Judge Fagan's decision likely target of proposed anti-vilification laws; research into political Islam, jihadism, also a likely target- senior judicial officers undermining Fagan suggests that no one will be safe if proposals enacted

by Ganesh Sahathevan 

Members of the legal profession and Muslim community arrive at Auburn Gallipoli Mosque.CREDIT:JAMES 

BRICKWOO, SMH. 

The SMH reported this morning:


In a submission on the second draft of the(Religious Discrimination) bill, more than 160 Muslim organisations renewed their calls for anti-vilification measures to be included in the religious discrimination bill, arguing anti-Muslim hate networks are growing online, "thanks to an environment of legal uncertainty".

The groups want a new civil remedy that would make it unlawful to engage in conduct "that would, or is likely to, harass, threaten, seriously intimidate or vilify" a person or group of persons on the grounds of their religious belief or activity.

The words of the proposed laws are so broad that anyone who says anything uncomplimentary of "a person or group of persons on the grounds of their religious belief or activity" could be found in breach. 


The phrase "likely to, harass, threaten, seriously intimidate or vilify" also is capable of being define broadly; correspondence from the NSW LPAB which is chaired by the Chief Justice Tom Bathurst and which comprises some of the most senior judicial officers in NSW suggests that even complaints to the relevant authorities against suppliers who fail  to provide goods and services as promised can be considered to be a form of threat or intimidation. 

The fact that the amendments have been requested by the Muslim community raises the likelihood that if the amendments become law they will be enforced liberally. As reported on this blog, senior judicial officers including Chief Justice Bathurst have shown that even judges of the Supreme Court NSW cannot expect to be supported or protected when they include in their judgements anything that is uncomplimentary of Islam. As reported on this blog: 

Bathurst CJ's undermining Fagan J while promoting his own agenda not a one-off; Bathurst desire to insert himself in public debate damaged public perception of the judiciary' in 2017

The amendments are so broad that even researchers referring to academic literature of Islamism, political Islam and jihadism could be adversely affected. These words contained in ASIO's recently published threat assessment may also be in breach of the proposed amendments:

The character of terrorism will continue to evolve and we believe that it will take on a more dispersed and diversified face.

Violent Islamic extremism of the type embodied by the Islamic State and al’Qaida and their off-shoots will remain our principal concern.

Tens of thousands of Islamic extremists travelled to the Middle East to join AQ aligned groups and ISIL, including from countries which weren’t previously known as sources of Islamic extremists. And as we all know Australians joined that movement.There are now more Islamic extremists from more countries active in more places than ever before.

END

SEE ALSO

This was published 1 year ago
Lawyers back Muslim community after controversial comments from bench

By Michaela Whitbourn
February 8, 2019 — 12.00am
The peak body for the legal profession in Australia has called for better "communication and understanding of the Islamic faith" by lawyers and judges, days after a NSW Supreme Court judge courted controversy by urging Muslims to publicly disavow violence in the Koran.


Justice Desmond Fagan, who has presided over a number of terrorism-related cases, said last week the "unqualified acceptance" of the Koran by Australian Muslims "without explicit repudiation of verses which ordain intolerance, violence and domination ... will embolden terrorists to think they are in common cause with all believers".





Members of the legal profession and Muslim community arrive at the 2019 Opening of Law Term Service at Auburn Gallipoli Mosque.CREDIT:JAMES BRICKWOOD

"If Australian followers of the religion, including those who profess deep knowledge, were to make a clear public disavowal of these verses, as not authoritative instructions from Allah, then the terrorists’ moral conviction might be weakened," he said.


Justice Fagan was sentencing Sameh Bayda and Alo-Bridget Namoa, a young couple, both 21, found guilty in October last year of conspiring to do an act in preparation for a terrorist act between December 8, 2015 and January 25, 2016.



On Thursday evening, high-profile members of the legal profession and the judiciary, including NSW Supreme Court and Federal Court judges, attended an Islamic Service to mark the opening of the 2019 Law Term at the Auburn Gallipoli Mosque in Sydney.

The president of the Law Council of Australia, Arthur Moses, SC, said the Islamic Service was "a significant occasion for both the legal profession and the community" and it was "important that there is communication and understanding of the Islamic faith in Australia’s legal profession and the judicial process"

Members of the legal profession and Muslim community arrive at Auburn Gallipoli Mosque.CREDIT:JAMES BRICKWOOD

"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," he said.

Mr Moses welcomed the appointment on Wednesday of Sydney barrister Bilal Rauf as spokesperson for the Australian National Imams Council (ANIC). He said Mr Rauf's "commitment to the administration of justice and to providing opportunities for engagement with the Australian Muslim Community is to be commended".



In a statement last week, ANIC said it was "disappointed and deeply concerned about the comments which were recently made by Justice Desmond Fagan directed at Australian Muslims and Islam generally".


Muslims categorically reject extremist interpretations of the Koran

It said Justice Fagan "did not have any regard to the mainstream and orthodox religious positions" relating to the verses relating to the verses of the Koran in question, "and instead implicated the community and faith at large, by association".

"Muslims categorically reject extremist interpretations of the Koran and the misuse of Islam by extremists. Indeed extremists have caused immense suffering to Muslim communities around the world. Australian Muslim leaders, scholars and community members have repeatedly rejected extremist interpretations of the Koran," the statement said.

The council warned that the judge's comments would "undermine the positive efforts of community leaders and members to deal with radicalisation" and "will also likely embolden those who pursue divisive and hate-filled dialogue and agendas".



"Ultimately, we are one community and we need to work together to overcome the issues which confront our Australian society," the council said.



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Bathurst CJ's grasp of the facts of matters he publicly discussed were shown to be illusory, at best, by historian Windschuttle in The Quadrant:More reasons why Andrew Bell, President, Court of Appeal should be appointed Acting Chief Justice NSW immediately

by Ganesh Sahathevan

                                                      Chief Justice Tom Bathurst will save us from ourselves-Tim Blair, Daily Telegraph,2017

In 2017 the highly regarded Quadrant magazine published an article by historian Keith Windschuttle about a speech made by NSW Chief Justice Tom Bathurst. The article included the following comments:

However, Bathurst’s account of the Afghan affair leaves a lot to be desired. Had he done a little more research into the newspaper reports and parliamentary debates of the day (all now available online on Trove), to assess the reasons why the incident became a cause célèbre at the time, he might have found that Henry Parkes was not quite the populist villain he imagines

It is disappointing to see a Chief Justice succumbing to what is essentially a fictional left-wing historical trope more at home in the sleazy halls of our universities’ humanities departments than in our Supreme Courts.

Bathurst’s account of these events clearly reflects his desire to make a political point, not just in favour of the rule of law as it was applied 129 years ago, but also against politicians in our own time who might appeal to “popular sentiment”, that is, who invoke populist prejudices against people of a different race.

The article in still available on the Quadrant website, is free to read and has been reproduced in full below

Any judge, let alone a chief justice, who has his grasp of the facts ridiculed in such a public manner cannot be said to have the confidence of the public, especially when he chooses not to correct the record. To be then shown to have  misrepresented  the facts while pursuing a political agenda calls into question his appreciation of his duties in upholding the law.

The above was reported in 2017 and it also provides an example which illustrates why Mr Bathurst's undermining Fagan J must be seen as yet another example of poor judgement.

This also adds to the reasons why Mr Bathurst ought to step down immediately and the President Of The Court Of Appeal Andrew Bell be appointed Acting Chief Justice. 

END 

To Be Read With:

Andrew Bell, President, Court of Appeal can be appointed Acting Chief Justice NSW immediately to deal with judicial crisis created by the Chief Justice: Bathurst CJ's undermining Fagan J while promoting his own agenda not a one-off; Bathurst desire to insert himself in public debate damaged public perception of the judiciary' in 2017

Nationalist Illusions

19th April 2017
Comments (7)




Keith Windschuttle

Editor-in-chief
Editor, Quadrant Magazine
keithwindschuttle@quadrant.org.au







The inauguration of Donald Trump as 45th President of the United States brought forth a spate of Australian commentary deploring his views as “nationalist”. Former Labor foreign minister and New South Wales Premier, Bob Carr, said the election of “a loudmouth nationalist” to the White House meant Australia should reappraise its international alliances and adopt a new foreign policy stance: “More Asia. Less US.” The Greens declared themselves appalled at Trump’s election and “the politics of racism, misogyny and nationalism that Donald Trump represents”. Left-wing Perth academic Johan Lidberg summed up in New Matilda, saying Trump’s inauguration was symptomatic of a malaise sweeping the planet, not only in the US and post-Brexit UK but also in France, Sweden, Norway, Denmark, Holland, Austria, Poland, Hungary and, of course, Australia via Pauline Hanson’s One Nation. “The common denominators,” Lidberg wrote, “are nationalism and xenophobia. Has the mix of strong nationalism and fear of the other ever brought the world anything but conflict? The answer is no.”

The use of “nationalist” as a pejorative term is nothing new. I have written in these pages often enough that left-wing academics have long misused the notion that Australian history has harboured a deeply entrenched racist nationalism since the country was founded. During the so-called Cronulla Riots between Muslim and Anglo youths in 2005, the University of Melbourne feminist historian Marilyn Lake mocked the New South Wales Police Commissioner for saying those involved were un-Australian. “What is un-Australian about calling for racial exclusion in the name of the nation?” she asked. “Is not racial exclusion a deep part of our heritage, as traditional an Australian value as mateship?”

Nonetheless, I was still surprised to see the New South Wales Chief Justice, Tom Bathurst, coming out in support of similar sentiments. Bathurst spoke on February 2 in the middle of the Trump furore and only a few days after two prominent voices, former Howard government minister Ian Macfarlane and former Labor Party president Warren Mundine, both made appeals in the press for Australia Day to be shifted from January 26, the anniversary of the First Fleet’s landing, to a date supposedly less offensive to the Aboriginal political class. Opening the new law term, Bathurst drew on another contentious issue in Australian history to demonstrate where he stood.

Bathurst cited the “Afghan affair” of 1888 to demonstrate how “one of the most serious threats to the rule of law in Australia was grounded in xenophobia”. In a thinly veiled comparison with Donald Trump, Bathurst said the New South Wales Premier in 1888, Henry Parkes, used “inflammatory language that we are perhaps not unfamiliar with today”, in a racist bid to prevent Chinese passengers disembarking from a ship, the Afghan, in Sydney Harbour and to permanently bar all other Chinese from entry. As Bathurst tells the story, Parkes defied a Supreme Court decision that the detention of the Afghan’s passengers was illegal and instructed his police force not to allow them ashore.

The Parkes government, Bathurst says, “maintained this defiance of the rule of law for a considerable period of time, leading Chief Justice Darley to admonish the government’s actions as unprecedented and in flagrant disregard of the law”. Eventually, the government conceded and allowed the detainees to land. According to Bathurst, the incident was a victory for the wiser heads of the legal profession against the baser instincts of populism. It “demonstrates the role of the judiciary and the profession in promoting equality, fairness and the rule of law, in spite of popular sentiment”.
This essay appeared in a recent edition of Quadrant.
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Bathurst’s account of these events clearly reflects his desire to make a political point, not just in favour of the rule of law as it was applied 129 years ago, but also against politicians in our own time who might appeal to “popular sentiment”, that is, who invoke populist prejudices against people of a different race.

However, Bathurst’s account of the Afghan affair leaves a lot to be desired. Had he done a little more research into the newspaper reports and parliamentary debates of the day (all now available online on Trove), to assess the reasons why the incident became a cause célèbre at the time, he might have found that Henry Parkes was not quite the populist villain he imagines.

The Afghan arrived in Australian waters in April 1888 with 268 Chinese passengers, half destined for New Zealand, the rest for Melbourne and Sydney. It first tried to land in Melbourne, where sixty passengers presented sets of naturalisation papers to verify their status as domiciled Victorians returning from overseas visits. Customs authorities found forty-eight of the papers were forgeries. Faced with a heavy fine if he landed illegal immigrants, the Afghan’s captain upped anchor and headed for Sydney.

At the time, illegal immigration had become a major colonial scandal. Customs officers had recently unearthed a traffic in naturalisation papers, including one case of 600 sets of forged papers which gave Chinese illegal entry. This practice, it is worth noting, was not uniquely Australian but was a common phenomenon on the west coast of the United States too.

At the same time, deputations to both the New South Wales and Victorian parliaments sought relief work for the growing number of unemployed in both colonies, and a reduction in immigration numbers. When news of the Afghan’s pending arrival reached Sydney, the labour movement, led by trade union newspaper editor John Norton, called a public protest meeting on May 3. A crowd of 5000 then marched to Parliament House in Macquarie Street demanding the Chinese not be allowed to land.

Henry Parkes exploited the situation for his own political advantage, at least initially. When the ship reached Sydney on May 6, Parkes forbade any passengers to land, except some holding bona fide New South Wales naturalisation papers.

Within a week, three more ships, the Tsinan, the Guthrie and the Menmuir, steamed into Sydney Harbour carrying between them 531 Chinese passengers. Parkes also forbade them to land and, on May 16, introduced a new bill to the Legislative Assembly, increasing the Chinese entry tax from ten to one hundred pounds, reducing the number of Chinese immigrants permitted entry, and denying them future naturalisation. Given advice that some of these proposals were unlawful and would not be approved by the Colonial Office in London, Parkes rhetorically declared he would defy the Crown and sever the British connection.

In the meantime, pro-Chinese lobbyists went to the New South Wales Supreme Court, where they argued that several of the passengers on the ships were Australian-resident Chinese who held valid exemption certificates and other papers. The Supreme Court agreed with the applicants. It held Parkes’s action was unlawful, those passengers still on the ships were illegally detained, and those with exemption certificates should be allowed to land.

Rather than defy the law for “a considerable period of time”, Parkes quickly acceded to the court’s authority. On May 19, three days after pushing his bill through Parliament, he changed his mind so that forty-two passengers from the Afghan and eight from the Tsinan who held the proper documents could land. Other would-be immigrants who were prepared to pay the entrance tax disembarked soon after. Once he had overcome his initial rush of blood to the head, Parkes took a conciliatory position. He set up a three-man board, with Sydney’s influential Chinese merchant Quong Tart one of its members, to provide compensation to those Chinese passengers who had exhausted their funds or otherwise suffered through the events.

In other words, rather than a major crisis in which racism threatened the rule of law in New South Wales, the Afghan affair revealed legitimate grievances on both sides. Lawful immigrants and Australian-domiciled Chinese held aboard ship were inconvenienced for a short time—less than two weeks—but eventually compensated for their trouble. And rather than an uprising of populist white racism, the underlying cause of the Chinese hardship was their own countrymen’s widespread practice of illegal immigration.

In this, the Afghan affair of 1888 was almost a precise antecedent of the Tampa incident of August 2001 when the Howard government, faced with the rise of a formidable trade in people-smuggling, took dramatic action to shut down the business. John Howard was accused by many intellectuals, academics and lawyers of exploiting the racist fears of Australian rednecks to ensure his “dark victory” in the election of November that year.

In reality, Howard’s only crime was to be sensitive to his electorate and to recognise that, in an egalitarian immigrant society like Australia, the people electors despise most are queue-jumpers. This is a distaste most keenly felt by recent immigrants who have abided by the proper rules for entry. Popular opinion is also patriotic and strongly endorses the principle that governments have a duty to preserve national borders. Neither of these sentiments threatens the proper rule of law—in fact, they would not exist without it.

It is disappointing to see a Chief Justice succumbing to what is essentially a fictional left-wing historical trope more at home in the sleazy halls of our universities’ humanities departments than in our Supreme Courts.

Andrew Bell, President, Court of Appeal can be appointed Acting Chief Justice NSW immediately to deal with judicial crisis created by the Chief Justice: Bathurst CJ's undermining Fagan J while promoting his own agenda not a one-off; Bathurst desire to insert himself in public debate damaged public perception of the judiciary' in 2017

                                                      Chief Justice Tom Bathurst will save us from ourselves-Tim Blair, Daily Telegraph,2017


by Ganesh Sahathevan

It was recently revealed on this blog that NSW Chief Justice Tom Bathurst undermined the authority of a brother judge of the Supreme Court, Desmond Fagan, by praising the work of the Muslim Legal Network NSW,despite the MLN publicly accusing Fagan of lacking fairness and failing to perform his role of administering justice impartially.

Additionally Bathurst seemed unconcerned that the MLN has on its website advice that can hinder the work of ASIO, Border Force and the AFP. That the MLN advice had been criticised by the minister concerned, Peter Dutton, also seemed not to bother the Chief Justice despite his duty to uphold the law. 

The Chief Justice's determination to insert himself into the public debate on immigration and jihadism has embarrassed the judiciary since at least 2017 (see commentary by Tim Blair in The Daily Telegraph below). His conduct at the MLN dinner in 2019 cannot therefore be considered an one-off. Then there is his belief in conspiracy theories, which seems to have led him to approve of the re-writing of the facts of  a reported decision of his own court. 

In the interest of preserving public confidence in the judiciary, Mr Bathurst ought to step down immediately. The President of the Court of Appeal, Andrew Bell, can be elevated to the position of Acting Chief Justice NSW while a suitable replacement is found.

END 

SEE ALSO 

Tim Blair Blog Posts
WHY BOTHER WITH ELECTIONS?

Tim Blair, The Daily Telegraph

February 2, 2017 5:22am

Judges know best. They are more knowledgeable and caring than politicians. They are also more knowledgeable and caring than the voters who elect those politicians.

We know this because the state’s leading judge, Tom Bathurst, says so.

In a speech to the Opening of Law Term dinner, Chief Justice Bathurst declared it was the judiciary and not the government who can be relied upon to promote fairness and equality. Left to our own devices, and without the soothing touch of all-wise judges, Australians would apparently descend into rampant racism.

“It should give us pause that one of the most serious threats to the rule of law in Australia was grounded in xenophobia,” Chief Justice Bathurst said, much in the manner of his predecessor Jim Spigelman.

The chief justice’s speech will no doubt please that sector of our community which is essentially suspicious of and distrusting towards the majority of Australians. Bathurst reinforced this notion with a line about promoting equality, fairness and the rule of law “in spite of popular sentiment”.

Poor old popular sentiment always cops a bashing from the we-know-better brigade. This is frequently ill-considered. After all, popular sentiment led to stopping the people smuggling trade in our region – and therefore ending a murderous practice that cost around 1200 lives at sea during Labor’s six years of power.

Interestingly, the legal fraternity – those promoters of fairness and equality – even now forms a large part of the movement dedicated to ending Australia’s life-saving border security operations.

Chief Justice Bathurst reached all the way back to 1888 for one example of the judiciary’s wisdom over popular opinion. During that year the NSW Government ordered police to stop Chinese passengers getting off a ship which had docked in Sydney Harbour, only for the government to be eventually overruled.

The chief justice sees parallels between the events of 1888 and Australia’s current mood, at least in terms of then-NSW premier Sir Henry Parkes’s comments at the time.

Sir Henry is presently unable to respond, having been dead for more than 100 years, but we would submit that Australia has changed a great deal during the intervening period. We are now a multicultural, tolerant, educated and thoughtful people who are quite capable of seeking fair outcomes without being bossed into them.

If Chief Justice Bathurst would like to have more of a say in the state’s affairs, he is welcome to run for elected office.

The Muslim Legal Network 2020 Iftar :: Will Chief Justice Bathurst, AG Speakman and Gov Beazley be attending ,and again undermine Sup Crt Judge Des Fagan, Peter Dutton & NSW Minister for Counter Terrorism Anthony Roberts?

by Ganesh Sahathevan




From the Muslim Legal Network Facebook page 

Muslim Legal Network New South Wales

Like This Page · May 11, 2019 · 

Our Annual Ramadan Iftar Dinner does not occur without the support of our amazing sponsors. One of our gold sponsors and long time supporter of the Muslim Legal Network NSW is Birchgrove Legal.

A firm based in Sydney CBD, Birchgrove Legal have been servicing the community for many years, providing representation in legal, civil and a variety of specialist areas.

Find out more about the great work Birchgrove Legal does by visiting their FaceBook page or their website www.birchgrovelegal.com.au

We are thankful for their ongoing sponsorship

www.trybooking.com/BBPJU

TO BE READ WITH 

Muslim Legal Network accused Sup Crt Judge Fagan of lacking fairness, failing to perform his role of administering justice impartially: Soon after his Chief Justice Tom Bathurst praised MLN for upholding the rule of law :"... doing a good job, cannot see how you can do it better"

Muslim Legal Network advice Dutton objected to remains on MLNNSW website: Chief Justice NSW Bathurst says MLN could not do better in upholding the rule of law-CJ and his LPAB have extensive Internet search capabilities

Will the Supreme Crt NSW next find that algo-trading programs had acted falsely, for shorting stocks before consulting company managers? Rural Funds decision has serious consequences for Australian investors, will prevent market from being fully informed, will interfere with price discovery

by Ganesh Sahathevan

Justice David Hammerschlag, known as The Hammer,considered one

of the most sharp and efficient 

judges of the NSW Supreme Court

Yesterday in the NSW Supreme Court Mr  Justice David Hammerschlag found that short sellers Bonita Research had issued false statements regarding their target the ASX listed  Rural Funds Management Ltd (RFM).The judge went on to describe Bonita's issuance of a report against  RFM and its shorting of RFM stock as "misleading" , "deceptive" and premised on information disseminated to the market that was "false".

Reporting the judgement the  SMH's Paul Kruger said:

Rural Funds Group achieved a comprehensive legal victory over Texas-based short-seller Bonitas Research on Wednesday, as the NSW Supreme Court found that allegations against the real estate investment trust were "false in material particulars or were materially misleading".

Bonitas sent RFG's share price plunging in August last year after it released a report alleging RFG's accounts included fabricated rental income and claiming the trust was ultimately worthless.

"I am satisfied that they knew or ought reasonably to have known that the statements and information were false in material particulars or were materially misleading. They did not care that they were false," said the judgment from Justice David Hammerschlag.

Hammerschlag seemed to have been particularly offended by the  fact that Bonitas did not seek comment from RFM's managers. The AFR  reported:

"Wiechert (Bonitas founder)  is no doubt a sophisticated operator. Yet, as has earlier been said, neither Bonitas nor Wiechert took the trouble to check with or enquire of RFM as to any of the matters which they broadcast. They had an obvious commercial interest in depressing the price. I have no difficulty in concluding that they did not care whether what they were saying was false."


However, Bonitas based their work on RFM's audited financial statements. That the Supreme Court NSW requires researchers and analysts to consult with company managers and directors  about what they mean by their representations in their audited financial statements is ridiculous; the investing public are meant to rely on those statements as the final word on a company's health.

Short sellers in particular have an important role to play in price discovery, issuing negative reports in markets where buy-side research dominates. In fact, Bonitas report forced RFM to issue additional statements, which further informed the market.

Hammerschlag's decision will consequently interfere with the free flow of market information, and with market efficiency. It is investors who will pay, in the form of higher costs in the process of price discovery.

The decision is also at odds with what is becoming, here in Australia and overseas, an increasingly automated market. 
One wonders what Hammerschlag and his fellow judges at the Supreme Court NSW might make of algorithmic share traders, who can short stocks based on signals which can include financial statement ratios,which can be adjusted accordingly depending on the weight assigned to the credibility or. quality of what has been reported. The programs, as one would expect, do not first invite company managers to tea before executing their cold and merciless trades.

END 


Postscript

In his 2014 paper Turner  raised the prospect of sell orders executed by algorithmic trading platforms  being found to be defamatory publication: 


Computer-generated practices such as automated search engines present new challenges that the law will need to meet. An important development in this respect is the emergence of algorithmic share trading. It not only challenges orthodox conceptualisations of shareholders and their behavior, but provokes difficulties in identifying an intention in specific acts of share trading for the purpose of corporate regulation. Justice Beach’s derivation of an intention in Trkulja indicates one way in which company law could develop in regulating the conduct of algorithmic share traders.