Federal Court refuses to dismiss racial vilification case against Sydney University lecturer

A Federal Court judge has refused to throw out a racial discrimination lawsuit against the University of Sydney in connection with lecturer Nick Riemer in a pre-trial ruling, with the court finding that key questions about how Jewish and Israeli Australians interpret criticism of Zionism must be decided at trial.

The decision represents a significant blow for the university, which had sought to avoid a full hearing by having the case dismissed early. While Justice Geoffrey Kennett struck out parts of the plaintiffs’ case, his refusal to grant summary dismissal means the core allegations will proceed.

 

Four Jewish individuals linked to the university claim lecturer Riemer’s public statements between October 2023 and May 2024 breached section 18C of the Racial Discrimination Act, which prohibits acts reasonably likely to offend, insult, humiliate or intimidate people based on race or national origin, and which are done because of those characteristics.

The lawsuit targets numerous statements made after the 7 October 2023 Hamas attacks, including social media posts endorsing a “global intifada” and describing Zionists as “racists” and “genocide-enablers”, and an Overland magazine article arguing Zionists are “racist supporters of apartheid”.

Riemer, a senior lecturer and former union president, and the university argued the statements were political criticism of Zionism as an ideology, not racial vilification of Jews or Israelis as ethnic groups.

Why dismissal failed

Justice Kennett ruled 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.

The plaintiffs allege that a substantial proportion of Jewish and Israeli people identify as Zionists. This raises the possibility that references to “Zionists” might be understood differently by Jewish or Israeli readers than by the general public.

While acknowledging that criticising Zionism as a political philosophy is conceptually distinct from vilifying Jews as a racial group, Justice Kennett said evidence might show Riemer’s words “have particular significations or resonances for reasonable readers who are Jewish and/or Israeli persons”.

The defendants failed to provide adequate evidence to prove their case. The university tendered documents suggesting Jewish organisations distinguish between anti-Zionism and antisemitism, but Justice Kennett found this insufficient to establish the views of Jewish Australians generally.

The plaintiffs filed 2,344 pages of material in response, but the judge found most of it inadmissible, parliamentary privilege documents and flawed surveys “unlikely to be probative of anything”.

However, the evidentiary threshold for resisting summary dismissal is deliberately low. Justice Kennett noted it was “not appropriate to proceed on the basis that the applicants have put their best foot forward” at this early stage, meaning they will have the opportunity to present proper evidence at trial.

Plaintiffs’ case limited

Despite refusing dismissal, Justice Kennett imposed limits on how the case can be argued.

He struck out the plaintiffs’ attempt to rely on Riemer’s statements “cumulatively”. They had argued that even if individual statements did not breach section 18C, they could be considered together to establish vilification.

The judge did not accept this ruling that Section 18C operates on individual acts. Each of the statements must independently satisfy the legal test. Statements that individually fall short cannot be added together to create a breach.

He also struck out numerous paragraphs as irrelevant or overly broad, including detailed accounts of Palestinian intifada violence, claims about Hamas members’ motivations, and global assertions about who Zionists are.

The plaintiffs must now prove, for each statement individually, that it conveyed the specific harmful meanings they allege and that Riemer made it “because of” the race or national origin of Jewish or Israeli people.

Justice Kennett made clear they are bound by the precise “imputations” pleaded in their statement of claim and cannot advance different arguments at trial.

What’s at stake

The case will test when political criticism crosses into unlawful racial vilification under section 18C of the Racial Discrimination Act.

Section 18C makes it unlawful to do an act, otherwise than in private, if the act is reasonably likely to offend, insult, humiliate or intimidate another person or group based on their race, colour or national or ethnic origin, and the act is done “because of” those characteristics.

The plaintiffs must prove two distinct elements for each statement: first, that it was reasonably likely to offend, insult, humiliate or intimidate Jewish or Israeli persons in Australia; and second, that Dr Riemer made it because of the race or national origin of those people.

The core dispute centres on whether statements criticising “Zionists” satisfy these tests when directed at what the plaintiffs claim is a political identity that overlaps substantially with Jewish and Israeli identity.

During an October hearing, Riemer’s barrister, Jessie Taylor argued that Zionism is a political philosophy, not a race or ethnic group, and that not all Jews are Zionists. She told the court Zionism and Jews are not “so perfectly synonymous that Zionism should be construed as a race for the purpose of section 18C”.

The plaintiffs’ counsel, Adam Butt countered that the court must consider how Jewish and Israeli Australians actually perceive such statements, arguing many view attacks on Zionists as attacks on them as Jews or Israelis.

Justice Kennett’s ruling means both sides must now prepare evidence about these perceptions for trial, likely including expert testimony about how the affected community understands references to “Zionists” in the context of the Israel-Gaza conflict.

The University faces potential liability for only two of the 14 statements: the Overland article, where Riemer was identified as a university employee, and posts about “no room for Zionism” in unions.

 

Next steps

The parties must file a timetable by 28 November for next steps. Costs were reserved, with Justice Kennett noting human rights laws may require unsuccessful respondents to pay applicants’ costs.

The case is being heard alongside similar allegations against another Sydney University staff member in Toltz v Keane. The Executive Council of Australian Jewry declined to comment on either case.

Both cases come amid heightened campus tensions over the Israel-Gaza conflict and rising reports of antisemitism since October 2023, with significant implications for future litigation over criticism of Israel and the boundaries of political speech under racial vilification laws.