Sharing a statement by the leader of a proscribed terrorist organisation committed to the destruction of the Jewish state of Israel could arguably contravene the racial discrimination act, the federal court has heard.
Former SBS newsreader Mary Kostakidis has been accused by the Zionist Federation of Australia of breaching the Racial Discrimination Act (RDA) by sharing two X posts about a speech by the late Hezbollah secretary general Hassan Nasrallah in January 2024.
Kostakidis is trying to strike out the human rights claim on the grounds it fails to identify which race, ethnicity or nationality was offended and is so vague as to be embarrassing.
Lawyers for the ZFA told Justice Stephen McDonald in the Adelaide federal court it is “plainly at least arguable that that victim group, people of Israeli national origin, could be offended or insulted”.
Under section 18C of the RDA it is unlawful for a person to do something that is reasonably likely to offend if the act is done because of the national or ethnic origin of the person.
“This is not a claim or a case in which a strikeout application should be seriously entertained,” the barrister for the ZFA, Michael Borsky KC, said.
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Borsky said the applicant, the chief executive of the ZFA, Alon Cassuto, accepts that criticising Israel or the Israeli government is not necessarily antisemitic but a statement can be “both a criticism of Israel and antisemitic”.
“And where that line is drawn in relation to a particular statement or a particular act, is a difficult and important question,” which would be determined at trial, he said.
Borsky dismissed the submission by Kostakidis that there was confusion about who the victim was in this case because a Jewish person could be “ethnically Swedish” and an ethnic Arab could be Jewish.
“There’s no confusion or relevant difference between, on the one hand, Israelis in Australia, and on the other hand, people of Israeli national origin in Australia,” he said.
Borsky said the respondents were “looking for criticisms” to “assert confusion” where there was none and the application to strike out should be dismissed.
Cassuto’s claim alleges that since the 7 October attack, Kostakidis has posted on X “about Israel and/or Jews, including among other things spreading various antisemitic conspiracy theories, including that there was an alliance between Zionists and the Nazis.
“It was not a coincidence that many antisemites use nazism; they are seeking to criticise Israel or the Israeli government, Zionists, and your honour will hear evidence about this at trial,” he said.
Borsky said although Kostakidis “used to be a newsreader”, the X post was not a “straightforward news report” and that sharing the posts with commentary was a form of endorsement of the content.
In her post, Kostakidis said “The Israeli govt getting some of its own medicine. Israel has started something it can’t finish with this genocide.”
Borsky said the commentary is “relevant to the question the court will need to determine should the case go to trial. He said the court will have to decide “whether a reasonable member of the victim group or groups was offended or insulted because of who was posting it and how she was posting it”.
McDonald reserved his decision.
