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• Australia's Racial Vilification Laws - audio Listen
  Tuesday 24 September 2002

 

 


Last week, the Federal Court ordered the Adelaide Institute remove material from its web-site - which denies the Nazi holocaust took place.

The court found the material likely to "offend, insult, humiliate or intimidate" the Jewish community.

A victory for Freedom from Racial Slander? Or a Defeat for Free Speech?

 

Details or Transcript:

Damien Carrick: Hello, and welcome.

Today on The Law Report, Australia’s racial vilification laws. Is freedom of speech ever negotiable? And is Fredrick Töben a racist monster or a free speech martyr.

Peter Wertheim: I think that Fredrick Töben makes a very poor candidate for a free speech martyr. First of all he’s not being dealt with because of the views that he’s propagating, he’s being dealt with because of the dissemination of racial hatred.

Fredrick Töben: Welcome to Gulag Australia, freedom of speech is dead.

June Factor: People like Töben need to be challenged and responded to and answered, but it’s pointless trying to shut him up.

Damien Carrick: Last week Justice Catherine Branson of the Federal Court ordered that Fredrick Töben remove material from his website, where he claimed the Nazi holocaust was a hoax. Justice Branson found that Töben’s website, known as the Adelaide Institute, contravened Federal anti-racial vilification laws. She found the material on the site was likely to offend, insult, humiliate or intimidate Jewish Australians, because it contained a number of imputations of racial slur, namely that -

1. There was serious doubt that the holocaust ever took place.
2. It was unlikely that there were gas chambers at Auschwitz.
3. Jewish people who are offended by and challenge holocaust denial are of limited intelligence. And –
4. Some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II.
It’s the first time the Racial Discrimination Act has been applied to the Internet, but it’s not the first time Fredrick Töben has fun foul of the courts. Some time ago he spent several months in a German jail for infringing that country’s laws on holocaust denial. But Fredrick Töben doesn’t see himself as a peddler of racial hatred, he claims he’s only interested in debating the facts, and he argues last week’s Federal Court ruling tramples on his freedom of speech.

Fredrick Töben: The problem is what is the holocaust? We have to define this quite specifically because by then developing the shut-up words, and you know the ones, one is that you’re called a hater, holocaust denier, anti-Semite, racist and neo-Nazi, you don’t get into the nitty gritty of what we’re actually saying. We’re just being labelled as haters, as deniers, as anti-Semites and so on.

Damien Carrick: Do you see this as a free speech issue?

Fredrick Töben: Welcome to Gulag Australia. If you look at our website that’s what I’ve written, and I’ve stated as well that freedom of speech is dead, net censorship, and we have deleted the material but we are up and running with the proviso of course that we can discuss the matter emanating from Justice Branson’s judgment, and there’s plenty of material in there for us to make sure that our free speech hasn’t died as yet.

Damien Carrick: So you’ll be changing the focus of your website towards an analysis of the issues unpicked or focused on in the judgment of Justice Branson?

Fredrick Töben: Certainly I think a right of reply is still valid here, despite the fact that an order is there which makes it a no-contest really, because I’ve got my hands tied, I’m not allowed to mention the holocaust, I’m not allowed to discuss whether there were gas chambers or not, and this restricts my free speech and I’ll adhere to that, I’ll do my best, because this is exactly what the Eastern European countries went through, what the Soviet Union inflicted upon its people, and that’s why you had the prisons, the gulags, full of dissenting opinions of individuals who just couldn’t cope.

Damien Carrick: Fredrick Töben.

Well six million Jews were murdered by the Nazis during World War II, and Australia’s Jewish community contains a high percentage of holocaust survivors and their families. Understandably, they find Töben’s groundless assertions profoundly offensive.

Peter Wertheim is the lawyer who acted for the Executive Council of Australian Jewry, the group who brought the action against Töben.

Peter Wertheim: The way the Internet works, as we all know, is that people often use it as a research tool. They go to any number of the more commonly used search engines, and if they’re looking for material say on Jewish history or on the holocaust, or material related to World War II, they were finding that if they were using any of these commonly used search engines, they were being led to this site on the Internet, because it was not a protected site. And they were finding that having embarked on an exercise of wanting to do some legitimate research, they’re being led to a website that just spews out racial hatred.

Damien Carrick: It’s interesting that you say ‘spews out racial hatred’; Fredrick Töben’s argument is that he’s trying to simply present evidence and engage in a debate about what history is and what the truth is.

Peter Wertheim: Well that was just one of many rationalisations that Fredrick Töben tried to put forward in the proceedings, and which was stripped away brutally in the judgement. The material isn’t just objective, academic material. If you actually look at the material you’ll see that it’s material that refers to the holocaust as a hoax, as a fraud, as an attempt by Jews to put one over the world, as it were, for financial gain or for other improper purposes, and it’s not just put in a dispassionate or academic context, it’s put in a polemical context, and the Judge was very quick to dismiss that argument as having no foundation.

Damien Carrick: Speaking more philosophically, is this the best way to counter objectionable opinions? Wouldn’t it be better to engage in open debate and let arguments and opinions be aired and analysed and fall where they might?

Peter Wertheim: Well that’s exactly what we did, in as fair and as reasonable a context as you could ask for: a court of law in Australia. We did engage in just such a debate, and we won.

Damien Carrick: You say that the courts are the ultimate forum or arena for deciding these kinds of things, but should in fact we be championing the courts as the ultimate open public venue for academic or ideological debate of this kind? Why have the courts as the ultimate arbiter, why not have the media and the wider public debate?

Peter Wertheim: First of all, I’m not suggesting that the court should be the arbiter of genuine academic controversy, I believe that those should be dealt with by academics and yes, in the media and by public discussion. But that’s not the animal that we’re dealing with here, we are dealing with something qualitatively different. This is not a genuine, bona fide academic pursuit, a free inquiry into some matter of genuine historical controversy or curiosity. This is an attempt to whitewash the crimes against humanity of the Nazis and thereby to vilify Jews by expressly and by implication masquerading as an academic inquiry, and it should not be taken at face value as what it’s masquerading itself to be.

Damien Carrick: But there is a risk, you must acknowledge that, in pursuing Fredrick Töben through the courts. You transform him into a free speech martyr, you give him a platform, you give him oxygen.

Peter Wertheim: I think that Fredrick Töben makes a very poor candidate for a free speech martyr. First of all he’s not being dealt with because of the views that he’s propagating, he’s being dealt with because of the dissemination of racial hatred that can be imputed from those views. And in a society like Australia’s where we have people from 140 different ethnic and religious backgrounds who live and work together on a daily basis, for the most part harmoniously, there has to be a balance struck between the dissemination of views, even ratbag views if you can call them that, and I guess the preservation of the social fabric and social harmony.

Damien Carrick: Couldn’t it be argued though that freedom of speech is one of the underlying values which allow all those communities to live together? You get rid of that and then that creates a dangerous precedent.

Peter Wertheim: Well nobody’s advocating that we get rid of freedom of speech, least of all our community. I mean freedom of speech is a sacred right, but it’s not an unlimited right like most other rights that we enjoy. I mean there are laws against defamation, we’ve had laws against defamation since time immemorial; there are laws against perjury, there are laws against shouting ‘Fire!’ in a crowded cinema. We’ve had those laws for a long, long time, and those laws have developed in response to social needs. We now have a society in Australia where as I said, we’ve got people of 140 different ethnic or religious backgrounds. It’s part of what makes Australia great, and yes, free speech is also part of what makes Australia great. It’s a question of balancing up those qualities to ensure that where the two collide, there can be a reasonable accommodation between the two.

Damien Carrick: What are the ultimate sanctions under the Racial Discrimination Act? For instance, if Töben chose to continue to leave his information on the net, he’d be in contempt of court. He could theoretically go to jail, couldn’t he?

Peter Wertheim: Theoretically that’s right. It would depend on what further action he took, or failed to take, and just how flagrant a violation of court orders it turned out to be. That’s assuming that he doesn’t comply with the court orders. I hope he does, I’ve no reason to assume that he won’t. But everybody is bound by the rule of law; when courts make orders, we’re all obliged to comply with them, subject to any right of appeal.

Damien Carrick: The court has found that his ideas are racial vilification, but even accepting that, is it appropriate for somebody to go to jail for expressing ideas which fall short of inciting racial violence?

Peter Wertheim: If Fredrick Töben goes to jail, it won’t be for inciting racial hatred, it will be for defying a court order, and as you know, as any lawyer listening to this knows, there’s an infinite variety of court orders that the courts can make. But subject to any right of appeal, they all have to be complied with. We’re all bound by the same laws and we’re all bound by the same rules, there’s no special exceptions for Fredrick Töben or anyone else.

Damien Carrick: This decision relates to publication on an Internet site. Justice Branson I think in the last page of her judgement says ‘Futility is a relevant factor to be taken into account when exercising a discretion to grant relief.’ But she does go on to grant that relief. The order is effectively, ultimately unenforceable, isn’t it? Fredrick Töben or anybody else can simply put that material up on a website based in another country.

Peter Wertheim: Well, if he does, he’s breached the order.

Damien Carrick: But presumably anybody else can pick up the gauntlet and run with it?

Peter Wertheim: Well it’s the same with any other sort of publication. If Töben’s material had been in the form of leaflets, and he was restrained from disseminating his leaflets, somebody else could go and print the leaflets and put out the same sort of information, but at least now we have a precedent to say that if material is put out by people living in Australia, whether on the world wide web or in some hard copy form, that carries the same imputations, then we can rely on the decision in the Töben case as a precedent to saying that it offends against the legislation, and it will carry the same consequences for other people who do the same thing.

Damien Carrick: Peter Wertheim, partner at Geoffrey Edwards and Co. in Sydney, and lawyer for the Executive Council of Australian Jewry.

Damien Carrick: Dr June Factor is a Senior Fellow at the Australia Centre at Melbourne University. She’s also a former President of the Victorian Council for Civil Liberties. Much of her family was murdered during the holocaust. However, she has strong views about the outcome of the Töben case.

June Factor: I think it’s an unfortunate decision and also probably a pointless one. Certainly anything that’s on the web is reproducible literally in seconds all over the world, and it will be. So the fact that you manage to get it off this particular website at this moment, probably only means that people are going to go searching for it. There’s that other aspect which always infuriates me, that people like Fredrick Töben whose views I regard as so far from mine it’s almost hardly to be a spectrum on which we can both fit, and yet he is now going to declare himself no doubt a victim of censorship, and suddenly an exponent of free speech. I think that’s revolting. Who needs martyrs like this?

Damien Carrick: So he can take on the mantle of a free speech martyr?

June Factor: Well I’m sure that he’s already practising to do this before his mirror.

Damien Carrick: What do you say though to the argument that this material would insult, offend, humiliate or intimidate? It is very much in contravention of Section 18 of the Racial Discrimination Act.

June Factor: If you want a free society, you have to be able to tolerate the differences of view. Now undoubtedly sometimes what people say, whether it be true or false, will hurt the feelings, will offend others. I don’t think that’s an adequate reason for preventing people from saying it, and I think there was an American judge of the American Supreme Court who once said that the best antiseptic is sunlight, and I think that’s absolutely right in the area of argument as well. I want to be able to challenge these views, I don’t want them suppressed, sent underground, become surreptitious, allow the purveyors of these views to, as we were saying before, become martyrs, and attract a whole lot of people to their cause because of their sense of being intimidated and oppressed. That’s not I think the way a free society works, either if you like in terms of its philosophy, nor indeed in terms of good practice.

Damien Carrick: What do you see as the risks of removing this kind of material from the public debate?

June Factor: The truth is, it won’t be removed from the public debate. It will still be there, it will now unfortunately have this halo around it, or rather the person who – who had heard of Fredrick Töben until this broke out? I mean he was an unknown person. Now anybody, all sorts of people will start to look him up on the web and find out about him and correspond with him. So I don’t think it will be removed, and the point I was making earlier, it’s not even practical.

Damien Carrick: As a Jewish person who comes from a family which was destroyed during the holocaust, you must understand though the hurt and pain that this kind of information can do to people who come across it.

June Factor: Of course. There’s no question of that. But it seems to me that one of the lessons from history is that it is tremendously important for people to try to ensure that the society in which they live is open to dissent, including views which they find deeply offensive or plain stupid and ridiculous. I also abhor passivity, I think it’s terribly dangerous for people to turn their heads away and say ‘It’s nothing to do with me’. I think it has to do with us all, and people like Toben need to be challenged and his nonsensical, ahistorical views have to be responded to and answered, but it’s pointless trying to shut him up.

Damien Carrick: June Factor, Melbourne University Academic and a former President of the Victorian Council for Civil Liberties.

The Töben decision comes hot on the heels of Jones and Scully, another Federal Court case where the Executive Council of Australian Jewry successfully obtained an enforcement order. Olga Scully became notorious for letterboxing the residents of Launceston with a range of highly racist leaflets. Lawyer Peter Wertheim again.

Peter Wertheim: There was a diffuse range of material but a lot of it had to do with the alleged so-called Jewish conspiracy that was behind all the real and imagined wrongs of the world. She quoted from the Protocols of the Elders of Zion which is a document that’s been proven in various courts of law over the decades to have been a forgery, to try to substantiate her theory that there’s a world Jewish conspiracy. She misrepresented the Jewish religion, the Jewish Talmud by saying that it authorised sexual acts with three-year-old girls, all of that sort of stuff. It was really stomach-churning stuff for anyone who has any sensitivity against racism.

Damien Carrick: Peter Wertheim, partner at Geoffrey Edward and Co. in Sydney.

But according to Kath Gelber, a lecturer in politics at the University of New South Wales, it isn’t just the overtly bigoted material like Olga Scully’s leaflets which can harm minorities. Gelber has just published a book titled Speaking Back: The Free Speech versus the Hate Speech Debate. Her primary focus is on minimising any harm caused by racial slander. She feels anti-vilification legislation is a blunt instrument, and lots of harmful material falls well short of the legal tests in the legislation.

Kath Gelber: When people make outlandish and fanatical type comments, they’re actually very unlikely to change people’s minds, they’re more likely to lead people to think Oh, that person’s just a little bit off the wall, and I don’t agree with that at all, that’s too extreme for me. But when ideas are presented in much more moderate form, or moderate tone, then the message can be more powerful. By dressing it up as pseudo science, which is what Fredrick Töben does, you dress it up as though there’s evidence to support your argument, you dress it up as though you’re a rational human being who’s simply presenting the evidence to the public, and yes, that can be much, much more insidious, and much more dangerous than the rabid fanatical stuff. And in a way, existing anti vilification laws are completely unable to respond to the much more moderate, well in this case has responded to Töben’s message, so I’m not referring specifically to the Töben case here, but as a general rule, anti vilification laws require a relatively high threshhold and therefore do leave much very moderate racism or moderate vilification if you like, inactionable because it doesn’t pass the hatred threshhold, and I think that’s not so much a flaw, but a gap and I’d like that gap to be filled by alternative policy approaches.

Damien Carrick: Kath Gelber, lecturer in politics at the University of New South Wales. And the policy approaches she advocates include providing information which counters wrong assertions, and developing strategies to allow targeted groups to be heard.

Damien Carrick: Associate Professor Luke McNamara teaches law at the University of Wollongong. He’s the author of a new took titled, ‘Regulating Racism: Racial vilification laws in Australia’. McNamara supports anti-racial vilification laws, laws which exist at both the Federal level and also in many States. He doesn’t think the Töben decision undermines freedom of expression, but he does acknowledge the circumstances are unusual.

Luke McNamara: Certainly the profile and the nature of this case was atypical in some respects. There were two main things that made it distinctive: one was the fact that the medium which the person had used in this case to communicate racist messages was the Internet, and so that attracted some attention. There had not been complaints previously that were based on conduct of that sort. The other distinctive feature I guess is that unlike the majority of matters that come before courts or commissions for this sort of thing, this was, I guess if you like, an organised racist organisation, whereas the majority of complaints are not associated with someone whose life’s work is devoted to this sort of thing, but where they make comments of an arguably racist nature in the context of media reporting and that sort of thing.

Damien Carrick: What do you say to the argument that freedom of speech is non-negotiable and the best way to counter objectionable opinions is by engaging in an open debate, letting arguments and opinions be aired and analysed.

Luke McNamara: I guess the first thing about the idea of free speech being non-negotiable or absolute is that all evidence that we have, both formal legal evidence and empirical evidence flies in the face of that. It’s pretty clear that certainly that’s never been the case in Australia in the last 200-odd years since the establishment of a common law based system. There have always been various forms of restriction, and what seems to attract particular attention in this context is the fact that restrictions are being imposed for the purpose of pursuing objectives of the quality and non-discrimination and anti-racism, whereas similar restrictions are imposed for other reasons, in other context, including defamation for example, in a way which is not, although sometimes controversial, is not routinely challenged for its fundamental validity.

Damien Carrick: Isn’t the problem with this kind of provision which is effectively a form of censorship, a compromise of free speech, is that by doing so you open up in people’s minds that something is being suppressed, something which may have some kind of value is being taken out of the public domain?

Luke McNamara: I think the experience that we’ve had over the last decade or so, the first racial vilification laws were passed in 1989 in New South Wales, so we’ve had just over a decade of experience, still relatively short. I think one would be hard pressed to establish that during that period there has been any significant tendency on the part of public commentators to clam up and to not express their views. Now anyone who’s been in Sydney in recent times would have heard, would have seen a whole range of views expressed on questions of race, and to put it frankly, they would have been exposed to what I regard as some quite racist views expressed in mainstream media. Now if the argument was found that the existence of these laws have a substantial stifling effect on the expression of views about possible links between crime and ethnicity, then we would not have seen those comments. The fact is, we have, and so I don’t think the existence of racial vilification laws necessarily stifles content. But having said that, at the end of the day what these laws are about is setting some guidance, setting some benchmarks for what are acceptable forms of communication, and in a society that is said to embody certain principles to do with equality and civility and respect for individuals, then I don’t see that as unreasonable to use legislation to set those benchmarks or guidelines.

Damien Carrick: But doesn’t censorship simply put racism under the carpet? It doesn’t go away, it just simply is there festering in the background, and the open debate which might actually lead to some kind of fundamental shift in opinion by people, doesn’t take place.

Luke McNamara: It’s often said that these laws won’t prevent racism, or just push racism underground. Well my immediate response is often That’s probably the best place for it to be, in the sense that it’s least likely to cause harm. Now the distinction here I guess is one between aiming to reduce the harm associated with racism, that is, to reduce the likelihood that individuals will experience discrimination or violence or exclusion on the basis of their racial or ethnic identity, and on the other hand, hoping to change people’s attitudes or beliefs about race and racism. The latter is an enormously difficult thing to do, and I would be the first person to say there are significant limitations on the capacity of legislation to achieve that. But I think if it can be established that laws have a role to play in reducing the level of harm associated with expressions of racism, then they are serving a useful purpose, irrespective or whether or not we can see a connection between those laws and ultimately changing broader social attitudes, because there will be other forces set alongside these laws I hope will contribute to the change in our social attitude.

Damien Carrick: Is the Töben and Jones decision an isolated one, or have there been previous instances where the courts or the tribunals have ordered that certain kind of publications or pronouncements be stopped in the future?

Luke McNamara: Certainly this particular case is just the most recent in a line of cases that have been decided over the past ten years or so. In New South Wales, in fact the very first decision in which conduct was considered to constitute unlawful racial vilification, was a case in which a member of the Wagga Wagga City Council, Jim Eldridge, made various comments back in 1993 including comments that the local launch of the United Nations International Year for the World’s Indigenous Peoples, and this was in a context, if you recall, of post the High Court’s decision in Mabo, where there was a lot of debate, indeed a lot of racist commentary associated with issues of indigenous land rights and Native Title. And in that sort of political context, Eldridge made a number of comments at various public gatherings, making references to indigenous people as half-caste radicals, and as savages, and those comments amongst others, were the subject of a complaint to the Anti Discrimination Board, the matter was referred to the then Equal Opportunity Tribunal for determination, and the tribunal concluded that in fact this conduct was unlawful racial vilification and Eldridge was ordered to refrain from repeating or continuing the conduct, and was ordered to make an apology in local newspapers and was ordered to pay $3,000 damages to the complainant. There have been other instances both in New South Wales and at the Commonwealth level. At the Commonwealth level there have been examples of comments made in the context of media interviews. In one of the cases decided by the Human Rights Commission, David Oldfield from the then One Nation party, of his association then was with the One Nation party, made various comments suggesting that home invasions were ethnically based, Lebanese or Iranian, not Australian were the words that he used, and this comment was reported in a subsequent article. A complaint was lodged with the Human Rights Commission and a public inquiry by the Commission resulted in a conclusion that the conduct was indeed unlawful. And amongst other things, Oldfield was ordered to pay $1,000 in damages. So they’re two examples of public comments that have resulted in findings of unlawful vilification. One interesting case is the case of a complaint that was lodged by a member of the Palestinian community some years ago in response to an article that was published in The Australian Financial Review, and the article was of an opinion editorial nature and the journalist involved, Peter Switzer, made various concluding observations that the Palestinians could not be trusted in the peace process, and that the Palestinians remain vicious thugs, etc. And that matter was again complained to the Anti Discrimination Board and the matter was referred for decision by the Administrative Decisions Tribunal and the Tribunal ruled that in fact that conduct was unlawful under the Racial Vilification provisions of the Act. And that case has been controversial, because some people have wondered whether or not in a context of ongoing debate involving multiple parties about a certain issue like for example the peace process, whether or not these laws have a place. But the view that the Tribunal took which I think is a reasonable view, is that one of the objectives of this legislation is to set some standards for how public discourse is supposed to operate in a way which does not rely on racism in order to make points, and so it wasn’t as if the Tribunal was saying there can’t be comments about the issue of the peace process and the role played by both sides of that process, but that the nature of the comments needs to be consistent with the principles of non-discrimination and anti-racism embodied in our legislation.

Damien Carrick: Associate Professor, Luke McNamara, who teaches law at the University of Wollongong, with the final word there on our look at racial vilification laws.

Thanks to producer Michael Shirrefs, and to technical producer this week, Russell Thompson.

Guests on this program:

Associate Professor Luke McNamara
University of Woolongong Law School

Dr June Factor
Senior Fellow, the Australian Centre, Melbourne University

Peter Wertheim
Partner, Geoffrey Edwards & Co

Fredrick Töben
Adelaide Institute

Dr Kath Gelber
University of NSW, Lecturer in Politics

Presenter:
Damien Carrick

Producer:
Michael Shirrefs

back to The Law Report homepage


 

And now Fredrick Töben's brief  Right-of-Reply 

 thanks to those who made the Internet possible!

 

 

1. Peter Wertheim's comment:  I like Peter's family name, a good German name. We must remember that the Jewish mind is only as good as the education system of the host nation in which the Jew resides.

I have been criticised for supporting the Torah True Jews, whom I consider to be honourable because they attempt to live by some principle — it is more than those offer who cynically believe in nothing. 

Yet, I follow the Categorical Imperative, the German philosopher Immanuel Kant's attempt at making sense of the world. 

I also personally pose Kant's four questions: 

1.What can I know?  — considered by theories of knowledge.

2. What can I do — considered by ethical/moral disciplines.

3. What can I believe? — considered by religious studies.

4. What is man? — considered by anthropology.

Answering these four question is a life-time's work.

The Jewish-Bolshevik-Marxists had a free reign eliminating religious sentiments within human nature - and failed. This teaches us something about human endeavours.

Doubt is a pre-requisite to intellectual activity. Justice Branson has outlawed doubt, especially on matters of Holocaust homicidal gas chambers. I am not permitted to comment any further on this matter - for fear of being in contempt of court; more like for fear of the Jews!

Justice Branson states that I diminished the intelligence of those who oppose Holocaust deniers. I would be more precise: individuals are either ignorant of the facts, or they are lying.

The Federal Court judge is thus upholding a religious dogma: 1. don't doubt the six million death figure, and 2. don't ask for proof that the homicidal gas chambers existed.

Peter Wertheim's comment on the Talmud's content is misleading, and he knows it. Offensive passages need to be excised from this Jewish 'Holy Book' because it is offensive to many Christians and Moslems.

The political Zionists are at work persuading Australian law enforcers to act against us. The pattern of attack is pre-determined and will follow the pattern set by Canada and that operating in various European countries. It remains to be seen whether it will become a part of Australia's political landscape.

 

 

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