Tayeh verdict goes to constitutional challenge
"All Zionists are terrorists" chant deemed insulting by Magistrate.
A Melbourne magistrate has found that pro-Palestinian activist Hash Tayeh, the former owner of the Burgertory restaurant chain, used insulting words in public when he led a crowd in chanting “all Zionists are terrorists”.
But the court has stopped short of recording a guilty verdict while Tayeh mounts a constitutional free-speech challenge.
The magistrate accepted that the phrase, uttered at a rally in March 2025, was insulting within the meaning of the Summary Offences Act 1966 – the Victorian law that makes it an offence to use insulting words in or near a public place – and that Tayeh said the words intentionally.
In the ordinary course, a finding of guilt would follow almost automatically.
It has not, because Tayeh intends to argue that punishing the chant would breach the implied freedom of political communication; a constitutional limit on laws that restrict political debate, rather than a general right to free speech.
That argument is yet to be heard.
If the challenge results in a finding that the speech is constitutionally protected, no finding of guilt will be entered, even though the conduct has been found offensive.
If the argument fails, the guilty verdict will be recorded. For now, Tayeh has not been convicted: the case is paused on a single unresolved legal question.
Police had charged Tayeh with five counts under the Act following complaints over statements made at pro-Palestinian rallies in Melbourne’s CBD in 2024 and 2025.
The offensive-conduct finding concerns one of those charges, arising from the phrase used at the March 2025 rally.
The finding follows a separate civil ruling earlier this year, when the Victorian Civil and Administrative Tribunal (VCAT) found that Tayeh’s initiation of the chant breached the Racial and Religious Tolerance Act 2001 and amounted to racial and religious vilification of Jewish people.
Daniel Aghion KC, president of the Executive Council of Australian Jewry, welcomed the finding while underscoring that the central legal question remains open.
“It is pleasing to see that the magistrate decided that the phrase ‘all Zionists are terrorists’, said in that context in a public place, was offensive behaviour,” he said.
“We will have to wait and see whether the offence is constitutionally valid or not, and what result flows from it.”
The Australia/Israel & Jewish Affairs Council (AIJAC) has welcomed the Court’s finding that his repetition of the chant “All Zionists are terrorists” in 2025 was a deliberate and calculated “act of defiance”.
However, AIJAC is disappointed that he was acquitted on the four charges arising from the 2024 rally.
It is important to note that the Magistrate found the language to be offensive on all five occasions, and that the acquittals only resulted from a finding that it had not been proven beyond reasonable doubt that Mr Tayeh possessed the requisite criminal intent at the time.
In his judgement, the Magistrate also ruled that making a blanket statement across an entire group, such as that which Mr Tayeh did, was a “demonstrably false assertion” that serves to “dehumanise individuals”.
AIJAC Executive Director Dr Colin Rubenstein said, “Hash Tayeh and all others are now on notice that chanting ‘All Zionists are terrorists’ may breach both Victoria’s criminal and civil laws. Activists can no longer hide behind the false claim that they are referring only to a political ideology.”
“The vast majority of the Jewish community are Zionists, so this chant effectively vilifies Australia’s Jewish community and could be interpreted as a call for violence against us. At a time when Australian Jews continue to grapple with unprecedented levels of antisemitism, including in the aftermath of the Bondi terrorist attack, this kind of rhetoric is particularly dangerous.
Rubenstein said that dehumanising and demonising an entire community undermines social cohesion, fuels hostility and hatred, and creates an environment in which discrimination and intimidation can flourish.
Menachem Vorchheimer, a Jewish community activist who brought the civil case and has pursued several similar legal proceedings, said the finding reinforced the earlier VCAT decision, though it left him with mixed feelings.
“This continues the legal process to enforce existing laws. This isn’t a new law, it’s a law that’s been around since 1966, and I think that speaks to why our community feels the way it does,” he said.
“A lot of things that have happened have been wrong and the laws haven’t been enforced. So yes, I’m happy, but it’s mixed emotions, because it reaffirms that more could have been done earlier.”
Vorchheimer said the outcome drew an important line. “It draws a distinction between protesting about a foreign conflict and using language that dehumanises a segment of the population, the Jewish people, by virtue of their Jewish identity,” he said.
He said the magistrate had emphasised the weight the word “terrorist” carries.
“His Honour made clear that ‘terrorist’ is a word that, in contemporary society, conjures up extreme emotions, and that a terrorist is seen as someone who can be overcome by force if necessary, and even killed,” he said.
“Labelling all Zionists as terrorists created a permissive environment, and I don’t think that should be lost on our community.”
Vorchheimer argued the finding has effectively settled how the phrase would be treated in future, though that view has yet to be tested against the outstanding constitutional argument.
“Anyone who uses it in future would likely be found guilty in the first instance, because the precedent has now been established,” he said.
He predicted the constitutional challenge will fail. “Based on other cases and case law on similar issues, I think that constitutional challenge is bound to fail,” he said.
Vorchheimer also called for a formal inquiry into why authorities had not acted sooner, citing ASIO Director-General Mike Burgess’s October 2023 warning that words left unchecked lead to violence.
“We need some honesty from government, and we need some form of inquiry into why authorities didn’t act sooner, particularly given what Mike Burgess said in October 2023, that words left unchecked lead to violence,” he said.
“If only police had listened to him in 2023, perhaps Bondi and some of the other tragedies our community has seen could have been avoided. The law has always been in place. It could have, and should have, been enforced earlier.”
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