THE FEDERAL COURT OF AUSTRALIA
327 of 2001
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
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.
by Dr G F Töben
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.
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"
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
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.
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
13.4 Australian Security Intelligence Organisation
- ASIO – has not complained and does not regard
Adelaide Institute’s activities to be an Australian national security
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.
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:
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
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
on the 25th day of May 2009
©-free 2009 Adelaide Institute