault prison staff and to kill the governor of the prison were minimised because of Farhat’s ‘highly emotional state’ and characterised as ‘venting frustration’. Farhat breached the conditions relating to his phone calls by speaking to persons other than those permitted and by speaking in Arabic. These breaches were considered by the judge to be of no consequence. Fagan J found Farhat to be ‘impressionable, suggestible and a shallow thinker’, that he ‘lacks self-esteem and is inclined to submit to the lead and influence of others in order to fit in’. He is a ‘useful idiot’ and ‘would not have been astute to recognise when he was being led into wrongdoing’.

Fagan J found that Farhat did not pose an unacceptable risk of committing a serious terrorism offence.

However, rather than limiting his comments to the facts of the particular case before him, Fagan J inexplicably embarked upon a broad and far-reaching examination of the conflict between Israel and others in the Middle East. He stated as a fact that Israel has committed genocide in Gaza. Why on earth would an Australian judge enter the fray with such a contentious accusation particularly when the International Court of Justice is still considering South Africa’s claim of genocide against Israel?

He stated that the slogan ‘F-k Israel’ ‘is not antisemitic, either self-evidently or by any degree of analysis or construction’. Surely it depends on the context. This was not just any suburb but one with a high proportion of Australian Jews.

Fagan J goes to great lengths to draw a distinction between being a Zionist and being a Jew and asked, ‘How can disparagement of Zionism be hostile or prejudiced towards Jews as Jews when it is only “most, but not all” Jews who support the ideology, with whatever degree of fervour?’ Mark Dreyfus, former Commonwealth Attorney-General, during his evidence at the Royal Commission into Antisemitism, provides an answer to this question. He defined ‘Zionist’ as ‘support for the continued existence of the State of Israel as a home for the Jewish people. It’s not a complicated concept… I’m proud to be a Zionist’. He also said that there is a crucial distinction between robust criticism of Israel and antisemitism but ‘[t]hat line is crossed when Jewish Australians are collectively [or individually] held responsible for the actions of a foreign government’. As an example of antisemitism personally experienced by him he recounted being called a ‘genocidal Zionist’ by a stranger in the street. Is that legitimate criticism of Israel or antisemitism? Could there really be any doubt?

Fagan J expressed his opinion on what antisemitism is and is not. He was dismissive of the International Holocaust Remembrance Alliance’s definition of antisemitism and said that the proposition that antisemitism may be directed towards a non-Jewish individual as ‘counterintuitive to the central concept of Jew hatred’. Really? Surely, accusing someone of being a ‘Zio’ as in ‘Zionist’ and later smashing their car windows, as happened to Marcia Langton, an Australian Aboriginal academic, described by her during evidence at the Royal Commission into Antisemitism could be seen as antisemitic. She is not Jewish.

Fagan J’s decision also includes what on any view is a highly selective history of the creation of State of Israel citing some very dubious sources. This was a completely unnecessary exercise. He also dismissed the opinion of an expert in the case that Hezbollah is an antisemitic organisation and said it is merely anti-Israel. Hezbollah is a radical Islamist organisation backed by the Iranian Revolutionary Guard Corp dedicated to the annihilation of Israel whose residents are predominantly Jewish. I doubt that in carrying out their mission they will be careful to differentiate between Jews and Israeli citizens. In any event, there are ample credible reports that Hezbollah has declared its mission to rid the world of Jews.

The extent to which this decision exceeds its remit is breathtaking and most regrettable.