[an edited version of a talk given in the Jesuit Lenten Seminars]
Hilary Charlesworth Professor of International Law and Director of the Centre for International and Public
Law, Australian National University
DCI Advisory Panel Memebr Professor Hilary Charlesworth considers the implications of the United Nations' legal opinion that Australia's mandatory
sentencing laws volate the International Covenant on Civil and Political Rights. (This article appeared in Australian Children's Rights News No. 25)
What are the implications of the United Nations’ legal opinion that Australia’s mandatory sentencing laws violate the International Covenant on Civil and Political Rights (ICCPR) and the
Convention on the Rights of the Child? Many of our politicians, and it seems many Australians, argue that our treaty obligations are simply irrelevant in these circumstances because the
mandatory sentencing laws deal with domestic matters. A related argument put by the Prime Minister (and enthusiastically supported by local politicians from all parties) is that, whatever we
think of these laws, they are the validly adopted laws of a state and a territory and that the Commonwealth’s hands were politically tied on this issue.
The view that the international community has no legitimate interest in Australia’s mandatory sentencing laws has however a number of flaws. First, it ignores the fact that Australia has
freely agreed to abide by the principles set out in the relevant human rights treaties: we signed and ratified both the ICCPR and the Children’s Convention only after considerable
discussion and debate. Under the international law of treaties we have undertaken a binding commitment and it is our duty to perform this commitment. We would not consider so blithely
dismissing our obligations under extradition or trade treaties, but human rights obligations appear to be placed in a different category, perhaps because other countries are unlikely to make too much
fuss if they are breached.
The second flaw in the official line rejecting the relevance of international scrutiny to mandatory sentencing is the failure to appreciate that international human rights treaties are all about
domestic implementation. The very point of international human rights treaties is to protect human rights within the borders of a state. They set out standards with which domestic laws and
practices must conform. Australia thus seems to be Janus-faced with respect to human rights treaties. The internationally-oriented face enjoys the international status it receives from
being a party to the treaties; while the nationally-turned face refuses to acknowledge the domestic implications of its international obligations. I often wonder if our politicians have
actually read the text of the human rights treaties they tell us are irrelevant to mandatory sentencing. If we had taken our human rights treaty commitments seriously, we would have long ago
adopted some form of bill of rights in our legal system, which would make recourse to international mechanisms unnecessary.
The third flaw in the government’s line is the claim that the federal government should not intervene to overturn state and territory legislation. Mr Howard has said that such action would
‘knock the federal system out of balance.’ This claim, as many have pointed out, rings rather hollow in light of the present government’s willingness on explicitly moral
grounds to overturn the Northern Territory’s ‘right to die’ legislation three years ago. But the argument is flawed also at face value. For a start, under the human rights
treaties, it is the federal government that bears international responsibility to ensure that all Australian laws conform to our treaty obligations. Under international treaty law, internal
political or constitutional arrangements can be no excuse for failure to perform its treaty commitments. The Commonwealth government has the undoubted constitutional power to override the state
laws, but it is politically reluctant to do so because of its rhetoric of ‘states’ rights’. The victory of ‘states’ rights’ over human rights has been a
consistent theme in Australia’s legal history, but it has impoverished our social and political culture. The use of the word ‘rights’ in the catch phrase ‘state
rights’ distracts attention from the fact that the right most typically asserted by states is that to violate the human rights of its residents.
A related argument made by many politicians is that, whatever the human rights treaties say, the mandatory sentencing laws are very popular with the majority of voters. Indeed Denis Burke
declared the by-election for Shane Stone’s seat as a successful referendum on the laws. From a human rights perspective, however, public policy cannot be driven by political popularity
alone or on purely utilitarian grounds. If it could be shown that a majority of Rwandans agreed with the genocide, would we refrain from speaking out against these atrocities? It may well
be that a majority of Australians would support the death penalty, but the Attorney-General recently made clear that this would not justify its reintroduction in Australia. The very essence of
the idea of human rights is to protect vulnerable groups from the will of the majority. Political majorities often act with short term vision and are willing to sacrifice the concerns of
minorities. An American constitutional lawyer, Laurence Tribe, has pointed out that we need to create structures that properly protect human rights ‘in order to reap the rewards of acting
in ways that elude us under the pressure of the moment’.
Australia is prepared to give some place, even if hesitantly and inconsistently, to human rights in its foreign policy (for example with respect to East Timor), but it resists the application of other
human rights principles to its own laws and practices.
While the international law of human rights is not perfect in many ways, it provides the best moral basis for public policy that is currently available. The law provides a set of principles and
conditions that, if observed, enable people to live lives of full human value and worth. At the end of the day, this is what our society should be committed to. Australia is a party to all
the major human rights treaties and we should take them seriously, insisting that all laws and practices, state, territorial or federal, comply with them. If we ensure that our domestic
practices have this principled basis (and I concede that this would involve a sea-change in our political and legislative traditions), our voice abroad will have considerably more authority and
persuasiveness.
