Published: 3 September 2026
Last updated: 3 September 2026
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.
Comments7
Jeremie15 September at 09:34 am
Thanks Simon. I agree that penal provisions must be construed cautiously in favour of an accused, but I don’t think that principle can do the work you suggest here. No principle of reading down penal legislation required Fagan J to adopt such a charitable account of Hezbollah, repudiate the utility of the IHRA definition, refer to genocide as an established legal fact or, most importantly, deny the anti-Jewish character of the offending.
He could have found the statutory threshold for future terrorism risk unmet without doing any of those things. That is precisely my criticism.
Simon8 September at 11:10 am
I have not invested the time to come to grips with the issues in depth and I have not read the judgments. I think the article is an interesting gloss on the jurisprudence and the decision in Farhat, and I’m grateful for having these issues brought to my attention. But I wonder, Jeremie, are you making sufficient allowance for the criminal law precept that penal provisions must be read down in favour of an accused? Could this account for some of what you are describing as strained interpretation?
Jeremie7 September at 09:43 am
Thanks Judy. I think this slightly misunderstands my argument. I certainly don’t suggest that the ECAJ (still less I) gets to “define Jewish experience”. Jewish opinion is diverse, including on Zionism, and the JCA is entitled to articulate the views of its members.
My concern is different. Acknowledging minority Jewish voices is not the same as treating them as representative of the broader community. The JCA told the Court it represented just over 2,500 people. Survey evidence indicates that a substantial majority of Australian Jews identify as Zionist or regard Israel as important to Jewish collective life. One may reject the ECAJ’s politics or feel it does not personally represent them; that does not erase those empirical differences.
More importantly, this wasn’t a debate about a particular Israeli policy. It concerned “Fuk Israel” spray-painted during criminal vandalism in a heavily Jewish area, alongside arson and a search for a Jewish institution.
My argument is that neither ECAJ nor JCA can determine whether that conduct was antisemitic. The court must examine what it communicated, to whom, and in its actual setting. I reject both shortcuts: “anti-Zionism is antisemitism” and “Israel is not Jews, therefore anti-Israel hostility cannot target Jews.”
joe lenzo5 September at 02:08 am
And who should the context deciders be?
Darren4 September at 06:08 am
I always appreciate articles and individuals who try to protect the Jewish people and combat Jew hatred. Out of respect, I wanted to voice what I believe are critical strategic blunders in this articles response:
1. Firstly, the term “anti-Zionism” is frustratingly appropriated and simply invalid. It was a largely internal Jewish debate on whether self determination was viable and religiously, logistically, politically, morally coherent. The State of Israel exists. Criticism of Israel is not “anti-Zionist”, anti-Zionism effectively expedited on Israel’s independence. Stop accepting the appropriation of this term, it’s bizarre.
2. Whether “antizionism” (Jew hate through demonisation of Jewish sovereignty) is “antisemitic” is categorically ambiguous – Jews define antisemitism as broad Jew hate, whereas institutions and public society define it as more or less only classical antisemitism/antijuadism (ethnic or religious based Jew hate). Antizionism may be “antisemitic” by definition to us and not to them… it’s altogether irrelevant though. It is still Jew hatred. Whether “antisemitism” encompasses all Jew hate or only Nazism style Jew hate is such a deflection of priority… is it by your definition antisemitic? I don’t care. It’s a hate movement targeting Jews.
Judy3 September at 02:22 pm
(begin part 2)
The judge selected two of numerous Jewish groups, acknowledged by the judge representing different points on the political spectrum, defined each via its own words, and concluded (rightfully so, I believe) that: “… ECAJ endeavours to portray the Australian Jewish community as unified in support of Zionism and Israel. That is at odds with the contrary perspective expressed by the JCA on behalf its membership.”
To answer Bracka’s question, “Who gets to define Jewish experience?”
For me, certainly *not* ECAJ, which anoints itself as “the peak body of the Australian Jewish community”; it is *not* my representative nor my advocate. And equally not the JCA, which acknowledges openly ” … we have diverse views on many issues … “, although it comes much closer by embracing our community’s “diverse views.” And certainly *not* Bracka, no matter how much he tries to discredit smaller groups with opinions that appear to differ from his.
…
I believe Bracka had good intentions writing the article; I just could not understand what they were.
Peace,
Judy
Judy3 September at 02:21 pm
(begin part 1)
I am no judge nor lawyer; I do not pretend to be. Nor will I contribute to what is and is not “anti-semitic.”
Still, this article disturbed me for many reasons.
First, I did not find support for the thesis of the article, expressed in the title: “Court decision fails to understand when ‘Fuk Israel’ becomes antisemitic.” What followed seemed to me to be “a gratuitous [many]-paragraph excursion through” several topics beyond the thesis.
…
Another example is when Bracka wrote: “His Honour effectively equates Australia’s peak Jewish representative body, … (ECAJ), with the Jewish Council of Australia … ”
I read the referenced paragraphs 97-99, and I found *no* such “equation.” Bracka goes over-the-top, I believe, in accusing the judge of, “manufacturing representative equivalence” between different Jewish groups.
(end part 1)