Case: Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515
Outcome: applied
Earlier on 25 August 2004, a complaint had been lodged with HREOC by the present applicant Mr Jeremy Jones, in his capacity as President of the said Executive Council of Australian Jewry. Contained within that letter of complaint was the following: 'We write to lodge a formal complaint under the anti-racial-hatred provisions (Part IIA) of the Racial Discrimination Act 1975 (Cth) in respect of material published on the Australian website http://www.biblebelievers.org.au ("The website"). The Executive Council of Australian Jewry, the peak representative organisation of the Australian Jewish community, complains that: (i) the material on the website is reasonably likely in all the circumstances to offend, insult, humiliate and intimidate Jewish Australians; and (ii) one of the reasons that the material has been published is the race or national or ethnic origin of Jewish people, including Jewish Australians. The specific matters complained of are as follows: 1. At http://www.biblebelievers.org.au/nl242.htm under the heading Lies and the First Anniversary of the 9/11 Conspiracy where the following words appear: We have all seen how the holocaust hoax of six-million Jews claimed to have been gassed and cremated by Germany in World War I failed to deceive the mob in 1919. Whereas monopolistic control of the media, film, and a more boldly pursued holocaust hoax of six-million Jews claimed gassed and cremated by Germany in World War II has produced such powerful psychological and material results the entire world is enslaved to the beneficiaries of the lie and Temples of Equivocation affront the intelligence of humanity in major cities world-wide. 2. At http://www.biblebelievers.org.au/wasthere.htm the following words appear: The Holocaust has become the greatest instrument of sympathy which any nation has ever been able to use to gain support for wars, expansion and foreign-aid: This has made Israel the world's sixth strongest military power. The gravest threat to all this wealth and influence is the growing doubt over the question of whether or not a real holocaust of 6 million Jews actually took place. 3. At the " wasthere.htm " webpage the following words appear at the conclusion: The main theme of Jewish fund-raising is the holocaust and has been for 38 years. When they don't use the holocaust the money collection sharply drops off. Thus the more the Press, TV and Hollywood promotes the holocaust the more money the United Jewish Appeal and other Zionist funds can extract from gullible people... Jewish leaders have discovered that by repeating holocaust stories over and over again they can instil a guilt complex within all Gentiles. This effectively silences most critics of Zionist political goals... Why doesn't the Jew-controlled press, TV and film industry give massive media attention to real victims and to proven holocausts of Gentiles in recent history. ... In our submission, the above material breaches the provisions of Part IIA of the Racial Discrimination Act because it conveys the following imputations: (a) there is serious doubt that the Holocaust occurred; (b) it is unlikely that there were homicidal gas chambers at Auschwitz; (c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and (d) some Jewish people, for improper purposes, including financial gain, exaggerated the number of Jews killed during World War II and the circumstances in which they were killed. ... In this respect, we refer you to the case of Toben v Jones [2003] FCAFC 137 in which the Full Court of the Federal Court upheld the decision of Branson J at first instance that it is unlawful under Part IIA of the Act to publish material that conveys inter alia the imputations particularised above. In our submission the material complained of conveys further imputations that are also in breach of Part IIA of the Act, namely that: (a) Jews as a group are inherently malevolent towards other people; (b) Jews as a group are engaged in a global conspiracy to dominate other people; and (c) the State of Israel, as the State of the Jewish people, is a product of that conspiracy. We further submit that none of the material complained of falls within the exemptions contained in s 18D of the Act. You will be aware that this Council has brought two cases of racial hatred before HREOC in the past, one against Olga Scully and the other against Fredrick Toben. Both cases were ultimately heard and determined in favour of the Council by the Federal Court of Australia. In both cases the Court was satisfied that Jews, and Jewish Australians in particular, constitute a race or a national or ethnic group for the purposes of the Act. In the Toben case, the Court also found that the publication of material on the internet is an act that is done otherwise than in private for the purposes of s 18C of the Act. We are seeking to have the material complained of removed from the internet and an apology to Australia's Jewish community being given publicly by the website's owner/s.' The reference in the above letter to 'Jewish Australians' and 'Australian Jewish Community ' may be observed. The connection of the BBC and of Mr Grigor-Scott to the foregoing Bible Believers' website will be further indicated in these reasons. The grounds or particulars of the complaint were at least implicitly adopted by Mr Jones therein and subsequently pursued in the present proceeding. 7 The foregoing decision on appeal in Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 was made on 27 June 2003 by a Full Federal Court comprising Carr, Kiefel and Allsop JJ in favour of Mr Jones as complainant also in those proceedings, in line with the decision at first instance of Branson J in Jones v Toben (2002) 71 ALD 629. Mr Jones, being the applicant for relief there involved, is the same representative person for the Executive Council of Australian Jewry as here constituted. 8 The circumstances leading to the Court's decision-making in Toben [2003] FCAFC 137 ; 129 FCR 515 were similar in substance to those which have led to the bringing of the present proceedings, and reflected a not dissimilar theme to the subject matter of complaint involving denial of the Holocaust which preceded and continued throughout World War II, an attack upon the widespread exposure of those circumstances on the part of Jewish people, and assertions that Jewish people exaggerated the number of Jews killed in the Holocaust for improper purposes. The language the subject of complaint in Toben was described by Carr J at [45] as 'deliberately provocative and inflammatory' and a 'flamboyantly-worded challenge' , and lacking in good faith, those being descriptions adopted by the applicant in relation to its case against the respondents. 9 I observe moreover that in the concurring appellate judgment of Kiefel J in Toben [2003] FCAFC 137 ; 129 FCR 515 , her Honour concluded, at [77], that: ' [t] he likelihood that the appellant wrote only to pursue the truth of those subjects is rendered implausible by this unnecessary aside, which appears to have no real purpose in such a debate other than to disparage Jewish people. In my view, it confirms what a reading of the article as a whole raises as a prospect, namely that it was published with Jewish people in mind, as those responsible for concocting the Holocaust and, indeed, as an attack upon them'. A similar approach has been adopted by Mr Jones in his presentation of the present case. Her Honour agreed with Carr J that there was no proof of the appellant's (ie Toben's) good faith. 10 In the further concurring judgment of Allsop J, his Honour made the following observation at [98]: '98. The above history (taken from the works of scholars, Lerner and Schwelb, working contemporaneously with events) is given to illuminate what it was that the international community was dealing with. By this time in the twentieth century, the nations of the world had experienced a century stained by, amongst other catastrophes, racial slaughter, pogroms, forced removal and relocations of whole peoples, religious and ethnic genocide, and were undergoing the trauma involved in the break-up and disintegration of colonial empires and national and regional political structures based on racial characteristics. The unexpected recrudescence, in the winter of 1959-1960, of some of the most recent and horrific manifestations of racist behaviour enlivened the world community to act swiftly and (with an inevitable degree of variation in political perspective) unanimously, to take steps towards the elimination [his Honour's emphasis] of the perceived evil. The perceived evil was all [again his Honour's emphasis] forms of racial discrimination and racial prejudice, the manifestation of which had been, in recent generations, at times horrifically violent and strident, at times overt, and at times less overt and less brutal, but nevertheless insidiously pervasive. In any form, it was recognised, by all nations in the international community, to strike at the dignity and equality of all human beings.' Thereafter at [100]-[101], his Honour added: '100. Racial hatred was one form or manifestation of the perceived evil. Unhappily, it was a form with which the nations in the General Assembly in 1960 to 1965 were all too familiar. It was the form of the perceived evil most likely to lead to brutality and violence, but it was not the only form of the perceived evil antithetical to the dignity and equality inherent in all human beings upon which the Charter of the United Nations was based. It was to all [his Honour's emphasis] such forms and manifestations that the Convention was directed. 101 The definition of "racial discrimination" in Art 1 of the Convention confirmed the wide aim of the Convention: Article 1 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.' His Honour then referred at some length to the public discussion and debate, and to issues as to in-roads into freedom of speech, which led to the enactment of the RD Act in Australia. 11 The material relied on, in particular, by the Executive Council of Australian Jewry was The Bible Believers' Newsletter #242 , (the copy before the Court bearing the date 9 May 2005). It is 15 pages in length and contains the following segments ( inter alia ): '(i) an introduction commencing 'We focus on the PRESENT Truth what Jesus is doing NOW...' 'Seven Pillars of Jewish Denial' 'Landmark Court Ruling Against Holocaust Denier' 'September 11 US Government Accused' 'Thinking Up a Pretext for War' 'Lies and the First Anniversary of the 9/11 Conspiracy' (ii) the following concluding material: 'Pass it on... Send this article to someone you know Brother Anthony Grigor-Scott is a non-denominational minister. He has ministered full-time since 1981, primarily to other ministers and their congregations in other countries. He pastors Bible Believers' tiny congregation, and is available to teach in your Church.' Below that appeared reference to the details of the BBC website. 12 The website also contained the following material: (i) an article by Dr E R Fields headed ' Was there Really a Holocaust '? (ii) an abridgment of a book titled ' The International Jew , The World's Foremost Problem ' (the author whereof was stated to be Henry Ford Senior) containing the ' Editor's Forward ' of one page in length, together with a summary of the life of Henry Ford contained in a journal apparently published, and which referred to the circumstances that Mr Ford ' was accused by many Jews' and 'was a resolute opponent of Roosevelt's policy of "controls" in industry and commerce ...'. 13 Following upon that material being placed before HREOC, Mr Grigor-Scott purportedly on behalf of the BBC or in any event in the name of the BBC, wrote further to HREOC the following communications in support of his request that it terminate what he described as 'Mr Jones unwarranted complaint' (now forming Exhibit A1 in the present proceedings): (i) letter dated 5 November 2004; (ii) letter dated 18 November 2004 (which comprised in all some 11 pages); (iii) email dated 19 November 2004; (iv) letter dated 18 January 2005.