Arbeit macht frei: - Fredrick Töben

your Honour has decided upon, and no issue is taken with that at all, your
Honour. It is however said, and it may well be that your Honour views this
as not taking the matter very far, and that of course would be a matter for
your Honour, but it is said, and one example is the one I’ve already given,
that is can’t – your Honour should not approach the task of sentencing on
the basis that Dr Toben has properly been found to have been
uncooperative in the past.
HIS HONOUR: But I won’t of course, I won’t. What I’ll have to decide
is whether or not there are relevant circumstances to explain why he
committed the 24 separate acts of contempt since November 2007 and
what circumstances are relevant to him which would impact upon any
penalty which is to be imposed. It would not, I think, be relevant at the
moment for me to inquire into the degree of cooperation shown by Dr
Toben in 1996 when he was the subject matter of an inquiry by the
Human Rights and Equal Opportunity Commission. That would seem to
me to be entirely irrelevant, and I’m not sure why he raises it today in the
affidavits which have been filed.
But more particularly, I don’t think, as I read the affidavits, both of the
affidavits in conjunction with each other, I don’t think it’s raised for those
circumstances. The implication in the affidavits is he was badly treated by
the Commission and that there was something sinister about the way the
Commission went about its business. Those matters could not be relevant
in any circumstance.
MR PERKINS: Your Honour, this is a superior court of record, and as
such its orders must be obeyed, and that’s the entire statement that one
makes about the matter. But - - -
HIS HONOUR: Well, that’s so.
MR PERKINS: But there is this, your Honour, this is a superior court of
record under the Constitution, and it is contended that the treatment of
Dr Toben in the Human Rights Commission was not in accordance with
the Constitution, and in particular was not such as to provide him with due
process.
HIS HONOUR: Well, there’s a confusion of principle there, isn’t there,
with respect? Whilst you’re right, the Federal Court is a superior court of
record and is established under chapter 3 of the Constitution, the Human
Rights and Equal Opportunity Commission is not. It’s neither a court, nor
established under chapter 3 of the Constitution. It has a different function
to the court, and whether it carried out its function properly,
appropriately, is a matter for separate inquiry. It’s not a matter for an
inquiry in relation to Mr Toben’s conduct after 27 November 2007, which
is the date upon which I have said that this inquiry ought to commence.
MR PERKINS: Your Honour, I’ve said that I accept that the fact of this
of this court is a superior court of record has certain effects, but what is
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