Political Hate Speech Laws In NSW

Recently, the Supreme Court of New South Wales has refused an application to keep a young man under strict supervision after his release from prison. While this sounds mundane, it is a judgment that says more about the legal boundaries of political expression in New South Wales than many give it credit for.

State of New South Wales v Farhat was decided by Justice Desmond Fagan on 30 July 2026, with detailed reasons published in mid-August. Despite the extensive media coverage treating it as a criminal case, it is not: it is a civil application brought by the State under the Terrorism (High Risk Offenders) Act 2017 (NSW). Nonetheless, the reasoning reaches deep into the criminal law, and has significance for clients, lawyers, and all members of the public in our politically turbulent times.

What The Case Was About

Mohommed Farhat, then 21, pleaded guilty to 15 offences arising from a vandalism and arson spree through Woollahra, in Sydney’s eastern suburbs, in November 2024. Around 10 vehicles were spray-painted with slogans including “F*** Israel” and “PKK coming”. The latter of these slogans refer to the Kurdistan Workers’ Party, a proscribed terrorist organisation. In total, two cars were set alight, and the complete quantum of damages exceeded $100,000.

He was sentenced in the Local Court to one year and eight months imprisonment, with the sentence due to expire in October 2026. In sentencing him, the Local Court treated hatred of, or prejudice against, Jewish people as an aggravating factor. An aggravating factor is a feature of a case that results in an increase in penalty because it increases the need to satisfy one or more of the purposes of sentencing.

As his release approached, the State applied for a 12-month extended supervision order (ESO), which is a legal order that aims to protect the public by keeping certain offenders under struct supervision and conditions. Had it succeeded, Farhat would have been subject to a host of different and restrictive conditions in the community, which would ultimately impede his liberty drastically.

The Statutory Test

An ESO under the Terrorism (High Risk Offenders) Act is not lightly made. The Supreme Court must be satisfied, to a high degree of probability, that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

The Court must also impose the least restrictive conditions necessary to address that risk. The threshold test is similar to that of bail in that it considerably focuses on community safety, though an ESO is far more stringent.

The State’s case for risk was built substantially on the proposition that the offending was antisemitically motivated, and that this motive revealed an ideological trajectory pointing toward terrorism.

What The Court Decided

Justice Fagan dismissed the application, finding the evidence fell well short of the statutory threshold.

Central to that conclusion was a finding about motive. His Honour found that Farhat had been incited and directed by another person to carry out the vandalism in exchange for $4,000 and a quantity of drugs, and that he did not intend to express hatred towards Jewish people. Construed this way, Farhat was not so much a zealot or a radical, but somewhat of a vandal for hire: his graffiti message was ultimately the product of a transaction.

However, the Court then went further, and it is this part of the reasoning that carries the broader significance. The “F*** Israel” slogans were held to be crude expressions of political hostility toward a foreign state — a curse directed at a country, not at a people. The fact that they were painted in a suburb with a substantial Jewish population did not, of itself, convert them into antisemitic statements.

The Crown had relied on material extracted from Farhat’s phone: exchanges about Hezbollah, the death of Hassan Nasrallah (leader of the Hezbollah), and Israeli military operations in Lebanon. Justice Fagan rejected the submission that these amounted to evidence of an extremist pathway, finding instead that they reflected young men discussing a conflict affecting their families and community. Put simply, his Honour allowed for grievances to be expressed toward a political entity and illustrated that hostility toward Israel is not the same thing as hostility toward Jewish people.

This clarification is of paramount importance in our modern culture of constantly conflicting and highly politicised views, which often make it impossible to express one view without implicitly expressing a linked view.

This understanding is what lead many critics to conflate criticism toward Israel as antisemitism, thus creating a crossroads where criticism of the former is inhibited by fear of inadvertently criticising the latter. The court in Farhat goes toward separating these two issues.

The IHRA Definition

The Crown’s expert evidence invoked the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism. The Court declined to apply it, finding that it did not assist in resolving the case and did not reflect the established Australian understanding of the word.

His Honour described the IHRA core text as too verbose and imprecise to be attributed to an ordinary, reasonably informed member of the Australian public.

For a superior court judge to say so, in published reasons, is significant. The IHRA formulation has been adopted by government departments, universities and institutions across the country. This judgment holds that its adoption by institutions does not alter the legal meaning of the term.

Why It Matters For Freedom Of Speech

Australia has no constitutional guarantee of free speech. What exists is the implied freedom of political communication: a restraint on legislative power rather than a personal right, and one the High Court has repeatedly confirmed is neither unlimited nor absolute.

Within that framework, Farhat does a few useful things.

First, it separates the message from the method. The Court accepted that the offending was nonetheless aggravated by its wantonness, vulgarity and intimidatory effect: the offence is not innocent or made light of. However, it was held that no antisemitic character of the offence impacted it’s severity.

That is, you may lawfully criticise Israel, but you may not say it by defacing someone’s car or setting it on fire. The prosecution is for the destruction of property; the political content of the words is neither an aggravation nor a defence.

Secondly, it protects unpopular political expression. The Court reaffirmed that Australians who strongly disapprove of Israel’s conduct are free to express that view, and that others are equally free to disagree or ignore them. This is a fundamental proposition that does not depend on the speech being measured or agreeable.

Finally, it importantly reverts the onus that labels must be proved and checked, not assumed to be true. Justice Fagan found that police statements and intelligence reports had uniformly described the graffiti as antisemitic, that the prosecution adopted this without independent analysis, and that the Local Court then acted on it. His Honour considered that the misapplied label had led to Farhat being treated differently under the criminal law and had ultimately prompted the State to bring these proceedings. It is an uncontroversial notion that scathing labels such as ‘antisemite’ or ‘terrorist’ should be vetted before being established as a basis for legal action. Plainly, more critical thinking and analysis was required.

The Limits Of The Judgment

This is the initial decision on a civil application, and it rests heavily on findings about one defendant’s actual motive. It creates no immunity for intimidation, and it does not disturb the NSW offences directed at inciting racial or religious hatred, or the hate-motivation aggravating factor in sentencing. A person who genuinely targets others because of race or religion faces the full weight of those provisions.

What the case establishes is procedural. Whether conduct crosses the line from political expression into racial or religious hatred is a question for a court, decided on evidence, and crucially, not a conclusion imported from a police fact sheet, an intelligence assessment, or an advocacy body’s preferred definition.