Landmark court rulings reveal limits of pro-Israel lobby

Recent decisions involving Antoinette Lattouf, Khaled Sabsabi and Sydney preacher Wissam Haddad may mark a turning point in protecting criticism of Israel

Two landmark court rulings in the past two weeks have "pulled the rug out from under" efforts to gag open solidarity with Palestinians in Australia.

That's the judgement of Israeli-born legal scholar Noam Peleg, an associate professor at UNSW's faculty of law and justice, an associate of the Australian Human Rights Institute and an outspoken domestic critic of Israel's genocide in Gaza.

"For over a decade now, supporters of Israel [in Australia] have tried to shield Israel from criticism and shut down critical discussion on the situation in Palestine by suggesting that criticising Israel is inherently antisemitic," Peleg told Deepcut. "They've taken different measures to impose this idea on universities, the arts and public debate more broadly, including by using and abusing complaints mechanisms and human rights mechanisms."

"These two cases together now enable people in the media, in academia and in broader public discourse to have public discussions about what's going on Gaza, about Israel's obligations under international law and about Australia's obligation to hold Israel to account with less fear that they will be smeared as racist."

'These groups are lobbying for unlawful activities'

On June 25, Federal Court Justice Darryl Rangiah ruled that the ABC unlawfully terminated journalist Antoinette Lattouf in December 2023 "for the political opinion she held opposing the Israeli military campaign in Gaza".

Rangiah ruled that Lattouf's "support for Palestinians’ human rights" and her belief that "the media was attempting to deflect attention from atrocities perpetrated by the Israeli armed forces" constituted expressions of legitimate political opinion entitled to protection under the Fair Work Act.

Rangiah also ruled that the Act protects employees from being fired for expressing political opinions, not merely for "holding" them.

Notably, Rangiah ruled that the ABC decided to fire Lattouf, at least in part, "to appease pro-Israel lobbyists" who had waged "an orchestrated campaign ... to have Ms Lattouf taken off-air".

Rangiah's ruling cited letters from lobby group Lawyers for Israel addressed to then-ABC chair Ita Buttrose and federal communications minister Michelle Rowland that accused Lattouf of "the promulgation of antizionist (aka antisemitic) rhetoric" and using her ABC platform to "spread and promulgate hatred and social dissension".

Jewish Council of Australia executive officer Sarah Schwartz said the Lattouf judgement "essentially outed the pressure the pro-Israel lobby puts on institutions to buckle".

"This was an orchestrated campaign of people using their position as lawyers to put pressure on the public broadcaster to engage in illegal conduct," Schwartz told Deepcut.

"The fact that the judge named that is really important because it speaks to the way in which pro-Israel lobby groups operate and the hard fact that, in many cases, these groups are lobbying for unlawful activities," she added.

"The Lattouf judgement sends a message to employers, to institutions, to decision-makers that you shouldn't cave in to these blatantly antidemocratic tactics of intimidation."

Court ruling rejects conflation of anti-Zionism and antisemitism

While Lattouf's suit against the ABC has made headlines for more than 18 months, a case that has attracted far less public attention was just as significant.

On July 1, Federal Court Justice Angus Stewart ruled that three speeches given in late 2023 by Sydney preacher Wissam Haddad contained "fundamentally racist and antisemitic" language. Stewart ruled that Haddad's speeches repeated "racist tropes and stereotypes" about Jewish people, displayed "profound intolerance and racist abuse" and were "devastatingly offensive and insulting".

However, Stewart also ruled that the content of two other speeches Haddad gave at the time were not antisemitic as they focused "principally on Israel and Zionists through the lens of the actions of the IDF in the conflict in Gaza".

"The ordinary, reasonable listener would understand 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," Stewart ruled.

"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."

Peleg says the judgement may mark the first time an Australian court has made a definitive ruling on Zionism's status under the Racial Discrimination Act.

"This decision rejects the conflation between Zionism, which is a political ideology, and Judaism, which is a faith, an identity, and a culture," Peleg says.

"To the best of my knowledge, this is the first time a court in Australia has made a determination like this."

Peleg believes the ruling establishes a precedent that may have wider effects in other arenas.

"It essentially debunks the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism and the related Universities Australia definition. It pulls the rug out from under them," Peleg says.

"It means that universities or other institutions that are considering the conflation of Zionism and Judaism into their policies by either adopting the IHRA definition or the UA definition should now think twice."

Peleg points to an ongoing racial vilification lawsuit against University of Sydney academics Nick Riemer and John Keane as an example of suits "essentially arguing that criticism of Israel is against the [Racial Discrimination] Act". The suit, which alleges that the pair engaged in unlawful discrimination against Jewish people under section 18C of the Racial Discrimination Act, was launched after the Australian Human Rights Commission dropped an identical complaint against Riemer and Keane in April.

Riemer and Keane have called the suit a "lawfare attack" that makes "confected and false ... allegations of antisemitism against us as critics of Zionism and its violent consequences".

"It also undermines efforts to establish Zionism – again, a political ideology – as a protected identity alongside other identity categories like race, ethnicity and religion, which should be protected by anti-discrimination law and other such mechanisms designed to protect minorities," Peleg added.

Schwartz highlighted Justice Stewart's ruling that "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" as a particularly important point.

"That's not just referring to bland statements that are critical of Israel and Zionism. The argument that criticism crosses into antisemitism when it becomes adversarial or inflammatory is a very prevalent one, but this judgement says otherwise," Schwarts says.

"That can pertain to protest placards, chants; in other words, things that 'polite society' might find offensive."

Is the pro-Israel lobby weakening?

The two rulings – combined with Creative Australia last week reversing its controversial decision in February to rescind its Venice Biennale commission from Lebanese-Australian artist Khaled Sabsabi – mark a significant push back against the pro-Israel lobby's attempts to punish and silence people who criticise Israel's genocide in Gaza or Zionism as an ideology.

"I think this is the collapse of the institutional power the Zionist lobby has traditionally had to conflate antisemitism and criticism of Israel," Schwartz says. "These three things – the Lattouf decision, the Haddad decision and Khaled Sabsabi's reinstatement by Creative Australia – show that we are reaching a bit of a turning point."

"We're seeing the dying gasps of the Israel lobby and it's playing out in a really destructive way. We still have people who are being fired, who are losing business relationships. It's still happening and it's becoming more and more desperate. I think we're winning, but the repression is still very severe."

Peleg, who has been targeted by Zionist campaigns like 'Know the Anti-Zionist Israeli Professor' for more than a decade, believes that while the last two weeks have seen "welcome developments", the repression at universities and other institutions is likely to continue in the short-term.

"Speaking as someone in academia who has been subject to these smear and intimidation campaigns, and with our universities still considering the UA definition, we're still waiting to see what direction our universities will take," he says.

"We're still seeing academics being subjected to baseless complaints and disciplinary measures for doing their jobs – for things like assigning readings, organising events, or discussing Gaza in the classroom. The culture of silence and of caving in to lobbying complaints is ongoing; the campaign against Randa Abdel Fattah from Macquarie University is an example of it. It's still early days – it will be interesting to see how institutions respond.”