The Nizkor Project: Remembering the Holocaust (Shoah)

Conclusion & Determination


5. CONCLUSION

I am satisfied the complaint the subject matter of this inquiry has been substantiated and that the content of the website of the Adelaide Institute, both in the specific instances referred to in the complaint and in general, are unlawful as contrary to section 18C of the Act, as constituting offensive behaviour based on racial hatred. Further, I am satisfied the material contained on the Adelaide Institute website does not come within any of the exemptions set out in section 18D of the Act.

6. DETERMINATIONS

The complainant set out very specifically the determinations which were sought from this Commission. This was articulated as early as in documents filed with the Commission on 13 October 1997. The complainant sought determinations that the respondent has breached section 18C of the Act; that the material be removed from the Adelaide Institute website and any other website published by the respondent where it is accessible to members of the public; that the respondent be restrained from publishing or re-publishing the offending material; that any website published by the respondent permanently bear on its homepage an apology in terms set out by the complainant; that the respondent apologise to the complainant in terms specified by the complainant; and that the respondent undertake a course of counselling by a conciliation officer of this Commission.

I have given careful consideration to the appropriate determinations to make in this matter. In doing so I bear in mind the unusual nature of these proceedings and the relatively novel aspect of considering the publication of material contained on the Internet. I further bear in mind that determinations of this Commission are not of course enforceable, as this Commission is not a court (this is further acknowledged in section 25Z(2) of the Act). I am also influenced by the fact the complainant has not sought any monetary compensation for the hurt, humiliation and anxiety which I am satisfied the complainant and those whom he represented have suffered as a consequence of Dr Tobenís unlawful act. In the context of enforceability, I am also conscious of the difficulties presented by the presentation of materials as in this case on the Internet, and the ease of placing such materials on the Internet outside the jurisdiction. Under those circumstances, the material nevertheless remains available and accessible within Australia.

However, I am quite satisfied the material published publicly by Dr Toben is quintessentially the type of material proscribed by section 18C of the Act. Dr Toben spoke in the course of this inquiry of freedom of speech, but it must be acknowledged that the freedom which he seeks in the material which he has published, deprives others of their freedom of speech, if they are so humiliated and intimidated they are no longer able to access that freedom. I am satisfied that is one of the consequences of the vilificatory, bullying, insulting, and offensive material contained on Dr Tobenís Adelaide Institute website. Dr Toben also referred to freedoms in Australia: it is my view one of the freedoms promoted by the Racial Discrimination Act is that of diversity and tolerance. Dr Toben sought support for this diversity and tolerance for the promotion of his views and interests: however the form in which he has chosen to promote his views and interests are such that they do not accord tolerance and respect for the interests, rights, and freedoms of others. Under these circumstances, it seems to me appropriate to make a determination that Dr Toben cease the unlawful dissemination of this material on the Adelaide Institute website. In order to do this, the material must be removed from the website and not re-published elsewhere by Dr Toben.

I am also of the view that, bearing in mind the very public nature of the publication of this material and the public way in which Dr Toben conducted his engagement in the inquiry process, it is appropriate that a public apology be provided to the complainant. This is particularly the case as no financial compensation is sought by the complainant. I also consider it appropriate that the apology should appear on the respondentís website, should this be maintained.

The complainant also sought a determination that the respondent should at his own expense undertake a course of counselling by a conciliation officer of the Commission. I understand no such course of counselling is available and I shall not make any direction along those lines.

Pursuant to section 25Z(1)(b) I make the following determinations:

  1. I find the complaint substantiated;
  2. I declare that the respondent Dr Fredrick Toben, representing the Adelaide Institute, has engaged in conduct rendered unlawful by section 18C of this Act in the publication of material racially vilificatory of Jewish people, on the Adelaide Instituteís Internet site. This conduct is rendered unlawful by Part IIA of the Act;
  3. I declare that the respondent Dr Fredrick Toben, representing the Adelaide Institute, should remove the contents of the Adelaide Institute website from the World Wide Web and not re-publish the content of that website in public elsewhere;
  4. I declare that the respondent Dr Fredrick Toben, representing the Adelaide Institute, should make a statement of apology to Mr Jeremy Jones and those members of the Jewish community of Australia whom he represented in this complaint. That apology should be made in writing to Mr Jones, and further should appear on the home page of the Adelaide Institute website. The terms of the apology are to be as follows:

"I hereby unreservedly and unconditionally apologise to you and to the Australian Jewish community for having published materials inciting hatred against the Jewish people in contravention of the Racial Discrimination Act. I undertake that neither I nor any employee or agent of mine (actual or ostensible) will publish any such material in the future and that all such material which is presently published by me, or by any employee or agent of mine (actual or ostensible) in any print or electronic media (including the Internet) will forthwith be withdrawn from publication".

I certify that this and the preceding thirty-eight pages is a true copy of the Reasons for Decision of Ms Kathleen McEvoy, Inquiry Commissioner.

Hearing Solictor:

Date: 5 October, 2000


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