NSW Supreme Court Confirms that Criticising Israel Is Not Antisemitism

New South Wales Supreme Court Justice Desmond Fagan condemned the use of the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism this week, as he delivered his reasons for denying the NSW state the right to impose an extended supervision order on inmate Mohommed Farhat. And the judge’s critique is significant, as this nation’s antisemitism envoy is attempting to make the IHRA definition standard.

Farhat is serving a 1 year and 8 month prison term that then NSW Local Court Magistrate Scott Nash imposed on 18 November 2025, in relation to an arson and graffiti attack on nine cars and four buildings on Gadigal land in the Sydney suburb of Woollahra on 20 November 2024. This was part of a spate of 13 such attacks in Sydney over the 2024/25 summer that were condemned as antisemitic.

Under the Terrorism (High Risk Offenders) Act 2017 (NSW), the state can apply for an extended supervision order if it considers an offender, in this case Farhat, poses an “unacceptable risk” of committing a serious terrorism offence if released on parole. Indeed, Farhat could have been released after 10 months but Corrective Services made certain that his parole was revoked early on.

The Corrective Services head then deemed Farhat a “national security risk” inmate in January 2026. The hearings relating to the state request for a yearlong EOS with 55 conditions attached took place over four hearing days, with Fagan’s decision delivered on 30 July. And in his 17 August 2026 reasons, he explained that the outcome rested on whether Farhat’s crimes could be classified as terrorism.

Terrorism or just plain vandalism

Justice Fagan this week delivered his initial reasons that were withheld in July, which were based on Farhat having carried out his arson and graffiti attack on direction of another who paid him $4,000 and gave him an amount of drugs. Farhat agreed to spray paint the Woollahra buildings and cars repeatedly with “Fuk Israel” and “PKK is coming”, which was messaging the recruiter recommended.

Fagan explained that the PKK stands for the Kurdish Workers Party, which opposes Israel. Yet, Farhat did not know this. In fact, the current inmate held no ideological viewpoint about the PKK or Israel. The judge further found that many Jewish people living in Woollahra does not make this antisemitic. And rather the graffiti represented a “crude expressions of political hostility to the state of Israel”.

Just because a Jewish person sees anti-Israel messaging doesn’t shift its meaning from being “essentially political” in nature to being a form of religious prejudice, Fagan added. This is even though Farhat, who is the son of Lebanese parents, was aware at the time, that Hezbollah and Israel were at war, as there was no evidence of a Hezbollah link to the crimes or its motivations.

Farhat was in the company of Thomas Stojanovski when committing his crimes. The pair both pleaded guilty to ten counts of property damage, contrary to section 195 of the Crimes Act 1900 (NSW), along with two aggravated counts of property damage using fire. The pair further admitted to three counts of entering land to commit an indictable offence under section 114 of the Crimes Act.

“The curse ‘Fuk Israel’ is not antisemitic”

Supreme Court Justice Fagan went on to explain the definition of terrorism under Australian federal law. Section 100.1(1) of the Criminal Code Act 1995 (Cth) defines an act of terrorism as an action or threat of one involving harm to person or property, or the death of a person or that endangers life or creates a serious threat to public health or safety or threatens an electronic infrastructure system.

But further, for these crimes to be considered terrorism they must have been perpetrated with the intent to advance a political, religious or ideological cause and it must be done with the intention of coercing or influencing by intimidation any Australian or foreign government or a part of the government or it must be done to intimidate the public or a section of it.

In terms of Farhat having been recruited, Justice Fagan found that this had also been the case with all of the other offenders who’d been apprehended over the 2024/25 Sydney arson and graffiti attacks and most of them had pleaded guilty. The Australian federal police and the NSW police determined in March 2025 that all these attacks had been directed by organised crime figures located overseas.

Fagan further outlined that the state was insisting that the phrase “Fuk Israel” was antisemitic when seeking the ESO. The magistrate had determined Farhat’s crimes were “motivated by hatred for or prejudice against” Jews, and the further assertion implicit in the request was that the antisemitic nature of his crimes predisposes the inmate to commit more serious terrorism offences in the future.

The state asserted that “Fuk Israel” is self-evidentiary antisemitic. But Justice Fagan didn’t agree. The phrase is rather a crude political curse, which renders Farhat not the “antisemitic bigot” but instead the “vandal for hire”. He further posited that police officers and state legal representatives have been serving Farhat an ongoing injustice by repeatedly falsely labelling him as antisemitic.

This determination, Fagan added, further needed to be qualified by his full explanation of “the basis upon which he distinguishes between antisemitic statements and anti-Israel political statements and why he finds the defendant’s graffiti is in the latter category. The Supreme Court justice added that this reasoning continues to recognise that Farhat’s crimes were “abusive and intimidatory”.

The dangerous conflation

Justice Fagan pointed to the precedent set by Justice Angus Stewart’s finding in the July 2025 Federal Court case of Wertheim versus Haddad, which set out that if the “ordinary, reasonable listener” heard Haddad critiquing Israel and Zionism that they would not consider he was “saying anything about Jews generally or about all Jews”.

Zionism is the late 1880s developed European political doctrine advocating for the creation of a Jewish state in historic Palestine. However, Stewart made clear that “not all Jews are Zionists or support the actions of Israel in Gaza and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or ethnic group”.

“Needless to say, political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity,” his Honour added mid-last year.

Fagan insisted that Stewart’s determination applies to Farhat’s case, and he elaborated that whether the phrase “Fuk Israel” is antisemitic is “dictated by what ‘antisemitic’ means according to established common usage in Australia”, which the Macquarie Dictionary defines as “prejudiced against Jewish people”.

This and other similar definitions in common usage in this country “accord with how the term has ordinarily been used and understood in Australia in living memory”. An antisemitic statement is one that “an ordinary member of the public” would expect “to express hostility to or prejudice against all Jewish people and/or against one or more individual Jews by reason of their Jewishness”.

Criticism of Israel is not antisemitic as the nation and the Jewish people are not the same entity, the judge continued. Half of all Jews live outside of Israel. “The Jewish people… are distinct from Israel”. “Logically, conceptually and empirically, hostility or prejudice towards Israel cannot be equated to hostility or prejudice towards the Jewish people.” And many Jewish people openly criticise Israel.

The Jewish Council of Australia’s submission to the Royal Commission into Antisemitism and Social Cohesion was quoted by Fagan, as it sets out that over recent decades “the aggressive actions of the state of Israel” are often conflated with Jewish identity, and this has been cultivated by Israel, and it “causes direct harm to Jewish people worldwide when they are blamed for Israel’s actions”.

However, the Executive Council of Australian Jewry has a different opinion. This group has been lobbying the Australian government on behalf of Israel and Zionism. Justice Fagan explains that the ECAJ has been at the forefront of attempting to conflate criticism of Israel and support for Palestine with antisemitism, as it claims all Australian Jews support Israel. But this is at odds with the reality.

The Supreme Court judge then identifies the IHRA (International Holocaust Remembrance Alliance) working definition of antisemitism, which is a controversial definition developed earlier this century that serves to propagate the conflation between criticism of Israel and antisemitism, as it provides eleven definitions of what comprises hatred towards Jews, seven of which involve Israel.

The “verbose and imprecise” IHRA definition, Fagan continued, doesn’t equate with the current understanding of antisemitism in Australia. The meaning doesn’t reflect common usage of how the term antisemitism is used in this country. And the polls support this conclusion.

The apparent purpose of promoting IHRA, Fagan explained, “is to graft onto the community’s abhorrence of antisemitism, understood as hostility to Jews for their Jewishness, a parasitic rejection of protest against Israel. Seen in that light, the IHRA proposal is detached from the reality of the common usage and understanding of antisemitism in this country”.

This finding coming on the back of Justice Stewart’s mid-2025 ruling is significant, as, the Australian government and the Royal Commission have adopted this much-disputed definition, and federal Labor is currently rolling out Australia’s Special Envoy for Antisemitism Jillian Segal’s Plan to Combat Antisemitism, which seeks to insert IHRA into all levels of government and public institutions.

In terms of the extended supervision order that the NSW state sought to impose upon Farhat once he is release from prison in October this year, Justice Fagan explained that the court “is not persuaded that the defendant poses an unacceptable risk of committing a serious terrorism offence if not subject to extended supervision”.

Indeed, the Supreme Court didn’t consider Farhat a terrorist. Justice Fagan explained that, despite the earlier law enforcement and judicial assertions, he doesn’t consider Farhat was ever “politically radicalised”. And the judge said that his only concern is whether the young man might “regress to use of illicit drugs and lower order crime”, which is what actually landed him in prison to begin with.