Federal Court of Australia

Toltz v Keane (No 2) [2026] FCA 641

ORDERS

THE COURT ORDERS THAT:

1.    The applicants have leave to continue the proceeding on their own behalf and on behalf the following people:

(a)    Lionel Babicz

(b)    Yulia Berlin-Firer

(c)    David Celermajer AO

(d)    Ilan Dar-Nimrod

(e)    Jennifer Dowling

(f)    Yona Gilead

(g)    Judy Kay

(h)    Gustav Lehrer FAA AM

(i)    Guy Mayraz

(j)    Peter Morgan

(k)    Loren Mowszowski

(l)    Lynne Swarts

2.    The title of the proceeding be amended accordingly.

3.    The applicants have leave to file a further amended statement of claim in the form provided to the respondents’ solicitors and the Court on 20 March 2026, including the annexure thereto, on condition that:

(a)    [24A] is deleted;

(b)    [25(b)] is deleted;

(c)    [27A] is amended to replace “Since 7 October 2023” with “Between 7 October 2023 and the removal of the Staff Members Post on 21 May 2024 and the particulars numbered 3 to 23 are deleted;

(d)    [28A] is deleted;

(e)    the words “(and reinforced by the matters in [24A] and [28A])” in [35(a)] are deleted;

(f)    the words “and their non-removal” are deleted from [37] and [38]; and

(g)    the particulars to [53] are deleted.

4.    The costs of the interlocutory application filed on 20 February 2026 be reserved.

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

REASONS FOR JUDGMENT

KENNETT J:

Introduction

1    The applicants seek relief under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) for alleged breaches of s 18C of the Racial Discrimination Act 1975 (Cth) (the RDA) by the first respondent (Professor Keane). The acts involving the alleged breaches and how the applicants’ claims were articulated were discussed in some detail in Toltz v Keane [2025] FCA 1386 (Keane No 1), which was handed down on 14 November 2025. In Keane No 1 I granted leave to the applicants to file an amended statement of claim on the basis that certain material was to be removed from the draft before filing. I will refer to the proposed amended statement of claim canvassed in Keane No 1 as ASOC1. Where the parts of ASOC1 that I required to be deleted are discussed below, I refer to them for brevity as having been “struck out”.

2    I ordered the parties to provide draft timetabling orders for further steps in the proceeding including the filing of an amended statement of claim “that complies with the above orders” and any further amendment application “arising from” my orders or reasons. After considering the parties’ draft orders, I made orders on 2 December 2025 which provided for the filing of an amended statement of claim “in accordance with” the leave granted on 14 November 2025. The orders of 2 December 2025 were replaced on 3 February 2026 but the new regime included a similar order in respect of the filing of an amended statement of claim. No express provision was made in those orders for an application to make further amendments.

3    The applicants filed an interlocutory application on 20 February 2026. It sought leave for the first and second applicants to continue the proceeding on their own behalf and on behalf of 12 other individuals and to amend the title of the proceeding accordingly. Those orders are not opposed and will be made. The applicants also sought leave to file an amended statement of claim in the form attached to the supporting affidavit of their solicitor. Some of the proposed amendments were opposed by Professor Keane.

4    On 20 March 2026 a new version of the proposed amended statement of claim (which I will refer to below as ASOC2) was provided to the respondents and the Court. It includes, in an annexure, lengthy particulars that had previously been provided in correspondence. I have treated ASOC2 as embodying the amendments that the applicants seek to make. This is the version to which the parties directed their written submissions (filed by Professor Keane on 8 April 2026 and by the applicants on 22 April 2026) and their oral arguments on 5 May 2026.

5    For the purpose of determining the interlocutory application, the amendments reflected in ASOC2 can be divided into four categories:

(a)    those which Professor Keane accepts are within the scope of the leave granted by Keane No 1;

(b)    those which, while arguably not within the scope of that leave, are uncontroversial;

(c)    those which, Professor Keane contends, are objectionable because they attempt to reintroduce material that was struck out by Keane No 1; and

(d)    those which, Professor Keane contends, introduce new material that should not be permitted.

6    Only categories (c) and (d) require attention in these reasons.

7    The issues that arise overlap to a large extent with those that were agitated in a parallel application in Toltz v Riemer (No 2) [2026] FCA 640 (Riemer No 2) which was heard concurrently with this application. Where the same issues arise, I will refer to my reasoning in Riemer No 2 rather than repeating it here.

8    For ease of reference, it is useful again to set out s 18C of the RDA. It provides as follows.

(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:    Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

(2)    For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)    causes words, sounds, images or writing to be communicated to the public; or

(b)    is done in a public place; or

(c)    is done in the sight or hearing of people who are in a public place.

(3)    In this section:

public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Reintroducing material that was struck out (category (c))

9    There is only one paragraph of the ASOC2 that seems to come within this category.

10    In Keane No 1 I struck out ASOC1 [28], which read as follows.

Hamas’s terrorist acts described above were taken because Hamas’s leadership, commanders, members and operatives in the field believed the men, women and children intended by them to be subjected, and in fact subjected, to those acts:

a.    were overwhelmingly Jewish persons or Israeli persons; and

b.    were subjected to those acts because they were or were believed to be in almost all cases Jewish persons or Israeli persons.

11    ASOC2 [28A] reads as follows.

It has been widely reported, and/or Jewish and Israeli persons have read and believe on the basis of that information, that Hamas’s terrorist acts described above (see [25]-[26]) were taken because Hamas’s leadership, commanders, members and operatives in the field believed that the men, women and children intended by them to be subjected, and in fact subjected, to those acts:

a.    were Jewish persons or Israeli persons; and

b.    were subjected to those acts because they were or were believed to be in almost all cases Jewish persons or Israeli persons.

12    ASOC2 [28A] is identified in the annexure to Professor Keane’s submissions as within category (d), but it appears from the body of the submissions that it is objected to on the category (c) ground as well.

13    ASOC2 [28A] is materially identical to the proposed insertion that is discussed in Riemer No 2 at [10]-[13]. For the reasons set out there, it should not be permitted to be included.

New material (category (d))

The controversial amendments

14    The aspects of ASOC2 that Professor Keane identifies as going beyond the scope of any leave are (excluding [28A] which is discussed above) as follows.

15    First, ASOC1 [13] pleads that Israel is a nation state and the national home of and for the Jewish people and that its citizens are mostly Jewish people. ASOC2 [12] would set out these propositions as sub-paragraphs and add sub-paragraph (c), as follows.

c.    Most Jewish persons in Australia:

(i).    feel a personal connectedness with Israel and Israeli people;

(ii).    have relatives living in Israel; and

(iii).    have a concern for the safety of Israelis.

16    Second, ASOC1 [14] pleads Professor Keane’s position at the University. ASOC2 [13] would add a new sub-paragraph (c) alleging that Professor Keane is “a senior supporter/member of the Sydney Staff for Boycott, Divestment and Sanctions movement at Sydney University”.

17    Third, ASOC2 [24A], which is new, reads as follows.

It has been widely reported and/or Jews and Israelis have read and believe on the basis of that information and/or the Hamas Covenants referred to above, that Hamas is committed to:

a.    Destroying Israel; and

b.    Killing Jewish persons or Israeli persons

18    Fourth, ASOC1 [26] refers to the events of 7 October 2023 and pleads that more than 1,200 Jewish persons were killed, raped, maimed, sexually abused or tortured on that day. Renumbered as ASOC2 [25], it would add a sub-paragraph to the effect that this amounted to the greatest loss of Jewish lives on any single day since the Holocaust.

19    Fifth, ASOC2 [27A], which is new, reads as follows.

Since 7 October 2023, there have been circumstances manifesting a sustained increase in antisemitism or discrimination towards Jews and Israelis in Australia including harm and damage to Jewish or Israeli people and/or their property which inform the reasonably likely reaction of Jewish or Israelis (pl) persons to the impugned conduct set out below.

20    There are 23 paragraphs of particulars to ASOC2 [27A], all but one of which refer to specific events in or around Sydney between October 2023 and February 2026. The final particular refers in a much more generalised way to Australian universities having “been an environment in which considerable and frequent antisemitic/antizionist … conduct” has occurred.

21    Sixth, ASOC1 [30] alleges that by October 2024 one of Professor Keane’s posts had about 6,125 views. Renumbered as ASOC2 [29], it would replace the earlier number of views with 6,228 and add the words “and remains accessible”.

22    Seventh, ASOC1 [54] pleads that the impugned acts were done or made “because of the race, national or ethnic origin of the people reasonably likely to be offended, insulted, humiliated or intimidate (sic)” and then sets out in sub-paragraphs six considerations which are apparently put forward as supporting that conclusion. Sub-paragraph (f) is as follows.

f.    Professor Keane has a tendency to engage in conduct which does and is intended to offend and/or insult and/or humiliate and/or intimidate Jewish people and Israeli people.

23    ASOC2 renumbers this paragraph as [53] and would add, underneath sub-paragraph (f), the heading “Particulars” followed by “Particulars of conduct are annexed to this Amended Statement of Claim”. Those particulars, contained in the annexure to the document, comprise a list of 62 articles, posts and other public statements allegedly made by Professor Keane between 2004 and December 2025.

24    Proposed amendments in ASOC2 [35] and [39] are objected to on the basis that they contain cross-references to paragraphs which (or amendments to which) are the subject of objection.

The amendments generally: leave to amend

25    Professor Keane makes a global objection to the effect that leave should not be granted to the applicants to reformulate or add to their case again given the length of time taken in the proceeding and the prejudice caused to him. This submission is rejected for the reasons set out in response to an identical submission in Riemer No 2 at [30]-[38]. The proposed addition to ASOC2 [13] was objected to only on this basis and does not need to be discussed further. Other amendments, to which further arguments were directed, are discussed below.

New claims and s 46PO(3) of the AHRC Act

26    My reasons in Riemer No 2 at [39]-[71] discuss an objection to several proposed amendments in that case which was made on the basis that Dr Riemer’s failure to remove impugned posts was not the subject of the complaint made by the applicants to the Australian Human Rights Commission (the Commission). For the same reason Professor Keane objects to the amendment in ASOC2 [29] set out above. He also seeks the excision of the words “and its non-removal” from ASOC1 [38] and [39] (repeated as ASOC2 [37] and [38]), which plead, in respect of Professor Keane’s posting of the “Hamas Flag post”, that it was reasonably likely to offend, insult, humiliate or intimidate the applicants and other Jewish and Israeli people and that it was done because of the race, national or ethnic origin of the people reasonably likely to be offended, insulted, humiliated or intimidated). Because ASOC1 has not been filed, the latter point also comes within the class of objections to proposed amendments rather than an application to strike out part of an existing pleading.

27    Professor Keane accepts that the applicants’ claims in respect of the other post that is impugned in the proceeding (the “Staff Members Post”), as put in the complaint to the Australian Human Rights Commission, expressly included the non-removal of that post. He therefore makes no criticism of the inclusion of alleged non-removal in the case sought to be pleaded in connection with that post. However, he objects to the inclusion of non-removal as an element of the case against him concerning the Hamas Flag post in circumstances where the relevant paragraphs of the complaint (including the form that it took after being amended) did not include any reference to non-removal. This analysis of the contents of the complaint was not really in dispute and, having examined the original complaint and the letter seeking to amend it, I accept that it is correct.

28    The reasoning in Riemer No 2 at [39]-[71] is therefore equally applicable to the references to non-removal in ASOC1 [38] and [39], repeated in ASOC2 [37] and [38]. Those references should be removed before the document is filed. Consistently with my approach in Riemer No 2, I will allow the amendment in ASOC2 [29] because the number of times the post has been viewed may possibly be relevant in other ways.

Events after the impugned conduct

29    ASOC2 [27A], which is set out above, alleges that there have been “circumstances manifesting” a sustained increase in antisemitism in Australia since 7 October 2023. It is substantially identical to the paragraph discussed in Riemer No 2 at [36]-[37] and [69]-[71].

30    The equivalent paragraph in Riemer No 2 was allowed to be filed only in a form that limited it to a specific period of time (and correspondingly omitted most of the particulars). That, however, was a consequence of the view that I had reached on the issue of non-removal in Riemer No 2. Here, Professor Keane accepts that the failure to remove his “Staff Members Post” is part of the conduct that the applicants can (and do) allege against him as contravening s 18C of the RDA. The likelihood of his conduct causing offence, insult, humiliation or intimidation to Jewish or Israeli persons therefore, at least in principle, is to be analysed by reference to the whole of the period for which that post was accessible.

31    The Staff Members Post was made on 8 November 2023 and removed on 21 May 2024. The allegation in ASOC2 [27A] is therefore relevant in so far as it refers to that period. I will therefore allow the insertion of ASOC2 [27A] in a modified form and with its particulars limited to “circumstances” in that period. That will exclude the final “particular” (which, as I observed in Riemer No 2 at [70], is too general to be useful as a “particular”).

Other particular objections

32    ASOC2 [12(c)] is in the same terms as the amendment discussed in Riemer No 2 at [73]. It was resisted, and should be allowed, for the reasons discussed there.

33    ASOC2 [24A] introduces the objectives of Hamas as an aspect of the understandings of Jewish and Israeli people. On this basis it is potentially relevant, in the same way as [12(c)], to the likelihood of certain kinds of material (such as Professor Keane’s Hamas Flags Post to cause insult, offence, humiliation or intimidation to members of the “group” that is in issue here. It is objected to, and should not be allowed, for the same reasons as the identical proposed amendment which is discussed in Riemer No 2 at [10] and [74].

34    ASOC1 [26] alleges that on 7 October 2023 Hamas members illegally invaded Israel and killed, maimed, sexually abused and tortured more than 1,200 people. ASOC2 [25] would put the same proposition as sub-paragraph (a) and insert, as sub-paragraph (b), the proposition that this was the greatest loss of Jewish life on any single day since the Holocaust. This is resisted, and should not be allowed, for the same reasons as the identical amendment discussed in Riemer No 2 at [75].

ASOC2 [53]: particulars

35    The particulars sought to be added to ASOC2 [53], which appear to relate only to the proposition concerning tendency in sub-paragraph (f), have the same difficulties as the equivalent particulars supplied in connection with Dr Riemer (Riemer No 2 at [86]-[89]). They are not particulars of the alleged tendency but a list of evidence apparently relied upon to establish its existence. While Professor Keane is not required to plead to particulars, the inclusion of a list of this length, infused with conclusory summaries, is excessively burdensome. The particulars to ASOC2 [53(f)] should be deleted.

Cross-references

36    ASOC2 [35(a)] would amend an existing cross-reference to take account of renumbering, so that it now refers to the activities mentioned in ASOC2 [25]-[26]. I do not understand this to be objectionable. However, it also would insert additional text so as to allege that the Hamas Flag post carried the following imputation:

The activities described in [25]-[26] above (and reinforced by the matters in [24A] and [28A]) of Hamas on October 7, which involved the killing, rape, maiming, sexual abuse, kidnapping and torture of Jewish and Israeli persons, because they were believed to be Jewish or Israeli, was an event that was to be celebrated, endorsed, supported and approved of.

37    The sub-paragraph as amended does not make grammatical sense. More importantly, I have rejected ASOC2 [24A] and [28A]. The new text in parentheses therefore should not be included.

38    ASOC1 [40] included a reference back to [16]-[39] as the premise for an allegation. Renumbered as ASOC2 [39], it would update that cross-reference so as to refer to [15]-[38]. That span of paragraphs includes some material that I have ordered not to be included. However, that does not call for any change to the text proposed in ASOC2 [39].

Disposition

39    Leave will be granted to file an amended statement of claim in the form of ASOC2 with deletions and modifications in accordance with my conclusions above.

Associate:

Dated:    26 May 2026

SCHEDULE OF PARTIES