Archives for January/February: Mandatory Sentencing.
Mandatory Sentencing a National Disgrace
The disgrace of seeing John Howard on TV Friday night warning Kofe Anan, the head of the UN, to butt out of Australian issues was something we had seen before - when the Government pulled back Aboriginal common law rights to land after the WIK decision. The disgrace was not the principle of the statement - Australia after all is a sovereign nation and has the right to introduce whatever laws it likes. But Australia is a signatory to the declarations on Human Rights and thus has these laws as a central feature of its legal plank.When this document is breached, it is not only a breach of international law but Australian domestic law which has ratified it. Howard's hypocrisy on the issue showed up on Saturday when the Federal Government warned Tasmania that a WTO ruling on Salmon imports from Canada should be abided because of the risks to Australia's economy because the WTO allows retaliatory sanctioning if its decisions are not followed through. Surely the Prime Minister should have told the WTO where to go shove it? But no, the PM wasn't in view, instead getting junior ministers to give the message that when it comes to money, we are slaves of an international system.
So, what we have from Howard is a complete moral bankruptcy. On the one hand, we have his Government telling the world to stay out of our business on laws that concern aboriginal affairs - but on economic affairs, the case is different. But of course, one would say, there IS a difference. That's true. On the one hand, a breach in international law CANNOT result in an economic loss to Australia because the world is hardly going to employ sanctions against Australia when far more un-democratic and un-just countries have no sanctions. On the other hand, a breach of international law CAN result in an economic loss to Australia. In that case, the response by the Government is swift. It is a sickening contradiction and demonstrates that the Howard Government is not serious about reconciliation and somehow supports these vile laws which have incarcerated in an overwhelming way, aboriginal youths and adults. The NT and WA laws may be general, but their basest operation is aimed at ABoriginal Criminals who still manage to get in the way of white citizenry even though 200 years of irradication has still not worked. Michael Duffy, the telegraph columnist who ran one of the most disgusting pieces of comment i have ever read, may call me 'morally superior', and if that means I don't like to see Aborigines kept locked up for a year when Royal Commissions have called jail for offendors a 'last resort', well then I am morally superior - because I am not a white, red neck who enters into a panic because poor, hungry and dispossessed Aboriginal youths see fit to steal from the houses of well looked after and predominately white Northern Territorians.
So, I will briefly examine various options in which Mandatory sentence should be dismissed.
GET OFF YOU ASSES JUDGES
"My hands are tied" is the mantra of judges who hate
the laws but nonetheless apply them. What rubbish. Justices apply
justice. They should resign if they do not have the courage of
conviction to refuse to convict biscuit stealing multiple
offending aborigines. In chapter III of the constitution, section
71 says:
"The judicial power of the Commonwealth shall be vested in a
Federal Supreme Court..."
These words set up a critical separation of powers between
parliament and the courts. Judges could extend the operation of
the Kable principle and say that they will not sentence a
prisoner for a fixed term because if it ever goes to appeal, the
sentence itself is out of line with what a High Court would
accept. This is a long bow to stretch, particularly because the
state courts are a creation of state parliaments and could
technically do whatever they like UNLESS they have federal powers
(Kable principle). But there is a precedent for state courts that
exercise federal jurisdiction to come under the power of the
constitution - why not extend it to majistrates courts? If I were
a judge this is what I would do - so what if I get overruled, at
least I wasn't responsible for the manifestly unjust sentence
that interferes with judicial process.
GET OFF YOUR ASSES FED GOVT!
There are two options open to the Federal Government.
I. Use the precedent in Tasmanian Dams Case to overturn the laws based on it breaking our international obligations which we have declared our own (external affairs provisions, s51(xxix).
While the Tasmanian Dams case gives the Federal Government the right to use international treaties to overturn state law, Gaudron quoted Mason, Brennan, Toohey, Gaudron and McHugh in Queensland v Commonwealth (Tropical Rainforests Case) (1989) 167 CLR 232:
"In a joint judgement, (the justices) rejected outright the idea that a court "Can decide for itself as an issue of fact whether inclusion of the property in the list is conclusive of its status in the eyes of the international community..."
So, it is up to the legislature to enforce treaties that it has with international signatories. It is up to the Federal Government to find the relevant sections of the UN treaties, including the covenant on the rights of the child (i think - not enough time to find the name). The problem is that this could be ambiguous, but if the federal government makes its interpretation clear on the basis of the legislation, then that should stand up in the HIgh Court given their strong adherence to the principle of the Dams case. Of course, the court has changed in composition, but precedent is very strong on this issue.
II. USe the races power (Section 51 xxvi) to repeal mandatory sentencing.
Part V of the constituion (in chapter II) sets out the various powers a federal government has. Section 51 xxvi gives the Federal Government the right to make laws for "The people of any race, for whom it is deemed necessary to make special laws."
This has been one of the most vexed constitutional questions since the Dams case, because with respect to Aborigines, some justices have felt that this includes that those special laws can only be made for the BENEFIT of aboriginal people given the 1967 referendum. Either way, if the Federal Government deems that the NT and WA laws are really about discriminating against aborigines, which they clearly do, they could take that power away from the states and repeal the mandatory sentencing provisions WITHOUT the need for international treaty obligations (which as i said may not be specific).
CONCLUSION
I very much doubt that Howard would do something because it is after all indigenous people we're talking about - and they are a pain in the neck. But judges should refuse to sentence. It's that simple. Injustice is incompatible with our judicial system, and these judges by applying the discriminatory laws are being just as bad as the corrupt judiciaries of other nations with totalitarian governments. Let us all think about this and at least petition or send e mails to the PM etc. I am constantly in shock as i sit down in the luxury of my house, that such barbarous acts can continue to happen in my own country. I am morally superior because it is a fact that these laws are wrong.