80 There is no evidence before the Court which links any of the material identified in paragraph 9 of the applicant's affidavit, other than the material identified in subparagraph (a), with the material identified in paragraph 14 of the statement of claim.
81 The document headed "About the Adelaide Institute" referred to in sub-paragraph 9(a) of the applicant's affidavit includes the following material:
"We are a group of individuals who are looking at the Jewish‑Nazi Holocaust, in particular we are investigating the allegation that Germans systematically killed six million Jews, four million alone at the Auschwitz concentration camp. In our investigations we refuse to be intimidated by anyone because we believe that the first step in any murder investigation is to forensically test the alleged murder weapon. In the Auschwitz murder case, certain individuals wish to prevent us from focusing upon such an investigation.
The latest version of how the Germans gassed millions of Jews at Auschwitz is propagated by Professor Deborah Lipstadt of Emory University in the U.S.A. who claims that mortuaries were converted into homicidal gas chambers. Proof of this is apparently found in so-called 'conversion plans'. We have requested of Professor Lipstadt and of the Holocaust Museum, Washington, to provide us with copies of such conversion plans. We are still waiting for them to provide us with these plans.
In the meantime we have noted the original four million Auschwitz death figure had been reduced by Jean Claude Pressac to a maximum of 800,000. This in itself is good news because it means that around 3.2 million people never died at Auschwitz - a cause for celebration.
We are worried about the fact that to date it has been impossible to reconstruct a homicidal gas chamber. Even the Holocaust Museum in Washington informed us that it could not bring one across from Europe because there are none available. This is like a space museum without a rocket or the Vatican without a Crucifix. We are justifiably sceptical about the homicidal gas chamber claims.
We reject outright that a questioning of the alleged homicidal gas chamber story constitutes 'hate talk', is 'anti-Semitic', or 'racist', or even 'neo‑Nazi' activity.
The director of the Adelaide Institute, Dr Fredrick Töben, puts it thus:
'If I offend anybody because I show poor taste in my sometime blunt and honest questioning, then I apologise. However, if I offend because if am politically incorrect by asking uncomfortable questions, then I claim it as my right, under the free speech principle, to say these things.'
We at the Adelaide Institute also focus on the Jewish-Bolshevik Holocaust, a matter which Australian author Helen Demidenko‑Darville has raised in her book The Hand That Signed The Paper. The controversy generated by this novel still continues.
Adelaide Institute associate, Mr David Brockschmidt, sums up the essence of Demidenko‑Darville's "crime" in writing this book:
'The merit of Helen Demidenko‑Darville's novel - and hidden agenda of the anti‑Demidenko affair - is that she has revealed a basic historical fact, viz, that Lenin's henchman, Trotzky (Bronstein) and Stalin's henchman, Kaganovich, were Jewish mass murderers. This historical fact clearly shows that Jews are not always victims in history, but also murderers. Australia's mass media has failed to publicise this important fact. Why?'
…
So, be warned - this final intellectual journey is not for the faint‑hearted. If you dare to seek the truth, in particular about the alleged homicidal gassings, then you will be smeared, libelled and defamed by those who are intellectual midgets but materialistic giants.
If you are mentally strong enough to seek the truth of the matter, then force an open debate. Don't get side tracked by details and always refocus on the basics. Too many individuals drown in a sea of particulars.
People who claim that during World War II, the Germans gassed millions of Jews are levelling three allegations at the Germans:
1 They planned the construction of huge chemical slaughter houses;
2 They constructed these huge chemical slaughterhouses during the middle of WWII; and
3 They used these huge slaughterhouses to exterminate millions of Jews.
Any normal person familiar with bureaucratic red tape will now ask: What proof is there to back up these claims? Firstly, where are the plans of this enterprise? Secondly, where is the budget needed to finance the massive enterprise? Finally, it is inconceivable that such a massive undertaking would get past first base without an executive order. To date, we have been led to believe that "a wink and a nudge" began the alleged extermination project.
We at Adelaide Institute believe that those who level the homicidal gassing allegations at the Germans owe it to the world to come up with irrefutable evidence that this happened.
Instead, these defamers and libellers of the Germans use legal means to stifle debate on the topic. They claim that anyone who asks questions is engaging in "hate‑talk", is "anti‑Semeitic" [sic] is a "racist", even a "neo‑Nazi".
If that doesn't work, then physical violence is used to silence those who want to know the truth.
So, come on board if you have the courage to look for the truth. We naturally maintain that should -after fifty years - proof of the homicidal gassings be forthcoming, we shall gladly publicise this as well. To date, there has been no proof offered to the world. Robert Faurisson sums it up well; 'no holes, no Holocaust!'
We are not 'holocaust deniers'. We proudly proclaim that to date there is no evidence that millions of people were killed in homicidal gas chambers. That is good news all round. Why would anyone find this offensive? We are celebrating the living who were thought dead. How can this be an offence - unless it offends those who have their snout in the trough which Jewish academic, Dr Frank Knopfelmacher called, "the Holocaust racket"."
82 It is necessary to determine two issues. First, whether the publication of the above material, or any of it, "is reasonably likely, in all of the circumstances, to offend, insult, humiliate or intimidate" a Jewish Australian or a group of Jewish Australians (s 18C(1)(a)). Secondly whether the publication of the above material was done because of the ethnic origin of Jewish Australians (s 18C(1)(b)).
83 In Jones v Scully at [98]-[99] Hely J said:
"The use of the words 'reasonably likely' in s 18C(1)(a) sets up an objective test or standard: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615; Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [12]. In Hagan, Drummond J stated at [15]:
'It is apparent from the wording of s 18C(1)(a) that whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant. An objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section. The question so far as s 18C(1)(a) is concerned is not: how did the act affect the particular complainant? But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?'
As the test is an objective one, it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question. But the analogy provided by the cases on s 52 of the Trade Practices Act 1974 (Cth) suggests that evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible on, but not determinative of, the issue of contravention. In the s 52 context, idiosyncratic evidence from consumers about how they reacted when reading documents said to be misleading is not to be ignored, but it is not determinative. The Court must make an objective assessment of the position itself: ACCC v Optell Pty Ltd (1998) ATPR 41-640 at 41,082. Whether that evidence is of any, and if so, what weight depends upon the circumstances. However, in his second reading speech on the Racial Hatred Bill the Attorney-General said:
'The Bill requires an objective test to be applied by the Commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account.'"