Insults and arson: How one man’s chants could define free speech

At scores of pro-Palestinian protests down Melbourne’s city spine over the past 18 months, thousands, perhaps tens of thousands, of people have chanted the deliberately provocative slogan, “All Zionists are terrorists”.

These marches take place under the Victoria Police’s watchful eyes and video cameras, and yet, until a few weeks ago, nobody had been arrested for things they said – no matter how objectionable.

Again at Sunday’s rally, the chant rang out along Swanston Street. No arrests were made this weekend either.

But on March 7, businessman and Instagrammer Hash Tayeh, the ethnically Palestinian owner of Melbourne restaurant chain Burgertory, was charged after allegedly leading the chant at a rally 10 months earlier.

The charge was brought under Victoria’s Summary Offences Act for “using insulting words in a public place”.

Those found guilty face a fine and potentially a (short) prison sentence. Lawyers familiar with the case say the charge is more usually levelled against those swearing at or abusing police officers during an arrest – it’s a street crime, not one typically used to control or inhibit rhetoric at protests.

However, despite the relatively low level of the charge, one constitutional expert told this masthead it could prompt an argument that goes as far as the High Court to test the limits of free political speech.

The Jewish Community Council of Victoria is clear that this particular chant crosses a line. Chief executive Naomi Levin said while there was “no Olympics with a gold-medal chant of what’s most offensive”, that chant “is particularly egregious because the way my community defines Zionism is so far from the idea of terrorism that it beggars belief”.

“That’s why we need a circuit breaker. That’s how our organisation sees these charges.”

Zionism is the movement to develop and protect a Jewish nation on the country that is now known as Israel.

Federal Attorney-General Mark Dreyfus agreed last year that the label “Zionist” was used when critics “actually mean Jew … because they know that they cannot say Jew”.

A pro-Palestinian protest in Melbourne in 2021.Credit: Luis Enrique Ascui

Hash Tayeh’s case will put these arguments squarely into the criminal courts.

Since Hamas committed its murderous atrocities in southern Israel on October 7, 2023, sparking Israel’s brutal military response, Tayeh has become a leading figure in Melbourne’s pro-Palestinian protest movement.

He is loud. He’s brash. On Instagram, he is pictured wielding a bullhorn and shouting.

This charge relates to his actions leading the chant in four different locations in the city last May.

Tayeh admits he is angry. He says 40 family members and two orphans he’d been sponsoring have died in Israel’s bombing campaign against Gaza, which resumed last week when the ceasefire collapsed.

He is also the victim of several acts he believes are hate crimes. This makes him a controversial poster boy for a criminal test case about free speech.

In November 2023, just a month after Hamas’ attack, one of his Burgertory outlets was firebombed in Caulfield – a suburb with a large Jewish population. Tayeh immediately insisted the attack was politically motivated.

The Burgertory fire in Caulfield.Credit: Simon Schluter

Statements that Burgertory Caulfield staff members made to police, sighted by this masthead, outlined dozens of threats and abuse they had received after their boss had appeared at pro-Palestinian rallies – threats that came both in person at the Caulfield restaurant and via phone, they said.

“You guys do not belong here, you wait and see,” said one threat, according to staff.

After the firebombing, however, police said they believed there was no political motive – a position they hold to. In the background, speculation was rife that the fire might have even been an insurance job.

A few months later, in January 2024, two young men, one allegedly involved with the tobacco store firebombings, were arrested and charged with arson.

The police brief reveals one of them told an undercover police officer the attack was motivated by “the conflict overseas between Palestine and Israel”. Despite this, police maintain there’s no evidence of political motivation.

The insurance company, meanwhile, conducted its own investigation and, in April 2024, it paid out in full.

The same month, video evidence shows a petrol bomb being thrown at Tayeh’s home in Templestowe, igniting and damaging the house near where his son slept. In a statement to this masthead, police said the device had “only caused minor damage to the door”.

Later, when a pig’s heart and two bottles of beer were left at the door of Tayeh’s company’s Coburg office, police wrote to him: “In the absence of any threats, it appears there is an offence of litter that has been identified.”

Tayeh has believed for many months that Victoria Police have been playing down hate crimes against him.

Then, last July, he was informed he would be arrested for inciting hatred under the Racial and Religious Tolerance Act for his chants – a notoriously difficult charge to sustain. No prosecution was ultimately pursued. The Office of Public Prosecutions declined to comment.

Victoria Police also declined to answer questions about Tayeh’s current charges because they were before the courts.

“[The arrest] raises an issue of the implied freedom of political communications in the Constitution.”

University of Sydney Constitutional law expert Anne Twomey.

Victoria Police also did not respond to allegations that it had minimised a number of hate crimes against him. It declined to explain why it would not comment.

According to Tayeh, Australian Border Force has also paid particular attention to his movements in and out of the country. Eight times in the past 18 months, he has travelled internationally and eight times he’s been pulled aside and his belongings searched, he says.

“The smart gate doesn’t work for me and I have to go to the manual one. Then they reach under the table, press a button, and they say, ‘I’m just gonna wait for my supervisor to come and help me’. Then they come, and they lead me to a room,” Tayeh says.

An Australian Border Force spokesperson declined to answer questions about Tayeh, but said in a statement: “Border screening may involve both random and targeted checks. Some travellers may be subject to more frequent interactions due to various risk-based factors, but this does not imply wrongdoing or specific targeting.”

Finally, on March 7, Tayeh was charged with the street crime.

The Jewish Community Council’s Levin said she did not know Tayeh, but her group, which represents almost 60 community organisations, had been pushing police for many months to enforce the law relating to the ongoing protests.

“None of that has been about a particular individual, and we haven’t discussed individual cases in any of the conversations our organisation has had with police – we’ve just been asking them to enforce the law more generally.”

Levin said chants like those allegedly led by Tayeh were creating real harm. A forthcoming report would show antisemitism was increasingly morphing into physical assaults, she said.

“So whether it was Hash or someone else, we needed a clear declaration that this is not legitimate political speech,” Levin said.

Any person who is in or near a public place or within the view or hearing of any person being or passing therein or thereon commits any of the following acts shall be guilty of an offence: (a) sings an obscene song or ballad; (b) writes or draws exhibits or displays an indecent or obscene word figure or representation; (c) uses profane indecent or obscene language or threatening abusive or insulting words; (d) behaves in a riotous indecent offensive or insulting manner.

Section 17(1) of the Summary Offences Act 1966

Pro-Palestinian protest organiser Nasser Mashni said Tayeh’s charging was an example of anti-Palestinian racism within police and across “all layers of government and institutional power”.

“I think he’s been scapegoated … This is a gross overplay by the police seeking just to assuage the political pressure they have been subjected to; it’s an absurd over-reach,” Mashni said.

Australia Palestine Advocacy Network head Nasser Mashni at a rally in October.Credit: Wayne Taylor

Sydney University constitutional expert professor Anne Twomey said the use of “insulting speech” laws to regulate a political protest could potentially face a constitutional challenge in the High Court.

“It raises an issue of the implied freedom of political communications in the Constitution,” Twomey said.

The arguments at any such challenge, she said, would likely be over whether Victoria’s insulting speech laws themselves were necessary and applied proportionately. Any such case would likely include an assessment about whether Tayeh’s language itself “went so far beyond robust political debate as to warrant punishment”.

The argument hits a sore nerve in Victoria, where new hate speech laws are marooned in the upper house. Jewish groups approve of the government’s proposed legislation to protect a number of groups, but the Greens, Muslim groups and others want a defence of “public interest” speech to protect political protests, while the Opposition wants the laws to go further.

Tayeh said he was willing to take his fight “as high as necessary to ensure no one, regardless of their political stance” is targeted with “frivolous and baseless charges”. His legal team has confirmed they are examining the constitutional issues.

“I am against the Israeli government,” Tayeh says, “because they’re committing war crimes and acts of terrorism … it’s not even hidden. For example, Donald Trump and Netanyahu openly talk about moving Palestinians out of Gaza and turning it into the Middle East Riviera. They openly talk about displacement.

“Am I against the [Jewish] people? Absolutely not … Judaism is a rich and peaceful faith. My criticism of Israel is towards its government, which is a Zionist government.”

To him, the distinction is clear: “By saying ISIS are terrorists, are you saying all Muslims are terrorists? ISIS think they speak for all Muslims when they don’t … Zionism also does not speak for all Jewish people.”

Levin said this explanation miscast Zionism: “Surely, as Jewish people, the group that identifies as Zionists, we have a right to define what it means?”

Tayeh, meanwhile, is vowing to fight on. “They’re harassing me by using the law to financially and mentally drain me … I’m constantly looking over my shoulder, not knowing what’s coming next,” he says.

His case is listed for April 29. He is expecting a crowd to turn up at the Magistrates’ Court that morning to show him support.

At the same time, Victoria Police on Tuesday sought a personal safety intervention order on behalf of another Jewish community leader, Sarah Schwartz. Police are alleging that among the hundreds of posts about Schwartz posted online by Instagrammer Zara Cooper are ones that include Nazi imagery and pictures of Schwartz as a rat and on a train to a concentration camp, and that the order is necessary for her protection.

Schwartz is the leader of the Jewish Council of Australia, which is critical of Israel’s actions in Gaza.

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