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Tag Archives: law

Judges fail to understand: people must pay a price for choosing to act as a Nazi

Victoria’s leading Neo Nazi left the County Court in Melbourne recently with the judge’s message, “Good luck with the future, Gentlemen” ringing in his ears, laughing at the judge’s assertion that he and his co-offender have good prospects for rehabilitation. They greeted reporters outside the court with the observation that they were innocent, followed by “homophobic and antisemitic slurs.” They departed with another Roman Salute and “Heil Hitler.”

The Judicial College of Victoria and similar bodies around the nation have some serious educating of judges to institute. It seems likely that judges give latitude to White young men who appear in a suit and with short hair that they would never give to young men of other ethnicities. It is also possible that judges do not understand the context of these cases before them.

The changes to Victorian laws to prevent the use of key Nazi symbols are a first step to address the threat of Neo Nazis to our community. Laws in place already address their violence and hate-speech.

These don’t work, however, if judges do not grasp the threat that violent White Supremacists pose to the country. Police are not the solution to Nazis in our midst, but they are one suppressive strategy, and their rare arrests (and the DPP’shigh bar” before taking action) make little difference if those on the bench do not treat the perpetrators with sufficient seriousness.

That same leading Neo Nazi was saved a jail term in January this year after a brutal bashing of a Black Channel 9 security guard in 2021. The co-offender was let off with a fine earlier in October after distributing white ethnostate stickers. The fact he was charged with a summary offense meant his stickers even had to be returned to him (Herald Sun 18/10). Every such failure by our judges emboldens these violent bigots, enabling them to recruit disaffected youth with the knowledge that society winks at their crimes.

In the wake of the attack on the US Capitol on the 6th of January 2021, the Proud Boys, Oath Keepers, Three Percenters and similar White Supremacist militias have been put under pressure by arrests, court cases and sentences of up to 22 years. They had been emboldened by President Trump’s command to “Stand back and stand by.” In 2023, the system that had begun to act after the horror of the Charlottesville White Supremacist rally is finally having an impact.

While these sentences have not solved the problem of America’s violent, hate-filled militia, they have damaged them and their ability to recruit.

It has taken violent acts emerging out of – apparently – nowhere to trigger this stronger action in America, where free speech and weapon possession are sacrosanct no matter the risk to fellow citizens. Antifascist researchers and domestic terrorism experts had long known what was brewing, but their voices were kept out of the discussion and the government system by Republicans who characterised focus on these bigoted groups as an attack on American conservatives.

In Australia, we are in that moment where Neo Nazi action seems to occur out of nowhere: there was shock to see the salute executed on Victoria’s Parliament steps in March in support of an anti-LGBTQIA+ gathering, for example. If we are coherent in our responses now, we have a better chance of preventing them from recruiting and terrorising minority communities in the destructive ways seen in America.

It is important for judges to understand the context. Neo Nazi groups are an international phenomenon communicating on social media but more often on apps like Telegram where their communications are hidden from the mainstream. Together they are working for the elimination of Jewish people from our societies, exiled to Israel. They are working for all non-White and non-Christian people to be excluded from our nation, whether by bloodshed or deportation. They are working for all feminists and LGBTQIA+ people to be beaten or killed. The goal is the breakdown of society, known as accelerationism. This is to be followed by a reconstruction of the perfect White patriarchy.

These goals abut the extremist Christian movements in mainstream “conservative” politics. They are an escalation of the Orbanism that some Liberal Party grandees and operatives have been networking into the Australian debate. Nazis integrated with the “freedom” movement that opposed health measures over the pandemic’s worst. Victorian Liberal Party figures appeared in Victoria with such protests where gallows were erected, intended for Premier Dan Andrews. News Corp and the Coalition government encouraged their protests for political aims.

The Coalition’s decision to fight the Voice to Parliament referendum shows they are determined to stoke culture war passions rather than devising electable policy platforms. Combined with the fear and challenges that the climate catastrophe is already causing, the scope for expanding radicalisation exists.

The failure of the system to recognise the real threat posed by such figures and groups, in five or twenty years, leaves antifascist groups in the community working to impose a price for Neo Nazi activity.

The White Rose Society surveils, publicises and coordinates reports to the police when necessary. It was White Rose that led the police to the Melbourne Neo Nazis responsible for the grotesque threats to Senator Lydia Thorpe. Andy Fleming, Tom Tanuki and AltMediaWatch amongst others report and explain domestic Nazi activities. These include reports on White Supremacists in Australia’s armed forces.

Local antifascist groups place posters around Neo Nazi individuals’ suburbs alerting their neighbourhood to their appearance and the threat posed. They spend hours monitoring Telegram channels for trouble and patterns.

Other groups decide to lift the cost to such figures by bashing them when the Neo Nazis emerge for public activity. If civil society doesn’t want the street violence of small groups acting to intimidate Nazis from our streets, we need to remove the necessity.

White supremacist groups have a tradition of falling apart in hilariously bathetic internecine tantrums. When that doesn’t happen, however, the risk to community can elevate, particularly in chaotic times.

Once these groups are large and strong, they are very difficult to end. The time to act is while they are small and weak.

We need our judges educated to see their role in protecting society from violent bigots whose goal is to break everything we value.

 

This essay was first published in Pearls and Irritations as Australian judges are failing to protect society from violent extremism

 

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Ei incumbit probatio qui dicit, non qui negat

If there was ever any doubt, it has now been undeniably shown. The ultimate aim of conservative government is to acquire ultimate power unrestricted by considerations of proof or evidence.

The Daily Telegraph reports today that Attorney-General Senator George Brandis will be bringing a new batch of laws to Cabinet next week dealing with the subject of terrorism. Amongst the mooted provisions is the idea that Australian travellers to Syria, Iraq or other declared zones must be “presumed” to be involved in terrorism. More importantly, the onus will be on the returnee to prove that they were not involved in terrorist activities.

The new legislation appears to be in response to the recent media reports of two Australians, Khaled Sharrouf and Mohamed Elomar, assumed to be fighting with jihadis in Syria. Nobody can deny that the apparent actions of these men – their alleged crimes – are heinous and deserving of punishment. With that in mind, it is important to remember that an Australian committing a crime in an overseas jurisdiction cannot be charged and punished for that crime when they return to this country. That is why we have extradition laws. If these men have committed war crimes, or if the “war” in Syria is illegal and their actions constitute murder, they were carried out in a foreign jurisdiction; the killing of foreign nationals in a foreign nation does not make them guilty of any crime in Australia.

But not if Senator Brandis has his way. With the new provisions in law, if Sharrouf and Elomar were to return to Australia they are automatically guilty. They could be arrested at the airport and brought to court on the presumption of involvement with terrorist groups, something for which there does exist Australian law. Currently Australia does not apply mandatory minimum sentences for terrorism offenses, but conservative governments continually seek to impose these.

Some might not seek to protest about this outcome for Sharrouf and Elomar. It seems beyond serious dispute that these men have contravened our understanding of civilised society, have been involved in activities that should be punished, and would be extradited for foreign justice if Syria had such a thing as a functioning legal system. But laws drafted to apply to one or two people may still have wrenching outcomes for others.

It’s not a long time since the Campbell Newman government in Queensland implemented their highly controversial “illegal bikie gangs” laws, which coincidentally also include provisions to reverse the onus of proof. Some protested about this at the time, but protests fell on deaf ears and the laws still exist and are still being applied. It would be salutary not to forget them. Under these laws, belonging to a motorcycle gang and simply being in the same place as two others from the same club is sufficient to make you automatically guilty of illegal association. Immediately and without appeal you can then be arrested, held for thirty days in solitary confinement and confined for twenty-three hours out of every twenty-four. That automatically then becomes a mandatory minimum sentence of at least 100 days imprisonment, unless you can prove that the organisation you belong to (not you personally) is not engaged in criminal activity. In other words, you would need to be able to prove that your bikie gang did not exist for the purposes of bar fights. Whilst it seems logical that bar fights might be an unintended outcome of any gathering of people, rather than any specific gang, proving that the group does not support or promote that activity is nearly impossible. Additionally, if one defendant can prove that, it must automatically apply to all others defendants from the same gang. If you can prove that, you are effectively negating the State’s classification of the gang as a lawless association. There are so many flaws and ethical conundrums inherent in this set of laws that we can barely scratch the surface here.

Presumption of innocence

Presumption of innocence is fundamental to our system of law. I don’t normally quote from Wikipedia, but in this case the principle is so basic and universal that I will use its definition: “the principle that one is considered innocent until proven guilty. In many nations, presumption of innocence is a legal right of the accused in a criminal trial. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond reasonable doubt.” Guilty beyond reasonable doubt. We accept this condition. We rely on it, should we ever have the misfortune to be caught up in the legal system. Innocent until proven guilty has been the cornerstone of Australian legal practice since its foundation.

“Tony Abbott declined to rule out a reversed onus of proof, but said any changes would be “consistent with our traditional principles of justice and freedom”. This is a pure oxymoron; it is impossible to remain consistency with our traditional principles when you’re talking about reversing the cornerstone.

How do you prove innocence? Even our courts don’t currently try to do that. As others have pointed out, the best you can hope for in a modern trial is a verdict of “Not Guilty”. This does not equate to innocence. If you cannot be proved to have committed the crime, you are not guilty; you may still have committed the crime, but our system deliberately errs on the side of caution. The presumption of innocence exists because it is better to let guilty parties go free than to lock up innocents. This is a fundamental component of our understanding of jurisprudence and to reverse it means that people will be caught up in and eaten by the system. Of course, the Coalition has form in this – look no further than the case of Mohamed Haneef.

If you don’t do anything wrong, you don’t have anything to worry about

Oh yes you do. Let’s consider for a moment the kinds of people who might visit a “declared zones”. Certainly, there will be a small number – an exceedingly small number – who travel to conflict areas for the purposes of violent jihad, or just for kicks. There are mercenaries, even from Australia, who fight for the highest bidder, not being beholden to Allah but simply seeking to parlay their skills into profit. Putting aside the ethics of the equation, if jihadis and violent thrillseekers and mercenaries are caught up in these laws, that’s probably the intended outcome.

The Greens and Labor suggest that these changes may also apply to aid workers and journalists. Of course, the Coalition doesn’t actually believe in the work that aid workers (reduction in Australia’s aid budget) or journalists (culture of secrecy) do, so they possibly think these are acceptable outcomes.

But what about family members? There are people living in Australia who originate from conflict areas. Some of these happen to be Muslim, and have relatives living in peaceful cities in Syria, Iraq, Afghanistan or other countries otherwise beset by war and unrest. People do travel, and people do visit these countries for reasons other than violent jihad. It’s not a stretch at all to think that a Muslim man, visiting his family in Baghdad, might return to find himself forced to prove that he did not, while he was there, consort with militants. That can be very hard to prove. Read: impossible.

How about tourists? Iraq and Syria, Turkey and Egypt, India and Pakistan – there are wondrous works of nature and of man in these places, and Australians travel there every year to visit them. Are all of these tourists, young and old, single and married, Christian and Muslim and Buddhist, to be automatically assumed guilty of terrorism offences?

If the answer is no, the question becomes How do you tell which ones? Only the Muslims? Perhaps any Muslims between certain ages? If you need to prove that somebody is appropriate to have laws applied against them, then you should have to prove it. There are no circumstances under which a blanket rule like this can be applied without it either applying to everyone, or basically giving carte blanche to bureaucrats to ignore otherwise necessary burdens of proof. Relying on instinct and gut feeling have been shown, time and again, to be insufficiently rigorous methods of jailing people.

Finally, how do you identify a “declared zone”? Iraq and Syria are currently topical. In recent years we have seen unrest in Egypt, Tunisia, Libya, Yemen. There have been protests in Algeria, Morocco and Israel. There were minor protests in Saudi Arabia, Oman and Mauritania. How about Thailand? Burma? Indonesia? Bali? There is conflict and terrorist activity across the breadth of the world, including in any number of places to which Australians love to travel. Not every Australian who travels to Sri Lanka wants to be a Tamil Tiger. Not everyone who goes to Bali intends to bomb cafes. If you can accuse one such traveller of such crimes – indeed, assume their guilt unless they can prove otherwise – you have to apply it to all.

Of course, this legislation has not yet gone to Cabinet, let alone to the Parliament. There’s still plenty of time to see it changed or dropped. We can only hope that the Coalition will have the sense to take a more moderate approach; and when the current government’s intransigent lack of moderation brings these laws to the Parliament, we can only hope that the crossbench senators will see these laws for what they are – another step down the road towards a police state.