A lawyer acting for two University of Sydney academics accused of racist hate speech has argued that the conflation of their criticism of the state of Israel with hatred of Jews is “quite audacious”.
The argument was heard in the federal court on Tuesday as part of a racial discrimination case taken by three academics against two of their colleagues and the university, in what is being considered a major test case for hate speech in Australia.
The three academics, led by Joseph Toltz, and one student have argued their colleagues Dr Nick Riemer and Prof John Keane breached section 18C of the Racial Discrimination Act in a number of separate public comments that criticised Zionism and Israel. That section of the act makes it an offence to “offend, insult, humiliate or intimidate” another person or group on the basis of their race, colour, or national or ethnic origin.
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In response, Keane and Riemer, who is also the vice-president of the National Tertiary Education Union at the University of Sydney, have argued that criticising Zionism or Israel is not racist hate speech.
The matter is yet to go to trial, with Justice Geoffrey Kennett on Monday and Tuesday hearing interlocutory applications to amend Toltz’s claims.
On Tuesday, Jessie Taylor, acting for Keane and Riemer, responded to claims by Toltz’s lawyers that Riemer had used “Zionist” in a series of posts as a “pejorative synonym for Jew or Israeli”.
“This court heard yesterday an extraordinary proposition that Zionism and Jews are so perfectly synonymous that Zionism should be construed as a race for [the] purpose of section 18C,” she said.
She said the effect of the imputations was to assert that criticising the state of Israel was also to criticise Jews.
“What the pleadings do is to assert that in calling for peace in Gaza, calling for ceasefire, Dr Riemer is calling for violence.”
Taylor told the court they aren’t denying that Zionism has been used as a code word to cover up criticisms of Jewish people, but she argued this was not one of these cases.
“Dr Riemer uses it to describe a political ideology with which he fundamentally disagrees,” she told the court.
The day before, Adam Butt, who appeared on behalf of Toltz, urged the judge to focus on the perspective of “enough or most” of Jewish Australians. He argued that many Jewish Australians “experience anti-Zionism as antisemitism”.
Toltz and the other applicants have also claimed that the University of Sydney is vicariously liable for an article by Riemer in the Overland literary journal, and a speech and post.
In the post, Riemer had said “there’s no room for racism, for settler colonialism, for apartheid in our unions, and there is no room for Zionism in our unions”.
The university’s barrister Robert Dick SC, who is not acting for Riemer and Keane, accepted the university could be found vicariously liable.
But Dick submitted an interlocutory application that the case against the university should be struck out because the posts did not “disparage” Jewish people and was referring to Zionism as a political concept.
Taylor put forward another interlocutory application on Tuesday to strike out some of the pleadings in Toltz’s claims ahead of the trial against Riemer.
This included claims that public statements by Riemer can be relied upon “cumulatively or collectively for the purposes of establishing both the causation and racial elements in s18C of the RDA”.
Taylor argued this should be struck out because it could skew the impact of the posts, and result in the whole being considered “greater than the sum of its parts”.
Butt argued in response it is a “straight forward and appropriate pleading”.
Prof Suzanne Rutland, Ariel Eisner, and Yaniv Levy have also joined Toltz’s application against the two academics.
The case continues.
