THE USE AND ABUSE OF TREATIES

THE PROSPECT of the Prime Minister resorting to external affairs powers to
stop trials of safe injecting rooms in the ACT, NSW and Victoria is yet
more evidence of how successive governments have been willing to call upon
international treaties and conventions when it is politically convenient
for them to do so, and ignore or challenge such treaties when it isn't.

When it comes to international obligations to reduce greenhouse gases, for
instance, the Federal Government is quite prepared to shrug and say that
most of the responsibility for greenhouse-gas generation lies with the
states. While the Federal Government would personally be delighted to meet
designated emission levels, it laments, its hands are somewhat tied.

Passive resistance is one way of avoiding international obligations.
Occasionally, however, governments are prepared to become quite active
indeed in distancing themselves from their own promises. When the High
Court handed down its judgment in the Teoh case in 1995, ruling that the
signing of an international agreement created a legitimate expectation that
administrative decisions would be made in accordance with that agreement,
the then Labor government quickly drafted a Bill to overrule the High
Court. On its election to government in 1996 the Coalition continued the
fight. A Bill on the matter was being debated in the House of
Representatives as recently as this month.

Yet now, the receipt of a single letter from the United Nations
International Narcotics Control Board, warning that the NSW safe injecting
room trial might be in breach of the 1961 Single Convention on Narcotic
Drugs, has the Prime Minister "asking" NSW, the ACT and Victoria to put
their scientific trials of such facilities on hold. It is no doubt
coincidental that the Prime Minister has been a long-standing and vocal
opponent of safe injecting rooms.

No-one has yet uttered the words "external affairs powers". The Prime
Minister has made it clear that he is not threatening anyone. Yet.

What does that mean? That the overt threats will only begin if NSW, the ACT
and Victoria reject his request to voluntarily stop their trials?

The Government would probably argue that not all international treaties are
alike. And it is true that conventions and treaties have intrinsically
different persuasive powers, depending on whether they have merely been
signed, formally ratified by individual signatories, or embodied in a
signatory nation's own domestic laws.

But such legal hair-splitting serves to obfuscate the simple truth that
Australian governments have a long and not particularly noble history of
summoning up the authority of international obligations when it suits them
to do so, and blithely disregarding those obligations when they turn out to
be inconveniently at odds with political agendas.

The 1961 convention on narcotics allows for countries to depart from the
agreement for the purposes of conducting controlled clinical trials, as
well as for domestic public-health reasons. Surely Australia in the person
of its Prime Minister is in a position to argue that the safe injecting
room trials meet those criteria, whatever John Howard's personal stance on
drugs.

It would be a sad day if Australians were forced to conclude that their
Prime Minister had seized upon one legal opinion on an international treaty
merely to further his own zero-tolerance attitude towards illicit drugs.