After R v Bayda; R v Namoa (No 8): continuing the dialogue with academics of Islam[1]

Mr B Rauf[2]

This article considers the concerns about Islam and the Qur’an expressed in R v Bayda; R v Namoa (No 8); the rise of Islamophobia in Australia; and recent initiatives to foster Muslim and judicial understanding of the experience of Australian Muslims and Islam.


Following the decision in R v Bayda; R v Namoa (No 8),[3] there has been a continuing discussion of certain observations in the judgment relating to passages of the Qur’an, the central religious text of Islam. This article considers the concerns expressed in R v Bayda; R v Namoa (No 8) in discussion with two senior academics, Professor Mohamad Abdalla[4] and Dr Salim Farrar,[5] who are well versed in issues associated with the administration of justice in Australia and are leading scholars in the Islamic faith.

The article also considers the experiences of Islamophobia in discussion with Dr Derya Iner[6] and Rita Jabri Markwell.[7] Finally, this article considers some of the initiatives pursued to, on the one hand, assist Australian Muslims to more meaningfully participate in the judicial process and, on the other hand, assist judicial officers to better understand the experience of Australian Muslims and Islam. In Australia, there has been, according to Dr Iner, an “increasing and normalising” experience of Islamophobia. The increasing experience of such prejudicial and discriminatory conduct directed at Australian Muslims based on their religious identity or affiliation has occurred in a landscape where there is little legislative protection against such conduct.[8] This experience also needs to be considered, as one factor, in the discussion of general statements, whether by judicial officers or politicians, about Islam and Muslims.

The decision in R v Bayda; R v Namoa (No 8)

By way of background, the decision involved the sentencing of Sameh Bayda and Alo-Bridget Namoa, both of whom had been found guilty of conspiring with each other to do acts in preparation for a terrorist act. The offenders had been found to, inter alia, intend to advance the cause of Islam by violence including by conspiring together for Bayda to prepare a violent attack against non-Muslims on New Year’s Eve 2015. They had been encouraged down such a path by jihadist propaganda.[9] Bayda was introduced to jihadist literature and information when he was aged 15.[10] Namoa converted to Islam aged 14 following an interaction with two female street preachers.[11] Bayda was sentenced to imprisonment for a period of 4 years and Namoa was sentenced to imprisonment for a period of 3 years and 9 months.

In the course of the judgment, reference was made to extremist material and that the two offenders understood it to be a “divine command for attacks on innocent Western civilians”.[12] Reference was also made to verses of the Qur’an which, it was said, “unmistakably instruct the believers to undertake jihad in pursuit of universal Islamic dominance”.[13]

Some of the materials which had been referred to were characterised as “sermons and writings” which were “serious and scholarly religious teaching”.[14] In this context, it was noted that the “whole concept of inclusive tolerance would be destroyed if respect and protection were accorded to beliefs that are themselves violently intolerant and that conflict with secular laws designed to secure diverse freedom of worship for all”.[15]

The decision states that if Australian Muslims make “a clear public disavowal” of certain verses as not being authoritative instructions from Allah (God), then terrorists’ religious convictions might be weakened.[16] The decision further states that “(t)he incitements to violence which terrorists quote from the Qur’an cannot just be ignored by the many believers who desire harmonious coexistence” and “in the absence of express public disavowal of verses which convey Allah’s command for violence”, assurances that “Islam is a religion of peace” and that the faith of Muslims requires them to obey the laws of a country “are apparently contradicted”.[17]

Reactions to the decision

Soon after the decision, the Australian National Imams Council issued a public statement noting its disappointment and reiterating its rejection of extremist interpretations of the Qur’an and the misuse of Islam by extremists. The Law Council of Australia, through its President, Arthur Moses SC, made 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”.[18]

The decision was also referred to, and relied upon, in a number of online publications seeking to, in part, draw a correlation between Islam and terrorism.[19]

The author spoke with Professor Abdalla and Dr Farrar to understand the Islamic theological perspective on some of the broader issues raised in R v Bayda; R v Namoa (No 8).

Discussions with Professor Mohammad Abdalla and Dr Salim Farrar

What are the different approaches to textual interpretation of the Qur’an?

Professor Abdalla:

Interpretation (exegesis) of the Qur’an is the most important of sciences in Islam. Scholars distinguish between tafsir and ta’wil of the Qur’an. The former aims at explaining the “outer” or exoteric meaning of the Qur’an. The latter aims at explaining the “inner” or esoteric meaning of the Qur’an. There are multiple approaches to the textual interpretations of the Qur’an. Orthodox Muslim scholars suggest that an exegete of the Qur’an must have a number of specialisations including: expert knowledge of the principles of jurisprudence, Arabic grammar and morphology, rhetoric, literal and contextual understanding of the Qur’an, the science of abrogation, the Sunnah and must be able to contextualise the interpretation of the Qur’an to reflect contemporary realities.

Dr Farrar:

The Qur’an is not an “open book”, although it is “clear” for those with comprehension and understanding. We rely on scholars’ interpretations who are informed by the Prophetic example and aware of the context(s) and different applications of the Revelation. One cannot simply flip open a page, read and assume to comprehend a verse’s full and proper meaning. That is not to say that there are not splinter groups or individuals, historically and presently, separate from the majority who have either denied the validity of “interpretation” or give verses of the Qur’an meanings which the majority do not accept.

Do you believe that there are parts of the Qur’an that are open to interpretations which may incite violence? To the extent that jihadist literature relies on violent interpretations of the Qur’an, what position do the orthodox and mainstream schools of thought have relating to these verses?

Professor Abdalla:

It is true that there is text contained in the Qur’an that seems very violent. When such text is not read in its proper textual and historical context, it is manipulated and distorted by Muslims and non-Muslims alike.

Muslim scholars argue that those who read the Qur’an should keep at a minimum the following principles in mind: an awareness of the inner coherence in the Qur’an; to study at the least the preceding and following verses for a sense of the immediate context; look at all of the verses that deal with the same subject in the book; the occasion of revelation; the historical context of a particular verse; a cursory knowledge of Prophet Muhammad’s life; finally the way the Prophet implemented a particular directive in a verse of the Qur’an in his own life.

According to mainstream and orthodox Muslim scholars, the use of the Qur’an to justify the killing of any person, including civilians, is prohibited, completely wrong and a misguided innovation. (There is an exception where people are engaged in a field of battle, and even then, it extends to those engaged in the combat, much like the position under international law where there are designated rules of combat.) The nature of this prohibition is so specific and well-defined that there can be no legal justification, nor can there be a legitimate Sharia excuse, for circumventing this scholarly consensus.[20]

Indeed, one of the highest objectives of Islamic law is the preservation of life or anything which leads to the preservation of life (for instance, training of medical staff, investment in cures and medicine, establishing and supporting hospitals and so on).

Dr Farrar:

There are verses in the Qur’an which are open to interpretations of violence, just as there are verses in the Christian Bible, but they do not incite violence. Rather, it is violent people who incite violence; they use and misinterpret religious texts for their own purposes. In an authentic saying of Prophet Muhammad (peace be upon him), narrated via the famous Companion, Abdullah ibn Omar, he warned: “What I fear greatly for my nation is a man who mis-explains the Qur’an and who takes it out of context.”

There were individuals and groups in Islamic history who misinterpreted the Qur’an with devastating and violent consequences (including against mainstream and orthodox Muslims). The first of these was the Kharijites (during the time of the Companions of the Holy Prophet) who regarded it lawful to kill all those who disagreed with them. The orthodox and mainstream schools of thought regarded the Kharijites, and those like them, as misguided and even beyond the fold of Islam. They certainly did not regard their beliefs or interpretations as canonical. Unfortunately, there are those today who similarly misinterpret the Qur’an. Their interpretations are no more Islamic than those of the Kharijites.

Do you think there are parts of the Qur’an that should be repudiated?

Professor Abdalla:

There is a consensus position among Muslims, in the past and present, that the Qur’an is the speech of God, sent down upon the last Prophet Muhammad, through the Angel Gabriel, in its precise meaning and precise wording. Therefore, no parts of the Qur’an can be repudiated. However, interpretations of the Qur’an that contravene the rules of exegesis (as outlined above), scholarly consensus, or the fundamentals of Islam can and have been repudiated. For example, in his scholarly article “Defending the transgressed by censuring the reckless against the killing of civilians,”[21] Shaykh Al-Akiti repudiates the interpretations of violent extremists’ understanding of jihad. Further, an open letter to Abu Bakr al-Baghdadi (the leader of ISIL/ISIS), signed by hundreds of Muslim leaders and scholars, repudiates the group’s actions and ideology based on the Qur’an and other jurisprudential texts.

Dr Farrar:

There is no basis for any part of the Qur’an to be repudiated. A Muslim is a Muslim because they believe all of the Qur’an was revealed to Prophet Muhammad; every single letter and word. If a person says that Muslims should repudiate even one letter of the Qur’an, they are telling them to renounce their faith. If a Muslim were to accept that part of the Qur’an was wrong, then logically, the same might flow for other parts of the Qur’an or its entirety. All of the Qur’an is revelation from God. The issue is one of interpretation only.

Do you believe that the Islamic faith is reconcilable with a liberal democratic society such as Australia?

Professor Abdalla:

A substantial amount of scholarly literature supports the claim that the major tenets of liberal democracy are compatible with Islam and that Islamic values and norms actually encourage “democracy”. I support this claim. Scholars argue that Islam and its laws have inherent values compatible with important elements of democracy, including: shura (consultation); ijma’ (consensus) and ijtihad (independent legal reasoning). Furthermore, a focus on the fundamental moral values shows that the tradition of Islamic political thought contains both interpretative and practical possibilities that can be developed into a democratic model. The Sharia and its sources (Qur’an and Sunnah) did not specify a particular form of government, but advocated for principles of “good governance”. The Sharia identified a set of social and political values that are central to any form of government. In fact, it can also be argued that: “In espousing the rule of law and limited government, classical Muslim scholars embraced core elements of modern democratic practice.”[22] Three values are significant: “pursuing justice through social cooperation and mutual assistance (Qur’an 49:13 and 11:119); establishing a non-autocratic, consultative method of governance; and institutionalising mercy and compassion in social interactions (6:12; 21:107; 27:77; 29:51; 45:20)”.[23]

In the area of Islamic jurisprudence, Muslims are obliged to comply with the laws of their country of residence as premised on the Qur’anic dicta demanding fulfilling “obligations” and “covenants”. The Qur’an states, for example, that “You who believe, fulfil your obligations” and “Honour your pledges: you will be questioned about your pledges”. Muslim jurists have also understood that the ultimate authority in any country belongs to the government, and so in a non-Muslim context it is counter-intuitive to assume that individual Muslims, or the religious leaders, can take the law into their own hands.[24]

Dr Farrar:

I do, but it depends what type of “liberal” society one is referring to. I also think it is reconcilable, (almost), with any democratic society, hence why Muslim communities have endured across the world.

Discussions about Islamophobia with Dr Iner and Ms Jabri Markwell

What are the experiences of Islamophobia?

Dr Iner:

It is continually increasing and normalising. The upcoming Islamophobia Report reveals concerning findings.[25] Contrary to the assumptions, a majority of the incidents (60%) occurred in guarded areas, where police officers, security, trackwork personnel, surveillance cameras and other workers or officials were in force. A large proportion (64%) of incidents took place in commonly frequented places such as shops, schools, universities, on public transport, in traffic, carparks, petrol stations, official buildings, airports, hospitals, events and leisure centres.

Ms Jabri Markwell:

The Christchurch terrorist manifesto, grounded in the Great Replacement Theory, is becoming increasingly mainstream online, fuelled by the lack of deterrents in Australia’s civil and criminal laws. According to this theory “even so called moderates” are a threat, as Fraser Anning famously said in one of his election campaign posters in 2019. It has now become mainstream online to dehumanise Muslims as a “disease” and demonise them as “terrorists, paedophiles and tyrants”. Yet in public discourse, arguments are routinely made that such incitement to hatred should be left uncensored; that religion is different from race. This overlooks the serious endangerment and marginalisation caused by that speech as Australian Muslims are readily identifiable by their names, dress, appearance and attendance at places of worship.

According to a national survey by the Australian eSafety Commissioner, 53% of Australian youth aged 12–17 have witnessed anti-Muslim harmful content online.[26] With Australian youth representing the largest social media users in the country, one cannot underestimate the impact this has on the psychological wellbeing of Australian Muslim youth. Correspondingly, researchers based at the University of South Australia’s Centre for Islamic Thought and Education are finding a high level of identity stress now experienced in this generation.[27] As a community, we are looking at how education is delivered to support this generation to critically process arguments that are made and understand their rights.

In your experience, what impact can generally stated negative comments about Islam or Muslims in the public domain have on the broader Australian Muslim community?

Dr Iner:

The impact is quite profound. The lack of clear distinction between criminals and terrorism convicts and ordinary Muslim citizens in the public discourse increases anti-Muslim sentiments and Islamophobic attacks. The Islamophobia in Australia 2014–2016 report[28] illustrated the increasing Islamophobic incident reports to the Register[29] after particular terrorist attacks, political rhetoric and legislative initiatives in Australia.

Ms Jabri Markwell:

The effect of such statements, particularly in judicial decisions and political statements, can be demoralising and frustrating. There is a real concern that such public statements are readily utilised by those who wish to advance anti-Islamic sentiment in an environment where there are few legislative protections, if any, for Australian Muslims against vilification. They can also have the effect of perpetuating a burden on Australian Muslims to constantly resist and address suggestions that they are somehow indirectly responsible for terrorist interpretations of the Qur’an and the actions of terrorists.

Some of the observations expressed in R v Bayda; R v Namoa (No 8) and also R v Khaja (No 5)[30] demonstrate that it is vital for Australian Muslim bodies to engage with the judiciary in an open and honest dialogue.

Sources of Islam and Islamic scholarship are not easy to understand, summarise, or discuss. Understanding the complexity and nuances of debate, even within the Muslim community, would enable the judiciary to make more insightful comments. We also have academic researchers like Dr Jan Ali, Dr Riyad Rahimullah and others who have studied the process of radicalisation and de-radicalisation in the Muslim context. This knowledge and insight needs to be shared and understood.

Continuing dialogue and engagement

It is important that there is a continuing dialogue and engagement to address some of the misunderstandings and concerns which have presented in, on the one hand, the perceptions of some Australian Muslims of the judicial process and, on the other hand, general views expressed in political statements and judicial decisions relating to Islam and Australian Muslims. In the legal profession, in recent times, there have been a number of positive initiatives which have sought to develop an improved understanding and engagement.

For instance, in December 2017, in discussion with the Judicial Commission of NSW, the Australian National Imams Council developed and issued an Explanatory Note on the Judicial Process and Participation of Muslims.[31] The Explanatory Note was, in part, a response to the refusal by Ms Elzahed to stand for a judge of the District Court of NSW and the ensuing media coverage. Subsequently, the Explanatory Note has been referred to by judicial officers in a number of decisions.[32]

As a further example, since 2013, at the initiative of the Law Society of NSW and the Muslim Legal Network of NSW, there has been an Open Law Term Ceremony at the Auburn Mosque in Western Sydney to mark the opening of the law term in NSW. The event has been regularly attended by judicial officers, members of the legal profession and community leaders. The event has provided a significant and important opportunity for interaction, engagement and positive discussions.

Since 2014, a Ramadan dinner has been held with the legal profession in which speeches of inclusivity and prayers for the betterment of society are offered. This event is an occasion when people from different perspectives and backgrounds come together to share an evening as members of the legal profession with shared professional values and aspirations.

Finally, the Judicial Commission of NSW has been engaging with organisations such as the Australian National Imams Council to explore opportunities for dialogue and education. These and similar collaborative efforts ought to be acknowledged and commended.

[1] Originally published in Judicial Officers' Bulletin, Vol 31 No 9, October 2019, updated 2021. This article is based, in part, on Y Sharriff and B Rauf, “Starting the dialogue: academics of Islamic faith and R v Bayda; R v Namoa (No 8)” (2019) (Autumn) Bar News 18.

[2] Barrister, State Chambers.

[3] [2019] NSWSC 24.

[4] Professor Abdalla is a Professor in the School of Education at the University of South Australia and Director of the Centre of Islamic Thought and Education at that university. His recent books include Leadership in Islam: processes and solutions in Australian organizations, (with N Faris), Palgrave Macmillan, 2018, and Islamic schooling in the west: pathways to renewal, (with joint eds Dylan Chown and Muhammad Abdullah), Palgrave Macmillan, 2018. Professor Abdalla has had extensive involvement with the Australian Muslim community including acting as an Imam, advisor to government and non-government organisations and Vice-President of the Australian National Imams Council.

[5] Dr Salim Farrar is an Associate Professor in Law at the University of Sydney. He specialises in Islamic Law, Muslim minorities and the law and Comparative Criminal Justice. He was called to the English Bar in 1992. He has also taught at the Universities of Coventry, Warwick, Manchester and International Islamic University Malaysia. His most recent book (with G Krayem) is Accommodating Muslims under common law: a comparative analysis, Routledge, 2016.

[6] Dr Derya Iner is the research coordinator and senior lecturer of the Centre for Islamic Studies and Civilisation at Charles Sturt University. She is also an Executive Board Member of the Islamophobia Register Australia and editor of Islamophobia in Australia 2016–2017 Report at, accessed 11 March 2021.

[7] Ms Jabri Markwell has been a lawyer since 2003 and has worked mainly in the government sector. She is based in Brisbane, Queensland.

[8] For instance, see Australian Human Rights Commission, Freedom from discrimination: report on the 40th anniversary of the Racial Discrimination Act 2015, p 5 and Ekermawi v Nine Network Australia Pty Ltd [2019] NSWCATAD 29.

[9] R v Bayda; R v Namoa (No 8) at [42]–[65].

[10] ibid at [43].

[11] ibid at [49]–[50].

[12] ibid at [58].

[13] ibid at [60].

[14] ibid.

[15] ibid at [76].

[16] ibid at [78].

[17] ibid at [78]–[80].

[18] As reported in The Sydney Morning Herald: M Whitbourn,“Lawyers back Muslim community after controversial comments from bench”, 8 February 2019, at, accessed 10 March 2021.

[20] Shaykh Muhammad Afifi Al-Akiti, “Defending the transgressed by censuring the reckless against the killing of civilians”, 2005, at, accessed 11 March 2021.

[21] ibid.

[22] Khaled Abou El Fadl, “Islam and the challenge of democracy”, Boston Review, 2003, at, accessed 11 March 2021.

[23] ibid.

[24] M Abdalla, “Sacred law in a secular land: to what extent should Sharia law be followed in Australia?”(2012) 21(3) Griffith Law Review 657 at, accessed 11 March 2021.

[25] D Iner, above n 6.

[26] eSafety Commissioner, “Online hate, bullying and violence” at, accessed 11 March 2021.

[27] M Abdalla, “The elephant in the room: Islamophobia and its impact on the Muslim learner”, Centre for Islamic Thought and Education, 16 July 2020,, accessed 16 March 2021.

[28] D Iner (ed), Islamophobia in Australia 2014–2016, Charles Sturt University, 2017 at, accessed 11 March 2021.

[29] Islamaphobia Register Australia at, accessed 11 March 2021.

[30] [2018] NSWSC 238.

[32] For instance, Elzahed v State of NSW (2018) 97 NSWLR 898; R v Dirani (No 34) [2019] NSWSC 1005; Decision Restricted [2019] NSWSC 314; Decision Restricted [2018] NSWSC 945; R v Alou (No 4) [2018] NSWSC 221; R v Chaarani (Ruling 1) (2018) 275 A Crim R 456; Hawkesbury City Council v Kara-Ali (No 3) [2019] NSWLEC 55.