A LOCAL council has banned the construction of a synagogue in Bondi because it could be a terrorist target, in a shock move that religious leaders say has caved in to Islamic extremism and created a dangerous precedent.
The decision, which has rocked the longstanding Jewish community in the iconic suburb, was upheld in court this week as the nation reeled from the alleged airline terror threat and debate raged over increased security measures at airports and other public places.
The council contended that “the site is not suitable for the proposed synagogue use as the Preliminary Threat and Risk Analysis relied on by the Applicant raises concerns as to the safety and security of future users of the Synagogue, nearby residents, motorists and pedestrians in Wellington Street,” and yesterday’s court decision (Friends of Refugees of Eastern Europe v. Waverley Council) agreed that there was a sufficient “factual basis” for the council’s position. And once such a threat “to users and the community” was shown, then “the guidelines can be used to justify modification of the development to minimise crime risk, or, refusal of the development on the grounds that crime risk cannot be appropriately minimised.”
Moreover, the developer (here, the synagogue) bears the burden of showing a “specific risk assessment for the site,” and thus specifically justifying why the specific risk reduction measures that the synagogue proposed “respond appropriately to that risk.” (Here, the synagogue suggested “using landscaping to soften building form and minimize impact of security devices.”) The court concluded that the synagogue hadn’t done so. And the court also said that “it is also a valid question to ask whether the raised the [crime prevention through environmental design process] is the appropriate means to address a potential terrorist threat.” “It would seem that a more sophisticated risk assessment process could be required for matters such as a potential terrorist threat.”
So while in theory this might leave open the possibility that a synagogue might be built — with much delay and expense — if measures that “minimise [terrorism] risk” are proposed to the court’s satisfaction, in practice it’s not clear that any such measures would suffice. (Recall that one possibility is “refusal of the development on the grounds that crime risk cannot be appropriately minimised.”) The risk to “nearby residents, motorists and pedestrians” from, say, a truck bomb is hard to eliminate. Perhaps placing a synagogue in a rural area that is far from neighbors would suffice — but that would banish synagogues from the neighborhoods where Jews actually live.
In any event, the decision imposes a burden on synagogues that other houses of worship (churches, mosques, Buddhist temples) do not have to face. It imposes the burden precisely because synagogues are already burdened by the threat of terrorist attack, thus piling governmental repression on private repression. By giving a “bomber’s veto” — a version of the heckler’s veto, in which the police shut down a speaker because thugs are threatening violence against him — to the Islamic State and its supporters, it encourages them. (“Look, brother: Already our fight for Islam and against its enemies has led to vile synagogues being blocked even in faraway Australia!”) And it encourages would-be copycats of other ideologies, who learn that they can shut down organization X by sufficiently threatening X that the government signs up to help shut X down.
Thanks to Peter Wizenberg for the pointer.
Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/03/no-building-permit-for-australian-synagogue-it-might-draw-isis-supporter-terrorist-attacks-and-endanger-neighbors/