The Hon Catherine Branson QC
Book Launch, NSW Council of Christians and Jews Inc.
24 November 2009
I would like to begin by acknowledging the traditional owners of the land upon which we meet, the Gadigal peoples of the Eora nation, and pay my respects to their elders, past, present and future.
May I also acknowledge Mr Barry O’Farrell, Leader of the Opposition, Mr Greg Smith, Shadow Attorney-General, and Mr John Aquilina, Leader of the House.
I would like to thank Mr William Szekely, President of the NSW Council of Christians and Jews, for inviting me to speak at this launch of ‘Broken Glass, Unbroken Memories’.
Freedom of religious belief, racial discrimination and social cohesion are core concerns of the Australian Human Rights Commission. Increasingly, they are issues of fundamental importance to Australian society.
Tonight we remember an extreme instance of state-sanctioned violence based upon religious intolerance and racial prejudice. It is important that we remember what happened in Germany and Austria on 9 November 1938 because remembering will help us ensure that nothing like that ever happens again. Additionally, as I am told that Helen Bamber mentioned last night in her Andrew Denton interview, ‘bearing witness’ is perhaps the only meaningful thing we can do when faced with human suffering on this scale.
Inter-cultural and inter-faith dialogue such as that which is promoted by the NSW Council of Christians and Jews is critical to building a culture of peace and what has been called an ‘alliance of civilizations’.1 Dialogue of this kind reveals the common core values of diverse cultures. By and large these values are also reflected in universal human rights principles.
A focus on what binds cultures instead of what separates cultures is critical to preventing destructive conflict and misunderstandings.
This evening, we revisit an historical ‘clash’, an attempted destruction of a ‘civilisation’, which is seared into our collective memory. And in that context, I wish to consider how we should respond in Australia to discrimination against minorities on the basis of their race or religion or, as often is the case, a confounding of both. How can we best promote respect of differing religious views and their cultural manifestations?
As many of you will be intimately aware, in the 1920s, German Jews generally regarded themselves as being part of German society and were proud patriots. However, for centuries in Germany, anti-Semitism had simmered beneath the surface. This anti-Semitism found official sanction with the election of the Nazi Party in early 1933, and with that began the first steps on the path to the ‘Final Solution’.
We are all familiar with the devastating impact of the extreme discrimination experienced by the Jewish people in Germany. The Nazis singled-out the Jewish people as an ‘ethnic group’ and persecuted them on that basis (along with others who were perceived to be ‘undesirable’ such as the Romany, people with disability and homosexuals). The persecution of the Jewish people began with their exclusion from German social and political life. Hitler introduced anti-Jewish policies restricting the rights of Jewish Germans to earn a living, to educate themselves and to work in the civil service. Later, under the Nuremberg Laws of 1935, Jewish Germans were stripped of their citizenship and prohibited from marrying non-Jewish Germans.
Kristallnacht is often perceived to be the beginning of the Holocaust. It was an event which is emblematic for the Jewish community; it foreshadowed the cultural and human genocide that was to follow.
During the riots of 9 November 1938, the evening of ‘Broken Glass’, the Jewish people and their property were subjected to a wholesale attack. Businesses were destroyed, homes ransacked, libraries raided, sacred sites vandalised, art works stolen and cultural heritage burned. On one level these were assaults on the livelihood and assets of Jewish people and therefore their economic security. But even more damaging, appalling and permanent was the attack on freedom of thought, freedom of assembly, and freedom of religious belief.
Of course this is a story which is all too familiar to you. But it is also one that warrants re-telling time and time again, to remind us of the danger of prejudice transforming into violence. And we should recognise that this danger cannot be completely discounted in our own society. We know this in part because of the valuable role played by Jeremy Jones (I interpolate, a one time winner of the Australian Human Rights Commission’s Human Rights Medal) in collating on an annual basis recorded acts of anti-Semitism in Australia. His reports make disturbing reading.
I also know of this danger from my time on the Federal Court of Australia. When I was the trial judge in Jones v Toben2 I was shocked by the material from the Adelaide Institute website that was drawn to my attention during the hearing of that case. But I was considerably more discomforted and dismayed by the anti-Semitism that was expressed in letters that started coming to my chambers after the trial received coverage in the press. These letters, and there were a few of them, expressed even more extreme levels of prejudice and hatred than that displayed on the Adelaide Institute website and were filled with menace towards Australia’s Jewish community.
For these reasons I have no doubt that it is important that we all keep alive the memory of Kristallnacht. It is part of a history which unites Jewish people and creates a bond between them and the other groups who suffered persecution.
But it is also an important reminder for all of us of the fragility of human rights and of the need to maintain resolve in this country and internationally to respect the inherent dignity of all people and to protect all people from denigration and oppression – indeed attacks of very kind – based on racial and religious hatred or xenophobia of any kind.
This book keeps alive the memory of Kristallnacht. In doing so it contains important lessons for us seventy years later.
I was struck my Rabbi Lawrence’s observation that:
Oppression and racism are never someone else’s problem. They are always our problem. We must confront it wherever we see it. For we are witnesses. We, who wish to have faith in the good of humanity, must not stand silent.
I was equally struck by the honesty of Dr Paul O’Shea’s account of the silence of the Catholic Church in the face of known persecution. The contrasting courage of clergy such as Father Bernard Lichtenberg is remarkable. Dr O’Shea quotes his sermon of November 10 1938:
What took place yesterday we know; what will be tomorrow, we do not know; but what happens today, that we have witnessed; outside [this church] the synagogue is burning, and that also is a house of God.
This book reminds us that the memory of Kristallnacht is a challenge to us all. A challenge to confront and work against prejudice wherever we find it, particularly where that prejudice is based on religion and on race.
3. Intersections between religion and race
I would like to move now to a discussion of issues of discrimination on the basis of race and religion in contemporary Australia.
Over the past decade we have seen a distressing increase in instances of discrimination and in the expression of hatred based on race or religion or both. This is to be condemned.
In doing so we must acknowledge that the relationship between religion and race is complex and the distinction between them is often blurred.
Take, for example, the age-old question which many of you know well: should Jewish people be classified as a race or as a religion? There is very little agreement about how to answer this question or whether it should even be framed in this way. Jewish people, as well as Sikhs, are in some instances classed as being ‘ethno-religious’ or a ‘quasi-ethnic religion’ because ‘aspects of their religious and purported racial identity are so hard to disaggregate’.3
Indeed, all religions have a cultural manifestation. And conversely, the existence of a common religion may indicate the existence of an ethnic group. Because the term ‘ethnic origin’ is defined as comprising characteristics such as a shared history and a common religion, the term has been interpreted so as to include Jewish and Sikh people.
Therefore, though the Racial Discrimination Act 1975 (Cth) does not prohibit religious discrimination, Jewish people and Sikhs do benefit from the protections under the Race Discrimination Act. They are protected under this Act because they have been classified as a race.
Other religious groups, for example Muslims, do not benefit from the protections under the Race Discrimination Act, though they are increasingly the subject of discrimination and vilification which makes little distinction between religion, culture and race.
This is an area of law which calls for reform – particularly in light of the growing recognition that the notion of ‘race’ has evolved from being simply a matter of physiognomy or skin colour. The term ‘xeno-racism’4 has been coined to convey a more amorphous fear or dislike of the ‘other’ or the unknown – a cocktail of religious, cultural and racial hatreds. It is a more accurate description for the kind of discrimination experienced by international students in Australia, for instance, and one appropriate response to it might be amendment to the Race Discrimination Act to ensure that this kind of racism is prohibited.
4 Balancing freedom of religion with other fundamental human rights
Freedom of religion is set out in article 18 of the International Covenant on Civil and Political Rights (or the ICCPR). The Commission is responsible for promoting understanding, acceptance and public discussion of the human rights set out in this and other international agreements.
Over the past year the Commission has been engaged in a project about Freedom of Religion and Belief in 21st Century Australia. The report of this project is due in mid-2010. The reasons for which the Commission has embarked on this work include:
- the emergence of a multi-faith Australia which includes not only Christians and Jews but increasingly Muslims, Buddhists, Hindus and other religious communities so that the notion that Australia is, and always will be, united by its Judeo/Christian heritage can no longer be taken for granted
- the privatisation of government services and their outsourcing to private bodies including those sponsored by faith communitiest
- he growing awareness of the contribution that religious communities make to the social capital of a nation, including through activities such as volunteering and
- concerns about whether the implementation of the new security laws might indirectly impact on freedom of religion and belief.
This project has been controversial, and indeed was discussed in last weekend’s newspapers. The Commission has been charged with working to undermine freedom of religion through this work. This is based on a view amongst some church communities that other key human rights, for example, freedom of expression, and the right to live free from discrimination, directly conflict with freedom of religion. The assumption made is that freedom of religion will be trumped by other human rights standards.
It is true that a human rights analysis does require the balancing of rights. However, it is important to remember that international human rights law gives clear guidance as to how this balancing exercise should be completed.
For example, article 18 of the ICCPR, which guarantees the freedom to manifest religion or belief, also says that this freedom may only be subject to those limitations which are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
Those who are concerned about the Commission’s work in this area should be reassured by our fundamental appreciation of the importance of the human right to freedom of religion. At present it is too early to know precisely what the project has uncovered. What we do know is that there are many areas of contemporary life where religion and human rights concerns interact.
5 Promoting freedom of religion in Australia
So how do we best promote, at the same time, racial tolerance (although I do not like the term ‘tolerance’), religious freedom and other human rights, including the right to freedom of expression?
The Commission has in the past recommended that a federal law be introduced making unlawful both discrimination on the ground of religion or belief and vilification on the ground of religion or belief.5 Currently, at the Commonwealth level, there is a Racial Hatred Act, but there is no law regarding religious vilification.
During the consultations for the Freedom of Religion and Belief project, participants expressed some reservations about the efficacy of such new legislation. It is important that we listen to and understand these concerns. However, it is also important to recognise that what we are talking about is respect for fundamental human rights and freedoms which should be appropriately balanced in legislation regarding religious vilification.
Another option for enhancing protection of freedom of religion in Australia is through a federal Human Rights Act.
A Human Rights Act would require Parliament to consider the impact of new laws on fundamental human rights and freedoms. For example, if the federal government decided to introduce legislation regarding religious vilification, a Human Rights Act would require consideration of the impact of such a law on both freedom of expression and freedom of religion. It would require a balancing of the right to freedom of expression with the responsibility to ensure that free expression of views does not vilify or incite hatred. Human rights are, after all, about building a culture of respect and acceptance of difference.
The intersections between religion, race and human rights are complex and, more often than not, fraught.
My main point today is that human rights and religion are not in conflict but should be seen as partners. All main stream religions, at their core, share common values. These values may variably be called ‘love’, ‘charity’, ‘compassion’ and ‘mindfulness’. These are not always recognised as being ‘human rights’ principles but that is what they are.
Human rights promote inter-faith and inter-cultural dialogue. This is because the universality of human rights, and their applicability in some way or other to us all, compels us to recognise our common humanity. Despite the divergent beliefs that we may each hold, we all have one fundamental thing in common: we are all human, and therefore capable of holding prejudices and being the subject of prejudice.
Our challenge is to ensure that the horror of Kristallnacht and the Holocaust is never repeated again. We must be vigilant in our protection of the human rights of all people, whatever their faith. We must remember our shared history and learn from it. We must do whatever we can to build and maintain a culture of peace.
It is for these reasons that I am so pleased to have been invited to launch this evening the book, ‘Broken Glass, Unbroken memories’, an analytical overview of Kristallnacht, November 9, 1958, published by the NSW Council of Christians and Jews Inc. I do so now and commend the book to you all.
- The UN Alliance of Civilizations, Report of the High-level Group, 13 November 2006. Available online at: http://www.unaoc.org/repository/HLG_Report.pdf (accessed 18 November 2009).
-  FCA 1150.
- T Calma and C Gershevitch, Freedom of Religion and Belief in a Multicultural Democracy: an inherent contradiction or an achievable human right?, 3 August 2009.
- Liz Fekete, A Suitable Enemy: Racism, Migration and Islamophobia in Europe (2009).
- Human Rights and Equal Opportunity Commission, Ismaع– Listen: National consultations on eliminating prejudice against Arab and Muslim Australians (2004), 129.