The New South Wales government is seeking urgent advice on whether to appeal a supreme court judge’s decision that found anti-Israel vandalism was not antisemitic. The ruling, made by Justice Desmond Fagan, rejected the state’s application for a terror order against a Sydney man convicted of writing ‘Fuk Israel’ on cars and setting another vehicle alight in late 2024.
Fagan found that disparaging Israel was ‘political comment’ not antisemitism, and that the lower courts and various state agencies had incorrectly labelled the man’s actions as antisemitic. The judge also found that there was an ‘insignificant’ risk that the 22-year-old man, who has a Hezbollah tattoo on his neck, would commit a serious terrorism offence.
The decision has been met with criticism from Australia’s peak Jewish group, the Executive Council of Australian Jewry, which labelled Fagan’s ruling as ‘dangerous judicial activism’ that should be reviewed. The group argued that the ruling avoided ‘the community impact’ of the man’s actions, which were committed in a Jewish neighbourhood.
The case has also raised questions about the use of the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, which Fagan was critical of in his ruling. The definition has been formally endorsed by the Australian government and is the accepted definition of the royal commission into antisemitism.
Fagan’s criticism of the IHRA definition has been welcomed by some progressive Jewish groups, who argue that it ‘distorts the fight between real antisemitism while shielding Israel from legitimate scrutiny’. However, others have expressed concern that the ruling could embolden antisemitic behaviour and undermine efforts to combat it.
The NSW government has declined to comment further on the matter, citing the fact that it is still before the courts. However, the attorney general, Michael Daley, is seeking urgent advice on the prospects of an appeal.
The case has also sparked calls for an investigation into the police conduct, with the Greens MP Sue Higginson writing to the NSW police watchdog, the Law Enforcement Conduct Commission, requesting an urgent investigation into the police’s handling of the case.
The NSW police have said that the matter is currently under internal investigation and that no further information can be released to the media at this time to protect the integrity of the investigation.
