Court rejects bid to halt discrimination cases
The Federal Court says key questions about the impact of the statements must be tested at trial.
A Federal Court judge has refused to throw out racial discrimination lawsuits against the University of Sydney and two lecturers, ruling that key questions about how Jewish and Israeli Australians interpret criticism of Zionism must be decided at trial.
In twin judgments delivered last Friday, Justice Geoffrey Kennett dealt significant blows to attempts to shut down the cases early, while also imposing limits on how the applicants can argue their claims.
The cases involve Dr Joseph Toltz, Professor Suzanne Rutland, Ariel Eisner, Yaniv Levy and Andy Smidt, who claim statements by Dr Nick Riemer and Professor John Keane breached section 18C of the Racial Discrimination Act after the October 7, 2023, Hamas attacks.
In the Riemer case, Justice Kennett rejected the university’s application for summary dismissal, finding that without hearing evidence, the court cannot determine how “an ordinary reasonable reader who is a Jewish person in Australia” would interpret Riemer’s statements about Zionists.
The lawsuit targets numerous statements between October 2023 and May 2024, including social media posts endorsing a “global intifada” and describing Zionists as “racists” and “genocide-enablers”.
In the Keane case, Justice Kennett refused to allow the proceeding to continue as a representative action, ruling the arrangement would unfairly protect represented persons from costs risks.
Riemer and the university argued the statements were political criticism of Zionism as an ideology, not racial vilification of Jews or Israelis as ethnic groups.
Justice Kennett acknowledged that criticising Zionism as a political philosophy is conceptually distinct from vilifying Jews as a racial group, but said evidence might show the words “have particular significations or resonances for reasonable readers who are Jewish and/or Israeli persons”.
However, Justice Kennett imposed significant limits on both cases, striking out the applicants’ attempt to rely on statements “cumulatively”. He ruled that section 18C operates on individual acts, meaning each statement must independently satisfy the legal test.
Riemer and Keane have raised over $142,000 on a fundraising platform to fight what they describe as an “Israel lobby legal attack”.
The parties must file a timetable by November 28 for next steps.