Royal commissioner Virginia Bell is considering competing legal perspectives as her inquiry into antisemitism seeks to clarify the threshold between unlawful hate speech and permissible political expression. The challenge revolves around defining when criticism crosses into racial vilification, a complex issue underscored by divergent interpretations of a 2025 Federal Court ruling against jihadist preacher Wissam Haddad.
The case, presided over by Justice Angus Stewart, determined that Haddad’s sermons were illegal under section 18C of the Racial Discrimination Act for promoting antisemitism. However, Stewart drew a distinction regarding one statement in which Haddad asserted that Palestine must be “cleansed from the filth of the Zionists.” The judge ruled this was not a racial vilification since “an ordinary, reasonable listener would not understand those things to be about Jewish people,” but rather a political critique aimed at Zionism as an ideology, separate from Jewish identity. Stewart’s judgment emphasized that criticism of Israel, even if inflammatory, does not automatically equate to antisemitism, whereas blaming Jews collectively for Israel’s policies does.
Two senior legal figures have since provided contrasting advice to the royal commission on this point. Former High Court chief justice Robert French, who served alongside Bell, endorsed Stewart’s distinction without making formal recommendations. French highlighted the constitutional challenges inherent in regulating hate speech and cautioned against adopting a rigid legal definition of antisemitism that could infringe on free expression. His submission endorsed existing laws as sufficient to capture unlawful racial vilification while protecting legitimate political debate.
In contrast, Marcus Solomon, the first rabbi appointed to the Western Australian Supreme Court, expressed concerns that the Federal Court ruling might inadvertently enable antisemitism to flourish. Speaking during the 15th Austin Asche Oration in July and in his written submission, Solomon questioned Stewart’s reliance on the perspective of an “ordinary, reasonable listener.” He argued the test should consider the viewpoint of the group targeted—in this case, Jewish people—who may perceive such statements as antisemitic regardless of stated intent. Solomon contended that the commission should reconsider this legal approach to better reflect the lived experience of Jewish communities and to prevent the legitimization of harmful speech under the guise of political critique.
The divergent views from Justice French and Justice Solomon underscore the delicate balance the royal commission must strike between safeguarding freedom of speech and effectively addressing racial vilification. Commissioner Bell faces the difficult task of recommending legal and policy parameters that protect Jews from discrimination while respecting constitutional limits on speech regulation. The commission’s findings could have significant implications for the future of Australia’s anti-discrimination framework and societal cohesion.