Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

I congratulate the member for Gellibrand and the member for Cook for their fine advocacy inside this House, and outside of it, against the utilisation of the death penalty. It was a remarkable act of international statesmanship when the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, was brought into force. It is a unique international instrument because it not only obliges those who become party to it to abolish the death penalty within their own territories but they also each sign up to the obligation to persuade other nations to act consistently with those objectives.

In the spirit of bipartisanship, I acknowledge the work that our Minister for Foreign Affairs has undertaken in that regard. He and his predecessors have very strongly advocated against the utilisation of the death penalty in all circumstances. When I say in all circumstances, it behoves us all in this parliament to recognise that this is an extraordinarily difficult and passionate area of debate, and there will be circumstances, such as the Bali bombings, in which intemperate remarks of understanding and perhaps even vengeance in relation to the death penalty may be expressed. But, if they are expressed, particularly by our leaders, they are readily seized on by those in other countries who say that we are seeking to oppose the death penalty only when it applies to Australian nationals and that we wish to act in a discriminatory and arbitrary way. That cannot be an effective framework, either for the interests of Australians who may find themselves subject to the potentiality of the death penalty or for the advocacy of its abolition across the board.

I will say something very specifically about arrangements that have become more contentious—the exchange of policing information. Some time ago, this parliament passed an act which made it plain that, once a person becomes subject to charge, law enforcement cooperation can only be facilitated under legislation which makes it obligatory not to provide that assistance unless an undertaking is provided by the government of the country in which the person is that, if the person is proceeded against, the death penalty will not be applied or, if it is imposed, it will be the subject of an act of clemency.

However, it has become very contentious in the preceding period, and I believe in a most unintended way. I believe I am very competent to speak about the fact that it was unintended, because I was in fact the minister who introduced the mutual assistance legislation imposing the prohibition on the provision of assistance in death penalty cases. What we did provide was that, where pre-arrest information exchange was occurring between police, assistance could be provided irrespective of whether there might be a later charge involving the death penalty. However, that was intended to be facilitative, not mandatory. It was meant to be facilitative because, on advice from the police, we recognised that there may be some, hopefully quite rare, circumstances where the cost to the lives of others and the communities involved may be so much greater if that assistance were not provided. A simple example might be that we have come into information that a bomb is going to be placed on a plane within China. We know that if that information is passed on and an arrest is made the likely outcome will be that the person undertaking that conduct will be subject to the death penalty and shot. But to fail to pass that information on would be completely irresponsible. So it is facilitative that the information could be passed on.

However, surely it cannot be the case, as is being proposed, that in all circumstances common sense flies out the window and we do not exercise judgement regarding circumstances in which assistance will be provided. Take, for example, the circumstances in Iran where a 16-year-old girl has been hanged for the offence of having sex with a person when she was not married. There are many countries which have the death penalty for offences that even the most draconian of lawmakers here would not recognise as appropriate, and for our police to say repeatedly and for our ministers to repeat that they are obliged in all instances to pass on information without any regard to the consequences to those who might be affected by it is simply shutting their eyes to the real consequences of that conduct. (Time expired)

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