Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Hansard source

The first execution after Europeans arrived in our continent occurred within a month of their arrival, on 27 February 1788. Thomas Barrett was sentenced to death and hanged. He was 17 years old. His crime: the theft of some butter, dried peas and salt pork from the meagre stores the First Fleet had brought with it. Execution for offences like this was common at the time. Many of the convicts who came to Australia with the unfortunate Thomas Barrett on the First Fleet had initially been convicted and sentenced to be hanged but had had their sentences commuted to transportation to the colonies. Others had faced the death penalty for the petty crimes that they were convicted of but had had a sentence of transportation imposed on them.

One hundred and seventy-nine years later, in February 1967, Ronald Ryan was hanged at Pentridge Prison in Melbourne. He had been sentenced to death for the murder of a prison guard during a prison break-out. Between these two hangings, it is estimated that between 1,700 and 2,000 people were judicially executed in Australia, but there has been no-one put to death since 1967 and since then each state and territory has abolished the death penalty. Queensland was the first state, in 1922, to abolish capital punishment for all offences. New South Wales abolished the death penalty for murder in 1955 but somewhat curiously forgot about the death penalty being there for some other offences, like treason, until 1985. WA was officially the last state to abolish the death penalty, which it did in 1985. The Whitlam government abolished capital punishment for all federal offences in 1973. In my home state of Victoria, although Ronald Ryan was hanged under a Liberal Premier, Henry Bolte, his Liberal Party successor as Premier, Rupert Hamer, introduced legislation to abolish the death penalty in 1975. The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 now before the House will ensure that the death penalty cannot be reintroduced anywhere in Australia. It demonstrates the commitment of our nation to abolition of the death penalty across the world and will add strength to the lobbying efforts of our government for abolition across the world.

The hanging of Ronald Ryan in February 1967 had a profound effect on me, as it did on many other people, young and old, across Australia. I was 10 years old and just starting to be interested in politics and government. I recall that there were protests across Melbourne—indeed, across Australia, but most notably in Melbourne. The media had avidly covered the trial of Ronald Ryan, as indeed it had covered his escape from Pentridge and the shooting of the prison guard that led to him being charged with felony murder.

There were massive protests following the sentencing of Ronald Ryan. Barry Jones—who was already a public identity, later a member of the Victorian parliament and, later still, the member for Lalor in this House—was one of the leaders of the fight to have Ryan’s sentence commuted. This had occurred in very many cases over preceding decades. There was no doubt that the state cabinet could have commuted the sentence to life imprisonment, but the Liberal government led by Henry Bolte refused to do so. That is what brought home to me just what a political and governmental issue this is. The state government was recognised by the whole community as having the right, a right that it had exercised on many occasions, to commute sentences of death to life imprisonment. It was widely thought at the time that the refusal to commute the sentence was driven by an impending state election. Certainly there was a wave of protest across Melbourne. Thousands gathered at a vigil outside Pentridge and at Flinders Street Station at the hour of execution. Across Australia, people felt revulsion at this judicial killing and redoubled their efforts for abolition of capital punishment across our country.

When the abolition legislation was finally debated in the Victorian parliament in 1975, Barry Jones gave a memorable speech, which explained his vote for abolition in these terms:

Essentially, I cast it against darkness, against obscurantism, against instinct, against pessimism about society and about man’s capacity for moral regeneration.

Barry Jones continued in moving terms:

It is extraordinary that often people who argue for retention have a fundamental pessimism about man’s capacity for regeneration. They say certain persons ought not to have the opportunity for regeneration. However, they have no humility about their own judgment. They are convinced that their own judgment is right. As they participate in it, they have not a scintilla of doubt that their judgment is absolutely correct. I find their confidence in their own judgment and their pessimism about society is an extraordinary paradox.

There are many arguments against the death penalty. We have heard many of them in speeches by other members in this debate. They are multiple arguments and they are overlapping arguments against abolition, but, for me, for our society to kill one of its members is an act which diminishes us all. We should believe in life and not in death and it is a matter that can be reduced to terms seemingly as simple as that. It does not aid the victims to judicially kill. As Barry Jones said in that same speech, it adds no roses to the grave of the victim that the murderer is killed by society.

There is the much established proposition that to kill with judicial authority will necessarily mean the killing of innocent men and women, at least on occasion. Our consciences rightly recoil from the idea that society has put to death an innocent man or woman. Because the United States is still, in very many states, imposing and carrying out the death penalty, it has, regrettably, provided case after case of proof in recent years that the death penalty has been imposed, and is continuing to be imposed, on innocent men and women, at least in that country.

There is a corollary—a somewhat perverse corollary—which is that the death penalty may cause the guilty to go free. That is for the very simple reason that juries do not like hanging men or women. which leads, in some cases, to juries acquitting where they should convict. One could also point to the volume of evidence that establishes, so far as these things can be established, that the death penalty does not deter crime more than other punishments. Again I would refer to the moving speech that Barry Jones gave in the Victorian parliament in 1975, speaking for the abolition of the death penalty in Victoria, in which he produced—and it is reproduced in the Hansarda famous graph which looks at the statistics in three American states over a 35-year period. The states were Michigan, Indiana and Ohio. One of those states was abolitionist—it had not had the death penalty for the entire period—another frequently executed the death penalty and a third used the death penalty only infrequently. The graph shows a convergence of the murder rates over the 35-year period and demonstrates, in very dramatic terms, just how little deterrent the existence of the death penalty was over that lengthy period in those states. It is possible to point to a host of similar studies which establish that the death penalty has no more deterrent effect than other punishments in relation to crime.

The fight for abolition has been won in this country. It seems very unlikely that anyone will be executed again in Australia, but, regrettably, the fight continues overseas, because there are very many countries which still impose the death penalty. Notably, there are countries in our region which continue to impose the death penalty and which have executed the death penalty against Australians in recent years. I attended a vigil, which I will not soon forget, on 2 December 2005 in Melbourne at the time of the execution of Van Tuong Nguyen. It was attended, as you might recall, Mr Deputy Speaker Thomson, by many members of the Melbourne legal community, because members of the Victorian bar had lent their aid to the efforts to have Van Nguyen’s life spared, but to no avail. Other Australians are currently facing the death penalty in countries to our north.

There is no room for equivocation on these matters. There is no room to say that there should be no death penalty in Australia but that there is room for the death penalty to be imposed for crimes committed elsewhere in the world. Just as we are all diminished here in Australia by the death penalty, by the continuation of the death penalty, so all human beings are diminished by the continuing imposition of the death penalty. It is a similar proposition that underlies the other part of legislation before the House because the other part deals with our obligations against torture under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Australia under the Hawke government signed the convention in December 1985 and ratified it—still under the Hawke government—in August 1989. The reason for the current amendment to the crimes legislation in relation to the prohibition against torture is prompting by observations made by the UN Committee Against Torture in May 2008 in the form of a recommendation that Australia should enact a specific offence of torture at the federal level.

The primary effect of this legislation will be to criminalise acts of torture committed both within and outside Australia. That is entirely consistent with Australia lending its efforts to a worldwide prohibition against torture, and giving this legislation extraterritorial application will further reduce the places or scope for torture to occur.

This legislation very much demonstrates this government’s condemnation of torture in all circumstances. Just as we are all diminished by the death penalty being imposed, so too, as a society, are we all diminished by our government committing torture supposedly on our behalf. It is of course an issue which has been the subject of a great deal of public discussion, particularly in the United States in the period following the September 11 atrocities in New York, because it was thought and has been said by high officials in the United States that there may be circumstances in which torture is to be permitted.

The government of our country is making it clear that there are no circumstances in which torture can be permitted. One of the best explanations of this that I have seen is from someone who is very directly on the other side of politics in a general sense to the side of politics that I occupy—namely, the unsuccessful Republican nominee for President of the United States in the last presidential election, Senator John McCain, who famously is a war veteran and was a prisoner in Hanoi in the so-called Hanoi Hilton, where he was tortured during the Vietnam War. Throughout his life and with greater strength on his return to the United States after being released from a lengthy captivity—some five years held by the North Vietnamese—in all the years after that time he fought and spoke against the use of torture. This is what Senator John McCain said in 2005, and I quote from a speech he gave in the Senate. He said:

Our enemies did not adhere to the Geneva Convention. Many of my comrades were subjected to very cruel, very inhumane, and degrading treatment, a few of them even unto death. But every single one of us knew and took great strength from the belief that we were different from our enemies, that we were better than them, that if the roles were reversed, we would not disgrace ourselves by committing or countenancing such mistreatment of them. That faith was indispensable not only to our survival but to our attempts to return home with honor. Many of the men I served with would have preferred death to such dishonor.

He went on to say:

The enemies we fight today hold such liberal notions in contempt as they hold in contempt the international conventions that enshrine them, such as the Geneva Conventions and the Treaty on Torture. I know that. But we are better than them, and we are stronger for our faith, and we will prevail.

This is a ringing endorsement of the reasons why it is important that we resist always any suggestion that it might be acceptable to engage in torture for whatever reason. There needs to be a complete and total prohibition on torture, and this bill in very direct terms shows that Australia is committed to persisting with that prohibition for all purposes.

There is a tendency—and it is with us always, I regret to say—to slip into suggesting that there may be some place for torture. I heard it very directly most recently when I was participating in a television interview with the member for Ryan in August last year where the member for Ryan said:

I think that there is a very limited place for torture and certainly where that torture takes place, it must be done in an appropriate way in an appropriate context.

Needless to say, I was appalled—aghast even—that a member of this House could give even a limited endorsement of the possibility of torture. I said—and I have a transcript here:

I am shocked to hear Michael say there is a limited place for torture. I think we need to resolutely say there is no place for torture.

By the end of the day the member for Ryan had of course retracted those comments, because it had been made clear to him by the member for Wentworth, the then opposition leader, that he condemned those comments in the clearest possible terms. There is no place for any Australian parliamentarian to be suggesting that there might ever be a place in Australian processes for the commission of torture. As a democracy we fight for certain values, and we need to continue to fight for those values. That may mean that, to use the words of Aharon Barak, we fight with one hand tied behind our back. (Time expired)

See this speech in context