How the Royal Commission should define antisemitism

Drawn from his submission to the Royal Commission, Gareth Evans argues for a definition of antisemitism that protects Jewish Australians without suppressing legitimate criticism of Israel.

Despite the centrality of the issue to its entire remit, it is not clear that the Royal Commission on Antisemitism and Social Cohesion has yet devoted sufficient attention to articulating a definition of antisemitism which is defensible in principle, workable in practice, and commands the broadest possible community acceptance.

This article is drawn from my own written submission to the Commission, which was offered in the hope it would be assisted by the perspectives of its author, who has spent many decades of his professional life working both domestically and internationally on issues of human rights generally, racial, ethnic and religious discrimination in particular, and genocide and other crimes against humanity – in his various capacities as an academic and practising lawyer, ministerial consultant, UN adviser, federal parliamentarian, cabinet minister, international NGO head, and university chancellor.

The IHRA Definition

Given the extent to which the IHRA working definition has already been adopted by Australian Federal and State governments, and in other domestic institutional settings, as well as internationally, it is understandable that the Commission should itself have decided to apply it in its deliberations, as Commissioner Bell announced at the Opening Hearing would be the case. The Commission is clearly alive to the sensitivities of applying the IHRA definition, with its accompanying examples, and has made clear the importance it attaches to taking into account the overall context of any problematic conduct, and not conflating criticism of Israeli government policies with antisemitism. I nonetheless do not think it can avoid addressing in some detail the concerns about over-reach that the definition and its accompanying material have aroused. I here make the case for adopting some further clarificatory language to alleviate those concerns.

The Core Definition. The Commission’s revisiting of the definitional issue could usefully start with the core IHRA definition itself:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

While this language may be essentially uncontroversial, as the Commissioner stated in her Opening Remarks, it is arguable – from a Jewish community perspective – that it actually under-reaches, rather than over-reaches, not conveying as effectively as it could the whole range of conduct that really makes antisemitism so indefensible.

The concern here, clumsy syntax apart, is that ‘hatred’ is a very strong word, no doubt perfectly appropriate to describe those who daub swastikas on synagogues, or hurl explicit and filthy verbal abuse at Jewish individuals for being Jews, but falling short in capturing those who express what might be more accurately described as simply hostility or prejudice, or who practise discrimination. A better formulation, it could be argued, embracing the whole spectrum of unacceptable conduct, and not just its most extreme manifestations, would be simply:

Antisemitism is hostility to, prejudice or discrimination against Jews as such.

Apart from anything else, this language does seem to capture what I have always believed is the crucial human rights issue for anyone of distinct ethnicity, race, religion, gender, sexual identity or the like in our society: being treated badly for what you are rather than anything you do.

While the Commission may not be inclined to reopen an issue on which it has already taken a clear position, it might be helpful nonetheless – particularly in the context of acknowledging other possible weaknesses in the IHRA package – to at least identify this as an alternative possible formulation of the core definition that will inform and impact all its findings.

The IHRA on Criticism of Israel. From the perspective of those with more familiar concerns – about the potential over-reach, rather than under-reach, of the definition and its accompanying material – a significant concern is that the IHRA sentence that is most often cited as putting their fears at rest, viz. ‘criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic’, is not quite as fit for purpose as it might seem. The reality is that many criticisms are made against Israel – for example in relation to its settlements policies in the West Bank – which have no obvious current parallel in any other country.

A much better, and simpler, formulation of the point in issue was that made by the Commissioner in her Opening Statement: ‘criticism of the policies that may be pursued by the government of Israel from time to time is not, of itself, antisemitic’. It may, however, have been a little heroic to describe this position as ‘uncontroversial’, given the all too evident continuing intention in some quarters, in our society and around the world, to conflate criticism of Israeli conduct with antisemitism.

It is submitted, accordingly, that it would be helpful if the Commission in its reporting acknowledged quite explicitly that the IHRA sentence in question needs some refinement, of the kind already made by the Commissioner. And further, if it were to supplement that with some further explicit examples of its own to drive the point home, perhaps along the lines of my own foray into this territory in my letter published in the Sydney Morning Herald on 14 June 2021:

Calling out China for its persecution of Uighurs is not to be a Sinophobic racist. Calling out Myanmar for its crimes against Rohingya people is not to be anti-Buddhist. Calling out Saudi Arabia and Egypt for their murder and suppression of dissidents is not to be Islamophobic or anti-Arab. And calling out Israel for its sabotage of the two-state solution and creation of a de facto apartheid state is not to be anti-Semitic.

The Problematic IHRA Examples. In her Opening Statement the Commissioner acknowledged, in relation to the eleven examples of conduct which could amount to antisemitism accompanying the IHRA definition, that ‘at least two of the examples are controversial and have led some critics to argue that the IHRA working definition wrongly labels as antisemitic the expression of political views which do not express a hatred of Jews’. But she added that her ‘current view is that these concerns pay insufficient regard to the terms of the definition itself and they’re apt to overlook the requirement to take account of the overall context in which conduct occurs before making any determination that the conduct is antisemitic’.

It is submitted that while the Commissioner’s recognition of the crucial importance of context in all these determinations is very welcome, it would be helpful for the Commission in its reporting to spell out in a little detail just how problematic some of the examples are, and to propose some additional language of its own – focusing on the issue of intent – to ensure that they are not misapplied in practice. My own view is that while there are no problems with examples 1-6, 9 and 11 in the IHRA list, there are issues with examples 7, 8 and 10 which need to be acknowledged.

In relation to example 7 – ‘Denying the Jewish people their right to self-determination, e.g. by claiming that the existence of a State of Israel is a racist endeavour’ – everything really depends on the intent with which such a statement is made: whether or not it is expressed in a way that displays hatred, hostility or prejudice towards Jewish people generally. Statements critical of the history of the Balfour declaration implementation – of Jewish self-determination being achieved at the expense of Palestinian rights to the same – are not inherently problematic in this sense. Nor is a criticism of the state of Israel as being an inherently racist endeavour because it grants a legal right to ‘return’ to anyone anywhere with a Jewish mother, while denying any such right to any Palestinian wanting to return to the land where their mother actually lived. Or such criticism because the Jewish Nation-State Basic Law of 2018 guarantees the character of Israel as exclusively Jewish, and affirms that ‘exercising the right to national self-determination in the State of Israel is unique to the Jewish people.’

In relation to example 8 – ‘Applying double standards by requiring of it a behaviour not expected of any other democratic nation’ –whether this is problematic again depends on context and intent. It is true, as Israel constantly points out, that many commentators and some UN bodies, especially the Human Rights Council, notoriously make more criticisms of Israel than of other nations whose behaviour may be as bad, legally or morally. But it is the case that Israel does have a long history of manifest human rights violations against Palestinians, and is one of the very few democratic nations (formal democracies if not liberal democracies) which has not accepted the jurisdiction of the Human Rights Commission and International Criminal Court, so there are grounds for particular scrutiny of its conduct. This should not be branded as antisemitic unless conducted in a way which manifests hatred, hostility or prejudice towards Jewish people generally.

Example 10 – ‘Drawing comparisons of contemporary Israeli policy to that of the Nazis’ – is less problematic because this conduct will usually involve some wildly exaggerated claim, and be seen as hurtful by most Jewish people. But, again, the perpetrator may have no hatred or prejudice against Jews generally, just hostility to particular actions of the Israeli government, and be simply wanting to draw a dramatic comparison. An example of the need for case-by-case judgment, individual context and intent focused rather than catchall, was the recent decision of ACT police to abandon the prosecution of a local café for breaching the Commonwealth’s new hate-crime law prohibiting the public display of swastikas. The offending posters depicted Donald Trump, JD Vance, Elon Musk, Benjamin Netanyahu and Vladimir Putin dressed in Nazi uniforms: manifestly anti-fascist political commentary, with no shred of antisemitic intent.

The problems associated with the interpretation and of the IHRA definitional package can be readily, and relatively simply, addressed by adopting, at least in part – as I for one have long advocated – the following recommendation of the House of Commons Home Affairs Select Committee on Anti-Semitism in the UK in 2016:

We broadly accept the IHRA definition, but propose two additional clarifications to ensure that freedom of speech is maintained in the context of discourse about Israel and Palestine, without allowing antisemitism to permeate any debate. The definition should include the following statements:

• It is not antisemitic to criticise the Government of Israel, without additional evidence to suggest antisemitic intent.

• It is not antisemitic to hold the Israeli Government to the same standards as other liberal democracies, or to take a particular interest in the Israeli Government’s policies or actions, without additional evidence to suggest antisemitic intent.

Although not subsequently accepted by the UK Government, or so far as I am aware anywhere else, this recommendation – particularly the first of the two clarifications, which is broad enough to subsume the second – is compellingly simple, attractive in principle, broadly workable in practice (while acknowledging that actual intent may sometimes be contested), and would make a real difference in achieving broader community acceptance of the IHRA package. I submit accordingly that this language should be embraced by the Commission:

It is not antisemitic to criticise the Government of Israel, without additional evidence to suggest antisemitic intent.

Applying the definition: Problematic language

It is not surprising that the explosive increase in speech and conduct characterisable, accurately or otherwise, as antisemitic, which had its most horrifying Australian manifestation with the Bondi massacre on 14 December 2025, and which has led to the convening of this Royal Commission, has occurred in the aftermath of the appalling events of 7 October 2023. Israel was perfectly entitled to respond with furious intensity to the indefensible outrage perpetrated by Hamas militants on that date – a massacre of over 1,000 innocent Israelis which, however explicable the emotion which triggered it might be, remains impossible to morally justify. But it was not very long before the number of innocent Palestinians men, women and children indiscriminately massacred in return came to wildly exceed, now by many scores of thousands, the Israeli death toll. And that disproportionate response, and some of the hateful rhetoric accompanying it, has triggered the intense continuing public protests, in this country as elsewhere, with which we are all now familiar.

It is equally unsurprising in this context that those with responsibility for maintaining order and defusing communal tensions – governments, police forces, university administrations and others – should, in order to simplify their enforcement task, be tempted to make explicitly unlawful, or subject to automatic institutional discipline, particular slogans and other forms of expression deemed to be inherently antisemitic, rather than subjecting them to case by case evaluation, taking into account, as necessary, both context and intent. The most currently attractive linguistic candidates for such specific outright bans – already in place in Queensland, and proposed in NSW – have been the slogans ‘Globalise the Intifada’ and ‘From the River to the Sea, Palestine shall be Free’, discussed below.

However understandable this response, it is submitted that it is a serious over-reaction, one very troubling in its implications for the paramount democratic value of free speech, now recognised by the High Court as the constitutionally protected implied freedom of political communication, and should be explicitly rejected by the Commission. Potentially problematic forms of expression should be left to be dealt with by general hate speech law, properly drafted and applied.

The point here, as elsewhere, is that there is no one-size-fits-all solution to the problem of antisemitism. As Kylie Moore-Gilbert put it in a December 2025 Age article, ‘there appears to be no singular, monolithic antisemitism festering in Australia but rather multiple different mutations of this ancient virus’. She identifies the three of most concern as being ‘Islamist extremists’, ‘far-right neo-Nazis’, and ‘individuals whose extreme anti-Israel views have crossed the line into anti-Jewish sentiment, and for whom any distinction between diaspora Jews living in countries like Australia and the actions of the Israeli government has long since disappeared’. She makes the point in relation to the last group that the ‘vast majority of pro-Palestine protesters do not fall into this camp’, motivated as they are essentially by horror at the deplorable situation in Gaza. Anti-Israel protesters come in all shapes and sizes, and particular language that may appear unequivocally antisemitic in the mouths, or on the signs, of one group, may look much less so in the case of another. The law should recognise that reality.

General principles which should govern hate speech laws. Hate speech legislation, or more general hate crime legislation including hate speech provisions, is not problematic to the extent it focuses on the causing of harm. Words can incite to violence; they can intimidate, creating a fear of injury or some other adverse consequence; and they can humiliate, causing real psychological damage. And as such it is entirely appropriate that there should be legal sanctions against their public use. But words can also be offensive or insulting without necessarily being harmful in any of these senses. Such words can be socially or morally unacceptable, to be deplored, and justify educational effort and social pressure to try to get people not to use them in public, but not be so damaging as to justify any kind of formal legal proscription, given competing values like freedom of political and artistic expression.

In this context, there is continuing public debate about the legitimacy of s.18C of the Racial Discrimination Act 1975, added in 1995, which makes it unlawful (and subject as such to civil complaint proceedings, but not criminal penalties) to ‘offend, insult, humiliate or intimidate’ persons or groups because of their race, colour or national or ethnic origin. My own strong, and long-held, view, which I hope the Commission might be willing to embrace, is that this section, while retaining its application to language or behaviour which is likely to cause harm by way of humiliation, intimidation or incitement, should be amended to remove its application to language or behaviour which merely offends or insults. Expression that one personally hates is not the same as expression that incites or provokes race hatred.

There is also ground for at least some concern, on free speech first principles, with a provision of the Combatting Antisemitism, Hate and Extremism Act 2026, passed after the Bondi massacre. A ’hate crime’ is here defined, inter alia, as conduct ‘that would, in all the circumstances, cause a reasonable person who is the target or a member of the target group, to be intimidated, to fear harassment or violence, or to fear for their safety’. While on the face of it this sets a reasonably objective benchmark, I think the better view is that which is articulated in para 29 of the parliamentary inquiry submission made by the Human Rights Commission, viz. ‘some would argue that adopting a broader ‘reasonable member of the Australian community’ standard would better promote freedom of expression and legal certainty. A community-wide benchmark reduces the risk of speech being curtailed based on highly contextual sensitivities and reflects a more uniform standard of tolerance in a pluralistic society.’

‘From the River to the Sea, Palestine shall be Free’. It is submitted that there is no justification whatever for imposing a blanket prohibition on public use of this language. Supporters of such a ban claim that it is antisemitic because of the perception that it necessarily implies the establishment of a Palestinian state extending across the entire territory from the Jordan River to the Mediterranean, which would mean the destruction of Israel, not just the state but the ideal. But leaving aside for now the question (revisited below in discussing ‘Zionist’ language) of whether criticism of Israel’s existence is indistinguishable from hostility to Jews as such, it is not necessarily the case at all that use of this slogan means the destruction of Israel and the disappearance of its Jewish population. Opponents of a blanket ban say that it can, equally, be seen as a demand that Israel dismantle its illegal occupation, allow the creation of a Palestinian state, and come to a just solution of the refugee return issue. Or, alternatively, be seen as a call for the creation of a single state in which Palestinians would have absolutely equal rights to its Jewish citizens. In either case Palestinians would be free.

It is submitted that this is not even a case where it is necessary to make a case-by-case evaluation of context and intent. The slogan in question is inherently ambiguous, and one that any decent respect for free speech would allow to be freely used.

Globalise the Intifada. This particular language is more troubling because of the now almost universal perception that the concept of ‘intifada’ necessarily entails serious violence (as it certainly did during the Second Intifada of 2000-05), and that to ‘globalise’ its acceptance would necessarily mean accepting the perpetration of terrorist violence not just against Israeli institutions and Jewish Israelis, but Jews everywhere, which would unarguably involve antisemitism. But opponents of a blanket ban say that ‘intifada’ in Arabic means just ‘shaking off’, and at most ‘uprising’, which latter might take the form (as did the First Intifada of 1987-93) mainly just of non-lethal demonstrations and civil disobedience, and as such be a legitimate political position.

It is submitted that this is a case, as with so many other manifestations of alleged anti-semitism, where context and intent are crucial. Some Jewish groups acknowledge that the intent of persons using the phrase may be different, but still support a blanket ban on the ground that its impact of any such use on the Jewish community remains the same. The counterargument is that if one is serious about protecting free speech, then one cannot allow subjective perceptions to determine characterisation of any given language as antisemitic: the words in question must, objectively, manifest hatred, hostility or prejudice towards Jewish people generally. That may be the case for some users, but it certainly will not be for all.

Anti-Zionist Statements. There is some truth in the argument of many Jewish community organisations that verbally targeting ‘Zionists’ can be a socially permissible way to target Jews generally, while offering plausible deniability. The great majority of Jews, in Australia as elsewhere, identify as Zionists, and a great many no doubt see Zionism as ‘a core component of Jewish identity, grounded in strong cultural, religious and familial connections to Israel’ (as a recent Victorian Civil and Administrative Tribunal ruling put it). No doubt many have had experiences justifying their suspicion that use of Zionist terminology is just a cover to disguise hostility or prejudice towards Jews as such.

But there is also truth in the argument of many of those with strong concerns about the impact of the Zionist enterprise – and the way in which Israel has over the decades used its statehood to forcibly displace Palestinians from its territory, illegally occupy Palestinian territory, and work to make claims to Palestinians’ own statehood in the region practically impossible to realise – that anti-Zionism has long been deliberately conflated with antisemitism in order to defuse those criticisms. Public admissions of that reality are rare, but occasionally surface, most notably with the well-known statement of the highly regarded former Israeli Foreign Minister and UN Ambassador Abba Eban, recorded in the Congress Bi-Weekly publication of the American Jewish Congress in 1973, that ‘One of the chief tasks of any dialogue with the Gentile world is to prove that the distinction between anti-Semitism and anti-Zionism is not a distinction at all’.

One of the most obvious ways of demonstrating that there is such a distinction is to point to the fact that over the decades a great many Jews around the world, including in Australia today, have been and remain hostile to Zionism. They famously include Albert Einstein, who was not about denying Jewish belonging or rights, but rather refusing to build those rights on ethno-nationalist violence, enforcing Jewish supremacy in a land historically shared by Palestinians.

All that said, I do believe it to be prima facie unacceptable, and quite likely to be driven by antisemitism, to describe Zionism or Zionists as inherently racist. It is a perfectly accurate and defensible exercise of free speech to call out some strong defenders of Israel – including some current Israeli Government ministers – as unapologetic racists. But it is unarguably the case that great many people who would happily describe themselves as Zionists – who supported the creation of Israel, and who continue to strongly support its existence behind safe and secure boundaries – are, and always have been, equally supportive of Palestinian rights, and cannot remotely be so described.

So it is neither accurate nor acceptable to claim that all Zionists are racists, or terrorists, or any other generalised pejorative expression, and such language should always be called out. But when self-identified Zionists take their commitment to Israel to ideological extremes – and do behave in colonial-supremacist ways, with total indifference to legitimate Palestinian claims of right, and making their own claims for a Jewish state extending from the river to the sea – they also deserve to be called out, and not allowed to get away with the old trope of painting their critics as irredeemably antisemitic.

The point for present purposes is simply that anti-Zionist statements are not susceptible to cookie-cutter treatment. Whether they can be characterised as antisemitic depends, as with so much other language and behaviour in this space, on case-by-case evaluation of context and intention. It would be helpful, in the cause of defusing community tensions on this issue, were the Commission to so find.

Applying the Definition: Campus Protest

Although it is not self-evidently obvious that antisemitism is more of a problem on Australian university campuses than in other institutional settings, this is an issue which has commanded lavish critical attention from elements of the Jewish community and sections of the media. And this has in turn stimulated a speedy response from the Government, with its acceptance of the Segal Report recommendations for a flurry of new investigative, monitoring, supervisory and disciplinary mechanisms, all designed to tackle what is being depicted, in essence, as a toxic and endemic scourge infecting all our nation’s campuses.

I believe that there is a great deal of over-reach in this response, that it requires more pushback than it has so far received from the sector, and that the Commission should be extremely cautious about embracing the response package in its entirety, let alone recommending its extension. But I will confine this submission to the issue of campus protest, where I was particularly intensely engaged with the relevant policy issues during my time as ANU Chancellor from 2010-19.

The starting point in understanding the proper reaction here to speech or behaviour potentially characterisable as antisemitic should be the University Chancellors Council Model Code for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers which provides in relevant part as to its objects:

To ensure that the freedom of lawful speech of staff and students of the university and visitors to the university is treated as a paramount value and therefore is not restricted nor its exercise unnecessarily burdened by restrictions or burdens other than those imposed by law and set out in the Principles of the Code

and as to its application:

the duty to foster the wellbeing of staff and students

• supports reasonable and proportionate measures to prevent any person from using lawful speech which a reasonable person would regard, in the circumstances, as likely to humiliate or intimidate other persons and which is intended to have either or both of those effects;
• does not extend to a duty to protect any person from feeling offended or shocked or insulted by the lawful speech of another.

My strong view is that a central raison d’etre of our universities must be to honour the traditional idea of the university as the home of free speech, of the clash of ideas, of unconstrained argument and debate, on the premise that it is only through ideas and arguments and assertions being contested that we can ever start understanding the difference between reason and unreason. And I further submit that if our universities are to retain that raison d’etre, they must remain totally committed to untrammelled free expression, drawing the line only at speech which is manifestly harmful (inciting to violence or hatred, intimidating, humiliating, or directly personally wounding), and not punishing as misconduct speech which simply offends, insults or shocks.

Of course civility in any discourse, with close attentiveness to the sensitivities of others, is to be preferred, but it cannot always be guaranteed in the context of campus protest activity, where passions have always tended to run high. Maybe in this context I remain an unreconstructed child of the 1960s, when I and other student activists were exercising to its untrammelled full our right to free speech about just about everything – not only not demanding protection from offence but devoted to causing it. But I do believe it is possible to be oversensitive to the burgeoning contemporary demand for ‘safe spaces’. I have always fully supported the common practice of establishing campus centres where particular ethnic and religious minority students, when they feel the need for time out, can be inconspicuous and socially comfortable. But the demand for protection against expression claimed to be offensive is something else. Learning to live with uncomfortable ideas and assertions, and responding to them appropriately, is part of the business of growing up, and lines have to be drawn against overdoing their suppression.

It will not always be easy in a campus protest context, as everywhere else, to determine whether speech or conduct is unacceptably antisemitic, showing hostility or prejudice towards Jews as such, or simply the expression of strong opposition – wrongheaded, exaggerated or not – to Israeli policies and actions. Everything comes down, here as elsewhere again, to context and intent. There is simply no substitute for careful evaluation of each individual case on its own merits, and hopefully the Commission in its reporting will make that clear.

Professor the Hon Gareth Evans AC KC was a Cabinet Minister in the Hawke-Keating governments for thirteen years, including as Attorney-General from 1983-84 and Foreign Minister from 1988-96; led the Brussels-based International Crisis Group from 2000-09; and was Chancellor of the Australian National University from 2010-19, where he is now Distinguished Honorary Professor.