The importance to the decision in this case of distinguishing anti-Israel speech from antisemitic speech
80. The State argued that the defendant should not be believed about his lack of ideological Jew hatred because “Fuk Israel” is self-evidently antisemitic and therefore must have been understood and intended as such. I do not accept that contention. A curse in those terms is not antisemitic, either self-evidently or by any degree of analysis or construction. It is a crude political expression of contempt and dismissal of a foreign state.
Ordinary usage of “antisemitism” in Australia
"antisemitic" is defined as "Characterized by prejudice, hostility, or discrimination against Jewish people; anti-Jewish." (para 85), or "Prejudiced against Jewish people" (para 86), thus87. ... An antisemitic statement, according to the established and accepted meaning, is one that would reasonably be taken, by an ordinary member of the public, to express hostility to or prejudice against all Jewish people and/or against one or more individual Jews by reason of their Jewishness.
88. ... An allegation that a person is antisemitic is a grave imputation on character. Misapplication of the term to statements and attitudes concerning political subjects, such as disapproval of the state of Israel or disagreement with the ideology of Zionism, has the effect of unfairly damaging the person so accused and weakening the abhorrence that the word “antisemitic” should properly evoke.
The state of Israel cannot be equated with the Jewish people
89. Disparagement of Israel is not antisemitic in the accepted sense of the term firstly because the Jewish people, who as a whole are the object of antisemitism, are not coextensive with or in any sense equivalent to the state of Israel.He then enlarges on this, in particular: "90. Israel is a nation state ... [giving some history] Those events are uncontroversially established in extensive historical literature, much of it compiled by professional Israeli and other Jewish historians, drawing upon Israeli and British archives."
92. As objects of possible hostility or prejudice, the Jewish people and the state of Israel are in every material respect different things. Logically, conceptually and empirically, hostility or prejudice towards Israel cannot be equated to hostility or prejudice towards the Jewish people.
Many Jewish people criticise Israel
93. For decades Jewish people have been amongst the most forceful critics of Israel’s conduct towards the Palestinians and have been the source of insistent pleas for the rights of the Palestinians. Those positions align with the moral convictions of many Jews, based upon universal humanitarian values and understanding of the essential humanism of Jewish faith. How can it be antisemitic – in the established sense of the word – to disparage Israel when doing so accords with the words and beliefs many Jews? How can censure of Israel in those circumstances amount to hostility towards, or prejudice against, Jews on the basis of their Jewishness?and the judge enlarges on this point before again concluding
104. ... A statement of hostility to Israel, reasoned or unreasoned, does not express prejudice against Jews as Jews.
The IHRA definition referred to in the Crown’s evidence
105. ... [The IHRA definition] appears to be an attempt to repurpose the term “antisemitism” as the name of an amalgamated concept of “hatred toward Jews” and/or criticism of Israel.
108. The IHRA formulation does not reflect the established usage and understanding of the term “antisemitic” in Australia. It does not assist the Court in its present task of determining whether the slogans spray-painted by the defendant were antisemitic according to that common understanding.
109. The IHRA core text is so verbose and imprecise that it could not realistically be attributed to the ordinary, reasonably informed member of the Australian public. What is the “certain perception”? If antisemitism “may be expressed as hatred toward Jews”, how else “may” it be expressed so as still to fall within the definition? Would the “certain perception” be present in the expression of some other, less egregious, sentiment towards Jews and, if so, what? The proposition that antisemitism may “be directed towards ... non-Jewish individuals [etc]” appears counterintuitive to the central concept of Jew hatred. In what circumstances and within what limits would “rhetorical [or] physical manifestations” of the “certain perception of Jews” be antisemitic if “directed toward ... non-Jewish individuals [etc]”?
110. I am not the first to have criticised the inept drafting of the IHRA formulation. In the words of Sir Stephen Sedley, it “fails the first test of any definition: it is indefinite”. The JCA submission to the Royal Commission criticises the IHRA wording and cites a number of detailed critiques by others. Discussion of the IHRA wording and adoption of it by some institutions does not change the established meaning of a word that has been in use in the English language for 150 years. The IHRA formulation propounds a concept different from that which “antisemitism” has long been understood to describe and appropriates that word to the novel concept.
113. ... The examples indicate that the IHRA wording is not intended to give effect to the extant common understanding of antisemitism but is directed to a quite different end. Its tendency, and the apparent purpose of promoting it, is to graft onto the community’s abhorrence of antisemitism, understood as hostility to Jews for their Jewishness, a parasitic rejection of protest against Israel. Seen in that light, the IHRA proposal is detached from the reality of the common usage and understanding of antisemitism in this country.
116. It may reasonably be inferred that the results of polling Australian respondents [he had referred to a poll showing that 79% of Australian respondents view Israel unfavourably] reflect humanitarian reaction to Israel’s genocide of the Gazans since 7 October 2023, the live streaming of which to mobile handsets would be difficult to ignore. Assuming the reliability of the June 2026 poll, it would be preposterous to suggest that 79% of Australians are antisemitic because they disapprove of Israel’s treatment of the Palestinians. If the 79% or any proportion of them should express outrage, or march in protest, it could not be said that their words or conduct would be antisemitic according to the long understood meaning of that term. It would not occur to any ordinary reasonable member of the public to think of criticism or protest in these circumstances as hostility towards or prejudice against Jews on account of their Jewishness.
119. ... It may well be correct that “most, but not all Jewish Australians” regard Zionism as “a core part of their Jewish identity”. That does not mean that anti-Zionists are hostile to that majority of Jews on account of their Jewishness; only that they hold a negative view of a political ideology with which the majority of Jews have chosen to identify. A contestable political question does not lose its political character upon a large proportion of a particular confessional group taking one side of the issue and feeling that it is closely associated with their religious identity.
127. Police statements and intelligence reports uniformly described all the defendant’s spray-painting as antisemitic. That was taken up in the prosecution’s submissions to the Magistrate, without reflection or analysis so far as the records show.
128. The following extracts from the Magistrate’s remarks on sentence illustrate that his Honour did not see the difference between the explicit anti-Israel sentiment of the graffiti and hostility to Jews: ...There is, and was, no doubt that the slurs were antisemitic, and when understood in isolation reflective of hatred and prejudice towards Jewish people and the state of Israel.
129. With respect, the Magistrate erred in finding that “Fuk Israel” is an antisemitic phrase and that it was “reflective of”, or “undoubtedly convey[ed] a message of”, “hatred and prejudice towards Jewish people”.Likewise, in paragraphs 130 to 132, about the Crown Solicitor and Director of Public Prosecutions:
130. After the Magistrate’s decision, the Crown Solicitor’s submissions to the State Parole Authority of 2 December 2024 continued to conflate contempt for Israel with antisemitism.
131. The advocate for the Director put to Judge M Williams SC the following arguments, which in my opinion were extravagant and untenable:[...] objectively these offences involved vilifying the Jewish community.
132. ... the State’s various legal agencies have either been unaware of the division of Jewish opinion, or they have not perceived it as incongruous to characterise as antisemitic a curse that reflects, albeit in unreasoned terms, strong disapproval of Israel as felt by many Australian Jews.
In the authority’s view, the offending was reflective of a deep-seated adherence on the part of the offender to an extremist ideology of an antisemitic character.