Wertheim v Haddad

Case [2025] FCA 720

FEDERAL COURT OF AUSTRALIA

Wertheim v Haddad [2025] FCA 720

File number: NSD 1503 of 2024
Judgment of: STEWART J
Date of judgment: 1 July 2025
Catchwords:

HUMAN RIGHTS – where an Islamic preacher delivered a series of speeches (comprising three lectures, a sermon and an interview) at an Islamic religious centre – where speeches to various degrees commented on Jewish people (historically and contemporaneously), Zionism and the ongoing conflict in Israel and Gaza as well as content in the Qur’an and the Hadith – where contents are published online on social media by the centre and then reported upon by news media – where applicants who are Jewish Australians allege contravention of s 18C of the Racial Discrimination Act 1975 (Cth) – whether conduct reasonably likely in all the circumstances to offend, insult, humiliate and intimidate Jewish people in Australia – whether conduct was done because of the race, colour or national or ethnic origin of Jewish people in Australia – whether s 18D exemption is made out in speeches being made for “any other genuine purpose in the public interest” or as a “fair and accurate report of any event or matter of public interest” – appropriateness of the form and extent of the remedies sought under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth)

CONSTITUTIONAL LAW – implied freedom of political communication – whether Pt IIA of the Racial Discrimination Act 1975 (Cth) is constitutionally invalid – where constitutionality upheld in Faruqi v Hanson [2024] FCA 1264 – whether there should be a departure from that position in the circumstances of the case – whether the decision in Babet v Commonwealth [2025] HCA 21 casts doubt on the proportionality testing adopted in Faruqi v Hanson

CONSTITUTIONAL LAW – free exercise of religion – where s 116 prevents laws “for prohibiting the free exercise of any religion” – where respondents claim Pt IIA of the Racial Discrimination Act 1975 (Cth) has such a purpose by restricting Islamic religious speech – whether the prohibition of the free exercise of religion is a purpose of the Racial Discrimination Act 1975 (Cth)

Legislation:

Constitution, s 116

Australian Human Rights Commission Act 1986 (Cth), s 46PO(4)

Racial Discrimination Act 1975 (Cth), Pt IIA, ss 18B, 18C, 18D

Associations Incorporation Act 2009 (NSW)
Cases cited:

Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth [1943] HCA 12; 67 CLR 116

Alexander v Minister for Home Affairs [2022] HCA 19; 276 CLR 336

Babet v Commonwealth [2025] HCA 21

Bharatiya v Antonio [2022] FCA 428

Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105

Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389

Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272

Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352

Eatock v Bolt [2011] FCA 1103; 197 FCR 261

Eatock v Bolt (No 2) [2011] FCA 1180; 284 ALR…

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Details
AGLC
Wertheim v Haddad [2025] FCA 720
Case
[2025] FCA 720
Decision Date

CaseChat Overview and Summary

Wertheim v Haddad is a significant case in which Jewish Australians brought proceedings against Islamic preachers who delivered a series of speeches at an Islamic religious centre. These speeches, which were subsequently published online and reported by the media, contained comments on Jewish people, Zionism, and the conflict in Israel and Gaza. The applicants sought relief on the basis that the speeches contravened section 18C of the Racial Discrimination Act 1975 (Cth), which prohibits conduct that is reasonably likely to offend, insult, humiliate or intimidate another person on the basis of their race. The court was required to determine whether the conduct was done because of the race, colour or national or ethnic origin of Jewish people, and whether any exemptions under section 18D of the Act applied. The court also considered whether the prohibitions in Part IIA of the Racial Discrimination Act 1975 (Cth) could be justified under the implied freedom of political communication and whether they contravened the freedom of religion in section 116 of the Constitution.

The court found that the speeches were reasonably likely to offend, insult, humiliate or intimidate Jewish people on the basis of their race, and that the exemptions in section 18D of the Act did not apply. The court rejected the argument that Part IIA of the Racial Discrimination Act 1975 (Cth) was constitutionally invalid, finding that it was necessary and appropriate to protect individuals from racial discrimination. The court also found that the prohibition of the free exercise of religion was not a purpose of the Racial Discrimination Act 1975 (Cth). The court ordered the respondents to remove the speeches from any publication in their control and to take reasonable steps to ensure that they were removed from any publication over which they had no control. The court also ordered the respondents to refrain from communicating words, sounds or images that attribute characteristics to Jewish people on the basis of their group membership and which convey any of the imputations identified in the judgment. The court reserved decision on the applicants' request for further relief pending further submissions.

The court ordered that the respondents remove the speeches from any publication in their control and to take reasonable steps to ensure that they were removed from any publication over which they had no control. The court also ordered the respondents to refrain from communicating words, sounds or images that attribute characteristics to Jewish people on the basis of their group membership and which convey any of the imputations identified in the judgment. The court ordered the respondents to pay the applicants' costs. The court reserved decision on the applicants' request for further relief pending further submissions from the parties.

Orders

Orders of the court

1. Each of the respondents:

(a) remove The Jews of Al Madina Parts 1, 2 and 3, or any excerpt part thereof, from any internet page or other publication in the control of that respondent;

(b) in relation to any source of re-publication over which neither respondent has control, but of which either respondent is or is made aware, take all reasonable steps to bring the orders made in this proceeding to the attention of the publisher and to request that the speeches be removed; and

(c) not cause words, sounds or images to be communicated otherwise than in private, which attribute characteristics to Jewish people on the basis of their group membership and which convey any of the imputations identified at paragraph [158] of the reasons for judgment delivered today.

2. Within seven days of these orders, the applicants file and serve any additional written submissions in support of relief they seek with regard to the publication by the respondents of any notices of their contravention of Pt IIA of the Racial Discrimination Act 1975 (Cth).

3. Within 14 days of these orders, the respondents file and serve any written submissions in response.

4. The matter be listed by arrangement between the parties and the Court on a date after the date in order 3 for hearing on the relief referred to in order 2, decision on which is in the meanwhile reserved.

5. The respondents, jointly and severally, pay the applicants’ costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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