JONES v. TOBEN Australia CASE SUMMARY
Prepared by Richard Warman 19 September 2002
FEDERAL COURT OF AUSTRALIA
JONES v. TOBEN  FCA 1150
Decision rendered: (17 Sept. 2002)
Decision Summary: The Court found that the respondent Fredrick Toben, the Director of the “Adelaide Institute”, had engaged in conduct that violated Part IIA of the Racial Discrimination Act 1975 (Cth) by publishing on his website at adelaideinstitute.org (and other mirror sites) and through printed newsletters Holocaust denial and other anti semitic material. The Court ordered that Toben remove the material from his web sites, and that he be restrained from continuing to distribute the same or similar material via web sites or otherwise, and that he be required to pay the applicant’s costs.
On 5 October 2000, the Human Rights & Equal Opportunity Commission (HREOC) found that Fredrick Toben had engaged in unlawful conduct violating the Racial Discrimination Act 1975 (Cth) by publishing material that vilified Jews on the Adelaide Institute website. The Commission ordered Mr. Toben to remove the material from the web site, and to forward a letter of apology to the complainants in the terms set out in the Commission’s decision.
On 30 March 2001, Jeremy Jones began proceedings in the Federal Court of Australia to enforce the decision of the Commission. Under the provisions of the Act at that time, the hearing before the Court was considered a hearing de novo although the Court could accept as evidence the decision of the Commission, as well as a copy of the record and documentary evidence that was before the Commission.
Racial Discrimination Act
Part IIA of the Act is headed “Prohibition of Offensive Behaviour based on Racial Hatred”, the relevant sections of which are ss. 18(B, C, and D). Reason for doing an act
s. 18(B) If:
(a) an act is done for two or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purpose of this Part, the at is taken to be done because of the person’s race, colour or national or ethnic origin.
Offensive behaviour because of race, colour or national or ethnic origin
18C (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.
18C(2) “For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writings to be communicated to the public;...
18(D) Section 18(C) does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
Jeremy Jones is president of Executive Council of Australian Jewry. Fredrick Toben is the Director of the ‘Adelaide Institute’.
The Court engaged in only a minimal review of the HREOC proceedings and this is summarized above.
Proceedings in the Court
The application by Mr. Jones was filed with the Court on 30 March 2001. At the early stages of the proceedings, Mr. Toben represented himself indicating that he had been unsuccessful in seeking to retain legal counsel. On 10 July 2001, Justice Branson declined to accept what Mr. Toben described as his “response and counterclaim” accompanied by an affidavit. After perusing the documents, Justice Branson described them as; a) failing to meet the requirements of the Federal Court Rules, b) being argumentative in that they sought relief against the applicant’s “Stalinist-like court actions” and “blatant totalitarian behaviour”, c) largely irrelevant to any question before the Court, and, d) making serious ad hominem attacks against the applicant and others including another Justice of the Federal Court.
After Justice Branson refused to accept his documents, Mr. Toben requested that the proceedings be moved, that the application be dismissed because the applicant was a “known Zionist” and “racist” and that Justice Branson recuse herself on the basis of bias.
Justice Branson indicated to Mr. Toben that such requests should be brought in the form of motions to the Court and should be devoid of any material that “is simply scandalous in nature”. Justice Branson set down further dates for the filing and hearing of these motions if brought by Mr. Toben.
Mr. Toben filed a medical note with the Court indicating he would be unable to attend the scheduled Court hearing. The Court date was rescheduled for 15 August 2001 as a result.
Correspondence submitted by Mr. Toben seemed to indicate that he felt that he had filed a motion based on documents submitted to the Federal Court Registry. These documents sought a declaration that Mr. Toben was not in breach of the Racial Discrimination Act, that the hearing be moved to his location, that Justice Branson be removed for bias, and that the applicant be ordered to pay his costs. The document was supported by what Mr. Toben purported to be an affidavit arguing that Mr. Jones and the Executive Council of Australian Jewry were out to persecute him and that he was unable to secure legal counsel because they, “fear being pressured by the Applicant’s Zionist racist organisation...”. The document went on to question the policy basis of the Racial Discrimination Act, compared those involved in the administration of the Act to Nazi defendants at Nuremburg who claimed to be ‘just following orders’, and included “comments defamatory of a number of individuals, including another judge of the Court”.
Mr. Toben was advised that the materials did not meet the requirements of the Federal Court Rules, but that Mr. Toben could peruse copies of the Rules through the Federal Court Registry.
Subsequently, Mr. Toben filed a request on 28 August 2001 that the proceedings be adjourned for “at least six months” on the basis that; a) he had been ill and unable to work on the matter, b) his inability to secure legal counsel because such counsel, “fear the Australian Jewish Zionist’s power”, and thus the proceeding should be stayed, and d) that his father was dying and required his assistance.
At a hearing on 18 October 2001, Justice Branson declined to stay the proceedings or adjourn them for 6 months. The applicant was directed to file and serve a statement of claim by 1 November 2001, and that the respondent file his defence by 15 February 2002 in light of his need to assist his siblings in attending to his father. Mr. Toben did not bring a motion for Justice Branson to disqualify herself, but nonetheless Justice Branson indicated that she, “did not consider that [she] was unable to bring a fair mind to the hearing and determination of the proceeding, nor did [she] think that an informed, reasonable person might think that [she] would be unable to do so.”
On 25 February 2002, Mr. Toben filed with the registry a document that was again argumentative, “was in no way responsive to the statement of claim”, and did not meet the requirements of the Federal Court Rules. Mr. Toben also filed a separate document entitled as a notice of motion for dismissal of the application.
At the hearing on 14 March 2002, Justice Branson indicated that she would stand down the case until a defence had been filed or either party filed motions seeking interlocutory relief.
On 20 March 2002, applicant file motion for summary judgement, on 2 April 2002, respondent filed motion for summary dismissal including on the grounds that the RDA is unconstitutional.
At a hearing on 4 April 2002, Mr. Toben again asked that the proceedings be adjourned indefinitely based on his unsupported assertion that he was unable to secure legal counsel. Justice Branson rejected this request, and directed Mr. Toben to issue notices of constitutional question as required under the Judiciary Act. Mr. Toben’s appeals of these decisions were rejected by the Full Court on 21 May 2002.
On 4 June 2002, Mr. Toben requested that he be permitted to be represented by a lay person who admitted to having no experience with the Federal Court. The respondent objected to this request. Justice Branson offered Mr. Toben a 10-day extension in which to file a defence during which time his request to be represented by this individual would be considered. Mr. Toben apparently expressed his opposition to this course of action, and again pressed his request that he be permitted to be represented by the lay person. When Justice Branson explained that she would consider the matter more fully if it could be shown that the lay person could contribute in some useful way, Mr. Toben in a dubious means of retaliation indicated that he would not speak anymore during the proceeding.
On 18 June 2002, and 2 July 2002, the Court heard the applicant’s motion for the striking out of Mr. Toben’s submissions to the extent that they purported to be legitimate pleadings, and for summary judgement and corresponding orders based on Mr. Toben’s failure to follow the Court’s direction that he file a defence by 15 February 2002.
In her decision, Justice Branson reviewed the relevant Federal Court Rules and case law and came to the conclusion that, “it was apparent by 14 March 2002 at the latest that the respondent was unwilling to co-operate with the Court and the applicant in bringing this proceeding to trial within an acceptable period of time or at all.” [para 56]
Justice Branson rejected Mr. Toben’s repeated assertions that he was unable to obtain legal counsel in the absence of any supporting evidence and that it was likely that his efforts had been restricted to attempting to obtain pro bono legal assistance without making any argument that he was unable to pay for such help.
Further, Justice Branson indicated that given Mr. Toben’s extensive post secondary education, he would have been able to file a defence on his own with the assistance of registry staff had this been his intent.
Justice Branson went on to cite the Canadian Human Rights Tribunal decision in Citron v. Zundel with regard to the nature of the internet, and the evidence supporting the fact that Mr. Toben was in fact in control of the web sites and the Adelaide Institute.
NB - At paragraph 73, Justice Branson found that,
In my view, the placing of material, whether text, graphics, audio or video, on a website which is not password protected is an act which causes words, sounds, images or writing to be communicated to the public in the sense that they are communicated to any person who utilises a browser to gain access to that website.
Clearly this part of the decision will raise concerns regarding the ability of racist groups within the Australian context to create web sites that are password protected, and therefore may be argued to be outside the prohibitions against racial hatemongering found in the RDA.
After reviewing the content of the web site complained of by Mr. Jones, Justice Branson adopted the reasoning found in the recent Australian case of Jones v. Scully with regard to whether the material in question violated community standards. Justice Branson found at paragraph 88 that the material published by Mr. Toben on his web site conveyed the following imputations that were reasonably likely to offend and insult Australian Jews:
(a) there is serious doubt that the Holocaust occurred;
(b) it is unlikely that there were homicidal gas chambers in 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, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
After finding that Mr. Toben could not avail himself of any of the defences offered under the Act, Justice Branson stated that, “I am satisfied that the respondent has committed an act that is unlawful under the RDA and I find that the complaint made to HREOC on 31 May 1996 by the applicant has been substantiated.” [para 102]
The applicant had sought an order that the respondent had engaged in unlawful conduct contrary to the Racial Discrimination Act by publishing on his web site the material in question, an order restraining the respondent from continuing such activity, an apology, and an order for costs.
The Court felt that as in the Jones v. Scully decision, ordering an apology would be futile under the circumstances.
With regard to the potential ability of others to attempt to subvert any court orders to remove content from the respondent’s web site, Justice Branson adopted the reasoning of the Cdn. Human Rights Tribunal in Zundel where they indicated that further complaints could be filed, and that the decision would have symbolic, educational and preventive value as well.
The Court ordered that Mr. Toben remove within seven days certain specific anti-semitic material as well as any other material that conveys that:
(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, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
Justice Branson further issued a restraining order that Mr. Toben not publish, or republish to the public either by himself or through any agent or employee any material outlined above either on the Internet or otherwise [presumably this will encompass Mr. Toben’s printed newsletters as well].
Federal Court of Australia 17 September 2002
JONES v. TOBEN Australia
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