Justice Stephen McDonald told the court, in the course of a six-minute hearing on Thursday, that the contention the Zionist Federation of Australia had no case against journalist Mary Kostakidis had to be determined at trial, reports Joe Lauria.

A Federal Court judge has refused to dismiss a case brought by the Zionist Federation of Australia against prominent Australian journalist Mary Kostakidis, who is accused of racial hatred because of her social media posts critical of Israel’s atrocities in Gaza.

Justice McDonald ruled on Thursday morning local time in Adelaide that he was denying Kostakidis’ bid to dismiss the entire case against her, instead only striking certain paragraphs from the ZFA’s complaint.

In essence, the judge is giving the ZFA a do-over to correct their mistakes in those paragraphs — largely about how to define the allegedly “offended group” of Jews in Australia — in a new amended complaint by 31 October.

McDonald rejected the argument of Kostakidis’ lawyers that the ZFA complaint had failed to disclose “a reasonable cause of action".

Kostakidis’ barrister Stephen Keim had argued at a 29 July hearing that all or part of the pleading by ZFA chief executive Alon Cassuto did not represent a reasonable cause of action. For the case to go forward to trial it ought to have a reasonable chance of success, he said.

‘A case without prospect of success’

The purpose of the Racial Discrimination Act, under which the ZFA is charging Kostakidis, is to prevent racial discrimination, said Keim. Criticising a state’s actions or political ideology has nothing to do with racial discrimination.

The case against Kostakidis, argued Keim, “cannot be struck out [dismissed] merely on the basis that it appears to be weak. We … maintain that the pleaded case does not reveal a weak case. It states a case without any prospect of success.”

But Judge McDonald told the court that this contention had to be determined at trial.

McDonald is thus giving credence to the scurrilous charge by the ZFA that one of the best-known and most respected journalists in Australia may be guilty of racial hatred because she dared criticise actions in Gaza by the State of Israel — not the Jewish people — actions that governments, United Nations bodies, human rights organisations and genocide scholars have judged to indeed be genocide.

Kostakidis is nationally known from her nearly two decades as a television news presenter on the SBS Network. She was accused by the ZFA of making allegedly offensive remarks in two tweets in January 2024.

The ZFA is charging Kostakidis under Section 18C of Australia’s Racial Discrimination Act, which _“_makes it unlawful for someone to do an act, publicly, that is reasonably likely to offend, insult, humiliate, or intimidate another person or group of people, based on their race, colour, or national or ethnic origin.”

Section 18D however “provides exemptions that protect freedom of speech in certain circumstances, such as artistic works, scientific debate, and fair comment on matters of public interest”.

Nasrallah retweets

Cassuto had filed an initial complaint in July 2024 to the Australian Human Rights Commission about the two Kostakidis retweets, both of which contain video of a speech by the now Israeli-assassinated Hezbollah leader Hassan Nasrallah in which he allegedly called for the ethnic cleansing of Israel.

In Kostakidis’ retweeted video, the late Hezbollah leader says: “Here, you don’t have future, and from the river to the sea, the land of Palestine is for the Palestinian people and for the Palestinian people only … “

Above this Nasrallah quote in one of her retweets, Kostakidis wrote: “Israeli govt getting some of its own medicine. Israel has started something it can’t finish with this genocide.”

Cassuto claims this is antisemitic and wants Kostakidis to apologise, remove the allegedly offensive materials from her X account, promise not to post similar tweets in future and pay his legal costs.

At the 29 July hearing, about which the judge ruled on Thursday, Kostakidis’ attorney Keim contended that “reporting of statements by a well-known spokesperson for a party in a major conflict is an essential part of news reporting. This may involve reporting offensive statements".

He argued:

“No ordinary and reasonable person would be offended by such news reports because such an ordinary and reasonable person understands the function of news reporting. News reporting of such offensive words is not capable of proving bad motives related to the offensive content on the part of the person doing the reporting.”

Kostakidis’ lawyers had submitted an 11-page affidavit from one of her solicitors listing the wide array of media around the world, including Australian mainstream outlets, that reported on Nasrallah’s speech, many with commentary. It was an effort to place the veteran journalist’s tweets in the context of the widespread coverage of a newsworthy event.

Kostakidis “was acting in accord with orthodox judgments and actions concerning publication made by editors and journalists around the world on a daily basis”, Keim told the court.

Judge McDonald did not agree that based on these arguments the case should be dismissed and that instead it should proceed towards trial, with a case management hearing set for the week of 15 December.

Kostakidis responded on X to Thursday’s developments. She said:

“The reality is because of a bad law, a lengthy and costly legal case can be brought against you by anyone who claims you are motivated by racism and are responsible for their feelings. And fair comment on a matter of public interest, and journalism, may be exceptions that can be pleaded, but that has to be proven at trial. Anyone involved in public discourse, including any journalist, must prove they are not motivated by racism.”

Republished from Consortium News, 9 October 2025

The views expressed in this article may or may not reflect those of Pearls and Irritations.