Töben, Scully: the legal system works

By Peter Wertheim, a partner in Geoffrey Edwards & Co, was Mr Jones' solicitor in both matters. He is also immediate past president of the NSW Jewish Board of Deputies

The Australian Jewish News, 20 September 2002

[With interspersed comments from FT]

A well-loved Jewish joke defines someone who hates Jews more than absolutely necessary.

Of all the persecuted minorities in the world, the Jewish people have retained a unique capacity to laugh at themselves, as well as others. Gentle, mocking humour which makes use of racial and other sterotypes has always been part of everyday social discourse.

Having to listen to someone else give vent to their darkest prejudices in the course of a private conversation is unpleasant. 

[FT: Why did you not openly state your displeasure, rather than sit there?]  

But the same sentiments expressed in public can rip the delicate fabric of Australian society, in which people from scores of ethnic backgrounds live and work together, for the most part harmoniously.

[FT: With the exception of those who were on the Axis side during World War Two, who have to endure the 'war criminal' slur and suffer the 'Holocaust' slur without defending themselves against such unjust and highly offensive statements and behaviour, in this case also based on German racial hatred.]

It was for that reason that the Racial Discrimination Act was amended in 1995 to include provisions prohibiting offensive behaviour, in public, based on racial hatred.

The behaviour must be offensive in an objective sense, not merely on the say-so of the complainant. The legislation  also exempts certain categories of speech and behaviour if they are done "reasonably and in good faith" and are "for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest".

Although numerous complaints of racial hatred have been lodged with the Human Rights and Equal Opportunity Commission (HREOC) since the amendment was passed, only two complaints have been successfully litigated before the Federal Court.

In Jones v Scully and Jones v Töben, Jeremy Jones, current president of the Executive Council of Australian Jewry, complained that Olga Scully and Fredrick Töben contravened the legislation by disseminating grossly antisemitic material to the public. Scully's material took the form of leaflets which she letterboxed and tried to sell at a market. Töben's material was placed on his internet website. Neither Scully and Töben disputed that they  had disseminated the material.

 The leaflets and the website contained the standard antisemitic canards denying  that millions of Jews had perished in the Holocaust and blaming most of the world's economic and social problems on a global "Jewish conspiracy".

[FT: Such generalities are difficult to refute, except we have always gone to great pains to point out, 'Don't blame the Jews, blame those that bend to their pressure'. Even the current push for a US war with Iraq rests on Israel's shoulders — but not only. There are other forces interested in a war in the Middle East, the most likely contender is the faltering US economy.]

Both Jewish and no-Jewish people complained that they had been offended by the material.

[FT: A robust democracy must of necessity incorporate such 'offence', so long as it is done in a civilised way.]

Both Mr Jones' complaints had previously been upheld by the HREOC, but the HREOC's decisions did not have the same legal force as a court order and were ignored by both Scully and Töben.

Mr Jones commenced separate enforcement proceedings against each of them in the Federal Court. The Scully case was heard by Justice Peter Hely and the Töben case came before Justice Catherine Branson.

Like the HREOC, both judges found much of the material to be in breach of the legislation. In the two judgments, all the rationalisations put forward by Scully and Töben in their attempts to defend their actions are stripped away.

[FT: When HREOC's commissioner McEvoy rejected most of my 25-odd witness statements, I realised that the whole matter had a pre-determined outcome. I submitted a defence, but it was not properly drawn up, and I failed to find any legal person willing to assist.  So Wertheim's not quite being honest here. See below how Professor Arthur Butz summed it up.]

They each contended that they did not intend to defame Jews generally, but neither judge accepted this. An analysis of the offending  material left  no doubt that it attacked Jews as a group.

They also tried to argue that the offending material was permissible because it merely discussed matters of genuine public interest, but that argument was rejected.

[More shame on the judges because anyone aware of the issues canvassed in court, realizes that on a daily basis we get 'holocausted' by the media mercilessly pumping out material — always the same 'Holocaust' theme. It is of public interest to correct this imbalance of what is pushed into society through the media and education systems.]

Justice Hely's devastating conclusion after an exhaustive analysis of one of Mrs Scully's leaflets was that: "The publication was not made for any genuine purpose in the public interest, but as a result of the respondent's anti-Jewish prejudices."

[FT:It's only a person's judgment, but Mrs Scully certainly felt she was fulfilling an educative role by distributing material that corrected "the lies they are telling our children".]

Scully and Töben both sought to attack the law itself, arguing that the legislation violates the constitutional right to freedom of political debate. That argument also failed. Justice Hely concluded that the legislative provisions "provide an appropriate balance between the legitimate end of eliminating racial discrimination and the requirement of freedom of communication about government and political matters required by the constitution."

[FT:I still disagree with what Justice Hely enacted on this point.]

Scully and Töben both complained that the legislation makes no provision for "truth" as a defence, and suggested that there is therefore something sinister about the legislation. In fact, the opposite is true.

[FT: Not so because elsewhere we have an article where the matter is called 'Lying by legislation'; and the Zionist push to get this through parliament is public knowledge. That the legislation is also following a world pattern, is obvious. Canada, Germany, et al, have similar legislation, primarily to stop 'racial hatred' but actually specifically to eliminate open debate on the 'Holocaust', something that is now against the law. So much for democracy.]

If Scully and Töben had been required to prove the truth of their views concerning events that took place decades or centuries ago, they would have been faced with an almost impossible evidentiary burden.

[FT: Here Wertheim is not telling the truth. It is for Jones to prove the allegations he levels against the Germans, and what they are supposed to have done to European Jewry. To date no court in the world has actually accepted forensic evidence that may have supported the Jones view of history. All attempts are designed to place the 'Holocaust' topic off-limits on account of it being 'hate-race-antisemitic' speech, something that is an absurd notion. What does Jones fear?]

In fact, Justice Hely found that "the respondent has not established the truth of any of the imputations.

[FT: I state elsewhere how Mrs Scully was not given the opportunity to address the court on this matter while she sat in the witness box.]

To make out a valid defence Scully and Töben only had to satisfy the court that their dissemination of the offending material was done "reasonably and in good faith" and for a "genuine purpose in the public interest". These requirements are far less stringent than having to prove the "truth" of their material.

[FT: Wetheim is waffling here. The pressure placed on Mrs Scully and myself in this matter is considerable. Imagine the pressure that academics, politicians, et al, are under to toe the 'Holocaust' dogma line!]

In the Töben case a practical issue arose about the possible futility of any orders the court might make, given the ease with which others could publish similar material on the internet.

[FT: One order from HREOC was even rejected by the court, the request for a written apology. Most individuals capitulate to Jewish-Zionist power, and sign an apology. Mrs Scully and I refused because it is not our intention to hurt individuals, but merely to correct a perverted view of history.] 

After hearing submissions from Mr Jones' counsel, Stephen Rothman SC, Justice Branson decided  that this was not a sufficiently strong reason to decline to make orders against Töben.

[FT: The fact that I could not get legal representation, enabled Justice Branson to hand down a 'summary judgment', without a contest. And this is a precedent case! That's bad law.]

She cited with approval a Canadian decision which referred to the symbolic and educative value of having on record a court decision which publicly denounces the offending material.

[FT: And it also gives anyone the freedom to continue to libel individuals of German descent with a most horrible accusation that has never been tested in open court.]

Justice Branson's decision also creates a significant precedent by establishing that Holocaust denial and similar public expressions of antisemitism offend against the legislation.

[FT: Imagine, an important part of our history is now merely labelled 'antisemitism' and placed off-limits by a court decision. Gulag Australia is alive and kicking. This is exactly what the Soviet Union and other eastern European countries did with their state-dictated historical views. We are entering a new era, where Zionist Jews can deflect critical comments by crying out 'antisemitism'. That is bad for our moral and intellectual integrity.]     

The approach taken by both judges was similar to that of a defamation trial. Proving unlawful racial hatred is not easy and should not be undertaken lightly. it has taken six years for Mr Jones to obtain these decisions and the cases were as arduous and exacting as any defamation proceedings.

[FT: What nonsense this prattle from Wertheim is. See Professor Butz's comments elsewhere, where he indicates that nothing has to be proven, except that the material may hurt someone's feelings. And on that basis all Revisionists are guilty because our work will upset and offend. Anyone who has believed in something for many years, then is informed that his information is factually wrong, will usually blame the messenger. See Terry Lane's article on this point.]

Apart from their intrinsic jurisprudential value, the judgments in Jones v Scully and Jones v Töben have a nwider  significance at a watershed moment in Australia's social history.

[FT: Indeed. It gives Jews a special status on account of their 'racial' status. But being a 'Jew' is a religious category, and it has nothing to do with 'race'. Similarly, being a Moslem or a Christian cannot be reduced to a racist category. Such intellectual work is sloppy and colloquially it's pulling a swifty.]

After taking a battering in the last few years, Australia's reputation as a tolerant and fair-minded society has been reaffirmed.

[FT: And it's open season on Germans and Australians of German descent, legally sanctioned. Both Judges have re-affirmed the racist laws enacted by Hitler's Nazis in 1935, which defined 'Jews' as a race. And Australia has become a racist country.]

Other minority groups in Australia, less well established than the Jewish community, can also take heart from these decisions. The legislation has been tested and it works.

[FT: Only for the Jews who wish to place off-limits the 'Holocaust' upon whose foundation the state of Israel rests.]

Scully and Töben have been ordered to stop disseminating their material and they were also ordered to pay Mr Jones' legal costs. If they continue their activities, directly or by proxy, they risk being dealt with for contempt of court. Both decisions demonstrate that the law can be used effectively to protect members of minority groups from poisonous campaigns of racial hatred that impinge upon their daily lives and the full enjoyment of their rights and freedoms under law.

[FT: "poisonous campaign of racial hatred" is indeed what Jones and his 'Holocaust promoters indulge in. On a daily basis Australia's media pumps 'Holocaust' material into the community. That is an evil because it distorts the factual record of what happened during the Second World War. This period of history has become a caricature, summed up in the following:  'Hitler hated the Jews so much he killed them all'.]

 

 

Fredrick Töben comments

Open Season on Germans!

 

The Internet censorship argument needs to address the matter of 'push-pull' technology. We are not pushing this material into Wertheim's home. If he comes across our material, and he finds it offensive, then it is his freedom to either accept or reject the material —at the click of a button!

But the control freak, the intolerant an bigoted who cannot tolerate another poin-of-view, needs to be in control of the information flow. There is nothing more hateful for the victim-slave mindset, then to find someone who is chearful.

Recently I met a bus driver who was cheerful and bubbly, and I complimented him for having an attitude. I suggested that perhaps some passengers would not like his cheerfulness — too intrusive for those who have a slave/victim mentality. He advised me that some passengers did indeed object to his manners — and twice the police have already pulled him over and tested him for alcohol content! 

Being self-referential in all matters does seem to define the paranoid mindset of those who wish to claim victim status without accepting personal responsibility for their own behaviour. The rights and freedoms of those who oppose the legally sanctioned 'Holocaust' dogma are now thrown out the window. Now it is possible for anyone to libel and hurt Germans and Australians of German descent with the legally-sanctioned 'Holocaust' story. Since 24 September 2002, anyone who disputes the details of that horrific story is now legally gagged, and the likes of Jones may with impunity repeat the terrible libel, without fearing a challenge of any kind. 

That's not good for our social fabric in Australia.

As to the matter of Jewish humour, Kingsley Amis once wrote:

 

"Jewish jokes are not funny. They are not even jokes, but potted observations about Jewishness given anecdotal form and a punch line. The response is laughter, though not the sort of laughter that greets the ordinary (usually obscene) male-company story: it is ambiguous, it conceals, or fails to conceal, a ruefulness, a reflectiveness, a sense of resignation. How true that is, we are meant to feel, how wry, how inescapable, how Jewish. Cohen at the travel agency rejects ex-pro-Nazi Italy and Spain, not to speak of Germany and Austria, for his vacation trip; the busy clerk leaves him thoughtfully spinning a globe; when the clerk returns, Cohen says: 'Maybe you got another globe?' That is the basic Jewish joke; hardly a joke at all."