4.1 Findings of Facts
The facts of this matter were essentially not in issue. Dr Toben acknowledged and indeed asserted he was responsible for the material which was placed on the Adelaide Institute website, and said he was responsible for all actions of the Adelaide Institute. Dr Toben proudly asserted the Adelaide Institute represented independent and international research into an important historical and sociological issue. It was this which formed the basis of his argument that the complaint by Mr Jones was one which threatened his right to freedom of speech, and which I understand forms the basis of a claim (which he did not articulate at the inquiry either in writing or orally) that if any of the material were caught by section 18C, of the Act it should come within the exemptions provided for in section 18D. I shall address this below.
Taking this into account, as well as the other evidence before me, I make the following findings of fact:
I accept Mr Jonesí evidence concerning the effect of the contents of this website on the persons who made complaints to him, and indeed the effect it had on himself. I accept this ranged from extreme anxiety and distress and intimidation, to a more fundamental sense of social dislocation and unhappiness. Dr Toben did not challenge this evidence in any way other than to suggest that if Mr Jones were "hurt" by material "he should seek counselling".
I also accept the submissions made in relation to the characterisation of the material on the website. There are many aspects of that material which are quite explicit in their denigration of Jewish people, and many other aspects of the material which make this clear by imputation. The central theme of the website is the assertion that the Holocaust is, in the terms in which it is generally understood, "a myth": Dr Tobenís statement was that he was not a Holocaust denier but merely a revisionist seeking the truth. He told the inquiry at an earlier directions hearing that his concern was to make available on the website research which indicated far fewer Jewish people died in labour and concentration camps than had previously been understood (1.8 million, not 6 million), and that they largely died of natural causes and the types of disasters that often befell people in labour camps during war time. However, his central assertion is that there was no plan for the extermination of Jews, and certainly no action put in place to systematically eradicate them in the way which is presented as "the Holocaust". None of the material contained on Dr Tobenís Adelaide Institute website is of an historical intellectual or scientific standard which is persuasive on these issues, and is largely expressed in highly tendentious and often offensive and insulting language about Jewish people which makes it difficult to give serious consideration to the propositions contained in it. It is this language which characterises the website and its material, and leads me to be satisfied that the material contained on the website has a consistent theme of the vilification of Jewish people.
Section 18C is set out above. For material or behaviour to be brought within the terms of section 18C, a number of factors must be established: there must be "an act" done by the respondent; it must be done "otherwise than in private"; it must be "reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people"; and it must be done "because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group".
The people in this group are Australians of Jewish origin. It was not contested in this matter that Australian Jews should be regarded as a group with common ethnic origins for the purposes of Part IIA of the Act: indeed, Dr Toben conceded this was the case early in the proceedings. I am satisfied to direct an act towards Jewish people in Australia is to direct that act towards people on the basis of their "ethnic origin" as Jews. I am satisfied this aspect of section 18C is therefore fulfilled.
I am also satisfied "the act" of placing material on the Internet on the Adelaide Institute site and maintaining it there was an act undertaken by Dr Toben on behalf of the Adelaide Institute. Indeed, Dr Toben acknowledged this was the case. I am satisfied placing material on an Internet site which is not password protected and is generally available to any who can access an Internet connection, is doing an act "otherwise than in private": it is my view the provision of material on a non-password protected Internet site is equivalent to publishing material in a newspaper. This is a public act.
The two central provisions of section 18C relate to the nature of the act and its likely effect and its purpose. I am satisfied that placing the material of the type described above in Mr Jonesí and Mr Rothmanís written and oral submissions, was an act which was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate persons of Jewish origin in Australia (and indeed beyond). I am satisfied it did have that effect on many Jewish people in Australia. I note the submission made by Mr Rothman that a very high proportion of Jewish people in Australia (approximately 40%) are Holocaust survivors or their direct descendants. Mr Rothman told the inquiry Australia has the highest proportion per capita of Holocaust survivors among its Jewish population outside Israel. He submitted that meant it was extremely likely the material placed on the Internet by Dr Toben would cause particular offense, insult, humiliation or intimidation among members of the Jewish community in Australia, and he submitted Dr Toben had to take the Jewish community as he found them, even if they were particularly sensitive to such an issue. He submitted the nature of the Jewish community in Australia was such that it was likely to be very sensitive to material which proposed that Jews as a group had perpetuated an evil lie about the occurrence of the Holocaust, and/or occasioned a Holocaust in the Soviet Union. He submitted these circumstances were such that it was reasonably likely that such material would be found to be offensive, insulting, humiliating or intimidating. I accept this submission: however, in my view, it is reasonably likely to be regarded as offensive, insulting, humiliating or intimidating, even without such a proportion of "Holocaust survivors" in the Jewish population. I do not think the issue of any particular sensitivity of Australian Jews is of relevance, given the extreme and offensive nature of the material.
Section 18C(1)(b) requires the act to be done "because of" the national or ethnic origin of the group of people (in this case Australian Jews). Section 18B must be read in conjunction with this requirement: I have set out section 18B above, but it provides that where an act is done for more than one reason, it is sufficient for the purposes of Part IIA that one of the reasons is the race, colour, or national or ethnic origin of the person, even if this is not the dominant or substantial reason for the doing of the act.
The issue which arises in relation to section 18C(1)(b) is the meaning of the phrase "because of". While it is enough that ethnic origin is one reason for the act complained of and found substantiated, there must be a causative relationship between the ethnic origin of the persons offended, and the doing of the act. I am quite satisfied in this case that causative relationship is present: this material published by Dr Toben is material which vilifies a group of persons expressly by reference to their ethnic origin. I note in a matter recently decided by another Commissioner on a similar matter (Hobart Hebrew Congregation and Jeremy Jones v Olga Scully, 21 September 2000 Commissioner Cavanough), the Commissioner made the following comment on this issue:
"In the present case, the relevant act is the distribution of material which vilifies certain persons (done repeatedly as part of a public campaign). The Jewishness of the persons vilified is not a mere "background factor"Ö . It brought about the vilification. The authors of the documents (and Mrs Scully is amongst them to the extent of her annotations and highlighting on the documents) disparaged the persons referred to in them because those persons were Jews. Further by distributing, selling and offering to sell the documents, Mrs Scully became responsible for their contents. She became a party to the disparaging of certain persons and groups of persons because they are Jews."
Precisely the same comment is applicable to the contents of the Adelaide Institute website and Dr Tobenís role here. The relevant act in this case is the placing of the material which vilifies a group of persons (Jews) on the Adelaide Institute website. The Jewishness of the group of persons vilified is not a mere "background factor". As in the Scully case, "it brought about the vilification". Dr Toben was an author of many of the documents, and he expressly took responsibility for the placing of all of the documents on the website. Dr Toben and the other authors "disparaged the persons referred to in them [the documents placed on the website] because those persons were Jews". Dr Toben, as did Mrs Scully, became responsible for the content of documents written by others by placing and publishing them on his Adelaide Institute website. Under those circumstances, Dr Toben was responsible for the content of the material, and a party to the disparaging of particular persons and groups of persons because they are Jews.
Under these circumstances I am quite satisfied the publication of the material on the Adelaide Institute website for which Dr Toben is responsible is unlawful behaviour contrary to section 18C of the Act.
4.3 Section 18D
In directions hearings held prior to the public hearing of this matter, I invited Dr Toben to consider the application of section 18D in relation to his response to the complaint. He agreed he would do so but did not present any submissions or information which I was clearly able to take into account in this respect. However, in the presentation, in particular of the Hayward thesis (not tendered in evidence), and in his assertion that he was concerned to promote freedom of speech for himself and generally within the Australian community and on the Internet, I assume Dr Toben was raising the exemption contained within section 18D of the Act.
Section 18D provides that section 18C "does not render unlawful anything said or done reasonably and in good faith" in particular "in the course of any statement, publication, discussion or debate made or held for any genuine academicÖor any other genuine academic purpose in the public interest", or in making or publishing a fair and accurate report of any event or matter of public interest, or a fair comment on any event or matter of public interest, if the comment is an expression of a genuine belief held by the person making the comment.
To establish that material which has been brought within section 18C (as has the material contained on the Adelaide Institute website) can come within this exemption, requires a number of factors to be established. The material (otherwise unlawful) must have been said or done reasonably and in good faith: this is the overarching requirement which applies to all aspects of the exemption set out in section 18D. Further, the material (to come within section 18D(b)) must be for a genuine academic purpose, in the public interest (my italics). To come within section 18D(c), a report must be "fair and accurate on a matter of public interest", or "a fair comment" on a matter "of public interest", and in circumstances where there is "an expression of a genuine belief held by the person making the comment".
Section 18D presents a very difficult range of hurdles to be overcome by a person asserting that material otherwise unlawful as racially vilificatory contrary to section 18C, is nevertheless exempted from that determination of unlawfulness. Section 18D sets up a range of requirements based on reasonableness, good faith, genuine academic or other purpose, fairness, public interest, and a genuine belief in the opinion.
Dr Toben faces two other hurdles in establishing section 18D applies in relation to the material he publishes on the Adelaide Institute website. In the first place, as an exemption to established unlawful circumstances, the onus is on Dr Toben as respondent to establish that the requirements of section 18D are made out. The onus of course is on the complainant to make out the terms of the complaint, but once the terms of the complaint are made out, as I am satisfied they are in this case, the onus to establish the exemption switches to the respondent. Dr Toben has taken no steps to discharge that onus, as he has presented no evidence. This brings me to the second issue. The second hurdle faced by Dr Toben is presented in section 25W of the Act:
"In determining whether an act is unlawful by reason of a provision of Part II or Part IIA, the Commission is not required to have regard to any exception or exemption provided for in those Parts unless there is evidence before the Commission that the exception or exemption is or may be applicable to that act."
The application of section 25W raises the issue of what evidence there is before me which may enable section 18D to become relevant. Dr Toben did not present any evidence at the inquiry: he insisted on leaving the hearing before the presentation of evidence commenced. Subsequent to the hearing he sought leave to tender two books which he had brought with him at the hearing but did not tender them. I subsequently declined leave to receive that evidence after the hearing had been completed, for reasons set out above. Although this Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit (see section 25V of the Act), I am satisfied the material to which section 25W refers is material which must be presented in such a way that it can be examined at the inquiry and responded to by the other party. The Commission is of course bound by the rules of natural justice. Dr Toben did not present evidence of this form in any sense at all. Under these circumstances it is clear section 18D of the Act, which provides for the establishment of an exemption in relation to section 18C, formally need not come into operation at all, as there is no evidence relating to the exemption. Accordingly I do not need to consider whether the content of Dr Tobenís website could fall within the exemption of section 18D.
I am quite satisfied Dr Toben had every opportunity to present his case. From the time of referral until the time final submissions were required, was a period of two years. The Commission maintained frequent contact with Dr Toben in that time, providing him with copies of all documentation provided by the complainant and all directions made by me. Further, throughout that time it received various documentation from Dr Toben and others on his behalf. The matter was adjourned for a period of twelve months once Dr Toben had indicated he had "withdrawn" from the matter, although he continued to send material to the Commission. There were numerous telephone conferences and directions extending time for Dr Toben to provide material. Dr Toben was aware when the matter came on for public hearing in November 1998 that I would not hear evidence concerning what he chose to call "the truth of the matter", and in particular that I would not permit him to call certain witnesses whose evidence I had ruled was not relevant to the matters referred to the inquiry. He was aware of the issues which were to be addressed at the hearing and in the documents to be provided prior to the hearing, and which he agreed to provide. Dr Toben refused to continue to engage in any way on the two occasions when there was an in person hearing: the directions conference on 30 September 1997, and the public hearing on 2 November 1998, and he was not prepared to call any witnesses to that public inquiry. He was aware of the issues which had been clearly set out in both written material from the complainant and the Commission and in the oral discussions and subsequent directions made by me in the course of directions conferences held prior to the public hearing.
Under these circumstances I am satisfied Dr Toben had ample opportunity to present his case including the presentation of any evidence or submissions he may have wished to make in relation to the application of section 18D of the Act.
Nevertheless I will consider the application of section 18D as far as I am able.
As I have set out above, section 18D has an overarching requirement in relation to all of its operation that the act sought to be brought within it must have been "said or done reasonably and in good faith". I would have very great difficulty in determining any of the material placed on the Adelaide Institute website by Dr Toben was put there "reasonably and in good faith". I note Dr Tobenís reiterated assertions that he believed he was engaged in proper and open research and intellectual inquiry, and that this represented his genuine belief. However, part of my difficulty stems from Dr Tobenís own behaviour before this Commission in the course of its inquiry, and subsequent to it (I refer in particular to the letter Dr Toben sent to me which I have quoted in full above). Dr Toben did not present as a person engaged in reasonable behaviour or in good faith in his conduct before this Commission, and in particular in his withdrawal from both the in person hearings. It is difficult to regard him as acting in good faith with his very late (even after the inquiry had concluded) provision of information. It is also difficult, whatever his subjective belief, to accept he has behaved reasonably and in good faith in considering the inflammatory and highly offensive nature of some of the material placed directly on his website, and further on the links Dr Toben has established between his website and other "hate sites" and "white supremacist" sites. It seems to me these links (which must have been placed there by Dr Toben) indicate a lack of reasonableness within the intention of the Act. Under those circumstances, it seems to me Dr Toben would have had to present a significant amount of evidence and in a different manner in which he dealt with the Commission and the inquiry in order to establish he had placed the offending material on the Adelaide Institute website reasonably and in good faith.
I assume Dr Toben would not suggest the material on his website came within the scope of section 18D(a), but rather would have directed my attention to section 18D(b), which refers to statement, publication, discussion or debate "for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest". I am satisfied on the basis of evidence put before me by Mr Jones that the material contained on Dr Tobenís website does not form part of any publication, discussion or debate in the context of any genuine academic purpose in the public interest. It is the case Dr Toben provided (although it was not in evidence before me) the Hayward thesis submitted at the University of Canterbury in part fulfilment of an MA degree: however, there is no information before me as to the circumstances in which this occurred, nor its outcome. Nor am I satisfied, in the absence of submissions in evidence from Dr Toben and any other witnesses, that the Hayward thesis falls clearly within this category.
It may be Dr Toben may have presented an argument or even evidence that material dealing with the issues in which he has an interest is excluded by some way or means from mainstream academic debate for the reasons of which he has complained in this inquiry and on his website. He has not presented that argument or any evidence for it before me or in the materials he has provided. Moreover, the quality, nature and expression of much of the material placed on his website suggests that regardless of its content, it is unlikely to form part of any academic discussion or debate.
Section 18D(c) refers to the making of fair and accurate reports, and fair comment. Again, the nature of much of the material contained on the Adelaide Institute website makes it very difficult to regard it as "fair and accurate report": indeed, most of it is not expressed in terms of "a report" of any kind, but rather as polemic and assertion. Dr Toben asserted he indeed held "a genuine belief" in the comments he made and the material he published on the website: however, Dr Tobenís subjective genuine belief is not in itself sufficient. Not only must he hold a genuine belief (on which I make no comment), but the material must itself constitute "a fair comment" as well as be said or done reasonably and in good faith. I am satisfied the material is not said or done reasonably or in good faith, but in any event, most of it does not constitute "fair comment" in the sense understood by the law at all. Again I refer to Commissioner Cavanoughís conclusion on this issue in the Scully case: (at page 31) he concluded:
"I do not think that a racial vilifier can be heard to say that he or she is acting "in good faith" for the purposes of s.18D merely because he or she honestly or sincerely believes that persons of the race (or ethnic group) concerned are inferior or evil by nature and that they should be made to suffer for that reason".
I am satisfied the same considerations apply here.
In reaching this conclusion I am also mindful of Parliamentís apparent intent in passing the Part of the Act with which this inquiry is concerned. Section 18D refers not only to reasonableness, good faith and genuineness, but also, in (b) and (c), to "public interest". The behaviour proscribed in section 18C, and the provision in section 25W that the exemption of section 18D is not activated, so to speak, unless evidence is presented in its support, indicate that on any proper interpretation of the Act I should be slow indeed to accept that any racially vilificatory material, such as I have found the content of the Adelaide Institute website to be is in the public interest.
I have indicated above it is my view section 18D is not applicable because of the lack of evidence placed before me by Dr Toben in support of it. Further however, I have considered the possible material and submissions Dr Toben may have put before me had he remained for the course of the inquiry and presented his response to the complaint, and I am nevertheless satisfied that such arguments and material as I can discern would not be able to establish the exemption of section 18D would be available to him.