From an analysis by Peter Kohn in The Australian Jewish News (October 10, 2008):
THE arrest of Fredrick Toben at Heathrow Airport could result in the Australian Holocaust denier being brought before a German court and tried under that country’s criminal code.
...Toben could well end up in a German prison, a fate he experienced in 1999, when he spent seven months incarcerated after being convicted on similar charges.
The latest charges, as stated in a European Union (EU) arrest warrant issued by German authorities, involve material the 62-year-old former South Australian schoolteacher posted between 2002 and 2004 on the Adelaide Institute website. Holocaust denial – while not categorised as a crime in Australia – is prohibited by federal anti-discrimination laws.
Interestingly, the material referred to in the EU warrant is part of a greater body of evidence at issue under a civil contempt action launched against Toben in the Federal Court of Australia by Jeremy Jones, in his capacity as former president of the Executive Council of Australian Jewry (ECAJ).
Jones was ECAJ president in 2002 when the Federal Court, in Jeremy Jones vs Fredrick Toben, ruled that the material on Toben’s website had the potential to “offend, insult, humiliate and intimidate” Australian Jews. The court ordered Toben to remove the material and not to replace it, but the continued existence of content of this nature on the Adelaide Institute website prompted Jones to take legal action against Toben in October 2006.
... the 23-month-old civil contempt case before the Federal Court could be affected in different ways by the developments in Europe.
If the Australian Federal Court rules that Toben has breached its 2002 order, it could impose a penalty, including a possible prison sentence to be served after Toben has served his time in Germany.
Alternatively, the Australian court may decide to delay its sentencing until after any German sentence has been served by Toben.As the penalty phase of Toben’s Federal Court proceeding is being held separately from the liability phase, the court could rule that Toben is in contempt, but that it cannot hold a penalty hearing while he is in prison in Germany because he would have a right to give evidence as to why he should not serve an Australian prison sentence.