Fredrick Toben writes an Open Letter to Mr Tim Wilson, Human Rights Commissioner, Sydney, Australia
Fredrick Toben writes an Open Letter to Mr Tim Wilson, Human Rights Commissioner, Sydney, Australia
1. The last time I saw you was at the Senate Hearings into the RDA in Melbourne where you presented you passionate plea for sexual tolerance. Now as the new Human Rights Commissioner you stated on ABC TV, Lateline, Friday, 14 March 2014, that I am motivated by hatred because I am a Holocaust questioner, you labelling me a “Holocaust denier” – see below for transcript of session and clip: http://www.abc.net.au/lateline/content/2014/s3963918.htm .
4. Please view the following clip http://www.youtube.com/watch?v=xS73ufRIoYc wherein at the beginning a questioner states that the Holocaust narrative remains unchallenged, which cannot be questioned and is taught in schools as ‘a quasi religious dogma’, and she elicits from a Holocaust believer the astounding response at 5.05:...the West incurred a debt towards the Jews from the Holocaust and the Palestinians paid for that, and I think that one of the great discoveries of the last few years from Palestinian solidarity is the understanding that the West also has a debt to Palestinians and we ....
5. Then, let me briefly comment on the comment made by Jeremy Jones in the ABC TV program, Lateline: >>Since that time we've had a series of cases and when we look at the situation before the law came in, and since, you could say that the law has acted to do exactly what Tim is saying we need, which is providing the argument against those - the people who will otherwise not listen to reason, and I don't agree that you can automatically say that it's self-evident that somebody like a Holocaust denier is bad. It took the court case to go through to identify what was wrong with the argument and it was because of the judgment that this was seen to be something abhorrent.<<
5.1 When in 1996 Jones started legal action against me he refused to conciliate and opted directly for a formal hearing because Section 18C had been designed specifically to stifle debates on matters Holocaust and the legal model used was that from Germany where a specific Holocaust law stifles debate because any questioning results in “defaming the memory of the dead”. In most legal jurisdictions a defamation action ends with the aggrieved person’s death. Not so with the Jews.
5.2. Mr Jones also refused to conciliate with Mrs Olga Scully and Mr Anthony Grigor-Scott, the latter was the only one who won his appeal before the Federal Court. Both Mrs Scully and I were bankrupted on account of having court costs awarded against us. Jones’ aim was to place so-called “Holocaust denial” out of the reach of open debate. Both Mrs Scully and I insisted that the commissioners and the judges help us in finding the truth of the allegations made against Germans within the officially-sanctioned Holocaust narrative. Unfortunately, both commissioners and judges refused to state to us that truth is a defence against the allegation levelled against us. And they were certainly not interested in looking into the factuality of what we were presenting. In fact, one judge during my 2009 appeal threateningly stated to my counsel: ‘You are not suggesting the Holocaust didn’t happen!’ Counsel’s response was: ‘With respect, Your Honour, that is not how I ran the case’.
5.3 Thus at no time were matters of fact canvassed in court for truth-content, but only whether Section 18C was activated by the published material in question. Of course, any material can be judged to give rise to an offence – and questioning the factuality of the Holocaust narrative is offensive to those who fear open debate about this historical incident now labelled “Holocaust”. The almost two decades-long court case in which I was locked in with Jones never once looked at any arguments and what allegedly was abhorrent about them. The last time Holocaust matters of fact were canvassed in a court of law anywhere in the world was in 1988 during the Ernst Zündel Toronto Holocaust trial. Since that time Holocaust trials focused on matters of law – and operated under a watered-down defamation legal framework where there was in effect no defence available for an accused of, for example, spreading HATE.
6. Mr Wilson, if you really value free expression, which you state is also in your personal interest, then be wary of those who split free expression into free speech and hate speech. After all, for the latter we have defamation laws where individuals can go to court if aggrieved about what someone has said or written about them. Then we test such “absurd”, “ridiculous” and “preposterous” statements for truth content and investigate the physical facts. The implied allegation you have made against me is that my expressing my views is because I have “hate in their [my] heart”; or would it be possible for you to entertain the thought that I am just telling the truth! After all, is it not a truism, which any student has to learn, that sometimes the truth hurts?
As I am being blocked by personnel within the Attorney-General’s
office from personally discussing this matter with Senator Brandis,
with whom I briefly exchanged words about a visit to his office during
the Wagner Ring Gala Dinner in November 2014 at Melbourne, I would
appreciate us having a discussion on this matter and then perhaps you
can ascertain whether I am motivated by hate in my heart.
15 Mar 2014, 1:01am AEDT
Rights Commissioner, Tim Wilson, and, Jeremy Jones, from the
Australia, Israel and Jewish Affairs Council join Ticky Fullerton to
discuss the Government's plan to repeal provisions in the Racial
Source: Lateline |
Duration: 17min 10sec
The Federal Government is under growing pressure over its plans to
repeal provisions in the Racial Discrimination Act.
one side, from groups who fear that laws to protect vulnerable
communities will disappear and on the other, from libertarians who are
worried about a watering-down of the Coalition's election promises
about free speech.
18C of the Act makes it illegal to offend, insult, humiliate or
intimidate another person or a group on the basis of their race,
colour or national or ethnic origin.
discuss why there's so much at stake I was joined a short time ago by
the new Human Rights Commissioner Tim Wilson, formerly with the
Institute of Public Affairs and by Jeremy Jones, from the Australia,
Israel and Jewish Affairs Council.
thank you for joining me.
Jones, why is the Attorney-General wrong to look at appealing section
18C of the Racial Discrimination Act?
JONES, AUSTRALIA/ISRAEL AND JEWISH AFFAIRS COUNCIL:
Well, I think there's a basic principle. Whatever law you have it's
always good to review it. You don't just say because I think it's law
it always has to be the law. When we look at how it's operated over
close to 18 years now, I think there's a very strong argument to say
we have a law which has basically served the cause for which it was
designed very well. It was a law that became about after a lot of
investigation and inquiry and debate.
was a compromise between a range of different positions which tried to
bring a balance between the protection of victims of racism and other
important values such as free speech and to revise the look to improve
the law is great but if the law was to disappear completely I think
there'd be a big hole in protections for vulnerable sections of the
Tim Wilson, on the other end of things is there any kind of free
speech that you believe should be constrained by law?
WILSON, HUMAN RIGHTS COMMISSIONER:
Of course. We know full well that human rights come into conflict with
other human rights including the human right of free speech. And we
have that in lots of areas of law so it's not a debate about whether
there are limitations on free speech. It's not even a debate about
whether racism is socially acceptable. It's a debate about where the
line of free speech should sit and what sort of conduct should be
socially unacceptable versus where the law should stand and make it
illegal and there always needs to be a gap between those two
propositions when we're talking about speech, because when they're
fused, as section 18C really does operate that way, you ultimately
can't challenge the status quo.
Well, let me take the issue of Holocaust denial. Now, Jeremy Jones we
don't have a specific crime against Holocaust denial in Australia as I
think there is in Germany. Has the Racial Discrimination Act been used
successfully to prosecute people in this area?
They're not prosecuted because of merely a thought, because of merely
saying something which somebody find objectionable. It's behaviour
which goes beyond a thought. There has been the case, the most
notorious case in terms of publicity and known about was the case of
Frederick Tobin a man in Adelaide who ran a web site at the time
called the Adelaide Institute. Had was found after a complaint to have
involved himself and indulged in a whole series of behaviours which
brought him into conflict with 18C.
brought him into conflict because what he was doing was he was saying
that people have constructed conspiracy of sorts to make you believe
something which is not in your interests, therefore you should have a
certain attitude towards those people.
And it was 18C that was used?
18C was used. I was the complainant in that case. I'm very familiar
with that case, obviously.
That was when you were the executive council of...
Australian Jury, yes. In that capacity.
we brought that case against Frederick Tobin because there had been
quite a number of people who said we've tried to use logic, you've
tried to ask somebody to restrain themselves in their behaviour, but
until laws were available and until people could lodge complaints
under the law, there didn't seem to be any way that this behaviour was
going to be stopped in any way. There was no way an ordinary person
would have the ability to know whether a person was doing something to
be part of a public debate, putting information out there or part of
an academic debate or indulging themselves in behaviour which was seen
by the courts to be aimed at people because of their race ethnicity
So Tim Wilson do, you see Holocaust denial as a crime?
Both Jeremy and I have a very similar view about Holocaust denial. We
think that people who express those views have hate in their heart and
the question isn't what you - whether they should be responded to. Of
course they should be responded to. The question is how.
Do you see it as a crime under the law?
I don't see it as being a justification for a crime, because in the
end, if Dr Tobin or others decide to continue to express their hate,
or if they don't and they're put into their corner, they don't
disappear hand they don't change their views. And I actually have much
more faith in the average Australian citizen that people do understand
just how absurd ridiculous and preposterous some of those ideas are.
People are able to assess the credibility of someone as discredited
and irrelevant as that individual and the ideas they put out there. It
doesn't need to be shut down with law. What we need is more speech and
more reason to come out to challenge it.
What about the is slippery slope argument? I see the Race
Discrimination Commissioner, he fears abolishing 18C can licence
racial hatred and may unleash a darker even violent side of our
humanity which revels in the humiliation of the vulnerable. Isn't that
a genuine fear?
People have legitimate concerns but the question is again how we're
tackling racism in society and the question is to you use the law to
try to limit what people can say or do you seek to respond to it by
driving education and cultural change. When you have the law and the
line of polite society or socially acceptable conduct at the same
point it's always very difficult to do that particularly in a country
sit in a very unique position. In our constitution, we have a
provision which actually allows the government, which I have to say I
object to this provision very strongly, allowing the Federal
Parliament to design laws specifically for people of different races
which automatically brings it within the centre of Australian
political discussion and debate.
need to be able to fully debate that. We're acknowledging the fact
that sometimes people will say things that are unpleasant that they
should be responded to by all of them.
Jeremy Jones, to you worry like the racial Discrimination Commissioner
worries about the slippery slope?
We have to look at the reality of the situation. For many years we did
not have the law in place, for 18 years we have. Before the law came
into place, there were inquiries and investigation business what was
the best play in the Australian context to deal with a real identified
problem of people who were taking away from the quality of life of
other Australians, were humiliating people, were bringing into
question their own selves and their own self-worth and their worries
about other people and what people thought. After these
investigations, after the inquiries, after extensive debate looking at
not only what happened in Australia, but world best practice, the
Australian Government adopted a set of laws which included not only
18C, which the provisions against racial hatred, but also 18 D which
is a range of exemptions.
that time we've had a series of cases and when we look at the
situation before the law came in, and since, you could say that the
law has acted to do exactly what Tim is saying we need, which is
providing the argument against those - the people who will otherwise
not listen to reason, and I don't agree that you can automatically say
that it's self-evident that somebody like a Holocaust denier is bad.
It took the court case to go through to identify what was wrong with
the argument and it was because of the judgment that this was seen to
be something abhorrent.
So Tim Wilson it seems to me that really what this debate is about is
at what point free speech becomes hate speech. Only a few months ago
in Bondi we had racial attacks on Jewish people. At what point do you
think free speech becomes hate speech?
Well, I think the issue at hand isn't where it becomes free speech and
hate speech. Hate speech in itself is connecting a crime to its
thought and in itself that is a violation of people's rights.
line of the law should be around incitement to violence not around
when somebody says something and you don't like their tone or you
don't like their attitude or anything else. Now that doesn't mean that
somehow that means carte blanche and almost a licence for racial
vilification or hatred.
forgetting one very important part of the discussion. Which is that
rights come with responsibilities. And it's a responsibility, one of
every Australian to challenge these sorts of ideas but that actually
you need to have that gap between the law and social convention so
that people can exercise those responsibilities so we can drive a more
culturally accepting and diverse community and to challenge the sorts
of ideas and racism, exactly as Jeremy just outlined but I have to
pick up the last point which is I just find it absurd to think that
people didn't think that Holocaust denial was unacceptable until the
Racial Discrimination Act and 18C came into place I it's been an
absurd proposition since the day it was forward.
But it was affected on wasn't it?
Affected on, you mean legislated? In a legal sense, yes it was. But
it's not as though everybody was saying this is good idea, these
people are crazy and people know these people are crazy and they're
quite capable of making judgements that way.
I didn't see any evidence to back that proposition in any area where
the law's been applied. If we look at some of the cases at the real
cases that have happened under real law because we've only really
heard objection of one case.
case has been identified as the problem. There've been 1600 or so
complaints which have gone before the commission. Many of them have
been conciliated many of them have not succeeded because it's a
reasonably high standard of proof for somebody to be able to carry
through. Some others have gone to court.
look at a case, I want to say for an example, there was a situation
where there was a person who was putting out hateful material in the
forms of leaflets, cassettes and videos and booklets for quite a
while. People would try to stop here.
would go to a garage sale - a car boot sale, sell material and people
would say you can't do this here because you're objectionable. She
would say I have my right to do it. You have to allow me to do it or I
will take the law against you because you're restraining my trade,
stopping me doing something fair and reasonable. It was only when
there was law she was able to be stopped.
spoken to individuals who were in the situation where they say they're
a professional in this case a real case, it was a dentist. He said his
nurse has seen this material. His customers are seeing material which
is presenting a template that every evil in the world is attributable
to the group to which he belongs. He doesn't know what people are
thinking about him. He knows that nobody is doing anything to stop it
and there didn't seem to be a way to stop it until we had a law that
allowed it to be stopped.
Let me bring in at this point Andrew Bolt. Because this 18C is now
really known as Bolt's Law after the case of the columnist. Tim
Wilson, what were your concerns about that judgment?
My concerns were the way it was applied and ultimately that goes back
to the way it was written. Where what we had was an assessment where
Mr Bolt was found to have been in breach of the Act because based on
the standards of the individual in the community that was the
reference of his article, it was deemed he had achieved, insult,
offence, humiliate and intimidate around a legitimate area of public
policy debate. Now, Mr Bolt made a number of errors. He also - the
judge read into it an issue around tone. These things are very bad
judges about whether people can limit free expression.
Well that is why this has boiled down to now an argument between
whether this was about freedom of opinion or about freedom to spread
untruths. What's your view?
I think it's very bad to talk about this as the Bolt case given all
the hundreds of cases that have been lodged and the number that have
been adjudicated. Andrew Bolt in a sense is the exceptionable case. I
don't think there - that's not a reason to ignore the case but to
characterise the law as if the Andrew Bolt case was somehow typical is
wrong. I also think it's unfair to Andrew Bolt to deal with it that
way because Andrew Bolt himself has said on a number of occasions that
his intention was not how it was interpreted which by the courts and
under the law. This is quite different from many. Other cases that
have come before the judges. So I just want to say that's a point I
think that's very important when we are looking at the law. Look at
how it's worked effectively and then if there has been a road bump and
I don't mean with any disrespect to Andrew Bolt because of course it's
very significant to him. I don't in any way denigrate people who have
a view which is you could see a free speech absolutist position which
I personally don't hold ...
Are we now getting a clear view from the Attorney-General George
Brandis as to just what he wants to do with 18C. There seems to be
some confusion now as to whether he is backing off, repealing all of
it or perhaps leaving some of it. What is your take on that?
We've seen George Brandis and the current government during the
election campaign saying they would repeal the law as it was but there
was also the concept of having consultation and talking about the law
which seems to indicate quite clearly there is a recognition the
government has some role in allowing victims of racism some recourse.
not having a return to a situation before there was any law which gave
victims some standing and not getting into a situation where suddenly
you are taking away something which is valuable to many people in the
community, I'm sure there are many members of Parliament in the
government side who are hearing from their own community that there's
a signal they don't want send if this law is repealed completely.
we're seeing is the government say here's the law, we've identified a
problem or we don't want a recurrence of a particular outcome in a
particular case no. You we're going to try to get the plans to make
sure the government is responsible and that gives us its protections
to people who need protection while at the same time, doing its utmost
to have a situation where there aren't unintended consequences.
What's your view on where George Brandis sit and also it looks as
though he's looking to change Criminal Code as well. He wants to make
racial vilification a crime now.
I'm deeply concerned about the idea that racial vilification be made a
crime versus a civil provision as at the moment. This is why the
argument that somehow it will be a licence to do things like engage in
violence is absurd because it's racial violence is already illegal
under the Criminal Code.
issue really comes down to whether this provision and the way section
18C is designed, is designed to not unnecessarily limit free speech.
The Bolt case proved it was in the way it was interpreted but it has
much broader issues around establishing group rights within the
community, about the subjective nature of the test, about being
reasonably likely to offend insult et cetera.
needs a wholesale review in my opinion, repeal, because the elements
of it that may be necessary to protect things like violence exist in
other laws already.
Finally, can I ask you Jeremy Jones, given Tim Wilson's libertarian
views, frankly how do you feel about bill becoming the new Human
Well, there are human rights and I have no objection to Tim Wilson
having a position in the government and doing - protecting rights.
There are lots of rights for a Human Rights Commissioner to protect.
When Chris Sidoti had the position some time ago he was looking at
religious freedom which I think is very important right.
Burdekin looks at children's rights at a time nobody was. But I have
to say with the last comment from Tim Wilson if I may, we in Australia
have defamation laws. If somebody accuses me personally of certain
behaviour, I have the right to defend my reputation especially if it's
damaging my ability to be part of society. To say that someone in a
group shouldn't have that right so they say the group I belong to are
automatically criminal and I have no rights but I am a criminal
suddenly I have rights seems to me to be confusing.
We need to clarify that the issue with defamation law is it's actually
a competition between rights and we need to find accommodation. I've
said exactly the same thing should exist in the situation of free
speech. It's where that line is and we obviously have a difference of
opinion. The important thing is we're having this debate and it will
be up to the Parliament to decide.
It's all about drawing the line - a very tense debate. Tim Wilson,
Jeremy Jones thank you very much for joining me.
miraculous escape from the Auschwitz gas chamber - when will the
matter be tested for factual truth-content?
number is with me everywhere I go'
survivor responds to news of discovery of death camp tattoo equipment
with mixed emotions: "The number was a constant reminder that the
Germans wanted to destroy me, but the family that I created is my
Efraim, Published: 03.16.14, 0051
don't need to hear that they found something at Auschwitz in order to
remember. The number on my hand and the terrible memories from there
haunt me every day since," said the 76-year-old Auschwitz-Birkenau
survivor Abraham Binet, responding to the article in the British Daily
Telegraph regarding the discovery
of Auschwitz tattoo equipment in Poland.
soldiers used the small metal stamps with embedded needles to tattoo
inmates as they were processed on their arrival at the camp in
German-occupied Poland, the paper said.
to the report, Auschwitz museum director Piotr Cywinski said the
discovery was "one of the most important finds in years."
Binet, who was six years of age when he was sent to the death camp
with his mother and two brothers, remembers well the day that the
number 140005 was tattooed on his forearm.
soon as we got to the camp, we moved through a selection
process," he said. "My mother was sent to the right, to the
labor section, and my twin brother, little sister and myself were sent
to the left to the 'showers', essentially to the gas chambers and
three children survived miraculously when a German officer pulled them
out of the line and handed them over to German SS officer and
physician Dr. Josef Mengele, where they were used for human
were saved, just minutes before our certain death," Binet, who
was born in Czechoslovakia and deported to Auschwitz in 1944,
recalled. "After I was taken away from the queue, it was time to
receive the tattoo. There weren't only stamps, it was done with pins
and the ink was injected into my skin. It was a very painful
procedure, our hands were tied to the table and SS soldiers stood
nearby with a machine gun. Since then, the number is with me
everywhere I go."
three children, who were separated from their mother, managed to
survive the impossible conditions of the death camp. "It was hell
and we conquered it", Binet said. The survivor immigrated to
Israel in 1950, where he established a large family: Five children,
nineteen grandchildren and nine great grandchildren. "The number
was a constant reminder that the Germans wanted to destroy me and my
family. I can't do anything to them, but the family that I created is
Avital, Chairwoman of the Center of Organizations of Holocaust
Survivors in Israel, addressed the new findings: "The discovery
of the tattoo equipment from Auschwitz evokes painful memories for the
survivors about a stamp that was sunk into their flesh and the number
that they carry on their arms till this day."
Avital added, "the discovery is of great importance due to the
vast number of holocaust deniers around the world. Any proof of this
kind puts them in front of a reality that is difficult to ignore, and
helps commemorate and gain recognition for the horrors that occurred.
Dreyfus calls on George Brandis to spell out plans on discrimination
AUSTRALIAN, MARCH 16, 2014 11:21AM
Labor MP Mark Dreyfus has demanded the Abbott government come clean
over what changes it will make to a controversial section of the race
shadow Attorney-General said on today’s Australian Agenda program
that section 18C of the Racial Discrimination Act had served Australia
well for nearly 20 years and needed to be left alone.
comments come after the Institute of Public Affairs this week accused
the government of retreating from its election pledge to repeal the
section, which prohibits remarks that are reasonably likely to offend,
insult, humiliate or intimidate on the grounds of race or ethnicity.
(George) Brandis from opposition said he was going to repeal section
18C, Tony Abbott from opposition said he’s going to repeal 18C.
Since they’ve got to government six months on they’ve been all
over the place, not clear on what’s going to happen,” Mr Dreyfus
up and the government should say what it’s going to do.”
Dreyfus said he welcomed apparent back tracking by the
Attorney-General and prime minister over their promise to repeal the
section, which was used to prosecute columnist Andrew Bolt.
of community groups across Australia have complained to Tony Abbott,
have complained to George Brandis and have complained to their local
very pleased there’s been some back pedalling, so there should
be,” he said.
in The Australian on Friday, University of Queensland law professor
James Allan suggested the Coalition’s claim that the section would
be repealed “in its present form” indicated it could actually be
Senator Brandis said such commentary was “inaccurate”.
Mr Abbott and I have said since the election is precisely
word-for-word what we said before the election, which is that we would
repeal section 18C in its current form; that we would remove from the
Racial Discrimination Act the anti-free-speech provisions which
enabled for example the journalist Andrew Bolt to be taken to court
merely because he expressed an opinion about a matter of public policy
which is offensive to some,” he said.
Dreyfus told Australian Agenda he found it offensive the section might
be repealed because of the impact it had on Mr Bolt.
idea that just because one right wing commentator should have been
found to have contravened the provision, that we should chuck out
something that’s served Australia very well over nearly 20 years, I
find very offensive,” he said.
Dreyfus applauded opposition to the repeal by Liberal MPs Craig Laundy
and Ken Wyatt, who represent multicultural electorates.
reporting: Jared Owens
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