Prime Minister John Howard has said the United Nations should butt out of the debate in Australia over mandatory sentencing. In doing so he, like heads of government in Australia of all persuasions, gets into a tangle of jurisdiction, principle and political expediency.
Mr Howard said that it was up to UN Secretary-General Kofi Annan whether he wanted to raise the question of mandatory sentencing. He told ABC Radio, “”Australia decides what happens in this country through the laws and the parliaments of Australia. I mean in the end we are not told what to do by anybody. We make our own moral judgments. . . . The suggestion that in some way we are accountable to the rest of the world for something like this given the human rights record of this country. . . . Australia’s human rights reputation compared with the rest of the world is quite magnificent. We’ve had our blemishes and we’ve made our errors and I’m not saying we’re perfect. But I’m not going to cop this country’s human rights name being tarnished in the context of a domestic political argument.”
This was an inconsistent piece of populism. Howard, like George W. Bush, knows that the populace likes being tough of crime and a majority probably are in favour of mandatory sentencing. It does not matter to them that it does not work. Crime rates remain as high or go higher with mandatory sentencing. It does not matter that mandatory sentencing is self-evidently unjust because if the judge imposes a higher sentence it is deserved, but if the judge wants to impose a lower than minimum the defendant must get higher than what is deserved or appropriate in the circumstances. And applying law to the circumstances is precisely what justice is about. It does not matter that in practice it is racially discriminatory because Aborigines are more likely to be caught in it.
So the base reason for Howard objecting to international involvement is that Australian voters would not like it. Funny foreigners should not be telling us what to do.
However, it is fine for funny foreigners in the World Trade Organisation to tell us what to do with respect to importing salmon. Howard wants Tasmania to end its ban on salmon imports which Tasmania says has been imposed to protect Tasmania from salmon disease, in the same way that the Northern Territory and Western Australia say mandatory sentencing is to protect their people from the effect of theft.
It is also fine for funny foreigners to determine through treaties a huge range of things like airline regulation, radio spectrum, extradition of criminals, postal services and so on.
So the first tension is one of political ideology. Politicians in Australia rarely say: we agree to a moderate amount of international intervention into Australian affairs in the interests of the Australian people who will benefit from good world and national governance. Rather an individual politician will advocate international obligation when it coincides with their ideology and oppose it when it runs contrary to their ideology. Thus Green Senator Bob Brown would support international obligation when it would overrule Tasmania’s anti-gay laws but oppose it if it meant supporting the dreaded globalisation in the form of freedom for Canadian salmon imports. Labor is similarly selective.
The next tension is peculiar to federations. Treaty matters often cover a subject matters that involve matters that would otherwise fall to the states’ law-making powers.
John Howard said, “”Now this is a difficult issue. Traditionally these matters are the prerogative of States. And if you have Federal governments seeking to overturn laws of this kind you really are remaking the rule book.”
Once again, this is an inconsistent piece of populism and an excuse for inaction. There is no remaking of the rule book. The Constitution gave the Federal Parliament power to make laws with respect to external affairs. Until the 1930s that meant little more running a few consulates. But since then, there has been a growing need for international action which from Australia’s perspective meant, Commonwealth action. The external-affairs power was used by the Commonwealth to get power to regulate air travel, then for racial discrimination, the environment, human rights and labor law. In short, the nature of external affairs changed over time.
The Coalition has been less reliant on the foreign affairs power to extend Commonwealth power. It has also sought to include the states. Nonetheless, it has not repealed or reversed earlier exercises of it in a wholesale way. Politicians do not relinquish power easily, so the states have lost out because the Constitution says where federal and state laws conflict, federal law will prevail.
The third tangle is that between the Executive and the Parliament. On this Howard has been much more consistent, whereas Labor has run with hounds in government and now in opposition wants to run with the hares.
Only the Executive can sign treaties. But only Parliament can give effect to those treaties by passing them into Australian law. Until Parliament passed them into law, the treaties bound no-one, not even the Executive which signed them. At least that was the position until 1995 when the High Court brought down its ruling in the Teoh case. The court said that people had the right to expect the Executive to conform with treaties signed by the Executive. So the Minister for Immigration could not order the deportation of a convicted drug importer because his child would suffer contrary to the UN Convention on the Rights of the Child, even though the treaty had not been adopted into Australian statute law in any way.
The Labor Government at the time was outraged that its ministerial power was so curtailed. Senator John Faulkner described the position as “”untenable” and introduced a Bill to specifically overturn the case. That Bill lapsed and a similar one has been introduced by the Coalition. Labor is now opposing it. In Opposition, Labor likes the idea of circumscribing Executive power. And note that under Teoh a treaty signed by one Government binds the actions of a subsequent Government.
Attorney-General Daryl Williams, who incidentally is opposed to mandatory sentencing, says Parliament must make new law, not the Executive through treaty-making powers. But the Executive v Parliament tension remains.
Then there is the view that that Australia’s human rights record is magnificent and suggestions by WA Premier Richard Court that the UN has better things to do elsewhere in the world. These things are comparative. Small-scale human rights issues like a year’s jail for theft is of less moment in African hell-holes or Middle Eastern theocracies where people are tortured and killed for political and religious beliefs. However, Australia, with its wealth and judicial infrastructure can be condemned for lesser breaches.
When we deal with China, Indonesia and other places we don’t accept the “”we’ll do it our way” approach. We should not use it as an excuse ourselves. The whole world has an interest in human rights breaches and it is no use pointing to worse cases elsewhere.