Justice Desmond Fagan’s NSW Supreme Court judgment in State of New South Wales v Farhat deserves support, not the “judicial activism” label attached to it by the Executive Council of Australian Jewry (ECAJ).

Fagan rejected a terrorism-related supervision order against Mohommed Farhat, whose offending included vandalism and graffiti carrying an expletive directed at Israel.

The evidence showed that Farhat had been recruited and paid by organised crime, rather than driven by the ideology the state sought to attribute to him.

Fagan’s reasoning went even further, he found that Israel achieved Jewish demographic dominance in 1948 through the “forcible expulsion of 750,000 indigenous Palestinians” and the destruction of “over 500 of their villages”, citing historians including Benny Morris and Ilan Pappé.

He also found no evidence that Hezbollah had committed a terrorist attack in Australia and no basis for describing the organisation as inherently anti-Semitic, as opposed to militantly hostile to Israel.

The police handling of the evidence is itself deeply troubling. Authorities possessed information that weakened the claim of ideological motivation, yet Farhat was still presented to the court through a terrorism-inflected narrative.

Withholding material evidence is inexcusable especially when the consequence is the possible extension of a person’s punishment.

None of this was judicial overreach. It was relevant to the question before the court: whether Farhat’s conduct demonstrated an antisemitic or terrorist ideology.

A court cannot assess alleged motive while pretending that the history and political meaning of Israel–Palestine are irrelevant.

Fagan applied the ordinary meaning of “anti-Semitic”: prejudice against Jews as Jews. He refused to let the term be redefined mid-trial so that a curse against a foreign state became, by implication, an attack on a religious or ethnic group.

ECAJ co-chair Alex Ryvchin’s claim that the vandalism was self-evidently anti-Semitic because it occurred in a “Jewish neighbourhood” is precisely the reasoning Fagan rejected.

As the judge put it, “the political nature of the curse was not changed by the circumstances.” Location may establish the seriousness of the harm, but it cannot manufacture antisemitic intent.

Calling Fagan’s reasoning “activism” is therefore hypocritical.

The judge examined the ECAJ’s own published policies, including its pledge to “reaffirm Australian Jewry’s strong and unshakeable solidarity with Israel”.

In doing so, he exposed the fact that the political assumption underlying the organisation’s claim was that hostility to Israel should be treated as hostility to Jews.

The Jewish Council of Australia told the Royal Commission that ECAJ does not speak for all Australian Jews, whatever its claim to represent a majority position.

Fagan’s judgment recognises that Australian Jewish opinion is neither uniform nor reducible to solidarity with the Israeli state.

This is not the first time Alex Ryvchin, and allied organisations have treated scrutiny as an attack.

In August, after pro-Palestinian advocates cross-examined Jewish Board of Deputies president David Ossip, Ryvchin claimed that the Royal Commission on Antisemitism and Social Cohesion had been “hijacked”.

Commissioner Virginia Bell publicly rejected that allegation and affirmed the right of counsel to test evidence through cross-examination.

Her intervention matters because it identifies a recurring pattern.

ECAJ and other pro-Israel organisations demand that their claims about anti-Semitism be treated as authoritative, then portray the testing of those claims as itself antisemitic or illegitimate.

But public bodies cannot protect a community by exempting its representatives from scrutiny. Cross-examination is not intimidation; it is how evidence is tested.

Fagan’s criticism of the International Holocaust Remembrance Alliance definition is extremely important.

He described it as verbose and imprecise, detached from the common Australian understanding of anti-Semitism and liable to graft “a parasitic rejection of protest against Israel” onto the genuine abhorrence of hatred against Jews.

This is an indictment of the Antisemitism Envoy’s attempt to force it into every aspect of Australia society.

The judge cited polling showing that 79 per cent of Australians held an unfavourable view of Israel. It would plainly be absurd to classify that entire majority as anti-Semitic.

Their disapproval reflects public exposure to Israel’s treatment of Palestinians, including the destruction and suffering in Gaza and the West Bank as well as Lebanon, Syria and Iran not hatred of Jews as Jews.

Fagan’s judgment establishes that anti-Semitic intent must not be assumed but has to be proved and is a welcome defence of evidentiary discipline, political freedom and the distinction between Jews, Judaism and the state of Israel.

A longer and more detailed analysis is found in this article