criticism of Israel does not breach the Racial Discrimination Act
- Written by: Bill Swannie, Senior Lecturer, Thomas More Law School, Australian Catholic University
Earlier this month, the Federal Court found controversial Muslim cleric Wissam Haddad breached the Racial Discrimination Act.
Justice Angus Stewart ruled a series of speeches Haddad posted online were “fundamentally racist and antisemitic [and] profoundly offensive” towards Jewish people in Australia.
However, the court also ruled criticism of Israel, Zionism and the Israel Defense Forces are not antisemitic and therefore do not breach the law.
This finding could help inform the current debate on how to define antisemitism in Australia.
Antisemitism and the law
Haddad’s sermons were found to include “perverse generalisations” about Jewish Australians made at a time of “heightened vulnerability” following the October 7 2023 attacks on Israel by Hamas.
The court’s decision is based on provisions in the Racial Discrimination Act.
The act applies equally to all racial and ethnic groups in Australia. It does not refer directly to antisemitism, nor does it prohibit it specifically.
But Jewish people have been recognised as a distinct ethnic group protected by the act since 2002. As such, several successful court cases have been brought by Australian Jews under the laws.
To breach the act, speech must be likely to “offend, insult, humiliate or intimidate” a reasonable member of the target group – in this case, Jewish people in Australia. Trivial or minor harms do not meet this standard.
Also, the speech must have been done “because of” the race or ethnicity of the target group. This means the race or ethnicity of the person or group must be one of the reasons for the speech.
The law protects against racial discrimination, which includes ethnicity. It does not prohibit religious discrimination. However, for Jews, Sikhs and other ethno-religious groups there is some overlap.
There is no liability under the Racial Discrimination Act if the speech was done “reasonably and in good faith” for a “genuine purpose in the public interest”.
This is the free speech defence.
Other breaches of the RDA
In 2002, the Federal Court found the act was breached by a website that denied the extent and existence of the Jewish Holocaust.
The website’s creator, Frederick Toben, claimed the content was true and its publication was in the public interest. However, the language used by Toben was deliberately provocative. His clear intention to offend Jewish people meant no defence was available.
In September 2023, a Melbourne secondary college breached the act by allowing Jewish students to be systematically bullied and harassed, including through the use of racial epithets and Nazi swastikas.
The court took into account the intergenerational trauma experienced by students whose families were affected by the Holocaust. The school was ordered to pay compensation to the students totalling more than $400,000.
Criticism of Israel does not breach the law
Crucially, in the recent Haddad decision, the court stated “it is not antisemitic to criticise Israel”.
Parts of a speech made by Haddad that referred directly to the conduct of Israel and the Israel Defense Forces did not breach the Racial Discrimination Act because they could not reasonably be regarded as referring to Jewish people.
Further, references in the speech to Zionism were regarded by the court as referring to a political ideology, rather than Jewish ethnicity.
However, the court did recognise that criticism of Zionism and Israel was sometimes coded, or included subtle references to Jewish identity.
Under the act, courts must carefully consider the context of relevant speech, including the tone and language used. That means blaming Jewish people for the actions of Israel or the Israeli military, for example, could in fact breach the law.
Antisemitism definition
The Federal Court’s decision in the Haddad case preceded the proposed antisemitism strategy by Jillian Segal, the government’s special envoy on combating hatred against Jewish people.
Her report recommends the International Holocaust Remembrance Alliance’s definition of antisemitism be embedded in all public institutions.
The definition is controversial because it appears to conflate criticism of Israel with racial and ethnic prejudice. Concerns have been raised legitimate criticism of Israel and its government would be stifled if the definition was widely embraced.
A version of the definition was adopted in February by Universities Australia, the governing body for Australian universities.
Some universities have rejected the definition on the grounds it may restrict legitimate academic freedom on campus.
No defence available to Haddad
Haddad argued his speeches were justified because they were based on Islamic scriptures. However, after weighing up expert evidence, the court found denigrating Jewish people was not supported by scripture.
The speeches were not made “reasonably and in good faith”, given Haddad had used inflammatory language. He further “courted controversy” by also maligning Christians and Hindus.
As the speeches were no more than “bigoted polemic”, no conflict between religious freedom and the Racial Discrimination Act arose.
In summary, Haddad breached the act by making profoundly offensive speeches regarding Jewish people in Australia.
The court ordered the sermons be removed from social media, while Haddad was ordered not to repeat them.
The decision clarifies that antisemitic speech is prohibited by the discrimination laws, although criticism of Israel is not.
Authors: Bill Swannie, Senior Lecturer, Thomas More Law School, Australian Catholic University
