The end of the beginning

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JEREMY JONES

AFTER a long, complex and considered debate, the Commonwealth Parliament amended the Racial Discrimination Act in 1995 to cover racially offensive or abusive behaviour. The primary motivation for the new law, entitled the Racial Hatred Act, was the lack of recourse available to Australians who were having their quality of life diminished by the actions of racist groups and individuals.

The legislation has now been in place for more than 13 years and, with a prison sentence being served by Fredrick Toben, we can see that there are real consequences for a person who refuses to respect this law.

Fredrick Toben had been disseminating offensive material denying the reality of the Shoah and haranguing victims of Nazism prior to the introduction of the Racial Hatred Act. Once the law came into force, the publication of material in his newsletters and promotion of these and other materials on his internet site prompted a huge volume of communication to me by members of the public who he upset, offended and intimidated — and who wanted the Executive Council of Australian Jewry (ECAJ) to consider action against him.

Toben’s Adelaide Institute’s anti-Jewish content was not the only matter of concern at the time, and the ECAJ gave careful consideration as to what, if any, complaints should be pursued under the new law.

In a relatively short period of time, three complaints were taken to the Human Rights and Equal Opportunity Commission (HREOC). In reflecting on the imprisonment of Fredrick Toben, it is valuable to recall what happened in these cases.

<I>El Telegraph<P>, an Arabic-language newspaper published in Sydney, participated in a conciliation process and eventually published an apology for an anti-Semitic article and also ran an article promoting Jewish-Arab joint efforts to fight racism in Australia.

Olga Scully, a Tasmanian associate of Fredrick Toben, was found by the HREOC to have acted contrary to the law, and subsequently elected to fight her case in the Federal Court. When that court found her to be in breach of the law, she  obeyed court orders and stopped her distribution of anti-Jewish material.

Fredrick Toben continued to act contrary to the law, despite findings against him by the HREOC, the Federal Court, the full bench of the Federal Court (discussing an appeal) and through subsequent legal proceedings concerning his contempt of court.

Each of these cases, as well as other cases with which I have been involved, has helped develop an understanding of what is covered by the law, building precedents to assist subsequent cases. To achieve these precedents, an immense amount of work has been undertaken and completed by a number of people who have contributed enormous time, energy and skill.

The <I>El Telegraph<P> matter established that debate over international politics can be intensely argued, but to insert overt racist stereotypes is not acceptable. It also provided a useful template for settling a dispute where the parties accepted a single instance of offence had taken place, which neither side wanted to see repeated.

The Scully case clarified the way to address a series of relatively small acts resulting in a single campaign, which had invoked many diverse anti-Jewish slurs. Subsequent cases have considered the boundaries of religious or quasi-religious debate and the responsibilities of political parties and journals to distinguish between advocacy and gratuitous racism.

The Toben case determined the way material on the internet is covered under domestic Australian law. Additionally, it recognised Holocaust denial as a fallacy constructed on overtly anti-Semitic foundations. Both these determinations have already served as precedents in other cases.

Since the day Toben exhausted all legal avenues, having been found in breach of the law and subsequently to be in contempt of the rulings of the court and given a prison term, I have been asked many times how I personally feel.

Put simply, working on constructive interfaith endeavours, education initiatives and human rights advocacy can be very rewarding and gives one a great sense of achievement. But the jailing of an apparently unrepentant anti-Jewish propagandist provides no sense of elation or personal vindication, although I am, however, encouraged to see that there have been real and meaningful consequences for breaching and flaunting Australia’s anti-racism laws.

The sad reality is that the multifaceted struggle against anti-Semitism and other forms of racism, in this country and globally, will have been aided by the application of Australian law in this instance, but is far from being over. The Toben saga, for now, is over, but it is only the end of the beginning of the Racial Hatred Act’s early life.

Jeremy Jones AM is the director of international and community affairs for the Australia/Israel & Jewish Affairs Council and a past president of the ECAJ.