(Order 14, rule 2)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
No. NSD327 of 2001
AFFIDAVIT OF FREDRICK TÖBEN
On 24 April 2009 I, Fredrick Töben, of 23 Caloroga Street, Wattle Park, in the State of South Australia, retired teacher, say on oath:
1. I am the Respondent in these proceedings.
2. I was born in Jaderberg, in the North of Germany in June 1944, where my parents were involved in farming. In 1954 my family emigrated to Australia: initially my parents worked in factories, before recommencing farming in West Wimmera, Victoria.
3. I attended school in Jade, Germany, and in Victoria and South Australia. I completed matriculation at Edenhope Victoria.
4. I initially completed a Bachelor of Arts degree at the University of Melbourne where I took literature, philosophy, and German.
5. During University vacations in the period 1964 through 1966 I received appropriate training and was employed by the Victorian Forestry Commission as a fire fighter and in basic fire management operations.
6. In 1967 I completed a further Bachelor of Arts degree at Victoria University of Wellington, in New Zealand, in economics and psychology.
7. Whilst I was studying in New Zealand I was a teacher at a secondary college in Wellington, and I also taught in a secondary college in Lumsden. I taught mathematics and English, and coached soccer. For a few months I worked as a miner [second class] on a tunnel required for a hydro-electric power project. I obtained a bus driver's licence in Wellington, and spent a little time there driving trolley buses.
8. In 1970 I travelled through the United States and Canada, visited the United Kingdom and Ireland, and France. In Germany I spent several months as a truck driver, and also worked as a teacher in Stuttgart where for three years I was in charge of the boarding school.
9. I spent approximately three weeks in Israel living on a Kibbutz over Christmas 1972-1973.
10. Between 1973 and 1975 I was employed as a research assistant in the Faculty of Philosophy at Stuttgart. For one year I was the elected student representative in the Faculty.
11. I enrolled at University of Stuttgart in 1971 for a Doctorate of Philosophy. My thesis, which was written in the German language, was in the discipline of philosophy, and involved a comparison of theory falsification [as proposed by Sir Karl Popper] and the principle of fallibilism [from the work of American philosopher Charles Saunders Peirce].
Filed by Dr F Töben Tel: 08 83310808 Mob: 0417088217
23 Caloroga Street Email: firstname.lastname@example.org
Wattle Park 5066
12. Sir Karl Popper's best known works include his book “The Open Society and its Enemies”, [1966, London, Routledge & Kegan Paul] an expose of ideological structures, and the 1959 work, “The Logic of Scientific Discovery”, Hutchinson, London. Sir Karl Popper went to London to teach at the university of London where it was said of his theories that they continued to be unacceptable to the establishment. Popper came to the view that our knowledge is but “a woven web of guesses”, that empirical generalisations may not be verifiable but are at least falsifiable.
13. I met privately with Sir Karl Popper, and corresponded with him from time to time.
14. The other comparator for my thesis was the work of American philosopher Charles Sanders Peirce: Peirce was a non-conventional think whose ideas upset the United States academic establishment in the late 19th and early 20th centuries. He maintained that the quantum of world knowledge is constantly evolving and developing. Whilst he accepted the validity of truth, honour and justice, he would not accept a dogmatic closure of any enquiry into any field of human knowledge: his emphasis was on the process of discovery, and on his belief that it cannot be closed. Peirce is referred to in Vincent Luizzi's book, “A case for Legal Ethics: Legal Ethics as a source for a Universal Ethic”, State University of New York Series in Ethical Theory, S.U.N.Y. Press, Albany, 1993, as having been one of the early pragmatists [in fact he referred to himself as a “pragmaticist”] who “constructed the analog of evolving organisms for such notions as truth and knowledge, indicating their developing nature and inveighing against any Platonic understanding of truth as being fixed, absolute, and awaiting our discovery”. Peirce developed “abduction” as a logical form which gave hypothetical thinking a logical structure. Previously logical categories had included only induction and deduction.
15. One of the aims of my thesis was to bring into the education process the framing of hypothetical thinking which enables world knowledge to grow, or in other words, to enliven the asking of difficult questions. I believed, consistently with my thesis but not as part of it, that concerned citizens should be prepared to uphold basic civilizing values such as truth, honour, and justice.
16. I had decided that I would go to Rhodesia [now Zimbabwe] after I received my Doctorate [which I did in 1977] and I was employed as a teacher at a government school. I taught English and German.
17. In 1978 I studied for and obtained a Teaching Certificate, and in 1978 and 1979 tutored in Sociology.
18. In 1980 I returned to Australia having observed the transition from minority European rule to majority African rule in Rhodesia. I believed that African rule had been set up to fail because the British reneged on the Lancaster House agreement which had been a guarantee of the orderly transfer of power to Africans.
19. In 1980 and 1981 I taught in Victoria at Leongatha High School, and Kings Park [St. Albans] High School.
20. In late 1981 I went to Nigeria and taught English at a Tertiary College for Teachers.
21. I totally reject the proposition that I am, or that I have ever been, by belief, inclination, or practice a person who is racist. I regard myself as completely colourblind where race is concerned. For me, race is not a concept which has ever provided any basis for discriminating against others.
22. I was employed as a teacher in Victoria in 1984 and 1985, when I was dismissed. I subsequently drove a school bus for 4 years. My dismissal was the subject of an action in the County Court of Victoria, and in the Full Court of the Supreme Court of Victoria. It is the subject of my book, The Boston Curry Party, [published in 1998].
23. I was involved in Family Court proceedings between 1988 and 1994.
24. I was not employed in the period 1991 to 1993.
25. I went to South Australia in about 1992 and obtained teacher registration, and I worked there as a relief teacher over 1993 through 1996.
26. I have had a medical condition which affects my legs, and in about 1997 I was put on a disability pension because of the condition of my legs.
27. Adelaide Institute was founded in 1994, and I have worked as Director. I have carried out research and other functions as Director, and have done so full time since 1996.
28. Adelaide Institute commenced to operate a website from May Day 1996. On 28th May 1996 a letter of complaint [below] was sent by Mr. Jones on behalf of the Executive Council of Australian Jewry that the website contained material which constituted publication contrary to s.18C(1) of the Racial Discrimination Act. In support of the complaint Mr. Jones had apparently supplied a download of the contents of the website as at 31 May 1996.
31. Prior to receiving the complaint I learned, from media attention, that a complaint may be imminent when the Australian's newspaper journalist Belinda Hickman requested an interview with me over a story that Rabbi Cooper of the Simon Wiesenthal center had lodged a complaint with the Attorney-General's department.
On 27 May 1996 I wrote as Director of Adelaide Institute to Sir Ronald Wilson as the president of HREOC, requesting that he view the website and seeking advice as to whether anything on the website offended HREOC's charter. I wrote a further letter to the same effect to Sir Ronald on 19 June 1996.
On 28 May 1996 the Council of Australian Jewry made the following complaint to Miss Zita Antonios, Race Discrimination Commissioner, HREOC.
The complaint read –
Subject: Complaint against "The Adelaide Institute"
Dear Ms. Antonios,
this council wishes to lodge a formal complaint with your office under the Racial Hatred Act 1995 concerning the World Wide Web site for the Adelaide Institute (http://www.adam.com.au/ addins.html)
At this site the Adelaide Institute has published material which constitutes malicious anti-Jewish propaganda. Not only does the home page contain denial of the Nazi Genocide of the Jews and blames Jews for the crimes of Stalin, but in other directories, particularly the "Adelaide Institute Update" material is reproduced which makes statements such as "the well-connected Jewish lobby wants to signal to those who are aware of their various rackets and schemes, that if you "cross" them as an individual or as a nation then they will boycott, hound, persecute and ultimately punish you, using Gentile Government agencies and Gentile Taxpayers money" and "one day, in the not too distant future, the tables might well have turned and the aroused Gentile world will mete out justice and vengeance".
The site has been advertised in the national press and its existence is unambiguously "public act" which is "reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate, another person or a group of people" and "is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group".
Executive Vice president,
29. Subsequently I learned from a Freedom of Information request that a letter of acknowledgment was sent by HREOC to Mr. Jones on or soon after 4th June 1996 to the following relevant effect –
The Commission acknowledges receipt of your complaint on 31.5.1996.
At present there are some delays with dealing with complaints but your matter will be attended to as soon as possible.
If there is any reason why you think your complaint should be given priority please advise …
In the meantime .. we would appreciate your completing the information sheet and returning it in the postpaid envelope. This information will be treated as confidential and is provided voluntarily.
If you decide not to complete the form .... will not be affected in any way
30. Although I believed that there may have been a complaint, I had not received it when on 4 July 1996 Adelaide Institute wrote to Joan Sheedy, Senior Government Counsel, Human Rights Branch, Attorney-General’s Department. The letter was as follows -
I am writing to you because your name, and letter of 4 September 2005, is on my file.
This early morning I received a telephone call from Rory Callinan, reporter of the Brisbane Courier Mail – tel: 07 3252 641. Mr Callinan wished me to respond to the matter of Rabbi Cooper’s – US-based Simon Wiesenthal Centre – complaint.
I did not know that you are investigating the Adelaide Institute – but I believe that it is the usual practice of organisations like the Simon Wiesenthal Centre to initiate something like this, then utilize its media contacts to spread the word!
If you check with the Australian Federal Police and the Human Rights Commission, I have informed them of what we are on about. We certainly believe that our work does not break any Australian law. I am still waiting for a response from the Human Rights Commission.
Meanwhile, please find enclosed a copy of our latest newsletter and also a copy of the material that we have placed on our Internet website.
A response from you at your earliest convenience, denying or conforming your action against us, would be much appreciated.
Sincerely, Dr Fredrick Töben, Director
31. On 5th July 1996 I, together with Mr. Brockschmidt [who is Jewish] wrote to the Attorney General as follows –
According to modern-day Rabbis, the Babylonian Talmud is the moral guideline of today’s Judaism. It is the educational to0ol used to train Rabbis and it is also used to educate Jewish children in the ‘moral tradition’ of Judaism.
Our study of parts of the Babylonian Talmud has led us to conclude that this so-called moral guideline of modern and ancient Jewry is partly racist, offensive to everyone not Jewish, especially Christians, and to every decent Jew who believes in the equality of humankind.
We at Adelaide Institute ask you to contact Australia’s Jewish religious and political leaders in order to get an explanation from them why such offensive anti-Gentilistic material, which we believe creates racial hatred against Gentiles, is available to everyone today, and why it is still used as a moral guideline for modern-day Jewry.
It is totally unacceptable in a predominant Christian society, which bends over backwards in order not to offend Jewry in this country and worldwide, that such racist, anti-Christian material is still used in Jewish society as a moral guideline and educational tool. It also runs totally against the multiracial and multicultural policy of the Australian government, and it also violates the United Nation’s Human Rights Charter.
We also agree with the Frankist – a Jewish sect from Lithuania whose members converted to Christianity – that the Babylonian Talmud and its pathological anti-Gentilism is one of the main reasons why we have in the past and in the present world-wide anti-Semitism.
We request that the Attorney-General’s Department undertake an investigation into the Babylonian Talmud to ascertain whether any of its contents is in breach of any Australian Law.
Sincerely, Dr Fredrick Töben, Director; David Brockschmidt, Associate
32. The Adelaide Advertiser on 6th July 1996 carried an article by Anthony Keane headed ‘Internet target of Nazi hunters’, [The Advertiser, July 6, 1996] which included the following -
A controversial Adelaide-based Internet site is being investigated by the Federal Government.
Holocaust-denial group the Adelaide Institute is one of two groups that have been targeted by international Nazi hunters, the Simon Wiesenthal Centre.
A spokesman for the Attorney-General, Mr Daryl Williams, said yesterday the Government had received a letter from the Simon Wiesenthal Centre in Los Angeles calling for an investigation into whether the Internet site breaches any local laws. “We are investigating the claims made by the Simon Wiesenthal Centre,” he said.
The letter says the centre has “identified over 100 different Websites which promote racist violence, mayhem and terrorism”.
“Two Australian Web sites have come to the attention of researchers at the Wiesenthal Centre,” it says.
The Advertiser yesterday logged into the Adelaide Institute site. Excerpts included:
“We reject outright that a questioning of the alleged homicidal gas chamber story constitutes ‘hate talk’, is ‘antisemitic’, ‘racist’, or even ‘neo-Nazi’ activity.
“We are ‘a group of individuals who are looking at the Jewish-Nazi Holocaust, in particular we are investigating the allegation that Germans systematically killed six million Jews…”
“We At the Adelaide Institute believe that those who level the homicidal gassing allegations at the Germans owe it to the world to come up with irrefutable evidence that this happened.”
The other Internet site under investigation, called Al-Moharer Al-Australi, is based in Melbourne.
Adelaide Institute director Dr Fredrick Töben said he would welcome the Federal Government investigation.
“But we would also like them to investigate the Simon Wiesenthal Centre and the tradition it comes from, namely the Babylonian Talmud, which is the moral and legal foundation of modern Judaism,” he said.
“The Babylonian Talmud is anti-Gentile, anti-Christian, against everything non-Jewish and it is full of hate.
“The Adelaide Institute has put a complaint to the Attorney-General’s Department that the Babylonian Talmud contains hate literature and is racist, is full of bigotry, is offensive to everyone not Jewish, especially to Christians and to every decent Jew who believes in the equality of humankind, and it needs investigation.”
SA Jewish Community Council president, Mr Norman Schueler, said: “Anything that tries to rewrite history is not on, so we therefore welcome the investigation. As far as we are concerned, the Adelaide Institute has promoted things that are incorrect and are inconsistent with established fact.”
33. I did not receive actual notice of the Complaint from HREOC until 29th July 1996, when a letter dated 23rd July 1996 was received.
34. By letter dated 29 July 1996 to the Commissioner I, together with Mr. Brockschmidt, wrote –
We hereby acknowledge having on this day received your letter dated 23 July 1996.
Please be advised that we shall presently respond to same.
However, we do request of you that you send us a copy of the actual complaint made by The Executive Council of Australian Jewry so that we know who authorised the complaint and signed the letter addressed to you.
As your statement about the complaint is rather general, also send us a print-out of the particular items complained about.
In this regard would you please send us a copy of the original complaint made by Rabbi Cooper of the Simon Wiesenthal Centre, Los Angeles, USA, made to the Australian Consulate in Los Angeles, and directed by it to the Attorney-General’s Department in Canberra.
Please note that on 5 July 1996 we lodged with the Attorney-General’s Department in Canberra a complaint against the Babylonian Talmud. Please inform us whether you have received instructions to that effect from the Attorney-General’s Department.
Also, be advised that we have lodged a complaint with the US Attorney-General’s Department against Rabbi Cooper of the Simon Wiesenthal Centre, Los Angeles.
We have also referred this matter to our legal advisor.
Kindly confirm in writing receipt of this letter, and any other correspondence between us. We are requesting this in light of the fact that our previous letters to you, e.g. our letter to Sir Ronald, seem to “disappear”.
Sincerely, Dr Fredrick Töben, Director; David Brockschmidt, Associate.
35. I worked hard and constantly to attempt to gather evidence concerning my views. I gathered over thirty witness statements, texts and articles in order to put my views in perspective. I found the complaint extremely stressful, and the entire matter has been extremely stressful since that time.
36. I found that it was difficult to obtain legal representation, and I experienced great difficulty in dealing with the complaint myself. My understanding of the matter before HREOC rested on the notions that my work was socially and legally acceptable because for me ‘truth is a defence’, and that neither my philosophical approach to the pursuit of historical truth nor my expression of it were unlawful.
37. On 14th August Mr. Brockschmidt and I wrote to follow up our complaint of 5th July 1996 and to enquire what progress had occurred in the investigation.
38. On 23 September 1996 a further letter was written from Adelaide Institute to HREOC. On 2nd October 1996 Mr. Jones wrote to HREOC.
39. On 6th November 1996 a letter was received from HREOC which read –
Dear Mr Töben
Re: Complaint by the Executive Council of Australian Jewry against the Adelaide Institute:
I refer to previous correspondence in relation to a complaint lodged under the Racial Discrimination Act 1975 (the Act) by the Executive Council of Australian Jewry (the Council) against the Adelaide Institute (the Institute).
In your letter dated 23 September 1993 [[this what the original says]] you advised me that this complaint had been referred to your solicitor for response. As it appears that no correspondence has been received from you, or any person acting on your behalf, I now request your response to the allegations made by the Council within 14 days of receipt of this letter. You should be aware that pursuant to section 24B of the Act, the Commissioner may serve on you a notice requiring you to provide the information she has requested. Failure to respond to such a notice is an offence.
As you were advised on 11 June 1996, the Commissioner is prepared to consider anything you may wish to put to her concerning whether she should continue with this enquiry.
I enclose a copy of the Council’s reply to your request for further details concerning the above complaint. As you will see from that letter, the complaint has been authorised by Mr Jeremy Jones, Executive Vice-President of the Council.
If you require further information concerning this matter please contact me on (02) 284 9868 or toll free on 1800 021 199.
Yours sincerely, Kirsty Gowan, Conciliator
40. Mr. Jones was informed of the letter to Adelaide Institute of 6th November on the same day.
41. Without waiting for our response Mr. Jones wrote an article called "Networking", which was published at page 12 of the Australia/Israel Review for 11-24 November 1996 in which he referred to -
.... Australia's most overtly anti-Jewish Internet site, maintained by the Adelaide Institute, .... trumpets its antagonism towards the Jewish religion, historians who have documented the crimes of Nazism, and those who would speak out against racism …
42. By Letter dated 18 November 1996, to HREOC, E J Wall & Associates, Barrister & Solicitors, wrote on our behalf –
Re: Complaint – Executive Council of Australian Jewry – Dr Töben
We refer to our letter dated 1 August, 1996 sent to you on that date by facsimile transmission. It now appears you did not receive that letter and have continued to correspond with our client direct. We enclose a further copy of our letter (dated 1/8/96) for your information. Could you please ensure that all future correspondence is sent to us and not to our client direct.
Our client has now forwarded to us a copy of the letter of complaint by the Executive Council of Jewry.
We now enclose herewith:-
1. Our client’s letter to you (dated 13/10/96) with exhibits 1 to 10, which sets out some of the background leading to the complaint.
2. A blue plastic folder, which encloses a sample of material that our client would reply upon for his defences under Section 18D of the Racial Hatred Act. We stress that this is only but a small sample of material our client would rely upon as to put before you all the material our client has read on these issues would fill a library.
3. Adelaide Institute’s Home Page. We also provide back copies of the Journal to indicate the nature of the intellectual debate our client is attempting to arouse.
Our client’s position to this complaint, in order to assist you with your enquiries, may be summarised as follows:-
1. Our client does not admit:
1.1 that the material complained of “… is reasonably likely…to offend, insult, humiliate or intimidate…”. (S18C(a) of Act; nor
1.2 that the publication of the material on the Web site was done “… because of the race, colour or national or ethnic origin…”. (S18C (b) of the Act)
2. Even if S18C of the Act were to be made out our client relies upon the defences set out in S18D of the Act. The sample material supplied indicates that the publication of the material complained of was:
2.1 done reasonably, and in good faith:
(a) in pursuit of discussion or debate for a genuine academic purpose or any other genuine purpose in the public interest about:
i. the extent of the Nazi/Jewish Holocaust;
ii. the involvement of Zionist Jews in the Bolshevik Revolution and the crimes of Stalin in particular; and
iii. the influence of Zionist Jews with Government Agencies and the methods used by them when there is any genuine attempt to critically examine the Nazi/Jewish Holocaust or Zionist involvement in the Bolshevik Revolution or Stalin.
(b) Alternatively, the material published was fair comment on subjects of public interest and is the expression of our client’s genuine belief on these vexed topics.
1. General Comments
We make the following comments:-
3.1 Our client is aged 52 years. He holds a Doctorate in Philosophy from University of Stuttgart (also Heidelberg and Tübingen). He has taught at secondary and tertiary levels. He has little interest in material things and apart from his family, his real interests in life are of an intellectual nature, so it would not be surprising to learn his only assets are a large library and his Web site.
3.2 He is of German background. He believes the German people are today as profoundly affected by the Nazi/Jewish Holocaust as are Jewish people. Therefore the Nazi/Jewish Holocaust is of particular interest to him.
3.3 It may be that Jews would be offended, or insulted by the material published (this is not admitted) but in a robust democracy the freedom of speech exemptions – Especially when the subject is “history” – should prevail.
3.4 On the question of Jews being offended our client makes the clearest distinction between, on the one hand, the rank and file Jews as persons and the policies of “organised Jewry” or “Zionism” on the other. To the former he affords the utmost respect and courtesy believing as he does that they are as much a victim of Zionist policies as are Gentiles. He is implacably opposed to many Zionist policies as are many outstanding Jews. As one example he submits a letter of support from that outstanding Jewish intellectual Noam Chomsky who is now himself subject to much criticism in the Zionist press.
3.5 Our client brings a scholarly approach to his subjects and on his homepage lists the Web sites where a contrary viewpoint is put. Indeed, our client regularly publishes letters from Jewish or other persons who disagree with his views. His Journals show all the hall marks of a person in search of the ‘truth”.
3.6 It is the attempt by organised Jewry or Zionists to prevent open debate and discussion about issues such as the extent of the Jewish/Nazi Holocaust that out client is opposed to and indeed it is this theme that permeates nearly all of the literature of the Adelaide Institute. The quote therefore taken from Mr Zündel’s Power letter must be seen in context. Mr Zündel had been the subject of the most intense vendetta from Zionist groups in Canada and just prior to writing his letter had his home almost completely destroyed by fire bomb.
3.7 Although few may share the views of the Adelaide Institute on these historical events, the Institute would say that this is simply because “open discussion” on these historical events has remained taboo for too long.
3.8 It would be fair to say that our knowledge of exactly what happened during the Nazi/Jewish Holocaust is not yet complete. As new archival material is released our knowledge of that period is constantly added to and what were once orthodox views are revised. We give but two examples (but our client instructs many more could be given):-
(a) It was once thought that mass gassings took place in Germany and numerous Deponents swore Affidavit evidence as “eye witnesses” of German Gas Chambers at the Nuremberg Trials. The orthodox view among Historians now is that no “mass gassings” took place in Germany.
(b) The orthodox death figure for deaths at Auschwitz was once “4 million” but has now been officially reduced to below “800.000”.
3.9 In the area of free intellectual debate no doubt that sort of revisionism will continue especially as the Soviet archives are opened up. Therefore one might pose the question: “What sort of truth is it that requires fines, imprisonment, visa refusals and now complaints to Race Commissioners to protect it?”
3.10 Section 18D of the Act remains “judicially undefined” but the words “done reasonably and in good faith” should be given their widest meaning if genuine academic debate on sensitive historical issues of the kind conducted by our client are not circumscribed.
3.11 The Complainant should be aware that this attempt to censor or suppress this Web site only serves to strengthen our client’s belief that the Complainant’s real motive in bringing this Complaint is not concern about alleged anti-semitism, but rather to curtail open debate and discussion about these important historical events.
3.12 Whilst our client will abide by the procedures laid down by law to conciliate this complaint he wishes to make it clear that he will not be a party to any settlement that compromises his academic freedom and his research for the truth about these historical events.
E J Wall & Associates
43. Insofar as it referred to me the letter of 18 November 1996 from Wall & Associates was true. It accurately reflected my views, and my approach. Despite the fact that years later it was said that I had failed to file a defence, I believe that the letter responded to the complaint of Mr. Jones and disclosed a defence to it. I believe that the Adelaide Institute website and its content have at all times been conducted consistently with the response, and for my own part, the response accurately speaks of my views and my actions.
44. The approach of the response from Wall & Associates was to distinguish between some groups of Jewish people: the reference to organised Jewry or Zionists in the letter is a reference to expressed views, which I was concerned to address. In referring in the response to Zionists I was referring to a political or quasi-political set of views. I believed that many Zionist views were wrong, but not at all that they were wrong because of the race or religion of those who held them. I had not then and have not ever incited racial hatred: I believe that it was a fundamental liberty not only to be contentious but to be wrong, and that the same principle was to be applied to Zionists. Whatever the situation with other people, anti-Zionism and anti-semitism are not the same thing: I am not anti-semitic.
45. During December 1996 I sent further correspondence to HREOC concerning the complaint.
46. On 10 April 1997 the complaint by Mr. Jones was referred to an enquiry under section 24E(1)(a) by the Commissioner. The reference was accompanied by a report. In the Reasons for Decision of 24th October 1997, the Commissioner records the conclusion that merely because Mr. Jones did not consent to conciliation, it was open – without more - under section 24E(1)(a) to form the opinion that the matter cannot be settled by conciliation. I have never accepted that it was open to proceed to an enquiry without conciliation.
47. By a letter of 20th May 1997 HREOC wrote to Commissioner McEvoy. The copy of the letter which I have obtained from HREOC contains blanks, but relevantly reads –
Dear Commissioner McEvoy,
thank you for agreeing to do two weeks of hearings in September/October. I confirm that we have set down for you in the following matters:
1. [blocked or blank]
2. [blocked or blank]
3. [blocked or blank]
4. [blocked or blank]
5. Jones on behalf of Executive Council of Australian Jewry v The Adelaide Institute [RDA]
29 September to 1 October
2 & 3 October
We will send you the referral reports and full information regarding the above matters in due course
48. On the same day a letter was sent by HREOC to Mr. Jones concerning the matter and the decision to hold an enquiry.
49. On 21st May 1997 a document was signed on the letterhead of "Human Rights and Equal Opportunity Commission President" entitled
AUTHORISATION FOR EXERCISE OF INQUIRY POWERS
Pursuant to section 80(1) of the Disability Discrimination Act 1992, I hereby appoint Ms. Kathleen McEvoy as Hearing Commissioner for the Inquiry into the matter of:
1. Jeremy Jones on behalf of the Executive Council of Australian Jewry -v- The Adelaide Institute
DATED this 21st day of May 1997.
50. I did not realise until a few days ago that the authorisation which purported to authorise Commissioner McEvoy to hold an Inquiry, was an appointment to the Disability Discrimination Act 1992. I have not yet determined the significance of that document.
51. By letter of 4 June 1997 to HREOC Wall & Associates formally conveyed their withdrawal from acting further in the matter, stating that Töben unrepresented is a denial of natural justice.
52. I was unrepresented in the proceedings which followed, until Mr. Maxwell QC [as His Honour then was] represented me solely for the purpose of an appeal from the judgment of Her Honour Justice Branson. Except for the assistance of Mr. Charman in proceedings before His Honour Justice Moore, and Mr. Perkins in the current proceeding, I have been unrepresented.
Although I always felt completely out of my depth with respect to the legal proceedings generally I had no real appreciation of just how profound was my ignorance of the technical legal aspects of the legislation which applied.
53. On 1st August 1997 I responded to further submissions of Mr. Jones in the matter. I had a list of 36 witnesses and foreshadowed a further two. I also made it clear that I did not accept that the Executive Council of Australian Jewry was representative of Jewish people in Australia, and I raised questions about Zionist politics.
54. I received correspondence from Legal Aid, SA, in August September 1996 notifying me that my application for legal assistance had been refused.
55. On 30th September 1997 there was a Directions conference pursuant to s.25G at HREOC Adelaide. Mr. Jones was legally represented. I and Mr. Brockschmidt attended. I requested conciliation and it was said on behalf of Mr. Jones that he did not consent to conciliation. Commissioner McEvoy decided that she has no power to convene a conciliation conference without Mr. Jones’ consent [under s.25Q].
56. Reasons for decision dated 24 October 1997 on preliminary applications were given by Commissioner Kathleen McEvoy. The complainant was Jeremy Jones on behalf of the Executive Council of Australian Jewry . The Respondent was Fredrick Toben on behalf of the Adelaide Institute . It was decided that Mr. Jones’ complaint was a representative complaint under s.22 of the Act, and a Hearing date for a public enquiry was fixed for 15-19 December 1997. It was decided that Sydney was the appropriate venue.
57. The hearing dates of 15-19 December 1997 were subsequently vacated.
58. In early January 1998 I received notice that the complaints concerning the Babylonian Talmud were dismissed.
59. In August 1988 the Adelaide Institute hosted an International Revisionist Symposium, which was attended by approximately 50 delegates, some of whom came from outside Australia.
60. In October 1998 I received a copy of a Thesis written in 1993 by a Jewish New Zealand historian, Dr. Joel Hayward. The thesis was based on research by him for a Master’s degree at Canterbury University, Christchurch, NZ, and concerned the Holocaust in Germany. It contained discussion of matters which were referred to on the Adelaide Institute website, and its conclusions were consistent with the view that it was appropriate to reconsider much of the learning concerning the Holocaust. He had been awarded the degree on the basis of his research, but his thesis had been embargoed for a time.
61. I desire to tender the Hayward thesis.
62. It was my view that the thesis by Dr. Hayward substantially made out matters that I was putting in defence of the Adelaide Institute website: in itself it was evidence that the Holocaust was a legitimate subject of academic debate. The existence of such a debate, even if the Hayward thesis may have itself been poorly researched or have arrived at conclusions with which some Jewish people disagreed, was a matter of great importance. I determined that I would provide the Hayward thesis to the Public Inquiry which had been scheduled for 2nd November 1998 in Sydney.
63. On 27 October 1998 I provided Mr. Jones with a copy of the Hayward thesis.
64. On the 2nd November 1998 I attended the Inquiry. There is a transcript of the Inquiry. I was unrepresented. I produced and tendered the Hayward thesis.
65. Contrary to what I had been assured prior to the enquiry, I found that Mr. Jones had a lawyer representing him at the inquiry. I found myself out of my depth, and unable to continue, and I left.
66. I thereafter learned that Mr. Jones applied considerable pressure to Dr. Hayward in order to have Dr. Hayward recant his views. In fact, I maintain that the “pressure induced” recanting by Dr. Hayward [which I propose to deal with in detail] established that Mr. Jones had no respect for any notion of due process in the publicly conducted Inquiry.
67. I am unable – because of time - to deal with the circumstances of the Hayward matter in this affidavit.
68. I have been given to understand that the result of pressure applied by and through Mr. Jones to Dr. Hayward, Dr. Hayward – amongst other things – sent a letter direct to the Commissioner dealing with the Inquiry at HREOC.
69. I have sought to obtain a copy of the letter through HREOC: I have been informed that there was a letter received by the Commissioner from Dr. Hayward, but that it is “private”, and that I may not have a copy of it. I reject any suggestion that the letter was “private”. Its receipt, I maintain, demonstrates that I was completely denied due process. I maintain that the enquiry by the Commissioner who received the letter and did not affirmatively take steps to ensure that I received it and had an opportunity to consider it and take appropriate action, was unconstitutional.
70. The process of inquiry which had commenced in November 1998, did not conclude until 5th October 2000. It has become plain that one of the reasons that it took so long was that the Commissioner was minded – in circumstances which were never disclosed to me – to accommodate the attack on the Hayward thesis.
71. On 8 April 1999 I was imprisoned in Germany. My arrest and imprisonment there was the subject of considerable publicity, and it is inconceivable that it was not known to both Mr. Jones and HREOC Commissioner McEvoy. An example of the publicity was an ABC 7.30 Report on 20th April 1999, the transcript of which reads -
Australian historian faces German jail over Holocaust views
Now to the case of the Australian revisionist historian whose arrest in Germany has become an international test case for freedom of speech on the Internet.
Dr Fredrick Toben, who is the director of a group called the Adelaide Institute has been charged under a German law which prohibits defaming the memory of the dead.
German authorities allege Dr Toben has questioned the scale of the Holocaust and dismissed accounts detailing the use of gas chambers in Nazi concentration camps.
If found guilty he faces five years in jail.
72. I was released from prison in Germany on the 11th November 1999. On that date I was was found guilty in a German court of incitement of the people and insulting the memory of the dead. I was charged entirely on the basis of what had been published on the Adelaide Institute website. The court found that I had been spreading information via the Internet and sentenced me to ten months imprisonment and made other orders.
73. Both the prosecution and I appealed the sentence in Germany. My appeal was allowed, partly because I did not have a lawyer for the trial. The prosecution appeal was also allowed. The Appelate Court ordered a re-trial, which has not yet occurred.
74. As at the time of swearing this affidavit I am unable to complete my account of relevant matters.
75. I am advised that I should provide so much of my account as I am able to do, and accordingly I propose to swear this affidavit in its present form and to seek leave to supplement it with further material.
Sworn by Deponent
on the 27th day of April 2009 …………………………..
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