Court decision fails to understand when ‘Fuk Israel’ becomes antisemitic

Over recent months, the Royal Commission on Antisemitism and Social Cohesion has heard painful evidence about the changing vocabulary of anti-Jewish hatred. Jewish Australians have described being abused not only as “Jews”, but as “Zionists” and “Zios”; being blamed locally for a war fought thousands of kilometres away; and watching anti-Israel rhetoric migrate from political protest into Jewish schools, businesses, homes and communal spaces.

That evidence raises a difficult legal question: when does hostility to Israel or Zionism remain protected political speech, however angry or offensive, and when does it become a vehicle for hostility towards Jews? The challenge is to resist two equally crude equations: anti-Zionism is not inherently antisemitic, but neither is it immunised from becoming antisemitic in context. The NSW Supreme Court has now grappled with that distinction in the State of New South Wales v Farhat.  I fear his Honour was not quite up to the task.

Somewhat perversely, the case was not about hate speech at all. Farhat had been convicted of property offences after defacing cars and buildings in Woollahra with slogans including “Fuk Israel” and setting fire to a vehicle. He was found to have been anonymously recruited, paid $4,000 and told where to go and what to spray. The State later sought an extended supervision order, arguing that he posed an unacceptable risk of committing a serious terrorism offence if released without supervision. This is what came before Fagan J for decision.

His Honour was required to decide whether the State had established that Farhat posed the future terrorism risk required by the legislation. Having largely answered that question, Fagan J then embarked on a gratuitous 130-plus-paragraph excursion through antisemitism, Zionism, IHRA, Jewish organisations, Gaza and Hezbollah. The result: too little context where it mattered, and considerable judicial adventurism where it didn’t.