The racism case against Mary Kostakidis may have a long way to go, with flaws in the Anti-Discrimination Act clearly exposed. Kim Wingerei reports from the Federal Court.
Mary Kostakidis’ legal team fronted Justice McDonald on Tuesday with an application to strike out the suit brought against her by the Zionist Federation of Australia (ZFA). After two and a half hours of intricate legal arguments, the judge reserved his decision for a future date. He made it clear his decision would neither be easy nor imminent.
Earlier this year, Kostakidis – veteran journalist and former SBS newsreader – was sued by ZFA’s CEO Alon Cassuto for making racist remarks. This followed his complaint first made to the Australian Human Rights Commission in July 2024, where he alleged that a tweet shared by Kostakidis was “deeply offensive and intimidating to our community but also cross the line into unlawful hate speech”.
The tweet referred to a callout by the then Secretary-General of Hezbollah, Hassan Nasrallah (since assassinated), containing the Palestinian slogan “From the River to the Sea”. Other tweets from Kostakidis related to the Gaza Genocide have since been brought into the Federation’s complaint.
Their claim is that these tweets fall foul of section 18C of the Anti-Discrimination Act, which refers to “Offensive behaviour because of race, colour or national or ethnic origin”.
Motion to strike out
Mary Kostakidis countered that her tweets were merely reporting of opinions contrary to the official Israel narrative and not in any way antisemitic or racist. Following unsuccessful mediation at the Australian Rights Commission in December last year, she said:
“I condemn antisemitism and racism of any kind.
I did not, and do not, endorse the content of the speech made by Hassan Nasrallah, which I shared on my X account on 4 and 13 January 2024. I accept that some of his comments may be seen as antisemitic but that is not a barrier to reporting them.
To the Jews and/or Israelis in Australia who took my posts as an endorsement, I am sorry for their hurt, distress and pain.”
Statement re CEO, Zionist Federation of Aus V Kostakidis
Six months ago a complaint was filed against me under 18c of the Racial Discrimination Act over posts I made on X sharing a speech of Hezbollah leader Hassan Nasrallah. A number of highly defamatory and gratuitous comments…
— 💧Mary Kostakidis (@MaryKostakidis) January 2, 2025
In yesterday’s hearing, her legal team also made their case that the voicing of opinions about the Gaza conflict cannot in itself be racist or discriminatory against any group. They referred to a recent judgment in another case (Wertheim v Haddad) where Justice Stewart said,
criticism of Israel’s actions, no matter how fierce, is not by its nature antisemitic.
He pointed to South African case law, highlighting that Australian courts are only now beginning to contend with this issue.
Mary Kostakidis’ barrister put it a different way, quipping, “criticising the All Blacks does not imply criticism of all New Zealanders!”
Justice McDonald made an earlier comment that “criticism of Israel is not capable of being interpreted as racism on its own”. However, he added, “There is a specific issue of making a correlation between the two because of the strong connection between Israel and people of Jewish origin”.
Part of the legal arguments between the parties centred around a definition of who the injured party was. All people of Jewish origin? All Israel citizens? Only those who hold Zionist views?
This and other parts of the procedure seemed to this observer as highlighting the vagaries (and inadequacies) of section 18 of the Racial Discrimination Act itself.
If the case goes ahead, and Kostakidis is found to have broken section 18C, she may be exempted by section 18D, which allows for “a fair and accurate report of any event or matter of public interest; or a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”
On the latter, Justice McDonald at one point added rhetorically, “Does retweeting equate to endorsement?” Perhaps an indication of which way he is leaning, but we won’t find out for “a while”.
Kim Wingerei is a businessman turned writer and commentator. He is passionate about free speech, human rights, democracy and the politics of change. Originally from Norway, Kim has lived in Australia for 30 years. Author of ‘Why Democracy is Broken – A Blueprint for Change’.