3.1 The Conduct of the Inquiry
Following the pre-hearing procedures set out above, the public hearing of this complaint was conducted by me in Sydney on 2 November 1998. Dr Toben had indicated for some months he did not intend to participate in any further aspect of the inquiry, but shortly before the date of hearing he provided substantial documentation to the Commission and indicated he wished to place other material before the inquiry. However, he did not advise whether he would attend the inquiry to make submissions or give evidence, or whether he would be calling any of the witnesses whom he had indicated earlier he wished to give evidence in support of his own response to the complaint.
Dr Toben did attend the inquiry on 2 November 1998. Mr Jones also attended, and he was represented at the inquiry by Mr Rothman. Dr Toben was unrepresented, and indicated he would not be calling any witnesses. Mr Rothman indicated only Mr Jones would be giving evidence for the complainant. Dr Toben was advised the complainant would present his case and Dr Toben would have an opportunity to cross-examine Mr Jones. If he gave evidence, he would be subject to cross-examination by the complainant. Subsequent to evidence being given, submissions would be sought on issues of law. Dr Toben indicated he wished to provide as evidence before the inquiry the thesis by Mr Hayward which he had forwarded to the Commission shortly before the hearing, and two other books. I indicated to him the complainant needed an opportunity to examine the documentation he proposed placing before me and it was very late in the conduct of the inquiry to be placing documentary information before the Commission, particularly in light of the very extensive pre-hearing processes which had occurred. Dr Toben made some complaints concerning a recent publication in The Australian Jewish News of 30 October 1998, which he asserted involved some defamatory statements concerning him, and placed before me a large bundle of documentation which he invited me to look through and on which he commenced to comment.
Dr Toben then advised the inquiry that he had a "moral problem", and made the following comments:
"If the truth is no defence before this Commission, then the lie must obviously prevail, and that is a moral problem I have."
"Because our behaviour, if we have no truth as a defence, is immoral. We cannot proceed with these proceedings if we are moral persons, because truth is no defence."
Dr Toben then described the inquiry as "an inquisition", and said he had come to the hearing because he wanted to continue in placing his arguments but "I can’t if you can’t give me that assurance". He described the inquiry as "an immoral outfit" and concluded:
"It’s immoral what you’re doing.
The Commissioner: Okay
Dr Toben: Highly immoral and improper. Truth is no defence. Truth is therefore relegated nowhere except the lie flourishes. We can’t go on and yet you will.
The Commissioner: Mr Jones will have to establish his complaints to my satisfaction.
Dr Toben: I shall leave it to you, Commissioner. I beg to be excused.
The Commissioner: That’s your choice, Dr Toben.
Dr Toben: As I said, if truth is no defence, the lie must prevail. Goodbye gentlemen. Mr Jones and Mr Wertheim, they didn’t even say good morning to me – or they didn’t even shake hands. What rudeness. Right?
The Commissioner: I’m sorry if they have been discourteous to you, Dr Toben, that you may feel that.
Dr Toben: Thank you."
Dr Toben then left the inquiry and did not return.
After Dr Toben left the inquiry proceeded in his absence. Mr Rothman made certain submissions concerning the complaint and the requirements of the legislative provisions. He then tendered a number of documents as evidence before me. This included the contents of the website of the Adelaide Institute as at 31 May 1996: http:\\www.adam.com.au\-fredadin\adins.html. He also tendered a witness statement from the complainant, Jeremy Sean Jones, and two articles: Michael Shermer Proving the Holocaust. The Refutation of Revisionism & the Restoration of History (Skeptic, 1994, Bol 2, No 4) and Jeremy Jones Holocaust Denial: "Clear and Present" Racial Vilification ((1994) 1 Australian Journal of Human Rights 1 69). Mr Jones also gave sworn evidence at the inquiry.
At the conclusion of Mr Rothman’s oral submissions and the presentation of the complainant’s evidence, a timetable was set for the provision of written submissions on the law. It was agreed the complainant would make written submissions on the law to be filed with the Commission and provided to the respondent by 6 November, with a response from the respondent to be filed with the Commission and provided to the complainant by 13 November. It was understood further arrangements could be made, if appropriate, for a further reply and for any further conference necessary to address the submissions.
The complainant did provide written submissions but not until 2 March 1999. Dr Toben was provided with a copy of these written submissions and asked for any response by 12 March 1999. He did not provide any response.
However in the week immediately following the hearing, Dr Toben wrote to the Commission seeking leave to tender the two books to which he had referred in his opening remarks at the hearing but which he had not tendered. Dr Toben has given no indication of the relevance of this documentation and it had not previously been provided to the complainant. The complainant opposed the acceptance into evidence of this documentation after the public inquiry had ended. I did not accept as evidence the two books Dr Toben wished to tender. In my view Dr Toben had every opportunity in the twelve months of the adjournment of the matter subsequent to the vacating of the previous dates for hearing to advise of any material he wished to have before the inquiry, but he did not provide this material to either the Commission or the complainant until either very shortly before or at the hearing. It was when this issue was discussed with both parties at the hearing Dr Toben announced he would no longer participate in the hearing process and withdrew from the hearing without tendering the documentation on which he wished to base his response. In the absence of any submission from Dr Toben at the hearing as to the relevance of this documentation, the complainant is unable to make any response to it, and nor am I in a position to adduce its relevance. Further, it would be inappropriate to accept evidence at this stage. My view was if the books were accepted into evidence it would be necessary to re-convene the hearing to hear submissions from Dr Toben on their relevance: Dr Toben had already abruptly left two hearings, refusing to address the matters for which those hearings had been convened, and had on numerous occasions expressed the view that he would not participate in the inquiry. Under those circumstances the material was not accepted as evidence.
Subsequent to these events, Dr Toben wrote to me at the Commission as follows:
"12 March 1999
Dear Ms McEvoy
You should perhaps get a grant for a travel tour of Poland and Ukraine to then more effectively assess what our conflict is all about.
I mentioned my HREOC conflict to a number of people from all walks of life – and they laugh because it reminds them of the Stalinist show trials and its aftermath – until the ideology crumbled.
Now Poland and Ukraine suffer from exploitative capitalism.
Jeremy Jones’ aim – "to stop them from functioning" meaning to silence his critics by using words such as "anti-semite" "hater" "racist" and "anti-Jewish" – is in the true Leninist-Stalinist tradition, and has no place in Australia!
Jones tells lies about the Auschwitz concentration camp – and any judgment from you in his favour would support such lies. Do you want to be known as a supporter of liars?
I include the text of this letter from Dr Toben not as evidence before me in this matter but rather to indicate his ongoing though spasmodic contact with the Commission and because it illustrates the general tenor with which Dr Toben conducted these contacts during the course of this inquiry. It is dated on the date on which his response to the complainant’s submission was due, so I take it as constituting his response.
3.2 The Evidence
At the inquiry I had before me as evidence the material to which I have referred above. In addition Jeremy Sean Jones gave sworn evidence in support of his witness statement and to address certain issues raised by me and in questions from Mr Rothman.
I also had before me material provided by Dr Toben on 4 November 1997. This material constituted 41 pages of commentary and explanation. It was not tendered by Dr Toben, but at the hearing I indicated I would regard it as a submission made by him for me to take into account. However, it is difficult to regard it as constituting evidence other than in a broad sense. Dr Toben also provided large numbers of other documents but tendered none to the inquiry.
3.2.1 The Evidence of the Complainant
At the hearing Mr Jones tendered a witness statement setting out the matters which he wished me to take into account in support of the complaint. Mr Jones had provided this witness statement in October 1997, and he gave sworn evidence in support of this witness statement.
Mr Jones attests that because of his elected position within the ECAJ and his circumstances within the Jewish community, he receives numerous unsolicited communications from Jewish Australians when they believe they have encountered anti-Semitism. He states he received complaints about the Adelaide Institute website and that it contained anti-Semitic material which was grossly offensive, insulting and derogatory from 1 May 1996. His first complaint had been from "a distressed child of a Holocaust survivor". At the request of members of the Jewish community in Sydney, Melbourne and Adelaide, "the matter of the offence and distress caused by the Adelaide Institute web-site was listed for discussion at a meeting" of the ECAJ on 16 May 1996, and "it was the unanimous view of that meeting that the web-site contained offensive material", and the organisation determined to make a representative complaint to this Commission. Much of the witness statement represents a submission on legal issues which were raised before the inquiry orally and later in writing by Mr Rothman.
In his sworn evidence Mr Jones told the inquiry that when he became aware the matter was proceeding to a hearing, he made enquiries over the Internet as to the possible academic standing of research such as that engaged in and promoted by Dr Toben on the Adelaide Institute website. Mr Jones said he sent Internet messages out on a series of academic Internet lists and estimated he reached up to 1,000 researchers and academics in different institutions around the world. The question he asked was, "Was anybody aware of any academic or other educational institution in the world where a Holocaust denial or Holocaust revision was considered genuine academic research?". Mr Jones said of those answers he received, there was consistently a rejection that such an area of academic research existed. The institutions he approached included United States, Canada, Spain, Belgium, Germany, France, United Kingdom, Australia and New Zealand. Mr Jones referred to the academic lists as "a very commonly used instrument" for seeking information from academic institutions.
Mr Jones also told the inquiry he had originally been alerted to the Adelaide Institute site by very distressed members of the Australian Jewish community. He said those who made complaints to him "were having difficulty in expressing their feelings of pain and hurt at seeing this material emanating from an Australian Internet site". Mr Jones said he personally was not unused to seeing such material because of the work which he undertook, but he considered the organised and extensive way in which the Adelaide Institute site collected and disseminated the material through the Internet had a different impact from individual or isolated examples of anti-Semitism. The material on the Internet "was material which was going to the world, in effect, which was saying, ‘You are part of a conspiracy because you’re a Jew, that if anyone committed an evil act and they happened to be Jewish it’s because of their Jewishness that they committed that evil act’, and it was saying that ‘you are now confronting someone who is going to challenge your right to live your life in this country and elsewhere free of harassment’." Mr Jones said, "that’s what it said to me".
Mr Jones believed the material published by Dr Toben on the Adelaide Institute website had an effect on the quality of life of many Jewish people in Australia. He considered the material to be not only insulting and offensive, but likely to cause many people to act negatively towards Jewish people in Australia. He said he believed it particularly affected many young Jewish people in Australia, and made many Jewish Australians feel profoundly anxious about the way in which other non-Jewish Australians viewed them and might treat them.
Mr Rothman made submissions on both the facts before me in the material presented as part of this inquiry (which includes the content of the Adelaide Institute website as at 31 May 1996), and on the issues of law raised by the complaint. He preceded his initial submissions by rejecting Dr Toben’s assertion the matter was concerned with the question of freedom of speech. He submitted Australian law, including the provisions of the Act, is predicated on a general right and liberty of freedom of speech, but subject to such restrictions as may be placed on it by the various Parliaments within Australia. One such restriction is contained in the Act in Part IIA. Mr Rothman pointed out these legislative proscriptions make exceptions in relation to academic, scientific and artistic debate, and other genuine debate in the public interest, and fair comment.
He further submitted as a preliminary point that the "truth" of the history of Jewish people in Europe in the twentieth century was not the matter before this Commission. He submitted the complaint was not about the Holocaust or about how many people died at Auschwitz or elsewhere. Rather, the complaint before me is a complaint relating to offensive behaviour based on the race, colour, national or ethnic origin of a group of people, that is, those represented by the complainant.
Mr Rothman submitted the crux of the material on the Adelaide Institute website is that Jewish people as a group "have embarked on a giant conspiracy and hoax relating to the Holocaust". Mr Rothman submitted that to say such an allegation entailed discussion of the Holocaust was "nonsense": "akin to saying that the allegation made in the Middle Ages that Jews poisoned water wells was about water quality". Mr Rothman submitted the subject matter of the complaint is not the issue of historical inaccuracy: rather it is a complaint that the presentation of Jewish people on the website is that they as a group have been involved in conduct which on any reasonable basis is reprehensible.
In a document filed with the Commission dated 9 July 1997, Mr Jones in response to a direction from me, detailed in relation to the material on the website each specific "act" which he alleged breached section 18C of the Act. Mr Rothman made submissions on each of these.
"The Adelaide Institute website should be considered as a single document which seeks to further the "cause" of Holocaust Denial."
(2) Mr Jones refers to the first sub-directory of the website (titled "About Adelaide Institute") as containing the claims that
(a) the perceived knowledge of the Nazi Holocaust is nothing more than an "allegation" levelled by "defamers and libellers";
(b) there was a "Jewish-Bolshevik Holocaust", which is not referred to as "alleged", which shows that "Jews" are "murderers".
The material in this sub-directory refers to the Holocaust as "an allegation", and refers further to the "alleged homicidal gas chamber story" and "alleged homicidal gassings", and that "those who level the homicidal gassing allegations at the Germans" are "defamers and libellers of the Germans". It concludes "there is no evidence that millions of people were killed in homicidal gas chambers".
It was submitted that to describe the Holocaust as "an allegation" is to put in issue that it occurred. Mr Rothman submitted that although Dr Toben denied at a directions hearing that he was a "Holocaust Denier" and said rather he was a "Holocaust Revisionist", this was disingenuous, as he publicly aligns himself with Robert Faurisson, a French Holocaust Revisionist, whose summary of the Holocaust is adopted by Dr Toben: "No holes, no Holocaust!", referring to Mr Faurisson’s assertion there were no holes in the ceiling of the alleged gas chamber at Auschwitz, and therefore no ingress for gas. Mr Faurisson’s conclusion is that without such holes, there could have been no gassings, and therefore "no Holocaust". Mr Jones’ submission in his written document is that, "in context, the material … seeks to maintain the vile argument that Jews have foisted on the world the myth that there was Nazi Holocaust and that a "Holocaust" was committed by Jews. The clear implication is that, in addition to being collectively guilty of fraud and extortion, Jews are also ‘murderers’."
In newsletter No 50 the Holocaust is described as an "evil lie" used to exploit "moral sensibility", promote "feelings of guilt" and extort money from the US Government and "German taxpayers".
In newsletter No 56, among other things, the commentary refers to some Jews as "AshkeNazis", and makes direct comparisons between Jews and Nazis, and refers to the "Mezuzah-Monitored Machine-Gunfire of the American media". Mr Rothman explained at the inquiry the Ashkenazis constitute a group within Jewish culture, being generally that group which originally emanated from Central Europe. The use of the term AshkeNazis, spelt as in the Adelaide Institute Newsletter is, Mr Rothman submitted, a deliberate attempt to insult a significant part of the Jewish ethnic group. Mr Rothman also explained the Mezuzah is a Jewish religious symbol, and he submitted the article clearly identified Jews as deserving of contempt and hatred.
In newsletter No 57, an Adelaide Institute Associate, David Brockschmidt, refers to "the idea of the Holocaust" as an "attempt to create a guilt complex for Christians". The writer also refers to "the Bolshevik Regime" which was responsible for persecutions of non-Jews, but which was "created and sustained by Jews". The material, in Mr Jones’ written submission, "invokes anti-Jewish stereotypes, misrepresents Judaism and concludes with the implicit threat, ‘if you can not come to terms with the dark side of your own history, then you will be history’." Mr Rothman submitted the material in the context of the website argued that individuals who maintain that the perceived history of the Nazi genocide is not a myth are racketeers and maniacs. Mr Rothman also referred to material in newsletter No 50 where the Associate Director of the Adelaide Institute, Geoffrey Muriden, describes the Holocaust offensively as "the big H". In newsletter No 53, another article by Mr Brockschmidt, presented as an open letter to Mr Jones, makes similar statements. Further material in that newsletter includes a statement by Mr Jack King that "It appears in reality that God has ‘chosen’ Jews to demonstrate how people should not behave", and refers to a "Talmudic habit of deceit and manipulation". Mr King in this document further claims that "the Talmud condones lies, deceit, perjury, brutality, greed, vile obscenities, sodomy, paedophilia, bestiality, hatred of gentiles, Christians in particular, and sadistic killings of Christians simply because they are Christians".
Mr Rothman submitted this material refers to Jews as a group, referring to people behaving in a particular way because of their character as Jews, and repeats accusations and libels against Jews as a group, which he submitted "could only be quintessentially that which racial vilification legislation is aimed at".
In newsletter No 54 a letter from a contributor refers to "the pseudo-religious dogma of the ‘Shmolocaust’", and, although it concedes it as "a fake", refers to "the Protocols of the Elders of Zion" as "a faithful documentation of the Judo-Communist methods of political subversion".
Mr Rothman submitted that again this referred to Jews as a particular ethnic group, and by virtue of their membership in that sense of engagement in political subversion. He submitted the use of the word "Shmolocaust" is an offensive and intimidating remark, and clearly is intended to be such. Further material in this newsletter includes a comment that "Jews brought forth the homicidal ideology which enveloped half the planet like a cloud of poison gas and killed off a hundred times more than a lousy 6,000,000", and reprints two extracts from Mein Kampf. Mr Rothman submitted this minimised the obvious feelings of distress and hurt at the Holocaust and the "lousy 6,000,000".
Mr Rothman’s final submission in relation to the material contained on the site is that essentially the material "speaks for itself". He described the material as quintessentially the sort of material which the legislation is designed to proscribe.
Mr Rothman also made submissions on the application of the legislative provisions to these facts and I deal with these below.
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