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Tuesday, 24 February 1987
Page: 498


Senator DURACK(3.05) —On behalf of the Opposition I wish to address a few remarks to the statement put down by Senator Evans on behalf of the Attorney-General (Mr Lionel Bowen) concerning the report by Mr Menzies on nazi war criminals in Australia. The Senate will recall that the report was tabled in this chamber on 5 December last year and that, on behalf of the Opposition, I made some comments. I will now adopt and repeat what I said then. However, since the statement was discussed in the Senate, although not debated at any length, the Government has given further consideration to the Menzies report. The statement today indicates the decision the Government has made and what steps it intends to take following the report.

The Opposition agrees with the view of Mr Menzies and the Government that the mere fact that war crimes may have been committed 40 years or more ago is no reason why we should now close the chapter, as was argued by Sir Garfield Barwick on one occasion many years ago when he was Attorney-General. The view expressed by Sir Garfield Barwick in the early 1960s is not a view which the Opposition or the Government holds. The recommendation of Mr Menzies has bipartisan support in this chamber. The only question now is as to how one defines `war criminals', which is a very difficult question. A very fundamental distinction is drawn by Mr Menzies in his report which I referred to in this chamber on 5 December, namely, the mere fact that a person may have been a member of the nazi party, may have served in German forces or forces allied to Germany, or collaborated with German occupying forces, or may have even held racist views is no reason why that person should be classified as a war criminal. Even though we may feel abhorrence at views which may have been expressed or at activities of the kind I have mentioned, they do not amount to war crimes. Mr Menzies indicated what he regards as war crimes. They have been defined in many international instruments in recent years. In the statement the Attorney-General sets out and adopts the Menzies recommendations about what would be regarded as war crimes. The statement says:

The Menzies Report sets out the types of crime which would always be a concern, no matter how long ago they were committed:

Participation in police or so called `security' units which had the task of deporting, ill-treating or murdering persons on racial or political grounds . . .

Participation as guards or administrators in the operation of German established concentration camps or prisons at which large numbers of people were murdered of ill-treated;

Participation in national or local puppet governments under Nazi German direction at an executive level, allegedly involving direct responsibility for the deportation, ill-treatment or murder of persons on racial or political grounds.

The definitions of `war crimes' recommended by Mr Menzies and adopted by the Government draw a very clear distinction. For instance, mere participation in a local puppet government under nazi direction would not in itself be sufficient; it would have to involve direct responsibility for conduct such as ill-treatment, murders or deportation of persons on racial or political grounds. Those broad distinctions are very well drawn by Mr Menzies in the statement and the Opposition is in agreement with that approach.

The second matter which has been of great concern to the Opposition throughout this matter, which I believe the Government has also recognised in this statement, is that we in Australia have received into our country in the years immediately following the war over 170,000 displaced persons, almost entirely from Europe. We were second only to the United States of America in our participation in that great humanitarian program. Not only are we as Australians proud of that program and all those who made it possible, but also we have welcomed into our society that vast number of people who have been settled here for, in some cases, 40 years. Over that period those people have become very valuable citizens, very active members of our community and have made a magnificent contribution to the development of Australia, not only in an economic sense but also in a social and political way. We all remember our former colleague, Senator Lajovic, who served with distinction in this chamber until recently. Former Senator Lajovic was an excellent example of the type of person who came to Australia after the war and made that notable contribution to our social and political life.

We are very concerned that those 170,000 people and their descendants should not feel threatened as a group because of our concern about war criminals who may be here, who may have come here under that program. Those people should not be concerned because out of that 170,000-odd people who came here, Mr Menzies has found only 70 names which he has given to the Attorney-General of persons about whose wartime activities there is a case for investigation. There are only about 70 names out of 170,000 people, so those figures should allay the very real and sensitive concerns felt by many people in our ethnic communities who came here under these programs.

The exercise that Mr Menzies was asked to embark upon-he has now reported to the Government and the Government is now responding to that report-refers to only a very tiny proportion of those people. Mr Menzies has not found that any one of the 70 people is a war criminal; he simply said that there is sufficient evidence in regard to those 70 names to justify investigation. On this aspect of sensitivity the Government has been even more understanding than Mr Menzies, because Mr Menzies said that before any proceedings are taken against these people, whether they be within Australia or subject to extradition proceedings, a strong case should be made against them. He said that they should not be charged unless there is a case against them and that the evidence is sufficient to justify that. The Opposition would go further and say that no action should be taken against these people unless there is a case of sufficient strength to justify a finding of criminality under our ordinary legal system.

The Government seems to be more or less saying in this statement the same thing. Mr Menzies was somewhat attracted to the idea that where there was such evidence against any one of these people, and where there was not an extradition treaty, the Government may seek to enter into some extradition arrangements with the country from which they came. In this report the Government has rejected that recommendation, and the Opposition agrees with that. I made the point when I spoke on 5 December that we did not think that the Government should be taking any positive steps to return these people, even under extradition arrangements that were properly entered into.

The Government has also indicated that it will vet very carefully a case that is under an existing extradition agreement. It certainly ought to do so, and the Opposition believes that even where there is an extradition arrangement, special rules should apply to cases in which there are allegations of war crimes because of the concern that after a period there has to be proper evidence on which to found such a charge. Of course, there has to be total satisfaction on the part of the Attorney-General of the day that these people will get as fair a trial in another country as they would get here. So the general tenor of the Government's response to Mr Menzies-certainly the Opposition would encourage the view that when one considers the countries from which these people have come, almost all of them are now under communist dictatorships-is that the proper course is for these people to be tried in Australia under our ordinary legal system, which Mr Menzies recommended should apply if a trial were to be held here, and that the War Crimes Act should be amended to enable that to be done and not under the court martial procedures which is the only course available under the War Crimes Act.

The Opposition believes that the proper course is for the War Crimes Act to be amended-the Government has said it will do that-to enable criminal trials alleging war crimes to be conducted in Australia in accordance with our procedures and, of course, before an Australian jury. The Government has not gone quite as far as that in its response, but we believe that that is the proper course to take. We hope that the Government will apply that course generally in this situation if-and it is still a big if-investigation reveals war crimes and prosecution is decided upon. Many steps have to be completed before we come to that, but the Opposition thinks it is wise that the Government should amend the War Crimes Act so it will be ready when any prosecution of this kind is brought about.

The Government has decided not to accept Mr Menzies' recommendation to set up a special unit in the Office of the Director of Public Prosecutions. I raised some doubt about the wisdom of that recommendation on 5 December. The Government, in deciding to set up a special unit in the Attorney-General's Department to carry out these investigations, is taking the right course. If as a result of that investigation it is thought there is sufficient ground to prosecute, the evidence will be turned over to the Director of Public Prosecutions and he will have to make the decision whether to prosecute.

I conclude by saying that the Menzies report is a most valuable document, largely because of the context in which it expresses the problem. Mr Menzies rejected the outlandish accusations being freely bandied about by the Australian Broadcasting Corporation and in the New South Wales Parliament by a Labor Minister in relation to war crimes and war criminals in Australia and serious aspersions against dedicated Commonwealth officers who worked in Europe amongst displaced persons in the horrific conditions of the post-war years.

Of course, the Australian Security Intelligence Organisation also had to get a serve in all these accusations going around. Mr Menzies has found that there was no substance in any of those allegations. He has presented the Government with a manageable problem and I am pleased that the Government is tackling it in a sensible and sympathetic way. Of course, the Opposition will co-operate with the Government in the sensible steps it has outlined. Finally, we wish again, as I think we have done already, to assure the Government that we do not believe that this is by any means a problem of the magnitude that has been suggested. Suspicion is cast upon only a relatively tiny number of people who came here after the war. We do not believe that people should be handed back by any Australian government to a communist dictatorship for trial under its system. Such trials would be largely political. Those against whom there is a prima facie case should be tried in Australia in accordance with our criminal standards of proof, under our system of justice.