The transcript for the opening session of the Antisemitism Royal Commission (ARC) is now online.
The comments included a welcome to Country by Allan Murray and statements by Commissioner Virginia Bell and Senior Counsel Richard Lancaster SC. These latter two figures will play the most important role in shaping the royal commission, so it is worth trying to read the tea leaves of their first public statements.
Bell stated that she would not jeopardise the criminal case against the surviving shooter from the Bondi massacre. Bell made clear that she will not call witnesses to the shooting, meaning that the Bondi massacre will not be explored forensically, though there will doubtless be witnesses who will analyse, or one might say speculate, about the background and causes of the massacre.
Bell will also look at the role of relevant security agencies in the massacre, which may be interesting, but will be limited by the short timeframe demanded.
Police and intelligence are likely to stonewall, delay and respond to requests with a flood of mostly irrelevant documents. Put differently, it will be very difficult to conduct a forensic examination of the strengths and weaknesses of police, intelligence and security actions on the day.
The safe course in this limited timeframe will be that there needs to be more police, more funding of police and intelligence to prevent future massacres, and more power to spy on Australians.
Remarkably, Bell stated that: “Following its establishment, Mr Richardson agreed to continue his work as a special adviser to the Commission. Mr Richardson is uniquely well placed to advise on the material that the Commission should seek from our intelligence and security agencies in order to test the effectiveness of our preparedness for a terrorist attack. Not only as he’s a former director-general of ASIO but he has a deep understanding of the workings of the Commonwealth Government, having served as secretary to the Department of Foreign Affairs and the Department of Defence.”
One might conclude from this that he is well qualified. One might equally conclude that he has significant biases indicated by his professional career. Bell’s confidence in Richardson, I think, indicates that she has accepted that the ARC does not need to be too searching in relation to its examination of police and intelligence failures.
The second term of reference “requires it to make recommendations to assist law enforcement, border control, immigration and security agencies to tackle antisemitism. In addressing this term, the Commission will look at the training of officers of those agencies on how they should respond to antisemitic conduct or the risk of that conduct. Importantly, the Commission will review protective security for Jewish places of worship, major sites, educational and cultural facilities, public events and community leaders.”
Note that this includes “border control”, as the term of reference is intended to prevent anti-Zionists from coming to Australia and to permit Australian Border Force control to conduct deportations on these grounds. Training is presumably to learn to identify “antisemitism” identified more broadly than mere antisemitism. And to respond to the “risk of that conduct” already shows the sui generis way antisemitism is being approached — is there any suggestion that police should be trained on how to prevent the risk of anti-Aboriginal racism or Islamophobia?
Bell then turned to the first term of reference — analysing the nature and prevalence of antisemitism in Australia.
She got off to a controversial start: “The starting point in addressing this first term of reference requires an understanding of what constitutes antisemitism. This is not a subject that is free of controversy. The International Holocaust Remembrance Alliance, which from now on I shall refer to as IHRA, has developed a non-legally binding working definition of antisemitism…
It’s the function of this Commission to make recommendations to governments about how best to tackle antisemitism, and it makes evident sense for the Commission to apply the same definition as the Commonwealth and the States in formulating these recommendations. It follows that in investigating the nature and prevalence of antisemitism in Australia, the Commission will apply the IHRA working definition.
“The definition itself is uncontroversial.”
IHRA definition
So before hearing any evidence, Bell has adopted the IHRA definition, and claims that the “definition itself is uncontroversial” — a statement that is utterly absurd, and shows an incredible lack of understanding of the vast corpus of criticisms of the definition.
She cites the definition, and then says that of 11 examples, “at least two are controversial”. This has “led some critics to argue that the IHRA working definition wrongly labels as antisemitic the expression of political views which do not reflect a hatred of Jews.”
It is not clear on what basis Bell has decided that only two are controversial, but again, she has apparently started to draw conclusions about significant issues before hearing any evidence.
Bell seeks to preempt criticism by stating: “While I’m open to receiving submissions on the issue, my current view is that these concerns pay insufficient regard to the terms of the definition itself and they’re apt to overlook the requirement to take account of the overall context in which conduct occurs before making any determination that the conduct is antisemitic. I should note that it is uncontroversial that criticism of the policies that may be pursued by the government of Israel from time to time is not, of itself, antisemitic.”
Well, that is not uncontroversial, and her understanding of the definition before she hears evidence about it is an alarming start to the ARC.
Bell expressed hope that Jews will engage with the ARC. She stated that she thinks social cohesion will be advanced by “measures that address discrimination against religious faiths, ethnicities and cultures generally. Nonetheless, against the background of the massacre of innocent people who appear to have been targeted simply because they were Jewish, I trust everyone will appreciate why the focus of this Commission will be on tackling antisemitism as a starting point in strengthening our bonds of social cohesion.”
This could mean that other community concerns will also be addressed. Given the deadlines, I think one might more properly conclude that there will be an occasional sprinkling of lip service.
Lancaster’s remarks
Lawyers appearing with the leading silk are fellow senior counsel Zelie Heger and other lawyers are Tamara Phillips, Eleanor Jones and Joe Petry.
It appears to no longer be publicly available, but what may be relevant to note is that, in December 2023, a group of lawyers signed a letter defending Israel’s actions in Gaza, in response to another letter signed by lawyers condemning Israel’s actions.
A summary of the positions taken can be read here.
One of the signatories to the letter defending Israel’s actions was Phillips, now appearing as a lawyer assisting the ARC.
I suspect that a lawyer who had signed the letter condemning Israel’s actions would not be considered appropriate to act in that role. The point may well be moot — after all, the lawyers in question did not sign the letter opposing Israel’s actions.
The solicitors at ARC will be led by Louise Amundsen and Tony Giugni — neither of whom opposed Israel’s actions.
Lancaster stated that urgent submissions should be in by March, though they will accept submissions until May. Lancaster noted that ARC has already had “informal meetings and roundtables with numerous individuals and organisations”.
No prizes for guessing who these might be, particularly given its view that IHRA definition is “uncontroversial”.
Also worth noting is that “The schedule of hearing days on which the Royal Commission will sit in public to hear evidence has not yet been fixed”.
There is not much time to have many hearings, and the informal meetings and roundtables are likely how Bell and Lancaster are deciding who to hear from. Those who have not made the cut for such meetings are unlikely to be heard from in future, except perhaps as decorative additions, as per Bell’s commitment to sprinkling in social cohesion beyond the Jewish community.
Put differently, the Royal Commission is like a train.
It is already heading to a destination and the track work is mostly laid. Trains do not suddenly change directions.
Waiting for the public hearings in a few months will be too late to affect its findings and recommendations. This royal commission has chosen to embrace IHRA, the head of ASIO, a lawyer who signed a letter defending Israel’s actions in Gaza, and in two to three months won’t accept submissions from the public anymore.
Update on pro-Israel lawyer’s letter
The lawyers letter and its signatories can be found here. Signatory 359 is Tamara Phillips , Barrister
Among its many claims is that hospitals in Gaza had lost their protected status, were ‘being used for military purposes’ and it was therefore legitimate for Israel to attack them.
They go on to argue that the al-Shifa Hospital was “being used unlawfully by Hamas for military purposes against Israel, and therefore lost its protected status and was able to be targeted as a military objective”.
They characterise Israel’s assault on al Shifa as a model of legitimate military tactics, “Notwithstanding its status as a military target, Israel did not bomb or destroy the hospital. The IDF issued appropriate warnings, then entered on foot risking their soldiers’ lives while minimising risks to civilians. They delivered humanitarian supplies, then facilitated the evacuation of patients and hospital staff who were in harm’s way.”
They go on to argue that “Gaza has not been occupied by Israel since 2005”.
As for the siege on Gaza, they argue that “Israel is engaged in an armed conflict with Hamas and has no obligation to provide supplies to Hamas”. They dismiss the fact that Israel openly cut off all supplies to Gaza after 7 October, writing: “On 9 October 2023, Israel was accused of cutting off access by Gaza to food, water, electricity, fuel, and medical supplies. Within a few days after the water supply was cut off by Israel where Hamas had breached Israel’s southern border to carry out its massacres of civilians, Israel reopened 2 out of 3 available water pipes (one having been destroyed by Hamas).”
They later conclude that “Israel is in fact itself supplying water and is enabling food and medical supplies from Egypt”.
Put differently, Israel controls all of Gaza’s borders. Israel chooses whether the population of Gaza starves. The authors characterise this choice as Israel not having any obligation to “provide supplies to Hamas”. Out of its benevolence, it enables supplies arriving into Gaza. One might conclude from this, that if Israel has no obligation to “provide supplies to Hamas” by letting things like food and water into Gaza, then Israel could equally legitimate starve to death the entire population.
Let me underline that 500 lawyers signed that letter.
This royal commission — which has social cohesion in its title — clearly has no problem with a lawyer who supports the starvation of a population and the military targeting of hospitals.
One suspects that if its staff supported the bombing of Israeli hospitals, or a comprehensive military siege of Israel, that might cause some controversy.
[Abraham Edwards first published this piece on Medium. It is republished with permission.]