I. The Newsreader
In 1997 I moved from the country to Sydney to start Year 7, to live with my dad. I was a sheltered country boy, as green as the grass on the farm I’d left behind. Every evening, my father would switch on SBS World News. Mary Kostakidis was there with us—in our lounge room, every night. The commercial networks gave us weather and car crashes. Mary gave us the world.
East Timor. Kosovo. September 11. Bali. Iraq. She covered these events with an intelligence that assumed her audience was capable of grappling with complexity. She didn’t simplify. She didn’t sensationalise. She explained. Mary Kostakidis was the first woman to anchor a national prime-time news bulletin in Australia. She was part of the founding team that built SBS Television from scratch in 1980—not a presenter who arrived after the institution was established, but someone who helped create it.
She is now 71 years old. She is being sued in the Federal Court for pressing retweet.
II. The Posts
The case is Cassuto v Kostakidis, VID404/2025, in the Federal Court of Australia. The applicant is Alon Cassuto, the Chief Executive Officer of the Zionist Federation of Australia. He is represented by Arnold Bloch Leibler—Leon Zwier and Raphael Leibler. His counsel is Michael Borsky KC.
The case concerns two posts on X (formerly Twitter).
4 January 2024
Mary reposted a clip of a speech by Hassan Nasrallah, the then-leader of Hezbollah, from an account called @CensoredMen. The clip showed Nasrallah saying, among other things, that Israelis with dual citizenship should return to the countries that issued their other passports, and that “from the river to the sea, the land of Palestine is for the Palestinian people.” Mary added her own comment: “The Israeli govt getting some of its own medicine. Israel has started something it can’t finish with this genocide. #Gaza.”
13 January 2024
Nine days later, Mary reposted a similar clip of the same Nasrallah speech from a different account, @richimedhurst. This time, she added nothing. She pressed repost. That was the entirety of her conduct.
It is the second post—the pure repost, with no words of her own—that captures the absurdity of this proceeding. Cassuto alleges that the act of sharing a publicly available video of a publicly reported speech by a political figure constitutes racial hatred under section 18C of the Racial Discrimination Act 1975 (Cth).
The remedy sought: a declaration that both posts breached section 18C, an apology, a corrective notice, and costs.
III. The Legal Theory
Section 18C makes it unlawful to do an act, otherwise than in private, that is reasonably likely to offend, insult, humiliate, or intimidate a person or group of people, where the act is done because of the race, colour, or national or ethnic origin of that person or group. Section 18D provides exemptions for anything done reasonably and in good faith in the making of a fair comment, fair reporting, or for a genuine academic, artistic, scientific, or other purpose in the public interest.
Cassuto’s Statement of Claim identifies two “victim groups”: Jewish Australians and Israeli Australians. It alleges that the posts were reasonably likely to offend, insult, humiliate, and/or intimidate those groups, and that they were made “because of” the race or national or ethnic origin of Israelis and/or Jews.
To support these allegations, the Statement of Claim runs through seventeen pages of background: Hezbollah’s history, Hamas’s charter, the October 7 attack, the rise in antisemitism in Australia. It then annexes 61 of Mary’s posts spanning October 2023 to March 2025—34 of which post-date the posts she is being sued for. These are presented as evidence of her “pattern” of conduct, including allegations that she has spread “antisemitic conspiracy theories” such as the claim that Israel has significant influence over the US Congress, that there were early links between Zionists and Nazis, and that Israeli Mossad agents were involved in 9/11.
The Statement of Claim does not allege that anything Mary posted is false.
Read that again. The applicant does not plead that the speech Mary reposted was inaccurately reported. He does not allege that her own comment about genocide was untrue. He does not challenge the accuracy of any of the 61 posts in the annexure. The entire case proceeds without alleging falsity—the legal theory rests on the manner in which the posts were shared and their potential effect, not on whether anything Mary said was wrong.
IV. Mary’s Defence
Mary is represented by XD Law & Advocacy (Mark Davis and Jack Vaughan), with counsel Sheryn Omeri KC and Richard Reynolds. Stephen Keim SC and Greg Barns SC appeared on the interlocutory applications.
The Defence, filed on 28 November 2025, is a formidable document. It runs several arguments.
The s 18D exemptions
Mary invokes both “fair comment” (s 18D(c)(ii)) and “fair reporting” (s 18D(c)(i)). The 13 January post—a pure repost of a publicly available video—is precisely the kind of reportage that section 18D was designed to protect. Even the 4 January post, with its added comment, is political commentary on the conduct of a foreign government during an armed conflict. Mary pleads that her own statement—“The Israeli govt getting some of its own medicine”—was a comment on the military difficulties facing the Israeli government, not an endorsement of violence against Jewish people.
Zionism is not a race
The Defence draws extensively on Wertheim v Haddad [2025] FCA 720 and Toltz v Keane [2025] FCA 1386. In Wertheim, Justice Stewart held:
“Disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or ethnic group… Political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity.”
This is Federal Court authority from a final hearing, decided after the Cassuto proceedings were filed. Single-judge decisions in the Federal Court are not strictly binding on other single judges, but they carry significant weight—particularly where, as here, the principle was established after full evidence and argument. It is a tripartite framework: antisemitism is unlawful; criticism of Zionism is not antisemitism; criticism of Israel is not criticism of Jews. Cassuto’s entire case depends on collapsing these distinctions. Justice Stewart has held that they must be maintained.
The “because of” element fails
Mary argues that her posts were not made “because of” the race or ethnic origin of Jewish or Israeli people. They were made because of the conduct of the Israeli government during an armed conflict in Gaza. Her own words confirm this—she refers to “the Israeli govt,” not to Jews or Jewish people. The Defence pleads that criticism of a government’s military conduct cannot logically satisfy the “because of” requirement in section 18C(1)(b).
Vexatious proceedings
Perhaps the most striking section of the Defence is paragraph 29, which alleges that the proceedings were brought in bad faith. Mary pleads:
- The complaint was filed on 14 July 2024—six months after the posts—on the same day the Zionist Federation held a press conference announcing it.
- Arnold Bloch Leibler had sent Mary a demand letter on 8 July 2024 requiring her to apologise, remove the posts, and undertake not to repeat “the same or similar conduct”—effectively a demand to stop sharing political commentary about Israel. She was given four days to comply.
- A “Creative Community” WhatsApp group was used to coordinate targeting of individuals critical of Israel, in a pattern mirroring the conduct found by Justice Rangiah in Lattouf v ABC.
The contextual material
The Defence pleads extensive contextual material that demolishes the claim that Mary’s posts existed in a vacuum of antisemitic hatred rather than in the context of the deadliest military operation in Gaza in decades. Among the facts pleaded:
- By January 2024, over 22,000 Palestinians had been killed, including over 7,000 children.
- The International Court of Justice, in its advisory opinion of 19 July 2024, found that Israel’s occupation of Palestinian territory was unlawful.
- Human Rights Watch found in October 2024 that Israeli forces had committed “acts of genocide” in Gaza, specifically through the deliberate deprivation of water.
- Amnesty International found in December 2024 that Israel had committed genocide.
- ASIO Director-General Burgess stated that “none of the terrorism threats investigated since October had been inspired by Gaza.”
- AFP confirmed that many antisemitic crimes in Sydney were committed by “criminals for hire” who did not share the antisemitic ideology expressed by their crimes—paid by foreign actors, not linked to protesters or critics of Israel.
None of this contextual material is challenged in the Reply.
V. The Strike-Out Application
Before Mary even filed her Defence, her legal team launched an interlocutory application to strike out the Statement of Claim. This was heard by Justice McDonald on 29 July 2025, with written submissions filed in May, July, and July 2025.
Reading the Respondent’s submissions is an education in surgical legal demolition. Stephen Keim SC and Greg Barns SC identified systemic deficiencies in the pleading that go beyond technicality to the fundamental question of whether the case has been properly articulated.
Who is the group?
Section 18C requires the applicant to identify a group of people said to be offended. The Statement of Claim uses at least three different descriptors for the Jewish group alone: “people in Australia who identify as Jewish,” “Australian Jews,” and “people of Jewish ethnic origin and/or race in Australia.” For the Israeli group, it uses “people of Israeli national origin in Australia,” “Israelis in Australia,” and “national or ethnic origin of Israelis.” As the Respondent’s submissions observe, an Arab citizen of Israel would fall within “Israelis in Australia” but might hold views diametrically opposed to the applicant’s. A Jewish refugee fleeing the Israeli government would fall within “people of Jewish ethnic origin.” The group is never defined with the precision that serious litigation requires.
The reach problem
Mary had approximately 28,000 followers on X in January 2024. If her followers reflected the Australian population proportionally, approximately 120 of them would identify as Jewish. The posts concerned were not reported in mainstream media. They were not viral. They were relatively esoteric news commentary on a social media platform. The Respondent’s submissions argue that a pleading which fails to allege that any identified member of the alleged group actually saw the posts cannot establish the “reasonably likely” element of section 18C.
The anachronism problem
Thirty-four of the 61 posts in Annexure A post-date the posts Mary is being sued for. The Statement of Claim relies on events from December 2024, January 2025, and February 2025 as “circumstances” going to whether posts made in January 2024 were offensive. Events that had not occurred cannot logically have formed part of the circumstances in which the January 2024 posts were made or received. The Respondent’s submissions describe this as “irrelevance through anachronism.”
The truth problem
The Statement of Claim never alleges that anything Mary posted is false. The Respondent’s submissions argue this is fatal. If the reporting of a speech by Nasrallah is accurate, if the video is genuine, if Mary’s characterisation of events as a genocide is not alleged to be untrue, then on what basis does the ordinary reasonable member of any group take offence at the reporting of publicly available material? The Respondent’s submissions argue that a case built without any allegation of falsity faces a fundamental difficulty at trial.
Justice McDonald heard the application on 29 July 2025. He refused to strike out the claim entirely but struck out several paragraphs and granted leave to re-plead. The Further Amended Statement of Claim, filed 31 October 2025, attempts to address the deficiencies identified—principally by replacing “Australian Jews and/or Israelis in Australia” with “Jewish Australians and/or Israeli Australians” and adding a new paragraph identifying approximately 11,000 Israeli Australians as a separate group. Whether this is sufficient remains to be tested.
VI. The Reply
The Reply, filed on 15 December 2025, is revealing for what it contains and what it concedes.
On the fair comment defence, the applicant argues that Mary’s statement about genocide was “not expressed as a statement of opinion, but rather purported to be a statement of fact”—including the fact that Israel was committing a genocide. This is a remarkable position. The applicant is asking the Federal Court to find that describing Israel’s conduct in Gaza as genocide is not a fair comment. Multiple international human rights organisations, the International Court of Justice, and courts around the world have used the same term. The applicant invites the court to hold that the use of this word, by itself, constitutes racial hatred.
On the 13 January post, the applicant argues that Mary should have “contextualised or explained who Mr Nasrallah was” and “disclaimed the content of the Nasrallah Video.” The implication is that sharing a video of a political figure requires an explanatory disclaimer—that the act of pressing repost is not enough, and that silence constitutes endorsement. If this principle were accepted, every journalist, academic, or citizen who shares a newsworthy video without adding a disclaimer would be potentially liable under section 18C.
On the contextual material—the ICJ advisory opinion, the Human Rights Watch findings, the Amnesty International genocide determination, the ASIO statement, the AFP findings about criminals-for-hire—the Reply does not deny any of it. It attacks the source of casualty statistics (the Gaza Ministry of Health, “controlled by Hamas”) but does not engage with the institutional findings of the ICJ, HRW, or Amnesty. The contextual record is effectively unchallenged.
On the vexatious proceedings allegation, the applicant admits filing the complaint on the same day as the press conference. He admits the four-day demand letter. He denies being a member of the WhatsApp group but does not deny its existence or its purpose.
VII. The Authorities the Judge Will Consider
The judge hearing this case will confront a body of law that has developed rapidly since October 2023. Almost every recent section 18C decision cuts against the applicant.
Wertheim v Haddad [2025] FCA 720
The leading authority. Justice Stewart’s tripartite framework—antisemitism is unlawful; criticism of Zionism is not antisemitism; criticism of Israel is not criticism of Jews—is the lens through which the Kostakidis posts must be assessed. Nasrallah’s speech is directed at the State of Israel and its government. Mary’s own comment refers to “the Israeli govt.” Under Wertheim, this is political criticism, not racial vilification.
Faruqi v Hanson [2024] FCA 1264
Also decided by Justice Stewart, this case provides the comprehensive restatement of section 18C law. The court held that the test is objective: would an ordinary, reasonable member of the group—neither too sensitive nor too robust—be relevantly offended? The assessment must be made “in all the circumstances,” and the content of the post is central. Tendency evidence (other posts, prior conduct) is admissible to establish the “because of” element, but its “significant probative value” must be established.
Toltz v Keane [2025] FCA 1386 and Toltz v Riemer [2025] FCA 1385
These companion cases against University of Sydney academics for social media posts critical of Israel are part of the same wave of litigation. The court’s treatment of the line between political criticism and racial vilification will be directly relevant to Kostakidis.
Lattouf v ABC [2025] FCA 669
The Defence pleads a pattern of coordinated targeting similar to what Justice Rangiah found in Lattouf—organised complaints, demand letters, institutional pressure. However, section 91 of the Evidence Act bars using Rangiah’s findings of fact to prove the existence of a coordinated campaign in separate proceedings. The Defence will need to establish the pattern independently—through its own evidence of the WhatsApp group, the demand letter, and the press conference—rather than relying on what Rangiah found in a different case.
Eatock v Bolt [2011] FCA 1103
The foundational section 18C authority. Bromberg J’s formulation—that the test excludes “overly sensitive and overly robust” members of the group, and that a reasonable member of a free and tolerant society will have the characteristics one expects of citizens capable of engaging with challenging speech—sets the baseline. Under this formulation, the question is whether a reasonable member of the group—aware of the conflict, capable of distinguishing political commentary from racial hatred—would be relevantly offended by the accurate reporting of a speech by a political figure. That is the test Mary’s lawyers will invite the court to apply.
The IHRA Definition
The Statement of Claim invokes the International Holocaust Remembrance Alliance definition of antisemitism and alleges that Mary’s posts are antisemitic because they “deny the right of the Jewish people to self-determination.” The Defence argues that the IHRA definition has no legal force, is not part of the statutory scheme, and cannot supply the elements of a section 18C cause of action. This is consistent with the approach of every Australian court that has considered the definition. Justice Stewart in Wertheim applied his own tripartite test, not the IHRA framework.
VIII. The Pattern
Cassuto v Kostakidis does not exist in isolation. It is part of a coordinated campaign of litigation targeting individuals who criticise Israel.
The applicant is the CEO of the Zionist Federation of Australia. His law firm is Arnold Bloch Leibler, whose senior partner Mark Leibler AC is the National Chairman of AIJAC. His lead counsel, Michael Borsky KC, settled the Statement of Claim. The demand letter sent to Mary on 8 July 2024 required her not only to remove the two posts but to remove “other antisemitic materials” from her account and to undertake not to “repeat the same or similar conduct in the future.” This is not a complaint about two posts. It is a demand to stop speaking.
The legal theory is the same theory that Justice Stewart rejected in Wertheim: that criticism of Israel constitutes racial vilification of Jewish people. The Defence alleges a factual pattern resembling what emerged in Lattouf—organised complaints, demand letters, press conferences, institutional pressure—though under section 91 of the Evidence Act, it must prove this pattern on its own evidence rather than relying on Rangiah’s findings. The target profile is the same: a woman, a journalist, someone with a public platform who refuses to be silenced.
The Respondent’s reply submissions, filed 18 July 2025, put it with precision:
“Political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity; and it is not anti-semitic to criticise Israel just as much as to blame Jews for the actions of Israel is anti-semitic.”
That is a direct quote from Wertheim, applied by Mary’s lawyers to destroy the foundation of Cassuto’s case.
IX. What Happens Next
The pleadings are now closed. The Defence was filed on 28 November 2025. The Reply was filed on 15 December 2025. The matter will proceed to trial in the Federal Court before Justice McDonald.
Mary will bear the cost of defending herself. Win or lose, the legal bills will be substantial. This is the point. The strategy does not depend on winning. It depends on the cost of fighting—financial, emotional, reputational—being high enough that the next person thinks twice before pressing repost.
But there is a complication. Justice McDonald—the judge who will hear the trial—has already signalled in his interlocutory ruling (Cassuto v Kostakidis [2025] FCA 1226) that he does not consider the question settled. He held that Stewart J’s principle in Wertheim does not create a blanket rule, and that “the line between legitimate criticism of Israel and speech contravening s 18C is an important question that should be determined following consideration of both lay and expert evidence in the particular circumstances of the case.” He did not say Stewart J was wrong. He said the question is arguable—which, at the interlocutory stage, was enough to let the case proceed.
The weight of Federal Court authority is with Mary. Stewart J’s tripartite framework was the product of a final hearing with full evidence and argument. McDonald J’s qualification was an interlocutory ruling on a lower threshold. But the case will be decided by McDonald J, not Stewart J. And McDonald J has opened a door that Stewart J closed.
Criticism of Israel is not antisemitism. Reporting a speech by a political figure is not racial vilification. Pressing retweet is not a crime. That is the leading authority. Whether it remains the law after this trial is the question.
Mary Kostakidis spent a career giving Australians the world. She did not stop when she left SBS in 2007. She kept going—on social media, in her advocacy for press freedom, in her support of Julian Assange, in her work with the Sydney Peace Foundation. She will not stop now.
She never has.