Federal Court Ruling: Wertheim v Haddad [2025] FCA 720– What Faith Leaders, Advocates & Commentators Need to Know
Wertheim v Haddad presented the Federal Court with an unusually complex canvas: a case with claims of theology, geopolitics, and racial hatred. Crucially, the Court did not find that citing religious texts about ancient Jewish tribes is unlawful in itself. But it drew a clear boundary where the speaker could find themselves in a lot of legal trouble.
When Speech Crosses the Line
The Court found that several of Mr Haddad’s remarks did breach the Racial Discrimination Act. His arguments—that he was merely offering Islamic exegesis or Tafsir—were ultimately unconvincing. While religious discussion is afforded protections, it must still be conducted “reasonably and in good faith.” That threshold, the Court found, was not met.
Significantly, both sides in the case presented theological experts who agreed on one thing: Islamic texts do not teach that Jews are inherently bad people. As Sheikh Ibrahim, an expert witness for the defence, put it plainly: “Islam does not encourage hatred towards Jews.” With that agreement in place, the Court didn’t have to wade into the thorny territory of whether religion could ever justify hate speech.
What troubled the Court most in Mr Haddad’s sermons was his failure to make key distinctions: between the ancient Jewish tribes of scripture and the Jewish communities of today; between Jews who support Zionism and Jews who do not. These omissions had consequences.
Anti-Zionism is not Antisemitism
The public debate has, for some time, been saturated with the assertion — advanced by Zionists across a wide spectrum of racial, ethnic, religious and national identities — that anti-Zionism is, by definition, antisemitism. This has been a frequent refrain in complaints to institutions, often aimed at sanctioning individuals who advocate for human rights or who publicly raise concerns about Israel’s conduct in relation to international law.
This recent legal judgement has now delivered a rather firm line rejecting that claim.
However, it also shows that if you’ve already blurred the categories of Zionist and Jew, the law may very well assume that you treat them as indistinguishable.
The more accurate question
In this context, it’s inadequate — and potentially misleading — to frame the substitution of “Zionist” for “Jew” as either a protective euphemism or a red flag. Such a binary did not guide the court’s reasoning. What matters, instead, is the deeper question: has the speaker engaged in a form of essentialism — treating a religious or racial group as homogenous, interchangeable, or devoid of individual agency?
To do so is not just careless. It strips people of their personhood — of the complexity, contradiction, and interior life that make up human identity. And in that sense, the act itself becomes dehumanising.
In one sermon (Speech A), Mr Haddad stated explicitly:
“If you want to call them Zionists, call them Zionists … [i]n essence there is no difference.” – [45]
This was a pivot point. The Court found that because Mr Haddad collapsed the distinction between Jews and Zionists, his later criticisms of “Zionists” were reasonably understood as criticisms of Jews generally. The Court’s analysis was not merely a matter of language, but of framing, repetition, and the broader narrative being pushed.
In another sermon (Speech B), the Court reached a different conclusion:
“He is quite specific in the sermon. He is critical of Israel, the IDF and Zionists … Political criticism of Israel … is not by its nature criticism of Jews in general.” – [107]
When Criticism Remains Political
That said, not all of Mr Haddad’s speeches crossed the line. The Court found that his later sermon, delivered during the Israeli military’s bombardment of Gaza, focused on political and military actors: the State of Israel, the IDF, Zionist media interests, and right-wing politicians who supported Israel’s actions.
These comments, while provocative, were not about Jews as an ethnic or religious group. They were political, and—within the bounds of public discourse—lawful.
Justice Stewart was at pains to reiterate that criticism of Israel’s actions, no matter how fierce, is not by its nature antisemitic. He pointed to South African case law, highlighting that Australian courts are only now beginning to contend with this issue.
Notably, the applicants themselves stopped short of claiming that criticism of Israel was antisemitic, rather alleging the speech was about Jewish people.
Implied Meaning
The crux of the dispute is interpretive. The Court, in its reasoning, took a broader lens to the material, recognising that, while certain passages might, on a surface reading, appear to reference seventh-century Jews in Medina, the real significance lay in the framing. This wasn’t just a history or religious lesson. Rather, the lectures were pitched as an explanatory device—an attempt to draw a straight line from the ancient conflicts at the time of the Prophet to the contemporary crimes in Gaza.
However, this focus on context didn’t always lead the court in one direction.
One key phrase—“cleansed from the filth of the Zionists”—was cited by the applicants as implying that Jewish people are inherently filthy. The Court disagreed. Read in context, it was seen as referring to Israeli occupation, not Jewish people. The distinction, while subtle, was crucial.
Likewise, references to the apocalyptic “miracle of the stones and trees” were interpreted by the Court not as literal incitement, but as a kind of theological tit-for-tat—responding to media criticism by pointing out that religious texts across traditions contain violent metaphors.
In one final contested passage, Mr Haddad called out Scott Morrison and other Western politicians for their support of Israel and refusal to call for a ceasefire. His use of the phrase “murdering cowards” was directed at the media’s double standard, not at Jews.
Again, objective context mattered. The political moment.
Social Media meme
The applicants pointed to an Instagram post by Mr Haddad on 27 May 2024 to argue that he was likely to keep making offensive comments about Jews. The post, made after the complaint had been lodged, featured a graphic or meme with added commentary from Mr Haddad:
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
At first glance, the graphic in question might have appeared as blunt political commentary. The Court identified the Star of David—central to the Israeli flag—and observed that it appears alongside a caption referencing land theft in Palestine. On its surface, it seemed to be a critique of Israeli policy, especially the long-standing and well-documented issue of illegal settlements in the Occupied Territories. And as the Court acknowledged, such criticism, even when strongly expressed, is not antisemitic.
But the judgment didn’t stop at appearances. It moves to what lawyers like to call the second limb—the who, not just the what.
Yes, the image was political. However, the commentary that accompanied it demanded a response—not from Israeli officials or policymakers, but from the Jewish applicants in this case. And it did so solely on the basis of their racial identity.
A possible alternate reading could have been that Mr Haddad may have been responding not to the applicants’ religion or ethnicity per se, but to a political alignment with Zionism or support for the Israeli state, which were clearly on the public record. However, this was not explicitly stated by Mr Haddad in his post.
Instead, the Court returned to first principles. There is, it said, no legitimate basis for demanding that Jewish Australians account for the actions of a foreign government, particularly a government they may not support, or with which they may feel no political or cultural affinity.
To conflate the two is not simply a rhetorical misstep. It is potentially racist.
The judgment serves as a reminder that digital speech—memes, graphics, and stray captions—are no longer considered throwaway in the eyes of the law. These fragments of online expression are increasingly central to how courts assess public meaning, intent, and future risk.
In this case, Justice Stewart took the view that the post was not merely a past misjudgment—it was a window into the likelihood of future repetition. That, too, matters.
But there is something broader here—something that won’t be lost on other communities, including Muslims.
Because the experience of being held collectively responsible—of being asked to apologise for the acts of Hamas, or to pre-emptively distance oneself from terrorism—is all too familiar. It’s the same script. When Palestinian voices surface online to express grief or loss, they’re met with demands to “release the hostages.” The assumption that one’s identity carries a political burden—a presumed loyalty, a presumed guilt—is itself a form of denigration.
What this judgment quietly acknowledges is that collective attribution is the heartbeat of hate speech. And it draws a sharp legal boundary around it. It’s a judgment that matters not just to the Jewish applicants, but to Palestinians, to Muslims, to anyone who has watched their identity become a proxy in someone else’s political argument.
The message is deceptively simple: be precise—especially when sharing a meme or slogan in a charged political moment. If you’re criticising someone, make sure it’s explicitly based on their expressed political views—not on assumptions tied to their race, religion, or national origin. Anything less risks turning political speech into collective blame.
The Broader Takeaways
The case of Wertheim v Haddad is a reminder—if anyone needed one—that the courts are now regularly being called upon to adjudicate the boundaries of public discourse, including what happens inside places of worship when sermons, no longer confined to the physical space, are instead projected into the digital public square.
The Federal Court didn’t enter the theological fray out of idle curiosity. It did so because Mr Haddad anchored his language—language the Court ultimately found hateful—within the authority of scripture. That claim to religious cover is what brought doctrine under judicial scrutiny.
There is room for religious and public interest expression under Section 18D of the Racial Discrimination Act. But the protection it offers is not unconditional—it rests on whether that expression is made reasonably and in good faith. In this instance, the Court found that threshold was not met.
Why? Because religious history was not used to illuminate, but to essentialise. Mr Haddad’s framing at times tied historical stories to a broader narrative about Jewish people across time—suggesting a fixed, negative character. It was, in effect, an attempt to collapse centuries of human complexity into a single, immutable trait. The Court saw that clearly. And it called it out for what it was: a generalisation that failed to recognise what should be obvious—that Jewish people, like all people, are not a monolith.
While religious texts may offer lessons about how various peoples acted and responded to Divine trials in history, and even make predictions about future situations, translating this into modern or timeless commentary about a people, imputing some bad character to them, is fraught with legal danger.
But equally, the Court was careful to draw the line in the other direction: where the objective context made it clear that Mr Haddad’s target was political—Zionist ideology, the Israeli state, its military, or right-wing media—those criticisms could not simply be about Jewish people, no matter how forcefully the applicants argued otherwise.
In general, it is good practice for speakers to
- Ask yourself whether a reasonable, ordinary person might think you’re making negative generalisations about a group because of their race or religion.
- Don’t assume or treat that all members of a racial or religious group are the same and interchangeable.
- Be precise about your point when making demands on individuals on social media: Make it clear that you are challenging their political views, not presuming their guilt because of their race or religion.
For institutions, you should check the content before you upload it.
