1.1 The Complaint
This inquiry arises out of a complaint made on 31 May 1996 to the Race Discrimination Commissioner (“the Commissioner”) of the Human Rights & Equal Opportunity Commission (“the Commission”) by Jeremy Jones, the Executive Vice President of the Executive Council of Australian Jewry (“ECAJ”), against the Adelaide Institute. The complaint alleged the Adelaide Institute had published material on its World Wide Website “which constitutes malicious anti-Jewish propaganda”. The complaint alleged the material published on the website was contrary to section 18C of the Racial Discrimination Act 1975 (Cth) (“the Act”).
The Commissioner enquired into this complaint but considered it was not amenable to conciliation and referred it to a public inquiry pursuant to section 24E(1)(a) of the Act on 10 April 1997. The reference was accompanied by a report from the Commissioner which included the downloaded contents of the website as at 31 May 1996.
The matter did proceed to a public hearing which was conducted by me in Sydney on 2 November 1998 pursuant to section 25A of the Act. However, the process of the conduct of the inquiry of this matter was protracted and complex, and in some respects relevant to the substantive consideration of this complaint. Accordingly, I shall set out in some detail the processes of this inquiry as well as its substance.
The first directions conference was held by telephone on 18 June 1997. Dr Fredrick Toben, the Director of the Adelaide Institute, appeared on behalf of the Adelaide Institute, and Mr Jones for himself. At that hearing I made directions that the hearing, when it was held, would be in public, and would be in Sydney as the place where the website had been accessed and the complaint made. Dr Toben objected to the hearing being in Sydney as it presented difficulties for himself as he is located in Adelaide. However he indicated a number of witnesses whom he wished to call were from elsewhere in Australia or overseas, and he might require evidence to be given by telephone or video link. At that conference there was some discussion as to the precise identity for the purposes of the legislation of both the complainant and the respondent, and I invited written submissions on these matters to be made. Such written submissions were received by me from the complainant on 9 July 1997 and the respondent on 1 August 1997.
In the complainant’s written submission of 9 July 1997, Mr Jones identified the specific acts of which he complained by referring to specific aspects of material contained in the respondent’s website. He also made submissions on the appropriate identification of the complainant. Dr Toben responded to that submission and also provided to the Commission a witness list identifying 36 witnesses whom he proposed to call in the course of the inquiry. He subsequently added two more witnesses to this list. He also formally sought leave to video record any further proceedings.
A further directions conference was convened for 30 September 1997. This conference was in person, but at that time I directed, pursuant to section 25H(2) of the Act, that the directions conference be held in private. This direction was made against the objection of Dr Toben, but my view was that it is normal to hold a directions conference in private as its purpose is to deal with procedural issues in the preparation of the matter for public inquiry. I made it clear that direction did not affect the earlier direction I had made that the hearing into the substance of Mr Jones’ complaint would be held in public. At that directions conference I gave leave to both parties to be legally represented pursuant to section 25G of the Act. Mr Jones was represented at that conference by Mr Stephen Rothman SC. Dr Toben continued to represent the Adelaide Institute. At the commencement of that conference I rejected Dr Toben’s request to video record the proceedings as the matter was already being transcribed by an accredited and pre-arranged court reporting service, and I regarded that as the appropriate formal record of the proceedings. There were also a number of other persons present in the hearing room at that conference, and it was my view each person individually would have to consent to the video recording should I have permitted it to proceed. I note Dr Toben had not raised this issue prior to the listing of the matter for the directions conference.
At that conference Dr Toben sought a direction from me that the matter be returned to the Commissioner for conciliation processes to be put in place. I rejected that request as the Act makes it clear that once a matter is referred to the Commission for inquiry the Hearing Commissioner is bound to conduct that inquiry: see section 25A(1) which directs “the Commission shall hold an inquiry into each complaint or matter referred to it” (my emphasis). I noted I am empowered in the course of an inquiry to attempt to resolve a complaint by conciliation (see section 25Q). However, it was clear at the directions conference Mr Jones was not prepared to engage in any conciliation processes at this stage of the inquiry in the absence of any new basis for conciliation being offered by Dr Toben. I took the view that where one party was not willing to engage in conciliation and no basis has been proposed for resolution of the complaint, to direct a further conciliation process would not constitute a reasonable step “to effect an amicable settlement” of the complaint. When I made that direction Dr Toben left the hearing room and refused to further participate in that directions conference. It continued in his absence.
I made some directions following that conference, having considered the written and oral submissions of the complainant, and the written submissions of the respondent received prior to the conference. I published the reasons for some of those directions in a preliminary decision dated 24 October 1997. In that determination I dealt with the following matters: that the complaint was to be classified as a representative complaint pursuant to section 25L of the Act; that the complainant was properly therefore identified as “Jeremy Jones and members of the Committee of Management of the Executive Council of Australian Jewry, on behalf of those members of the Jewish Community of Australia who are members of organisations affiliated to the Executive Council of Australian Jewry”, and that the respondent was appropriately identified as “Fredrick Toben on behalf of the Adelaide Institute”. The dates for the public inquiry were set for 15-19 December 1997 to be held in Sydney.
Two other matters were clarified in the course of that directions conference. Prior to leaving the conference, Dr Toben confirmed he was responsible for placing the material which appears on the Adelaide Institute website, and that he took responsibility generally for any acts which could be said to be ascribed to the Adelaide Institute, an unincorporated association of which he is Director.
The complainant also identified the relief sought from this Commission in the written submission filed prior to the conference and confirmed at the conference. Mr Jones stated no financial compensation was sought as a consequence of the establishment of the complaint, but the complainant sought three directions from the Commission: the withdrawal of the allegedly offending material from the Internet site; a direction that the material was not to be published or re-published elsewhere; and an apology from Dr Toben on behalf of the Adelaide Institute, as well as a statement to be included on the website concerning any finding of unlawful behaviour by this Commission.
I also directed Dr Toben to file witness statements in relation to the witnesses whom he proposed to call by 7 November 1997. Dr Toben did file witness statements in relation to 42 proposed witnesses. A further directions hearing (via telephone) was convened for 25 November 1997 in order to determine which witnesses would be called by Dr Toben in response to the complainant’s case to be presented at the inquiry. At the outset of that directions conference I advised Dr Toben the evidence to be presented at the inquiry must be relevant to the matter in issue before me as referred for inquiry. In particular I advised that the evidence must be relevant to a determination of whether the publication of the material contravened section 18C of the Act, and whether the exemption contained in section 18D of the Act was available to the respondent. Dr Toben’s response to this direction was that the witnesses whom he proposed to call could all give evidence which would establish that the assertions in the material contained on the website were true, and his basic case in response to the complaint was that “truth is the defence”.
At that conference there was a very lengthy discussion concerning Dr Toben’s proposed witnesses. It was apparent at that conference Dr Toben had not made formal arrangements for these witnesses to give evidence before the inquiry, and most of the “witness statements” provided were accounts by Dr Toben of the position of these witnesses in relation to “Holocaust Revisionism“. Some of the witness statements indicated the witnesses were at present unavailable or uncontactable, or were in relation to persons whom Dr Toben had contacted as possible witnesses but who had made no response to him: 15 of the statements are identified as falling into this category. A large number of the proposed witnesses were based in Europe or the United States.
Dr Toben’s primary contention was that the purpose of the inquiry was to “prove” whether the events known as “the Holocaust” in fact occurred. Dr Toben’s argument was that his website and his own research was concerned with the extent to which the events and circumstances relating to Jewish people in Europe in the 1930s and 40s had been “mythologised”: his proposition was that all credible evidence pointed to the fact that although the German State regarded Jewish people as enemies of the State and took steps to exclude them from the German State by, among other things, placing them in labour camps where many died, there was no process of State sanctioned mass extermination of Jewish people, and in particular there were no gas chambers at the various labour camps such as Auschwitz. Dr Toben also asserted there was significant evidence which now established significantly fewer than 6 million Jewish people perished during this period of time: possibly, he asserted, as few as 1.8 million. Dr Toben’s argument which is asserted in the material on his website as well as at this and other directions hearings conducted in relation to this inquiry, is that implications concerning the political position of the Jewish Community can be derived from the fact that it takes a variety of significant steps (such as the making of this and other complaints to this Commission) to prevent or impede the conduct of research and investigations such as his into the truth of the events relating to what Dr Toben refers to as “the alleged Holocaust”.
Dr Toben also asserted there were issues I should consider about his right to freedom of speech, as well as his freedom to engage in free academic research into matters such as this. I shall deal with the issue of freedom of speech below, but it was when I indicated in the course of this directions hearing that I was bound by the terms of the legislation to conduct this inquiry, and if I were satisfied on the basis of the evidence which the inquiry demonstrated that Dr Toben had engaged in acts contrary to section 18C of the Act it was my duty to make appropriate determinations, that Dr Toben indicated I was an immoral person who had no interest in the truth, and it would be immoral for the inquiry to proceed on that basis, and that he would have no further dealings with the inquiry. Despite that assertion the directions conference of 7 November 1997 did continue.
At the end of that conference I directed evidence would be heard from six witnesses, including Dr Toben: the other witnesses whom I directed could give evidence if called by Dr Toben, were Olga Scully an Associate of the Adelaide Institute and the respondent to another complaint by Mr Jones of a similar nature to that before this present inquiry; Professor Brian Martin, a social scientist; Ronald Conway; John Bennett, member of the Victorian Council for Civil Liberties; and Geoffrey Muirden, Deputy Director of the Adelaide Institute. I indicated I was not prepared to hear evidence from a number of other witnesses, including all of those from whom no response had been received by Dr Toben, but also in relation to some whose evidence appeared to have no clear relevance to the matter. I reserved my decision in relation to seven of the other witnesses proposed by Dr Toben, and requested Dr Toben to provide further information concerning those proposed witnesses so I could make a ruling concerning the admissibility of their evidence in the sense of its general relevance. Dr Toben did not provide that further information at any time. One of the witnesses whom Dr Toben proposed to call was David Irving. At the time of this conference Dr Irving, a widely published writer on this period of European history, and in particular on the activities of the German government under Adolf Hitler and the circumstances of the European Jewish community at that time, was appealing against a decision of the Australian government not to grant him an entry visa into Australia. I indicated to Dr Toben it was possible that evidence from witnesses who were not able to attend a hearing could be received by telephone link, but he would have to make the arrangements himself, although in the conduct of the proceedings the cost would be borne by the Commission. I note Dr Irving has since been unsuccessful in proceedings in the High Court, Queen’s Bench Division (UK), in which he presented a similar argument to that sought to be presented by Dr Toben in this matter: Irving v Penguin Books Limited and Deborah Lipstadt, unreported, 11 April 2000, decision of Gray J (Dr Lipstadt was another of the witnesses whom Dr Toben indicated he wished to call, but who did not respond to his request).
At a further directions conference on 27 November 1997 Dr Toben indicated he wished to make submissions on the general validity of the legislation. I declined to hear these submissions. I shall refer to this further below.
Subsequent to that conference Dr Toben indicated he wished to withdraw from the proceedings altogether. The hearing dates which had been set for mid December 1997 were then vacated. Throughout 1998 there were considerable further discussions and although Dr Toben had indicated he had withdrawn from the proceedings he continued to send documentation to me and the Commission. Further dates for the public hearing were then set for 2 and 3 November 1998: Dr Toben was advised of the dates but continued to indicate he would not be attending the hearing nor calling any witnesses. However, on 28 October 1998 Dr Toben forwarded to the Commission a copy of a lengthy document (390 pages) by J S A Hayward, submitted to the University of Canterbury in part satisfaction of the requirements for a Master of Arts degree. The thesis is entitled “The Fate of the Jews in German Hands: An Historical Enquiry into the Development and Significance of Holocaust Revisionism“. The thesis appears to be unpublished and is dated 1993. Dr Toben at this time indicated he wished to provide to the Commission two other books which he indicated would be provided at the hearing.
When the public hearing of this inquiry commenced on 2 November 1998 Dr Toben did attend at the inquiry. He represented himself. The complainant was represented by Mr Rothman SC.