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LEGAL AND CONSTITUTIONAL REFERENCES COMMITTEE
12/05/2000
Anti-Genocide Bill 1999

CHAIR —Welcome. The National Council of Churches in Australia has lodged with us a submission which we have numbered 25 on our list of submissions we have received. We have published that and received it into evidence of the committee, and we thank you for that. I invite you now to make a short opening statement to the content of your submission, and if there are any alterations or amendments you wish to make to that submission please do so at this time. At the conclusion of your remarks I will invite members of the committee to address questions to you.

Rev. Gill —Thank you. The National Council of Churches in Australia takes the view that the Christian churches have a particular responsibility to be vigilant against genocide and to take active steps to ensure that such horrors as the Holocaust are never allowed to happen again. The spectre of genocide lies heavily over our own past as churches with respect to anti-Semitism, the treatment of the indigenous population of Australia and homophobia, and in other forms also.

But we are acutely conscious of our own record and of the many dark parts of our own record and it is partly out of that sense of the need to repent of the past that we make our contributions to the work of this committee. We commend to the committee the submissions of the Human Rights and Equal Opportunity Commission, the Centre for Comparative Genocide Studies, Amnesty International and the Executive Council of Australian Jewry.

On 16 March 1998 the Vatican issued a long awaited document entitled We Remember: Reflections on the "Shoah". Written by the Commission for Religious Relations with the Jews and more than nine years in the writing, it referred to the courage of many Christians who had risked their lives to save Jews during the Holocaust. However, it then went on to say:

Nevertheless ... alongside such courageous men and women, the spiritual resistance and concrete action of other Christians was not that which might have been expected from Christ's followers. We cannot know how many Christians in countries occupied or ruled by the Nazi powers or their allies were horrified at the disappearance of their Jewish neighbours and yet were not strong enough to raise their voices in protest. For Christians, this heavy burden of conscience of their brothers and sisters during the Second World War must be a call to penitence. We deeply regret the errors and failure of those sons and daughters of the Church ...

The document goes on:

The Catholic Church therefore—

and I believe at this point the Catholic Church was speaking for all churches—

repudiates every persecution against a people or human group anywhere, at any time. She absolutely condemns all forms of genocide, as well as the racist ideologies which give rise to them.

In accordance with what we see as our consequent Christian duty, and on behalf of the NCCA's 14 member churches, we would emphasise that, whatever disagreements may arise about the execution or wording of the Anti-Genocide Bill, we are today charged with an important task, a historic task, of recognising the crime of genocide within domestic Australian legislation. In our view there are three or four main issues here. One, whether domestic legislation is necessary. We believe it is. Two, the drafting of the definition: whether the definition of genocide should be the same as the 1949 convention, or widened to incorporate the changes made in the draft bill adding sexuality, gender, disability and political affiliation and adding genocidal acts—we would support that widening—or whether it should be further widened to include civil provisions for the offence of cultural genocide, and we would favour that too if it can be done. A third issue is whether the bill should be retrospective to the time of Australia signing the international convention, given that it is a penal statute. We have not expressed a view on that one way or the other. The final issue is whether other systemic changes will be necessary to assist prosecutions under such legislation, such as proper interviewing of refugees, extradition, proper liaison and so forth. We recognise that such changes are likely to be needed but we have not addressed them in particular.

Finally, the NCCA supports the passing of this bill in its present form but we would favour, if possible, supplementing the criminal provisions with civil provisions dealing with cultural genocide. These provisions could be retrospective and attach appropriate penalties. We would support a brief to the appropriate branch of the government to make sure that there is a proper process for such prosecutions so that the act would be more than a rhetorical statement. But even a rhetorical statement, in our view, is important in this context. Our plea is that, as the parliament deals with this issue, we all take careful heed of the grim warnings of the Holocaust, and indeed of history's many holocausts, and as a result pass the bill.

CHAIR —Thanks very much, Reverend Gill. Ms Harris, do you have anything to say at this time?

Ms Harris —Actually I do have several issues that have arisen out of this morning if you would like to—

CHAIR —I would prefer not. Let us address our questions to you on your submissions. On the matter of cultural genocide, Reverend Gill, can you give the committee a definition of `cultural genocide'?

Rev. Gill —In the second paragraph down of our submission, page 4, we have used the UN definition `the suppression of the culture of a targeted group where members of the group are forced to assimilate into the dominant culture'.

CHAIR —How do you think that would make the definitions easier? Would it not complicate it further than what is currently there? There were some questions about the way the bill is currently worded. Would it not be seen as perhaps you putting in new criteria which might be further complicating matters?

Ms Harris —Actually I think it would clarify a lot of matters that Senator Cooney has been raising this morning in regard to the fact that some of the acts of genocide pertain to things which might be more relevantly cultural genocide as opposed to criminal activities that should be the subject of the criminal statute. It does not mean that the cultural genocide definition has to go into this bill specifically. It could even be the subject of a whole different bill.

There is a spectrum of legislation that can be used to prevent genocidal acts occurring in the first place, as in the discrimination legislation that we have been discussing, racial vilification laws, our own criminal domestic laws and then something that relies on international human rights laws such as the genocide convention.

It is precisely because I was concerned about the sorts of things that Senator Cooney has been concerned about—that is individual criminal prosecution for something which often is a societal action or a collective action—that I think it might be wise to have some sort of civil provisions. Again, with civil provisions you do not have the problems of retrospectivity that you would have that would concern me for criminal legislation. We saw it as a compromise position and we saw it as something that perhaps the international community is moving further towards in its discussions on cultural genocide. It was merely something for the committee to have a think about. But, as we said, we would have no problems in passing the definition in the bill as it stands.

We noted with interest HREOCs discussion this morning and we found their arguments about the omission of the word `distinct' and the reinsertion of the words `as such' quite compelling, although, when we heard Professor Tatz's examples in relation to Paraguay, as I am sure you will agree, they were quite compelling too. So that is a matter for the committee. But, along with Amnesty International's idea, we are very concerned to make the definition of genocide as inclusive as possible from a human rights perspective, but we share the same concerns as Senator Cooney in regard to its criminal application.

Senator COONEY —Could you help me through this, because it is a problem. There was the Armenian slaughter and then the Holocaust, and one of the most dreadful features about those was people killing neighbours—Germans killing Germans, Poles killing Poles and what have you. I think clearly Cambodia fits into the same pattern where you have one lot of citizens killing another lot of citizens for particular reasons. In Rwanda there were horrific things.

But there is a tendency—and you have picked it up well—to add things to it. You could say that it is bad to injure people who have been part of a group and then you could get to a situation where you incite people to do things that they should not do. Then there is this cultural stuff that you have talked about. The degree across the board is so vast that, if you were a judge such as Justice Harris and you were presented, in one case, with somebody who had led the young people of Cambodia to slaughter their fellow citizens, you would take one attitude. But if somebody else came along and said that they had gone a bit crazy and punched a few people around because they were Irish, you would take a different approach.

Do we need a lot more legislation? You have just said that it is all right to expand the definition of genocide, but in the end you get to the point where you should really have an international crimes act or a genocide act with a whole series of propositions, as you have in the crimes act. That is the first question. The bill we are looking at now is an amendment to the Genocide Convention Act, the one that arose out of the War Crimes Act 1987. There is a confusion arising between those things. Could you think aloud, either now or later on, about what you would do?

Ms Harris —I have thought about this for quite a long time, and I think I would be quite a tough judge on this issue. From my experience as an intern in the War Crimes Tribunal for the former Yugoslavia, I can tell you that a lot of self-selection occurs at the prosecution level. People will not bring prosecutions for genocide on what I would consider a flimsy basis because of the emotional content that such a crime has. You will find that prosecutors are very careful to make sure that they save prosecuting somebody for genocide for the most important times because they do not want the crime of genocide to be diluted. They do not want the word `genocide' to be diluted in its power. That is something that Professor Tatz referred to, and it is something that is a real problem. We do not want the word `genocide' being bandied around for things that are not very important and very severe.

On the other hand, the whole concept of genocide goes towards being persecuted as a group. It goes towards protecting the diversity of human beings, towards protecting the diversity of human life, I suppose. Whether you kill somebody and achieve an immediate effect or whether you forcibly remove children and achieve a long-term effect, if they are all methods that go towards intending to destroy a group, that is a genocidal act. It is very severe. So we have to be careful when considering whether killing is more important than forcibly removing children, for example. In the long term, if they lead to the destruction of the group, they are very severe for the consequences of human life, for the diversity of human life, which is very important. We have to be very careful to keep that in mind. It is very important for prosecutors all over the world to be very careful in the way they use genocide prosecutions, and I think you would find that they would be very careful.

Certainly, in my experience with Yugoslavia and Rwanda, they have been very careful. They had many debates over whether to use genocide in Yugoslavia, for example, and the decision was not to. But, yes, in Rwanda there was sufficient evidence to lodge a genocide claim. Levels of proof, in practical terms, are going to decide a lot of these issues for us. In most cases it is going to be for a court to judge, and it is going to depend on the level of proof that the prosecution is able to bring. In many respects these are not issues that need to vex the committee because having the legislation is the important part. As long as it is good, solid legislation, prosecutions and courts will nut out a lot of those other issues later on, as they have done.

We are very fortunate with regard to the fact that we now have a lot of case law from the Rwandan prosecutions on how to prosecute genocide. We have a lot of very distinguished Australians at the prosecution level as judges: judges like Sir Ninian Stephen and prosecutors like Graham Blewitt. There are many excellent Australians working in international criminal tribunals. There are many Australians vitally involved in the International Criminal Court. There are many leading Australian academics. You have seen Professor Tatz today. There are many others: Professor Ivan Shearer, Professor Hilary Charlesworth and Professor Tim McCormack. We have some of the world's leading experts on international criminal law. Australia certainly has the resources and the ability to make sure that legislation such as this is dealt with properly.

Senator COONEY —What you are really asking for is fuzzy law in the criminal jurisdiction: in other words, that parliament should make a very general law and leave it up to the prosecutors and judges to make the decision. Depending on what state you come from, that sort of thing is done. Every state has got a very thick issue on criminal law because parliament does have to exercise its mind about the issue. If you take this present definition, it says genocide means `any of the following acts' and then it goes on to include `causing serious bodily harm'. Serious bodily harm can be breaking somebody's nose, as you know. If you have got a good enough story, you might get a fine or a bond if you do that to another person in the heat of the moment. But if you do it with this intent here, you are likely to cop life in gaol or you could—I hope you are not likely to—receive life in gaol. I do not think parliament can just say, `We will leave that up to the prosecutor,' given the issues involved. If somebody has taken your drink in a bar and, in a fit of temper, you hit that person, you might get a bond; but if you do the same thing with intent because of his or her nationality or gender, you get life.

Ms Harris —I see that it is a real concern to you and I understand exactly why. Perhaps I am too young to have sufficient cynicism about the practice of my fellow lawyers, but all lawyers of course have a duty to the court and they have a duty to make sure that they frame prosecution in the appropriate way. The proper charge might be for racial vilification or hate speech in that particular matter, or it might be a simple assault. I do not think you would find a reputable lawyer who would take a genocide case on the basis of someone bashing an Irish person in the nose, as despicable as that might be.

Senator COONEY —That might be tolerable, actually.

Ms Harris —Is Des still here? That was for you, Des, from the senator here!

Senator COONEY —Would you like to take that on notice? I think the principles I am talking about are fairly clearly set out in Ridgeway's case. Have you read Ridgeway's case?

Ms Harris —Yes.

Senator COONEY —I think that is probably the best thing to do— just have a look at Ridgeway's case. Parliament has moved to overcome the problems there, but you will see what has happened. I do not know whether they would be available, but there are Justice Vincent's comments in Elliott's case. They are probably not available. That case sets out the issue of parliamentary oversight of all this sort of stuff. I am not condemning prosecutors or judges; I am simply saying that if you have a democratic system with the parliament at the top, the parliament has a certain responsibility to set out what is right and what is not right.

Ms Harris —Certainly, I agree. Even if the case of Nulyarimma is before the High Court—and there is nothing to say the High Court will actually give them leave to appear—it is not a good reason, just because a case is before the High Court, for parliament not to pass a bill of this nature. As we have seen in previous cases, it puts the High Court in a very difficult position if it has to do a little bit of judicial law making on an issue that at international law is quite clear but where under Australian domestic law there is something of a gap. That is why I would be saying specifically that the very reason this case is before the High Court at the moment is an excellent reason for us to pass this bill as quickly as possible so that we do not put the High Court in a situation where it is constantly being accused of judicial activism. In fact, if we had had native title laws prior to Mabo, maybe the High Court would not have copped as much criticism as it did. Is this one way of parliament being proactive and taking away the ability of the High Court to be judicially active in that sense?

Senator COONEY —I do not think parliament seeks to take away the High Court's ability. It is a matter of the parliament taking up its responsibility to clarify what the law is and to state the law as a democratically elected body.

Ms Harris —Certainly. That is a much better way of putting it.

Senator PAYNE —I have a specific question related to what has been described as the extension of the definition of genocide in the bill—as distinct from as it stands in the convention—which is to include `a distinct group of people including but not limited to, a national, ethnical, racial or religious group, or a group based on gender, sexuality, political affiliation or disability.' Does the National Council of Churches have a particular view on the extension of the definition in that way?

Rev. Gill —We would favour an extension. It appears to us that the additional categories represent groups of people who have been victimised by virtue of the group to which they belong. I referred in my introduction to the Holocaust, and the two groups that come to mind in that context, in addition to the Jewish people, are homosexual and handicapped people, both of whom were caught up in the same horror. As to whether or not it can be done in law, I leave comments on matters of law to my learned colleague to the left—

Senator PAYNE —And she does it very well.

Rev. Gill —So I see. I am just a simple theologian, but it seems to us that, if it can be done in law, it is desirable that it should be done.

Senator PAYNE —I am interested in your response. For example, you refer on page 3 of your submission, not necessarily in the context of definition, but you say:

Victims of genocidal acts often cannot name who the perpetrator is, such as many of the women in Bosnia's notorious rape hotels.

It seems to me that the inclusion of gender, for example, might address that if it was decided that systemic rape fell within:

(b)causing serious bodily or mental harm to members of the group;

We have some interesting submissions—I think I would use the word `interesting'—that refer to words within the definition. One of these purports to come from representatives of the Christian community—that is, a submission by the Christian Democratic Party. It specifically says:

The underlying intent of the Bill's new definition is to give license to homosexual `families' through the acceptance of a right to have or adopt children.

Given your comments in relation to my previous commission, is it the case that the National Council of Churches in Australia does not view the definition extension in that way?

Rev. Gill —It is a separate issue altogether, I should have thought. I also read that submission with interest. It seemed to me to be drawing a pretty longbow to suggest that this bill related to the concerns registered in the submission. So while we could indeed have an interesting discussion on that, it seems to us in the National Council of Churches that it is a quite separate discussion.

Senator PAYNE —Indeed. Thank you for your view on that. In relation to the offences in clause 9, that `a person who aids, abets, counsels or procures the commission of an act of genocide is guilty of an offence', and so on, do you see that as having a potential to lead to witch-hunts, which is also suggested in another submission?

Ms Harris —I did note that—I believe it was in the Reverend Fred Nile's submission. I do not actually understand where he is coming from on that point.

Senator PAYNE —I can ask him that later.

Ms Harris —That would be excellent; I would be very interested to know. Aiding and abetting provisions in criminal legislation are not what I would call extraordinary or strange or weird in any context. Obviously all criminal legislation also has within it aiding and abetting provisions.

Senator PAYNE —Do you practise here in New South Wales, Ms Harris?

Ms Harris —I am actually a Queensland lawyer.

Senator PAYNE —I am sorry about that! We are having—

Ms Harris —The Queensland Criminal Code, excellent as it is, does have aiding and abetting provisions—

Senator PAYNE —As does the New South Wales code.

Ms Harris —and they are not considered odd.

Senator PAYNE —Indeed. I am also very interested in your submission in relation to civil provisions which provides us with some very useful information from which to work. Are there any international examples you think we should have reference to in considering your suggestions?

Ms Harris —There is actually a UN committee on cultural genocide, and that quote comes from them. At the moment there is no regime, except in regard to what I would call native title cases where there is a lot of discussion about appropriate compensation, in that sort of context, which might be applicable to, say, issues raised in the Bringing them home report about the stolen generation and genocidal law in that respect. It is something that perhaps the Bringing them home report could even be extended into looking at. But, no, we just basically raised it as an issue. I know that in regard to Iraq and Iran there is a reparations committee based in the Hague that deals with monetary reparations over that war, and I know that that has been a very successful exercise.

As Professor Tatz said, Australia has a particular history that it has to face. There is no reason why, even given the breadth of international experience, we cannot be a little bit innovative in addressing our own particular experience of genocidal acts in our country. There is no reason at all why Australia cannot have an anti-genocide bill that fulfils the criminal measures, but also have a range of other legislation that deals with the concept of cultural genocide.

Senator PAYNE —Thank you. I appreciate that information.

Senator LUDWIG —Could I take you to page 3 of your submission, and perhaps Ms Harris might be able to assist me here. It says:

... it demands such a high level of proof as to make it impossible to rely upon in practical terms.

Then, on page 4, in the second paragraph, it says that `it is arguably near impossible for Australian ...' and it goes on to talk about `intent' required by the convention definition. But, in conclusion, you come to the view that the Anti-Genocide Bill should be passed. I was just wondering if you could help me reconcile those statements with that view at the end. I do not want to put words in your mouth, but if you say that the threshold is near impossible and in practical terms the proof is too high, then what would be the utility?

Ms Harris —For a start, this is a bill that is going to go into our future, and nobody knows what is going to happen in our future. My point was that I found that for the Nulyarimma case, even as sympathetic as I was, it was very difficult to those plaintiffs to decide who to sue. You will see in the original case they basically brought writs against Pauline Hanson and Brian Harradine and all types of people. And in the Bosnian context, which is the one I have the most experience with, it is often very difficult to decide who the perpetrators are, especially when time has elapsed. That is certainly a practical problem. But that is a past problem, if you will take my meaning. If we have something like this bill, where people know what their rights are and what the legal processes are, that might not be a problem for future generations. Surely that is what we should be striving towards.

The level of proof should be very high for something of this nature. That is fine. It should be as high as murder, and perhaps higher when it deals with intention to destroy a particular group. That is certainly right, and that is why I think it is quite important to have civil provisions as well. But that is not to say that we should not have those sorts of laws. Just because it is hard to make out a murder case does not mean we should not have provisions for murder.

Senator GREIG —Firstly, I want to pick up on a point that Senator Payne made in relation to Mr Nile's submission and your differing view on that. I note from your letterhead that you represent some 15 to 20 different churches—

Rev. Gill —Fourteen.

Senator GREIG —Presumably representing many thousands, if not tens of thousands, of churchgoers. Included within that list is the Uniting Church. As I understand it, Mr Nile is a minister with the Uniting Church. Is that correct?

Rev. Gill —Yes, Senator. Perhaps I should say that I am the former general secretary of the Uniting Church, so I can change hats and speak with a degree of authority about the Uniting Church if required. Fred Nile is a minister of the Uniting Church, as I am. When I read his submission it seemed to me that it would be important to make the point that he speaks for himself in that submission, presumably for the party that he leads and arguably for those who voted for the party that he leads. But he has no mandate to speak for the church to which he and I both belong, much less for the 14 churches that comprise the National Council of Churches in Australia.

Senator GREIG —Thank you for clarifying that. On another point, I refer directly to the conclusion that you draw in your submission. The first sentence states:

In summary, the NCCA submission is that the Anti-Genocide Bill should be passed as a minimum requirement to bring Australia in line with its obligations under the 1949 Convention.

Implicit in that is the notion that we could, or should, do more. Could you elaborate on what further you think Australia should do in addition to this bill?

Rev. Gill —I think there are some things that can be done by legislation but there are some things that require action that goes beyond legislation. You all realise perfectly well that the law cannot make us love one another; it can only restrain us from doing the most damnable things when we hate one another. That is a vital function in the law, but there are things beyond the law that must be done to build a more humane and compassionate world. That is the sort of thing we have in mind here, that there are obligations that go beyond a particular bill in order to reflect in the quality of our life in this society the spirit of that convention.

Senator GREIG —I think it was Martin Luther King Jr who said that judicial decrees may not change the heart but they can restrain the heartless.

Rev. Gill —Indeed. And even in restraining the heartless there are things that can be done by way of government policies—for example, education policies. I have not even touched on the obligations of religious communities in this respect. But none of those things that can be done by way of shaping people's attitudes can fill the gap that we believe is glaringly obvious at the moment in this area of domestic legislation.

Ms Harris —I will just refer the committee back to the comments made about the role of HREOC in this particular matter. I think the Human Rights and Equal Opportunity Commission have a very important role in education, not only education about what we would consider to be domestic human rights but also education about rights under international law. I know that is not very fashionable at the moment but, as somebody who works on behalf of refugees every day, I think it is very important that the government has an excellent education policy as to people's rights under international law, especially as they affect day to day everyday Australians. This is one area where we can be very active. Obviously, as Amnesty said, prevention is the most important thing. We want Australia to be the sort of society where genocide is unthinkable, and I would suggest that the only way we can do that is through education.

I know that as lawyers and people concerned with law we constantly think that our duty stops once the bill has been drafted and passed. Obviously, for something like this it is a question of ongoing education. Of course, the churches have a very important duty in that respect, but it would be excellent for our senators and our legislative committees to perform that function with us or to help us perform that function, particularly, may I say, in regard to refugees at the moment.

Senator GREIG —I take the point you are making. At least one Jewish person I spoke with felt that as a nation we would be far better not to pursue alleged war criminals or war criminals but, rather, spend the money on educating children about mutual respect and tolerance. That is in part what you are saying about the need for education?

Senator COONEY —I would be careful answering that one.

Senator GREIG —I am not asking you to agree or disagree with that statement. I think I take your point.

Ms Harris —Then again, people might want their day in court too. I have every sympathy for Aboriginal plaintiffs who want to have their day in court on issues like this and I think that is very important as well. It has symbolic importance.

CHAIR —I am not going to go to the content of the Reverend Nile's submission, but one of the additional recommendations that is made on the second page is to include euthanasia and infanticide as part of the killings of group members. I thought it would be an interesting question to put to representatives of the churches, particular the inclusion of euthanasia. Do you have a view, or haven't you thought about it?

Ms Harris —We did not look at that in our submission, but listening to what Professor Tatz said about the experience during the Holocaust of aged people being forcibly euthanased was very gripping. I must admit it had not been something that I had heard before. I noted that in Reverend Fred Nile's submission; it was about abortion as well as euthanasia, I believe.

CHAIR —Yes, it says `imposed restrictions on the number of births, enforced contraception, enforced sterilisation and enforced abortion'.

Ms Harris —Several church groups had quite a lot to say to another Senate inquiry which looked into the forcible abortion—

CHAIR —I know.

Ms Harris —Yes, I thought you would know. The statements made by the Australian Conference of Catholic Bishops, by our own organisation and by many other church organisations, we would fully support in the refugee context, and it clearly would be the same under this context.

CHAIR —Isn't enforced euthanasia a contradiction in terms, though? Isn't euthanasia a voluntary act by the individual, rather than somebody else doing it? If somebody else does it, isn't it then murder or infanticide?

Ms Harris —It would probably just come under the cover of killing, I would have thought. In relation to abortions, there is a particular forcible sterilisation, but there is not something specifically about forcible abortions and there certainly have been forcible abortions in the context of many conflicts. Obviously the proposal is something that the Catholic Church would be extraordinarily strongly in support of.

CHAIR —I remember that at one time, in certain countries, suicide used to be a crime as well. They never convicted anybody of it, but it was still a crime. If there are no more questions, it has been a pleasure having you today. More importantly, you have been of great assistance to the committee in our deliberations this morning. We thank you for that.

Senator COONEY —Just before you go, when you are talking about education, you do not mean just education in schools but you mean the attitude that governments might take, that courts might take?

Ms Harris —Statements by ministers or senators.

Senator COONEY —The attitudes expressed by ministers, attitudes expressed by church people?

Ms Harris —Yes.

Senator COONEY —And not simply in schools—the education comes through example?

Ms Harris —Yes, certainly, and in advertising campaigns. I think the campaign for the International Year of the Older Person was excellent. It had a really big impact on many people. That sort of campaign can be really useful. Media campaigns as well.

Senator COONEY —And it is a change of attitude you are looking for.

Ms Harris —Yes, absolutely. A recognition of our stolen generation would go a long way.

Senator COONEY —I am a bit worried about euthanasia too. At my age when you sleep in a room you never know who is going to leave the window open or who sneaks in and opens the window and lets you get killed by the winters of Canberra. I have got to watch that.

CHAIR —Thank you very much for your evidence here this morning.

[12.26 p.m.]