Jul 4, 2011

Distortion in report on Toben case

Begin forwarded message:

From: "Fredrick Toben" <>
Date: July 4, 2011 7:03:02 AM EDT
To: "'Michael'" <>
Subject: Distortion in report on Toben case

The matter was not run as a defamation case


Holocaust denier Fredrick Toben angry over court costs

·         AAP, July 04, 2011 1:49PM

HOLOCAUST denier Fredrick Toben doesn't want to pay court costs he's incurred trying to avoid bankruptcy for not paying court costs.

Toben told the Federal Court in Adelaide he has settled $56,000 in court costs after a bankruptcy motion was made against him by Jeremy Jones, former president of the Executive Council of Australian Jewry.

Mr Jones had successfully sued Toben for defamation for publishing anti-semitic material on his revisionist Adelaide Institute website and wanted to enforce the motion after Toben's cost bill was not paid on time.

Toben went back to the court arguing he should not be made bankrupt because his former lawyer had failed to respond to the bankruptcy claim within 21 days.

Toben said he wanted to run for federal parliament at the next election and could not do so as a bankrupt.

In the court on Monday, he said he had paid the $56,000.

Representing himself, Toben said it would be "highly unjust" if he now had to also pay the costs of trying to avoid bankruptcy.

The matter was remanded until Friday, when he will appear in the Federal Court in Adelaide via video link from Sydney.




Opposition Leader embraces multiculturalism as Dutch walk away

·         Ted Lapkin The Australian June 28, 2011 12:00AM

LAST Saturday, Opposition Leader Tony Abbott indicated at the federal Liberal Party council that he was embracing multiculturalism. Meanwhile, last week the Dutch government joined German Chancellor Angela Merkel, British Prime Minister David Cameron and French President Nicolas Sarkozy in rejecting multiculturalism.

A new Integration, Bonding and Citizenship Bill introduced by the centre-right Dutch government declares The Netherlands "steps away from the model of a multicultural society".

The legislation halts special subsidies to ethnic groups and will allow for the revocation of visas for immigrants who refuse to learn Dutch. It even slashes welfare benefits for those whose "actual chances of obtaining employment [are] hindered by their behaviour or clothing".

This legislation reflects concern in Europe at the social tensions arising from the presence in their midst of large unassimilated immigrant communities. The integration bill will pass the Dutch parliament with the support of Geert Wilders's Partij voor de Vrijheid, the third largest bloc in the Dutch parliament.

That may look like a second win for the conservative politician who, in the same week, was acquitted on hate speech charges. But when one considers that these charges should never have been laid, the Wilders not-guilty verdict is transformed into a pyrrhic victory, at best. The MP was dragged before a court in Amsterdam and charged with five counts of inciting racial and religious hatred over statements he made that were critical of Islam.

The story of Wilders's criminal trial is filled with enough implausible plot twists and turns to make it worthy of inclusion in the soap opera hall of fame.

The Dutch Public Prosecution Service initially declined to lay charges, arguing that although Wilders's statements were "hurtful and offensive for a large number of Muslims does not mean they are punishable". Wiser words have never been written.

But the complainants against Wilders appealed and a higher court ordered that he be brought to trial. If convicted, the MP faced 16 months' imprisonment and a 10,000 euro ($13,500) fine.

Last October, the case was thrown into disarray when the presiding judges were dismissed over allegations of witness tampering and anti-Wilders bias. A new trial before a fresh judicial panel was ordered and it was this second case Wilders won.

"The bench finds that your statements are acceptable within the context of the public debate," Judge Marcel van Oosten wrote in his acquittal ruling. "The bench finds that although gross and denigrating, they did not give rise to hatred."

But what if Wilders's comments did promote animus or even ethnic hostility? Should the heavy hand of the state's coercive power be invoked to quash certain types of speech that some people find offensive, insulting or simply downright upsetting?

As in the Netherlands, there are laws on the books in Australia stating the answer to that question should be yes. The Commonwealth Racial Hatred Act 1995 makes it unlawful to engage in behaviour that is likely to offend or insult people on grounds of race, colour or national or ethnic origin. This is the law under which Herald Sun columnist Andrew Bolt is being prosecuted before the Federal Court of Australia.

The quashing of speech on the basis of its political content is fundamentally inimical to democracy. Every point at which freedom of expression is curtailed by government coercion means a point where parliamentary debate and the media dare not go.

Not only does this undermine our political liberties, but its social effect achieves the opposite of its declared intent. Rather than promoting peaceful coexistence, this regime of political censorship sets loose the spectre of official tolerance enforcers.

The Racial Hatred Act empowers the paranoid and petulant. And by rewarding those with the biggest chips on their shoulders, it exacerbates the ugly victim group sweepstakes that has come to dominate ethnic politics in Australia.

Today's paladins of political correctness may be comfortable restricting the speech of those whom they detest. But do we really want to create a precedent that allows the quashing of speech merely because some people find it offensive? Can anyone guarantee that the political landscape of the future won't shift and those very same measures be turned against matters near and dear to us?

Once that horse is out of the stable, there's no way of knowing which way it will run. Remember the oldest law of politics is that of unintended consequences. Be careful what you wish for, you may get it.

Political discourse in a true democracy must by necessity be rough and tumble. And if some people take offence at rough words said by others, that's simply the price we pay for living in a free society. Our rights as free democratic citizens begin to crumble at the point where regimes of censorship begin.

Like Wilders, Herald Sun columnist Bolt has been dragged before a court simply because some people deemed his words to be insulting. And as Wilders did, I hope Bolt will emerge victorious from his legal nightmare.

But even if my friend Andrew Bolt ultimately wins, he also loses. Think of the thousands of dollars incurred in legal fees. Think of the public humiliation of having to rebut those absurd "when-did-you-stop-beating-your-wife" allegations of racism.

The dampening effect on free expression from the Bolt case is undeniable. And, regardless of the outcome, that makes us all losers.

Ted Lapkin is a former ministerial adviser to the federal Coalition.


Related Coverage

·         Verbally challenged The Australian, 5 days ago

·         Wilders acquitted in hate trial The Australian, 10 days ago

·         MP cleared of Islam hate speech Courier Mail, 10 days ago

·         MP acquitted on hate speech charges The Australian, 23 Jun 2011

·         Triumph of common senseThe Australian, 3 May 2011


Verbally challenged

·         The Australian 

·         June 29, 2011 12:00AM

TO my lay mind, the Commonwealth Racial Hatred Act ("Opposition leader embraces multiculturalism as Dutch walk away", Commentary, 28/6) is repugnant.

It's an imposition on democratic free speech, is unfairly applied and in principle unworkable. It does not define hatred, which might cover the spectrum from feelings of mere distaste to murderous thoughts. Worse, it makes no mention of what turns out to be the common ingredient of all prosecutions, that the race or religion of the offender differs from that of the offended. So it's not about the words used but who delivers them to whom. I could say things to a fellow Caucasian, or a fellow Jew, or a fellow atheist that would incur a far different risk of prosecution than if I said them at random to another Australian. What an awful law.

Tom Biegler, St Kilda East, Vic


·         The Australian June 30, 2011 12:00AM

TOM Biegler's criticism of the Commonwealth Racial Hatred Act is misconceived.

In Toben v Jones, the Full Federal Court accepted that Australia has a public interest in punishing the dissemination of ideas based on racial superiority or hatred, and that there is no public interest in promoting them. The court ruled that reasoned, fairly expressed, appropriately qualified policy debate is permissible, but sweeping, public derogatory generalisations about any racial group are impermissible. That is the line that should be drawn.

In his famous "Essay on Liberty", English philosopher John Stuart Mill recognised that liberty is measured not by the freedom exercised by one person, but rather by the freedoms exercised by us all. That concept is central to the Australian ethos of a fair go. You give your mate a fair go, because that is the right thing to do and once you accept the concept of a fair go for all Australians, you cannot support the position of an absolute right to free speech.

The test of a healthy democracy is not only the freedom of each individual to do as they please, but also the protections put in place to protect the weaker members of society against abuses of those very freedoms.

One of those protections is the protection against vilification. Vilification, intimidation and bullying actually stop or deter the exercise of the right of free speech by the victims of the vilification, intimidation and bullying.

David Knoll, Coogee, NSW


Free speech has limits in the law

Michael Lavarch , The Australian, April 09, 2011 12:00AM

MAYBE it is a left-brain-right-brain thing, but I have always been bemused why public interest limitations on freedom of speech for economic benefit are quietly accepted, while limits designed to protect our collective human rights attract vocal debate. The recent Federal Court hearing concerning a complaint of racial vilification against voluble multimedia commentator Andrew Bolt brings this dichotomy clearly into focus.

Bolt has been asked by nine complainants relying on provisions in the federal Racial Discrimination Act to account for a series of articles published in the Herald Sun.

These provisions came into law in 1995 and were introduced by me as attorney-general in the Keating government. The bill I took to the parliament was substantially amended in the Senate with only civil, as opposed to criminal, sanctions for racial vilification making it into the law.

Then, as now, the provisions raise questions about the place of racial vilification laws within a society committed both to an individual's right to free speech and the maintenance of a truly civil society.

Free speech is the oxygen of a liberal democracy and market economy. But like oxygen, it is recognised that it is possible to get the mix wrong, and this has the potential to cause great harm to individuals, groups and the entire community. That is why we accept restrictions on unfettered free speech for social and economic policy reasons.

But this form of expression is also heavily regulated with some rules demanding that information be given, such as the continuous disclosure regime required of public companies, and, in other cases, restrictions on unfettered expression such as the Trade Practices Act provisions on deceptive and misleading conduct.

When it comes to individuals, we accept that a person's reputation is of value and that remedies should be provided for defamation. Equally, the flow and use of personal information gathered by governments and corporations on each of us is extensively regulated, with restrictions on the use of information imposed by privacy laws.

Probably the most clear-cut example of the public accepting a limitation on free speech is in the field of censorship, particularly in laws criminalising the dissemination of objectionable material, such as child pornography.

The common theme in each of these cases is that, while free expression may be the starting point, some level of regulation is accepted as furthering the wider public interest.

This equally applies in Australia's human rights regime, which is based on an amalgam of a high-level constitutional skeleton and of flesh supplied by parliaments in various laws, particularly anti-discrimination legislation, and maintained by our courts through common law traditions and decision-making under statutory provisions.

Freedom of political expression has been constitutionally endorsed by the High Court but our laws and our judges equally accept that freedom of speech is not absolute.

The provisions relied on in the Bolt case have been in place nationally for 16 years, with similar laws operating within some states prior to this.

If the laws were going to "chill" free speech or shut down robust public debate about potentially sensitive issues surrounding race, then it is likely that evidence of this would have emerged long before now.

Yet no shock jock has been taken off the air or newspaper columnist closed down.

What has happened is that many thousands of complaints under the laws have been dealt with through the confidential conciliation processes of the Human Rights Commission, with scores of determinations made initially by the commission and now by federal magistrates.

And in a handful of cases that have not been settled or resolved at an earlier stage, a judgment has been delivered by the Federal Court. This means that the scheme of the law, as intended by the Keating government, has largely come to pass.

In 2009-2010 the Human Rights Commission fielded 632 inquiries and 166 formal complaints about racial hatred. About a quarter of the complaints dealt with items in the mainstream media. Most were conciliated or ultimately withdrawn, with only a small number going before a federal magistrate for a ruling.

Simply resolving the issue through bringing the parties together is the principal aim of the commission's complaint-handling function.

There is varying opinion as to the success of the laws. Some academics argue that the laws place too great a weight on the maintenance of free speech to effectively target racial hatred.

The lack of criminal provisions about the incitement of racial violence is criticised by international reviewers of Australia's human rights regime.

My greatest concern about anti-discrimination laws generally is that the remedies provided are more likely attempted by those with access to reasonable support and advice, while the most disempowered in the community are least likely to understand their rights and access the commission.

Whatever the validity of these criticisms the one thing that is entirely clear after 16 years' experience is that the law does not stifle free speech.

The true value of racial vilification laws is not in turning the heart of the racist, as no law can do this.

The intent is not to stop unpopular or contentious matters about race being raised. The design of the laws both envisages and then expressly provides for public interest debate and fair comment.

Rather, the value of the law is to require those engaged in contentious debates to reflect on the accuracy of their arguments and the supporting facts before these are used.

For history tells us that overblown rhetoric on race fosters damaging racial stereotyping and this in turn can contribute to societal harm well beyond any deeply felt personal offence.

Michael Lavarch is executive dean, Queensland University of Technology faculty of law, and a former commonwealth attorney-general. He wishes to disclose that he is the partner of Larissa Behrendt, one of the complainants in the case against Andrew Bolt.


Related Coverage

·         Free speech The Australian,4 days ago

·         Abbott embraces multiculturalism The Australian, 6 days ago

·         Judicial imperialism claim hollow The Australian, 10 days ago

·         New Right-wing party on the rise Herald Sun, 21 Jun 2011

·         Integrity is in shifting shadesThe Australian, 14 Apr 2011

In the economic sphere, the essence of a functioning market is the free flow of information.


Behind the scenes of Holocaust henchman Adolf Eichmann's trial

·         Alan Gold, The Australian, June 18, 2011 12:00AM

Adolf Eichmann

Nazi SS officer Adolf Eichmann is condemned to death in an Israeli court in 1961. SOURCE: Supplied

WHEN Adolf Eichmann, "the architect of the Holocaust", was captured by Mossad agents in Argentina in 1960 and spirited out of the country, his trial in a civilian court in Jerusalem became a cause celebre.

Was the 13-year-old nation of Israel breaking international law by kidnapping Eichmann? Could he receive a fair trial in a nation created as a refuge against Hitlerian anti-Semitism? Could an Israeli lawyer be found who would act as defence counsel? Did a court in Jerusalem have jurisdiction over crimes perpetrated in Nazi Europe?

Israel insisted it had an inalienable right, as the homeland of the survivors of the Nazis, to put on trial a man who had been a key player in the slaughter of six million Jews. There was a strong opposing view, however, that Eichmann should be be tried in his native Germany or by an international tribunal.

The trial went ahead, Eichmann was found guilty of crimes against humanity and hanged. It was a turning point in international justice. The way the court was convened and evidence presented meant Holocaust survivors didn't testify to what Eichmann had done to them personally but to the horrors caused by his efforts as part of the Nazi machinery.


·         Hitler's evil revealed in early letterThe Australian, 8 Jun 2011

·         Major events on this day in historyThe Daily Telegraph, 30 May 2011

·         The benign face of evilThe Australian, 20 May 2011

·         Archbishop says justice not servedThe Australian, 6 May 2011

·         Last Post, 7 MayThe Australian, 6 May 2011

Deborah Lipstadt, professor of modern Jewish history and Holocaust studies at Emory University in the US, has marked the 50th anniversary of the case with The Eichmann Trial, a forensic examination of the event, its aftermath and consequences. Explaining her approach, and the importance of the trial, Lipstadt writes that the prosecution

by relying on a succession of witnesses -- people who could speak in the first-person singular about the horrors of the Final Solution -- put a human face on genocide.

This approach became the template for subsequent war crimes prosecutions, such as that of Slobodan Milosevic and Charles Taylor, the Eichmann trial having "made it clear to the world at large that the victims were not 'just' a multitude of people but were millions of individuals".

One of the observers of Eichmann's trial was philosopher Hannah Arendt, who in 1963 published Eichmann in Jerusalem. Arendt concludes that, far from being the personification of evil, he was a dull little clerk, a cog in the dreadful technology of mass murder. So ordinary was he that she explains away his work, and the way other plain people became swept up in the wickedness of the state, in her famous phrase, "the banality of evil".

It is her way of conveying how circumstance, rather than intent, fashioned him. Arendt also claims Eichmann was motivated not by anti-Semitism but by a desire to be seen as a good employee.

Lipstadt takes aim at Arendt's book. Her reading of the evidence shows Eichmann to have been motivated by hatred and anti-Semitism, and a desire to put into effect Hitler's Final Solution. He portrayed himself as a functionary obeying orders, but Lipstadt shows that his youth was suffused with anti-Semitism and his SS training drove him to become a willing participant in Nazi crimes.

The Eichmann Trial is not Lipstadt's first book about the world's oldest hatred. In 2000, she wrote Denying the Holocaust: The Growing Assault on Truth and Memory, in which she accused British historian David Irving of being a Holocaust denier. Irving sued her and her publisher in a London court and amazingly, five decades after the end of the war, Lipstadt proved not just that the Holocaust did occur but that deniers' claims are based on lies, distortions and falsification of evidence.

In this new book, Lipstadt proves beyond question the subsequent importance that the capture, prosecution and judgment of this banal yet evil man has had for all victims of genocides, living as well as dead.

Alan Gold is a novelist and critic.

The Eichmann Trial
By Deborah Lipstadt
Doubleday, 272pp, $45 (HB)



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