2026-08-31
The Attorney General has announced in a Budget Estimates hearing that the Minns Labor Government will not appeal the Supreme Court judgement that rejected the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, after advice from the Crown Solicitor and Senior Counsel revealed no prospects of success.
The definition has been criticised by the Jewish Council of Australia and other peak bodies for conflating anti-Zionism and criticism of the Israeli Government with antisemitism. In State of New South Wales v Farhat [2026] NSWSC 98 5, His Honour Justice Fagan rejected the definition as “so verbose and imprecise that it could not realistically be attributed to the ordinary, reasonably informed member of the Australian public.”
Greens MP and spokesperson for justice and solicitor Sue Higginson said: “The IHRA definition of antisemitism is an imprecise and wide-ranging definition which has no place in prosecutions and the justice system of New South Wales,
“Justice Fagan has rightly decried the IHRA definition as incomprehensible to the ordinary and reasonable member of the Australian public. It was bewildering to see the Minns Labor Government signalling they would appeal this decision,
“The Government’s own legal experts have clearly seen the writing on the wall and told the Attorney General that any appeal of this decision would fail,
“Across the NSW Government, the public service, and many other private institutions, this definition remains in force despite this clear guidance of the Supreme Court. Jillian Segal is attempting to expand the application of this definition, but I think this judgement should pour cold water over that proposition,
“I remain concerned at the circumstances which gave rise to this decision, which was an attempt to pursue an extremely troubled young Lebanese-Australian man through the judicial system and to keep him locked up despite a statutory parole order from the Courts. That parole order required the defendant to obtain mental health and drug and alcohol support,
“A person living with financial troubles, substance abuse issues and intellectual disabilities is being mischaracterised by the State as antisemitic when in fact the Supreme Court has found that curses against Israel do not constitute antisemitism,
“I understand the Law Enforcement Conduct Commission is overseeing a police investigation into the circumstances surrounding this young man’s prosecution, and I await the outcome of that investigation with great interest,” Ms Higginson said.
For media contact:
Sue Higginson - 0428 227 363
Background:
The case saw an attempt to impose an Extended Supervision Order upon 22-year-old Lebanese Australian Mohommed Farhat, who was recruited by organised criminals to spray-paint “Fuk Israel” on a car, thrown out.
Mr Farhat suffers from low cognitive ability and substance abuse issues, and the Court held that his offending was motivated by financial gain rather than antisemitism.
Attorney General Michael Daley’s comments in Budget Estimates, 31 August 2026:
“No we won’t be appealing that decision…following the Supreme Court’s refusal of an application for an ESO against Mohommed Farhat I sought urgent advice on the prospects of an appeal. Having considered the advice from the Crown Solicitor, Senior and Junior Counsel, I have reached the conclusion that an appeal would have no reasonable prospects and would fail.”
Judgement of Fagan J in State of New South Wales v Farhat [2026] NSWSC 985:
“...antisemitism according to its established and well understood meaning is an attitude reviled in Australia. An allegation that a person is antisemitic is a grave imputation on character. Misapplication of the term to statements and attitudes concerning political subjects, such as disapproval of the state of Israel or disagreement with the ideology of Zionism, has the effect of unfairly damaging the person so accused and weakening the abhorrence that the word 'antisemitic' should properly evoke.”
“In an expert opinion report tendered by the Crown, Dr Shanahan states that 'the definition of exactly what constitutes antisemitism is debated'. There is no debate, to my knowledge, about the established meaning that I have identified above as ordinarily accepted in Australia. Dr Shanahan's reference to debate is followed by quotation of the formulation adopted by the International Holocaust Remembrance Alliance (IHRA). That formulation appears to be an attempt to repurpose the term 'antisemitism' as the name of an amalgamated concept of 'hatred toward Jews' and/or criticism of Israel.”
“The State's case on the present application has not been advanced by tendering the IHRA formulation through the report of Dr Shanahan.”
“The IHRA formulation comprises a core text followed by 'examples' that 'may serve as illustrations'. The core text is as follows: Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
“The 11 examples appended to that text include the following: 6 Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations. 7 Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavour. 8 Applying double standards by requiring of it a behaviour not expected or demanded of any other democratic nation. 9 Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis. 10 Drawing comparisons of contemporary Israeli policy to that of the Nazis.”
“The IHRA formulation does not reflect the established usage and understanding of the term 'antisemitic' in Australia. It does not assist the Court in its present task of determining whether the slogans spray-painted by the defendant were antisemitic according to that common understanding.”
“The IHRA core text is so verbose and imprecise that it could not realistically be attributed to the ordinary, reasonably informed member of the Australian public. What is the 'certain perception'? If antisemitism 'may be expressed as hatred toward Jews', how else 'may' it be expressed so as still to fall within the definition? Would the 'certain perception' be present in the expression of some other, less egregious, sentiment towards Jews and, if so, what? The proposition that antisemitism may 'be directed towards … non-Jewish individuals [etc]' appears counterintuitive to the central concept of Jew hatred. In what circumstances and within what limits would 'rhetorical [or] physical manifestations' of the 'certain perception of Jews' be antisemitic if 'directed toward … non-Jewish individuals [etc]'?”
“I am not the first to have criticised the inept drafting of the IHRA formulation. In the words of Sir Stephen Spedley, it 'fails the first test of any definition: it is indefinite'. The JCA submission to the Royal Commission criticises the IHRA wording and cites a number of detailed critiques by others. Discussion of the IHRA wording and adoption of it by some institutions does not change the established meaning of a word that has been in use in the English language for 150 years. The IHRA formulation propounds a concept different from that which 'antisemitism' has long been understood to describe and appropriates that word to the novel concept.”
“Criticism of Zionism, the movement that established Israel and continues to support it, stands in the same position as criticism of Israel itself. Universities Australia, a body representing 39 institutions, has described antisemitism in a long form of wording that includes the following: For most, but not all Jewish Australians, Zionism is a core part of their Jewish identity.”
“As an ideology of Jewish nationalism, Zionism is open to political discussion and criticism, notably on grounds concerning the rights of the Palestinians. It may well be correct that 'most, but not all Jewish Australians' regard Zionism as 'a core part of their Jewish identity'. That does not mean that anti-Zionists are hostile to that majority of Jews on account of their Jewishness; only that they hold a negative view of a political ideology with which the majority of Jews have chosen to identify. A contestable political question does not lose its political character upon a large proportion of a particular confessional group taking one side of the issue and feeling that it is closely associated with their religious identity. Further, the words 'most, but not all' are important. How can disparagement of Zionism be hostile or prejudiced towards Jews as Jews when it is only 'most, but not all' Jews who support the ideology, with whatever degree of fervour?”
“From the commencement of the investigation of the index offences through to the final hearing of the summons before me, police officers and legal representatives of State agencies have repeatedly and uniformly characterised the defendant's graffiti as antisemitic. That has led to the defendant being treated under the criminal law and in the administration of his very differently from how he would have been dealt with if the graffiti had not been so labelled. The label has been wrongly applied, injustice to the defendant has followed and the misconception has led to the State bringing these proceedings.”