Frank Brennan

  • FRANK BRENNAN SJ. A Welcome Deal and an Acceptable Legislative Compromise

     

    The Turnbull government has struck a deal with the USA which provides hope at last for the 1600 proven refugees on Manus Island and Nauru. There’s still a lot of work to be done before these refugees, including children, can get on with their lives after three years of unnecessary, hopeless agony. I welcome the government’s decision, and await the further detail.

    Sunday’s announcement was packaged in the usual Canberra wrapping with lots of military brass, restating the need to smash people smuggling rings, keeping the boats stopped, and turning back boats when it is safe and legal to do so. No boats have arrived in the last 840 days. 29 boats have been turned back. (more…)

  • FRANK BRENNAN SJ. Dog-whistling again on asylum seekers.

     

    Labor has decided not to support the Turnbull government’s latest asylum bill which was announced in a most hamfisted way on the Sunday morning before last, and which contains very unacceptable overreach measures. So now it will be a matter for the Senate cross benchers. The Turnbull-Dutton bill is a disgraceful mishmash of dog whistle measures. (more…)

  • FRANK BRENNAN SJ. Turnbull’s Policy Challenge Wrapped in Turnbull Cant

     

    On Sunday morning, Malcolm Turnbull and Peter Dutton held a joint press conference to announce new legislation in relation to the asylum seekers who have been held on Nauru and Manus Island now for over three years.

    In this policy area, the perfect is the enemy of the good, and the prospect of a bipartisan approach on ‘means’ despite agreement on ‘ends’ has been slight since the Tampa affair in 2001. (more…)

  • FRANK BRENNAN SJ. Malcolm Turnbull’s defence of Nauru.

    This is Frank Brennan’s most recent post of Facebook.

    When interviewed by Fran Kelly this morning, Malcolm Turnbull suggested it was a simple binary choice: strong border protection including the cruel, endless warehousing of proven refugees (including children) on places like Nauru OR deaths at sea.  It’s not a simple binary choice, and he knows it is not.  If the government’s priority were safety at sea they would be transparent with us in how they intercept boats and send the people back to Indonesia, being so concerned about the safety of those very people on the boats. But that’s not their main priority.   Their main priority and their main concern is stopping people coming to Indonesia and then leaving Indonesia heading to Australia seeking asylum.

    There are three options: 1. Stopping and turning back the boats AND warehousing refugees on Nauru and Manus Island; 2. Stopping and turning back boats AND resettling the proven refugees on Nauru and Manus Island in a timely manner; and 3 NOT stopping and turning boats back.  Option 2 deserves consideration by our major political parties when they are satisfied that those on the boats are not fleeing persecution IN Indonesia and when they provide through UNHCR and IOM adequate processing and security IN Indonesia.  Government, the Opposition, and refugee advocates should do more work on Option 2.  By positing a choice only between Option 1 and Option 3, we are either positing the impossible objective of a hermetically sealed border or making the perfect the enemy of the good.

    Fr Frank Brennan SJ
    Professor of Law

    Australian Catholic University

  • FRANK BRENNAN SJ. Being clear eyed and misty eyed about human rights and asylum seekers.

     

    On 5 October 2016, Frank Brennan gave the Fourth Notre Dame Social Justice Lecture.

    He said

    “It is time to see if we can design a way of getting the asylum seekers off Nauru and Manus Island in such a way that we don’t restart boats. … The suggestion that those camps need to remain filled in order to send a message to people smugglers so that the boats will stay stopped is not only morally unacceptable, it is strategically questionable.  … In August, I joined Robert Manne, Time Costello and John Menadue in calling for an end to the limbo imposed on proven refugees on Nauru and Manus Island. I think this can be done while keeping the boats stopped. … Warehousing proven refugees for years on end is not an option.”

    See link to lecture below:

    https://www.eurekastreet.com.au/preview.aspx?aeid=49988

  • FRANK BRENNAN SJ. Another win for ‘David’ Timor against ‘Goliath’ Australia

    David Timor has once again scored a win against Goliath Australia in the international legal forum. Last time it was in the International Court of Justice which took strong exception to Australia’s raiding of the office of a lawyer involved in the preparation of Timor Leste’s case, though admittedly Australia’s one ad hoc judge did dissent on key points from the other 15 judges! (more…)

  • FRANK BRENNAN SJ. The hypocrisy of it all is breath-taking.

    As you listen to the self-satisfied, self-congratulatory observations of our Australian representatives at the UN Summit on Refugees and Migrants and at the Obama summit, just ask yourself what Messrs Turnbull and Dutton have done to provide a humane solution for the proven refugees on Nauru (and Manus Island), given that after three years the Abbott and Turnbull governments have  not resettled one proven refugee.  You will recall that the MOU with Nauru was signed by the Rudd Government just prior to the 2013 election and that Richard Marles, the Labor shadow minister, told us during the recent election that the expectation was that the whole thing would be done and dusted within a year.  (more…)

  • FRANK BRENNAN. Why Turnbull has no option other than a plebiscite on Same Sex Marriage

     

    In The Australian Paul Kelly writing on the same sex marriage plebiscite said (23/8), ‘Lawyer and priest Frank Brennan, who has always argued the issue should properly be decided by parliament, told this column: “Contrary to Justice Kirby I have urged proponents of same-sex marriage to support legislation for a plebiscite because there is no other way that the matter can be resolved during the life of this parliament with Malcolm Turnbull remaining as Prime Minister.”’ Let me explain. (more…)

  • FRANK BRENNAN. Time to defuse Nauru and Manus Island time bombs

    On the weekend, I joined Robert Manne, Tim Costello and John Menadue in calling for an end to the limbo imposed on proven refugees on Nauru and Manus Island. I think this can be done while keeping the boats stopped. I think it ought be done.

    Appearing on the ABC 7.30 program last Thursday afterThe Guardian‘s release of 2000 incident reports from Nauru, Peter Dutton, the Minister for Immigration and Border Protection, told presenter Leigh Sales, ‘I would like to get people off Nauru tomorrow but I have got to do it in such a way that we don’t restart boats.’ (more…)

  • ROBERT MANNE, FRANK BRENNAN, TIM COSTELLO & JOHN MENADUE. A solution to our refugee crisis

     

    This article was posted in today’s The Age.

    There are two powerful arguments about the plight of the refugees dying a slow death in the offshore processing centres Australia has established and which it maintains on Nauru and Manus Island.

    The supporters of the present policy argue that we cannot bring these refugees to Australia because to do so would act as a signal to people smugglers, allowing their trade to begin again. (more…)

  • FRANK BRENNAN SJ. Refugees – John Howard could do it. Why not Malcolm Turnbull?

     

    My quandary remains: if John Howard was able to keep the boats stopped while closing Nauru and Manus Island, why can’t Malcolm Turnbull? If John Howard was able to accept New Zealand’s offer to resettle some of the caseload why can’t Malcolm Turnbull?

    I just don’t buy the line that the people smugglers have become more clever than our intelligence services and that the Indonesians have become less co-operative with our military. If Operation Sovereign Borders depends on protracted, ongoing indecent treatment of proven refugees on Manus Island and Nauru then it doesn’t pass the test of basic Australian decency.

    It’s time Malcolm Turnbull, Bill Shorten and Richard Di Natale got together and agreed on the best way forward. It’s time our military and intelligence services did their work spared the indecent pall of the ongoing appalling treatment of refugees on Manus Island and Nauru. It’s absurd to suggest that these people have to be kept on Nauru and Manus Island in order to send a message. Remember, the ALP claims that it was all to be done and dusted on Nauru and Manus within a year. If that had occurred, there’d have been no people left there awaiting processing to send a message. And here we are, more than three years on with nothing happening, just waiting for the inevitable powder keg in those two places to explode.

    The election is over. It’s time for the three key parties to come to the table and fix the issue promptly, agreeing that the boats will stay stopped, but that they will be stopped without ongoing punishment of others, the majority of whom are now proven refugees.

    Fr Frank Brennan SJ, Professor of Law, Australian Catholic University 

     

  • FRANK BRENNAN SJ. How to Stop the Boats Decently after the election

     

    In her valedictory speech on 17 June 2013 after 20 years in parliament Judi Moylan reminded us:

    If we are committed to stopping the deaths at sea, in this most intransigent of political arenas, our parliament must find a way to forge a national consensus before we can possibly entertain any hope of achieving a regional consensus.

    There are presently 847 people in the Manus Island RPC and 466 persons in the Nauru RPC. There are 541 persons on Manus Island who have received a positive final determination that they are refugees. There are 915 persons on Nauru who are proven refugees, languishing on a Pacific Island with a permanent population of 10,000. Imagine if Australia were being asked to offer places to 2.4 million refugees in the next year. And make no mistake, that is the per capita equivalent to what we have visited upon Nauru with our chequebook. (more…)

  • FRANK BRENNAN. Asylum policies and the election.

    The following is an extract from a speech by Frank Brennan at the Yass Catholic Parish Pot Luck Dinner on Saturday 28 May 2016. The full text of the speech is in the link below. John Menadue (more…)

  • Frank Brennan SJ. Manus Island proposal.

    Asylum seekers on Manus Island should be brought to Australia and processed.  Those who are refugees should be permitted to stay in Australia.

    Neither the Liberal Party nor the Labor Party agree. The race to the bottom and the race against time is now on as the country prepares to go into election mode on or about 12 May 2016.  The Labor Party is adamant that the Rudd government’s MOU with PNG was posited on the firm understanding that the processing and resettlement of the asylum seekers would be done and dusted within 12 months.

    So here is my proposal for consideration by the major political parties.

    Before the Turnbull government goes into caretaker mode, it should move the asylum seekers to Christmas Island for processing.  To move more than 850 single men to Nauru would be highly irresponsible behaviour, no matter how much money we were prepared to offer Nauru.

    The government should guarantee that all refugee claims for this cohort would then be determined within 12 months, ie by 12 May 2017.  The government should also guarantee that all those proved to be refugees will be resettled within 18 months, ie 12 November 2017.  For many of these people, that will have meant a five year delay between initial detention and resettlement.

    The Labor Party should then endorse the plan so that there is bipartisan commitment to the plan before the election commences.  Both parties need to accept that they were in government when their ministers knew or ought to have known that the initial MOU was posited on illegal, unconstitutional activity by the Government of PNG.  If resettlement places cannot be provided for any proven refugees in this cohort by 12 November 2017, there will be no option but to resettle them in Australia.

    Fr Frank Brennan SJ
    Professor of Law

    Australian Catholic University

  • Frank Brennan. Cheque book solution on asylum is unconstitutional

    A bench of five justices of the Supreme Court of Justice, the highest court in Papua New Guinea, has unanimously ruled that the detention of asylum seekers on Manus Island is unconstitutional.

    The successful applicant in the case was Belden Norman Namah, the PNG Leader of the Opposition. Unlike the Australian Constitution, the PNG Constitution contains a list of basic human rights including section 42 which deals with ‘liberty of the person‘. That provision states that ‘No person will be deprived of his personal liberty‘ except in specific circumstances.

    Back in 2001 when John Howard’s government instituted the first Pacific solution, there was only one exception which came even close to dealing with the deprivation of liberty of asylum seekers being brought to PNG and detained there. That was section 42(1)(g) which permitted deprivation of liberty ‘for the purpose of preventing unlawful entry’ into PNG.

    But it was a long stretch of the bow to argue that this provision could cover the entry into PNG of persons brought there with the PNG government’s agreement on receipt of a cheque from Australia.

    The Australian government and its lawyers have been on notice about this illegality for 14 years.

    When the now grandfather of the House of Representatives Philip Ruddock was Minister for Immigration and Multicultural Affairs, he made a habit of criticising Australian judges whom he thought too soft on asylum seekers wanting to vindicate their legal rights in court.

    At the same time, he had gone ahead instituting Australia’s first edition of the ‘Pacific Strategy’ for warehousing asylum seekers offshore. I wrote to him on 9 June 2002 saying:

    ‘Despite your recent adverse comments about the Australian judiciary, I note that you have not refuted my concerns about the legality of the Pacific Solution preferring simply to observe that no court proceedings have been instituted in Nauru and that the action in PNG was struck out for non-appearance of counsel on 6 May 2002.

    ‘I concede that the PNG government may well have issued conditional visas to the detainees on Manus Island but any visa with a condition amounting to detention would still be unconstitutional.’

    Mr Ruddock replied on 22 August 2002:

    ‘I note your continuing concerns about the legality of the government’s Pacific Strategy. The constitutionality of the arrangements for accommodation of asylum seekers in Nauru and Papua New Guinea is a matter for the governments of the countries concerned.

    ‘It is relevant to note, however, that to the extent that the asylum seekers in those countries are subject to restrictions on their freedom of movement, those restrictions were imposed by the legislation of Nauru and Papua New Guinea respectively.’

    Needless to say, the constitutionality of arrangements was not the province of the governments of Nauru and Papua New Guinea. The thing about constitutions is that they bind governments and even parliaments, and they are definitively interpreted not by governments but by courts. Legislative restrictions have to comply with constitutional constraints.

    In 2003, I published the first edition of my book Tampering With Asylum. I wrote:

    ‘The detention of asylum seekers is contrary to the constitutions of Papua New Guinea and Nauru. Imagine if every first-world country decided to engage in this sort of unlawful people trading.’

    After Kevin Rudd revived the Pacific Solution on 19 July 2013 and once Tony Abbott perfected it on his election as prime minister, the PNG government decided to amend its Constitution to try and legalise the detention second time around.

    In 2014, the PNG parliament purported to amend the Constitution by adding a further exception to section 42, thereby permitting deprivation of liberty for the purpose of holding a foreign national under arrangements made by Papua New Guinea with another country’.

    “Just because Australia does not have a constitutional bill of rights, that is no excuse for our governments exporting their cavalier disregard for human rights to our mendicant neighbours.”

    Unlike the Australian Constitution, the PNG Constitution permits the parliament to amend the Constitution without the need for a referendum of the people. But the PNG Constitution does specify that amendments to the Constitution paring back constitutional rights can only be made subject to strict conditions in relation both to the content and form of the new law.

    In relation to the content, a new restriction on an existing constitutional right can be legislated only if it is necessary to advance defence, public safety, public order, public welfare or public health, or if it is necessary to protect the rights of others, or if it is necessary to resolve a conflict of rights.

    In all these cases, there is a need to establish that the proposed law ‘is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind’. The proposed law legalising detention of asylum seekers sent from Australia did not get to first base according to the judges.

    The judges, having quoted UNHCR’s adverse report on the Manus Island Processing Centre, agreed with the Leader of the Opposition’s contention

    ‘that treating those required to remain in the relocation centre as prisoners irrespective of their circumstances or their status save only as asylum seekers, is to offend against their rights and freedoms as guaranteed by the various conventions on human rights at international law and under the PNG Constitution’.

    In relation to the form of the new law, it needed to state the purpose for which it was made and to ‘specify the right or freedom that it regulates or restricts‘. The court ruled that the new law ‘did not specify the purpose of the amendment or the right which it purported to limit. On that ground alone the amendment is invalid and should be declared so.’

    So the law aimed at legalising long term detention of the asylum seekers being held in the Manus Island Processing Centre was struck down. It’s unconstitutional.

    Yet again, Australia has been complicit in its Pacific neighbours (PNG and Nauru) prostituting their Constitutions and undermining the rule of law in exchange for a fistful of dollars, with hapless asylum seekers, most of whom are ultimately proved to be refugees, being left to languish.

    Just because Australia does not have a constitutional bill of rights, that is no excuse for our governments exporting their cavalier disregard for human rights to our mendicant neighbours. The PNG judges thought their legal reasoning would be even more compelling ‘if the conditions of detention are such as to damage the rights and dignity of the detainees or, worse, cause physical or mental suffering’.

    “So the spiral of abuse continues until ultimately Australia convenes a royal commission to get to the bottom of our complicity in the abuse of asylum seekers and trashing of the rule of law in our region.”

    These asylum seekers now have a claim for damages for wrongful detention. The PNG court has ordered that ‘both the Australian and Papua New Guinea governments shall forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers’.

    No doubt we will hear unctuous pleas from Australian ministers that Australia was not even a party to the court proceedings. Our government was no more involved in the unconstitutional detention of these asylum seekers than was Channel 9 in the attempted abduction of the children in Lebanon last fortnight. So the spiral of abuse continues until ultimately Australia convenes a royal commission to get to the bottom of our complicity in the abuse of asylum seekers and trashing of the rule of law in our region.

    Of course, Peter Dutton, the Australian Immigration Minister says these asylum seekers and proven refugees being detained on Manus Island ‘won’t be coming to Australia’. For months now he has been insisting that the 263 asylum seekers here in Australia awaiting return to Nauru after medical treatment must be sent for fear that their remaining in Australia might send a message to people smugglers.

    That cry is starting to ring hollow. The boats have stopped, and they will stay stopped. And those 263 are still here.

    Not only should those 263 be allowed to remain; those 850 held in detention on Manus Island should be brought to Australia under an agreement whereby they receive prompt processing and resettlement in exchange for their agreeing to drop their substantial damages claims for unlawful, unconstitutional detention in unconscionable conditions on Manus Island.

    It’s time to close the Manus Island Processing Centre and to allow PNG to return to the rule of law. It’s better that Australia cut its losses now, rather than waiting for the inevitable royal commission which will lay bare the long term cost of what has been done in our name.

    And have no fear, the boats will stay stopped provided only that our defence and intelligence services do their job in cooperation with Indonesian authorities.

     

     

    Frank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture. This article was first published in Eureka Street on 27 April 2016.

    Footnote:  Incidentally, it’s worth noting that one of the main two judgements in the case was written by Justice Higgins, one time Chief Justice of the ACT.  The ACT has its own Human Rights Act, so His Honour is well familiar with the jurisprudence required to interpret the human rights provision in the PNG constitution.  John Menadue.

     

  • Frank Brennan. Deja vu for Timor as Turnbull neglects boundary talks

    When Malcolm Turnbull became prime minister six months ago, our Timorese neighbours thought there might be an opportunity to draw a line on the past and to kick start the negotiation of a permanent maritime boundary between Australia and Timor-Leste. For the moment, they find themselves sadly mistaken.

    Rui Maria de Araujo, the fairly new prime minister of Timor-Leste, wrote to our very new prime minister Malcolm Turnbull inviting him to turn a new leaf in the Australia-Timor relationship. It was not to be.

    However the Timorese should not lose heart. They are well used to winning the hearts and minds of Australians even when Australian political leaders appear to be tone deaf to their pleas. This time they have convinced the Labor Party about the justice of their cause, and there is every chance that the Australian community will rally behind them after the federal election.

    Behind the scenes, there is still plenty of legal intrigue about Australia’s 2004 bugging of the Timor cabinet offices during the negotiation of CMATS, the most recent treaty delaying the negotiation of a permanent maritime boundary.

    Australia has refused to issue a passport to the ex-ASIS officer, ‘Witness K’, who was involved in the bugging and who is happy to give evidence for the Timorese before an international tribunal. It would be best for both sides if the neighbour’s dirty laundry were not put on public display.

    Under CMATS, the two countries agreed to put the negotiation of a permanent maritime boundary on hold for up to 50 years. The hope was that a business plan for the exploitation of the Greater Sunrise oil and gas deposit in the contested Timor Sea could be finalised within six years and the mining completed before the need to negotiate a maritime boundary.

    This was not to be. It is now nine years since CMATS came into effect and there is still no prospect of an agreed business plan.

    “Turnbull will have to stop preaching on the South China Sea if he is not prepared to act in the Timor Sea.”

    The Timorese have a sense of deja vu with Australian politics. Back in 2002, the Howard Liberal-National Party Government decided to withdraw from the jurisdiction of the International Court of Justice in relation to the determination of maritime boundaries. The Labor Party in opposition was not able to commit to a reversal of that decision.

    When Howard’s Foreign Minister Alexander Downer then rushed the CMATS treaty through the parliamentary review process cutting corners with indecent haste, the Labor Party made no commitment to review the treaty when elected to government.

    Labor prime ministers Gillard and Rudd never committed to negotiating a maritime boundary nor to resubmitting to the jurisdiction of the International Court of Justice.

    At last year’s ALP National Conference, the Timorese and their supporters had a partial win, breaking the bipartisan Australian consensus on delaying the negotiation of a maritime boundary. The ALP party platform was amended to read:

    In Government, Labor will enter into structured engagement with Timor-Leste to negotiate the settlement of maritime boundaries between our two countries. Labor reaffirms our commitment to a rules-based international system, underpinned by a philosophy of multilateralism and institutions like the International Court of Justice (ICJ).

    In light of this, in Government Labor will review its reservations to the United Nations Convention on Law of the Sea (UNCLOS) to the settlement of maritime boundary disputes through the ICJ and the International Tribunal of the Law of the Sea (ITLOS).

    This was only a partial win because though there was a fresh commitment to commencing negotiations for a permanent maritime boundary, the further commitment was only to review the reservations to UNCLOS first put in place by Alexander Downer.

    On 18 January, Turnbull went to Washington and lectured the Americans about the virtues of UNCLOS and the desirability of the Americans and the Chinese subjecting themselves to international law.

    Referring to the rising tensions in the South China Sea, Turnbull told his audience that ‘unilateral actions are in nobody’s interest. They are a threat to the peace and good order of the region on which the economic growth and national security of all our neighbours depend. These differences should be resolved by international law.’

    Obviously he had not considered Australia’s long term stand on the Timor Sea.

    The real breakthrough for the Timorese came when Tanya Plibersek, the Deputy Leader of the Opposition and the Shadow Minister for Foreign Affairs, told the National Press Club on 10 February:

    If we want to insist that other nations play by the rules, we also need to adhere to them. The maritime boundary dispute has poisoned our relations with our newest neighbour. This must change for their sake and for ours.

    A Shorten Labor Government will redouble our efforts to conclude good faith negotiations with Timor Leste to settle the maritime boundaries between our two countries. If we are not successful in negotiating a settlement with our neighbour, we are prepared to submit ourselves to international adjudication or arbitration.

    That night, speaking on ABC Lateline, she told Tony Jones that Labor was now committed not just to kick-starting good faith negotiations for a permanent maritime boundary but also that ‘if we couldn’t come to a resolution [we will] submit ourselves to international adjudication or arbitration’.

    She had communicated this advice to Xanana Gusmao the previous day and ‘he was very pleased to hear that’.

    Four things have become clearer since Australia was taken to the cleaners by Timor in the International Court of Justice in 2014:

    1. A commitment by Australia and Timor-Leste to negotiate a maritime boundary would be no matter of concern to Indonesia.
    2. The situation in the South China Sea could well be improved (and definitely not worsened) were Australia to commit to the negotiation of a maritime boundary with Timor Leste.
    3. The CMATS Treaty has run its course. It has not achieved its primary objective which was the facilitation of the immediate development of Sunrise. It is now an irritant.
    4. The espionage case and the refusal of a passport for Witness K will be an ongoing sore in the relationship unless it be in the interests of both parties to discontinue all such proceedings.

    Were Labor to win the forthcoming federal election, there would be no reason to delay any further the negotiation of a maritime boundary. If on the other hand, Turnbull is returned with a mandate in his own right, he should come to see that Australian values and sound political principles support the need for his government to draw the line on past attempts to foreclose on boundary negotiations.

    Given the ALP change and his own commitment to innovation and bold, clear thinking, Turnbull is unlikely to pledge his government to a further 41-year stand-off with Timor on the negotiation of a maritime boundary. Decent Australians and Timorese expect a change. Turnbull will have to stop preaching on the South China Sea if he is not prepared to act in the Timor Sea.

     

    Frank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture. This article first appeared in Eureka Street on 20 March 2016.

     

  • Frank Brennan SJ. An Unholy Mess: Cardinal Pell, the Royal Commission are Owed Justice, not Vigilantism

    On medical advice he has decided not to risk the long plane flight home from Rome. This makes things much harder for victims seeking closure.

    It makes things harder for others, including members of the Catholic Church and citizens wanting certainty about the appalling offences of the past and clarity about the failures of Church leaders adequately to protect children from repeated abuse by paedophiles.

    Given the response to Tim Minchin’s song, it also makes things harder for Pell. But that’s his decision. The rest of us have to live with his decision, and do the best we can to ensure that the Royal Commission can do its job well, primarily for the good of the victims, and to ensure the future protection of children in institutions.

    Victims travelling to Rome have asked that Pell meet with them. He has said he will. They have also asked to be present in the room while he gives his evidence. The Royal Commission has agreed to provide a room in a Roman hotel.

    The room will need to be open to members of the public. Given that the room could be occupied not just by the witness and silent victims, there will be a need for court orderlies to be in attendance. There would also be a need for some police back-up on hand, as is customary for courts and Royal Commissions, ensuring that order can be maintained so that the integrity of the judicial process might be assured.

    Not being within the Australian embassy, the room will be under Italian jurisdiction, so there will be a need for some understanding and cooperation between Australian and Italian police. Think only of the international documentary maker who turns up wanting to film Pell and the victims, or the Pell supporter carrying a placard supporting the witness, or the victim who finds the evidence unbearable and starts shouting out at the witness.

    The decorum and integrity of the hearing process must be guaranteed for the good of all persons, including the witness. It’s not good enough to assume that this can be done by a stern judicial eye being cast by videolink from the other side of the world. The key consideration has to be the capacity of the Commission to receive and examine Pell’s evidence according to the rules of natural justice.

    Victims anxious to question the credibility of Pell’s evidence undoubtedly will consult their lawyers as to whether it is best for them to be back in the hearing room in Sydney, or with their friends and supporters in the Ballarat Town Hall watching the videolink, or in Rome. Usually, lawyers appearing for clients questioning the credibility of a key witness would prefer their clients to be on hand to provide immediate instructions in light of the witness’s answers. Being on the other side of the world could be problematic.

    Today, the Royal Commission resumes its hearing of Case Study 28 in Ballarat. This case study is designed “to inquire into the response of the Catholic Diocese of Ballarat and of other Catholic Church authorities in Ballarat to allegations of child sexual abuse against clergy or religious, and the response of Victoria Police to allegations of child sexual abuse against clergy or religious which took place within the Catholic Diocese of Ballarat.”

    There are two institutions under the spotlight: the Catholic Church and the Victoria Police. Next week Pell will give his evidence from Rome in relation to Case Study 28 as well as Case Study 35, which relates to the Catholic Church’s response to child sexual abuse in the Archdiocese of Melbourne. This case study will require the commission to study the relationship between the Victoria Police and the Catholic Church in the development of the Melbourne Response protocol.

    Last Friday afternoon, the Melbourne Herald Sun, armed with leaked material emanating from the Victoria Police, phoned Pell in Rome. He was in bed. According to the newspaper’s own report: “The newspaper was seeking comment. Victoria Police was investigating historical claims that Pell had sexually abused five to ten boys.”

    The Sunday edition of the Herald Sun spoke of “calls by detectives to be given the green light ‘as soon as possible’ to fly to Rome to interview Cardinal George Pell”:

    “The Sunday Herald Sun understands senior Victoria Police are assessing the dossier of evidence collected by the Sano team in the past year, including witness statements from alleged victims.”

    The newspaper claimed that “legal sources [plural] revealed Sano Taskforce members were ‘highly motivated but frustrated’.” The source (now singular) was reported as saying that the Sano investigators wanted to go to Rome to interview Pell “but that the ultimate decision isn’t down to them. It is with senior figures who will have to give them the go-ahead.”

    Pell is in no doubt that all this material relating to uninvestigated complaints against him was leaked directly by the Victoria Police to the media and at a time designed to cause maximum damage to his reputation. Pointing out that “the Victorian Police have never sought to interview him in relation to any allegations of child sexual abuse,” he “has called for a public inquiry into the leaking of these spurious claims by elements in the Victorian Police.”

    The Victorian government – one of the governments to commission the Royal Commission – is yet to respond. It is imperative for the integrity of the Royal Commission and its processes that the Victorian government ensure that its own police service or rogue members of that service have not been involved in the leaking of material resulting in the unproven public impugning of the reputation of a key witness in relation to the very matters being investigated by its own Royal Commission.

    The public deserves this assurance, as do the other governments which have jointly commissioned the Royal Commission. No Royal Commission can operate with integrity if any arm of a government commissioning the Royal Commission is engaged in unauthorised activity aimed at undermining the public standing of key witnesses, especially when that arm of government itself is also subject to scrutiny by the Royal Commission.

    It is grossly improper for a police service to leak to any person details of uninvestigated complaints against a witness to a Royal Commission commissioned by that police service’s government. Whether police have leaked the material directly to the media outlets or to intermediaries is irrelevant. The police leaks risk putting the integrity of the Royal Commission at risk.

    Any government conducting a Royal Commission must come with clean hands, informing the Commission and the public about the source of the leaks and the action taken to punish the wrongdoing and to mitigate the damage.

    Justice McClellan and his fellow commissioners have a daunting task in the next fortnight, according due process and natural justice to a high profile witness on the other side of the world who has been publicly labelled “scum,” “buffoon” and a “coward,” being the subject of unauthorised leaks about uninvestigated complaints from a police service which itself is under scrutiny for its past cooperation with the witness and his Church.

    The commissioners will have a difficult judicial task in determining the balance of blame between the Church and the police service given the earlier finding by the Victorian Parliamentary Inquiry:

    “It is clear that Victoria police paid inadequate attention to the fundamental problems of the Melbourne Response arrangements until relatively recently in April 2012 and that, when they did become the subject of public attention, Victoria Police representatives endeavoured quite unfairly to distance the organisation from them.”

    The Victoria Police should be held to the same standard as any other institution appearing before the Royal Commission.

    The business of the leaks needs to be cleaned up. Once the venue for the Cardinal’s evidence is determined, everyone can prepare to hear his evidence and to test it. And yes, it would have been so much better for everyone if Pell had come home last December before Tim Minchin and the police leakers got to work. But there’s no point in crying over spilt milk.

    Frank Brennan, S.J. is Professor of Law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture.

  • Frank Brennan SJ. The Taxpayer’s Liability for Long Term Detention on Nauru (and Manus Island)

    As the Commonwealth Government contemplates what to do with the Bangladeshi woman in the recent High Court asylum case and her baby born in Australia, it will be relevant to consider the possible civil liability of the Commonwealth for its participation in her detention on Nauru for six months at a time when the Commonwealth Parliament had not specifically authorised the Executive Government to take action or make arrangements co-operating in such detention with a refugee processing centre (RPC).

    Last year the Immigration Department advised the Senate:

    It was originally planned that the RPC would operate as an ‘open centre’, comprising ‘community living institutions’ with minimal security, from which asylum seekers would come and go with relative autonomy, and engage with the local community. In ensuing consultation with the Government of Nauru, the model ‘evolved’ such that from its conception the centre operated as a closed facility, with movement outside the RPC only allowed on an escorted basis. On 25 February 2015, open centre arrangements were introduced at the RPC for certain cohorts of asylum seekers. The department advised that this was being ‘incrementally expanded to include all eligible asylum seekers’.

    The High Court decided that ‘the Commonwealth did not itself detain the plaintiff’. But that was not the end of the matter. French CJ, Keifel and Nettle JJ said that ‘the plaintiff’s case concerns the participation by the Commonwealth and its officers in the detention by Nauru of the plaintiff. It is that participation which is required to be authorised.

    It is that participation which might found an action in tort for wrongful detention.

    French CJ, Keifel and Nettle JJ said, ‘It may be accepted that the Commonwealth was aware that Nauru required the plaintiff to be detained. In order to obtain Nauru’s agreement to receive the plaintiff, the Commonwealth funded the Centre and the services provided there in accordance with the Administrative Arrangements. The Commonwealth concedes the causal connection between its conduct and the plaintiff’s detention.’ Equally it may turn out that Nauru was aware that the Commonwealth required the plaintiff to be detained, or that the Commonwealth and Nauru reached agreement that the plaintiff should be detained. But why?

    The Commonwealth Parliament passed retrospective legislation authorising the detention regime. But just before the case commenced, the Nauruan government announced that they would no longer detain asylum seekers within refugee processing centres.

    French CJ, Keifel and Nettle JJ said: ‘If the regional processing country imposes a detention regime as a condition of the acceptance of UMAs removed from Australia, the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing.’ Did the six month detention of the plaintiff serve the purpose of processing, given that Nauru no longer requires the detention of asylum seekers while processing them, given that Nauru originally intended to process asylum seekers without detaining them, and given that the Nauruan decision to detain asylum seekers ‘evolved’ through discussions with Commonwealth officials?

    Justice Bell said that the Commonwealth brought about the plaintiff’s detention ‘in a practical sense’:

    The Commonwealth did not seek to have Nauru detain persons taken to it for regional processing. Nonetheless, by applying for an RPC visa in the plaintiff’s name and by taking the plaintiff to Nauru, in a practical sense the Commonwealth brought about her detention under the regime that applied in Nauru. The Commonwealth parties accept so much.

    Justice Bell said, ‘As a condition of its acceptance of a transferee from Australia, Nauru required that the transferee be detained in custody while any protection claim was processed and while any arrangements were made for removal from Nauru in the event the transferee was found not to be in need of international protection.’ Her Honour concluded, ‘The Commonwealth parties brought about the plaintiff’s detention in Nauru by applying for the issue of an RPC visa in her name without her consent.’ Justice Bell accepted that the plaintiff’s detention in Nauru ‘was, as a matter of substance, caused and effectively controlled by the Commonwealth parties’. Justice Bell said, ‘If a transferee were to be detained for a period exceeding that which can be seen to be reasonably necessary for the performance of those functions, the Commonwealth parties’ participation in the exercise of restraint over the transferee would cease to be lawful.’

    Given that Nauru originally intended to process people without detaining them, and given that Nauru is once again committed to processing people without detaining them, the question arises: what was the purpose of the six months detention of the plaintiff? Was she detained for a period exceeding what was reasonably necessary to effect the processing of her claim?

    Justice Gageler said that the focus had to be on the capacity of the Executive Government of the Commonwealth ‘to procure or enforce a deprivation of liberty’.   He concluded that the Commonwealth’s contractor Wilson Security staff ‘exercised physical control over the plaintiff so as to confine her to the Regional Processing Centre’.

    He concluded ‘that Wilson Security staff exercised that physical control over the plaintiff in the course and for the purpose of providing services which the Executive Government of the Commonwealth had procured to be performed under the Transfield contract’.

    Justice Gageler said that the Commonwealth Parliament’s retrospective law was directed at ‘nothing other than conferring statutory capacity or authority on the Executive Government to undertake action which is or might be beyond the executive power of the Commonwealth in the absence of statutory authority.’ Most significantly, he insisted, ‘The section has no effect on the civil or criminal liability of the Executive Government or its officers or agents under Australian law or under the law of a foreign country. The lawfulness or unlawfulness of Executive Government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section.

    Gageler J found: ‘The requisite connection with that role would be broken were the duration of the detention to extend beyond that reasonably necessary to effectuate that role or were that role to become incapable of fulfilment.’ He thought that the plaintiff’s claim ‘that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014 was well-founded.’ Thus the need for the Commonwealth Parliament to pass a retrospective law validating the Commonwealth action in 2015.

    There is no doubt that the Commonwealth’s involvement in the six month detention of the plaintiff was unauthorised when it occurred. Prior to the plaintiff’s detention, Nauru saw no need to detain asylum seekers in order to process their claims. Now, Nauru sees no need to detain asylum seekers in order to process their claims. It could be a live issue for a court to investigate how the model of processing evolved to warrant detention. If there be evidence that the long term detention of the plaintiff and people like her contributes nothing to the efficacy of the processing of their claims, then the Commonwealth’s participation in a scheme aimed at effecting and financing the detention would arguably create a civil liability regardless of the retrospective Commonwealth law permitting the Commonwealth Executive to effect and finance detention but only for the purpose of processing.

    Mr Dutton has a lot to think about. As Treasurer, Mr Morrison might also continue to have a few worries about the long term detention of persons on Nauru which he participated in when Immigration Minister.

     

     

     

  • Frank Brennan SJ. High Court not the answer to Nauru depravity

    The moral depravity of Australian funded and orchestrated holding of asylum seekers, including children, on Nauru and Manus Island is to continue.

    On Wednesday the High Court made clear that it is in no position to question the retrospective law passed by the Commonwealth Parliament on 30 June 2015 authorising the Australian Government to do whatever it takes to assist countries like Nauru with the detention of asylum seekers sent there by Australia as of 18 August 2012.

    The court ruled by six to one that offshore detention and processing of asylum seekers was valid according to this law authorising the Australian government to enter into agreements with other governments and contracts with corporations to provide ‘garrison and welfare services’ in offshore regional processing centres such as Nauru and Manus Island.

    The sole dissentient was the newest judge, Justice Gordon.

    The case arose out of a claim by a Bangladeshi woman (categorised as an ‘unauthorised maritime arrival’ or ‘UMA’) who had been intercepted on 19 October 2013 on a boat headed for Australia seeking asylum. She was transferred to Christmas Island the next day. Three months later she was transferred to Nauru where she was held in detention at a refugee-processing centre for over six months.

    Because of medical complications with her pregnancy which could not be treated adequately on Nauru, she was transferred temporarily back to Australia where she gave birth to her child on 16 December 2014. Not relishing the thought of taking her baby to the hellish conditions of Nauruan detention, she applied to the High Court questioning the legal validity of the offshore detention and processing regime.

    The Commonwealth’s lawyers obviously thought she had an arguable case. On 30 June 2015, the Commonwealth Parliament enacted the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth), which inserted s 198AHA into the Migration Act, with retrospective effect to 18 August 2012. This law authorised the government to take any action or ‘make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions’ in other countries.

    Presumably the Nauruan government lawyers and political advisers also thought there might be some problems. On 2 October 2015, just days before the High Court hearing, the Government of Nauru announced its intention ‘to allow for freedom of movement of asylum seekers 24 hours per day, seven days per week’ from 5 October 2015 and to introduce legislation to that effect at the next sitting of the Nauruan Parliament. The High Court was duly informed of these developments.

    It is fair to say that prior to October 2015, the Commonwealth expected Nauru to detain these people, and with that expectation being realised was prepared to remunerate Nauru very handsomely, with retrospective parliamentary endorsement.

    With the air of unreality reserved to the highest courts (and perhaps some religious authorities) three of the judges observed that ‘the Commonwealth could not compel or authorise Nauru to make or enforce the laws which required that the plaintiff be detained’ and thus the Commonwealth was not legally responsible for the detention.

    These three majority judges did concede some limit to Commonwealth complicity in Australian funded detention of asylum seekers by another country: ‘If the regional processing country imposes a detention regime as a condition of the acceptance of UMAs removed from Australia, the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing.’

    Another of the majority judges, Justice Keane, said ‘the plaintiff’s submission that regional processing is punitive because it is designed to have a deterrent effect on the movement of asylum seekers must be rejected. A deterrent effect may be an intended consequence of the operation of regional processing arrangements, but the immediate purpose of s 198AHA is the facilitation of the removal of unauthorised maritime arrivals from Australia.’

    I daresay none of these judicial niceties will bring much comfort to the Bangladeshi mum who might feel that her baby is being punished by being taken to Nauru where both of them could remain for up to ten years should they be found to be refugees, pending resettlement in Cambodia or any other participating third country.

    If the Australian Constitution contained provisions similar to the human rights protections contained in the Nauruan Constitution, the High Court may have been able to offer some relief. But the High Court made clear that the detention of asylum seekers on Nauru was detention by the Nauruan government authorised by the Nauruan parliament, and thus it would be a matter for the Nauruan courts to determine if such executive action and legislative authorisation were constitutional.

    The Nauruan Constitution, unlike the Australian Constitution, sets strict limits on the government’s and the parliament’s power to detain persons and to deprive them of their liberty. Australia just happens to fund and facilitate the arrangements authorised by the Nauruan government and parliament, whether or not those arrangements are constitutionally valid.

    Justice Gageler rightly observed: ‘Their detention at the Regional Processing Centre has been under the authority of Nauruan legislation, the validity of which under the Constitution of Nauru is controversial.’

    Justice Gageler, our strongest civil libertarian judge (having been the Commonwealth Solicitor-General during some of the more difficult years of Australian asylum policy), considered that ‘the plaintiff’s central claim (that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect’.

    If returned to Nauru, presumably the plaintiff and her baby will no longer be detained, given Nauru’s newfound commitment to liberty for asylum seekers transferred from Australia. That then raises the fundamental political and moral question: why do we still want to transfer people like this (including babies) to countries like Nauru, Manus Island and Cambodia?

    Just after Malcolm Turnbull became prime minister, I wrote to him and Opposition Leader Bill Shorten suggesting a bipartisan announcement at the opening of parliament this year. I suggested that each address the Parliament reconfirming their commitment to stopping the boats and turning back those who are not in direct flight from persecution in Indonesia. I urged the announcement of an agreed date for the closure of the facilities on Nauru and Manus Island.

    I conceded that immediate closure of these facilities might allow unscrupulous people smugglers to ply their trade again with the message to asylum seekers in Indonesia that the appointment of a new Australian Prime Minister warranted renewed attempts at gaining access to Australia. I wrote, ‘But after an appropriate delay, you could negate that possibility and you could close these facilities without any risk of asylum seekers thinking that Australia was once again a possible boat destination.’

    Neither Turnbull nor Shorten was interested, repeating the mantras about preventing people smuggling, saving lives at sea and maintaining the integrity of Australia’s borders. But all this can be done without sending this mum and her baby to Nauru. We’re now told it can be done without actually detaining anyone on Nauru.

    In the past, we were solemnly assured that it was necessary to detain these people in order to send a message to other asylum seekers waiting in Indonesia. The boats have stopped. They will stay stopped. Any boats that try to get here will be turned back provided only there can be the assurance that no one on board is in direct flight from persecution in Indonesia.

    The people smugglers and their prospective clients now know that people are no longer held in detention on Nauru. It is no longer the hellish or uncertain conditions (with or without detention) on Nauru that deters people from getting on boats. It is the vigilance of our intelligence and military personnel which does that. The door is locked.

    All major political parties are agreed on the need to stop the boats. The heads of the Australian defence force are now confident that the boats have stopped and that any future boats will be stopped or turned back. This is a very different situation from four years ago.

    When Prime Minister Gillard failed to have her Malaysia solution implemented, she set up an expert panel chaired by Air Chief Marshall Houston. In August 2012, the Houston panel told the government that ‘the conditions required for effective, lawful and safe turnbacks of irregular vessels headed for Australia with asylum seekers on board are not currently met in regard to turnbacks to Indonesia’.

    So they looked for other short-term measures. Having studied Prime Minister Howard’s 2001 Pacific solution, the panel concluded that ‘in the short term, the establishment of processing facilities in Nauru as soon as practical is a necessary circuit breaker to the current surge in irregular migration to Australia’. Four years on, the Houston assessment of turnbacks would appear to be outdated and there is no longer a need for a circuit breaker. There is no surge; the boats have stopped.

    Before becoming Prime Minister, Turnbull insisted that our treatment of asylum seekers on Nauru and Manus Island was ‘harsh, but not cruel’. Now that there is no purpose to be served by maintaining the facilities on Nauru and Manus Island, the treatment of those persons is cruel as well as harsh.

    A prompt resolution of the matter is required unless Australia is to be left with a legacy of shame which will be sure to be disclosed at a future royal commission with plaintive cries from our past leaders and retired public servants: ‘We didn’t know the trauma caused to children and others fleeing persecution by being placed in such uncertain, isolated hell holes.’

    There is no joy to be found in our High Court applying a Constitution even more bereft of human rights protections than the Nauruan Constitution. It’s time for our politicians to address the political and moral question: what purpose is actually served by sending this mum and her baby back to Nauru, given that the boats have stopped and will stay stopped regardless of where we now place this mother and child and others like them?

    It’s time to walk and chew gum at the same time. It’s not an either/or proposition. There is no longer any need for a circuit breaker. The circuit is permanently cut. We can prevent people smuggling, save lives at sea, maintain the integrity of our borders and deal decently with the residual caseload of asylum seekers including this mother and her child.

     

    Frank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture. This article was first published in Eureka Street on 3 February 2016.

     

  • Frank Brennan. Meeting Pope Francis – the planet and markets.

    41 years a Jesuit, I had never met a pope.

    Back in 1986, I was adviser to the Australian Catholic Bishops on Aboriginal land rights. Pope John Paul II came to Alice Springs, met with Aborigines and Torres Strait Islanders, and spoke strongly about the rights of Aborigines to retain title to their traditional lands.

    Frank Brennan presents Pope Francis with a bottle of Sevenhill wine

    Next day, a bishop told me the amusing story that the Pope had arrived at Alice Springs airport where he had mistaken Wagga’s Bishop William Brennan for me. Bishop Brennan was very gracious about the matter when we embraced during the sign of peace at mass.

    Some years later I did some work for the Pontifical Commission for Justice and Peace in Rome. After one meeting, the President Cardinal Roger Etchegaray invited me to stay in Rome and to concelebrate mass with the Holy Father at a major event in St Peter’s Square the following Sunday.

    I did not see any reason to change my Saturday flight. As I sat on the floor to celebrate mass with the staff of the Jesuit Refugee Service in Bangkok that Sunday morning, I told them that I knew where I would prefer to be.

    On arrival in Rome two weeks ago to prepare for the Global Foundation’s roundtable on ‘Rejecting the “globalisation of indifference”: mobilising for a more inclusive and sustainable global economy’, the Australian Ambassador to the Holy See, John McCarthy QC, asked if I would like to meet the Pope. Without the slightest hesitation, I said I would.

    The ambassador organised a ticket for me to attend the regular Wednesday papal audience with thousands of other pilgrims. But he assured me I would be in the front row with a good chance of meeting my Jesuit colleague with the name ‘Francis’.

    The audience was due to commence at 10am. I arrived about 20 minutes early. The Pope was already working the room, moving through the crowd towards his white upholstered throne. By 9.45am, he was ensconced, painstakingly reading his initial catechesis for the Year of Mercy. He finished his delivery by 10.05am. I spared a thought for the pilgrims who were arriving just on time. Then followed half an hour of monsignori reading translations of the Pope’s remarks in various languages.

    By 10.45 the Pope had greeted the bishops and monsignori on stage who had gathered for their photo opportunities. Francis started descending the stairs and I thought the event rather underwhelming.

    But Francis did not beat any prompt exit. He spent the next 45 minutes greeting every individual in the bay immediately in front of me.

    There were about 200 people there. As far as I could judge, you had to be confined to a wheelchair, a child with a life threatening illness, or a carer to be eligible for admission to that privileged space. I was completely overcome. Here was a pope living out everything he says, and doing it right under my nose.

    He has often delighted in quoting Francis of Assisi, ‘Preach the Gospel always, and if necessary, use words!’ The words had been spoken from the throne; now he was in real preaching mode with the people, especially the poor and the suffering.

    Mothers wept as they embraced him. Kids played games and offered him gifts. People in wheelchairs extended every limb they could to reach him. He was totally present to each of them, oblivious of the cameras and mobile phones except when kids asked him to pose for a selfie.

    He then turned to the ‘front row’ where I had been placed. Most of the people in this row were newly married couples. On my right was a young English couple who’d arrived in Rome without realising they needed a wedding garment for the day. They bought a set of white and black T shirts — one saying ‘Just Married’ and the other ‘Your blessings please’. Francis was only too happy to offer them his blessing.

    On my left was a young Latin American couple dressed to the nines, the bride looking resplendent in her wedding dress and the groom dignified in his tuxedo.

    I was there in my uncharacteristic clerical collar which I had purchased at Boston College a year ago when the rector had told me that it was advisable to wear clerical dress occasionally on campus. I later wrote to the rector telling him that I had finally found a use for the shirt.

    As Francis approached, I offered him a bottle of Sevenhill Inigo Shiraz wine with the simple observation: ‘vino Australiano Gesuita’. He beamed his response: ‘acqua sacra’. Moving on to the next couple, he turned back, smiled very warmly, and said, ‘Thank you’. I came away delighted to have met a pope.

    The Global Foundation’s Roman roundtable

    I then settled down to prepare for the roundtable which brought together the most senior officers in the Vatican (Cardinals Parolin and Pell and Archbishop Paul Gallagher) with leaders of international agencies and organisations including Christine Lagarde, managing director of the International Monetary Fund, Bertrand Badre, managing director and CFO of the World Bank, Dominic Barton, managing director of McKinsey & Company, and Baroness Scotland, the new secretary-general of the Commonwealth.

    Over two days, we met at Villa Magistrale, the headquarters of the Sovereign Order of Malta on the Aventine Hill overlooking Rome and the Vatican. We discussed what was needed for the world economy to be more sustainable and inclusive.

    Corporate CEOs like Dennis Bracy from US-China Clean Energy Forum, Mark Cutifani from Anglo-American, Rod Leaver from Lend Lease Asia, and Robert Thomson from News Corp kept us grounded and focused on the needs and challenges of business.

    To date, we have worked on the presumption that the global economy can be rendered more inclusive only if it is growing. We need to confront this presumption. It may be correct. But then again some, including Pope Francis, have asserted the contrary.

    To date, we have worked on the presumption that the global economy will be sustainable regardless of the situation of the planet. Now we need to confront this presumption. Some, including Pope Francis, have asserted that the global economy will be sustainable in the long term only if we confront and reverse the effects of climate change, the loss of biodiversity and water shortages.

    Even climate sceptics need to concede that human activity has contributed to global warming regardless of the natural cycle of climate change, and that contribution has exacerbated the adverse impact of climate change on the planet. Action to mitigate the human effects on climate change is not only prudential; it is a moral imperative.

    Where Francis starts to get into trouble with some from the west or from the north (depending on your geopolitical perspective) is in his questioning the myth of unlimited progress.

    In Laudato Si’, he says: ‘If we acknowledge the value and the fragility of nature and, at the same time, our God-given abilities, we can finally leave behind the modern myth of unlimited material progress. A fragile world, entrusted by God to human care, challenges us to devise intelligent ways of directing, developing and limiting our power.’

    He is clearly at odds with those who assert that the key to the future is simply growing the pie so the poor can get more while the rich need not get less than what they already have, and that growing the pie is as good a way as any ultimately to save the planet.

    Francis doesn’t buy this status quo position. He thinks there is a need to limit the size of the pie, for the good of the planet, and there is a need to redistribute the pie so that the poor get their equitable share.

    The differences over these two presumptions presented us with a major challenge and a significant barrier to our working collaboratively towards a more inclusive and sustainable global economy.

    Hailing from Argentina, Francis puts his trust neither in ideological Communism nor in unbridled capitalism. Like his predecessors Benedict and John Paul II he is unapologetic, asserting that ‘by itself the market cannot guarantee integral human development and social inclusion’.

    He has not known a regulated market that works well. He has not known a polity in which all including the rulers are under the rule of law. He questions any economic or political proposal from the perspective of the poor, and he is naturally suspicious of any economic or political solution which is likely to disadvantage the poor.

    What for him may be a failure of the market might be seen by some of us who are used to well regulated markets in societies subject to the rule of law as a failure caused by market abuses which might be readily corrected by the application of right economic and political strategies.

    Markets cannot be well regulated while many societies experience the absence of peace, the absence of the rule of law, the lack of coherence between values and the national interest of the nation state, and unbridgeable inequality.

    We need to enhance international security, building the rule of law within multilateral organisations, and fostering the climate for investment sensitive to the triple bottom line — economic, social and environmental.

    I return from Rome grateful that we have a pope prepared to open these questions, accompanied by senior prelates happy to mix it with business and community leaders seeking the common good of the planet and especially the good of the poor.

    His words have provoked interest at the highest level in economic and political circles. His actions have inspired even the most cynical and reserved Vatican watchers.

     


    Frank Brennan SJ is professor of law at Australian Catholic University and a member of the Advisory Council of the Global Foundation which organised the Roman roundtable.

    This article was first published in Eureka Street on 24 January 2016

     

  • Frank Brennan SJ. Free speech and the plebiscite on same sex marriage

    Chris Puplick, a former senator and former president of the NSW Anti-Discrimination Board, is one of a rising chorus expressing strong objections to the Australian Catholic bishops daring to evangelise and speak publicly about their views on same sex marriage.

    Writing in The Australian on 5 December 2015, Puplick asserts: ‘When a person or group of people is described in official publications as being seriously depraved, intrinsically disordered, less than whole and messing with kids, they are entitled to take offence, and to the extent they feel they have been vilified and subjected to hate speech they should of course seek to avail themselves of the protection against such calumnies as have been provided for by the various legislatures around Australia.

    ‘It is simply wrong to say that such proceedings are an attempt to deny the Catholic Church the right to ventilate its views about traditional marriage.’

    I too would be very upset if my bishops were saying that homosexuals are ‘seriously depraved, intrinsically disordered, less than whole and messing with kids’. But they’re not. Think only of Pope Francis’ remark during the press conference on the plane on the way back from World Youth Day: ‘If a person is gay and seeks the Lord and has good will, who am I to judge him?’

    Gone are the days of rainbow sashes outside cathedrals and threats of communion bans. The fact that Puplick can seriously caricature episcopal utterances in this way shows what a contested and emotive space we are in. All because Tony Abbott convinced his party room that it was a good idea to have a plebiscite on same sex marriage.

    Many same sex couples and their supporters claim discrimination because their relationships cannot be recognised as marriage under the Commonwealth Marriage Act.

    I have long claimed that our federal politicians should have a conscience vote on same sex marriage. The Labor Party muddied the waters at their national conference in July 2015 by cobbling together a compromise motion allowing a conscience vote only until 2019, with members then being bound to support same sex marriage after the election after next.

    Given Labor’s abandonment of a conscience vote until the matter is finally resolved on the floor of the Parliament, the Coalition found itself more free to make its own political calculations about the utility of a conscience vote on its side of the chamber.

    Given developments in countries like Ireland, the UK, Canada, New Zealand and the USA, I have accepted the inevitability that civil marriage in Australia will ultimately be redefined to include committed same sex relationships.

    Given the increasing number of children being brought up by same sex couples, it is desirable that the state take away any social stigma against same sex parents.

    Given the ageing population, the state has an interest in recognising and protecting long term relationships of same sex couples who care for each other.

    Given the harmful effects of homophobia, the state has an interest in encouraging broad community acceptance of those members who are homosexual. Laws and policies can help in this regard.

    It is one thing for Commonwealth law to recognise same sex unions as marriages. It is another thing to require all persons, regardless of their religious beliefs, to treat same sex couples even in the life and activities of a church as if they were married in the eyes of their church.

    The religious freedom issues involved in the same sex marriage debate are about more than making space for religious celebrants determining who they will or will not marry. Though the issues would not necessarily be covered by amendments to the Commonwealth Marriage Act, the passage of those amendments will be the trigger for revisiting and redefining these issues.

    A plebiscite on this issue is a waste of time and risks turning very nasty, especially now that both the prime minister and the leader of the opposition support same sex marriage. The plebiscite advocates were opponents of same sex marriage who thought it would give them more airplay back in the days when the prime minister was a strong opponent of same sex marriage. With Malcolm Turnbull and Bill Shorten on the same page, the opponents will get little airplay.

    While the debate rages, it is only appropriate that religious groups like the Catholic bishops be able to evangelise their position, especially their concern that children in future be assured a known biological mother and a known biological father.

    To date, the bishops have spoken cautiously and respectfully, with perhaps the occasional lapse into loose language. They know their views are not in fashion.

    It is ridiculous to have national debate on a plebiscite stifled by assertions that church teaching on marriage is offensive to some individuals, and likely to cause offence to the so-called ‘reasonable person’. National debate should not be put on hold while an anti-discrimination commissioner, egged on by her predecessor in another jurisdiction, decides whether it is arguable that a reasonable person might be offended. The commissioner and her tribunal are not the thought police. Or at least, they shouldn’t be.

    The Commissioner’s processes should not be used to shut down national debate about the desirability of profound social change, silencing one side of the plebiscite debate while the other side is free to be as offensive to religious folk as they will, given that there is no state enforcer of religious niceness — and neither am I campaigning for one.

    Commentators like Mr Puplick should admit that the anti-religious sentiments expressed in the present debate far exceed any traces of homophobic utterance by religious leaders.

    Many of those who take offence at remarks by the bishops are those who think churches should butt out of all moral debate in the public square. On this one, we should all let a thousand flowers bloom. When the plebiscite vote is carried in favour of same sex marriage, as I am confident it will be, there will still be a need for our Parliament to legislate complex provisions protecting religious freedom and expanding the freedom to marry.

    It’s only a parliament, not a plebiscite, which can legislate the complex details of equality and the protection of all rights, including the right to religious freedom.

     

    Frank Brennan SJ is professor of law at Australian Catholic University. This is an excerpt from his Human Rights Day tribute to the Northern Territory’s Tony Fitzgerald.  This article was first published on Eureka Street on 10 December 2015.

     

  • Frank Brennan SJ. Cardinal Pell, his lawyers and the Royal Commission

    The Royal Commission into Institutional Responses to Child Sexual Abuse is about to recommence its case study on the Catholic Church in Ballarat. Last week, the Melbourne Herald Sun reported: ‘Victims of child sexual abuse look set to be grilled by lawyers for Cardinal George Pell in a bid to quash explosive allegations he was complicit in a widespread cover-up.’

    Cardinal Pell will have legal representation separate from the legal team appearing for the Church. He will return from Rome and give evidence at the public hearing next month.

    I am one of those Catholic priests who thinks that the church’s Truth Justice and Healing Council has done a good job insisting that the needs of victims be paramount. From the start, the council’s lawyers told the Royal Commission that they would not be cross-examining witnesses, testing their credibility, and doubting their evidence of sexual abuse by church personnel.

    Wanting to assist with healing for victims and wanting to learn all available lessons about how to avoid future abuse and cover-ups, the Church has been prepared to place second issues of institutional and personal reputation of church officials. The wellbeing of victims has been put first during the church’s conduct of the commission.

    Our critics would say this is too little, too late. They may be right. But as a church we are in the business of repentance, forgiveness and making a fresh start.

    We were given a fine example recently by the Anglican Archbishop Philip Aspinall who appeared before the commission admitting past mistakes in the conduct of two Brisbane schools, intelligently wrestling with the complex issues, and always putting justice and healing for the victims first.i

    Things get difficult now that the commission has Cardinal Pell back in its gaze. His reputation is on the line and the commission has spared no effort in scrutinising his past actions. No one else has been called three times before the commission.

    The commission even went to the trouble of conducting a private hearing and then a public hearing with the notorious pedophile priest Gerald Ridsdale giving evidence. Ridsdale did not come up to proof, clearly causing considerable upset to Justice McClellan and his counsel assisting Ms Gail Furness SC.

    The judge reminded Ridsdale the commission could track down proof of anyone having visited Ridsdale in jail between the private and public hearings. McClellan almost seemed to be suggesting that Ridsdale might have been nobbled. In any event, Ridsdale provided no credible or probative evidence.

    A month after Ridsdale’s appearance, McClellan explained his reasons for calling Ridsdale and other notorious pedophiles. He not only wanted to get a sense of why these individuals offend.

    But in this case study, he thought such individuals had ‘a capacity to tell us of the relationship between themselves and more senior members of their institutions, including the bishop or archbishop if they come from a religious institution. They can tell us if others knew of their offending conduct and help us to understand how the church responded or failed to respond to that conduct.’

    Ridsdale told them nothing in the public hearing.

    Pell has appeared before the commission in two previous public hearings — in the case studies on the Ellis Case and on the Melbourne response. Each time, the commission found some conflict of evidence between Pell and another witness. Each time the commission preferred the evidence of the other witness, doubting Pell’s recollection.

    In the Ellis matter, Pell had a different recollection from Monsignor Brian Rayner, his Vicar General. Rayner gave evidence that he had kept Pell apprised of the dealings between the diocese and Mr Ellis.

    Pell stated, ‘To the best of my recollection, I was not made aware at the time of any of those figures or offers. I was not consulted, as best I recall, about what financial amount should be considered. Nor was I made aware of the other factors which appear to have been significant in the way the facilitation process developed.’

    The Commission stated, ‘It seems unlikely that, in light of the legal action being foreshadowed, the Cardinal, as responsible for the finances of the Archdiocese and as the Church Authority responsible for ensuring that victims were dealt with justly, would not have sought or been provided with the offers made as part of the facilitation and the outcome.’

    The commission found Rayner to be ‘a truthful witness who did his best to provide an honest account’.

    In the Melbourne Response hearing, the commission heard from various witnesses about a key parish meeting which related to abuse in the parish of the Foster family. Cardinal Pell had no recollection of the meeting being ‘unpleasant or rowdy’. Pell’s account basically accorded with the evidence of Archbishop Denis Hart and Ms Helen Last who worked for the archdiocese’s Pastoral Response Office.

    The Commission found: ‘Notwithstanding these differing accounts, we accept Mrs Foster’s recollection of the events. Given the circumstances of the public meeting and her personal interest in the reading of the letter, she is less likely to recall the events incorrectly.

    ‘The impression the meeting left on the senior members of the Church is different, but no doubt both Cardinal Pell and Archbishop Hart have attended multiple meetings and recollections as to the impact of the events on the audience may not be as clear for them as for Mrs Foster.’

    So twice, the commission has preferred the recollection of others to that of Pell.

    At the Ballarat hearing, two victims, Timothy Green and David Ridsdale (a nephew of Gerald, the serial pedophile), made specific allegations under oath against Pell, allegations which had previously been publicly denied by Pell, and which were denied again by Pell in a media statement on 20 May 2015.

    Green told the Royal Commission that when a school boy in the change room at the swimming pool in 1974 he said to Pell: ‘We’ve got to do something about what’s going on at St Pat’s.’ He recalls the conversation going like this: ‘Father Pell said, “Yes, what do you mean?” I said, “Brother Dowlan is touching little boys.” Father Pell said, “Don’t be so ridiculous,” and walked out.’

    Pell has no recollection of Green at that time, and he has no recollection of such a conversation.

    David Ridsdale gave sworn evidence that he called Pell in 1993 to report that he had been abused in the past by his priest uncle Gerald. Immediately after the phone conversation with Pell, David Ridsdale claims to have called both his sisters and said: ‘The bastard just tried to bribe me.’

    He gave the commission this account of the conversation with Pell: ‘Me: “Excuse me, George, what the **** are you talking about?” George said, “I want to know what it will take to keep you quiet.” My response was, “**** you George, and everything you stand for.” I hung up the phone.’

    Pell says: ‘At no time did I attempt to bribe David Ridsdale or his family or offer any financial inducements for him to be silent. At the time of our discussion the police were already aware of allegations against Gerald Ridsdale and were investigating.’

    The royal commissioner has indicated that he wants to make findings in relation to these matters and also into Pell’s more generic claims that he knew nothing and could do nothing when a consultor to the bishop in Ballarat and when auxiliary bishop to Archbishop Francis Little in Melbourne. Pell will give sworn evidence. Undoubtedly he will be cross-examined.

    After Green had given evidence, Justice McClellan, inviting cross-examination, warned the church lawyers who wanted to follow their usual practice of not cross-examining victims: ‘I should tell you that I would anticipate we’ll be asked to make findings about some of the matters that Mr Green has included in his statement. It’s a matter for you and those instructing you, but I should put you on notice that that’s a real possibility.’ He issued a similar warning after David Ridsdale had given evidence.

    For the sake of Pell’s reputation, his lawyers will need to cross examine Green and Ridsdale testing their recollection and the consistency of their accounts, not about the sexual abuse they suffered, but about their recollections of any church cover-up.

    The fact that these men were sexually abused as children is uncontested. The issue is whether their claims that Pell knew or tried to effect some form of cover-up are true and accurate recollections.

    Given the high degree of scrutiny applied to Pell by the commission and the media, it’s only fair that he have his lawyers cross examine these two victims who claim that he did not want to know that abuse occurred or even worse, that he tried to cover it up. And it is appropriate given that both Green and Ridsdale have indicated they have no objection being recalled to be so examined.

    It is imperative now that all parties be seen and heard in public so that we can all make our assessments of recollection and credibility up to 22 and 41 years on.

    Once the commission has addressed the reputation and recollection of Messrs Pell, Green and Ridsdale, we should all then get back to seeing what changes can be made to institutions, especially the Catholic Church, so that the risks of child sexual abuse and of cover-up and inadequate response are minimised as much as possible.

    Frank Brennan SJ is professor of law at Australian Catholic University. This article first appeared in Eureka Street on 23 November 2015.


     

     

  • Frank Brennan. Border control gulags have had their time

    What are the chances of Malcolm Turnbull and Bill Shorten agreeing by Christmas that it’s time to close the refugee processing centres on Nauru and Manus Island? Turnbull and Shorten already agree that the boats coming from Indonesia should be stopped. The boats are now being stopped, if need be, with turnbacks, which neither side of politics now questions.

    Now that the boats have been stopped and will remain stopped no matter who is in government, there is no reason to maintain the facilities on Nauru and Manus Island. The conditions in these facilities are not only harsh, they are cruel. These facilities no longer serve any useful purpose. They cost a fortune. They are wreaking havoc with the local community as well as with the traumatised detainees. They have outlived their intended purpose. They are gulags which rightly tarnish Australia’s reputation.

    Consider the history. When Julia Gillard failed to have her Malaysia solution implemented, she set up an expert panel chaired by Air Chief Marshall Angus Houston, the respected, recently retired Chief of the Armed Forces. In August 2012, Houston’s panel told the Gillard government that ‘the conditions required for effective, lawful and safe turnbacks of irregular vessels headed for Australia with asylum seekers on board are not currently met in regard to turnbacks to Indonesia’.

    So they looked for other short-term measures. Having studied John Howard’s 2001 Pacific solution, the panel concluded that ‘in the short term, the establishment of processing facilities in Nauru as soon as practical is a necessary circuit breaker to the current surge in irregular migration to Australia’.

    When Kevin Rudd replaced Gillard in June 2013, he set about resurrecting the Pacific Solution immediately but with an added ‘nasty’: anyone found to be a refugee on Nauru or on Manus Island would be resettled anywhere except Australia.

    The situation has changed radically in the last three years. We no longer need a ‘circuit breaker’. Retired Major General Jim Molan has advised government that the conditions for effective, lawful and safe turnbacks are now met. The military have turned back boats. They have stopped the boats coming.i

    Tony Abbott as prime minister was adamant that his government was acting decently when stopping the boats and turning them back. The government is confident that the people smuggling racket in Java has been smashed. The Labor Party national conference has signed off on stopping the boats and agreeing to turnbacks if they be required.

    I concede that there is no way that Turnbull would agree to any substantive change for some months until he can be satisfied that the change of prime minister has not resulted in any renewed effort by people smugglers to regroup in Java.

    And there is no reason to think that Turnbull’s approach would deviate in the least from Abbott’s. He was after all the leader of the Opposition at the time Kevin Rudd was dealing with the Oceanic Viking incident in Indonesia. Everything Turnbull said at that time was taken from John Howard’s song sheet, completely consistent with everything later said by Abbott as prime minister.

    For example, Turnbull told parliament on 20 October 2009:

    It should not ever be controversial to state, as a matter of policy and principle, that Australians have the right to decide who comes to this country, our country, and the manner in which they come. The previous prime minister, Mr Howard, was criticised for saying that, but the fact is that that is what every Australian expects of their government.

    Under the Howard government it took a range of strong measures and years of vigilance to halt people smuggling. The Rudd government, on the other hand, has quite deliberately, and with dangerous naivety, unpicked the fabric of that suite of policies, sending an unmistakeable message to people-smugglers that our borders are open for business.

    In short, Labor has lost control of our borders.

    In May 2014, Turnbull as a minister in the Abbott cabinet did concede that Rudd’s renewed Pacific solution as enacted by Abbott was harsh, indeed very harsh. Though conceding that others thought it cruel, he did not think it so.

    When asked on BBC TV if he was comfortable with Australia’s policy of ‘outsourcing its human rights responsibilities to ill-equipped third countries’, Turnbull replied: ‘I don’t think any of us is entirely comfortable with any policies relating to border protection.’ He was insistent that Australia was acting in compliance with international law.

    He then added: ‘We have harsh measures, some would say they are cruel measures. I would not go so far as to say they are cruel. But let’s not argue about the semantics. The fact is that if you want to stop the people smuggling business you have to be very, very tough.’

    Anyone hoping a Turnbull government will be more accommodating of boat people than an Abbott government will be sadly mistaken.

    But that is not the end of the matter. Now that the Australian government with Opposition concurrence has firmly closed the entry door to Australia, there is no warrant for maintaining the chamber of horrors in the Pacific which was set up as a ‘circuit breaker’ deterrent. Turnbull needs to admit that a purposeless chamber of horrors is not just harsh; it is cruel, and it is unAustralian.

    After a few months transition, it will be time to close the facilities on Nauru and in Papua New Guinea; abandon the Cambodian shipment plan; negotiate a regional agreement for safe returns ensuring compliance with the non-refoulement obligation; and double the refugee and humanitarian component from 13,750 places to 27,000 places in the migration program, as recommended by the 2012 panel.

    The government should encourage further community participation in a refugee resettlement scheme which allows refugee communities and their supporters to increase the number of refugees resettled without taking the places of those refugees who would come anyway without community sponsorship.

    Why not increase the humanitarian program to at least 20,000 places as was espoused by both sides of politics before the 2013 election campaign? And why not provide another 7000 places for community sponsored refugees?

    Novelist Tim Winton has rightly said that there is a need for Australia to turn back, to ‘raise us back up to our best selves’. We, the voters, are sick and tired of the unnecessary meanness and nastiness. We can walk and chew gum at the same time. We can both secure our borders and increase our commitment to orderly resettlement of more refugees.

    We can secure our borders without the Pacific gulags and the oppressive onshore measures denying asylum seekers work rights and adequate welfare assistance. The ethical dividend of closing our borders is being able to treat anyone inside our borders decently and being able to bring asylum seekers in Nauru and Manus Island to Australia for processing and resettlement.

    If the boats could have been stopped back in 2012, there is no way that Houston’s panel would ever have recommended the Nauru/Manus Island gulag. We the voters should now demand the ethical dividend from Malcolm Turnbull and Bill Shorten.


    This is part of Frank Brennan’s address The Ethical Challenge of Stopping the Boats Upstream, Closing the Camps Downstream and Opening Community Services to the Melaleuca Refugee Centre, Darwin, delivered on 29 September 2015.

     

  • Frank Brennan. Bishop Geoffrey Robinson at the Royal Commission on Institutional Responses to Child Sexual Abuse.

    The royal commission into Institutional Responses to Child Sexual Abuse continues to fill us with dread that we have not yet adequately identified why the incidence of abuse reported in our institutions is higher than in other churches. The divisions amongst our bishops, previously unreported and unknown previously to many of the faithful, are disheartening. Just this week we have heard Bishop Geoffrey Robinson who was an auxiliary bishop to Cardinal Pell when he was archbishop of Sydney telling the royal commission that His Eminence ‘had lost the support of the majority of his priests and that alone made him a most ineffective bishop’. Cardinal Pell is the most promoted Catholic cleric in Australian history. The point is not whether Bishop Robinson is right or wrong. The point is that we are part of a social institution which is suffering an acute loss of institutional coherence when an auxiliary bishop sees a need to make such a public statement about his erstwhile archbishop.

    Two days ago at that royal commission a letter was tendered for all the world to see. It is a letter from Bishop Robinson to His Excellency Archbishop Franco Brambilla who was the papal nuncio here in 1996. According to Bishop Robinson, the nuncio had earlier asserted that there was no such thing as child sexual abuse in the Italian Church. The nuncio had written to Robinson castigating him for criticising the Vatican for being too slow to respond to child abuse in the Church. Robinson had been speaking at a conference dealing with sexual abuse at Sydney University, attended by ‘about 40 victims and 40 journalists’.  One of the participants had suffered abuse at the hands of a Melkite bishop (who died in 2012). Bishop Robinson replied on 8 June 1996:

    Turning now to the particular case, I was well aware that in the audience I was speaking to there was a woman who for nearly twelve months had been the victim of the sexual abuse of Bishop George Riashi. He admitted the abuse to Bishop Peter Connors and to yourself at the end of 1993. He also admitted it to the victim in the presence of Bishop Connors. You reported the matter to ‘Rome’ and he was withdrawn from Australia in November 1994. In the month before that, during the last Synod, Cardinal Clancy and Bishop Connors personally informed the Cardinal Prefect of the Oriental Congregation of all aspects of the matter.

    From overseas Bishop Riashi continued to insist that he was still Eparch of Australia and would be returning. In June 1995 this was confirmed in a public letter from the Melkite Patriarch. In August 1995, however, Bishop Riashi was instead promoted to be Archbishop of Tripoli in Lebanon. In this capacity he then returned to Sydney in August-September and made many public statements about his innocence and about bad people who sought to discredit him. He succeeded in turning many people against his own victim so that they blamed her rather than him.

    Bishop Robinson went on to say to the Apostolic Nuncio: ‘In the matter of Bishop Riashi ‘Rome’ has been of no assistance whatsoever to the Church in Australia. It has, instead, created the potential for a massive scandal in this country.’ I daresay none of us had any idea that this sort of thing was going on. How could it have been possible for such a man to be further promoted in the church hierarchy when there had been admission of such wrongdoing and full disclosure to all relevant church authorities just 20 years ago? How could the papal nuncio who knew all this be writing to castigate a bishop who was saying that there must be a better way, especially when that bishop was the one steering the bishops’ conference at that time to finalise the Towards Healing protocol?

    So things are not easy. They are not easy for me as a Catholic priest in the public square. They are not easy for those of you turning up to work each day in your healthcare facilities to further the mission of the Church. They remain wretched for many victims who doubt that the Church can again be trusted. I thank you for your perseverance and pray that together we can make a better fist of holding out to the world the face and hands of Christ.

     

    The above extracts are from an address to the Catholic Health Australia Conference on 26 August 2015. The full text was published in Eureka Street.

  • Frank Brennan SJ. Four preconditions for supporting marriage equality.

    A committed Catholic gay man, whose integrity I admire and whose hurt from ongoing homophobia I feel, recently asked me to sign a letter to Prime Minister Tony Abbott urging that Coalition members be granted a conscience vote and that the Commonwealth Marriage Act be amended promptly to include same sex marriage. He assured me that any change to the law would accommodate religious celebrants who would not celebrate gay weddings, and for religious reasons.

    I declined his request, assuring him my prayers and a commitment to ongoing dialogue.

    I have long claimed that our federal politicians should have a conscience vote on same sex marriage. The Labor Party muddied the waters at their national conference last month by cobbling together a compromise motion allowing a conscience vote only until 2019, with members then being bound to support same sex marriage after the election after next.

    Given Labor’s abandonment of a conscience vote until the matter is finally resolved on the floor of the Parliament, the Coalition is now more free to make its own political calculations about the utility of a conscience vote on its side of the chamber.

    Given developments in countries like Ireland and the USA, I have accepted the inevitability that civil marriage in Australia will ultimately be redefined to include same sex couples. But advocates for change need to concede the point made by church leaders in their own letter to Abbott on 5 June 2015:

    Far from being unusual in the international community for not supporting ‘same-sex marriage’, Australia’s definition of marriage as a union of a man and a woman is consistent with that of the vast majority of world nations, who represent over 91 per cent of the global population.

    To date, only 21 of the 193 member states of the United Nations have changed their legal definition of marriage to incorporate same-sex unions.

    Given the increasing number of children being brought up by same sex couples, it is desirable that the state take away any social stigma against same sex parents. Given the ageing population, the state has an interest in recognising and protecting long term relationships of same sex couples who care for each other. Given the harmful effects of homophobia, it has an interest in encouraging broad community acceptance of those members who are homosexual. Laws and policies can help in this regard.

    It is one thing for Commonwealth law to recognise same sex unions as marriages. It is another thing to require all persons, regardless of their religious beliefs, to treat same sex couples even in the life and activities of a church as if they were married in the eyes of their church.

    The religious freedom issues involved in the same sex marriage debate are about more than making space for religious celebrants determining who they will or will not marry. Though the issues would not necessarily be covered by amendments to the Commonwealth Marriage Act, the passage of those amendments will be the trigger for revisiting and redefining these issues.

    At the moment, some religious institutions restrict facilities such as shared accommodation on a church site to married couples. Would the maintenance of that restriction to couples in a traditional marriage be judged discriminatory and unlawful? Some religious schools limit employment to teachers who follow the church teaching on sexual relations. Would the exclusion of a homosexual teacher be prohibited once the teacher had entered into a state recognised same sex marriage?

    Faith based adoption agencies tend to have a preference for placing a child who is not related to any prospective adoptive parent with a family unit including an adult male and an adult female thinking that is in the best interests of the child. Would that now be judged discriminatory?

    In the future, some religious groups will assert that reproductive technology should be limited so that any child will be assured a known biological mother and a known biological father regardless of whether the child is to be raised by a heterosexual couple, a homosexual couple or a single parent. Will that be judged bigoted discrimination, especially if homosexual couples are the ones most likely to want to use such developing technology to create their own children?

    These questions require answers, and without claims of homophobia and simple reassurances that there is ‘nothing to fear from equality’.

    The unfortunate effect of the US Supreme Court decision was that all these issues were put off to another day without discussion and with the imputation that they are the concerns only of bigots or old fashioned religious zealots. Many citizens, myself included, support the state recognition of both same sex marriage AND religious freedom exercised in speech, actions and institutional arrangements.

    I readily accept that the Commonwealth Parliament will legislate for same sex marriage in the foreseeable future. When Parliament does, I will be fully accepting of that decision. I won’t lose any sleep over it, and I will be happy for people like the man who asked me to sign a letter to Abbott, hoping that it helps put an end to homophobia, especially in religious communities.

    If asked by politicians how they should exercise their conscience vote, there is no way that I would say that they should not support civil recognition of same sex marriage. But neither would I say that they must support it NOW. If I were a member of parliament, I would want four assurances before I voted for same sex marriage:

    1. The assurance that religious groups could continue to order their religious and church affairs consistent with their teaching on marriage.

    2. The assurance that adoption authorities could always make decisions in the best interests of the child.

    3. The assurance that state authorised/funded assisted reproduction services would not be expanded to allow the creation of a child without just one known biological mother and just one known biological father.

    4. The assurance that those who had religious objections to same sex marriage would not be required by law to violate their own consciences in the performance of professional or artistic services (as distinct from the simple sale of goods or provision of other services) when that performance is usually enhanced by the person believing in the relationship that is being celebrated or sustained.

    If those four assurances were given and if I were a member of parliament, I would vote in favour of a bill granting civil recognition to same sex marriage. It is important to emphasise that these assurances would not be contained in the amended Commonwealth Marriage Act. For example, adoption is more a matter for the states than the Commonwealth. But now is the time for the Australian community to work out the broad contours of these assurances.

    Once the Marriage Act is amended, should a church school be able to decline to offer married quarters to a teacher in a same sex marriage? I would answer ‘yes’, though I would hope a church school would be open to the employment of a gay teacher living in a committed relationship. Equally I would continue to allow a church school to make a free choice as to who best to employ as a teacher.

    Given the lamentable history of homophobia, I would think a good church school would be pleased to employ an openly gay teacher who respects and espouses the school’s ethos. Free choice is often better than legal prescription when trying to educate in the ways of truth and love.

    Should a church aged care facility be able to decline to offer married quarters to a couple who had contracted a same sex marriage? I would answer ‘yes’, though I would hope a church facility would be open to providing such accommodation in Christian charity if it could be done in a way not to cause upset to other residents. After all, same sex marriage is a very modern phenomenon and I would favour ongoing tolerance of the residents in aged care facilities wanting to live out their last days with individuals and couples in relationships such as they have long known them.

    However, even in Catholic aged care facilities, we need to admit that not all couples are living in a church recognised marriage, and it is no business of other residents to know if they are. We need to allow everyone time to adapt with good grace, provided only that we can be certain that appropriate services are available elsewhere if a church feels unable to oblige on religious grounds.

    The four assurances I have listed as preconditions for signing up to civil recognition of same sex marriage will not be given by advocates at this time. If they are given, they will result from horse trading in the political process, and for that reason I don’t think it appropriate that I now simply urge the passage of a law recognising same sex marriage.

    I know the delay will upset and hurt some good people who have waited too long to be rid of the curse of homophobia, but the delay could be avoided at this time if the assurances were given, or at least if the validity of the concerns was acknowledged. Some advocates will continue to fight hard claiming that no such assurances need be given, and they may well win. That’s politics.

    While we wait for our politicians to decide, let’s all recommit ourselves to respectful conversation acknowledging the yearning of those who crave benign acceptance of their most loving commitments and of those who cherish religious freedom so that all citizens might live according to good conscience.


    Frank Brennan SJ is professor of law at Australian Catholic University.

     

    This article was first published in Eureka Street on 12 August 2015.

  • Frank Brennan SJ. ‘Amplifying That Still Small Voice’. Book Launch.

    ‘Amplifying That Still Small Voice’
    A collection of essays by Frank Brennan SJ
    Book Launch.

    Dates and times of the 2015 Book launches of Fr Frank Brennan’s latest book, ‘Amplifying That Still, Small Voice’:

    1. Tuesday 2 June North Sydney Catholic Parish Hall, 7.30 pm.

    2. Wednesday 3 June Hobart Town Hall, 6.15 pm.

    3. Friday 5 June, Newman College, Melbourne, 5.00 pm.

    4.Monday 8 June, Australian Centre for Christianity and Culture, Canberra, 7.30 pm.

    5.Thursday 11 June, Brisbane, Toowong Parish , 7.30 pm.

    6.Friday 19 June, Adelaide, St Ignatius Norwood, 7.30 pm.

    Frank Brennan has been a long time advocate for human rights and social justice in Australia. This collection of essays brings together some of his major addresses and writings on justice in the Catholic Church and in Australian society. Placing the individual’s formed and informed conscience as the centre piece in any work for justice, he surveys recent developments in the Catholic Church including the handling of child sexual abuse claims and the uplifting effect of the papacy of Francis, the first Jesuit pope. He then applies Catholic social teaching and the jurisprudence of human rights to contested issues like the separation of powers and the right of religious freedom, and to the claims of diverse groups including Aborigines, asylum seekers, the dying, and same sex couples. At every step, he is there in the public square amplifying that still, small voice of conscience, especially the voice of those who are marginalised.

    Frank Brennan is a Jesuit priest, professor of law at the Australian Catholic University, and adjunct professor at the Australian Centre for Christianity and Culture, as well as the College of Law and the National Centre for Indigenous Studies at the Australian National University. In 2014-5, he was Gasson Professor at Boston College Law School. He has written a number of books on indigenous issues and civil liberties. His most recent books are Acting on Conscience (University of Queensland Press, 2007), which looks at the place of religion in Australian politics and law and No Small Change (University of Queensland Press, 2015) which puts the case for indigenous recognition in the Australian Constitution. He contributed to Social Justice and the Churches: Challenges and Responsibilities (ATF Theology, 2014). In 2009, he chaired the National Human Rights Consultation. He is an Officer of the Order of Australia (AO) for services to Aboriginal Australians, particularly as an advocate in the areas of law, social justice and reconciliation. Labelled ‘the meddling priest’ by Paul Keating and ‘an ethical burr in the nation’s saddle’ by Kevin Rudd, the National Trust has classified him a Living National Treasure.

     

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  • Frank Brennan. ANZAC Centenary Homily.

     ANZAC Centenary Homily

    Harvard Memorial Church

    25 April 2015

    Fr Frank Brennan SJ AO

    Homily

    This Memorial Church here at Harvard was dedicated on Armistice Day 1932 in memory of those who died in World War I.  The inscription over the south entrance to the memorial room reads, ‘In grateful memory of the Harvard men who died in the World War we have built this Church.’

    It is fitting that we, Australians, New Zealanders, Turks and Americans should gather in this place to mark the centenary of Anzac Day, the day on which Australians and New Zealanders landed in the stillness of the early dawn on the Turkish shoreline wanting to assist with the Allies’ advance on Constantinople, now Istanbul, the day on which the Turks commenced a successful, eight month campaign to defend their homeland against the assault.

    Nineteen years after the ANZAC landings, Mustafa Kemal Ataturk, Founder and first President of the modern Republic of Turkey, who had been Commander in Chief of the Turkish forces in Gallipoli, graciously responded to an Australian journalist’s request and wrote, ‘The landing at Gallipoli on April 25, 1915, and the fighting which took place on the peninsula will never be forgotten. They showed to the world the heroism of all those who shed their blood there. How heartrending for their nations were the losses that this struggle caused.’  A century on, we, the people of both sides of that deadly struggle can gather, people of all faiths and none; we gather in peace, espousing the virtues of all who fought and daring to pray together for peace and reconciliation between us and amongst all peoples.  We gather together helping each other to repair the heartrending and to prosper as best we can from the tragic, irreparable losses.

    We remember the 130,000 who were killed on that blood-soaked peninsula during the Gallipoli campaign, and the other quarter of a million who were wounded.  A century on, we have gathered more inclusively and not just to pray for the 44,000 Allies who died, but also for the 86,000 Turks who perished in their trenches opposite them.  Being ANZAC Day, we particularly call to mind the 8709 Australians and 2779 Kiwis who died.  A handful at the time were honoured by name for particular military feats, ‘but of others there is no memory; they have perished as though they had never existed; but these also were godly men, whose righteous deeds have not been forgotten; their descendants stand by the covenants; and their glory will never be blotted out’. (Ecclesiasticus 44:8-14)

    We recall the innocence of the soldiers – many aged the same as many of those who today study here at Harvard – and the human values that they embodied of courage and mateship. We recall too the reality, routine and relentlessness of their fighting, their sufferings, and their deaths.  We also recall the idealism, the hope, and perhaps even the naivety of empire which motivated and sustained them and those who sent them to battle.  The ANZACs had sailed from Albany in Western Australia on All Saints Day, 1 November 1914.  They waited in Egypt and then joined the Mediterranean Expeditionary Force of 75,000.  They landed early morning, and in the wrong place. Because of navigational errors the ANZACs landed about 2 km north of the intended site. Instead of a flat stretch of coastline, the boats carrying the 1500 men who would make the first landing came ashore at what is now named appropriately Anzac Cove, a narrow beach overlooked by steep hills and ridgelines.  Thus began an eight month campaign of combat in muddied trenches infested by lice, swarmed by flies, and putrified by faeces.

    Back home, their political masters were sustained both by the pride of selfless colonial service to empire and by the hope of imminent military success.  At 3pm on 29 April 1915, Australian Prime Minister Andrew Fisher rose in the House of Representatives and proudly declared:[1]

    Some days ago the Australian War Expeditionary Forces were transferred from Egypt to the Dardanelles. They have since landed, and have been in action on the Gallipoli Peninsula. News reaches us that the action is proceeding satisfactorily. I am pleased to be able to read the following cablegram received to-day from the Secretary of State for the Colonies: — 

    His Majesty’s Government desire me to offer you their warmest congratulations on the splendid gallantry and magnificent achievement of your contingent in the successful progress of the operations at the Dardanelles. 

    To this the following reply has been despatched through His Excellency the Governor-General: — 

    The Government and people of Australia are deeply gratified to learn that their troops have won distinction in their first encounter with the enemy. We are confident that they will carry the King’s colours to further victory.’ 

    Next day Fisher read to the House a telegram from King George dated 29 April 1915:[2]

    I heartily congratulate you upon the splendid conduct and bravery displayed by the Australian troops in the operations at the Dardanelles, who have indeed proved themselves worthy sons of the Empire.

    On 5 May 1915, ten days after the Gallipoli landing, Australian members of parliament were agitated that the Melbourne press were carrying details of New Zealand casualties but there were still no public details available of Australian casualties.  A question was put to the Assistant Minister for Defence:

    In view of the many messages of congratulation that we have received regarding the bravery of our troops in action in the Dardanelle, is the Assistant Minister of Defence in a position to tell the House with what result the bravery of our men has been attended?

    The answer was a simple, haunting three words: I am not.[3]

    Gradually, the political masters and then the people became apprised of the more gruesome reality on the other side of the globe.  A century on, we balance the idealism of service to empire, the reality of death in the trenches, and the prospect of reconciliation with former enemies in scales which only grace and forgiveness can hold. ‘Their bodies are buried in peace, but their names live on generation after generation.  The assembly declares their wisdom, and the congregation proclaims their praise’. (Ecclesiasticus 44:14-15)

    Over the generations, we have reached out across those trenches that divided us.  We have embraced a more sustaining myth, a more noble ideal: the brotherhood of man, the dignity of our shared humanity.  We have appropriated the words attributed to Ataturk at the 1934 dawn service which will be recited for us by His Excellency Omur Budak, the Consul General of Turkey: ‘There is no difference between the Johnnies and Mehmets to us where they lie side by side in this country of ours….After having lost their lives on this land they are now our sons as well.’

    Despite the instability and the intractable conflicts on Turkey’s borders today, we dare to gather in prayer dreaming of ‘a new heaven and a new earth’ in which the God of Abraham, the God of Isaac, the God of Jacob ‘will wipe every tear from their eyes’ so that ‘mourning and crying and pain will be no more’. (Revelation 21:4) We hear the word of Revelation proclaimed to all people of good will, to all peacemakers including those who have fought, those who are fighting,  and those who will fight so that there might be no more war: ‘I will be their God and they will be my children’.  (Revelation 21:7)

    Today, lest we forget.

    They shall grow not old, as we that are left grow old:

    Age shall not weary them, nor the years condemn.

    At the going down of the sun and in the morning

    We will remember them.

    May the Aussies, the Kiwis and the Turks amongst us this morning go forth into Harvard Yard carrying and sharing the memories of those who encountered each other for the first time across trenches a century ago, committing ourselves afresh to transforming our heartrending and our losses into heartmending and tangible dividends of peace for our world.

    Prayer 

    Let’s all pray in silence, each in their own way.

    I will now offer a Christian prayer:

    Lord Our God, on this day, 100 years ago, the Australian  and New Zealand Army Corps, at Gallipoli, made immortal the name of Anzac and established an imperishable tradition of  selfless service, of devotion to duty, and of fighting for all that is  best in human relationships.

    O Lord, we who are gathered here today from both sides of that conflict remember with gratitude the men and women who have given, and are still giving all that is theirs to give, in order that the world may be a nobler place in which to live.

    And with them, Lord, we remember those left behind to bear  the sorrow of their loss.

    We dedicate ourselves to taking up the burdens of the fallen and, with the same high courage and steadfastness with which they went into battle, to setting our hands to the tasks they left unfinished. Lord, we dedicate ourselves to the service of the ideals for which they died.  With your help, O God, might we give our utmost to make the world what they would have wished it to be, a better and happier place for all of its people, through whatever means are open to us.

    We make this prayer through Christ Our Lord. Amen.

    [1] Commonwealth Parliamentary Debates, House of Representatives, 29 April 1915, p. 2724

    [2] Commonwealth Parliamentary Debates, House of Representatives, 30 April 1915, p. 2814

    [3] Commonwealth Parliamentary Debates, House of Representatives, 5 May 1915, p. 2832

  • Frank Brennan SJ. Still seeking a way of stopping the boats decently

    This is part of the Gasson Lecture which I delivered at Boston College today:

    I return to Australia accepting that my political leaders will always maintain a commitment to stopping the boats, no matter what political party they represent;  but I return insisting that there is a need for international co-operation to determine how decently to stop the boats while providing an increased commitment to the orderly transfer of an increased number of refugees across our border so that they might live safe and fulfilling lives contributing to the life of the nation.

    This cannot be done in Australia until we shut down the processing centres on Nauru and on Manus Island, until we accept that people should only be held in detention while issues of identity, security and health are determined, and while we negotiate arrangements with Indonesia, India and any other transit countries to which asylum seekers are being returned, replicating the new European regulation:

    No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement.

    It might then be possible for Australian officials to conduct prompt, reliable onboard assessments of asylum seekers on vessels determining whether it is appropriate to return them to their last port of call, without the need for an onboard international lawyer to conduct any sort of ‘framing’ exercise.  It should then be possible to avoid the recent obscene scenario of 157 persons being detained on the high seas for a month, regardless of whether or not the non-refoulement obligation applies extra-territorially.

    It is time to concede that none of us has a right to enter another country and that all of us have the obligation not to return anyone presenting at our border to a situation of persecution, torture, or cruel punishment.  Though I doubt the possibility of the EU negotiating appropriate returns of asylum seekers to Libya in the foreseeable future, I continue to entertain the hope that Australia can negotiate appropriate returns to transit countries such as Indonesia for Iraqis, Afghans and Iranians and India for Tamils, so that Australia might then decently extend the hand of welcome to more of the world’s 51 million displaced persons.  For the moment, my country is failing to strike the right balance between human rights and the national interest.  It is stopping the boats indecently, violating the human dignity of those being held in unsatisfactory conditions in Papua New Guinea and on Nauru and failing to ensure appropriate safeguards are in place for the return of asylum seekers to Indonesia.  For as long as international lawyers claim there is no possibility of a legally negotiated regional agreement for safe returns because they argue that asylum seekers have a right of entry to Australia to seek asylum, the Australian government, the Australian parliament, and the Australian courts will maintain, with impunity but with the occasional expression of outrage from international lawyers, a regime of returns insufficiently scrutinized for human rights compliance.  I return to Australia accepting that the boats will continue to be stopped (no matter which political party is in power), but that they should be stopped decently and in compliance with the legal regime enunciated by the European Union which has to deal with a far more pressing issue but subject to the more searching supervision of the European Court of Human Rights and of the European Parliament which has greater sensitivity to the human rights of asylum seekers than do their more pragmatic Australian colleagues.

    By all means, stop the boats.  But also close the facilities on Nauru and in Papua New Guinea.  Abandon the Cambodian shipment plan.  Negotiate a regional agreement for safe returns ensuring compliance with the non-refoulement obligation.  Double the refugee and humanitarian component from 13,750 places to 27,000 places in the migration program, as recommended by the 2012 Expert Panel.  Encourage further community participation in a refugee resettlement scheme which allows refugee communities and their supporters to increase the number of refugees resettled without taking the places of those refugees who would come anyway without community sponsorship.  Why not increase the humanitarian program to at least the 20,000 places which were guaranteed prior to the election of the Abbott Government?  And provide another 7,000 places for community sponsored refugees.  I agree with novelist Tim Winton that there is a need for countries like Australia to turn back, to ‘raise us back up to our best selves’.  That can best be done by securing our borders and increasing our commitment to orderly resettlement of more refugees, rather than by opening the borders, undermining the community’s commitment to further assisting more of those 51 million people who are suffering displacement tonight, most of them having no prospect of employing a people smuggler to get them to the border of a rich democratic country.

    Fr Frank Brennan SJ is finishing his term as Gasson Professor at Boston College Law School.  Anyone wanting a copy of his full address should contact him on frank.brennan@acu.edu.au

     

     

     

  • Frank Brennan.  Cunneen v ICAC

    Margaret Cunneen is a high profile public prosecutor.  The NSW  Independent Commission against Corruption (ICAC) wanted to investigate her for corrupt behaviour, but not in relation to anything she did as a prosecutor.  They wanted to investigate her behaviour as a private citizen, she being the mother of a boy whose girlfriend was involved in a car accident.  The suggestion was that Cunneen on being called to the accident scene was party to a plan that the driver should fake chest pains to escape a blood alcohol test even though the driver had not been drinking and her blood alcohol content was zero. ICAC’s argument was that the behaviour of Cunneen and her family members could adversely affect the police in performing their official functions investigating the accident.

    Section 8(2) of the ICAC Act defines corrupt behaviour to include ‘conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official’.  So corrupt behaviour could include conduct by a person in a private capacity (like Cunneen being Mum) that adversely affects the exercise of official functions by a police officer.

    The alleged behaviour of the Cunneen family circle, if proved,  was not behaviour which, if successful, would cause  police officers to act with less probity in the performance of their duties.  Such behaviour would only cause the police officers to act in a less efficacious manner in detecting a crime.

    The case came down to interpreting the phrase ‘adversely affects’.  Four of the five High Court judges sitting on the appeal observed:

    ‘Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case.’

    The four majority judges were left in no doubt: ‘The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act.  The latter would result in the inclusion in “corrupt conduct” of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act.’

    There are some High Court cases where you can see the result coming when the barrister is caught out during the oral argument by one of the prying judges.  Cunneen was one of these cases.  It was all the more notable because the prying judge was the new boy on the block – Justice Nettle. It was still his first month on the job.  At the hearing back on 4 March 2015, Justice Nettle asked a few tentative questions and then he moved in for the kill, questioning Mr Kirk SC, the counsel for ICAC who already was having a very bad day having failed to provide the court with relevant papers.  Here is the transcript:

    NETTLE J: Just one more question, in New South Wales any telling of lies to policemen could be a criminal offence? So, any telling of lies, we would say, when someone is arrested and tells lies as they frequently do to policemen about what they are asked would, on this basis, be corrupt conduct?

    MR KIRK: Any telling of lies which has the potential to pervert the course of justice.

    NETTLE J: That is usually why they are told is to deflect the policemen from getting to the truth.

    MR KIRK: But it all depends on the context. Not telling a lie – not every single lie – if a police officer asks your name and you lie about that, that is not necessarily going to have any tendency to pervert the course of justice. I am not saying to avoid your Honour’s question, I am just qualifying.

    The qualifier was meaningless or too fudgy to be workable. It was game, set and match to Cunneen.   ICAC was not alleging that she had done anything to affect the probity of the police in their conduct of the investigation.  At most, ICAC was alleging that she had done something affecting the efficacy of the investigation. That ain’t corruption.  And thus it is no business of ICAC.  ICAC exists to expose corruption.  As the court said, ‘It is not likely that an Act which is avowedly directed to investigating, exposing and preventing corruption affecting public authorities – and for which the justification for the conferral of extraordinary powers on ICAC was said to be the difficulty of discovering and exposing corruption in the nature of a consensual crime of which there is no obvious victim willing to complain – should have the purpose or effect of extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials.’

    The police officers conducting the investigation into the accident were not corrupt.  They were not corrupted by Cunneen and her family. There could be no suggestion that Cunneen was trying to corrupt the police. It’s time for ICAC to get back to work investigating corruption, leaving other matters of errant behaviour to the police to investigate.  It’s also time for Cunneen to get back to work.

    Fr Frank Brennan SJ, professor of law at Australian Catholic University, is presently Gasson Professor at the Boston College Law School.

  • Frank Brennan SJ. The Promoted Pell and the Sacked Morris: Two Catholic Bishops emerging from the Royal Commission

    This week the royal commission into Institutional Responses to Child Sexual Abuse has published three reports relating to the Catholic Church.  Understandably the media has focused on the appropriately damning findings made by the royal commission against Cardinal Pell in his ruthless conduct of the Ellis case.

    Having found that the Archdiocese of Sydney fundamentally failed Mr Ellis in its conduct of the Towards Healing process, the commission found that Cardinal Pell accepted the advice of his lawyers to vigorously defend the claim brought by Mr Ellis, in part to encourage other prospective plaintiffs not to litigate claims of child sexual abuse against the Church.  The commission also made a formal finding that the Archdiocese, the Trustees and the Archbishop, ‘did not act fairly from a Christian point of view in the conduct of the litigation against Mr Ellis’.  The commission found the Sydney Archdiocese failed to conduct the litigation with Mr Ellis in a manner that adequately took account of his pastoral and other needs as a victim of sexual abuse.

    As a Catholic I am heartened to see that the royal commission moving from Sydney to Toowoomba made no adverse findings against Bishop William Morris.  In fact, the commission was quite complimentary to Morris. The commission’s key finding in relation to Morris was:

    That on being advised of Mr Byrnes’s offending and the response of the school and the Toowoomba Catholic Education Office to the September 2007 allegations of child sexual abuse, Bishop Morris responded appropriately by:

    • commissioning an independent investigation into what occurred and seeking advice and recommendations as to any actions that needed to be taken to better protect children
    • appointing an independent mediator [retired High Court judge Ian Callinan] to assess and give advice as to reparation to victims and their families
    • establishing a Child Abuse Response Team to develop and oversee both the pastoral and professional response and to give advice to the Diocese about improvements to child protection.

    Bishop Morris ‘asked Mr Callinan to assist in ensuring that each victim received fair compensation for what had happened to them’.  Bishop Morris ‘felt that it was important that the matter be dealt with quickly and fairly so as to avoid any further suffering which might be caused by a lengthy and difficult legal process’.

    These contrasting findings highlight the tragedy that such a pastoral bishop and decent man as William Morris could be sacked by Pope Benedict for failing in his duties as a bishop.  Mind you, I don’t think the royal commission (being appointed by the state rather than the church) had any business in finding that Pell ‘did not act fairly from a Christian point of view’.  The commission should stick to its brief.  The finding should have been more stark: Cardinal Pell did not act fairly towards Mr Ellis.  The commission should leave assessments from the religious point of view to religious communities.  We should maintain our proud separation of church and state.

    To give Cardinal Pell his due, he did in the end apologise to Mr Ellis.  Just before leaving the witness box, Pell said:

    As former archbishop and speaking personally, I would want to say to Mr. Ellis that we failed in many ways, some ways inadvertently, in our moral and pastoral responsibilities to him. I want to acknowledge his suffering and the impact of this terrible affair on his life. As the then archbishop, I have to take ultimate responsibility, and this I do. At the end of this grueling appearance for both of us at this Royal Commission, I want publicly to say sorry to him for the hurt caused him by the mistakes made and admitted by me and some of my archdiocesan personnel during the course of the Towards Healing process and litigation.

    We now await the response to the commission’s findings from Archbishop Fisher and the Archdiocese of Sydney.

    We’ve never been given a coherent rationale for Pope Benedict’s sacking of Morris.  When Morris was sacked, Pell had explained to an American Catholic news agency that ‘the diocese was divided quite badly and the bishop hasn’t demonstrated that he’s a team player’.  The royal commission’s report on Toowoomba shows just what a team player Morris was.  On the other hand its report on Sydney provides evidence of a fairly disorganized team led by His Eminence.  The report reveals a considerable disconnect even between Cardinal Pell and his Vicar General/Chancellor Monsignor Brian Rayner.  There was confusion whether Rayner had kept Pell informed of the Archdiocese’s formal dealings with Ellis.  In his statement Cardinal Pell had said, ‘To the best of my recollection, I was not made aware at the time of any of those figures or offers. I was not consulted, as best I recall, about what financial amount should be considered. Nor was I made aware of the other factors which appear to have been significant in the way the facilitation process developed’.  The commission reports:

    Much of Monsignor Rayner’s evidence concerned his usual practice. However, he gave evidence that he did tell the Archbishop the results of the facilitation and the amount put forward by Mr Ellis. We accept that Monsignor Rayner was a truthful witness who did his best to provide an honest account.

    We do not accept the submission put by the Church parties that Monsignor Rayner’s evidence ‘was substantially a reconstruction and would not be accepted in the absence of any corroboration from another witness or documentary evidence’.

    We find it compelling that, by the time Mr Ellis’s solicitors had foreshadowed legal action, the Cardinal knew that amounts of money would have been discussed as part of the facilitation and that no agreement had been reached. As set out above, the Cardinal agreed he had an acute concern that people who had survived abuse by clergy would be justly dealt with. It seems unlikely that, in light of the legal action being foreshadowed, the Cardinal, as responsible for the finances of the Archdiocese and as the Church Authority responsible for ensuring that victims were dealt with justly, would not have sought or been provided with the offers made as part of the facilitation and the outcome.

    The Sydney curia was not a smooth running team.  Though I don’t suppose Pope Francis will demote Cardinal Pell, it would be nice to see him reinstate Bishop Morris.  The Australian Church needs pastoral down to earth bishops like Morris who have been proved to ‘get it’ when it comes to dealing pastorally and professionally with child sexual abuse.