“It
would be best if you do not give any one the details of I (sic)
have been ordered to cease distributing. It is best if others
remain ignorant and can continue doing their bit in ignorance.
“I
will not even tell you what is in the leaflets mentioned above. I
doubt if you have ever seen my leaflets, Fredrick, so you, too, do
not know what is ‘prohibited’.”
But
Federal Citizenship and Multicultural Minister Gary Hardgrave
hopes Ms Scully will abide by the ruling. These publications were
insulting not just to the Jewish community, but to the Australian
community in general, the told the Australian Jewish News
this week.
Mr
Hardgrave said he hoped Ms Scully would respect both the Federal
Court’s order to stop distributing of (sic) selling
anti-Jewish publications and the Human Rights and Equal
Opportunity Commission’s ruling two years ago that she had
breached the Racial Discrimination Act.
The
Federal Court’s decision was a very good demonstration of the
importance and effectiveness of Australia’s law against
racial discrimination, he said.
“Most
people are reasonable and they cease and desist. Ms Scully took an
extreme approach and has been ordered by the court to stop
distributing stuff that is un-Australian and offensive. I believe
[the court’s decision] will make the next person who
takes this approach think otherwise.”
Tassie
trial and tribulations
A
six-year legal battle ended last week when a Federal Court judge
ruled against Holocaust revisionist Olga Scully. Allon Lee talks
to the three Tasmanians who took her to trial.
The
Australian Jewish News,
13 September 2002
Six
years is a long time to wait for justice, but for three Holocaust
survivors it has been well worth it. Through human rights
tribunals and grueling Court cross-examinations, Tom Schlesinger,
73, Dr Felix Goldschmied, 64, and George Goldstein, 60, never lost
hope of the rightness of their cause.
Last
week’s Federal Court judgment ordering Tasmanian Olga Scully,
59, to cease selling and distributing anti-Jewish material has
been welcomed by the three Tasmanian witnesses who gave evidence.
Mr
Schlesinger, the unofficial Tasmanian community spokesperson,
praised the landmark ruling because “a precedent has been
set”.
Mr
Goldschmied, whose father was interred in Theresienstadt and
managed to hide with his mother and brother, said the verdict
would aid other ethnic communities. “This is the same
propaganda that we had to put up with in Europe. That’s why I
am pleased.”
Mr
Goldsteen, whose father died in Mauthausen, survived the Holocaust
with his mother by hiding with non-Jewish relatives.
He
is satisfied that Justice Hely understands the hurt Ms Scully had
caused. “The fact that she cannot even sell her material is
significant. This has implications for a lot of racist
publications on the mainland.”
Mr
Schlesinger, whose father was killed in Latvia, first learnt of Ms
Scully’s activities in 1995 when non-Jews informed him that
she was selling and distributing anti-Jewish literature at a
market in Launceston. He contacted the manager of the market, a
man of Chinese descent, who said he would be pleased to see her
leave because he too felt offended.
“We
couldn’t evict her because the man who rented her the stall
refused and he rented the building from the council. If we had not
won I would have had to picket her stall,” Mr Schlesinger
said.
Mr
Goldschmied’s friends and workplace were targets of Ms
Scully’s letterbox campaigns. “I had World War II
veterans coming to me and telling me that they had been to the
camps and what she had said were lies.”
Mr
Schlesinger then informed Executive Council of Australian Jewry
(ECAJ) president Jeremy Jones, who took up the case while Mr
Goldschmied collected the incriminating material.
None
of the witnesses were able to prepare for the cross-examination by
Ms Scully, who represented herself, because they did not know what
she would ask.
Ms
Scully asked Mr Goldschmied how he knew his family members were
dead. “I answered that since I had not heard from them since
1945 I presumed they were not alive.”
Mr
Schlesinger was satisfied when the ECAJ’s barrister, Stephen
Rothman, cross-examined Ms Scully about the existence of gas
chambers at Auschwitz and her ignorance was shown up.
“I
felt better knowing that she had been proven to be a liar and not
merely ignorant,” he said.
All
three were heartened by the letters and phone calls of
encouragement from non-Jewish neighbours.
“I
was wished success when I walked down the street. About 100 people
have contacted me over the years,” Mr Goldsteen said.
But
none of them believe Ms Scully will cease her activities.
“She
has clearly indicated she won’t stop and I think she will end
up before the courts again. No-one wants to be vindictive, but we
have to consider the hurt we feel,” Mr Schlesinger said.
Mr
Goldsteen added: “We don’t want an apology or
compensation, we just want her to stop.”
Fredrick
Töben comments
1.
Throughout the proceedings an apology from Mrs Scully was always
on the table, and insisted upon by Mr Jeremy Jones before the
HREOC and the Federal Court:
i.
The HREOC finding demanded that Mrs Scully sign a written apology,
something she refused to do.
ii.
Justice Hely did not order Mrs Scully sign any written apology:
“During the course of submissions I suggested to the
applicant’s counsel that prima facie, the idea of ordering
someone to make an apology is a contradiction in terms. Mr Rothman
accepted this. Although an apology has been ordered in proceedings
of this type in the past (see, for example, Oberoi v HREOC
[2002] FMCA 34), I do not think that an order that the
respondent publish an apology is appropriate in these proceedings.
Nor do I consider that ordering the publication of a retraction is
appropriate. In my opinion, a retraction is only appropriate where
it has been established by an applicant that what has been
published or disseminated by a respondent is false. The present
proceedings were not concerned with the truth or falsity of what
was distributed by the respondent; rather, it was concerned with
whether her leaflets were reasonably likely to offend, insult,
humiliate or intimidate Jews in Australia. Although I appreciate
that the truth or falsity of what is contended in the
respondent’s leaflets is relevant to this question, as I have
explained above at [104] - The fact, if it be a
fact, that assertions made in the leaflets may be wrong or
inaccurate does not of itself establish a contravention of s
18C:Creek at [6]. A true statement, or one which might be
shown in some way to be true, does not mean that the statement is
incapable of being offensive: Patrick v Cobain [1993] 1 VR
290 at 294.] - the fact that false assertions are made in a
leaflet does not of itself establish a contravention of s 18C. In
addition, the applicant’s case was that it was the
imputations that arose from the leaflets that were said to cause
the requisite offence rather than the leaflets themselves. In
those circumstances, it has not been necessary for me to determine
whether what is said in the respondent’s leaflets is in fact
true or false. In those circumstances, a retraction is not
appropriate.”
2.
This is a very bad judgment - because the Racial Discrimination
Act is bad law! Justice Hely did the possible within the
impossible legal constraints placed on him.
i.
Mr Jones and his witnesses did not have to prove their hurt
feelings. It was enough for them to verbally express this hurt in
court. Usually in damages cases some kind of expert medical report
- in this case a psychiatric report at the least - is needed to
prove damage done to the minds of those who allege to have been
hurt by viewing written material.
The
fact that this was not required indicates this trial was a
political show-trial. It is indicative of what lies ahead for all
Australians, especially because Jeremy Jones gloated over the
judgment.
ii.
Professor Arthur Butz pointed out the flawed nature of the
legislation in a letter dated 5 November 1997 when, after I asked
him to be a witness for my defence, he wrote to me: "Alas I must
say that you are arguably guilty of some of the charges. I looked
over Jeremy Jones' stuff and I infer that the 'Radial
Discrimination Act' proscribes what might 'offend, insult,
humiliate or intimidate another person or group of people.' Well,
revisionism certainly does the first three! It does not however
'intimidate'; at least, I have never noticed such a case ...
Heated controversy is a price of open debate, the foundation of a
rational society."
Butz
continues his reflections in his Foreword to my book, Where
Truth Is No Defence, I Want To Break Free:
"Jeremy
Jones was the representative of the Jewish organisation that has
brought charges against Töben. I commented on Jones' letter
by declaring Töben guilty. Some defence witness!
Far
from acting betrayed by me, Töben submitted the letter to the
HREOC. I believe that he was starting to see my real reason for my
reluctance to get involved as a defence witness. Such matters as I
had expertise in were irrelevant to the proceedings, which related
not to historical truth, but to offending, insulting etc. For the
most part I could not understand the notion of culpability as used
in the proceedings, but to the extent that I could understand,
Töben was guilty. I am at least as guilty, as are many of my
revisionist friends. The situation was structured such that
nothing I could have said would have helped attain a favourable
verdict, as became clear to Töben shortly
later."
3.
Mr Schlesinger says that during cross-examination Mrs Scully's
ignorance about the existence of gas chambers at Auschwitz was
shown up: "I feel better knowing that she had been proven to be a
liar and not merely ignorant," he said.
Silly
and misguided Mr Schlesinger. It is not a matter of feeling
'better because the truth may be quite hurtful to those who have
never matured beyond the victim status mentality.
Mr
Schlesinger now is the one who is either ignorant of the facts, or
he is lying! Surely a survivor and activist would know how Krema I
and Krema II have been 'decommissioned' as homicidal gas chambers,
and moved to those two silly farm houses outside of the
Auschwitz-Birkenau concentration camp complex.
It
is of interest that the action against Mrs Scully began shortly
after her much-respected school principal husband died. She had
then been doing her literature distribution for about 25 years.
Even as a secondary teacher she was disturbed by what kind of
terrible material students were fed in literature and history
classes. It offended against her Christian upbringing - and she
made a valiant stand against that. She did not, like most
teachers, just go along with it. Now as a widow and grandmother,
Mrs Scully is even more determined to do her bit, so that no-one
can accuse her of having remained silent at a time when the
closing of our young minds is well under way. Mrs Scully has done
her bit - olgascully@yahoo.com.au
4.
One final word about bad law. As citizens we all have moral,
social and legal duties to perform - our law commands this of us.
It is thus axiomatic that if truth cannot protect us from
prosecution, then lies will flourish in courts of law - the
theatre of the absurd opens its doors!
Where
ever lies flourish, trust is lost, and relationships break down,
and the control freaks have a field day! That's where ideological
terrorism and enslavement begins - with fear in the forefront
paving the way to mental and physical enslavement. In our case it
is in the form of the 'Holocaust' lie. Women feel this
'danger' at the earliest through non-verbal signals. That is why
Mrs Scully is to be celebrated as a genuine freedom fighter who
scoffs at the mind-enslaving tactics employed by Mr Jeremy Jones,
et al. When the murderous Jewish-Bolsheviks began to impose their
will on the people, the first thing the Soviets did was to
formulate laws that forbade criticising anything Jewish.
Mrs
Scully reminded Justice Hely that she, too, is hurt by what the
Jewish-Bolsheviks did to her country, Russia. She wishes to bring
back some balance in any historical debate because no one group is
above criticism, certainly not the Jewish lobby. Mrs Scully
has stood firm against this onslaught of lies - and she has said
to Mr Jones and his small but financially strong group: "This far
and no further. Here I stand, this is what I believe."
I took on the Scully case in 1992 when I was first made aware
of her activities, thereby making it a 10-year battle not six as
reported in the AJN (13/9). I began collecting evidence and
together with Dr Goldschmied tried to get some action by the
Federal and State Police, but to no avail.
Your article gives the wrong impression that Messrs Schlesinger
and Godlschmied fulfilled these roles. I should also like to
clarify that Mr Schlesinger is not the unofficial spokesman for
the Tasmanian community. He may be for the Liberal contingent of
Hobart Jewry but I am the spokesman for all Jews in Tasmania.
Furthermore, Ms Scully hasnot been able to sell any of her
materials at her market stall, because the market was shut down
several years ago.
Meanwhile, Ms Scully is at it again. Dr Goldschmied and two
gentiles received pamphlets on Yom Kippur, while one of the latter
received a videotape the next day. There were obviously more
distributed than this, but most recipients just throw the material
out and do not contact anyone.
The
verdict enforces a Human Rights and Equal Opportunities Tribunal
finding in September 2000 that Scully breached the Federal Racial
Discrimination Act.
It
was praised by Executive Council of Australian Jewry (ECAJ)
president Jeremy Jones, who initiated the case.
“The
suggestion that the world’s evils are attributable to Jewish
people is offensive and patently absurd,” he said. “This
is a significant victory for the Jewish community, particularly in
Launceston, which has had to put up with a shameful campaign that
has negatively impacted upon its life.
“Australia
prides itself on being tolerant; this judgment reaffirms that. It
is also a significant victory for all victims of racism because it
shows there is recourse to the law.”
Mr
Jones praised the efforts of his barrister, NSW Jewish Board of
Deputies president Stephen Rothman, over the past six years,
describing it as “beyond the call of duty in seeking justice
for the Jewish community”.
Mr
Rothman described Justice Peter Hely’s judgment as
“total vindication” of the ECAJ’s and the
community’s stance, “which was important in the ongoing
fight against anti-Semitism.”
Continued
distribution of the leaflets could see Ms Scully face contempt of
court charges, fines or prison. A report in the Hobart
Mercury quoted her as saying she might ignore the verdict.
“I am certainly going to go as far as I can within the law,
if necessary, if I consider the verdict unjust, I will challenge
it,” she was quoted as saying. “I am certainly not going
to chicken out completely.”
Mr
Jones’ solicitor, Peter Wertheim, said the case had set
several important precedents. “It is the first time a
complaint against racial hatred has succeeded in the Federal
Court.”
If
Ms Scully breaches the court’s injunctions, the ECAJ will
bring an urgent application to the court asking that she be dealt
with for contempt, Mr Wertheim said.
Justice
Hely ruled that Ms Scully’s actions were likely to
“offend, insult, humiliate and intimidate Jews.” He
rejected her arguments that she had never targeted Jews as a group
and that she had distributed her leaflets “for genuine
academic purpose”.
“A
leaflet that conveys an imputation that Jews are fraudulent liars,
'immoral, deceitful and part of a conspiracy to defraud the world
is reasonably likely to offend, insult, humiliate or intimidate
Jews in Australia. The fact that the imputation arises in the
context of a debate about the Holocaust makes it even more likely
that the leaflet would cause offence,” he said.
Ms
Scully was ordered to pay Mr Jones’ costs. She has 28 days to
appeal.
