Stephen Mutch

In September 2010 the Economics Legislation Committee of the Australian Senate produced a well considered report on the Tax Laws Amendment (Public Benefit Test) Bill 2010.  The Committee members arrived at an interesting finding relevant to abuses perpetrated by cultic groups.  They felt that ‘sufficient evidence’ had been put before them ‘to suggest that the behaviour of cults should be reviewed with a view to developing and implementing a policy on this issue that goes beyond taxation law.  As a consequence, the Committee recommended the Attorney-General’s Department:

Given that the recommendation was merely an acknowledgement of a problem, a request for some research and information, and supported on a bi-partisan basis by members of the Australian Senate, it is disappointing that the Government responded negatively.  However, the reasons given provide insights into the difficulties we face in encouraging and enabling liberal democracies to adopt a more caring response to a chronic problem.

The request to provide information on Miviludes style, cult watch organisations overseas was denied on three main grounds:

• The first was that Government lacked the necessary powers.  It was doubted the Commonwealth has constitutional, legislative authority to establish a Miviludes style organisation. 
• The second related to the issue of religious toleration.  The Government noted ‘it is not the Government’s role to interfere with the religious beliefs or practices of individuals, unless they are in breach of Australian laws’.  It was observed that a UN Special Rapporteur’s report on Freedom of Religion or Belief had noted that certain policies of France, during the terms of predecessor organisations to Miviludes, had ‘"undermined the right to freedom of religion or belief and raised serious concerns about religious intolerance"’.  It was also observed that Miviludes was being closely monitored to ensure ‘its actions remained consistent with the right to freedom of religion and to "avoid past mistakes"’. 
• The third ground was that the issue was not the Commonwealth’s responsibility.  It was argued that the issue of laws and enforcement against criminal conduct resulting in physical, emotional or psychological harm was a matter for the state governments.  It was noted that state governments had established regimes for the compensation of victims of crime.

This response is unconvincing in the face of acknowledged evidence of chronic harm to individuals caught up in high demand cultic groups - evidence that is frankly admitted by the government.  The opening line of the government’s response to Recommendation 2 is worth highlighting:

This is indeed a welcome statement.  It is an indication that the government recognises the problem of cultic abuse and understands that spurious claims for religious tolerance should not be allowed to curtail appropriate public policy responses.  In light of this frank acknowledgement of support, we need to comprehend why the government was then not willing to require the Attorney-General’s Department to provide a detailed report on options pursued overseas – which is nothing more than an information gathering exercise, and not a particularly onerous one for a government agency. 

• LACK OF COMMONWEALTH POWERS

With respect to the lack of powers argument, it seems unsatisfactory that the government ‘doubts’ it has constitutional/legislative authority.  The response begs the questions.  Was it based on considered legal opinion? Is there a written advice on the matter?  In any event, in areas where the Commonwealth desires to act it pursues the options.  With respect to terrorism issues and indeed Third Sector issues it is quite appropriate for the Commonwealth to consult with the states on issues of referral and/or co-operation.  Even without the support of the states the Commonwealth has been known to seek powers it desires to exercise (by passing legislation which tests the limits of its jurisdiction, or constitutional amendment as a last resort).

Perhaps the government felt able to adopt a negative approach in framing its response because the Senate Committee recommendation focused on overseas models similar to Miviludes, ‘tasked with monitoring and controlling’ certain activities of ‘cult like organisations’.  In hindsight the recommendation was perhaps too narrow in focus and gave the government an easy way out.  It might have been phrased to seek information on government organisations (and possibly even non-government organisations) ‘tasked with monitoring and/OR controlling’ certain activities of ‘cult like organisations’.  A wider net might have included officially sponsored monitoring, advisory and public information dissemination bureaux, such as that found in Belgium.  However, if the government was genuinely sympathetic to the suffering of victims of cultic abuse, it would not have relied on a narrow interpretation of the recommendation to avoid responding in a helpful way to the Senate Committee’s reasonable request.  So we must look further to try to understand the government’s seemingly intransigent attitude. 

• RELIGIOUS TOLERATION

With respect to the religious toleration argument, the government’s response reveals some uncertainty about potential limits on policy action.  While one statement is categorical – ‘religious observance should not be regarded as a shield behind which breaches of the law can be hidden’, a subsequent sentence qualifies this, noting ‘it is not the governments role to interfere with the religious beliefs or practices of individuals, unless they are in breach of Australian laws’.  The problem with this mantra is that by reducing the role of government agencies to acting only when strict illegality is somehow discovered in any group that claims a religious or quasi-religious characterisation, a blind eye can be turned to serious allegations of harm that might fall short of strictly legalistic criteria.  It is a Pontius Pilate approach. 

The paradox is that the harmful activities of cultic groups diminishes religious freedom – state stewardship is required to ensure the religious and other liberties of all, including the victims of cultic abuse.  This is the point that those who trumpet a superficial understanding of religious liberty don’t get.  Under the guise of religious toleration, the intolerant behaviour of cult oligarchs is ignored - at the expense of their victims.  The more powerful group is favoured over the more vulnerable individual. 

While I suspect the government does have its heart in the right place, because it is susceptible to this superficial understanding of religious toleration it was easily spooked by a UN Special Rapporteur into taking a ‘politically correct’, disapproving line against the genuine attempts of the French government to come to grips with a politically sensitive issue on behalf of victims of cultic groups.  Cultic groups do like to parade as religions when it suits them, precisely because governments are hesitant to infringe somewhat vaguely held notions of religious freedom – and it is an easy way for governments to shirk their responsibility when they can appeal to some high sounding, but much misunderstood principle. 

Much of the criticism of the genuine efforts of the French government to tackle the issue of cultic abuse stem from an early publication of a list of groups about which the government had some concerns.  This publication was criticised on the basis that it could stigmatise ordinary members of these groups.  Indeed, it may not be good practice for governments to publish lists of groups on the basis of an a priori characterisation that they are a cult or secte (notwithstanding that definitions of cult are legitimate and useful for the academic study of groups).  However, the publication of levels of complaint made about groups purportedly serving members and/or the public in general, is very much in the public interest.  It relates to the fundamental issue of transparency (along with issues of consumer protection), which is at the heart of any so-called democracy.

It is entirely valid and in accordance with good public policy to publicise and condemn harmful practices; and to publish reports on complaints received about groups and the nature of those complaints.  If that then results in the publication of the names of groups that have been the subject of a quantified and qualified level of complaint to an officially recognised entity, then so be it.  At the same time, information about the size of groups and other relevant material should also be published to provide balanced, transparent reports.  Information of this nature can only enhance religious freedom and individual choice. 

Unfortunately, we don’t have such useful, comprehensive information in Australia because we have no generally recognised authority to which complaints about harmful cultic practices might be referred, and which then reports publicly on them.  The cognoscenti might realise that a complaint can be made to the Australian Taxation Office, but whether any action is taken to review the tax exempt status of an entity is in-house and at the discretion of the Commissioner – an issue that received some attention in the course of the Senate Estimates Committee inquiry.  If the proposal to establish an Australian Charities (or Third Sector) Commission is finally implemented, then there is a possibility that the proposed Commission might at least begin to gather more comprehensive information on the scope of the problem similar to the role played by the Charity Commission for England and Wales – but of course restricted to Third Sector, Not-For-Profit (NFP) organisations.

• NOT A COMMONWEALTH RESPONSIBILITY

The third argument is the other jurisdictions (not our responsibility), argument.  All the Commonwealth could point to here was that the State governments had primary responsibility for laws proscribing abusive behaviour.  The only specific policy response noted was victims of crime legislation.  However, the debate about the need for a centralised system for charitable or Third Sector regulation also points to the need for a centralised and a centrally co-ordinated response to abuses perpetrated by cultic groups across all sectors and all States. 

A centralised response would include the establishment of a central bureau foreshadowed in Recommendation 2 of the Senate Estimates Committee report, which could be based on one or a combination of different models; but would in essence be a nationally based one-stop-shop for complaints about groups.  The bureau might serve as an advisory body to government agencies, and might also operate as a referral centre to professional help networks and possibly as a resource centre for the distribution of information about groups to the public.  What is important is to ensure that effective use is made of the information derived from public complaints.  The one-stop-shop must not be just a complaints repository (or black hole).  In my written submission to the Senate Estimates Committee I cited a comment made back in 1982 by Victorian parliamentarian the Honourable Haddon Story, who noted that:

It is no longer the case that ‘no country has been successful in finding a formula for dealing with these sorts of problems’.  It is also now the case that governments can and do exercise careful stewardship to ensure that the practices of such groups are conducive to the freedom of speech and association for all. 

• Centrally Co-ordinated Response

The establishment of a central body would facilitate a co-ordinated response.  A centrally co-ordinated response would include moves to provide for consistency of laws and comprehensive scope of laws across the country.  One initiative, that I also referred to in my submission to the Senate Estimates Committee, is the September 1998 recommendation of the Standing Committee of Attorneys-General Model Criminal Code Officers Committee that there should be a criminal offence of recklessly or intentionally causing harm to a person’s mental health, including ‘significant psychological harm’.  I noted that the Committee had canvassed in a discussion paper:

The Northern Territory has adopted that recommendation.  Under Section 1A of the Criminal Code Act 2011, harm is defined as physical harm or harm to a person’s mental health, whether temporary or permanent.  Harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.  In addition, harm does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community. 

Another initiative that might be further explored is the need to prevent people in positions of psychological power over others from interfering with medical treatment regimes authorized by properly recognized health care professionals.  A criminal offence directed against deliberate or willfully negligent interference with a person’s medical treatment would fit hand in glove with a criminal sanction against willfully causing significant psychological harm, and would help to address the harm that can be perpetrated against individuals caught up in cultic groups.

• Public Information

As noted above, beyond collating information and advising government, a central bureau might also run a public information centre about ‘cults’, ‘new religious movements’, ‘spiritual’ groups and other ‘cult-like’ groups.  Variations on this response have already been adopted or recommended in some countries.  Below I refer to the Belgian response in some detail because it has adroitly refined this approach.

OVERSEAS MODELS

Extant research on governmental and non-governmental responses to the problem of cultic abuse is patchy, even if our survey is limited to democratic systems.  However, serious and significant steps have been taken in a number of democratic countries in an attempt to come to grips with the problem.  Typically (in conformity with Anthony Downs’ ‘issue attention cycle’), the problem is addressed in response to a tragic, highly publicized episode involving a cultic group.

In the 1990s a bizarre cult, known as the Temple of the Sun (Temple du Soleil or Temple Solaire) founded by a Belgian doctor, Luc Jouret, and a French property dealer, Joseph di Mambro, disintegrated into an orgy of murder and ritual collective suicides that claimed the lives of over seventy people.  The suicides were precipitated by the murder in September 1994 of a husband and wife, and their three-month baby, who had tried to escape from the cult operating near Montreal, Canada.  The baby had a stake driven through his heart for the unpardonable sin of being named Emmanuelle – thus leading di Mambro to believe the baby was the incarnation of the Antichrist.  Within days 47 members of the cult committed suicide (or were assisted to do so) in groups at locations in the Swiss Alps.  A year later a further group of 16 died at Vercors Plateau in the French Alps.  They had all undertaken ‘a final purification ritual by fire before journeying to a new spiritual life on a planet that was orbiting the star Sirius’ – thus emulating the fate of the medieval Knights Templar. 

• Belgium

These shocking events led governments in Europe to do some soul searching about their hitherto laissez-faire policies towards cults, sects and New Religious Movements.  The French government set the pace in enacting legislation specifically dealing with issues arising from cultic abuse.  In Belgium, a parliamentary investigation resulted in the establishment of not one, but two complementary and collaborative bodies; an Information and Advice Center Concerning Harmful Sectarian Organizations (Center) and an Administrative Agency for the Coordination of the Fight against Harmful Sectarian Organizations (Agency).  These bodies are enjoined to oversee a policy of combating ‘the illegal practices of cults and the danger they represent to the individual, and especially to minors’.  This danger specifically includes harmful activities that go beyond strict illegality.  The bodies target ‘harmful sectarian organizations’, which are defined as: ‘all groups having a philosophical or religious vocation, or making such a claim, which, in their structure or practices, engage in harmful, illegal activities, harm individuals or the society, or violate human dignity’.  The difficulty in defining harm is an acknowledged problem.  The Center is aided operationally by reference to thirteen criteria enunciated by the Parliamentary Commission of Investigation.  These include:

While the Belgian authorities unashamedly focus on potentially harmful groups (or groups that are causing tangible harm), the activities of the Center are low-key.  The Center has four main functions: it studies the phenomenon of harmful sectarian organizations; it organizes a documentation centre/reference library accessible to the public; it informs those who ask about their rights and duties - and how they can pursue their rights; and it provides advice on the phenomenon to public authorities, when asked or on its own initiative.  Indeed, having received criticism for the publication of a list of groups that were canvassed during the course of the parliamentary inquiry (as an appendix to the report and without judging any group), the Belgian authorities adopted an ultra-cautious approach and required the Center to refrain from providing any lists at all! Notwithstanding this abundant caution, the Belgian law was still contested legally by the Belgian Anthroposophical Association, on the grounds that it allegedly violated principles of equal treatment and non-discrimination, the freedom of worship, opinion, thought, conscience, religion, expression and education.  Happily for the Belgian authorities the constitutional court held otherwise.

The incremental modus operandi of the Belgian approach is apparent in the way in which the Center recommended in December 2000 the ‘inclusion of new legal dispositions in the penal code that would punish individuals who take advantage of people in a situation of physical or psychological weakness’.  This was followed up in July 2006 with the submission of a draft law by the then government.  Despite delays, resulting from the consultative process as well as the well known difficulty in forming an administration in Belgium over recent years, the proposal looks likely to come to fruition.  Thus the Belgian government is moving to follow the lead set by the French government, which in 2001 passed the About/Picard law which strengthening their criminal code to sanction offences committed against the physical or psychological integrity of the individual – issues central to abuses committed by cultic groups. 

• Israel

Most recently, the Israeli Ministry of Welfare and Social Services has produced a report on cults operating in Israel.  Again, the report was precipitated by public scandal, this time surrounding the arrest of a ‘spiritual guru’, Goel Ratzon, who kept 17 women and 39 children in squalid conditions in apartments in Tel Aviv.  Ratzon is accused of various offences including sexual slavery, rape and incitement to commit suicide, as well as harmful conduct such as enforcing a severely restrictive living code.  Following his arrest, the Ministry established a special branch with 20 social workers in an earnest attempt, this time, to come to grips with the problem of cults. 

On a previous occasion, following the activities of a group led by Rina Shani, which ‘included the complete disconnection of cult members from their families, the use of drugs and the suicide of one cult member’, the then Minister for Education appointed an inter-ministerial committee in 1983, headed by Knesset Member Miriam Ta’asa-Glazer, to draft working recommendations, resulting in a full report in 1987.  The recommendations focused on four areas: gathering, coordination, distribution of information and initiation of research; assistance to victims of cults; education; and legislation.  Despite a 1995 government decision to implement the recommendations, nothing much was done.  It is observed in the current report that ‘no institutionalized machinery has yet been set up to control the activities of cults in Israel’.  The Ministry Report therefore recommends a series of public policy responses under three main headings; preventive action, counseling based initiatives, and legislative amendments.  In a further section on ‘government decision’, it is recommended that ‘the government adopt a decision on this subject and formulate an overall policy which will obligate all the Ministries to cooperate for the purposes of establishing a mechanism capable of confronting the phenomenon of cults in Israel’. 

With respect to preventive action, the Ministry Report recommends the initiation of actions to raise awareness among the public.  This includes advertising campaigns and workshops for youth groups and parents.  It also recommends the training of counselors and social workers in the identifying of cults and potential victims, with training programs to be run by the Central School for Social Welfare Workers.  It further recommends the initiation of research and surveys and the establishment of a data base regarding cults.

With respect to counseling based interventions, the Ministry Report recommends the establishment of a new unit within the Ministry for the treatment of cult victims and their families.  The new unit would formulate preventative and interventionist strategies and establish an intervention team.  The recruitment and training of professional counselors specializing in the field of cults is also recommended.  Recruits might come from ex-cult members who could bring particular knowledge to bear.  Another recommendation is the establishment of a telephone call centre to offer ‘initial mental support, specific information about counselors in this field, referral to support groups and to relevant agencies that provide basic material needs’.  To this end it is also recommended that cult victims should be eligible to receive a one year subsistence allowance.

With respect to proposed legislative amendments, the Ministry Report recommends consideration of legislative amendments in the sphere of sexual offences and the Court appointment of a legal guardian where a person is subject to undue influence or is under the significant control of another person.  Most significantly, the Report recommends an examination as to whether a definition of a ‘cult’, such as that proposed in the report, might serve as a ‘basis for the submission of a draft law against cult leaders or against cult activities’.  The Ministry Team submits that the following might be an appropriate definition:

CONCLUSION

I have noted above official responses in Belgium and Israel.  Other types of responses include a reliance on watch groups established by concerned citizens, or academic units attached to a university, such as INFORM (Information Network Focus on Religious Movements) at the LSE (London School of Economics and Political Science).  With respect to the former, the peak body of cult watch groups in Europe, FECRIS (European Federation of Centers of Research and Information on Sectarianism), is given official support and encouragement.  While such approaches can be helpful it is my view that the area is so fraught with controversy and attacks on critics by some cultic groups are so virulent, that bodies established by government, with the protection of government, and responsible to government, are essential if we are to act constructively in this area. 

It is disappointing to think that the type of initiative required usually needs a public catalyst, such as a major disaster or public scandal, for a policy window to open.  Official agencies have been established overseas in response to public outrage about episodes of high profile cultic atrocities.  It would be a refreshing change, and good public policy, if we were to put in place a Commonwealth agency that could indeed serve to warn us of impending problems, and provide on-going advice on the need for legislative and other governmental action.

REFERENCES