Open Letter: To Tim Wilson, Human Rights Commissioner, Sydney, Australia from Fredrick Toben

TobenLetter Hdr

Dear Mr Wilson,

1. The last time I saw you was at the Senate Hearings into the RDA in Melbourne where you presented your passionate plea for sexual tolerance. Now as the new Human Rights Commissioner you stated on ABC TV, Lateline, Friday, 14th of March 2014, that I am motivated by hatred because I am a Holocaust questioner, you’re labeling me a “Holocaust denier” – see below for transcript of session and clip: http://www.abc.net.au/lateline/content/2014/s3963918.htm .

2. Please note that with my German background it is a normal reaction for me to question any accusation leveled against Germans whenever matters Holocaust arise, specifically when this horrendous unexamined accusation is made that Germans with clear intent systematically exterminated European Jews in homicidal gas chambers. See below the story: ‘The number is with me everywhere I go’. This current story is an example of another miraculous escape from the Auschwitz gas chambers, and I ask: When will the matter be tested for factual truth-content? After almost four decades Professor Robert Faurisson’s challenge still stands: ‘Show me or draw me the homicidal gas chamber – the murder weapon of Auschwitz?’  Then there are texts whose content remains unrefuted: Professor Arthur Butz’s classic, The Hoax of the 20th Century, Germar Rudolf’s The Rudolf Report, Carlo Mattogno, Thomas Kues, Jürgen Graf The “Extermination Camps” of “Aktion Reinhardt”, and many other books that in Germany, for example, are banned because they question the pillars on which the Holocaust narrative rests.

3. This act of inquiring into the factual claims, and whether they stand up to scrutiny, cannot be labelled an act of HATE, as you do. In fact, I consider the teaching of matters Holocaust as an act of expressed racial hatred against Germans. Years ago I attempted to bring an action of such nature before the Human Rights Commission but was almost laughed at by the registry staff. Kirsty Gowans at that time advised me that HREOC was a political animal.

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 leveled 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?

7. 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 2013 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.

Kindest regards

Fredrick Toben
toben@toben.biz
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Read further to view the articles mentioned in Toben’s Open Letter

ABC TV
Friday Forum
Updated Sat 15 Mar 2014, 1:01am AEDT
Human 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 Discrimination Act.
Ticky Fullerton
Source: Lateline | Duration: 17min 10sec

TICKY FULLERTON: PRESENTER: The Federal Government is under growing pressure over its plans to repeal provisions in the Racial Discrimination Act. On 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.
Section 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.
To 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.
Gentlemen, thank you for joining me.
Jeremy Jones, why is the Attorney-General wrong to look at appealing section 18C of the Racial Discrimination Act?

 

 
JEREMY 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.
It 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 Australian community.

 

 
TICKY FULLERTON: Tim Wilson, on the other end of things is there any kind of free speech that you believe should be constrained by law?

 

 
TIM 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.

 

 
TICKY FULLERTON: 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?

 

 
JEREMY JONES: 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.
It 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.

 

 
TICKY FULLERTON: And it was 18C that was used?

 

 
JEREMY JONES: 18C was used. I was the complainant in that case. I’m very familiar with that case, obviously.

 

 
TICKY FULLERTON: That was when you were the executive council of…

 

 
JEREMY JONES: Australian Jury, yes. In that capacity.

 

 
So 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 etc.

 

 
TICKY FULLERTON: So Tim Wilson do, you see Holocaust denial as a crime?
TIM WILSON: 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.

 

 
TICKY FULLERTON: Do you see it as a crime under the law?

 

 
TIM WILSON: 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.

 

 
TICKY FULLERTON: 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?

 

 
TIM WILSON: 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 like Australia.
We 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.
We 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.

 

 
TICKY FULLERTON: Jeremy Jones, to you worry like the racial Discrimination Commissioner worries about the slippery slope?

 

 
JEREMY JONES: 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.
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.

 

 
TICKY FULLERTON: 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?

 

 
TIM WILSON: 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.
The 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.
We’re 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.

 

 
TICKY FULLERTON: But it was affected on wasn’t it?

 

 
TIM WILSON: 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.

 

 
JEREMY JONES: 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.
One 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.
We 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.
She 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.
I’ve 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.

 

 
TICKY FULLERTON: 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?

 

 
TIM WILSON: 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.

 

 
TICKY FULLERTON: 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?

 

 
JEREMY JONES: 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 …

 

 
TICKY FULLERTON: 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?

 

 

JEREMY JONES: 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.

And 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.

What 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.

 

 
TICKY FULLERTON: 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.

 

 
TIM WILSON: 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.
The 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.
It 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.

 

 
TICKY FULLERTON: Finally, can I ask you Jeremy Jones, given Tim Wilson’s libertarian views, frankly how do you feel about bill becoming the new Human Rights Commissioner?

 

 

 

JEREMY JONES: 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.

Brian 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.

 

 

 

TIM WILSON: 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.

 

 

 

TICKY FULLERTON: It’s all about drawing the line – a very tense debate. Tim Wilson, Jeremy Jones thank you very much for joining me.

 

 
JEREMY JONES: Thank you.

 

 
TIM WILSON: Thank you.

 

 
http://www.abc.net.au/lateline/content/2014/s3963918.htm

 

Comments

  1. Thanks for publishing this. An interesting read. It will be interesting to read Tim Wilson’s response. I may tweet to remind him.

    FWIW this is my own contribution to the current debate over 18C:
    http://sydwalker.info/blog/2014/04/01/thank-you-malcolm-for-making-my-point/

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