The University of Sydney has argued that an article written by a staff member that criticises Zionism was not racist against Jewish people because “Zionism is, at its core, a political concept”.
The argument was heard in the federal court on Monday as part of a racial discrimination case taken by academics against two of their colleagues and the university, in what is being considered a major test case for hate speech in Australia.
The three academics, led by Joseph Toltz, and one student have argued their colleagues Dr Nick Riemer and Prof John Keane breached section 18C of the Racial Discrimination Act in a number of separate public comments which criticised Zionism and Israel. That section of the act makes it an offence to “offend, insult, humiliate or intimidate” another person or group on the basis of their race, colour, or national or ethnic origin.
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In response, Keane and Riemer, who is also the vice-president of the National Tertiary Education Union (NTEU) at the University of Sydney, have argued that criticising Zionism or Israel is not racist hate speech.
Toltz and the other applicants have also claimed that the University of Sydney is vicariously liable for an article by Riemer in the Overland literary journal, and a speech and post in which he said “there is no room for Zionism in our unions”.
Act does not capture ‘criticism of political views’
On Monday in a interlocutory hearing before Justice Geoffrey Kennett, lawyers representing the university argued the vicarious liability case against it should be summarily dismissed. Riemer and Keane have not joined this application.
The university’s barrister Robert Dick SC, who is not acting on behalf of Riemer and Keane, told the court the racial discrimination act is clear that it does not capture “criticism of political views”.
“Zionism is at its core a political concept,” Dick told the court.
“If you identify with Zionism you may be offended when you read these posts,” he said, referring to a post by Riemer about unions. “But if it’s not to do with your race, your colour or your ethnic origins, then you are excluded as a candidate for establishing a breach [of the racial discrimination act].”
In the post, Riemer had said “there’s no room for racism, for settler colonialism, for apartheid in our unions, and there is no room for Zionism in our unions”.
Toltz claimed that one of two imputations from this post was that: “Jewish people and Israeli people should be excluded from any participation in unions in Australia including in the National Tertiary Education Union.”
He also argued that Riemer’s various posts contravened the act because “references to Zionists are, properly understood, to be a reference to (at least) a majority of Jewish people and Israeli people in Australia”.
But Dick said the posts were not seeking to call for the exclusion of Jewish or Israeli people, and therefore should not be found in breach.
Dick also argued that even if it is accepted that many Jewish and Israeli people identify with “Zionism and as Zionists”, not all do. He also raised that people who aren’t Jewish or Israeli can also identify with Zionism.
Toltz argued the university is also vicariously liable for an article published by Riemer in Overland on 15 October 2023.
Riemer wrote in the article: “Palestine solidarity is not just internationalism or anti-colonialism or antiracism or even humanitarianism; it is not just an expression of compassion, or altruism, or basic decency: it is a necessity for the defence of democratic prerogatives against authoritarianism and neo-fascism in Western nations.”
“In cheering on the antidemocratic suppression of protest Zionists sometimes thought of as ‘liberal’ have let their masks slip. Their support for Israeli apartheid and permanent war against Palestinians can only mean opposition to democracy in their own countries.”
Toltz claimed that one of the imputations from this article was “Jewish people and Israeli people have now been exposed as racist supporters of apartheid and of a permanent war against Palestinians as well as being people who surreptitiously oppose democracy in their own countries”.
Dick disputed this, saying nowhere in the article does it say that Jewish or Israeli people have engaged in racism, settler colonialism or apartheid.
He also told the court Zionism or Zionists cannot be considered a “direct synonym” for Jewish or Israeli people.
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Judge urged to focus on victims’ perspective
On Monday afternoon, Adam Butt SC, appearing on behalf of Toltz, argued there did not need to be express reference to Jewish people or Israelis for there to be a breach under section 18c. He urged the judge to focus on the victims’ perspective, arguing that many Jewish Australians “experience anti-Zionism as antisemitism”.
He also asked the court to consider the International Holocaust Remembrance Alliance definition of antisemitism as an “analytical tool” when considering if the posts by Riemer were antisemitic.
He argued Riemer was using “Zionist” as a “pejorative synonym for Jew or Israeli”.
Justice Kennett asked Butt: “If Dr Riemer thinks the behaviour of the state of Israel is reprehensible [or] positions taken by Zionists in the public debate are reprehensible, how does he say that without breaching the section [18c]?”
Butt responded that it depended on the context and whether there is an imputation that it was done because of race or nationality.
The claims against Reimer extend to numerous posts, chants and speeches, beyond what the University of Sydney has been accused of being vicariously liable for.
One of the posts Riemer made on the 12 November 2023 criticised the ABC for sacking Antoinette Lattouf.
Keane has been accused of celebrating Hamas actions on 7 October after he published “5 green Hamas flags with Arabic writing visible on them” the day after on his X account.
Butt said on Monday there was a “wider case” against Riemer, claiming he had a “tendency to breach section 18C or to make antisemitic comments”.
Butt argued that some of the examples were implied and some were express antisemitic tropes. He told the court that an express example was a post by Riemer on his X account in February last year where he said “Zionists are losing their license to lie and slander”. The comment was in reference to a news article that reported the police had found no evidence people chanted “gas the Jews” at a pro-Palestine rally at the Sydney Opera House.
In response, Justice Kennett said: “Well a lot of people are accused of lying and slander. Is this a classic antisemitic trope?
Butt responded: “Yes, it is.”
Prof Suzanne Rutland, Ariel Eisner, and Yaniv Levy have also joined Toltz’s application against the two academics.
The case before Kennet will return to court on Tuesday.
