The trials of a Bunyip parent

If there’s one aspect of the identity of the mysterious Professor Bunyip about which we can be completely confident, it’s the fact that he really is a parent of teenage children. Only another fellow sufferer could have written this:

The real surprise about teenagers isn’t that so many of them take their own lives, it’s that they survive long enough to do so, given how annoying they can be.

The rest of the Prof’s post (which is about a dodgy youth suicide survey) is also worth reading.

Otherwise it’s a fairly uneventful day in the ozplogosphere. Apart from boring people to death with didactic rants about global warming, I’ve got nothing to say. I’ve been musing about a death penalty rant, but what is there to say apart from the obvious observation that John Howard is a cynical politician who’d do anything, however toxic and unprincipled, to confound and “wedge” the ALP and stay in government? Is the Pope a stupid, senile old Catholic who’s dragged the Church back 50 years?

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Gummo Trotsky
2022 years ago

Well, there goes the Howard section of my death penalty rant; I’m not sure whether that leaves enough of it to be worth posting.

Ron Mead
Ron Mead
2022 years ago

Yes, Ken, John Howard has made the totally cynical decision not to protest to the Indonesian government about a death penalty imposed after due process in an Indonesian court against an Indonesian citizen for a crime committed in Indonesia that involved the murder of a number of Indonesian citizens among many others. How could he be so unprincipled as to believe that the Indonesian government is not waiting with bated breath for our reaction and may well now feel they have our permission to carry out that dastardly sentence.

Not only that but he has the temerity to suggest that just because the majority of Australians may well support the death penalty being reintroduced in this country in certain circumstances we should permit a debate about it in spite of the fact that the intelligentsia have ruled it out of bounds of not only reconsideration but even of it being mentioned in public discourse. Cynical indeed, and worse, populist!

Gummo Trotsky
2022 years ago

On the other hand …

mark
2022 years ago

Is it wrong of me to fall off my chair, laughing, every time someone suggests a conspiracy of the “intelligensia”?

mark
2022 years ago

“Is the Pope a stupid, senile old Catholic who’s dragged the Church back 50 years?”

Actually, I’d venture to suggest, “no”. Consider that there are elements in the Church who still think Vatican II was a bad idea. Frankly AFAICT, among the high-ups, the Pope is *moderate*. Besides, he (sort of) apologised for the Crusades. When he makes statements that put the Church in a bad light, it’s because the Church still has a hell of a long way to go yet. But it’s getting there…

Ron Mead
Ron Mead
2022 years ago

Heavens, Marks, “conspiracy” was the furthest thing from my mind in relation to the intelligentsia. After all, conspiring involves some thinking power.

Ken Parish
Ken Parish
2022 years ago

Ron,

If you’ve been reading the blog lately, you’d be aware that I wasn’t talking about protesting to Indonesia. I blogged about that a couple of days ago. Manifestly I was talking about Howard attempting to provoke a debate in Australia about the death penalty. Your instant leap to claiming that intellectuals would not “permit” such a debate is revealing. No-one’s preventing such a debate. You can ring up talkback radio any day of the week and talk about it until you’re blue in the face, and you’d probably get a hospitable reception from many of the shockjocks. You can also write a letter to the editor any time you like, or start a blog for that matter. Moreover, the issue WAS instantly discussed on TV and radio current affairs programs, albeit mostly from the standpoint of trying to work out why Howard would attempt to create a debate in these circumstances.

Thus, I wasn’t complaining about anyone “permitting” a debate about the death penalty; I was criticising Howard for irresponsibly promoting and creating one, where no debate would otherwise have taken place. The issue is inherently divisive (around 51% of Australians supported it and 49% strongly opposed it at last count) and rouses strong passions. That wouldn’t of itself be a reason to condemn Howard for attempting to create a debate about it, if he sincerely believed that the existing law/policy was wrong and that there needed to be a debate to shift attitudes in the direction of a reform he desired. However, in fact that isn’t his motivation at all. Howard specifically said he opposes the death penalty, and most Liberal State leaders immediately went public and indicated they did too. So why did Howard try to promote a public debate about it? I think the obvious answer is that he did it to “wedge” and create division in the ALP, even though he knows it also creates needless tensions and divisions in the rest of the community (needless given that neither he nor any other Liberal leader has any intention whatever of moving to change the law). What a wonderful, responsible national leader, pursuing a vision of national unity!

Dave Ricardo
Dave Ricardo
2022 years ago

Ken,

you are quite right, of course. I take back every snide thing I’ve written about you in the past week. Little Johnny is just playing dog whistle politics for the sake of it. He really can be disgusting at times.

Ron,

take your hand off it. You’ll go blind.

Ken,

I see that your local CLP leader, Dennis Burke – the David Hookes of Australian politics – , has come out in favour of the death penalty. Do you think he’s serious, or is this just a way of attracting attention?

Ken Parish
Ken Parish
2022 years ago

It’s just a way of attracting attention for a leader who’s desperate, on the ropes, and about to be knocked off as leader any day now (well, any month now anyway – I’d be astounded if he’s still leader at the next election).

Geoff Honnor
Geoff Honnor
2022 years ago

No contest on the Indonesian side of things Ron. I think I commented on the interesting juxtaposition between discussion of Alison Broinowski’s thesis re Asian attitudes to perceived Australian knows-bestism on the one hand and Andrew Bartlett’s gratutitous insult to Jakarta re their capital punishment ‘barbarism’ on the other.

From the Indonesian perspective, it’s Bartlett et al – not the sentence in Denpasar – that will be the more likely to invoke notions of barbarism.

I think at this stage of their development, confronted by the challenges they face, it’s understandable that Indonesia would wish to retain a capital punishment dimension. It’s much more about the integrity of the process that delivers said penalty finally, than it is the penalty itself.

However, in the Australian context, I’m with Ken. It’s surely a non-starter for any purpose other than to confound Howard’s political opponents. Capital punishment was abolished over 30 years ago. To advocate for it’s restoration at this point is to imagine that we can simply turn back time to the sociopolitical constructs of a different era. We’ve moved on.

There’s an ongoing debate about it of course – I’m sure it will continue – but to be frank, it would rank about 999th in the list of burning Australian issues, it’s topicality vis a vis Bali, notwithstanding.

Dave Ricardo
Dave Ricardo
2022 years ago

“It’s much more about the integrity of the process that delivers said penalty finally, than it is the penalty itself.”

Come off it, Geoff.

If it’s process you car about, you can have a process with complete integrity that serves up life in prison. if you don’t believe me, ask Bilal Skaf.

But with the amount of corruption in Indonesia, who in their right mind would believe in the integrity of their process? Maybe not in this case, where the world is watching, but in other cases where some poor bastard gets fitted up and then executed because he can’t pay a big enough bribe to the local military commander. Even without the corruption, do you really think the quality of the evidentiary process in the Indonesian criminal justice system is high enough to warrant the death penalty?

When you say, “at this stage of their development”, what you mean is that life is cheap anyway in Indonesia, so the grave moral issues with the death penalty don’t apply to them.

Geoff Honnor
Geoff Honnor
2022 years ago

No that’s not what I mean at all Dave. I think it’s entirely reasonable that Indonesia should retain the death penalty at this point given the challenges they currently face. I also suggested that justice being seen to be done – as it was in Amrozi’s case – is maybe the more crucial issue: not the sentence per se. The rest of your comment concerns strawmen and a bunch of rhetorical pitchforking. Making hay while the sun shines?

Gianna
2022 years ago

I totally agree with Ken about the politically opportunistic way John Howard raised the need for debate on this issue. Why call for debate on this issue and not, say, the issue of whether or not this nation should go to war? I seem to remember Howard actively discouraging public debate on the war–and that was a situation where innocent people, aka ‘collateral damage’, were given the death penalty.

Dave Ricardo
Dave Ricardo
2022 years ago

So Geoff, at what point in a nation’s development does the death penalty become unnecessary?

Is it when they no longer face a terrorist threat? If so, Britain should never have abolished the death penalty, because the IRA was terrorising people all over the place, and could still do.

Is it when they don’t face a secessionist threat? If so, Canada should bring back the death penalty to execute those dangerous Quebeckers. So should Spain.

What is so special about Indonesia that it’s perfectly understandable that they execute people?

Geoff Honnor
Geoff Honnor
2022 years ago

It’s for Indonesia to decide Dave.

Dave Ricardo
Dave Ricardo
2022 years ago

Do you mean like it was for Iraq to decide whether to execute people by throwing them into shredders?

Or like it was for the Soviet Union to decide to send people ot the Gulag?

Jim
Jim
2022 years ago

Ken,

I don’t know that he’d qualify as “intelligentsia” – what is the definition incidentally? – but the following quote from Phillip Adams in yesterday’s Australian;

” Yes, Prime Minister, it’s perfect timing. Let’s encourage Liberal leaders to raise it (the death penalty) as an issue in the next state election campaigns. Knowing full well that the shock jocks will start baying for blood while your tabloid cheer squad – and the broadcast bullies – will simply argue over the comparative merits of the noose versus the needle, the chair, the firing squad or the gas chamber. A public already panicked by the war on terror will be conned and wedged into a debate that we don’t need to have – and shouldn’t be having.”

shows that he at least believes this is a subject we shouldn’t even debate.

I haven’t followed every comment the PM has made on the subject but what I did hear was that this was a matter for the Indonesians,that we shouldn’t attempt to interfere with their legal system etc – or words to that effect.

Incidentally,if what you say is correct,then Crean must have seen it coming a mile off – he agreed with the PM with alacrity!

Geoff Honnor
Geoff Honnor
2022 years ago

No Dave, not like that. Is it the full moon or something?

Gummo Trotsky
2022 years ago

<troll>As threatened, the capital punishment rant is now up at Tug Boat – complete with the questionable Howard section</troll>

adam
2022 years ago

i don’t think the CLP could legally reintroduce the death penalty anyway. it was abolished in the nt by a 1973 commonwealth act passed pursuant to s 122 of the constitution. as is my understanding, if the territory were to pass a law inconsistent with the 1973 act, it would have no effect. the states could reintroduce the dp if they wanted [in 1973 the cth had no legislative power to abolish the dp in the states], but not the northern territory.

interestingly, the feds now would have the power to pass a law similar to the 1973 act but applicable to all australian jurisdictions. they could do this under s 51(xxix) of the Constitution, which gives the feds the power to legislate to implement an obligation arising under a treaty. the treaty is the second optional protocol to the the international covenant on civil and political rights.

so now you know: the territories can’t do it; the states could do it, but the feds could stop them, if they were so inclined; the feds could do it, but they’d be in breach of their obligs under the second optional protocol [which would not necessarily stop them, but still, it’s nice to know].

Ken Parish
Ken Parish
2022 years ago

Adam,

I think you’re wrong (although perhaps the answer isn’t absolutely certain). The Northern Territory Parliament was created by the Commonwealth in 1978 (by the Northern Territory (Self-Government) Act (1978)) and given full and plenary power to make laws “for the peace order and good government” of the Northern Territory (albeit subject to restrictions contained in the Sel-Government Act itself). The High Court has repeatedly held that these are words which connote an intention to confer legislative power in the widest possible terms i.e. as Dicey put it: “to make and unmake any laws whatsoever”. See Union Steamships v King. The Self-Government Act is a later Commonwealth enactment than the 1973 one abolishing the death penalty in the NT, and supersedes it to the extent that it evinces a contrary intention.

I suppose it could be argued (and certainly would be if the NT did in fact re-introduce the death penalty) that the prior 1973 Commonwealth death penalty abolition enactment was a more specific one, and that the later Self-Government was merely a general conferral of power and didn’t evince an intention to confer power to re-introduce the death penalty abolished only a few years previously. However, I doubt that such an argument would succeed, and here’s the reason. The Commonwealth of Australia and NT stand in the same relationship to each other as the British Imperial Parliament and the Commonwealth of Australia stood immediately after federation. That is, the NT was created by the Commonwealth and given full and plenary legislative power, and the Commonwealth was similarly created by the British Imperial Parliament. If your argument is correct, it would also be possible to argue that the Commonwealth of Ausralia lacks any legislative power to override any pre-1901 British enactments made specifically in relation to Australia. Manifestly that isn’t the case.

However, the Commonwealth retains power to override an NT law either by executive disallowance or by passing a later Commonwealth Act specifically repealing the obnoxious NT statute, and possibly restricting the NT’s otherwise full and plenary power to legislate on that subject from that time on. That is what happened in 1997 when the Commonwealth overrode the NT’s voluntary euthanasia law (see Euthanasia Laws Act (1997) (Cth)). Thus, although the NT could re-introduce the death penalty, the Commonwealth could also stop it, and wouldn’t need to rely on an internatioal treaty to do so. Of course, whether a John Howard-led federal government would do so is another question.

adam
2022 years ago

uh, yeah.
i prolly should’ve said “as is my understanding, which isn’t really that good”.