President speech: Launch of Broken Glass, Unbroken Memories
Commission – General
Launch of Broken Glass, Unbroken Memories
The Hon Catherine Branson QC
Book Launch, NSW Council of Christians and Jews Inc.
24 November 2009
1 Introduction
I would like to begin by acknowledging the traditional owners of the land
upon which we meet, the Gadigal peoples of the Eora nation, and pay my respects
to their elders, past, present and future.
May I also acknowledge Mr Barry O'Farrell, Leader of the Opposition, Mr Greg
Smith, Shadow Attorney-General, and Mr John Aquilina, Leader of the House.
I would like to thank Mr William Szekely, President of the NSW Council of
Christians and Jews, for inviting me to speak at this launch of ‘Broken
Glass, Unbroken Memories’.
Freedom of religious belief, racial discrimination and social cohesion are
core concerns of the Australian Human Rights Commission. Increasingly, they are
issues of fundamental importance to Australian society.
Tonight we remember an extreme instance of state-sanctioned violence based
upon religious intolerance and racial prejudice. It is important that we
remember what happened in Germany and Austria on 9 November 1938 because
remembering will help us ensure that nothing like that ever happens again.
Additionally, as I am told that Helen Bamber mentioned last night in her Andrew
Denton interview, ‘bearing witness’ is perhaps the only meaningful
thing we can do when faced with human suffering on this scale.
Inter-cultural and inter-faith dialogue such as that which is promoted by the
NSW Council of Christians and Jews is critical to building a culture of peace
and what has been called an ‘alliance of
civilizations’.[1] Dialogue of
this kind reveals the common core values of diverse cultures. By and large these
values are also reflected in universal human rights principles.
A focus on what binds cultures instead of what separates cultures is critical
to preventing destructive conflict and misunderstandings.
This evening, we revisit an historical ‘clash’, an attempted
destruction of a ‘civilisation’, which is seared into our collective
memory. And in that context, I wish to consider how we should respond in
Australia to discrimination against minorities on the basis of their race or
religion or, as often is the case, a confounding of both. How can we best
promote respect of differing religious views and their cultural
manifestations?
2 Kristallnacht
As many of you will be intimately aware, in the 1920s, German Jews generally
regarded themselves as being part of German society and were proud patriots.
However, for centuries in Germany, anti-Semitism had simmered beneath the
surface. This anti-Semitism found official sanction with the election of the
Nazi Party in early 1933, and with that began the first steps on the path to the
‘Final Solution’.
We are all familiar with the devastating impact of the extreme discrimination
experienced by the Jewish people in Germany. The Nazis singled-out the Jewish
people as an ‘ethnic group’ and persecuted them on that basis (along
with others who were perceived to be ‘undesirable’ such as the
Romany, people with disability and homosexuals). The persecution of the Jewish
people began with their exclusion from German social and political life. Hitler
introduced anti-Jewish policies restricting the rights of Jewish Germans to earn
a living, to educate themselves and to work in the civil service. Later, under
the Nuremberg Laws of 1935, Jewish Germans were stripped of their citizenship
and prohibited from marrying non-Jewish Germans.
Kristallnacht is often perceived to be the beginning of the Holocaust. It was
an event which is emblematic for the Jewish community; it foreshadowed the
cultural and human genocide that was to follow.
During the riots of 9 November 1938, the evening of ‘Broken
Glass’, the Jewish people and their property were subjected to a wholesale
attack. Businesses were destroyed, homes ransacked, libraries raided, sacred
sites vandalised, art works stolen and cultural heritage burned. On one level
these were assaults on the livelihood and assets of Jewish people and therefore
their economic security. But even more damaging, appalling and permanent was the
attack on freedom of thought, freedom of assembly, and freedom of religious
belief.
Of course this is a story which is all too familiar to you. But it is also
one that warrants re-telling time and time again, to remind us of the danger of
prejudice transforming into violence. And we should recognise that this danger
cannot be completely discounted in our own society. We know this in part because
of the valuable role played by Jeremy Jones (I interpolate, a one time winner of
the Australian Human Rights Commission’s Human Rights Medal) in collating
on an annual basis recorded acts of anti-Semitism in Australia. His reports make
disturbing reading.
I also know of this danger from my time on the Federal Court of Australia.
When I was the trial judge in Jones v
Toben[2] I was shocked by the
material from the Adelaide Institute website that was drawn to my attention
during the hearing of that case. But I was considerably more discomforted and
dismayed by the anti-Semitism that was expressed in letters that started coming
to my chambers after the trial received coverage in the press. These letters,
and there were a few of them, expressed even more extreme levels of prejudice
and hatred than that displayed on the Adelaide Institute website and were filled
with menace towards Australia’s Jewish community.
For these reasons I have no doubt that it is important that we all keep alive
the memory of Kristallnacht. It is part of a history which unites Jewish people
and creates a bond between them and the other groups who suffered persecution
between them But it is also an important reminder for all of us of the fragility
of human rights and of the need to maintain resolve in this country and
internationally to respect the inherent dignity of all people and to protect all
people from denigration and oppression – indeed attacks of very kind
– based on racial and religious hatred or xenophobia of any kind.
This book keeps alive the memory of Kristallnacht. In doing so it contains
important lessons for us seventy years later.
I was struck my Rabbi Lawrence’s observation that:
Oppression and racism are never someone else’s problem. They are always
our problem. We must confront it wherever we see it. For we are witnesses. We,
who wish to have faith in the good of humanity, must not stand silent.
I was equally struck by the honesty of Dr Paul O’Shea’s account
of the silence of the Catholic Church in the face of known persecution. The
contrasting courage of clergy such as Father Bernard Lichtenberg is remarkable.
Dr O’Shea quotes his sermon of November 10 1938:
What took place yesterday we know; what will be tomorrow, we do not know; but
what happens today, that we have witnessed; outside [this church] the synagogue
is burning, and that also is a house of God.
This book reminds us that the memory of Kristallnacht is a challenge to us
all. A challenge to confront and work against prejudice wherever we find it,
particularly where that prejudice is based on religion and on race.
3 Intersections between religion and race
I would like to move now to a discussion of issues of discrimination on the
basis of race and religion in contemporary Australia.
Over the past decade we have seen a distressing increase in instances of
discrimination and in the expression of hatred based on race or religion or
both. This is to be condemned.
In doing so we must acknowledge that the relationship between religion and
race is complex and the distinction between them is often blurred.
Take, for example, the age-old question which many of you know well: should
Jewish people be classified as a race or as a religion? There is very little
agreement about how to answer this question or whether it should even be framed
in this way. Jewish people, as well as Sikhs, are in some instances classed as
being ‘ethno-religious’ or a ‘quasi-ethnic religion’
because ‘aspects of their religious and purported racial identity are so
hard to disaggregate’.[3]
Indeed, all religions have a cultural manifestation. And conversely, the
existence of a common religion may indicate the existence of an ethnic group.
Because the term ‘ethnic origin’ is defined as comprising
characteristics such as a shared history and a common religion, the term has
been interpreted so as to include Jewish and Sikh people.
Therefore, though the Racial Discrimination Act 1975 (Cth) does not
prohibit religious discrimination, Jewish people and Sikhs do benefit from the
protections under the Race Discrimination Act. They are protected under
this Act because they have been classified as a race.
Other religious groups, for example Muslims, do not benefit from the
protections under the Race Discrimination Act, though they are
increasingly the subject of discrimination and vilification which makes little
distinction between religion, culture and race.
This is an area of law which calls for reform – particularly in light
of the growing recognition that the notion of ‘race’ has evolved
from being simply a matter of physiognomy or skin colour. The term
‘xeno-racism’[4] has been
coined to convey a more amorphous fear or dislike of the ‘other’ or
the unknown – a cocktail of religious, cultural and racial hatreds. It is
a more accurate description for the kind of discrimination experienced by
international students in Australia, for instance, and one appropriate response
to it might be amendment to the Race Discrimination Act to ensure that
this kind of racism is prohibited.
4 Balancing freedom of religion with other
fundamental human rights
Freedom of religion is set out in article 18 of the International Covenant
on Civil and Political Rights (or the ICCPR). The Commission is responsible
for promoting understanding, acceptance and public discussion of the human
rights set out in this and other international agreements.
Over the past year the Commission has been engaged in a project about Freedom of Religion and Belief in 21st Century Australia. The
report of this project is due in mid-2010. The reasons for which the Commission
has embarked on this work include:
- the emergence of a multi-faith Australia which includes not only Christians
and Jews but increasingly Muslims, Buddhists, Hindus and other religious
communities so that the notion that Australia is, and always will be, united by
its Judeo/Christian heritage can no longer be taken for granted - the privatisation of government services and their outsourcing to private
bodies including those sponsored by faith communities - the growing awareness of the contribution that religious communities make to
the social capital of a nation, including through activities such as
volunteering and - concerns about whether the implementation of the new security laws might
indirectly impact on freedom of religion and belief.
This project
has been controversial, and indeed was discussed in last weekend’s
newspapers. The Commission has been charged with working to undermine freedom of
religion through this work. This is based on a view amongst some church
communities that other key human rights, for example, freedom of expression, and
the right to live free from discrimination, directly conflict with freedom of
religion. The assumption made is that freedom of religion will be trumped by
other human rights standards.
It is true that a human rights analysis does require the balancing of rights.
However, it is important to remember that international human rights law gives
clear guidance as to how this balancing exercise should be completed.
For example, article 18 of the ICCPR, which guarantees the freedom to
manifest religion or belief, also says that this freedom may only be subject to
those limitations which are prescribed by law and are necessary to protect
public safety, order, health or morals or the fundamental rights and freedoms of
others.
Those who are concerned about the Commission’s work in this area should
be reassured by our fundamental appreciation of the importance of the human
right to freedom of religion. At present it is too early to know precisely what
the project has uncovered. What we do know is that there are many areas of
contemporary life where religion and human rights concerns interact.
5 Promoting freedom of religion in Australia
So how do we best promote, at the same time, racial tolerance (although I do
not like the term ‘tolerance’), religious freedom and other human
rights, including the right to freedom of expression?
The Commission has in the past recommended that a federal law be introduced
making unlawful both discrimination on the ground of religion or belief and
vilification on the ground of religion or
belief.[5] Currently, at the
Commonwealth level, there is a Racial Hatred Act, but there is no law
regarding religious vilification.
During the consultations for the Freedom of Religion and Belief project,
participants expressed some reservations about the efficacy of such new
legislation. It is important that we listen to and understand these concerns.
However, it is also important to recognise that what we are talking about is
respect for fundamental human rights and freedoms which should be appropriately
balanced in legislation regarding religious vilification.
Another option for enhancing protection of freedom of religion in Australia
is through a federal Human Rights Act.
A Human Rights Act would require Parliament to consider the impact of new
laws on fundamental human rights and freedoms. For example, if the federal
government decided to introduce legislation regarding religious vilification, a
Human Rights Act would require consideration of the impact of such a law on both
freedom of expression and freedom of religion. It would require a balancing of
the right to freedom of expression with the responsibility to ensure that free
expression of views does not vilify or incite hatred. Human rights are, after
all, about building a culture of respect and acceptance of difference.
6 Conclusion
The intersections between religion, race and human rights are complex and,
more often than not, fraught.
My main point today is that human rights and religion are not in conflict but
should be seen as partners. All main stream religions, at their core, share
common values. These values may variably be called ‘love’,
‘charity’, ‘compassion’ and ‘mindfulness’.
These are not always recognised as being ‘human rights’ principles
but that is what they are.
Human rights promote inter-faith and inter-cultural dialogue. This is because
the universality of human rights, and their applicability in some way or other
to us all, compels us to recognise our common humanity. Despite the divergent
beliefs that we may each hold, we all have one fundamental thing in common: we
are all human, and therefore capable of holding prejudices and being the subject
of prejudice.
Our challenge is to ensure that the horror of Kristallnacht and the Holocaust
is never repeated again. We must be vigilant in our protection of the human
rights of all people, whatever their faith. We must remember our shared history
and learn from it. We must do whatever we can to build and maintain a culture of
peace.
It is for these reasons that I am so pleased to have been invited to launch
this evening the book, ‘Broken Glass, Unbroken memories’, an
analytical overview of Kristallnacht, November 9, 1958, published by the NSW
Council of Christians and Jews Inc. I do so now and commend the book to you
all.
[1] The UN Alliance of
Civilizations, Report of the High-level Group, 13 November 2006.
Available online at: http://www.unaoc.org/repository/HLG_Report.pdf (accessed 18 November 2009).
[2] [2002] FCA 1150.
[3] T Calma and C
Gershevitch, Freedom of Religion and Belief in a Multicultural Democracy: an
inherent contradiction or an achievable human right?, 3 August
2009.
[4] Liz Fekete, A Suitable
Enemy: Racism, Migration and Islamophobia in Europe (2009).
[5] Human Rights and Equal
Opportunity Commission, Ismaع- Listen: National consultations on
eliminating prejudice against Arab and Muslim Australians (2004), 129.