It is appropriate to use race law to fight Israel-hate

The race discrimination complaint lodged against broadcaster Mary Kostakidis is a landmark attempt by the Jewish community to defend itself against a rising tide of hate.

The complaint has the potential to define a point where attacks on Israel become attacks on Jews that breach Australian law.

The Zionist Federation of Australia (ZFA), through its CEO Alon Casutto, lodged a complaint on Sunday with the Australian Human Rights Commission. The complaint cites Kostakidis for sharing a speech by Hezbollah chief Hassan Nasrallah in which he said Jews have no place in “the land of Palestine”.

The Kostakidis complaint is not an attempt to stop criticism of Israel’s campaign in Gaza – or any other aspect of Israeli policy.

It is a targeted use of the law to sanction a threat to Jews in the hope of establishing an outer limit on legal discourse in Australia.

The case rests of the reasonable claim that Australian Jews and/or Australian-Israelis (Casutto is both) are reasonably offended and intimidated by a threat to expel Jews from Israel.

It is a good test case for several reasons. Hezbollah is a proscribed terrorist organisation, so its chief Nasrallah clearly sits beyond the bounds of the acceptable in Australia. His statement was televised so there can be no doubt as to its exact wording.

Nasrallah was specific and clear in his declaration telling Jewish Israelis, “Here you don’t have a future, from the river to the sea the land of Palestine is for the Palestinian people, and the Palestinian people only”. There is none of the frequently-heard pretence that a Palestine from the river to the sea would involve anything other than the ethnic cleansing of 40% of the world’s Jewish population, the vast majority of whom have nowhere else to call home.

Kostakidis is a fair target. She is an experienced journalist who clearly understands the content she is sharing. Her three decades at SBS and numerous other engagements on human rights and multicultural issues require that she understands and is sensitive to racial discrimination. Her regular engagement with social media and her 30,000 X followers, combined with her long period as the “face of SBS”, mean she yields considerable influence.

Her sharing of the Nasrallah video is also part of a pattern. Kostakidis shared the video twice and endorsed it with the words “The Israeli govt getting some of its own medicine”. She has also disseminated numerous other attacks on Israel including denying that Hamas committed systemic rapes on October 7.

The question of whether Kostakidis’ actions breach section 18C of the Race Discrimination Act has far reaching implications because of the slippage between criticism of Israel and the lived experience of antisemitism in Australia.

As if to illustrate this point, at the exact time the ZFA was announcing Casutto’s action in Melbourne, pro-Palestinian protesters in Sydney were unfurling a banner reading “Sanction Israel” outside the Great Synagogue in Sydney.

It’s likely the demonstrators had simply made their way from Hyde Park, where regular protests are held, to the synagogue but in doing so, they did far more than walk a couple of minutes across the road.

They changed their protest from a legitimate opinion to a form of ethnic/religious discrimination. Whatever the nature of the message, forming a barrier across the door of a synagogue is an attack on the religious freedoms of Jewish Australians.

There are limits to the value of lawfare in fighting what is primarily a political debate. Australian race relations laws are structured to deal with individual grievances – which is why Casutto is bringing the case as an individual – not systemic issues. Complaints must go through a mediation process – which will clearly be pointless in the case of Kostakidis, who has already indicated she has no intention of apologising. It will be a long road to a civil court case and there is always the danger that Casutto loses.

Clearly the value of this complaint is in its capacity to act as a deterrent to others and to demonstrate the acceptable limits of speech on the subject of Israel-Palestine.

At its worst, it will be seen an attempt by a “powerful Jewish lobby” to limit free speech and misuse race discrimination laws for their own political purposes. Such an outcome would be an ironic recycling of an older form of antisemitism but that doesn’t mean it won’t happen.

At its best, the case will raise public awareness as to why “Palestine will be free from the river to the sea” is not merely a liberation slogan but a threat to the Jewish population of Israel and, by extension, an attack on Jews everywhere.

It might sensitise pro-Palestinian protesters to the differences between supporting Palestine, criticising the Israeli government, and threatening Jews in Israel or elsewhere.

Australian Jews are among those who have fought hard to maintain the 18C provisions of the Race Discrimination Act, to ensure we have the protection of the law. We know better than most the dangers that begin with hate speech.

It is appropriate we should use it to defend ourselves against the latest threats.