Frank Brennan

  • FRANK BRENNAN SJ. Uluru: Take Time to Get This Right

    Fifty years on from the successful 1967 referendum, we have all heard the Uluru Statement from the Heart. Aboriginal and Torres Strait representatives have told us that ‘in 1967 we were counted, in 2007 we seek to be heard’. Australians of good will acknowledge that sovereignty is a spiritual notion for Indigenous Australians and that Aboriginal and Torres Strait Islander incarceration and separation of children are indicators of ‘the torment of (their) powerlessness’. We affirm the aspiration of the Indigenous leaders gathered at Uluru: ‘When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.’   (more…)

  • FRANK BRENNAN. Gonski in An Age of Budget Repair

    School funding is a very complex issue in Australia. It’s now a poisonous political cocktail. David Gonski who had been the poster boy for Julia Gillard’s bold education reforms has now been showcased by Prime Minister Malcolm Turnbull and Education Minister Simon Birmingham announcing their new deal for school funding.   (more…)

  • FRANK BRENNAN. The invidious choice for refugee advocates

    Robert Manne’s latest piece on the future policy options for refugees on Nauru and Manus Island is now available here. The moral-political question is about the choice confronting those of us advocating a change of policy by the major political parties. (more…)

  • FRANK BRENNAN SJ. Let’s amend 18C to say what it means

    The debate over section 18C of the Racial Discrimination Act (18C) has gone on for far too long. I welcome the Turnbull government’s attempt to amend the provision, while being disappointed yet again at the petty politics played on both sides in Canberra in relation to a matter of principle which needs to be handled sensitively for the good of all citizens in our multicultural Australia.   (more…)

  • FRANK BRENNAN SJ. The Catholic wrap-up at the Royal Commission.

    But in the past, these spiritual leaders were also professing their commitment to an institution which commanded their hierarchical obedience and clerical acquiescence in protecting the institution’s public reputation and its coffers.   (more…)

  • FRANK BRENNAN SJ. The Catholic wrap-up at the Royal Commission

    Last Monday, the Royal Commission into Institutional Responses to Child Sexual Abuse commenced its three-week examination of the causes of child sexual abuse and cover up in the Catholic Church in Australia over the last 60 years. The statistics were horrifying.  (more…)

  • FRANK BRENNAN, TIM COSTELLO, ROBERT MANNE and JOHN MENADUE. We can stop the boats and also act decently, fairly and transparently

    The only way forward in dealing with Manus Island and Nauru is for bipartisan commitment to keep the boats stopped while settling refugees in Australia.

    (more…)

  • FRANK BRENNAN SJ. Timorese have had a win but could still lose big-time

    Without any media fanfare, Foreign Minister Julie Bishop published a statement on 9 January 2017 announcing that Australia and Timor Leste had agreed to terminate the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).   (more…)

  • FRANK BRENNAN SJ. The cost of Alexander Downer cutting corners on Timor Leste a decade ago.

    If only the government and their supporters like News Ltd had been prepared to listen to the parliamentary committee a decade ago.  
    (more…)

  • FRANK BRENNAN SJ. Will the refugee deal with the US come off?

    IF United States President-elect Donald Trump decides not to honour an agreement to accept refugees from Nauru and Manus Island then they should be settled permanently in Australia, Jesuit theologian and lawyer Fr Frank Brennan says. (more…)

  • 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