The following paper was written on May 2000. It’s republished here to remind readers that the detachment of the Labor Party from the political “sins” of its past is still to come, as it continues to relish them by increasing them. It’s clear that a Rudd government would sign up to the UN declaration on indigenous rights whose article 3 gives aborigines the right to freely determine their political status, and article 4 the right to autonomy or self government, thus championing indigenous separatism that would lead to the fracturing of the unity and strength of one nation, without bettering the political, economic, and social status of aborigines with their separation from the nation. Once again Labor under the populist leadership of Kevin Rudd, who by this definition will be too feckless to deal with the critical issues of the economy and security of the country in these dangerous times, will embrace all the external remedies and shibboleths that issue from the politically incompetent and morally corrupt UN and apply them to the internal affairs of the nation that with mathematical precision are bound to be so destructive to it.
There exists in human nature a strong propensity to depreciate the advantages, and to magnify the evils, of the present time. Edward Gibbon
A curse is haunting the Labor party, the curse of Paul Keating’s ‘Banana Republic’. Whereas for the latter, however, the Banana…was merely a slippery future economic threat under the feet of the country, for Kim Beazley, the banana republic is virtually a political reality. It’s for this reason therefore, that he is implicitly calling, and more explicitly supporting, the individual and institutional cries for the United Nation’s Human Rights Commission (HRC) to intervene and redress the plague of inequities and injustices that has inflicted the country, as a result of an unjust and uncaring government. The lack of compassion by the coalition government on two issues, (a) its unwillingness to utter the word “sorry” to the aborigines of this land, and (b) its “stand-aloofness” in regards to mandatory sentencing, its reluctance to intervene directly and abrogate a state law that jails children for apparently minor offences.
It’s ludicrous to believe that the word sorry has some magic quality that could sanitize or make less bloody any injustices or atrocities of any scale that have been perpetrated by institutions and governments in the past against aborigines. Within such a context the word sorry would be a crude joke, as it’s not a matter of someone stepping over the toes of another and apologizing for this. No human apology can exculpate criminal actions committed against humanity. This is “God’s bailiwick”. (One can only wonder that associate professor Robert Manne, a brawny votary of the “sorry” campaign accepts, with apparent philosophic equanimity, the apology of the German government for the gassing of the Jews.) The demand for such an apology arises from pious, soft thinking. Furthermore, the official expression of such an apology, could lead to “wealth by inadvertence” for some groups and professions in a society that inchoately moves more and more toward a litigious state, at the vast expense of the taxpayer.
Also, on mandatory sentencing, Labor’s accusation that the government is heartless and inhumane in its refusal to abrogate laws that are targeting aboriginal children, is political theatrics and is not serious. The abrogation of these laws by the federal government would be an infringement of states’ rights and would add another plank to the coffin of these rights, which Labor during its tenure in office had been carpentering, furthering thus the advance of the centralization of power in Canberra. The coalition government therefore, has acted prudently in refusing a casting role in Labor’s “play”. But to Labor, it’s this remissness of government on these two issues that shames and censures Australia in the eyes of the world and irretrievably damages its international reputation.
The Federal Opposition, like so many Mr. Feelgoods, is self-appointing itself as the conscience of the nation. Heavily burdened by this conscience, it can only alleviate it by invoking the External Affairs Power in the internal affairs of the nation. But like most politicians, it has a further and more valuable interest in this exercise that goes beyond its moral ken. By tarnishing the government as inhumane and unjust it hopes to put it beyond the pale in the electorate’s eyes and hence augment its own political stocks in the coming election. Its libido dominandi, its surge for power is so virile that it hardly baulks at the prospect of prostituting the sovereignty of the nation and its inalienable right to determine the laws of the land.
As the intervention of the United Nations HRC in the internal affairs of the country would be no less than the defloration of the nation’s sovereignty, as it would inexorably have a corrosive effect on the legislative power of government. The latter would be looking over its shoulder for Big Brother every time it passed a bill in parliament in regards to its domestic affairs, which might not be in accord with the letter and spirit of international conventions and treaties that Australian governments had signed in the past. Moreover, such intervention would be adding insult to injury in respect to the nation’s mores, as it would imply that Australia is a “crooked nail” on moral and human issues, like a truly banana republic, and would need the vise of the HRC to straighten it and hence making it fit to enter the family of civilized nations. Therefore Australia is not fit from its own record and reputation on human rights to have its place among civilized societies and needs an “usher”, the HRC, to find its seat among these societies.
Labor’s Mental Blindness
It’s mind-boggling that Labor is so myopic and cannot see that the invocation of the External Affairs Power would open a Pandora’s box. It would place parliament under a “spooky” surveillance, as all legislation in relation to human rights laws will have to be written under the shadow of the HRC. In other words, the legislative power of government will be held to ransom. It would also open the floodgates of litigation and provide a gluttonous banquet to lawyers and their clientele as the menu of human rights would be in the hands of all interest groups and individuals who have an inordinate appetite to be seen as trailblazers of social and political change, like Senator Bob Brown, or who more prosaically would settle for a substantial financial payment. Moreover, it would spur a promiscuity of legal activism among judges from the lower courts to the High Court, and would widen the windows of opportunity for active “progressive” judges to throw their flat earth judicial stones from their glass-house existence-like that avatar of “creative” activism Justice Kirby of the High Court of Australia. Such creative activism by the judiciary however would be the usurpation of the legislative power of government. Hence, it would strike a sledgehammer blow to the cornerstone upon which the separation of powers rests.
Two cases of the High Court illustrate this whittling down of the constitution by the judiciary. In the Commonwealth v. Tasmania (1983), the Commonwealth prohibited the construction of a dam by the Tasmanian Hydro-Electric Commission under the provisions of the World Heritage Properties Conservation Act (1975). (Chief Justice Gibbs, with his characteristic wisdom, dissented against the majority decision 4-3 maintaining some basal distinction between external and internal affairs to ensure the integrity of the Constitution’s federal division of authority.) Also, in the Koowarta v. Tasmanian Dam (1983) the laws upheld treaty obligations. That triumvirate of goody-goodies Justices Mason, Murphy, and Dean, all considered that the External Affairs Power extended beyond obligations and embraced benefits and rights.
That this raid of the judiciary, not to mention others, on the Constitution, leaves Federal Labor under the leadership of Kim Beazley insouciant and unconcerned speaks volumes of its poverty of thought, its lack of foresight, and political dilettantism. Of course Labor may deceive itself and believe that it will have a safeguard against the intrusions of the judiciary in laying the latter on a Procrustean bed. It can always cut to size its appointees to the courts of the land (this equally applies to the Coalition) as it has done in the past , to fit its own agendas. Judges, however, like all others appointed to high positions by government, whilst they might owe their positions to the latter, they own their reputations and amour proper. This fact alone does not bear good news for governments that judges will toe the line.
Academics Toe the Line of Labor
What is startling, if not alarming, however, is that this poverty of thought finds solace and support among some academics. But on second thought it may not be so surprising. As what else could one expect from the mass production lines of most universities than the entry into its teaching faculties, especially in sociology and law, of a stream of intellectual usurpers who are more proud of displaying their radicalism than the rigor of their mind?
Professor of international law at the Australian National University, Hillary Charlesworth, in an article in the Australian subtitled “The Victory of States’ Rights over Human Rights has Impoverished our Social and Political Culture”, remarks, that the UN’s legal opinion is, “that Australia’s mandatory sentencing laws violate the International Covenant on Civil and Political Rights and the Convention of the Rights of the Child”. On the pivot of this opinion she mounts (molehills?) her own argument that because “Australia has freely agreed to abide by the principles set out in the relevant human rights treaties” we are bound legally and morally to accede to them. Furthermore, she continues, “under the human rights treaties, it’s the Federal Government that bears the international responsibility to ensure that all Australian laws ( this is no diminutive, this is “matronly-sized” outsourcing of Australia’s sovereignty) conform to our treaty obligations…Internal political or constitutional arrangements can be no excuse for failure to live up to its treaty commitments”. Capping her argument, she claims that even in the event that mandatory sentencing is popular, “public policy cannot be driven by political popularity alone or on purely utilitarian grounds”.
No sensitive and sensible person can defend mandatory sentencing—except perhaps if she/he is a victim of the particular offence—especially if it applies to children. It’s obviously a “desperate” legislative action by the Western Australian Government and the Northern Territory to protect mainly household residents from a spree of serial burglaries and break-ins that previous laws were unable to stop or abate. An impartial objective evaluation of this situation however, sans academic metaphysical nonsense, would consider not only children’s rights but the rights of the victims as well. More importantly, a deeper probing of the matter, would consider children’s rights in the continuum of their life, and the repercussions of the social conduct and behavior and the successes and failures of juvenile life upon adulthood. It’s essential therefore to make children not only conscious of their rights but also of their responsibilities and duties. Indeed, to shield them from self-punishing failure in later life, it’s necessary to make them aware that punishment is the price one has to pay for unsocial, law-breaking actions.
The bone of contention therefore should be, and is, what kind of effective punishment should apply to these minor crimes committed by juveniles that would prevent major ones committed in their adulthood. Academics therefore who passionately emphasize and advocate the rights of children would have been more fecund in their deliberations if they were just as passionate in their search and discovery of programs and laws applying to children, laws that not only would protect victims from the crimes of children, but more crucially protecting children from failure in their adult life. As even petty crime committed by minors, especially when it takes a serial form and is inadequately punished, ensures with certainty the “success of failure” in later life.
Professor Charlesworth with enviable Olympian athlete’s ease jumps over the hurdles of these issues. Neither the erosion of the Constitution, nor the plight of the victims, or the double jeopardy that children would be placed in by their serial petty crime nor the punishment in the present and the more severe serial self-punishment that hovers over their future, concerns her. All these things seem to be peripheral, indeed, satellites to her fixed universal position. But to respond to the basal argument of her article, that the government should adopt international laws and implement them in our internal affairs, one cannot do better the great German jurist philosopher Friedrich Savigny. “The legal institutions of a nation are part of its individual life…and of the whole of its historically determined situation. They fit as does the skin of the human body. And to replace them by a rationally excogitated code is like tearing off a body’s skin in order to replace it with a synthetic product”. He denounced theories of rationalism which deduced legal theories from general and universal principles, irrespective of past history and national peculiarities. This illustrates tellingly why some professors of jurisprudence in this country are dusted off and drop from the shoulders of giants.
But let us return back to the leader of the Opposition Kim Beazley. The definition of a strong and farsighted political leader is an “animal” that protects its own territory from the incursions of foreign assailants. Beazley as leader of the Opposition and as potential Prime Minister (God forbid) does not fit this definition. Instead of vigorously protecting and making unassailable our sovereignty from the incursions of foreign bodies, in this case from the United Nations HRC, he prostrates himself before it and willingly and wantonly out sources the sovereignty of our nation to alien bodies.
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