Wertheim v Haddad [2025] FCA 720 (1 July 2025)  

Summary

Two board members of the Executive Council of Australian Jewry successfully argued in the Federal Court of Australia that an Islamic preacher contravened section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) when he delivered and published a series of lectures relating to events in Gaza.

Justice Angus Stewart found that the lectures contained “fundamentally racist and antisemitic and devastatingly offensive and insulting” statements (at [197]), and rejected the respondents’ claims that the lectures were made reasonably in the public interest or protected by the implied freedom of political communication. 

Facts

In November 2023, an Islamic preacher, William Haddad, delivered a series of lectures to the congregants of the Al Madina Dawah Centre (AMDC) in Bankstown, New South Wales. Mr Haddad and the AMDC were the first and second respondents in the Federal Court proceeding. Each lecture was recorded and uploaded to the social media accounts of Mr Haddad and the AMDC. 

The applicants in the proceeding, Peter Wertheim AM and Robert Goot AO SC, alleged that the lectures constituted acts reasonably likely to offend, insult, humiliate and intimidate Jewish people in Australia, in contravention of section 18C of the RDA.  

Decision 

Justice Stewart first considered whether the lectures conveyed the “imputations” pleaded about Jewish people. His Honour found that 25 of imputations pleaded by the applicants were conveyed, including: 

1. Jews are mischievous, arrogant, shifty, slanderous, troublemakers, cowards, constantly break their agreements, conspiratorial, wicked, schemers, treacherous and vile; and 
2. Jews are murderous and rebellious including by oppressing one another and their own prophets and by wanting to attack women and children. 

Justice Stewart did not find that the pleaded imputations were conveyed in every instance. His Honour concluded that the imputations could not be established in a lecture in which Mr Haddad criticised Israel, the Israel Defense Forces and Zionists.  

Justice Stewart acknowledged that political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jewish people in general or based on Jewish racial or ethnic identity. Justice Stewart distinguished between legitimate political discourse and antisemitism, stating at [107]:

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.   

Justice Stewart set out the requirements for the established imputations to constitute a breach of section 18C as follows: 

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. 

The respondents conceded the first element, leaving the second and third elements in dispute.   

Element 2: “Reasonably like to offend” 

The respondents asserted that, to constitute a breach of section 18C(1)(a) of the RDA, the lectures were required to have been reasonably likely to come to the awareness or perception of the relevant group, meaning that the element would not be met where members of a group had gone out of their way to expose themselves to speech they would have not otherwise encountered.  

This construction was rejected by Justice Stewart. His Honour concluded that once it was established that an act was done otherwise than in private, it was taken as given that the relevant person or group of people became aware of it. 

The remaining question in assessing the second element of section 18C therefore became whether the imputations were reasonably likely to offend the ordinary or reasonable hypothetical representative of Jewish people in Australia.  

His Honour characterised this hypothetical representative as one with a consciousness of the circumstances of the Holocaust, a familiarity with antisemitism, and an experience of distress and fear at the events of 7 October 2023. The respondents submitted that Jewish people in Australia were also accustomed in a multicultural and pluralistic society to being exposed to a diversity of “challenging and confronting” beliefs and ideas (at [194]). 

Justice Stewart found that the pleaded imputations were fundamentally racist and antisemitic, devastatingly offensive and insulting, and likely to have a profound and serious effect on Jewish Australians. This conclusion was not altered by the “moderating characteristics” of Jewish people in Australia set out by the respondents. 

Element 3: “Done because of race, colour or origin” 

Justice Stewart rejected the respondents’ argument that the imputations were made because of the faith, not race or ethnicity, of Jewish people.  

Critically, his Honour could not identify any aspect of Mr Haddad’s understanding of the Jewish religion which would support the fundamentally racist and antisemitic tropes and stereotypes contained in the imputations. 

Defences 

Section 18D(b) defence  

Both respondents relied on the defence in section 18D(b) of the RDA which protects statements made for a “genuine purpose in the public interest”. The AMDC also asserted that the publication of the speeches was exempted by the section 18D(c)(i) exemption for a “fair and accurate report of any event or matter of public interest”.  

Justice Stewart was not persuaded that the statements were made in the genuine pursuit of delivering religious, historical or educational lectures or commentary, but instead “for the purpose of stirring controversy” (at [230]).  In relation to the section 18D(c)(i) exemption, Justice Stewart was not convinced that the delivery and publication of the lectures on social media was done reasonably nor in good faith, noting that the inflammatory and denigrating comments were made without “justification in Islamic scripture” (at [234]).    

In the event that the section 18D defences failed, the respondents also mounted two constitutional defences. They challenged the constitutional validity of the relevant part of the RDA on the basis that it conflicted with the implied freedom of political communication recognised in Lange v Australian Broadcasting Corporation [1997] HCA 25, or the free exercise of religion provided for in section 116 of the Constitution. 

Justice Stewart dismissed both alternative defences. 

Alternative defence 1: Implied freedom of political communication 

The respondents sought to distinguish their case from the recent decision by the Federal Court in Faruqi v Hanson [2024] FCA 1264 (see our case note here), contesting that Mr Haddad’s statements were overtly political in their content. His Honour disagreed, finding that the impugned statements were not about Gaza, but about Jewish Australians and were in fact less political than the commentary regarding the functioning of a system of representative and a responsible government in Faruqi v Hanson [2024] FCA 1264. 

Alternative defence 2: Free exercise of religion 

Finally, the respondents asserted that Part IIA of the RDA had the purpose of prohibiting speech that includes the free exercise of religion. His Honour, referencing the Act’s object of protecting members of the public from racial hatred and discrimination, dismissed this argument at [247]: 

“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.”

Relief

Justice Stewart declared that the respondents had contravened the RDA, and granted injunctions requiring the respondents remove the speeches from the internet, take all reasonable steps to request the speeches be removed by other publishers, and cease communicating, otherwise than in private, in such a way as to convey the imputations.   

His Honour also agreed to an injunction requiring the respondents to publish notices on their social media accounts explaining the findings in the case. 

Commentary 

This decision further clarifies the boundary between robust commentary — the “challenging and confronting” beliefs and ideas that the respondents submitted are familiar in a pluralistic society — and dangerous speech. 

Veiling speech in the covers of “political communication” will not be a sufficient justification where the speech has no reasonable connection with the public interest and is made to inflame or denigrate. 

In light of expanded hate crime legislation introduced by federal and state governments in February 2025, further litigation considering the bounds between protected and unprotected speech can be expected.  

The full case judgment can be found here.