The extraordinary judgment of Justice Fagan — key takeaways

Abraham Edwards

The following article was published by Abraham Edwards on Medium on the 19th of August 2026.

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Justice Desmond Fagan’s judgment in the Farhat case has some incredible passages that are worth highlighting. Below I’ll provide a summary, some key excerpts worth noting, and conclude with a summary of his presentation of the conflict between Israel and Lebanon.

It may be noted that Fagan’s judgment offers a strong rejection of conflating criticism of Israel with antitsemitism, that he notes Jews include strong critics of Israel, and singles ECAJ and Alex Ryvchin out for criticism. He also accuses Israel of genocide, of expelling 750 000 Palestinians from their homes, discusses at length his criticisms of the IHRA definition of antisemitism, which he rejects as imprecise, and its examples as intended to shield Israel from criticism. It is also noteworthy that Justice Fagan expresses understanding for Australian Lebanese people who supported Hezbollah in its confrontation with Israel.

Summary of the case

The case itself is also interesting — Mohommed Farhat faced an Extended Supervision Order (ESO) for alleged terrorism offences. As the judgment indicates, Farhat has an intellectual disability. He described himself as ‘vulnerable and gullible’, which appears born out by the factual record. Though he is Lebanese, and even got a Hezbollah tattoo on his neck, he appeared disengaged from and disinterested in the group, and checked out of a group chat discussing the war in Lebanon. Farhat and an accomplice spent about an hour spray painting slogans about the Kurdish group PKK, and ‘Fuk Israel’, and burning down a car. These acts were performed for payment by an unidentified overseas party, who paid Farhat $4000. Farhat said freely that he committed the offences for drugs and money.

As Justice Fagan noted, ‘The contention that the spray-painted words “Fuk Israel” conveyed an antisemitic message has been pressed by the State as a significant element of its case for an ESO’. Hence, whether or not Farhat was an ideologically committed antisemite or a ‘vandal for hire’ would determine whether Farhat would face prolonged control by police under the counter-terrorism regime.

Fuk Israel is not antisemitic (80–1)

The State argued that the defendant should not be believed about his lack of ideological Jew hatred because “Fuk Israel” is self-evidently antisemitic and therefore must have been understood and intended as such. I do not accept that contention. A curse in those terms is not antisemitic, either self-evidently or by any degree of analysis or construction. It is a crude political expression of contempt and dismissal of a foreign state. In spray-painting the words on vehicles and buildings in Woollahra the defendant did not act as an antisemitic bigot, or even as a genuine political protester. He was a vandal for hire.

From the commencement of the investigation of the index offences through to the final hearing of the summons before me, police officers and legal representatives of State agencies have repeatedly and uniformly characterised the defendant’s graffiti as antisemitic. That has led to the defendant being treated under the criminal law and in the administration of his sentence very differently from how he would have been dealt with if the graffiti had not been so labelled. The label has been wrongly applied, injustice to the defendant has followed and the misconception has led to the State bringing these proceedings.

False accusations of antisemitism weaken abhorrence of it (88)

Misapplication of the term to statements and attitudes concerning political subjects, such as disapproval of the state of Israel or disagreement with the ideology of Zionism, has the effect of unfairly damaging the person so accused and weakening the abhorrence that the word “antisemitic” should properly evoke.

Israel forcibly expelled 750 000 Palestinians and demolished over 500 villages (90)

The inception of Israel was declared from 15 May 1948. It achieved demographic Jewish dominance during that year and into 1949 by forcible expulsion of 750,000 indigenous Palestinians from the territory of which it took control and by the demolition of over 500 of their villages. Those events are uncontroversially established in extensive historical literature, much of it compiled by professional Israeli and other Jewish historians, drawing upon Israeli and British archives.[2]

Jews must be distinguished from Israel (91–2)

The Jewish people are not a political or juridical entity capable of adopting or carrying out policies in the name of the whole. Israel, as a state, is such an entity: it adopts policies and takes unified action to implement them.

As objects of possible hostility or prejudice, the Jewish people and the state of Israel are in every material respect different things. Logically, conceptually and empirically, hostility or prejudice towards Israel cannot be equated to hostility or prejudice towards the Jewish people.

Many Jews criticise Israel (See 93–98, which covers Jewish Council of Australia at length, and also cites B’Tselem and PHRI accusing Israel of genocide)

For decades Jewish people have been amongst the most forceful critics of Israel’s conduct towards the Palestinians and have been the source of insistent pleas for the rights of the Palestinians. Those positions align with the moral convictions of many Jews, based upon universal humanitarian values and understanding of the essential humanism of Jewish faith. How can it be antisemitic — in the established sense of the word — to disparage Israel when doing so accords with the words and beliefs many Jews? How can censure of Israel in those circumstances amount to hostility towards, or prejudice against, Jews on the basis of their Jewishness?

The premise that Jews in significant numbers are critical of Israel for its treatment of the Palestinians can be substantiated by a cursory survey of the authorship of scholarly literature on the question of Palestine in the fields of history or politics, or by reading the opinion pieces of Jewish contributors to the mainstream press and to online political discourse. Even in Israel itself a small minority of Jews make trenchant criticism of their own country’s violence and cruelty to the Palestinians, for example through B’Tselem (The Israeli Information Center for Human Rights in the Occupied Territories) and Physicians for Human Rights Israel (PHRI).

Fagan goes out of his way to criticise ECAJ, and singles out Alex Ryvchin (99–103)

By clause 32.5 of its policies the ECAJ endeavours to portray the Australian Jewish community as unified in support of Zionism and Israel. That is at odds with the contrary perspective expressed by the JCA on behalf its membership. On the basis of the contention that all Australian Jews support Zionism and Israel, the ECAJ has been at the forefront of endeavouring to characterise criticism of Israel or support for the Palestinian cause as antisemitic. An example was the claim of Co-CEO Alex Ryvchin in June 2024 that by introducing a motion in Federal Parliament to debate, as a matter of urgency, “the need for the Senate to recognise the state of Palestine”, the Greens Party had “brought antisemitism into the mainstream”.

Fagan explicitly denounces the IHRA definition of antisemitism as hopelessly vague (109–10)

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.[10] 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 not change 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.

Fagan denounces the IHRA definition for being about protecting Israel from critique (113)

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. Its tendency, 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 the common usage and understanding of antisemitism in this country.

Fagan affirms that Israel is committing genocide, and ‘preposterous’ to accuse 79% of Australians of antisemitism (116)

It may reasonably be inferred that the results of polling Australian respondents reflect humanitarian reaction to Israel’s genocide of the Gazans since 7 October 2023[15], 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 to the long understood meaning of that term

Criticising Zionism is not antisemitic, it is a political ideology (119)

As an ideology of Jewish nationalism, Zionism is open to political discussion and criticism, notably on grounds concerning the rights of the Palestinians. It may well be correct that “most, but not all Jewish Australians” regard Zionism as “a core part of their Jewish identity”. That does not mean that anti-Zionists are hostile to that majority of Jews on account of their Jewishness; only that they hold a negative view of a political ideology with which the majority of Jews have chosen to identify. A contestable political question does not lose its political character upon a large proportion of a particular confessional group taking one side of the issue and feeling that it is closely associated with their religious identity. Further, the words “most, but not all” are important. How can disparagement of Zionism be hostile or prejudiced towards Jews as Jews when it is only “most, but not all” Jews who support the ideology, with whatever degree of fervour?

Also noteworthy — the discussion of Hezbollah and Lebanon

I won’t excerpt at similar length, but the discussion of Hezbollah is also noteworthy. His summary of Hezbollah basically presents it as a political organisation (148–9)

The organisation was formed as an armed militia within the Shia Muslim community of southern Lebanon not long after Israel invaded the country in June 1982. Since then it has conducted military operations against Israel, both across the border and in opposition to Israeli forces invading and occupying parts of Lebanon. Hezbollah participates in the political system of Lebanon, fielding candidates in municipal and national elections…

for more than a decade Hezbollah’s political and military activities have been conducted in Lebanon and have been concerned with the governance and security of the Lebanese people, particularly the Shia community, which is a substantial confessional group within the population.

Hezbollah was characterised as antisemitic — Justice Fagan explicitly rejects this as unproven:

Dr Shanahan states that “Hezbollah is clearly an antisemitic organisation”. The only justification given for that statement is that a television station operated by Hezbollah was “banned by France for its antisemitic content” and that the same television station and also a Hezbollah radio station were designated by the United States as “Foreign Terrorist Entities”. The Court has no evidence of the broadcast content that attracted those decisions of France and of the United States. Nor is it known on what criteria France applied the classification of “antisemitic” or what definition of “Foreign Terrorist Entity” was used by the United States. Hezbollah is undoubtedly “anti-Israel”. It may be that France conflates “anti-Israel” with “antisemitic”, as others do. It may be that the United States uses the designation “Terrorist Entity” loosely in relation to organisations that militarily oppose its ally, Israel. Nothing in the evidence before the Court or from open sources demonstrates that Hezbollah is inherently antisemitic, as opposed to being militantly hostile to Israel.

Fagan also rejects adopting other’s characterisation of something as a terrorist organisation (151)

In determining those questions the Court cannot simply accept at face value the designation of the organisation as “terrorist” by a foreign state. For its own political or rhetorical purposes, that state may use “terrorist” more broadly than is required under the Terrorism (High Risk Offenders) Act. The Australian government’s designation of Hezbollah as a terrorist organisation does not relieve the Court of having to determine what ideology is associated with Hezbollah and whether the defendant has adopted it.

His discussion of the context of the war with Lebanon with is also striking, including in its notable absence of purported balance of Hezbollah strikes on northern Israel (152)

On 30 July 2024 Israel bombed the densely populated southern part of Beirut, known as al-dahiyeh, killing a woman and two children. Israel announced that it had sought to kill a Hezbollah commander. On 23 September 2024 Israel commenced a campaign of airstrikes on thousands of sites in Lebanon, killing 800 people in the first week and forcing over 100,000 to flee their homes. The Secretary-General of Hezbollah, Hassan Nasrallah, was assassinated by Israel by means of a bomb dropped on southern Beirut shortly after 2:30 am Australian Eastern Standard Time on Saturday 28 September 2024 — Friday evening in Beirut. Israel commenced a ground invasion of Lebanon from 1 October 2024. The Lebanese government subsequently reported that over the next two-months more than 2000 Lebanese citizens, mostly civilians, were killed by the Israeli invading forces. All of the above events were widely reported, including in Australian media. Judging by the content of the messages referred to below, at least some of those events came to the notice of the defendant’s family members and associates.

His discussion of sympathy for Hezbollah is also remarkable in the level of sympathy and understanding he conveys

From 20 October to mid November 2024, various family members sent news to the family chat concerning the conflict in Lebanon, referring to the destruction of buildings by Israeli bombing, the deaths of Hezbollah leaders and the statistics of combatants killed on each side. Responses within the chat indicated the family’s hostility to Israel and sympathy for Hezbollah in relation to this conflict, and their concern for the communities of southern Lebanon and the southern suburbs of Beirut, where the brunt of the Israeli attacks were being felt.

And again:

The defendant’s family and at least some of the members of the Bang Bros chat have strong ties to the Shia Muslim community of Lebanon. Whatever judgment others might make of right and wrong in the conflict between Israel and Hezbollah, it is understandable that people of Lebanese Shia Muslim heritage would follow closely the military conflict that commenced in late September 2024 and that they would have sympathy for Hezbollah. It is understandable that such people would feel hostility towards Israel, based on the long communal history of disruption to their society since Israel was established. That history commenced with the influx of 110,000 Palestinian refugees in 1948, being those of the total of 750,000 Palestinians forcibly expelled by Israel who fled northward into Lebanon. The history of disruption continued with an Israeli invasion in 1978, a further invasion in 1982 followed by 18 years of Israeli military occupation and another war waged by Israel on Lebanon in 2006.

In that setting, the tone of the messages exchanged in the two chats is mild. Australian citizens with less connection to Lebanon than the defendant’s family and his Bang Bros associates might reasonably express similar upset at the loss of human life and the destruction of villages.