WA Bar sides with Julian Burnside over controversial tweet

The Western Australian Bar Association has strongly condemned the conduct of senator Sarah Henderson who called for Julian Burnside’s Queen’s counsel to be stripped after the prominent barrister likened Israel’s treatment of the Palestinians to Nazi Germany in a controversial and now-deleted tweet.

Naomi Neilson • 05 August 2021 • Big Law

WA Bar sides with Julian Burnside over controversial tweet

In reference to a report into violations of international law during 11 days of fighting between Israel and Hamas militants, Julian Burnside tweeted that Israel’s “treatment of the Palestinians looks horribly like the German treatment of the Jews”, sparking frustrations and severe backlash from several leading Jewish figures.

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In a series of her own tweets and an interview, Liberal member Sarah Henderson claimed that Mr Burnside’s tweet was “likely to diminish public confidence in the legal profession” and called on the Victorian Bar to “strip” his appointment as QC and Order of Australia – the latter the Bar or the Legal Services Commission cannot do.

In a letter to Ms Henderson, Western Australian Bar Association president Martin Cuerden SC wrote that while Mr Burnside’s tweet is a matter of public interest and debate, he was as entitled as any other Australian to express his views on the subject in strong terms “even if others, like yourself, find them offensive”.

“As a member of the Australian Senate, you have a political and moral obligation to uphold, not undermine, the democratic liberal values on which Australian society is based. Your conduct in reporting Mr Burnside to the Victorian Bar and calling for him to be ‘stripped’ of certain privileges is a matter of grave concern as it represents an attack on freedom of speech and is therefore inconsistent with one of the most fundamental of these values,” Mr Cuerden wrote to Ms Henderson.

“Further, your conduct illustrates that no matter how fundamental a right may be, it must never be taken for granted but must be jealously guarded and protected.”

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Mr Cuerden used his letter to point out that Ms Henderson’s position as chair of the legal and constitutional affairs legislation xommittee meant that she would be reviewing the Constitution Alternation (Freedom of Expression and Freedom of the Press) Bill 2019. The object of this bill is to “enshrine the right of freedom of expression”, including freedom of the press and other media.

He added that the Western Australian Bar also exists to promote free speech, freedom of association and adherence to and respect for the rule of law, including equality before the law, “untrammelled by oppression or tyranny from any quarter”.

“Freedom of speech is one of the cornerstones of a liberal democratic society. It entails not only the right to express views with which others may or will disagree, but to do so in strong terms and in a manner which may be insensitive or likely to cause offence,” Mr Cuerden wrote.

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.

You can email Naomi at: naomi.neilson@momentummedia.com.au

Not a fan of the sainted one Friday, 03 September 2021

The sainted Julian can do no wrong - in his eyes

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Anonymous Tuesday, 31 August 2021

Perhaps Mr Burnside QC's comment was simply an observation of perceived hypocrisy. (But that is no more than my personal view based on an inference).
I find Mr Cuerden SC's views in response to Sen Henderson in defence of fundamental tenets of our democratic system of government to be compelling and appropriate.
It is perhaps trite to note how fundamental a component perception is of reputation. Employing a ‘cancel-culture’ methodology in the circumstances serves not only to demonstrate how tenuously balanced our reputations are, but also our institutions of governance. (Anyone familiar with the operation of the Victorian LSB+C would note their approach to professional standards regulation – they will simply paint a star on him then post a photo of it on their website!)
I think few in the Australian legal community would question Mr Burnside’s personal integrity, let alone the enormous contribution that he has made to the protection and advancement of fundamental human rights, both within and beyond our borders.
It is encouraging to see discussion with a focus upon rights consciousness.

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Anonymous Tuesday, 10 August 2021

Senator Henderson’s complaint is echoed by Senator David Van, who said in the Senate, last week, that Mr Burnside’s “rhetoric and language is utterly disgraceful and serves only one purpose—promoting anti-Semitic hatred, which we are working very hard to stamp out… Mr Burnside's contempt for decency clearly shows that he should hand back his AO and that he does not deserve his QC title.”

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- Claire Monday, 30 August 2021
  
  Utter nonsense. Not only is he entitled to make the comment, it is both restrained and accurate.
  
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Anonymous Monday, 09 August 2021

Martin Cuerden SC got this one seriously WRONG! His letter calls into question the Hon. Senator Henderson’s “attitude to fundamental democratic values” and implies that she undermines these values, on the basis that her proposed sanctions of his comment constitute an “attack on freedom of speech”.
Every freedom in a civil society has its limits, to protect others. Unlimited individual freedom is anarchy. Freedom of speech is limited to prevent libel, misleading and deceptive conduct in commerce, and racial or ethnic discrimination.
Mr Burnside’s comment crossed the limit. The Working Definition of Antisemitism published by the International Holocaust Remembrance Alliance (IHRA), of which Australia is among the 34 member nations, includes, as a contemporary example of antisemitism in public life: “Drawing comparisons of contemporary Israeli policy to that of the Nazis.”
Senator Henderson’s complaint is echoed by Senator David Van, who said in the Senate, last week, that Mr Burnisde’s “rhetoric and language is utterly disgraceful and serves only one purpose—promoting anti-Semitic hatred, which we are working very hard to stamp out… Mr Burnside's contempt for decency clearly shows that he should hand back his AO and that he does not deserve his QC title.”
Mr Burnside’s deletion of the offending Tweet and subsequent abandonment of his election campaign suggests that he retrospectively recognises the gravity of his offense, and so why on Earth would the President of the WA Bar Association jump in, boots and all…?

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- Robert Sunday, 15 August 2021
  
  The WA Bar Association quite rightly ‘jumps in boots and all’ to defend a member of its profession from being destroyed professionally for daring to call out internationally recognized crimes against humanity. If a human rights lawyer in this country can be destroyed by supporters of the perpetrators we have literally ceased to be a democracy. It’s as simple as that. Most people are aware of what has been going on in Palestine since 1948. To expect Australians to button their lips about it is to cause a grave offence to our values and way of life.
  
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Marky Mark Sunday, 08 August 2021

Freedom of speech is not absolute. Burnside has the right to say what he wants, but that doesn't mean that he is immune from the consequences which flow from his vitriol!

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Diogenes Thursday, 05 August 2021

The whole thing is ridiculous. Burnside's comments were inapt and inflammatory - deliberately so most likely. He can fairly be criticised for them - but a professional complaint? Ridiculous.
Senator Henderson's complaint is unjustified and ill-founded. She is also an appropriate target for criticism. But why does the WA Bar think it has a role in a minor dispute between a Victorian Barrister and a Victorian Senator? Will they involve themselves in all political bickering involvng legal figures now?

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