The Treaty Game

John Howard has a problem in the Northern Territory.  Does he intervene to overrule the mandatory sentencing laws of the CLP government, a law which had express support at the last election?  Hordes of southerners are urging him to.  They claim the law breaches Australia's international obligations.  Of course he doesn't need that pretext, the Territory is merely an instrument of the Commonwealth.  Western Australia though would be different.  Then he would have to play the "Treaty" game.

Appeals from Australia to the Privy Council UK were abolished in 1986.  It was a sign that Australia felt that its constitutional system was complete.  The electorate was entitled to think its internal politics were resolvable and resolved within its own borders.

The electorate was wrong.  Australia had already started to play the treaty game.  It was signing international treaties which would make it subject to dozens of external bodies.  In fact, it can now be said that Australia has a new constitution;  the United Nations charters and covenants.  The UN and the committees that police its covenants do not have the legal standing of the Privy Council, but having agreed to abide by covenants on, for example, civil and political liberties, the rights of the child, and the treatment of juveniles in custody, Australia's honour is at stake should it fail its obligations.  In short, Australia has ceded moral authority to another body.

How did this come about?  As far back as Doc Evatt's presidency of the UN in 1948/9 Australia was helping develop international instruments as a guide to lesser and recalcitrant nations.  It was being a good citizen.  Australia agreed to make periodic reports to the UN and other bodies on its performance in the implementation of these provisions, but it never failed, after all it wrote the rules.

Australia also signed many instruments aimed at promoting a safer international environment, whether in the treatment of foreign investments, trading rules or the resolution of custody battles.  The Commonwealth government, especially following the Tasmanian dams case in 1983, was using the international instruments to impose itself on the states.  Commonwealth power increased at the expense of the states, and Australian's were beneficiaries of new international rules.  It seemed a good game.

More recently political activists in and outside Australia have begun to appeal to international bodies where they have failed to promote their cause by domestic means.  The UN Human Rights Committee and the UN Human Rights Commissioner along with sundry others, like the UN World Heritage Committee have been coming, or are about to come, knocking on the door.  Whether it's mining at Kakadu, Native Title post-Wik or mandatory sentencing, there is a new game in, or rather out of, town.  The covenants Australia signed as a good citizen to guide the actions of others and to provide protections offshore are now being used by its own against its own.

The UN committees sent to investigate government actions are just that, committees, not courts.  They are not constrained by the rules of a court, even an adventurous one.  They are an elected body, a political body.  Moreover, they are subject to lobbying by governments, advocates and activists, unconstrained by an electorate.  This is a huge change to domestic politics.  Democratic politics has always been a balance of the competition for power and influence among the organised, constrained by the tolerance of the unorganised, played out under an agreed and largely immobile set of rules.

UN political committee interventions in Australia will severely constrain the Commonwealth, and increase the chances that it operates at the behest of the interest group and not in the interests of the electorate.

The rationale for this shift in the constitution of Australian politics is in the dialogue of human rights and universal values.  Its promise of greater morality is to be imposed as a universal and neutral phenomenon.  However, the arbitration of the meaning of a right will be determined elsewhere.  The very fact that there needs to be an arbitration belies the claim to universality.  Concepts like just treatment of juveniles, an indigenous right to negotiate or a preferred method of managing a World Heritage area are as contested as any other political claim.

The new morality will be very one-sided.  When it applies to the individual it will be absolute.  Actions by government in the interest of broader concerns, whether peace and safety, the protection of property or the economy will be struck down by pseudo-legal means.  Actions by government designed to advance the common good, which may have short term consequences for some individuals, like the Multi-lateral Agreement on Investment and the new round of the World Trade Organisation will be struck down by non-legal means.

Australia invited the new regime but did it realise the changes it will bring?

ADVERTISEMENT