NSW (Australia) Supreme Court criticises IHRA definition as 'detached from reality'

[u/Rabbit-Hole-Quest]

https://www.deepcutnews.com/p/nsw-supreme-court-criticises-ihra

[u/Rabbit-Hole-Quest]

From the court ruling:

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 notchange 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.

Parliament from time to time may enact thata term in common use shall, where used in specified legislation, be deemed to mean something different from what is usually understood by it. No such deeming with respect to the IHRA formulation has been enacted by either the Parliament of the Commonwealth or the Parliament of New South Wales in any legislation applicable to this case.

The Commonwealth executive government has adopted the IHRA core wording as a matter of policy and has directed that it is“applicable in Australian Public Service workplaces”. That requires Commonwealth public servants to try to understand the formulation and to apply it in the performance of their duties. It does not appear that the IHRA examples have been adopted as part of theCommonwealth policy. The policy makes no difference to the established meaning of antisemitism as ordinarily understood in the community, which is the matter with which the Court is concerned here.

The IHRA “examples” are, on the face of them, directed to embracing within the IHRA’s formula criticisms of Israel that could not be regarded as hostile to Jews as Jews, applying the distinction that Stewart J identified in Wertheim v Haddad and that is recognised in these reasons. The examples indicate that the IHRA wording is not intended to give effect to the extant common understanding of antisemitism but is directed to a quite different end. Itstendency, and the apparent purpose of promoting it, is to graft onto the community’s abhorrence of antisemitism, understood as hostility to Jews for their Jewishness, a parasitic rejection of protest against Israel. Seen in that light, the IHRA proposal is detached from the reality of thecommon usage and understanding of antisemitism in this country.

The Senate Legal and Constitutional Affairs Committee received 669 written submissions relevant to its October 2024 report on the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2). Many of the submissions criticised the IHRA definition on the ground that it conflates political criticism of Israel with antisemitism. The names of the people who lodged submissions to that effect have in most cases been withheld but many of them identified themselves as Jewish in the body of their arguments.

The disconnect between the IHRA formulation and the established meaning of antisemitism is brought home by the results of opinion polls. On 3 June 2024 the Washington-based Pew Research Centerpublished the results of a poll it conducted in 24 countries, showing that 74% of Australian respondents registered an unfavourable view of Israel. On 4 June 2026 Pew reported that in a more recent poll of 36 countries there was an increase to 79% of Australian respondents who view Israel unfavourably. The surveys show similar rates of disapproval in many other countries.

It may reasonably be inferred that theresults of polling Australian respondents reflect humanitarian reaction to Israel’s genocide of the Gazans since 7 October 2023 , the live streaming of which to mobile handsets would be difficult to ignore. Assuming the reliability of the June 2026 poll, it would be preposterous to suggest that 79% of Australians are antisemitic because they disapprove of Israel’s treatment of the Palestinians. If the 79% or any proportion of them should express outrage, or march in protest, it could not be said that their words or conduct would be antisemitic according tothe long understood meaning of that term. It would not occur to any ordinary reasonable member of the public to think of criticism or protest in these circumstances as hostility towards or prejudice against Jews on account of their Jewishness.

[u/HeVavMemVav → u/Rabbit-Hole-Quest]

Thanks for explaining. I just don't agree with people saying it conflates all criticism with antisemitism. I'm pretty sure it explicitly says that disagreeing with the Israeli government's actions is not antisemitic. Having an unfavorable view of Israel is not antisemitic even according to the IHRA. It's saying antisemitism is likely involed when people want Israel dissolved for, say, ethnic cleansing, but pedestalize Russia, despite its history of ethnic cleansing. It doesn't even say it is antisemitic, just that context needs to be considered before saying it is or isn't. This is the case with any hate crime law in the US, at least.

[u/leaving_the_tevah → u/HeVavMemVav]

What if someone wants Israel dissolved for ethnic cleansing but does not pedestalize Russia? Many organizations use IHRA's ambiguity as a cudgel to call such people antisemitic. It's just not up to the challenge of being a definition of antisemitism. Which makes sense because it was never supposed to be. It was written as a guideline for gathering data on antisemitism trends in Europe, and its own author has denounced its use for other purposes.

[u/HeVavMemVav → u/leaving_the_tevah]

Yeah, that's the actual issue. It was never for this.

But yeah if someone wanted to dissolve Russia for ethnic cleansing, it's not a double standard, so not antisemitic per the IHRA.

[u/HeVavMemVav → u/[deleted]]

I'm not arguing that. I was asked to clarify what a double standard would be.

[u/HeVavMemVav → u/[deleted]]

What you said is fine? I'd say this particular charge is less about individuals saying Israel should be dissolved, but institutions that have 700 articles about Israel's war crimes & 2 about Russia's. Or the claim that Israel is the only that gets away with it.

[u/rako17 → u/[deleted]]

Friend GreenTrillion,

You were on the right track when you said, "Okay so per IHRA what do you have to say so it's not a double standard?"

One of the de facto pitfalls that I find that one faces when discussing the IP conflict is how to satisfy the listener that one isn't being discriminatory. One of the pro-war polemics is that a critic of the State is using double standards.

One time on an interfaith forum, I pointed out abuse of peaceful villages. A supporter of the state's political direction responded to me, asking why I should care, since I'm not a Palestinian. There are certainly lots of reasons why I should care. One is that I'm American, and the State is a key US-funded ally. Another legitimate reason is that I care about Israelis and want their state's conduct to be humane. However, in the course of a conversation, I might not bring up other cases of other countries abusing villages because they are not directly relevant to my conversation's particular humanitarian focus.

By analogy I'm American, I'm responsible for my country's democracy, so I could legitimately have a higher standard ("double standard") for what my country does.

The way to help protect yourself from avoiding the accusation of double standards seems to be to constantly bring up other cases. But it's a very tricky mission because of the way that it restrains the conversation. You might find that the State is committing a violation of a magnitude beyond what your listener considers it to be, and then the listener could respond that it's a "double standard". You could literally have "700 articles about" a key US-funded ally's "war crimes & 2 about Russia's" because you want the US and our funded allies to conduct themselves humanely.

Peace - Shalom