Death penalty barred by federal legislation
March 12th, 2010 by Robert Merkel | Published in Foreign policy, Government, Law | 53 Comments
The Senate has passed, in a whisper, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. The bill is largely symbolic, creating a new federal offence of torture (which is already a crime under any number of state and federal laws, including when committed overseas).
The more interesting provision is schedule 2, which bans the death penalty under any circumstances. Of course, the death penalty does not exist anywhere in Australia, so, again, it’s almost completely symbolic. What it does do is prevent a state government ever reintroducing the death penalty, and, thus, “ensure ongoing compliance with the Second Optional Protocol to the International Covenant on Civil and Political Rights.”
Obviously, the removal of any possibility of the death penalty being reintroduced is a great thing. No longer will the temptation exist, however remote, for a desperate state Premier or Opposition Leader to float the possibility of changing the law.
However, one thing about the mechanism by which this has been done does bother me slightly. The force of this law, were it ever to be tested, relies on the existence of an international treaty Australia has signed, and the external affairs power of the Australian constitution. Are there any legal impediments to a future federal government signing, say, “The International Treaty on the Abolition of Rights for Teh Gayz” with whatever reactionary foreign government they can find, and then using the same external affairs power to pass federal laws to override relevant state legislation?
“However, one thing about the mechanism by which this has been done does bother me slightly. The force of this law, were it ever to be tested, relies on the existence of an international treaty Australia has signed, and the external affairs power of the Australian constitution. Are there any legal impediments to a future federal government signing, say, “The International Treaty on the Abolition of Rights for Teh Gayz” with whatever reactionary foreign government they can find, and then using the same external affairs power to pass federal laws to override relevant state legislation?”
Well, Robert, I’d like to think no Government would be that stupid. We’ve been using this external affairs power since the Franklin, I thibk, and, so far as I know, even Howard didn’t do anything nasty with it.
Of course, I could be wrong.
One of the arguments occasionally advanced about an Abbott Prime Ministership is that his ability to implement his social policy goals will be greatly restricted by the fact that most of it lies within the jurisdiction of the state governments.
I’m wondering how safe that assumption is.
I’m not a constitutional lawyer, but as I understand it there currently isn’t a legel impediment to an Australian government acting in the way described in Robert’s hypothetical. The External Affairs power and its interpretation by the High Court doesn’t distinguish between bilateral treaties and multilateral treaties of the kind established by the UN system, and it is neutral on the political content of the treaties.
This was a matter tested directly in the Franklin Dams case in the 1980s. So yes, in theory, the Feds would have the right to legislate (subject of course to the exclusionary power of s92) in the way you suggest. There is no constitutional protection for the rights of gays (or anyone else for that matter).
It is worth noting however that the states could in theory do as they pleased in this respect since the only things they can’t do is legislate in areas covered by existing Federal law or where the Commonwealth has decided to “cover the field”. Right now, there are Federal laws that restrict some iterations of the kinds of law you suggest of course.
Yeah the legal problems aren’t nearly as insuperable as the practical ones. Such as, what happens to Australia’s other foreign relationships if we sign a Treaty On Oppressing Minorities X, Y and Z with the Sordid Central Remote People’s Republic of Unrecognikhazia? And what happens to the Federal budget if it starts taking on responsibilities for all of the morally hazardous zones currently dealt with by the States?
Every Premier knows the answer to this one: you can have it if you can afford it, Mr Prime Minister.
Heh Robert you’re a bit late to the party; conservatives have been shrilly condemning the use of the external affairs power to over-ride state laws for decades. Of course their concern is that the international treaties set minimum standards for things like employment – WorkChoices from memory was the subject of a complaint about interfering with freedom of association, which is a basic human right according to those blasted lefties at the UN – but the principle is the same.
Then the federal government would probably be in breach of its obligations under the same international convention (ICCPR), right?
I’m not, on principle, opposed to overriding state laws. I’m just questioning the widely-held assumption that Abbott wouldn’t have the legal power to implement a reactionary social agenda if the politics were drifting the right way.
Well let’s just celebrate one tiny step forward for human rights, after all there hasn’t been much to celebrate over the last decade or so. BTW, has anyone heard if there are any signs of life for the proposed Human Rights Charter?
Personally Robert, I’d favour abolishing the states entirely and doing the local stuff through a system of regional government, but I’d put the chance of that idea going beyond the blogosphere as about as likely as someone tapping me on the shoulder to play Hermione in the next iteration of Harry Potter.
Hmmm … maybe not quite that likely … ;-)
Fran, I suppose I’d take the idea a bit more seriously if you can explain to me how any such proposal gets majority support in four states.
How long before Tony Abbot comes in and declares that the Rudd government is soft on crime and if he were elected he would by the new powers granted restore the death penalty to all states?
tssk: this passed with support from all parties in the Senate.
“How long before Tony Abbot comes in and declares that the Rudd government is soft on crime and if he were elected he would by the new powers granted restore the death penalty to all states?”
And that George Brandis would fall in behind him without batting an eye lid.
Robert
There’s no problem in theory with getting majority support in four states but one can well imagine the kind of parochial chest beating the leadershiop of each of the six states would raise and the likelihood that the opposition — whoever it was, would jump on board opportunistically.
It wouldn’t take much of a FUD campaign to get three states to vote against it, and the mere probability that it might would deter most Federal governments from trying — hence my conclusion about its likelihood of getting a serious run in public discourse amongst people who could try it.
Still, the idea of abolishing 8 governments and their associated bureaucracies and having governance closer to communities of interest does have appeal.
This idea of regional government trips nicely off the tongue but is ill though through. The problem is that so much of the population is concentrated in a few places. Presumably you’d want more regional governments than state governments. But Sydney alone has 20% of the Australia’s population. So you’d divide Sydney into maybe 4 regional governments. How would that help? Too big to collect the garbage; too small to do health and education. Ditto Melbourne. In WA you’d have – what? – a regional government for Perth and one for the rest of WA. Good luck with that. Ditto Adelaide and the rest of South Australia. The only state where it might have a sniff of a chance of working is Queensland, because it is the only truly regionalised state.
So there goes Kristina Keneally’s last chance at re-election.
Does this have any bearing on our govt taking action against the torture of Aus citizens at Gitmo?
It is of course good to have symbols, but what use are they if that is all they are. Actions speak louder than words ;)
That’s a good question, Debbieanne.
If Australia is a member of a military coalition and one member of that coalition practises torture against their common enemy, is it not true that by remaining in that coalition thereby ipso facto abetting the commission of torture on captured individuals, Australia with the guilty knowledge that one or more of its coalition partners perpetrates torture, the responsible members of the government are accessories before the fact and accessories after the fact of the crime of torture?
La la la la la LA LA LA LA LA LA I CAN’T HEAR YOU.
That, Katz, and Debbieanne, is the sound of the present Australian government will make if ever presented with questions along those lines.
The answer to Debbieanne’s question is no: the Act is not retrospective. The answer to Katz’s answer is also no, unless a particular impugned act of cooperation is done with intent to facilitate a specific act of torture. And while I’m here, tssk’s question @11 is nonsensical. The Act can not empower the Commonwealth to restore the death penalty in the States: it would merely make the unilateral reintroduction of the death penalty by a State invalid by virtue of its inconsistency with a Commonwealth state under the operation of s109 of the Constitution.
And as for the cynical and unfounded idea that a future Liberal government would reintroduce capital punishment federally, why don’t you check out the second reading speeches?
Sorry, that’s Commonwealth “statute”, not “state” in the last sentence of my first para.
“One of the arguments occasionally advanced about an Abbott Prime Ministership is that his ability to implement his social policy goals will be greatly restricted by the fact that most of it lies within the jurisdiction of the state governments.
I’m wondering how safe that assumption is.”
I’ve not heard that one, and you’d have to say the answer is “not safe at all”. I mean, between the corporations power, the external affairs power and the State grants power, what can’t the Commonwealth get a State to do?
d
My question was a playful one, though not without a little wry admiration at how the political classes cover their well-padded posteriors.
For folks who share my enjoyment of get-out clauses, here is the get-out clause in the torture legislation.
And seeing as the Attorney-General is the minister responsible for ASIO, the folks who were so helpful in assisting the US to have Mamdouh Habib tortured in Egypt and Gitmo, he’d hardly give consent to have himself prosecuted, would he?
I know it long out of fashion but wasn’t the idea of federalism to allow differences between states?
The idea that states could vary widely (bar vitals, like the old rail gauges etc), in order to allow for experimentation with modes of service delivery. The success of Queensland in attracting so many interstate migrants, is it solely because of sunny beaches and pineapples, or is it to do with a succession of state governments that has (for all its failings) delivered better outcomes for its residents?
The argument for more federal control (by both sides of politics, I recall Howard used the power at one stage, but the exact issue eludes me)assumes that the Feds will run like Queensland and less like Victoria.
I can understand the attractiveness of the idea that when a (assuming the states were abolished) federal government gets it right, it will be beneficial for all states, but what of the reverse??
Not to mention the advantage of states competing to offer their own residents “more” than other states, isnt that how federalism is supposed to work?
I cant support the use of the external powers laws to avoid debate on issues and effectively rubber stamp laws into place. By any party. Either debate and pass laws in the parliment, under you own banners or take massive pay cuts, you are there to make decisions/laws for Australia.
Well, under Robert’s hypothetical treaty, they may be able to abolish rights for Gayz, but at least they won’t be able to stone them to death!
@Katz, elegant isn’t it. If I had a buck for every self-serving Attorney-General…
When are we going to have a good old secession threat? Notional sovereignty is beginning to look like a veneer. Why should the Americans have all the fun?
Your fear is both unfounded and not founded enough, Robert.
The Australian government only complies with international treaties so as to be good international actors. And the Howard era tory backbench freakout over the creation of an international court shows us how fragile that impulse is.
Though the external affairs powers over the states is pretty secure. So as long as we don’t end up with PM Sophie Mirabella we should be fine.
Individual conservatives, perhaps, but I was under the impression that the actual conservative parties have by and large supported every encroachment on the states’ powers in recent years. And Workchoices was the ultimate nationalisation plan (or maybe Abbott’s original hospital centralisation deserves that accolade.)
Fran, I’m probably never going to get (or make) the chance to ask Derryn Hinch or Jim Soorley about the abolition of the states (because they’re cranks on this issue), but answer me this: how would the creation of many little regional governments be any different than having a myriad of Tasmanias? And Tasmanian government from the era of when the apple isle had half the population they have now, at that.
Even if you abolish local government in this scenario, I don’t see why having one hundred or more ACT governments is the way to fix all our problems with regards bureaucracy, duplication, party politics. And you could kiss goodbye to ALP majority subnational government in every area that currently elects a blue-ribbon federal Coalition MHR, for whatever that’s worth.
It’s downright scary this idea that you’d abandon state governments for regional ones. Picture the corrupt, mendacious NSW Labor government. Now, replace the big, highly organised spivs with your typical small town mayor and other assorted nut jobs who typically ruin local councils (gun nuts, henna’d greenies, outright criminals and 90% of the local chamber of commerce divvying up the moolah). If you think state governments are wasteful and corrupt, a regional system is a guaranteed nightmare.
Nick
I see it as more like about 25 regional governments, all of which would be charged with implementing their purely local stuff with Federal funds. Potentially, Tasmania could be one such division. Another could be “Murray Darling” and so forth. There being no states, we would also abolish the senate.
Firstly and most obviously, I don’t give a proverbial about the fortunes of ALP governments at sub-national level. I’m not even happy with ALP governments at national level. So that that’s worth to me is “not very much”. If you look back over the results of the last 109 years, you’d be hardpressed to call much of the governance very good at any level. We’ve pretty lurched from one bunch of conservative moralising xenophobic populist dimwits to a rival bunch of conservative moralising xenophobic populist dimwits on the basis that the second mob is better at preserving fortress Australia than the first mob. This is what passes for politics outside of a small bunch of those of us who make it our business to pay attention to more than the slogans.
So I don’t see much of a downside. If we are to have hordes of Barnaby Joyces and Tony Abbotts infesting the country, let’s not have them in charge of anything likely to make too big a mess, and let’s separate out the parts of the country where most of us live.
As people here know, I’m also in favour of radical changes in the system of candidate selection, and in the way in which we select people to be in charge of delivery of public goods — which, if adopted, would put the parties at arms’ length from candidates and politicians and which would radically improve the engagement of the public with public policy. That method — a combination of sortition and voting — would apply to regional and national government. We would have a national plan proposed every year by the parliemanet and voted on/amended through direct democracy. The parliament’s job would be to deliver the plan and be accountable for it.
Pretty simple really.
I’d rather see something like the health proposal multiplied out, such that there are a range of elected community boards each with their own federal grant based budget and the power to administrate the delivery of a particular service. I see no reason to elect just one bunch of idiots to unrealistically manage everything at that level.
Not bad desipis, although what I was proposing doesn’t necessarily exclude that. Regional governments might amount to no more than a coordinating committee bringing together the various groups doing local provision of various services — eg water supply and treatment, waste handling, education, health, policing, transport, housing etc …
That sounds like a version of our existing federalism, Fran. There were radicals at the turn of the twentieth century who could easily imagine Australia having twenty new states—the first Qld premier to come out of the labour movement wanted a new state in FNQ, I believe.
Anyway, we have a population of twenty million people. Your suggestion would give us a bunch of entities bigger than the existing governments in Tasmania and both the territories. There’s only so much New Politics grassroots organisation you can have in a legislative election for Perth or Central Sydney.
Are you in favour of local government being absorbed into these ‘post-state’ governments? Cos that means council amalgamation, and there are huge issues there regarding the weakening of local democracy.
IMHO this abolish-the-statism is essentially an urge to blow up the major party system, though I see you included the old Labor shibboleth of getting rid of Upper Houses. All I can do is reiterate the fact that Tasmania and Canberra have never moved beyond the unpleasantries of politics and process that exist in the current federal structure.
Not to mention the way that the Commonwealth heads of power have been read since Isaacs J, or the Income Tax Cases #1 and #2.
Basically the High Court has steadily turned the federalist system in this country inside out in the space of less than a hundred years. A classic example of revolution within the form.
As one of the part-time libertarian tag-team here at LP I am required by law and custom to inform you that you came so close to diagnosing the actual problem and then missed it by the thinnest margin.
The ultimate solution to denying power to hooligans and nongs is not to divide it up geographically. That is a stop-gap measure, which rarely outlasts the discovery that whoever controls income tax controls the other levels of government.
The actual solution is never to grant those powers to any government, anywhere, for any reason, in the first place. Then it doesn’t matter how or where it was going to be applied.
Jacques said:
Nah-uh Jacques. So long as societies are socially complex, the bonds between humans attenuated and the resources scarce and valuable, there needs to be an agency capable of foreclosing and mitigating the harm associated with what are called “collective action problems”. We call that agency “the state” and we are entitled to have it serve that general interest, and so far as it can specify amongst them and weigh each rationally by the standard of the general interest, serve these too.
We need our governance to be inclusive, which for me implies equity between the citizens. We want our state to foster “playing nice” when people threaten not to.
That’s why we must risk nongs having power over us — because this really does turn out to be the lesser evil. The lesser evil still is for an informed citizenry to keep nongs to a minimum and away from serious power.
Geez JC, the history of the world since the end of the Dark Ages must be depressing reading for you.
If Abbott were to win government he would be in no position to do anything like Robert’s hypothetical because he would not control the Senate. Even if the Libs win they’re very unlikely to retain their 4 seats in Qld, and they’re also probably not going to get Fielding back either, so the numbers in the Senate are likely to be worse for them than they are now, let alone than the last term of Howard.
Deprived of the opportunity to do much damage to social policy, other than symbolically, Abbott and Joyce would presumably turn to exploring whether it was actually possible to root the economy in a mining boom. Only if they found the answer was no, and therefore got re-elected, could they contemplate the Senate numbers needed to revive Torquemada.
Wel I have what appears to be a desparately unpopular view in the Ozblogosphere – I’m a federalist and support States rights. I think the diversity of governments between states is highly valuable, and we aren’t really overgoverned. Not to say things couldn’t be done better, but I’m far happier with the service I get from Melbourne bureaucrats than I would get from Canberra bureaucrats. Canberra is desperately out of touch, and adopts a one-size-fits-all policy for all sorts of inappropriate issues.
Thankyou for the “air quotes”. I guess I should have “expected” those after laying out the standard libertarian line. However I do note that your reply betrays wider reading than many of your “contemporaries”. Well done.
I should note that I am not an anarcho-capitalist. These days you might call me a incrementalist libertarian. I dunno. But of course societies are socially complex, with attenuated bonds between humans, so sometimes it is convenient to resort to “stereotyping”.
Robert; nice point. I teach public law and people often twig that say the corps power could just as soon be used to cap CEO pay as it was to undermine awards. But few have ever noted the external affairs power can be used for reactionary as for progressive purposes.
But in truth:
1. signing a discriminatory bilateral treaty would not only look odd, it would entail some reneging if not deratification of fundamental equality conventions we’ve long been party to at ILO and UN levels
2. a putative PM Abbott would milk more mischief, and avoid accusations of hypocrisy, by proposing referenda on things like gay marriage. He’d not touch liberal equality principles now embedded in federal law, let alone state law. The Right’s anti-rights culture wars are largely symbolic, that’s their political value. It’s about affirming prejudice without appearing to directly hurt the maligned group – for to do that risks mainstream prejudices rubbing up against the mainstream conceit of the fair go.
Goodmess me, where is our Oxford trained legal guru when we need her?
Jacques, all you have done is attack Fran’s style of presenting her message, you haven’t addressed her argument at all. I agree it was a bit patronising, but to my mind compelling.
I’m also not clear on what he meant by “stereotyping”. He was the one who implied there could be no state.
Fran,
I very much doubt that Jacques has said there need be no State. As hhe said above – he is not an anarcho-capitalist. What he said was simple – if you do not want a State to exercise a power then you do not grant the State that power. To that extent I do not think that hew (and certainly I) would disagree with your last sentence
To me, serious power by its very nature attracts “nongs” (as our current leaders and their possible replacements may demonstrate well). The solution to me then becomes simple – do not have any concentrations of serious power at all. Make sure that power is dispersed as far as possible and where it exists it is heavily handcuffed and has strong oversight.
In your specific thoughts on our government structure I do not see that a strong central government combined with incredibly weak local government will achieve this. What I would prefer on the particular topic raised by Jacques (or others) is simple – the power to tax incomes is handed (or at least spread) to both the state and local governments to reduce or eliminate the revenue disparity between the levels of government.
is what Jacques actually said.
Andrew R
Why “doubt” it? This is a text based medium. He said:
I grant you that “those powers” is imprecisely specified. In context though “those powers” could refer to “the powers exercised by state governments”. State governments in this country are for the most part, where the rubber hits the road. “[T]hose powers” include OH&S which were so brutally ignored over the insulation kerfuffel. Hmmm
“Handcuffed” and oversighted by non-existent entities rendered non-existent for fear of nongs being in charge …
So you want more complexity and red tape? You’d like rival tax regimes over the borders rather than less government overall? Good grief. Strange days indeed.
“Those powers” is left intentionally vague because it is an open (and endless, and contentious) matter of debate amongst liberals, libertarians and anarcho-capitalists, inter alia, as to what the acceptable list of of “those powers” is.
But all agree on the principle that if you grant a power to government, it will be eventually abused. So best to grant as few powers as possible and be constantly vigilant for what is granted.
You have also pointed out the problem of Quis custodiet ipsos custodes. I don’t think there is a complete solution for this problem, so it becomes a matter of risk management. Fewer people to watch means less watchers, so let’s have less government with less power. Slightly different chain of reasoning, same conclusion.
Does that clear up my original sentence for you?
Damn, incorrectly closed em tag.
Jacques said:
Regrettably, you don’t get to be that vague and algebraic when we have a specific context to speak in. To borrow from the language of programming, this is a variable for which you must specify a range of values or have them defined for you by existing arguments.
On the substantive point, this is so, but one should not make a fetish of it. As I noted, those attenuated human bonds require that we all keep an eye out or appoint people qualified and willing to do so when we can not. We now know that one person’s malfeasance can easily cast harm over a wider area than is immediately obvious and so we must be very careful to specify those acts which should be restrained, benchmarked, guided and utterly required.
I regret that I am not latinate, so please forgive my grammatical lapses.
I support moves to outlaw capital punishment but I await some consistency to be introduced and abortion to be outlawed to. A society that allows unborn babies to be killed because they are “inconvenient” but prohbits the execution for horrific crimes has lost the plot. Some more pro life consistency is needed – ban capital punishment, abortion, torture, the arms trade and maybe even war. All degrade life and are horrific crimes.