April 8th 2000


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Articles from this issue:

EDITORIAL: Mr HowardÂ’s circuit-breaker

NATIONAL AFFAIRS: Fishy business: WTOÂ’s salmon ruling NATIONAL AFFAIRS: Fishy business: WTOÂ’s salmon ruling

AS THE WORLD TURNS

DRUGS: Random drug tests for politicians?

NATIONAL AFFAIRS: UNÂ’s unwelcome interest in local affairs

RURAL: Anger at NP inaction over low farm prices

TELECOMMUNICATIONS: Behind the new Telstra inquiry

CANBERRA OBSERVED: Divisions exposed in ranks of Victorian, NSW Liberals

WORK: Longer working hours: unions ignore developing social crisis

LETTERS: Rural debt a legacy of “get big or get out” mentality

ENVIRONMENT: How KyotoÂ’s greenhouse gas cuts will hit the hip-pocket

FOREIGN AFFAIRS: Japan faces up to defence, immigration and overwork

INTERNATIONAL AFFAIRS: ChinaÂ’s spiritual vacuum

UNITED STATES: Foetal tissue sales: “dirty secret” of US abortion industry

POLITICAL PHILOSOPHY: Democracy for all?

ECONOMICS: How globalisation puts profits before people

POPULATION: Why wonÂ’t Australian women have children?

BOOKS: 'GIVING SORROW WORDS: Women's stories of Post-Abortion Grief', by Melinda Tankard-Reist

BOOKS: 'Karl Marx', by Francis Wheen

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NATIONAL AFFAIRS:
UNÂ’s unwelcome interest in local affairs


by Richard Egan

News Weekly, April 8, 2000
The United Nations has decided to enter the debate on mandatory sentencing. It is not the first time it has attempted to influence Australia's national affairs - and it won't be the last.

The debate on mandatory sentencing has again raised concerns about the increasingly intrusive role international law is playing in Australia's domestic affairs. The Convention on the Rights of the Child is perhaps the international treaty that has attracted the most attention in recent years. It is now being used as the principal basis for objecting to mandatory sentencing laws in Western Australia and the Northern Territory.

Despite a vigorous grassroots campaign against the Convention led by the Australian Family Association, it was ratified in 1991 by the Federal Labor Government, with promises that it would not have any direct impact on Australian domestic law and that the rights of families would be preserved.

Since then, the Convention has been incorporated into domestic law by judicial fiat. The High Court in the 1995 Teoh case incorporated the Convention into administrative law and the Full Bench of the Family Court imported the Convention wholesale into family law in its significant B & B decision, by the simple device of stating that the court could only interpret the phrase "best interests of the child", which occurs in the Family Law Act, by reference to the detailed provisions of the Convention on the Rights of the Child.

The Howard Government has so far failed to pass much touted legislation to reverse the Teoh decision and has no plans to change the family law ruling.

Under Article 44 of the Convention, each signatory nation is required to report to the United Nations Committee on the Rights of the Child on its implementation of the Convention. Australia's first report was due in January 1993, but it was not submitted until late 1996.

The Committee, which consists of experts from countries such as Lebanon, Burkina Faso, Indonesia and the Russian Federation, considered Australia's report at its January 1997 meeting and then sent Australia a list of 45 questions, demanding further explanations. The Committee issued its Concluding Observations on October 10, 1997.

Australia's second report was due in January 1998. However, it is overdue like 154 other reports to the Committee. Many countries have not yet submitted their initial reports.

In the Concluding Observations, this UN Committee gave Australia a fair dressing down as it does to most nations. (For example the Committee told the Holy See in 1995 to abandon its support for parental rights and to support access to abortion and condoms for adolescents.)

The Committee wants Australian parents to be subjected to an educational campaign "on the importance of children's participation, and dialogue between parents and children". The Committee accuses Australian law enforcement officials of racism as the most likely explanation of the "high rate of incarceration of children of Aboriginals and Torres Strait Islanders".

Ms Sandra Prunella Mason of Barbados, Chairperson of the Committee, and her fellow experts have no direct knowledge of Australian parents or Australian law enforcement officials. They appear to derive these views from their general ideological orientation in favour of radical children's rights, as well as from the highly critical alternative report on Australia co-ordinated by Defence of Children International and subsidised by the Australian taxpayer at the cost of $12,000.

On mandatory sentencing, the Concluding Observations state:

"The Committee is also concerned about the unjustified, disproportionately high percentage of Aboriginal children in the juvenile justice system, and that there is a tendency normally to refuse applications for bail for them. The Committee is particularly concerned at the enactment of new legislation in two states, where a high percentage of Aboriginal people live, which provides for mandatory detention and punitive measures of [sic] juveniles, thus resulting in a high percentage of Aboriginal juveniles in detention."

The Committee does not explain how it concludes that the high rate of Aboriginal juveniles in the juvenile justice system is "unjustified". The suggestion that Aboriginal juveniles are refused bail on discriminatory terms is offensive and unsubstantiated.

The Committee apparently has not grasped the basics of the Australian federal system and doesn't understand that the Northern Territory is not a "state". Something has gone wrong with the translation of the last sentence, which is almost incoherent. The assertion seems to be that mandatory detention legislation is significantly impacting on detention rates for Aboriginal children in Western Australian and the Northern Territory.

The Committee's allegation is not borne out by the statistics. The Northern Territory actually has a lower rate of indigenous young people in detention (227 per 100,000) than Australia as a whole (583 per 100,000). The Senate Committee inquiry into mandatory sentencing, after a careful examination of all the available statistics, concluded:

"Mandatory sentencing per se in the Northern Territory, on the figures provided by the Northern Territory Government, does not appear to be having the effect predicted and suggested, by many of the submissions and witnesses, with respect to the numbers and percentages of different groups".

The problems with Aboriginal juveniles and crime are complex and not easily solved. The idea that overturning mandatory sentencing laws will have a significantly favourable impact is naive. Some obvious causes of crime include family breakdown, especially the absence of fathers, and the related problems of substance abuse, which is rife in some Aboriginal communities.

It is these communities themselves that suffer most from young Aboriginal criminals. The claim that many of the property offences attracting mandatory sentencing in the Northern Territory are trivial does not take sufficient account of the fact that the primary victims of Aboriginal juvenile criminals are poor Aboriginal families.

At least one submission to the Senate inquiry highlighted the difference between Aboriginal customary law and "white fella law" suggesting that customary law delivered an immediate short, sharp shock and the punishment was over and the crime put in the past. This suggests that corporal punishment may have some part to play in a more effective juvenile justice system.

Historical evidence from Western Australia indicates that juvenile offenders in the period 1853-1901 were extremely rare. Those given 30 lashes for stealing did not re-offend. Perhaps because they were warned that the next offence attracted 50 lashes! However, this suggestion is unlikely to be taken up by the devotees of the United Nations.

The Committee on the Rights of the Child has also told Australia to pass legislation to ban "the use of corporal punishment however light", in schools, homes and institutions.

The Howard Government has not yet responded to the August 1998 report of the Joint Standing Committee on Treaties which endorsed the Convention and called for a Federal Office for Children while rejecting the UN Committee's call for a ban on corporal punishment in schools and homes.

A minority report by the Hon Peter McGauran and Senators Eric Abetz and Bill O'Chee called for Australia to denounce the Convention and later re-ratify it with explicit reservations "protecting the traditional role of the family and rejecting the concept of the autonomous child".

Meanwhile the Howard Government continues to entangle Australia further in international treaties. Australia is about to remove its reservation to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) relating to women in combat-related duties.

This move will lock into place in international law an obligation on Australia's part to ensure equal access for women to combat-related duties, which are nearly impossible to separate from actual combat duties. Australia is also considering signing the First Optional Protocol to CEDAW which provides for individual women in Australia to lodge official complaints against the Australian Government with the Committee on the Elimination of Discrimination Against Women.

International treaties should only be entered into by Australia when they deal with matters that transcend Australia's borders, such as international aviation. The conventions against drug trafficking are a good example. The heroin trade in Australia relies exclusively on imported heroin. Drugs cross borders. The drug problem is undeniably an international matter.

The misuse of international treaties by social engineers has made it more difficult to see that the New South Wales Government's experiment with a heroin injecting room, with its de facto legalisation of heroin and cocaine possession, violates Australia's valid international obligations.

The Prime Minister needs to exercise true statesmanship by upholding these obligation and implementing the request of the International Traffic Control Board to stop the establishment of injecting rooms - by Federal legislation if necessary - while appropriately ignoring the prejudicial and ill-informed comments of the Committee on the Rights of the Child on mandatory sentencing, corporal punishment and the need for Australian parents to be re-educated.




























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