Lawyers secretly enjoy it when government policy overreaches common sense, as it provides lawyers with the chance to test their skills against the monolithic monstrosity of executive power. Such possibilities present themselves every now and again. It appears that the federal Australian laws passed recently which apply mandatory imprisonment for antisemitic hate speech may be a once in a lifetime opportunity for a smart lawyer to make a name for themselves.

Now it is necessary to preface this by saying that lawyers rarely concern themselves with the morality of defending their clients. As much as it is true that mandatory imprisonment for antisemitic speech is an unpalatably harsh punishment, there are few lawyers that will express much sympathy for individuals who seek to deliberately cause physical for psychological harm to others based on their adherence to an ideological position. Notwithstanding this, lawyers can represent their clients well without liking them or agreeing with their ideological positions.

So, with that out of the way, what are the major legal questions going to be about? Well, when ever measures to curtail free speech are made, one has to have regard to the implied right to political communication. There may not be a bill of rights, but this is a right that is implied to exist

As the new hate speech laws in Australia focus on antisemitic acts and Nazi symbolism, there is a legal problem in that they offer protection to only a limited group of Australians rather than applying equally to all. Equality before the law is a principle that is protected under the constitution and the implied freedom of political communication.

Section 117 of the Constitution holds:

_{“A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”}

A constitutional law scholar would initially scoff at the potential application of section 117 as it seems at first glance to be restricted in operation to discrimination based on state residency. However, when one looks at it through the lense of the different demographic distributions of Australian racial religious or cultural groups across states, s117 could be seen as protecting against laws which disproportionally affected residents of a particular state due to these demographic factors (e.g., more Jewish Australians in Victoria or more Indigenous Australians in the Northern Territory.)

Of course it must be said that Section 117 of the Constitution has not been interpreted that broadly by the High Court. The provision has historically been applied only when a law explicitly disadvantages people based on the state they reside in. The fact that a law disproportionately affects residents of a particular state due to demographic factors has not been enough to trigger S117 protections in past cases.

Past cases show the High Court has generally limited s117 to cases where the law itself discriminates based on state residency. Given this, a broader interpretation of S117 to cover demographic-based disparate impact would be a major shift in constitutional law. But, there is a possibility that this will happen, even if it is not a super high one. There are of course other avenues that may involve a successful defence of these laws, but the s117 argument is an interesting one that some very switched on lawyers expect to be argued.

Donald Trump has just been sworn in, and it is interesting to note that rather than take swift action to pay back his political enemies who used their control of the legal system to engage in systematic lawfare against him, he has instead signed executive orders that seek to prevent the same kind of lawfare used against him from being deployed against his political enemies.

What an extraordinary man. Clearly, he respects the power of the presidential office, and seeks to restore the dignity which was previously bestowed upon it. His actions show great foresight, and a capacity for forgiveness which is uncommonly associated with men who hold great power.

It is interesting as well that he has issued an executive order seeking to end government censorship of American citizens. What a tremendous man!

It’s been a while since they have had proper committals in New South Wales. Committals are of course the procedural hearings in common law countries that follow the English tradition of only allowing for trials before a jury where the evidence is of a sufficient weight that a properly instructed jury could possibly make a guilty finding.

The trick of course has been the process of determining that the evidence is of a sufficient weight. Usually that is done by testing the evidence through the ancient right of confronting one’s accuser and other witnesses with cross examination.

Of course it was thought by some of the more prosecutorial minded lawyers that it is a little too fair on the accused to give them two bites of the cherry in allowing for multiple chances at cross examining witnesses given that they get to have a go at the committal, and also at the subsequent trial.

So, in New South Wales in 2018 the government abolished committal hearings in their entirety, replacing them with a certification process in which the prosecution has to sign off that the evidence is of a sufficient weight that a jury could find an accused guilty.

Victoria is never far behind New South Wales. In 2022, the government passed legislation that effectively removed committals in sex offences where the complainant was under the age of 18. Not only are you not permitted to apply to cross examine the complainant, but you are not permitted to cross examine any witnesses either!

It is not difficult to see how this procedure could be abused for political reasons. Unfortunately, it is only a matter of time until committals are abolished in Victoria in their entirety. And with it, conviction rates will climb, and this will have nothing to do with whether or not the accused has actually committed the crime, but rather everything to do with removing a significant forensic advantage that an accused once had in running their defence.

If one was to identify the most restrictive regime in the world when it comes to law and order, one would be hard pressed to ignore the situation in Victoria. Victoria, a state of Australia, a country founded on immigration of English criminals. Clearly, this has required a different view of bail requirements than other countries, and indeed, the bai laws have been incredibly harsh.

So harsh, that furore has been caused over deaths in custody, most recently involving an indigenous woman accused of the minor charge of shoplifting. And this has made the government take a step back, and consider changing the laws to add a bit of flexibility to the system.

It is rare to acknowledge that Australian political leadership were under a collective delusion. Some would suggest that such observations are constrained to the world of crazy tin-hat conspiracy theories. But, it appears that all of the measures that were taken during the COVID crisis are now on the nose. So what does one do if one is the government.

Well, simply take the easy route, and discharge all fines.