IN THE FEDERAL COURT OF AUSTRALIA   
SOUTH AUSTRALIA REGISTRY
  
             

NSD 327 of 2001      
On appeal from The Honourable Justice Lander

                                                                                                    BETWEEN                                                                              

                                                                                                              GERALD FREDRICK TÖBEN 
                                                                                                                            Appellant

                                                                                                                      JEREMY JONES       
                                                                                                                        
Respondent

                                                 AFFIDAVIT OF APPELLANT

On 25 May 2008 I, Gerald Fredrick Töben, retired teacher and pensioner, of 23 Caloroga Street, Wattle Park, in the State of South Australia, MAKE OATH AND SAY -

 1. I am the Appellant in these proceedings. I desire to refer to my previous Affidavits sworn 27 and 28 April 2009.

 2. Since I and a group of individuals in 1994 began this non-profitable enterprise, Adelaide Institute, I have always been ready to augment, correct and delete material and offer an apology, especially if any of it in tone is jarring, rude and crude. But if material is factually correct, then there is no reason for being apologetic because this would compromise my moral and intellectual integrity.

 3. I believe that it is my God-given right and duty to pursue the truth of a matter and to think about contentious versions of history.

 4. When on 26 November 2007 at around 7 pm I received per email the draft of the Consent Orders, my focus on the actual Apology - as discussed with my then court-appointed barrister - rested on C of the Branson J Orders of 27 September 2002. I agreed that an article, under Order C, requested to be removed was indeed somewhat rude and crude, but I had prepared myself to defend the Allegation that I was in breach of Order A, B and D, which the barrister had accepted. The next morning at the FCA Adelaide, before signing the Consent Orders, my barrister and I again canvassed the matter and I understood that a blanket general apology would settle the matter, and at a later stage in future proceedings the specific orders could be challenged and varied. Hence my initial hesitation, as indicated at Line 30 of the Transcript of Proceedings of 27 November 2007, when offering the Apology to His Honour, Justice Michael Moore, who then demanded I give an unqualified apology to the court.

_____________________________________________________________________________

Filed by Dr G F Töben

                                                            fredricktoben@y7mail.com

23 Caloroga Street

Wattle Park 5066  

_____________________________________________________________________________

 5. On 21 December 2007 I completed the deletion of all the material complained of, except for that mentioned in 1. of the Consent Orders of 27 November 2007 because I realized that under 1. of the Consent Orders the Applicant was granted leave to rely on the Second Further Amendment Statement of Charge filed on 3 November 2007. Therein the material listed for deletion is a LINK on our Internet website. I considered the removal of links from Adelaide Institute’s website not part of the Consent Order, and hence did not delete the link – all material on Adelaide Institute’s website was removed by me at midnight on 16 April 2009, the day on which Lander J handed down his judgment.

 6.  At the 19 December 2007 hearing His Honour, Michael Moore, stated that my belief/world view was not in question, but that the apology focused on specific material deemed to be offensive and published on Adelaide Institute’s. At his hearings, Justice Lander insisted that ‘whether the Holocaust happened or not’ was not for him to find out.

 7.  I am aware that the views which I hold are contrary to those held by the majority of people in Australia, and by those who adhere to mainstream views in Australia. Further, I am aware that my views are those of a heretic and a dissident: for some time the website included in its home page -

"This is a REVISIONIST - DISSIDENT - HERETIC -WEBSITE"

I believe that it was appropriate so to descibe my views. There is no reason to suppose that my views are based, in any way, on hate: they are not.  The notion that my views are based on hate, or that I hate the applicant or those he represents, is false: it appears that that notion is based on stereotyping.

I maintain that a democratic society necessarily involves the right to express views which are unpopular, and that it should not follow that because I may have views considered heretical to existing authority, that I should be placed, effectively, outside the polity.

 8. Throughout my life I have maintained diaries, and on historical matters relating to the Holocaust, I have always attempted to present a rational and open argument as would suit a global civilized debate. I have always attempted to express and present my views in a manner which is consistent with my life as a teacher, and with my own philosophical and academic background. On some occasions I have employed the language of persuasion [rhetoric] those occasions have been entirely within an academic/didactic context.

 9. Bearing in mind the comments made by His Honour, Justice Moore, at the 19 December 2007 hearing as regards my beliefs/world view not being subject of the Consent Orders, I am still having considerable difficulties deciding what is permitted and what is not permitted to be published on Adelaide Institute’s Internet website. If my belief, which His Honour labelled ‘Holocaust denial’, is not in contention then surely I am able to state: “I would rather be a Holocaust denier than a Holocaust liar!” My whole belief system is inadequately attended to and inadequately defined in the Orders of the Honourable Justice Branson of 17 September 2002.

 10. The Respondent, Mr. Jones, from the outset of these proceedings - first before HREOC in 1996 and subsequently in the FCA, until to date - has never shown any preparedness to conciliate. 

 11. The conceptual confusion flowing from Branson J’s Orders and from the Consent Orders is designed to neutralize my mind and “to stop it from functioning”. I do  not wish to be in breach of any Court Orders but I resist such an act of mental rape, and submitted for His Honour’s consideration, as an example of my attempt to escape this act of mental rape, the following newsletters wherein the essence of my belief system/world view is clearly articulated and vigorously canvassed by experts in the field of historical research: No 368, 369, 370, 371.

  12.  The matter before the Federal Court involves creating a legal orthodoxy out of holocaust history.  The created orthodoxy is that against which I am a heretic. I maintain that the creation of such orthodoxy is contrary to my right to hold opinions and express them,  and is contrary to the right to communicate concerning political matters. The relevant political matters include matters of external affairs and foreign affairs [international politics in which Australia is involved]. I do not now approve of, espouse, or incite, nor have I ever approved of, espoused, or incited, violence or hatred.

 13. The following is a list of organisations with which I have had dealings:

 13.1 Adam Internet – Adelaide-based Internet service provider, has since 1 May 1996 hosted Adelaide Institute’s website – without complaint. The provider has received death threats for refusing to disconnect Adelaide Institute’s website, and management continues to host the website because it considers the material on Adelaide Institute’s website to be covered by the democratic principles of free expression. Were Adelaide Institute to dabble in pornography, the site would have been pulled a long time ago.

 13.2 South Australia Police – has not complained and does not regard Adelaide Institute’s activities as being detrimental to the community.

 13.3 Australian Federal Police – has not complained and does not regard Adelaide Institute’s activities to be a national community threat – had there been weapons and drug involvement, then criminal proceedings would have been initiated a long time ago.

 13.4 Australian Security Intelligence Organisation - ASIO – has not complained and does not regard Adelaide Institute’s activities to be an Australian national security threat.

 13.5 Australia’s education institutions – I opposed the introduction of ideological concepts such as ‘value-free’ and ‘non-judgmental’ because they signified intellectual fraud: I believe it is impossible for education and society generally to function in the absence of value judgments. These concepts, among others, were then coupled to the anti-discrimination industry’s attempt to neutralise thinking processes, thereby suppressing within individuals a healthy development of a normative value system. Truth, honour, justice – are concepts that have no home within the discrimination industry’s value system.

 13.6 The Australian Print Media – initially the local, state and national print media outlets supported Töben’s educational endeavours, but not the substantive issue surrounding the Jewish Holocaust-Shoah. In fact, the media hate incitement against Fredrick Töben and Adelaide Institute was not absolute and there were instances of fair reporting. The Murdoch press unashamedly used one or more of the following concepts to whip up hatred against Adelaide Institute or Fredrick Töben: hater, Holocaust denier, antisemite, racist, neo-Nazi, etc. A ban imposed on Töben to a right-of-reply exists to this day at The Australian and The Advertiser newspapers. The Internet, however, offers Töben Natural Justice by enabling him to respond to any such attacks by placing material on Adelaide Institute’s website. It would be an injustice were this avenue of a right-of-reply taken from Töben. 

14. The legal system - The initiating complaint came from Simon Wiesenthal Centre, in Los Angeles, USA. The respondent, Jeremy Jones, informed the HREOC and the Federal Court that the material “hurt” his feelings.

 14.1 The Honourable Justice Lander at 24 of his 13 May 2009 Reasons for Judgment designates Jews as a race. This characterisation aligns with that of German National Socialist thinking, which determined that being Jewish was a matter of race. I contend that in fact being Jewish is a matter of religion.

 14.2 The Honourable Justice Lander, at 28, 53 and 54 of his 13 May 2009 Reasons for Judgment takes issue with my statement “Do I Tell the Truth or Do I Obey the Law” as elicited under cross examination. I did try to explain to the court that my position is [both] to tell the truth and to obey the law because this is based on the life-giving Hegelian dialectic process, while the ‘only Obey the law’ process is based on the death-bringing/killing of the soul Talmudic/Marxist dialectic process.  The analysis of these dialectics and my views about them are part of my strongly held personal philosophy.

 14.3 The Honourable Justice Lander, at 64.ff of his 13 May 2009 Reasons for Judgment states that for him an important consideration was “whether the contemnor has purged his contempt and is truly contrite.” He does not acknowledge the fact that I deleted more material than I had to – wiping the whole content of the website – in 2000 after the HREOC decision and in 2002 after the FCA judgment, and that I deleted all material agreed upon in November 2007 – but not the link because this was not part of the agreement made before Justice Moore.
I respectfully say that I believe that it was unreasonable that the Honourable Justice Lander characterised my actions as having been done only under legal advice when I went to some length to explain to His Honour that I do not operate under such a dialectic process.

 14.4 At p23 of the Transcript of Proceedings, 28 April 2009, the matter of truth-telling continues where His Honour attempts to re-question Töben on matters canvassed earlier by Margo:

 HIS HONOUR:   Well, I’ll put the - I think I can remember the question.

Is it not the case, Dr Töben, that if you are obliged to comply with the order of Branson J and honour the undertaking you gave to Moore J, you would not be able to tell the truth, as you understand the truth? 

Töben:  I have problems understanding what that question actually implies or even if it states that if I follow the orders       

His Honour: Are you saying you can’t understand the question?  

Töben: I’m having problems      

 His Honour: Are you saying you can’t understand the question?  

Töben: Because what I      

 His Honour: No, is that what you’re saying?  You can’t understand it?  

Töben: I’m trying to follow what you’re saying.

 His Honour: No, no, I’m just asking you.  Can you not understand the question?  You can say yes or no to that?  

Töben: I would like to hear it again.  I can’t      

 His Honour: Well, I’ll ask the question again, but if you can’t understand, say so.  The question that Mr Margo asked, and I’m paraphrasing, is that if you complied with the order that Branson J made on 22 September 2007, and honour the undertaking you gave to Moore J on 27 November 2007, you would thereby be debarred from telling the truth, as you understand it.  Do you accept that proposition?  Now, if you don’t understand the question, say so?  

 Töben: It’s raising so many issues.  I’m just thinking that to obey – I’ve tried to.  For example, I’m locked in to tell the truth and obey the law and therefore I’m trying to.

 His Honour: It’s not – the question -  the question is not about whether you are complying with the orders.  The question is if you do comply with the orders you are not able to tell the truth as you understand it.  Do you accept the proposition?  

 Töben: Are you saying – using the quotation marks Holocaust, I would be in the situation where I would be in Germany.  Are you saying that?  Where the legal system prevents me from doubting,  from expressing public doubt, from asking questions?  Are you – in what you’ve just said, are you implying that this is the effect of Branson Js order?

 His Honour: No.  I think that implicit in Mr Margo’s question is this, that if you have to comply with her Honour’s orders, and the undertaking you gave to Moore J, you are thereby prevented from telling the truth about the Holocaust.  That is your position, is it not?  

 Töben: This – I can’t see that it’s an either/or case.

 His Honour: Very well?  

 Töben: I follow the orders and I must not tell the truth.  I see that our justice system – we have moral, legal and social duties, your Honour, and I am      

 His Honour: I’m just doing my best to put Mr Margo’s question, but I’m not doing it so well, apparently, but I’ll try it once more.  Mr Margo’s question is, if you are obliged to comply with Branson Js orders and honour the undertaking given to Moore J, you are thereby prevented from telling the truth about the Holocaust, as you understand the truth.  Isn’t that your position?  

 Töben: I don’t think it is      

 His Honour: Okay.  That’s fine, thank you?        

 Töben: because, if I may add?

 His Honour: Yes?  

 Töben: Because the way I understand the law.  As I said, we have moral, legal and social duties, basic citizen rights and so on, and therefore it is my duty to tell the truth as it is, within the law, within legal constraints, and I’ve tried that for these last seven years or whatever.  I’ve tried that to the best of my ability.

 His Honour: Yes.  Yes, I’m sorry, Mr Margo.

 Margo:   Thank you for that, sir.

Dr Töben, you say you’ve been trying for the last seven years, but the court has found that you’ve failed.  And you said in you most recent affidavit that you accepted that you had brought the administration of justice into disrepute, or words to that effect, or undermined its standing.  How do you reconcile the findings of  ?  

 Töben: Mr Margo, I will      

 Margo: How do you reconcile those findings with your intention, as I understand it, to continue telling the truth, despite the orders?  

 Töben: Very easy, Mr Margo.  I have not had any legal counsel, as you know, throughout these years, and I’ve now had Mr Perkins’ legal advice and I’m being guided by Mr Perkins.  I - as you know, I enrolled in the University of Adelaide law course and I failed Commissioner McEvoy’s subject and all that.  Law is not easy for me.  My discipline is philosophy, asking questions, difficult questions, and therefore, I have now, without hesitation, signed this affidavit, which Mr Perkins and I formulated which, on his advice, I’ve accepted.

 Margo: Well, do you accept now that if you obey the orders of Branson J and honour your undertakings to Moore J, you may not publish on your web site what you regard as the truth about the Holocaust, namely that it didn’t happen?  

 Töben: Mr Margo, in the  affidavit I ask that I be supervised by the court or by you or the executive of Australian Jewry      

 

15. The above matter indicates there is something fundamentally wrong with the whole legal proceedings against me. It cannot be in any way the intention of the court to deny an Australian citizen to right to free expression, to have and express an opinion about any matter.

 

  

Sworn by Deponent

 at Adelaide

 on the 25th day of May 2009

 

 

                                                                                                     …………………………..                                                                                                                                         

                                                                                                     Deponent’s Signature

 

 

 

Before me:……………………………

  

 

 

 

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