Federal Court of Australia

Wertheim v Haddad [2025] FCA 720

ORDERS

THE COURT DECLARES THAT:

1. William Haddad contravened s 18C of the Racial Discrimination Act 1975 (Cth) by delivering each of the following three lectures, being lectures that were reasonably likely in all the circumstances to offend, insult, humiliate or intimidate Jewish people in Australia and that were made because of the race or ethnic origin of Jewish people in Australia, and that were not made reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for any genuine purpose in the public interest:

(a) The Jews of Al Madina Part 1 (3 November 2023);

(b) The Jews of Al Madina Part 2 (10 November 2023); and

(c) The Jews of Al Madina Banu Quraytha Part 3 (17 November 2023).

2. The Al Madina Dawah Centre Inc contravened s 18C of the Racial Discrimination Act 1975 (Cth) by publishing on Rumble each of three lectures delivered by William Haddad in November 2023, and publishing on Facebook one of those lectures, being speeches that were reasonably likely in all the circumstances to offend, insult, humiliate or intimidate Jewish people in Australia and which were made and published because of the race or ethnic origin of Jewish people in Australia, the act of publication not being done reasonably and in good faith in the course of a publication for a genuine purpose in the public interest or in publishing a fair and accurate report of any event or matter of public interest.

THE COURT ORDERS THAT:

1. Each of the respondents:

(a) remove The Jews of Al Madina Parts 1, 2 and 3, or any excerpt part thereof, from any internet page or other publication in the control of that respondent;

(b) in relation to any source of re-publication over which neither respondent has control, but of which either respondent is or is made aware, take all reasonable steps to bring the orders made in this proceeding to the attention of the publisher and to request that the speeches be removed; and

(c) not cause words, sounds or images to be communicated otherwise than in private, which attribute characteristics to Jewish people on the basis of their group membership and which convey any of the imputations identified at paragraph [158] of the reasons for judgment delivered today.

2. Within seven days of these orders, the applicants file and serve any additional written submissions in support of relief they seek with regard to the publication by the respondents of any notices of their contravention of Pt IIA of the Racial Discrimination Act 1975 (Cth).

3. Within 14 days of these orders, the respondents file and serve any written submissions in response.

4. The matter be listed by arrangement between the parties and the Court on a date after the date in order 3 for hearing on the relief referred to in order 2, decision on which is in the meanwhile reserved.

5. The respondents, jointly and severally, pay the applicants’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1 The applicants claim that each of the respondents contravened s 18C of the Racial Discrimination Act 1975 (Cth) (RDA). The claim arises out of five “speeches” delivered by the first respondent, William (formerly Wisam) Haddad, in November 2023 and published to social media accounts associated with the second respondent, the Al Madina Dawah Centre Inc (AMDC). The claim asserts that the speeches constitute acts, otherwise than in private, that were reasonably likely, in all the circumstances, to offend, insult, humiliate and intimidate Jewish people in Australia and they were done because of the race or ethnic origins of Jewish people in Australia.

2 The respondents dispute that the speeches contravene s 18C. They also assert a number of specific defences in the alternative. They rely on the exemption in s 18D(b) of the RDA, saying that the speeches were made reasonably and in good faith in the course of a statement, publication, discussion or debate made or held for a genuine purpose in the public interest. The second respondent also relies on s 18D(c)(i), saying that if it is held that it published the speeches to social media – which it denies – it did so reasonably and in good faith as a fair and accurate report of an event or matter of public interest.

3 If the respondents fail on those issues, they raise two constitutional defences. First, they submit that Pt IIA of the RDA, which contains ss 18C and 18D, is beyond the legislative power of the Parliament as being in conflict with the implied freedom of political communication. Secondly, they submit that Pt IIA is contrary to s 116 of the Constitution which, relevantly, proscribes the Commonwealth from making any law “for prohibiting the free exercise of any religion”.

The parties

The applicants

4 The first applicant is Peter Wertheim AM. Mr Wertheim is Jewish. He is employed as a co-Chief Executive Officer of the Executive Council of Australian Jewry. Mr Wertheim was born in Australia. In 2003, Mr Wertheim was appointed by the Governor-General as a Member of the Order of Australia for services to the Jewish and wider communities and for work in a variety of projects promoting communal harmony and understanding.

5 The second applicant is Robert Goot AO SC. Mr Goot is Jewish. From 1980 to 2024, Mr Goot practised as a barrister, taking silk in 2000. He is Deputy President of the Executive Council of Australian Jewry. Mr Goot was born in New Zealand but is now an Australian citizen. He has been recognised for his services to the Jewish community by the appointment by the Governor-General as a Member (in 1988) and an Officer (in 2020) in the General Division of the Order of Australia.

The respondents

6 Mr Haddad is a practising Muslim. His parents came to Australia from Lebanon in 1971. He was born in Australia and is an Australian citizen by birth. He is a carpet layer by trade and operates his own carpet laying business in Sydney. At the time of delivering the impugned speeches, Mr Haddad was 43 years of age. He is married with children. He is also known in the Islamic community as Abu Ousayd which means “father of Ousayd”, Ousayd being the name of his eldest son.

7 AMDC is an incorporated association registered under the Associations Incorporation Act 2009 (NSW). AMDC runs the Al Madina Dawah Centre (the Centre), a Muslim religious centre located on Kitchener Parade, Bankstown, NSW. The Centre was established under the auspices of AMDC by Mr Haddad and other community members in about April 2021. AMDC has a governing committee of five members, one of whom is Mr Haddad. Mr Haddad is the public officer of the association. He accepted in cross-examination that he is “in charge” of AMDC (T116:34).

8 Mr Haddad is a part-time teacher and Islamic preacher at the Centre, although at the time of the speeches that are the subject of this case he had no accreditation as a teacher or a preacher. Sheikh Adel Ahmad Muhammad Ibrahim, the expert witness on Islamic scriptures called by the respondents, explained that “[i]n Islam, all Muslims are encouraged to spread the word of Allah, and thus, even those with little knowledge can preach for and about Islam, but kindly, with precision and honesty.” He said that although no formal qualifications are required, “it is customary and acceptable to have sufficient knowledge and study, particularly of the Qur’an and Sunnah, for a person to be in a position to teach or preach about Islam.”

9 Having mentioned the Qur’an and Sunnah, it is just as well to interpolate to identify the basic texts underlying Islamic theology – noting that the interpolation is drawn from the evidence of Sheikh Ibrahim who is an adherent of Sunni Islam and that Shi’a Muslims may have a different belief on some aspects of it. The Qur’an is believed by Muslims to be the word of Allah that was revealed to the heart of the Prophet Muhammad through the Angel Gabriel which Allah has preserved from distortion until the Day of Judgment. The Qur’an consists of 114 surahs (or verses), divided into chapters on creed, history, jurisprudence and society, serving as a moral guide for monotheists in Islam.

10 Sunnah is the practice and tradition of the Prophet Muhammad, which encompasses his sayings, actions, approvals and rejections. They are recorded in the Six Books of the Hadith. The Hadith is considered the secondary source of legislation in Islam and carries significant weight in Islamic teachings, practices and rituals.

11 Tafsir is the discipline dedicated to interpreting and explaining the Qur’an and clarifying its meanings, objectives, teaching and the rulings derived from it. Tafsir is a field in Islamic study of some scholastic complexity which considers the meanings of the Qur’an’s surahs.

12 Mr Haddad became involved in Muslim youth work in his 20s through which he became deeply immersed in Islam. He studied Islamic scriptures, creed, jurisprudence and history in formal and informal settings from time to time and became increasingly involved in teaching youth and leading Friday prayers. At one time, he established an Islamic bookstore which also had a prayer space at the back.

13 It was against that background that Mr Haddad became involved, with others, in establishing AMDC and the Centre. The Centre was initially established at smaller premises where Mr Haddad delivered sermons twice a month on Fridays and taught lessons on Islam once a week to youth. In about 2022, the premises became too small for the Centre’s growing needs so it was moved to its present premises.

14 In 2023, Mr Haddad enrolled in an online Islamic Accreditation Program through Sheikh Ibrahim Barakat who is said to be a well-known Sheikh in Lebanon. The course ran for about a year and was based on the five books of Islam and Creed. Mr Haddad successfully completed the course and received an accreditation known as Ejeza on 12 June 2024. Ejeza refers to the authorisation and formal recognition of study in a particular area of Islam which licenses the accredited person to pass on knowledge and teaching in the accredited area to congregants. As mentioned, Mr Haddad had not yet obtained this accreditation at the time of the speeches.

The speeches and their context

15 The unavoidable geo-political backdrop to this case is the longstanding conflict between Israel and the inhabitants of the Palestinian Occupied Territories, in particular the territory of Gaza (also referred to as the Gaza Strip). Neither side of this case has sought to prove, and it is not necessary for its determination to make findings on, any events that have occurred in Israel and Palestine. However, the understandings of those events that have been engendered in people in Australia by reportage of them are part of the relevant context to the immediate issues in the case. Most particularly, that is to the imputations conveyed by the speeches, Mr Haddad’s explanations of why he made the speeches and in the terms that he did and the likely reactions of Jewish people in Australia to the imputations conveyed by the speeches. In what follows, I do not intend to make any findings about the events themselves; my aim is only to identify some of what was reported about them in order to identify what would likely be known to or believed by people in Australia.

16 On 7 October 2023, Hamas, a widely designated terrorist organisation that exercises a limited form of self-government in Gaza, launched attacks on Israel of unprecedented scale. It was reported that 1,400 people, most of them civilians, were killed, some 3,300 were injured and more than 200 civilian and military captives were taken hostage. Within hours, Israel declared war on Hamas and Israeli forces launched air bombardments on Gaza killing hundreds of persons including children and other civilians. Hamas and other armed groups continued to fire indiscriminate rockets into civilian areas in Israel, and Israeli forces or settlers killed a large number of Palestinians in the occupied West Bank.

17 In the following days there were mass public gatherings of people in Sydney, in particular at the Opera House, variously expressing support for Palestine and condemnation of Israel. Some of the reporting of the gatherings in the Australian media characterised the gatherings as supportive of Hamas and antisemitic. As with the events in Israel and Gaza, I am not called upon to make any findings on the nature of the gatherings or what messages they were intended to or did in fact convey. There is no dispute, though, that those matters caused Jewish people in Australia to feel threatened and unsafe in a way that they had never previously felt; they perceived there to be anger directed at them as Jews because of events in Israel and Gaza and in particular the bombardment and blockade of Gaza by the Israel Defense Forces (IDF). From the evidence of Mr Wertheim, and in any event as a matter of judicial notice, it is clear that not all Jews in Australia or Israel support Israel’s occupation of Palestine or the actions of the IDF in killing large numbers of civilians in Gaza. Nevertheless, Jews generally in Australia regardless of their views on those matters were made to feel threatened or unsafe by actions taken in Australia following the commencement of the bombardment of Gaza.

18 On 15 October 2023, 880 scholars and practitioners of international law, conflict studies and genocide studies announced that they considered that the crime of genocide was possibly being committed by Israeli forces against Palestinians in the Gaza Strip. On 2 November 2023, a group of independent United Nations experts said that time was running out for Palestinians who were at “grave risk of genocide”. The Israeli Defense Minister at the time, Yoav Gallant, was reported as having said at the start of the war: “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel; everything is closed. We are fighting human animals, and we are acting accordingly.”

19 It was in that context that, in October 2023, Mr Haddad was asked questions about the events in Gaza by people who attend at the Centre, and concerns were raised with him about those events. As a result of those questions and concerns, Mr Haddad decided to deliver a series of lectures titled “The Jews of Al Madina” (or “The Jews of Medina”). He said in his affidavit that he “decided to prepare sermons and lectures which might provide support and spiritual comfort to those who have been directly and indirectly adversely affected by islamophobic acts against them, and in particular, the actions of the IDF in Gaza since 7 October 2023.” He said that the message that he was trying to deliver was:

do not be afraid nor distressed as this conflict between the Jews and the Muslims is not new. This conflict is continuing from many years ago from the times of Al Madina and will come again at the end of time.

20 Mr Haddad also said that his “intention was to draw parallels between the acts that were done by the Jewish tribes at the time of Al Madina [ie in the seventh century in a locality which is now part of present-day Saudi Arabia] as recorded in Islamic religious texts and the individuals who have committed what the UN Special Rapporteur described as acts that violate international law – killing and genocide of humans.”

21 The lecture series became the three lectures referred to as Speech A, Speech C and Speech E. Each lecture focussed on a different one of the three Jewish tribes of Medina in the seventh century, Speech A on the Banu “Kaynuka’a” (also known as Banu Qaynuqa) (ST6:26), Speech C on the Banu Nadir (ST39:23) and Speech E on the Banu Qurayza (ST67:24). The lectures were delivered at the Centre on successive Fridays, namely 3, 10 and 17 November 2023, at about 7.30pm after a worship service. On each occasion, there were about 40 of the Centre’s congregants present.

22 On each occasion, the lecture was video recorded for it to be uploaded to social media platforms, and on each occasion the video was uploaded. There is a dispute about the circumstances in which the recordings were made and uploaded, and the involvement of Mr Haddad and the Centre in that. I will return to that dispute in the next section of these reasons. The recordings are in evidence, as are agreed transcripts of them. I have considered the recordings and the transcripts.

23 As a result of some coverage of Speech A in the news media, Mr Haddad and someone associated with the Centre who is referred to as “Brother Ismail” were interviewed by someone identified in the transcript only as “HOST”. The interview is referred to as Speech D. Although the applicants pleaded and in his affidavit Mr Haddad said that the interview was given on 14 November 2023, it is apparent from a reference to it in Speech B that it must have been given before Speech B, that is, on or before 10 November 2023. Mr Haddad accepted that in cross-examination. Speech D was video recorded and the recording and an agreed transcript are in evidence.

24 Importantly, the pleaded case against Mr Haddad and AMDC does not rely on anything said by Mr Ismail in the interview. The case is based on things said by Mr Haddad and then published by AMDC on social media.

25 Speech B was delivered as a sermon, or khutbah jummah, at the Centre at about 1pm on Friday 10 November 2023 as part of the Friday prayers. It is titled “Murdered by Israel Khutbah Jummah”. There were approximately 300 to 400 congregants in attendance. Speech B was also video recorded, and the recording and an agreed transcript are in evidence.

26 Thus, in summary, the speeches given by Mr Haddad that are the subject of this case are:

(1) Speech A: a lecture, “The Jews of Al Madina, Part 1”, 3 November 2023;

(2) Speech B: a sermon, “Murdered by Israel Khutbah Jummah”, 10 November 2023;

(3) Speech C: a lecture, “The Jews of Al Madina, Part 2”, 10 November 2023;

(4) Speech D: an interview, “Media Response to Reality of World Palestine”, before Speech B; and

(5) Speech E: a lecture, “The Jews of Al Madina Banu Quraytha, Part 3”, 17 November 2023.

27 The speeches are all predominantly in English although there are occasional Arabic prayers, phrases or references. Aside from short opening prayers, the terms of which do not bear on the meaning of the speeches more generally, the Arabic words and phrases are terms of respect for Allah and the Prophet or nouns and proper nouns.

Publication of the speeches on social media

28 Mr Haddad personally maintained and controlled several social media accounts. They included an Instagram account in the name of Abu Ousayd to which he posted “pretty much” daily (T119:28-32). At the time of the hearing, the account had approximately 10,000 followers. Mr Haddad said that he was “not sure” whether it had something like that number in November 2023 (T120:38-46), although I infer that it had a substantial following at that time because he would be expected to be know if it did not. His social media accounts also included a SoundCloud account called “Abu Ousayd Official” to which he posted audio recordings of his sermons and lectures (T129:32-43).

29 There was also a Telegram channel called “Abu Ousayd Lectures MP3” although its opening page records that it is “not affiliated with Abu Ousayd”. Mr Haddad said that it was not opened by him but he knew that his sermons and lectures were posted to it by someone he knows who spoke to him about the channel “at times” (T128:11-129:4). Mr Haddad said that he would take the audio from the Telegram channel to post it to his SoundCloud account (T130:1-10).

30 On 1 November 2023, Mr Haddad posted to his Instagram account a flyer advertising his three-part lecture series titled “The Jews of Al Madina”. The flyer advertised that the first lecture would be given on 3 November 2023 at 7.30pm at the Centre. Mr Haddad posted that the lecture would be recorded and then uploaded on YouTube. On 5 November 2023, Mr Haddad posted a flyer to his Instagram account announcing that part one of the lecture series was available on YouTube with a link in the “bio”, ie the heading to the account.

31 At the time of the speeches, there was a YouTube channel account in the name of AMDC to which the speeches were published, although the channel was subsequently closed down by YouTube. Mr Haddad described it in Speech B as “our YouTube channel” (ST28:4). There were also, and there continues to be, public (ie not private or restricted) accounts on Rumble and Facebook in the name of AMDC. Rumble is a video sharing platform similar to YouTube.

32 Each of the speeches was published on the AMDC Rumble page in around November or December 2023 and remained accessible until at least March 2024. Speech B remains accessible on the AMDC Rumble page. Speech A was published on the AMDC Facebook page by way of a link to YouTube on 5 November 2023.

33 It was pleaded by the respondents that the Rumble and Facebook accounts, or pages, were maintained by volunteer community members of AMDC and were not maintained or overseen by AMDC or Mr Haddad. Mr Haddad’s evidence in chief was that he did not personally establish those accounts or make or authorise posts to them. There was otherwise no evidence adduced by the respondents as to who set up the accounts or who maintained them.

34 Mr Haddad’s evidence in cross-examination included the following. He knew that his lectures and sermons were being recorded (both audio and video) to be published online on AMDC’s YouTube and Rumble channels (T124:40; T130:30-36). He knew, in November 2023, that a sermon or lecture that he gave at the Centre was very likely to turn up on YouTube, Rumble, Telegram and SoundCloud (T131:21-23). The speeches were delivered at the Centre in front of a backdrop that recorded the name and logo of the AMDC as well as the names and/or logos of the following social media platforms: YouTube, Instagram, Facebook, Telegram and Paltalk (T123:23-26).

35 AMDC engaged and paid a media team based initially in Kashmir but later in Indonesia to do particular media projects. Those included the flyer advertising the lectures that Mr Haddad posted to Instagram and which included that the lectures would be available on YouTube (T148:1-15). That team would post things onto social media if Mr Haddad asked them to, and they would take things down if he asked them to; they would follow his instructions; he communicated with them (T119:44-T120:9).

36 AMDC submits that the publication of the speeches on the Facebook and Rumble accounts – which is the only publication by AMDC that the applicants rely on in the pleadings – cannot be attributed to AMDC. It makes that submission on the basis that there is no evidence showing that anyone uploaded the videos of the speeches to those accounts with the authority of AMDC.

37 That approach to the issue of attribution is too narrow. Given Mr Haddad’s relationship with AMDC – founder, leader, public officer, member of the management committee, preacher and teacher, and “in charge” – I am satisfied that his state of mind in relation to the delivery and publication of the speeches is to be attributed to AMDC. Further, Mr Haddad participated in the interview that is Speech D to answer questions about the first lecture that had been given at the Centre. In that interview Mr Haddad was introduced and thereafter referred to as a “spokesman” for AMDC, implying that AMDC took responsibility for the lectures (ST55:6; ST56:1). Mr Haddad did not correct that description and he at times explicitly spoke on behalf of AMDC (eg ST55:18; ST56:30).

38 On those grounds, Mr Haddad’s relevant state of mind and actions are attributable to AMDC.

39 Mr Haddad knew that the speeches were going to be uploaded to the AMDC social media accounts, including Rumble and Facebook. He delivered them at the Centre in front of the AMDC backdrop which advertised on which social media platforms AMDC had a presence, including Facebook. AMDC engaged and paid a media team to prepare advertising for the lectures, including that they would be available on social media, and which uploaded items to social media accounts in AMDC’s name. To AMDC’s knowledge (through, at least, Mr Haddad), the relevant social media accounts all used AMDC’s name and portrayed to the world that they were the accounts of AMDC. I am satisfied that even if the social media posts were actually done by volunteers, as all officers of AMDC would in any event appear to be, the posts were done with the knowledge and acquiescence of the AMDC management committee. Since the posts represented to the world that they were the posts of AMDC, AMDC cannot now resile from the posts being attributed to it.

40 Those matters taken together constitute a sufficient basis to satisfy me that the publication of the speeches on social media, including Facebook and Rumble, were the acts of AMDC.

41 I also take into account that the respondents pleaded and maintained a defence until after the close of evidence that the speeches were not delivered “other than in private”. Once it came out in Mr Haddad’s cross-examination that he always knew that the speeches were going to be published to social media, including he himself giving notice on Instagram of that fact, that defence turned out to be unsustainable; it was dishonest. I am satisfied that it was for the same reason that the respondents did not adduce evidence to substantiate AMDC’s defence that the social media posts of the speeches were not made by it – it was a dishonest attempt to hide the truth. On a matter peculiarly within their knowledge, the respondents failed to adduce any positive evidence of just how the social media accounts were operated, who operated them and in what way. I draw the inference that they did not do so because that evidence would not have assisted their case.

The racist imputations of the speeches

42 The starting point is to identify what the speeches mean, and more particularly whether the speeches convey the “imputations” that the applicants plead that they convey. I will come separately to consider whether those meanings are reasonably likely in all the circumstances to offend, insult, harass or intimidate the identified group of people. However, in the exercise of assessing whether the pleaded imputations are conveyed by the speeches it is necessary to identify the perspective from which that is done. Doubtless it is an objective assessment, but is it the perspective of the “ordinary, reasonable reader” (or, in this case, listener) that is the construct of defamation law, or is it the ordinary, reasonable member of the relevant group? Neither the parties’ submissions nor the authorities canvass this question.

43 The asserted cause of action is based on the speeches themselves, ie the “act” referred to in s 18C said in this case to be unlawful is the act of delivering (and publishing) the speeches. The applicants use the device of identifying “imputations” to isolate the “stings” in the speeches that are said to cause offence, etc. In answering the question whether the identified act is reasonably likely to offend, etc, “the conduct should be analysed from the point of view of the hypothetical representative in relation to the claim that the group of people were offended”: Eatock v Bolt [2011] FCA 1103; 197 FCR 261 at [250] per Bromberg J. The “ordinary” or “reasonable” member or members of the group are to be isolated so that reactions that are extreme or atypical will be disregarded: Eatock v Bolt at [251].

44 In my view, it is the perspective of that hypothetical group member that must be adopted in assessing, objectively, whether the imputations are conveyed by the speeches. That is because the assessment of the likely effect of the speeches on that hypothetical person and their reaction cannot be done in relation to a meaning that that person would not understand the speeches to convey, and it can only be done in relation to a meaning that that person would understand the speeches to convey. That said, I am not sure that it makes any difference at this stage of the analysis – the speeches will convey the same meanings to the ordinary, reasonable listener who is a Jew in Australia as they do to the ordinary, reasonable listener who is conceived of as a member of the broader Australian community. It is therefore possible to proceed to assess whether the speeches convey the pleaded imputations without first having to identify the relevant characteristics of the hypothetical ordinary, reasonable Jew in Australia.

Speech A

45 After some introductory references paying respect to Allah and Muhammad, the lecture that is Speech A opens with Mr Haddad saying that what is being witnessed in Gaza is at the hands of “Banu Israel”, “the Jews” (ST1:25-27). He explains in his affidavit that Banu Israel refers to the descendants of the Prophet Jacob who formed the twelve tribes of Israel, ie the Jewish race. He also says in the speech that “if you want to call them Zionists, call them Zionists” but that “[i]n essence there is no difference” (ST1:27-28; see also ST19:7-21).

46 It is immediately to be observed that in the lecture Mr Haddad draws no distinction between the Jews of the ancient tribes and the Jews of today, and he draws no distinction between Jews who adhere to the political ideals of Zionism, ie the establishment and maintenance of a Jewish state or homeland, and Jews more generally. That is to say, his opening message is that Jews are Jews and they are all the same. It is in that context that the ordinary, reasonable listener to Speech A would understand the later references to the character of Jews in ancient times, ie they have that character now too.

47 Indeed, the project of the lecture series was to explain the events in Gaza with reference to the ancient conflict between Jews and Muslims at the time of the Prophet. The unavoidable premise of that project is the commonality between Jews then and Jews now, or their consistency of character and purpose. Without that, there is no point to the project. It is therefore not to the point that, read in isolation, some of the passages in Speech A are seemingly directed only to the Jews of Medina in the seventh century.

48 Further, there are several other places in the lecture where Mr Haddad expressly draws the link between ancient Jews and Jews today. For example, he says that “we need to know where they came from, what they did at the time of the Messenger of Muhammad, what they continue to do now and what they will continue to do in the future” (ST2:15-17, emphasis added). Elsewhere, he refers to “the arrogance that they have and had and still have with the creator of the heavens and the earth” (ST3:23-24). Mr Haddad likens the division between the “ultra-Orthodox Jews” and “Zionists” of the present day to the historical discord between Jewish groups in Medina (ST6:38-7:2). He says the Jews of Medina “were holding a position of wealth in the society, and they would use this wealth in order to have authority over the weak, just like they do today” (emphasis added), going on to list a variety of modern businesses purportedly controlled by Jews (ST7:15-19). Particularly salient is where Mr Haddad says the Prophet “brought peace between them [the Aus Wal Khazraj, an Arab tribal grouping]. Now this peace is bad for the Jews. There’s no business if the Muslims have peace, there’s no business for us. There goes our media, there goes our Hollywood blockbuster films.” (ST13:2-7.) It is illustrative of the ease with which Mr Haddad in this and the other lectures moves from discussion of the historical Jews of Medina to the Jews of the present day.

49 The speech goes on to say a number of disparaging things about Jews. The applicants have pleaded a number of imputations in the lecture, all of which are denied by the respondents. It is therefore necessary to consider each in turn.

(a) Jews since the time of Muhammad have been a very mischievous people

50 In the lecture, Mr Haddad says that Jews “have been a very mischievous people causing fitna [ie strife or conflict] even before the coming of Muhammad” (ST1:38-39). He says that Jews are “a very rebellious people … [c]ausing a lot of mischief … [c]ausing mischief in their own time with their own prophets and own people” (ST5:8-11).

51 The respondents submit that references to “mischief” in these passages are, objectively, solely to “the historical people of Israel”, but I do not accept that in light of the present-day comparisons invoked and sought to be invoked by Mr Haddad. In the alternative, the respondents say reference is being made only to “the Jews or Zionists of Israel, or to Jews of faith” rather than Jewish people in terms of ethnicity, including those in Australia. I do not accept that either. It is inconsistent with Mr Haddad later saying, in relation to bombardment by Israel in Gaza, “nobody come and tell me but brother this is the Zionists it’s not really the Jews there was no Zionists at the time of the Prophet” (ST19:9-11). It is also inconsistent with his references to purported Jewish ownership of “Coca-Cola, and Nike, and McDonalds, and Starbucks” (ST7:18-19) and “Hollywood blockbuster films” (ST13:6), antisemitic tropes about Jews in business that are not limited to Jews in Israel or Jews of faith.

52 The only matter which potentially supports a distinction between religion and ethnicity is in his discussion of Al Hasan ibn Salam, a Jewish rabbi who converted to Islam. He is described in neutral language as “widely respected … even by those that were not Jewish” (ST8:35-36), with his Jewish identity mentioned in the past tense (“[b]ut when he was a Jew…”) (ST12:4). Those references to one particular religious Jew do not serve to detract from the generalised refences to Jews being understood as references to Jews regardless of their religiosity. Indeed, that Mr Haddad says that Al Hasan ibn Salam, when he was still a rabbi and before he converted to Islam, was “widely respected and honoured … even by those that were not Jewish” is inconsistent with the submission that the disparaging things that he says about Jews would be objectively understood as being confined to religious Jews.

53 The pleaded imputation is therefore established.

(b) Jews since the time of Muhammad have been people who oppress one another and also used to oppress their own prophets

54 In the lecture, Mr Haddad says that if one looks into the history and into their books one finds that Jews “were a people who used to oppress one another and they also used to oppress their own prophets … they used to kill their own prophets” (T1:39-42).

55 The respondents seek to distinguish the historical or religious context of these remarks from Jews generally, but for the same reasons addressed above, that cannot be accepted. The attribution of negative characteristics to the ancient Jewish tribes would be understood by the ordinary, reasonable listener to apply equally to modern Jews.

56 The pleaded imputation is therefore established.

(c) It is important that people learn about the Jews because they are a very mischievous people

57 In substance, this is the same imputation as that in (a) and the applicants rely on the same parts of Speech A in support of it. In the circumstances, it adds nothing and can be put to one side.

(d) Towards the end of time Muslims will fight Jews and the Jews should and will be killed

58 The relevant passage of the lecture is this (ST2:7-13):

And we need to learn about these people because these are the people that we are going to always be dealing with until Allah sends Imam al-Nabi. These are the people that when it comes to the end of time, Allah, would cause miracles for the nation of Muhammad to see and hear with their own eyes and ears. Towards the end of times when the Muslims will be fighting the Jews, the trees will speak, the stone will speak, and they will say, O Muslim, O believer, there is a Yahudi [Jew] behind me, come and kill him.

59 Versions of the story of the miracle of the stones and trees warning Muslims of where Jews are hiding are found in the major Hadith collections, including the two most important Sunni collections, Bukhari and Muslim. Sheikh Ibrahim quotes from Sahih Bukhari (Hadith No 3037) as follows:

The Prophet, SAWS, said: Muslims will fight the Jews and will be victorious over them, until the trees and stones will say: O Muslim, O servant of Allah, here is a Jew, come and kill him.

[SAWS is an abbreviation for the phrase “Peace be upon him” which is often said by Muslims after saying the name of the Prophet.]

60 Professor Gabriel Reynolds, the expert witness on Islamic scriptures called by the applicants, explained that that Hadith is one of a number of apocalyptic traditions which speak about the unification of the world under Islam in the end times. Sheikh Ibrahim explained that the Hadith tells us that in those final hours on earth, there will be rivalry between Jews and Muslims.

61 The respondents accept that Mr Haddad refers “to a scriptural vision of a future conflict between Jews and Muslims”, but they deny that this would be understood as saying that Jews deserve to be killed and should be killed now.

62 In my assessment, Mr Haddad’s prefatory statement “we need to learn about these people because these are the people that we are going to always be dealing with” means that in the relevant passage he would be understood to be saying that Jews and Muslims are in an eternal conflict which will end only when the Jews are killed. In that sense, he would be understood to be saying that Jews deserve to be killed and that they should be killed, but I do not think that he would be understood to be literally calling for people to go out and kill Jews; I do not think that the ordinary listener would understand Mr Haddad in such a literal fashion. Nevertheless, the essence of the imputation is made out – towards the end of time (ie sometime in the future), Muslims will fight Jews and the Jews should and will be killed (sometime in the distant future).

63 The pleaded imputation is therefore established.

(e) People need to be taught about Jews, about their actions, past and present, because the Jews are very mischievous people

64 This imputation is also in substance the same as that in (a) above and adds nothing. It too can be put to one side.

(f) Jews at the time of Muhammad and to this day are arrogant people who always think that they are better or the best people

65 In the lecture, after discussing the recalcitrance of the Jews of Medina in believing the revelations of the Prophet, Mr Haddad says “this is the arrogance that they [Jews] had. They always think that they are the better, that they are the best” (ST2:36-37). In discussing their scepticism, he says “[t]his is the arrogance they have and had and still have with the creator of the heavens and the earth” (ST3:23-24).

66 The respondents say that Mr Haddad’s use of the present tense in these passages does not indicate reference to the modern day, noting he commonly uses the present tense when referring to historical events. Even accepting this to be true (which is doubtful in light of Mr Haddad’s stated objective of elucidating “what they [Jews] will continue to do in the future”), as I have already concluded, the recounting of these historical matters would be understood to identify the enduring characteristics of Jewish people.

67 The pleaded imputation is therefore established.

(g) Jewish arrogance extends to their conduct with the Creator of the heavens and the earth

68 This imputation is in substance the same as that in (f) above. It can be put to one side.

(h) The Talmud teaches Jews and/or it is a Jewish characteristic, to be a murderous and very rebellious people who cause mischief

69 With respect to “mischief”, this is also the same imputation as that in (a), founded on the same passages. The reference to causing mischief therefore adds nothing and can be put to one side.

70 However, Mr Haddad also refers to “proof from their own books that they stoned their own prophet” and accounts of “Jews killing their prophets” (ST4:6-23), taken from the Talmud which he describes as “a book that they [Jews] follow more than the actual Torah today” (ST5:4-5). These statements attribute the characteristics of being murderous and rebellious to Jews but they do not say that the Talmud teaches Jews to have those characteristics.

71 The respondents continue to characterise this as being a purely historical discussion, a submission which I have already dealt with.

72 The pleaded imputation with respect to murderousness and rebelliousness as Jewish characteristics is therefore established.

(i) Jews are very shifty

73 In the lecture, Mr Haddad says Jews use the Hebrew language to converse where “they didn’t want the Arab to hear what the conversation was … Just like some parents they do today” (ST5:37-40) and that “they would use this to be very shifty with the people of Al Medina” (ST5:44).

74 The respondents say that the reference to “very shifty” is historical, which has already been dealt with – in context Mr Haddad would be understood to be saying that Jews were very shifty in ancient times which is also how they are today. There is otherwise no point to the tale he is telling.

75 The pleaded imputation is therefore established.

(j) Jews want to obtain money and power and for nefarious means

76 In the lecture, Mr Haddad says that the Jews of Medina held “a position of wealth in the society, and they would use this wealth in order to have authority over the weak, just like they do today” (ST7:15-17). The imputation is with regard to having authority over the weak, not the broader pleaded idea of “nefarious means”.

77 The respondents concede this has the appearance of being a generalised reference to present-day Jewish people but say that in context “they” refers to Israel and its supporters. There is no reason why the ordinary listener would understand “they” in that narrow way.  The reference to Jews of Medina would obviously be understood to be a reference to Jews in the distant past, and the use of “they” would be understood to be a reference to the Jews of today, “Medina” and “today” being the two different periods of time being referred to and “Jews” being common to both.

78 The pleaded imputation is therefore established with regard to wanting to obtain money and power which they use to have authority over the weak.

(k) People should boycott all Jewish businesses and products, which include (but are not limited to) Coca-Cola, Nike, McDonalds and Starbucks

79 The relevant extract from the lecture is (ST7:15-22):

So they were holding a position of wealth in the society, and they would use this wealth in order to have authority over the weak, just like they do today. You find that their hands are in everywhere, in businesses, in products that we should be boycotting, Coca-Cola, and Nike, and McDonalds, and Starbucks, and the list is long.

They had their hand everywhere, so they were in the media, as they do today, and they would use this against the weak, against the weak.

80 Quite literally, in this part of the lecture Mr Haddad is saying that Jewish businesses should be boycotted because Jews use their wealth in order to have authority over the weak. There is no support in the text for the respondents’ submission that Mr Haddad would be understood to be directing the criticism “at Israel and those whom Mr Haddad perceives to be its supporters”. The “they” with which the passage commences is a reference to Jews in Medina (ST7:2, 7). Once again, the reference then to “just like they do today” would be understood as a reference to the Jews of today. For that reason, I do not accept the respondents’ submission that because the businesses listed by Mr Haddad (Coca-Cola, Nike, McDonalds and Starbucks) are those associated as targets of the Boycotts, Divestments, Sanctions (BDS) movement against Israel, he would be understood to be making a criticism of Israel rather than of Jews. Mr Haddad would be understood to be making a point about Jews, past and present, in this passage.

81 The imputation is therefore established.

(l) The Jewish people control the media in order to: (i) abuse the weak; or (ii) to target Muslims

82 In the lecture, Mr Haddad says, of the Jews of Medina, “[t]hey had their hand everywhere, so they were in the media, as they do today, and they would use this against the weak, against the weak” (ST7:21-22).

83 Equally for this imputation, the respondents’ submission that “they” refers to Israel and its supporters alone, rather than Jews generally, is rejected. However, it may be said that Mr Haddad in referring to “the weak” was not referring to Muslims as a target, but more broadly to the public, such as in Australia, who might be exposed to “the media” complained of. There is nothing apparent in the surrounding passages to suggest the language of “the weak” is specific to Muslims.

84 The pleaded imputation, insofar as it relates to abuse of “the weak”, is therefore established. It is not established in relation to Muslims specifically.

(m) Jews own most banks and use oppressive interest loans knowing it is almost impossible to pay the loans back

85 In the lecture, Mr Haddad says of the Jews of Medina, “they had one of the most oppressive interest loans, so they would give a loan … that was impossible to pay back. And again this continues today, where we find the majority of banks are owned by the Jews, who are happy to give people loans, knowing that it’s almost impossible to pay it back” (ST7:22-27).

86 Present-day ownership of the banks and the conduct of oppressive usury is explicitly said to be by “the Jews” without qualification.

87 The pleaded imputation is therefore established.

(n) Jews are a slanderous people, troublemakers and schemers

88 In the lecture, aside from describing “mischief” in the manner set out above, Mr Haddad goes on to describe the Jews of Medina as being “a people inclined to slander and falsehood” (ST10:30-31) and “a slanderous people” (ST10:33). He describes how Al Hasan ibn Salam kept news of his conversion to himself because “he knew exactly, being that he was a Jew, how they are” (ST9:5-7) and that “[a]s soon as they [Jews of Medina] knew he was a Muslim, they slandered him and called him the worst of things” (ST12:9-10). He recounts how “[s]ome other Jews would pretend to be Muslim and they would plot against [the Prophet]”, causing “fitna” (ST12:12-14).

89 The respondents continue to characterise this as being a purely historical discussion, a submission which I have already dealt with.

90 The pleaded imputation is therefore established.

(o) The Jewish people actively seek to ensure there is no peace with Muslims so that they can profit in business and the media

91 In the lecture, Mr Haddad says, as extracted in the introduction to Speech A at [48] above, the Prophet “brought peace between them [the Aus Wal Khazraj]. Now this peace is bad for the Jews. There’s no business if the Muslims have peace, there’s no business for us” (ST13:2-5) and that “they [Jews] need the fitna between the Muslims and the fighting, the infighting of the Muslims in order to thrive, in order to grow” (ST13:8-9).

92 The respondents do not specifically address the allegation of the intentional sowing of division amongst Muslims levelled at Jewish people in these statements. It is clear on the face of the words used that Mr Haddad is concerning himself with Jews of the present day, especially when he draws comparisons with the media and Hollywood films in the immediately following line. That is how he would be understood.

93 The pleaded imputation is therefore established.

(p) Jews scheme to spark hate against the Muslims and are to blame for division, fighting and hate among Muslims

94 This imputation is in similar terms to (o) above, but the applicants rely on different passages in the lecture. In this respect, Mr Haddad says in the lecture that “[t]he division that we have in the Ummah today, if you really look at the right at the end of it or the beginning of it, who is starting it? The Jews” (ST14:17-18). He goes on to observe that there is political division in the Arab world regarding normalisation of relations with Israel, before reiterating that “you find it’s them [Jews] plotting and scheming against the Muslims, even today” (ST14:27-28).

95 The respondents say this is “clearly a reference to historical Jews”, followed by criticism of Arab countries for normalisation of relations. However, the literal words used by Mr Haddad refer to the division in the Ummah (ie the community of Muslims) “today”, citing the Jews as being responsible. Accepting there is a criticism of Arab countries for support of Israel, the passage nevertheless concludes with the statement that it is the Jews “plotting and scheming against the Muslims”. The lecture would be understood in that way.

96 The pleaded imputation is therefore established.

(q) Jews are cowards

97 In the lecture, Mr Haddad says the Jews of Medina retreated to their fortress “hiding like the cowards they are, like the cowards they are today, hiding in their tanks hiding behind their large walls” (ST17:31-33).

98 The respondents submit that this draws a parallel between the conduct of a historical grouping of Jews and the actions of present-day Israel. This can be accepted, as following the above passage Mr Haddad draws a comparison with “these Israelis of today with their propaganda saying that they have the strongest the fourth well most equipped army in the world but they can’t deal with a little group of people from Gaza” (ST17:39-41). However, the parallel is not exclusive. Mr Haddad would be understood at his word, ie that Jews are cowards, including Jews represented by the government or military of Israel.

99 The imputation of Jewish cowardice is therefore established.

(r) Jews inherently dislike Muslims and Arabs and want to fight the Muslims

100 In the lecture, Mr Haddad recounts the story of a Muslim woman in Medina being antagonised by Jews, precipitating a clash between Muslims and Jews (ST17:1-16), and further observes that “even these ultra-Orthodox Jews that you see today that are against Israel … they don’t really have a unity but … they’re still waiting for their Messiah to come and when that Messiah comes they’re still going to fight the Muslims … so don’t be fooled to think that these people are still your friends” (ST19:13-19).

101 The respondents submit that the reference to ultra-Orthodox Jews refers to the actions of Israel in Gaza. That cannot follow as a premise of Mr Haddad’s statement is that there are ultra-Orthodox Jews who are against Israel or Zionism more broadly, yet they are “still going to fight the Muslims”.  It goes beyond a mere exhortation for Muslims to “stand up for themselves”. The mentioning of ultra-Orthodox Jews as a comparator reinforces the obverse, that there is an inherent enmity between Jews and Muslims.

102 The pleaded imputation is therefore established.

Speech B

103 It will be recalled that Speech B was a sermon delivered to 300 to 400 people on a Friday at lunchtime. As reflected in its title, “Murdered by Israel”, the sermon takes the form of a commentary on events in Gaza and a series of exhortations to Muslims to support the Palestinians in Gaza and to continue resisting the Israeli state and its supporters. Unlike Speech A, there are no references to the Jews of Medina or to stories concerning ancient Jewish groups in Islamic scripture.

104 The content of Speech B is also different from Speech A in that Mr Haddad does not, for the most part, refer to Jews of the present day. Rather, the focus is principally on Israel and Zionists through the lens of the actions of the IDF in the conflict in Gaza.

105 I will now consider each of the applicant’s pleaded imputations from Speech B.

(a) Jews control the media and right wing politicians, who are like dogs under a Jewish leash and under their command

106 The passages of the sermon that the applicants rely on as establishing this imputation contain critical statements about Zionists and Israel, but not about Jews per se. Mr Haddad says in those passages that “certain media outlets owned ... by the Zionist entities are trying to sway public perception” (ST23:10-11). He speaks of “the terrorist state of Israel and its mass murdering machine, the IDF” (ST23:11-12). He says that “right wing politicians have stepped into backing Israel because Israel holds their leash” (ST23:16-17) and that “Zionist backed media agencies” dragged him and the Centre “through the mud” (ST27:13-16). The only mention of Jews is in a comparison that he draws between the “dirty games” of certain present-day media and the Nazi media “before the Jewish genocide” (ST27:20-21). He says that “the media is preparing the same ground once again but this time for a Muslim genocide” (ST27:21-22).

107 I do not consider that the ordinary, reasonable listener would understand Mr Haddad in these passages, either in isolation or in the context of the sermon as a whole, to be saying anything about Jews generally or about all Jews. He is quite specific in the sermon. He is critical of Israel, the IDF and Zionists. As mentioned, Jews are only mentioned in relation to the Holocaust, and not in a critical or disparaging way. It is only if the ordinary, reasonable listener heard the sermon in the knowledge of what Mr Haddad had said in Speech A that they might conclude that the references to Zionists was a reference to all Jews because of what he says about Zionists in Speech A. But that is not how Speech B is to be understood. The ordinary, reasonable listener would understand that not all Jews are Zionists or support the actions of Israel in Gaza and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or ethnic group. Needless to say, political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity: see South African Human Rights Commission on behalf of South African Jewish Board of Deputies v Masuku [2022] ZACC 5; 2022 (4) SA 1 (CC) at [4]-[6] and [161]-[166] per Khampepe J for the Court. Indeed, the applicants did not submit that it is. The conclusion that it is not antisemitic to criticise Israel is the corollary of the conclusion that to blame Jews for the actions of Israel is antisemitic; the one flows from the other.

108 Although there may have been a small overlap, Speech B was addressed to a different audience to Speech A and for a different purpose. It did not form part of the ongoing lecture series on the Jews of Medina in which there were cross-textual allusions. Listeners could not be expected to consider the content of Speech B together with the other speeches as part of a coherent body of work for a joint purpose. I do not consider that what was said in Speech A can cast light on the meaning of what was said in Speech B from the perspective of the ordinary, reasonable listener.

109 In the circumstances, the pleaded imputation is not established.

(b) The Jewish people are filthy

110 In the passage relied on by the applicants, Mr Haddad refers to a time in the future when Palestine is “cleansed from the filth of the Zionists” (ST26:18-21). Once again, this would not be understood by the ordinary, reasonable listener to be a reference to Jews generally. The context is the Israeli occupation of Palestine, in particular Gaza. Mr Haddad is speaking to a time in the future when Palestine is no longer occupied. That is not about Jews.

111 The imputation is not therefore established.

(c) Jews and their supporters are murdering cowards

112 The applicants rely on two passages from the sermon for this imputation. In the first, Mr Haddad repeats the story of the miracle of the stones and the trees in the “end of times” referred to above (at [58]) in relation to imputation (d) in Speech A. However, on this occasion the context is different. The immediate context is a discussion of critical media reaction to Speech A. He refers to the media having quoted what he said about the end of times when the Muslims will fight the Jews and he then recites the story. He then says (ST29:2-14):

But since this hadith angered you. I want to increase this anger. By quoting more scripture. ... Today I’m going to be a masjid [ie mosque] shock jock. And I want to rub salt in the wound. So on Monday they can have something to write about. So let us try your free speech. And if you thought that the hadith that I just quoted is extreme. Then there’s more coming.

113 That is followed by the reciting of brutal passages about killing and slaying which are by rhetorical device only later revealed as having been drawn from the Old Testament (which Mr Haddad refers to as “The Book of the Jews”) and the New Testament (ST29:16-31:12).

114 In that context, I am not persuaded that the ordinary, reasonable listener would understand Mr Haddad to be saying that modern day Jews are murderous or that they are cowards. The listener would not understand the cited Hadith to be taken literally when the device employed by Mr Haddad in comparing it to passages in Jewish and Christian texts is to say, in effect, that it should not be taken literally. That is to say, just as the Jewish and Christian religious texts contain brutal stories of slaying and killing, so do Islamic texts; he would be understood as making a criticism of the media that they had hypocritically overreacted to what he had said in Speech A.

115 The other passage relied on by the applicants is this (ST33:8-13):

Now as for the former Prime Minister Scott Morrison. In his trip to Israel. He says we are with Israel to the end. And we do not want a cease fire. And people are worried about myself and brother Ismail. In his little Mosul. You bunch of murdering cowards. You hypocrites.

116 The reference to “murdering cowards” is not to Jews. It comes in a discussion of the media that were critical of Speech A in which the words and actions of Israeli Prime Minister Benjamin Netanyahu, United States Senator Lindsey Graham, Israel’s Defense Minister (who was reported as having said that Israel would impose a complete siege of Gaza) and Prime Minister Morrison are discussed (ST31:14-33:13). They are all cited as not supporting a cease fire in Gaza and the media not being “worried” about them. In that context, it is clear that Mr Haddad is saying that the media that are “worried” about him and Mr Ismail, but not the officials that he mentions, are “murdering cowards” and “hypocrites”.

117 In the circumstances, the imputation is not made out.

Speech C

118 In the first half hour of the second lecture in the “Jews of Al Madina” series, Mr Haddad recounts various stories from the Hadith about the Banu Nadir, a Jewish tribe of Medina, and the conflicts that they had with followers of Muhammad (ST39–ST48). The central point of that part of the lecture is that the Prophet made an agreement with the Jews when he first entered Mecca that would allow Jews and Muslims to live together as separate nations coexisting peacefully – but the Jewish tribes kept breaking the agreement which led to conflict and much killing (ST48:6-28). Mr Haddad then abruptly turns to the question of “how to fix the problem between Palestine and the Israeli invaders” (ST48:30). The applicants rely on that section of the lecture for the imputations that they plead.

(a) Jews constantly break their agreements

119 In the lecture, Mr Haddad says that the best way to fix the problem that he had identified is to return to the agreement that Muhammad had first drawn up with the Jews of Medina but, as his stories from the Hadith had shown, “they are a people who constantly break their agreements as they are doing right now to the Muslims of Gaza, to the Muslims in Palestine” (ST48:36-38). Mr Haddad then returns to a story of Jews betraying Muhammad and breaking “the treaty, the agreement” when they “conspired” to kill him by dropping a rock on him (ST49:35-36, 41). He later says that “the hatred between Jews and Muslims” started when Jews started breaking their agreements with the Prophet and that “the enmity that we see today is ... because their forefathers had shown the same enmity to the Prophet” (ST53:13-17).

120 The ordinary, reasonable listener to the lecture would understand Mr Haddad to be equating the ancient Jewish tribes, and their character of breaking solemn agreements, with the Jews of today; they would understand Mr Haddad to be saying that Jews constantly break their agreements and cannot be trusted. I do not accept, as submitted by the respondents, that the lecture would be understood only as drawing a comparison of behaviour in breaking agreements between the ancient Jewish tribes of Medina and the modern Israeli state – Mr Haddad said explicitly that “they are a people” who constantly break their agreements which would be understood as a reference to the racial or ethnic group known as Jews.

121 The pleaded imputation is therefore established.

(b) Jews are a conspiratorial people

122 In addition to the passages relied on for the imputation with regard to breaking agreements, the applicants rely on a reference by Mr Haddad to “a vile Jew” (ST39:24-25) and to him saying that the Jews of Medina were “always conspiring against [the Prophet] and against the Muslims” (ST53:10-11).

123 I accept the submission of the respondents that the reference to “a vile Jew” is to a particular person and that it would be understood in that way. Mr Haddad refers to how “the books of Sira described” this person in that manner (ST39:24). That particular phrase, therefore, does not support the pleaded imputation.

124 As to the other passages, Mr Haddad’s reference to Jews conspiring against the Prophet and against Muslims is a historical reference that is drawn from the Hadith. The principal point about modern Jews that Mr Haddad makes from the behaviour of the ancient Jews is that Jews constantly break their agreements. The idea of being “a conspiratorial people” is something different. In Speech C, Mr Haddad does not expressly draw the link between the ancient conspiracies and modern Jews or even Israel. However, there are two principal reasons why I think that the reasonable, ordinary listener would understand Mr Haddad to be saying that modern Jews are “a conspiratorial people”. The first is that Speech C must be understood in the context of what is said in Speech A as the lectures are part of a series directed to the same audience, and in Speech A Mr Haddad made it clear that the ancient Jews and modern Jews are of the same character. The second reason is that the reasonable, ordinary listener would understand Mr Haddad to be recounting the stories about the ancient Jews in order to inform an understanding of modern Jews – recounting the old stories is of no present relevance other than to support Mr Haddad’s thesis that the Jews of today are just as bad as the Jews of the ancient past.

125 The imputation is therefore established.

(c) The Jewish people love money and wealth

126 In the lecture, Mr Haddad tells the story of the Prophet seeking blood money from the Jews because they had killed some Muslims. Instead of “paying this very very small amount that would have kept their life and kept their property and kept their fortresses”, he says that they decided to try and assassinate the Prophet “because of their love of wealth” (ST54:2-5). He then says: “And we can see their love of wealth because they didn’t even let their kids go on the camels. They made them walk while their wealth was on the back of their camels.” (ST54:7-8.)

127 Once again, what Mr Haddad said would be understood in the context of the lecture series and the overall point of the particular lecture, ie that the character of modern Jews can be traced back to the ancient Jewish tribes of Medina. Mr Haddad would therefore be understood to be saying that modern Jews love money and wealth.

128 The pleaded imputation is therefore established.

(d) The enmity between Jews and Muslims today is the fault of the Jews because: (i) they constantly break their agreements including with the Prophet; and (ii) Jews harbour enmity towards Muslims

129 I have already quoted (at [119] above) Mr Haddad saying that Jews harbour enmity towards Muslims which can be seen from when their forefathers broke their agreements with the Prophet. He also said that “[w]e can clearly see that the Jews started it first” (ST53:19).

130 The imputations are clearly established.

Speech D: Jews are liars

131 It will be recalled that Speech D is in the form of an interview of Mr Haddad and Mr Ismail that occurred between Speech A and Speech B. The discussion in the interview centres on the 7 October 2023 attacks on Israel and Israel’s bombardment of Gaza, and on the media’s treatment of those events. It does not recount ancient stories of conflict between Jews and Muslims in the seventh century. In this sense, its content is closer to that of Speech B than the “Jews of Al Madina” lecture series.

132 The pleaded imputation is that Jews are liars. The applicants rely in particular on six answers given in the interview, but four of them are answers given by Mr Ismail (ST58:41-56; ST59:1-10; ST63:8-15 and ST64:7-13). They can accordingly be put to one side – as explained, nothing said by Mr Ismail is relied on in the pleaded case.

133 In the first answer that is given by Mr Haddad (ST55:32-40), he says that there is no proof to support footage shown by the IDF that Hamas beheaded 40 babies during its attack on Israel. He says, “how can we believe the people that are known to be liars?” He is clearly saying that the IDF are known liars. He would not be understood as speaking about Jews generally.

134 In the second answer (ST60:17-21), Mr Haddad says that the media that are owned by “the Zionists” will always push the narrative that the Israelis have done nothing wrong and that it is always the Muslims of Gaza who have done wrong and who deserve to be killed. Again, there is nothing in what Mr Haddad says there that would be understood as a reference to Jews generally. He is talking explicitly about Zionists.

135 In the circumstances, the pleaded imputation in Speech D is not established.

Speech E

136 Speech E is the last lecture of the three-part series on “The Jews of Al Madina”. As with Speech C, Speech E must be understood in the context of the series and not in isolation. Once again, the central message of the lecture is that there is something to be said about the Jews of today based on the behaviour of seventh century Jews. Aside from the nature of the project being to understand the events in the Middle East today as following on ineluctably from the ancient conflicts, Mr Haddad refers to the ancient Jews hiding themselves behind great walls and then adds “as they do today” (ST77:6). He refers to the ancient Jews attacking women and children and then adds that that is “[n]o different from today” (ST85:6). He refers to the ancient Jews deceptively showing only crying women and children and hiding their soldiers and says that this is the same as Jews today (ST90:20-91:5).

137 It is in that context that each of the pleaded imputations can be considered.

(a) Jews are wicked and scheming

138 In the passages from the lecture that the applicants rely on to establish this imputation, Mr Haddad tells stories of the Banu Qurayza which portray them as wicked and scheming. For the reasons already given, that characterisation would be understood as being said to apply to Jews today.

139 The pleaded imputation is established.

(b) Jews are racist, including among themselves

140 Mr Haddad says in the lecture that the Banu Qurayza hated the Prophet “more than anything else because he wasn’t ethnically a Jew. He was an Arab” (ST68:3-4). He says that “within the ranks of the Jews themselves, there exists within them some racism” and then he cites a report of the non-consensual sterilisation in Israel of “black Jews” from Ethiopia as an example of “the racism of the Jews themselves” (ST71:9-72:11). His characterisation of that being an act of “the Jews of Israel” (ST72:3) and “the Israelis” (ST72:10), as well as him saying that it shows “the racism of the Jews themselves” (ST71:17), serve to generalise his disparaging remarks about Israel as applying to Jews generally. That is how he would be understood.

141 The pleaded imputation is established.

(c) Jews are a treacherous, vile people, who always betray

142 In the context of both an ancient conflict between Jews and Muslims and the present-day bombardment of Palestinians Mr Haddad says, “as we proved from the very first lesson, these are a people who used to kill their own prophets. A treacherous people. A vile people” (ST85:12-15). The Jewish link between the past and the present is made express. The imputation that Jews are a treacherous and vile people is established.

143 However, the applicants’ reliance on it being said that the Jews always betray is taken out of context. The proper context is a story told by Mr Haddad about a Jew called Naaman ibn Mas’ud who converted to Islam (ST79:11-12). Naaman went to Muhammad and offered to break up the alliance between the Jews and the people of Quraysh, a “disbelieving” tribe of Arabia (ST81:21) with whom Muhammad and his followers were in conflict. Naaman went first to the Jews to make a proposal. In order to have their trust, he hid from them that he had converted to Islam. He then went to the Quraysh who knew that he was Muslim, and he told the Quraysh that “the Jews are a people who always betray” (ST80:22). Coming from someone who was known to the listener as a Muslim and himself engaged in a dishonest ruse, I do not think that passage would be understood as saying that Jews always betray. It would be understood as portraying a device that Naaman used to persuade the Quraysh not to trust the Jews in order to break up the alliance between them.

144 The imputation that Jews are a treacherous and vile people is established.

(d) Jews break their agreements

145 Mr Haddad tells the story of the Banu Qurayza having broken their treaty with the Prophet and having sided with the Quraysh (ST76:15-77:19; ST81:17; ST84:14; ST90:11-12; ST101:2-4). For the reasons already given, that would be understood as a characteristic carried forward to modern Jews. Its link with the present is made express by Mr Haddad when he says: “The next time someone tells you who started the issues or the problems between the Muslims and the Jews, we can see clearly where it started. And that is the Jews themselves.” (ST100:22-24.)

146 The pleaded imputation is therefore established.

(e) Jews are people who want to attack women and children

147 The relevant passage of the lecture has already been referred to above (at [136]). Mr Haddad speaks of an ancient conflict in which Muslim women and children stayed away from the battle far from where they could be reached (ST84:22-85:15). He then says that the Jews knew of that and “they wanted to come and attack the women and the kids” (ST85:3-4). He concludes (ST85:6-15):

No different. No different than today. Today they tell our brothers and sisters, yeah you can go out from Egypt, the border of Egypt, but then they bomb them on the way out.

Yeah you can go in the safe zone and they bomb the safe zone. Yeah you can get humanitarian aid and they bomb the humanitarian aid. Same games that they play.

Nothing’s changed. And as we said and as we proved from the very first lesson, these are a people who used to kill their own prophets. A treacherous people. A vile people.

148 The link between the past and the present is made express.

149 The pleaded imputation is established.

(f) Jews are descendants of apes and pigs

150 Mr Haddad tells a story of the Prophet calling out to the Jews and saying “O descendants of apes and pigs, are you insulting me?” (ST88:10-11). Given the reverence and literal truth given by Mr Haddad in the lectures to the words of the Prophet, I am satisfied that that would be understood as Mr Haddad saying that Jews are descendants of apes and pigs. The fact that what the Prophet is reported by Mr Haddad to have said is taken from a biography of the Prophet does not detract from that understanding. In any event, as Professor Reynolds explains, the implication of the original Qur’anic verses is not that Jews are descendants of apes and pigs but that Allah cursed a particular Jewish community and, on a literal reading, transformed them into apes.

151 The pleaded imputation is established.

(g) Jews love wealth

152 Mr Haddad tells a story of the siege of the Banu Qurayza. After 25 days they asked if they could be allowed to leave with their wealth and their women and children and the Prophet said no. They then asked if they could leave their wealth behind and leave with their women and children, and again the Prophet said no (ST90:1-12). I do not consider that Mr Haddad’s telling of this story says anything about the Jews’ love of wealth. The Jews’ offer to leave their wealth behind and be released from the siege with their women and children might be thought to suggest the opposite.

153 The pleaded imputation is not established.

(h) Jews use the media for manipulation

154 In the first passage relied on by the applicants to establish this imputation, Mr Haddad says that “[e]specially the kuffar and especially the media” are watching and listening and “again they would always try to paint the brush that we Muslims, we hate Jews” (ST71:1-6). The reference to “kuffar” would be understood as a reference to non-believers in Islam, not only Jews. There is nothing in that passage to suggest that Jews use the media for manipulation.

155 In the other passage relied on by the applicants, Mr Haddad recounts a story of the ancient Jews tricking Abu Lubaira who had been sent by the Prophet to arbitrate. The trick was to show Abu Lubaira only the women and children in the fortress, hiding the soldiers away. Mr Haddad says that “they”, ie the Jews, do the same thing “today in the news ... They don’t show the soldiers and other people happening and saying kill them all and flatten Gaza and kill everyone. These Jews at this time did the same thing.” (ST90:14-91:4.) Mr Haddad would be understood to be saying that Jews use trickery to manipulate what is portrayed “in the news”, ie the media.

156 The pleaded imputation is therefore established.

Summary of conclusions on the imputations

157 In the result, the following imputations are established in the three lectures that are Speeches A, C and E:

(1) Jews since the time of Muhammad have been a very mischievous people (A(a));

(2) Jews since the time of Muhammad have been people who oppress one another and also used to oppress their own prophets (A(b));

(3) Towards the end of time Muslims will fight Jews and the Jews should and will then be killed (A(d));

(4) Jews at the time of Muhammad and to this day are arrogant people who always think that they are better or the best people (A(f));

(5) It is a Jewish characteristic to be a murderous and rebellious people (A(h));

(6) Jews are very shifty (A(i));

(7) Jews want to obtain money and power which they use to have authority over the weak (A(j));

(8) People should boycott all Jewish businesses and products, which include (but are not limited to) Coca-Cola, Nike, McDonalds and Starbucks (A(k));

(9) The Jewish people control the media in order to abuse the weak (A(l));

(10) Jews own most banks and use oppressive interest loans knowing it is almost impossible to pay the loans back (A(m));

(11) Jews are a slanderous people, troublemakers and schemers (A(n));

(12) The Jewish people actively seek to ensure there is no peace with Muslims so that they can profit in business and the media (A(o));

(13) Jews scheme to spark hate against the Muslims and are to blame for division, fighting and hate among Muslims (A(p));

(14) Jews are cowards (A(q));

(15) Jews inherently dislike Muslims and Arabs and want to fight the Muslims (A(r));

(16) Jews constantly break their agreements (C(a), E(d));

(17) Jews are a conspiratorial people (C(b));

(18) The Jewish people love money and wealth (C(c));

(19) The enmity between Jews and Muslims today is the fault of the Jews because: (i) they constantly break their agreements including with the Prophet; and (ii) Jews harbour enmity towards Muslims (C(d));

(20) Jews are wicked and scheming (E(a));

(21) Jews are racist, including among themselves (E(b));

(22) Jews are a treacherous, vile people (E(c));

(23) Jews are people who want to attack women and children (E(e));

(24) Jews are descendants of apes and pigs (E(f)); and

(25) Jews use the media for manipulation (E(h)).

158 The 25 imputations of the lecture series can be consolidated as follows:

(1) Jews are mischievous, arrogant, shifty, slanderous, troublemakers, cowards, constantly break their agreements, conspiratorial, wicked, schemers, treacherous and vile (imputations 1, 4, 6, 11, 14, 16, 17, 19, 20 and 22);

(2) Jews are murderous and rebellious including by oppressing one another and their own prophets and by wanting to attack women and children (imputations 2, 5 and 23);

(3) There is an eternal conflict between Jews and Muslims for which Jews are responsible and which will only end towards the end of time when Muslims should and will kill Jews (imputations 3, 15 and 19);

(4) Jews deliberately sow conflict amongst Muslims (imputations 12 and 13);

(5) Jews pursue and love money and power which they use to have authority over or to control the weak, the media, the banks and governments (imputations 7, 8, 9, 10, 12, 18 and 25);

(6) Jews are racist including amongst themselves (imputation 21); and

(7) Jews are descendants of apes and pigs (imputation 24).

159 Speech B, the sermon, does not convey the pleaded imputations.

160 Speech D, the interview, also does not convey the pleaded imputation.

The elements of section 18C

Introduction

161 Section 18C of the RDA provides as follows:

18C Offensive behaviour because of race, colour or national or ethnic origin

(1)     It is unlawful for a person to do an act, otherwise than in private, if:

(a)     the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)     the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note: [omitted]

162 It is thus apparent that the three requirements of s 18C, on which the applicants bear the onus, are:

(1) the relevant act must have been done “otherwise than in private”;

(2) the act must have been “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” another person or a group of people; and

(3) the act must have been done “because of the race, colour or national or ethnic origin” of a person or group of people.

(see Faruqi v Hanson [2024] FCA 1264 at [25].)

163 As mentioned, the respondents concede that the speeches were delivered and published other than in private. The first element is therefore established.

164 It is common ground, as an agreed fact, that Jews constitute a group of people with a shared race or ethnic origin, and that Jewish people in Australia comprise a group of people with a shared race or ethnic origin for the purposes of the RDA. The applicants put their case on the basis that the relevant group of people in the second and third elements are Jewish people in Australia.

Para (a) – reasonably likely, in all the circumstances, to offend, etc.

Coming to the awareness or perception of the relevant group

165 A construction issue in relation to s 18C(1)(a) which is not the subject of prior direct authority arises in this case. It is whether para (a) requires that it be established that the impugned act was reasonably likely, in all the circumstances, to (1) come to the awareness or perception of the relevant group and thereby (2) offend, insult, humiliate or intimidate that group, or whether only the second of those two elements is required to be established.

166 The respondents argue that a group cannot, for the purposes of s 18C, be reasonably likely to be offended, insulted, humiliated or intimidated by an act that nobody in the group witnesses. They submit that s 18C is not contravened where members of a group have gone out of their way to expose themselves to offensive speech if they would not otherwise have been reasonably likely to have come across it.

167 The respondents cite in support of that construction a passage in Kaplan v Victoria (No 8) [2023] FCA 1092 at [511] per Mortimer CJ, where it was observed in reference to s 18C that “[t]he group who could be reasonably offended, insulted, humiliated or insulted must have been persons able to hear the speech”. That was said in her Honour’s reasoning on the identification of the relevant group and not on the point of construction raised by the respondent before me. It is therefore not ratio in favour of the respondents’ construction.

168 The correct construction of s 18C(1)(a) is that once it is established that an act was done otherwise than in private (as required by the chapeau), the analysis of reasonable likelihood required by para (a) is undertaken on the assumption that the relevant person or group of people becomes aware of it. There are two main reasons for that construction.

169 First, the chapeau to s 18C(1) which stipulates that the act must be done “otherwise than in private” provides a protection for private speech; its inclusion tends against the implication of an additional requirement of proving that the act was perceived by the relevant group. There would also be overlap between the inquiry demanded by the chapeau and any requirement that it is reasonably likely that the relevant act will come to the attention of the relevant group. The latter inquiry raises a further question as to whether the reasonable likelihood is to be analysed with reference to matters that are known by the respondent and which should be known by a reasonable respondent in their position, or whether reasonable likelihood in all the circumstances includes circumstances unknown to the actual and hypothetical reasonable respondent. Those complexities of overlap and the work to be done by “reasonably” are avoided on the construction that has “reasonable likelihood” as a single inquiry with regard to the impact on the relevant group on the assumption that it has perceived the impugned conduct.

170 Secondly, that construction better serves the purposes of Pt IIA of the RDA, being to deter and eliminate, and thus protect members of the public from, racial hatred and discrimination: Faruqi v Hanson at [342], [345]. The harms of racial hatred do not occur only when that hatred is directly perceived by the targeted group. Racist speech may be directed to an audience apart from its target, and inspire ill-feeling and negative sentiment amongst that audience. That may in turn create danger for the targeted group and it is corrosive of social cohesion. This is not to convert s 18C(1)(a) into a test of incitement, as is submitted by the respondents; rather, it is to recognise that “in all the circumstances”, in light of the chapeau, does not import a requirement that the person be present in the audience.

171 This purpose is borne out by the extrinsic material. The explanatory memorandum notes that Pt IIA was “intended to strengthen and support the significant degree of social cohesion demonstrated by the Australia community at large”, while in the second reading speech it was noted by the Attorney-General that racist behaviour “affects not only the individual but the community as a whole”. These references to the broader Australian community tell against a construction that would exclude racist conduct that was not reasonably likely to come to the attention of the targeted group from the reach of the Act.

172 In any event, on the facts of the case before me, even if I were to adopt the construction urged by the respondents, the evidence establishes that the speeches were, in all the circumstances, reasonably likely to come to the attention of the group described as Jews in Australia. It is the reasonably expected and natural consequence of a public figure with a significant social media following posting controversial content on open social media that it will be picked up and seen by a wide audience, and in particular by the people whom it targets. That natural and expected consequence is particularly strong in the case of the controversial things said by Mr Haddad, as the evidence shows.

173 MEMRI is the Middle East Media Research Institute. Amongst other things, it apparently monitors social and other media for antisemitic content and it critically republishes such content including on YouTube under the name “MEMRI TV”. Well before November 2023, MEMRI TV was monitoring social media accounts and pages associated with Mr Haddad and AMDC. In the year leading up to the speeches, it had published articles based on Mr Haddad’s remarks which compared saying “Merry Christmas” to congratulating someone for murder, as well as his comments referring to adherents of Hinduism as “worshippers of cows and monkeys”, both of which were made during sermons at the Centre which were subsequently published on social media. Further, whether as a result of being picked up on MEMRI TV, through social media channels or otherwise, it is clear that at the time of the speeches Mr Haddad’s sermons and remarks had been reported on in mainstream or conventional news media.

174 Mr Haddad often responded to coverage of his sermons in the mainstream media through his Instagram account. After his remarks regarding Christmas, Mr Haddad posted a screenshot of an article from news.com.au which reported on his sermon and tagged the journalist with a provocative caption containing “a challenge for any Christian who may come across my profile” to identify where in the Christian Bible, among other things, Christmas or 25 December as Christ’s birthday are mentioned. Following his comments about Hinduism, Mr Haddad posted a video to his Instagram account of him eating beef and referring to backlash he had received for such comments, saying he had “no beef with anyone”, with a subsequent post referring to a MEMRI TV article about the video.

175 On the basis of that evidence, a three-part series of lectures by Mr Haddad which was promoted on his Instagram page and the title of which referred to Jews was more than reasonably likely to be covered by MEMRI TV and the mainstream media, particularly in November 2023 when the war in Gaza and the controversies about the Opera House protests were still fresh. It was thus reasonably likely that the speeches would come to the attention of Jews in Australia, whether through MEMRI TV or other news coverage, social media, or otherwise. Mr Haddad was no stranger to controversy and the evidence establishes that his sermons had been covered in the media in the past; provocative lectures delivered in Sydney about Jews would clearly be newsworthy at the time and therefore likely to come to the attention of the Australian public, and particularly Jews.

176 The respondents accept that Jewish people in Australia have a familiarity with historical forms of antisemitism and also have an experience of shock, distress and generalised fear at the events of 7 October 2023. It follows from this, as submitted by the applicants, that Jewish people, who are vigilant against antisemitism, would show a particular interest in the speeches and might circulate news of them within their community, having come across the speeches on social media or in other news coverage, including from MEMRI TV. It is not to the point that Jewish people in Australia may have searched for further references to the speeches online. Jewish Australians, like all Australians, are entitled to exercise their right to participate in civil society as it concerns them and in doing so to be protected from acts that s 18C renders unlawful.

177 The conclusion that it was reasonably likely that the speeches would come to the attention of the broader community of Jews in Australia is borne out by what in fact occurred. The speeches received considerable coverage on social media and in the mainstream media and by that means they came to the attention of the broader community, including the Jewish community. It is not to the point that most members of that community would not have seen or read the speeches in full and would have instead relied on reports about the speeches, including possibly some inaccurate and inflammatory reports, and excerpts on social media. Whilst the true meaning of the speeches to the reasonable, ordinary listener must be judged in the full relevant context, it is not necessary to establish that the members of the relevant group, or a substantial number of them, experienced the speeches in that full context.

Reasonably likely to offend, etc.

The applicable principles

178 There is no dispute between the parties as to the relevant principles in relation to this requirement.

179 The requirement that the assessment be made with reference to “all the circumstances” requires that the social, cultural, historical and other circumstances attending the people in the group be considered when assessing whether offence, etc, was reasonably likely: Eatock v Bolt at [257]. Just what circumstances may be relevant will vary from case to case and will depend on the evidence: Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 at [47] per Barker J.

180 It is necessary to look to “the likely effect of the act upon a hypothetical person in the circumstances of the applicant or as a member of the relevant group”: Bharatiya v Antonio [2022] FCA 428 at [17] per Colvin J. This is an objective inquiry. The assessment needs to be undertaken by reference to a “person or group of people”. See Faruqi v Hanson at [224]-[225] and the authorities cited there.

181 It is common ground that the relevant group in this case is Jewish people in Australia. As mentioned, the conduct is to be assessed from the perspective of the “ordinary” or “reasonable” hypothetical representative of the group.

182 The words “offend, insult, humiliate or intimidate” take their ordinary English meanings: Jones v Scully [2002] FCA 1080; 120 FCR 243 at [102]-[103] per Hely J; Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [67], [69] per French J. As identified in Clarke at [66], those meanings may include the following:

offend — to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).

insult — to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage …

humiliate — to make low or humble in position, condition or feeling, to humble … to subject to humiliation; to mortify.

intimidate — to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.

183 To be unlawful, the relevant conduct must have “profound and serious effects, not to be likened to mere slights”: Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352 at [16] per Kiefel J; Bropho at [70]; Eatock v Bolt at [268]. While there is “an aspect of gravity or severity inherent in the prohibition” (Kaplan at [30]), “the effect need not be at the extreme level of ‘racial hatred’” (Kaplan at [506]).

184 The requirement that the act is “reasonably likely” to have the requisite effect is satisfied if there is a “real” and “not fanciful or remote” chance of the relevant outcome: Eatock v Bolt at [260]. That is to be assessed on the balance of probabilities on which the applicant bears the onus of proof: Eatock v Bolt at [261] citing Bropho at [65].

185 Recognising the importance of making an objective assessment and supressing one’s own feelings or instinct, the judge must try to put themselves in the position of the reasonable member of the group, and see matters from their perspective; the judge must guard against judging matters of offence, etc, by how they personally are made to feel by the conduct in question or by how, based on that, they think other people would generally or likely respond: Faruqi v Hanson at [241]. That requires an assessment from a perspective that is not necessarily the judge’s own.

The characteristics and sensitivities of the relevant group

186 The starting point is to identify the characteristics and sensitivities of the relevant group for the purposes of s 18C(1), described earlier as Jewish people in Australia. There is much in the evidence to draw on in that regard.

187 Mr Wertheim gave unchallenged evidence about Jewish identity in Australia. He explained that a survey of Jews in Australia in 2017 found that 59% of respondents said that at least one grandparent was a Holocaust survivor. He explained that many Jews in Australia, including himself, have family histories that include the Holocaust. The Holocaust represents a catastrophic culmination of the tragedies that have befallen Jews throughout history. Many members of the Jewish community grow up and live with a consciousness of their community’s vulnerability to vilification, discrimination, persecution and mass murder. The trauma of the Holocaust “runs deep in the consciousness of Australian Jews and has echoed through the generations.” Mr Wertheim’s evidence of those matters is corroborated by the biographies of each of the Jewish lay witnesses called by the applicants.

188 Many of the Jewish witnesses gave evidence of their experience of feeling secure, safe and accepted in Australia prior to the events of 7 October 2023 and their sequelae, and how that has changed quite profoundly. The witnesses record a shift in their feelings of safety, self-consciousness and belonging in Australia. There is a documented increase in antisemitic incidents which led the federal government to recognise the increased level of risk to the Australian Jewish community. Mr Wertheim described the use of “dehumanising language” at protests and elsewhere as “something quite new and quite alien and quite foreign” for his community. Mr Wertheim explained that by “dehumanising language” he was referring to derogatory generalisations like, for example, calling Jews “vile and treacherous people”, “rats” and “cowards”. The Australian Jewish community came to feel more vulnerable and fragile.

189 One of the Jewish witnesses, Robert Kaye SC, recounts how there were incidents in the eastern suburbs of Sydney in the months following October 2023 that influenced members of the Jewish community’s sense of vulnerability. For example, his local coffee shop had a Nazi swastika daubed on it. He found that very disturbing. Since then, he has for the first time in his life been very conscious of the physical threat, personally, to him as a Jew. That has also led to some members of the Jewish community removing public symbols of their Jewish identity.

190 Another of the Jewish witnesses, a woman who is identified as being involved in a family business, explained that although she is not “a religious or believing person”, she nevertheless identifies “very much as a Jewish person”. She explains that the Jews are the people to whom she belongs; it is the nation to which she belongs; it is her ethnic identity. Another Jewish witness, identified as a data scientist, also explained that he is not religious, his religious views being “closer to atheism”, but he is nevertheless a proud secular Jew. Another witness, identified as a teacher, explained that her identity is inextricably linked to the Jewish community; it is the essence which defines her worldview and “shapes the rhythm” of her life and the life of her family. She explained that the theme of Jews being attacked and persecuted is a matter of Jewish history and that Jewish religious festivals and observances regularly acknowledge and enforce that.

191 The applicants called Dr Andre Oboler as an expert witness on the historical and cultural context for the pleaded imputations. Dr Oboler is the managing director and Chief Executive Officer of the Online Hate Prevention Institute which is based in Sydney. Dr Oboler has 20 years of experience researching, publishing and advising civil society organisations and governments on antisemitism. His core focus is on the nexus between antisemitism and internet technologies, particularly social media. He has an Honours degree in Computer Science from Monash University and a PhD in Computer Science from Lancaster University in the United Kingdom.

192 Dr Oboler explained that Jewish history is filled with examples of persecution triggered by the incitement of anti-Jewish hate through the use of well-established tropes, conspiracy theories and stereotypes. He cited the blood libels which led to the massacre at York in 1190, the rape and death of Jews in Russia in more than 250 pogroms between 1881 and 1884, and the Nazi propaganda campaigns which ultimately led to the Holocaust. He explained that there is a long history of antisemitic tropes, conspiracy theories and stereotypes that are used to incite violence against the Jewish community; understanding antisemitism involves understanding not only Jewish history, but also those tropes, conspiracy theories and stereotypes.

193 The respondents accept that the characteristics of the ordinary, reasonable Jewish person in Australia include a consciousness of the circumstances of the Holocaust, a familiarity with historical forms of antisemitism including at least some of the antisemitic tropes described by Dr Oboler, and an experience of shock, distress and generalised fear at the events of 7 October 2023.

194 The respondents submit that the characteristics of the ordinary, reasonable Jewish person in Australia also include the experience of living in a free, multicultural and pluralistic, broadly tolerant democracy with a strong rule of law including laws to protect against violence and incitement to violence. They submit that that includes robust institutions that generally enforce the law. They submit that Jews in Australia are accustomed to, and expect to be exposed to, a diversity of beliefs and ideas, including ones that are challenging and confronting, and that they have a general feeling of safety in Australia albeit somewhat tempered by the events of and following 7 October 2023. All of that can readily be accepted.

195 The respondents submit that a consequence of that accumulation of features is that the ordinary, reasonable Jewish person in Australia would be fair-minded even in viewing material that they may find confronting; the ordinary, reasonable Jewish person in Australia would also have at least a general familiarity with the existence of religious narratives about religious and military encounters between Jews and Muslims. Those submissions can also be accepted, save to clarify that the religious narratives with which there may be some familiarity are in respect of ancient conflicts as passed on and later recorded in religious texts.

The likely impacts on Jewish people in Australia

196 Dr Oboler’s evidence establishes that many of the imputations in Mr Haddad’s lectures (ie Speeches A, C and E comprising “The Jews of Al Madina” series) rehearse old tropes, conspiracy theories and stereotypes about Jews. Those include that Jews are a mischievous, treacherous, shifty or cunning people, Jews are wicked, Jews are arrogant and think they are the best, Jews control the media, Jews love money and control the banks, Jews control governments and that Jews are descended from apes and pigs. Those imputations are likely to have added detrimental impact on members of the Jewish community because of what they carry with them historically.

197 Taken together, the established imputations in Mr Haddad’s lectures are fundamentally racist and antisemitic and devastatingly offensive and insulting. They make perverse generalisations against Jewish people as a group. Jewish people in Australia in November 2023 and thereafter would experience them to be harassing and intimidating. That is all the more so because they were made at the time of heightened vulnerability and fragility experienced by Jews in Australia, but they would also have been harassing and intimidating had they been made prior to 7 October 2023. That is because of their profound offensiveness and the long history of persecution of Jews associated with the use of such rhetoric. Those effects on Jews in Australia would be profound and serious.

198 The moderating characteristics of the ordinary, reasonable Jewish person in Australia identified by the respondents as set out at [194]-[195] above do not change that analysis. The protection of people from the kinds of acts that are proscribed by s 18C is an important component of the characterisation of Australia as a free, multicultural, pluralistic and broadly tolerant society with a strong rule of law. Jews in Australia are entitled to and would expect that protection. The type of intolerant and sectarian conduct that is proscribed by s 18C undermines and erodes those valuable characteristics of Australian society. There is a striking irony in the respondents counselling the applicants and Jews in Australia to be more tolerant of the respondents’ profound intolerance and racist abuse, as there is in the respondents citing the rule of law and the law’s protections in support of social cohesion to avoid the sanction of just such a law.

199 The requirements of s 18C(1)(a) are accordingly established.

Para (b) – done because of the race, colour, etc.

200 Section 18B of the RDA provides that if an act is done for two or more reasons and one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act), then the act is taken to be done because of the person’s race, colour or national or ethnic origin. Thus, for an act to have been done “because of” a relevant attribute, it is enough that it be “a factor” in the decision to act: Faruqi v Hanson at [259] and the authorities cited there.

201 The inquiry is whether race, etc, is a “true reason or true ground” for the conduct: Toben v Jones [2003] FCAFC 137; 129 FCR 515 at [63]. In that passage, Kiefel J explained that a person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did, and there may be other circumstances which throw light upon the reason for their actions.

202 The requisite causal connection is between the conduct and the race, etc, of the person or group reasonably likely to be offended, insulted, humiliated or intimidated: Eatock v Bolt at [307]. The provision “does not require that there be an intention to offend, insult, humiliate or intimidate another person or a group of people in order for an act to be unlawful”: Bharatiya at [14].

203 “[T]he quality of offensiveness of statements might be used to deduce something about motive and in any given factual situation could perhaps supply the causal connection required by s 18C(1)(b)”: Kaplan at [541] citing Toben v Jones at [67]. But “[t]he making of a statement which is likely to, or which does offend will not be sufficient to qualify it as motivated as s 18C(1)(b) requires” and “[s]ome statements which cause offence to a group may be made without a racially based motive and because of a lack of sensitivity or even thought towards others”: Toben v Jones at [69].

204 In the present case, I am satisfied that Mr Haddad made the disparaging comments about Jews reflected in the imputations in his lectures because of Jewish race or ethnic origin. As already observed, the project of the lectures titled “The Jews of Al Madina”, being to link and equate the actions of the modern-day Israeli government and security forces with acts of Jewish tribes in conflict with the Prophet and his followers in the seventh century, was a racist project about Jews; it was to say that Jews then and Jews now – all Jews – are the same.

205 When it was put to him in cross-examination that the only thing in common between the Israelis that Mr Haddad wished to criticise today and the Jews that he was describing in the seventh century is that they are Jews, he sought to limit that commonality to their Jewish faith (T151:15-17). When it was put to him that when he made it clear that whether a Jew is a Zionist or not does not matter because they are all the same, he said that was because they all follow the Jewish faith (T151:27-29; T153:3-6). That is to say, he said that he was critical of Jews because of their faith and not because of their race or ethnicity.

206 I do not accept that Mr Haddad was intending to speak only about religious Jews. That is to say, I do not accept that he said disparaging things about Jews because of their faith and not because of their race or ethnic origin. There are a number of reasons for that.

207 First, Mr Haddad did not say that in his defence in response to the statement of claim where it was specifically pleaded that he made each speech because of the race or ethnic origin of Jews as a group. He was content to merely deny the allegation. Likewise, in his affidavit, Mr Haddad did not mention that he said what he said about Jews because of their faith. Also, Mr Haddad’s counsel, in opening the case both in writing and orally, did not mention that his case was that he was motivated by enmity towards the Jewish faith rather than to Jews more generally. If, in truth, he spoke in disparaging terms about Jews because of their faith rather than their race or ethnic origin one would have expected him to say so in giving instructions for the preparation of his defence and his affidavit, and one would have expected the case to be opened on that basis. Instead, the first time that the suggestion emerged was from Mr Haddad in cross-examination.

208 Secondly, Mr Haddad was not able to identify any aspect even of his understanding of the Jewish religion which would support or justify, to him, the racist tropes and stereotypes that he rehearsed. Beyond saying that some of what he said comes from Islamic holy texts and that the word of God in such texts is “eternal”, he was unable to identify anything in his understanding of Judaism as a religion that would explain why religious Jews would have the negative characteristics that he ascribed to Jews in his speeches. He said that he called Jews a vile people because of what the Israeli government is doing today, but he did not say that what the Israeli government is doing in Gaza is because of the Jewish faith of its officials and decision-makers (T156:29-47). In cross-examination, Mr Haddad was unable to point to any passage in the lectures where a distinction was meaningfully drawn between “Jews of faith” and those of ethnicity (T154:7-156:47).

209 Thirdly, it is in any event highly artificial to seek to separate Jewish faith out from other elements of Jewish racial and ethnic identity. Even to secular Jews, Jewish religion is a central part of Jewish culture and identity. So, for a non-Jewish person to disparage the Jewish religion is for them also to disparage Jews on the basis of their racial and ethnic identity. It is the “combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past” that constitute Jews as a race or ethnic group for the purposes of the RDA: King-Ansell v Police [1979] 2 NZLR 531 at 543 per Richardson J; Jones v Scully at [111]. A common religion amongst the group, even if not all members of the group are religious, is an element of common ethnic origin: Mandla v Dowell Lee [1983] 2 AC 548 (HL) at 562 per Lord Fraser.

210 The interrelationship between Jewish ethnicity and religion is well illustrated by R(E) v Governing Body of JFS [2010] 2 AC 728 (UKSC). A Jewish school gave enrolment priority to children recognised as Jewish based on tenets of Orthodox Judaism. The claimant’s son was refused enrolment because his mother had converted to Judaism on a non-Orthodox-recognised basis. A key question was whether there had been discrimination on the basis of race, as opposed to religion. In agreeing that there was discrimination on racial and not just religious grounds, Lord Phillips PSC observed at [39], “[i]n the case of Jews … is almost impossible to distinguish between ethnic status and religious status. The two are virtually co-extensive.”

211 In the circumstances, I find that Mr Haddad said the many disparaging things about Jews because of their race or ethnic origin; the requirements of s 18C(1)(b) are established.

Conclusion on s 18C

212 For those reasons, subject to consideration of the exemptions in s 18D, each of the lectures (ie Speeches A, C and E) was delivered and published in contravention of s 18C of the RDA.

Section 18D

The applicable principles

213 Section 18D of the RDA provides for a number of exemptions from the designation of conduct as unlawful under s 18C:

18D Exemptions

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)     in the performance, exhibition or distribution of an artistic work; or

(b)     in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)     in making or publishing:

(i)     a fair and accurate report of any event or matter of public interest; or

(ii)     a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

214 Both Mr Haddad and the AMDC rely on “any other genuine purpose in the public interest” in s 18D(b) and AMDC also relies on s 18D(c)(i), ie that its publication of the speeches constituted “a fair and accurate report of any event or matter of public interest”.

215 The onus of proof in relation to s 18D lies on the respondent: Toben v Jones at [41]; Eatock v Bolt at [338]-[339]; Clarke at [116].

216 The requirement that the relevant act was done “reasonably and in good faith” in order to enjoy the protection offered by s 18D applies to each of the exemptions set out in its paragraphs.

217 As far as reasonableness is concerned, there must be “a rational relationship” between what is said or done and an activity in ss 18D(a)-(c) in the sense that it was said or done “for the purpose” of the activity and “in a manner calculated to advance the purpose”: Bropho at [79]-[80]; Clarke at [119]-[120]. Further, what is said or done must not be “disproportionate to what is necessary to carry it [ie the activity in ss 18D(a)-(c)] out”: Bropho at [79], [139]-[140]; Clarke at [122]; Eatock v Bolt at [349], [414], [439]. For example, being “gratuitously insulting or offensive” in relation to “a matter that is irrelevant” to the activity in ss 18D(a)-(c) may be unreasonable: Bropho at [81]; Clarke at [121].

218 As always, reasonableness in s 18D is ultimately an objective question: Bropho at [79]. It is “informed by the normative elements of ss 18C and 18D”: Bropho at [79]. “[T]here may be more than one way of doing things ‘reasonably’” and the question is “not whether it could have been done more reasonably or in a different way more acceptable to the Court”: Bropho at [79]; Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 at [82] per Robertson J.

219 The requirement of “good faith” has an objective and a subjective element: Clarke at [133]; Eatock v Bolt at [346]-[348]. Subjective good faith requires, at a minimum, “subjective honesty and legitimate purposes”: Bropho at [96]. Conduct lacks subjective good faith if, for example, the respondent sought “consciously to further an ulterior purpose of racial vilification”, “dishonesty or the knowing pursuit of an improper purpose”: Bropho at [96], [101]. Objective good faith requires “a conscientious approach to the task of honouring the values asserted by the Act … assessed objectively”: Bropho at [96], [101]-[102]. For example, taking a “conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it” may be objectively in good faith, whereas acting “carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt” may lack objective good faith: Bropho at [102].

220 Turning specifically to s 18D(b), the provision “assumes that genuine academic, artistic or scientific pursuits are in the public interest and leaves open the possibility of other pursuits being encompassed within its scope, but only if those pursuits are genuine and in the public interest”: Eatock v Bolt at [430]. In identifying any other genuine purpose, it is necessary that it be a purpose “in” the public interest and not simply a matter “of” public interest: Eatock v Bolt at [433]. “The examples of purpose given in the provision (academic, artistic or scientific) reinforce the point that an additional pursuit of public benefit, beyond freedom of expression, is contemplated by the provision. What the provision is concerned with is the public interest use to which the freedom of expression is exercised and not merely freedom of expression itself”: Eatock v Bolt at [434]. It is necessary to make an objective assessment of whether the identified purpose is genuinely in the public interest: Eatock v Bolt at [435].

221 Section 18D(c)(i), incorporates the concepts of fairness and accuracy where fairness is an objective standard: Creek at [32].

Section 18D(b) – other genuine purpose in the public interest

222 The respondents plead that each of the speeches was made by Mr Haddad and, if it is found that publication is attributed to AMDC, published by AMDC in the course of a statement, publication, discussion or debate for the genuine purpose of:

(1) teaching Tafsir, or otherwise delivering religious, historical and educational lectures or sermons, to congregants of the AMDC and other practising Muslims; and/or

(2) responding to requests from the Islamic community to provide sermons which address the Gaza War, and engaging in political commentary on the Gaza War from a religious perspective.

223 The applicants accept that those purposes can qualify as genuine purposes in the public interest as contemplated by s 18D(b). However, they submit that the respondents did not act reasonably or in good faith in the pursuit of those purposes.

224 In my assessment, the imputations in the lectures that are disparaging of Jews were not made reasonably or in good faith. Insofar as the reasonableness of the imputations is concerned, they were not made in a manner calculated to advance the purpose of the lectures. As already mentioned, the parties adduced the evidence of experts on Islamic theology; Professor Reynolds for the applicants and Sheikh Ibrahim for the respondents. The experts agree that neither the Qur’an nor the Hadith teach that Jews have any inherent negative qualities as a people, but rather that the criticism in these texts is against the Jews in one particular historical context being Muhammad’s community in seventh century Medina.

225 Sheikh Ibrahim explained:

The teachings of Islam emphasise justice and equality, and condemn collective punishment or unfair blame, as in the Qur’anic verse: “And no bearer of burdens shall bear the burden of another” (Qur’an 17:15). Therefore, while the Qur’an recounts historical conflicts with some Jewish tribes because of their breach of covenants and their hostility, it also emphasises the principle that measures goodness on the basis of piety and conduct – not just by tribal or religious affiliation. This well considered approach ensures that Muslims remain fair in their dealings with all people, including Jews, while remaining vigilant against injustice and falsehood in any form.

226 Insofar as Mr Haddad seeks to justify the imputations on the basis that they were intended to be aimed only at adherents of the Jewish faith rather than to Jews more broadly, there is no support for that in the expert evidence. Sheikh Ibrahim said that “Islam does not encourage hatred towards Jews or any other religion”. He explained that the Banu Qurayza, to whom Mr Haddad referred in the speeches, were expelled from Syria by the Prophet because of their breach of a treaty and their alliance with the enemies of Muslims, not because of their Jewish faith.

227 Sheikh Ibrahim explained the strife with the Jewish tribes of Medina as arising from circumstantial reactions to political threats and events that took place at that time and they do not reflect a blanket condemnation of the Jewish faith. Sheikh Ibrahim referred to evidence of this in Islamic history, particularly during the period of the caliphates when Jews were subjected to persecution in Europe but not under Islam. Sheikh Ibrahim quoted a scholarly work referencing the Qur’an which says that the Prophet did not innately hate the Jews; he had Jewish neighbours in Medina with whom he did business and with whom he was able to maintain peaceful relations.

228 Professor Reynolds cited contemporary Muslim scholars and leaders who say that “Islam does not see non-Muslims, Christians and Jews from the perspective of enmity, tension and violence, but from the perspective of human brotherhood and kindness.” Another explained that they “do not harbor hatred towards Jews based solely on their Jewish identity, as Judaism is not the cause of the conflict between us and Israel. Jews, as followers of a heavenly religion, remain close to us.” Other Muslim authors have said that the majority of Muslim imams do not connect the conflict in Gaza or Israel/Palestine generally to the Jews as a race or religion. They say that all official Islamic institutions, including the majority of Al-Azhar and Muslim Brotherhood scholars, perceive the conflict with Israel as a struggle against colonialism rather than against Judaism.

229 On the evidence before me, Mr Haddad’s disparaging generalisations about Jews, including his view that since the words of Allah are eternal the reported strife with the Jews of Medina can be extrapolated to modern Jews, is not supported by the teachings of Islam. It is not reasonable to express and propagate those disparaging generalisations in order to pursue the purpose of teaching Tafsir or otherwise delivering religious, historical and educational lectures or sermons. Nor is it reasonable to do so in providing sermons which address the Gaza war and engage in political commentary on the Gaza war from a religious perspective.

230 I have already recounted Mr Haddad’s courting of controversy by disparaging Christians for the notion of Christmas and by disparaging Hindus by tauntingly eating beef. Not only did he make attacks on the Christian and Hindu religions that were calculated to generate outrage, he then revelled in the publicity and notoriety that that brought him. In that context, I am not persuaded that Mr Haddad said the disparaging things that he said about Jews in good faith; I am not persuaded that he did not do so also for the purpose of stirring controversy. In any event, without any scholarly theological support for his views, they must be taken as idiosyncratic and therefore without good faith – there is no reasonable basis on which he could have in good faith believed that what he was teaching was indeed the teaching of Islam.

231 Because of the scholarly theological evidence demonstrating that the view of Jews articulated by Mr Haddad in the lectures has no foundation in Islam, this case does not call for a decision on whether religious belief can ever be a justification for propagating racist bigotry and hate. Noting that there is no express protection of conduct based on religious belief in s 18D and that to hold otherwise would substantially undermine the purpose of Pt IIA, it may be that propagating such bigotry and hate in the name of religion could never be done reasonably and in good faith. See R(E) v Governing Body of JFS at [35] per Lord Phillips PSC.

232 For those reasons, the reliance by Mr Haddad and AMDC on s 18D(b) fails.

Section 18D(c)(i) – fair and accurate report of any event or matter of public interest

233 AMDC relies on the s 18D(c)(i) exemption on the basis that AMDC fairly and accurately reproduced the lectures in publishing them on Facebook and Rumble and that the lectures constitute an event or a matter of public interest.

234 The difficulty for AMDC, as already explained, is that Mr Haddad’s state of mind and actions are to be attributed to it. On that basis, it did not act reasonably and in good faith in publishing the lectures to social media. It must be taken to have known that, or been careless as to whether, the lectures were inflammatory and denigrating of Jews without justification in Islamic scripture. For that reason, its reliance on s 18D(c)(i) fails.

The implied freedom of political communication

235 In Faruqi v Hanson (at [308]-[378]), I agreed with and followed Jones v Scully in holding that Pt IIA of the RDA is not beyond the legislative power of the Parliament as being in conflict with the implied freedom of political communication as recognised in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 and subsequent cases in the High Court. The respondents explicitly “accept the principles” expressed in Faruqi v Hanson “and the way they were applied in the circumstances of that case” with one qualification. The qualification is that in Babet v Commonwealth [2025] HCA 21 (subsequent to Faruqi v Hanson) a majority of the High Court made clear that the approach of “structured proportionality” applied in Faruqi v Hanson at [349]-[377] is only a tool of analysis which is not necessary to apply in every case (at [49] per Gageler CJ and Jagot J, Gordon J agreeing at [72], Beech-Jones J agreeing at [242]).

236 The respondents also submit that the circumstances of the present case are different from Faruqi v Hanson because the tweet in that case was political only in that it was directed from one politician to another in reply to political points but not political in its own content whereas the impugned statements in the present case are overtly political in content about the events in Gaza.

237 The respondents’ contentions fail for a number of reasons.

238 First, it can be accepted that a majority of the High Court in Babet v Commonwealth held that it is not necessary to apply a structured proportionality analysis in every case in which it is found that a statutory provision burdens the freedom of political communication. However, there is nothing in the reasoning in that case – or the respondents’ submissions – which suggests that it may have been inappropriate or incorrect to use that tool of analysis in the circumstances in which it was used in Faruqi v Hanson. Thus, the respondents’ reliance on Babet v Commonwealth goes nowhere. This is reinforced by the analytical approaches adopted by each member of the Court in assessing the implied freedom more recently in Ravbar v Commonwealth [2025] HCA 25 at [27]-[29] per Gageler CJ; [101] per Gordon J; [212]-[225] per Edelman J; [270], [295] per Steward J; [309]-[316] per Gleeson J; [343]-[345] per Jagot J; [426]-[427] per Beech-Jones J.

239 Secondly, the respondents’ analysis of the difference between the political nature of the relevant conduct in each of Faruqi v Hanson and the present case is incorrect. In Faruqi v Hanson it was explicitly held (at [330]) that the speech in question was political in its content. In the present case, it is not speech about Gaza that is impugned. It is speech about Jews. Contrary to the respondents’ submissions, the relevant speech in the present case is less political, rather than more political, than the speech in Faruqi v Hanson. Moreover, in Faruqi v Hanson concerned political commentary about matters in Australia that might be thought to be more relevant to the functioning of the system of representative and responsible government mandated by the Constitution than speech about ancient conflicts and what they can tell us about a conflict in the Middle East today.

240 Thirdly, and in any event, the implied freedom of political communication does not protect or confer a personal right; it is a constitutional limitation on the legislative power of the Parliament: Unions NSW v New South Wales [2013] HCA 58; 252 CLR 530 at [36]. The conclusion in Faruqi v Hanson rejecting the challenge to Pt IIA based on the implied freedom did not, and could not, turn or depend on the particular speech in issue in that case. Without a conclusion that the speech was of the necessary political nature, the occasion for considering the challenge would not have arisen. But once having arisen, the consideration was normative; the rejection of the challenge (until overturned or found to be plainly wrong) applies whatever the particular nature of the speech in a subsequent case.

241 For those reasons, I reject the challenge based on the implied freedom of political communication.

The free exercise of religion

242 Section 116 of the Constitution provides as follows:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

(Empasis added.)

243 The respondents submit that Pt IIA of the RDA is a law for prohibiting the free exercise of religion contrary to s 116.

244 The first and most obvious difficulty for the respondents is that I have found that on the evidence before me the impugned speech is not religious speech; it has no basis in Islam; it is little more than bigoted polemic. The result is that the restriction on that speech imposed by Pt IIA does not even prohibit the free exercise of religious speech, let alone the free exercise of religion. On that factual basis, the s 116 challenge does not properly arise in this case and must be rejected.

245 In any event, even if the impugned speech had amounted to Islamic discourse, the challenge would fail. That is because a law is not contrary to s 116 unless it has the purpose of achieving an object which the section forbids: Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 40 per Brennan CJ, 60-61 per Dawson J, 86 per Toohey J, 131-133 per Gaudron J and 160 per Gummow J. There are a number of reasons why I conclude that Pt IIA does not have the purpose of preventing the free exercise of any religion.

246 First, the purpose of Pt IIA is to deter and eliminate, and thus protect members of the public from, racial hatred and discrimination (Faruqi v Hanson at [339]-[345]), not to prohibit the free exercise of religion. The “purpose” of a law is the “public interest sought to be protected and enhanced” by the law: Alexander v Minister for Home Affairs [2022] HCA 19; 276 CLR 336 at [102] per Gageler J. The public interest sought to be protected and enhanced by Pt IIA, as identified in Faruqi v Hanson, has nothing to do with restricting or prohibiting the free exercise of religion even though it could have the effect of restricting religious speech.

247 The respondents submit that the constraint on the free exercise of religion that Pt IIA may have is not merely an unintended or incidental effect. They submit that it is inherent in or encompassed by the purpose of prohibiting racially motivated offensive speech without protecting religious speech. They submit that on that basis a purpose of Pt IIA is to prohibit speech that includes the free exercise of any religion, contrary to s 116 of the Constitution. I am not persuaded by that because analysis at such a high level of abstraction is incorrect and would result in the invalidation of any legislation restricting speech in any manner, so long as that speech is capable of being uttered in a religious context. Such an interpretation would give the proscription in s 116 a reach far beyond the narrow range of operation established by the authorities: see, eg, Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth [1943] HCA 12; 67 CLR 116. Although religious speech that is not reasonable and in good faith is not protected by any exemption in s 18D, any restriction on religious speech imposed by s 18C is merely incidental to the purpose of Pt IIA. Part IIA is therefore not prohibited by s 116.

248 The challenge based on s 116 of the Constitution therefore fails.

Relief

The issues

249 In summary, the applicants seek the following relief:

(1) Declarations that the respondents contravened Pt IIA of the RDA by making and publishing the speeches;

(2) Injunctions requiring the respondents to remove the speeches from the internet where they are able to do so, and otherwise take all reasonable steps to bring the orders in the proceeding to the attention of any publisher of the speeches and to request them to remove the speeches from the internet;

(3) Injunctions prohibiting the respondents from communicating, otherwise than in private, in such a way as to convey the imputations in the speeches which I have found to be contrary to Pt IIA; and

(4) Injunctions requiring the respondents to publish notices on particular social media accounts or pages of theirs which explain the findings in this case.

250 On the premise that I am otherwise against them and that the question of relief therefore arises, the respondents do not dispute orders in the nature of (1) and (2) above in relation to the imputations that I have found are conveyed by the speeches. I accept that orders of that nature should be made, as is common in cases such as this: Faruqi v Hanson at [382] and [384]. Naturally, the declarations should be confined to the imputations that I have found are established and the injunctions should be restricted to the lectures and not include the interview and the sermon.

251 It is therefore orders in the nature of (3) and (4) that require further consideration.

The general principles

252 The question of relief is governed by s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth):

(4)     If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)     an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)     an order requiring a respondent to employ or re-employ an applicant;

(d)     an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)     an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)     an order declaring that it would be inappropriate for any further action to be taken in the matter.

Note 1:     The Federal Court, or a judge of that court, may award costs in proceedings under this section—see section 43 of the Federal Court of Australia Act 1976.

Note 2:     [omitted]

253 The power to award relief under that section is a broad power that is not restricted to the enumerated matters: McGlade v Lightfoot [2002] FCA 1457; 124 FCR 106 at [80] per Carr J. Further, the enumerated matters are not to be restrictively interpreted or applied: Faruqi v Hanson at [380]. Any relief that is ordered could be directed at serving a number of different functions, including preventing and eliminating discriminatory practices, having the symbolic value of the public denunciation of the actions that are the subject of the complaint as well as an educative and preventative benefit: Jones v Toben [2002] FCA 1150; 71 ALD 629 at [111] per Branson J. As remedial and beneficial legislation, the section should be accorded a “fair, large and liberal interpretation”, rather than one which is literal or technical: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232 at [32].

Injunction against repeating the unlawful conduct

254 There is no dispute that the Court has the power under s 46PO(4) to restrain the respondents from repeating the unlawful statements. Such injunctions have been ordered in previous cases: Silberberg v Builders Collective of Australia Inc [2007] FCA 1512; 164 FCR 475 at [17] and [37] per Gyles J; Jones v Scully at [243] and [247]. The question is whether the requirements justifying such an order have been established and whether the Court’s discretion to make such an order should be exercised.

255 Generally, courts will restrain further publication of unlawful speech if it is likely that the speech will otherwise be repeated: see, in the defamation context, Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 at [21]-[28] per Wigney J; Greenwich v Latham (No 2) [2025] FCA 131 at [6] per O’Callaghan J, and the cases cited in both. Whether that is so in this case is the first issue to be addressed.

256 In that regard, the applicants principally rely on an Instagram post by Mr Haddad on 27 May 2024. That was between the commencement of the applicants’ complaint about the speeches to the Australian Human Rights Commission on 19 March 2024 and its termination on 30 September 2024. The applicants submit that the post is antisemitic in a similar way to the speeches and demonstrates the risk that despite this proceeding Mr Haddad will continue to publish disparaging things about Jews.

257 The post in question is of a graphic, or meme, with commentary by Mr Haddad. The graphic is of a man with a beard and a large Star of David on his shirt and the words “IF I DON’T STEAL IT SOMEONE ELSE WILL”:

258 Mr Haddad’s commentary is this (as written):

Can someone from the Executive Council of Australian Jewry (ECAJ) either Peter Wertheim AM and Robert Goot AO SC who filed the complaint that alleging “racial hatred under the Racial Discrimination Act 1975 (Cth) (RDA)”

Can you please caption this post? It will be really appreciated

Also, while you are at it, do you condemn the illegal Jewish state of Israel’s #genocide taking place in #Gaza #rafah

259 The applicants point to the Star of David, an internationally recognised symbol of Judaism, and the depicted man’s beard said to be in the Jewish style as identifying the man as Jewish. They submit that the graphic’s subject of theft is the repetition of an age-old antisemitic trope that Jews are a thieving people.

260 The only evidence about the graphic is from Mr Haddad who said that it depicts “an individual who stole someone’s land in Palestine and said exactly what has been written there” (T171:43-46). On that basis, I am not satisfied from the graphic alone that the posting of it by Mr Haddad was intended or understood by him to be an antisemitic act. The Star of David is on the Israeli flag and is thus also a symbol of Israel. The graphic could be depicting a political criticism of Israel, and in particular Israeli government-sponsored illegal settlement of the Occupied Territories. As mentioned in relation to Speech B above, such a political criticism of Israel is not a criticism based on race or ethnic origin.

261 However, there is only one plausible reason why Mr Haddad could have posted the graphic and called upon the applicants in this case to respond to it. That is because they are Jews. In the absence of having established that the applicants support Israel’s sponsorship of Israeli settlement in the Occupied Territories, there is no credible basis upon which the applicants can be called on to account for the actions of the Israeli government or Israeli settlers in the Occupied Territories other than because they are Jewish. That is by its nature fundamentally antisemitic in the sense that it is a criticism of the applicants based on their race or ethnic origin.

262 In the result, I am satisfied that the posting of the graphic with the associated commentary by Mr Haddad is evidence of an intended public antisemitic act by him well after the commencement of the applicants’ complaint against him under the RDA. It is therefore evidence of there being a risk that he will continue to do so in the future.

263 There is also other evidence of that risk. Notably, Mr Haddad’s evidence is that he regards what is written in the Qur’an and the Hadith disparaging the ancient Jewish tribes as “eternal” so as to justify his generalised disparagement of Jews today. Despite the evidence of Sheikh Ibrahim, Mr Haddad has not backed down from that stance. He has shown no regret or remorse in relation to the speeches, and he has not apologised. He has also revelled in making offensive public statements about other sectors of the community, as discussed above in relation to Christians and Hindus.

264 In the circumstances, I find that despite the declarations that I intend making and the injunction requiring Mr Haddad to remove the lectures from the internet, there is a significant risk that he will continue to make disparaging statements otherwise than in private about Jews based on their race or ethnic origin. A prohibitory injunction preventing such conduct is accordingly justified. This is especially so having regard the purpose of Pt IIA of the RDA being to deter and eliminate, and thus protect members of the public from, racial hatred and discrimination, as I have said earlier in these reasons (at [170] and [246]) and in Faruqi v Hanson (at [342]-[345]).

265 That leaves the question of whether an injunction can be made in appropriately narrow and specific terms. The respondents point to Faruqi v Hanson (at [383]) where I declined to order an injunction against Senator Hanson from using the phrases “piss off back to Pakistan”, “go back to where you came from” or any variation thereof in public. That was because whether or not the use of those phrases is unlawful under s 18C is highly context specific. No proposal was made as to how an injunction could be worded that would take account of that context.

266 The specific wording sought by the applicants in this case for the injunction is that each respondent:

not cause words, sounds or images to be communicated otherwise than in private, which attribute characteristics to Jewish people on the basis of their group membership [and] which convey any of the imputations [pleaded imputations found to have been conveyed by the speeches].

267 This case is quite different from Faruqi v Hanson. Here the injunction is sought against specific disparaging imputations being conveyed, rather than against specific words being said – words which could carry different meanings in different contexts, including lawful meanings. The imputations sought to be restrained in this case cannot plausibly carry lawful meanings, nor be capable of comprising conduct that is reasonable and in good faith. To the extent that Mr Haddad wishes to repeat the literal words in part of his speeches to others, this would not be prevented by the terms of the injunction so long as there was appropriate commentary, context or qualification to make clear that he was not conveying the underlying imputations as truths.

268 This case is also different from Eatock v Bolt where the parties agreed that any injunctions should be directed at the publication or republication of the impugned articles themselves and not at the imputation conveyed by them: at [460]. Justice Bromberg (at [462]) accepted a submission from the respondents that the terms of an injunction should not extend to the publication of articles whose content was substantially the same as, or substantially similar to, that contained in the contravening articles. That was because the “language, tone and structure” of the publications had made a significant contribution to the unlawful manner in which the subject matter was dealt with, and the Court did not want to suggest that it was unlawful for a publication to deal with racial identification including challenging the genuineness of the identification of a group of people. In the present case issues of “language, tone and structure” play no role. The imputations are conveyed expressly, the only reliance on implication being in relation to the expressly stated disparaging characteristics being attributed to Jews today and not only to Jews of Medina in the seventh century.

269 I am therefore satisfied that the Mr Haddad should be restrained from conveying the established imputations other than in private. On account of the close association between Mr Haddad and AMDC as discussed above, I consider that the same analysis applies to AMDC and it should also be restrained.

Corrective notices

270 The terms of the relief that the applicants seek are that the respondents at their own expense and within 21 days publish notices on identified social media accounts or pages. For Mr Haddad, those are his Instagram and SoundCloud accounts. For AMDC, they are its Facebook and Rumble pages. It is proposed that it be ordered that in each case the relevant respondent must:

ensure that the Notice complies with the following specifications:

(c)     the Notice is viewable by clicking a post on the [relevant social media accounts];

(d)     the posts referred to in the previous sub-paragraph are located for a period of 30 days in the top third of the [relevant social media accounts] and are not obscured, blocked or interfered with by any operation of the [relevant social media accounts]; and

(e)     the post contains the words: “Unlawful behaviour based on racial hatred by William Haddad and Al Madina Dawah Centre – corrective notice order by the Federal Court of Australia”.

271 The proposed corrective notices are very similar. The proposed notice for AMDC to publish is in the following terms:

Unlawful behaviour based on racial hatred

by William Haddad and the Al Madina Dawah Centre Incorporated

Following action by Peter Wertheim AM and Robert Goot AO SC, Jewish members of the Australian community and officeholders in the Executive Council of Australian Jewry, the Federal Court of Australia has declared that William Haddad and Al Madina Dawah Centre Incorporated contravened section 18C of the Racial Discrimination Act 1975 (Cth) by making and publishing five speeches which were reasonably likely to offend, insult, humiliate or intimidate Jewish members of the Australian community and which were made and published because of the Jewish race or ethnic origin of some or all of the people in the group.

The speeches, The Jews of Al Madina Parts 1, 2 and 3, Murdered by Israel Khutbah Jummah, and Media Response to Reality of World Palestine, were made in November 2023 and published on the Al Madina Dawah Centre Inc’s Rumble page in November 2023.

The Federal Court of Australia found that the speeches included numerous statements which, by disparaging the Jewish people as a whole and repeating racist stereotypes about them, contravened the Racial Discrimination Act 1975 (Cth).

The Federal Court of Australia found that the speeches were not made or published reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for any genuine purpose in the public interest, or in publishing a fair and accurate report of any event or matter of public interest.

The Federal Court of Australia ordered William Haddad and Al Madina Dawah Centre to remove the offending speeches and not to repeat or continue such unlawful behaviour and to pay the applicants’ costs of the proceeding.

272 For reasons that were not explained, the penultimate paragraph in the proposed notice above is not included in the proposed notice for Mr Haddad. The proposed notices are otherwise in materially the same terms.

273 In light of the principles identified above, I am satisfied that the Court has the power to order the publication of such notices – to do so falls within s 46PO(4)(b), ie “an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant”. It is principally through the publication of the speeches on the respondents’ social media accounts that the impugned imputations were conveyed, and it would be a significant step of redress if it were required that corrective notices were published to the same accounts. That being said, the notices would need to be amended to refer only to the three lectures (Speeches A, C and E) in light of my earlier rejection of the imputations pleaded for Speeches B and D.

274 In Eatock v Bolt (at [466]), Bromberg J recognised that public vindication is important for various reasons including that it may help to negate the dissemination of racial prejudice. His Honour was satisfied that the newspaper respondent in that case should be ordered to print and publish online corrective notices and gave the parties the opportunity to address some further submissions on their contents (at [468]). It was subsequently ordered that corrective notice be published: Eatock v Bolt (No 2) [2011] FCA 1180; 284 ALR 114 at [14]-[23] per Bromberg J. The corrective notices had an introductory paragraph giving formal details of the proceeding and were otherwise limited to reproducing the declarations of unlawfulness made by the Court.

275 I am satisfied that a proper form of redress to be ordered in this case is that the respondents publish corrective notices on their relevant social media accounts for a period of 30 days. However, I am not satisfied for the present that the proposed specific requirements (quoted at [270] above) in that regard are workable in relation to the identified social media accounts. In particular, I am not satisfied that it is necessarily possible for the respondents to ensure that a post of the corrective notice will be “in the top third” of each of the relevant social media accounts and will not be obscured, blocked or interfered with by any operation of the accounts. Both seem to me to be technical matters to do with the operation of each of the different social media platforms. They may not be within the control of the respondents and the feasible settings may be different for different platforms. Those matters were not the subject of evidence or submissions before me.

276 Insofar as the terms of the corrective notices are concerned, I consider that the proposed terms quoted above (and as edited to refer to the lectures only) are suitable save that in the interests of brevity, and because to do otherwise will not materially detract from the meaning and effect of the notices, I consider that the penultimate paragraph should be omitted.

277 In those circumstances, I propose to give the parties an opportunity to address me further on the specific terms to govern the publication of corrective notices.

Costs

278 The applicants have been overwhelmingly successful. There is no reason why the respondents should not have to pay the applicants’ costs of the proceeding.

Associate:

Dated:    1 July 2025